[Emergency Powers Power to call out armed forces]

B/Gen (Ret.) Francisco Gudani v. Lt./Gen. Generoso Senga

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

Ponente: Justice Tinga

Facts:

Petitioners seek annulment of PGMA directive enjoining military officers from testifying before Congress without Ps consent. Petitioners also pray injunctive relief against a pending preliminary investigation against them, in preparation for possible court-martial within the military justice system in connection with petitioners violation of the directive. Petitioners are high-ranking AFP officers. The Senate hearing concerned conduct during 2004 elections, massive cheating, designated as commander by AFP Southern Command for maintenance of peace in the provinces of Lanao del Norte, Sur. While on the way to the meeting, on September 27, 2005, PGMA ordered no AFP personnel to appear before any congressional or senate hearing without her approval, inform them immediately. Nonetheless, petitioners were present and testified. A few hours after, petitioners were informed they would be subjected to court-martial proceedings, relieved of their assignments. On the day of the hearing, PGMA issued EO464, enjoining executive department including military establishment from appearing in any legislative inquiry without her approval. Petitioners appeared before Marshal General and invoked right to silence, and the next day compulsorily relieved from military service.Issue:

Whether or not directive was valid.

Held:

Yes. Senate v. Ermita, SC declared Sec2(b),3 of EO464. The impression left there that P is prohibited from requiring military personnel from attending hearings without prior consent is wrong. Ability of P for consent comes from CIC powers, not encumbered by same degree of restriction at that which may attach to executive privilege or executive control. Senate did not touch on CIC power to require prior consent. Abadilla: status of military officers at time of institution of case is reckoning point. Constitution reposes final authority, control, and supervision of the AFP to President. Appointments: CoApp approval required from rank of colonel or naval captain. Outside explicit constitutional limitations, such as those in ArtXVI, Sec5, CIC clause vests in President absolute authority over persons and actions of AFP members, including restrictions on travel, movement, and speech. Kapunan, Jr v. De Villa house arrest ruling upheld: certain liberties of military personnel including freedom of speech may be circumscribed by rules of military discipline. Critical to military discipline is obeisance to military chain of command, with willful disobedience punishable by court-martial. Restraint becomes more imperative in political matters. Constitution requires that armed forces shall be insulated from partisan politics. Petitioners were aware it was necessary to obtain persmission from superiors before they could travel to Manila to attend the Senate Hearing. P can prevent AFP members from testifying by virtue of CIC power, defiance punishable. President may be commanded by judicial order. Ability of P does not turn on executive privilege, but on CIC, not hampered by same limitations as in executive privilege. 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. But refusal of P still subject to judicial relief, inquiries in aid of legislation. Reciprocal courtesy. Judicial action must be directed at heads of executive branch or armed forces controlling concerned officers.

As evidenced byArnault v. Nazareno[54]andBengzon 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]Arnaultrecognized 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,Bengzonacknowledged 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 inBengzonfrom testifying and producing evidence before the committee, holding that the inquiry in question did not involve any intended legislation.

InSenate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from testifying before Congress without the Presidents consent notwithstanding the invocation of executive privilege to justify such prohibition. The Court did not rule that the power to conduct legislative inquiryipso factosuperseded the claim of executive privilege, acknowledging insteadthat the viability of executive privilege stood on a case to case basis. Should neither branch yield to the other branchs 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.