G.R. No. 175888 - Nicolas y Sombilon vs. Romulo

Petitions consolidated: G.R. No. 175888 (Nicolas v. Romulo, et al.), G.R. No. 176051 (Salonga, et al. v. Smith, et al.), and G.R. No. 176222 (BAYAN, et al. v. President Arroyo, et al.).
Respondents include Cabinet officials (Secretaries of Foreign Affairs, Justice, DILG; Executive Secretary; Presidential Legal Counsel) and L/Cpl. Daniel J. Smith of the U.S. Marine Corps; petitioner in G.R. 175888 is the rape complainant, Suzette S. Nicolas; petitioners in the other cases include public figures, advocates, and cause-oriented groups.

L/Cpl. Daniel J. Smith and others were charged with rape under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, for an incident on November 1, 2005 within the Subic Bay Freeport Zone (Olongapo City) involving complainant Suzette S. Nicolas.
The case was transferred for trial to the RTC of Makati City (Branch 139) for security reasons; the U.S. undertook, pursuant to the Visiting Forces Agreement (VFA), to produce Smith whenever required by the court.

On December 4, 2006, the RTC convicted Smith of rape, imposed reclusion perpetua, and awarded P50,000 civil indemnity and P50,000 moral damages; three co-accused U.S. servicemen were acquitted.
The RTC ordered that, pursuant to VFA Art. V(10), Smith “shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities,” and pending such agreement, “temporarily committed to the Makati City Jail.”

On December 19 and 22, 2006, the DFA and the U.S. Embassy executed the Romulo-Kenney Agreements providing for Smith’s “return to U.S. military custody at the U.S. Embassy” and his detention at the JUSMAG/Rowe Building under round-the-clock U.S. guard, with access by Philippine authorities.
On December 29, 2006, Philippine law enforcement agents removed Smith from the Makati City Jail and transferred him to the U.S. Embassy facility pursuant to said agreements.

Smith petitioned the CA (CA-G.R. SP No. 97212) assailing the Makati RTC’s custody orders; the DFA intervened and submitted the Romulo-Kenney agreements; the OSG supported the DFA.
On January 2, 2007, the CA dismissed Smith’s petition as moot in view of the transfer to U.S. Embassy custody.

Petitioners questioned: (a) the constitutionality of the VFA under Article XVIII, Section 25 of the 1987 Constitution; (b) the validity of the Romulo-Kenney Agreements; (c) the CA’s dismissal; and (d) the proper authority and facility for custody/detention of Smith.
The cases were heard on oral arguments on September 19, 2008; parties later submitted memoranda.

Article XVIII, Section 25 requires that any agreement allowing foreign bases, troops, or facilities be a treaty concurred in by the Philippine Senate and “recognized as a treaty by the other contracting State.”
The 1998 VFA governs the legal status, criminal jurisdiction, custody and detention of U.S. personnel visiting the Philippines in relation to activities under the RP–US Mutual Defense Treaty (MDT) of 1951.

Petitioners invoked Medellin v. Texas (U.S. Supreme Court, March 25, 2008), arguing that U.S. treaties are not domestic law unless self-executing or implemented by legislation; they claimed the VFA is not enforceable as U.S. domestic law and thus not “recognized as a treaty.”

Separate dissents (Chief Justice Puno and Justice Carpio) argued that Medellin underscored an unconstitutional asymmetry: the VFA is not enforceable as U.S. domestic law and therefore fails Article XVIII, Section 25’s parity requirement; they would have ordered Smith’s detention at New Bilibid Prison.

Whether the VFA complies with Article XVIII, Section 25’s requirements, including recognition “as a treaty” by the United States.
Whether Bayan v. Zamora controls via res judicata or stare decisis to bar renewed constitutional attack.

Whether Medellin renders the VFA unenforceable as U.S. domestic law absent self-executing language or implementing legislation, and if so, whether this defeats the “recognized as a treaty” requirement.

Whether the VFA is an implementing agreement of the MDT, and whether the MDT’s ratification (by both the Philippine and U.S. Senates) satisfies constitutional parity.

Whether VFA Art. V(6) (custody during judicial proceedings) and Art. V(10) (detention/confinement) authorize U.S. custody and/or U.S. Embassy detention of a convicted U.S. serviceman.
Whether the Romulo-Kenney Agreements (Dec. 19 and 22, 2006) conform with VFA Art. V(10)’s requirement that “confinement or detention by Philippine authorities” be “in facilities agreed on.”

Whether the VFA’s custody provisions violate the Supreme Court’s exclusive power to promulgate rules of procedure or deny equal protection to accused U.S. servicemen vis-à-vis other accused persons.

Whether to annul the Romulo-Kenney Agreements, direct negotiation of compliant detention facilities, and determine interim custody/detention arrangements.
Whether the CA erred in dismissing Smith’s petition as moot and what directives should issue regarding pending CA matters (contempt petition and Smith’s appeal).