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Observations to the Council following its letter of 23 April 2007
Jose Maria SISON, born 8/2/1939 in Cabugao, Ilocos Sur, Philippines, whose
domicile is Rooseveltlaan 778, 3526 BK Utrecht, Netherlands.
Represented by:
Jan Fermon, Chaussée de Haecht 55, 1210 Brussels, Belgium (fax: 32.2.215.80.20),
where Jose Maria Sison has domicile for the present procedure.
1. Absence of any new element as those already presented in the pending case
T-47/03 which is still pending at this moment before the Court of First
Instance of the EC
Jose Maria Sison observes that all the elements presented in the letter of
the Council of 23 April 2007 (hereafter referred to as the letter) were
already discussed - and already contradicted in general and in detail- in
the case T-47/03 before the Court of First Instance of the EC, which is
still pending at the moment (hereafter referred as to "the case T-47/03").
The present document summarises the arguments developed in the case T-47/03.
Insofar as it may be necessary due to the letter of the Council of 23 April
2007, Jose Maria Sison refers to all the documents of the proceedings and
the annexes which have been submitted to the Council in the framework of
the said proceedings. These documents have to be considered as fully
reproduced here.
2. Consent of Jose Maria Sison to make the present document public (article
4.4 of Regulation 1049/2001)
Jose Maria Sison considers the present document as public and totally agrees
with a disclosure according to article 4.4 of the regulation 1049/2001. He
likewise considers that no part of the present document is covered by any
exceptions covered by article 4 of the aforementioned regulation. He requests
the Council to make the present document directly accessible to the public
in electronic form and through the public register of the Council in accordance
with articles 11 and 12 of the same regulation 1049/2001.
3. Incompetence of the Council
Jose Maria Sison considers the Council as incompetent to take any decision
in the matter of inclusion of individual in the list based on the Regulation
2580/2001. The EC Treaty does not offer any valid legal base to allow the
Council to adopt such a decision. On October 24, 2002, the European Parliament
expressed "doubts that effective co-ordination of a European anti-terrorism
policy is possible under the present structure of the Union" and urged the
Convention on the Future of Europe to create "the necessary legal basis to
allow the EU to freeze assets and cut off funds of persons, groups and
entities of the EU involved in terrorists acts and included in the EU list."
(Annex 30 of the application in the case T-47/03: "Combating terrorism",
European Parliament Resolution on "Assessment of and prospects for the
EU strategy on terrorism one year after 11 September 2001", October 24,
2002, point 36, P5_TA-PROV (2002) 0518).
As already developed in detail in the proceedings T 47/03, Jose Maria
Sison considers that his inclusion in the list is similar to a criminal
penalty. It follows that only a judicial body should be entitled to take
such a decision, as conclusion of a proceeding that respects all the
guarantees of a fair trial enshrined in article 6 of the European Convention
on Human Rights. The Council of European Union is not an impartial and
independent judicial body, and has thus no jurisdiction in that matter.
4. Refutation of the "motivation" of the Council
The letter of the Council of 23 April 2007 commits an error by introducing
Jose Maria Sison under the alias of Armando Liwanag, chairman of the Central
Committee of the Communist Party of the Philippines (point 1.9 and point 2.13
of article 1). The letter also states erroneously that Prof. Sison is "leader
of the CPP including the NPA" and that he "advocated the use of violence" .
Those erroneous statements will be answered. Then it will be explained how
the Council misinterprets the two Dutch judicial decisions. After that, it
will be demonstrated that the Council does not fulfil at all the legal
requirements to be able to include Jose Maria Sison in the list.
4.1. Erroneous factual allegations of the Council
4.1.1 Jose Maria Sison is not Armando Liwanag
The Council erroneously asserts that Jose Maria Sison is Armando Liwanag.
It does not offer any element of its "motivation". Neither do any elements
presented in the case T47/03 allow the Council to come to such conclusion.
4.1.2. Jose Maria Sison is not the leader or the head of the CPP, including
the NPA
Jose Maria Sison cannot be the leader or the head of the CPP because it is
materially impossible to direct a political party in his situation of exile
for more than 20 years. Since his arrest by the Marcos regime on 10 November
1977, he has been separated from the position of CPP chairman for a continuous
period of more than 29 years, including more than 8 years of imprisonment
under maximum security.
Jose Maria Sison denies that he is in charge of the NPA or that the NPA is
linked to him. It is publicly known that the NPA is in the charge of the
National Operational Command and is not linked in any operational way with
him.
Jose Maria Sison was elected Chairman of the Central Committee of the Communist
Party of the Philippines at its Congress of Re-establishment on 26 December
1968. He held that position until he was arrested on 10 November 1977 by the
Marcos dictatorship and subsequently detained until Marcos fell from power in
l986. From 1977 to 1986, he was always under maximum-security detention and
for more than five years he was in solitary confinement.
It is of public knowledge that Jose Maria Sison lost his position as Chairman
of the Central Committee of the CPP on 10 November 1977 and that Rodolfo Salas
assumed said position that he had vacated as a result of his arrest and detention.
From his release from prison on 5 March 1986 until his departure for Australia
on 31 August 1986, he was kept constantly under surveillance by some agencies
and factions of the military forces and had therefore no opportunity to be
involved in any type of clandestine action.
He was appointed senior research fellow with the rank of associate professor
at the Asian Studies Center of the University of the Philippines. He was
preoccupied with a series of ten written lectures on the Philippine crisis
and responses of the social movement. He chaired the many meetings of the
preparatory committee that established the People's Party. He had daily public
speaking engagements and press interviews.
From September 1986 to September 1988, he was preoccupied with a lecture tour
mainly in universities. He was in the Asia-Pacific region (Australia, New
Zealand, Thailand, Japan, Hongkong and India) from September 1986 to January
1987. Subsequently, he visited twenty West European countries. In twenty-six
countries, he went to some 80 universities. He held meetings of various sizes
with overseas Filipinos and trade unions and visited the offices of various
institutions and organisations.
While Jose Maria Sison was still in Japan in November 1986, the Enrile faction
of the Armed Forces of the Philippines (AFP) carried out its operational plan,
"God Save the Queen", to kill "communist suspects". He was a target of the plan.
In his absence, the military kidnapped, murdered and mutilated the labor leader
Rolando Olalia, chairman of the People's Party that he had helped to establish.
In September 1988 the government of the Philippines, under pressure from some
military factions, cancelled his passport.
For the above mentioned reasons Jose Maria Sison could not return to the
Philippines and was forced to apply for asylum in the Netherlands in October
1988.
For more than 29 years already, including more than eight years of imprisonment
(1977 to 1986) under conditions of maximum security and more than 20 years of
exile (1986 to the present), Jose Maria Sison has not been in any position to
be elected as Chairman of the Central Committee of the CPP and to perform the
functions of leading the central organs and entirety of the CPP on a daily
basis and of presiding over the plenary meetings of the CPP Central Committee,
as required by various provisions of Article V of the CPP Constitution.
During his detention ( 5 years of which were in solitary confinement) Jose
Maria Sison could play no active role in the leadership of the CPP.
On his release he was very actively involved in academic activities and in
the establishment of a legal political party, the People's Party, and
therefore could not take any active position within the CPP.
After his departure from the Philippines, Jose Maria Sison travelled for
several years in different countries and continents of the world (Oceania,
Asia, Europe and Latin America).
Since 1988 he has lived in exile in the Netherlands. Since he filed his
application for political asylum in October 1988 and slowed down on
university lecture tours, he has been preoccupied with research and
writing, promoting Philippine studies, commenting on Philippine affairs,
publishing books and articles, attending activities in the Filipino
community, working and campaigning for his asylum and serving as consultant
of the National Democratic Front of the Philippines (NDFP) in its peace
negotiations with the Government of the Republic of the Philippines.
These various situations and activities in which he was engaged since his
release in 1986 are incompatible with the daily leadership of a clandestine
party as the CPP.
Under section 4 of Article V of the Constitution of the Communist Party
of the Philippines, the Chairman of the Central Committee must be in the
Philippines on a daily basis in order to be able to lead the meetings and
work of the Political Bureau and Executive Committee of the Secretariat
and others central organs. Under section 6 of the same Article, the
Chairman of the Central Committee must be able to preside over the plenum
of the Central Committee once every six months. (See Annex 2 of the
application in the case T-47/03: Article V of the CPP Constitution;
Annex 20: National Democratic Front of the Philippines, National Council,
Memorandum, 27 October 2002)
Jose Maria Sison is more than 29 years removed from the CPP and the NPA
and, as political consultant, he deals with the NDFP Negotiating Panel.
Based on the foregoing points, Prof. Jose Maria Sison who has been
continuously away from the Philippines since 1986, more than 20 years
ago, cannot be the head or the leader of the CPP, neither of the NPA.
4.1.3. The allegations of the Council misrepresenting Jose Maria Sison
as an "advocate of violence" are in flagrant contradiction with his role
in the peace process
Since 1990, Jose Maria Sison has been the chief political consultant of
the National Democratic Front of the Philippines in the peace negotiations
with the government. He is as witness a signatory in all the major
bilateral agreements since the Joint Declaration of The Hague of 1992.
In its resolutions in 1997 and 1999, the European Parliament has supported
the peace negotiations. The governments of The Netherlands, Belgium and
Norway have facilitated these negotiations. (Annex 9 of the application
in the case T-47/03 : "10 Years, 10 Agreements" (Pilgrims for Peace,
Manila, October 2002). 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
(Annex 1 of the intervention of the Negotiating panel of the NDFP in the
case T-47/03 : pp. 22-23).
As a scholar and an analyst of the society, Professor Sison has defended
the right of the Filipino people to stand up against tyranny (e. g. the
Marcos dictatorship), such a right is fully recognised in international
law and by human rights instruments, for example in the preamble of the
Universal Declaration of Human Rights of December 10, 1948.
4.1.4. Jose Maria Sison never gave any instructions related to the
alleged "terrorist attacks" of the NPA
As developed hereabove, Jose Maria Sison is not the head or the
leader of the NPA.
Furthermore, he draws the attention of the Council to the point of
view of the National Democratic Front of the Philippines as developed
in its intervention in the case T- 47/03 arguing in law and in fact
that the activities of the New People's Army (NPA) are to be
considered as action taken in the framework of an internal armed
conflict as defined by the international law and cannot be labelled
as terrorism, as the Council does erroneously.
The said intervention of the Negotiating Panel of the NDFP in the
case T-47/03 has to be considered as fully reproduced here.
4.2. The Council misinterprets the Dutch judicial decisions
concerning Jose Maria Sison
The Council made a totally erroneous interpretation of the
content and the effects of the two cited Dutch decisions about
Jose Maria Sison, stating that:
- "The Legal Uniformity Chamber [Rechtseenheidskamer, REK] of
the District Court in The Hague (Netherlands) confirmed on 11
September 1997 (reg. no. AWB 97/4707 VRWET) decision no. R02.93.2274
(RV 1995, 2) of the Administrative Law Division of the Council of
State on 21 February 1995."
and that :
- The Administrative Law Division of the Council of State came
to the decision that the status of asylum seeker in the Netherlands
was legitimately refused, because the proof was delivered that he
gave leadership - or has tried to give - to the armed wing of the
CPP, the NPA, which is responsible for a great number of terrorist
attacks in the Philippines, and because it also turned out that he
maintains contacts with terrorist organizations throughout the whole
world."
Both assertions of the Council are in total contradiction with the
content of these decisions.
4.2.1 The REK did not "confirm" the decision of the State Council,
with an exception of a point in favour of Jose Maria Sison
First, the Rechtseenheidskamer van de Arrondissementsrechtbank in
Den Haag (hereafter referred as to "the REK") could not "confirm"
the decision of the State Council of 1995 because the decision of
the REK of 1997 had a totally different object from the decision
of the State Council of 1995.
The question in law on which the State Council decided in 1995 was
whether or not the Dutch minister of Justice could apply to Jose
Maria Sison the provision of Article 1 F of the Geneva Refugee
Convention (the so called exclusion clause). The State Council
ruled negatively on this question and recognised the refugee
status of Jose Maria Sison under Article 1 A of the said Refugee
Convention.
The REK of the District Court of the Hague decided in 1997 on a
totally different legal question. The question here was whether
the Dutch Minister of Justice could legally refuse to admit Jose
Maria Sison as a recognised refugee in the Netherlands - in other
words, could legally refuse to grant him a residence permit on
considerations of general interest although he had been recognised
as a refugee. The Council therefore in its letter erroneously
states that the REK "confirmed" the decision of the State Council.
The only point on which the The Hague Court "confirmed" the decision
of the State Council is precisely the point that is in favour of Jose
Maria Sison. The Hague Court stated indeed "On the basis of this
decision [Raad van State 21 February 1995] it must be accepted as
established in law, that the provision of Article 1F of the Refugee
Convention cannot be used against the plaintiff, that the plaintiff
has a well-grounded fear of persecution in the meaning of Article
1A of the Refugee Convention…"
The decision of the REK of the District Court of The Hague invoked
by the Council further states that Jose Maria Sison "has a well-founded
fear of persecution within the meaning of Article 1 A of that
Convention1 and Article 15 of the Aliens Act and Article 3 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) [which] prevents the plaintiff from being removed,
directly or indirectly, to his country of origin".
4.2.2. The Dutch State Council and the The Hague District Court (REK)
did not conclude that Jose Maria Sison was responsible for terrorist
activities in the Philippines
The legal issue submitted to the The Hague Court was in no way any
involvement of Jose Maria Sison in terrorism or in any other type
of criminal actions.
The decision of the District Court of the Hague explicitly states
in paragraph II (7): "The purpose of this action is to determine
whether the disputed decision (of the Minister o Justice), insofar
as it refuses the plaintiff admission as a refugee and the granting
of the residency permit, can be upheld."
More precisely the point submitted to the court was whether the Minister
had the discretionary power not to admit Prof. Sison - although recognised
as a refugee by the decision of the State Council of 1995- and could
refuse to grant him residence "for important reasons arising from the
pubic interest".
The decision of the REK said that the Dutch Minister of Justice could
refuse to admit Jose Maria Sison to the Netherlands as a refugee and
to grant a residence permit on considerations of general interest.
Undoubtedly, the concept of "general interest" is not equivalent to
"committing or facilitating an act of terrorism". In addition to this,
we must emphasize that the Minister as quoted in the decision of the
REK of The Hague District Court did not claim that Jose Maria Sison
poses a risk as regards the public security but referred only to
"important interest of the State of Netherlands, namely the integrity
and credibility of the Netherlands as sovereign state, notably with
regard to its responsibilities towards other states" (Annex 2 to
Council's defence, p 24, paragraph 15).
The fundamental issue of whether or not Jose Maria Sison has committed
or facilitated acts of terrorism or has been implicated in such acts
has never been submitted to, much less passed upon by, any court or
competent authority, including the Raad van State (Council of State)
and the The Hague District Court (REK).
The Raad van State in its 1995 decisions recognized that Jose Maria
Sison is a political refugee under Article 1A of the Refugee
Convention of 1951, nullified the claims and arguments of the
Dutch justice ministry that Jose Maria Sison should be excluded
under Article 1F of the Refugee Convention, affirmed the protection
of Article 3 of the ECHR for Jose Maria Sison and ruled that he
must be admitted as a refugee and granted the permit to reside
in the Netherlands if there is no other country to which he can
transfer without violating Article 3 of ECHR.
The State Council found that the dossiers or materials from the
Dutch secret service that were seen by the judges, but never submitted
to two-sided scrutiny and debate, were "not sufficient evidence for
the fundamental judgment that Jose Maria Sison to that extent has
given direction and carries responsibilities for such activities
that it can be held that there are serious reasons to suppose that
the appellant … has carried out those mentioned crimes".
As it was clearly shown in the case T-47/03, none of the 2 aforecited
decisions was about the involvement of Mr. Sison in any act of
terrorism. The two decisions decided on whether the Dutch Minister
of Justice could
o Exclude M. Sison from the protection he is entitled to receive
as a refugee under art. 1(A) of the Geneva Convention and apply to
him the exclusion clause of art. 1(F) applicable to persons that
have committed war crimes, crimes against humanity or acts contrary
to the aims of the United Nations.
o Refuse residence status to Jose Maria Sison on grounds of
overriding public interest
To the first question the two courts identically and categorically
said that art. 1(F) could not be applied to Prof. Sison and recognised
him as a refugee under art. 1(A) of the Geneva Convention.
To the second question, the Rechtbank however said that the Minister
could take the decision to refuse residence status "on considerations
of overriding public interests" as long as he is not deported to a
country where he is put at risk of ill treatment in violation of
Article 3 of ECHR and where his physical integrity might be in danger.
No factual finding, conclusion or ruling was taken by the State Council
or by the REK to make Prof. Sison liable or culpable for any act of
terrorism.
Thus, the Council's conclusion is diametrically opposed to the judicial
decisions it refers to.
It is also necessary to point out emphatically that, according to the
Minister of External Affairs of the Netherlands, Mr. De Hoop Scheffer,
the Public Prosecutor had concluded that there is no basis even to
start a criminal investigation against Jose Maria Sison (Annex 26
of the application for annulment of the case T-47/03).
4.2.3. The so called contacts with terrorist organisations
In its letter, the Council asserts that Jose Maria Sison would have
"contacts with terrorist organisations all over the world". It should
be noted that in a very peripheral point in the decision of the REK
of the District Court of The Hague, it refers to "indications of
personal contacts between the appellant and representatives of terrorist
organisations" (Annex 2 to Council's defence, p 23, paragraph 11). Such
a vague and unfounded insinuation in an REK decision relating to the
refusal to admit as a refugee and to grant a residence permit to Mr.
Sison on considerations of general interest (and not about any criminal
charge), cannot be regarded as "serious and credible evidence or
clues or a condemnation for acts of terrorism".
The REK had no reason and in fact did not overturn the conclusion
of the Dutch State Council in its 1995 decision that the dossiers
or materials from the Dutch secret service were "not sufficient
evidence for the fundamental judgment that Jose Maria Sison to that
extent has given direction and carries responsibilities for such
activities that it can be held that there are serious reasons to
suppose that the appellant … has carried out those mentioned crimes".
Jose Maria Sison denies having or having had any personal contacts
with any representative of terrorist organisations and which could
be considered in any way as participation in or facilitating an act
of terrorism. Jose Maria Sison calls attention to the fact that he
was never shown any evidence whatsoever regarding his alleged personal
contacts and neither was he given any opportunity to controvert them.
The REK of the District Court of The Hague stated this consideration
on the basis of materials from intelligence and security services
that Jose Maria Sison could not even examine and contest (Annex 2
to Council's defence, p 22, paragraph 6). He could not properly
defend himself because he did not know what the court took into
account in rendering such decision. Such a procedure contravenes
Article 6 of the ECHR in the same way as the contested Council
decision (ECHR, Lüdi v Switzerland, 15 June 1992; ECHR, Barberà,
Messegué, Jabardo v. Spain, 6 December 1988, paragraph 89).
Granting arguendo that Jose Maria Sison could have met a member
of an organisation considered as terrorist by international authorities,
this does not per se prove that he would himself have participated in
or facilitated an act of terrorism. Otherwise, all peace negotiators
including many State leaders pursuing peace negotiations with such
persons should be included on the list.
The decision of the REK of the District Court of The Hague which
is the only element brought in by the Council in its defence, does
not provide the evidence that Jose Maria Sison has committed or
facilitated an act of terrorism and there is thus no factual basis
for the listing of Jose Maria Sison. Never has Jose Maria Sison
been called to any investigation of any alleged act of terrorism
or any other alleged criminal act whatsoever.
4.3. The legal requirements of the common position 2001/931 and
of the Regulation 25801/2001 to include Jose Maria Sison on the
list are not met
Art. 1(4) of common position 2001/931 and art. 2(3) of regulation
2580/2001 set the basic legal requirements that have to be met to
allow the Council to include a person in the list.
These requirements are multiple. "The list shall be drawn up",
says the text
a. On the basis of precise information or material
b. That a decision has been taken by a competent authority in
respect of the persons concerned
c. Concerns instigation of investigations or prosecution
d. For a terrorist act, an attempt to perpetrate, participate
in or facilitate such an act
e. Based on serious and credible evidence or clues or condemnation
for such deeds
These are very strict conditions and the Council does not comply
with any of them in its letter.
4.4.1. No precise information or material presented by the Council
As developed hereabove, the factual allegations presented by the
Council are mere erroneous and baseless allegations and thus do
not comply with the requirements of "precise information or material".
4.4.2. The Dutch decisions cited by the Council have nothing to
do with "investigations or prosecution for a terrorist act"
The decisions of the State Council in 1995 and of the REK in 1997
are taken by "competent authority" but do not at all concern the
"instigation of investigations or prosecution for a terrorist act,
an attempt to perpetrate, participate in or facilitate such an act".
The allegations concerning contacts of Prof. Sison with terrorist
organisations do not meet the legal conditions set out by the community
law to include a person in the list. The text of article 1(4) of the
Common position does not foresee that "contacts" with terrorist
organisations are sufficient. The legal requirement is an investigation
or a conviction for "a terrorist act, an attempt to perpetrate,
participate in or facilitate such an act". Mere contacts are not
mentioned as a legal basis for including someone in the list.
4.4.3. Dutch and US executive decisions cannot offer a legal ground
for the inclusion of Jose Maria Sison in the list
In its letter, the Council also refers to the decision of the government
of the Netherlands published in the Staatscourant 13 august 2002, and to
the US decision following the US Executive Order 13224.
Both these decisions cannot be considered as "decision taken by a
competent authority in respect of the persons concerned" in accordance
with the Common Position 2001/931. These decisions were adopted by
executive bodies and not by a "judicial or equivalent" authority, as
required by the legal instrument and the case law. The Court of First
Instance of the EC considers that: "'Competent authority' is understood
to mean a judicial authority, or, where judicial authorities have no
jurisdiction in the relevant area, an equivalent competent authority in
that area." (Case T 228/02, Organisation des Modjahedines du peuple d'Iran
(OMPI) v. Council, Judgment of 12 December 2006).
The mere fact that the US decision can be reviewed by a judicial authority
does not make it a "judicial decision". The fact that Jose Maria Sison did
not yet challenge this decision in the US is precisely a consequence of
the lack of financial means due to his listing and cannot be interpreted
as a consent to this decision.
As a conclusion of this point it is demonstrated that none of the
requirements of art. 1(4) of common position 2001/931 and art. 2(3)
of regulation 2580/2001 are met in the present case.
5. By including Jose Maria Sison without any factual or legal
justification, the Council commits a patent misuse of powers
5.1. The freezing of Jose Maria Sison's bank account is totally
irrelevant to combating terrorism.
The freezing of the Sison couple's bank account and termination
of Prof. Sison's social benefits are totally irrelevant to the
struggle against terrorism.
The Council did not care if the freezing of the assets of Jose
Maria Sison would generate the desired effects in the fight against
terrorism. Apart from the cancellation of his health insurance, the
cancellation of the monthly social allowance granted to him by the
Dutch authorities and the threat of expelling the applicant from
the house he lives in, the only effect of the contested decision
was the freezing of the joint bank account of him and his wife nr.
58.22.994 with the Postbank. No other bank accounts were frozen
simply because Jose Maria Sison does not have any other bank
account in the Netherlands, nor abroad. Had the Council cared
to ascertain the source and amount of his assets and the manner
by which he conducts his financial activities, the Council would
have found out that what it froze were exclusively his social
benefits received from the Dutch authorities (Annex 16 of the
reply in the case T-47/03: Bank statements of the frozen joint
account of the applicant and his wife from 3 January 2002 to 10
October 2002). The bank statements show indeed that Jose Maria
Sison has no other income than this monthly allowance from the
Dutch government. The expenses recorded by the bank statements,
showed that the frozen funds were used only for essential human
needs. The Council cannot reasonably claim that the freezing of
the applicant's bank account is necessary for the achievement of
the aim of combating terrorist financing.
During the hearing of 30 May 2006 in the case T-47/03 before
the Court of First Instance, the lawyer of the Netherlands,
intervener in the case, admitted that no suspected financial
transaction was ever observed concerning the bank account of
Jose Maria Sison which was frozen in application of the
Council's decision.
5.2. The real aim of the listing has nothing to do with the fight
against terrorism
Finally in the case of Prof. Sison it seems very clear to us that
his name is included in the list for reasons that have strictly
nothing to do with the fight against terrorism.
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.
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 of the
application for leave to intervene: "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; Annex 11 of
the application for leave to intervene of the Negotiating panel
of the NDFP in the case T-47/03: "Terror list may be removed if
Reds accept peace", The Philippine Star, February 25, 2003).
Such declarations show that the main purpose of the listing of Jose
Maria Sison as a terrorist is to put pressure on the NDFP in the peace
negotiations. The Government of the Republic of the Philippines tries
actually to force the NDFP to sign a capitulation agreement. This is
the most clear evidence that the contested decision was adopted with
the main purpose of achieving an end other than stated. There is
absolutely no doubt about the misuse of powers of the Council by
adopting the contested decision and also the Regulation 2580/2001 EC.
The website of the Dutch foreign ministry is very clear in that
perspective. Its shows beyond any doubt that purely diplomatic
reasons are at the basis of the listing: maintaining intense political
and economical relations with the present corrupt and repressive regime
in the Philippines and pleasing its protector in Washington.
Immediately after mentioning the intensive trade relations and the
fact that the Netherlands are one of the major investors in the
Philippines with more then 150 companies present, the Dutch Foreign
Ministry writes:
"The only burden for the Dutch-Philippine relations is comprised
of the stay of the leadership of the Communist resistance in Utrecht.
Peace talks between the Philippine government and the resistance
leadership, which formerly were facilitated by the Neherlands, now
take place in Norway. Only back-door talks are still held in the
Netherlands. In this way, the Netherlands maintains a hands-off policy.
The most prominent leader of the resistance, Jose Maria Sison, has been
denied political asylum in the Netherlands. He has an appeal going on at
the European Court for Human Rights. The Philippines has welcomed the
measures taken by the Netherlands, among others, upon an American request,
to freeze the assets of Mr. Sison, the Philippine Communist Party (CPP)
and its armed wing, the New People's Army". (See: pp. 7-8 of the country
report on the Philippines, updated August 2005, under the heading: 4.1
"Betrekkingen met Nederland" Relations with the Netherlands, document
lodged to the Court of First Instance in the case T-47/03 in the
observations of the applicant to the report of the judge rapporteur).
What happened in fact is that the Minister of Justice of the Netherlands
for obvious diplomatic reasons didn't want Jose Maria Sison in the
Netherlands and tried to get rid of him by invoking vague speculations
of the secret services, kept secret and never submitted to any form of
scrutiny and contestation by Prof. Sison. Two courts in three decisions
said that the Minister could not do so because he did not present serious
and credible evidence for his allegations.
By including Jose Maria Sison without any factual or legal justification,
the Council commits a patent misuse of powers
6. Responsibility and accountability of the Council and all the member
States of the EU in the decision to list Jose Maria Sison
It should be recalled that the Council assumes responsibility for all
acts it adopts, as the inclusion of Jose Maria Sison in the list, on
the bases of Article 288 EC.
By the present document and all those presented by Jose Maria Sison
in the case T-47/03, it is clearly established that the decision to
include him or to maintain him on such a list is illegal.
It should also be noted that, in addition to the community responsibility,
all the Members States assume responsibility, by including or maintaining
Jose Maria Sison on the list, because this decision violates binding
international treaties protecting human rights, as the ECHR (See, EctHR,
Bosphurus Airways c. Ireland, 30 June 2005).
7. Request to send a copy of all the present document and of the
proceedings of the case T-47/03 to all the members of the Council
and of the Coreper
According to the Court of First Instance of the EC, Jose Maria Sison
"must be placed in a position in which it can effectively make known
its view on the information or material in the file." (See aforementioned
case T-228/02, pt 126). It follows that all the officials who will have
to participate in the decision process of his inclusion or retention
in the list must receive the present documents and all the document
submitted by Jose Maria Sison to the Council in the proceedings of
the case T-47/03.
8. Request to be heard by the Council prior to his inclusion or
retention in the list based on the Regulation 2580/2001
It should be noted that the general principles of community law require
that Jose Maria Sison and his lawyers should be heard by the Council
prior to any decision to include or retain him in the list. The Court
of First instance stated that any decision to maintain a person on the
list, if the funds are already frozen, which in the case with the bank
account of Jose Maria Sison : "must accordingly be preceded by the
possibility of a further hearing" (See aforementioned case T-228/02,
OMPI, pt 131).
9. Purpose and limits of the present observations
It should be noted that the "motivation" presented by the Council in
its letter does not comply at all with the legal requirements of
article 253 EC neither with the general principles of community law
(among others the principles of presumption of innocence and the
principle of fair trial).
Jose Maria Sison does not consider the possibility to lodge the
present observations to the Council as a sufficient guarantee for
fair proceedings.
Indeed, the Council has submitted its letter of April 23, 2007 as
a result of the judgment of the CFI of 12 December 2006, which
states that : "the right to a fair hearing (…) requires, in principle,
first, that the party concerned be informed by the Council of the
specific information or material in the file which indicates that
a decision meeting the definition given in Article 1(4) of Common
Position 2001/931 has been taken in respect of it by a competent
authority of a Member State, and also, where applicable, any new
material (…)and, second, that it must be placed in a position in
which it can effectively make known its view on the information
or material in the file".
This letter of the Council does not meet the standards and requirements
set by said case-law (See pt 144 to 146 of the aforementioned judgement
in the case T-228/02).
The wording however of this letter of the Council very clearly shows
that the aim of the Council is not at all to submit the elements
contained in the letter to an even (elementary) form of contradiction
but merely to inform Jose Maria Sison in a purely formal way about
the decision that has already been taken. The letter says indeed that
"The Council has established that the reasons why (Jose Maria Sison)
is placed on the list … are still valid." and that "The Council is
convinced that the reasons for putting Jose Maria Sison on the list
(…) remain valid. On the basis of the above-mentioned fundamental
points, the Council has decided that the measures meant in Article
2, paragraphs 1 and 2 of the Regulation (EC) no. 2580/2001 must
remain applicable to Jose Maria Sison."
Conclusion
Jose Maria Sison requests the Council :
- to make the present document directly accessible to the public
in electronic form and through the public register of the Council
in accordance with articles 11 and 12 of the same regulation 1049/2001,
maximum 8 days after its reception;
- to send a copy of the present document and of all the document
of the proceedings of the case T-47/03 to all the delegates of the
Coreper and all the ministers of the member States of the EU who
have to decide on his inclusion or retention in the list adopted
on basis of article 2.3 of the Regulation 2580/2001;
- to declare itself incompetent for any decision to include Jose
Maria Sison in a list related to terrorist activities, as a consequence
of the lack of legal basis;
- to not include or retain Jose Maria Sison in a list that will be
adopted on the basis of Regulation 2580/2001.
Brussels, 22 May 2007
For Jose Maria Sison,
his counsel,
Jan FERMON
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