(Unofficial translation from the Dutch original)
JMS' LAWYER LANGENBERG'S PLEA AT UTRECHT COURT
1 July 2003
Utrecht Court
Sector Administrative Law
Sison/MvF
01-07-2003
Plea Notes Atty. H. Langenberg/ D. Gurses
Ms. Judge for Provisional Matters (Voorzieningenrechter),
It appears to me of importance today in the first place to trace
the framework of the case for which we stand here. It deals with
whether the administrative organ, the Ministry of Finances, has
decided on just grounds to give no authorisation in accordance
with Article 6 of the European regulation 2580/2001 to the Utrecht
Municipality to continue providing to the petitioner, Mr. Sison,
the necessary expenses for existence. I think a short explanation
is necessary.
Since 11 September 2001 the world appears to be divided into
two camps, terrorists and fighters against terrorists, even more
than the time of the cold war of the previous century. The events
in the United States have led to a hardening of especially American
society and to the internationalisation of the fight against terrorism.
On this there will be no difference of opinion. In the Netherlands
we have also had in the meantime some process whereby the Public
Prosecutor's Ministry has tried to show that international terrorism
has a breeding ground within the Netherlands. The independent
Dutch judicial power has for the time being made clear that there
must be hard proofs in order to be able to convict persons.
Mr. Sison has been and still is staying in the Netherlands since
the 80s. He has been known for a long time as a political activist
against the regime of the former Philippine dictator Marcos and
spend a long time in prison as a political prisoner. After his
release, he was invited by different organisations in the field
of human rights and by universities to hold lectures. As such
the Netherlands also at that time issued him a visa to hold a
lecture for the Utrecht University. When at that time it became
known that he was again wanted by the government of the Philippines,
he submitted on 26 October 1988 a request to be recognized as
a political refugee. I spare you the details of the legal battle
that he had to wage here for years in order to be finally tolerated
("gedoogd") by the Dutch government. Both the Raad van
State and Amnesty International left no doubt about it: Mr. Sison
is a political refugee. On 11 September 1997, I can also not do
anything about it, the then Rechtseenheidkamer [Law Unity Chamber]
made the last ruling ("uitspraak"): Mr. Sison is a Convention
refugee, but thereby no right to entry into the Netherlands arises
but the Netherlands may also not expel ("uitzetten")
him because otherwise Article 3 EVRM would be violated. In this
way a unique situation was created: the Netherlands tolerates
Mr. Sison and thus puts him in a state to live further here. He
receives an [unemployment] benefit, a place to reside ("woning")
and may exercise family life in the Netherlands with wife and
child. I have sent the ruling of the REK ahead of time because
therein like an advance was the special situation in legal position
that was brought into existence: legal but without status. The
REK refers already to a possible problem in connection with the
benefits ("voorzieningen")!
Due to his convictions in life Mr. Sison has remained in the
past years with that which he has done already all his life: to
strive through political means for a just society in his native
land. The Netherlands has put him in such a position by tolerating
him and providing him with the necessary expenditures.
In 2002 our Minister of Foreign Affairs was on a working visit
in the United States and it was whispered to him that in Dutch
territory a dangerous terrorist was walking around who brings
the security of the world in danger. The Filipino Bin Laden has
been created. Professor Sison has been put on the list of international
terrorists by the American government and the Netherlands is requested
to undertake action. After his return, Minister de Hoop Scheffer
takes the lead and places Mr. Sison on the Dutch list of terrorists
(Sanction Regulation Terrorism 2002 of 13 August 2002 and the
Amendment of Sanction Regulation 2002 III of 23 August 2002).
At the base of this decision lies an "executive order"
of the American President Bush. Without further investigation
into the allegations of the Americans, Sison is demonised and
is pictured as a terrorist. Against that decision an appeal is
submitted and the Utrecht municipality asks for an authorisation
on the basis of the Dutch Sanction Regulation 2002 III from the
Ministry of Finances to continue paying the benefit which Sison
receives and because of the aforementioned Sanction regulation
must be frozen. The idea behind is that you do not starve or bring
into danger the life of a person by taking away his basic benefits,
a person who is unable to provide for his basic needs because
he is not allowed to work but who may stay here.
The Ministry of Finances grants the authorisation so that the
Utrecht municipality can continue to provide the benefits.
Still before the decision of de Hoop Scheffer can be tested by
an independent judge, Sison is placed on the European level on
the European list of terrorists and the Netherlands takes him
off the list. In that way, that decision can no longer be tested
legally. Both the appeal and the request for arranging a provisional
benefit are withdrawn. In the European Court in Luxembourg there
is a procedure running to test the putting of Sison on the European
terrorist list according to the standards of international rules.
In that procedure is also a request for provisional benefit in
order to declare the freezing/taking away of the basic benefits
unlawful. The Court has already decided that the decision to freeze
the basic benefits must be presented first on the national level
to the national judge, before the Court can make a decision thereon.
That procedure is being carried out right now.
Because an arrangement has been made on European level to be able
to continue providing basic benefits for humanitarian reasons
to persons who have been placed on the list of terrorists, the
Utrecht Municipality again requests the Ministry of Finances on
30 October 2002 to grant an authorisation so that they can continue
to provide the basic benefits. Both the Utrecht municipality and
Sison count on the authorisation being granted since in the earlier
case, upon the placing of Sison by the Dutch government on the
Dutch list of terrorists, this had happened. Although the European
legislation prescribes that within a short period of time such
a request for granting an authorisation must be decided on, nothing
however happens. After a long period of waiting and insisting
on a decision, finally on 7 March 2003, it becomes clear that
the authorisation is not being issued. The basis for taking this
procedure is laid.
The appeal against the decision not to give any authorisation
is declared not grounded and against this in the meanwhile an
appeal for review is submitted to this court and the petition
for the provisional benefit is adjusted in the sense that it is
requested that, so long there is no decision on the appeal for
review, to determine that the Utrecht Municipality may continue
to provide the benefits as if the authorisation by the Ministry
of Finances had been issued.
In the letter to the Court requesting that the case be handled
speedily, I also requested to deal with the basic procedure ("bodemprocedure")
In the basic procedure, there is to be judged whether the Ministry
of Justice has declared for correct reasons the appeal not grounded.
I remain of the opinion that with the declaration of the appeal
as not grounded by the defendant, the limits of fair administration
are trespassed by saying without substantiation (or argument,
"niet gemotiveerd aan te geven) why in the one case yes an
authorisation is issued and in another case the authorisation
is refused. I refer in this to the content of the appeal.
At the same time I think that in the decision on appeal it is
wrongly stated that the EU-regulation 561/2003 of 27 March 2003
is not applicable to Sison because his name does not appear on
the list attached to the regulation. Through this narrow interpretation
of the regulation, the defendant denies the underlying thought
from which the regulation has arisen.
In ordinary words: the defendant puts himself through the narrow
interpretation in fact on the standpoint that persons who are
linked to Osama Bin Laden, the Al Qaida network and the Taliban,
if they should be staying in the Netherlands, would indeed have
a right to basic benefits, and Mr. Sison would not! I think that
such an interpretation is untenable and is in violation of the
fundamental right to survive in Dutch territory since he cannot
be removed from it and the then State Secretary of Justice also
promised not to remove him.
Moreover, reference must be made, among others, to the Resolution
1452 (2002) of the Security Council of the United Nations, approved
upon insistence of the EU-members of the Security Council, wherein
it is determined that for persons on the "list of terrorists"
the means needed for the primary basic needs may be provided.
The plaintiff has expressly invoked the direct effect of the stated
resolution and the decision on the complaint unjustly gives no
justification for that invocation.
To end, I wish to state that the Cabinet policy in the fight
against terrorism may not go beyond the limits of fair administration
and reasonableness and thereby may not violate the fundamental
rights of persons allowed on the territory [of the Netherlands].
I request you to award the benefit and to declare the appeal
well grounded.
Authorized,
(Sgd.) H. Langenberg