Fortress Europe Circular Letter (FECL) No. 56
December 1998 by Jack Rodgers
A QUESTION OF LAW OR POLITICS:
THE SISON FAMILY ASYLUM CASE
In a strong conflict of intra-governmental perspective, the Sison
Family asylum case has pitted the legal judgments of the Dutch
High Court against the political imperatives as perceived by the
Netherlands' Ministry of Justice.
Citing secret dossiers and an investigation by the Dutch Intelligence
Service (BVD), the Justice Ministry rejected Sison's first asylum
application 13 July 1990 (see FECL No.47: "Sison case: recognised
refugee threatened with deportation"). The Ministry tied
Sison to the New People's Army, calling him the "auctor intellectualis"
of their revolutionary violence. In a combined CIA/BVD operation
to recruit a Filipino to spy on Sison the following year, the
participants were "caught in the act" by the TV crew
from a VPRO news program, highlighting some of the broader considerations
Sison's asylum application faced. Nevertheless, on 17 December
1992, the Raad van State decided favourably for Sison.
After reviewing both the Justice Ministry findings and "secret
dossiers", the Raad van State found that: Sison is a political
refugee; he cannot be repatriated under the principle of non-refoulement;
that there is no evidence of his committing a criminal offense,
and that the use of secret dossiers is contrary to the fair administration
of justice. It was during this proceeding that a Justice Ministry
representative declared that a government friendly to the Dutch
and Filipino governments would be "displeased and offended"
should asylum be granted. This was amplified in the Ministry argument
that "the Dutch state had to maintain its integrity and credibility
to its allies". Thus, by finding for Sison, the Raad van
State refused to endorse the political considerations governing
the Justice Ministry position.
In elaborating on their basis for political asylum, the Sisons
note their torture and persecution at the hands of successive
Filipino governments. The incidents they have cited include extremely
substantive government rewards for them ("dead or alive"),
death threats, the kidnapping and murder of associates in the
Partidong Bayan, and the fabrication of criminal charges (including
murder) and slander.
In March 1993, the Justice Ministry continued to refuse the judgement
of the Raad van State, and instead proclaimed Sison "responsible
for crimes against humanity". Concurrently, the Ministry
continued to use "secret dossiers", and pursued a negation
of the Sison's asylum claim via a Foreign Ministry letter stating
that Sison would now be safe in the Philippines as he was a prominent
opponent of the Ramos regime and could avail himself of a political
amnesty which had been recently enacted. Meeting constant opposition
from the Justice Ministry, within two years Sison had returned
his case to the Raad van State.
"General interests" of the State vs right of
asylum
Of particular interest throughout the Sison family's case is
the debate regarding Article 1F of the Refugee Convention, and
Article 3 of the European Convention on the Protection of Human
Rights and Fundamental Freedoms (ECHR). Article 1F provides for
the exclusion from refugee status of persons guilty of particularly
serious crimes, and the Justice Ministry repeatedly tried to invoke
it in its arguments. Concurrently, Article 3 of the ECHR prohibits
the deportation of a person to a country where they are threatened
with cruel, inhuman or degrading treatment or punishment - a restriction
the Ministry sought to overcome.
On 21 February 1995, the second Raad van State decision came
in Sison's favour, reiterating "Sison had a well-grounded
fear of persecution within the meaning of the Refugee Convention".
The Raad van State further found that refusing Sison a permit
to reside would violate Article 3 of the ECHR. In rebutting the
Justice Ministry claims of Sison's alleged criminal activity,
the decision went on to note that Article 1F of the Refugee Convention
"was not applicable in this case as there were insufficient
indications for the judgement that Sison had committed the serious
crimes referred to". Most significantly, the Court addressed
the political imperatives perceived by the Justice Ministry and
noted the Ministry's apparent usurpation of authority in its refusal
of refugee status to Sison.
Noting the Netherlands Aliens Law provides for the "freedom
of policy" in cases where "weighty reasons drawn from
the general interest" exist, the Court found this inapplicable
in denying Sison refugee status, and cited that "for other
reasons, it was already established that the State Secretary of
Justice did not have that freedom". This finding came in
reply to the Ministry's argument that the "interest of the
Dutch State for integrity and credibility, especially in its relation
to other states" had justified their disposition of Sison's
case. Of particular note as regards the broader legal imperatives
perceived here were the observations of Attorney P. van Dijk -
a judge in the Raad van State's Sison decision as well as in the
European Court for Human Rights.
In a seminar on immigration law at the University of Leiden in
February 1997, Attorney van Dijk noted that the European Court's
Chahal case (RV 1996 20) appeared to confirm the Raad van State's
judgement in the Sison matter. Specifically, he noted that the
decision appeared to distance the European Court from "a
weighing of interests of the state and those of the individual".
Van Dijk further elaborated that he viewed this with satisfaction
as the weighing of interests, as argued by the Dutch State Secretary
of Justice, "would lead to a serious hollowing out of the
prohibition prescribed by Article 3 (ECHR)". Noteworthy in
van Dijk's perspective is the concern over the politicisation
and erosion of the asylum process in weighing state interests;
however, the Justice Ministry continued to pursue its position
despite the Raad van State's findings.
Secret dossiers as evidence of "terrorist affiliations"
In 1995, newly created Dutch legal bodies for the pursuit of
Aliens Law provided a fresh opportunity for the Justice Ministry
to argue its case. In June 1995, Sison approached one of these,
the Aliens Chamber, for enforcement of the Raad van State decision.
On 4 May 1996 the Aliens Chamber instructed the Justice Ministry
to make a new decision in his case; on 8 June 1996 the Ministry
again refused Sison refugee status arguing that "non-deportation"
is "sufficient compliance with Article 3 of the European
Convention". In early 1997, the case was shifted by the Aliens
Chamber to the Law Unity Chamber/Rechtseenheidskamer (REK).
As regards the REK, it is now the highest Dutch instance of decision
over asylum cases, while reported to be only a division of a district
court which "is dependent on the Dutch justice ministry for
advice, personnel and funding". On 11 September 1997, the
REK provided a decision upholding the Justice Ministry position,
utilizing "secret dossiers" as evidence of "terrorist"
affiliations.
On 26 February 1998, Prof. Sison filed an appeal to the European
Commission on Human Rights as regards the REK/Law Unity Chamber's
findings in his case. Signalling possible movement towards a reconciliation
of the disparate positions held within the Dutch government, the
REK recently awarded humanitarian asylum to Prof. Sison's wife
and son.
Source: International Campaign for Asylum of
the Sison Family, c/o P.O. Box 2041, NL-3800 Amersfort; Tel/Fax:
+31/33 4723084;
E-mail: [email protected]
Comment:
Democratic governments are, by their very nature, strongly political
in their perspectives, while courts of law, by their very nature,
are devoted to an impartial pursuit of justice - "without
passion or prejudice" - in theirs. The sanctity of the "separation
of powers" in government is meant to assure a balancing of
such interests, as well as the integrity of the State at large.
However, the establishment of new semi-judicial structures to
address asylum issues cannot but pose questions as to this "balance",
and the precedent such political action sets.
Further, there are those who see in this case the question in
its pure form of subordination of law to the perceived political
interests of a state. Indeed, the Dutch Justice Ministry plainly
stated its concern that a friendly government would be "displeased
and offended" should asylum be granted Sison. Concurrently,
in Sweden, US rights activist Ritt Goldstein - whose work had
led to him being targeted for extended brutalization by US police
- has been denied political asylum solely on the basis of his
being an American (see FECL No.55: "US citizen denied asylum
in Sweden - USA a 'safe country'?"). Concern over offending
Washington appears as the political common denominator in these
cases.