[] New city ordinance, in allowing complaint-less investigation, expands the authority specifically granted by Revised City Charter of 1964;
[] City Council explores further the legal issue that Supreme Court decided in 1987, namely: whether local legislatures can be like Congress and have power of contempt as enforcement tool for subpoenas. The SC ruled in Negros II Electric Cooperative vs Sangguniang Panlungsod of Dumaguete City that the power of contempt "cannot be implied from the power to legislate" as "delegated power cannot be delegated." But then Dumaguete City doesn't have the charter provision similar to Cebu City's.
TWO WAYS BUT CITY CHARTER PROVIDES ONLY ONE. Under Cebu City Ordinance #2748 -- which, the City Council was informed last Wednesday, August 21, 2024, has been signed into law by Acting Mayor Raymond Alvin Garcia -- the Sangguniang Panlungsod has the power to investigate in aid of legislation en banc or in full membership or by one or more committees. And the investigation may be (1) upon the City Council's own initiative or (2) upon complaint.
Two ways under the approved ordinance, although the Revised City Charter (Republic Act #3857 of June 10, 1964) provides for only one manner: the one that's set off by "a written formal complaint made under oath," which "on its face provides reasonable basis to believe that some anomaly or irregularity might have been committed." The City Charter doesn't only require a verified complaint; the complaint must relate to a reasonably-suspected "anomaly or irregularity."
That question is inevitably raised because the City Council relies mainly on the City Charter for its legal basis in enacting the ordinance. Author Councilor Mary Ann de los Santos has vigorously pushed for the ordinance so that the City Council can do its job more efficiently, hurdling, for now, such obstacles as Mayor Michael Rama's veto last January and questions about its legal validity. The mayor's veto was anchored largely on Rama's belief that the ordinance, aside from being "prejudicial to public welfare," was outside the local legislature's legal authority or "ultra vires."
COUNCIL'S BASIS FOR ASSERTING POWER. Unlike the City Charter of Dumaguete City, our City Charter expressly provides that "the City Council or the mayor, or any person or committee authorized by either of them, shall have the power to inquire (into) the official conduct of any department, agency office, or employee of the city, and to make investigation as to city affairs...," for which they may "subpoena witnesses, administer oaths, and compel the production of books, papers and other evidence."
Besides the City Charter, a second legal basis for the City Council to grant itself investigative power -- as cited in City Ordinance #2748's "whereases" -- is the Local Government Code [RA 7160, section 458, paragraph (a)(6)], which provides that the Sanggunian can also "exercise such other powers and perform such other duties and functions as may prescribed by ordinance." Except, of course, those powers the Supreme Court says cannot legally exercise.
COMPARING CHARTER WITH ORDINANCE that the acting mayor just approved into law, the City Council's and the mayor's investigative power sourced from the City Charter is expanded to include the power to investigate on local legislature's own initiative and with no requirement of a complaint about an "anomaly" or "irregularity." The "motu propio" inquiry requires only a resolution from a City Council member calling for an investigation "in aid of legislation."
And this omission also stands out: The ordinance, which largely deals with the procedure in investigations, does not include the city mayor who under the City Charter is granted, along with the City Council, the power to investigate. That probably does not take away his charter-given power although the procedure provided by the ordinance obviously doesn't apply to any inquiry the mayor may conduct.
REQUIREMENTS UNDER THE ORDINANCE. On the other kind of investigation, the one set off by a complaint filed with the City Council, the requirements under City Ordinance #2748 are:
-- The complaint is verified, with affidavits of witnesses, and the request is for an investigation in aid of legislation of a particular matter/controversy;
-- The complaint -- as the committee on laws, ordinances and styling shall determine -- is not "adversarial" or pending for investigation with the court, the Ombudsman, "and/or other agencies of the government";
-- A majority of the City Council "members present" will approve the request for investigation that the committee on laws has screened and approved; otherwise, the investigation shall not proceed.
-- A City Council member is required to inhibit himself from the inquiry on grounds of "conflict of interest and pecuniary interest."
-- Technical rules of evidence don't apply although the Rules of Court may have suppletory application. Only witnesses with a sworn statement can testify, testimony is under oath, and all statements during the investigation are "considered privileged communication."
Which is not defined in the ordinance but a popular understanding of the term, as distinguished from the meaning under libel law, is that "whatever is communicated (between the witness and the investigators) must remain confidential and the law cannot force their disclosure."
ANY LEGAL UNCERTAINTY ABOUT THE ORDINANCE may be clarified only in a litigation that might arise during its enforcement. To be sure, that could help remove some murky points on the powers of local legislatures, which lawyers watching City Hall events would like to see.