Presentation at the International Conference for Human Rights and Peace in the Philippines

Quezon City, Philippines
20 July 2013

PANEL 4. Best Practices: International solidarity campaigns

By JAN FERMON ¹
Spokesperson, Progress Lawyers Network
Deputy Secretary General, International Association of Democratic Lawyers

and MATHIEU BEYS ²
Member of international defense team of Jose Maria Sison

The inclusion of Jose Maria Sison in de EU listing of terrorists: criminalization as part of a political and diplomatic campaign

To develop a correct defense strategy in a highly political case such as that of the terrorist listing of Prof. Jose Maria Sison it is necessary to understand the political significance of such a measure.

Prof. Sison was included in the US assets freezing list of foreign terrorists on the 12^th of August 2002 and in a national Dutch similar list on the 13^th of August. On August 14, 2002, the Presidency of the Philippines adopted a directive with 9 guidelines for conduct towards the Communist Party of the Philippines (CPP) and the New People’s Army (NPA). These guidelines welcome the inclusion in the list and reflect a clear choice in favor of a “military option.” Later when Joma Sison’s defense announced that it would challenge the inclusion in the Dutch list that was withdrawn and at the demand of The Netherlands Joma Sison was included in October 2002 in the EU terrorist listing. As you probably know that decision was finally and for good quashed by a judgment dated 30^th September 2009 of the European Court of First Instance in Luxemburg.

These few facts provide precious information on the political background of the listing. Especially the proximity of the dates is a clear indication that the inclusion of Sison in the list was an internationally coordinated action involving the Government of the Philippines, the US administration and the EU.

We should understand why each of these three entities engaged in such coordinated and vicious attack on Prof. Sison. The US, the Manila government and the EU each had their own partially overlapping interests.

The Government of the Philippines signed in September 1992 The Hague Joint Declaration with the National Democratic Front of the Philippines (NDFP). That declaration is a clear roadmap for the peace negotiations and is binding on both parties.

The parties committed themselves to formal negotiations to resolve the conflict with the goal of “a just and lasting peace.” The declaration also states that negotiations will be conducted “in accordance with the mutually acceptable principles such as sovereignty, democracy and social justice.” In addition, the declaration states that the bargaining agenda includes four substantial points: “human rights and international humanitarian law, socio-economic reforms, political and constitutional reforms, and the cessation of hostilities.”

However, it became clear quickly that the Manila government, dependent upon the support of the US and subservient to the interests of the ruling classes in the Philippines, was unable and unwilling to deliver on any of these points. A Comprehensive Agreement on the Respect for Human Rights and International Humanitarian Law (CARHRIHL) was concluded in March 1998. Both parties committed to protect the human rights of Filipinos, especially the workers, peasants, and the poor, to fully respect international humanitarian law in the midst of conflict. The agreement covers all human rights, civil, political, economic, social, and cultural, and explicitly refers to international legal instruments. In addition, it contains a commitment from the government to withdraw certain laws to ensure special treatment for political offenses, to respect the rights of workers as defined by the International Labor Organization, etc.

Concerning the conduct of hostilities, the parties seek to respect the general principles and accepted standards of international humanitarian law. The agreement included specific commitments of the government, such as refraining from setting up paramilitary groups. In addition, it required the parties, as an obligation, to bring to justice those who violate human rights or international humanitarian law. A Joint Monitoring Committee was set up. The Government of the Philippines however, since refuses to participate effectively in the enforcement mechanism put in place by this mutually binding agreement.

The Government has equally been unable to deliver on the other substantial points of The Hague Joint Declaration and on the socio-economic, political and constitutional reforms.

It is therefore that the Government under the previous administration had chosen to abandon the peace negotiations and to opt for a so-called military solution. In that perspective criminalization of NDFP member organizations and of its chief political consultant as “terrorists” was the logical consequence of a choice for all-out war and against peace. Any government that respects itself does not negotiate with terrorists but fights them as criminals. Branding the CPP, the NPA and Sison was a smokescreen to hide the fact that the Government had no intention and was unable to make any progress on the substantial points on the roadmap to peace. It opportunistically used the 9/11 events to transform the NDFP from a respected opponent in negotiation into a gang of the most heinous criminals.

The Government of the Philippines apparently hoped that this kind of pressure on the NDFP would move the organization (or part of it) to capitulate.

The inclusion in the lists had been preceded in December 2001 and January 2002 by the Philippine government’s requirement for the NDFP to sign a “definitive agreement” it had prepared and which implied the negation of all that had been previously agreed, in exchange for a possible “delisting.”

In January 2003, the Foreign Affairs Secretary of the Philippines, Blas OPLE, said: “Once there is a peace agreement, I will request to the EU, the United States and other countries to delist (the rebels) as terrorists. If they sign, they will no longer be terrorists”³. The NDFP obviously did not succumb to such blackmail.

The United States of America had objectives at different levels:

• “binding” its Filipino clients to the US by assisting them to realize their plans in the peace process

• Seek justification for US military presence in the Philippines, a necessary link in the chain to encircle China and a potential platform for military action in the whole of Asia.

• Neutralizing by intimidation the NDFP which is the main force in the Philippines opposed to US military presence and capable to raise the Filipino masses against such presence.

• More general: setting a precedent on extending the “war on terror” far beyond Al Qaida and its allies to liberation movements and impose upon the world a new international framework that undermines and annihilates the more progressive framework of international law created in the aftermath of the antifascist struggle during World War II.

The European Union supported the move also for different reasons.

The website of the Dutch foreign ministry is very clear in that perspective. Its shows beyond any doubt that purely diplomatic reasons are the underlying reasons for the listing: maintaining beneficial political and economic relations with the corrupt and repressive regime in the Philippines and pleasing its protector in Washington.

Immediately after mentioning the extensive trade relations and the fact that the Netherlands is one of the major investors in the Philippines with the presence of more than 150 companies, the Dutch Foreign Ministry states:

“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. … 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”.

The legal defense of Jose Maria Sison as part of a political counter offensive.

It was from the very beginning clear that the inclusion of Jose Maria Sison in the EU assets freezing list had nothing to do with the fight against terrorism.

Jose Maria Sison is not involved in terrorist activities. Officially the assets freezing lists are instruments to prevent the financing of terrorist activities. Not at any point of the proceedings the European Council argued that Jose Maria Sison was involved in any suspicious financial transaction. When the Court asked the Council if they had observed such transactions the Council was simply unable to answer the question while the point had not even been thought of. The only income of Jose Maria Sison was his monthly social allowance of 200 Euros and his expenses were limited to payment of the grocery store, his dentist, etc.

While it was obvious that the case was purely political in nature the very first point for the defense was to respond politically. On the other hand it was not sufficient to give a mere political answer. In order to convince the Court but especially to gather wide support from the public for the case, it was necessary to show that the European Council had violated various rules of international and European law by including Jose Maria Sison in such list. The political and legal aspects of the case went hand in hand which was essential to an effective defense.

In the political aspect of the defense a difficult tactical question arose: the CPP and the NPA had decided not to submit an application to the European Court against their inclusion in the list while they very rightly found that the legitimacy of the revolutionary struggle in the Philippines was not to be subject to the judgment of a Court established by an imperialist institution such as the European Union. The defense of Jose Maria Sison’s case had to take into consideration this decision. Sison’s defense could therefore not concentrate on the legitimacy of the revolutionary struggle in the Philippines and its total incompatibility with terrorism. Doing this would have submitted that legitimacy indirectly to the judgment of the Court. And on the other hand it was necessary to defend that legitimacy for the work in the public opinion and to some extent could not be avoided in the Court. Luckily the NDFP negotiating panel intervened voluntarily in the proceedings. The role of an intervener is to support the main applicant by submitting additional information to the Court on which the Court must however not pronounce itself. The NDFP informed the Court and the public opinion about the nature of the peoples struggle in the Philippines and its total opposition to terrorism.

Sison’s defense concentrated on the obvious violations of fundamental rights contained in various international human rights instruments.

First of all it was argued that the European Council misused its powers by listing Sison for obvious political and diplomatic reasons without any effect on the prevention of terrorist activity in which Joma Sison was anyhow not involved.

Secondly, the defense also argued that the Council did not even respect its own legal conditions as set by the regulation establishing the list mechanism.

The regulation required at least a prior investigation on a national level by a judicial authority into terrorist activity. There was no such investigation in this case. In the second stage of the proceedings the Council referred to three decisions in Sison’s asylum proceedings, pretending that these decisions had been unfavorable to Sison. In fact the European Council went as far as simply pretending that these decisions said exactly the opposite of what they really contained. When the Council understood that this argument had to be rejected by the Court while it was completely outrageous and easily recognizable as false by anyone who can read and write, false and trumped up charges for ordering murders in the Philippines were brought against Jose Maria Sison in Holland with the help of the Government of the Philippines. Sison’s defense was not only able to show that the so-called witnesses had been professional assets of the military in previous cases, that they had been interviewed by Dutch policeman in the Philippines but either in military camps or –I wonder why- in the US embassy in Manila. And finally, last but not least, that the same charges had already been dismissed with the following consideration by the Supreme Court of the Philippines which 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 … ”

In a desperate attempt to create an investigation for “terrorism” against Jose Maria Sison, the Dutch picked the file out of the dustbin of the Supreme Court and arrested Sison on murder charges. A Dutch Court released him after 15 days and the case was of course completely dropped by the time the terrorist listing case was pleaded in the European Court.

Thirdly, not even the most basic right to a fair trial was respected. The inclusion in the list was initially done without any notification of a statement of reasons and even without any notification at all. Sison found out about his inclusion in the list because his grocer complained about not being paid. When asked for the reasons of the decision, the Council answered first that the file was secret, then that there was no file and finally that the file had been taken back by the EU member state who submitted it. When asked which state this was the Council argued that that was also secret. A large part of the defense of Sison therefor concentrated on the violation of fair trial rights.

The defense of Jose Maria Sison was conducted in parallel in the European Court and in public opinion. This was absolutely necessary. The concerted international attack on Sison was conducted to criminalize him in the eyes of the international public opinion, and through him the struggle of the revolutionary movement in the Philippines. Delegitimizing the progressive movement and legitimizing the unlawful repression against the people’s movement taking the form not only of military action against the NPA but also of the re-emergence of death squads and extrajudicial killings were the result of this US-EU policy which made them accomplices of such crimes.

Therefor the public opinion in Europe had to be informed that by including Sison in the EU terror list, the EU supported state-terrorism in the Philippines, helped to derail the peace negotiations, acted as a puppet of the US, violating the most fundamental human rights so solemnly proclaimed by the European Human Rights Convention and the European Charter of fundamental rights.

The Defend Sison Campaign played an essential role in this. All documents of the proceedings were immediately published on the website so that every democrat in Europe had the possibility to consult them and make up his or her own mind on the case. The Defend Sison campaign opposed complete transparency to the secrecy of the decision making process that lead to criminalization at the EU level.

Numerous public events were organized where members of the international defense team gave information about the case to the public. A petition campaign was developed.

The Defend Sison Committee informed the press by way of public statements which resulted in an increasing number of press articles describing the injustice done to Prof. Sison.

Without this work towards the public opinion it would have been much more difficult to create the right climate for the Court to annul the listing of Sison a first time in 2007 and, while the European Council insisted and included Sison again in the list, a second and final time in 2009.

Some points of conclusion:

1. The Sison case shows how far the US and EU are willing to go in violating the rule of law, the most essential rights of defense, the obligation to transparency which they loudly claim, on the other hand, to cherish. Joma Sison was included in the blacklist based on a secret file and without any specification of the accusations. His rights of defense were thus only slightly inferior to the ones that were respected by the Spanish inquisition.

2. And all this with the goal to demonize opponents to imperialism and dissenters like Sison. And now even beyond, individuals such as Bradley Manning, Julian Assange or Edward Snowden who simply inform the public about the crimes committed by the US have also become targets of criminalization.

3. This far-going violation of fundamental rights calls for a vigorous and offensive response of the progressive movement. uman rights have been used It is important to claim fundamental rights back as the legacy of the progressive movement while there has been so much demagogical misuse of the term “human rights” promoting the idea that the “free west” is the champion of these rights while in reality it is the worst violator. Breaking through this smokescreen by exposing the violations of national and international law is a necessity.

4. Combining legal and political arguments into one comprehensive defense that is conducted transparently is another requirement to create the conditions to win cases and to stop the criminalization. In particular such arguments based on law and on politics are necessary to be able to arouse public awareness and support without which victory is totally impossible.

1 jan.fermon@progresslaw.net Progress Lawyers Network LN spokesperson, lead lawyer in the international defense team of Jose Maria Sison, Deputy Secretary General of the International Association of Democratic Lawyers (IADL)

2 mathieu.beys@progresslaw.net, member of the international defense team of Jose Maria Sison

3 “Reds must sign peace accord to get off terror list: Ople”, Agence France-Presse, February, 1, 2003 (http://www.inq7.net/brk/2003/feb/01/brkpol_12-1.htm)