May 30, 2011: some background on the Wilders trial and the developments here in the Netherlands

In this blog post I will try to summarize what happens here in the Netherlands with the criminal case against Geert Wilders. Some very good descriptions in English of the days in the trial can be found at the Klein Verzet Blog. And I contributed a number of reviews and observations myself (in Dutch here) on the more recent trial days.

Wilders in footsteps of Fortuijn: populist and anti-Islam
Starting with Wilders, as a successor to Fortuyn. Wilders is active in politics since the 1990s, then for the liberal party, VVD. He witnessed how Pim Fortuyn succeeded in rallying and mobilizing the disgruntled parts of our people that found that there was too much political attention and care for newcomers/immigrants and that the original Dutch people were being forgotten. As a result, Pim Fortuijn got a significant number of votes but he was not going to live his success as he was killed by a left wing activist. And truth be told, before that happened, some of our politicians were quite keen (and too quick on their feet) to compare Fortuijn and his movement to the developments in the depression times (1930s, running up to the war). This is when the word 'demonizing' came into existence and the impression occurred that the death of Fortuijn was due to the consequent demonizing of Fortuijn by left wing politicians.

Wilders observed Fortuijn and decided to step in his footsteps. And the Al-Qaida attacks since 2001 (as well as the killing of Theo van Gogh, a Dutch filmmaker by a radical Muslim) helped him to play a fear card about Muslims and the Islam. Wilders philosophy is that the Islam is an inherent violent and suppressive ideology and that not only the Muslims are bound to conform to the inhuman/uncivilized rules of the Islam, but all people. Thus, the Islam is the vehicle with which a political war is being fought and we should all recognize this invasion and stop it. He wants the end to the 'cuddling of minority groups' that in his view has gone over the top here in the Netherlands. He wishes that all incoming foreigners should adapt and integrate with the Netherlands and he wants the politics to return to the public again and thus plays the anti-elitist card.

Setting up his own party: he is his own king
Wilders soon found out that his own party, VVD, did not agree with his populist views, so he founded a Group Wilders, and went for political success alone. He founded a party, but chose to circumvent the official rules in a 'smart' way. He founded a party movement where he himself is the only member (chairman, treasurer, secretary, member) of the PVV-association as our election law prescribes that all participating parties in elections should be an association. Thus, Wilders avoided all kinds of trouble with members of his party association wishing to steer his politics. He is himself the king and the party at the same time. And he uses a foundation to gather funds for his political movement. And indeed, this has all the looks of a narcissist

One of the key trademarks of Wilders is that he never wishes to engage in a real discussion. He is very verbal, very able to make cunning and smart remarks in parliament and thus win the hearts of people who think that politics is about saying openly how much you dislike others (other than trying to engage in constructive choices for the country). And he is keen to jump from the one environment (parliament, press, science, court of law) to the other while ignoring the implicit game rules of those environments. So he mistakes the court (where the question is not what is the truth, but does one abide by the rules) for science. He mistakes and uses science (where there is never certainty and always doubt) as the tool to declare that his Islam-vision is the one and only correct one. He uses the media to send out and reinforce his political messages to the public (and to throw in denigrating statements about the Islam and those who follow it). And in parliament he chooses at times to walk out (rather than try and debate about differences of opinion) so that his followers will applaud him, while MPs are annoyed.

Wilders is very verbal and very able to maneuver about. Dutch politicians find it very hard to position themselves against him. So where his idea is that Muslim people should leave the Netherlands, he chose to use the word/abstraction: islamisation to discuss the desired emigration. All people in the Netherlands instinctively understand what he means, but he seldom says it straightforward. The consequence is that it is very hard to pin him down on where his statements are discriminating, racist or hate speech. While he does undoubtedly bring such a message across, as you can see by watching his film Fitna.

As far as his personal life and personality is concerned. Wilders lives under permanent security rules, given possible attacks by radical political adversaries. And we have seen an analysis in a Dutch opinion paper that his trauma is essentially of a postcolonial revanchist nature. Wilders is part of minority himself: the minority of Indonesian immigrants who came to the Netherlands after the second world war. And as this group was forced to assimilate (and assimilated itself due to their cultural background) it may have been the case that this has struck Wilders deeply in his youth. And witnessing that later immigrants were being cuddled more than he/his family was, it is argued that Wilders wishes to impose on them what was 'done to himself'. So the young man that used to be bullied now becomes the bully.

The criminal case against Wilders
Whereas Wilders is a hard act to catch, his public speech at times is discriminating and implying that Muslims are non-humans ('they reproduce like rabbits'). And he creates an atmosphere in which discrimination and rudeness (even in our parliament) becomes the norm rather than the exception. Quite a number of people in the public, as well as organizations that represent Muslims or other minorities have thus complained about some of his public remarks, stating that is was inciting to discrimination and hate speech.

Yet, the prosecutors here in the Netherlands at first did not want to take up these complaints. So the complainants appealed, which lead the legal court in Amsterdam to order the Public Prosecutor to start a criminal case against Wilders. Wilders at first wanted the best criminal lawyers, Anker&Anker. In response to Wilders request to make a public carnival out of the trial, they informed Wilders that hiring them would mean: 'no publicity during the trial', Wilders left them and chose to hire Mosckowicz, a lawyer that is often in the media (perhaps even more than in court). This is of course in line with his strategy to always play his political game simultaneously in public, parliament, media and court.

The trial started last year, with Wilders often remarking that it was a political trial. Exploiting the publicity. And there were some legal and procedural mishaps, with made it possible for his lawyer to send the first Judges back home (it turned out that one judge of the Amsterdam court had been present and possibly influenced a witness of the Wilders-trial during a dinner, a couple of days before the trial-date). So all the proceedings had to wait and a new court with new judges was assembled and assigned. But at that point, we already witnessed something very particular. The Prosecutor effectively did not want to prosecute and demanded acquittal on all counts of the criminal case. In doing so, the Prosecutor messes up the due process that we need in the court.

An interesting thing that also occurred during the trial is that civilians and complainants may join in the criminal proceedings so that they can be granted a compensation for damage. And most of them ask a sum of 1 euro. But the group of complainants is quite diverse. There are some solid legal arguments put forward by some lawyers, while the rest of the complainants acts in a personal manner. Which may feel good for them, but is not legally relevant. Yet, this varied bunch does create an image in which the trial doesn't seem to be important/true/real. So it helps Wilders to frame the trial as a 'fake trial' in which judges protect each other.

What I find interesting during all the proceedings is that Wilders is using very much the freedom of speech argument to be able to say what he wants. And he says that 'the lights will go out in Europe' if he is convicted. Thus stating that freedom of speech is more important than any other human right. The argument is used in an opportunistic way however, because since then, we have witnessed Wilders and his party limiting the freedom of speech of all those that were against them. So the image of Wilders as the proclaimer of freedom of speech has bleached considerably.

What is remarkable as well, is that the trial is essentially a clash of the two fundamental human rights that nation states should seek to protect/enact. One is the freedom of speech but the other is a prohibition of discrimination/hate speech. Both of course have an effect on the quality of democracy. And the essence of the trial is that these two human rights need to be protected/enacted in a balanced way. And the trial demonstrates, in my view, that Wilders is only executing his fundamental rights and does not wish to abide with the obligation (not to discriminate). And with the people in the Netherlands in flux about the statements of Wilders, I think the court of Amsterdam has chosen wisely to order the Prosecution of Wilders. Only such a prosecution and court case will make it clear if Wilders has crossed a line, or not. And the facts and material at hand, is sufficiently substantial to do so. Again I would encourage the readers to have a look at the film Fitna.

Current state of things in the trial (May 30, 2011): rushing it too much
As promised, the lawyer of Wilders has made it a carnival. Rebutting/challenging also the second set of judges. Declaring that the case should not start ('niet-ontvankelijk) and so on. But all that was brushed aside and the court was considered independent to continue. Also, the court listened to some extra witnesses to discover that whatever happened at the dinner (before the first trial) was not legally relevant to the case (although the court considered it very unwise of the judge to be present at the dinner). So last week, we finally started.

On Monday, the court summarized the case, presented the facts, and also outlined some international relevant law, including  considerations on the European legal framework. At last, we were now dealing with the facts.  And to me it became clear that the choice to prosecute is very fundamental and important. This is an important court case that will determine the extent to which freedom of speech can be exercised, until it turns into discrimination or inciting hate.

On Wednesday we could witness the Prosecutor, not prosecuting but effectively defending Wilders. The Prosecutor used an intermediary test to determine if what Wilders said or published wash criminal or not. The test was whether the statement was intrinsically divisive and conflictual in nature. Yet, all statements and context discussed lead the Prosecutor to conclude that acquittal was the only conclusion. In doing so, the Prosecutor rebelled against the court that had ordered the law suit. And they now made it more difficult for the court itself as well as for the civilians that wish to file compensation claims in this criminal case. Any soccer game requires two teams. And by siding with Wilders, the flow of justice (and exchange of arguments and counter arguments) is not guaranteed.

On Friday the civilians that complained could substantiate their compensation claims. But, they weren't allowed to comment on the case itself. This led to a strange situation where one lawyer, Prakken, outlined that the basis for the claim constituted a different reasoning than that of the Prosecutor. The judges were, after being incited by Mosckowicz, keen to alert her to stay within bounds, but she held her ground properly. And stated that the prohibition against incitement does not build on discrimination but is a separate human value that deserves protection by and through its essential nature. In my view a very convincing argument, and better at times than the flawed vision of the Prosecutor.

The overall impression that I was left with, on Friday, was one of a rush. Having watched the proceedings via Internet, it became clear to me that the judges want the case to be done with. And that is a bit unsatisfactory, as it is an essential case and theme. And with a prosecutor that does not prosecute, the court judges are burdened with the obligation to determine themselves if or not they agree with the prosecution arguments.

And today we're back on Monday (30th of May). Wilders lawyer, Moszkowicz, of course compliments the Prosecutor for a solid piece of work. Thus creating a setting in which Prosecutor and defendant agree, and making it hard for the Court to disagree and condemn Wilders. The first bits of the argument by Moszkowicz were a recollection of the strange proceedings until so far. And as we speak, he is still throwing all kinds of arguments. And what struck me in his arguments, is that he is effectively responding to all kinds of arguments, but never developing his own line of thought. And least of all is his recognition of the fact that two fundamental democratic values are at stake here. Which is perhaps what one can expect from a defending lawyer, but it still creates an uncanny setting.

Last words by Wilders
As is the custom, Wilders has had the last word in his first instance of the trial. He immediately used it to make political statements. And in doing so, he provided evidence to the court that he will use any instance to voice his vision (which is exactly one of the elements of hate speech: the repetitive and consequent manner in which a suspect incites to hatred and unjustified discrimination). And I am confident that we will see some of this in a few moments, when again he will be offered the opportunity to make a statement.

Whereto from here?
In my view, the prosecutor has not done sufficient effort to make the criminal case against Wilders. There is a lot of material in which there are clear signs of Wilders' hate speech and demonizing of the Islam (and implicitly all followers/believers). Yet we haven't come round to properly discussing it in this case. And in this very important case for our democracy we are now faced with a court that wishes to speed things up. I am not confident that this is the best way forward.

If I look at the replies/reactions on Twitter during the case, I can see a lot of harsh and rude comments, some of those outright violent. While it would not be fair to argue that Wilders is the cause of all these arguments, he has indeed been creating (and thus legitimizing) a climate for such comments and visions. Also he is providing a bad example by continuing his denigrating talk with respect to Muslim people (calling them 'cattle that votes' in Parliament). And while it is up to the MP's to correct him in Parliament, it is also up to the Dutch courts to determine if he's gone too far in inciting hate.

So, it is only too bad that we may be rushing this trial forward where it might be better - both for us and for our democracy here - to take our time to properly consider pros and cons.

[Update... June 2, 2011: I returned home yesterday to discover that Geert Wilders mentioned Johan de Witt in court on June 1, during his trial. He mentioned de Witt in his plea for freedom and tried to model himself after my example. That inspired me to write him a letter in which I lecture him on fundamental rights, democracy and so on. That letter is too Dutch to translate, but my response essentially was that Wilders poses as a member of parliament but he does not act responsibly like one. Leading to the conclusion that: an ape 's an ape, a varlet 's a varlet, tho' they be clad in silk or scarlet.]