THE Mandaue City Government has proposed an executive order that would permit City Government lawyers to represent Mayor Jonas Cortes during Mandaue City Council's regular sessions.
But one of the councilors has opposed the measure, saying it is unconstitutional and encroaches upon the powers of the City Council.
During its regular session at the Mandaue Session Hall on Monday, March 4, 2024, the City Council introduced the implementation of Executive Order (EO) 12, which was signed by Cortes on February 23.
The EO authorizes City Administrator Jamaal James Calipayan, City Budget Officer Giovanni Tianero, Business Process Licensing Office (BPLO) head Lizer Malate, and/or City Legal Head John Eddu Ibañez to represent Cortes during the sessions of the City Council.
All four individuals, who are lawyers, will have full authority to participate in the discussions during the session, but they are not permitted to vote as stated under Section 10 paragraph (i) of the Republic Act 5519, or the Charter of the City of Mandaue City.
Constitutional crisis
But Councilor Joel Seno emphasized the importance of recognizing the distinct powers of the City Council and the mayor as the executive chief.
He cited the Local Government Code of 1991 (LGC), which states that the power of a mayor is limited to the proposal and initiation of legislative matters.
Seno said the mayor is not authorized to participate in the discussions of the City Council, as this could potentially lead to a constitutional crisis.
According to Article 2, Section 456 of the Local Government Code (LGC), a mayor has the authority to exercise control and supervision over all programs, projects, services, and activities of the city government. This includes ensuring that all laws and ordinances related to the governance of the city are enforced.
The mayor can also implement all approved policies, programs, projects, services, and activities of the city and generate resources and revenues to fund the implementation of development plans, program objectives, and priorities. This is particularly important for agro-industrial development and countryside growth and progress.
The mayor also has the responsibility to ensure the delivery of essential services and the provision of appropriate facilities as mandated by section 17 of the Code. He or she may exercise other powers and fulfill other duties and functions as prescribed by law or ordinance.
"That is tantamount to an ultra vires act (beyond the powers). And as I mentioned, the powers of the city mayor are very specific under the local government code. That is why it is specific because under the principle of canalizing within banks to keep it from overflowing," said Seno.
The Securities and Exchange Commission (SEC) defines an ultra vires act as an act that is completed without legal authority or power.
Seno clarified that while the Council's regular session is open to the public, only the members of the City Council are allowed to participate in the discussion. Non-members of the City Council may be allowed to participate only as resource persons during preliminary matters.
He said proposing and initiating a measure is part of the powers of a mayor under the LGC. However, discussions of the committee reports, which the Council is doing, are solely the domain of the City Council.
Seno said that while the Council can request non-members to participate, they are only allowed to answer questions. This creates a point of contention, as joining all discussions of the Council is considered plenary and is not allowed under the LGC.
Seno added that the Code supersedes, amends, or repeals any provision that is inconsistent with its own provisions.
Seno said that the 1991 Local Government Code repeals all general and special laws, including city charters, that are inconsistent with it.
EO aims to improve relationship
In a separate interview on March 4, Calipayan said the separation of powers between the executive (the law-enforcing body), legislative (the law-making body), and judiciary (the law-interpreting body) branches in the local governance are stated in the city's Charter Law under RA 5519, which was enacted in 1969.
According to Calipayan, the City Charter Law has established the separation of powers among the branches of government, which would have been declared unconstitutional if it had not been established during the 1935 Constitution.
Calipayan dismissed Seno's allegation of the EO being unconstitutional and encroaching on the powers of the City Council as a "flimsy" reason.
He said Seno should have stated his proper objection and not cited constitutional issues that were not true.
Calipayan said the EO was issued to improve the relationship between the City Council and the Mandaue City Government.
He said most of the Council's agenda is supported by the executive. Usually, the executive asks for a resource person to clarify certain matters.
"To facilitate that there is no need for another agenda because the resource person will be called when in fact, we are there and we know most of the endorsement of the city mayor to the Sangguniang Panglungsod," said Calipayan.
He said the order would make it easier to address any questions about an executive endorsement without having to wait for weeks. This would avoid the proposal from being postponed until resource persons respond to queries.
Calipayan emphasized that the EO does not violate any laws. In case it does, he suggests seeking relief in courts to declare any unconstitutional acts by the mayor and the City Council.
He clarified that non-council members can participate in the discussion only after being recognized by the presiding officer and questioned by council members.
However, non-council members, even Mayor Cortes, if he decides to participate, are not allowed to vote, as stated in the City Charter.
Calipayan said the EO would only help the Council in expediting its business. Any of the four appointees under the EO can attend the session, or a certain person with more knowledge on a specific agenda can join if recognized by the Council.
While Seno's objection is noted by the Council, the EO will remain in effect, said Calipayan. (HIC)