Nicolas vs Romulo (G.R. No.

175888, February 11, 2009)

Facts:

Daniel Smith, a member of US Armed Forces, was convicted with the crime of rape under the Philippine
penal laws. He was sentenced with reclusion perpetua and was ordered to be detained temporarily in
Makati jail until further orders.

However, on December 29, 2006, Smith was taken out of the Makati jail by a contingent of Philippine
enforcement agents, purportedly acting under orders of the DILG, and brought to a facility for detention
under the control of the US government, provided for under the new agreements between the Philippines
and the United States referred to as the Romulo-Kenney Agreement of December 19 and 22, 2006.

Issue:

WON a member of a visiting armed forces is exempt from the criminal jurisdiction of the Philippines.

Ruling:

The rule on international law is that a foreign armed forces allowed to enter ones territory is immune
from local legislation, except to the extent agreed upon.

Applying the provisions of the Visiting Forces Agreement (VFA), the Court finds that there is different
treatment when it comes to detention as against custody. The moment the accused has to be detained
after conviction, the rule that governs is Article V, Section 10 of the said Agreement which provides:

Section 10. The confinement or detention by the 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 sentence in the Philippines shall
have the right to visits and material assistance.

It is clear, that the parties to the VFA recognized the difference between custody during 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, which are agreements on the detention of the accused in the US Embassy,
are not in accord with the VFA itself because such detention is not by Philippine authorities.