But upon the advice of their lawyers, Brig. Gen. Francisco Gudani and Lt. Col. Alexander Balutan invoked their right against self-incrimination when the pretrial investigation turned out to be a military fact-finding probe.
Emerging from the office of Armed Forces of the Philippines (AFP) Provost Marshal Col. Henry Galarpe at Camp Aguinaldo in Quezon City, their lawyer Napoleon Poblador expressed disappointment over the proceedings.
"Actually, we came here expecting that a preliminary investigation would be conducted but we were informed that the only purpose of today’s exercise was a fact-finding investigation," Poblador said.
"They (AFP Provost Marshall) were in effect trying to generate information or testimonies from the two military officers without complying with the procedure," he said.
Gudani and Balutan, former Marine brigade and battalion commanders in Lanao, presented themselves before the Provost Martial General at Camp Aguinaldo in a seemingly jovial mood.
Coming out of Galarpe’s office after more than an hour of closed-door discussions, Gudani’s only words were: "God Bless the Philippines!" He refused to answer other questions from reporters.
Gudani and Balutan were accompanied by Sen. Rodolfo Biazon, chairman of the Senate committee on defense and national security, and a team of the Senate’s legal counsels led by Poblador.
Gudani and Balutan were placed under the legal custody of the Senate after they testified on alleged massive vote-rigging in Lanao del Sur during the May 2004 presidential elections.
The Provost Martial General was under instructions from AFP chief Gen. Generoso Senga to conduct a pretrial investigation in line with his directive to subject the two officers to general court-martial for violations of Article of War No. 65, or willfully disobeying the legal order of a superior officer.
According to Senga, Gudani and Balutan proceeded to testify in the Senate’s wiretapping investigation despite an order by President Arroyo for them to forgo their appearance.
For defying Malacañang’s directive, Gudani and Balutan were relieved from their posts at the Philippine Military Academy (PMA) at Fort del Pilar in Baguio City where they had been transferred after their Lanao assignments. They were also ordered court-martialed.
Poblador, on the other hand, pointed out that despite Senga’s court-martial directives, the AFP has no case against the two officers. Because of this and upon Poblador’s legal advice, the two military commanders have refused to be placed under military investigation.
Poblador claimed that Galarpe himself had declared the AFP was still preparing its case against the two officers and therefore there was need to subject them to an investigation.
In blocking the two Marine officers from a military investigation, Poblador said the charges against them are serious enough to be meted the maximum penalty and "therefore they are entitled to rights (against) self-incrimination."
"We believe that with this proceeding, we could not participate and we decided to invoke the constitutional rights of the respondents to remain silent and to insist on a faithful compliance with the articles of war before any investigation can proceed," Poblador pointed out.
And unless the rules of general court-martial are strictly followed, Poblador said he and the Senate, which has legal custody over Gudani and Balutan, will not be allowed to take part in the military proceedings.
For his part, Galarpe said yesterday’s proceedings were just part of the ongoing military case being built up against Gudani and Balutan.
As for their refusal to submit their respective statements, Galarpe said the AFP had no other choice but to proceed with the investigation and evaluate the evidence at hand, which he stressed they already have.
"They (Poblador) insisted that there should be an order. I will show them the charges against their clients. Ang sabi ko sa kanila, hindi pa ho pupwede because we are still at the fact-finding stage. After evaluation, if there is prima facie evidence against the accused, then that’s the only time they will be furnished with the charges against them, by the JAGO (Judge Advocate General’s Office). With that they invoked their rights so there is due process," Galarpe said.
If the AFP finds it has a case against the two officers, Galarpe said he would submit his recommendation to the JAGO.
"We have done our part. We told them these are procedures and they insisted on having their own procedure," Galarpe said.
Once JAGO concurs with Galarpe’s recommendation for the trial to proceed, his recommendation will be forwarded to the AFP chief for convening of the General Court Martial (GCM) if a prima facie case is established.
For now, Galarpe said there is no complaint against the two officers as this will follow after an investigation has been completed.
Galarpe also said that Gudani, who is slated to retire by midnight tonight, will continue to be under the control of the military as he allegedly committed the offense while in active service.
Relatedly, Biazon said that while Gudani and Balutan are now under Senate custody, the AFP could always request their transfer under the military.
"They (AFP) can always communicate to the Senate their intention," Baizon said, although maintaining that any such request would be studied thoroughly.
Pressed further on the matter, an annoyed Biazon shot back: "Pinag-aaway mo naman kami eh (You’re again trying to make us fight)" as he proceeded inside the office of the Provost Marshal, where he was overheard telling Galarpe that he does not want any harm done to the two officers.
"Hayan dinala ko na sila dito nang buong-buo. Ibalik ninyo sila sa akin na buo. Ayaw kung ni kurot meron ang mga ito (I brought the two officers in good shape. I want them brought back to us in one piece)," Biazon was quoted as telling Galarpe.
Meanwhile, churches of the Born Again faith rallied behind Gudani and Balutan, saying the two defied an order by the President to help unveil the truth on charges of poll fraud against Mrs. Arroyo.
The Philippines for Jesus Movement (PJM), an umbrella organization of more than 3,000 Born Again churches, commended the two for their "courage, integrity, unwavering faith and love of country."
Gudani has been an active member of the Christ Commission Fellowship for 16 years now.
"When it would have been easier, more convenient and even profitable to keep silent or lie, the two valiant officers chose to speak, bravely defying the iron hand that has sought to stifle their voices," PJM president Rev. Gus Lising told reporters yesterday in a press conference in Quezon City. — With Edu Punay