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JOB COHEN

to the fundamental rights set forth in our Constitution. Important fundamental rights
are: freedom of speech and expression (Article 7),^9 freedom of religion and belief (Article
6),^10 freedom of association and assembly (Article 9),^11 freedom of education (Article
23),^12 and freedom from invasion of privacy (Article 10).^13
As the law provides, fundamental rights may be exercised not only individually but
also collectively, in association with others, albeit always subject to each person’s responsi-
bility to the law. Whether a person has remained within the limits of the law in exercising
fundamental rights is a matter to be decided by the courts. The courts determine whether
or not limits have been exceeded—this isnota matter that is decided in the lower house
of parliament. Nor is it a matter decided by the media.

An Important Role for the Courts

It follows that the question whether Imam El Moumni was guilty of discrimination in
2002 in making hurtful comments about homosexuals and could be prosecuted for this
was a matter for the courts. It was held both at first instance and on appeal that the
spiritual leader of the Rotterdam Nasr mosque should be acquitted. According to the
judges, El Moumni had not intentionally discriminated against homosexuals or incited
discrimination and hate. The judges took the view that the statements by the Imam were
covered by the constitutional freedom of religion. The way in which he had done this was
within the limits of what is acceptable, in the view of The Hague Court of Appeal.^14 In
this case, freedom of religion took precedence over the hurt feelings of homosexuals.
An example of a case in which freedom of speech and expression prevailed over the
hurt feelings of Muslims is the judgment of The Hague District Court of March 15, 2005.
Ayaan Hirsi Ali, a member of parliament for the Liberal Party (VVD), was sued by four
Muslims at the start of the year in connection with her intention to make a sequel to the
filmSubmission Part I, directed by Theo van Gogh. The four Muslims had applied to The
Hague District Court for an interim injunction restraining the defendant from ‘‘making
hurtful or derogatory statements in public about the Muslim population group, the Mus-
lim faith, Muslim culture, and the prophet Mohammed and from expressing views offen-
sive to Muslim believers.’’ They also wished to have an order restraining Hirsi Ali from
releasing the second part ofSubmissionor a film with a similar content.
The key question was whether Hirsi Ali had overstepped the mark in her criticism of
Islam and had been needlessly offensive. The case turned on the use of the wordspedophile
andperverse. The court held as follows:

It seems as though by using these words the defendant has sought to explore the

bounds of what can still be deemed acceptable. The choice of the termpedophileis

unfortunate as it at least presupposes a pattern of behavior, whereas this account

concerns a one-off event. Moreover, the word in its present connotation is used about

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