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Fortress Europe Circular Letter (FECL) No.  56 December 1998

 

A QUESTION OF LAW OR POLITICS: THE SISON FAMILY ASYLUM CASE

In a strong conflict of intra-governmental perspective, the Sison Family asylum case has pitted the legal judgments of the Dutch High Court against the political imperatives as perceived by the Netherlands' Ministry of Justice.

Citing secret dossiers and an investigation by the Dutch Intelligence Service (BVD), the Justice Ministry rejected Sison's first asylum application 13 July 1990 (see FECL No.47: "Sison case: recognised refugee threatened with deportation"). The Ministry tied Sison to the New People's Army, calling him the "auctor intellectualis" of their revolutionary violence. In a combined CIA/BVD operation to recruit a Filipino to spy on Sison the following year, the participants were "caught in the act" by the TV crew from a VPRO news program, highlighting some of the broader considerations Sison's asylum application faced. Nevertheless, on 17 December 1992, the Raad van State decided favourably for Sison.

After reviewing both the Justice Ministry findings and "secret dossiers", the Raad van State found that: Sison is a political refugee; he cannot be repatriated under the principle of non-refoulement; that there is no evidence of his committing a criminal offense, and that the use of secret dossiers is contrary to the fair administration of justice. It was during this proceeding that a Justice Ministry representative declared that a government friendly to the Dutch and Filipino governments would be "displeased and offended" should asylum be granted. This was amplified in the Ministry argument that "the Dutch state had to maintain its integrity and credibility to its allies". Thus, by finding for Sison, the Raad van State refused to endorse the political considerations governing the Justice Ministry position.

In elaborating on their basis for political asylum, the Sisons note their torture and persecution at the hands of successive Filipino governments. The incidents they have cited include extremely substantive government rewards for them ("dead or alive"), death threats, the kidnapping and murder of associates in the Partidong Bayan, and the fabrication of criminal charges (including murder) and slander.

In March 1993, the Justice Ministry continued to refuse the judgement of the Raad van State, and instead proclaimed Sison "responsible for crimes against humanity". Concurrently, the Ministry continued to use "secret dossiers", and pursued a negation of the Sison's asylum claim via a Foreign Ministry letter stating that Sison would now be safe in the Philippines as he was a prominent opponent of the Ramos regime and could avail himself of a political amnesty which had been recently enacted. Meeting constant opposition from the Justice Ministry, within two years Sison had returned his case to the Raad van State.

"General interests" of the State vs right of asylum

Of particular interest throughout the Sison family's case is the debate regarding Article 1F of the Refugee Convention, and Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). Article 1F provides for the exclusion from refugee status of persons guilty of particularly serious crimes, and the Justice Ministry repeatedly tried to invoke it in its arguments. Concurrently, Article 3 of the ECHR prohibits the deportation of a person to a country where they are threatened with cruel, inhuman or degrading treatment or punishment - a restriction the Ministry sought to overcome.

On 21 February 1995, the second Raad van State decision came in Sison's favour, reiterating "Sison had a well-grounded fear of persecution within the meaning of the Refugee Convention". The Raad van State further found that refusing Sison a permit to reside would violate Article 3 of the ECHR. In rebutting the Justice Ministry claims of Sison's alleged criminal activity, the decision went on to note that Article 1F of the Refugee Convention "was not applicable in this case as there were insufficient indications for the judgement that Sison had committed the serious crimes referred to". Most significantly, the Court addressed the political imperatives perceived by the Justice Ministry and noted the Ministry's apparent usurpation of authority in its refusal of refugee status to Sison.

Noting the Netherlands Aliens Law provides for the "freedom of policy" in cases where "weighty reasons drawn from the general interest" exist, the Court found this inapplicable in denying Sison refugee status, and cited that "for other reasons, it was already established that the State Secretary of Justice did not have that freedom". This finding came in reply to the Ministry's argument that the "interest of the Dutch State for integrity and credibility, especially in its relation to other states" had justified their disposition of Sison's case. Of particular note as regards the broader legal imperatives perceived here were the observations of Attorney P. van Dijk - a judge in the Raad van State's Sison decision as well as in the European Court for Human Rights.

In a seminar on immigration law at the University of Leiden in February 1997, Attorney van Dijk noted that the European Court's Chahal case (RV 1996 20) appeared to confirm the Raad van State's judgement in the Sison matter. Specifically, he noted that the decision appeared to distance the European Court from "a weighing of interests of the state and those of the individual". Van Dijk further elaborated that he viewed this with satisfaction as the weighing of interests, as argued by the Dutch State Secretary of Justice, "would lead to a serious hollowing out of the prohibition prescribed by Article 3 (ECHR)". Noteworthy in van Dijk's perspective is the concern over the politicisation and erosion of the asylum process in weighing state interests; however, the Justice Ministry continued to pursue its position despite the Raad van State's findings.

Secret dossiers as evidence of "terrorist affiliations"

In 1995, newly created Dutch legal bodies for the pursuit of Aliens Law provided a fresh opportunity for the Justice Ministry to argue its case. In June 1995, Sison approached one of these, the Aliens Chamber, for enforcement of the Raad van State decision. On 4 May 1996 the Aliens Chamber instructed the Justice Ministry to make a new decision in his case; on 8 June 1996 the Ministry again refused Sison refugee status arguing that "non-deportation" is "sufficient compliance with Article 3 of the European Convention". In early 1997, the case was shifted by the Aliens Chamber to the Law Unity Chamber/Rechtseenheidskamer (REK).

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". On 11 September 1997, the REK provided a decision upholding the Justice Ministry position, utilizing "secret dossiers" as evidence of "terrorist" affiliations.

On 26 February 1998, Prof. Sison filed an appeal to the European Commission on Human Rights as regards the REK/Law Unity Chamber's findings in his case. Signalling possible movement towards a reconciliation of the disparate positions held within the Dutch government, the REK recently awarded humanitarian asylum to Prof. Sison's wife and son.

Source: International Campaign for Asylum of the Sison Family, c/o P.O. Box 2041, NL-3800 Amersfort; Tel/Fax: +31/33 4723084;
E-mail: ndf@antenna.nl

Comment

Democratic governments are, by their very nature, strongly political in their perspectives, while courts of law, by their very nature, are devoted to an impartial pursuit of justice - "without passion or prejudice" - in theirs. The sanctity of the "separation of powers" in government is meant to assure a balancing of such interests, as well as the integrity of the State at large. However, the establishment of new semi-judicial structures to address asylum issues cannot but pose questions as to this "balance", and the precedent such political action sets.

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 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 (see FECL No.55: "US citizen denied asylum in Sweden - USA a 'safe country'?"). Concern over offending Washington appears as the political common denominator in these cases.

 

Jack Rodgers






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