THE government’s hands are tied over the issue of getting custody of convicted rapist Lance Cpl. Daniel Smith, Press Secretary Cerge Remonde said, because the sentence against the American serviceman is still pending before the Court of Appeals.

Smith was convicted in December 2006 of raping a Filipina, known only as Nicole, in Subic, Zambales, on Nov. 1, 2005. The US Embassy then took custody of the serviceman under an executive agreement signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney.

Nicole’s lawyers challenged the arrangement, and the Supreme Court on Wednesday ruled that the deal violated the Visiting Forces Agreement between the Philippines and the United States. That meant Smith should be moved to a Philippine jail.

But Remonde said the ruling ordering the government to renegotiate the executive agreement posed a problem because of Smith’s pending appeal before the appellate court’s 12th Division.

“The problem with the Supreme Court decision… is that the decision [convicting Smith] is not yet final and executory,” Remonde said.

“What would happen if the Court of Appeals reversed the decision of the Makati regional trial court? Malacañang actually has its hands tied on the issue.”

Remonde said Malacañang was “not in a hurry” to have Smith transferred to a Philippine jail until his conviction became final.

“When the decision becomes final, I would like to assure you that we will exhaust all possible remedies to enforce the sovereignty of the Philippine government,” he said. Joyce Pangco Pañares with Jed Gregorio and Rey E. Requejo