While negotiations between Philippine and US authorities over the custody of a US soldier convicted of rape in the Philippines have not started, Justice Secretary Raul Gonzalez said Thursday that Philippine custody can be implemented in the US.

Gonzalez said a "vague" phrase in the ruling of the Supreme Court (SC) on the custody of convicted rapist US Marine Lance Corporal Daniel Smith could pave the way for his detention in the United States.

The SC ruled that Smith--convicted in 2006 for raping a Filipina in Subic bay--should be detained “under Philippine authorities.”

Gonzalez said this could mean that embassies and mission-offices, including the Philippine embassy in the United States, may qualify as possible places for the detention of Smith.

"The Philippine embassy in Washington is Philippine territory, the Philippine Mission in UN [United Nations] in New York. Anybody inside that is under our authority, that's why embassies can be used for asylum," said Gonzalez.

Gonzalez’s opinion is contained in a resource paper he prepared for a postponed Senate hearing on the issue.

When asked if his opinion was “unpatriotic,” Gonzalez stood firm.

"I’m talking of a legal situation here. If I'm talking of something that's not legally defensible, then I have no business staying here," he said.

Gonzalez added that a motion for clarification should be filed with the high court since the debate over custody is not yet over.

Palace to seek clarification

Meanwhile, an official of the Philippine executive branch said it will not wait for the conviction of Smith to become final before renegotiating the custodial arrangements with US representatives.

Foreign Affairs spokesperson Bayani Mangibin insisted that the Philippine government had merely complied with the provisions of the VFA on custodial arrangements, pending the termination of judicial proceedings, when it handed over Smith for detention at the US embassy compound in Manila.

Mangibin noted that this is allowed in the VFA, and it is a commitment the Philippines had to follow.

Mangibin said the issue on when judicial proceedings are considered terminated remains, which is why Malacañang will seek a clarification from the high court on the custodial agreement.

He said the ruling on this is critical in deciding where Smith will be confined while waiting for the conviction to be rendered final.

Smith’s case is currently on appeal before the Court of Appeals, which recently-retired SC Justice Adolfo Azcuna ordered hastened when he penned the SC ruling on the VFA.

Aside from the consultations of both countries with their own teams of experts on international law, other factors could affect the time frame on the talks over Smith’s custody.

Mangibin said these include the motion for clarification Malacañang will file as well as an expected petition from the rape complainant, “Nicole”.

'Not intent of SC decision'

The lawyer of rape victim “Nicole” meanwhile contested Gonzalez’s opinion that Smith can be detained in the US.

“No it doesn't apply here. Malinaw intent ng Supreme Court decision. Ilagay si Daniel Smith sa custody ng Pilipinas sa isang detention facility…. Sabi ng SC kailangan nasa detention facility ng Pilipinas. Malinaw kung ano ibig sabihin - hindi embassy or consulate. Ang detention facility ng RP nasa Pilipinas,” said Ursua.

(No it doesn't apply here. The intent in the Supreme Court decision is clear. Place Daniel Smithin Philippine custody in a detention facility… The SC said the detention facility should be in the Philippines. The meaning is clear – not embassy or consulate. The detention facility of RP in the Philippines.)

She said Gonzalez’s opinion if implemented would violate the intent and language of the SC decision.

“Malinaw intent ng decision. Ibig sabihin ng pagtansfer sa Philippine custody, para ilagay si Daniel Smith sa reach ng courts natin at iyan ang regular na procedure sa lahat ng criminal cases,” explained Ursua.

(The decision’s intent is clear. It means the transfer to Philippine custody to place Daniel Smith in the reach of our courts and that is a regular procedure in all criminal cases.)

Ursua also said the idea of detaining Smith abroad in a Philippine consulate or embassy came from Smith’s lawyer who, she said, got it from US embassy officials.

“Ang simula ng idea na ito sa abugado ni Smith. Kay Attorney [Jose] Justiniano and sinabi niya ito sa isang interview. Naalala ko sinabi niya na pwedeng interpret SC decision na puwede detain sa RP consulate abroad. The fact sinabi ‘yon ni Justinano galing din ‘yon sa US embassy. Ibig sabihin he’s getting that from the embassy,” said “Nicole’s” lawyer.

(The start of this idea came from Smith’s lawyer. From Attorney [Jose] Justiniano and he said it in an interview. I remember he said that the SC decision can be interpreted to mean he can be detained in an RP consulate abroad. The fact that Justiniano said it means it came from the US embassy. It means he’s getting that from the embassy.)

Ursua also lambasted officials from the Philippine’s executive branch. She listed points indicating the “continuous betrayal” of her client by government officials by favoring Smith and the US government..

“Remember when [Makati Regional Trial Court] Judge [Benjamin] Pozon ordered na dapat sa Makati City jail si Smith and dapat mag-agree sila where sa Pilipinas siya, in-interpret nila ito, vague, pwede raw sa US embassy. In other words consistent para paboran si Smith at ‘yong US government,” said Ursua.

(Remember when [Makati Regional Trial Court] Judge [Benjamin] Pozon ordered that Smith should be in Makati City jail and that they should agree where in the Philippines he should be, they interpreted this as vague, he can be at the US embassy. In other words consistent to favor Smith and the US government.)

She alleged the lack of support by the government to rape victim “Nicole” during the trial and the prosecution’s difficulty to win the case and now Malacañang’s move to seek clarification on the SC decision and Gonzalez’s opinion.

“Lahat ng ginawa ng gubyerno in favor of Smith sa kasalukuyan. ‘Pag tiningnan mo Malacañang mula ES [Executive Secretary Eduardo Ermita], [Sec. Cerge] Remonde, Gonzalez lahat ng tao ng Malacañang - Hindi namin bibigay si Smith,” said Ursua.

(Everything the government is presently doing is in favor of Smith. If you look at Malacañang from ES [Executive Secretary Eduardo Ermita], [Sec. Cerge] Remonde, Gonzalez, everybody in Malacañang - We will not give Smith.)

Senate hearing postponed

Sen. Miriam Defensor Santiago meanwhile said Thursday that the Senate may start holding the hearing on Smith's case and on the Visiting Forces Agreement (VFA) next month.

The hearing, which was set on February 19, was cancelled.

“We had to postpone the hearing because it was only meant to enlighten the senators. Experts are hesitant to express opinion for lack of time. We have no choice. Initially, we intend to just determine how to implement the SC decision that Smith should be transferred, but now, there's also the question on VFA," said Santiago.

She said she may not be the one to preside in the hearings since she will be taking a leave effective Thursday, which may last a month.

Santiago said the experts who were invited for the Senate hearing would not want to give a “half-baked opinion." They want more time to study whether we should now terminate the VFA or we should allow it to continue, she said.

Santiago said all the Senate can do is to make a recommendation to President Arroyo.

"The most we can do is for the Senate to pass a resolution, and that resolution would be a mere discretionary on the part of the President,” said Santiago. -- With reports from Marieton Pacheco, RG Cruz and Maricar Bautista, ABS-CBN News