By Rey E. Requejo

The case of US Lance Cpl. Daniel Smith drags on after substantive points came up on whether or not the convicted rapist will remain in the custody of the United States Embassy or be transferred to the New Bilibid Prison.

The Supreme court is now requiring parties, including the Office of the Solicitor General, to submit within three days a comment on the implication of the recent US Supreme Court decision on Jose Ernesto Medellin v. Texas dated March 25, 2008 vis-a-vis the RP-US Visiting Forces Agreement whose constitutionality is in question.

In the Medellin case, the US high court affirmed the execution of rapist-murderer Medellin, a Mexican, on Aug. 5, 2008 for rape and murder of two teenage girls in 1993.

In 2006, Smith, a participant in the RP-US Balikatan military exercise, was found guilty of raping a Filipino woman on Nov. 1, 2005, and meted out a maximum 40-year imprisonment by presiding Judge Benjamin Pozon of the Makati City Regional Trial Court Branch 139.

Smith?s appeal seeking the reversal of the lower court?s decision is pending before the Court of Appeals.

Authorities allowed the transfer of the convict from the Makati City Jail to the US Embassy, drawing protests from former Senate President Jovito Salonga and the militant Bagong Alyansang Makabayan.

The Medellin case potentially provides a basis for the Supreme Court to rule on whether the government should honor its commitment under the Visiting Forces Agreement to allow Smith to serve his sentence inside the embassy, instead of the state prison in Muntinlupa City.

The US tribunal had dismissed Medellin?s claim that there had been procedural lapses in his conviction because the United States government failed to comply with its obligations under the terms of the Vienna Convention, which required arresting authorities to inform the arrested national?s consulate about his arrest.

In said ruling, the US high court noted that the Vienna Convention cited by Medellin was not enforceable as domestic law unless Congress had enacted statutes implementing it or the treaty itself indicated that it was ?self-executing.?

In its resolution, the SC asked the parties including the Solgen to comment on ?what is the implication on the RP-US VFA Agreement of the US decision in Medellin to the effect that treaty stipulations that are not self-executory can only be enforced pursuant to legislation to carry them into effect and that while treaties may comprise international commitments, they are not domestic law unless Congress has enacted implementing statues or the treaty itself conveys an intention that it be ?self-executory? and is ratified.?

The order came after all parties had submitted their memorandum following oral arguments held last Sept. 19, 2008 on the constitutionality of the Visiting Forces Agreement, particularly the issue of custody over crime offenders, which was fueled by the transfer of Smith to the custody of the US Embassy pending resolution of his appeal.