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[G.R. No. 170165. September 26, 2006]

BRIGADIER GENERAL FRANCISCO V. GUDANI [RET.], et al. v. PRESIDENT GLORIA MACAPAGAL-ARROYO, et al.

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated SEPT. 26, 2006 .

G.R. No. 170165 (Brigadier General Francisco V. Gudani [Ret.], et al. v. President Gloria Macapagal-Arroyo, et al.)

For resolution is the Motion for Reconsideration dated 30 August 2006, filed by petitioners, seeking reconsideration of the Court's Decision dated 15 August 2006. The motion raises no substantial argument that warrants deviation from the Court's unanimous ruling. It should be denied.

Nonetheless, there is one line of argument raised by petitioners which merits a brief observation from the Court. Generally, petitioners argue that the obedience demanded of soldiers to the chain of command and to the President as Commander-in-Chief does not apply when the command or order is itself illegal, wrong or unjust. This argument is linked to the premise that the order of then AFP Chief of Staff Senga, which in turn apparently originated from the President, is tainted with illegality.

It may be recalled that petitioners, through the instant petition, had sought to restrain the conduct of court-martial proceedings against them, which were then in the preliminary stages. At the time the petition was filed, the charges against them had just been referred to the Pre-Trial Investigation Officer and no formal court-martial proceedings had been initiated against petitioners. The fact that the petition sought to restrain the court-martial proceedings at a preliminary stage, i.e., even before such proceedings was formally instituted, weighed heavily on the Court as it deliberated on the petition. It particularly took into account 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.

As such, the questions considered and decided by the Court were premised on the barest of principles, bereft of any inquiry as to the purposes of the Senate inquiry or the assailed order, or the motivations behind the issuance of the assailed order or the alleged disobedience thereof. These elements have to be duly established and evaluated before the appropriate trier of facts before any ruling based on those factors can be rendered.

The lawfulness of the order for which petitioners stand accused as having violated is certainly a viable defense which they can raise before the court-martial. Article of War 65, the particular charge against petitioners, is clear that the "willful disobe[dience]" which is punishable is made on "any lawful command of his superior officer." ^[1] cralaw As an expert on Philippine military law explains:

The use of the word "lawful" goes to point the conclusion that a command not lawful may be disobeyed, no matter from what source it proceeds. But to justify an inferior in disobeying an illegal order, the illegality is not doubtful. The order must be clearly repugnant to some specific statute, to the law or usage of the military service, or to the general law of the land. The unlawfulness of the command must thus be a fact. The onus of establishing this fact will, in all cases - except where the order is palpably illegal upon its face - devolve upon the defense, and clear and convincing evidence will be required to rebut the presumption. ^[2] cralaw

Clearly, 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 is illegal may choose to disobey the order on such premise. However, when he does so he is not automatically exempted from undergoing the processes 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. 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 imminence of such risk provides the counterweight against the indiscriminate invocation of the alleged illegality of the order as a defense. The determination of whether an order by a superior officer is illegal lies first with the military trier of facts, subject to review by the chain of command, and then the courts.

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. 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.

WHEREFORE, the Motion for Reconsideration is DENIED with FINALITY.

It appearing from the records that the resolution dated June 20, 2006 addressed to Col. Gilberto Jose C. Roa, JAGS [PA] GSC, Pre-Trial Investigating Officer, Judge Advocate General's Office, Camp Aguinaldo, Quezon City, was returned unserved with the notation on the letter-envelope RTS-not connected at the given address, the Court further Resolved to require the petitioners to INFORM the Court of the correct address of Col. Roa, within five (5) days from notice hereof."

Very truly yours,

(Sgd.) MA. LUISA D. VILLARAMA
Clerk of Court

Endnotes:

^[1] cralaw See Commonwealth Act No. 408.

^[2] cralaw C. GLORIA, PHILIPPINE MILITARY LAW (1956 ed.), at 214; citing WINTHROP'S MILITARY LAW AND PRECEDENTS, p. 576.

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