Republic of the Philippines Court of Appeals Manila SPECIAL SIXTEENTH DIVISION Lance Corporal DANIEL J.

SMITH Petitioner, - versus CA- G.R. SP No. 97212 Members: GUEVARA-SALONGA, Chair LAMPAS-PERALTA*, and BRUSELAS, JR., JJ.

HON. BENJAMIN T. POZON, in his capacity as Presiding Judge of RTC, Makati, Br. 139, JAIL WARDEN of the Makati City Jail, And PEOPLE OF THE PHILIPPINES Respondents.

Promulgated: _____________________ x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x R E S O L U T I O N1 Bruselas, Jr., J.:

Article II Respect for Law It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, xxx xxx xxx. The Government of the United States shall take all measures within its authority to ensure that this is done.2

Vice J.Vicente Q. Roxas. The 10-day period within which Comments are to be filed having expired, the Court may now resolve the petition. 2 Second article of the nine-articled Agreement Between the Government of the United States of America and the Government of the Republic of the Philippines Regarding the Treatment of United States Armed Forces Visiting the Philippines signed 10 February 1998 by Secretary Domingo L. Siazon, Jr. and Ambassador Thomas C. Hubbard, in Manila; more popularly known as the Visiting Forces Agreement or simply VFA.
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Assailed by the petitioner, Lance Corporal Daniel J. Smith (hereafter the petitioner), in this petition for certiorari 3 are the acts of the public respondent Judge Benjamin T. Pozon (respondent judge) who directed his confinement, refused recall thereof, denied the entreaties of the public prosecution that took the side of the petitioner on the issue of custody, and allowed the private prosecution to be heard on the same incident of custody. At the core of the controversy is the basic question of who gets to keep a person who has been charged, tried and convicted of committing a crime, or stated differently, who should punish persons who commit crimes in a given territory. A quick answer to the core postulation above would be, the authorities in the place were the crime was committed. This is not exactly a wrong answer. It is a good answer, all things being equal. It is, in fact, the acceptable, standard and correct answer. It is a product of logical reasoning that arises out of mans long history of civilized living and acquaintance with organized society. It is rooted in notions of sovereignty and territorial supremacy. Sovereign states are agreed that they have general competence to punish persons for offenses committed within their territory, regardless of the offenders nationality. This ability is founded on the obligation of governments to maintain peace and order in its domain and on its duty to defend the State from such acts that would disrupt its security and tranquility. This conceptualization is known as the territorial principle in international law.4 Petitioner, however, would have none of these because, he says, the Visiting Forces Agreement (VFA) provides that his custody resides in the U.S. authorities. He pointed to paragraph 6,
A special civil action (interlocutory in nature) under Rule 65 of the 1997 Rules of Civil Procedure, as amended. 4 International Law used to be popularly known as the law of nations, corresponding to the Roman jus gentium.
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Article V of the VFA. The respondent judge did not agree with him. When the public prosecution5 manifested that it shared the view of the petitioner, still respondent judge did not budge because he said, paragraph 10, Article V of the same VFA does not support the view of the petitioner; that the Secretary of Justice is not an authorized party to bind the Philippines in an agreement with U.S. authorities; that the agreement itself is not the agreement contemplated in paragraph 10. Very briefly, the petitioner6 is an element of the US Military that visits the country from time to time. He was charged, tried and convicted for the crime of rape7 that he committed, while on liberty8 on 01 November 2005, in Olongapo City, against a 22-year old lass, Nicole. 9 He was sentenced to reclusion perpetua.10 Upon the promulgation of judgment against him on 04 December 2006, respondent judge also ordered his temporary commitment to the Makati City Jail (MCJ) pending the agreement between appropriate Philippine and United States authorities whereat the confinement is to be carried out pursuant to the Visiting Forces Agreement. The order that directed confinement reads thus:
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, hereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail.

An order of commitment was thereafter issued and immediately implemented.

Represented by the team of state prosecutors under Chief Prosecutor Jovencito Zuno. Lance Corporal in the United States Marine Corps (USMC). 7 Defined and penalized by articles 266-A and 266-B of the Revised Penal Code, as amended. 8 Not on duty; while on rest and recreation. 9 An alias pursuant to Sec. 44 of Republic Act No. 9262 (VAWC Law) which prohibits publication/identification of women and children victims of violent crimes. 10 A penalty with a duration up to forty years (range, 20 yrs and 1 day to 40 yrs).
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On 05 December 2006, the petitioner filed with the Regional Trial Court (RTC) an urgent motion for reconsideration with prayer for issuance of stay order, which prayed for, among others, the reversal of the foregoing portion of the respondent judges decision insofar as it directs the temporary commitment of the petitioner to the MCJ and the recall of the order of commitment. The private prosecution (private offended party and counsel) opposed said urgent motion. On 08 December 2006, the petitioner filed a manifestation, with an attached copy of an agreement, signed by Ambassador Kristie Kenney11 (representing the United States of America) and Chief State Prosecutor Jovencito Zuo 12 (representing the Philippines), to the effect that the petitioner be returned to the U.S. military custody at the U.S. Embassy in Manila. In the afternoon of the same date, another agreement of the same tenor was submitted to the respondent judge, this time signed by Secretary Raul Gonzalez13 and Ambassador Kristie Kenney. The agreement reads:
The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, U.S. Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.

A supplemental opposition to the urgent motion and comment to the manifestation of the petitioner was filed by the private prosecution, followed by their memorandum of authorities. The petitioner likewise filed another manifestation.

United States Ambassador to the Philippines. Prosecution Division, Department of Justice (DOJ). 13 Chief, DOJ.
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After hearing the incident and taking into consideration the submissions of the opposing sides, on 12 December 2006, the respondent judge denied the urgent motion via the herein assailed order. Unsatisfied with the turn of events, petitioner came to us for special relief via the instant certiorari ascribing to the respondent judge grave abuse of discretion in issuing the confinement order and in refusing to recall it. He also filed a notice of appeal to have the judgment against him reviewed. We hasten to add that we are concerned here merely with the certiorari petition, not with the appeal. The petition for certiorari14 is available when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. Being a special civil action, it may not be invoked generally and its being given due course depends on preliminary compliance with the requirements therefore. These essential requirements are: 1. The assailed act issues from a tribunal, board or officer that performs judicial or quasi-judicial functions; 2. The tribunal, board or officer has acted without or in excess of its jurisdiction or, has acted with grave abuse of discretion which amounts to lack or excess of jurisdiction;
Section 1, Rule 65, 1997 Rules of Civil Procedure as amended, which reads: When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack of or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of nonforum shopping as provided in the third paragraph of section 3, Rule 46.
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3. Appeal as a relief is not available; and 4. There is no other plain, speedy and adequate remedy in the ordinary course of law. All these elements must obtain concurrently for the special civil action of certiorari to prosper. Thus, if the tribunal, board or officer concerned exercises neither judicial nor quasi-judicial functions, but ministerial or administrative ones, even if there be excess of jurisdiction or grave abuse of discretion, certiorari will not be available. If there be excess of jurisdiction or grave abuse of discretion by a tribunal, board or officer exercising judicial or quasi-judicial functions but appeal is available, certiorari still may not be invoked. Where there is excess of jurisdiction or grave abuse of discretion by a tribunal, board or officer exercising judicial or quasi-judicial functions and appeal is not available but another plain, speedy and adequate remedy is generally obtainable, certiorari may still not be resorted to. The remedy to obtain reversal or modification of the judgment on the merits of the case is appeal.15 Also, certiorari is not and cannot be made a substitute for an appeal16 where the latter remedy is available but was lost or not availed of. In fine, the remedies of appeal and certiorari are mutually exclusive, not alternative or successive.17 The facts before us reveal that the petitioner has been tried for the crime of rape and has been convicted and sentenced according to applicable Philippine municipal laws 18. The remedy of appeal is available as in fact he has availed of such a remedy. Appeal, as a relief from an adverse decision being available to him, he may not successfully invoke certiorari. True, he has alleged grave abuse of discretion on the part of the trial judge, an officer who exercises judicial functions, but such an allegation must be coupled with an absence of appeal, or any other plain,
Bugarin, et. al. vs. Palisoc, et. al., G.R. No. 157985, December 2, 2005 Supra. 17 David vs. Cordova, G.R No. 152992, July 28, 2005 18 Act No. 3815, The Revised Penal Code as amended; December 2000 Rules of Criminal Procedure
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speedy, and adequate remedy in the ordinary course of law. His plaint now before us can very well be assigned as an error on appeal. Thus, on a technical ground, petitioners resort to certiorari may be simply denied for non-compliance with the requirements of the rules. But, we go further in view of the farreaching consequences of the core issue vis--vis the VFA that has been brought to the fore. There is no dispute here that the respondent judge had plenary jurisdiction to hear and decide the criminal action of rape against the petitioner. The only concern that had been raised is the respondent judges having issued a commitment order. The petitioner asserts that this act of the judge constituted a grave abuse of discretion that amounted to lack or excess of jurisdiction. His thesis is that the VFA calls for his remaining in the custody of the U.S. authorities; that is; in the U.S. Embassy premises. Because, the judge did not agree with him, he asserts that the judge gravely abused his discretion. Grave abuse of discretion has been traditionally and consistently defined as an act that is arbitrary, capricious and whimsical. Of late it had been expanded to include such situations as may be contrary to the constitution, the law or jurisprudence. In the case now before us, we note that the respondent judge heard the petitioner on his proposition. He also heard the prosecution, both public and private, on the issue of custody. It was only after hearing them that the respondent judge maintained his original order of commitment. Under our criminal law and procedure, a judgment of conviction that imposes the penalty of imprisonment above 6 years is immediately followed by an order of commitment to the appropriate detention facility; bail if previously given, is automatically canceled to ensure the physical availability of the accused to serve his sentence in the event of final conviction. His status changes from an accused to a

convict, albeit with a pending appeal. In the case of the petitioner herein, the sentence is reclusion perpetua, a maximum penalty that may be imposed by the courts.19 Given the foregoing behavior of the respondent judge, we cannot say easily that the issuance of the questioned orders had been attended by fancy, whim, caprice or arbitrariness. We also do not see any clear inconsistency or lack of conformity of the questioned orders to a provision of the constitution, law or statute. Neither do we see a clear disregard of any settled jurisprudence that bears on the issue. The petitioner could not point to one except that he insists that under the VFA, he must be in the custody of the United States authorities while his appeal is pending. His plain understanding of the VFA provisions appears to be shared by no less than the prosecution arm of the government headed by Chief Zuno and Secretary Gonzalez. Under the theory of incorporation, the VFA is deemed part of the laws of the land.20 Unlike the provisions of the U.S. Philippines Military Bases Agreement of 194721, wherein there is a limited waiver of jurisdiction, the present VFA does not provide for any waiver of jurisdiction. In fact, it expressly acknowledges jurisdiction in Philippine authorities in keeping with the territorial principle in international law as well as with the generality and territoriality principles in penal law. The VFA is an agreement between the Government of the Republic of the Philippines (GRP) and the Government of the United States of America (GUSA) regarding the treatment of United States Armed Forces visiting the Philippines. It consists of nine (9) Articles22 with its Article V dealing with criminal
Another one being life imprisonment; death as a penalty had been abolished. Article 2, Revised Penal Code (Act No. 3815, as amended); Article 14, New Civil Code (Republic Act No. 386, as amended). 21 No longer in force. But, Philippines U.S. Mutual Defense Treaty is still in effect. 22 Article I Definitions, II - Respect for Law, III Entry and Departure, IV Driving and Vehicle Registration, V Criminal Jurisdiction, VI Claims, VII Importation and Exportation, VIII Movement of Vessels and Aircraft, and IX Duration and Termination.
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jurisdiction over United States personnel with respect to offenses committed within the Philippines. The Supreme Court has determined it to be a valid agreement and may be considered a treaty pursuant to the ponencia in the Bayan cases.23 Its validity is not an issue before the Court now. The VFA is not about protecting soldiers from any harm. It is all about containing and restraining visiting soldiers from causing damage and injury to the host country. The proposition that the VFA is some kind of a shield, a legal one it is quickly argued, against any harm from the locality, is a contradiction in terms. The soldier protects the people and needs no protection from the people.24 The visiting soldier is in reality a lethal weapon, not much different from men-of-war25 that make friendly port calls on other sovereign states. It is in fact the people and the host sovereign state that need some protection from visiting soldiers from another sovereign state. This truism is tempered and tamed via the mutuality of the Visiting Forces Agreement. If there are any doubts about this conceptualization, one need only take a quick look at the epigram above which we excerpted from Article II of the VFA. The VFA is all about how visiting soldiers are to be treated, how they are to behave from arrival up to their departure from the host country. It is not about a legal shield that protects a soldier who misbehaves and transgresses the municipal laws of a host sovereign state. The petitioners main thesis is that under Article V, paragraph 6 of the VFA, he must remain in the custody of U.S. authorities from the commission of the offense until completion of all judicial proceedings and that he should be immediately removed from the MCJ to the U.S. Embassy. He understands
Bayan, et. al. v. Executive Secretary Zamora & companion cases, G.R.No.13850, 10 October 2000. 24 See Section 3, Article II of the 1987 Philippine Consitution. xxx The Armed forces of the Philippines is the protector of the people and the State xxx. 25 As opposed to merchant men
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judicial proceedings to mean a general term for proceedings relating to, practiced in, or proceeding from, a court of justice and that in his case, judicial proceedings would necessarily encompass all proceedings conducted in Philippine courts of justice, including the appeals process up to final termination; that, since his conviction is on appeal, he should stay in the custody of the U.S. authorities. He asserts that paragraph 6, Article V of the VFA is very clear and unequivocal on custody, leaving no room for interpretation. Thus, he alleged, that the respondent judge: (1) gravely abused his discretion when he ruled that paragraph 6 of Article V, applies only during the judicial proceedings in the trial court and no longer after rendition of judgment; (2) committed grave abuse of discretion in ruling that paragraph 10, Article V applies after the promulgation of judgment; (3) assuming that Article V, paragraph 10 was correctly applied, nonetheless acted without jurisdiction and with grave abuse of discretion when he ordered petitioners temporary commitment to the MCJ; (4) committed grave abuse of discretion in disregarding the agreements signed by Ambassador Kenny and Chief Zuno, and by the same Ambassador and Secretary Gonzalez; and (5) committed grave abuse of discretion in recognizing that the private complainant in criminal case no. 06-651 26 has standing to file her Opposition to the Motion for Reconsideration, the Supplemental Opposition to the Motion for Reconsideration, the Comment to Manifestation. To determine whether or not grave abuse of discretion attended the exercise by respondent judge of his judicial functions per specifications (1), (2) and (3) above, we need only examine the provisions of the VFA, with particular focus on Article V, which deals with criminal jurisdiction.

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The criminal action below wherein the petitioner and other co-accused were tried.

Paragraph 6 is not the only provision in the VFA that has to do with custody. It is only one part of an eleven-paragraphed Article V that deals with criminal procedure; that is; the steps to be followed when offenses are committed by visiting U.S. soldiers. Article V, in fact is captioned Criminal Jurisdiction, not custody. Paragraph 10, cited by the respondent judge, is also in Article V. Let us look at it briefly at this point and keep it in mind as a ready reference:
Paragraph 10 The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. (Underscoring supplied)

Scholars, law practitioners and even fledgling paralegals know that in criminal law, jurisdiction necessarily includes custody. Criminal jurisdiction means jurisdiction over the place of commission of the offense, jurisdiction over the offense itself, and jurisdiction over the person who commits the offense (the malefactor). Criminal jurisdiction over the person of the malefactor is obtained by his arrest or by taking him into custody. It can also be acquired by the surrender of the malefactor and by his submission to criminal processes. As criminal law concepts, custody and jurisdiction go hand-in-hand. Where there is jurisdiction, there is also custody; custody inheres in jurisdiction. This basic concept, that custody is an essential part of jurisdiction, permeates article V of the VFA. The first three paragraphs of Article V delineate the respective exclusive and concurrent jurisdictions of the GRP and GUSA. Paragraph 4, pertains to the arrest (taking into custody) of U.S personnel and handover (turnover of custody) to the authorities who are to exercise jurisdiction; Paragraph 5, on prompt notification by both U.S. military and Philippine

authorities in case of arrest; Paragraph 6, deals with multiple matters: custody upon request; production of U.S. personnel for investigative or judicial proceedings; extraordinary cases regarding custody; termination of obligations in case judicial proceedings are not terminated within one year; periods deducted from the one-year time line; Paragraph 7, on assistance to investigations, attendance of witnesses; Paragraph 8, anent the double jeopardy rule and exclusions to it; Paragraph 9, deals with rights accorded to U.S. personnel detained, taken into custody, or prosecuted by Philippine authorities; Paragraph 10, concerns confinement or detention by Philippine authorities; and Paragraph 11, on non-subjection to trial by Philippine military or religious courts. While a total of eleven (11) paragraphs comprise Article V (on criminal jurisdiction), the petitioner relied solely on paragraph 6 to support his thesis. He utilized amplification and juxtaposition27 to support his position. He placed the first sentence of the lengthy, multi-subject paragraph 6 alongside the concise, two-sentenced paragraph 10 to dramatize his point. But, what do the provisions of Article V say about jurisdiction and custody?
Paragraph 1 (a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the laws of the Philippines. (underscoring supplied) Paragraph 2 (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States. (underscoring supplied) Paragraph 3 (a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases
27

Tabular juxtaposition, page 10, Petition for Certiorari.

provided for in paragraphs 1 (b), 2 (b), and 3 (b) of this article. (underscoring supplied)

Paragraph 1 (b) pertains to the exercise within the Philippines by U.S. authorities of criminal and disciplinary jurisdiction conferred by U.S. military law over U.S. personnel; paragraph 2 (b), to exclusive jurisdiction by U.S. authorities over U.S. personnel with respect to offenses, including offenses relating to the security of the United States, punishable under U.S. laws, but not under Philippine laws, and paragraph 3 (b), to the primary right to exercise jurisdiction by U.S. authorities over U.S. personnel subject to U.S. military law in relation to offenses solely against property or security of the United States or offenses solely against the property or person of U.S. personnel, and offenses that arise out of an act or omission done in the performance of duty. Given the provisions of paragraphs 1, 2 and 3, there can be no quibbling that Philippine authorities exercise exclusive jurisdiction over the person of the petitioner (paragraphs 2{a}, 1{a}) and have primary right to exercise jurisdiction over the offense that he committed (paragraph 3{a}). The offense of rape is a felony under Philippine municipal law28; it was committed within Philippine territory, against a non-U.S. personnel. It is a clear case of exclusive jurisdiction over the person of the offender with respect to the offense that he has committed and primary right to try him for the offense. Jurisdiction over the person plainly means custody. If Philippine authorities have exclusive custody, why then the claim of the petitioner? Yes, because of paragraph 6, so he says. But let us first take a look at paragraph 4. It provides Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the
Defined and penalized under Articles 266-A and 266-B of the Revised Penal Code, as amended.
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Philippines and in handing them over to the authorities who are to exercise jurisdiction in accordance with the provisions of this article. (underscoring supplied)

As we have shown earlier, it is the Philippine authorities that have exclusive jurisdiction over the person of the petitioner (paragraphs 2 {a} and 1 {a}) and the primary right to try him for the offense that he committed (paragraph 3{a}). Note that per paragraph 4, the U.S. personnel who commit an offense shall be arrested and handed over to the authorities that are to exercise jurisdiction. In the case before us therefore, the petitioner should have been handed over to the Philippine authorities. But, did this take place? Was this provision of paragraph 4 enforced? Apparently not, and this we see through U.S. Embassy Note No. 0060, dated 16 January 2006, which reads:
The Embassy of the United States of America presents its compliments to the Department of Foreign Affairs of the Republic of the Philippines, and, in response to the Departments Note No. 05-2662 of November 16, 2005, has the honor to convey, having taken full account of the position of the Government of the Philippines regarding custody, the U.S. Government shall continue to exercise custody until completion of all judicial proceedings, as provided for by Article V, paragraph 6 of the Visiting Forces Agreement. The Embassy of the United States of America avails itself of this opportunity to renew to the Department of Foreign Affairs of the Republic of the Philippines the assurances of its highest consideration.

Such was the response29 of the U.S. authorities to the Department of Foreign Affairs (DFA) Note No. 05-2662, dated 16 November 2005. This DFA Note Verbale invoked the procedure laid out by Article V that called for custody by Philippine authorities. It reads:
The Department of Foreign Affairs presents its compliments to the Embassy of the United States of America
The response came a full two (2) months after a 2nd follow-up note from a U.S. Embassy that was only about two clicks away from the Philippine Department of Foreign Affairs.
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and has the honor to refer to Article V of the Agreement between the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces Personnel Visiting the Philippines (the Agreement), in relation to the conduct of investigations of the alleged rape that occurred in Subic on November 1, 2005. Pursuant to the exercise by the Philippines of its primary right of jurisdiction over the case as conveyed through this Departments Note Verbale No. 05-2579 and in view of the nonreceipt of a formal request for initial United States custody over the United States military personnel involved in the alleged rape relative to Article V, paragraph 6 of the Agreement and the extraordinary nature of the case, being a heinous crime, the Department requests the Embassy of the United States of America to turn over custody of said U.S. military personnel to Philippine authorities as soon as practicable. Mindful of Article V, paragraph 10 of the Agreement which states that the confinement or detention by Philippine authorities of the U.S. military personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities, this Department and the Department of Justice look forward to discussions with the Embassy on arrangements on said confinement or detention. The Department of Foreign Affairs avails itself of this opportunity to renew to the Embassy of the United States of America the assurances of its highest consideration.

While paragraph 4 clearly and unequivocally called for the arrest and handing over of the offending U.S. personnel to the authorities who are to exercise jurisdiction, in this case the Philippine authorities, the U.S. Embassy chose not to respond to the DFAs Note Verbale No. 05-2579. It responded only belatedly after a follow up in Department Note No. 05-2662, and only to focus on paragraph 6. Thus, in a more emphatic language, DFA replied immediately via Department Note No. 06-010330 and stated as follows:
The Department of Foreign Affairs presents its compliments to the Embassy of the United States of America and, with reference to the Embassys Note No. 0060 dated 16 January 2006, has the honor to reiterate the position of the Philippine Government as conveyed through the Departments Note No. 05-2662 dated 16 November 2005 as follows:
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Dated 17 January 2006, just the next day after its receipt of U.S. Embassy Note No.0060.

Pursuant to the exercise by the Philippines of its primary right of jurisdiction over the case as conveyed through this Departments Note Verbale No. 05-2579 and in view of the non-receipt of a formal request for initial United States custody over the United States military personnel involved in the alleged rape relative to Article V, paragraph 6 of the Agreement and the extraordinary nature of the case, being a heinous crime, the Department requests the Embassy of the United States of America to turn over custody of said U.S. military personnel to Philippine authorities as soon as practicable. On the specific issue of what constitutes an extraordinary case in the context of Article V, Paragraph 6 of the Agreement, the Department wishes to convey that by any precepts of civilized society, rape, particularly under the circumstances as alleged in the Subic case, cannot be considered as simply an ordinary case and should by law, by policy and by good conscience, be properly understood as an extraordinary case, as was the intent that governed when the Philippines agreed to the inclusion of this formulation in the Agreement. This intent was further amplified in Philippine Senate Concurrence Resolution No.18, Series of 1999. In addition, while aware of the differences between the Agreement and similar agreements entered into by the United States, the Philippine Government is seriously concerned over the patent disparity in the treatment of U.S. military personnel in other countries on the issue of custody in criminal cases. In the light of the decision of the United States Government to maintain its position on the issue of custody during trial, the Department of Foreign Affairs wishes to continue discussions on this matter between the Philippine Government and the United States Government. The Department of Foreign Affairs avails itself of this opportunity to renew to the Embassy of the United States assurances of its highest consideration.

The foregoing diplomatic exchange would thus show that the Philippine authorities, did not share the views of the U.S. Embassy as well as the petitioner regarding custody, except only until lately; that is; after the respondent judge adjudged the petitioner guilty of committing rape beyond reasonable doubt and directed his temporary confinement in the MCJ. It is significant to note here that as early as 16 January 2006, the U.S. authorities were already mulling over the paragraph 6, Article V of the VFA argument; something that the petitioner had not

indicated any awareness of then. He was just being a good soldier in the custody of the U.S. Embassy. It was only on 05 December 2006, a day after judgment day, that he cried, violation of paragraph 6, Article V of the VFA! This early warning about the different reading being given Article V by the U.S. authorities may well have served as a wellspring in the development of a sustained and unified diplomatic initiative to secure agreed-on anchor points along the hazy, ambiguous portions of the VFA, in anticipation of alternative post-trial scenarios. This we say because, the facts that have been laid bare, show the DFA boys to have been on track early on, except that the DOJ guys and some others may have gotten into the act in a syncopated way. Let us also take a look at paragraph 9 which provides:
Paragraph 9 - When United States personnel are detained, taken into custody or prosecuted by Philippine authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled: (a) To a prompt and speedy trial; (b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable to prepare a defense; (c) To be confronted with witnesses against them and to cross-examine such witnesses; (d) To present evidence in their defense and to have compulsory process for obtaining witnesses; (e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines; (f) To have the services of a competent interpreter; (g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine law, excludes persons who have no role in the proceedings.

From the foregoing provisions of paragraph 9, we see that detention and custody of U.S. personnel by Philippine authorities while facing prosecution are in fact explicitly recognized. This is a necessary consequence of the recognition that inherent in jurisdiction is the component aspect of custody as generally stated in paragraphs 1 {a}, 2 {a} and 3 {a}; a recognition that is founded on the territorial principle in international law as well as on the principles of generality and territoriality in penal law. Let us likewise revisit paragraph 10 which plainly provides:
Paragraph 10 - The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. (underscoring supplied)

Again, this provision recognizes that custody flows from the jurisdiction that is lodged in Philippine authorities that is clearly acknowledged in paragraphs 1 {a}, 2 {a} and 3 {a}. If it were not so, there would be no need to provide for an agreed-upon confinement or detention facility. Paragraph 10 does not distinguish between pre-conviction or post-conviction situations, as can be inferred from the use of the terms confinement or detention. It addresses the need to have a custodial facility that must be mutually agreed upon. It recognizes that the custodial facility to be determined and agreed on shall be one that is within the jurisdiction of Philippine authorities or in layman's language, a facility run and administered by Philippine authorities. This is necessarily so because of the very wording of the paragraph that opens with the phrase, The confinement or detention by Philippine authorities... . The preposition by denotes proximity to, within reach, just beside, nearby. If the intention were otherwise, the phrase by Philippine authorities could have been simply omitted. But even if the phrase were omitted, the

inescapable conclusion would still be the same, that the agreedupon facility will have to be one that is run by Philippine authorities, because of the clear acknowledgment in paragraphs 1 {a}, 2 {a} and 3 {a} that Philippine authorities have jurisdiction. Furthermore, the provisions of paragraph 9 that accord certain minimum rights to U.S. personnel who are detained, taken into custody or prosecuted by Philippine authorities, implicitly recognize that the confinement or detention facility must necessarily be one that is administered by Philippine authorities because, if it were not so, there would be no need to provide for those minimum rights. If the confinement or detention facility were intended and understood to mean, one that is run by U.S. authorities, paragraph 9 would be a superfluity and paragraph 10 would be a hyperbole; purposeless stipulations, they would be. The second sentence of paragraph 10, xxx xxx xxx United States personnel serving sentences in the Philippines shall have the right to visits and material assistance, says it all. It confirms that the custodial facility to be agreed upon shall be one that is run by Philippine authorities that is why it provides for visiting rights and material assistance. That this utterance is placed in paragraph 10 instead of paragraph 9 or elsewhere in Article V, can only indicate that the custodial facility to be mutually determined may as well serve as the facility for eventual service of sentence. We earlier observed that paragraph 10 does not distinguish between pre-conviction or post-conviction situations. As crafted and meant to be understood therefore in paragraph 10, and under the spirit that must have governed during the formulation and eventual signing of the VFA, Philippine and United States authorities are to agree on a custodial facility whereat U.S. personnel, who are detained, taken into custody, prosecuted by Philippine authorities or serving sentence, shall be held by Philippine authorities and must be accorded minimum rights set forth in paragraph 9.

Now, let us take a look at the much belabored, greatly interpreted and overly understood paragraph 6 of Article V in its entirety. It reads:
The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.

Paragraph 6, as reproduced above, is the only paragraph in the whole of Article V, nay, in the whole VFA, that bites more than it can chew. An analysis of this paragraph will show that it covers five (5) topics. These are: (1) Custody over the offender by U.S. military authorities, if so requested, from the commission of the offense until completion of all judicial proceedings; (2) Obligation of U.S authorities to hold and produce the offender for any investigative or judicial proceedings relating to the offense charged; (3) Extraordinary cases regarding custody; (4) One-year time line for completion of judicial proceedings after which the obligation to hold the offender terminates; and (5) Time periods that are excluded from the computation of the one-year time line. The first sentence of paragraph 6 provides that custody of any United States personnel over whom the Philippines is to

exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. This topic contemplates of a case where the Philippine authorities have jurisdiction and therefore custody but nevertheless allows custody over the offender by U.S. military authorities, if they so request.31 The phrase if they so request may seem to mean that a mere request, not subject to any assessment or approval, will suffice. However, during the Senate deliberations to ratify the VFA,32 it was clarified by Senator Ople, the sponsor for ratification, that such request is still subject to evaluation and determination by the Philippines side. The interpellator though did not buy the good sponsors explanation in view of the very language used in the crafting of the provision in point, xxx shall immediately reside xxx xxx if they so request xxx. The operative phrases here are: shall immediately reside and if they so request, which can only mean that, to place custody in the hands of U.S. authorities, all they need to do is to request and it shall be given. This particular provision of paragraph 6 would seem to be an exception to the general rule that whoever has jurisdiction also has custody, custody being inherent in jurisdiction in Philippine authorities, that is clearly recognized throughout Article V. It may even seem to conflict with paragraph 4, which plainly states without any qualification that the arrested United States personnel must be handed over to the authorities who are to exercise jurisdiction, and under paragraphs 1 (a), 2 (a) and 3 (a), it is the Philippine authorities that have the jurisdiction. This first topic, which allows custody of the offender by U.S. military authorities, brings about a situation where custody is divorced from jurisdiction. The Philippines has jurisdiction but
(shall reside [ re (back) + sedere (sit) ], meaning dwell with the United States). VFA Transcripts of Session Proceedings, C.R. No. 42/P.S. RES No. 443/RES No. 18; May 10, 1999.
31 32

another State, which is the United States in this case, takes custody over the person charged. Criminal jurisdiction is the authority of the court to hear and try a particular offense and to impose the punishment provided by law.33 In a criminal law environment, jurisdiction without custody over the offender will render jurisdiction illusory and meaningless because effective enforcement of the end result of the exercise of jurisdiction, such as the exaction of punishment, may not be obtained. It is for this reason that custody of the offender is an integral part of jurisdiction. In the case at bar, the Philippine authorities, even if they had exclusive jurisdiction over the persons of the petitioner and his co-accused U.S. military personnel (therefore exclusive custody) pursuant to paragraph 2 {a} and primary right of jurisdiction to try the case per paragraph 3 {a}, never had effective custody of them. It was only when the petitioner was ordered committed to the MCJ by the respondent court upon conviction that effective custody was acquired. Through the second Note Verbale34 of the DFA to the U.S. Embassy, at the early stage of the case, we see that there was no request for custody, either formal or informal, that originated from the U.S. authorities. It would seem to us that such a request for custody would be a condition sine qua non before the U.S. authorities can take custody of the petitioner pursuant to the very paragraph 6 that is invoked by the petitioner and that is also invoked in U.S. Embassy Note No. 0060. Their non-compliance with the if they so request requirement may have been due to the fact that they had actual custody of the petitioner anyway. So why still bother, they must have thought. Such a happenstance could only have arisen, possibly because of a failure or lack of diligence on the part of the appropriate Philippine authorities to undertake vigorous diplomacy;35 that is; to effectively enforce, on the ground, the provisions of paragraph 4,
Conde vs. Mamenta, 142 SCRA 500 No. 05-2662, dated 16, November 2005 35 Defined by Satow as the application of intelligence and tact to the conduct of official relations between independent States; in I Diplomatic Practice 1, cited in Salonga and Yap, Public International Law, 4th ed., 1974.
33 34

on arrest. This singular omission may have led to the U.S. authorities assertion, invoking with diplomatic flourish, paragraph 6, Article V, albeit not in the manner that had been outlined in the first sentence of paragraph 6s shall immediately reside xxx xxx xxx, if they so request oxymoron formulation, that the Philippines was in violation of the VFA. Still on the first topic, the custody by U.S. military authorities ranges from the commission of the offense until completion of all judicial proceedings. To us, the term judicial proceedings is a general one and broad enough to include every proceeding of a judicial nature before a court, officer or tribunal vested with a judicial or quasi-judicial power. It may range from the initiation of a complaint, pre-trial proper, to appeal. In the municipal, criminal law and procedure context, it may embrace preliminary investigation conducted by the first level court judge,36 arraignment and plea at the trial courts, pre-trial and plea bargaining, trial proper (presentation of evidence), offer and objection, rebuttal and sur-rebuttal, reconsideration, reopening and new-trial, up to appeal. Any one of the component stages or any step within the range of the term judicial proceedings, may be properly referred to as judicial proceedings. It can therefore be descriptively used. Petitioners conviction is on appeal and since appeal is part of judicial proceedings, his custody by U.S. authorities should remain, so he argues. In the topic on the one-year time line, however, we again encounter the term judicial proceedings In the event judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. Interestingly, in arguing that custody over him should remain with U.S. authorities, the petitioner defines judicial proceedings as all proceedings from the beginning of trial up to the completion of the appeal process. When it comes to the one-year time line for
Municipal Trial Court Judges, before the amendments to the Criminal Procedure Rules of December 2000.
36

completion of all judicial proceedings, however, he now defines the same judicial proceedings as one that necessarily refer to trial proceedings only; because, he claims, the obligation of the U.S. authorities to hold and produce him for any investigative or judicial proceedings is conditioned on the termination of judicial proceedings (trial proceedings, this time) within a one-year period. His interpretation of this particular topic on the one-year time line is that the obligation to hold and produce him continues indefinitely if the judicial proceedings (trial proceedings in the lower court) are completed within one year. He has in mind a suspensive condition as opposed to a resolutory one. 37 We have here a petitioner who says judicial proceedings mean from trial all the way to completion of appeal when arguing for custody by U.S. authorities and says another, that judicial proceedings mean trial court proceedings only when arguing the meaning of the one-year time line bar vis-a-vis the U.S. authorities' obligation to hold and produce him. The petitioner thus engages in selective, self-serving argumentation. We do not mean to imply here that in taking a position with the petitioner on the issue of custody, the Chief Prosecutor, Secretary of Justice and Solicitor General were also engaging in the same kind of argumentation as the petitioner. We understand that they were only for giving respect to the VFA. Upon the other hand, the other interpretation which the respondent judge appears to have taken, is that the U.S. authorities obligation to hold and produce the petitioner is limited to only one year within which judicial proceedings must be terminated; that beyond the one year time line, U.S. military authorities would have no further obligation to hold and produce the petitioner; that because of this cessation of obligation, the U.S. military authorities would have no further basis to keep the petitioner in their custody as in fact there is no further
Article 1181 of Republic Act No. 386. In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition.
37

requirement for the petitioner, who has been convicted, to be produced at any time during the appeal process. That this appears to be the correct interpretation, can be seen from the last two sentences of paragraph 6 which defines further the one-year time line; excluding from the one year period the time necessary to appeal (that is, whatever time that may be eaten up in pursuing an appeal, interlocutory or otherwise) and delays caused by the failure of U.S. authorities to produce the accused. Deducting the time lost attributable to the accused or to his custodian (the U.S. authorities), from the one-year time line within which to complete judicial proceedings (meaning trial proceedings), assures a reasonable, fair, and speedy trial time-frame given the Philippine authorities to complete judicial proceedings (trial proceedings). Moreover, it must not be lost sight of that the petitioner is an element of the U.S. military, a soldier and not a civilian attached to the U.S. military. In the rigid and efficient world of the military, time measures such as the one stipulated in paragraph 6, need for warm bodies, flexibility, optimum employment of operating assets and resources, to mention but a few, carry definite significance. The meaning that the petitioner wants read to the one-year time line bar, that U.S. military authorities will remain obligated to hold and produce him indefinitely (until completion of the appeal process), if judicial proceedings (trial proceedings as he asserts in this particular argument) are completed within one year, is anathema to the very nature and operating parameters of the military. It finds no logical and contextual support from a harmonious and holistic reading of the entire Article V, nay, the entire VFA. In fact, this interpretation of an indefinite obligation is clearly avoided in the U.S. Embassy Note No. 0060. As an asset, a warm body, an element of a military will not be unutilized nor would other resources (such as a holding cell, sustenance, guard detail, etc.) be employed to keep petitioner on hold indefinitely. The meaning and import of the one-year time bar can only be,

that the U.S. military authorities will not hold on further to the petitioner beyond the one year period to complete judicial proceedings for the purpose of making him available to Philippine authorities because its obligation to do so ceases after one year, regardless of the completion of judicial proceedings (trial proceedings). Because there is no further obligation to hold and to produce him, the U.S. military authorities will be free to deal with him as may be dictated by mission imperatives as determined by the Commander.38 The term judicial proceedings also appears in paragraph 9 {g}, which reads:
To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine law, excludes persons who have no role in the proceedings. (underscoring, supplied)

Gleaned from this provision is the clear import and meaning that is attributed to the term, all judicial proceedings. It is used in the sense of all proceedings at the trial court, because under Philippine law, it is the judicial proceedings at the trial court level that are held in open court, publicly or in public. Appellate procedure under Philippine law does not require the presence of the accused nor of witnesses. The appellate proceeding itself cannot be characterized as public in the sense of a public trial. This is the sense that all judicial proceedings must also be understood as intended and used in paragraph 6; the same sense that the petitioner adopts in arguing that the U.S. military authorities remain obligated to hold and produce him beyond one year.

38

C/f, paragraph 3 {e} of Article V, VFA.

The term all judicial proceedings as intended, used and understood in the VFA may carry only one meaning, if there is to be a fair and mutually beneficial compliance with its provisions on criminal jurisdiction; that is; that all judicial proceedings refer to all trial court proceedings. The term is used in its descriptive sense, not in its all-embracing sense. Thus, in paragraph 6, custody by U.S. authorities over the offender who is under the jurisdiction of Philippine authorities ends with conviction, the completion of all judicial proceedings (the completion of all trial proceedings). The petitioner may not remain further under custody by U.S. authorities after completion of all trial proceedings because there is no longer any further co-relative obligation to hold and produce him for any other investigative or (trial court) judicial proceedings. His remaining in U.S. custody will keep him beyond the jurisdiction of Philippine authorities who have exclusive jurisdiction over him with respect to the offense that he has committed (per paragraphs 2{a} and 1{a}) and primary right to try him (per paragraph 3{a}). It may have been in this light that the order of the respondent judge to temporarily commit the petitioner to the MCJ was issued. We do not find the respondent judge's disagreement with the public prosecution on the issue of custody to be an act in excess of jurisdiction or tainted with grave abuse of discretion. On the matter of who may be the appropriate signatories to an international agreement to bind the Philippines, the Vienna Convention on the Law of Treaties39, enumerates the persons who are considered as representative of a state in relation to treaty
Dated on May 23, 1969 Part II, Article 7 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: a. he produces appropriate full powers; b. it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following the considered as representing their State:
39

negotiations, and the Minister for Foreign Affairs, by virtue of his functions and without having to produce full powers, is one of those authorized. This would seem to indicate that their authority might also include agreements pursuant to a treaty between the states, like the agreement mentioned in paragraph 10. In addition, under the Administrative Code of the Philippines, the Department of Foreign Affairs is also designated as the proper authority to negotiate treaties and other agreements pursuant to instructions of the President, and in coordination with other government agencies.40 Clearly, both the Chief State Prosecutor and the Secretary of Justice may not be considered the authorities referred to in the VFA .We likewise do not find him to have gravely abused his discretion when he allowed the private prosecution to be heard on the issue of custody. It was in fact a prudent exercise in keeping with due process made more urgent by the odd behavior of the public prosecution in taking the side of the accused after a conviction, on the side issue of custody. In a judicial environment, it is always better that all sides to an issue be heard to pave the way for a fair and just resolution of a controversy. He was well within his sphere of competence when he performed his duty of hearing out all sides and in reading and understanding the provisions of Article V of the VFA, which we must emphasize are not at all that crystal clear contrary to the opinions of many who may not even have had the opportunity to get hold of a copy of the VFA. It is after all the judge's duty to say what the law is. Not in one of the five (5) specifications of alleged grave abuse of discretion, was the petitioner able to show that the
a. Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; b. Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited. c. Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. 40 Section 3, (5), Executive Order No. 292

respondent court committed grave abuse of discretion. Yes, it is a well-entrenched rule that if a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.41 It is only when the language of the law is vague and does not convey a clear and definite meaning that construction or interpretation thereof must be resorted to. In this case, the respondent court, confronted with the apparent unharmonious and ambiguous provisions of paragraph 6, Article V of the VFA, vis--vis the other paragraphs of the same Article as illustrated above, was left with no other option but to interpret and apply the same, which is the office of the courts. By interpreting and ruling that paragraph 6 applies only during the judicial proceedings in the trial court and that paragraph 10 applies after the promulgation of judgment of conviction, it may not be said that grave abuse of discretion or even abuse of discretion had been committed by the respondent judge. It has been ruled that grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. 42 The respondent court in this case did not. Besides, no matter how erroneous or irregular the rulings of the respondent court might be, they may not be corrected by certiorari because they are mere errors of judgment, one in which the court or quasi-judicial body may commit in the exercise of its jurisdiction and which are correctible by an appeal. We must stress that in a petition for certiorari, the jurisdiction of the appellate court is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence, such as an error of

41 42

Philippine National Bank vs. Garcia, Jr., G.R. No. 141246, September 9, 2002 Banal III vs. Panganiban, G.R. No. 167474. November 15, 2005

judgment.43 This was clarified in Angara v. Fedman Development Corporation.44 With the foregoing discussions, the petition must

necessarily be dismissed but we have with us the submission of the Solicitor General by himself and as counsel of petitionerintervenor DFA, who has ardently and vigorously asserted that the position of the petitioner regarding custody is correct. He imperiously45 intervened for the DFA and alleged that an agreement, dated 22 December 2006, recently executed between DFA Secretary Alberto Romulo and U.S. Ambassador Kristie Kenny constitutes a supervening event that even more warrants the immediate removal of petitioner Smith from the MCJ to the U.S. Embassy. The agreement reads:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of Amercia agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG ) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will
43

Chan vs. Court of Appeals, G.R. 159922, April 28, 2005

44

The wisdom or soundness of the RTCs orders involves a matter of judgment which is not properly reviewable by petition for certiorari, which is intended to correct defects of jurisdiction solely and not to correct errors of procedure or matters in the RTCs findings or conclusions. Any error therein amounts only to an error of judgment. An error of judgment committed by a court in the exercise of its legitimate jurisdiction is not the same as grave abuse of discretion. Errors of judgment are correctible by appeal, while those of jurisdiction are reviewable by certiorari. Furthermore, where the court has jurisdiction over the subject matter, the orders or decisions upon all questions pertaining to the cause are orders or decisions within its jurisdiction and however erroneous they may be, they cannot be corrected by certiorari. Elsewise stated, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari. A term that he used in his motion for leave to intervene (with prayer to admit attached Petition-in-Intervention)
45

have access to the place of detention to ensure the United States is in compliance with the terms of the VFA.

The Solicitor General further asserts that the agreement aptly fulfills the condition prescribed by the respondent judge in his order of commitment, thus paving the way for the immediate transfer of the petitioner from the MCJ to such designated facility at the U.S. Embassy. A reading of the order of commitment and of the subsequent order that denied reconsideration thereof, as well as an understanding of what we have just discussed above will probably suffice to answer the Solicitor General's assertion. If it is the position of government that the language of the VFA is clear as seen by the petitioner and as also seen by the U.S. Embassy,46 despite the strong and palpable indications that it is not so, then let it do as it sees fit and deal with such latest agreement as its sound judgment permits; for as Justice Holmes once wisely observed, the other branches of the Government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.47 Courts may not directly intervene in the exercise of diplomacy no matter how proudly or meekly, strongly or weakly, such exercise may be conducted by the appropriate political organ of government. Courts may only say what the facts are and what the law may be in a given case or controversy and rule accordingly. That is what the respondent judge did and that is what we can also only do; nothing more and nothing less. As the weakest amongst the ultimate guardians of the liberties and welfare of the people, we can only soberly articulate that custody and jurisdiction are essential to sovereignty. It is so recognized by the VFA. The agreement that is spoken of in the VFA is solely about the confinement or detention facility run by
46 47

Which incidentally is just one side of an issue and therefore necessarily self-serving. Missouri, Kansas & Texas Railroad Co. v. May, 194 U.S. 267, 270.

Philippine authorities.48 There is no provision about any agreement on custody. Paragraph 6 of Article V allows limited custody and limited obligation to hold and produce but does not stipulate the need for any agreement to put limited custody into effect. It operates simply on a shall immediately reside xxx xxx if they so request basis. The temporary commitment of the petitioner to the MCJ is not in violation of the VFA. It is in accord with municipal law and penal statutes and with the VFA, since there is as yet no agreement about the confinement or detention facility. All the agreements that have been presented to the courts pertain to custody and not to a confinement or detention facility as stipulated in paragraph 10. The agreed-upon facility may well be in the U.S. Embassy, or in any other place within the Philippine territory.49 For as long as it is a confinement or detention by Philippine authorities, such an agreement shall be in apt compliance with the letter and spirit of the VFA. The rights enumerated in paragraph 9, Article V shall be accorded all inmates in such a facility, to include the visitation rights and material assistance stated in paragraph 10 of the same Article. The laws and rules pertaining to the confinement or detention of prisoners to be enforced within the facility shall be in accordance with the principles of international law to which both the GUSA and GRP adhere. The GRP shall give notice to the GUSA of any and all conditions related to the inmates confinement or any changes that may be undertaken and shall allow access at all times to appropriate GUSA authorities to ensure compliance by both state parties with the provisions of the VFA as well as with the aforesaid principles of international law. It must be emphasized that it is not the physical lay out of the agreed-on confinement or detention facility, or the stringency
Paragraph 10; related to paragraphs 9 and 4, all of Article V of the VFA. Say, in the Seafront Property also along Roxas Boulevard; in old Fort Stotsenburg, Pampanga; Subic Bay, Zambales; or in former Camp John Hay.
48 49

of security (e.g. 24/7 roving guard duty by a platoon of U.S. Marines), but the simple fact that it be run by Philippine authorities that makes any such agreement fully compliant with the VFA. We began our resolution with a quotation from Article II of the VFA, about Respect for Law and we return to it to ask: Have we been able to enforce this seemingly innocuous provision? Have we been able to appreciate the VFA in a manner that is consistent with the principles of sovereignty? We close by reiterating the following declaration of principles and state policies: The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.50 The prime duty of Government is to serve and protect the people.51 The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.52 WHEREFORE, all of the foregoing considered, we resolve to DISMISS the petition and all other motions that attach thereto for lack of merit. IT IS SO ORDERED.

Section 1, Article II of the Constitution of the Republic of the Philippines. (1987) Section 4, ibid 52 Section 7, ibid.
50 51

APOLINARIO D. BRUSELAS, JR. Associate Justice WE CONCUR:

JOSEFINA GUEVARA-SALONGA Associate Justice

FERNANDA LAMPAS-PERALTA Associate Justice