Suzette Nicolas vs Alberto Romulo

G.R. No. 175888; G.R. No. 176051; G.R. No. 176222 – 578 SCRA 438 – Political Law – Constitutional Law – Validity of the Visiting Forces Agreement (VFA)

Equal Protection Clause – Valid classification in favor of foreign troops

**This case was consolidated with Salonga vs Daniel Smith & BAYAN vs Gloria Arroyo

In 1951, the RP-US Mutual Defense Treaty was signed. One of the agreements in the treaty was the conduct of joint military exercises for the purpose of countering armed attacks against the Philippines.

In 1998, the RP-US Visiting Forces Agreement (VFA) was signed in support of the RP-US Mutual Defense Treaty. The VFA provides for procedures that must be observed in dealing with issues arising from the presence of the US Military in Philippine soil. Such provisions include: (1) in the event that a US Military personnel is charged with a crime, his or her custody shall reside with the US Military Authorities but with the undertaking to bring the accused military personnel to court upon proper notice, and (2) in the event of conviction after trial, the service of the sentence by the US military personnel shall be carried out in a facility agreed on by appropriate Philippines and United States authorities.

In December 2005, Lance Corporal Daniel Smith, a US military personnel, was indicted for the rape of Suzette Nicolas (Nicole).

In January 2006, the United States requested that it retain custody over Smith while the case is on trial in accordance with the VFA. The trial court allowed the request.

In December 2006, the trial court convicted Smith and it ordered the transfer of Smith from US custody to a Philippine jail. Thereafter, the US and the Philippines through their representatives, Kristie Kenney and DFA Secretary Alberto Romulo, signed the Romulo-Kenney Agreement which provides that Smith shall be transferred from the Philippine jail to a facility within the US Embassy.

Nicole and other interest groups filed cases questioning the validity of the VFA and the Romulo-Kenney Agreement.

It was contended that the VFA is void because it does not comply with Sec. 25, Art. XVIII of the 1987 Constitution which provides:

After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

It appears that the VFA was not ratified by the US Senate hence, according to Nicole and the other petitioners, the US (the other contracting party) did not recognize the VFA as a treaty. Since the VFA is void, it follows that the Romulo-Kenney Agreement which sought to carry out a provision of the VFA, is also void.

ISSUE: Whether or not the VFA is void.

HELD: No. The matter was already decided by the Supreme Court in an earlier case – the case of BAYAN vs. Zamora. The VFA is valid. It was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress.

Besides, the VFA merely implements the RP-US Mutual Defense Treaty which was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate. In short, the VFA is merely an implementing agreement in support of the RP-US Mutual Defense Treaty. As an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60 days of its ratification (this was complied with).

HOWEVER, the Romulo-Kenney Agreement is not valid because it is not in accord with the VFA. The VFA provides:

The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

Thus, transferring Smith from a Philippine jail to the US embassy is not within “detention by Philippine authorities of United States personnel”. The US and the Philippines (their representatives) must still come up with an agreement on detention facilities under Philippine authorities.

Does the special treatment accorded to Smith violate the equal protection clause?

It was also contended that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause.

HELD: This is not unconstitutional. The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused. The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.

Does such procedure curtail the rule-making power of the Supreme Court?

HELD: No. The situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land.

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