GR No. 175888

GR. No.
175888
Case Title:
Nicolas, petitioner vs. Romulo, et al.., respondents
Date:
February 11, 2009
I. FACTS
 This case stemmed from the fact that Lance Corporal (L/CPL) Daniel Smith, who is a
member of the United States Armed Forces, was convicted of the crime of rape under
Article 266-A, paragraph 1 of the Revised Penal Code and sentenced to suffer the penalty
of reclusion perpetua by the Regional Trial Court of Makati on December 4, 2006.
 Even prior to the aforesaid conviction, pursuant to the Visiting Forces Agreement (VFA)
between the Philippines and United States, the United States requested for the custody of
Smith while the case was still pending and the same was granted. On December 19 and
22, 2006, after Smith’s conviction, an agreement relative to the detention of Smith was
entered into between then Foreign Affairs Secretary Alberto Romulo and former United
States Ambassador Kristie Kenney – which was known as Romulo-Kenney Agreement –
that allows L/Cpl. Smith to be returned to US military custody at the US Embassy in
Manila and be detained in the Rowe (JUSMAG) Building, US Embassy Compound.
Thus, by virtue of the Romulo-Kenney Agreement, Smith was taken out of the Makati
jail and brought to a facility for detention under the control of the United States
government.
 The Romulo-Kenney Agreement’s validity was questioned by several petitioners
contending that the Philippines should have custody of Smith on the premise that the
VFA is not valid and binding, as the Senate of the United States did not ratify the same.
II. ISSUES
1) Whether or not the visiting forces agreement is valid and binding considering that it was not
ratified by the senate of the united states.
2) Whether or not the Romulo-Kenney agreement is valid.
III. RULING
1) Yes. First, as held in the case of Bayan vs. Zamora, the VFA was duly concurred in by the
Senate of the Philippines and has been recognized as a treaty by the United States as attested and
certified by 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. Second, the
earlier RP-US Mutual Defense Treaty of August 30, 1951 was signed and duly ratified with the
concurrence of both the Philippine Senate and the United States Senate. Hence, the VFA, which
is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an
implementing agreement to the main RP-US Military Defense Treaty. Accordingly, 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.
2) No. The Supreme Court finds that there is a different treatment when it comes to detention as
against custody in the provisions of the VFA. The moment the accused has to be detained, e.g.,
after conviction, the rule that governs is the following provision of the VFA, to wit:
Article V Criminal Jurisdiction

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 United States authorities.
United States personnel serving sentences in the Philippines shall have the right to visits and
material assistance.
It is clear that the parties to the VFA recognized the difference between custody during the trial
and detention after conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the detention shall be carried
out in facilities agreed on by authorities of both parties, but also that the detention shall be “by
Philippine 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”.
ADDITIONAL MATTER DISCUSSED:

The Supreme Court addresses the recent decision of the United States Supreme Court in
Medellin vs. 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 Supreme Court holds that:

a) The VFA is a self-executing agreement because the parties intend its provisions to be
enforceable, precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty.
b) The VFA is covered by implementing legislation, namely, the Case-Zablocki Act in as

much as it is the very purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be immediately implemented.
c) The RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952.

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GR. No.

Article V Criminal Jurisdiction

ADDITIONAL MATTER DISCUSSED:

The Supreme Court holds that:

b) The VFA is covered by implementing legislation, namely, the Case-Zablocki Act in as

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