[Emergency Powers Power to call out armed forces]

B/Gen (Ret.) Francisco Gudani v. Lt./Gen. Generoso Senga

G.R. No. 170165, August 15, 2006
Ponente: Justice Tinga
Facts:
Petitioners seek annulment of PGMA directive enjoining military officers from testifying before Congress without
Ps consent. Petitioners also pray injunctive relief against a pending preliminary investigation against them, in
preparation for possible court-martial within the military justice system in connection with petitioners violation of
the directive. Petitioners are high-ranking AFP officers. The Senate hearing concerned conduct during 2004
elections, massive cheating, designated as commander by AFP Southern Command for maintenance of peace in the
provinces of Lanao del Norte, Sur. While on the way to the meeting, on September 27, 2005, PGMA ordered no AFP
personnel to appear before any congressional or senate hearing without her approval, inform them immediately.
Nonetheless, petitioners were present and testified. A few hours after, petitioners were informed they would be
subjected to court-martial proceedings, relieved of their assignments. On the day of the hearing, PGMA issued
EO464, enjoining executive department including military establishment from appearing in any legislative inquiry
without her approval. Petitioners appeared before Marshal General and invoked right to silence, and the next day
compulsorily relieved from military service.
Issue:
Whether or not directive was valid.
Held:
Yes. Senate v. Ermita, SC declared Sec2(b),3 of EO464. The impression left there that P is prohibited from requiring
military personnel from attending hearings without prior consent is wrong. Ability of P for consent comes from CIC
powers, not encumbered by same degree of restriction at that which may attach to executive privilege or executive
control. Senate did not touch on CIC power to require prior consent. Abadilla: status of military officers at time of
institution of case is reckoning point. Constitution reposes final authority, control, and supervision of the AFP to
President. Appointments: CoApp approval required from rank of colonel or naval captain. Outside explicit
constitutional limitations, such as those in ArtXVI, Sec5, CIC clause vests in President absolute authority over
persons and actions of AFP members, including restrictions on travel, movement, and speech. Kapunan, Jr v. De
Villa house arrest ruling upheld: certain liberties of military personnel including freedom of speech may be
circumscribed by rules of military discipline. Critical to military discipline is obeisance to military chain of
command, with willful disobedience punishable by court-martial. Restraint becomes more imperative in political
matters. Constitution requires that armed forces shall be insulated from partisan politics. Petitioners were aware it
was necessary to obtain persmission from superiors before they could travel to Manila to attend the Senate Hearing.
P can prevent AFP members from testifying by virtue of CIC power, defiance punishable. President may be
commanded by judicial order. Ability of P does not turn on executive privilege, but on CIC, not hampered by same
limitations as in executive privilege. It is on the President that the Constitution vests the title as commander-in-chief
and all the prerogatives and functions appertaining to the position. But refusal of P still subject to judicial relief,
inquiries in aid of legislation. Reciprocal courtesy. Judicial action must be directed at heads of executive branch or
armed forces controlling concerned officers.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55] among others,
the Court has not shirked from reviewing the exercise by Congress of its power of legislative inquiry.
[56]
Arnault recognized that the legislative power of inquiry and the process to enforce it, is an essential and
appropriate auxiliary to the legislative function. [57] On the other hand, Bengzon acknowledged that the power of
both houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is
circumscribed by Section 21, Article VI of the Constitution. [58] From these premises, the Court enjoined the Senate
Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing evidence before
the committee, holding that the inquiry in question did not involve any intended legislation.
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials
from testifying before Congress without the Presidents consent notwithstanding the invocation of executive
privilege to justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso
facto superseded the claim of executive privilege, acknowledging instead that the viability of executive privilege

stood on a case to case basis. Should neither branch yield to the other branchs assertion, the constitutional recourse
is to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with conclusiveness,
attendance or non-attendance in legislative inquiries.