EXPLAINER: Councilor de los Santos changes word 'punish' to 'charge' in proposed grant of contempt power to City Council. But ordinance seeks to punish disobedience to Sanggunian subpoenas, which Supreme Court ruling says local legislatures cannot do.

KEY POINTS. [1] Cebu City Council approves laws committee report finding valid a proposed ordinance granting itself the power to punish contempt. The proposal will undergo public hearing and further vetting by the City Legal Office.

[2] Finding of legality relies on authority under City Charter to investigate but the authority doesn't include contempt power. And Supreme

Court jurisprudence says local legislative bodies cannot claim the congressional power to punish disobedience to its subpoenas. The power is "sui generis" to Congress. It cannot be implied from delegated authority to legislate.

[3] The power to investigate under the City Charter is limited to transactions at City Hall involving officials or employees, complained about in writing and under oath, which must show on its face a probable "anomaly or irregularity."

THE SITUATION. The Cebu City Council Wednesday (November 16, 2022) approved the report of its committee on laws, ordinances and styling that finds "valid exercise of power" the proposed ordinance of Councilor Mary Ann de los Santos granting itself the power to conduct legislative inquiry and issue subpoenas under pain of punishment for disobedience.

But de los Santos of the minority BOPK still has to submit a version of the ordinance after she considers the committee report, which will then undergo a public hearing and a study by the City Legal Office.

In last Wednesday's session, de los Santos announced she'd change (a) in the title of the ordinance and in section 2 the word "punish" to "charge" and (b) in section 11, on penalties, the phrase "shall be punished" to "can be charged." In all others, de los Santos said, she "adopts" the report of Councilor Rey Gealon, committee on laws chairman.

WHAT'S NEXT. In declaring the approval of Gealon's report, Vice Mayor Raymond Alvin Garcia, presiding officer, said de los Santos will submit her revised ordinance for second reading. The city legal office will be asked for its legal opinion, as recommended by the committee, and a public hearing will be held.

While the proposed ordinance passed review by the committee on laws, its legality still sits on shaky ground. Asked by Minority Floor Leader Nestor Archival Sr. to summarize the committee stand, Gealon said it relies mainly on the provision of the Cebu City Charter that allows the City Council and the mayor to investigate into the official conduct of a city government official or employee.

But that power is (a) limited to certain specific cases and (b) the authority to issue subpoenas for testimony or documents may not carry authority to punish for disobedience.

LIMITS ON AUTHORITY. The limits on the Sanggunian's power to investigate may have been obscured or lost to de los Santos and other councilors.

Under Section 14 of the City Charter, the City Council shall have authority to investigate only under these conditions:

[1] There shall be a written formal complaint under oath, which "on its face provides reasonable basis to believe that some anomaly or irregularity might have been committed."

[2] The investigation shall be into the "official conduct of any department, agency, officer or employee of the city" and must relate to "city affairs."

IS POWER IMPLIED? Contempt power is not specifically or expressly provided by law, not even in the City Charter that the committee on laws cites as main legal support.

The much-touted Section 14 of the City Charter says that for the investigation, the investigative person or body -- which can be the City Council, the mayor or "any person or committee authorized by either of them" -- may subpoena "witnesses, administer oaths, and compel the production of books, papers and other evidence." No mention of contempt for disobedience.

There's also no mention of the power to punish a non-member for contempt in the Local Government Code or in the Constitution.

But the committee on laws says the power is implied from the provision of the Local Government Code that says local legislative bodies shall exercise "such other powers and perform such other duties and functions as may be prescribed by law or ordinance." They can exercise functions though not expressly granted but "appropriate or essential to effective governance" or "promotion of general welfare."

Or so the committee has found and the City Council approves the finding.

Councilor James Cuenco asked Gealon: If the City Council is given the power to issue subpoenas, does it not have the power to compel compliance? Gealon, pushing for power of contempt, said it will "breathe life to the letter of the law."

Councilor Phillip Zafra wondered why an ordinance would be needed when the power to investigate is already provided in the City Charter. He must have missed Gealon's admission that the city charter's authority to investigate doesn't include the power to punish.

HIGH COURT SAYS NO. The Supreme Court does not agree with the argument about implied or necessary power for local legislatures.

Congress asserts and invokes contempt power in punishing disobedience of witnesses subpoenaed to congressional investigations. But local legislative bodies cannot have the same right, the SC says.

In Negros Oriental II Electric Cooperative vs Sangguniang Panlungsod of Dumaguete City (GR #72492, November 8, 1987), the Supreme Court said there's no statutory authority (in the Constitution or the laws) granting local legislative bodies the power to subpoena and punish non-compliance.

POWER IS 'SUI GENERIS.' Can contempt power not be implied from the grant of legislative power to a local legislature like Cebu City, which is granted power to issue subpoenas under its City Charter?

No, the high court said, the power "partakes of a judicial nature, they cannot be implied in the grant of legislative power." That power -- which wasn't also expressly given to Congress but asserted for by Congress for self-preservation -- cannot be deemed implied from the delegation of legislative functions to local Sanggunians. The contempt power of Congress is "sui generis" (of its own kind or class), the SC ruling said, and cannot be claimed by a local legislative body. It's an exception to the presumptions favoring local autonomy and implied powers.

DE LOS SANTOS'S PLOY to get around the problem of lack of authority to punish disobedience to subpoenas seems to be this: take out references to punishment by substituting the word "punish" with "charge."

What would that mean? The violator would still be punished, otherwise what would the "charging" be for? The charge presumably would be filed in court, based on the ordinance the City Council might pass. Only that, maybe, unlike in Congress, the local punishment for contempt wouldn't be direct and immediate. A charge has to be filed in court.