B/GEN. (RET.) FRANCISCO V. G.R. No. 170165
GUDANI AND
ALEXANDER F. BALUTAN
Petitioners, Present:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
LT./GEN. GENEROSO S. SENGA
AS
CHIEF OF STAFF OF THE CARPIO-MORALES,
ARMED FORCES OF THE CALLEJO, SR.,
JOSE C. ROA AS THE PRE-TRIAL
TINGA,
INVESTIGATING
OFFICER, THE CHICO-NAZARIO,
PROVOST
OF
THE ARMED FORCES OF THE VELASCO, JR., JJ.
COURT-MARTIAL,
Respondents.
Promulgated:
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D E C I S I O N
Tinga, J.:
A
most dangerous general proposition is foisted on the Court — that soldiers who defy
orders of their
superior officers are exempt
from the strictures of military law
and discipline if such defiance is predicated on an act otherwise valid under
civilian law. Obedience and deference to the military chain of command and the
President as commander-in-chief are the cornerstones of a professional military
in the firm cusp of civilian control. These values of obedience and deference
expected of military officers are content-neutral, beyond the sway of the
officer’s own sense of what is prudent or rash, or more elementally, of right
or wrong. A self-righteous military invites itself as the scoundrel’s activist
solution to the “ills” of participatory democracy.
Petitioners seek the annulment of a
directive from President Gloria Macapagal-Arroyo[1]
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 is cognizant that
petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of
Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court
recognizes these values as of paramount importance to our civil society, even
if not determinative of the resolution of this petition. Had the relevant issue
before us been the right of the Senate to compel the testimony of petitioners,
the constitutional questions raised by them would have come to fore. Such a
scenario could have very well been presented to the Court in such manner,
without the petitioners having had to violate a direct order from their
commanding officer. Instead, 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.
The solicited writs of certiorari and
prohibition do not avail; the petition must be denied.
I.
The
petitioners are high-ranking officers of the Armed Forces of the Philippines
(AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and
Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine
Marines. At the time of the subject incidents, both Gen. Gudani and Col.
Balutan were assigned to the Philippine Military Academy (PMA) in
On
Gen.
Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga
(Gen. Senga) were among the several AFP officers who received a letter
invitation from Sen. Biazon to attend the
On
On
Then
on the evening of
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.[7]
The following day, Gen. Senga sent another letter to Sen.
Biazon, this time informing the senator that “no approval has been granted by
the President to any AFP officer to appear” before the hearing scheduled on
that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the
hearing started, and they both testified as to the conduct of the 2004
elections.
The
Office of the Solicitor General (OSG), representing the respondents before this
Court, has offered additional information surrounding the testimony of Gen.
Gudani and Col. Balutan. The OSG manifests that the couriers of the
A
few hours after 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.[9]
On
the very day of the hearing,
In
the meantime, on
In an Investigation Report dated
It was from these premises that the
present petition for certiorari and prohibition was filed, particularly seeking
that (1) the order of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior approval be
declared unconstitutional; (2) the charges stated in the charge sheets against
petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their
successors-in-interest or persons acting for and on their behalf or orders, be
permanently enjoined from proceeding against petitioners, as a consequence of
their having testified before the Senate on 28 September 2005.[20]
Petitioners
characterize the directive from President Arroyo requiring her prior approval
before any AFP personnel appear before Congress as a “gag order,” which violates
the principle of separation of powers in government as it interferes with the
investigation of the Senate Committee conducted in aid of legislation. They also
equate the “gag order” with culpable violation of the Constitution, particularly
in relation to the public’s constitutional right to information and
transparency in matters of public concern. Plaintively, petitioners claim that
“the Filipino people have every right to hear the [petitioners’] testimonies,”
and even if the “gag order” were unconstitutional, it still was tantamount
to “the crime of obstruction of justice.” Petitioners further argue that there was no
law prohibiting them from testifying before the Senate, and in fact, they were
appearing in obeisance to the authority of Congress to conduct inquiries in aid
of legislation.
Finally,
it is stressed in the petition that Gen. Gudani was no longer subject to
military jurisdiction on account of his compulsory retirement on
II.
We
first proceed to define the proper litigable issues. Notably, the guilt or
innocence of petitioners in violating Articles 65 and 97 of the Articles of War
is not an issue before this Court, especially considering that per records,
petitioners have not yet been subjected to court martial proceedings. Owing to the
absence of such proceedings, the correct inquiry should be limited to whether
respondents could properly initiate such proceedings preparatory to a formal
court-martial, such as the aforementioned preliminary investigation, on the
basis of petitioners’ acts surrounding their testimony before the Senate on
Thus,
we limit ourselves to those facts that are not controverted before the Court,
having been commonly alleged by petitioners and the OSG (for respondents).
Petitioners were called by the Senate Committee to testify in its
What
the Court has to consider though is whether the violation of the aforementioned
order of Gen. Senga, which emanated from the President, could lead to any
investigation for court-martial of petitioners. It has to be acknowledged as a
general principle[23]
that AFP personnel of whatever rank are liable under military law for violating
a direct order of an officer superior in rank. Whether petitioners did violate
such an order is not for the Court to decide, but it will be necessary to
assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily,
we must discuss the effect of E.O. 464 and the Court’s ruling in Senate
on the present petition. Notably, it is not alleged that petitioners were in
any way called to task for violating E.O. 464, but instead, they were charged
for violating the direct order of Gen. Senga not to appear before the Senate
Committee, an order that stands independent of the executive order. Distinctions
are called for, since Section 2(b) of E.O. 464 listed “generals and flag
officers of the Armed Forces of the Philippines and such other officers who in
the judgment of the Chief of Staff are covered by the executive privilege,” as
among those public officials required in Section 3 of E.O. 464 “to secure prior
consent of the President prior to appearing before either House of Congress.”
The Court in Senate declared both Section 2(b) and Section 3 void,[24]
and the impression may have been left following Senate that it settled
as doctrine, that the President is prohibited from requiring military personnel
from attending congressional hearings without having first secured prior
presidential consent. That impression is wrong.
Senate
turned on the nature of executive privilege, a presidential prerogative which
is encumbered by significant limitations. 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.[25]
However, 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 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.
During
the deliberations in Senate, the Court was very well aware of the
pendency of this petition as well as the issues raised herein. The decision in Senate
was rendered with the comfort that the nullification of portions of E.O. 464
would bear no impact on the present petition since petitioners herein were not
called to task for violating the executive order. Moreover, the Court was then
cognizant that Senate and this case would ultimately hinge on disparate legal
issues. Relevantly, Senate purposely did not touch upon or rule on the
faculty of the President, under the aegis of the commander-in-chief powers[26]
to require military officials from securing prior consent before appearing
before Congress. The pertinent factors in considering that question are markedly
outside of those which did become relevant in adjudicating the issues raised in
Senate. It is in this petition that those factors come into play.
At
this point, we wish to dispose of another peripheral issue before we strike at
the heart of the matter. General Gudani argues that he can no longer fall
within the jurisdiction of the court-martial, considering his retirement last
This point was settled against Gen.
Gudani’s position in Abadilla v. Ramos,[27]
where the Court declared that 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. Thus, the Court held:
The
military authorities had jurisdiction over the person of Colonel Abadilla at
the time of the alleged offenses. This jurisdiction having been vested in the
military authorities, it is retained up to the end of the proceedings against
Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is
terminated.[28]
Citing
Colonel Winthrop’s treatise on Military Law, the Court further stated:
We
have gone through the treatise of Colonel Winthrop and We find the following
passage which goes against the contention of the petitioners, viz —
3. Offenders in general — Attaching of jurisdiction. 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. This principle has mostly been applied to cases where the offense was committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day on which his service legally terminates and his right to a discharge is complete, proceedings with a view to trial are commenced against him — as by arrest or the service of charges, — the military jurisdiction will fully attach and once attached may be continued by a trial by court-martial ordered and held after the end of the term of the enlistment of the accused x x x [29]
Thus,
military jurisdiction has fully attached to Gen. Gudani inasmuch as both the
acts complained of and the initiation of the proceedings against him occurred
before he compulsorily retired on
IV.
We
now turn to the central issues.
Petitioners wish to see annulled the
“gag order” that required them to secure presidential consent prior to their
appearance before the Senate, claiming that it violates the constitutional
right to information and transparency in matters of public concern; or if not,
is tantamount at least to the criminal acts of obstruction of justice and grave
coercion. However, the proper perspective from which to consider this issue entails
the examination of the basis and authority of the President to issue such an
order in the first place to members of the AFP and the determination of whether
such an order is subject to any limitations.
The
vitality of the tenet that the President is the commander-in-chief of the Armed
Forces is most crucial to the democratic way of life, to civilian supremacy
over the military, and to the general stability of our representative system of
government. The Constitution reposes final authority, control and supervision
of the AFP to the President, a civilian who is not a member of the armed
forces, and whose duties as commander-in-chief represent only a part of the
organic duties imposed upon the office, the other functions being clearly civil
in nature.[31]
Civilian supremacy over the military also countermands the notion that the
military may bypass civilian authorities, such as civil courts, on matters such
as conducting warrantless searches and seizures.[32]
Pursuant
to the maintenance of civilian supremacy over the military, the Constitution
has allocated specific roles to the legislative and executive branches of
government in relation to military affairs. Military appropriations, as with
all other appropriations, are determined by Congress, as is the power to
declare the existence of a state of war.[33]
Congress is also empowered to revoke a proclamation of martial law or the
suspension of the writ of habeas corpus.[34]
The approval of the Commission on Appointments is also required before the
President can promote military officers from the rank of colonel or naval
captain.[35] Otherwise, on the particulars of civilian dominance
and administration over the military, the Constitution is silent, except for the commander-in-chief
clause which is
fertile in meaning and
implication as to whatever inherent
martial authority the President may possess.[36]
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”[37]
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[38]
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:
[T]he Court is of the view that
such is justified by the requirements of military discipline. 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. It is from
this viewpoint that the restrictions imposed on petitioner Kapunan, an officer
in the AFP, have to be considered.[39]
Any good soldier, or indeed any ROTC cadet, can attest to the
fact that the military way of life circumscribes several of the cherished
freedoms of civilian life. It is part and parcel of the military package. Those who cannot abide by these
limitations normally do not pursue a military career and instead find
satisfaction in other fields; and in fact many of those discharged from the
service are inspired in their later careers precisely by their rebellion
against the regimentation of military life. Inability or unwillingness to cope
with military discipline is not a stain on character, for the military mode is
a highly idiosyncratic path which persons are not generally conscripted into,
but volunteer themselves to be part of. But for those who do make the choice to
be a soldier, significant concessions to personal freedoms are expected. After
all, if need be, the men and women of the armed forces may be commanded upon to
die for country, even against their personal inclinations.
It
may be so that military culture is a remnant of a less democratic era, yet it
has been fully integrated into the democratic system of governance. The
constitutional role of the armed forces is as protector of the people and of
the State.[40] Towards
this end, the military must insist upon a respect for duty and a discipline
without counterpart in civilian life.[41]
The laws and traditions governing that discipline have a long history; but they
are founded on unique military exigencies as powerful now as in the past.[42] In
the end, it must be borne in mind that the armed forces has a distinct
subculture with unique needs, a specialized society separate from civilian
society. [43] In the elegant prose of the eminent British
military historian, John Keegan:
[Warriors
who fight wars have] values and skills [which] are not those of politicians and
diplomats. They are those of a world
apart, a very ancient world, which exists in parallel with the everyday world
but does not belong to it. Both worlds change over time, and the warrior world
adopts in step to the civilian. It
follows it, however, at a distance. The
distance can never be closed, for the culture of the warrior can never be that
of civilization itself….[44]
Critical
to military discipline is obeisance to the military chain of command. Willful
disobedience of a superior officer is punishable by court-martial under Article
65 of the Articles of War.[45] “An
individual soldier is not free to ignore the lawful orders or duties assigned
by his immediate superiors. For there would be an end of all discipline if the
seaman and marines on board a ship of war [or soldiers deployed in the field],
on a distant service, were permitted to act upon their
own opinion of their
rights [or their opinion
of the
President’s intent], and to throw off
the authority of the commander whenever they supposed it to be unlawfully
exercised.”[46]
Further
traditional restrictions on members of the armed forces are those imposed on
free speech and mobility. Kapunan is ample precedent in justifying that
a soldier may be restrained by a superior officer from speaking out on certain
matters. As a general rule, the discretion of a military officer to restrain
the speech of a soldier under his/her
command will be accorded deference, with minimal regard if at all to the reason
for such restraint. 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. The
Constitution requires that “[t]he armed forces shall be insulated from partisan
politics,” and that ‘[n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote.”[47]
Certainly, 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. This
fundamental principle averts the country from going the way of banana republics.
Parenthetically,
it must be said that the Court is well aware that our country’s recent past is
marked by regime changes wherein active military dissent from the chain of
command formed a key, though not exclusive, element. The Court is not blind to
history, yet it is a judge not of history but of the Constitution. The
Constitution, and indeed our modern democratic order, frown in no uncertain
terms on a politicized military, informed as they are on the trauma of absolute
martial rule. Our history might imply that a political military is part of the
natural order, but this view cannot be affirmed by the legal order. The
evolutionary path of our young democracy necessitates a reorientation from this
view, reliant as our socio-political culture has become on it. At the same
time, evolution mandates a similar demand that our system of governance be more
responsive to the needs and aspirations of the citizenry, so as to avoid an
environment vulnerable to a military apparatus able at will to exert an undue
influence in our polity.
Of
possibly less gravitas, but of equal importance, is the principle that mobility
of travel is another necessary restriction on members of the military. A
soldier cannot leave his/her post without the consent of the commanding
officer. The reasons are self-evident. The commanding officer has to be aware
at all times of the location of the troops under command, so as to be able to
appropriately respond to any exigencies. For the same reason, commanding
officers have to be able to restrict the movement or travel of their soldiers,
if in their judgment, their presence at place of call of duty is necessary. At
times, this may lead to unsentimental, painful consequences, such as a soldier
being denied permission to witness the birth of his first-born, or to attend
the funeral of a parent. Yet again, military life calls for considerable
personal sacrifices during the period of conscription, wherein the higher duty
is not to self but to country.
Indeed,
the military practice is to require a soldier to obtain permission from the
commanding officer before he/she may leave his destination. A soldier who goes
from the properly appointed place of duty or absents from his/her command,
guard, quarters, station, or camp without proper leave is subject to punishment
by court-martial.[48] It is even clear from the record that
petitioners had actually requested for travel authority from the PMA in
It
is clear that the basic position of petitioners impinges on these fundamental
principles we have discussed. They seek to be exempted from military justice
for having traveled to the Senate to testify before the Senate Committee
against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners’ position is affirmed, a considerable exception would be carved
from the unimpeachable right of military officers to restrict the speech and
movement of their juniors. The ruinous consequences to the chain of command and
military discipline simply cannot warrant the Court’s imprimatur on
petitioner’s position.
V.
Still,
it would be highly myopic on our part to resolve the issue solely on
generalities surrounding military discipline. After all, petitioners seek to impress
on us that their acts are justified as they were responding to an invitation
from the Philippine Senate, a component of the legislative branch of government.
At the same time, the order for them not to testify ultimately came from the
President, the head of the executive branch of government and the
commander-in-chief of the armed forces.
Thus,
we have to consider the question: may the President prevent a member of the
armed forces from testifying before a legislative inquiry? 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 the appearance before it of 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.[50]
Explication
of these principles is in order.
As
earlier noted, we ruled in Senate that the President may not issue a
blanket requirement of prior consent on executive officials summoned by the
legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed
that the privilege must be formally invoked on specified grounds. However,
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.
Our ruling that the President could,
as a general rule, require military officers to seek presidential approval
before appearing before Congress is based foremost on the notion that a
contrary rule unduly diminishes the prerogatives of the President as
commander-in-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higher-rank
promotions,[51] 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.[52]
At
the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution
itself recognizes as one of the legislature’s functions is the conduct of inquiries
in aid of legislation.[53]
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. Yet the Court is aware that with its
pronouncement today that the President has the right to require prior consent
from members of the armed forces, the clash may soon loom or actualize.
We
believe and hold that our constitutional and legal order sanctions a modality by
which members of the military may be compelled to attend legislative inquiries
even if the President desires otherwise, a modality which does not offend the
Chief Executive’s prerogatives as commander-in-chief. The remedy lies with
the courts.
The fact that the executive branch is
an equal, coordinate branch of government to the legislative creates a wrinkle
to any basic rule that persons summoned to testify before Congress must do so.
There is considerable interplay between the legislative and executive branches,
informed by due deference and respect as to their various constitutional
functions. Reciprocal courtesy idealizes this relationship; hence, it is only
as a last resort that one branch seeks to compel the other to a particular mode
of behavior. The judiciary, the third coordinate branch of government, does not
enjoy a similar dynamic with either the legislative or executive branches.
Whatever weakness inheres on judicial power due to its inability to originate
national policies and legislation, such is balanced by the fact that it is the
branch empowered by the Constitution to compel obeisance to its rulings by the
other branches of government.
As evidenced by Arnault v.
Nazareno[54]
and Bengzon v. Senate Blue Ribbon Committee,[55]
among others, the Court has not shirked from reviewing the exercise by Congress
of its power of legislative inquiry.[56] Arnault
recognized that the legislative power of inquiry and the process to enforce it,
“is an essential and appropriate auxiliary to the legislative function.”[57]
On the other hand, Bengzon acknowledged that the power of both houses of
Congress to conduct inquiries in aid of legislation is not “absolute or
unlimited”, and its exercise is circumscribed by Section 21, Article VI of the
Constitution.[58] From
these premises, the Court enjoined the Senate Blue Ribbon Committee from
requiring the petitioners in Bengzon from testifying and producing
evidence before the committee, holding that the inquiry in question did not
involve any intended legislation.
Senate
affirmed both the Arnault and Bengzon rulings. It elucidated on
the constitutional scope and limitations on the constitutional power of
congressional inquiry. Thus:
As
discussed in Arnault, 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.
As evidenced by the American
experience during the so-called “McCarthy era”, however, the right of Congress
to conduct inquirites in aid of legislation is, in theory, no less susceptible
to abuse than executive or judicial power. It may thus be subjected to judicial
review pursuant to the Court’s certiorari powers under Section 1, Article VIII
of the Constitution.
For one, as noted in Bengzon v.
Senate Blue Ribbon Committee, the inquiry itself might not properly be in
aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way
for Congress to avoid such result as occurred in Bengzon is to 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.
Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof,
there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
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.
These abuses are, of course,
remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may
be exceptional circumstances… wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department
under the Bill of Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall these abuses may be
accorded judicial sanction[59].
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. The Court did not rule that the power to conduct
legislative inquiry ipso facto superseded
the claim of executive privilege, acknowledging instead that the viability of executive privilege
stood on a case to case basis. 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.
Following these principles, it is
clear that if the President or the Chief of Staff refuses to allow a member of
the AFP to appear before Congress, the legislative body seeking such testimony
may seek judicial relief to compel the attendance. Such judicial action should
be directed at the heads of the executive branch or the armed forces, the
persons who wield authority and control over the actions of the officers
concerned. The legislative purpose of such testimony, as well as any defenses
against the same — whether grounded on executive privilege, national security
or similar concerns — would be accorded due judicial evaluation. All the
constitutional considerations pertinent to either branch of government may be
raised, assessed, and ultimately weighed against each other. And once the
courts speak with finality, both branches of government have no option but to
comply with the decision of the courts, whether the effect of the decision is
to their liking or disfavor.
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.[60] This
is the fair and workable solution implicit in the constitutional allocation of
powers among the three branches of government. The judicial filter helps assure
that the particularities of each case would ultimately govern, rather than any
overarching principle unduly inclined towards one branch of government at the
expense of the other. The procedure may not move as expeditiously as some may
desire, yet it ensures thorough deliberation of all relevant and cognizable issues
before one branch is compelled to yield to the other. Moreover, judicial review does not preclude
the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do
functions and responsibilities that are political in nature, are free to smooth
over the thorns in their relationship with a salve of their own choosing.
And if emphasis be needed, 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.
Petitioners have presented several
issues relating to the tenability or wisdom of the President’s order on them
and other military officers not to testify before Congress without the
President’s consent. Yet these issues ultimately detract from the main point —
that they testified before the Senate despite an order from their commanding
officer and their commander-in-chief for them not to do so,[61]
in contravention of the traditions of military discipline which we
affirm today. The issues raised by
petitioners could have very well been raised and properly adjudicated if the
proper procedure was observed. Petitioners could have been appropriately allowed
to testify before the Senate without having to countermand their Commander-in-chief
and superior officer under the setup we have prescribed.
We consider the other issues raised
by petitioners unnecessary to the resolution of this petition.
Petitioners
may have been of the honest belief that they were defying a direct order of
their Commander-in-Chief and Commanding General in obeisance to a paramount
idea formed within their consciences, which could not be lightly ignored.
Still, the Court, in turn, is guided by the superlative principle that is the
Constitution, the embodiment of the national conscience. The Constitution
simply does not permit the infraction which petitioners have allegedly
committed, and moreover, provides for an orderly manner by which the same
result could have been achieved without offending constitutional principles.
WHEREFORE,
the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
|
REYNATO S. PUNO Associate
Justice |
LEONARDO A. QUISUMBING Associate Justice |
|
CONSUELO YNARES-SANTIAGO Associate
Justice |
ANGELINA SANDOVAL-GUTIERREZ Associate Justice |
|
ANTONIO T. CARPIO Associate
Justice |
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
|
RENATO C. CORONA Associate
Justice |
CONCHITA CARPIO MORALES Associate Justice |
|
ROMEO J. CALLEJO, SR. Associate
Justice |
ADOLFO S. AZCUNA Associate Justice |
|
MINITA V. CHICO-NAZARIO Associate
Justice |
CANCIO C. GARCIA Associate
Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
C
E R T I F I C A T I O N
Pursuant to Article VIII, Section 13
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN.
Chief Justice
[1]Initially
denominated as the lead respondent in this petition. However, in a Resolution
dated
[4]
[13]Pursuant
to Presidential Decree No. 1638, Sec. 5(a) & 17 as amended, and Presidential
Administrative Order No. 150 (
[14]These articles of war are contained in Commonwealth Act No. 408, as amended.
[16]For “assaulting or willfully disobeying superior officer.” See Article 65, Com. Act No. 408 (1938).
[17]A general article which punishes “all disorders and neglects to the prejudice of good order and military discipline and all conduct of a nature to bring discredit upon the military service x x x See Com. Act No. 408 (1938), Art. 97,
[18]Commonly referred to as the Articles of War.
[24]The writer of this ponencia wrote a Separate Opinion to the Resolution dated 14 July 2005 (denying respondent’s motion for reconsideration), wherein, concurring in the result, he elucidated on his position that Sections 2(b) and 3 of E.O. 464 are valid on its face as they are based on the President’s constitutional power of executive control, but void as applied.
[25]See Constitution, Art. VII, Sec. 17, which reads, “Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.” See also Senate v. Ermita, G.R. Nos. 169777, 169659, 169660, 169667, 169834, 171246, 14 July, 2005 Separate Opinion, J. Tinga.
[31]See Carpio v. Executive Secretary, G.R. No. 96409, 14 February 1992, 206 SCRA 290, 302; citing The Constitution, A Commentary, by Fr. Joaquin Bernas, S.J., Vol. II, p. 212.
[33]See Constitution, Art. VI, Sections 24 & 23(1), respectively. Also worth noting, it was by a statute that courts-martial were vested jurisdiction to try acts punishable under the Articles of War. See Articles 12 to 15, Com. Act No. 408, as amended. See also Rep. Act No. 7055.
[36]Laurence Tribe notes in his opus, American Constitutional Law, that “[m]ore recently, it has become the practice to refer to the Commander in Chief Clause for whatever inherent martial authority the Executive may possess.” L. Tribe, I American Constitutional Law, 3rd ed. (2000), at 658. A similar trend appears to have developed in this jurisdiction.
[41]Schelsinger
v. Councilman, 420
[46]New
v. Army, 50 M.J. 729, Amry Ct. Crim.
App., 1999; citing United States v. Rockwood, 48 M.J. 501, Army Ct.
Crim. App., 1998. Emphasis not ours.
[49]See rollo, pp. 78, 79. In their petition, petitioners admit having requested for travel authority with their immediate superior, the PMA Superintendent. See id. at 22, 23.
[56]“The ‘allocation of constitutional boundaries’ is a task that this Court must perform under the Constitution… The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affairs in purported aid of legislation.” Bengzon, Jr. v. Senate Blue Ribbon Committee, id., at 777.
[60]See e.g.,
[61]As stated earlier though, it is controverted whether petitioners were actually aware of the directive from the President before they testified before the Senate. See note 21. This factual matter, which will necessarily impact on the deliberate intent of the petitioners, is for the court-martial to decide.