Corporal Daniel J.

Smith, United States

Marine Corps, from the Makati City Jail,
he will be detained at the first floor,
Rowe (JUSMAG) Building, U.S. Embassy
Facts:
Respondent
Lance
CorporalCompound in a room of approximately
(L/CPL) Daniel Smith is a member of 10 x 12 square feet. He will be
the United States Armed Forces based guarded round the clock by U.S.
in the Philippines pursuant to the military personnel. The Philippine
Visisting Forces Agreement (VFA). Hepolice and jail authorities, under the
was charged with the crime of rape direct supervision of the Philippine
committed
against
a
Filipina,Department of Interior and Local
petitioner Suzette Nicolas who wasGovernment (DILG) will have access to
the place of detention to ensure the
popularly known as Nicole.
After series of trials, the courtUnited States is in compliance with the
found Smith guilty of the rape and terms of the VFA".
acquitted five others. As a result, theThe matter what brought to the CA but
Makati court ordered Smith detainedwas dismissed for having become
at the Makati jail until further orders.moot.
However, defendant Smith was taken
out of the Makati jail by a contingentIssue:
Whether
Philippines
should
of Philippine law enforcement agents,
have
custody
of
defendant
Smith
purportedly acting under orders of the
because
the
VFA
is
void
and
Department of the Interior and Local
Government, and brought to a facilityunconstitutional considering that it
for detention under the control of thewas not submiited for advice and
United States government, providedconsent of the United States Senate
for under new agreements between thus, thus does not justify its
the Philippines and the United States presence.
referred to as the Romulo-Kenney
Agreement of December 19, 2006Ruling:
which states:
The Court resolved in favor of
"The
Government
of
the
the
constitutionality
of the VFA for two
Republic of the Philippines and the
Government of the United States of reasons.
First,
the
VFA
was
duly
America agree that, in accordance
concurred
in
by
the
Philippine
Senate
with the Visiting Forces Agreement
signed between our two nations,and has been recognized as a treaty
Lance Corporal Daniel J. Smith, United by the United States as attested and
States Marine Corps, be returned tocertified by the duly authorized
U.S. military custody at the U.S.representative of the United States
Embassy in Manila" and the Romulo-government. The fact that the VFA was
Kenney Agreement of December 22, not submitted for advice and consent
of the United States Senate does not
2006 which states:
"The Department of Foreigndetract from its status as a binding
Affairs of the Republic of theinternational agreement or treaty
Philippines and the Embassy of the recognized by the said State. Notice
United States of America agree that, incan be taken of the internationally
accordance with the Visiting Forcesknown practice by the United States of
Agreement signed between the two submitting to its Senate for advice and
agreements
that
are
nations, upon transfer of Lanceconsent

Nicolas vs Romulo
GR No. 175888

policymaking in nature, whereas thosetreaty by the other contracting State.

that carry out or further implement
The provision of Art. XVIII, Sec.
these policymaking agreements are25 of the Constitution, is complied
merely submitted to Congress, underwith by virtue of the fact that the
the provisions of the so-called Casepresence of the US Armed Forces
Zablocki Act, within sixty days fromthrough the VFA is a presence
ratification.
allowed under the RP-US Mutual
Second, it has to do with the Defense Treaty. Since the RP-US
relation between the VFA and the RP- Mutual Defense Treaty itself has been
US Mutual Defense Treaty of Augustratified and concurred in by both the
30, 1951. This earlier agreement wasPhilippine Senate and the US Senate,
signed and duly ratified with thethere
is
no
violation
of
the
concurrence of both the PhilippineConstitutional provision resulting from
Senate and the United States Senate. such presence. The VFA being a valid
The purpose of the joint RP-US military and binding agreement, the parties
exercises is for the development of theare
required
as
a
matter
of
capability to resist an armed attack fallinternational law to abide by its terms
squarely under the provisions of theand provisions. Criminal jurisdiction of
RP-US Mutual Defense Treaty. Thethe VFA states:
VFA, which is the instrument agreed
Sec. 10. The confinement or
upon to provide for the joint RP-USdetention by Philippine authorities of
military exercises, is simply anUnited States personnel shall be
implementing agreement to the main carried out in facilities agreed on by
RP-US Military Defense Treaty.
appropriate Philippines and United
Accordingly,
as
anStates authorities.
United States
implementing agreement of the RP-USpersonnel serving sentences in the
Mutual Defense Treaty, it was notPhilippines shall have the right to
necessary to submit the VFA to the US visits and material assistance.
Senate for advice and consent, but
It is clear that the parties to the
merely to the US Congress under the VFA recognized the difference between
CaseZablocki Act within 60 days of its custody during the trial and detention
ratification. It is for this reason thatafter
conviction,
because
they
the US has certified that it recognizes provided for a specific arrangement to
the VFA as a binding internationalcover detention. And this specific
agreement, i.e., a treaty, and this arrangement clearly states not only
substantially
complies
with
thethat the detention shall be carried out
requirements of Art. XVIII, Sec. 25 ofin facilities agreed on by authorities of
our Constitution which states:
both parties, but also that the
Sec. 25. After the expiration indetention shall be by Philippine
1991 of the Agreement between the authorities. Therefore, the RomuloPhilippines and the United States of Kenney Agreements of December 19
America concerning Military Bases,and 22, 2006, which are agreements
foreign military bases, troops, oron the detention of the accused in the
facilities shall not be allowed in the United States Embassy, are not in
Philippines except under a treaty dulyaccord with the VFA itself because
concurred in by the Senate and, when such detention is not by Philippine
the Congress so requires, ratified by aauthorities.
majority of the votes cast by the
WHEREFORE, the petitions are
people in a national referendum held PARTLY GRANTED, and the Court of
for that purpose, and recognized as aAppeals Decision in CA-G.R. SP No.

97212 dated January 2, 2007 ismatter of fact, the VFA has been
MODIFIED.
The
Visiting
Forcesimplemented and executed, with the
Agreement
(VFA)
between
theUS faithfully complying with its
Republic of the Philippines and the obligation to produce L/CPL Smith
United States, entered into onbefore the court during the trial.
February 10, 1998, is UPHELD as
VFA is covered by implementing
constitutional, but the Romulo-Kenneylegislation, namely, the Case-Zablocki
Agreements of December 19 and 22,Act, USC Sec. 112(b) , inasmuch as it
2006 are DECLARED not in accordance is the very purpose and intent of the
with
the
VFA,
and
respondent US
Congress
that
executive
Secretary of Foreign Affairs is herebyagreements registered under this Act
ordered to forthwith negotiate with the within 60 days from their ratification
United States representatives for thebe immediately implemented. The
appropriate agreement on detentionparties to these present cases do not
facilities under Philippine authoritiesquestion the fact that the VFA has
as provided in Art. V, Sec. 10 of thebeen
registered
under
the
VFA, pending which the status quoCaseZablocki Act. In sum, therefore,
shall be maintained until furtherthe VFA differs from the Vienna
orders by this Court.
Convention on Consular Relations and
NOTE:
the Avena decision of the International
VFA
is
a
self-executingCourt of Justice (ICJ), subject matter of
Agreement , as that term is defined in the Medellin decision. The Convention
Medellin itself, because the partiesand the ICJ decision are not selfintend
its
provisions
to
beexecuting and are not registrable
enforceable , precisely because theunder the Case-Zablocki Act, and thus
Agreement is intended to carry out lack
legislative
implementing
obligations and undertakings underauthority.
the RP-US Mutual Defense Treaty. As a