The acquittal of Dutch politician Geert Wilders on 22 June 2011 on charges of “inciting hatred and discrimination against Muslims” is a political victory for Wilders, a legal travesty, and a missed opportunity for Dutch democracy. Wilders and his Party for Freedom (PVV) are known around the world for their Islamophobic propaganda. A random selection of his Islamophobia includes statements such as “Islam is a fascist ideology”; “Mohammed was a paedophile”; and “Islam and freedom, Islam and democracy are not compatible”. He has also warned of a “tsunami” of Muslim immigrants and compared the Qur’an to Adolf Hitler’s Mein Kampf.
A glance at the declarations of Wilders and his party leaves no reasonable doubt that Islamophobia is at the core of his programme. Wilders may have changed his opinion on various issues, most notably non-Muslim immigrants and the welfare state, but on one point he has never wavered: his struggle against the alleged “Islamicisation” of the Netherlands, Europe, and even the world. For example, at a speech on 12 May 2011 at the Cornerstone Church in Tennessee, he said:
“My friends, I am sorry. I am here today with an unpleasant message. I am here with a warning. I am here with a battle-cry: ‘Wake up, Christians of Tennessee. Islam is at your gate.’ Do not make the mistake which Europe made. Do not allow Islam to gain a foothold here.”
While I am not a lawyer, I cannot see how the Amsterdam court can come to the conclusion that Wilders did not - according to Dutch law and precedence - “incite hatred and discrimination” against Muslims. The emphasis is important: for the Netherlands has - since the case of the Centrumpartij (Centre Party / CP) of Hans Janmaat (1934-2002) in the early 1980s - long experience of charging political parties and politicians under anti-discrimination legislation.
Since that time, several parties and politicians whose public statements have been far less consistent and far-reaching than those of Wilders have been convicted of incitement to racial hatred. For example, Janmaat was given a suspended sentence of two months’ imprisonment and a fine of 7,500 guilders (c 3,400 euro) in 1997 for declaring at a demonstration that “as soon as we have the opportunity and power, we will abolish the multicultural society” - a statement that Wilders regularly makes. In fact, a Dutch court even found that the slogan “Full is Full” - used in the 1990s by the CP, and its successor the Centrumdemocraten (Centre Democrats / CD) - constituted incitement to racial hatred. Today, that statement would be almost uncontroversial.
The contrast between Janmaat’s conviction and Wilders’s acquittal reflects an important development in Dutch politics and society. While Wilders’s Islamophobic comments are objectively harsher than Janmaat’s xenophobic equivalents of the 1990s, they are also much more accepted in contemporary Dutch society. This is not necessarily to say that the Dutch population has become more xenophobic over the past generation. What has happened, rather, is that the taboo on expressing xenophobia in public has been broken, particularly regarding Islam and Muslims (see “The intolerance of the tolerant”, 20 October 2010). It was, incidentally, the earlier flamboyant populist Pim Fortuyn (1948-2002) rather than Janmaat or Wilders who was the agent of that change.
In consequence, politicians such as Wilders can gain much more electoral support than Janmaat ever could, which gives them real political power. And there is no doubt that Wilders’s political power has played a major role in the court’s decision. After all, it is much easier to convict the leader of a marginal and ostracised party like the CD than a figure like Wilders, the leader of the third-largest party in the parliament and a “support-party” of the current government (see "The Geert Wilders enigma", 23 June 2010).
A political failure
But a political victory is not automatically a democratic victory. In fact, I would argue that the acquittal of Geert Wilders is both a defeat of and a lost opportunity for Dutch democracy. Don’t misunderstand: I am a long-term opponent of the Netherlands’ anti-discrimination laws, I support absolute freedom of speech; and I believe that a democratic state should not limit or regulate speech, particularly in politics.
That said, a liberal democracy cannot function without the rule of law; and an essential aspect of this is equality before the law. Clearly, however, this is not the case in the Netherlands, where for decades people have been treated differently with regard to anti-discrimination laws (for example, in the 1990s the powerful conservative politician Frits Bolkestein was not even indicted, far less convicted, for statements very similar to those of Janmaat).
To be fair, in acquitting Wilders the Amsterdam court has undoubtedly taken the changed public discourse on immigrants into account. But this does not get to the heart of the problem, which is not judicial but political. The Amsterdam court found itself trapped by history; it was asked to enforce a law inherited from the past for which there no longer exists majority political and public support. Its acquittal has taken the lint out of the powder-keg of anti-discrimination legislation. It is now up to the politicians - not judges - to bring social values and laws back into harmony.
If Wilders had been convicted, a political crisis was inevitable: how then, after all, could the Dutch government rely on the support of a party of a convicted “anti-democratic” politician? A combination of the ensuing public outcry and sheer political necessity would have forced parliament to amend the legislation by bringing it more into accord with the public view. Now, Wilders might continue at times to raise the issue, even if mainly to portray himself as a near-martyr in order to generate political support; but the political elite will resume ignoring the topic while trying to regulate who is indicted or not (and, in the few cases that this fails, to try and influence who is convicted or not).
This outcome continues a policy of legal insecurity that undermines the rule of law in the Netherlands. It is therefore high time that Dutch politicians update the anti-discrimination laws in accordance with their own and contemporary Dutch society’s preferences.