B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN PETITIONERS, VS. LT./GEN. GENEROSO S. SENGA AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, COL. GI…

Gudani versus Senga

The Case

This is a petition for certiorari and prohibition filed by two high-ranking officers of the Armed Forces of the Philippines, Brigadier General Francisco Gudani and Lieutenant Colonel Alexander Balutan, against the Chief of Staff of the Armed Forces of the Philippines, Lieutenant General Generoso Senga, and other military officers. The petitioners ask the Supreme Court to annul a directive, coursed through General Senga and sourced from President Gloria Macapagal-Arroyo, that no military personnel may appear before any congressional or Senate hearing without the President's approval. They also ask the Court to stop the preliminary investigation and possible court-martial proceedings against them for having testified before the Senate in defiance of that directive. The case matters because it draws the line between the President's commander-in-chief authority over the military and the constitutional freedoms that soldiers invoke when they defy a lawful order.

Procedural History

The petitioners went directly to the Supreme Court by a petition for certiorari and prohibition, seeking to annul the directive of President Arroyo and to permanently enjoin the respondents from proceeding against them. They also prayed for injunctive relief against the pending preliminary investigation being conducted within the military justice system in preparation for possible court-martial proceedings. The petition sought three things: a declaration that the order preventing them from testifying before Congress without prior presidential approval is unconstitutional; the quashing of the charges in the charge sheets against them; and a permanent injunction against General Senga, Colonel Galarpe, Colonel Roa, and their successors from proceeding against the petitioners as a consequence of their having testified before the Senate. The Supreme Court resolved the petition directly as an original action.

Facts

At the time of the incidents, both General Gudani and Colonel Balutan belonged to the Philippine Marines and were assigned to the Philippine Military Academy in Baguio City, the former as Assistant Superintendent and the latter as Assistant Commandant of Cadets. During the 2004 elections, General Gudani had been designated commander, and Colonel Balutan a member, of Joint Task Force Ranao, which was tasked with maintaining peace and order during the elections in Lanao del Norte and Lanao del Sur. On 22 September 2005, Senator Rodolfo Biazon invited several senior officers of the Armed Forces of the Philippines to appear at a public hearing before the Senate Committee on National Defense and Security scheduled for 28 September 2005. The hearing was called after allegations of massive cheating in the 2004 elections and the surfacing of an audio excerpt purportedly of a phone conversation between President Arroyo and a Commission on Elections official.

On 26 September 2005, the Office of the Chief of Staff issued a Memorandum directing General Gudani and Colonel Balutan to attend the hearing. Both officers filed their requests for travel authority and departed Baguio for Manila. On the evening of 27 September 2005, a message was transmitted to the Superintendent of the Philippine Military Academy from the office of General Senga, stating that per instruction of the President, no Armed Forces personnel shall appear before any congressional or Senate hearing without her approval, and directing that General Gudani and Colonel Balutan be informed accordingly. The following day, General Senga wrote to Senator Biazon informing him that no approval had been granted by the President to any Armed Forces officer to appear. Nonetheless, both officers attended the hearing and testified on the conduct of the 2004 elections.

A few hours after their testimony, the office of General Senga issued a statement noting that the two officers had appeared in spite of the guidance that presidential approval should be sought, that the directive was in keeping with the chain of command, and that the two officers disobeyed a legal order in violation of Article of War 65, for willfully disobeying a superior officer, and would be subjected to General Court Martial proceedings. Both were relieved of their assignments. On 30 September 2005, they were directed to appear before the Office of the Provost Marshal General for investigation, where both invoked their right to remain silent. The following day, General Gudani was compulsorily retired upon reaching the age of 56. An Investigation Report recommended that the petitioners be charged with violation of Article of War 65 in relation to Article of War 97, and the case was referred to a Pre-Trial Investigation Officer preparatory to trial by the General Court Martial. On 24 October 2005, the petitioners were served with Orders directing them to appear before the Pre-Trial Investigation of the Charges for violation of Articles 65 and 97 of Commonwealth Act Number 408, accompanied by charge sheets.

Issues

• Whether or not the directive of President Arroyo, coursed through General Senga, requiring prior presidential approval before any Armed Forces personnel may appear before Congress is constitutional.
• Whether or not the petitioners may be subjected to military discipline, including preliminary investigation preparatory to court-martial, on account of their defiance of a direct order of the Chief of Staff of the Armed Forces of the Philippines.
• Whether or not General Gudani remains subject to military jurisdiction despite his compulsory retirement from the service.

Applicable Provisions

Section 18, Article VII of the Constitution provides:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

This provision is the source of the President's commander-in-chief authority over the persons and actions of members of the armed forces, which the Court holds includes the power to restrict their travel, movement, and speech.

Article 2, Title I of Commonwealth Act Number 408, the Articles of War, defines persons subject to military law, and the petitioners cite it as providing that it covers all officers and soldiers in the active service of the Armed Forces of the Philippines.

Section 28 of Presidential Decree Number 1638, as amended, provides:

An officer or enlisted man carried in the retired list shall be subject to the Articles of War.

This provision supports the conclusion that retirement does not remove an officer from military jurisdiction.

Ruling

On the first issue, the Court held that the petition must be denied. The President, as commander-in-chief, has absolute authority over the persons and actions of members of the armed forces, and this authority includes the ability to restrict the travel, movement, and speech of military officers, activities which may otherwise be sanctioned under civilian law. The Court distinguished its earlier ruling in Senate versus Ermita, which declared void portions of Executive Order Number 464. That case turned on executive privilege and executive control, which are encumbered by significant limitations. The ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent species of presidential authority, the commander-in-chief powers, which are not encumbered by the same degree of restriction. The Court quoted its ruling in Kapunan versus De Villa:

It cannot be gainsaid that certain liberties of persons in the military service, including the freedom of speech, may be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier's personal views on the matter.

On the second issue, the Court held that Armed Forces personnel of whatever rank are liable under military law for violating a direct order of an officer superior in rank. Whether the petitioners actually violated such an order is not for the Court to decide, but for the purposes of the petition, the Court assumed that they did. The guilt or innocence of the petitioners is not an issue before the Court, and the correct inquiry is limited to whether the respondents could properly initiate proceedings preparatory to a formal court-martial on the basis of the petitioners' acts. The Court held that they could.

On the third issue, the Court held that military jurisdiction had fully attached to General Gudani because both the acts complained of and the initiation of the proceedings against him occurred before he compulsorily retired. Citing Abadilla versus Ramos, the Court ruled that once jurisdiction has been acquired over an officer, it continues until his case is terminated. The Court quoted Colonel Winthrop's treatise:

It has further been held, and is now settled law, in regard to military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the termination of their legal period of service, they may be brought to trial by court-martial after that date, their discharge being meanwhile withheld.

Doctrine

The President, as commander-in-chief under Section 18, Article VII of the Constitution, has absolute authority over the persons and actions of members of the armed forces. This authority includes the power to restrict the travel, movement, and speech of military officers, even activities that would otherwise be protected under civilian law. The commander-in-chief power is not encumbered by the same degree of restriction as executive privilege or executive control. Military discipline requires that lawful orders be followed without question, irrespective of a soldier's personal views. Once military jurisdiction has attached to an officer before the termination of his service, it continues until his case is terminated, and retirement does not divest the military authorities of jurisdiction.

Disposition

The petition was denied. The writs of certiorari and prohibition prayed for were not granted, and the respondents were not enjoined from proceeding against the petitioners.

Remember This

The single line worth memorizing is that the commander-in-chief clause vests in the President absolute authority over the persons and actions of members of the armed forces, including the power to restrict their travel, movement, and speech, and that lawful orders must be followed without question. Examiners like to use this case to test the distinction between the commander-in-chief power and executive privilege, and to test whether retirement divests military jurisdiction over an officer.