NICOLAS vs.

ROMULO
FACTS:
Herein respondent, Lance Corporal Daniel Smith, is a member of
the United States Armed Forces. He was charged with the crime of
rape committed against a Filipina, Suzette S. Nicolas.
Pursuant to the Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, the United
States, at its request, was granted custody of defendant Smith
pending the proceedings.
During the trial, the US Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time
his presence was required.
Eventually, the Regional Trial Court rendered its Decision, finding
defendant Smith guilty. He shall serve his sentence in the facilities
that shall be agreed upon by appropriate Philippine and United
States pursuant to the VFA. Pending agreement on such facilities,
accused is hereby temporarily committed to the Makati City Jail.
However, defendant was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, and brought to a
facility for detention under the control of the United States
government, provided for under new agreements between the
Philippines and the United States, referred to as the RomuloKenney Agreement. This agreement provides that in accordance
with the Visiting Forces Agreement signed, Smith, United States
Marine Corps, be returned to United States military custody at the
U.S. Embassy in Manila.
Petitioners contend that the Philippines should have custody of
Smith because if they would allow such transfer of custody of an
accused to a foreign power is to provide for a different rule of
procedure for that accused. The equal protection clause of the
Constitution is also violated.
ISSUE:

Whether or Not there is a violation of the equal protection clause.

HELD:
The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a
foreign military armed forces allowed to enter our territory and all
other accused.
The rule in international law is that a foreign armed forces allowed
to enter ones territory is immune from local jurisdiction, except to
the extent agreed upon. The Status of Forces Agreements
involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and
reflect their bargaining power. But the principle remains, i.e., the
receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.
As a result, the situation involved is not one in which the power of
this Court to adopt rules of procedure is curtailed or violated, but
rather one in which, as is normally encountered around the world,
the laws (including rules of procedure) of one State do not extend
or apply except to the extent agreed upon to subjects of
another State due to the recognition of extraterritorial immunity
given to such bodies as visiting foreign armed forces.
Applying, however, the provisions of VFA, the Court finds that
there is a different treatment when it comes to detention as
against custody.
It is clear that the parties to the VFA recognized the difference
between custody during the trial and detention after conviction,
because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only
that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be "by
Philippine authorities." Therefore, the Romulo-Kenney Agreements
of December 19 and 22, 2006, which are agreements on the
detention of the accused in the United States Embassy, are not in

accord with the VFA itself because such detention is not "by
Philippine authorities."
Respondents should therefore comply with the VFA and negotiate
with representatives of the United States towards an agreement
on detention facilities under Philippine authorities as mandated by
Art. V, Sec. 10 of the VFA.
The Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, is UPHELD as constitutional, but
the Romulo-Kenney Agreements are DECLARED not in accordance
with the VFA.