untitled

CAN A MINORITY RETAIN ITS IDENTITY IN LAW?

a situation that occurred centuries ago. The defendant used these terms once or at

the most on a few occasions. It follows that in the context of the exaggeration she is

permitted she remained within the bounds of what is acceptable. It is debatable,

however, whether frequent use of these or similar words would still fall within the

bounds of proportionality and subsidiarity. Although the defendant has submitted

that the use of these terms precisely illustrates that the Koran is not a practical guide

for daily life, it is considered that she could illustrate this view in a different (more

effective) way and in better-chosen words.^15

The Hague judge held that the plaintiffs had failed to show that Hirsi Ali hadintendedto
offend or insult them or to make blasphemous statements about Muslim belief. Nor did
he see any reason to ban her from releasing another film similar toSubmission Part I.In
other words, the constitutional freedom of speech and expression prevailed in this case
over the interests of the four Muslim plaintiffs.
The judgment of The Hague court is a fine example of how our constitutional de-
mocracy functions, because:

1. The four Muslims made use of the courts and thus demonstrated that they were
   abiding by and wished to respect the rules of our constitutional democracy;


2. The judgment showed that Hirsi Ali had the right to exercise her freedom of expres-
   sion as she saw fit and that in doing so she had not exceeded the bounds of what is
   acceptable;


3. At the same time, the judgment of the court indicated that there are bounds that
   must be observed in exercising freedom of speech and expression, which in turn
   affords legal protection to the Muslims who felt that their religious feelings had been
   offended.

I have dealt at length with these two examples in order to show that, in my view,
there is not much wrong ‘‘in law’’ in the Netherlands when it comes to the question of
whether a minority can retain its identityin law. We have a system of protecting funda-
mental rights: everyone who lives in the Netherlands (and this includes immigrants and
Muslims) can make use in the same way of the system of fundamental rights, and if there
is disagreement about whether the bounds of the law have been observed in exercising a
fundamental right, the Dutch courts are on hand to give judgment—and actually do so.
The fact that the system works and that the Constitution does not therefore need adjust-
ment is also evident from the policy paper ‘‘Fundamental Rights in a Plural Society,’’
which was published by the Ministry of the Interior and Kingdom Relations in 2004.^16
The entire system is geared to ensuring that a minority can retain its identity, even if the
minority consists of immigrants or Muslims acting either individually or together. Our
legal system is structured—or rather, has grown historically—in this way because its ob-

PAGE 547

547

.................16224$ CH27 10-13-06 12:36:54 PS