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«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»

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Survey of contemporary use of sedition in other jurisdictions

6.49 Prosecutions for sedition are relatively rare. However, they still occur from time to time in other countries. The following is a brief overview of some recent attempts to prosecute sedition in certain other countries. The account below focuses on prosecutions for offences defined as sedition offences—as opposed to other offences that may fall within the legal definition of sedition, such as incitement to violence.

New Zealand

6.50 As stated earlier, there have been no recent prosecutions for sedition in Australia, and none since the sedition provisions were amended in the Anti-Terrorism Act (No 2) 2005 (Cth). Until recently, the same was true of New Zealand, where sedition had not been prosecuted since 1942.86

6.51 However, on 8 June 2006, Timothy Selwyn was found guilty of sedition in the

Auckland District Court. His conviction arose from the following circumstances:

Selwyn admitted to conspiring to commit wilful damage when an axe was embedded in the Prime Minister’s electoral office window in November 2004. He also admitted to being involved in two separate statements—one of which was found to be seditious— claiming responsibility for the axe attack and calling for others to commit acts of civil disobedience. The statement in question constituted a bundle of pamphlets left on a roadside powerbox on the night of the axe attack. It was designed as a press release and 83 Boucher v The King [1951] 2 DLR 369.

84 Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 36.

85 Criminal Code 1985 (Canada) ss 59–61.

86 D Cheng, ‘Sedition Verdict Harms “Free Speech”’, New Zealand Herald (online), 9 June 2006, www.

nzherald.co.nz.

134 Fighting Words called for ‘like minded New Zealanders to take similar action of their own’. His actions were in protest against the government’s foreshore and seabed legislation, which he said was being rushed through Parliament at the time.87 On 18 July 2006, Selwyn was sentenced to two months’ imprisonment in respect of the charges of sedition and wilful damage.88 Asia

6.52 In Asia, a number of countries possess sedition laws inherited from the United Kingdom. In Malaysia in early 2006, a government minister with responsibility for legal matters threatened to prosecute for sedition a number of non-Muslim authors of articles written about Islam.89 Any such prosecution would be based on Malaysia’s Sedition Act 1948, in which the definition of sedition is based on the common law definition of ‘seditious libel’.

6.53 Article 139 of the Philippines Criminal Code contains an offence of sedition, which is committed when a person rises ‘publicly and tumultuously in order to obtain by force, intimidation, or by other means outside legal methods’ certain political objectives. There is a related offence of incitement to sedition (art 142) and this is more closely analogous to the Australian sedition offences that are the subject of this Inquiry.90

6.54 These offences were used recently against Filipino journalists during the state of emergency declared by the Arroyo administration between 24 February and 3 March

2006. For example, Professor Randy David and Argee Guevarra were arrested on 24 February 2006 for inciting sedition after leading a demonstration march on the day that the state of emergency was declared. They were released on the same day and the charges were dropped.91 However, the following day police raided the offices of The Daily Tribune. The newspaper’s editor and two columnists were charged under art 142 of the Criminal Code with incitement to sedition. Those charges are currently being challenged on the basis of a decision by the Philippines High Tribunal that the presidential proclamation authorising the raid on The Daily Tribune was unlawful.92 87 Ibid.

88 ‘Jail for Axe Attack on PM’s Office’, New Zealand Herald (online), 18 July 2006, www.nzherald.

co.nz.

89 See ‘Jail Threatened Over Islam Insults’, The Australian (online), 21 March 2006, www.theaustralian.

news.com.au.

90 Related offences include inciting rebellion or insurrection (art 138) and publishing false news that may endanger public order, or cause damage to the interest or credit of the State (art 154).

91 H Bryant, L Macale and N Lee, ‘“No” to the Dark Days’, Philippine Journalism Review Reports, March 2006, 10.

92 G Mabutas, ‘Publisher Wants Charge Dismissed’, Manila Bulletin Online (online), 10 May 2006, http://www.mb.com.ph/issues/2006/05/10/MTNN2006051063599.html.

6. Sedition Laws in Other Countries 135 Europe and the Middle East

6.55 While terrorism in Europe remains an important concern, the current tendency in European states is not to use sedition offences to prosecute conduct that might be considered seditious. For instance, in Spain, 14 men were remanded in custody pending trial for recruiting fighters for the Iraqi insurgency.93 The case concerns, in part, ‘radical speeches’ by Imam Mohamed Samadi ‘in which he requested prayer for mujahideens, or for people who had given their lives for the jihad’.94 Significantly, however, the defendants were charged with belonging to a terrorist group, and not with sedition.95

6.56 Article 301 of the Turkish Penal Code was enacted on 1 June 2005. It criminalises the public denigration of Turkishness, the Republic or the Grand National Assembly of Turkey, the judicial institutions of Turkey, and Turkey’s military or security structures. It further provides that where the denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third. However, ‘expressions of thought intended to criticize shall not constitute a crime’.96





6.57 It has been reported that at least 29 journalists have been charged under art 301,97 along with authors, professors, publishers, activists and artists. Prominent author Orhan Pamuk was charged after he said in an interview with a Swiss newspaper that ‘30,000 Kurds and a million Armenians were murdered. Hardly anyone dares mention it, so I do. And that’s why I’m hated’. The charges against Pamuk were eventually dropped because the interview occurred before art 301 was enacted. Others charged under art 301 include two members of the Turkish Human Rights Advisory Board, for their role in the publication of a report on minority and cultural rights in Turkey.98 However, in May 2006, a judge acquitted the defendants of the sedition charges after a prosecutor acknowledged that the two men had used their right to free speech in the report.

93 ‘Spain Files Preliminary Charges against Seven More Suspects Accused of Recruiting for Iraq Insurgency’, Associated Press Newswires (online), 15 January 2006, www.ap.org.

94 ‘Spain’s High Court Remands 14 Suspected Militants’, Reuters News (online), 15 January 2006, www.reuters.com.

95 ‘Spain Holds Seven Suspected of Recruiting Fighters in Iraq’, Agence France Presse (online), 15 January 2006, www.afp.com/english/home.

96 Amnesty International, Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ is an Insult to Freedom of Expression (2006) http://web.amnesty.org/library/Index/ENGEUR440032006?open&of= ENG-TUR at 24 April 2006.

97 R Mahoney, Nationalism and the Press —As Turkish Nationalists Resist European Tilt, Freedom of Expression is a Victim (2006) Committee to Protect Journalists http://www.cpj.org/Briefings/2006/ turkey_3-06/turkey_3-06.html at 24 April 2006.

98 Amnesty International, Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ is an Insult to Freedom of Expression (2006) http://web.amnesty.org/library/Index/ENGEUR440032006?open&of= ENG-TUR at 24 April 2006.

136 Fighting Words North America

6.58 There have been few recent reported cases of sedition in North America: a small number in the United States and none in Canada.

6.59 Since the terrorist attacks on 11 September 2001, the US Government has initiated relatively few prosecutions for sedition-type offences in comparison with its rate of prosecution for other offences, such as the offence of providing material support to terrorist organisations, which has emerged as a favoured weapon in the war on terror.99 The Smith Act has not been revived in recent prosecutions of terrorist suspects.100 Prosecutors have used the seditious conspiracy statute;101 however, in recent prosecutions, the Government has supplemented evidence of defendants’ general support of levying war against the Government with evidence of their involvement in planning specific violent attacks.

6.60 In 2003, Patrice Lumumba Ford and Jeffrey Battle pleaded guilty to seditious conspiracy after their fellow conspirators pleaded guilty to other charges.102 The defendants were alleged to have been involved in training to prepare to fight violent Jihad in Afghanistan.103

6.61 In 2004, the US Government combined the basic offence of inducing criminal action with seditious conspiracy and successfully prosecuted a Muslim cleric, Sheik Al-Timimi, for ‘inducing conspiracy to levy war’.104 In US v Al-Timimi, as in the earlier case of US v Rahman, it was alleged that the sheik spoke publicly about the duty of Muslims to join Jihad.105 The prosecution also cited Al-Timimi’s private meetings with a group of Muslim men in which he encouraged them to engage in Jihad against American troops in Afghanistan and provided them with directions to a training camp 99 J Cohan, ‘Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the Violent Overthrow of the Government’ (2003) 17 St John’s Journal of Legal Commentary 199, 202;

‘Broader law sought against ‘material support’ for terrorism’ The Associated Press, 6 May 2004. Andrew McCarthy, lead prosecutor in US v Rahman, testified before Congress that material support statutes ‘have become the backbone of antiterrorism enforcement since they were enacted in 1996’: A McCarthy, Testimony before the United States Senate Judiciary Committee Subcommittee on Terrorism, Technology and Homeland Security: 20 April 2005 (2005) Senator Jon Kyl Website kyl.senate.gov/legis_center /subcom.cfm at 4 July 2006.

100 J Cohan, ‘Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the Violent Overthrow of the Government’ (2003) 17 St John’s Journal of Legal Commentary 199, 206.

101 See Crimes and Criminal Procedure Code of 1948 (1994) 18 USC § 2384.

102 S Akram and M Karmely, ‘Immigration and Constitutional Consequences of Post 9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction Without a Difference?’ (2005) 38 University of California Davis Law Review 609, 684.

103 US Department of Justice, ‘Department of Justice Examples of Terrorism Convictions Since September 11, 2001’ (Press Release, 23 June 2006).

104 US v Al-Timimi [Superseding Indictment] (Unreported, US District Court, Eastern District of Virginia, Brinkema J, 1 February 2005).

105 United States v Rahman 854 F Supp 254 (1994), 104; US v Al-Timimi [Superseding Indictment] (Unreported, US District Court, Eastern District of Virginia, Brinkema J, 1 February 2005).

6. Sedition Laws in Other Countries 137 in Pakistan.106 Al-Timimi was convicted of 10 counts of terrorism-related crimes, including inducing seditious conspiracy.107 Al-Timimi sought and was granted leave to appeal, partly on constitutional grounds,108 and his case is now pending.109 Masoud Khan, one of the four young men to whom Al-Timimi allegedly gave directions to the Jihad training camp, was also convicted of seditious conspiracy, among other crimes.110 Khan was sentenced to life imprisonment in June 2004.111

6.62 Since 2004, seditious conspiracy charges have been laid in prosecutions involving targeted attacks on synagogues in the Los Angeles area and the Sears Tower in Chicago, Illinois.112 Preliminary evidence released by the prosecution described how defendants preached that attack on the US was justified, but also took action to further a conspiracy to levy war.113 For example, the prosecution submitted evidence of a ‘protocol’ clandestinely distributed to inmate members of an Islamic extremist group along with evidence of armed robberies of petrol stations committed by members of the group to fund weapons purchases.114 Thus, while there has been some recent prosecution for seditious conspiracy, analysis of the case law reveals a tendency for such prosecutions to be brought where there is a combination of seditious speech and conduct forming part of a violent plot against the US.

6.63 There is also some evidence that sedition is now viewed as an outdated and inappropriate offence, as demonstrated by a recent trend to pardon those convicted of sedition. For example, on 11 August 1999, President Clinton granted clemency to eleven members of the Armed Forces of Puerto Rican National Liberation who had been convicted of, among other things, seditious conspiracy and sentenced to a maximum of 90 years in prison.115 Similarly, on 3 May 2006, 78 people of German 106 US v Al-Timimi [Superseding Indictment] (Unreported, US District Court, Eastern District of Virginia, Brinkema J, 1 February 2005).

107 US v Al-Timimi [Criminal Docket] (Unreported, US District Court, Eastern District of Virginia, Brinkema J, 3 July 2006); J Markon, ‘Jurors Convict Muslim Leader in Terrorism Case’, The Washington Post (online), 27 April 2005, www.washingtonpost.com.

108 US v Al-Timimi [Criminal Docket] (Unreported, US District Court, Eastern District of Virginia, Brinkema J, 3 July 2006); E Lichtblau, ‘Cleric Wins Appeal Ruling Over Wiretaps’, New York Times (online), 26 April 2006, www.nytimes.com.

109 Ibid.

110 US v Khan 309 F Supp 2d 789 (US District Court, Eastern District Virginia, 2004), 820-821.

111 US Department of Justice, ‘Department of Justice Examples of Terrorism Convictions Since September 11, 2001’ (Press Release, 23 June 2006).

112 US v James [Indictment] (Unreported, US District Court, Central District of California, 1 October 2004);

US v Batiste [Indictment] (Unreported, US District Court, Southern District of Florida, Lenard and Klein JJ, 22 June 2004).

113 Ibid.

114 Ibid.



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