Pleadings by Jan Fermon,
the counsel of Prof. Sison at the hearing of the Court of First Instance
of the European Union on April 30, 2009
(At the hearing, German lawyer Eberhard Schultz read Part I and Jan Fermon, Parts II and III.)
April 30, 2009
Mister President, Members of the Court,
In my 30 minutes of intervention on behalf of Professor Sison I cannot deal with all matters mentioned in the application. I will just highlight some points that my client deems important.
I will share with the Court some information on the background of this case, necessary for a good understanding of the position of Professor Sison and the reasons why his name was included in the list at stake.
And I will then discuss the question whether the legal requirement to take a decision is fulfilled in the present case.
I.
Who is José Maria Sison and what is his role in the progressive movement in the Philippines?
Professor Sison is a Filipino intellectual who has written numerous books and articles on Philippine history, politics, economy and culture;held academic positions in two Philippine universities; and played an important role in Philippine politics in opposition to the Marcos dictatorship and succeeding regimes..
José Maria Sison was founder of the Communist party of the Philippines and chairman of the Central Committee from December 1968 to November 1977, when he was arrested by the Marcos dictatorship.
He was detained for 8 ½ years until March 5, 1986 and subjected to torture. He was kept in solitary confinement for a long time. He was replaced as chairman of the CPP and did not play a leading role in the CPP.
He was released after the Marcos dictatorship collapsed and became an associate professor at the University of the Philippines. He also engaged at that time in the establishment of a legal political party, the Partido ng Bayan (Peoples Party).
On August 31, 1986 he left the Philippines on a global lecture tour of universities. Factions in the military that were extremely hostile to the progressive movement used their influence and convinced the Philippine government to arbitrarily cancel Professor Sison’s passport in September 1988. He was therefore forced to apply for political asylum in the Netherlands in October 1988.
Using derogatory information provided by the Philippine government, the Dutch minister of Justice (and we will get back later to that more in detail) decided to reject in 1990 Professor Sison’s application for asylum, arguing that he was subject to one of the exclusion clauses of article 1 F of the Geneva convention .
Professor Sison appealed this decision before the competent Dutch judicial authorities (namely the State Council) which issued a judgment overruling the decision of the Dutch minister and ruled in favour of Professor Sison in 1992. After the second negative decision of the minister, the State Council once more issued a judgment in favour of Prof. Sison in 1995.
After the third negative decision of the Minister in 1996, the new appeal of Professor Sison was referred to the The Hague district Court and subsequently the Law Uniformity Chamber (REK). Before the REK could hear the case in 1997, the Minister of Justice changed his position. Instead of arguing that Professor Sison could be excluded from the refugee status, he now conceded that Prof. Sison is a political refugee under Article 1 a of the Refugee Convention but invoked the freedom of policy to refuse legal admittance and residence permit despite the State Council judgment that Prof. Sison is a political refugee.
While in exile in the Netherlands, Professor Sison cannot hold a high leading position in any political party in the Philippines whether it be the illegal Communist Party or a legal party such as Partido ng Bayan.
However, he has been able to write about the social, political and economic conditions of the Philippines and he has also engaged actively in the peace negotiations that have been initiated in 1990 between the government of the Philippines on one hand and the National Democratic Front, an umbrella organisation of a large number of progressive organisations, which include the Communist Party of the Philippines and the New People’s Army, as well as e.g. the Christians for National Liberation.
Professor José Maria Sison is the chief political consultant of the negotiating panel of the National Democratic Front.
The peace negotiations have been facilitated by several European governments, including the Belgian, the Dutch and the Norwegian, and have been supported by the European parliament through resolutions in 1997, 1999 and 2009. The negotiations have led to a series of partial agreements.
The Hague Joint Declaration of 1992 lays the framework for negotiations towards a just and lasting peace. An agreement has been forged on the first of four substantive items of the agenda: the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law. This has led to the organisation of a joint monitoring committee for human rights in the internal conflict in the Philippines. Professor Sison has played an essential role in the conclusion of 12 agreements between the Philippine government and the NDFP.
Since his release from military detention in 1986, neither in the Philippines, in The Netherlands nor in any other country in the world had Professor Sison been subject to any criminal investigation until that in The Netherlands on the charge of inciting murder in 2007 that was eventually closed on 31 March 2009 for lack of evidence.
After the events of 9.11 the Philippine government engaged in a campaign to criminalize the internal opposition as “terrorists”. It is clear that an internal armed conflict exists in the Philippines, subject to the laws of war and to international humanitarian law. An illustration of that reality is of course the fact that the Philippine government has concluded agreements with the NDFP, which include precisely the application of international humanitarian law in the conflict.
After September 2001 the position of the Philippine government however changed in a significant way. It now sought to break away from the initial The Hague declaration in which the parties agreed that it was essential to address the root causes of the armed conflict, such as poverty and oppression, through social and economic reform; and political and constitutional reforms. It sought to impose upon the revolutionary movement a capitulation agreement.
Professor Sison was warned informally by Philippine authorities before his inclusion in the US terrorist listing that if the National Democratic Front would not accept the conditions the government of the Republic of the Philippines sought to impose, Professor Sison would be branded as a terrorist.
Several statements by officials of the GRP show clearly that Professor Sison was listed by the US and the European Union upon the request of the Government of the Republic of the Philippines. It is undeniable that the Netherlands, in close collaboration with the US government, put Prof. Sison on its national list of persons allegedly involved in or facilitating terrorist activity. Although the peace negotiations have been conducted under the facilitation and protection of the governments of Norway, Belgium, and the Netherlands, the latter two EU countries through the contested decision 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”.
The website of the Dutch foreign ministry is very clear in that perspective. It shows beyond any doubt the purely diplomatic or extra-legal reasons as the basis of the listing.
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 Netherlands, 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”.
It is patently clear that Prof. Sison’s name is included by the Council in the list for reasons that have nothing to do with the fight against terrorism.
This is even more underscored by the fact that close examination of all transactions on the bank account of Professor Sison in the period before his inclusion in the list shows that on one hand he received exactly €201.93 every month as a social allowance and that all his expenses are related to essential human needs.
During the hearing of May 31 2006 in case T 47 / 03 the representative of the Dutch intervener in response to questions at this Court admitted that no suspect transactions had been observed on Mr. Sisons bank account. The aim of the legislation that allows the Council to freeze assets of persons involved in terrorism is precisely to combat the financing of terrorism. In this particular case there is not even the beginning of an allegation that Professor Sison might be involved in such activity of financing terrorism. In T 47 and in the initial application in this case Professor Sison therefore argued that the Council was misusing his powers. Professor Sison did not maintain this argument in the abbreviated application, not because he thinks the argument is false, but simply because there are much stronger arguments that should convince this court to annul the decision by which he has been included in the assets freezing list.
Professor Sison was included in the US assets freezing list on August 12, 2002. The next day he was also included in the Dutch list. Shortly after he announced publicly that he would challenge in court this inclusion in the Dutch national list he was included in a EU list and taken off the Dutch list. Professor Sison launched an application for annulment of his inclusion in the EU list and against all subsequent decisions by which he was reincluded every 6 months in a new list.
The main discussion in case T47 was on the absence of procedural safeguards. Professor Sison was indeed included in the list without any notice (he found out about his inclusion because his dentist and the grocery store complained about unpaid invoices), no statement of reasons was given by the Council, no possibility at all for contradiction was offered, etc.
This Court annulled the inclusion of Professor Sison in the list by its decision of July 11, 2007.
II.
However as the list is renewed by the Council in general every 6 months a new decision was taken a few days before this Court announced its judgment. This new decision had for obvious reasons not been discussed during the oral proceeding of T 47 and the Court therefore could not annul it. This time the Council did send to Professor Sison in the month of April, prior to the decision in June, a letter containing a projected statement of reasons.
Professor Sison immediately reacted to this so called statement of reasons: he drew the attention of the Council to the fact that the statement of reasons contained not only wrong interpretations of Dutch judicial decisions, and references to decisions that do not meet the legal requirements of the Community legislation , but also – and maybe even primarily- a gross factual error in as far as it stated:
“The Legal Uniformity Chamber of the Court in The Hague confirmed on 11 September 1997 the decision of the Administrative Law Division of the Raad van State on 21 February 1995. The Administrative Law Division of the Raad van 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 number of terrorist attacks in the Philippines, and because it also turned out that he maintains contacts with terrorist organizations throughout the whole world.”
Even a quick glance at the operative part of the judgment rendered on 21 February 1995 by the Dutch State Council shows that this judicial body decided exactly the opposite of what is stated by the Council and that it did not consider the decision of the Minister to refuse Sison asylum as legitimate but on the contrary annulled it.
This totally false allegation has been repeated in every single statement of reasons provided to Professor Sison since the first decision at issue. It is not a matter of different interpretation of the judgements of the Dutch State Council. It is a factual error, an untruth.
It is the applicant’s first argument in this case. Any statement of reasons that contains on such a question, essential to the decision, an allegation which is simply and blatantly wrong and not open to interpretation can anyhow not be considered as an adequate and sufficient basis for any decision.
That means that I could stop here and ask the Court to annul all the decisions since June 2007 because each and every one of them contains this untruth.
It is indeed not up to your Court or to the parties to speculate on the relative importance this wrong factual element has had in the deliberations of the Council or to correct this untruth and to implicitly or explicitly replace the statement of reasons adopted by the Council by a more correct one.
That is even more true while the Council benefits from a broad discretion to include somebody, a person or an entity in a list once the legal requirements are met. The Council can however not benefit from the discretion to take such a decision on allegations that are evidently untrue.
However, if the Court annuls the decisions (which I think is inevitable) on these grounds only, a purely formal correction of this error would be sufficient to include Professor Sison again in a new list based upon an almost identical statement of reasons. I therefore want to go further into the question whether the statement of reasons as given, even if it would not contain this gross error, could meet the legal requirements set out by the community legislation.
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
The Council does not comply with these very strict conditions in the present case.
Three judgments by judicial authorities were made in relation to the asylum case and the residence permit of Prof. Sison: two by the Dutch State Council and one by the The Hague District Court (REK or Rechtbank). These decisions are referred to wrongly by the Council as a “decision by a competent authority” in the sense of the community law.
The legal requirement is indeed that the said “decisions by the competent authority” should be “For a terrorist act, an attempt to perpetrate, participate in or facilitate such an act” and “Based on serious and credible evidence or clues or condemnation for such deeds”
None of the the aforecited decisions was about the involvement of Mr. Sison in any act of terrorism. They were decisions on whether the Dutch Minister of Justice could
” Exclude him from the protection he is entitled to receive as a refugee 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.
” Refuse him residence status on grounds of overriding public interest
To the first question the three 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 State Council responded negatively, 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 his physical integrity might be in danger. No factual finding, conclusion or ruling was taken by the Rechtbank to make Prof. Sison liable or culpable for any act of terrorism.
How can one seriously read in the aforecited three judgments that these judicial authorities found “serious and credible evidence or clues” that prof. Sison was involved in “terrorism” while these questions were simply not discussed by the Courts.
The Court of The Hague finally, upholding the core of the decisions of the State Council, said that the Minister had a discretionary power to refuse residence, even to a refugee, on grounds of overriding national interest, a vague, imprecise and highly political concept. Of course M. Sison never accepted this decision.
Refugee status and residence status as an alien on considerations of overriding public interest. That is what the decisions were about. Not as art. 1(4) of the CP requires about “a terrorist act, an attempt to perpetrate, participate in or facilitate such an act”.
In order to be able to misuse these decisions nevertheless as grounds to include prof. Sison in the list the Council simply misrepresents the decisions of the State Council and The Hague Court.
The Council alleges that the State Council had made factual findings that were negative to M. Sison and according to which he had sought to give effective leadership to the NPA. The State Council on the contrary found that the materials from the Dutch secret service that were seen by the Court, but never submitted to two-sided scrutiny and debate, were “not sufficient evidence for the fundamental judgment that the applicant 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”
“No serious reasons, not sufficient evidence”, that is what the State Council said and not “factual findings confirming the allegations of the Dutch Justice Minister”.
The decision of The Hague Court is also misrepresented by the Council especially when the Council says that this Court upheld the decision of the Minister not to recognise refugee status to Prof. Sison. The Hague Court says on the contrary “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 only point on which the Court upheld the decision of the Minister is precisely that he has the discretionary power not to admit Prof. Sison and to grant him residence even as a refugee “for important reasons arising from the pubic interest”.
It is true that the State Council decision and the decision of The Hague Court refer to alleged personal contacts of Prof. Sison with terrorist organisations. The materials established by the Dutch secret service, examined by these jurisdictions but never submitted to contradiction and debate, are supposed to show contacts between Prof. Sison and terrorist organisations. Is that sufficient to put him on the list? The answer is no. Such allegations 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. Of course Prof. Sison denies that he had any contact of a criminal nature with persons involved in terrorism. But what exactly is a contact? What is the context of these alleged “contacts” of Prof. Sison with terrorists? What is the content of these contacts and their aim? No information whatsoever is made available. And is it reasonable to say that the information about these contacts should be kept secret? If such contacts existed at any time, Prof. Sison surely knows about them. The only “risk” is therefore that prof. Sison can show that these contacts do not exist.
As a conclusion I can say 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.
III.
The three last decisions to include Prof. Sison in the list at issue contain the blatant error in relation to the judgment of the State Council and the reference to the misrepresented decisions of the State Council and the Court in the Hague. As said, that is a sufficient reason to annul these decisions.
However these three last decisions contain in addition, a reference to a criminal investigation in the Netherlands against Prof Sison for inciting to commit three murders in the Philippines.
For various reasons to which I will get in one minute we believe that this investigation cannot be considered as a valid ground for Prof. Sison’s inclusion in the lists at issue.
But first it is important that your Court has a few elements about the background of this investigation.
In 2005 the Philippine National Police filed a case in a local trial court in Makati in the Philippines against more then 50 defendants amongst which Sison but also members of parliament. The local court ordered the arrest of some defendants. The defence lawyers were so outraged by the obviously biased content of the case that they took it immediately to the Supreme Court. Bringing the case to the court was really very exceptional and was to some extent a gamble because they had no idea if the Supreme Court would accept the petition.
Not only did the Supreme Court accept it but it took an exceptional decision on June 1, 2007 (which it declared executory on July 2 after a motion for reconsideration)
It ordered the Regional Court of Makati to dismiss the cases because of “the obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors. …We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice even-handedly … ”
Before this time the Secretary of Foreign Affairs of the Philippines travelled to the Netherlands to hand over to the Dutch authorities the same file submitted to the Makati court. In the Philippines the whole file was thrown into the dustbin by the Supreme Court by a decision that was shaming to the Prosecution. But that did not stop the Dutch prosecutor to recycle part of the file in order to start a spectacular investigation in The Netherlands that led to the arrest of Prof. Sison on August 28, 2007.
At the time of the discussion in T 47 there was no criminal investigation against prof. Sison ongoing and the Dutch Minister De Hoop Scheffer had declared in parliament that there was even not enough to start an investigation. Although your Court did not even have to examine the question and annulled the decisions for violation of procedural rights, it seemed obvious to us that the substantial requirements were not met either by a reference to the State Council and The Hague district court decisions.
In the light of the new series of decisions to include Prof. Sison in the list after this Court’s judgment of July 11 2007. the criminal investigation was very timely.
Sison was arrested on August 28, 2007. On September 13, 2007 the Court in The Hague ruled to terminate his remand in custody for lack of grave presumptions that Sison did incite the murders.
The Prosecutor appealed this decision and on 3 October 2007, the Appeal Court in The Hague took a decision that was even clearer. The demand for remand in custody was rejected. And the Court stated the following:
“The only (presumed) accountability of the suspect within the chain of the CPP, among which the NPA which is supposed to have committed the murders , is for establishing of his criminal responsibility for the above described facts/offenses is in abstracto not sufficient. For that it is necessary that a direct connection has to be established (and lawfully and convincingly) proven between the behaviours, actions and negligence of the suspect and that of the murder attacks committed in the Philippines that lawfully speaking can be taken as perpetrator (or offender).
According to the judgment of the Court, however, the pieces of information available at present there is no concrete indication at all from which the direct criminal involvement of the suspect in the alleged behaviour can be drawn.
The Court further notes that the facts perhaps have a political context and that incriminating declarations have been made against the suspect in the Philippines and also considering the political constellation there, cannot just simply be taken as reliable.”
As a result of that decision the investigating magistrate decided on November 21 2007 (after numerous possibilities given to the prosecution to bring new evidence) to close the investigation. The Prosecution then decided to continue the investigation which is possible under Dutch law. On an appeal of Prof. Sison the Court decided again that there was no sufficient evidence at that time but gave the prosecution additional time to bring new evidence.
Finally Prof. Sison received a notice of discontinuation of prosecution sent to him by the National Prosecutor’s office on march 31 2009.
As a result we can conclude that all judges, in the Philippines and in the Netherlands to whom these charges in their various forms were submitted dismissed them. And even more that both the Supreme Court in the Philippines and the Appeal Court in the Hague referred to the political motivation behind the charges.
We think that this criminal investigation for the reason exposed in the application and that we cannot discuss now because of lack of time, does not meet the requirements of the community law.
If the Court however would consider that this was a criminal investigation in the sense of art. 1(4) of the Common position we still argue that it cannot be a valid ground for inclusion in the list.
We understand that the Court cannot re-examine completely the evidence that was taken into consideration by the competent national authority. But in the present case we don’t ask this Court to do so. On the contrary, we ask this Court to take into consideration the judgment of all national judicial authorities that examined the so called evidence and found it politically biased and without merits (except for the Makati trial Court).
In those conditions any further reference to the allegations of involvement in terrorist activity would violate the presumption of innocence according to the case law of the European Human Rights Court.
This Court cannot accept a merely formal prosecution.
If such “decision to prosecute” would be accepted by your Court as a valid ground to demonize and to submit an individual to strong punitive action by the Council, the very rule of law would be at stake and the road open to any kind of political manipulation.
