Gudani vs.

Senga
G.R. No. 170165
August 15, 2006
Tinga, J.

SUBJECT MATTER:
Include the topic under which the case appears in the syllabus.

DOCTRINE(S):
Only for digests for PERSONS AND FAMILY RELATIONS.

LEGAL BASIS
Articles of War 65 - Assaulting or Willfully Disobeying a Superior Officer - Any person subject to military law who, on any pretext
whatsoever, strikes his superior officer or draws or lifts up any weapon, or offers any violence against him, being in the exercise of
his office, or willfully disobeys any lawful command of his superior officer, shall suffer death or such other punishment as a court-
martial may direct.

Articles of War 97 - General Article - Though not mentioned in these articles, all disorders and neglects to the prejudice of good
order and military discipline, and all conduct of a nature to bring discredit upon the military service, shall be taken cognizance of by a
general or special court-martial according to the nature and degree of the offense, and punished at the discretion of the court.

INDEX:
Only for digests for LEGAL METHODS.

ACTION BEFORE THE SUPREME COURT:

Petition for Certiorari and Prohibition.

Petitioner(s): Brigadier General Francisco Gudani, who retired during the course of General Court Martial
Parties Proceedings
Lieutenant Colonel Alexander Balutan

Respondent(s): Lieutenant/General Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
Colonel Gilberto Jose C. Roa, Pre-Trial Investigating Officer
The Provost Marshall General of the AFP
General Court-Martial

SUMMARY:
Summarize the case in not more than 5 to 10 sentences.

ANTECEDENT FACTS:
● Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan) were assigned to
the Philippine Military Academy (PMA) in Baguio City – Gen. Gudani as PMA Assistant Superintendent and Col. Balutan as
Assistant Commandant of Cadets.
● Sen. Rodolfo Biazon (Sen. Biazon) invites several high-ranking AFP officers to a public hearing before the Senate Committee
on National Defense and Security (Senate Committee) on Sep. 28, 2005 – The hearing is regarding massive cheating during
the 2004 Elections, as a reaction to the HELLO-GARCI Scandal.
○ Gen. Gudani (as commander) and Col. Balutan (as member) are part of “Joint Task Force Ranao” from the AFP
Southern Command. They were tasked with maintaining peace and order during the 2004 Elections at Lanao del
Norte and Lanao del Sur.
● Initially, Gen. Gudani and Col. Balutan had engagements in Brunei that would have made them unable to attend the
hearing. They eventually traveled back to the Philippines to appear before the Senate Committee.
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 ● Sep. 27, 2005 – A message was transmitted to the PMA Superintendent, stating that “PER INSTRUCTION OF HER
EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.”
● Sep. 28, 2005 – Although “no approval has been granted by the President to any AFP officer to appear” before the Senate
Committee, Gen. Gudani and Col. Balutan were present, and they both testified to the conduct during the 2004 Elections.
Lieutenant/General Generoso Senga (Gen. Senga) tried to prevent Gen. Gudani from testifying, but Gen. Gudani defied his
orders.
○ Few hours after the testimony, Gen. Senga notified Gen. Gudani and Col. Balutan that they would be subjected to
General Court Martial Proceedings for willfully disobeying a superior officer (Articles of War 65).
○ President Macapagal-Arroyo issued EO 464 that enjoins all officials of the executive department and military
establishments from appearing in any legislative inquiry without the President’s approval.
● Oct. 6, 2005 – Petitioners were charged for violation of Article of War 65 (Assaulting or Willfully Disobeying a Superior
Officer) and Article of War 97 (General Article). Petitioners were sent Charge Sheets for their supposed violations.
● Petitioners file for Certiorari and Prohibition, seeking that:
○ The order of Pres. Macapagal-Arroyo to prevent petitioners from testifying (Gag Order) in Congress be deemed
unconstitutional.
○ Charges stated in the Charge Sheets be quashed.
○ Gen. Senga and the Court Martials be enjoined from proceeding against the petitioners.

ISSUE(S) AND HOLDING(S):

1. WoN EO 464 and the Court’s ruling in Senate vs. Ermita affect the present petition? – NO
2. WoN Gen. Gudani is still under the jurisdiction of the court-martial considering his retirement? – YES
3. WoN EO 464 is tantamount to the criminal acts of obstruction of justice and grave coercion? – NO
4. WoN the President can prevent a member of the armed forces from testifying before a legislative inquiry? – YES

RATIO:
1. EO 464 and the Court’s ruling in Senate vs. Ermita DO NOT affect the present petition – It is not being alleged that
Petitioners violated EO 464. Rather, it is being alleged that Petitioners violated Articles of War 65 and 97.
○ Senate vs. Ermita ruled that Sec. 2(b) (Generals and Flag Officers of the AFP are covered by Executive Privilege) and
Sec. 3 (Securing prior consent from the President prior to appearing before either House of Congress) of EO 464
were void. HOWEVER, it does not mean that the President is prohibited from requiring officers of the AFP to seek
her consent before attending Congressional hearings – This falls under the President’s Commander-In-Chief
Powers.
2. Gen. Gudani is STILL under the jurisdiction of the court-martial – In Abadilla vs. Ramos, it was settled that when Military
Justice Proceedings begin before the accused is retired, jurisdiction is still attached to the accused even after he retires and
is dropped from the roll of officers.
3. EO 464 is NOT tantamount to obstruction of justice and grave coercion – In Kapunan Jr. vs. De Villa, it was ruled that certain
liberties, like the Freedom of Speech, may be circumscribed by the Rules of Military Discipline – The effectiveness of the
military depends on maintaining such Military Discipline within its ranks.
○ “An individual soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For
there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed in
the field], on a distant service, were permitted to act upon their own opinion of their rights [or their opinion of the
President’s intent], and to throw off the authority of the commander whenever they supposed it to be unlawfully
exercised.”
4. The President CAN prevent a member of the armed forces from testifying in Congress – the ability of the President to
prevent military officers from testifying before Congress rests on the Chief Executive’s power as commander-in-chief to
control the actions and speech of members of the armed forces. The President’s prerogatives as commander-in-chief are
not hampered by the same limitations as in executive privilege – HOWEVER, it is similarly detrimental for the President
to interfere with Congress’s right to conduct legislative inquiries – THEREFORE, the remedy is with the courts. The

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 petitioners presented themselves before the Senate Committee against Military Discipline and Chain-of-Command, which
the Court reaffirms in this case.

DISPOSITIVE:
WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.

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