Ever since the beginning of the trial against Dutch politician Geert Wilders (PVV) for his utterances about Moroccans in 2014, his political opponents have refused to comment on the case in order ‘not to disturb’ an independent and fair trial. This polite attempt by the majority of Dutch politicians to uphold the judiciary’s independence, which is in principle a good thing in any modern democracy, is no longer credible since RTL Nieuws revealed several email conversations between high-ranking officials at the justice department compromising their involvement in the decision leading up to Wilders’ prosecution. With this new information in mind, it is no longer possible for the Tweede Kamer to hide behind judicial independence, as it is now also parliament’s very own independence that is at stake. After all, it is parliament’s job to check the government, certainly not the other way around.

In any normal situation, the justice department should refrain from interfering with any prosecution because of the separation of powers, particularly when a politician is charged with a criminal offence. Although the minister is competent to order the public prosecutor to take a specific case to court, this is (for the same reason mentioned above) a highly rare and sensitive instrument. Because, if it were applied, the executive branch would likely be accused of using its power in an arbitrary way. Not to mention cases in which its interference occurs secretly… From this perspective, the urgency with which several parliamentarians are now calling for an explanation from justice minister Ferdinand Grapperhaus (CDA) is justified. For if it were true that high-ranking officials at his department pushed the public prosecutor to put Wilders on the stand, the minister needs to take political responsibility for this. At the same time, parliament’s indignation seems a bit hypocritical, as the independence of parliament (and of its individual members) has been at stake for much longer. This is because the underlying problem of this trial is not so much the fact that officials at the ministry have overstepped their boundaries, but rather the legal provisions in the criminal code that led to the Wilders trial in the first place.

In order to grasp this point, it is necessary to understand the dynamic between the three branches of government when it comes to the exercise of the freedom of speech by Dutch politicians. Although this dynamic may also be present in other legal systems, the Dutch legal regime is particularly devious and inconsistent when it comes to this issue. The primary reason for this is the sharp contrast between several constitutional principles protecting the independence of politicians (including their free speech) and the ‘regular’ (i.e. non-constitutional) framework posed by the penal code. On the one hand, there is parliamentary immunity (article 71 of the Dutch Grondwet), which explicitly excludes all statements made by participants in the parliamentary discussion from civil liability and criminal prosecution. This principle stems from the nineteenth century constitutional revision of 1848 and was defended by its author J.R. Thorbecke with reference to the separation of powers. In his view, the purpose of parliamentary immunity was to protect participants in political debate against criminal prosecution, and, vice versa, prevent judges being sucked into political controversy. Parliamentary immunity thus has a similar function as the prohibition of constitutional review (article 120 of the Dutch Grondwet), namely as a protective barrier between the judiciary and the legislative.

Nevertheless, the problem with article 71 is that it is confined to parliamentary proceedings only, which means that any utterance made outside this timeframe is liable for regular criminal prosecution. So, as in Wilders case, if a politician makes a political statement outside the parliamentary debate, he could be prosecuted for a series of offences, such as group defamation (article 137c Penal Code) and incitement of discrimination, hate or violence (article 137d). Once a politician is successfully prosecuted for either of these offences, any appeal to special constitutional protection will be unsuccessful. But that is not all. According to recent case law of the Dutch Supreme Court (Hoge Raad), there are special requirements for politicians when it comes to public speech. In the context of hate speech, discrimination and defamation, the Hoge Raad argued in 2014 that politicians have a ‘special responsibility’ to prevent any statement that is at odds with ‘the fundamental principles of liberal democracy’, including speech that ‘incites intolerance’. This line of reasoning, which was clearly borrowed from the ECHR ruling in the case Féret vs. Belgium (2009), was confirmed by the Hoge Raad in 2018 in the so-called ‘Wilders the Movie’ case.

One could ask ‘what’s the problem? Is it not a matter of logic that politicians should be more careful with their words than other citizens, because they are supposed to lead by example?’ Well, there seem to be two general problems with this argument. The first is that the Hoge Raad has created an odd and very sharp contrast between parliamentary debate and – let’s say – societal (or public) debate, while this contrast is in reality not that easy to see in this age of television, live stream and twitter. Any utterance made in parliament (protected by immunity) can directly penetrate any household within a few seconds. So why stipulate wholly different, not to say completely opposite legal boundaries for such a fundamental constitutional right on the basis of such an arbitrary distinction as the sounding hammer of the speaker? This distinction may have been justifiable in Thorbecke’s time, when political debate almost completely overlapped parliamentary debate, but not in the era of universal suffrage and instant internet communication.

The second problem with the Hoge Raad’s new line of reasoning relates to my preliminary claim about the separation of powers and the hollowing out of parliament’s independence. For by introducing an extra criterion for criminal liability with regards to group defamation and incitement of discrimination and hate (articles 137c and 137d Penal Code), the Hoge Raad has made these already complex and vague provisions even more complicated and vague. After all: When can we speak of ‘incitement of intolerance’? What is ‘intolerance’ to start with? And how can we know the ‘fundamental principles of liberal democracy’? Apparently, the Hoge Raad agrees that ‘tolerance’ is one of them, but as the expression is plural (‘grondbeginselen’), what other concepts could be distilled from this fairly broad criterion? A related question, and this is where the hypocrisy of parliament’s response to the interference of government officials in the Wilders case comes to the surface, is whether the current interpretation and application of the above-mentioned provisions, does not create a danger of both judicial activism (or at least: creativity) and, at the same time, the temptation for the executive branch to abuse these provisions in thwarting political opponents in parliament (i.e. the opposition).

If the answer to this question is affirmative, the safety valves in the Dutch constitution designed to protect the independence of parliament (and in turn that of the courts) are clearly dysfunctional. And if the Tweede Kamer is keen on resolving this problem, it is advised to take up its own responsibility in finding a proper legislative solution. Pointing fingers at the justice minister, which is what the majority of parliamentarians is inclined to do, is certainly not going to help. Neither will a recent coalition proposal to increase the maximum penalty of article 137d. Indeed, this will probably make things even worse. Instead, the Tweede Kamer should consider revising or even repealing article 137c and 137d of the Penal Code, in order to durably secure the freedom of speech for its members and to prevent disasters such as the Wilders trial in the future. Another solution would be to expand the scope of the parliamentary immunity, so that the arbitrary gap between parliamentary debate and public debate is closed. After all, political debate, including all its ugliness, cannot be confined by four thick walls in The Hague. And if a politician is to be put on trial for extreme or violent speech, let this decision be a political one before saddling the independent judge with the issue. Otherwise, his independence will be just as little secured.