By Jan Fermon
Progress Lawyers
Attorney for Jose Maria Sison in Sison vs.EU
Broadcast of Radio Nizkor
16 August 2010

EU – The Slow Road to Justice: The case of Jose Maria Sison, by Jan Fermon, Progress Lawyers, attorney for Jose Maria Sison in Sison vs. EU. (Conference: “Terrorism Lists, Executive Powers and Human Rights”, Université Libre de Bruxelles, 20Oct09). Radio Nizkor, 16 August 2010

This audio document contains the speech delivered by Jan Fermon, attorney for Jose Maria Sison in Sison vs. EU, at the Conference “Terrorism Lists, Executive Powers and Human Rights”, held on the 20th of October 2009 at the Free University of Brussels

Jose M. Sison is a Filipino national who has been listed on the EU list.

In his speech, Jan Fermon:

– Describes some of the aspects of the proceedings and their developments.
– Comments on the improvements referred to by Mr. De Kerchove (PMOI case) and their impact on Sison’s case.
– Comments on the devastating influence of the listing on the ongoing peace process in the Philippines.

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ABOUT THE PROCEEDINGS: Jose M. Sison was listed first by the US on the 12th of August 2002. One day after he was put on a Dutch national list, for he is residing in Holland since 1988. In September 2002, after announcement that Sison will take this matter to a Dutch court, he was taken off the Dutch list and put on the EU list, so finally the case had to be brought before the European Court of Justice, where the decision process is much slower. The first decision took 5 years, the second one 2 more years. The ruling was in favor of Sison.

As for the reasons why Jose M. Sisan was on the list, the Dutch government provided no answer. The Council of the EU responded, first, that the information grounding his inclusion on the list was secret; when access to the file was then requested, the answer was that there was no file. Later on, it was admitted that there was a file, but the file was submitted to the Committee by a member state who took the documents back… and the information as to which state submitted the documents is also secret. According to the speaker:

1) In terms of due process of law this means that the EU, at least at this initial states, is acting as the Spanish inquisition, where the whole proceedings were conducted on a secret file and the arguments held against the “defendant” where kept away from him. It is the defendant who has to show that he/she is not a terrorist.

2) Consequences: The sanctions imposed upon the person are extremely harsh. Sison was not allowed to work in Holland, where he had a modest social allowance which was taken away from him. He could not have access to any insurance. Not being able to pay for rent of his apartment, he received a letter saying that he had to leave the apartment. It is all about a a sanction that was abolished by the French revolution, and that is call “civil death”, by which the individual is excluded as a person from all economic and social life.

The speaker asks himself whether all this has anything to do with the struggle against terrorism?. The answer is no. The amount of funds deposited in the bank account that was frozen was ridiculous. No suspicious transactions had ever been found by the Dutch authorities, as stated by the attorneys representing the state before the European Court of Justice. It is an instrument of political pressure rather than a rational and legitimate way of combating the financing of terrorism. In fact, Sison case shows that the question whether Sison had been involved on financing terrorism has not even been taken into consideration in any way.

WHO IS JOSE MARIA SISON: Jose Maria Sison was the founder of the Communist Party of the Philippines. He was arrested under the Marcos regime and held for 10 years in solitary confinement. Since 1969 an armed conflict exists in the Philippines and since the beginning of the ’90 the government and the National Democratic Front of the Philippines (NDFP) decided to engage in a peace process, which led to the signing of important agreements, the first of which was a road map to the process itself and a “Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law”, which included a Joint Monitoring Committee in charge of monitoring its implementation. Under this agreement both parties committed themselves to bring to justice human rights violators and war crimes perpetrators.

At the end of the 90’s it became evident that the government of the Philippines could not deliver on land reform and democratic reforms, thus in violation of the initial agreement. At that time, before 9/11, the government put pressure on the NDFP to accept its proposals in the peace negotiations and threatened with criminalizing the movement and the negotiators as terrorists. Actually that was what happened.

RESULTS IN THE FIELD: These negotiations, based on respect for international law and mutual recognition, were broken as a result of the criminalization of political opponents and the rebellion. The government of the Philippines engaged since into a completely different approach. As a result: 800 people have been killed in the meanwhile. The EU legitimized through this listing this evolution in the Philippines and helped the government to depart from the negotiating process and to engage into brutal and savage repression against progressive movements, hence supporting a repressive government.

SISON has been delisted by the European court twice: in July 2007 on procedural grounds (lack of state of reasons and contradiction of evidence); then, 10 days before the court decided to annul the Council decisions by which Sison was put on the list between 2002 and 2006, the EU put him on the list again, hence leading to a second Sison case.

In this second series of listing the Council’s state of reasons did not have to do with terrorism and was in contradiction with the own legal requirements the Council set up itself.

Fermon is rather skeptical about the purported advances concerning notification and the statement of reasons, given that when defense counsel got the proposed statement of reasons, counsel wrote a letter to the Council and all 27 member states warning of the blatant error…Two months later the EU was bringing forward the same statement of reasons.

In the last Sison case (Sep. 2009), the Court stated that a decision taken from an asylum case does not meet the requirements in order to put somebody on the list.

Jan Fermon sees an extremely worrying development in the announcement made by Gilles de Kerchove, the EU Counter-terrorism coordinator: The common position would be changed in such a way that in the future there will be no requirement for a decision by a competent judicial authority for investigation. Instead, the fact of the secret services having launched an investigation would be considered to be enough to put somebody on the list. According to De Kerchove speech, the legal requirement by which at least a judge or judicial authority should have looked into the case at the national level before the EU can list a person, would be eliminated.

For further contextual information on the Sison Case and the peace negotiation process in the Philippines you can listen to “Human Rights and Peace Negotiations: The Filipino Peace Negotiation Model”, an interview to Rey Claro Casambre, Executive Director of the Philippine Peace Center, conducted by Prof. Richard Wilson, Professor of Law and Director of the International Human Rights Law Clinic, American University of Washington.