By Joyce Pangco Pa?ares and Rey E. Requejo

MALACA?ANG has ordered the Foreign Affairs Department to immediately negotiate with the US Embassy to transfer convicted rapist Lance Cpl. Daniel Smith to a Philippine prison.

Smith, convicted of raping a Filipina in November 2005, is appealing his case and has been detained at the US Embassy since his conviction in December 2006.

Lawyers for the victim, identified only as Nicole, challenged this arrangement before the Supreme Court, which yesterday ruled that Smith?s detention at the embassy was a violation of the Visiting Forces Agreement between Manila and Washington.

?Definitely Smith should be transferred, and definitely negotiations will commence immediately,? Executive Secretary Eduardo Ermita said yesterday.

In its ruling, the Supreme Court affirmed the constitutionality of the Visiting Forces Agreement but said a deal signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney that granted the Americans custody over Smith violated the pact.

In a statement issued yesterday, the US Embassy said they ?have taken note? of the Supreme Court decision.

?As it concerns important legal issues, we have referred it to United States government legal experts in Washington,? the brief statement read.

Smith was convicted of raping Nicole in Subic Bay on Nov. 1, 2005. Three co-accused US servicemen were acquitted.

Voting 9-4 with two associate justices inhibiting themselves, the Supreme Court yesterday ordered the foreign affairs secretary to begin negotiations to transfer Smith to a Philippine jail.

The decision, written by Associate Justice Adolfo Azcuna, said Smith?s detention at the embassy was not valid because, under the terms of the Visiting Forces Agreement, a convicted felon must be detained ?under Philippine authorities.?

?It is clear that the parties to the [agreement] recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention,? the Court said.

?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.?

The justices said the agreement signed by Romulo and Kenney that Smith be detained at the US Embassy violated this provision because ?such detention is not by Philippine authorities.?

But the Court said Smith would be allowed to stay at the US Embassy while both sides negotiated his transfer.

Nicole?s private lawyer, Evalyn Ursua, said the Court?s ruling did not specify how long US and Philippine officials could take to negotiate Smith?s transfer.

The Supreme Court said the Visiting Forces Agreement, the ?implementing agreement? of the Philippine-US Mutual Defense Treaty, did not have to be signed by the US Senate. It only had to be submitted to the US Congress within 60 days of its ratification.

?It is for this reason that the US has certified that it recognizes the [agreement] as a binding international agreement, a treaty, and thus substantially complied with the requirements of our Constitution,? the Court said.

The Constitution says foreign military bases will only be allowed on Philippine territory on the strength of a treaty ratified by the Senate.

?Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the constitutional provision resulting from such presence,? the justices said. With Michael Caber