After the regional trial court of Makati convicted Lance Corporal Daniel Smith of rape in 2006 (which conviction is still under appeal), he was initially detained at the Makati jail and then transferred to the US Embassy in Manila pursuant to agreements entered into between Foreign Secretary Alberto Romulo and US Ambassador to the Philippines Kristie Kenney (the Romulo-Kenney Agreements). The Romulo-Kenney Agreements were entered into pursuant to the Visting Forces Agreement (VFA) dated February 10, 1998 between the Philippines and the United States.
Several individuals and non-government organizations questioned the detention of Smith at the US Embassy and argued that the Philippines should have custody of Smith “because, first of all, the VFA is void and unconstitutional” for violating Art. XVIII, Sec. 25 of the Philippine Constitution.
This provision states:
“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.”
In Nicolas vs. Romulo, G.R. No. 175888/G.R. No. 176051/G.R. No. 176222, February 11, 2009, the Supreme Court faced the question of 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 . . .and recognized as a treaty by the other contracting State.” (emphasis supplied) The Court answered in the affirmative, citing two reasons:
(a) 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; and
(b) the VFA, which is the instrument agreed upon to provide for joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty (dated August 30, 1951), which was was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.
As an implementing agreement of the RP-US Mutual Defense Treaty, the Court held that 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. According to the Court, the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of the Constitution.
The Court also ruled that the equal protection clause of the Constitution is not violated by a provision in the VFA that allows the transfer of custody of an accused to a foreign power. According to the Court, the equal protection clause is not violated, because there is substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter Philipine territory and all other accused. The Court said that the rule in international law is that foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon.
However, the Court noted that the Romulo-Kenney Agreements, which are agreements on the detention of Smith in the United States Embassy, are not in accord with the VFA itself because such detention is not “by Philippine authorities” as required under the VFA. The Court cited Section 10, Article V, which 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.”
Based on this provision, the Court stated that 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 Section 10, Article V of the VFA.
In his dissent, Chief Justice Puno offered the view that the VFA falls short of the requirement set by Art. XVIII, Sec. 25 of the Constitution. Justice Carpio also filed a similar dissent. Both believe that under current US rules, the VFA is not enforceable as domestic federal law in the United States; thus, the VFA fails to comply with Art. XVIII, Sec. 25 of the Constitution requiring the United States to “recognize as a treaty” the VFA.
Inquirer.net indicates that the Office of Solicitor General filed a Motion for Clarification with the Supreme Court. It reports:
“In a motion for clarification to the Supreme Court decision on February 11 declaring Smith’s US embassy detention not in accord with the VFA, Devandera argued that custody over US personnel may reside with US authorities until all judicial proceedings, including the appeals process, have been exhausted. . . The solicitor general adverted to Paragraph Six of the VFA’s Article Five on criminal jurisdiction that says the custody of US personnel “shall immediately reside with the US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”
GMANews.TV also reports that the petitioners filed a Motion for Reconsideration of the Supreme Court’s decision that the VFA is constitutional.
The tug of war over Smith continues.