Universite de Quebec a Montreal
May 29, 2004
While in the airport in Oslo on Valentine's Day waiting to board
the plane en route to Amsterdam, Jose Maria Sison reminded his
companions that if the US government desired it badly enough,
the plane he was boarding could be ordered diverted to a US military
base in Germany. In the hands of the US military, Prof. Sison
may expect to be dealt with in the same manner as the US government
has dealt with suspected members of the Al Qaeda and, God forbid,
Iraqi prisoners in the Abu Ghraib prison. Prof. Sison's apprehension
was of course valid. After the terrorist tag was placed on him
by both the US and the EU, his mere presence in Europe exposes
him to grave danger.
An alternative title of this paper would be "The Curse on
Jose Maria Sison" because this paper relates a horror story
that is Prof. Sison's human rights situation and legal battles
in Europe. It focuses attention on the main source of Prof. Sison's
woes in his asylum case, the erosion of his right to asylum, the
deprivation of his right to work, and other rights accorded to
him as a refugee under international law, as well as the circumvention
of his democratic and human rights that attends his being placed
on several "terrorist" blacklists without due process
of law. The curse on Prof Sison consists in his being identified
as a sworn enemy, a "global terrorist", by the United
States government, and the United States government's single-mindedness
to completely isolate him in the Western world and to punish him
without due process of law.
This paper would like to speak about the "terrorist listing"
of Jose Maria Sison in relation to a long-running, and he would
say "epic" story of his personal persecution in a foreign
country by no less than three governments: the government of his
home country (Philippines), the government of his host country
(Netherlands), and the government for whom these two governments
are subservient (United States).
Part One: Pre-history of Sison's "Terrorist
Listing"
Even before his "terrorist listing", it is not an exaggeration
to associate Prof. Sison's name with persecution itself. Captured
in 1977, he was kept, mostly in solitary confinement, tortured
and tried in military tribunals, as the most prized political
detainee of the Marcos government. He was released from detention
in 1986 following the toppling of the Marcos dictatorship only
to find himself again being hounded with false charges by the
Aquino government. These false charges have eventually been proven
false.
The misinformed might think that he was lucky to have been within
the protective borders of a liberal European state of the Netherlands
when the Aquino government decided to cancel his passport in 1988
and launch all-out war against Philippine communists. But actually,
the persecution he was fleeing from in the Philippines did not
stop when he was already in the Netherlands. And this time, Prof.
Sison had to contend with persecution by the Dutch government.
Dutch Government Places Sison in Legal Limbo and Makes Malicious
Accusations against Sison in his Asylum Case
In October 1988, Prof. Sison applied to be admitted to the Netherlands
as a political refugee and for a permit to stay therein. In 1990,
his request was denied by the Dutch Justice Ministry forcing Prof.
Sison to go to court. In 1992, the court nullified the Justice
Ministry's decision. Nevertheless, the Justice Ministry refused
to grant Prof. Sison's requests and invoked its so-called "freedom
of policy" in asylum cases. Repeatedly, the Justice Ministry
claimed that Prof. Sison was excluded from the protection of the
1951 Refugee Convention by Article 1 F thereof, initially allegedly
under paragraph (c), and then later, allegedly under paragraphs
(a) and (b). In other words, the Dutch government claimed that
Prof. Sison has either:
(a) committed a crime against peace, or a crime against humanity
as described in the international agreements defining these crimes;
(b) committed serious nonpolitical crimes; or
(c) is guilty of having committed crimes which are contrary to
the objectives and principles of the United Nations.
Note that these claims have been made not only in the pleadings
submitted by the Dutch government to the court but also in its
press releases circulated in the media.
Intent to debunk these malicious claims, Prof. Sison went to
the then highest Dutch court that has jurisdiction over asylum
cases, the Raad van State in 1993. In the decision of February
21, 1995, the Raad van State held that there are "no sufficient
evidence" showing that Prof. Sison was involved even by way
of "giving direction" to the perpetrators of the criminal
activities alleged by the Dutch government. The court said there
was no "serious reasons" to suppose that Prof. Sison
"carried out" the crimes alleged.
The court held:
"Those pieces, however, do not offer sufficient evidence
for the fundamental judgment that the appellant 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 appellant in the sense of the abovementioned article parts
have carried out those mentioned crimes."[1]
In contrast to the unfounded claims of the Dutch Justice Ministry,
Sison was able to establish in court a "well-founded fear
of persecution on account of his political beliefs", and
accordingly his status as a political refugee was recognized by
that court. In support of this decision, the court referred to
the written and testimonial evidence offered by the UN High Commissioner
for Refugees and the Amnesty International which expressed the
view that "in case [Prof. Sison] would be forced to return
to the Philippines, [he] would definitely risk becoming a victim
of torture, extrajudicial execution or disappearance". The
Raad van State thus decided that he may not be returned to the
Philippines or to a country where he will be exposed to the danger
of being returned to the Philippines.
Despite the judicial repudiation of the convoluted and malicious
accusations against Prof. Sison and despite the judicial recognition
of his status as a political refugee by the Dutch court, still
the Dutch executive authorities refuse to grant Prof. Sison his
requests to be admitted into the Netherlands and for a permit
to stay therein. The situation of Prof. Sison is therefore a peculiar
one, a cruelly peculiar one. He has in actuality been living on
Dutch soil for 16 years now but in legal fiction he has not yet
been admitted to the Netherlands. In other words, he is in some
sort of a "limbo". He is publicly referred to as a "tolerated
alien" by the Dutch government, though it is more accurate
to say that he is a victim of intolerable treatment by an alien
host who is even willing to disrespect the decisions of its own
court just to make Prof. Sison unwelcome.
In continuation of this persecutory stance of the Dutch government
on Prof. Sison, notwithstanding the February 21, 1995 Raad van
State decision, the Dutch Justice Ministry issued in June 4, 1996
an expulsion order requiring Prof. Sison to leave the Netherlands
within four weeks' time. This resulted in yet another legal case
between Prof. Sison and the State Secretary of Justice that ordered
his expulsion in the then newly-formed Law Unity Chamber of the
Aliens Court (called the REK).
Politicisation of the Sison Asylum Case
and Erosion of Sison's Right to Asylum
We mentioned that the Dutch government has also claimed it had
the "freedom of policy" in asylum cases which meant
that it had the discretion to exclude Prof. Sison from Dutch territory
notwithstanding his well-grounded fear of persecution. As will
be seen below, this claimed discretion has transformed Prof. Sison's
asylum case from a purely legal case to a highly politicized controversy
pitting the human rights of Prof. Sison with the diplomatic interests
of the Dutch government in maintaining good relations with the
United States.
The Raad van State had the opportunity to address this so-called
"freedom of policy" argument in its 1995 decision. The
Dutch government invokes a vague provision in the Dutch statute
books which provides an exception ("weighty considerations
derived from the general interest") to the state's duty to
grant admission to a political refugee. The Dutch government claims
that such "weighty considerations derived from the general
interest" are obtaining in the case of Prof. Sison because
allowing Prof. Sison to be admitted and to stay in the Netherlands
"shall damage a serious interest of the Dutch state, to wit
the integrity and credibility of the Netherlands as a sovereign
state, in particular in relation to its responsibilities to other
states". In short, the Dutch government wishes to justify
refusal to admit Prof. Sison to the Netherlands on the basis of
its diplomatic interests, with the Philippine government and,
more importantly, with the United States government.
The Raad van State in no uncertain terms rejected this argument
of the Dutch government. The court said that the international
obligation of the Netherlands under Article 3 of the European
Convention on Human Rights and Fundamental Freedoms (freedom from
torture and other inhuman or humiliating punishment) was absolute
and that once a person is able to establish a well-founded fear
of such treatment, no balancing of interests can be had between
that of the individual and the Dutch government's alleged "general
interest" of a diplomatic nature.[2]
It has been noted that the reasoning of the decision of the Raad
van State on this score has found affirmation in at least one
case subsequently decided by the European Court of Human Rights
(ECHR), namely, the Chalal case (RV 1996 20). This has been first
pointed out in a lecture at the Institute for Immigration Law
at the State University in Leiden in February 1997 by Mr. P. van
Dijk, judge of the ECHR, and a member of the Judicial Department
of the Raad van State that wrote the 1995 decision. Judge van
Dijk has said that he viewed the confirmation of the wisdom of
the Sison decision in the Chalal case with satisfaction, convinced
that the "weighing of interests" approach would result
to a "serious hollowing out (or disembowelment)" of
the prohibition in Article 3 of the ECHR. [3]
Unfortunately, in the subsequent case of Sison against the State
Secretary of Justice before the then newly-formed REK, the REK
this time upheld the interpretation of Article 15 of the Aliens
Law that the Dutch government argued for in the Raad van State
and which the Raad van State already rejected. Thus, a balancing
of interests was had between Prof. Sison's individual rights and
that of the Dutch government's diplomatic interests. Prof. Sison's
human rights were trounced in favor of the Dutch government's
concern for maintaining its good standing in the eyes of the United
States.
The REK held that the Dutch government would not be in violation
of Prof. Sison's right if he is not admitted to the Netherlands
or permitted to stay therein so long as he is not actually expelled.
This judicial hairsplitting has actual practical effects, chief
among them being that Prof. Sison, not being a legal resident,
has been denied the right to seek employment in the Netherlands.
His claim to social benefits such as social security, accommodation
and study financing has also been made "extraordinarily difficult"[4]
as a result of his non-admission.
Prof. Pieter Boeles of the University of Leiden, the Dutch scholar
who annotated the decisions in Prof. Sison's asylum case, citing
with approval textbook writers and Dutch immigration law experts
Spikerboer and Vermeulen, said the interpretation of Art 15 (2)
of the Aliens Law of the Netherlands that the Dutch government
argued for and which the REK upheld was inconsistent with the
intention of the legistator that crafted the law. He also said
that the so-called "weighty considerations deriving from
the general interest" argued by the Netherlands and which
the REK also upheld as weighter than Sison's human rights are
"cryptic and therefore hardly convincing".
Boeles concluded thus: "The turn that the REK now has given
in the [Sison asylum] case is difficult to reconcile with the
Raad van State decision."[5]
Another commentator Jack Rodgers suggests that the surprising
retrogression which resulted from the REK's harking back to the
"weighing of interests" approach was the logical result
of the ever greater politicization of the asylum procedure in
the Netherlands. This trend is manifested in the creation of the
REK itself. Rodgers says:
"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'."
Rodgers concludes with the following insight:
"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 to 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. Concern over offending Washington
appears as the political common denominator in these cases."[6]
Part Two: Circumstances of the Terrorist
Listing of Sison
Having outlined the somewhat long prehistory of Prof. Sison's
persecution in Europe on account of the Netherlands government's
desire not to offend Washington by according him his human rights
as a proven political refugee, I now turn to the circumstances
of the "terrorist" listing of Prof. Sison.
Sison in Washington's Official Reports Before 9/11
Before the September 11, 2001 attacks, Prof. Sison's name already
figures in Washington's official reports concerning "global
terrorism", the US' post-Cold War pre-occupation. He is first
cited in a 1990 report as a "supporter of the [Philippine]
communists" referring to the New People's Army which it maliciously
brands as a terrorist organization even then.
The New People's Army (NPA) has been maliciously regarded by
the US as a terrorist organization in its official "Patterns
of Global Terrorism" published by the US Department of State,
and has been publishing reports of its alleged activities alongside
other groups it considers "terrorists".[7]
In "Patterns of Global Terrorism: 1990", the US State
Department acknowledged its interest in Prof. Sison's asylum case
by noting that:
"The Aquino administration continues to press its international
campaign against supporters of the Communists. The Philippines
successfully lobbied the Dutch Government to reject CPP founder
Jose Maria Sison's application for political asylum. xxx"
In the report for 1991, the US State Department expressed concern
over Sison's continued presence in the Netherlands. The report
said: "We believe that he is involved in raising money for
his movement, mostly from sympathetic European leftist groups."
The bases for such suspicion were not specified.
The description of the New People's Army (NPA) in the Annex to
the "Patterns of Global Terrorism: 1992" alleges vaguely
that it derives external aid from "overseas fundraisers in
Western Europe and elsewhere" and, even more vaguely, that
it is "linked to Libya; diverts some funding from humanitarian
aid". This description was reiterated in 1993 and 1994. However,
in the annual reports from 1995 to 2001, the State Department
reported that external funding from the NPA was "unknown".
The AEDPA of 1996
In 1996, in the wake of the Oklahoma City bombing of 1995, the
United States enacted a radically new law, the Anti-Terrorism
and Effective Death Penalty Act (AEDPA) [8],
by which the blacklisting of "foreign terrorist organizations"
begun [9]. The AEDPA empowered the US Secretary
of State to designate any entity in a list of foreign terrorist
organizations (FTOs) defined, as
(1) any foreign organization
(2) that engages in any terrorist activity
(3) where such activity threatens the security of U.S. nationals
or the national security of the United States. "National
security" is defined as "the national defense, foreign
relations, or economic interests of the United States." (AEDPA,
Section 302(a))
Once an organization is designated as an FTO, the following legal
consequences arise:
(1) the funds and assets of these organizations shall be seized;
(2) the provision of "material support or resources"
by any person to that organization becomes a criminal offense;[10]
and
(3) the designated organization may not contest the "terrorist"
label in any forum in the US unless it obtains a delisting by
filing an appeal with the US Court of Appeals for the District
of Colombia within 30 days from publication of its designation
in the Federal Register.
It is worth noting that despite its being reported in the "Patterns
of Global Terrorism" since 1990, the New People's Army was
not immediately designated as a "foreign terrorist organization"
under the AEDPA. Since 1996, the NPA instead is listed under the
rubric "Other Terrorist Organizations" as distinguished
from "Designated Foreign Terrorist Organizations (FTOs)".
It look another five years after the NPA was finally designated.
De Venecia's Warning and the "Final Peace Agreement"
The warning of the "FTO" designation came from Jose
de Venecia, Speaker of the House of Representatives on November
22, 2001. While in Mexico, Speaker de Venecia made an overseas
call to Jose Maria Sison in Utrecht to tell him that there was
an impending US government decision to designate the CPP-NPA-NDF
as a foreign terrorist organization. De Venecia was then with
President Gloria Macapagal-Arroyo in Mexico for the conference
of the Christian Democratic International (CDI) where they met
with top officials of the US Department of Defense and Department
of State. Two days before that or on November 20, 2001, President
Arroyo was on an official visit to the United States where she
met and held a joint press conference with US President George
W. Bush. De Venecia said that the Philippine government could
try to dissuade the Americans from proceeding to list the CPP-NPA-NDFP
provided the NDFP agrees to a "Final Peace Agreement"
with the GRP within three months.
De Venecia's call, and his offer of a peace agreement, was certainly
unexpected.
At the time of de Venecia's phone call on November 22, 2001,
the September 11, 2001 attacks and the heightened militarism and
war hysteria on the part of the US and its allied governments
that it begot have already clouded the formal peace negotiations
between the GRP and the NDFP. Formal peace negotiations have in
fact been put on recess immediately after 9/11.
A brief review of the peace negotiations under the Arroyo government
is worth considering. Following a successful Solidarity Conference
held in Manila on April 17, 2001 which was attended by Arroyo
herself and members of the GRP and NDFP panels, the Arroyo government
held formal talks with the NDFP in Oslo, Norway on April 27-30,
2001 and then on June 10-13, 2001. The GRP panel, however, decided
to leave the negotiating table on June 13, 2001 following the
reported killing of Representative Rodolfo Aguinaldo by the NPA.
Initially the GRP panel intended only a brief symbolic protest
over the Aguinaldo killing by walking out of the negotiating table
on June 13, 2001, but this protest became a prolonged change of
tack for the Arroyo government. This change of approach towards
negotiations with the NDFP may be attributed largely to then Defense
Secretary Angelo Reyes. The Arroyo Cabinet approved the resumption
of formal talks on September 21, 2001 in Oslo and conveyed the
said action to the NDFP panel as well as the Norwegian government
which accordingly made arrangements for travel and accommodation
of delegates. Incidentally, Reyes was not around when this decision
was made. This was because he went to the US immediately after
the September 11, 2001 attacks for reasons that are still not
clear. On his return to the Philippines, he opposed the Cabinet
decision to proceed with formal talks with the NDFP on September
21, 2001. Persuaded, Arroyo called off the scheduled resumption
of formal talks for September 21, 2001, and announced that henceforth
communication with the NDFP shall be in the nature of informal
"back-channel" talks only.
As a result of this new policy, government negotiators and consultants
conducted only informal talks with their NDFP counterparts from
November 15-19, 2001 in Utrecht.
Significantly, the idea of a "Final Peace Agreement"
was not even broached by government negotiators to their NDFP
counterparts when they met in Utrecht from November 15-19, 2001.
In the said back-channel meetings, the government offered the
implementation of certain socio-economic and development projects
and a ceasefire in lieu of the adoption of a Comprehensive Agreement
on Social and Economic Reforms (CASER) earlier agreed upon. The
government's offer of socio-economic and development projects
plus a ceasefire seemed to have been satisfactory to the Moro
Islamic Liberation Front (MILF) which was also holding its own
peace negotiations with the GRP. It was not, however, favorably
received by the NDFP which insisted in the adoption of a CASER
in accordance with previous agreements with the GRP, viz., the
Joint Agreement[11] signed in Brussels in
1995 that provided for a four-stage peace process culminating
in cessation of hostilities and disposition of forces.
In the said 1995 Brussels agreement, the parties intended, among
others, that the four substantive agenda, viz., (1) respect for
human rights and international humanitarian law, (2) social and
economic reforms, (3) constitutional and political reforms, and
(4) cessation of hostilities and disposition of forces, be dealt
with sequentially. Through the period of the administration of
President Fidel Ramos, the parties have worked on and agreed upon
a Comprehensive Agreement on Respect for Human Rights and International
Humanitarian Law (CARHRIHL). The CARHRIHL was signed by President
Joseph Estrada before his government eventually decided on an
all-out war policy against the CPP-NPA and the MILF, and suspended
all peace negotiations. Incidentally, Secretary Reyes was then
Estrada's AFP chief of staff who presided over the implementation
of the total-war policy.
The NDFP hoped to obtain implementation of the provisions of
the CARHRIHL and make progress during the term of Arroyo towards
the adoption of a CASER, which was the second substantive agenda.
Speaker de Venecia's "Final Peace Agreement", which
dispenses with the CASER as well as a comprehensive agreement
on political and constitutional reforms, did not readily fit into
the framework of this 1995 Brussels agreement and appeared curious
at best.
However, Prof. Sison did not immediately dismiss de Venecia's
ultimatum for the NDFP to enter into a "Final Peace Agreement"
with the GRP within three months and asked him instead to come
to Utrecht to discuss the matter personally. De Venecia agreed.
From Mexico, he returned to the Philippines before proceeding
to the Dutch city on November 30, 2001. Secretary Eduardo Ermita,
the Presidential Adviser on the Peace Process, Secretary Silvestre
Bello III, the head of the GRP panel, and Secretary Silvestre
Afable of the Presidential Management Staff, joined the de Venecia
mission. They carried with them a two-page draft of a "Final
Peace Agreement".
As it turns out, the so-called "Final Peace Agreement"
had nothing to offer in terms of addressing the root causes of
the armed conflict. It contained virtually nothing on social and
economic issues, like agrarian reform and national industrialization,
nor on political and constitutional reforms. Instead, it called
upon the NPA to lay down their arms. It was in essence a surrender
agreement.
Threats of Direct US Military Engagement with the NPA
At the same time that Philippine government officials were pressuring
the NDFP negotiators, through Prof. Sison, with the threat of
an "FTO" designation by the US to accede to a surrender
agreement, threats of direct military engagement with the NPA
by US troops in Philippine territory were also made.
On January, 2001, US Senator Stephen Brownback called the Philippines
"the second front on the war on terror". That about
sums up why the US military launched "Operation Enduring
Freedom-Philippines" also known as Balikatan 02-1 in 2001
which made the Philippines then the site of the largest US overseas
troop deployment outside Afghanistan.
While US troops were then directly targeting the bandit Abu Sayyaf
group in Basilan ostensibly to rescue American citizens being
held hostage by the bandits, Secretary Reyes did not make secret
of the intention to make the NPA the "next target" of
US troops in the Philippines after the Abu Sayyaf. Secretary Reyes
made such a statement in January 2002. True enough, after Balikatan
02-1, US troop deployment under the succeeding Balikatan 02-2
the following year were made in Central Luzon, away from the lairs
of the Abu Sayyaf and into territories effectively controlled
by the NPA.
To top it all, US State Secretary Collin Powell himself visited
Manila in August 2002. Many analysts believe this visit was intended
to seal the agreement between Manila and Washington called the
Mutual Logistics Support Agreement (MLSA), the final complement
to the Visiting Forces Agreement (VFA) that reintroduces in Philippine
law the notorious extraterritorial privileges and virtual basing
rights of US forces and facilities in the Philippines.
U.S. Terrorist Listing of the CPP-NPA and Sison
On August 9, 2002 shortly after Collin Powell's arrival in Washington,
he made the announcement that the US State Department has designated
the Communist Party of the Philippines/New People's Army (CPP/NPA)
as an FTO. Three days thereafter or on August 12, 2002, Jose Maria
Sison was tagged a "Specially Designated Global Terrorist"
(SDGT).
The blacklist containing individuals considered Specially Designated
Global Terrorists (SDGTs) is being maintained by the US Treasury
Department's Office of Foreign Assets Control (OFAC) which implements
provisions of various laws including the AEDPA that concerns financial
institutions.
Section 302 of the AEDPA requires financial institutions to block
all funds in which FTOs or their agents have an interest (Section
302, AEDPA). Executive Order No. 13224 blocks property and prohibit
transactions with individuals or entities "who commit, threaten
to commit, or support terrorism".[12]
Implicit, therefore, in the designation of Sison in this list
is a conclusion by the designating authority that he is an "agent"
of an FTO or one who commits, threatens to commit or supports
terrorism.
Under the said executive order, the designating authority is
the US Secretary of State and, in certain cases, the US Secretary
of the Treasury. In Section 1(d) of E.O. 13224, provision is made
for the designation of an individual as a terrorist by the US
Secretary of State in consultation with friendly foreign governments.
Prof. Sison appears in the OFAC list together with a host of
some 300 individuals and entities. Included in the OFAC list are
various sorts of organizations. Not only political organizations
and armed groups are listed, but also banks and financial intermediaries,
aid and charitable organizations, telephone companies, internet
and computer companies, construction firms, and curiously enough,
a bakery (viz., the al-Hamati Sweets Bakeries of Yemen).
Lack of Real Possibility for Judicial Review under US
Law
As I mentioned earlier, the AEDPA provides that the designated
organization may not contest the "terrorist" label in
any forum in the US unless it obtains a delisting by filing an
appeal with the US Court of Appeals for the District of Colombia
within 30 days from publication of its designation in the Federal
Register.
In actual fact, appeals for delisting of designated FTOs have
been brought by some such designated groups before the US Court
of Appeals for the District of Colombia on the ground, among others,
that due process has not been observed when the Secretary of State
made the designation. The leading cases on the matter, People's
Mojahedin Organization of Iran vs. Albright and Liberation Tigers
of Tamil Eelam vs. Department of State jointly decided on June
25, 1999 show that the US court does not provide any meaningful
judicial review of the blacklisting process if only to vindicate
the interests of fair play and due process.
In the said cases, the US Court of Appeals held that, in the
first place:
"A foreign entity without property or presence in this country
(US) has no constitutional rights, under the due process clause
or otherwise."
Secondly, the court emphasized:
"Of the three findings mandated [by law for a designation
to be made], the third – ‘(c) the terrorist activity
of the organization threatens the national security of the US'–
is non-justiciable. [I]t is beyond the judicial function for a
court to review foreign policy decisions of the Executive Branch."
On the basis relied upon by the Secretary of State in designating
the said organization, the court remarked:
"[T]he records consists entirely of hearsay, none of it
was ever subjected to adversary testing, and there was no opportunity
for counter-evidence by the organizations affected. [However,]
[a]s we see it, our only function is to decide if the Secretary,
on the face of things, has enough information before her…Her
conclusion might be mistaken, but that depends on the quality
of the information in the reports she received—something
we have no way of judging."
Prof. Sison's situation is even more difficult than that of
the designated FTOs mentioned. A designated FTO's fictive right
to seek judicial review of their designation is at least provided
for in the AEDPA. An individual or entity designated in the OFAC
list for supposedly being linked to an FTO do not seem to have
such a recourse at all.
This is especially unfair to Prof. Sison. The CPP and the NPA,
both underground revolutionary organizations, are not known to
maintain any fund or property in the United States, for which
reason they have not bothered to file a case and subject themselves
to the jurisdiction of a US court. Prof. Sison, in contrast, is
a litigant in a well-known civil case in the United States Court
System, the Human Rights Litigation against the Estate of Marcos
in which Prof. Sison, after a lengthy procedure, obtained a favorable
judgment against the estate of former dictator Ferdinand Marcos
alongside some 10,000 other victims of the martial law regime.
That money judgment which is intended as compensation for the
violation of his human rights during the martial law regime is
now threatened with seizure by the US government by virtue of
his designation as a "terrorist". And he is deprived
of judicial remedies under the US blacklisting laws to protect
his right thereto.
Part Three: Consequences of the Terrorist
Listing of Sison
The full and actual consequences for his human rights of the
unchallengeable designation of Prof. Sison as a "terrorist"
under US law, however, cannot be appreciated without inquiring
into the subsequent events.
Dutch Listing of NPA and Sison
The US designation not surprisingly started a chain of similar
actions against Prof. Sison by Western governments allied with
the US in its so-called "war on terror". The Netherlands
government listed the NPA and Prof. Sison in its "terrorist"
blacklist on August 13, 2002, just a day after Prof. Sison's US
designation. The government of the United Kingdom listed him in
August 15, 2002; the Canadian government followed suit in August
29, 2002; and then also Australia.
It is noteworthy that the very text of the Dutch Sanctions Regulation
which places Prof. Sison on the Dutch blacklist refers to President
Bush's Executive Order No. 13224 regarding the US listing of Prof.
Sison. Not only is Bush's Executive Order No. 13224 used to justify
the Dutch listing of Prof. Sison, the Dutch government also considered
Bush's order as the Netherlands mandate to get Prof. Sison and
CPP-NPA on the European Union "terrorist" blacklist.
The Dutch government would later say that the restrictive measures
imposed on Prof. Sison within the territory of the Netherlands
proceed from its international obligations to the European Union
and, even more incredibly, to the United Nations. But it could
not be denied that the Dutch listing of Prof. Sison was prior
to the EU listing, and that the Netherlands did not wait for the
EU listing before subjecting Prof. Sison to sanctions.
In listing the CPP-NPA and Prof. Sison, the Netherlands was not
merely following its international legal obligations but taking
its own initiative in support of the Bush government's agenda
against Prof. Sison. It is simply incredible for the Netherlands
government to invoke its so-called obligation to the United Nations
under UN Security Council Resolution No. 1373. Res. 1373 which
provides for UN member states' general obligations against terrorism
in the wake of the 9/11 attacks does not establish a list of "terrorists",
and does not oblige states to place anyone in particular under
sanctions similar to the "targeted" sanctions imposed
on Osama bin Laden, the Al-Qaeda and persons and entities linked
to them by virtue of UN Security Council Resolution 1267.[13]
On the contrary, what Res. 1373 as well as 1267 do require
states to do is "bring proceedings" against suspected
"terrorists" within their jurisdiction[14]
and punish them presumably only after according them due process
of law. The requirement that the persons and entities against
whom states should "bring proceedings" must be within
their jurisdiction confirms the imperative both to respect the
principle of sovereignty and the due process rights of the accused.
The Dutch Sanction Regulation Against Terrorism 2002 III imposed
the following sanctions on Prof. Sison under Article 2 thereof:
"1. All means which belong to [Prof. Sison] will be frozen;
"2. It is forbidden to provide financial services for or
on behalf of [Prof. Sison];
"3. It is forbidden to place direct and indirect means at
the disposal of [Prof. Sison]."
By "means" is meant all "assets of any nature"
including "bank credits, travel cheques, postal orders, shares,
bonds, bills of exchange, credit papers and other stocks"
and by "financial services" is meant "insurance
services and insurance-related services, and all bank services
and other financial services".
Only one exception is provided under Section 3 of the Sanctions
Regulation, to wit:
"In agreement with the Minister of Foreign Affairs, the
Minister of Finance can on request grant exemption of the bans
mentioned in Article 2."
As explained in the explanatory note that accompanies the Sanction
Regulation, Article 3 "leaves open the option to provide
exemption for exceptional cases (for example for humanitarian
reasons)".
Following the issuance of the Dutch Sanctions Regulation, the
Utrecht Municipality issued a letter dated September 10, 2002
notifying Prof. Sison of the termination of all benefits that
he has been receiving therefrom starting August 15, 2002 in compliance
with the Sanctions Regulation. In the same letter the Utrecht
Municipality informed Prof. Sison that it should make a request
to the Dutch Minister of Finance for a lifting of the prohibitions
under the Sanctions Regulation to allow the Utrecht Municipality
to provide Prof. Sison anew with the benefits on humanitarian
grounds. Prof. Sison made such a request, and on October 4, 2002,
the Dutch Ministry of Finance allowed the Utrecht Municipality
to give Prof. Sison anew his benefits under the Regulations for
Asylum Seekers (ROA-benefits) on humanitarian grounds. However,
by the end of October 2002, following Prof. Sison's designation
in the "terrorist" blacklist of the European Union,
Prof. Sison's benefits were again withheld by the Utrecht Municipality.
Ople's Mission to Europe
The "terrorist" listing of Prof. Sison by the Council
of the European Union was accomplished through the combined efforts
of the Dutch government and the Philippine government who both
admitted to lobbying the various European foreign ministers for
this purpose. The then Secretary of Foreign Affairs Blas Ople
in a press statement said he led a special diplomatic mission
sent by President Arroyo and which included peace negotiators
of the Philippine government from October 14 to 21, 2002 to six
European countries, viz., Germany, Sweden, Norway, Denmark, Belgium
and Spain. He held bilateral dialogues with the foreign and justice
ministries of the said EU member countries. When the EU Council
Decision listing Prof. Sison as a "terrorist" was published
on October 30, 2002, Secretary Ople quickly ascribed credit for
the "diplomatic victory" for the Philippine government
on his own mission.
It is also notable that Ople's press statement linked his mission
with the "Final Peace Agreement" when it said "the
purpose of this diplomatic initiative was to bring pressure on
the Communists to agree to go back to the negotiating table and
discuss a comprehensive peace settlement that could lead to the
end of the decades-old armed struggle to overthrow the Philippine
state by force of arms. xxx We want them to lay down their arms
and transform themselves into a peaceful political party capable
of competing in the constitutional arena, in peaceful and democratic
elections."
Thus, it could not be denied that Prof. Sison's tagging served
principally a political purpose, in fact, a specific ill-intentioned
purpose, viz., to bring enormous pressure to bear on the NDFP
to capitulate to the Philippine government in the peace negotiations.
EU Listing
What has this "diplomatic victory" for the Philippine
government brought upon Prof. Sison?
Under the EU Council Common Position of 27 December 2001, the
legal consequences of being blacklisted by the EU are as follows:
"Article 2. The European Community, xxx, shall order the
freezing of the funds and other financial assets or economic resources
of persons, groups and entities listed xxx."
"Article 3. The European Community, xxx, shall ensure that
funds, financial assets or economic resources or financial or
other related services will not be made available, directly or
indirectly, for the benefit of persons, groups and entities listed
xxx."
Pursuant to these provisions, the Dutch government froze the
bank account of Prof. Sison which is jointly held with his wife
consisting of the amounts received as social benefits totaling
only 1,145.46 euros or approximately P50,000.00 and stopped paying
his welfare benefits as a refugee. The Dutch government also stopped
payments for his health insurance and third party liability insurance
as well as payments for his house rent resulting in his receiving
repeated notices to vacate his residence.
On May 23, 2003, the Dutch Central Organ for the Reception of
Asylum Seekers (COA) informed Sison (1) that the Municipality
of Utrecht has decided to "pass on the care and reception
of" and "its mandate over" Sison to COA, (2) that
COA decided that the "reception" of Sison "is ended",
(3) that COA decided to terminate his "reception benefits"
immediately, and (4) that he must vacate his house within three
days or else ejectment proceedings will be taken against him.
As we relate above, Sison was able to obtain a restoration of
his benefits during the brief period from October 4 to October
30, 2002 on humanitarian grounds which was explicitly recognized
in the Dutch Sanctions Regulation. With his terrorist listing
by the Council of the EU, Prof. Sison's benefits were terminated
once again and this time the Dutch authorities refuse to apply
the humanitarian exception to Prof. Sison. It did not matter that
Prof. Sison invoked the authority of the United Nations Security
Council, who in its Resolution 1452 relating to the so-called
UN Consolidated List involving persons and entities linked to
Osama bin Laden and the Al-Qaeda have recognized that social benefits
intended for the subsistence of a person are not included in the
assets to be frozen as a result so-called "targeted"
sanctions. It would indeed seem that persons like Osama bin Laden
have more rights than Prof. Sison.
While the EU Council Common Position and the EU Council Decisions
that placed Prof. Sison on the EU "terrorist" blacklist
speak of "combating the financing of terrorism", what
was frozen was not money intended for terrorism but money received
for a person's basic subsistence. Social benefits, health insurance
and third party liability insurance payments and payments for
house rents intended for a person deprived of the right to seek
employment cannot just be cut off without violating a person's
right to life.
The terrorist listing of Sison thus represents an escalation
of the assaults by the US, Philippine and Dutch governments on
the human rights of Sison. With his terrorist listing, not only
is his right to asylum under attack, his very right to life, a
right that is non-derogable and may not be suspended by states
under any circumstance, is now being targeted.
Prof. Sison is being deprived of means to live, a virtual death
sentence handed down without nary a notice or trial to ascertain
his defenses.
Sison's Cases before the European Court of First Instance
Prof. Sison is of course fighting back. He thinks he has to
exhaust all the judicial remedies theoretically available to him
under all the labeling laws used against him because, with very
little means to defend himself in public arenas where has been
demonified, he is forced to take the judicial avenues to vindicate
his name and his liberties.
Invoking his right to be informed of the charges against him
and to confront his accusers, he has challenged the European Council
before the Court of First Instance of the European Court of Justice
based in Luxembourg to divulge the evidence, if any, which were
used as bases for his inclusion in the EU "terrorist"
list. The Council has claimed that these pieces of evidence were
confidential and secret, and that the records relied upon by the
Council have been returned to the states that supplied them, and
then refused even to divulge the identity of the states that have
provided the Council such records.
Prof. Sison has also instituted action against the Council of
the European Union in the same court to have himself delisted.
Prof. Sison's arguments involving the failure of the designating
authority to accord due process to him before punitive measures
are imposed upon him echo the arguments raised by the petitioners
in the US Court of Appeals in the People's Mojahedin and Tamil
Tigers cases, and a number of cases in the European Court of Justice
brought by certain individuals aggrieved by the imposition of
"targeted sanctions" under UN Security Council Res.
1333.
In Prof. Sison's case for delisting, the Council of the European
Union urges that a distinction be made between the effects of
blacklisting and those of a criminal conviction, between sanctions
or "restrictive measures" attendant to blacklisting
and punishment or "punitive measures" imposed after
a criminal proceeding. If this distinction is granted--the Council
argues--then the due process rights applicable to persons accused
of a crime need not be observed when designating persons in the
blacklist. In other words, it is urged that Prof. Sison cannot
invoke the due process rights of the accused because he is not
accused of terrorism or of any crime for that matter, he is "simply"
blacklisted.
Ironically, if the Council's arguments are accepted, then the
situation of a person who is supposedly "merely listed"
and not yet accused would in fact be worse than a person accused
of the crime of terrorism. At least, the accused still has the
right to an impartial tribunal or court. The blacklisted person
is judged by executive ministers, not judges, who decide on the
basis not of evidence and law but of political (foreign policy)
considerations. At least the accused still has the right to examine
the evidence and cross-examine the witnesses used against him,
and to confront his accusers. The blacklisted person is designated
on the basis of secret files, if any, and his accusers' identities
are undisclosed. At least the accused has the right to present
evidence in his defense. The blacklisted person such as Prof.
Sison, subjected to a virtual death sentence, is judged before
he is heard.
Surely, Atty. Matthieu Beys has a lot more to say about the
cases of Prof. Sison before the European court because we have
only merely scratched on the surface thereof.
What is clear is that the European court now, because of the
cases filed by Prof. Sison therein, has a choice between replicating
or repudiating in Europe the "American solution" adopted
in the People's Mojahedin and Tamil Tigers cases where the designating
authority was fully shielded from the scrutiny of a meaningful
judicial review. The European court can chose to prolong the abuses
against Prof. Sison's rights committed in the name of the fight
against terrorist financing or vindicate the due process rights,
the right to life and other human rights interests of Prof. Sison
and other persons and entities wrongfully designated as "terrorists".
Conclusion
Jose Maria Sison is not accused of the crime of "terrorism"
in the Netherlands, in the United States, or in any part of the
world. In fact, at the time of his listing, he is not accused
of any crime or offense, not even a traffic violation, in any
court of any of the countries that listed him as a "terrorist"
including the Philippines.
Malicious allegations of criminal and terrorist activities have
been hurled at him to justify denial of his right to asylum. None
of these allegations have withstood judicial scrutiny in any Dutch
court. In the more than one and a half decades that he has resided
in the Netherlands, and although the Dutch government would claim
in his asylum case that he has contacts with terrorists or that
he directs terrorist acts from Dutch soil, the same government
could not even initiate a criminal investigation against him.
And yet he is being punished, subjected to cruel restrictive
measures as a publicly identified "international terrorist"
not only in the territory of his host country but in virtually
every liberal democratic country in the West.
This is made possible despite the lack of evidence against him
through sheer legal black magic, that is, through such labeling
laws (or more appropriately, "cursing" laws) as the
United States' AEDPA, the EU Council Common Position No. 2001/931/CFSP,
and Canada's Bill C-36 or the Anti Terrorism Law (Part II.1).
These laws allow executive officials to publicly identify organizations
and/or persons like Prof. Sison in an official blacklist of so-called
"terrorists" or "international terrorists"
without need of strictly adhering to judicial standards intended
to protect such persons' or organizations' due process and other
human rights. Through these labeling laws, the accused is first
punished before he is heard, if he is heard at all.
Persons such as Prof. Sison, an unwanted political refugee,
a "tolerated alien" whose mere presence in the Netherlands
the latter considers offensive to the United States, are specially
prone to the abuse of this labeling power. The perceived diplomatic
interests of the Dutch government, the political tactic of the
Philippine government in its negotiations with the NDFP, and the
whims of the United States government converge to damn Prof. Sison.
He is accused and punished by the very governments who have considered
him an enemy from the start.
The challenge to human rights defenders is to prevent the human
rights of persons like Prof Sison from being the casualty of these
governments' pursuit of their narrow political and diplomatic
objectives.#
* PILC is counsel for
Jose Maria Sison in the Philippines, correspondent counsel for
his cases in the European Court of First Instance, and legal consultant
of the National Democratic Front of Philippines (NDFP) Negotiating
Panel in peace negotiations with the Government of the Republic
of the Philippines. This paper was originally intended to be delivered
jointly by Judge ROMEO T. CAPULONG and Atty. JAYSON S. LAMCHEK.
[1] Judgment of the Raad van State, February
21, 1995
[2] The Judgment of the Raad van State of
February 21, 1995 reads as follows:
"Following article 15, first paragraph of the Aliens Law,
foreigners who come from a land where they have valid reasons
to fear persecution because of their religious or political belief
or their nationality or because they belong to a certain race
or to a certain social group can be admitted as a refugee.
"It is stated in the second paragraph of this article that
admission cannot be refused except on serious reasons in connection
with the general interest, in case the foreigner because of the
refusal is immediately forced to go to a land as meant in the
first paragraph." xxx
"xxx the defendant further is of the standpoint that even
in case it would be supposed that the treaty is applicable to
the appellant and the appellant becomes considered as a refugee,
then still on the basis of article 15, second part of the Aliens
Law the appellant can be refused admission here as a refugee.
Upon this the defendant in the contested decision subsidiarily
supposed that the activities that by and on the authority of the
appellant have and have been launched shall damage a serious interest
of the Dutch state, to wit the integrity and credibility of Nederland
as sovereign state, in particular in relation to its responsibilities
to other states." xxx
"The Afdeling comes to the conclusion that the real danger
of which the appellant fears, regarding inhuman or humiliating
treatment or punishment [does away with] a "fair balance"
as stated by the European Court for Human Rights in its judgment
of 7 July 1989, RV 1989, 94 in the Soering case. Once there exists,
according to the conclusion reached, real danger of inhuman or
humiliating treatment or punishment, there is no space for a further
balancing of interest between the interest of the appellant and
the interest of the Dutch state stated by the defendant by non-admission,
taking note of the absolute character of the prohibition in article
3 of the EVRM, which is stressed in the same decision in the Soering
case.
"From here follows that the contested decision on this point
cannot also be maintained." (Boldface and Italics supplied.)
[3] According to P. Boeles, Annotation in
Jurisprudentie Vreemdelingenrecht, 12 Nov. 1997, pp. 46-47; and
Jack Rodgers, "A Question of Law or Politics: The Sison Family
Asylum Case," Fortress Europe Circular Letter (FECL) No.
56, December 1998
[4] B.P. Vermuellen, Annotation in Rechtspraak
Vreemdelingenrecht 1997, pp. 29-34.
[5] P. Boeles, Annotation in Jurisprudentie
Vreemdelingenrecht, 12 Nov. 1997, pp. 46-47.
[6] Jack Rodgers, "A Question of Law
or Politics: The Sison Family Asylum Case," Fortress Europe
Circular Letter (FECL) No. 56, December 1998.
[7] The term "global" in "global
terrorism" is misleading when used in connection with the
NPA because, in the US' reports themselves, the NPA is described
as exclusively operating within Philippine territory. The question
thus arises as to the legal competence of the United States to
legislate over entities exclusively operating within Philippine
territory, particularly, to characterize such entities activities'
as terrorism. In the peace negotiations with the Government of
the Republic of the Philippine (GRP), the NDFP has raised the
position that the US and other foreign governments usurp the sovereignty
of the Filipino people by legislating over acts of the CPP-NPA
in the Philippines in connection with the armed conflict therein.
This position is recognized somewhat in the joint declarations
of the NDFP and the GRP of February 14, 2004 (Oslo Joint Statement)
and April 3, 2004 (Second Oslo Joint Statement).
[8] Pub L. No. 104-132 (1996). Ironically,
despite the fact that the bombing was committed by American citizens,
the AEDPA is largely directed at the problems of "alien terrorists"
and "foreign terrorist organizations."
[9] There is an earlier US blacklist specific
to "terrorists who disrupt the Middle East peace process".
There is also a blacklist of foreign governments "supporting
terrorism" and other specific lists. (See the website of
OFAC.)
[10] The maximum penalty is ten years imprisonment.
(AEDPA, Section 303(a)) "Material support or resources"
is defined as "currency or other financial securities, financial
services, lodging, training, safehouses, false documentation or
identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation, and
other physical assets, except medicine or religious materials."
(AEDPA, Section 303(a)).
[11] Joint Agreement on the Formation, Sequence
and Operationalization of the Reciprocal Working Committees (RWCs)
also known as the RWC Agreement.
[12] Sec. 3 provides: "Sec. 3. For
the purpose of this order: xxx (d) the term ‘terrorism'
means an activity that –
(i) involves a violent act or an act dangerous to human life,
property, or infrastructure; and
(ii) appears to be intended –
(A) to intimidate or coerce a civilian population
(B) to influence the policy of a government by intimidation or
coercion; or
(C) to affect the conduct of a government by mass destruction,
assassination, kidnapping, or hostage-taking."
[13] Contrast UN SC Res. 1373 with UN SC
Res. 1267 (which does impose so-called "targeted" sanctions
against a list of individuals linked to bin Laden and the al Qaeda).
The following long digression is helpful:
The United Nations list
There is still no universally agreed upon, or at least, UN-endorsed,
definition of the "international crime" of "terrorism".
UN member-states still debate, for example, on whether to include
or exclude "national liberation movements" within the
scope of the term "terrorism". Moreover, the reality
of "state terrorism" also underscores the obvious double
standard inherent in any definition that automatically excludes
states from its coverage. Notwithstanding the lack of a conventional
definition, certain states proceed to identify certain individuals
and groups as exemplifying "terrorism", cloaking the
political motivation for their actions with the dubious authority
of so-called international experts and the alleged imprimatur
of the United Nations.
Contrary to popular beliefs, the United Nations does not maintain
a general list of terrorists in the same manner as the United
States government. What has been referred to as the UN "consolidated
list" is a list of individuals and entities who belong to
or are associated with the Taliban government and the al-Qaeda
organization of Osama bin Laden. The list is drawn up by a committee
set up under Security Council Resolution No. 1267 adopted prior
to the September 11, 2001 attacks which imposes economic sanctions
on the Taliban government of Afghanistan for failing to surrender
Osama bin Laden who was then facing indictments in the United
States. The sanctions committee set up under Resolution No. 1267
was mandated by the Security Council under Resolution 1333 to
identify individuals and entities who belong to or are associated
with the Taliban government and the al-Qaeda so that "targeted
sanctions" (as opposed to "blunt sanctions" applied
to the Taliban government itself and are admittedly harming the
civilian population more than the government) may be applied against
these individuals and entities directly.
The sanctions committee is a body composed of 15 members who
represent the 15 members of the Security Council. The body decides
by consensus and refers disagreement to the Security Council that
ultimately controls its decision.
Prof. Sison does not appear in this UN consolidated list. An
individual or entity is placed in the UN list only by virtue of
an alleged link with bin Laden or Al Qaeda. This limitation, however,
has not prevented states from instituting counter-terrorist measures
directed at suppressing dissident organizations and individuals
on the basis of the most tenuous alleged links to bin Laden and
Al-Qaeda.
By virtue of Res. 1267, 1333 and subsequent resolutions related
thereto, member states of the UN are required to freeze funds
and other financial resources and assets of the individuals and
entities listed by the sanctions committee formed under Res. 1267.
Member states are obliged to ensure that no such frozen funds
or assets are made available to or for the benefit of such listed
persons as well as any entities owned or controlled, directly
or indirectly by such listed persons. Lastly, member states are
called upon "to bring proceedings against persons and entities
within their jurisdiction that violate the measures imposed xxx
and to impose appropriate penalties."
[14] Again notice that the NPA, an entity
that exists and operates exclusively within Philippine territory,
is outside the jurisdiction of the Netherlands. Even under US
common law and jurisprudence (Pennoyer vs. Neff, 95 US 714 (1878)),
jurisdiction is an aspect of sovereignty and refers to judicial,
legislative and administrative competence. Exercise of jurisdiction
over an organization like the NPA which exists and operates exclusively
within Philippine territory by the US, EU, UK, the Netherlands,
Canada and Australia is indeed problematic in itself, leaving
aside the question regarding the right to national liberation.