Suzette Nicolas – Sombilon, petitioner vs.

Alberto Romulo, respondent

Background

Suzette Nicolas 22 year old unmarried woman was raped by Lance Corporal Daniel Smith in Subic Bay
Freeport Zone, Olongapo City in sometime on November 1, 2005. A case was filed against the accused.

By virtue of the pursuant of the Visiting Forces Agreement between the United States and the
Philippines in February 10, 1998, the US government was granted custody of defendant smith while on
trial. the United States Government faithfully complied with the undertaking of bringing the defendant
Smith to the trial court every time the his presence is required

On December 4, 2006 the Makati RTC rendered its decision, finding the defendant Smith guilty of the
crime of rape and was given the penalty of reclusion perpetua.

In pursuant to Article V paragraph 10 of the Visiting Forces Agreement Lance Corporal Daniel Smith shall
serve his sentence in the facilities that shall be agreed upon by the Appropriate Philippine and United
Sates Authority, while pending the accused is temporarily committed to the Makati City jail.

On December 29, 2006 defendant Smith was taken out of the Makati City jail by Philippine enforcement
agents by order from the DILG and be brought to the facility for detention under the control of the
United States government (US Embassy in Manila), the said action was provided by the new agreement
between the US and RP referred to as Romulo – Kenney Agreement of December 19, 2006.

Petitioner:

Petitioner contend that the Philippines should have custody of the defendant Lance Corporal Daniel
Smith because the VFA is void and unconstitutional

Petitioner contends that Criminal Jurisdiction (Article V Sec 6 of the VFA) violate provision of the
constitution, namely providing the exclusive power of this court to adopt rules of procedure for all
courts of the Philippines (Article VIII Sec 5)

Petitioner argues that to allow the transfer of custody of an accused to foreign power is to provide for a
different rule of procedure for the accused, which violates the equal protection clause of the
Constitution (Article III Sec 1)

Respondent:

VFA is constitutional based on the provision of the Constitution Article XVIII Sec 25 stating:

‘A treaty duly concurred in by the senate, and when the congress requires, ratified by the majority
votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by
the other contracting state.’
The said provision is rooted in Philippine history based:

RP-US Military Base Agreement of 1947 which was never advised for ratification by the US
Senatebutthe Philippines regarded it as a treaty and was concurred in Senate. (Expired in 1991 US
Military bases not part of Philippine Territory i.e. Subic, Clark etc.)

RP-US Mutual Defense Treaty of August 30, 1951.

It was not necessary to submit to US Senate for advice and consent that are policymaking in nature but
merely to the US Congress under the Case-Zablocki Actwithin 60 days from its ratification.

*Case- Zablocki Act – US Supreme Court sustain recognition as a ‘treaty’ of agreements not concurred in
by the US Senate

As stated inArticle VII of the Mutual Defense Treaty:

‘This treaty shall be ratified by the Republic of the Philippines and the United States of America in
accordance with their respective constitutional processes and will come into force when instruments of
ratification thereof have been exchanged by them at Manila.’

The VFAis recognized as a binding international agreement by the US and an instrument agreed upon
to provide joint military exercises based on the RP-US Mutual Defense Treaty.

Article XVIII Sec 25 of the Constitution complies with by virtue by the fact that the presence of the US
Armed Forces through the VFA, a presence allowed under the RP-US Mutual Defense Treaty which was
ratified and concurred in both the Philippine Senate and US Senate.

VFA is valid and a binding agreement which abides the terms and provisions of International law:

‘The receiving state can exercise jurisdiction over the forces of the sending state only to the extent
agreed upon the parties.’

Criminal Jurisdiction based on Article V Sec 6 of the VFA:

‘The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside in the US Military Authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings.’

Supreme Court:

The Visiting Forces Agreement of February 10, 1998 between US and RP is upheld Constitutional

Romulo and Kenney Agreements of December 19 and 22, 2006 is not in accordance with the VFA and
respondent Secretary of Foreign Affairs is ordered to negotiate with the United States representative for
the appropriate agreement on detention facilities under Philippine authorities as provided by in Article
V Sec 10 of the VFA