Court-martial of ‘Garci’ whistle-blowers OK’d

The President and commander-in-chief of the Armed Forces of the Philippines has the constitutional authority to prevent AFP members from testifying before Congress, the Supreme Court ruled yesterday.

In a three-page resolution approved by the entire court, the tribunal denied with finality a motion filed last Aug. 30 by retired Brig. Gen. Francisco Gudani and Lt. Col. Alexander Balutan, asking the court to reconsider its Aug. 15 ruling upholding President Arroyo’s authority to prevent AFP officers from appearing before a congressional investigation.

The SC ruling also paved the way for the court-martial of Gudani and Balutan, who had blown the whistle on alleged vote-rigging in Mindanao in favor of the President during the May 2004 elections. The vote-rigging was allegedly overseen by former election commissioner Virgilio Garcillano.

AFP chief Gen. Hermogenes Esperon said the pre-trial for the two officers is expected to be completed in a week’s time after which members of the court-martial will be named. A reliable source told The STAR Balutan would likely be cleared and only Gudani will face the military tribunal.

In its ruling, the high court acknowledged that Congress holds the power of the purse over the AFP and has a say in the promotions of ranking military officers.

"Yet it is on the president that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appearing 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," the Supreme Court said in its ruling.

It added: "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."

"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," SC said. "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."

Gudani and Balutan had been ordered to undergo an investigation prior to a possible court-martial for defying the President’s Executive Order (EO) 464 and facing a congressional investigation on the vote-rigging allegations. The order for their pre-trial was given by the AFP chief of staff at the time, Gen. Generoso Senga.

The two officers then went to the Supreme Court, arguing that they defied EO 464 because they considered it illegal. They also asked the SC to stop the AFP from proceeding with their pre-trial investigation.

In its ruling yesterday, the SC said the illegality of an order from the President and commander-in-chief must be established first by the AFP’s "trier of facts, subject to review by the chain of command, and then the courts."

AFP spokesman Lt. Col. Bartolome Bacarro said the SC ruling "simply validated the legality of our past and present actions in dealing with erring personnel."

Navy spokesman Commander Giovanni Bacordo said the High Court’s decision removed the last legal impediment to the court- martial proceedings against the two Marine officers.

"They should face the consequences of their actions before the military court," Bacordo said.

Gudani is now retired but has yet to receive his retirement and other benefits because of the pending military case.

Balutan is now the assistant superintendent at the Marines training school.

The High Court stressed that despite his retirement, Gudani may still be tried by court-martial because his alleged violation of military rules occurred when he was still in active duty.

At the time of the aborted Senate probe, Gudani was the deputy superintendent of the Philippine Military Academy while Balutan was the deputy commander of the PMA cadet corps.

The two earlier said they had already begun talking to the senators when the order to stop them from testifying arrived. — With Jaime Laude