Gudani vs.

Senga
G.R. No. 170165, August 15, 2006

(Political Law, Constitutional Law, E.O. 464)

FACTS

Petitioners Gen. Gudani and Lieutenant Colonel Balutan are high-ranking officers of Philippine Marines assigned to
the Philippine Military Academy (PMA) in Baguio City. Senator Biazon invited several senior officers of the
military to appear at a public hearing before a Senate Committee to clarify allegations of massive cheating and the
surfacing of copies of an audio excerpt purportedly of a phone conversation between the President and then
Commission on Elections Commissioner Garcillano. At the time of the 2004 elections, Gen. Gudani had been
designated as commander, and Col. Balutan a member, of “Joint Task Force Ranao” by the AFP Southern
Command. Armed Forces of the Philippines (AFP) Chief of Staff Lt . Gen. Senga were among the several AFP
officers also received a letter invitation from Sen. Biazon to attend the hearing. But only Gen. Gudani, and Col.
Balutan attended the invitation from Sen. Biazon.

Thereafter, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to Gen. Baloing. It was
signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. Noting that Gen. Gudani and Col. Balutan had
been invited to attend the Senate Committee hearing, the Memorandum directed the two officers to attend the
hearing. Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to
the PMA Superintendent.

However, Gen. Senga did not attend to the requested hearing as per instruction from the President that NO AFP
PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. `

While Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a statement
which noted that the two had appeared before the Senate Committee “in spite of the fact that a guidance has been
given that a Presidential approval should be sought prior to such an appearance;” that such directive was “in keeping
with the time[-]honored principle of the Chain of Command;” and that the two officers “disobeyed a legal order, in
violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General
Court Martial proceedings x x x” Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments
then.

On the very day of the hearing, the President issued Executive Order (E.O.) 464. The Office of the Solicitor General
notes that the E.O. “enjoined officials of the executive department including the military establishment from
appearing in any legislative inquiry without her approval.

Now, petitioners seek the annulment of a directive from the President enjoining them and other military officers
from testifying before Congress without the President’s consent. Petitioners also pray for injunctive relief against a
pending preliminary investigation against them, in preparation for possible court-martial proceedings, initiated
within the military justice system in connection with petitioners’ violation of the aforementioned directive.

The Court has to resolve whether petitioners may be subjected to military discipline on account of their defiance of a
direct order of the AFP Chief of Staff.

ISSUE

Whether or not E.O. 464 which provides among others that NO AFP PERSONNEL SHALL APPEAR BEFORE
ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL is unconstitutional?

Is EO 464 constitutional or not, or may the President prevent a member of the armed forces from testifying before a
legislative inquiry?
RULING

The petition is dismissed.

Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval before appearing
before Congress, the notion of executive control also comes into consideration. The impression is wrong. The ability
of the President to require a military official to secure prior consent before appearing in Congress pertains to wholly
different and independent specie of presidential authority—the commander-in-chief powers of the President. By
tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree
of restriction as that which may attach to executive privilege or executive control.

We hold that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and
that as a consequence a military officer who defies such injunction is liable under military justice. At the same time,
we also hold that any chamber of Congress which seeks to appear before it a military officer against the consent of
the President has adequate remedies under law to compel such attendance. Any military official whom Congress
summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the
President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders
have the force of the law of the land which the President has the duty to faithfully execute.

Again, let it be emphasized that the ability of the President to prevent military officers from testifying before
Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to control
the actions and speech of members of the armed forces. The President’s prerogatives as commander-in-chief are not
hampered by the same limitations as in executive privilege. The commander-in-chief provision in the Constitution is
denominated as Section 18, Article VII, which begins with the simple declaration that “[t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines x x x Outside explicit constitutional limitations, such as
those found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-
chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes
the ability of the President to restrict the travel, movement and speech of military officers, activities which may
otherwise be sanctioned under civilian law.

Reference to Kapunan, Jr. v. De Villa is useful in this regard. Lt. Col. Kapunan was ordered confined under “house
arrest” by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his
house arrest, that he may not issue any press statements or give any press conference during his period of detention.
The Court unanimously upheld such restrictions, noting:

“… 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. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the
AFP, have to be considered.”

As a general rule, it is integral to military discipline that the soldier’s speech be with the consent and approval of
the military commander. The necessity of upholding the ability to restrain speech becomes even more imperative if
the soldier desires to speak freely on political matters. For there is no constitutional provision or military
indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is vital that such opinions
be kept out of the public eye. For one, political belief is a potential source of discord among people, and a military
torn by political strife is incapable of fulfilling its constitutional function as protectors of the people and of the State.
For another, it is ruinous to military discipline to foment an atmosphere that promotes an active dislike of or dissent
against the President, the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a
President they may dislike or distrust. Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the Senate Hearing.

Congress holds significant control over the armed forces in matters such as budget appropriations and the approval
of higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-chief and
all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the
chain of command mandate that the President’s ability to control the individual members of the armed forces be
accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate,
the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution
prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.

Judicial relief as remedy:

The refusal of the President to allow members of the military to appear before Congress is not absolute. Inasmuch as
it is ill-advised for Congress to interfere with the President’s power as commander-in-chief, it is similarly
detrimental for the President to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse
did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition. The
remedy lies with the courts.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on
the constitutional power of congressional inquiry. Thus, the power of inquiry, “with process to enforce it,” is
grounded on the necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the disclosure thereof.

It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of
the Constitution. To avoid conflict, Congress must indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need for the inquiry. Section 21, Article
VI likewise establishes critical safeguards that proscribe the legislative power of inquiry. The provision requires that
the inquiry be done in accordance with the Senate or House’s duly published rules of procedure, necessarily
implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21
also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.

In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from
testifying before Congress without the President’s consent notwithstanding the invocation of executive privilege to
justify such prohibition. Should neither branch yield to the other branch’s assertion, the constitutional recourse is to
the courts, as the final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or
non-attendance in legislative inquiries.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the
legislative and executive branches of government on the proper constitutional parameters of power. By this and, if
the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the
appearance of the military officers before Congress. Even if the President has earlier disagreed with the notion of
officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the
final orders of the courts.

Lastly, General Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his
retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons
subject to military law as, among others, “all officers and soldiers in the active service of the [AFP],” and points out
that he is no longer in the active service. However, an officer whose name was dropped from the roll of officers
cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were
initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it
continues until his case is terminated.