Constitutionalism in Hungary: Undermining the Fundamental Law

JURIST Guest Columnist Gabor Halmai of Eötvös Lóránd University, Budapest says that the Fourth Amendment to the Fundamental Law of Hungary undermines several constitutional rights and implicates the entire scheme of constitutionalism in Hungary...
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On February 26, 2013, Hungary's Constitutional Court issued a ruling striking down the law granting official designation to churches in Hungary. Specifically, the court repealed parts of the law as unconstitutional, arguing that the registration of churches by the National Assembly of Hungary does not provide a fair procedure for the applicants. In addition, the court also prescribed the conditions of fair procedure for future legislation. But on March 11, a new amendment to the Fundamental Law of Hungary [PDF] was adopted, which put the same provisions that were found unconstitutional by the court into the text of the constitution. This amendment also prohibits the Constitutional Court from reviewing the constitutionality of amendments to the Fundamental Law. The amendment, which entered into force on April 1, 2013, was proposed by the governing Fidesz party which has the two-thirds majority in parliament that was needed for a constitutional amendment to be accepted.

So, this is the end of the short version of the story — it is also the end of the freedom to establish new churches in Hungary.

According to Hungarian law on the status of the churches, as well as a separate law on the Transitional Provisions of the Fundamental Law [PDF] ("Transitional Provisions"), the power to designate legally recognized churches is vested in the parliament itself. The law has listed 14 legally recognized churches and required all other previously registered churches (some 330 religious organizations in total) to either re-register under considerably more demanding criteria, or continue to operate as religious associations without the legal benefits offered to the recognized churches (e.g., tax exemptions and the ability to operate state-subsidized religious schools). As a result, only 18 have been able to re-register, so the vast majority of previously registered churches have been deprived of their status as legal-entities. Because registration requires an internal democratic decision-making structure, the majority of previously registered churches were not able to continue to operate with any legal recognition under the new regime. Non-traditional and non-mainstream religious communities — which had not encountered legal obstacles between 1989 and 2011 — are now facing increasing hardships and discrimination as a result.

Seventeen of the deregistered churches filed a constitutional complaint to the Constitutional Court, arguing that deregistration by a political body violated the requirements of access to court and the right to a legal remedy granted in the Fundamental Law. Moreover, they argued that the criteria churches must meet to regain their legal entity status are not transparent, and the procedure specified in the law is incomplete. As a result, the provision that gives parliament the power to designate legally recognized churches confers an essentially discretionary power.

When the petition was submitted, there was little chance of victory because the text of the Transitional Provisions — which also contained the new system of registration — claimed that every provision is part of the Fundamental Law. But at the very end of 2012, the Constitutional Court declared that those parts of the Transitional Provisions which are not transitory in nature (including re-registration of the churches) cannot be construed as part of the constitution and are, therefore, invalid. This ruling made it possible for the court to review the very substance of the law on the status of the churches and find it unconstitutional.

Besides entrenching the unconstitutional procedure of church recognition, the Fourth Amendment [PDF] seems to exclude the possibility of constitutional complaint against a negative decision of the parliament. The new text of the constitution says that churches may appeal to the Constitutional Court from amendments made to the law on the status of churches. But this law will only be amended when the parliament agrees to include the petitioning church in the set of officially recognized churches. In case of refusal of the church's application, the parliament issues an order declining the petition. There is no amendment to the law in this case. Therefore, only those churches that succeed in their petition to parliament can appeal to the Constitutional Court, while the churches that fail to persuade the legislature cannot.

By elevating the annulled non-transitory provisions of the Transitional Provisions into the main text of the Fundamental Law, the intention of the Fourth Amendment is to exclude further constitutional review. Besides the procedure regarding the recognition of the churches, there are many other issues lifted to constitutional rank. Among them is the authorization of the head of the National Judicial Office to select another court, if they think that the competent one is overloaded with cases. Similarly, provisions annulled earlier by the Constitutional Court, besides the ones that were part of the Transitional Provisions, have become part of the amendment and, consequently, part of the constitution after its promulgation on March 25. One of them is an authorization of the legislature to set conditions for state support in higher education, such as mandating that graduates of state universities remain in the country for a certain period of time after graduation. Another revenge for the previous declaration of unconstitutionality is the authorization of both the legislature and local governments to make homelessness unlawful.

At the end of 2012, the court had annulled the very definition of the family in the law on the protection of families. Now the Fundamental Law defines marriage and the parent-child relationship as the basis of a family relationship, excluding non-marital partnerships. Likewise, the Constitutional Court had expressed concerns about private law limitations on hate speech. The new amendment was made to allow such limitations, not only to protect racial and other minorities, but also to protect the dignity of the members of the Hungarian nation. Finally there is a set of amendments related to the power of the Constitutional Court itself, as a direct reaction to recent unwelcome decisions of the judges. The most alarming one annuls all Court decisions, including the decisions on freedom of religion, prior to when the Fundamental Law was entered into force.

Therefore, the Fourth Amendment intensifies the outcome of the Fundamental Law, killing off not only freedom of religion, and many other fundamental rights, but the entire scheme of constitutionalism in Hungary.

Gabor Halmai is a Professor of Law and director of the Institute for Political and International Studies at Eötvös Lóránd University, Budapest, as well as director of the Hungarian Human Rights Information and Documentation Center. He is a visiting research scholar at Princeton University.

Suggested citation: Gabor Halmai, Constitutionalism in Hungary: Undermining the Fundamental Law, JURIST - Forum, Apr. 12, 2013, http://jurist.org/forum/2013/04/gabor-halmai-hungary-churches.php.


This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

 

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