In its petition, the government said Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney signed an agreement on Dec. 18, 2006 for Lance Corporal Daniel Smith to be turned over to the US embassy.
"The government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to the US military custody at the US Embassy in Manila," read the petition.
Romulo and Kenney signed the agreement for US custody of Smith after Judge Benjamin Pozon of the Makati Regional Trial Court questioned the authority of Justice Secretary Raul Gonzalez and Chief State Prosecutor Jovencito Zuño, who have signed the same agreement with Kenney.
Pozon said neither Gonzalez nor Zuño is the "appropriate" Philippine authority that can legally enter into such an agreement and ask for transfer of custody because "the function legally belongs to President Arroyo or the DFA Secretary."
Executive Secretary Eduardo Ermita said Solicitor General Antonio Eduardo Nachura submitted the manifestation to the CA to show that the Philippines and the US have agreed on the custody of Smith based on the Visiting Forces Agreement.
"The Philippine government is doing this to abide by treaty commitments," he said.
"(The agreement states the Philippines) allows (Smith’s transfer to the custody of the Americans (upon the request of the US). I hope that the agreement will get a favorable ruling from the Court of Appeals on the transfer of Smith’s custody."
In a telephone interview, Nachura said the agreement between Romulo and Kenny is proof that the US had already requested custody of Smith in compliance with the VFA.
"We filed this afternoon a manifestation and motion where we merely attached the Dec. 19 agreement signed by the DFA and US Ambassador Kristie Kenny respecting the provisions of the Visiting Forces Agreement," he said.
Nachura said under the VFA the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.
"The US authority retains such custody until all judicial proceedings against Smith shall have terminated, except when the US authorities themselves, in the meantime, revoke it," he said.
"As it turned out, however, it was respondent judge who unjustly assumed and exercised this prerogative of revocation as he did so unilaterally despite the pending judicial proceedings against Smith."
Nachura said Pozon cannot restrict the definition of such judicial proceedings as including only the final state.
"Indeed, when the law does not distinguish, courts should not distinguish," he said.
"Additionally, courts are only mandated to interpret the law, not to amend or modify it. In this case, respondent judge clearly went beyond the plain language of the law and engaged in judicial legislation."
Smith is now detained in the stockroom of the Makati City Jail.
Superintendent Delvic Oreiro, Makati City Jail warden, said Smith was moved from the records room to the stockroom for security reasons.
The stockroom, a few feet away from the records room, will give Smith more privacy since it is smaller and he cannot be easily seen from the outside, he added.
Oreiro said the stockroom has no bed because Smith prefers to sleep on the floor using a comforter or mattress.
However, Smith has been provided an electric fan, a small table, and monobloc chairs for use of his lawyers and visitors, he added.
Oreiro said Smith is not enjoying special treatment at the city jail.
US Marine guards are working in shifts to look after Smith and that jail guards are assigned to watch him and his room on a 24-hour basis, he added.
Oreiro said Smith spends his days reading letters and books or listening to songs using an MP3 player when he is awake and when he is not talking to his lawyers.
Smith would have to spend Christmas and the New Year in the Makati jail, which has almost 600 inmates sharing prison cells built to accommodate a maximum of only 300.
Meanwhile, Kenney said she is not in favor of a review of the Visiting Forces Agreement (VFA) at present because the Philippines has not fully complied with the agreement.
In an interview over radio station dzRH, Kenney said: "I think we need to solve this particular issue first because right now we’re having a little difficulty with complying with the VFA so it’d be premature to talk about what will come next."
However, Kenney said the agreement "works very well" since the rape case against Smith was tried in a Philippine court.
"What we’re working to do is to bring both sides into compliance," she said. "It’s an important agreement, it’s important for credibility internationally for the Philippines and the US that we honor that. But we’re working hard to do that together."
Kenney said Philippine compliance with the VFA provision requiring that Smith be turned over to US custody is important for the credibility of the Philippines.
The Philippine and US governments have "agreed" that Smith, as a member of the US military governed by the VFA, should be in US custody, she added.
Pozon also rejected the petition of the US Embassy and the Philippine government to have Smith turned over to US custody.
Last Tuesday, the Court of Appeals denied Smith’s petition for a temporary restraining order on the decision of Pozon to detain him at the Makati jail until the Philippine and US governments agree on a facility where he will serve his sentence.
On Dec. 4, Smith was convicted of raping a woman now known only as "Nicole" inside a moving van at Subic Bay Freeport on the night of Nov. 1 last year. - Michael Punongbayan, Aurea Calica