JANUARY 2, 2007 (STAR) By Paolo Romero - Malacañang officials denied yesterday that a constitutional crisis looms, as warned by a group of activist lawyers, with the transfer of convicted rapist Lance Corporal Daniel Smith to the custody of the US Embassy.

"What constitutional crisis are they talking about? The executive branch had simply complied with a treaty obligation," Solicitor General Antonio Nachura told The STAR.

The Philippine government, represented by Nachura, informed the Court of Appeals (CA) that it wants Smith "permanently" transferred to a room measuring 10 to 12 square feet at the Joint US Military Assistance Group office at the US Embassy.

Reacting to Smith’s transfer, the lawyer for "Nicole," the 23-year-old Filipina who accused Smith of raping her after a night of drinking on Nov. 1, 2005, said she will file criminal complaints against key presidential aides and urged lawmakers to seek President Arroyo’s impeachment.

Solicitor General Antonio Nachura and Press Secretary Ignacio Bunye, in separate interviews, maintained there was nothing unconstitutional in the move of the Department of Interior and Local Governments to transfer Smith from the Makati City jail to the US Embassy last Dec. 29 after getting a supporting legal opinion from Justice Secretary Raul Gonzalez.

Bunye, however, said the warning of the Counsels for the Defense of Liberties (Codal) would be best handled by the executive branch’s lawyers who are directly involved in the Smith case.

"If there is a really an issue over Smith’s transfer, all these critics have to do is seek remedy before the courts," Nachura said. He referred to Article 5, Section 6 of the Visiting Forces Agreement (VFA), which states that custody over any US personnel over whom the Philippines is to exercise jurisdiction resides with the US authorities. Both Philippine and US governments interpret this as having a convicted American soldier remain in US custody while the judge that convicted Smith believes it does not hold true after a conviction.

Gonzalez described Codal’s warnings as "foolish" and accused the group’s members as the ones wanting to create a constitutional crisis.

"They want that (constitutional crisis) to happen so that it will cause problems for the administration," Gonzalez told The STAR in a telephone interview. "They’re not legal experts, there are experts in making mountains out of molehills."

Assuming there was some irregularity in the transfer, the courts can easily order Smith’s return to Philippine custody, he said.

"If you are really objective and you will not use too much emotions and bias in dealing with this issue, you know that there is legal basis for the transfer," he said.

Nachura said all the conditions imposed by Makati Judge Benjamin Pozon, who tried, convicted and ordered Smith to be detained at the Makati jail, have been met by the executive branch and the US government, including signing two agreements on custodial rights over the convict.

The agreements were presented to the CA, where the legal issue over Smith’s custody was being heard, and the appellate court took note of it.

"There was no disapproval (from the CA)," Nachura said, stressing that the legal battle over the custody of Smith was no longer with Pozon but with the appeals court.

Because of the CA’s posture, Gonzalez issued a legal opinion that Smith must be in the custody of the US authorities. The legal opinion was the basis for Interior and Local Government Secretary Ronaldo Puno to order the Makati jail to transfer Smith to the US Embassy, he said.

Nachura said the custody case was about the provisions of the VFA while the rape case concerns Philippine laws.

He said the CA will order him to ensure that Smith’s conviction sticks, and that he is expected to reply within 30 days after Smith’s lawyers submit their legal brief. He has yet to meet with Nicole’s lawyers.

Nachura has filed a three-page motion with the CA saying the Philippine government wants Smith transferred "permanently" to a room inside the US Embassy to comply with a Dec. 22 agreement signed by both countries.

Nachura told the CA that the transfer is in consonance with the agreement signed by US Ambassador Kristie Kenney and Foreign Affairs Secretary Alberto Romulo.

Government lawyers argued that the Kenney-Romulo agreement constitutes a "supervening event" that is binding, and that the CA should issue a temporary restraining order on Smith’s continued detention at the Makati jail.

According to the contract, Smith will be detained at the Rowe Building in the US Embassy compound in a "room of approximately 10 to 12 square feet."

"He will be guarded round-the-clock by US military personnel. The Philippine police and jail authorities, under the direct supervision of the DILG, will have access to the place of detention to ensure the US is in compliance with the terms of the VFA," government lawyers said.

Assistant Solicitor General Amy Lazaro-Javier and Associate Solicitor Herxilia Alvarez said this agreement "aptly fulfills the condition prescribed by Judge Pozon."

Nicole’s lawyer, Evalyn Ursua, had accused the Philippine government of committing a "criminal act under our law" by agreeing to transfer Smith to US custody pending his appeal.

Ursua plans to file criminal cases and a petition for contempt before the CA against Gonzalez, Puno, Chief Presidential Legal Counsel Sergio Apostol, and a Cabinet member.

Gonzalez brushed aside the threat of legal action and said the order for Smith’s transfer was not an impeachable offense.

Apostol said Mrs. Arroyo had nothing to do with Smith’s transfer.

"There is no order from Malacañang. She (Mrs. Arroyo) does not even know about this," he said, adding that the DILG and the Bureau of Jail Management and Penology could decide on the matter. — With Aurea Calica, Delon Porcalla, Jose Rodel Clapano, AFP, AP

Chief News Editor: Sol Jose Vanzi

All rights reserved