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…

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 Specifically, the court repealed parts of the law as unconstitutional, arguing that the registration of churches by the National Assembly of Hungary does not provide a fair procedure for the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.

Jurist.org