DOCUMENTS OF LEGAL CASES
Trial by Terror
By Atty. Edre U. Olalia*
A VICIOUS CAMPAIGN OF HARASSMENT AND PERSECUTION
In August 2002, the U.S. State Department included the Communist Party of the Philippines (CPP) and the New Peopleís Army (NPA) in its list of "foreign terrorist organizations" under the broad justification of protecting US nationals or US national security, including its national defense, foreign relations and economic interests.
Subsequently the U.S. Treasury Department ordered that Jose Maria Sison, as the alleged head of the CPP-NPA, be subjected to asset freeze sanctions. A day after, the Dutch government followed suit and froze Sisonís measly bank account and withheld his benefits for subsistence, housing, health and insurance. In October, the Council of Ministers of Foreign Affairs of the European Union likewise put him in its own "terrorist" list.
For its part, the Philippine government "welcomed" these developments. As early as November 20, 2001, President Gloria M. Arroyo and Speaker Jose de Venecia had discussed the inclusion of the CPP, NPA and Mr. Sison in the US "terrorist" list with US President Bush and other top US officials in Washington, DC. Subsequently, President Arroyo and Speaker de Venecia proceeded to attend the Chrtistian Democrats International conference in Mexico from which the latter official called Mr. Sison on November 22, 2001 to warn him about the projected US action. In October 2002, the Arroyo government sent Foreign Affairs Sec. Blas Ople to actively lobby the European Union Council of Ministers to do the same.
Sison has been threatened with "extradition" from the Netherlands or the U.S., in case he is brought illegally, abducted or forcibly taken to the latter. Philippine officials have even threatened to forcibly repatriate him back to the country through the so-called "airport-to-airport" arrangement between states.
The crux of Sisonís inclusion in the various "terrorist" lists is that he is assumed to be the Chairman of the CPP, allegedly using the nom de guerre "Armando Liwanag", and that he is "in charge of" or "is linked with" the NPA.
Last January 2003, the government announced the filing of murder and attempted murder charges against Sison for the killing of notorious Marcos regime torturer, ex-Col. Rodolfo Aguinaldo in 2001. This was based on the admission of responsibility by the CPP-NPA and on the hearsay and incredible statements of alleged former rebels.
We shall for the moment reserve for another appropriate time and place an exhaustive comment on the impending trumped-up charges filed or still to be filed in Philippine courts. Suffice it to say that these are not backed by any shred of evidence and are clearly politically motivated.
NO FACTUAL OR LEGAL BASES
Prior to last monthís trumped up charges, it was of public record that Sison did not face any criminal charge or civil suit in any court in the Philippines or anywhere in the world. The cases for subversion and multiple murder in the 1971 Plaza Miranda bombing had long been dismissed, the latter for having been based on "pure speculation" and "for utter lack of evidence."
He has likewise not been charged with any offense whatsoever in the Netherlands, where he currently resides. In fact, in reply to queries by members of the Dutch Parliament, the Dutch government recently confirmed that the Public Prosecutorís office had concluded that there is no basis even to start a criminal investigation against Sison.
Sison is a recognized political refugee who is protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the 1951 Refugee Convention, as well as other international human rights instruments. The Office of the UN High Commissioner has vouched for this status.
As such, he cannot be expelled to a country where he can be subjected to torture, inhumane or degrading treatment or punishment. His situation differs from that of MNLF Chairman Nur Misuari who had no legal protection like Article 3 of the European Convention when he was arrested and detained in Malaysia for violating immigration laws and then deported to the Philippines.
It is also legally untenable to extradite Sison to the US from the Netherlands, as he has not committed any extraditable offense in US territory, in the Philippines or anywhere else. Any extradition for any alleged political offense and even for a purported common crime violates his rights as a recognized political refugee.
In fact, the Philippines and the Netherlands do not have an extradition treaty. Moreover, even if there was an extradition treaty, Sisonís deportation would require a pending valid charge or warrant of arrest. In this regard, any belated charge/s that the Philippine, Dutch or US governments would file in the future against Sison would be suspect and would have all the marks of political persecution.
In the meantime, the Philippine government claims that it can legally force Sisonís return by invoking "comity" between nations, claiming that the requirements for such cooperation are less stringent than extradition. This easily fails in common logic and reason. If a personís extradition requires compliance with stringent standards and safeguards against abuse and arbitrariness, how can the standards be lower in a situation where there is no extradition treaty?
PHYSICALLY IMPOSSIBLE ALLEGATIONS
As to the allegation that Sison heads the CPP-NPA, the facts are plain. While Sison is acknowledged to be "Amado Guerrero", his nom de guerre when he founded the CPP in 1968, and was chairperson until his arrest in 1977, he has ceased to be physically and organizationally involved in the CPP-NPA since then.
A quick reading of the CPP-NPA Constitution itself shows that the chairperson of the Central Committee is required to be based in the Philippines and that he/she should be able to lead its central organs and the entire CPP on a daily basis, as well as preside over the organizationís assembly every six months.
The official records of the NPA, on the other hand, shows that it is under the CPPís Central Committee and a certain collegiate body called the National Operational Command, which must likewise be based in the Philippines and hence can not be linked in any operational way to Sison.
In addition, there is no credible and valid evidence to prove that Sison is indeed the current head of either the CPP or the NPA.
The facts speak for themselves. He ceased to be chairperson of the CPP upon his arrest by Marcos in 1977. After the dictatorís fall, the Aquino government released him in March 1986. He was then appointed senior research fellow at the University of the Philippines. He was preoccupied with incessant public speaking and press interviews. He made the rounds of the universities and various fora in the Philippines under the watchful eye of the military and the media.
From such time up to October 1989, he embarked on a grueling global speaking tour. He was heavily involved in setting up a new political party, the Partido ng Bayan (PnB).
After the abduction, torture and salvaging of PnB Chairperson Rolando Olalia in November 1986, followed by the assassination of Bayanís Secretary General Leandro Alejandro, Sison was forced to seek political asylum in the Netherlands in 1988 especially after his passport was summarily cancelled by the Philippine government.
Sison simply had neither the time nor the opportunity to go underground.
From 1988, he became preoccupied with hundreds of lectures and conferences in various European universities, a research consultancy at the Utrecht university, a book contract, writing articles and poems for various publications, continuously churning out speeches and analyses of global and Philippine events, paying attention to his long-drawn legal battle for political asylum, engaging in solidarity activities with various European and Filipino organizations, and deeply involving himself with the formal and informal peace negotiations with the Ramos, Estrada and Arroyo governments.
Thus, during the entire period of his prolonged detention in 1977, his release in 1986 and exile since 1988, Sison simply had no opportunity to physically assume the chairmanship of the CPP Central Committee or the NPA. His circumstances since his release in 1986 are simply incompatible with the daily leadership requirements of a clandestine party like the CPP.
In sum, for 25 long years now, Sison has been cut off physically and organisationally from leading or even participating in the on-going armed conflict. His role in the national democratic movement has been confined to his being a political analyst, thinker and writer as well as chief political consultant in the peace negotiations, contrary to the insistence of the US, Dutch, EU and Philippine governments.
A MALICIOUS SMEAR CAMPAIGN
Assuming for the sake of argument, sans any proof, that Sison is indeed " linked to or is in charge of the NPA", such a condition cannot even be made a basis for his criminalization as a terrorist.
For one, there is no valid and credible evidence to prove that he is personally responsible for the acts attributed to the CPP and NPA. Criminal responsibility is always personal and cannot be transmogrified by legal fiction.
Second, it is a universal principle recognized even in the US, the EU and the Philippines, that all alleged acts in legitimate pursuit of oneís political beliefs are absorbed in one political offense of rebellion to the exclusion of "terrorism" or any other common crime. There is a well-established fundamental distinction between a political offender and a common criminal.
And what about oneís right not to be punished for espousing or expressing oneís political beliefs? What about the governmentsí trumpeting about the CPP and its allied organizations having been legalized with the repeal of the Anti-Subversion law in 1992?
The erroneous line of guilt by association cannot overcome the legitimacy bestowed on national liberation movements (such as the one represented and led by the CPP-NPA-NDF) and their use of armed force to fight colonial domination, alien occupation, racist regimes and systematic oppression and repression. By no stretch of the imagination can these be now deemed as acts of terrorism. Various United Nations resolutions, conventions on international humanitarian law and scholarly opinions of international law experts have validated this status.
In this respect, any factual or legal basis to charge Sison as a "terrorist" vanishes, and the Arroyo governmentís actions become reduced to a malicious smear campaign.
Sison is a respected intellectual and progressive activist opposed to terrorism and has never participated, supported, advocated nor facilitated any act of terrorism. He has often spoken and written against terrorism and has condemned the Plaza Miranda bombing, the fascist repression of Marcos, the puschist adventures of the Reform the Armed Forces Movement (RAM), the banditry of the Abu Sayyaf Group and the September 11 terrorist attacks.
TRAMPLING OF DUE PROCESS AND FAIR PLAY
The democratic rights of Sison have been wantonly and unabashedly violated by the US, Dutch and Philippine governments that claim to be democratic and constitutional. The terrorist listing was done summarily, unilaterally and secretly in utter contempt of due process.
Sison has not been informed of the nature and cause of the accusations against him nor is he being given an opportunity to refute such charges. In fact, his repeated requests to see and evaluate the documents and so-called evidences and bases for the European Councilís charges have been denied purportedly because these are in the nature of "intelligence information" or are "confidential."
Thus, Sisonís right to due process, which essentially should give him an opportunity to be heard before he is condemned, has been violated. He has not been afforded the minimum of being given notice of the charges against him, to confront his accusers and to refute the evidence against him before an impartial body.
In the process of this demonization, his right to his political beliefs and to expression and organization have been violated. Even his right to work, basic subsistence and to humane existence has been affected. He has been publicly defamed, thereby generating public scorn and hatred against him.
Moreover, the freezing of Sisonís bank account and the prohibition of financial services and constraints on his freedom of movement due to the terrorist listing prejudice his role as chief political consultant of the NDFP.
It is interesting to note that, insofar as the EU Council listing is concerned, even the European Parliament has recently taken a critical position and has called attention to the threats to democratic rights, lack of democratic oversight and the circumvention by the Council of the legislative or judicial powers and prerogatives of the European Parliament and the European Court of Justice.
Thus the Council, in designating persons, groups or entities as "terrorists" by summary decision, has become a pseudo-judicial body for designating, arbitrarily and without any guarantee inherent in a judicial process, anyone to be guilty of infringements constituting terrorism. The Council has arrogated a role which traditionally concerns the judiciary. Such a concentration of powers violates the principle of separation of the functions of investigation and judgment that forms an integral part of the principles guaranteed by the constitutional conventions of all EU Member States.
OPEN BLACKMAIL AND TRIAL BY TERROR
Having failed to neutralize Sison through his designation as a "terrorist", the Philippine government is poised to rush into extradition treaties with the Netherlands and other European countries to legalize his forcible return to the country. It offers "blanket amnesty" to Sison and other alleged members of the revolutionary movement, a scheme that has long been rejected by the CPP-NPA-NDF and proven useless in so far as addressing the root causes of the armed conflict.
At the same time, the government declares that it will only withdraw its support to Sisonís designation as a "terrorist" when the NDF accepts the "final peace agreement" as the terms of surrender of the revolutionary movement.
Even from a legal perspective, all these moves of the US-backed Arroyo government are simply open blackmail and trial, as it were, by undisguised terror.
*Atty. Olalia is a member of the Philippine Legal Defense Panel of Sison in the European Court of Justice. He is also Executive Director of the Public Interest Law Center (PILC); Board Member of the International Association of Peopleís Lawyers (IAPL); and Legal Consultant of the NDFP Negotiating Panel in the GRP-NDFP Peace Negotiations.
(1) Rome T. Capulong, Jose Ma. Sison, A Filipino Patriot and Revolutionary; paper presented to the Initiative Committee to Defend Filipino Progressives in Europe (DEFEND), Philippine Chapter, University of the Philippines, Quezon City, 19 November 2002.
(2) Jan Fermon, Antoine Comte, Hans Eberhard Schultz, Dundar Gurses, Thomas Olsson, Jayson Lamchek, Application before the European Court of Justice in Luxembourg to Remove the Name of Prof. Sison from the European Councilís Terrorist List, 5 February 2003.
(3) Olalia, Legal Opinion on the Status of National Liberation Movements and their Use of Armed Force in International Law, 17 November 2002.
(4) Olalia, Namecalling and Doublespeak: Legal Fiction Conceals the Real Terrorists, paper presented to the Asia Social Forum and Peoples Movement Encounter in Hyderabad, India, 4-5 January 2003.