Applications to the European Court of Justice against "Terrorist" Listing by the Council of the European Union, 2002

Intervention of the National Democratic Front

Application for leave to intervene

(Article 40 of the Statute of the Court ; Article 115 of the Rules of Procedure of the Court of First Instance)

in the case T-47/03

Jose Maria SISON
against
Council of the European Union

The Intervenors are : 1. The Negotiating Panel of the National Democratic Front of the Philippines in Peace Negotiation with the Government of the Republic of the Philippines c/o NDF International Information Office, Amsterdamsestraatweg 50, 3513 AG Utrecht, The Netherlands

2. Luis G. JALANDONI (same address)

3. Fidel V. AGCAOILI (same address)

4. Maria Consuelo (Coni) K. LEDESMA (same address)


For this case represented by mr. Bernard (B. E. J. M. ) TOMLOW, counsel,
office at Prins Hendriklaan 21, 3583 EB Utrecht, The Netherlands,


In accordance with the Rules of Procedure of the Court, the applicants declare that they accept notifications at the following address : by e-mail at [email protected] and by fax at the n° 0031302511328.
In accordance with the Rules of Procedure of the Court, the applicants declare that they accept notifications by post at the following address :
Bernard TOMLOW,Prins Hendriklaan 21, 3583 EB Utrecht,
The Netherlands


A. Form of order sought, by one or more of the parties, in support of which the
intervenors are applying for leave to intervene;

1. October 28, 2002, the Council adopted the decision 2002/848/EC by which Mr. Jose Maria SISON as a natural person (Article 1, 1.9. « SISON, Jose Maria (aka Armando Liwanag, aka Joma, in charge of NPA) born 8.2.1939 in Cabugao, Philippines ») and the New People's Army (NPA), as a group or entity presumed erroneously to be linked to Prof. SISON (Article 1, 2. 13. « New Peoples Army (NPA), Philippines, linked to Sison Jose Maria C. (aka Armando Liwanag, aka Joma, in charge of NPA »), were included in the list pertinent to art. 2 § 3 of Regulation 2580/2001. This decision drew up the fourth list adopted under the terms of Regulation 2580/2001.

2. December 12, 2002, the Council adopted the decision 2002/974/EC repealing the previous decision 2002/848/EC. The new decision mentioned José Maria Sison under art. 1, 1.25 and 2.19 in identical terms as the previous decision. This is the act being contested in the case T-47/03 insofar as it includes Prof. Jose Maria Sison in the list and thereby violates his democratic rights and interests.

3. April 26, 2003, the notice about the application for annulment by Jose Maria Sison was published in the Official Journal of the EU (OJ C 101, pp 41-42). This Application is being filed within the reglementary period provided for in Article 115 para. 1 of the Rules of procedure of the Court of First Instance which provides that: « An application to intervene must be made either within six weeks of the publication of the notice referred to in Article 24(6) or, subject to Article 116(6), before the decision to open the oral procedure as provided for in Article 53 »

4. The applicants support Jose Maria SISON in his application to:

- partially annul, on the basis of Article 230, EC Treaty, Council Decision 2002/974/EC of 12 December 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/848/EC (OJ L 337, p 85) and more specifically annul Article 1, point 1.25 of said decision and annul partially Article 1 point 2.14 of said decision insofar as it mentions the name of Jose Maria SISON

- declare illegal, on the basis of Article 241, EC treaty, Council Regulation EC 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ L 344, p 70-75).

- require the respondent party to bear the costs of suit.


B. Statement of the circumstances establishing the right to intervene

I. The role of Prof. Jose Maria SISON as the Chief Political Consultant of the Negotiating Panel of the NDFP in Peace Negotiations with the Government of the Republic of the Philippines (GRP)

5. Since 1990, Prof. Jose Maria SISON has been a key figure as the Chief Political Consultant of the National Democratic Front of the Philippines (NDFP) Negotiating Panel in the peace negotiations with the Government of the Republic of the Philippines (GRP). He is as witness a signatory in all the major bilateral agreements since the Joint Declaration of The Hague of September 1992 between the said parties. As NDFP Negotiating Panel Chief Political Consultant, he is covered by the GRP-NDFP Joint Agreement on Safety and Immunity Guarantees (JASIG) as well as related agreements thereto, which provide that the role of consultant on any side in the peace negotiations shall at no time be considered by the other side as a criminal act. (Appendix 1 : “10 Years, 10 Agreements”, Pilgrims for Peace, Manila, October 2002, p 30) In its resolutions in 1997 and 1999, the European Parliament has supported the peace negotiations between the GRP and the NDFP. (Appendix 2 : European Parliament resolution n° B4-0601, 0645 and 0686/97 of 17 July 1997; Appendix 3: European Parliament resolution n° B4-1096, 1106, 1147, 1158, and 1160/98 of 14 January 1999) The governments of The Netherlands, Belgium and Norway have hosted and facilitated these negotiations. Prof. Sison has continued to participate as Chief Political Consultant in the peace talks held in Oslo in April, June and September 2001. The European Union has supported these negotiations. (Appendix 4: “European Union welcomes peace talks between gov’t, NDF”, AFP, April 28, 2001 http: //www.inq7.net/brk/2001/apr/28/text/brkpol) During these talks, the mutual legal protection under the Joint Agreement on Safety and Immunity Guarantees (JASIG) was unequivocally recognized as effective, binding, and applicable to Prof. Sison by the GRP (Appendix 5: Letter from the Presidential Adviser on the Peace process, Eduardo R. ERMITA to Mr. Luis JALANDONI, 27 March 2001)

6. The Filipino people and the international community regardless of political beliefs and social class overwhelmingly support the GRP-NDFP peace negotiations. The GRP and the NDFP as parties in the ongoing civil war in the Philippines and in the peace negotiations mutually agreed to address the roots of the armed conflict and to attain a just and lasting peace in The Hague Joint Declaration, a landmark agreement entered into in The Hague, the Netherlands on 1 September 1992.

6.1. The Hague Joint Declaration is considered by the GRP and the NDFP and the Filipino people as a landmark foundation document that gave birth to the on-going peace negotiations. It continues to guide the bilateral talks on the basis of mutual recognition and respect for the principles and organizational integrity of both parties. It was the crucial participation of Prof. Sison during the historic meeting of the GRP and the NDFP in the Hague the Netherlands on August 31 – September 1, 1992 that enabled both parties to resolve the impasse and agree on a compromise formulation on the difficult issue of framework of the peace negotiations. (Appendix 1: pp. 22-23)

7. As NDFP Negotiating Panel Chief Political Consultant, Prof. Sison encouraged the NDFP Negotiating Panel to push the NDFP to make the Unilateral Declaration of Undertaking to Apply the Geneva Conventions and Protocol I in 1996. (Appendix 6: NDFP Unilateral Declaration of Undertaking To Apply the Geneva Conventions of 1949 and Protocol I of 1977, July 1996)

8. He also vigorously helped in the forging of the GRP-NDFP Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law. (Appendix 1, pp. 55-71: Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL), March 16, 1998 in “10 Years, 10 Agreements” (Pilgrims for Peace, Manila, October 2002). On several occasions, he helped the negotiating panels or special representatives of the GRP and the NDFP to agree on temporary ceasefire agreements during the Yuletide and New Year holidays and on the safe and orderly release of prisoners of war in co-operation with the International Committee of the Red Cross (ICRC). All the foregoing acts, all commonly motivated by humanitarian considerations, the protection of civilians and civilian communities and even combatants, and the promotion of human rights – are all incompatible with charges of terrorism.


II. The applicants have a direct and existing interest

II. 1. The relevant case law

9. Under the second paragraph of Article 40 of the Statute of the Court of Justice, the right to intervene in a case before the Court is open to any person establishing an interest in the result of the case.

10. It follows from settled case-law that the concept of an interest in the result of the case for the purposes of that provision is to be understood as a direct and existing interest in the grant of the order sought (Order of the President of the First Chamber of the Court of First Instance in case T-138/98 ACAV v Council [1999] ECR II-1797, paragraph 14).

11. To be allowed to intervene, however, it is not necessary that the applicant is directly and individually concerned by the contested regulations. It is sufficient to ascertain that the applicant has sufficiently proved his direct and existing interest in the grant of the claim for annulment. (Order of the Court of First Instance (Fifth Chamber) of 27 February 2002. Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. v Commission, Case T-139/01. European Court reports 2002 Page II-00799 )


12. For the purposes of granting leave to intervene, the Community judicature ascertains whether those seeking it are directly affected by the contested act and whether their interest in the result of the case is established. Similarly, it is necessary to establish a direct, existing interest in the grant by the Court of the order as sought and not an interest in relation to the pleas in law put forward. The interest necessary in this respect must relate not merely to abstract legal arguments but to the actual form of order sought by a party to the main action. (Order of the President of the Court of 17 June 1997, National Power plc and PowerGen plc v British Coal Corporation and Commission of the European Communities, Joined cases C-151/97 P(I) and C-157/97 P(I). ECR 1997 Page I-03491)


13. Representative associations in cases raising questions of principle liable to affect those members are allowed to intervene (Order of the President of the Court of 28 September 1998, Pharos SA v Commission, Intervention, Case C-151/98 P-I, ECR 1998 Page I-05441) The Negotiating Panel of the NDFP is in this situation.


14. The applicants have a direct and existing interest in the grant by the Court of the order as sought.

The applicants for intervention are the Negotiating Panel of the National Democratic Front of the Philippines and natural persons who are members of it (Appendix 7: Letter from the NDFP National Executive Committee to Mr. Luis JALANDONI of 19 April 2001). They have been conducting peace negotiations between the NDFP and the Government of the Republic of the Philippines since 1992. They have concluded on behalf of the NDFP in the framework of these negotiations 10 agreements on various matters (Appendix 1 : “10 Years, 10 Agreements”, Pilgrims for Peace, Manila, October 2002).

15. As stated above, Prof. Jose Maria Sison played a key role in these negotiations as Chief Political Consultant of the NDFP Negotiating Panel. The Council decision by which Prof. Sison was listed as a person involved in terrorist action or at least facilitating such action has a direct and extremely negative influence on the peace negotiations, on the ability of the NDFP Negotiating Panel to act and therefore on the activity of each of the applicants:


· The labelling of Prof. SISON as a "terrorist" or as a person "facilitating terrorism" reflects inevitably on the whole NDFP Negotiating Panel (point II.2.)

· The Council decision seriously hinders the participation of Prof. Sison in the peace negotiations as Chief Political Consultant (point II.3.)

· The decision to put Prof. Sison's name on a list of persons accused of at least "facilitating terrorism" is a threat to the agreements concluded between the GRP and the NDFP because the Government of the Republic of the Philippines is taking advantage of the demonisation of Prof. Sison as a terrorist to violate these agreements. (point II.4.).

· The main purpose of the listing of Jose Maria Sison as a terrorist is to put pressure on the NDFP in the peace negotiations. (point II. 5.)


II. 2. The labelling of Prof. SISON as a "terrorist" or as a person "facilitating terrorism" reflects inevitably on the whole NDFP-Negotiating Panel

16. The inclusion of the Chief Political Consultant of the NDFP Negotiating Panel in a list of “terrorists” or persons “facilitating terrorism” inevitably reflects on the NDFP and on the applicants, representing the NDFP in the peace negotiations with the Government of the Republic of the Philippines.

17. The patent error of appraisal regarding the nature of the activities of Prof. Sison, on which patent error the Council decision is based, inevitably leads to the same confusion to the public regarding the activity of the NDFP Negotiating Panel.

18. On 6 July 1996, the NDFP, as an act of good faith, issued its Unilateral Declaration of Undertaking to Apply the Geneva Conventions and Protocol I (Appendix 6). In this declaration, the NDFP stated:
“The NDFP undertakes to respect the provisions of the four Geneva Conventions of 1949 and Protocol I of 1977, regarding the conduct of hostilities and the protection of the civilian population and the combatants hors de combat in the armed conflict with the GRP and to regard its obligations under the aforesaid instruments of international humanitarian law as having the force of law among its forces and in the areas under its control.” [page 6; Underscorings supplied.]

The NDFP further stated: “It has deployed the New People’s Army in accordance with the civilized rules of warfare and has informed and trained it accordingly. Even before this declaration, it has complied with the rules of war under international law. It has consciously followed international humanitarian law (…) and is now resolved to assume in good faith rights and responsibilities under the Geneva Conventions and Protocol I. (…)” [page 4; Underscorings supplied]
“The New People's Army (NPA) … is under an effective and responsible command and exercises such control over a significant portion of territory in the Philippines as to be able to carry out sustained and concerted military operations and to implement the Geneva Conventions of 1949 and the Protocols of 1977 additional thereto." [page 2, Underscorings supplied]

19. The NPA has demonstrated its high sense of duty and discipline by following and carrying out the engagement of the NDFP authorities to release the duly-designated prisoners of war, ranging in rank from sergeant to general. In the preparation and implementation of the safe and orderly release procedure, the authorities at the highest levels of leadership of both the GRP and NDFP, the International Committee of the Red Cross (ICRC), religious leaders, human rights advocates and relatives of the prisoners of war have co-operated. The releases have been expressly motivated by international and humanitarian law, specific humanitarian grounds and the desire to perform a goodwill measure for improving the atmosphere for peace negotiations. The NPA never arrested and detained anyone for the purpose of demanding ransom for his or her release or for any other reason or motive that violates international humanitarian law.
20. Moreover, on 16 March 1998 the NDFP and the GRP concluded the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL), which provides for the protection of the civilian population, non-combatants and prisoners of the armed conflict. Upon the conclusion of this agreement, the NDFP consistently insisted that the envisioned Joint Monitoring Committee be operationalized to verify and take action in the cases of human rights violations and violations of international humanitarian law. The NPA has unilaterally undertaken compliance with the CARHRIHL despite the absence of an implementing mechanism.
21. The CARHRIHL, among others, confirms that the armed conflict between the armed forces of the GRP and the NDFP is governed by international humanitarian law. The situation in the Philippines cannot simply be qualified as a domestic police problem. The GRP has used not only police forces and paramilitary groups but also the army, navy and air force against the NPA in more than 34 years of civil war.
22. The European Parliament in several resolutions strongly endorsed and supported the peace negotiations between the GRP and the NDFP (Appendix 2: European Parliament Resolution No. B4-0601, 0645 and 0686/97 of 17 July 1997; Appendix 3: European Parliament Resolution No. B4-1096, 1106, 1147, 1158, and 1160/98 of 14 Janurary 1999). The governments of Belgium, the Netherlands and Norway have encouraged and facilitated in varying degrees the peace negotiations carried out by the NDFP with the GRP.

23. The unjust and unfounded listing of Prof. Jose Maria SISON who is the Chief Political Consultant of the NDFP Negotiating Panel as a terrorist reflects adversely on the applicants and has damaging consequences to their work in the peace negotiations which aims to promote the fundamental political, economic, social and cultural development of the Philippines. The Council is committing therefore a patent error of appraisal.

II. 3. The Council decision seriously hinders the participation of Prof. Sison in the peace negotiations as Chief Political Consultant.

24. As a result of the decision 2002/974/EC and its consequent “demonization” on the person of Prof. Jose Maria Sison, his freedom of movement is severely limited and his personal security is seriously threatened.

Before the unjust listing of Prof. Sison as a terrorist, he applied on several occasions to the Dutch authorities for a laissez-passer to allow him to travel to Norway, where peace negotiations were held in April, June and September 2001. He was then given the laissez-passer so he could travel to Norway and participate in the peace negotiations. However, after the unjust listing as a terrorist, his freedom of movement to travel to Oslo, Norway and to other venues of the peace negotiations outside of the Netherlands has been seriously jeopardized.

COUNCIL COMMON POSITION of 27 December 2001 on combating terrorism (2001/930/CFSP) Official Journal L 344 , 28/12/2001 P. 0090 - 0092 states in Article 10 : "The movement of terrorists or terrorist groups shall be prevented by effective border controls and controls on the issuing of identity papers and travel documents …" and continues in its article 11: "Steps shall be taken to intensify and accelerate the exchange of operational information, especially regarding actions or movements of terrorist persons or networks .."

This Common Position was the basis of the instructions sent by the Dutch Finance Ministry to the customs-authorities.(Appendix 13)

It is therefore clear that the free movement of Prof. Sison, which is absolutely necessary to allow him to participate in peace negotiations or in consultations related to these peace negotiations is very seriously jeopardized.


II. 4. the Government of the Republic of the Philippines is taking advantage of the demonisation of Prof. Sison as a terrorist to violate concluded agreements with the NDFP.

25. The negotiating parties, NDFP on the one hand and the Government of the Republic of the Philippines (GRP) on the other hand, concluded on February 24, 1995 a Joint Agreement on Safety and Immunity Guarantees (JASIG) and on March 16, 1998 the Additional Implementing Rules of the Joint Agreement on Safety and Immunity Guarantees pertaining to the Security of Personnel and Consultations in Furtherance of the Peace Negotiations (Appendix 1, p 30 and p 72) . These agreements provide the negotiators, consultants and other personnel involved in the peace negotiations with security and immunity guarantees. In accordance with the JASIG, the Office of the President of the Philippines granted certification documents to Prof. Sison during the peace talks stating that Prof Sison "is entitled to the safety and immunity guarantees as provided under the Joint Agreement on Safety and Immunity Guarantees (JASIG) for the duration of the peace negotiations. You are hereby required to facilitate the safe conduct and free passage of the above named person" (Appendix 8: Certification document signed by Silvestre H. BELLO III; Appendix 9: Certification document signed by Howard Q. DEE)

26. The decision to put Prof. Sison's name on a list of persons accused of at least "facilitating terrorism" is a threat to and an incitement to the violation of these agreements. The Government of the Republic of the Philippines is already taking advantage of the demonisation of Prof. Sison as a terrorist to violate these agreements (Appendix 12: “Ople warns JASIG will expire if NDF refuse to go back to negotiating table”, Silangan-shimbun, 4 February 2003). Although the European Union is not directly involved in the said agreements, the Council decision provides further opportunity for the Government of the Republic of the Philippines to disregard its obligations under said agreements.


II. 5. The main purpose of the listing of Jose Maria Sison as a terrorist is to put pressure on the NDFP in the peace negotiations.


27. Several statements by officials of the GRP show clearly that Prof. Sison was initially listed in the US as well as in the European Union upon the request of the Government of the Republic of the Philippines. It is undeniable that Prof. Sison was put on the national list of persons allegedly involved in or facilitating terrorist activity in the Netherlands in close co-operation with the US government. Although the peace negotiations have been conducted under the protection of the governments of Norway, Belgium, and the Netherlands through the contested decision, the latter two EU countries are unduly putting their weight in favour of the Government of the Republic of the Philippines to the detriment of the peace negotiations.

28. A clear illustration of this fact was given in January and February 2003, by the Foreign Affairs Secretary of the GRP, Mr. Blas OPLE, who said: “Once there is a peace agreement, I will request the EU, the United States and other countries to delist (the rebels) as terrorists. If they sign, they will no longer be terrorists”. (Appendix 10 : “Reds must sign peace accord to get off terror list--Ople”, Agence France-Presse, February 1, 2003 (http://www.inq7.net/brk/2003/feb/01/brkpol_12-1.htm; Appendix 11: “Terror list may be removed if Reds accept peace”, The Philippine Star, February 25, 2003)

Conclusion

29. There is no doubt about the fact that the Negotiating Panel of the NDFP and its members are directly affected by the listing of Prof. Sison by the decision 2002/974/EC.

As stated above, at least four reasons demonstrate their interest in the outcome of the application:

· The labelling of Prof. SISON as a "terrorist" or as a person "facilitating terrorism" reflects inevitably on the whole NDFP Negotiating Panel (point II.2.)

· The Council decision seriously hinders the participation of Prof. Sison in the peace negotiations as Chief Political Consultant (point II.3.)

· The decision to put Prof. Sison's name on a list of persons accused of at least "facilitating terrorism" is a threat to the agreements concluded between the GRP and the NDFP because the Government of the Republic of the Philippines is taking advantage of the demonisation of Prof. Sison as a terrorist to violate these agreements. (point II.4.).

· The main purpose of the listing of Jose Maria Sison as a terrorist is to put pressure on the NDFP in the peace negotiations. (point II. 5.)

For all the reasons stated above, the applicants have sufficiently proved their direct and existing interest in the grant of the claim for annulment of the decision 2002/974/EC.


PRONOUNCEMENT
By these means,
the applicants request the Honorable Court, to declare this application for intervention admissible and therefore to allow them to intervene in the case n. T-47/03 of Jose Maria Sison against the Council of the European Union.


For the applicants,

their counsel,

Bernard TOMLOW


Inventory of appendixes


1) “10 Years, 10 Agreements” (Pilgrims for Peace, Manila, October 2002), mentioned on pp. 2, 3, 4.

2) European Parliament Resolution n° B4-0601, 0645 and 0686/97 of 17 July 1997, mentioned on pp. 2, 6.

3) European Parliament Resolution n° B4-1096, 1106, 1147, 1158, and 1160/98 of 14 January 1999, mentioned on pp. 2, 6.

4) “European Union welcomes peace talks between gov’t, NDF”, AFP, April 28, 2001 (http: //www.inq7.net/brk/2001/apr/28/text/brkpol) , mentioned on p. 2.

5) Letter from the Presidential Adviser on the Peace process, Eduardo R. ERMITA to Mr. Luis JALANDONI, 27 March 2001, mentioned on p. 2.

6) NDFP Declaration Undertaking to apply the Geneva Conventions of 1949 and Protocol I of 1977 (July 1996) , mentioned on p. 3.

7) Letter from the NDFP National Executive Committee to Mr. Luis JALANDONI of 19 April 2001, mentioned on p. 4.

8) Certification document signed by Silvestre H. BELLO III for Jose Maria SISON as Chief Political Consultant of the Negotiating Panel of the NDFP, mentioned on p. 7.

9) Certification document signed by Howard Q. DEE for Jose Maria SISON as Chief Political Consultant of the Negotiating Panel of the NDFP, mentioned on p. 7.

10) “Reds must sign peace accord to get off terror list--Ople”, Agence France-Presse, February 1, 2003 (http://www.inq7.net/brk/2003/feb/01/brkpol_12-1.htm) , mentioned on p. 8.

11) “Terror tag may be removed if Reds accept peace”, The Philippine Star, February 25, 2003, mentioned on p. 8.

12) “Ople warns JASIG will expire if NDF refuse to go back to negotiating table”, Silangan-shimbun, 4 February 2003 , mentioned on p. 7.

13) Telefaxbericht Ministerie van Financien, Directoraat Generaal voor Fiscale Zaken 's-Gravenhage, 5 November 2002, mentioned on p. 7. This telefax instruction to the Douane and heads of district douane followed a similar instruction from the same office, dated 29 August 2002.