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La loi fondamentale du 1er janvier 2012

On January 1, 2012 a new constitution – the Fundamental Law – came into force in Hungary. As at the transition to democracy in 1989/1990 no new constitution was elaborated, the constitution currently in force is a result of the revision of the communist constitution of 1949.

As a consequence of the landslide victory of the center-to-right coalition that got over 2/3rd of the mandates at the parliamentary elections in 2010, the adoption of a new constitution could become a realistic – in a paradoxical way, finding arguments for not adopting a new constitution would have been more difficult than taking the challenge. The drafting process had two phases : a parliamentary commission has elaborated a concept by December 2010, followed by a draft elaborated by the Government. Whereas in the first part a wide range of experts and institutions were consulted, the final draft was made by a small group of experts. Sensitive changes to the draft came up even in the last days before the final vote.

It has to be acknowledged, that this law is the first structured constitution of Hungary, which was passed by a democratically elected parliament. The wording suggests that the Constitution should be more than just the Fundamental Law : besides the Fundamental Law, a set of organic laws and the constitutional tradition make out the Constitution.

The preamble contains an acknowledgement of the role of Christianity in upholding the nation. This is on the one hand the acknowledgement of a historical fact, on the other hand it is not the religious content of Christianity that is endorsed, but its role in forming the nation – the declaration is descriptive, not prescriptive. The preamble also provides for respect to the various religious traditions of the country. (“We recognize the role of Christianity in preserving nationhood. We value the various religious traditions of our country.”)

The Fundamental Law begins and ends with mentioning God, but this is done in a peculiar way. The very first words of the preamble are a quote of the national anthem (“God bless the Hungarians”), a poem from 1823 that has been the anthem even during the communist time. Certainly the anthem is also sung sometimes at the end of church services, and in this context it bears a religious content. At soccer games or other public events probably many Hungarians singing it (or listening to it) do not have religious feelings. This way the national anthem is the manifestation of patriotism, with a text that is deeply rooted in the national culture. At the very end of the Law there is a solemn declaration reminding to the wording of the preamble of the Basic Law of Germany, referring to the awareness of the members of parliament passing the Fundamental Law to their responsibility before God and man.

The article on religious freedom is not subject to changes (the present subsections (1) and (2) of § 60 remain in force as section (1) of the new Article VII). The formula on the relation between church and state will get a new wording and some new content. Besides a declaration on the separation of church and state a separate sentence provides for the autonomy of churches and contains the declaration that “The State shall cooperate with the Churches for community goals.”

The detailed rules for churches (religious communities) shall be regulated by a cardinal (organic) act. This act should be passed and can be modified only by a 2/3rd majority of the members of parliament present at the voting. The new act that should replace Act IV of the year 1990 should be passed later this year and enter into force with the new Fundamental Law. At the present stage of the drafting procedure, a two-tier system is envisaged with religious associations as base-level entities, and a special recognition to traditional religious communities. Certainly, differentiation can only apply to certain aspects of cooperation between church and state not with regard to religious liberty.

D 20 septembre 2012    ABalázs Schanda

CNRS Unistra Dres Gsrl

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