‘GMA has power to turn over Smith’

President Arroyo’s chief legal adviser said yesterday that she has the authority to order the transfer of convicted rapist US Marine Lance Corporal Daniel Smith from the Makati City jail to the US Embassy.

"We are the jailer so we can decide where to detain a convicted criminal,’’ Presidential Legal Counsel Sergio Apostol told reporters at a press briefing at the Sulo Hotel in Quezon City. And if Mrs. Arroyo indeed ordered Smith’s transfer to the US Embassy, the court would not be able to do anything but "cite the executive department for contempt.’’

Apostol also said the US’ cancellation of its annual war exercises with the Philippines will have an adverse effect on weapons handling and combat readiness of Filipino troops.

The US announced on Friday the cancellation of the Balikatan war games after its embassy failed to regain custody of Smith.

"The training of our troops particularly in handling of modern weapons will be affected,’’ Apostol said.

Makati Regional Trial Court Judge Benjamin Pozon sentenced Smith to 40 years in prison for raping a Filipina, publicly known as "Nicole,’’ in Subic more than a year ago.

Pozon later rejected pleas by Smith’s lawyers that the convicted Marine be placed under the custody of the US Embassy, as stipulated in the Visiting Forces Agreement (VFA), while an appeal on his case is being heard.

In rejecting US Embassy custody for Smith, Pozon said the VFA provision applies only during the judicial proceedings in the trial and expires upon a defendant’s conviction, regardless of a pending appeal.

But Apostol said the executive department ultimately has the authority over a criminal in the custody of the Bureau of Jail Management and Penology (BJMP).

"It’s the executive department who will implement the detention of convicted prisoners as provided for by the law creating the Bureau of Jail Management and Penology,’’ he said, adding that the Makati City jail is under the BJMP.

Apostol said that Smith, who was convicted of an unbailable offense, should have been brought to the National Penitentiary in Muntinlupa instead.

"But the judge went beyond the normal process and ordered the detention of Smith at the Makati City jail, which is under the jurisdiction of BJMP,’’ he said.

Apostol stressed that the executive department, through the Department of Justice or the Department of the Interior and Local Government, has the final say on the detention of people convicted by the lower courts.

But Apostol said the government respects Pozon’s decision and would rather file an appeal with the Supreme Court.

"The executive department respects the judiciary so we are bringing the case to the higher court," Apostol said. He said the VFA should supersede the court order on the detention of Smith.