2018 Political Law, Q11

Under Section 6 of Article V (on Criminal Jurisdiction) of the Visiting Forces Agreement (VFA), the custody of a United States (US) personnel who becomes subject to criminal prosecution before a Philippine court shall be with the US military authorities, if the latter so requests. The custody shall begin from the commission of the offense until the completion of all judicial proceedings. However, when requested, the US military authorities shall make the US personnel available to Philippine authorities for any investigative or judicial proceeding relating to the offense with which the person has been charged. In the event that the Philippine judicial proceedings are not completed within one year, the US shall be relieved of any obligation under Section 6.
The constitutionality of Section 6, Article V of the VFA is challenged on two grounds: (1) it nullifies the exclusive power of the Supreme Court to adopt rules of procedure for all courts in the Philippines; and (2) it violates the equal protection clause to the extent that it allows the transfer of the custody of an accused to a foreign power as providing a different rule of procedure for that accused.
Rule on the challenge. (5%)

Quick check

Under international law, what is the basis for granting foreign military personnel distinct custody arrangements under the VFA?

Why does Section 6, Article V of the VFA not violate the Equal Protection Clause?

Does Section 6, Article V of the VFA infringe upon the Supreme Court's procedural rulemaking power?

Under Section 6, Article V of the VFA, how long may US military authorities retain custody of an accused US personnel?

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What occurs under Section 6 of Article V if Philippine judicial proceedings are not completed within one year?

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1. Sovereign Immunity Principle
Under international law and the Visiting Forces Agreement, visiting foreign armed forces permitted to enter the territory of a host state enjoy sovereign immunity from local jurisdiction except to the extent specifically agreed upon in a treaty or executive agreement. Consequently, local procedural rules governing detention and custody do not automatically extend to visiting foreign forces beyond the express provisions of the international treaty. The Supreme Court's constitutional rulemaking power under Article VIII, Section 5(5) is not infringed because sovereign immunity arises from recognized principles of international law.

2. Equal Protection Classification
Under Article III, Section 1 of the 1987 Constitution, the equal protection clause requires that all persons subject to legislation shall be treated alike under like circumstances and conditions. However, the equal protection guarantee does not prohibit reasonable classification based on substantial distinctions that are germane to the purpose of the law. Visiting foreign military personnel stationed temporarily in the country under a bilateral defense treaty possess unique military duties, international obligations, and sovereign immunity status, which provide a substantial legal basis for differential rules regarding criminal custody during judicial proceedings.

3. Treaty Rulemaking Interaction
Under Philippine constitutional law, international treaties and executive agreements ratified in accordance with constitutional procedures form part of the law of the land under the incorporation clause. Provisions in a treaty allocating custody of foreign military personnel to foreign military authorities during local judicial proceedings do not nullify or override the Supreme Court's procedural rulemaking power. Instead, such treaty stipulations regulate international jurisdictional arrangements and sovereign immunities, which operate independently of internal judicial rules of procedure applied in domestic courts.

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The questions reproduced here are the official texts of the Philippine Bar Examinations, published by the Supreme Court. They are reproduced for study purposes.The suggested answers are the author’s own.

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