The trial against Geert Wilders for insulting groups and incitement to hatred is still going on. Last week we saw the testimonies of supporters of Geert Wilders: Hans Jansen, Wafa Sultan and Simon Admiraal. All three of them were coming to court as ‘expert witnesses’. This is highly questionable since all three ‘experts’ make the same mistake, which becomes clear when we look at Jansen’s statement:
Gates of Vienna: Evidence Given by Prof. Hans Jansen at the Wilders Trial
Amsterdam, May 10, 2010
On his request to: Judge-Commissioner Mr. P.B. Martens, Amsterdam
From: Prof. Dr J.J.G. Jansen, www.arabistjansen.nl
1. Memorandum on the Qur’anic verse 2:256, “There is no compulsion in religion”. The Islam teaches that this verse is ‘abrogated’, i.e. ‘canceled’ by later revelations.
Note: Sura 2, where this Quran verse occurs, is according to friend and foe the first sura that was revealed in Medina. I consider it not possible that the complainants or the Prosecutor can find an Islamic lawyer or an academic Arabist who contradicts this. I regard it therefore as superfluous to spend additional work, time and attention to this issue of dating and chronology. The dating of Sura 2 is widely undisputed. See for example W. Montgomery WATT, Inleiding tot de Koran [‘Introduction to the Qur’an’ —translator], Utrecht, without year, p. 220, top: “All chronological classifications consider sura 2 as the first of the Medinan suras”.
Also the Quran translation by Fred Leemhuis states that Sura 9 dates from Medina (p. 129), and was revealed after Sura 5. Of Sura 5, Leemhuis then says that this was handed down after 48 (p. 77), and so on. Also according Leemhuis, Sura 2 thus is older than Sura 9.
Muhammad, the prophet of the Islam, established himself in Medina in 622, where he died in 632. Sura 9 according to friend and foe dates from a later phase of that period in Medina, in any case, according to most scholars after the conquest of Mecca by the Muslims in 630. There are even scholars who believe that Sura 9 is the last Sura that was revealed in Medina. Any contradictions between Sura 9 and Sura 2 are therefore definitive, in the sense that the rules as laid down in Sura 9, must be the prevailing rules of the Islam and the Sharia.
How can we be so sure that this is so? In Reliance of the Traveller, the oft-mentioned English-Arabic Sharia handbook by Nuh Ha Mim Keller, we read on page 629: “When two primary texts seem to contend, [the judge] gives precedence to: (5) those which supercede previous rulings.” The word ‘previous’ here is crucial for the understanding. This handbook, Reliance, I only mention here because of the fact that in this case it is already more or less known, but there no textbooks on the Islam and the Sharia exist that are made for Muslims by Muslims which state otherwise on this matter.
The principle of abrogation is explicated in the Qur’an itself, it is not the invention of outsiders. Qur’an 2:106, in the translation of Leemhuis: “What ever sign [= Quranic verse, HJ] We abolish or cause to be forgotten, We come up with something better or correspondingly.” ‘Abolish’ is the word with which in 2:106 both Leemhuis as well as Kramers clarify “abrogate”. Qur’an 10:52: “God abolishes”.
Sura 9 dates from the period in Medina (which means: 622-632). It is not the first sura of that period, because Sura 2 is considered as such. In a timeline, Sura 9 consequently is after Sura 2, and Sura 9 consequently abrogates the rules contained in Sura 2, when these are in conflict with provisions contained in Sura 9.
Sura 9:29 contains, in the translation of Leemhuis, the phrase “Fight against those who do not believe in God” and “Do not forbid what God and his Messenger forbid.” This forbidding cannot be made consistent with “there is no compulsion in religion”, 2:256. Forbidding, after all, implies coercion.
The imperative with which verse 9:29 begins, ‘qaatiluu’, is better translated as “beoorloogt” [“waged war on” —translator]. The root ‘qtl’, which the word is related to, means ‘killing’. The specific grammatical form being used here, according to grammarians, could just as well be based on a meaning of “[trying to] kill each other”. The complaining party or the Prosecutor will not find an Islamic legal scholar or scholar of Islam or an academic Arabist who contradicts this.
That this struggle or war at a given moment ends, is in practice correct. In theory the Islamic legal scholars and scholars of Islam nonetheless establish that the duty to wage this struggle will remain until the Last Day. In Reliance, the author states on page 602, the last lines of the page, that the obligation to wage Jihad in the English text:” the time and place for [it]”, remains until the return of Jesus, in the English text: “the final descent of Jesus (upon whom be peace)”.
In this, also, the complaining party or the Prosecutor will not find an Islamic legal scholar or scholar of Islam or academic Arabist who contradicts it. The Islamic legal scholars and scholars of Islam therefore traditionally make a sharp distinction between the ‘the House of the Peace’ and ‘the House of the War’. This distinction is the foundation of Islamic international law. About this dichotomy an extensive literature exists. I can hardly imagine that an academic Arabist or an Islamic legal scholar or a scholar of Islam desires to deceive a court on this matter in public.
2. In the issue that correction of un-Islamic behavior should be done first verbally and then by force:
From the canonical tradition-collection of Muslim (9th century):
[The text below is not read out in court because it is in English, with permission of the defense]
Chapter 21: CONCERNING THE FACTS THAT INTERDICTION AGAINST ABOMINABLE IS A PART OF FAITH, THAT FAITH INCREASES AND DIMINISHES; ENJOINING THAT WHICH IS GOOD AND FORBIDDING THAT WHICH IS ABOMINABLE ARE OBLIGATORY (ACTS)
Book 001, Number 0079:
It is narrated on the authority of Tariq b. Shihab: It was Marwan who initiated (the practice) of delivering khutbah (address) before the prayer on the ‘Id day. A man stood up and said: Prayer should precede khutbah. He (Marwan) remarked, This (practice) has been done away with. Upon this Abu Sa’id remarked: This man has performed (his duty) laid on him. I heard the Messenger of Allah as saying: He who amongst you sees something abominable should modify it with the help of his hand; and if he has not strength enough to do it, then he should do it with his tongue, and if he has not strength enough to do it, (even) then he should (abhor it) from his heart, and that is the least of faith.
Book 001, Number 0081:
It is narrated on the authority ‘Abdullah b. Mas’ud that the Messenger of Allah (may peace and blessings be upon him) observed: Never a Prophet had been sent before me by Allah towards his nation who had not among his people (his) disciples and companions who followed his ways and obeyed his command. Then there came after them their successors who said whatever they did not practise, and practised whatever they were not commanded to do. He who strove against them with his hand was a believer: he who strove against them with his tongue was a believer, and he who strove against them with his heart was a believer and beyond that there is no faith even to the extent of a mustard seed. Abu Rafi’ said: I narrated this hadith to ‘Abdullah b. ‘Umar; he contradicted me. There happened to come ‘Abdullah b. Mas’ud who stayed at Qanat, and ‘Abdullah b ‘Umar wanted me to accompany him for visiting him (as ‘Abdullah b. Mas’ud was ailing), so I went along with him and as we sat (before him) I asked Ibn Mas’ud about this hadith. He narrated it in the same way as I narrated it to Ibn ‘Umar.
[from here on was further read out in court, in Dutch.]
The announcement of hand, tongue and heart is also in the canonical collection of Abuu Daawuud: Kitaab as-Salaat (Al-Khaalidii, Beirut 2007, p. 187 Number 1140) “Who sees a forbidden thing he can change with his hand, let him change it with his hand: and if he can not, then with his tongue, and if he can not, then with his heart, and that is the weakest form of faith.”
I am prepared, if necessary, when the Prosecutor or the complaining party disputes this, to further elaborate these issues.
Amsterdam, May 10, 2010
What matters most is that he, and the other two (albeit that Admiraal was much more careful than Jansen and Sultan) acted as an Islamic scholar, a shaykh or ayatollah, rather than as scholar of Arab and Islam. They were explaining what Islam is, as if there is an authentic core of Islam. This may be true for believers, but this is not a position a serious scholar should take up. And even in that regard Jansen’s statement is full of errors. I don’t have time to refute every error here but let me take up two issues here. First his reference to the book Reliance of the traveller in which according to Jansen, it is clear that participating in war is an individual duty for every Muslim until Islam will triumph. Jansen knows the debates among Islam scholars about Jihad as a collective or individual duty but doesn’t refer to it. Also in his statement (but not in the version of Gates of Vienna) Jansen declared that it is unlikely that a Morocan boy would ever rob a Muslim from his bag. That of course, as has already been pointed out elsewhere, is a load of crap. First of all it does happen and second he makes this statement based upon his interpretation of Islamic sources thereby linking the written source to a boy’s behaviour. A major sin in serious Islamic studies. The Dutch press failed big time in covering these statements since almost all (!) serious newspapers ran the headline ‘Experts back Wilders’ without questioning it in the subsequent report thereby supporting Wilders’ claim that his views are backed by expert and academic studies. An important claim in his defense strategy because according to him ‘speaking the truth cannot be a crime’.
This week: Summing up
This week is the week of the prosecutor to wrap up their case against Wilders. They will present their findings and a final sentencing plea on Friday. One thing became already clear today. They asked the court to drop the charge that Wilders insulted Muslims as a group. Since his statements are about Islam and not about Muslims, the accusation of insulting Muslims as a group is unjustified and Wilders’ statements are merely opinions that cross the legal threshold. Also the symbolic amount of 1 euro claimed by the organizations behind the complaints was rejected by the prosecutors because it can not be proven that they were damaged in any particular way by Wilders’ statements. The prosecutors also declared that since there was no agreement about the nature of Islam the issue of truth is irrelevant because a Dutch court cannot decide ‘what Islam really says’. While Wilders therefore claims to hold the absolute truth the prosecutors stated that with regard to Islam there is no absolute truth or that it is not up to a court to speak out about that.
The case against Wilders is based on dozens of public statements. Typical among them were views he published in an opinion piece in the national newspaper De Volkskrant. “I’ve had enough of Islam in the Netherlands; let not one more Muslim immigrate,” he wrote. “I’ve had enough of the Koran in the Netherlands: Forbid that fascist book.” As recently as August he repeated his view, rejected by Muslims, that Islam is inherently violent and backward. “Our culture which is based on Christianity, Judaism and humanism, is better than the retarded Islamic culture, and this is tough to say, but it is true,” he said in a televised interview. “It is a violent ideology like communism and fascism and we should deal with it that way.”
The charge of inciting hatred and discrimination against Muslims is still on the table and we can expect a final statement on it this Friday. The move of the prosecutors may seem strange, and the lawyers of the complainants already urged the prosecutor to take up their task more seriously, but isn’t necessarily so. During the time of the Fitna affair the police and prosecutors made it easy for Muslims (and others) to file complaints against Wilders. After the affair, however, they refused to prosecute. Then the organizations and individuals behind the first claims went to court to demand prosecution and the court acknowledged that; forcing the prosecutor to take legal action. Because in the first case insulting Muslims as a group was the main accusation, the prosecutors probably felt that they had no chance at all, hence the initial refusal to prosecute followed by dropping the insult charge now. In the mean time however the prosecutors added incitement of hatred to the case which is stronger and may stand a chance (but see below).
Of course the issue of freedom of speech is still on the table. Wilders’s Islam views ‘not factual’ – World News, Breaking News – Independent.ie
Wilders, who polls suggest is the Netherlands’ most popular politician, denies the charges. He says his opinions are protected by freedom of speech and endorsed by more than a million people who voted for him in national elections last June.
Without addressing any of Wilders’ specific remarks, Ms Van Roessel said freedom of speech has limits. “You can expect a politician to be aware of the impact of his words and in any case, the legal limit may not be crossed, no matter how important it may be to address supposed problems and to contribute to matters of general interest,” she said.
Ayaan Hirsi Ali in an op/ed in the Wall Street Journal this week also stated that free speech is on trial. She also stated:
Ayaan Hirsi Ali: In Holland, Free Speech on Trial – WSJ.com
In the national elections held in November 2006, his party won nine seats in parliament. When the Dutch government fell again this year, June elections saw his party take 24 seats in the 150-seat body.
This has spooked Dutch parliamentarians, particularly those wedded to multiculturalism. That’s why, in the fall of 2009, they modified Article 137C and 137D of the Penal Code to make it possible for far-left organizations to take Mr. Wilders to court on grounds of “inciting hatred” against Muslims.
Article 137C of the penal code now states that anyone “who publicly, verbally or in writing or image, deliberately expresses himself in anyway insulting of a group of people because of their race, their religion or belief . . . will be punished with a prison sentence of at the most one year or a fine of third category.” It continues: “If the offense is committed by a person who makes it his profession or habit, or by two or more people in association, a prison sentence of at the most two years or a fine of fourth category will be imposed.”
This is not true however. It seems that Ayaan Hirsi Ali is mixing up the debates about the court case with the debates about blasphemy. The Christian-Democrats wanted to ‘save’ the blasphemy notion in the law by doing away the specific article about blasphemy and at the same time extending article 137C. This debate is still going on and no decisions have been made yet (and I don’t expect it to happen in the near future).
With regard to the freedom of speech and incitement to hatred perhaps the distinction between inflammatory statements about Islam and about Muslims perhaps matters as well:
Islam in America – The Daily Princetonian
It is one thing to say “Muslims are terrorists” and something different to say “Islam is incompatible with Western values” or even “Islam is wrong.” Take Martin Peretz’s infamous commentary in The New Republic: “Muslim life is cheap, most notably to Muslims.” To begin with — because it is not clear to me that this is universally accepted in Western Europe — Peretz ought to have the right to say this. He does have the right to say this, under American law. Nonetheless, he ought not to exercise that right because the commentary is unconstructive, uninformed, unhelpful and an attack on persons rather than ideas: much like the average submission to the ‘Prince’ website.
By way of contrast: To say “Islam is incompatible with Western values” advances a serious debate, not least because it requires us to ask, “What is Islam?” and “What are Western values?” For example, in 2007 roughly one-third of young British Muslims believed that conversion from Islam is forbidden and punishable by death. (Intriguingly, only one-fifth of their grandparents held this view.) If we assume — as I do — that freedom of religion is an authentically Western value, then that particular definition of Islam is incompatible with Western values. Unfortunately, it is hard for anyone who is not a Muslim to state categorically, “This is Islamic, this is not.” Like Protestantism, Islam lacks a centralized body to interpret its sources of religious authority: While there are prominent leaders whose decisions guide the practice of millions, it tends to be the violent fanatics who claim that they are the only legitimate voice of Islam.
Then, again, Wilders could probably escape a sentence because again it is not possible, for a court, to establish what is Islamic and what is not. But one could also argue that stating that Islam is a violent ideology like communism and fascism and we should deal with it in that way, is so inflammatory that it crosses the boundaries of the freedom of speech. Since in the past we did not struggle against communism and fascism peacefully but by (cold) war, the statement can be seen as a call to war against Islam which inevitably means a call to war against Muslims. But Wilders is a politician and perhaps politicians should be given some leniency in this regard:
Pickled Politics » Why the trial against Geert Wilders is wrong
If we ignore, for the moment, the fact that Wilders’ advocacy of free speech is in direct conflict with his calls to ban the Quran, there should be no doubt that he is entirely within his rights to express his opinion – disagreeable or “politically incorrect” as they may be.
The hegemony of political correctness and a reluctance to offend has resulted in an insidious oppression of opinion. It seems that the global epidemic of cultural and religious hypersensitivity, spawned by critics of Rushdie over 20 years ago, is now a dominating force of politics.
The danger is that, by skirting around or censoring cultural and religious issues for fear of offending, we are left with stilted debate and analysis.
We will have to wait until the final verdict is out. Wilders already can prepare himself for a new court case since ‘Salafi’ imam Fawaz filed a complaint against him. In the film Fitna Wilders used footage showing the imam and according to the imam he did not give permission (which is necessary under Dutch law but with some exceptions).
The current case is a difficult one. A case that also shows that not everyone has an equal say in establishing what words mean and what the possible (and verifiable) consequences are of the meanings of these words. In part III and IV I referred to what Kerim Friedman wrote about joking. I want to highlight again because it is relevant and the ‘funny guy’ scene of Goodfellas Friedman shows is very telling:
The Joke’s on You – Society for Linguistic Anthropology
A joke is only a joke to the extent that your audience accepts it as such. If, instead, they choose to get offended, or take it seriously, it requires a lot of work on the part of the speaker to explain that the statement was meant as a joke. In such a case there are a range of possible outcomes: the audience might accept that it was a “bad joke” and leave it at that, or they might refuse to except the claim that the statement was intended as a joke.
Here is a famous scene from the movie Goodfellas in which the character played by Joe Pesci exerts his power by choosing to get offended at the fact that his joke was considered funny.
He eventually relents and admits he was joking, but only after he’s made everyone nervous.
In this case we can say that at the moment it is neither the audience nor the politician who decides what constitutes insulting and incitement. Although feeling insulted is a very personal issue it is now taken out of the hands of the individuals. The strategy of the prosecutor appears (until now) to be not to decide upon the issue of insulting thereby referring it back into the public debate where politicians are the most powerful. The decision about the more dangerous allegation (the power of the word insult seems to be limited in this case) of incitement to hatred is still in the hands of the prosecutors and also taken away from (or given away by) by the people who launched the complaints. Friedman’s point, although perhaps a little to homogenizing with regard to the state, stands: the case is also about who gets to decide what words mean. That, and not the possible limitations of the freedom of speech, makes this case so fundamental and important in relation to the freedom speech.
What I wrote earlier on this case:
- The Koran: Don’t burn it. Read it.
- Late Night: Center for Security Policy’s Report – Boykin-Blessed Anti-Muslim Propaganda
- Stoning Highlights Extremism of Taliban
- Letters: First Amendment collides with Islam
- Prelude to the Great War in Islam
- Understanding and Adultery Laws
- Islam, Islamism, and Moderation