Hungary's New Constitution and Its New Law on Freedom of Religion and Churches: The Return of the Sovereign
Uitz, Renáta, Brigham Young University Law Review
On January 1, 2012, Hungarians witnessed the passage of their new Constitution, called the Fundamental Law of Hungary.1 It added important transitional provisions on church status2 and a new cardinal law3 on freedom of conscience and religion, the legal status of churches, religious congregations, and religious communities.4 The new Constitution introduced changes in tone as well as in substance in the legal regime applicable to freedom of religion and church-state relations. The lasting impact of this cannot be fully appreciated yet; nonetheless, the first measures indicate clear departures from European and international human rights standards.
Compared to these elated phrases, the provisions on freedom of religion sound sobering. The new Constitution in its chapter entitled "Freedom and Responsibility" guarantees the right to freedom of thought, conscience and religion as an individual right (Article VII(l)),5 prohibits discrimination on the basis of religion (Article XV(2)), and also provides for die continued separation of church and state (Article VTI(2)). In addition, the new Constitution makes the regulation of church-state relations subject to a statute passed with a qualified majority (a so-called 'cardinal law') (Article VII(3)).
The new Constitution was first tested in the summer of 2011, when the first cardinal law was passed to entrench its provisions on freedom of religion and church-state relations.6 This new cardinal law was meant to replace the 1990 law on churches7 under which 100 persons could request the registration of a church from a court of law, showing a charter of operations with a self-governing organizational structure, and a declaration that the founders intended to pursue a religious activity (Article 8(1) and Article 9). Under die new law, all of die nearly 300 previously registered churches (with the exception of fourteen listed in the Appendix) would have had to seek re-registration under more demanding conditions, which most of them would not meet. The original bill was introduced in the summer of 2011; however, it never went into effect, as parliament abruptly withdrew it in December 2011. Soon afterwards, a replacement bill was tabled in parliament. It was first read on December 23, 2011, and it was passed on December 30, 2011. At the same time, parliament also adopted so-called Transitional Provisions to the new Constitution. The Transitional Provisions contain additional rules on church-state relations, expressly authorizing parliament to recognize churches and determine the conditions for church status (Article 21(1)). The new rules were published in the Official Journal on December 31, 2011, and entered into force on January 1, 2012.
The latest cardinal law of December 2011 essentially reinstates largely the same registration procedure and criteria which were introduced in the summer of 2011. Parliament remains in charge of registering churches through an altered popular initiative (népi kezdeményezés) procedure. Parliament may recognize a church upon the request of 1,000 petitioners (Article 14(3)) and twenty years of presence in Hungary or 100 years of operations internationally (Article 14(2)(c)). With the exception of the fourteen recognized churches listed in the cardinal law's appendix, all previously registered churches are transformed into a so-called religious association (Article 43(1)), and have to seek re-registration under the new law if they intend to preserve their church status.
In February 2012, parliament assessed the status of over eighty previously recognized churches. In doing so, parliament followed the ordinary procedure for statutory amendments, and not the church recognition procedure prescribed in the cardinal law. On February 27, 2012, parliament adopted an amendment to the cardinal law on churches, adding another eighteen communities to the list of "recognized churches."8 On the same day, parliament in a resolution refused to recognize the church status of some sixty-six previously registered churches without providing any reasons for the refusal. …