SUZETTE NICOLAS Y SOMBILON, PETITIONER, VS. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF FOREIGN AFFAIRS; RAUL GONZALEZ, IN HIS CAPACITY AS SECRETARY OF JUSTICE; EDUARDO ERMI…

Nicolas versus Romulo

The Case

This is the case of Nicolas versus Romulo. Suzette Nicolas, the complainant in a rape case, together with other petitioners, brought special civil actions for certiorari against the Secretary of Foreign Affairs, the Secretary of Justice, and other public respondents, to stop the transfer of an accused American serviceman from Philippine custody to the custody of the United States. The case matters because it is the Supreme Court's definitive statement on two questions every Bar candidate must know: the constitutionality of the Visiting Forces Agreement, and the distinction between custody during trial and detention after conviction under that Agreement.

Procedural History

Lance Corporal Daniel Smith was charged with rape before the Regional Trial Court of Zambales, and the case was transferred to the Regional Trial Court of Makati for security reasons. After trial, the Makati court convicted him and ordered him temporarily committed to the Makati City Jail. He was later taken out of that jail and brought to a facility under United States control, under agreements between the two governments. The matter was brought before the Court of Appeals, which dismissed the petition as having become moot. The present petitions then reached the Supreme Court as special civil actions for certiorari and for review. The Court heard the parties in oral argument and, after deliberation, resolved the petitions.

Facts

Lance Corporal Daniel Smith, a member of the United States Armed Forces, was charged with rape committed against Suzette Nicolas inside the Subic Bay Freeport Zone. Under the Visiting Forces Agreement between the Philippines and the United States, the United States, at its request, was granted custody of Smith pending the proceedings. Throughout the trial, the United States faithfully complied with its undertaking to bring him to court whenever his presence was required.

After trial, the Makati court found Smith guilty beyond reasonable doubt of rape and sentenced him to reclusion perpetua, with an award of damages. Pursuant to the Visiting Forces Agreement, the court ordered that he serve his sentence in facilities to be agreed upon by Philippine and United States authorities, and pending such agreement, temporarily committed him to the Makati City Jail.

On December 29, 2006, Smith was taken out of the Makati jail by Philippine law enforcement agents and brought to a detention facility under United States control, under the Romulo-Kenney Agreements of December 19 and December 22, 2006. These agreements provided that he be returned to United States military custody at the United States Embassy in Manila, and detained at the Rowe Building of the United States Embassy Compound, guarded by United States military personnel, with Philippine authorities having access to the place of detention.

Issues

• Whether or not the Visiting Forces Agreement is void and unconstitutional for lack of a treaty concurred in by the Senate and recognized as a treaty by the other contracting State.
• Whether or not the transfer of custody of the accused to a foreign power violates the Court's exclusive power to adopt rules of procedure and the equal protection clause.
• Whether or not the Romulo-Kenney Agreements on detention are in accord with the Visiting Forces Agreement.

Applicable Provisions

Article Eighteen, Section 25 of the Constitution provides:

Section 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 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.

This is the constitutional yardstick against which the presence of United States troops under the Visiting Forces Agreement is measured.

Article Five, Section 6 of the Visiting Forces Agreement provides:

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.

This provision governs custody during the trial, and it is the basis for the United States request for custody pending proceedings.

Article Five, Section 10 of the Visiting Forces Agreement provides:

Section 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.

This provision governs detention after conviction, and it is the provision the Court finds the Romulo-Kenney Agreements to have violated.

Ruling

On the first issue, the Court held that the Visiting Forces Agreement is constitutional. The Agreement was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States, as attested by its duly authorized representative. The fact that it was not submitted to the United States Senate does not detract from its status, for that is a matter of internal United States law. Moreover, the Visiting Forces Agreement is an implementing agreement of the RP-US Mutual Defense Treaty, which was itself ratified with the concurrence of both the Philippine Senate and the United States Senate. The presence of United States troops is therefore a presence allowed under that earlier treaty, and Article Eighteen, Section 25 of the Constitution is complied with.

On the second issue, the Court held that there is no violation of the equal protection clause, because there is a substantial basis for a different treatment of a member of a foreign military force allowed to enter Philippine territory. The rule in international law is that a foreign armed force allowed to enter a territory is immune from local jurisdiction, except to the extent agreed upon. The Court also held that the Court's power to adopt rules of procedure is not curtailed, because the laws of one State do not extend to subjects of another State, except to the extent agreed upon, due to the recognition of extraterritorial immunity given to visiting foreign armed forces.

On the third issue, the Court held that the Romulo-Kenney Agreements are not in accord with the Visiting Forces Agreement. The Court drew a clear distinction between custody during trial and detention after conviction. The moment the accused has to be detained after conviction, the governing rule is Article Five, Section 10, which requires that detention be carried out in facilities agreed on by both parties, and that it be by Philippine authorities. The Romulo-Kenney Agreements, which place detention in the United States Embassy, are therefore not in accord with the Agreement itself.

Doctrine

First, the Visiting Forces Agreement is a valid and binding treaty, duly concurred in by the Philippine Senate and recognized as a treaty by the United States, and it satisfies Article Eighteen, Section 25 of the Constitution because the presence of United States troops is allowed under the RP-US Mutual Defense Treaty.

Second, a foreign armed force allowed to enter Philippine territory is immune from local jurisdiction, except to the extent agreed upon, and this immunity is a substantial basis for a different treatment under the equal protection clause.

Third, the Visiting Forces Agreement distinguishes custody during trial from detention after conviction. Custody during trial may reside with United States military authorities, but detention after conviction must be carried out in facilities agreed on by both parties and by Philippine authorities, as required by Article Five, Section 10.

Disposition

The petitions were resolved in favor of the constitutionality of the Visiting Forces Agreement, but the Court ordered the respondents to comply with the Agreement and to negotiate with United States representatives toward an agreement on detention facilities under Philippine authorities.

Remember This

The single line worth memorizing is this: custody during trial may be with the United States, but detention after conviction must be by Philippine authorities in facilities agreed upon by both parties. Examiners like to use this case to test the constitutionality of the Visiting Forces Agreement and the distinction between custody and detention under Article Five, Sections 6 and 10.