H. David Baer: “All animals are equal but some animals are more equal than others”: Continuing problems with Hungary’s law on religion

H. David Baer, associate professor of theology and philosophy at Texan Lutheran University, is spending his sabbatical in Hungary where he is doing research with the support of IREX, an organization that has been supporting research and exchange in Europe and Eurasia. David Baer is also a visiting research fellow for the 20014/15 academic year at the Central European University located in Budapest.

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During the last two years I have devoted considerable research to assessing the impact of Hungary’s religion law on deregistered, or non-established, churches.  This research has consisted of surveys as well as extensive field work carried out during extended visits in Hungary.  Today, in the short time allotted to me, I would like to highlight what I see as key problems with Hungary’s law on religion.  These problems can be grouped into two sets.  The first set concerns the recognition procedure itself; the second set concerns the legal status of religious communities not recognized as churches.  I will discuss these problems in turn, but to do so clearly let me first comment briefly on the religion law’s legislative history.

The religion law’s troubled legislative history

The first version of the law on “the Right of Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations, and Religious Communities” was passed as Act C of 2011.  An initial bill was brought to the floor by the Christian Democratic People’s Party (KDNP), a coalition party in the ruling government.  The original bill listed 44 recognized churches and provided a procedure by which additional religious groups could receive recognition through the courts.  However, two hours before the final vote, the original bill was replaced with a completely different one, introduced on the floor by a member of the ruling Fidesz party.  The new bill, which was passed into law, reduced the number of recognized churches from 44 to 14, and stipulated, further, that future recognition of churches would be determined by a two-thirds vote in Parliament.  Although Hungary’s Constitutional Court later struck down Act C on procedural grounds, an identical version of the bill was resubmitted to Parliament and passed as Act CCVI of 2011, going into effect on January 1, 2012.

In February, Parliament expanded the number of recognized churches from 14 to 27, a list which now includes smaller Christian and non-Western religious groups.  This is still fewer than the number of recognized churches included in the original Christian Democratic bill.  Moreover, at the time it was passed, Act CCVI stripped all religious groups not recognized by Parliament of legal standing.  In my estimate, as many as 150 religious communities may have been deregistered by the law.

Hungary’s Constitutional Court subsequently struck down numerous provisions in Act CCVI on the grounds that the recognition procedure did not adequately guarantee the rights of due process and legal remedy to all religious communities.  The government responded by amending both Hungary’s constitution, or what is called the Basic Law, and Act CCVI of 2011.  Although some of these amendments improve parts of the law, they also preserve Parliament’s power to determine church recognition.  Thus they fall short of addressing adequately the issues of due process and legal remedy raised by the Court.  In this respect, as well as others, Hungary’s religion law remains highly discriminatory.

Problems with the recognition procedure

The government responded to the Court’s concern about due process by modifying Hungary’s laws to allow explicitly for political discretion in the decision concerning which

religious groups to recognize as churches.  Act CCVI now stipulates as a condition for recognition that a religious community must be suitable for cooperation with the state in the pursuit of public goods.  A religious community demonstrates this suitability on the basis of its charter, the size of its membership, and its previous activities.  These, however, are vague criteria.  The current list of recognized churches includes many small churches with a small social presence, while simultaneously excluding larger churches with a significant social presence.  Because the criteria are vague, they open up a legal space in which Parliament is free to act in an arbitrary and discriminatory manner.

The government responded to the concerns about legal remedy by introducing a passage into Act CCVI that allows religious communities to appeal their rejection by Parliament before the Constitutional Court.  That is, a rejected religious community would ask the high court to review Parliament’s specific decision to deny it church status.  However, since both the Basic Law and the law on religion allow Parliament to exercise political discretion in determining which religious groups are suitable to cooperate with the state, it is hard to envision a scenario in which the Constitutional Court could ever overturn a decision by Parliament.  If Parliament has a constitutional right to enact arbitrary decisions, the Court cannot strike down Parliament’s decision for being arbitrary.

To illustrate the kind of arbitrary treatment Hungary’s new constitution protects, one might consider the case of the Hungarian Evangelical Fellowship.  The Hungarian Evangelical Fellowship is a church which, despite its large social presence, has been denied recognition by Parliament.  The church operates a large homeless shelter in Budapest and five nursing homes.  It also maintains a seminary, and educates more than 3000 children, mostly Roma, in preschools and elementary schools throughout the country.  Although the Hungarian Evangelical Fellowship was included among the recognized churches in the original Christian Democratic draft of the law, it was not included in the bill submitted to Parliament by Fidesz’s representative.

The president of the Hungarian Evangelical Fellowship is Gábor Iványi.  Iványi was an opposition figure in the communist period and part of a group that broke away from the Hungarian Methodist church in the 1970’s to establish the Evangelical Fellowship.  Pastor Iványi also baptized Viktor Orbán’s first two children.  The young Orbán, perhaps, was attracted to Iványi because of his strong anti-communist credentials.  Since then, however, the relation between the two men has soured.  Today Iványi is one of the Orbán government’s most vocal critics.

In a published interview, the news weekly Heti Válasz asked the Minister of Human Resources, Zoltán Balog, about the government’s relationship with Iványi.  Balog, who plays a key role in deciding which religious communities are forwarded to Parliament to be considered for recognition, was asked whether Orbán’s children had been baptized in a false church.  He responded as follows:

Baptism is valid even if it is performed by a midwife, which means that Orbán’s child is all right. In addition, it is not in good taste, in my opinion, if someone appears all over the media announcing that he baptized the prime minister’s children. What kind of spiritual leader gives statements about the spiritual life of believers who have been entrusted to him? I would never do such a thing because I take being a pastor seriously. And as to those who don’t, why are they surprised that the government, in turn, does not take them seriously?

If this is intended as an explanation for why the government has refused to recognize Iványi’s church, then such an explanation appears incompatible with the state’s obligation to adopt a neutral attitude toward religious communities.  Are we to understand that the Hungarian Evangelical Fellowship is not suitable for cooperation with the state because, in the view of a government minister, its president does not take his pastoral vocation seriously?  Although this is admittedly a rhetorical question, the point is that nothing in Hungarian law appears to rule out such prejudiced considerations from Parliament’s decision concerning which churches to recognize, and nothing in Hungarian law appears to guarantee the Hungarian Evangelical Fellowship legal remedy against Parliamentary decisions rendered on such a prejudiced basis.

Problems with the legal status of deregistered religious groups

When it reduced the number of recognized churches in Hungary, Act CCVI simultaneously placed the formerly recognized, now deregistered, churches into a no-man’s land in which they had no clear legal status.  Deregistered religious communities were forced to apply for recognition as civil organizations, but neither Hungary’s constitution nor its civil code extended basic religious freedom rights to civil organizations.  In this respect, recent amendments to Act CCVI represent a notable improvement.  The law now creates two clear categories for religious groups.  The first category consists of “established churches” (bevett egyházak), which are the churches recognized by Parliament.  The second category consists of “organizations conducting religious activity” (vallási tevékenységet végző szervezetek).  These religious organizations are registered by the courts, rather than by Parliament, and they enjoy many of the protections associated with the right of religious freedom.

Even so, this two-tiered classification system remains highly discriminatory.  Unlike established churches, religious organizations do not enjoy tax exemptions, nor do they receive the same kind of subsidies as churches.  Beginning in 2014 the accounting laws applicable to established churches will be significantly different from those applicable to religious organizations.  The two tiers are also treated unequally in respect to religious practice.  For example, the clergy of established churches enjoy privileges of confidentiality (e.g., a priest can’t be forced to divulge secrets heard in the confessional) that clergy in religious organizations do not.  Although religious instruction has recently been incorporated into the national school curriculum, religious organizations are prohibited from offering religious instruction in public schools.  Before the new religion law and the change in Hungary’s national curriculum, however, many of these same religious communities could offer optional religious instruction in public schools when there was demand for it.  Moreover, when placed in the context of broader changes in Hungary’s legal environment, the new law on religion functions to burden and restrict the activity of non-established religious organizations.

The best way to understand how the law functions in practice is by way of concrete illustrations.  There is a Buddhist community in Hungary, consisting mostly of Roma, called the Jai Bhim Network.  It is actively engaged in educating disadvantaged gypsy children.  When Jai Bhim was still a recognized church, it rented out several classrooms from a public school in Ózd, a city frequently in the Hungarian news because of racial tensions.  When Jai Bhim lost church status, all of its contracts, including its contract with the school in Ózd, where voided.  City leaders were unwilling to negotiate a new contract, and Jai Bhim had to abandon its activities in Ózd.  Of course, members of Jai Bhim remain free to practice their religion, and they are even able to maintain a few schools.  However, their activities have been restricted, and, lacking the same legal protections enjoyed by established churches, they are more vulnerable to discrimination.

In 2011, Hungary conducted a national census, which included a question about religious affiliation.  In the town of Sajókaza, where Jai Bhim is active and maintains a school, more than 300 Gypsies identified themselves as Buddhists to census workers.  Shortly thereafter, the local police went knocking door-to-door in the Roma neighborhood, asking if the residents had identified themselves as Buddhists on the census.  According to some news reports, the mayor of Sajókaza later informed the town’s Gypsies that the Catholic priest would neither bury Budhhists nor baptize their children.  A few months later, the Hungarian Labour Inspectorate, responding to an anonymous tip, audited the school operated by Jai Bhim in Sajókaza.  Because this school was no longer a church school, the regulations pertaining to it were different.  The school needed to keep a record not only of the hours teachers spent in the classroom, but also the hours teachers spent preparing for class outside of the classroom.  Because it failed to do this, the school was fined 3.2 million HUF (approximately $14,000).  Although the fine was later reduced to 1.75 million HUF, this remains a large sum which the school must pay at the same time its operating budget has been reduced by the loss of state subsidies granted to churches and church schools.

In fact, the representatives of many religious communities have told me they worry about the tax authority.  At any time, they say, the government can order the audit of a religious community it dislikes, and because the accounting laws are complicated and constantly changing, the tax authority can always discover an irregularity and levy a fine large enough to drive a small religious community into bankruptcy.  Established churches, by contrast, will be able to maintain financial records in accordance with their own internal rules starting in 2014.  Thus the tax authority will not be able to audit the records of established churches as carefully or rigorously as it can audit the records of businesses and religious organizations.

The situation regarding religious freedom in Hungary might thus be summarized as follows.  Hungary’s two-tiered classification of religious groups functions discriminatorily by affording different rights and protections to established churches and religious organizations.  Because religious organizations enjoy fewer rights and protections, they are vulnerable to acts of discrimination from state and bureaucratic offices.  Because the registration process is thoroughly political, religious organizations are denied an effective legal avenue to obtaining the rights and protections enjoyed by established churches.  Like the pigs who ruled George Orwell’s Animal Farm, those who crafted Hungary’s new law on religion might well concur that, “all animals are equal, but some animals are more equal than others.”

Fake religiosity rules the day in Hungary

I will spend a little time today and tomorrow talking about topics that in one way or another are connected to religion.

Let me start with a footnote to the relationship between church and state in Orbán’s Hungary. I got so involved with the story of the alleged mummified right hand of Saint Stephen, whom I really should call Stephen I, that I didn’t pay much attention to the mass held in the St. Stephen Basilica and the procession that followed. However, today I noticed a sentence in an article that the grand old man of the 1956 Revolution, Tibor Méray, wrote on Galamus on August 28. The article itself is an indictment of the Hungarian political elite from József Antall to Viktor Orbán. The sentence that caught my eye was that “Orbán had the temerity to lead the Procession of the Holy Hand when he is a Protestant. Not even Horthy dared to do that.” Horthy was also Protestant.

Not only was Viktor Orbán present at the mass but also President János Áder; Zsolt Semjén, deputy prime minister; Pál Schmitt, former president who had to resign because of plagiarism; Péter Boross, former prime minister (1993-1994); Péter Darák, head of the Supreme Court (Kúria); Antal Rogán, leader of the Fidesz parliamentary delegation; and Mrs. Ferenc Mádl, wife of the former president (2000-2005) whose political sympathies definitely lie with Fidesz. I was somewhat surprised to find Ilan Mor, Israeli ambassador, among the dignitaries.

The opening of the school year prompted another round of incredible comments from government officials on religion and specifically on Christianity, but I will leave that topic for tomorrow.

Today I will touch on another topic that has something to do with religion. I’m talking about Mayor István Tarlós’s encounter with the Old Testament.

Erzsébet Gy. Nagy is currently a politician in the Demokratikus Koalíció. Earlier she was one of the leading MSZP politicians in Budapest, best known as the MSZP candidate against the long-time SZDSZ mayor Gábor Demszky in 2002. Recently she wrote an open letter in the name of DK protesting the decision of the Fidesz-KDNP city council to make homelessness a criminal act. After all, argued Nagy, the Constitutional Court found the practice unconstitutional. She reminded “the leadership of the country and the capital whose members claim to be Christians of what the Bible says: ‘Blessed is he who considers the poor! The Lord delivers him in the day of trouble’ (Psalms 41:1).”

That innocent biblical quotation became the center of a political controversy because of an interview Mayor István Tarlós gave on HírTV.  I will translate that part of the interview (from 8:25 on) that prompted the upheaval.

Tarlós: I also read today–what is the name of the group around Gyurcsány? Demokratikus Koalíció, isn’t it? Erzsébet Gy. Nagy, former MSZP colleague of mine in the city council, made a statement and began her declaration with “Blessed is he who considers the poor! The Lord delivers him in the day of trouble.” She quoted from the Book of Psalms. Now it is one thing that when they open the Bible on such occasions it always opens at the Old Testament, but I don’t want to say anything about this here.

Reporter: Let’s add to that that another DK member of parliament said that you will have to give account of your actions before the Lord.

Tarlós: It was so because I really believe in the Lord, although it is true that I read the New Testament more often, but we also read the Old Testament. But there is no need for such a hypocritical attitude. They come up with haphazard quotations. This is what happens to those who for a while confirmed.* Or who talk about the Messiah in front of rabbis.** So, these people would be better off if they didn’t lift passages from the Bible, but let that be their problem.

Why was it necessary for Tarlós to make an issue of the quotation that happened to come from the Old Testament? Naturally he denied that he intimated that members of the Demokratikus Koalíció mostly peruse the pages of the Old Testament and said that he finds the accusation “ridiculous and pitiful.”

Erzsébet Gy. Nagy answered in the name of the Demokratikus Koalíció. She decided to give a short lecture on church history to Tarlós who “unlike the children does need religious education.”  And she made four points. (1) The First Council of Nicea in 325 declared the Old Testament one of the holy books. (2) The Bible normally opens at the Old Testament because it is much larger than the New Testament. Earlier the Demokratikus Koalíció cited some of the New Testament passages that are applicable.  (3) In fact, Jesus put an even greater emphasis on mercy and compassion than the prophets of the Old Testament. Instead of the Book of Psalms they could have cited Matt. 18:33 “and should not you have mercy on your fellow servant, as I had mercy on you?” and (4) A gentleman is not “zsidózik” and for others it is forbidden.

I once tried to explain what this strange Hungarian verb means. The occasion was Zsófia Mihancsik’s article, which I translated as “Antisemitism: A short history of responsibility.” And I added that the word she used, and what I translated as antisemitism, is “zsidózás,” a noun coming from the verb “zsidózni,” which is an untranslatable Hungarian verb. It means talking about Jews (zsidók in pl.)  in an unfavorable light. It also implies that the speaker regularly engages in anti-Jewish speech. There is no question in my mind that this is what Tarlós was doing.

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*The original makes no more sense than the translation.

** The reference here is to Ferenc Gyurcsány who in 2005 in a speech commemorating the Holocaust got mixed up and talked about the Messiah instead of the Creator before attending a Jewish service.

Breaking news: The World Jewish Congress’s Plenary Assembly in Budapest

Below, thanks to a friend, a contributor, and a regular reader of Hungarian Spectrum, I’m able to publish the speeches of Péter Feldmájer, president of the Federation of Jewish Communities in Hungary (MAZSIHISZ), and Ronald S. Lauder, president of the World Jewish Congress, at the Plenary Assembly in Budapest on May 5.

Unfortunately Viktor Orbán’s speech is not yet available in English (although it’s already on YouTube in Hungarian), but the World Jewish Congress’s reaction was negative.

I should add that the translations are not mine.

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Péter Feldmájer

Mr. President Lauder, Mr. Prime Minister, His Excellency the Cardinal, Bishops, Rabbis, Mr. and Madame Ambassadors, Dear Guests, Ladies and Gentlemen

Ma nishtano halailo haze?

What makes this night different from all other nights, we ask each Passover Seder evening; today we can ask the question: ma nishtano hacongres haze – i.e. what makes this congress different from all other congresses?

First and most, it is that we would like to welcome you in Budapest, the capital of Hungary, a glorious city that safeguards the joys and also the tortures of the past.

You have arrived in a country which – legend has it – saw the Jewish people from the Kazar empire come into this land together with the state founding proud horse tribes, and also where for many decades in the 19th century the Jews of the east were greeted with a warm and wholehearted welcome. The Jews here had become Hungarian patriots, they quickly lost their own language and supported the cause of Hungarian independence without reservations; nevertheless, already in the very first days of the 1848 heroic freedom fight, a pogrom was launched against the Jews of Bratislava.

You have come to a city that is proud to have Tivadar Herzl, the visionary of modern Israel, as its son and student.

You have come to a country which had lost World War I and with that 2/3 of its territory. The heroism of the Jewish soldiers and officers fighting the war as Hungarian patriots had become legendary, yet it did nothing to stop the political elite from blaming the Jews for the defeat and introducing the very first anti-Semitic laws of Europe, which served as models for the Nazis.

You have come to a country where the vast majority of the then mainstream society approved of the anti-Semitic laws and while most of them did not identify with the massacres, ultimately the entire Hungarian public administration – led by the Governor – successfully organised and implemented the gathering and deportation of Jews to the gas chambers of Auschwitz. You have come to a city that is proud of its jewel, the blue Danube, whose water was once painted red by the blood of tens of thousands of Jews shot dead on its banks.

You have come to a city where despite decades of anti-Semitic propaganda, despite official prohibitions, there were still hundreds and thousands that risked their lives standing up for, hiding and saving the lives of Jews.

You have come to a country where the majority of Jewish people – despite the massacres – remained patriotic to the land.

You have come to a country in which Moscow-based concoctors of leftist anti-Semitic pogroms could not achieve anything because the otherwise loyal Communist leaders of the country were not willing to identify with and fulfil the mad plans and commands of red tsars that followed the footsteps of Hitler.

You have come to a country where after the fall of Communism, the largest Jewish community of Central Europe revived Jewish religious and cultural life with unparalleled enthusiasm; the education system they brought to life may be an example to all.

You have come to a country whose proud Jewish residents can freely express their love of Israel and may freely proclaim not to ever forget Jerusalem, the spiritual capital of the united Jewish people.

You have come to a country which – perhaps the first one in the world after Israel – adopted a bill to commemorate the victims of the holocaust and – in line with the measures of the first Orban-cabinet – does a tremendous lot to keep the memory of the holocaust alive, to make the history of the holocaust part of school education.

You have come to a country whose Jewish community is again under threat by horrific ideologies and acts, which are the remnants of the Middle Ages and the holocaust, where an elderly Chief Rabbi is attacked in the street, where Fascists are hailed, where the courts set murderers as role models for the young as squares, and streets are being named after keen anti-Semites, as the works of court poets of Hungarian Nazis are included in the national curriculum and thus polluting the souls of our students.

You have come to a country whose government is in support of the security of the state of Israel and is ready to stand up for the inalienable religious rights of Jews and would never consider placing animal rights before the religious rights of Jews.

You have come to a country, where Jews could live in peace and enjoy the support of the majority of Hungarian society if the holler of the vindictive minority did not suppress their sober and friendly voices.

Two decades ago, the director of MAZSIHISZ, Mr Zoltai, and I used to think that not only did Hungarian Jews have a great past, they also have a great future ahead of them. What has happened in this country in the past decades has proved that we were not wrong. We are still convinced today that not only is the present of Hungarian Jews great, but so is their future despite the raving of the anti-Semite rabble.

Thank you for coming and being here with us. We are proud to have been found worthy of holding the congress here, to be together, and for you to express your solidarity with the Hungarian Jewry.

I believe that the Jews of the world must unite their forces. This day also shows us that we are not alone, we are all listening to each other no matter where we may be living across the globe. The task we have is no little one to handle.

Hungary and Europe are on the wrong track.
As the Prince of Denmark, Hamlet put it:
“The time is out of joint: O cursed spite,
That ever I was born to set it right!”

Yes, ladies and gentlemen, time is out of joint and only together can we set it right; it is as if we the sounds and voices of the sinister ’30s were back again. All of us here tonight, Jews and non-Jews can only succeed in preventing the dark era of anti-Semitism from retuning to Hungary, Europe and the entire world and in ensuring that not a single Jewish person is ever in fear of terror if we unite our forces.

Thank you for your attention, I wish you all a pleasant evening.

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Ronald S. Lauder

Prime Minister Orban,  President of Mazsihisz, my friend Péter Feldmájer,  Cardinal Erdő,  Rabbis, Ministers and Members of Parliament, Distinguished Ambassadors, Representatives of our Jewish Communities from all around the world, ladies and gentlemen, Dear friends:

First of all, I want to thank Péter Feldmájer and the wonderful Jewish community here in Hungary.

The fact that we are here tonight – representatives of Jewish communities from 100 countries around the world – is a tribute to the strength, resilience and vitality of Hungarian Jewry and to your leadership, Péter. Thank you.

Prime Minister Orbán and Cardinal Erdő, we thank you for being with us. Your presence here tonight is also fitting because Budapest’s history is tied to Jewish history.

Less than one hundred years ago, a quarter of this great city’s population was Jewish. Hungary’s Jews contributed to the country’s economy, its culture, and its universities as well as its extraordinary tradition of mathematics and science.

Albert Einstein happens to be one of the few top physicists in the last century who was not born in Hungary but figures such as Szilard, Teller and Johnny von Neuman were just some of the brilliant Jewish minds that all came from Hungary and left a huge impact on the world.

Joseph Pulitzer, one of America’s greatest newspaper publishers and the founder of the most coveted prize in journalism that still bears his name today came from Hungary. And of course, Theodore Herzl, who founded the modern Zionist movement that led to the creation of Israel is from here as well.

My own mother’s parents were born here. The Lauder family dates back to the 13th Century and there was a special Jewish community there at that time, so you see my connection to Hungary is both deep and personal.

But sadly, all of the famous Jews I mention – and there are many more – noble laureates, artists and scholars – all left Hungary because they were forced to leave.

The rise of anti-Semitic parties in the 1920s and the 1930s led to the darkest chapter of all – the deportation and gassing of more than 400,000 Jewish men, women and children.  A staggering one-third of the 1.1 million Jews murdered at Auschwitz were Hungarian.

It is so clear that if these dark forces of anti-Semitism had not been allowed to rise in the 20th Century – all of Hungary would have prospered.

This always strikes me as so obvious – when Jews are allowed to live their lives freely and practice their religion, countries always flourish. It is obvious. But all too often, the irrational hatred that is Anti-Semitism defeats common sense.

After 1920, the government of Admiral Miklós Horthy – a vicious anti-Semite – moved Hungary towards this irrational hatred. His government passed successive anti-Jewish laws and aligned itself closely at that time with the Nazis in Germany.  And in 1938, the Horthy regime enacted its version of the infamous Nuremberg Laws.

The first deportations of Jews from Hungary to concentration camps occurred in 1941, during the time of Admiral Horthy.

I am recalling these facts now not because we are not familiar with them, but because today we are seeing, once again, growing ignorance, growing intolerance, growing hatred.

Once again we see the outrage of anti-Semitism.

This is by no means only in Hungary, but also in other places in Europe – in Greece, where I was a few weeks ago, in Ukraine and elsewhere.  We see that Jews and other minorities are singled out, vilified, demonized.

We see that more and more people openly deny the Holocaust, which happens to be one of the most well documented tragedies in history.

We see that a growing number of people actually believe the old canard that Jews control world finance, or the media, or everything.

And we see that Jews again are being blamed for economic troubles.

Today, there are members of the Hungarian Parliament who want the government to draw up “Lists of Jews” who hold public office. That sends out warning signals around the world.

In the press and on television, anti-Semitism and incitement against the Roma minority are becoming commonplace, and sometimes even accepted. We were shocked to learn that an anti-Semitic TV presenter was awarded a prize.

Thankfully the Government withdrew this prize.  But the fact that it was awarded in the first place is the kind of thing that has us worried.

And there is this journalist, Zsolt Bayer, who recently called Gypsies “cowardly, repulsive, noxious animals.”  He said they were “unfit to live among people” and called for “dealing with them immediately.”

Such words are reminiscent of the darkest era in European history.  Let us never forget the Roma were also victims of the Nazi Holocaust.

Today, Jews are again wondering whether they will have to leave the country, for similar reasons.

Because they wonder why anti-Semites like Miklós Horthy are being glorified, and why statues honoring them are unveiled by Hungarian officials. Horthy was equivalent to Hitler and seeing statues of him going up sends the wrong signal.

Perhaps because they wonder if Jews have a future in Hungary?

Whatever the reason, their concerns must be taken seriously.

When Hungarian Jews are attacked by fanatics, they should be able to count on the unequivocal support of their government and of their authorities. It is the authorities that must stop this before it even begins.

Mr. Prime Minister, I know that the Hungarian people love freedom.  They are courageous.

In 1956, Hungary was the first country to rise up against the Soviet oppressors.

Hungary was the first country in 1989 that set off the chain reaction, which opened the Iron Curtain and brought down the Berlin Wall. For this the world thanks the Hungarian community.

Mr. Prime Minister, you were part of this. You did many things positive at that time.

The fall of Communism paved the way for a rebirth not just of a new Hungary but also for the revival of Jewish life here in Hungary and frankly no one frankly after the Shoah could ever imagine that. I remember when I opened my summer camp here we had 400 children from all over Europe attend a ceremony and the translator as I was speaking started to cry. I turned to him and asked “why are you crying?” He said “old man, I never thought I would see Jewish children again in Hungary.”

I decided to support that Jewish renaissance as much as I could. In 1990, I established the Lauder Javne School in Budapest.  It is now welcoming 600 Jewish students a year and enriching their lives with Jewish values.

I am very proud of all the things we have accomplished, and tomorrow we shall all have a chance to see more of the children when we have dinner at the school.

I have also had the honor to rebuild many synagogues here – showing my strong commitment to Hungary’s history and it’s great heritage.  Let there be no doubt: I still believe in the future of this country. And so do many others.

Prime Minister Orbán, I thank you for your presence here tonight.

It is no secret that Hungary’s international reputation has suffered in recent years.

But Hungary’s good name was not smeared by the foreign press, but by extremists.

Mr. Prime Minister, we are especially concerned about one particular party.  I am talking about Jobbik, a party that won almost 17 percent of the vote in the 2010 elections.  Through its anti-Semitism, its hostility to the Roma, and its paranoid rantings at the outside world, Jobbik is dragging the good name of Hungary through the mud.

That same party held a demonstration just yesterday against our gathering here in Budapest. Granted there were only a few people but it was symbolic because they were told they should not protest.

Hungarian Jews, Mr. Prime Minister, need you to take a firm and decisive lead. They need you to take on these dark forces. They need you to be pro-active.  They need your leadership in this fight.

They need you to send the message to the entire population that intolerance will not be tolerated.

As President of the World Jewish Congress, I ask you to do precisely that and thus to demonstrate and talk about this great country’s finest traditions.

It is time for leadership and strong actions.  We truly hope that you will be successful.

Fascism and intolerance always single out the Jews first.  But they are never the last victims.  All good people suffer.  Countries suffer.  In the end, this hatred and intolerance only destroys a nation’s hopes, its progress and its future.

Mr. Prime Minister this hall is full of hope.  We welcome you here to our gathering as you and the majority of your compatriots have welcomed us to your country.

We thank you for being with us in your stunningly beautiful capital city.

Thank you very much.

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It seems that Viktor Orbán’s speech didn’t meet the expectations of the World Jewish Congress.

The World Jewish Congress appreciates Prime Minister Viktor Orbán’s decision to address the international Jewish community by speaking here tonight. We welcome that the Prime Minister made it clear that anti-Semitism is unacceptable and intolerable.

However, the Prime Minister did not confront the true nature of the problem: the threat posed by the anti-Semites in general and by the extreme-right Jobbik party in particular. We regret that Mr. Orbán did not address any recent anti-Semitic or racist incidents in the country, nor did he provide sufficient reassurance that a clear line has been drawn between his government and the far-right fringe.

As the Jewish people have learnt throughout history: Actions speak louder than words, no matter how well intended they are. The WJC will continue to urge all democratic forces in Hungary and elsewhere to combat with great determination rising extremism, anti-Semitism and hatred. We will continue to evaluate the situation in this regard.

The  prime minister’s speech is available on YouTube in Hungarian:

I may add that Ferenc Gyurcsány, who was present at the plenary assembly, left before Viktor Orbán delivered his address. In a Facebook comment he said that he had no intention of listening to the Hungarian prime minister’s lies.

Testimony of H. David Baer, Texan Lutheran University, for the Record

Testimony Concerning the Condition of Religious Freedom in Hungary, submitted to the U.S. Commission on Security and Cooperation in Europe (the Helsinki Commission) by H. David Baer, Texas Lutheran University, March 18, 2013

Changes in Hungary’s religion law, 2011-2013

 

In July 2011, Hungary’s Parliament passed Act C of 2011 “on the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.”  Act C of 2011 was a cardinal law, requiring a 2/3 parliamentary vote to be passed or amended.  However, the law was passed through a highly irregular parliamentary procedure inappropriate for legislation on such a fundamental matter as religious freedom.  An initial bill was brought to the floor by a representative of the Christian Democratic People’s Party (KDNP), a coalition party in the ruling government, but two hours before the final vote, a member of Fidesz, János Lázár, proposed an amendment from the floor that changed the bill in its entirety.  Lázár’s surprise version of the bill was debated on the floor for two hours and passed by Parliament.

On December 19, 2011, the Constitutional Court struck down Act C on the basis of a narrow objection to the irregular procedure by which the law was passed.  Three days later, on December 22, a new religion bill essentially identical to Act C was submitted to Parliament’s Committee on Constitutional, Legislative and Judicial Matters (Alkotmányügyi, igazságügyi és ügyrendi bizottság).  The Constitutional Committee discussed the bill from 9:09 to 9:53 a.m. and then forwarded it to Parliament, where debate was taken up and closed the very same day.  Although representatives in Parliament had less than 24 hours to consider the contents of the bill and propose amendments, it was passed as Act CCVI of 2011 and went into effect January 1, 2012.

Act CCVI of 2011 introduced an elaborate registration procedure for legal recognition of churches.  The Act stipulates that religious groups seeking legal recognition must conform to numerous criteria, almost all of which are problematic.  Some criteria presuppose a substantive definition of religion that is biased toward Christianity.  For example, groups seeking legal recognition need to have “a confession of faith and rites containing the essence of its teaching.”  Although this criterion may be appropriate for what are called “orthodox” religions, that is, religions like Christianity which emphasize confessional and official teaching, it is hardly appropriate for what are called “orthoprax” religions, that is, religions like Judaism and Buddhism which emphasize religious practices but do not produce authoritative confessions. Other criteria are excessively burdensome.  For example, groups seeking legal recognition need to have been “operating internationally for at least 100 years or in an organised manner as an association in Hungary for at least 20 years.”  Some criteria are sweepingly vague.  For example, the activities of a religious group seeking registration cannot be contrary to the Hungarian constitution – a constitution, one might add, that has already been substantially amended four times in a single year.

According to the Act, legal recognition to churches is granted only by a 2/3 vote of Parliament.  However, even in cases where a religious group meets all of the criteria enumerated in the law, Parliament is not required to grant that religious group legal recognition.  Tamás Lukács, chair of the parliamentary Committee on Human Rights, Minority, Civic and Religious Affairs (Emberi jogi, kisebbségi és vallásügyi bizottság), has stated repeatedly that religious groups do not have a right to be legally recognized as a church or religious community, but that legal recognition is a matter of political discretion.  In Lukács’s view the state is free to refuse recognition to religious groups even in cases where they meet all the criteria enunciated in law.  Importantly, the Committee on Human Rights which Lukács chairs has been responsible for determining whether applications by religious groups for legal recognition are forwarded to Parliament.  Thus Lukács’s views on these matters are of consequence.

When Act CCVI of 2011 was first passed, Parliament recognized only 14 churches/religious communities, all of which were either Christian or Jewish.  In February 2012, perhaps in response to international pressure, Parliament recognized an additional 13 groups, including Muslims, Buddhists, and smaller Christian groups, thereby raising the number of recognized churches to 27. (Numerous reports have listed the number of accepted churches as 32.  However, Act CCVI of 2011 and its “annex” list a total of 27 churches.  Five Buddhist communities merged and were recognized collectively as one church in the law.  If one incorrectly adds those five Buddhist groups separately to the list of 27 accepted churches, one gets 32).  Act CCVI of 2011 also stripped all religious groups not recognized by Parliament of legal standing, forcing them to apply for recognition as civil associations.

Criticisms of Hungary’s religion law

In March 2012, the European Commission for Democracy Through Law (Venice Commission) issued an opinion on Act CCVI of 2011.  Although the Commission raised questions about many aspects of the law, its most severe criticism was directed against the procedure by which Parliament determined legal recognition.  According to the Venice Commission:

the recognition or de-recognition of a religious community (organization) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations.  Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act. . . .Motives of the decisions of the Hungarian Parliament are not public and not grounded.  The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision).  This cannot be viewed as complying with the standards of due process of law. (Opinion 664/2012 par. 76-77).

In fact, as Tamás Lukács pointed out in the Hungarian media, since church recognition is a matter of political discretion, members of Parliament are not even required to offer reasons related to the criteria enumerated in the law for refusing recognition to a religious group.

That members of Parliament do not feel constrained by the criteria set forth in Act CCVI of 2011 was made clear in a meeting of the Committee on Human Rights, Minority, Civic and Religious Affairs held on November 27, 2012.  The Committee considered and rejected an application for recognition by a Christian group named Lectorium Rosicrucianum.  The publicly available minutes from this meeting indicate clearly that members of the Committee did not make their evaluations on the basis of the criteria enunciated in Act CCVI of 2011.  Mária Wittner, a member of Fidesz, reasoned against legal recognition on the following grounds:

There was a time when we were considered pagans; yet we weren’t pagans – we believed in one God. Then came the Reformation, the Reformed Church, then the Lutheran, and churches have multiplied, even though there is only one God. Well, even though I don’t believe that this association will be able to attract many members in Hungary, I still believe that sects should not be considered churches. I don’t know for what purpose or whether it is to reach worldwide hegemony, but I see that the tendency today, even in religion, is to divide and conquer! We have Christianity here, we have a Catholic Church, which is more than two thousand years old and has existed in Hungary for a thousand years, and we have a reformed Church as a result of the Reformation, but what I was most struck by is that 187 churches have been registered in this country since 1990. Gentlemen! There is only one God! One God! (EMB/147-1/2012, page 11).

The inappropriate character of this reasoning will be apparent to everyone.  The point to emphasize, however, is that Act CCVI of 2011 allowed reasoning of this sort to be the basis for determining whether or not a religious group received legal recognition.

The troubling features of Act CCVI of 2011 led Hungary’s ombudsman to file a petition with the Constitutional Court, and numerous deregistered religious groups also filed petitions.  On February 26, 2013, in a substantial and carefully reasoned decision, Hungary’s Constitutional Court struck down as unconstitutional numerous provisions within Act CCVI of 2011.  Article 7 of Hungary’s new constitution guarantees religious freedom.  Article 15 guarantees equality under the law.  Articles 24 and 29 guarantee each citizen the rights of due process and legal redress.  Thus a religious association of Hungarian citizens has an equal right to apply for recognition as a church by means of a procedure that follows due process and ensures the right of legal redress.  The provisions for recognition set forth in Act CCVI of 2011 failed to do this.  Thus the Court struck down those parts of the Act in which Parliament had determined legal recognition of religious groups.

Fidesz’s response to this, as to other decisions of the high court, has been to amend the constitution.  The controversial fourth amendment, passed on March 11, grants Parliament the authority to determine which religious groups are recognized as churches by changing the text of article 7 on religious freedom.  The provision of Act CCVI of 2011 most severely criticized by the Venice Commission has now been written into the Hungarian constitution.  Reconciling Parliament’s power to bestow legal recognition with the rights of due process and legal redress will be a challenge.  Furthermore, article 7 allows Parliament to decide not only the content of the law concerning religious freedom, but also its application in individual cases.  Such a provision would appear in tension with the separation of powers principle enshrined in article C of Hungary’s constitution.

Impact of Hungary’s religion law on unrecognized religious groups

In addition to undermining principles of constitutionalism, Act CCVI of 2011 has had a significant impact on religious groups not legally recognized by Parliament.  As a consequence of the Act numerous religious communities that had been legally recognized as churches prior to 2011 were stripped of their status.  Indeed, Act CCVI of 2011 completely replaced the legal regime that had governed religious freedom in Hungary since 1990.  Thus far not much attention has been directed toward assessing the impact of deregistration on those groups.  The Venice Commission opinion focused on the registration procedure itself, as did the ruling of the Constitution Court.  But in the meantime deregistered religious communities have been forced to adapt to a new legal context in which they are denied what most Americans would consider basic aspects of the right of religious freedom.

Over the past six months I have been working to assess the impact of Act CCVI of 2011 on Hungary’s unrecognized religious communities.  Using public records and resources available on the internet, I have attempted to compile a comprehensive list of Hungary’s unrecognized religious communities.  I also visited Hungary in summer 2012 and interviewed numerous representatives of deregistered churches.  Additionally, I recently completed a survey of deregistered religious communities that seeks to measure objective indicators of religious discrimination.

Estimates concerning the number of deregistered churches vary.  The Hungarian government claims there were well over 300 registered churches in Hungary prior to 2011, but has never explained how it arrived at this estimate.  I have been able to identify 122 deregistered churches thus far, some of which ceased operating on their own prior to 2011.  I believe this list to be accurate and close to complete.  I estimate that somewhere between 160 and 180 independent churches/religious communities were operating in Hungary prior to passage of Act CCVI of 2011, and that the Act deprived approximately 130 religious communities of legal recognition.  I have been able to establish contact with 106 unrecognized religious groups, whom I invited to participate in my discrimination survey.  Forty-nine groups responded to my inquiry and 43 agreed to participate, which translates to a participation rate of 40%.   I closed the survey only two weeks ago and have not yet run a complete statistical analysis of the data.  I wish to emphasize, therefore, that the statistical information provided below is provisional.

Initial analysis suggests that while almost all religious groups report some level of discrimination, the amount of discrimination varies significantly, with a little over half of the participants reporting what I would call significant discrimination.  After Act CCVI was passed, deregistered churches were told they must apply for recognition as civil associations.  Failure to apply for status as a civil association, or failure to meet the deadline for applying as such, would result in total liquidation of the community’s assets, that is, appropriation of the community’s property by the state.  The overwhelming majority of religious groups surveyed indicate that they have been recognized as civil associations.  However, I was able to identify two instances were courts ordered the liquidation of a community and a few additional instances were a final decision has yet to be rendered.  Even so, a surprising number of those surveyed, almost 15%, report that some of their property was liquidated after deregistration.  Others report, again about 15%, that leases they held on rental property were terminated.  Among those surveyed, 16% indicated they were forced to shut down schools as a consequence of being deregistered; 30% indicated they were forced to close down charitable organizations; 40% indicated they were forced to abandon additional ministries (other than education and charity work).

Unlike legally recognized churches, religious groups classified as civil associations do not enjoy complete internal autonomy.  Civil associations must have a specific administrative structure.  For example, they must have a presidency and all members must have the right to vote on decisions made by the association.  In many cases, although not all, these administrative requirements violate the religious conscience of believers.  Among deregistered religious groups participating in my survey, 17% refused to apply for civil association status, and many of them reported in written comments that their refusal to apply was based on reasons of conscience.  These groups now live under the fear of court ordered liquidation.  Among deregistered religious groups that did apply for recognition as a civil association, 36% reported that they had been required to change their organizational structure.  Additionally, a high number of respondents, 30%, reported that their clergy had been prevented from visiting patients in the hospital; 27% reported that they were prevented from visiting persons in prison.  A small but noticeable number of respondents, a little over 10%, reported that they had been forced to change their religious confession, their official teaching, or worship services in order to be recognized as a civil association.  Also, unrecognized religious groups are not permitted to have the word church in their official name.  Among those groups applying for recognition as a civil association, 60% reported that they had been forced to change their name.

Reasons offered for the new law by the Hungarian government

 When Parliament first passed Act CCVI of 2011, the Hungarian government claimed the new law was necessary in order to correct abuses made possible by the previous religion law.  In the Hungarian media, representatives of the government frequently spoke of “business churches,” an imprecise and polemical term.  The claim was that non-religious organizations were registering themselves as churches in order to receive tax exemptions and state subsidies.  However, no impact studies were conducted, so neither the extent of abuse nor the effectiveness of the remedy could be evaluated.  The only evidence of abuse offered by the government was the claim that more than 300 churches were operating in Hungary.  This number, the government believed, was clearly excessive and indirect evidence of the existence of “business churches.”  As already indicated, I believe the 300+ estimate is too high.  I would also add that in the course of my research I have been able to identify only two cases where I suspect organizations registered as churches under pretext.  The most notable of these involves the mayor of Érpatak, a man named Mihály Orosz who is a member of the right-wing political party Jobbik.  Mr. Orosz was affiliated with, or the founder of, at least four different groups registered as churches under the old law.

Even if there were significant abuse under the old law, having Parliament bestow legal recognition on religious groups hardly seems an effective remedy.  In fact, the possibility of remedy existed under the old legal regime, something pointed out by the Constitutional Court in its February 2013 ruling.  According to the Court, under the old law a state prosecutor had a right to request information and investigate a church suspected of illegal activity.  An organization engaged in running a business but seeking registration as a church could thus be prevented from registering, or if already registered, prosecuted for violations of the law.  According to the Constitutional Court, under the old law state prosecutors initiated legal proceedings against registered churches on a number of occasions.

Conclusion

When attempting to interpret the behavior of a political regime whose decision-making process is not transparent, political scientists often attempt to infer intentions from effects.  That is, instead of taking the public pronouncements of the regime at face value, political scientists examine the effects of the regime’s actions to determine its true intentions.  Viktor Orbán’s government is not transparent.  Cardinal laws addressing basic human rights and constitutional amendments addressing the rule of law are introduced in Parliament and approved in a matter of hours.  Even after fundamental laws have been passed, they are amended immediately whenever the Constitutional Court renders a decision not to the government’s liking.  I therefore submit that the best way to understand Viktor Orbán is to look not at what he says, but at what he does.

If we look at what the Orbán government has done in respect to religious freedom, infering intentions from effects, it becomes difficult to believe that the intention behind Act CCVI of 2011 was to eliminate legal abuses occuring under the old law.  First, the Orbán government never made an attempt to assess the extent and nature of the alleged abuse.  Second, legal remedy against abuse was already available.  Third, the negative impacts on religious freedom caused by Act CCVI of 2011 were far greater than any legal abuses the Act putatively sought to correct.  If the aim of the government had been to eliminate abuse, much simpler and less destructive solutions were available.  Addressing the problem of “business churches” certainly did not require modifying the constitution in a way that allows Parliament to bestow legal recognition.

A more plausible explanation for Act CCVI of 2011 is that the Orbán government is seeking to hinder the activities of religious groups it dislikes, perhaps because it views those groups as “sects,” perhaps because the leaders of some of those groups have criticized the government, or perhaps because the membership of many of those groups is Roma.  Whatever the Orbán government says, its actions indicate that it holds the right of religious freedom in low regard.

The Hungarian Socialist Party’s critique of the latest amendments to Hungary’s new constitution

On February 8, Antal Rogán and Péter Harrach, leaders of the Fidesz and KDNP factions respectively, submitted the Fourth Amendment to the Basic Law of Hungary (proposal # T/9929). The overwhelming majority of representatives from the governing parties signed the document. The proposal was penned in the name of all majority MPs. The Fourth Amendment will be effective one month after it was passed.

Hungary’s Basic Law was supposed to be carved in stone

This amendment is characterized by, in addition to a few minor corrections in wording intended to improve coherence, the current administration’s desire to further destroy the constitutional limits for the exercise of power.

Through this proposal, in addition to further curbing the powers of the Constitutional Court, the Fidesz-KDNP coalition is now including all elements in the country’s constitution which were, in part, declared unconstitutional by the Constitutional Court or were featured in the Temporary Provisions of the Basic Law of Hungary.

This document summarizes the most important elements of the Fourth Amendment. However, first we must briefly familiarize ourselves with the Constitutional Court’s 45/2012 (XII/ 29) decision regarding the unconstitutionality of certain sections of the Provisions of the Basic Law of Hungary.

At the initiative of the Commissioner of Fundamental Rights, the Constitutional Court opined that a significant portion of the Temporary Provisions was unconstitutional. The Court stated that the Temporary Provisions cannot be accepted as a part or an amendment of the Basic Law with regards to the document’s themes and content. Furthermore, it was decided that the Provisions, considering the time span which they cover, undermined the Basic Law’s uniformity and structure.

The Court struck down the following provisions:

The preamble which condemns MSZP, the Hungarian Socialist Party

Article 1 –  On decreasing the pensions of “guilty persons”

Article 2 – On the inability of communist crimes to expire

Article 3 – On the establishment of the Committee of National Memory and the publication of communist documents

Article 4 – On the duty of communist leaders and public actors to tolerate all opinions formed about their persons

Article 11, paragraphs (3) and (4) – On the ability of the president of the National Judicial Office (Orszagos Birosagi Hivatal – OBH) and the Chief Prosecutor to move cases to other courts as they see fit

Article 12 – On the deadlines for judges’ mandatory retirement

Article 13 – On the deadlines for prosecutors’ mandatory retirement

Article 18 – On a member of the Budgetary Council being the President-appointed chair of that body

Article 21 – On the National Assembly’s ability to regulate and determine recognized churches in a cardinal law and determine recognized nationalities

Article 22 – On the definition of a constitutional complaint

Article 23 paragraphs (1) and (3)-(5) – On setting the date for the election of local government representatives for October 2014 and laying down the preliminary electoral rules

Article 27 – Further restricts the Constitutional Court’s competencies by extending limitations to periods when the national debt threshold is not surpassed.

Article 28 paragraph (3) – The office of the government can turn to the courts if a local government fails to make decisions in areas defined by law. The office of the government is even allowed to make up for the absent resolution.

Article 29 – A special approval is necessary to fulfill the state’s payment obligations arising out of unconstitutional or unlawful legislation.

Article 31 – On making the Temporary Provisions part of the Basic Law

Article 32 – On making April 25 Basic Law Day

While it’s important to note that the Constitutional Court nullified elements of the Temporary Provisions due to form-related constitutional issues, the body quoted several previous decisions, emphasizing that “stepping over the boundaries of legislation results in unconstitutionality” and that “formal unconstitutionalities are, coincidentally, violations of the standards for the rule of law.”

The Constitutional Court indicated that it could alter the interpretation applied in previous exercise of its competencies, namely that it did not subject the contents of the Basic Law to review (because that would result in interfering with the jurisdiction of a constitutionalizing power). However, “procedural, formal, and public law requirements are not the only factors of constitutional legality – there are also content-related criteria. The standards for a democratic state ruled by law include not only values, principles, and rights discussed in international agreements and accepted by the democratic community, but also so-called peremptory norms. In certain cases the Constitutional Court is allowed to examine the uninhibited application of the constitutional guarantees and values of the rule of law.”

It is completely obvious that the formal necessity for the inclusion of the Temporary Provisions in the Fourth Amendment of the Basic Law and the Constitutional Court’s decisions which defied the government’s objectives overrode the symbolic steps accompanying the passage of the Basic Law.

We will now introduce the alterations without political evaluations.

1. The amendment states that the bases for familial relations are marriage and the parent-child relationship.

When reviewing the currently applicable Article L of the Basic Law, the Constitutional Court decided, after examining decision 43/2012. (XII. 20) on articles 7 and 8 of Act CCXI of 2011 concerning the protection of families, that “by considering marriage as a value […] the legislator –  while accepting the right of the individual to pursue happiness within a relationship of their personal preference, keeping in mind social trends and needs and the transformation of a traditional family configuration–does not exclude other chosen forms of relationships, which are similar to marriage, from the protection of the law. The duty to protect institutions cannot hinder the extension of rights in an open and democratic society, otherwise this would not be compatible with the spirit of the Basic Law.” (ABH 2010, 194, 208)

According to the Court, the constitutional protection of families extends to both marriage and socially (emotionally) based relationships. Previously the Constitutional Court decided that Act CCXI of 2011 defines “family” too narrowly. The currently applicable Basic Law contains no indication that partnerships with common goals, mutual care, and long-term economic and emotional commitment do not enjoy the protection of the law. If the legislator wants to create laws which regulate the rights and duties of family, he or she cannot do so at the expense of those who wish to form families based on alternative economic and emotional relationships and cannot diminish the legal status of such relationships. Furthermore, the state’s duty to protect the institutions of family and marriage cannot lead to direct or indirect discrimination of the children due to their parents’ relationship. As such, the Constitutional Court decided that compared to the Basic Law, Act CCXI’s wording was too restrictive and struck down its Article 7. In the justification, the judges cite the practice of the European Court of Human Rights in Strasbourg. In 2010, that body declared that the existence of family is primarily factual: if people live together, they can be considered family despite their legal status and/or gender.

The Constitutional Court also decided that from now on the fundamental laws of inheritance will be guided by the Civil Code. Registered couples are to enjoy the same inheritance privileges as those who are officially married. Act CCXI, on the other hand, conveniently ignores such a specification. The laws governing inheritance have to be precise and clear. Because of this, the Constitutional Court decided that the contradictions contained in the review provisions are too significant for dissolution through executive legal interpretations, and as such, they were sure to violate the notion of legal certainty. The court subsequently threw out Article 8 due to incoherence between the Civil Code and the Basic Law.

The new Civil Code awaits a final National Assembly vote as proposal T/7971. On December 17, 2012, the Fidesz-KDNP coalition accepted a series of legislative amendments which make substantial differences between marriage and cohabitative romantic relationships in terms of family law. Romantic partnerships will be part of the “BOOK OF OBLIGATIONS” (“Kötelmi könyv”) instead of the “BOOK OF FAMILY LAW” (Családjogi könyv). With this, a cohabitative romantic partnership will simply be a contractual relationship. The new Civil Code does not deal with registered cohabitative partnership at all. By the force of law, such a relationship will only carry any sort of legal meaning if the relationship has been in effect for one year and the couple has at least one child together.

The Fourth Amendment to the Basic Law constitutionalizes families as ties based on marriage and the parent-child relationship. Partners cannot form a family even if they have a common child. Their familial relations can only be recognized separately with their own children.

2. The amendment adds Article U, which cements communist crimes not simply in the Preamble but in the very body of the Basic Law.

Basically the complete contents of the Temporary Provisions, which were struck down by the Constitutional Court, have been lifted into the fundamental principles of the Basic Law with minor structural changes. These include, in addition to the list of crimes, the extension of punitive measures, and the stigmatization of criminals, the establishment of the Committee of National Memory (Nemzeti Emlékezet Bizottsága). This body is supposed to uncover the past and publish related documents.

According to the text, the Hungarian Socialist Workers’ Party (MSZMP), its legal predecessors, and other associated political organizations are criminal in nature. Naturally, the Hungarian Socialist Party (MSZP) is also mentioned: “as an heirs to unlawfully accumulated wealth, organizations which emerged as legal successors to the MSZMP during the democratic transition also share the responsibility of their predecessors.”

Paragraph (3) of Article T of the Basic Law states that a legislation cannot contradict the Basic Law. The Basic Law’s Preamble records that the Basic Law is the foundation of legal order in Hungary. Paragraph (1) of Article R reaffirms this with a normative rule and states that the Basic Law is the basis for the country’s legal system. According to paragraph (2) of Article R, the Basic Law and legislations are obligatory for all.

3. This means that any legislation in the Hungarian legal system can order the prosecution of the leading Leftist party due to its shared responsibility for communist crimes. The amendment creates a foundation for the provisions of the cardinal law concerning churches in a manner which utilizes parts of the discarded text of the Temporary Provisions.

The National Assembly continues to have the exclusive ability to recognize churches who will enjoy the ability to cooperate with the state. Recognition is dependent on conditions, but, according to the proposal, membership and historic traditions are not among these.

Constitutional Court decision 161/2011. (XII. 20.) destroyed the first church law due to its incompatibility with public law. The governing coalition then proceeded to record the very same concepts in the §21 of the Temporary Provisions. This was also voided by the Court. Consequently, the constitutional foundations of the effective church law became questionable. The Venice Commission found fault with the notion that the only body which can recognize organizations as churches is the National Assembly. With this configuration, there is no chance for legal remedy in case of an unfavorable parliamentary decision. The mechanisms used for determining recognition were also denounced.

To prevent further critiques, the governing parties recorded the cardinal structure for church laws in the Basic Law itself.

The Constitutional Court has already dealt with the complaints of the unfavored religious communities twice. A decision in the matter can be expected on February 11. Even if the Court will opine that the fundamental provisions of the church law are contrary to the Basic Law, the amendment would render this situation hopeless for smaller religious groups.

4. Media campaigns in public service media are included in the amendment using the wording featured in an unconstitutional (passed but not enacted) electoral legislation, while a cardinal law may limit electoral campaign in commercial media.

The amendment is an obvious response to the Constitutional Court’s 1/2013. (I. 7.) decision. This document declared the unconstitutionality of the electoral law accepted in the National Assembly on November 26, 2012. The Court found several faults with the legislation. Its resolution outlaws the controversial notion of preliminary voter registration. The justices called attention to the fact that the state exists to protect institutions, and as such it cannot plant unconstitutional hurdles in front of citizens to restrict their right to vote. Registries currently available to the state were deemed sufficient for the unhindered execution of the electoral process by both the Constitutional Court and the electoral law.

The Constitutional Court decided to abolish a ban on publishing or broadcasting political advertisements from electoral campaigns in media. The Court considered this ban a serious breach of the right to a political opinion during the course of an electoral campaign and considered it a grossly disproportionate measure. The 48 hour pre-election moratorium on political ads and a ban on political ads in movie theaters was also disfavored by the justices.

In response, the amendment implemented these changes on the constitutional level.

5. The amendment limits the right to free speech, as it does not allow free speech to violate the dignity of others.

It creates a basis for the new anti-hate speech rule in the Civil Code – which would have been unconstitutional. “The right to free speech cannot be utilized to demean the Hungarian nation and national, ethnic, racial, or religious groups. Members of such communities are entitled, as prescribed by law, to take their case to courts due to undignifying speech against the community.”

The Hungarian legislative owed a law on hate speech to the people. The left was unable to gain sufficient parliamentary support for its initiatives in the area.

At the same time, this document limits freedom of speech so severely that it is able to completely negate that right. In a state ruled by law, the only acceptable form of restriction targets communications which, in terms of consequences, pose a clear and direct threat to a social group. On the other hand, similarly to German dogmatics, the offended group has to be defined by a prominent feature of human personality and its size has to be sufficiently small. For this reason, war propaganda, hate-mongering against ethnic, racial, or religious groups, and declarations relating to the inferiority of any one group which contain discrimination, hostility, calls to or support for violence must be banned.

6. The financial independence of institutions of higher educations will be abolished. The amendment creates the foundations for obligating graduates to stay in the country.

According to regulations, the economic management of institutions of higher education are determined by the government through law. Management is then supervised by the executive. The law can mandate students to work domestically in certain fields for a predetermined amount of time.

In decision 32/2012. (VII. 4.), the Constitutional Court discontinued the practice of higher education contracts. The Court stated that the unconstitutionality lied in the fact that the executive was unable to regulate mandatory domestic employment for students at universities.

The day after the decision was made, the governing parties amended the law on higher education. Because the amendments were followed by wide-scale protests and civil disobedience among high school and university students, the government reacted by including the restriction in the Basic Law.

The amendment completely abolished the economic autonomy of institutions of higher learning. The state’s attitude towards higher learning focuses not on encouragement but punishment.

7. Local governments “strive” to provide the homeless with shelter. At the same time, the amendment allows for the lawful removal of the homeless from public spaces via policing tools. Local governments will be able to declare living in public spaces unlawful.

The events leading up to decision 38/2012. (XI. 14.) concerning the sanctioning of the homeless are the following.

Máté Kocsis (Fidesz), chair of the National Assembly’s Committee on Police and National Security and the mayor of Budapest’s District VIII initiated measures to combat homelessness with misdemeanor statues along with several other Fidesz representatives. According to their legislative proposal (also supported by Jobbik members), the “ban on living in public areas as a lifestyle” took effect on December 1, 2011. Its text states that “146/A § (1) Those who repeatedly violate the ban on living in public areas or who store their belongings in a manner suitable for such a lifestyle can be incarcerated or fined up to HUF 150,000. (2) The misdemeanor identified in paragraph (1) can only be considered as repeatedly occurring if the accused person has a conviction in a similar case in the last 6 month period. (3) The misdemeanor recorded in paragraph (1) belongs to the jurisdiction of the courts. (4) The sanctions determined in paragraph (1) cannot be applied if the city’s local governance does not implement care for the homeless.”

This was also recorded in a new misdemeanor legislation which took effect on April 15, 2012. The Constitutional Court’s decision destroyed this provision.

The Constitutional Court’s notable findings in the case:

The cause and the intended subject of legal protection by the legislator cannot be precisely identified in the debated notion of this misdemeanor.

• With this action, the legislator deemed living on the street – being homeless – illegal. For the homeless, their situation is a grave crisis which occurred due to several factors which are very rarely intentional. The homeless have lost their homes and have no opportunity to solve their habitation problems. As such, due to a lack of a real alternative, they must live in public areas.
•  The social law does not interpret living on the street as unlawful behavior. It records aiding those living in public areas as an issue which must be handled by local governments.
• The cause for the matter to be classified as a misdemeanor cannot be identified. On its own, the fact that someone lives in a public space does not violate the rights of others, cause damages, does not make using the public space dangerous, or does not endanger public order.
• According to the stance of the Constitutional Court, neither the removal of the homeless from public areas, nor the encouragement to make use of social services can be considered enough of a cause to declare homelessness as a misdemeanor.

The issue’s status as a misdemeanor does not clarify norms.

• With regards to the fact that the provision aims to punish not a behavior ( an act or a failure to act) but an objectively existing life situation in connection which guilt is not interpretable, it basically creates an objective responsibility which is separate from the subject.
• The inner area of public spaces is clearly defined, and it allows for the authorities’ arbitrary use of of legal interpretation.
• When a homeless person’s responsibility is waived is indeterminable, as this hinges on whether the local governance took the necessary steps.

8. The electoral rules and rights and the governments of nationalities are regulated by the Fourth Amendment in a manner based on the voided passages of the Temporary Provisions.

9. The amendment allows for the legal basis of the policing and disciplinary competencies of the Speaker of Parliament. It provides room for the Guard of the National Assembly in the Basic Law.

The law on the National Assembly provides the Speaker with considerable disciplinary and policing powers. When debating this issue and after the law actually took effect, it had to be pointed out that these measures significantly limit freedom of speech for the representatives of the National Assembly. At the same time, this is a highly ineffective tool and is not utilized against hate speech in Parliament.

The Speaker can exercise these new competencies through a parliamentary guard. This initiative is not directed at securing the National Assembly. It seems as if this is more a tool to silence political opposition. MSZP was forced to act against Speaker László Kövér’s biased behavior several times.

The constitutionally mandated creation of the Guard means that an organization with policing capabilities was created which owes no responsibility to the National Assembly.

10. The amendment alters the powers of the President of the Republic. The cause of this is the severe limitation of the Constitutional Court’s powers.

The President is only allowed to refer a Basic Law amendment to the Constitutional Court due to violations of procedural rules. The Basic Law’s contents cannot be revised by the Court. This provision is related to the restrictive changes made to the Constitutional Court’s powers.

11. Changes in the role of the Constitutional Court

The Fidesz-KDNP coalition’s alteration of the body’s function is not accidental. The Constitutional Court is the only checks and balances mechanism which can inhibit its legislative ambitions. When the Court struck down on several of the Temporary Provisions, it became obvious that in certain cases it can alter the contents of Basic Law amendments. As such, it was no longer only a body which could intervene when formal or procedural violations occurred. A scenario in which it could exercise these powers could occur if the Basic Law would be amended in a manner which contradicts its own contents. In addition to the above mentioned arguments, Istvan Stumpf’s following statement also refers to this concept.

Stumpf: “As long as a norm altering the Basic Law – through interpretation – can become part of the Basic Law, the Constitutional Court cannot subject the contents its order for inclusion to a constitutional review. If such a tension cannot be resolved within the system provided by the Basic Law, the Constitutional Court must declare its unconstitutionality.

My perspective is that this could occur especially when the inclusion of a provision which was previously deemed unconstitutional by the Constitutional Court would cause unresolvable tension within the Basic Law’s system. In these cases, the Constitutional Court already determined that the given provisions signify  violation of the Basic Law. Inclusion of these in the Basic Law could only satisfy the formal criteria for inclusion, but they would be unable to become integrated, coherent elements of the Basic Law. The unresolvable tension would not mandate a new examination into such a matter, because the Constitutional Court already subjected that to a constitutional review. In this regard the norm to be included was already declared to be unconstitutional by the Constitutional Court and thus unchangeably contradicts the Basic Law.”

The implicit substantive requirements for the order for inclusion were not yet enforced by the Constitutional Court. The resolution, though it refers to the above mentioned items, does not subject those to constitutional review, because determining partial public law invalidity made this unnecessary. In this vein, our parallel analysis continues on the path of the Constitutional Court, but it also points beyond the Court’s findings, highlighting the possible courses of future events.

The following can be considered as troublesome limitations:

• It creates a deadline for the Constitutional Court for judicial reviews initiated by judges.
• The Court cannot examine or destroy legislation which is not in close connection with the provision mentioned in the referral (one of the failures of the electoral law was that the Constitutional Court extended one of its powers according to prior practice)
• The Constitutional Court can only review the Basic Law and its amendments in terms of formative and enactment-related procedural respects defined in the Basic Law. Preliminary review can be requested by the President of the Republic, while post-enactment review can be requested, in addition to current initiators, by the Chief Justice of the Kuria and the Chief Prosecutor.
• As prescribed by a cardinal law, the Constitutional Court can hold hearings for the person responsible for drafting the legislation and the legislation’s initiator or their agent. It can also attain their opinions if the matter affects a large number of people. This part of the procedure is public.

The amendment takes the destroyed limitations the Temporary Provisions placed on the Constitutional Court and places them into the Basic Law. According to this, as long as the national debt exceeds half of the gross domestic product, the Constitutional Court can only review laws (normally within its jurisdiction) on matters of the central budget, the state spending, central forms of taxation, benefits and aids, duties, and the central conditions for local taxation in terms of their Basic Law compatibility in connection with the right to life and human dignity, the freedom of religion, and rights  in connection with Hungarian citizenship. It can only void laws in these cases as well. According to the rule introduced by the amendment, this limitation on the Constitutional Court will remain in place for laws passed during this period even after the conditions existing under the current level of national debt are no longer present. In short, laws passed by the Fidesz-KDNP coalition can never be reviewed.

Constitutional Court decisions made before the acceptance of the Basic Law cannot be considered by the Court during the interpretation of the Basic Law.

This does not simply mean that the Court cannot rely on its previous findings. This can contain a notion that the body can distance itself from its previous decisions, e.g. the constitutional requirements for the rule of law. As an example, we can mention that the Court defined legal certainty as a necessary element of the rule of law. An imminent part of this is that prior to a law’s taking effect, a right cannot be revoked, a duty cannot be retroactively assigned, or it cannot make a previously mandated duty more severe. In this new interpretation, it is possible – in accordance with the governing parties’ previous practices – that retroactive legislation could be utilized in certain instances.

12.  The OBH chair’s election, which was regulated by a law previously, will now be included in the Basic Law.

13. The amendment records the OBH chair’s an the Chief Prosecutor’s right to assign cases to courts with other jurisdictions.

This is an element which plainly violates the right to a lawful judge. It was heavily criticized by the Venice Commission. The Constitutional Court previously eliminated these passages from the Temporary Provisions. The National Assembly altered the text of this document by stating that a cardinal law will determine the types of cases for which this right will apply; all in order to ensure the right to an expedient trial and to ease the case load for courts.

14. As long as the national debt is over half of the gross domestic product, if the Constitutional Court, the Court of the European Union, or other judicial or executive organization subjects the state to a payment obligation for which the funds in the central budget are insufficient, a contribution MUST be determined in a manner exclusively aimed at financing the common necessities of such an expense in name and content.

It is a distinct possibility in several instances, that Hungary will incur penalties or reimbursement obligations due to the decisions of the European Court. As for the Constitutional Court’s recent decisions in this field, we can highlight the unconstitutionality of the forced retirement of judges. According to the legislative proposal submitted by the government (the general debate of which is still ongoing in the Parliament), the retired judges are entitled to 12 months compensation if they do not request the restoration of their legal statuses. There are definitely no sums allocated for this in the budget. The source of funding for this then becomes questionable. It is entirely possible that this will be the first instance when they burden the population with the financial costs of enacting unconstitutional and illegal legislations.

The final provisions of the fourth Amendment adopt expired or already executed provisions without criticism. With its unacceptable legislative solutions, the Fidesz-KDNP coalition is already damaging the symbolic significance it established and nurtured by passing the Basic Law.