Nicolas vs.

Romulo
GR No. 175888 – February 11, 2009
Justice Azcuna

Topic: Powers and Functions of the President – Foreign Affairs

Petitioners: Jovito Salonga, Jose dela Rama, Emilio Capulong, Harry Roque, Floring Hilbay and Benjamin Pozon
Respondents: Daniel Smith, Secretary Paul Gonzalez, Pres. Legal Counsel Sergio Apostol, Secretary Ronaldo Puno,
Secretary Alberto Romulo, the 16th Division of the Court of Appeals, and all persons acting in their capacity

FACTS:
 Respondent Lance Corporal (L/CPL) Daniel Smith, a member of the US Armed Forces was charged with the crime
of rape committed against a Filipina, sometime on November 1, 2005
o LCpl. Smith and other men were accused for the crime of rape upon a complaint under oath filed by Suzette
S. Nicolas.
 “November 1, inside the Subic Bay Freeport Zone, the accused being then members of the US
Marine Corps, except Timoteo L. Soriano (driver), conspiring and confederating by means of force,
threat and intimidation, with abuse of speriror strength and taking advantage of the intoxication of
the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual
intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old, unmarried woman
inside a Starex Van owned by Starways Travel and Tours, driven by accused Timoteo L. Soriano.”
 Pursuant to the VFA, entered into on February 10, 1998, the US, at its request, was granted custody of defendant
Smith pending the proceedings
o During the trial, Smith was transferred from the RTC of Zambales to the RTC of Makati for security reasons
 December 4, 2006: the RTC of Makati rendered it decision, finding Smith guilty beyond reasonable doubt, with the
penalty of reclusion perpetua. Pursuant to Art. V Par. 10 of the VFA, he shall serve his sentence in the facilities that
shall be agreed upon by appropriate PH and US authorities. Pending agreement, he is temporarily committed to the
Makati City Jail. He was also ordered to indemnify Suzette in the amount of 50K for compensatory damages and
another 50K for moral damages.  Smith was then detained in the Makati City Jail (MCJ)
 December 29, 2006: defendant Smith was taken out of MCJ and brought to a facility for detention under the control
of the US govt. provided for under new agreements between the PH and the US referred to as the Romulo-Kenney
Agreement of December 19, 2006 which states:
“The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of
Lance 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 Compound in a room of approximately 10 x 12 square feet. He will be guarded
round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the
Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure
the United States is in compliance with the terms of the VFA.”
 The matter of this Agreement was brought before the CA, and they decided to DISMISS the petition for having
become MOOT. Hence, the present actions.
 Petitioners contend that the PH should have custody of Smith because the VFA is unconstitutional
o This issue was raised before in the case of Bayan v. Zamora, and the Court upheld the constitutionality of
the VFA
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 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.”
o The Court stated that the reason for this provision lies in the history of the PH and the US.
  In 1947, not all of Philippine territory ceded to be under the US – some naval ports, military bases,
and facilities were still retained to be US territory. This includes Subic and Clark which were
covered by the RP-US Military Bases Agreement of 1947
 The RP-US Military Bases Agreement was never advised for ratification by the US Senate, while the
Philippines regarded it as a treaty and had it concurred by the PH Senate
 In 1991, the US govt. finally agreed to turn over these bases to the PH
 To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Consti
 Art. XVIII Sec. 25 was designed and included 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

ISSUE:
1. W/N the presence of the 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”
2. W/N the Romulo-Kenney Agreement is valid and binding

HELD:
1. YES – the VFA allows the presence of the USAF in Philippine Territory
a. Bayan v. Zamora already held that the VFA was duly concurred in by the Philippine Senate; recognized as a
treaty by the US as attested and certified by the duly authorized representative of the US government
ii. The fact that the VFA was not submitted for advice/consent of the US Senate does not detract it from its
status as a binding international agreement or treaty  it is an internationally known practice of the US that
they submit to Senate consent agreements that are policy making in nature, whereas those that carry out or
further implement these policymaking agreements are merely submitted to Congress under the provisions of
the Case-Zablocki Act w/in 60 days from ratification
b. The VFA and the RP-US Mutual Defense Treaty and the VFA are related. Therefore, when the RP-US MDT was
signed and duly ratified with concurrence of both the Philippine and US Senate, it also transferred the same
validity to the VFA
o The RP-US MDT States that:
 Both parties reaffirm their faith in the purposes and principles of the Charter of the UN – to live in
peace with all peoples and all governments
 Recalling with mutual pride the historic relationship of the two countries, bonded by sympathy and
mutual ideals
 Desiring to declare publicly and formally their sense of unity and their common determination
to defend themselves against external armed attack
 Desiring further to strengthen their present efforts for collective defense for the preservation
of peace and security
o The RP-US MDT state that both parties have agreed to: (pertinent provision is Art. 2)
 Art. 2. Parties separately and jointly by self-help and mutual aid will maintain and develop
their individual and collective capacity to resist armed attack
o Clearly, the joint RP-US military exercises for the purpose of developing the capability to resist an armed
attack fall squarely under the RP-US MDT. 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 MDT.
o The preamble of the VFA states:
 The Govt. of the US and the PH (1) reaffirm their faith in the purposes and principles of the Charter
of the UN, (2) reaffirm their obligations under the MDT of August 30, 1951, (3) note that from time
to time, elements of the US and the RP promote their common security interests.
o Accordingly, as an implementing agreement of the RP-US MDT, it was not necessary for the VFA to be
submitted to the US Senate again. All that was needed was a submission to the US Congress under the Case-
Zablocki Act w/in 60 days of its ratification  this is why the US has certified that it does indeed recognize
 the CFA as a binding international agreement (treaty)  this substantially complies with the requirement of
the constitution in Art. XVIII Sec. 25
2. NO – the Agreement is against the law
i. Art. V. Sec. 6 of the VFA states “that the custody of any US personal over whom the PH is to exercise
jurisdiction shall immediately reside in w/ the US military authorities, if they so request, from the commission
of the offense until completion of all judicial proceedings…. In extraordinary cases, the PH govt. shall
present its position to the US govt. regarding custody, which the US govt. shall take into full account….”
ii. Petitioners contend that this provision in the VFA is actually violates Art. VIII Sec. 5(5) of the Constitution.
They also argue that to allow the transfer of custody of an accused to a foreign power is to provide for a
different rule of procedure for that accused, which also violate the equal protection clause
 The SC stated that there is NO violation of the equal protection clause since there is a substantial
basis for a different treatment of a member of a foreign military armed forces allowed to enter our
territory – the rule in international law is that they are immune from local jurisdiction, except to the
extent agreed upon
 How Art. VIII Sec. 5(5) (Court’s rules of procedure) is disregarded, but in a way that is normally
encountered around the world, and only until the extent agreed upon by the States (PH and US)
iii. The SC stated however that the provisions of the VFA in Art, V. Sec 10. is a different story Sec. 6. Sec. 6
talks about custody of the accused during the judicial proceedings, while Sec. 10 talks about detention after
said proceedings
 Art. V. Sec. 10 The confinement or detention by the Philippine authorities of the US personnel shall
be carried out in facilities agreed on by appropriate PH and US authorities. US personnel serving
sentences in the PH 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  there’s a specific arrangement for both and it is clear that the detention
shall be by “Philippine authorities”
iv. Therefore, the Romulo-Kenney Agreements of December 19, and 22 which are the agreements on the
detention of the accused in the US embassy are not in accord with the VFA itself

Lastly, the SC addressed the recent decision of the US SC in Medellin v. Texas which stated that treaties entered into by the
US are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable. After asking for a report from the SolGen to answer questions on the validity of the VFA,
the decision in Medellin v. Texas, and the RP-US MDT, the Court released a Resolution saying the ff.:
 The VFA is a self-exec cutting Agreement, because the parties intend its provisions to be enforceable, precisely because
the Agreement intended to carry out obligations and undertakings under the RP-US MDT
 The VFA is covered by the Case-Zablocki act – considered as an executive agreement
 The RP-US MDT was advised and consented to by the US Senate on March 20, 1952
 Therefore, the decision on the subject matter of Medellin v. Texas differs from the subject of the VFA
 “It was not the intention of the framers of the 1987 Constitution, in adopting Art. XVIII, Sec. 25, to require the other
State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be
recognized as a treaty by the other contracting State.”
i. As the US SC in their decision in Weinberger enforced, they stated the three types of treaties in the American
system:
1. Treaties – advised and consented to by the US Senate
2. Executive Congressional Agreements – joint agreements of the Pres and Congress (need not
be submitted to the Senate)
3. Sole Executive Agreements – Agreements entered into by the President. To be submitted to
the Congress within sixty days of ratification under the provisions of the Case-Zablocki Act
RULING:
“WHEREFORE, the petitions are PARTLY GRANTED, and the CA decision dated January 2, 2007 is MODIFED. The VFA
between the RP and the US is UPHELD as constitutional, but the Romulo-Kenney Agreements are DECLARED not in
accordance with the VFA, and respondent Sec. of FA is hereby ordered to forthwith negotiate with the US for the appropriate
agreement on detention facilities under the Philippine authorities as provided in Art. V Sec. 10 of the VFA, pending which the
status quo shall be maintained until further orders by this Court.”

Dissent – J. PUNO:

 Strongly dissented in the case of Bayan v. Zamora proffering the view that the VFA falls short of the requirement
set by Section 25, Article XVIII of the 1987 Constitution
 The case of Medellin v. Texas is significant in this case as well because the decision held by the US SC was that
while treaties entered into by the President with the concurrence of the Senate are binding international commitments,
they are not domestic law unless Congress enacts implementing legislation or unless the treaty itself is “self-
executing”

An Examination of Medellin v. Texas

 Jose Medellin, a Mexican national was convicted of capital murder and sentenced to death in Texas for the gang rape
and brutal murder of two Houston teenagers
 Medellin filed an application for post conviction relief and claimed that the Vienna convention accorded him the right
to notify the Mexican consulate of his detention
 While his petition was pending, the International Court of Justice (ICJ) issued its decision in the Case Concerning
Avena and Other Mexican Nationals (AVENA) – ruled that those named individuals were entitled to a review and
reconsideration of their US State Court convictions and sentences  then Pres. George Bush issued a Memorandum
stating that the US would discharge its international obligations under Avena by having State courts give effect to the
decision
 The SC of the US ruled that neither the Avena nor the Pres. Memo constitutes directly enforceable federal law that
pre-empts state limitations
i. The court held that while an international treaty may constitute an international commitment, it is not
binding domestic law unless Congress has enacted statutes implementing it or unless the treaty is “self-
executing”
ii. Further held that decisions of the ICJ are not binding domestic law; and that absent an act of Congress or
Constitutional authority, the US Pres lacks the power to enforce international treaties or decisions of the
ICJ

Requirements for Domestic Enforceability of Treaties in the U.S.

 The new ruling is clear-cut: “while a treaty may constitute an international commitment, it is not binding domestic
law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-
executing: and is ratified on that basis.”
 In fine, the U.S. President’s authority to enter into treaties that are enforceable within its domestic sphere was
severely limited by Medellin
i. “The President has an array of political and diplomatic means available to enforce international obligations,
but unilaterally converting a non-self-executing treaty into a self-executing one is not among them.”

Implication of Medellin v. Texas on the VFA

 The VFA does not satisfy the requirements and cannot thus be enforced within the US
 Puno reiterates his dissent in Bayan v. Zamora – the majority of the Court anchored the validity of the VFA on the
flabby conclusion that it was recognized as a treaty by the US. The Court there heled that it was sufficient that the
other contracting party accepts or acknowledges the agreement as a treaty
 The majority of the Court gave undue deference to the statement of the former Ambassador of the US to the PH,
Thomas Hubbard, that Senate advice and consent was not needed to consider a treaty binding on the US, on the
 premise that the President alone had the power to conclude the VFA deriving from his constitutional powers as the
Commander-in Chief of the Armed Forces – it can be deduced from the posture of the Ambassador that the VFA is
an executive agreement and is not a treaty recognized by the US
 In other words, it does not fall under the category of an Exec. Agreement into entered into by the Pres. Pursuant to
the authority conferred in a prior treaty because, although the VFA makes reference to the MDT in its preamble, the
MDT itself does not confer authority upon the US Pres. To enter into executive agreements in the implementation of
the Treaty
 From these premises, the ff. are the implications of the ruling in Medellin:
i. It must be clear from the text of the VFA itself that the VFA is self-executory in order that it may be
reciprocally enforced  ab examination of the VFA does not show any provision that would satisfy the
requirement
ii. The recognition of the President through the former US Ambassador that the VFA is a treaty is insufficient
to make this international obligation executory in the domestic sphere
iii. Congressional act is necessary to transform the international obligations brought about the VFA  At best,
the VFA can be considered an international commitment by the US, but not enough to turn into domestic
law. It is under the responsibility of the Congress to do so
iv. There is an “asymmetry in the legal treatment” of the VFA  Medellin proof that the US cannot yet
reciprocally enforce the provisions of the VFA. Obvious disparity in treatment of the VFA on the part of
the US

Dissent – J. Carpio

 Talked about the decision of Medellin v. Texas as well

 ConCom deliberations on Section 25 Article XVIII showed that they intended that the agreement involving presence
of foreign troops in the Philippines must be equally legally binding both on the Philippines and on the other
contracting State
 “equally binding” means exactly what it says – the treaty enforceable as domestic law in the Philippines and likewise
enforceable as domestic law in the other contracting State
 The MDT does not contain any provision making it self-executory once ratified by the US Senate. The US Congress
has also not adopted any implementing legislation for the MDT