Last December, after years of protracted discussion, the statutory ban on scornful blasphemy in the Dutch Criminal Code finally lapsed. However, this abolishment was accompanied by an ambiguous decision approving a parliamentary motion. In this motion the government is called to examine the possibility of amending Articles 137c-137h of the Criminal Code, so it will provide citizens with sufficient protection against insult perceived as severe on account of their belief and religious conviction. In other words, if it is possible to adjust another statute in order to outlaw serious insult to religion, which will lead again to a separate status for religion. This amendment is not a simple way of crossing the t’s and dotting the i’s to finally abolish blasphemy legislation, but a dangerous development for our cherished freedom of speech. What should have been a victory for our neutral state and free speech became stained by the approved motion.
The ban on blasphemy in the Netherlands dates back to 1932, when Minister of Justice Jan Donner added ‘scornful blasphemy’ to the Criminal Code, after a Communist newspaper had ridiculed the Christian religion in several texts and cartoons. From then on, those who publicly, orally, in writing or depiction, offended religious feelings by scornful blasphemy could be fined or faced imprisonment. Despite the existence of this blasphemy legislation there were only a few attempts at prosecution.
In 1966 the writer Gerard Reve was prosecuted for passages in his novel ‘Nader tot U’ (Nearer to Thee), in which he depicted God as a donkey having sexual intercourse. Two years later, the Supreme Court ruled that the legislature meant to express with the term ‘scornful’ the subjective element or the intention of the accused to ‘take down the highest real Supreme Being’, a task which was ultimately difficult to prove by the Public Prosecutor. The Supreme Court acquitted Reve, as there was no scornful blasphemy in his writings. After this judgment, the blasphemy ban eventually lost its essential function and became obsolete. In the following years there were several attempts to abolish the ban, but they never succeeded until December last year.
The results of the research that were requested in the approved motion were announced on July 15 2014 in the ‘Report Criminalization of insulting Religion’. According to these, from an international law perspective, there is no positive obligation to criminalise insult perceived as severe on account of belief and religious conviction. The results furthermore state that the current Articles 137c-137e of the Criminal Code provide sufficient protection to suffice in meeting existing international obligations. In addition, it is not possible to update the Articles, and in order to ensure the requested protection the legislature needs to create new offenses. But such new offenses would constitute a breach of the freedom of expression as enshrined in Article 19 of the ICCPR (and depending on the precise interpretation of the offense – even Article 10 ECHR). Fortunately, the government endorses the conclusions of this research and states that adaptation of the Criminal Code is not necessary. Although there was much ado and discussion about the initiative to abolish the blasphemy laws, there was no fuss or debate about the outcome of the study. Even the religious political parties kept a low profile.
Now that the Dutch chapter on blasphemy is finally closed and there is no room left for ambiguity, it should not be forgotten that in numerous states it is a harsh reality that blasphemy is punished by retaliatory penalties, including the death penalty. Therefore it is time for the Dutch government to take a leading role in the worldwide abolishment of blasphemy legislation and adopt an ‘abolitionist’ policy with regard to blasphemy prohibition. Particularly nowadays, it is vital that we send out a strong global signal to the world to defend the freedom of speech and thought.