The recantation of Subic rape victim "Nicole" will not affect a court case questioning the constitutionality of a mutual defense treaty between the United States and the Philippines, former Senate President Jovito Salonga and Prof. Harry Roque said Wednesday.

Salonga and Roque are two of the petitioners in the complaint questioning the constitutionality of the Visiting Forces Agreement. The two said Nicole's sworn statement is not evidence that she had consensual sex with Lance Corporal Daniel Smith.

"Instead, it is evidence that she has already entered into an out-of-court settlement with the convict, the terms of which are only known to Mr. Smith, his counsel and Nicole," they said in a joint statement.

They also questioned the ethics of Smith's lawyer, Jose Justiniano, for preparing the affidavit of recantation for Nicole without the participation of Nicole's lawyer. "We call on the Supreme Court and the IBP to look into the conduct of this firm and ensure that the legal profession is insulated from similar deplorable conduct in the future," they said.

The petitioners said that while they do not begrudge Nicole for entering into an out-of-court settlement, they also said the case will not affect their petition to abrogate the VFA.

"We filed our petition separate and distinct from Nicole in our capacity as citizens suing to impugn an agreement that violates our constitution. When this case was scheduled by the high court for oral arguments, Nicole was not a party to the case and was not notified of the oral arguments," they said.

They said Nicole's counsel, Evalyn Ursua, later asked the Supreme Court to participate in the oral arguments.

Salonga and Roque said the VFA seeks to re-establish the presence of US troops in the country contrary to the rejection by the Philippine Senate in 1992 of proposals then to extend the US-Philippines Military Bases Agreement.

They also pointed out that the VFA allowed the US to give special treatment to American servicemen already convicted of crimes under Philippine law.

"The lessons learned from the case of Nicole is very clear: unless abrogated, the VFA treats Filipinos as second class citizens in their own country. The message should be very clear to all Filipinos: under the VFA, American Servicemen committing non-service related offenses such as rape, could be accorded impunity as their punishment could consist of alleged detention in airconditioned facilities complete with a gym and internet access, and by Manila bay at that!" they said.

Recantation

In a statement released Tuesday, Nicole cast doubt on on her previous recollection that Smith had forced himself on her against her will.

"I kept on asking myself: If Daniel Smith wanted to rape me, why would he carry me out of the ... club using the main entrance in full view of the security guards and other customers?" the statement read.

Smith, 25, was convicted to 40 years in prison in December 2006 of raping the young Filipina at the back of a van in the company of fellow US marines in November 2005.

The mother said her daughter had been traumatized by the publicity during and after the trial, and said she chose to escape by going to live with her American boyfriend in the United States.

The mother denied her daughter had acted under pressure from the US embassy, which has custody of the marine.

"That was her own decision," the mother said. "The whole family is supporting her."

Justice Secretary Raul Gonzalez said he expected Smith to use the woman's new deposition in his appeal but insisted that the recantation had no bearing on the case.

"I don't think it will affect (the case) because you cannot compromise anymore after conviction," Gonzalez told reporters.

Even if Smith and the woman had signed a settlement, "you cannot undo the judgment of the (lower court) judge," Gonzalez said.

Foreign Affairs Spokesman Eduardo Malaya told reporters the Philippine government would "look to the courts for their evaluation and decision" on the unresolved issue of custody over Smith.

The Supreme Court ordered Manila last month to arrest Smith. The two countries are negotiating a new agreement.

The case had fuelled the Filipino left's efforts to get Manila, a former US colony, to walk away from a visiting forces agreement covering the legal status of US troops taking part in military exercises in the Philippines. With Agence France-Presse