By Joyce Pangco Pa?ares

MALACA?ANG is open to a compromise agreement on the custody of convicted rapist Lance Cpl. Daniel Smith, saying that the Supreme Court ruling ordering his immediate transfer to a Philippine facility must be implemented without violating the provisions of the Visiting Forces Agreement.

Deputy presidential spokesman Lorelei Fajardo said the compromise agreement will deal largely on when Smith should be transferred to a Philippine jail facility from the US Embassy where he has been detained since his conviction in 2005.

?There will be some kind of compromise agreement to come to terms on what will be best for ?Nicole? [the rape victim]. The VFA is not about Smith and we have not abandoned ?Nicole? and so the treaty should be treated separately,? Fajardo said.

Even as an agreement is still being worked out with Washington, Fajardo said, the VFA provides transfer of custody only when a conviction has become final.

?We will follow the Supreme Court ruling, but we also have to take note that the conviction of Smith is not yet final and executory. It is still on appeal before the Court of Appeals,? she said.

?Our hands are tied. The VFA provides that only when a conviction has become final can we have custody of Smith. We have to follow the VFA because it is an existing agreement, and this is also the reason why we sought a motion for clarification on the Supreme Court ruling,? Fajardo added.

Article V Section 6 of the treaty on criminal jurisdiction states that ?the custody of the US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities from the commission of the offense until completion of all judicial proceedings.?

In the same section, the VFA provides that ?in extraordinary cases, the Philippine government shall present its position to the United States government regarding custody, which the United States government shall take into full account.?

But the term ?extraordinary? was not defined in the VFA to include heinous crimes like rape.

Fajardo also expressed caution on calls to abolish the treaty even as she maintained that the Palace is open to moves from the Senate to renegotiate the VFA to amend certain provisions that are viewed as lopsided toward the US.

On Saturday, US President Barack Obama called up President Arroyo to discuss the VFA, among other issues of concern to the two countries.

?They [Obama and Arroyo] reaffirmed their commitment to the long-standing US-Philippines alliance, including the Visiting Forces Agreement, which remains critical to the bilateral relationship and our strategic interests,? a statement released by the White House over the weekend read.