MANILA, Philippines—Normally, the Supreme Court is very deferential to the president in the conduct of foreign affairs. It gives the Executive Department maximum leeway in concluding treaties and in recognizing international obligations arising from them. This policy is not only constitutionally mandated but also consistent with the patriotic principle of “united abroad though divided at home.”
However, the high court made an exception to this general rule recently in Nicolas vs Romulo (Feb. 11, 2009). By a vote of 9 to 4 (two justices took “no part”), it ordered Secretary of Foreign Affairs Alberto G. Romulo “to forthwith negotiate with United States representatives for [an] appropriate agreement” which would govern where US Lance Corporal Daniel Smith shall be detained pending the latter’s appeal of his conviction for the rape of “Nicole.”
Recall that after convicting the American and sentencing him to reclusion perpetua on Dec. 4, 2006, Judge Benjamin T. Pozon of the Makati Regional Trial Court ordered his detention at the Makati City jail. Smith immediately appealed the RTC judgment to the Court of Appeals.
Romulo-Kenney accord void
On Dec. 29, 2006, however, “a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of Interior and Local Government,” stealthily brought Smith to a detention facility in the US Embassy in Manila, pursuant to an agreement signed on Dec. 19, 2006 between Secretary Romulo and US Ambassador Kristie A. Kenney.
In the Feb. 11 decision, the high court, speaking through Justice Adolfo S. Azcuna, held that the Romulo-Kenney accord has no legal basis because the Visiting Forces Agreement (VFA) between the Philippines and the United States requires that an American soldier who appeals a conviction for a crime should be detained “by Philippine authorities” within Philippine territory.
And while the two governments are negotiating to which local jail Smith would be confined, “the status quo shall be maintained until further orders by the [Supreme] Court.”
This latter “colatilla” simply means that Smith would indefinitely stay in the US Embassy until the diplomats of both countries come to an agreement on where to transfer him. Or until after our Court of Appeals and possibly our Supreme Court render final judgment on the guilt of Smith. This negotiation and appeal process could take years. Note that the present controversy refers only to his confinement, while his appeal is pending final judgment. This is consistent with our constitutional provision that capital offenses are nonbailable.
A supervening event
The minority of four (Chief Justice Reynato S. Puno, Justices Antonio T. Carpio, Ma. Alicia Austria-Martinez and Conchita Carpio Morales) did not dissent because they wanted Smith to remain in US custody. They wanted him transferred immediately and without need of further negotiations to the New Bilibid Prisons in Muntinlupa, pending the final resolution of his appeal. They believe that the VFA itself, not just the Romulo-Kenney accord, is unconstitutional and void. Hence, Smith should not be given any special treatment arising from the void treaty. With due respect to the majority, I believe the dissenters are correct.
True, in Bayan vs Ermita (Oct. 10, 2000), the Supreme Court has already declared the VFA constitutional. However, to borrow the words of Justice Carpio, a “supervening event took place” on March 25, 2008 when the US Supreme Court held, in Medellin vs Texas, “that a treaty, even if ratified by the United States Senate, is not enforceable as domestic federal law in the United States, unless the US enacts the implementing legislation, or the treaty by its terms is self-executory and ratified by the US Senate as such.”
Under this Medellin ruling, penned by US Chief Justice John G. Roberts, concurred in by five US justices and dissented from by three others (there are only nine justices in the US Supreme Court), the VFA is not enforceable in the United States because the US Congress has not enacted any law implementing it and because the VFA “by its terms” is not self-executory. In fact, the US Senate has not even ratified the VFA. On the other hand, since the Philippine Senate ratified it, the VFA is enforceable as domestic law in the Philippines.
Unequal legal status
This unequal legal status of the VFA—not enforceable as local law in the United States but enforceable as local law in the Philippines—violates Section 25 of Article XVII of our Constitution, which requires that “foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty concurred in by the Senate … and recognized as a treaty by the other contracting State.”
This phrase “recognized as a treaty by the other contracting State” insures that the VFA should have the same legal effect in the Philippines as in the United States. Even the Azcuna decision expressly admits that the VFA must be “equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation where the terms and conditions governing the presence of foreign armed forces within our territory were binding on us but not upon that foreign State.”
Despite that hallowed statement, the majority still upheld the VFA’s validity on the ground that the VFA “is simply an implementing agreement to the main RP-US Military Defense Treaty” (MDT) that was ratified by the US Senate. Granting this argument of the majority to be correct, still there is no statement in the MDT that, “by its terms,” it is self-executory. Neither is there any US law that implements it. Thus, under the Medellin doctrine, neither the VFA nor the MDT is binding in the United States as federal law.
Medellin vs Texas
In Medellin vs Texas, petitioner Medellin, a Mexican citizen, was convicted of rape and murder. In his appeal before the US Supreme Court, he argued that his arrest was illegal because the police failed to inform him of the right granted him by the Vienna Convention on Consular Relations (April 24, 1963) to notify the Mexican consulate of his arrest and detention. The US Supreme Court ruled, however, that, despite the ratification of the Vienna Convention by the US Senate, US courts are not bound to enforce its provisions because of the absence of an enabling US law. Thus, Medellin’s invocation of any right under the Convention was rejected.
What is the use then of the Vienna Convention which, like the MDT, is a non-self-executing treaty that was ratified long ago by the US Senate but unimplemented by an enabling US law? According to Roberts, it creates “an obligation under international law on the part of the United States.” The remedy of an aggrieved party in case of a breach of this obligation would be a suit before the International Court of Justice in The Hague.
Checkmate the ICJ
However, before it can be sued, the United States must, under the United Nations Charter, first give its consent. It must first agree to “submit to ICJ jurisdiction.” But even if it does and even if the ICJ eventually decides against America, the US government can still refuse to obey the decision. In the words of Roberts, “submitting to jurisdiction and agreeing to be bound are two different things.
How then can the United States be made to obey an ICJ decision? Under the UN Charter, only the Security Council can compel obedience to an ICJ decision. However, the United States can still checkmate the ICJ because, again in the words of Roberts, “the United States retained the unqualified right to exercise its veto of any Security Council resolution.”
The inevitable conclusion is that, under the Medellin ruling, there is no way that the United States can be forced to honor its commitments under the Visiting Forces Agreement because the VFA is not recognized as federal law in the United States.
Hence, the VFA violates our Constitution because the United States does not recognize and honor it as a treaty the way the Philippines does. The Philippine legal remedy? Junk the VFA and consider Smith like any other accused, whether Filipino or otherwise, and confine him in a Philippine detention facility immediately.
‘Slur on our sovereignty’
Because of the Medellin decision of the US Supreme Court, to which even the US President had to bow expressly, the Philippines has no choice but to apply the same decision if the Philippines must retain its self-respect as a sovereign nation. As Puno wrote, “This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it.”
Clearly then, the United States cannot fault the Philippines should our Supreme Court declare the VFA unconstitutional and ignore the special treatment given to Smith because of the VFA. After all, the Philippines would just be heeding the US Supreme Court in Medellin vs Texas, a decision that binds the US President and US foreign policy.