TRUTH IS IRRELEVANT, CENSORSHIP IS GOOD
For the Dutch TV coverage of the hatespeech trial against Lars Hedegaard I asked the opinion of Anita Bay Bundegaard of “Politiken”: “The trial is necessary and we see too few of them. His statements stigmatize. They form dangerous opinions. Countering his arguments like in the American model won’t do: we don’t have that self-censorship. It has to be enforced”. But reporting from the Amsterdam courtroom on the process against Geert Wilders (leader of the Party For Freedom, key holder of the Dutch right wing minority Cabinet, and living in constant hiding), who stands trial for his critique on Islam, Koran, Muslims and multi-culturalism in his movie “Fitna” and newspapers, I see how the sinews of society shatter now political opinion is taken to court. Moreover, what began a year ago as a jolly Wilders bashing, has mutated into a Machiavellian rot that gnaws at the trust of the Dutch in their judicature. Of course, we Dutch merely present to you Danes a distorted mirror image. Your system works, doesn’t it. Hedegaard got his “genuine” acquittal. So, what’s to worry?
Suddenly paused on October 22nd 2010, Wilders’ case re-started on February 7th to end in July. Shown live on TV it’s clear that Wilders is not to blame for the legal system’s crashing. He holds eerily still except for a few angry interviews about his “show trial”, and this week’s courtroom mantra on how Europe’s culture-relativists aide Islam to alter the free West into an enslaved Eurabia. We will wither in the doom of dhimmitude if we don’t take a stand. Without freedom there’s no creativity: where’re the Muslim Mozart or the Koran Kafka, there’re none. And so on. Wilders’ groomed lawyer Bram Moszkowicz merely pleas against the trial’s legality; a non-suit is what he aims for.
Dutch Law hinges on the thought that its legal system is guileless, its judiciary is above all parties, and that truth decides. Every now and then there’s a fuck up, but that goes with any trade. So when Paul Velleman, the Public Prosecutor, opened his requisitory with “it’s irrelevant whether Wilders speaks the truth or not, what matters is whether his critique is illegal”, he baffled the many uninformed Dutch. He unveiled the potentially censoring bias of articles 266 and 137e/d on (group) insult, hate speech, and inciting hateful discrimination. Articles such as these stem from the 1930ies to protect the public freedom of Jews against the Nazis. European Court jurisprudence modernized them to include new-age notions like “the right not to be offended in your religion”. Like the Danish article 266b that facilitated the trials against Jesper Langballe and Lars Hedegaard, these articles aren’t geared towards ascertaining the truth, but to weigh sensitivities. Langballe, Hedegaard, and Wilders have not been charged with slander, but with being brutally offensive. And whether that equals illegal discriminatory hate speech is, when all boils down, merely a matter of taste.
“Wilders’ critique is distasteful, but functional; it is not illegal”, Public Prosecution concluded in Spring 2008 after investigating the filed charges. His “shocking and disturbing” rhetoric belongs to a European whistleblowing debate on Islam and multi-culturalism. They concluded so even after having been pressurized by the very top of their own Justice Department, to prosecute Wilders “no matter what”. This was amidst the Fitna crisis when the previous Cabinet tried to censor Wilders’ movie before its first showing. Still, in 2009 the leading lawyer Gerard Spong used a moot law by which the Amsterdam Court could decree Public Prosecution to prosecute Wilders. The Court jumped to the occasion. The police was asked to hand out to complainants ready-made forms on which they could mark the correct accusation. And to cow Public Prosecution further the Court listed a 24 pages indictment that stipulated the desired result: “The Court (…) expects that prosecution will lead to a conviction”. However, in October 2010 the Public Prosecutor chided the Court’s indictment to be “wrong, concocted and flawed”. Velleman then defied the Court entirely by concluding that “Wilders’ criticizing of Islam and Muslims does not cause Intrinsic Conflicting Dichotomy and does not incite hate. We ask for a complete acquittal”. Never before had the Dutch witnessed an ugly civil war in their judicature.
But ugly got dirty.
On October 22nd, at the last opportunity and seconds after the judges sat down, Moszkowicz jumped up, waving with newspaper “De Pers”. With his high-brow Yiddish accent he spat out the scandal. Three days before the testimony of Wilders’ expert-witness, renown Arabist Hans Jansen, judge Tom Schalken from the Amsterdam Court had joined a secretive dinner at which he knew Jansen would be present. Jansen wasn’t informed about Schalken’s coming. During dinner Schalken pressed Jansen to agree that Wilders’ prosecution was good. Confronted by “De Pers” Schalken stated: “Nothing happened that’s against the rules, but what’s against the rule is that someone breaches the confidentiality of such a dinner”. Everybody in the courtroom realized the ramifications: Schalken had decreed Wilders’ prosecution, and he was co-author of the sentencing indictment. Yet the judges’ unlawful decision that followed was as shocking. They refused Moszkowicz’ to hear Jansen on their direct colleague Schalken, even though Jansen sat two seats away. Within the hour Moszkowicz forced the Court to remove the judges because of bias, which put the trial on pause. Two days later and on prime time TV Geert Corstens, president of the Supreme Court and installed by the Crown for life, blamed Wilders for the situation: “Wilders’ criticisms on Justice destabilize our state of law. He abuses the gut feeling of his audience and, hence, threatens our legal system”.
New in February (different judges, same court) is Moszkowicz’ plea to publicly question Schalken as a witness: his information might hand Wilders his non-suit. Public Prosecution claims this is nonsense: even if Schalken did cheat, the trial itself is fair; the removal of the judges is proof in itself. Moreover, Velleman asked for a complete acquittal; why press for a mistrial?
Part of the answer is the total independence of Dutch judges to reach their verdict. But free of bias is another matter and the Amsterdam Court shows Wilders a saddening record. The rest of the answer is the potential partiality of the judges at Appeal and Supreme Court and their skill to steer jurisprudence. Gerard Spong, initiator of Wilders’ prosecution, proudly told me last month of his find. Only days after his TV interview Corstens presided a body of Supreme Court judges to review a very minor article 137e case of inciting hate. In June 2010 the Appeal had acquitted a youngster who got convicted in 2008 for selling T-shirts with texts “Combat 18” and “Whatever it takes”, by arguing that the wording in itself did not incite hate. On November 23rd Corstens’ Supreme Court ruled: “these expressions are not to be judged in itself, but in context and by taking in account the associations they cause (…) The acquittal is annulled (…) The Court of The Hague has to re-process”. With this new jurisprudence Corstens thwarts Public Prosecution’s acquitting requisitory on Wilders, hands the Amsterdam judges a legal tool for conviction, and directs Appeal and Supreme Court in their future weighing of Wilders’ case. Like Spong, Moszkowicz knows this. A non-suit is Wilders’ only option.
‘Truth is irrelevant’ and ‘censorship is good’ pervert even the best of people and legal systems –they ought to be banned from our Criminal Codes and newspaper rooms for being the most dangerous opinions of all.