ISSUES
G.R. No. 175888 February 11, 2009
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 ERMITA, in his
capacity as Executive Secretary; RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government; SERGIO APOSTOL, in his
capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH,
Respondents.
FACTS
 November 2005 – Daniel Smith taking advantage of the intoxication of
the victim, sexually abuse and have sexual intercourse with Suzette S.
Nicolas
 He was then charged of the crime Rape under Article 266-A of RPC as
amended by R.A 8353.
 Pursuant to VISITING FORCE AGREEMENT (VFA) (Feb 10,1998) United
States requested for the custody of Daniel Smith and was granted.
o During trials in Makati, US government complied with its
undertaking to bring defendant to trial court.
 Prosecution upon presenting sufficient evidence, Daniel Smith was
convicted guilty of the crime RAPE
 Pursuant to Article V, paragraph No. 10 of VFA – Daniel Smith shall
serve his sentence in the facilities agreed upon by PH and US authorities
o Pending judgement Daniel Smith is temporarily committed to
the Makati jail
 Dec 29,2006 Smith was taken out of the jail by a contingent PH law
enforcement agents, acting under orders of DILG and was BROUGHT
UNDER THE CONTROL OF US GOVERNMENT under the new agreement
referred to as ROMULO-KENNEY AGREEMENT.
o The agreement says that Daniel Smith be returned to US
military custody at the US embassy in Manila.
o He will be detained at the 1st floor of US embassy, guarded by
U.S military, and PH police will have access under DILG.
 Matters was brought to CA, and was dismissed for becoming moot
1. WON VFA is Constitutional
2. WON Romulo-Kenney Agreement is in accord with the VFA itself in
terms of detention as against of custody
HELD/RULING
1. YES. VFA is constitutional
 Petitioners Contention:
o VFA is Unconstitutional based on Art. XVIII sec 25 of
Constitution, contending that it should be ratified by US
congress.
 The Court said that issue has been resolved before in the case of Bayan
vs. Zamora.
 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.
 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
 VFA has something to do with the RP-US mutual defense treaty, it is
clear in the treaty that joint RP-US military exercises for the purpose of
developing the capability to resist an armed attack fall squarely under
the provisions of the RP-US Mutual Defense Treaty. 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.
o 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.
o this substantially complies with the requirements of Art. XVIII,
Sec. 25 of our Constitution
 Since the RP-US Mutual Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and the US Senate, there is
no violation of the Constitutional provision resulting from such
presence.
2. NO. Romulo-Kenney Agreements is not in accord with the VFA. 3. The VFA differs from the Vienna Convention on Consular Relations and
 The Court said that it is clear under the Article V, section 10 of the VFA the Avena decision of the International Court of Justice (ICJ), subject
that the parties to the VFA recognized the difference between custody matter of the Medellin decision. The Convention and the ICJ decision
during the trial and detention after conviction, because they provided are not self-executing and are not registrable under the Case-Zablocki
for a specific arrangement to cover detention. Act, and thus lack legislative implementing authority
 And this specific arrangement clearly states not only that the detention 4. The RP-US Mutual Defense Treaty was advised and consented to by the
shall be carried out in facilities agreed on by authorities of both US Senate on March 20, 1952, as reflected in the US Congressional
parties, but also that the detention shall be "by Philippine Record.
authorities."
RELATED ARTICLES/PROVISIONS
 Therefore, the Romulo-Kenney Agreements of December 19 and 22,
2006, which are agreements on the detention of the accused in the Art, XVIII Sec. 25
United States Embassy, are not in accord with the VFA itself because
SECTION 25. After the expiration in 1991 of the Agreement between the
such detention is not "by Philippine authorities."
Republic of the Philippines and the United States of America concerning
 Respondents should therefore comply with the VFA and negotiate with
Military Bases, foreign military bases, troops, or facilities shall not be
representatives of the United States towards an agreement on
allowed in the Philippines except under a treaty duly concurred in by the
detention facilities under Philippine authorities as mandated by Art. V,
Senate and, when the Congress so requires, ratified by a majority of the
Sec. 10 of the VFA.
votes cast by the people in a national referendum held for that purpose,
 WHEREFORE, the petitions are PARTLY GRANTED, CA decision is
and recognized as a treaty by the other contracting State.
modified.
o The Visiting Forces Agreement (VFA) between the Republic of
the Philippines and the United States, entered into on
Article V (of VFA)
February 10, 1998, is UPHELD as constitutional
Criminal Jurisdiction
o Romulo-Kenney Agreements of December 19 and 22, 2006 are
Sec. 10. The confinement or detention by Philippine authorities of United
DECLARED not in accordance with the VFA
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
POINTERS OF THE COURT AFTER DELIBERATION assistance.
1. 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
2. The VFA is covered by implementing legislation, namely, the Case-
Zablocki Act, USC Sec. 112(b), inasmuch 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