Ex-Marine general, colonel can be court martialled - SC

The Supreme Court Wednesday paved the way for the court martial of two military officers who had alleged that the 2004 election was marred by cheating. This came after the High Court declared that President Gloria Macapagal-Arroyo has the authority to prevent members and officers of the AFP from testifying before Congress. In a three-page en banc resolution, the High Court denied with finality the motion for reconsideration filed Aug. 30 by retired Marine Brig. Gen. Francisco Gudani and Lt. Col. Alexander F. Balutan where the two aksed the High Court o reverse its Aug. 15 ruling which upheld Arroyo’s authority to prevent military officers and men from appearing in congressional investigation. "The motion raises no substantial argument that warrants deviation from the Court’s unanimous ruling. It should be denied. Wherefore, the motion for reconsideration is denied with finality" the High Court said. On Aug. 15, the high court had junked the petition of Gudani and Balutan against former AFP Chief of Staff Lt. Gen. Generoso Senga and several other officers. The two officers, in that petition, sought to declare Arroyo’s Executive Order (EO) 464 as unconstitutional. The controversial EO 464 prevents military officers from testifying before Congress without her prior consent. The two then filed a motion for reconsideration saying that EO 464 was a "gag order" that interfered with Congress’ power to investigate in aid of legislation. They also asked the High Court to stop the AFP from conducting court martial proceedings against them which stemmed from their alleged wilfull disobeyance of their superior officer or violating the Articles of War. Their pleas were denied Wednesday when the court said that "certain matters are best deliberated and tried before the court martial, which unlike the Court, functions as a proper trier of facts." "Among them is the matter of the guilt or innocence of petitioners. That is why the Court employed great care in avoiding conclusions that will preclude any finding on that point" the High Court said. The High Court said the questions considered and decided by the High Court were premised on the barest of principles, bereft of any inquiry as to the purposes of the Senate inquiry or the assailed order (EO 464), or the motivations behind the issuance of the assailed order or the alleged disobedience thereof. The High Court said the violation of an unlawful order is not punishable even under the military justice system, for as long as the illegality of the order is duly proven. "A soldier faced with an order which he feels illegal may choose to disobey the order on such premise.However, when he does so he is not automatically exempted from undergoing the process of military justice. If the soldier is prosecuted for disobeying such order, the burden falls on him to establish before the court martial that the order is indeed illegal" the High Court said. The High Court said disobeying an illegal order is ultimately not punishable under military justice, but the soldier who does so still faces the risk of prosecution under military law. The High Court said this internal procedure within the military justice system does not preclude any civilian with a legal interest in seeing the order violated from pursuing his own legal remedies. "As the decision noted, the Senate could have filed an action with the courts to compel the commanding officers or the commander-in-chief to allow petitioners to testify before it", the court said. "Under such procedure, the legality of the order could have been put in issue directly before the court since the Senate is well capacitated to argue why its prerogative in compelling the testimony of petitioners should supersede that of the commander-in-chief in preventing or withholding such testimony" the High Court said. August 15 decision In its ruling last Aug. 15, the High Court said that as a general rule, the president could require military officers to seek presidential approval before appearing before Congress based foremost on the notion that a contrary rule unduly diminishes prerogatives of the president as commander-in-chief. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces" the High Court said. The High Court said that Congress was not without recourse should the President not consent to the appearance of military officers. The High Court also held that members of the military may be compelled to attend legislative inquiries, even if the President desires otherwise, through a judicial order. Election fraud Gudani and Balutan were among the AFP officers who were invited by the Senate committee on National Defense and Security on Sept. 28 last year to testify in connection with the alleged massive cheatings in the 2004 elections. The day before Gudani and Balutan could testify, they were given orders by Gen. Senga, per instruction of the President, that "no AFP personnel shall appear before any congressional or senate hearing without the president’s approval." Despite Senga’s orders, Gudani and Balutan appeared and testified before the Senate on the conduct of the 2004 elections and they were subsequently charged for violating the Articles of War 65 and 97. Gudani retired on Oct. 4, 2005, but the court said that officer can still be held liable because the acts complained against him and the initiations of the proceedings occurred while he was still in active duty as a military officer. -GMANews.TV