The latest regulation of religious freedom and the establishment of churches in Hungary

1. Introduction

The Hungarian constitution making process grounding and improving the change in the political system has been aided since the 1980s by several studies containing modern legal principles and human and fundamental rights, as well as presenting the constitutional institutions of developed civil countries. The preamble of the modified constitution made during the national round table discussions preparing the change in the political system in 1989 declared that the Parliament established the text of the Hungarian constitution in order to facilitate peaceful political transmission into a state based on the rule of law realising pluralism, parliamentary democracy and social market economy – till the enactment of the new constitution. Even though intensive political and professional negotiations were conducted between 1994 and 1998 for the preparations of a modern rule of law constitution, these remained unsuccessful. At the same time, however, significant changes happened in our globalised and multicultural world^[1], which made the adjustment of national constitution to international standards timely.

As result of the parliamentary elections of 2010, for the second time during the two decades which have passed since the change in the political system it happened that the coalition received more than two-third of the mandates. Due to this fact act XX of 1949 (Constitution) has been replaced by the Fundamental Law; act IV of 1990 on the freedom of conscience and religion and churches^[2] by act C of 2011 on the right to the freedom of conscience and religion, and the status of churches, religions and religious communities^[3], modified by act CCVI of 2011.

In this case the subject of the regulation carries more significant responsibility of the legislator than usually, because regarding the freedom of thought, conscience and religion, and the relationship of the state and the church we face a segment of society which fundamentally determines the history of the country and also the conscience of society, and the deepest layers of national and European culture, even though if in the secularised world sometimes seems to be forgotten.

On 18 April 2011 the Hungarian Parliament enacted the new constitution of the country, the Fundamental Law, which – among others – regulates the relationship of the state and the church. Expecting the ideological neutrality of the state many may have problems already with the first sentence of the act: “God bless the Hungarians”. If we interpret the cited line as the anthem of Hungary, as the historically developed symbol of the state^[4], and as an excerpt of one of the acknowledged works of Hungarian literature, the violation of the ideological neutrality of the state shall hardly be questioned, as we meet similar phrases in cases of other countries, as well^[5]. We may think of the anthem of the United Kingdom, which – similarly to ours – starts with a reference to “God”^[6], or the “In God We Trust” writing on the bank notes of the United States.

2. Freedom of thought, conscience and religion

According to the National Avowal, which serves as a preamble Hungarians acknowledge the nation preserving role of Christianity and respect (value) the different religious traditions of the country. The mentioned section receives special meaning if we compare it with Article R section three of the Foundations, according to which “the provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal and the achievements of our historical constitution”. Even though no one questions the nation preserving force and value transmitting role of Christianity realised throughout history, the cited section assumes a sort of ideological commitment of the state, which contradicts those set forth in Decision 4/1993 (II. 12.) AB of the Constitutional Court stressing the requirement of religious and ideological neutrality. According to this the state may not identify itself with the beliefs of any church.

The right to the freedom of thought, conscience and religion is declared in article VII of the Fundamental Law^[7], which is practically identical to the text of the previous constitution, save some exceptions. In the first sentence the difference is that the “Republic of Hungary” was taken out, while into the second sentence the freedom of “changing” religion or beliefs was included, and instead of “belief of conscience” the legislator only uses “belief”. In addition to these it is a minor modification that the expression “in private sphere” was replaced with “in private life”. Compared to the previous version it is a novelty that the word “divided” defining the relationship of the state and the church was replaced with “separated”, in relation with this autonomy of churches was further strengthened, as well as the cooperation towards the common goals of the state and the churches.

It may be clearly seen from the normative content of the regulation that the freedom of thought, conscience and religion are interrelated, materially bound, but at the same time not identical rights which form a condition of exercising the freedom of expression. Thought, conscientious thinking are core and inseparable parts of human nature, and as such are determinative for our actions and thoughts. Considering its nature, the freedom of thought is ad hoc, spontaneous reflection, problem raising, search for solutions, which arrives naturally through discretion, consideration to a belief undertaking certain thoughts.

At the time of examining the system of norms it may be also asked what effect the law can make on the ability of producing thoughts. Among religious rules some prohibitions may be observed sometimes which are directed to thoughts of certain subject or content, but the natural law and positivist approaches do not know such prohibitions. The law, however, may have a role in answering the given question, especially if we take it into account that the way of thinking and beliefs of a person are results of the socialisation of the person, which is much affected by the value system of the given society. Well, the law, with its specific system of tools shall serve the freedom of this, because no one shall be forced to accept a given opinion. However, for the sake of completeness it shall be stated that the law can make any affect on the thought, belief and their freedom only if they are expressed in any way.^[8]

In this relation, therefore, the freedom of conscience is realised in the free, conscious and responsible formulation, undertaking and expression of a belief giving inexhaustible material answers on the basic questions of existence regarding the World and the person in it. According to our opinion the freedom of conscience is a much broader concept than the freedom of religion, because it incorporates several others ways of interpretation in addition to religion.

Basically, it is an absolute fundamental right which shall not be limited in any way. Considering its relation to religion it may be religious or atheist. Based on this the freedom of religion may be defined as a part or form of the freedom of belief based on religious interpretation, which has its direct roots in human dignity and as such is not limitable, save some special cases. This latter category refers to cases prescribed by law, public order, public security, public health, public morals and the competing fundamental human rights and freedoms.

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^[1] Among these maybe the most radical change is that “in the time of global governance the legal system of a continental constitutional rule of law state, which is also member of the EU, is formed among triple influence or determination – international law, supranational law and national constitutional law.” Ádám, Antal: Észrevételek a magyar alkotmányozáshoz, [Remarks to Hungarian constitution-making.] in Jura 1(2011) p 194

^[2] The idea of changing the law emerged in 2000 already, according to the reasoning this would have been necessary for filtering those communities which do not perform religious activities, and to establish differentiated treatment between churches and religious communities.

^[3] Due to public law unconstitutionality the Constitutional Court annulled it in its Decision 164/2011. (XII. 20.) AB. One day earlier, on 19 December 2011 the Parliament abolished the not yet valid act on churches with article 241 of act CLXXIX of 2011 on the rights of national minorities.

^[4] Obviously, for religious people the cited work has more meaning.

^[5] The Irish Constitution starts with reference to the Holy Trinity, then continues with some reference to Jesus. The preamble of the German constitution starts by stating: “With the knowledge of responsibility towards God and the people (…) the German people…”. The Polish constitution refers to God as the source of truth, justice, good and beauty. The Greek constitution, just like the Irish one starts with the “in the name of the Holy, One and Indivisible Holy Trinity” invocation.

^[6] “God save the Queen”

^[7] Fundamental Law article VII para (1):

Every person shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to choose or change religion or any other persuasion, and the freedom for every person to proclaim, refrain from proclaiming, profess or teach his or her religion or any other persuasion by performing religious acts, ceremonies or in any other way, whether individually or jointly with others, in the public domain or in his or her private life.

(2) The State and Churches shall be separate. Churches shall be autonomous. The State shall cooperate with the Churches for community goals.

^[8] see: Decision 4/1993. (II.12.) AB of the Constitutional Court