Nicolas v. Romulo: Supreme Court of the Philippines rules on post-Medellin constitutionality of a sole-executive agreement negotiated with the United States.

• Author: Brockman-Hawe, Benjamin E.

On February 11, 2009 the Supreme Court of the Philippines ("the Court") En Banc handed down its judgment in the consolidated cases of Suzette Nicolas y Sombilon vs. Alberto Romulo, etc., et. al., Jovito Salonga, et. al. vs. Daniel Smith, et. al., and Bagong Alyansang Makabayan (BAYAN), etc., et. al. vs. President Gloria Macapagal Arroyo, etc., et. al. (1) The Court, by a vote of 9-4 with two abstentions, (2) upheld the constitutionality of the RP-US Visiting Forces Agreement (VFA), which establishes jurisdiction over U.S. military personnel traveling to the Philippines, and with reference to the Subic Rape Case declared that the Romulo-Kenney Agreements of December 19 and 22, 2006 were inconsistent with the VFA. Nicolas is noteworthy as the first decision in which a foreign court considered the effect of the U.S. Supreme Court's ruling in Medellin v. Texas (3) on an agreement concluded with the President of the United States but not ratified by the U.S. Senate (a 'sole-executive agreement'). (4) This comment analyzes the case and its implications for U.S. foreign relations.

1. BACKGROUND

   1. U.S.--Philippine Relations

      Between 1898 and 1946 the Philippines were a territory of the United States, and the relationship between the two countries was characterized by slow transfer of sovereignty from the latter to the former. (5) Having achieved full independence in 1946, the Republic of the Philippines became a treaty ally of the United States under the 1951 Mutual Defense Treaty (MDT). (6) United States military personnel were stationed on twenty-three sites in the Philippines until 1991, when the Military Bases Agreement governing the bases expired and was not replaced. (7) However, in response to a 1995 territorial dispute with China in the South China Sea, President Ramos invited the U.S. to negotiate the new Visiting Forces Agreement (VFA) with the Philippines. (8) In 1998 consultations for the VFA concluded, and the resulting document, in which both countries reaffirmed their commitment to the MDT, entered into force on June 1, 1999. (9) B. The Visiting Forces Agreement

      The VFA has been ratified by the Phillipine Senate and, as an agreement concluded solely by the U.S. President, was reported to the U.S. Congress in compliance with the Case-Zablocki Act. (10) The primary purpose of the VFA is to establish rules governing the relationship between U.S. service members visiting the Phillipines and Philippine law. Regarding criminal jurisdiction, Article V establishes the sole jurisdiction of Filipino authorities over US personnel who violate any Philippine laws, but U.S. military authorities have exclusive jurisdiction over crimes against American property, security or personnel, and retain the right to exercise sole jurisdiction over any personnel accused of committing a crime during the performance of their official duties. (11) The VFA also establishes various procedural safeguards for U.S. service members detained, taken into custody, or prosecuted by Philippine authorities, including the fight to a prompt and speedy trial, to be informed of the charges against them and to be granted access to appropriate U.S. authorities. (12)

   3. The Subic Rape Case and the Romulo-Kenney Agreements of 2006

      In December 2005, a Filipino prosecutor issued indictments against four members of the U.S. Armed Forces for allegedly raping a Filipino woman, dubbed "Nicole" by the media, in Subic. (13) One year later the Regional Trial Court of Makati acquitted three of the servicemen but convicted Lance Corporal Daniel Smith of rape. (14) The Trial Court ordered that Smith be confined to the Makati jail pending his transfer to the National Bilibid Prison in Muntinlupa City. (15) Smith filed a motion for reconsideration on December 5, 2006, which the Trial Court denied on the 12th of December. (16) On December 14, 2006 he filed a petition for certiorari with the Court of Appeals. (17)

      The Romulo-Kenney Agreements were arranged between and signed by Ambassador Kristie Kenney on one side, and respectively Chief State Prosecutor Jovencito Zuno and Secretary of Foreign Affairs Alberto G. Romulo on the other. Ostensibly "in accordance with the Visiting Forces Agreement," they provided for the transfer of Smith from the Makati jail to a detention facility operated by the U.S. government and dictated the conditions of his detention there. (18) As per the Agreements, on December 29, 2006 Smith was transferred to the custody of the U.S. On January 2, 2007 the Court of Appeals held that the petition for certiorari filed by Smith was moot in light of this arrangement. (19) Petitioners challenged this decision, arguing that the Philippines should maintain physical custody over Smith since the VFA was incompatible with several provisions of the 1987 Constitution of the Republic of the Philippines. (20)

2. THE MAJORITY DECISION

   The Court began by examining the consistency of the VFA with the Filipino Constitution, which requires at Article XVII, Section 25 that "foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and ... recognized as a treaty by the other Contracting State." (21) After noting that Section 25 should be read broadly in light of its purpose, which is "to ensure that any agreement allowing [a foreign military presence] be equally binding on the Philippines and the foreign sovereign state involved," (22) the Court concluded that the VFA met the constitutional requirement for two reasons. First, as held by the Court in the prior case Bayan v. Zamora nearly one decade ago, (23) despite not having been submitted to the U.S. Senate for advice and consent the VFA nevertheless imposes a binding legal obligation on the United States. To that effect "[n]otice can be taken of the internationally known practice of the United States ..." of concluding sole-executive agreements and notifying Congress of such under the Case-Zablocki Act. (24) Second, the Court concluded that the purpose of the VFA was to implement the Mutual Defense Treaty of 1951, which was approved after the advice and with the consent of the U.S. Senate. (25) The Court reasoned that, as an implementation agreement, only...