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Friday, November 18, 2005
High court excludes Arroyo from suit v. gag order
THE Supreme Court (SC) Thursday omitted the name of President Gloria Macapagal-Arroyo among the respondents in a suit filed by retired Brigadier General Francisco Gudani and Lieutenant Colonel Alexander Balutan seeking to declare as unconstitutional Executive Order (EO) 464 requiring officials to secure prior approval from Malacañang in appearing before Congressional hearings.
The court en banc also ordered other respondents - Armed Forces Chief Generoso Senga, pre-trial investigating officer Colonel Gilberto Jose Roa, Provost Marshall General Henry Galarpe and the General Court Marshall to comment on the petition for a temporary restraining order (TRO) within 10 days.
"The court resolved to dismiss the petition as against President Arroyo since she is immune from suit during her incumbency as President," the high court said in a resolution.
The 15-man tribunal also resolved to note Gudani's urgent motion for special raffle of the case and the issuance of a status quo order to prevent the respondents from pursuing the pre-trial and court martial proceedings against the petitioners.
Last November 10, Gudani and Balutan, who were the first "victims" of Arroyo's controversial order asked the high court to restrain government from implementing its so-called gag rule for being unconstitutional.
In their joint petition for certiorari and prohibition, the petitioners said should pre-trial investigation and court martial proceedings continue despite the pendency of the petition, the petition may be rendered moot and academic.
To avoid prejudice to their Constitutional rights and to prevent a waste of time and resources, a TRO and/or a status quo order must be issued by the court holding in abeyance all further proceedings including putting petitioners under arrest or detention before the pre-trial investigator as well as before the court martial proper, while the petition is pending.
The petitioners said the full force and weight of the court-martial proceedings are now being brought upon them on account of a gag order aimed at preventing them from testifying before the Senate on alleged massive electoral fraud committed in Mindanao during the last elections in which Arroyo ran for President.
The suspended military officers said they were subjected to court martial proceedings for alleged insubordination and conduct prejudicial to good order and military discipline as an offshoot of their testimonies implicating Arroyo before the Senate defense committee.
Gudani and Balutan cited as grounds for their petition Arroyo's grave abuse of discretion in issuing the EO, such that the gag order is unconstitutional for interfering with the power of Congress to conduct inquiries in aid of legislation and obstructs the oversight powers of Congress.
They said the EO also violates the public's Constitutional right to information and transparency in matters of public concern.
Gudani further said he is no longer under the jurisdiction of Senga, Roa, and Galarpe since he is no longer subject to military jurisdiction when he retired last October 4.
He noted that a court martial only has jurisdiction over "any person subject to military law for any crime or offense made punishable by the Articles of War such as those in active service."
In 2003, Gudani was First Marine Brigade Commander of the Philippine Marines and designated commander of Joint Task Force Lanao, which was tasked to maintain peace and order in the May 2004 elections in the provinces of Lanao del Norte and Lanao del Sur. Balutan was one of the Marine battalion commanders directly under Gudani's command.
They testified during a Senate hearing that it was during that time that the President's camp allegedly booted him out of his command so that they could undertake the rigging of the May 2004 elections.
Knowing that the petitioners were going to testify and such testimony would be linked to the "Hello Garci" scandal in which she was embroiled, Arroyo decided to disallow them from attending the hearing.
Earlier, lawyer Francisco Chavez, Senate President Franklin Drilon and 15 senators, Partidong Demokratiko ng Pilipinas (PDP)-Laban led by Makati City Mayor Jejomar Binay, the Alternative Law Groups and several party-list and militant groups have separately assailed before the SC the legality of EO 464. (ECV/Sunnex)
(November 18, 2005 issue)
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