Hungary Under Siege — Again

Hungary made front page in the newspapers of the world only a few times during its post-World War II history: in 1956 when its anti-Communist uprising was shattered by Soviet tanks, in 1971 when Cardinal Mindszenty was allowed to leave the country by Communist authorities, and in 1989 when Hungary contributed to the collapse of the Soviet system in Central Europe. Most importantly, without the political steps of the Hungarian government in 1989, East Germany, the most obstinate of the Soviet states in Europe, would have resisted political unification with West-Germany indefinitely. Hungary’s contribution to the elimination of the Soviet system in Europe was generally acclaimed by the U.S. and European governments at the time.

Now Hungary is mentioned again in front page articles, but this time for a very different reason. From the New York Times to Le Monde we read that the country’s government is sliding toward “authoritarianism.” Trotted out as proof are the moves of Prime Minister Viktor Orban to consolidate his party’s hold on power, new rules that supposedly threaten the independence of the judiciary, and most of all the suspiciously Christian, pro-life and pro-family clauses in Hungary’s new Constitution. All these are out of step with the aggressively secular oligarchy that runs the European Union, and Hungary is being threatened (for instance, by U.S. Secretary of State Hillary Clinton) that if its government doesn’t back down, the nation will face potentially crippling sanctions.

The most obviously baseless charge against Prime Minister Orban concern the retirement of judges. Provisions in the new constitution forbid judges to continue work beyond the age limit of 62. As a consequence of this law, 274 judges (out of many thousands) will have to retire in 2012 and be replaced by members of the younger generation. In effect, this law will force some Communist-era holdover judges to retire, and be replaced by men and women formed in the post-1989 democratic tradition. You would think that most in Western Europe would favor such a transition, accomplished in a gradual and even-handed way. There is even precedent for it: In Germany, the judiciary in the former territory of the Communist East was fully reorganized just a few years after unification.

The gravest crime Orban’s government is accused of is cultural and religious. In the preamble to the Constitution or “Basic Law,” there is mention made of God. Still worse, it makes reference to Christianity in particular as part of Hungary’s heritage. Furthermore, the Constitution defines marriage as “the union of a man and a woman established by voluntary decision” and “protects the institution of family as the foundation of the subsistence of the nation”; even goes so far as to state that “the life of the fetus shall be protected from the moment of conception.” It is here that Hungary’s government crossed the “red line” of what may be tolerated in modern Europe.

Critics do not usually mention an important circumstance: the new Basic Law is the very first central constitution in the history of Hungary, one approved by an overwhelming, democratically elected, parliamentary majority. For hundreds of years, there had been no central legal document in Hungary; instead, important legal declarations were used from the early Middle Ages up to the end of World War II. The Communist government created the first national constitution in 1949 along firmly Stalinist principles. This constitution was amended by the last Communist government in 1989 into a text relatively close to the democratic constitutions of the West. However, no democratic parliamentary decision legalized that constitution—which declared itself, accordingly, merely temporary with the prospect of a new constitution yet to be established by democratic procedures. And even if the Hungarian Constitutional Court changed many parts of this constitution, its temporary character did not change. After 1990, all democratic governments attempted to introduce a new constitution, yet none had the sufficient parliamentary majority. Only the government of Mr. Orban has gained the necessary two-third majority and thus it was a legal obligation of this government to create a new constitution, the Basic Law, and approve it in a democratic way.

The mention of God in the preamble of the Basic Law is hardly sectarian. At the beginning of the preamble the first line is quoted from the ancient National Anthem: “God bless the Hungarians!” That is all. It is a quotation from the old anthem and anybody having atheistic inclination can interpret it as a mere piece of patriotic nostalgia. The fathers of the Basic Law “recognize the role of Christianity in preserving the nation” of Hungary over the centuries—an easily verified historical fact. (A good part of Hungary was conquered and occupied by the Ottoman Turks for a hundred years.) If we compare this moderate formulation to other constitutions, such as the Polish, the German, the Irish or the Greek (or constitutions of some states of the U.S.), we may wonder about the plausibility of the political protests. But those documents are older, and Eurocrats doubtless see them as holdovers that may be ignored, or someday junked. To bring the name of God into a new constitution, one drafted in 2012, is more than they can permit. It suggests a trend, one counter to their centrally-imposed, multicultural secularism. And they mean to strangle it in its cradle.

Even more offensive is the supposedly nationalistic language of the Constitution’s “National Avowal,” which actually lists the reasons why it is so good to be a Hungarian. According to the text, “we are proud” of our ancestors, of Saint Stephen (the first king of Hungary), of our country’s past and present. We even “believe that our national culture is a rich contribution to the diversity of European unity.” Keep reading the text of the Constitution, and you will come across these lines: “We respect the freedom and culture of other nations, and shall foster to co-operate with every nation of the world. We believe that human existence is based on human dignity.” And: “We believe that individual freedom can be complete only in co-operation with others.” Faced with such fiery rhetoric, no wonder Hungary’s neighbors feel threatened.

The critics do not mention some important novelties in the Basic Law. For instance, the Basic Law declares the legal protection of minorities living in Hungary; it makes a priority to protect and safeguard “all hand-made and natural assets of the Carpathian Basin”. And the text takes responsibility for “the living conditions of further generations by making prudent use of our material, intellectual, and natural resources.” It would be hard to overemphasize the importance of this latter point.

The two most controversial lines in the Constitution concern the meaning of marriage and the protection of human life. The definition of marriage has become the focal point of important political debates about the meaning of liberal democracy. I doubt that the writers of the Basic Law intended to prevent Hungarians who want them from contracting some kind of same-sex civil unions. More likely, were insisting on logic and common usage, and wished to attribute the well-established meaning to the word “marriage”. If this part of the Basic Law survives political assaults, forthcoming legislation should establish the legal framework of alternative partnership projects.

The Constitution’s promise of protection for human life from the moment of conception is often misinterpreted as a ban on abortion. Yet Hungarian laws are unfortunately very liberal on abortion, much laxer than those in Italy, for instance, and the Constitution in itself will do nothing to change those laws—which in any case are up to Hungarians to vote on democratically. That much is still allowed to individual nations by the European Union, albeit reluctantly.

No doubt, the Hungarian “Basic Law” stands in many ways closer to a conservative, even Christian-inspired constitution than most European countries now have. Its authors recognize Christianity as the foundation of Hungary’s more than 1,000-year existence. It is little wonder that, in its first democratic constitution, the legislators of the country wish to connect the new Basic Law to the previous history of Hungarian constitutionalism. As Mr. Orban said in the European Parliament—quoting the fifth president of the European Union, Robert Schuman—“European democracy will be Christian or will perish.” Such candor is rare today, but we need a great deal more of it. One may agree or disagree with Schuman, but one thing is certain: in its present form, the Hungarian Basic Law is a politically moderate legal document formulated along the lines of the conservative liberalism of an Edmund Burke or a Russell Kirk. It is, in fact, very close in its words and spirit to the Constitution of the United States of America. If anything, this resemblance demonstrates that we live in a world of common values.

As Matthew Day of The Scotsman writes,

Hungary has become a challenge to the EU. If it is to been seen as fair and righteous guardian of Europe’s core values, shepherding an errant nation back to the right path, then it has to, somehow, start to place democracy at its true heart. If it cannot do that, then why should anyone listen?

Readers who wish to stand with Hungary can voice their views by adding their names to this petition and spreading the word. A small country is fighting for its democratic self-determination. It needs your prayers and your help.

By

Balazs Mezei is a Hungarian scholar who has also taught in the United States. He is currently editing the papers of Catholic political philosopher Thomas Molnar.

  • Gian

    How is “the life of the fetus shall be protected from the moment of conception” be not a ban on abortion?

    • Michael PS

      Gian – I should imagine in much the same way as similar provisions in other European codes are treated as allowing a wide “margin of appreciation” to the legislature, both in the form the protection takes and in balancing the competing claims of the mother and the child.

      Compare the rather vaguer language of the French Civil Code – “Art. 16 Legislation ensures the primacy of the person, prohibits any infringement of the latter’s dignity and safeguards the respect of the human being from the outset of life. ” [La loi assure la primauté de la personne, interdit toute atteinte à la dignité de celle-ci et garantit le respect de l'être humain dès le commencement de sa vie.] The “commencement of life” has been held, both by the doctrine of the jurists and the jurisprudence of the courts to refer to conception. Nevertheless, abortion is permitted, although heavily regulated.

    • http://www.mandiner.blog.hu Gergely Szilvay

      Because it doesn’t say that the HUMAN life shall be protected from the moment of the conception, just the “life of the fetus”. So it’s symbolic.

      • Michael PS

        The 1975 and 1992 decisions of the German Federal Constitutional Court are very instructive. They accepted that “everyone has the right to life” [Article 2-2 of the Basic Law included the unborn, but they refused to read the “right to life” as requiring the criminalization of abortion: the Court held that the state has a duty to use “social, political, and welfare means” to foster developing human life, and that these are preferable to penal measures (though the latter are not ruled out).

        I assume this jurisprudence was familiar to those who drafted the relevant provision in the Hungarian Constitution.

  • Gavin

    One of the main issues here is the de-registration of 348 faith organizations from state recognition. These groups now have to reapply for recognition, which cannot be granted without a 2/3 majority vote in a parliament in which Fidesz holds a super-majority. Fidesz has massively dropped in popularity lately, so the problem will probably take care of itself.

    • http://www.mandiner.blog.hu Gergely Szilvay

      Fidesz is even now the most popular party at Hungary. It”s problematic, that the parliament shall to recognise the “churches”, but: most of the 348 faith organizations were business churches. And: most of european countries makes difference in the recognition of churches, and put them in two or three categories. The new hungarian law is similar to the german, austrian and litvanian one.
      I’ve written an article about it, in hungarian, at the half-official newsite of the hungarian catholic church: http://www.magyarkurir.hu/hirek/koerkep-bevett-szokas-az-egyhazak-allami-rangsorolasa-europaban
      and Anyway, there are 7 countries in the European Union, were are statechurches: GB, Norway, Malta, Danmark, Finland, Greek, Island.

      • Michael PS

        You could have included France in your list, which has state churches in Alsace-Moselle. This had been German territory since 1871 when the Law of 1905 on the separation of church and state was passed and it was never extended to them, after it reverted to France in 1919, so it continues to be governed by the Concordat of 1801, with some modifications.

  • Ben Horvath

    Thanks Balazs. I’ve been following this story but its hard to figure out what has really been going on based on the English language sources. I’ve seen a lot of stories documenting a supposed descent into fascism, with the benign policies that you describe referred to in rather paranoid tones. Nice to hear what’s really going on.

  • Peter Aszalos

    I like the tempered style of this article, however I miss some points that I miss many times during reading articles about the current situation. If there is no point at all in the fears echoed by many sources, as the writer says, than one can conclude that all this kind of opinions are paranoid. Or even manifestations of a well-organized conspiracy against Hungary. Let me show you how I see the truth behind this authoritarian stuff from a personal point of view.
    One and a half years ago I was absolutely convinced that this government would be able to handle or even solve long-lasting economic and historical issues faced by the nation. I thought they would open the door for different opinions and set up the long waited “national minimum” by inviting the opposition and many other forces. And based on that strong agreement a new constitution would be a symbol of a new starting era.
    Guys, to tell the truth, I am very much disappointed. Not only that the preambulum of the constitution has low intellectual standards – I would forgive it. The point here is that these ruling parties, backed by such a fantastic support, couldn’t step over their shade and act like real integrators of the nation. A historical chance was missed…

  • Janos Szeky

    Professor Mezei’s (or, more precisely, the Hungarian Ministry of Justice and Andministration’s) argument about “communist-era holdover judges” is, to say the least, hypocritical for the following reasons:
    1. No such age limit was provided for the Constitutional Court, which the present government has filled up with loyal judges, including communist-era officials.
    2. Right until this amendment the present-day ruling party was condemning anyone who said some judgments could be biassed as an enemy of the rule of law. Now what Professor Mezei says eguals the statement that the large majority of judges and therefore judgments were biassed after 1989. This would have been a continuous scandal and an opposite of the “post-1989 democratic traditions” he refers to; but right until this amendment the present-day ruling party never even hinted at such a state of things.
    3. No such screening was performed in the secret services. On the contrary, the government blocks any attempts to make communist state security records, including the lists of agents, open to the public. So while even Bulgaria is recalling its diplomatic personnel who were members of the Darzhavna Sigurnost, Hungary is the only country west of Russia where communist state security collaborators or even officials are in top positions even today. If it was really a matter of ideological backgrounds, they should have changed that too.
    As for marriage as a union of man and woman or the protection of the family, these points have nothing to do with conservatism or political Christianity, you can find them in the 1977 Soviet Constitution (also called “basic law”) and several other Soviet-type constitutions as well.
    Among other factual inaccuracies Professor Mezei uses a variant of the government’s claim that this Basic Law replaced the 1949 communist constitution, which was amended only superficially and in a non-democratic way in 1989. Now, contrary to what Professor Mezei and Hungarian government officials say, the 1949 constitution was changed systematically from article to article, and this job was not done by “the last communist government” but by Committee 1 of the National Roundtable, which included legal experts from both the government and the opposition, with Hungary’s first democratically elected prime minister Jozsef Antall and the present-day prime minister Mr Viktor Orban among the latter. It did have its deep flaws owing to its temporary nature, namely the overgrown system of laws requiring a qualified majority to change, but it was precisely this feature Fidesz did not abolish and even turned for the worse, including a requirement of supermajority for tax laws, which is the death of democracy, and which was one of the main targets of EC’s criticism.
    Especially in its modified 1990 version, which was ratified by the overwhelming majority of the first democratically elected Parliament there was not a single trace of communist influence in the 1989 Constitution.

  • Janos Szeky

    One more question. The alleged quote from Robert Schuman, ““European democracy will be Christian or will perish”, has been circulating in the Hungarian media for years. Now to my knowledge, Schuman was a devout Catholic but also a professed democrat; such a statement of exclusivity about democracy does not seem to be in line with his way of thinking. Can anyone help with the original French quote?

MENU