EXPLAINER: Proposal in Cebu City Council seeks to grant itself power to investigate, subpoena persons and documents, punish with contempt. Councilor Mary Ann de los Santos filed ordinance; laws committee chief Rey Gealon backs it. Problem: Is it within Sanggunian’s powers?

WHAT MARY ANN WANTS. Minority Councilor Mary Ann C. de los Santos last September 7 filed a proposed ordinance that would:

[] “Define the powers Cebu City Council en banc or through its committee to conduct investigation in aid of legislation,” namely to gather documents; issue subpoena to testify and to submit a document, and punish for contempt any person who refuses to obey;

[] “Subject the case to a committee hearing,” where parties may testify and cross-examined.

From the exercise, the City Council may recommend legislation based on information gathered and facts revealed.

In sum, Councilor de los Santos’s ordinance would give the Sanggunian the same powers granted to the House of Representatives and the Senate: committee hearings, resource persons testifying and being grilled, locking them up if they refuse the order.

WHY THEY NEED THE POWER. “Whereases” in the ordinance include an explanation why the City Council needs the power: to do its job of passing ordinances and resolutions that involve appropriating money and regulating conduct of the city’s people and businesses.

Majority Councilor Rey Gealon told Explainer Monday, September 26 his colleague de los Santos wants “maybe to compel attendance of officials who may be able to shed light on matters of public interest that may aid us in legislation.”

FIRST, THE LEGAL PROBLEM. Councilor Gealon concedes there’s a legal problem, specifically the legal principle upheld by the 35-year-old Supreme Court case of Negros Oriental II Electric Cooperative vs. Sangguniang Panglungsod of Dumaguete (GR #72492, November 8, 1987).

An ad hoc committee of the Dumaguete Sanggunian issued on October 25, 1985 a subpoena to the electric coop requiring them to attend and testify at an October 29 inquiry, with a threat of contempt if the coop’s general manager and board chairman would refuse. The subpoena specified that the inquiry was in connection with pending legislation related to public utilities, on the basis of allegation that the installed power lines in the city were inefficient (the coop acquired its materials from Cebu-based Veco). The coop officials sued.

The SC flatly ruled that the City Councll of Dumaguete did not have the power to subpoena witnesses and to punish non-Sanggunian members for contempt. There is no provision in the 1973 Constitution or in the Local Government Code – or in the city’s charter -- granting such power.

How may the Sanggunian exercise that power? The only justification, the SC ruled, for any grant would be for the said power “to be deemed implied in the statutory grant of delegated legislative power.” But subpoena and contempt power is judicial in

nature and “cannot be implied in the grant of legislative power.”

Can the power exist as part of the performance of the councilors’ functions? Also no, said the SC. “To allow local legislative bodies or administrative bodies to exercise those powers without express without statutory basis would run afoul of the doctrine of separation of powers.”

Go back to de los Santos’s “whereases.” They mention of the power to enact ordinances but not the power to subpoena witnesses and punish for contempt. The principle of checks and balances. They claim that the power is implied from the “statutory grant” of legislative power. The SC said no, it is not.

The “whereases” cite the Cebu City Charter (Section 14, Republic Act 3857 of June 10, 1964), which provision on “investigations and inquiries” indeed specifies that the Sanggunian may subpoena witnesses , administer oaths and compel the production of books , papers and other and other evidence.” It may be said that compulsion necessarily includes the pain of punishment, but the charter does not expressly grant that power.

GEALON’S INTEREST. Councilor Gealon, to whose committee on laws the de los Santos’s proposal has been referred, appears supportive of the potentially “ultra vires” ordinance. Gealon said he’d work with the author and her lawyer. He told

Explainer Monday he was “working on this now... talked with Mdm Konz Mary Ann.”

The ordinance would be useful to minority BOPK as it is a mechanism for investigation on alleged wrongdoings of the majority Barug. Most likely, its hearings would be public and provide a stage for BOPK to publicize accusations against the mayor and department heads: a device for checks and balances and a boon to separation of powers are among Councilor de los Santos’s arguments.

But Gealon is “for transparency and good governance,” he said. He said he’d favorably report it out, but with a proviso: if it finds “legal support for its approval.” A former Cebu City legal officer, he apparently also relishes the idea of “testing the law and jurisprudence” if someone or a group challenges the ordinance. But first, his committee has to decide if the case is winnable by the City.

Fair enough, but still puzzling to some City Hall veterans who saw the majority partly gag the minority by the House rule that took effect last June 30: a city official or employee may be required by the Sanggunian to answer its questions only in writing or in an executive session -- or only when the majority says so. Not only would it be a confrontation but an investigative and accusatory confrontation.

GLIMPSES OF DEFENSE. Aside from the author’s justification for the ordinance, Gealon’s point of attack would be that the “case merely involved an ad hoc committee” of the Dumaguete legislature, not the entire Sanggunian. Perhaps, if a City Council would exercise it by the City Council “in session assembled, it can exercise the power,” he said.

Some “maybes” that the SC ruling may inspire hopefuls like de los Santos and Galon:

[] Maybe the SC would consider the exercise of the power justified and strongly-based if it’s an action of the entire body, not just of a committee.

[] Maybe the high court would allow the power of subpoena and contempt if it would consider the Cebu City Charter, which grants the power. In the Dumaguete case, the SC said the city’s charter didn’t grant any such specific power.

[] Maybe the SC allow such grant in cases when the activity covered does not fall under the investigative powers of a national government agency. In the Dumaguete case, the National Electrification Administration (NEA) investigates alleged wrongdoings of electrical companies.

MASSED AGAINST IT. Strongly massed against those arguments, however, are (a) the “settled principle” (“stare decisis”) that the power cannot be exercised by local legislatures, (b) the SC view that there’s a huge difference between Congress and the local Sanggunians (entirely “different animals”) and (c) that delegated power does not expand the power without the express approval of the delegating authority. Looming large and menacing is the principle of “ultra vires,” outside its authority or “kaya” and is not something the City Council can decide to give to itself.

PERSONAL MOTIVE? In the City Council session of July 19, Majority Floorleader Jocelyn Pesquera advised Councilors Nestor Archival and de los Santos to ask Congress to grant Sanggunians the power of subpoena and contempt. That could enable the councilors to confront in public department heads, instead of the executive session and reply in writing that the new House rules prescribe.

De los Santos must have heeded the advice. But Pesquera specified Congress as the authority to ask. Here, the City Council would grant itself the power.

More than seven years ago, in 2014, De los Santos “challenged” lawyer-SunStar columnist Elias L. Espinoza to “name names” after he alleged that someone profited from scrap metals in the demolition of Cebu City Medical Center. The Sanggunian, asked the Visayas ombudsman to look into it (findings not known to this day) and invited Espinoza and then DEPW chief Jose Maria Poblete, among others, to an executive session on December 4 (no published report about the session, except that Espinoza didn’t show up).

That must have rankled and inspired in part de los Santos to file the ordinance on her return to the City Council.