The Supreme Court (SC) has affirmed with finality the constitutionality of the Visiting Forces Agreement (VFA) between the Philippines and the United States.

In a full court session held recently, the SC threw out several motions questioning the legality of the 12-year old agreement, which allows joint military exercises and activities between the US and Philippine armed forces.

It held that “no substantial arguments” were presented by the petitioners led by former Senate President Jovito Salonga to warrant a reversal of its February 11, 2009 decision upholding the legality of the VFA.

The SC ordered that an “entry of judgment be made in due course.”

Thirteen magistrates, led by Chief Justice Reynato S. Puno, concurred with the ruling. Associate Justices Antonio B. Eduardo Nachura and Diosdado M. Peralta took no part.

In its February 11, 2009 decision, the High Court voted 9-4 to declare as valid the presence of US military personnel in the country in the VFA, saying it is the instrument agreed upon by the two governments to provide for the joint RP-US military exercises.

The ruling stemmed from the case of Marine Lance Cpl. Daniel Smith, who, in 2006, was convicted by a lower court for raping a Filipina in the night of November 1, 2005 in Subic, Zambales. The Court of Appeals later on acquitted Smith.

The VFA came under fire for its alleged lopsided provisions when the Philippine government surrendered custody of Smith to the US embassy even after his conviction, based on a provision in the VFA, which stated that the US embassy would retain custody of American servicemen pending all legal proceedings on any offenses they might have committed.

In its earlier decision, the SC ruled that the executive agreements pertaining to the detention of Smith inside the premises of the US embassy was “not in accordance with the VFA.”

The SC stressed that Smith’s detention at the embassy “is not by Philippine authorities” but in line with Article V, Section 10 of the VFA which provides that “the confinement or detention by Philippine authorities of US personnel shall be carried out in facilities agreed on by appropriate Philippines and US authorities.”

On December 19 and 22, 2006, Foreign Affairs Secretary Alberto G. Romulo and US Ambassador Kristie A. Kenney executed agreements that, pursuant to the VFA, Smith be returned to US military custody and be detained at the first floor, Rowe Building, US embassy compound.

Several petitions were filed with the SC challenging not only the VFA but particularly the transfer of Smith’s custody to the US government.

Among the petitioners were former Senate President Jovito Salonga and former Sen. Wigberto Tañada, several lawyers’ groups, and the Bagong Alyansang Makabayan, Bayan Muna, Gabriela, and the Public Interest Law Center.

Named respondents in the cases were President Arroyo, Executive Secretary Eduardo Ermita, Romulo, Justice Secretary Raul Gonzalez, and Interior and Local Governments Secretary Ronaldo Puno.

In its petition, Salonga’s group argued that the Romulo-Kenney agreements transferring Smith’s custody to US authorities are unconstitutional. The group said the VFA violates the exclusive power of the Supreme Court to promulgate rules and procedures in all courts under the Constitution.

It pointed out that the issue of custody of an accused or convict is a matter of procedure which, under the Constitution, is within the realm of judicial power. (Edmer F. Panesa)