JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the newly enacted Hungarian Constitution has significant similarities to the Mexican Constitution of 1917, particularly in its provisions dealing with the recognition of religions and the resistance to these provisions...
he year 2012 began with many auspicious legal, social and political events. One that has evaded much notice in the US but garnered much attention in Europe has been the new Hungarian Constitution that took effect January 1. Curiously, from a comparative legal perspective, the Mexican experience of constitutional anticlericalism is being relived to an uncannily similar extent some 95 years later in Hungary. Despite stark linguistic, ethnic and cultural differences, both share significant similarities and certain aspects of political and cultural exchange that make this comparative paradigm an especially apt one.
Both similarly have endured foreign intervention and occupation, monarchical other forms of nondemocratic rule, dictatorships, yet the continued presence in modern times of a strong Catholic Church and devout population coexisting alongside other minority faiths.
The self-imposed mandate of then-Mexican President Álvaro Obregón of Mexico, after the passage of the 1917 Constitution, was focusing on the Mexican economy, justifying the application of anticlerical articles of the Constitution because he believed that government should be the only institution to control the nation and it was his job to implement the Constitution. The resulting turmoil was the so-called Cristero War (or Cristiada) of 1926 to 1929, an uprising and counterrevolution against the Mexican government. This conflict resulted in over 90,000 deaths and the first major emigration Mexicans to the US in modern history, 5 percent or more of the Mexican population by some estimates.
Thus far, such ominous overtures have not yet emerged in Hungary, although, on January 18, 2012 Hungarian Prime Minister Viktor Orbán dramatically appeared before the European Parliament to defend his country's new constitutional order and its economic reforms, while assailed with criticism regarding the social impact of the new changes. Mexico's 1917 constitution did not preserve the rights of all, citizens or non-citizens, and especially challenged deeply engrained norms and expectations regarding religious freedoms. While there may indeed be salutary, pro-life and/or pro-family effects stemming from provisions in the new Hungarian Constitution, purportedly over 300 religious groups including several Christian denominations have lost official recognition in Hungary. Approved churches include traditional Catholic, Reformed, Lutheran and Orthodox congregations, as well as some Jewish groups.
Among the religions purportedly denied state approval are all versions of Islam, Buddhism, Hinduism and Baha'i. Roman Catholic orders purportedly decertified include the Benedictines, Marists, Carmelites and Opus Dei. Also included in the purported decertification are such denominations as Episcopalians, Jehovah's Witnesses, Seventh Day Adventists, Mormons, Methodists and all but one evangelical church. As for Judaism, only one each of the orthodox, conservative and liberal synagogues are recognized; all other Jewish congregations are purportedly not recognized. Faiths not included and sects otherwise excluded will have the opportunity to apply for recognition in parliament if they have been operating for at least 20 years in Hungary. But what of those faiths and groups who through emigration or evangelization or other forms of expansion have a nascent presence in Hungary are they doomed to be excluded for two decades before being able to gain recognition? Will they, like the Cristiada émigrés, flee to lands more tolerant and perhaps more welcoming?
While not yet to the level or intensity of the Mexican Cristiada, history has again repeated itself in 2011 and 2012, in as much as tens of thousands in Hungary have marched in the streets and accused the government of violating their rights, while "Western allies, including the United States, are complaining about a constitution that critics say undercuts fundamental democratic principles." In the words of Ian Kelly, the American Representative to the Organisation for Security and Cooperation in Europe (OSCE), these Hungarian Constitutional changes "have effectively eroded the independence of key government institutions as well as important nongovernmental elements of society and scaled back the checks and balances that are crucial to a democracy and the protection of civil liberties." Kelly added that the legislation had been "rushed" and "should have been the subject of a dialogue with civil society."
Various political groups joined Catholics hoping to overturn the new constitution in 1920; in 2012, the European Commission launched legal challenges against the Hungarian Constitution for having breached EU treaties. Mexico was independent at the time of its infamous constitutional amendments, and not a signatory to regional or international treaties on the preservation and advancement of human rights. Hungary, however, exists as a sovereign nation nonetheless adhering to the subsidiarity principle of the EU and ostensibly adhering to two major international conventions regarding human rights. The first is the European Convention on Human Rights, under which Hungary and other signatories commit to the premise that
[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
In Article 9, Section 2 of that convention, the
[f]reedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
Similarly, the EU Charter on Fundamental Rights
, Article 10 preserves, promotes and protects freedom of thought, conscience, and religion, but makes no such provision for abrogating those freedoms under the "necessities of a democratic society."
In the case of Mexico, the Roman Catholic church never fully regained the power it had before the Constitution of 1917; only by the time of Lazaro Cardenas' term of office as President from 1934-1940 could Catholics quietly worship in their churches, and some reversal of the anticlerical laws came under President Manuel Avila Camacho between 1940-1946. Some 76 years after their enactment, the anticlerical laws were finally eliminated in 1993 President Carlos Salinas de Gortari. Will it take as long for Hungary or the EU on behalf of decertified religions and orders to reverse the recent Hungarian Constitutional changes? In all likelihood, it will take even less time in this post-"Twitter Revolution" era with tens of thousands of Hungarians protesting new government power over the media, economy and religion in violation of international human rights laws, even if the upcoming European Commission challenges primarily focus on banking, judicial and elections problems.
With this brief exploration of past as prologue, we can better appreciate why the discipline of comparative law, and its companion disciplines of history, sociology and anthropology, have as much contemporary relevance as ever.
Kevin Govern is an Associate Professor of Law at Ave Maria School of Law. He began his legal career as a US Army Judge Advocate. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the US government, Department of Defense or Ave Maria School of Law. Special thanks go to Katie Ryan at the University of Dallas for her contributions to background on the Mexican Constitution of 1917. All errors or omissions are solely that of the author.
Suggested citation: Kevin Govern, Hungary and Mexico's Constitutional Parallels, JURIST - Forum, Feb. 11, 2012, http://jurist.org/forum/2012/02/kevin-govern-hungary-constitution.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com