Nicolas vs.

Romulo

FACTS:

Respondent Lance Corporal Daniel Smith, a member of the US Armed Forces, was charged as guilty for
rape by the Makati RTC.

During the proceedings and pre-trial, the US had custody of Smith. Defendant was transferred from a
Makati jail to a facility for detention under the control of the US government, provided for under a new US-
PH agreement called the Romulo-Kenney Agreement of December 19, 2006 and the Romulo-Kenney
Agreement of December 22, 2006.

The people who brought him were purportedly acting under the Department of Interior and Local
Government (DILG).

 December 19, 2006 Agreement:

 December 26, 2006 Agreement:

Matter brought to the CA but dismissed for mootness. Thus, the current case.

Petitioners say that PH should have custody of Smith because the VFA is void and unconstitutional.
Although the constitutionality of the VFA was already upheld in Bayan vs Zamora, petitioners seek
reversal of that ruling on grounds of transcendental importance re: Republic’s sovereignty as mandated
by the Constitution (Art. XVIII, Sec 25).

▪ Art. XVIII, Sec 25: “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.”

▪ Why was this adopted?: To ensure that any agreement allowing the presence of foreign military bases,
troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign
sovereign State involved. (Remember the RP-US Military Bases Agreement which was approved by our
Senate but not the State’s.)

Thus, the current issue: the question is whether or not the presence of US Armed Forces in Philippine
territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and is
recognized as a treaty by the other contracting State.

ISSUES

1. Whether or not the presence of US Armed Forces in PH territory pursuant to the VFA is allowed
under a treaty duly concurred by the Senate AND is recognized as a treaty by the US State.

Yes, for 2 reasons:

1. The VFA 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. This is a matter of US internal law and we cannot take judicial
notice of the validity of their practices.

2. The VFA was signed in accordance with the RP-US Mutual Defense Treaty of August 30, 1951,
which was earlier signed and duly ratified with the concurrence of both the PH and US Senate.

The VFA is simply an implementing agreement to the main RP-US Military Defense Treaty (as
stated in the VFA’s preamble)

Thus, 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 is
why the US recognizes the VFA as a binding international agreement (a treaty) in accordance w/
Art. XVIII, Sec. 25 of our Constitution.
2. Whether or not the Romulo-Kenney Agreement is valid on grounds of transferring of custody,
as it violates the exclusive power of the SC to adopt rules of procedure for all courts in the
Philippines (Article 8, Sec 5(5) - because transferring custody = providing a different rule of
procedure for foreign accused) AND the equal protection clause of the Constitution (Art 3, Sec
1)

(a) NO, the transferring of custody does not violate the SC’s power to adopt rules of procedure
nor the equal protection clause.

International law says the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties. The issue here is NOT the power
of the SC to adopt rules of procedure BUT w/n the laws of one State do not extend or apply
except to the extent agreed upon to subjects of another State due to extraterritionial immunity
given to bodies such as VFA.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), same as the immunity given to diplomats,
etc.

(b) YES, because while the Kenney-Romulo Agreement does not violate on grounds of
transferring of custody, it violates the VFA provisions for DETENTION.

The Romulo-Kenney Agreement violates its provisions providing for DETENTION. According
to Article V of the VFA, there is a difference between custody during the trial and detention
after conviction. The detention shall be by Philippine authorities, therefore the Romulo Kenney
agreement making the facility for detention the US Embassy is NOT VALID.

3. Whether or not the VFA is valid and enforceable

YES, the VFA is valid, constitutional, and enforceable.

The Court also addressed the recent decision of the United States Supreme Court in Medellin v.
Texas, which held that treaties entered into by the United States are not automatically part of their
domestic law unless these treaties are self-executing or there is an implementing legislation to
make them enforceable.

The Court held that YES, the VFA is enforceable on the grounds that:
 The VFA is a self-executing Agreement, as that term is defined in Medellin itself, because
the parties intend its provisions to be enforceable.
 The VFA is covered by implementing legislation, namely, the Case Zablocki Act, USC
Sec. 112(b)
 the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second
Session, Vol. 98 Part 2, pp. 2594-2595.

* Extra note: The Court also held that an executive agreement is a treaty within the meaning of that word
in international law and constitutes enforceable domestic law vis--vis the United States.

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual
Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both
the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting
from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions.

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes
to detention as against custody. “Art. V, Sec. 10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed on by appropriate Philippines and US
authorities.”
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the
detention of the accused in the United States Embassy, are not in accord with the VFA itself because
such detention is not “by Philippine authorities.” Respondents should therefore comply with the VFA and
negotiate with representatives of the United States towards an agreement on detention facilities under
Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.