SC junks Gudani suit versus GMA

The Supreme Court (SC) dismissed yesterday a case against President Arroyo on grounds that she is immune from lawsuits.

But the SC ordered her co-respondents to answer within 10 days the petition of two Marine officers questioning the validity of an executive order banning civilian and military officials from appearing before Congress without presidential clearance.

In an en banc resolution, the High Tribunal said a sitting president is immune from legal suits and that Mrs. Arroyo should not have been included as a respondent in the petition filed by retired Army general Francisco Gudani and Lt. Col. Alexander Balutan seeking to declare Executive Order No. 464 unconstitutional.

"The Court resolved to dismiss the petition against President Arroyo since she is immune from suit during her incumbency as President," read the SC decision.

Mrs. Arroyo’s co-respondents are Armed Forces chief Gen. Generoso Senga, court-martial pre-trial investigating officer Col. Gilberto Jose C. Roa and the Armed Forces Provost Marshal General.

The SC failed to decide on the "urgent motion for special raffle and issuance of temporary restraining order or status quo" being sought by Gudani and Balutan against the court martial proceedings constituted to try them.

Last Sept. 28, Gudani and Balutan testified before the Senate committee on defense and national security on the alleged electoral fraud in Mindanao.

Gudani and Balutan were subsequently charged before the Provost Marshall with insubordination and conduct prejudicial to military discipline and good order.

The two military officers said Mrs. Arroyo’s "gag order" was a clear violation of the principle of separation of powers in government.

"The gag order clearly runs afoul of the inherent and necessary power of the Senate to require the appearance and testimony of witnesses under pain of contempt when conducting inquiries in aid of legislation," Gudani and Balutan said in their affidavits.

Gudani said the order stopping him and Balutan from appearing before the Senate hearing was sent over the radio on the night of Sept. 27 to his office at the Philippine Military Academy in Baguio City when they were already in Manila to attend the Senate hearing.

He testified to the Senate that he was "highly irregularly" pulled out from his command on the Joint Task Force Ranao to enable Mrs. Arroyo’s cohorts to rig the May 10 elections last year.

On the other hand, Balutan said he was ordered to "slacken security" during the canvassing of votes to facilitate the electoral fraud.

Gudani, former 1st Marine Brigade commander, said he retired last Oct. 4, and that he is no longer subject to the jurisdiction of the courts-martial.

An informant had told him that Mike Arroyo flew to Mindanao before the elections to deliver bundles of money, he added.

In their petition, Gudani and Balutan said the court-martial proceedings would seriously prejudice their constitutional rights.

"In view of the extreme urgency of the matter, it is imperative that the instant petition be raffled immediately to the proper division of this Honorable Court," Gudani and Balutan said.

"So that the same may immediately act upon petitioners’ prayer for the issuance of a temporary restraining order or a writ of preliminary injunction."

Gudani and Balutan said they are presently in danger of being deprived of their liberty "without bail" by the court-martial proceedings.

"Apart from being deprived of their liberty, the arrest and incarceration of petitioners by respondents (Gudani and Balutan) will prevent the former from further giving testimony before the Senate committee on national defense and security, a constitutional crisis in the offing," they said.

Napoleon Poblador Jr., a lawyer for Gudani and Balutan, said the court martial only has jurisdiction over "any person subject to military law" for any crime or offense made punishable by the Articles of War.

"This Honorable Court should issue a temporary restraining order enjoining respondents Senga, Roa and Galarpe and all other persons acting for and on their behalf or under their orders, from proceeding with the pre-trial investigation or court-martial proceedings against petitioners," he said.

Poblador said Article 2 of the Articles of War provides that persons subject to military law only include the following:

• All officers and soldiers in the active service of the AFP or of the Philippine Constabulary.

• All members of the reserve force, from the dates of their call to active duty and while on such active duty.

• All trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the service, from the dates they are required by the terms of the call, draft or order to obey the same; cadets, flying cadets and probationary second lieutenants.

• All retainers to the camp and all persons accompanying or serving with AFP in the field in time of war or when martial law is declared though not otherwise subject to these articles.

• All persons under sentence adjudged by courts-martial.

Poblador said Gudani cannot be considered as a person subject to military law because he does not fall under any of the above categories.

Respondents, therefore, were without jurisdiction in subjecting General Gudani to preliminary court-martial proceedings, he added.

Poblador said Gudani and Balutan were charged with violation of

Articles 75 and 97 of the Articles of War or Commonwealth Act 408, and are now being made subject of pre-trial investigation as a prelude to a court-martial.

"In fact, petitioners acted in obeisance (to) the authority of Congress to conduct inquiries in aid of legislation when they appeared and testified before the Senate on Sept. 28, 2005," he said.

"The act of petitioners in giving testimony before the Senate cannot be made unlawful by mere executive fiat; in this instance a gag order given by President Arroyo."

Poblador said the gag order cannot be used to legally justify the indictment or even the charging of Gudani and Balutan "for insubordination and conduct prejudicial to military discipline and good order" before the courts-martial.

"The gag order was an attempt by respondent Gloria Macapagal-Arroyo to prevent Congress from digging into the truth of allegations that she rigged the 2004 presidential elections," he said.