LEGAL SITUATION IN THE NETHERLANDS concerning discrimination – and Ezzev’s stance on the subject

Project: Talking About Taboos (2013-1-FR1-GRU06-49587) The fundamental legal basis for all Dutch legislation on discrimination is article 1 of the Dutch Constitution: “All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.” Two laws further elaborate the topic of discrimination: The Law on Equal Treatment and the Dutch Penal Law. Dutch Penal Law (art. 90) defines discrimination: "every kind of differentiation, every exclusion, limitation or preference, that aims at or may have as a consequence that the recognition, the enjoyment or the implementation on equal footing of the human rights and the fundamental freedoms on political, economic, social or cultural areas or other areas of civil life are being negated or impaired.” The Law on Equal Treatment distinguishes two types of discrimination: direct and indirect. An example of direct discrimination is: “I do not want Turks in my shop.” An example of indirect discrimination is “I do not want anyone who speaks lousy Dutch in my shop.” Indirect discrimination may be justified if the criteria fit a situation. If the language criterion is applied to a job vacancy for a Dutch newspaper it is justified. If the language criterion is applied to a job vacancy for a dishwasher it is not. In article 2 of the Law on Equal Treatment situations are defined when discrimination is legal – for instance when it concerns the depicting of a specific character in a movie or an ethnically defined beauty pageant. Article 137 (c-f) of the Penal Law describes which forms of discrimination fall under the penal law: Insulting, inciting hatred or violent behaviour, the dissemination of insulting or inciting texts or objects or supporting one of these activities. The Dutch example of (perceived) social exclusion – the discussion on the cultural phenomenon of Zwarte Piet – made clear that the interpretation of Dutch law of what is discrimination is not that simple. When a group of citizens filed a law suit against the major of Amsterdam for not having considered (enough) the rights of coloured people in the Netherlands when he issued a permit for the yearly event in which the Dutch Santaclaus arrives in the city, accompanied by black faced helpers (Zwarte Pieten) a local court judged that the major was in the wrong. He had issued a permit for the yearly event even though the yearly event was ubiquitous and therefore had to have such a grave negative impact on coloured people that they suffered a breach of privacy. A higher court destroyed that interpretation and judged that the Amsterdam major had done nothing wrong. Thus, the critique on the Dutch legal dealing with discrimination is that it is:

Too vague

Not upheld

Ezzev’s stance on the issue is that a legal framework should be as clear and transparent as possible. It should defend the weak (and the strong for that matter) – so that they are not excluded nor are their rights negated or impaired - but one should not defend the over-sensitive. It is the logic of a democracy that opinions and events may hurt and insult. If one would give in to the request to defend every citizen against potential insults a totalitarian state would evolve as a result. For Ezzev it is essential that citizens are trained in resilience against critique as well as in ethics. For it is within the domain of ethics of every citizen that it is decided how far one wants to take potential insulting opinions and events. And it is within the domain of resilience of every citizen that it is defined what is insulting. According to Ezzev the state should provide a framework for civil society to implement its resilience and its ethics. If a state would provide an a priori assumption about discrimination – for instance that all citizens unconsciously discriminate – and would provide an active regulatory policy like in the UK, the outcome might be the opposite of the effect desired: a morally superior white elite, a morally inferior white underclass and non-white groups who are stimulated to instrumentalize their ethnicity. Ezzev’s stance presupposes that within civil society there are no taboos (like slavery), that many citizens are actively engaged in a dialogue about (perceived) social exclusion and rights negation or impairment and that no citizen is excluded from this dialogue.