[Joint House and Senate Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE TRAJECTORY OF DEMOCRACY_WHY HUNGARY MATTERS
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HEARING
before the
COMMISSION ON SECURITY AND
COOPERATION IN EUROPE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MARCH 19, 2013
__________
Printed for the use of the
Commission on Security and Cooperation in Europe
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Available via http://www.csce.gov
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COMMISSION ON SECURITY AND COOPERATION IN EUROPE
LEGISLATIVE BRANCH COMMISSIONERS
SENATE HOUSE
BENJAMIN CARDIN, Maryland, CHRISTOPHER SMITH, New Jersey,
Chairman Co-Chairman
SHELDON WHITEHOUSE, Rhode Island JOSEPH PITTS, Pennsylvania
TOM UDALL, New Mexico ROBERT ADERHOLT, Alabama
JEANNE SHAHEEN, New Hampshire PHIL GINGREY, Georgia
RICHARD BLUMENTHAL, Connecticut MICHAEL BURGESS, Texas
ROGER WICKER, Mississippi ALCEE HASTINGS, Florida
SAXBY CHAMBLISS, Georgia LOUISE McINTOSH SLAUGHTER,
JOHN BOOZMAN, Arkansas New York
MIKE McINTYRE, North Carolina
STEVE COHEN, Tennessee
THE TRAJECTORY OF DEMOCRACY--WHY HUNGARY MATTERS
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MARCH 19, 2013
COMMISSIONERS
Page
Hon. Benjamin L. Cardin, Chairman, Commission on Security and
Cooperation in Europe.......................................... 1
WITNESSES
Brent Hartley, Deputy Assistant Secretary for European and
Eurasian Affairs, U.S. Department of State..................... 3
The Honorable Jozsef Szajer, Hungarian Member of the European
Parliament, Fidesz-Hungarian Civic Union....................... 8
Kim Lane Scheppele, Director of Program in Law and Public
Affairs, Princeton University.................................. 20
Sylvana Habdank-Kolaczkowska, Director, Nations in Transit,
Freedom House.................................................. 25
Paul A. Shapiro, Director, Center for Advanced Holocaust Studies,
United States Holocaust Memorial Museum........................ 27
APPENDICES
Prepared Statement of Hon. Benjamin L. Cardin.................... 34
Prepared Statement of Hon. Christopher Smith..................... 36
Prepared Statement of Brent Hartley.............................. 37
Prepared Statement of Jozsef Szajer.............................. 40
Prepared Statement of Kim Lane Scheppele......................... 43
Prepared Statement of Sylvana Habdank-Kolaczkowska............... 55
Prepared Statement of Paul A. Shapiro............................ 57
Testimony Concerning the Condition of Religious Freedom in
Hungary, H. David Baer......................................... 68
THE TRAJECTORY OF DEMOCRACY--WHY HUNGARY MATTERS
----------
MARCH 19, 2013
Commission on Security and Cooperation in Europe,
Washington, DC.
The hearing was held at 3:00 p.m. EST in the Capitol
Visitor Center, Senate Room 210-212, Washington, District of
Columbia, Senator Benjamin L. Cardin, Chairman of the
Commission on Security and Cooperation in Europe, presiding.
Commissioners present: Hon. Benjamin L. Cardin, Chairman,
Commission on Security and Cooperation in Europe.
Witnesses present: Brent Hartley, Deputy Assistant
secretary for European and Eurasian Affairs, U.S. Department of
State; The Honorable Jozsef Szajer, Hungarian Member of the
European Parliament, Fidesz-Hungarian Civic Union; Lane
Scheppele, Director, Program in Law and Public Affairs,
Princeton University; Sylvana Habdank-Kolaczkowska, Director
for Nations in Transit, Freedom House; and Paul A. Shapiro,
Director, Center for Advanced Holocaust Studies, United States
Holocaust Memorial Museum.
HON. BENJAMIN CARDIN, CHAIRMAN, COMMISSION ON SECURITY AND
COOPERATION IN EUROPE
Mr. Cardin. Well, good afternoon, everyone, and thank you
for being here. This is the first hearing of the Helsinki
Commission in this Congress. I can't think of a more
appropriate subject than to talk about the trajectory of
democracy, why Hungary matters. I want to thank all of our
witnesses for being here today. I particularly want to thank
Mr. Szajer, who's here from Hungary to represent the
government, or at least inform us, from the--from the country's
point of view, what is happening in Hungary. That makes this
hearing, I think, even more helpful to us. And I thank you very
much for your participation.
The progressive inclusion of post-communist countries into
trans-Atlantic and European institutions reflected the
expansion of democracy and shared values, as well as the
realization of aspirations long denied. Indeed, in 1997 the
Helsinki Commission held a series of hearings to examine the
historic transition to democracy of post-communist candidate
countries like Hungary prior to NATO expansion.
I was one among many of the legislators that cheered when
Hungary was--joined NATO in 1999, and again when Hungary joined
the EU in 2004--illustrating not only Hungary's post-communist
transformation, but also Hungary's ability to join alliances of
its own choosing and follow a path of its own design. Hungary
has been a valued friend and partner as we have sought to
extend the benefits of democracy in Europe and elsewhere around
the globe.
But today concerns have arisen among Hungary's friends. We,
the United States, value our friendship and our strategic
relationship with Hungary. As a friend, we are concerned about
the trajectory of democracy in that country. Over the past two
years, Hungary has instituted sweeping and controversial
changes to its constitutional framework, effectively remaking
the country's entire legal foundation.
This has included the adoption of a new constitution,
already amended multiple times, including the adoption of a
far-reaching fourth amendment just days ago, and hundreds of
new laws on everything from elections, to the media, to
religious organizations. More than that, these changes have
affected the independence of judiciary, role of the
constitutional court, the balance of power and the basic checks
and balances that were in place to safeguard democracy.
It seems to me that any country that would undertake such
voluminous and profound changes would find itself in the
spotlight. But these changes have also coincided with a rise of
extremism and intolerance in Hungary. Mob demonstrations have
continued to terrorize Roma neighborhoods. Fascist-era figures
have been promoted in public discourse and the public places.
A new law on religion stripped scores of minorities' faiths
of their legal status as religious organizations overnight,
including initially Coptic Christians, Mormons and the Reformed
Jewish Congregation. Most have been unable to regain legal
status, including the Evangelical Methodist Fellowship, a
church that had to survive as an illegal church during the
communist period and today serves many Roma communities.
At the same time, the constituencies of Hungary have been
redefined on an ethnic basis. Citizenship has been extended
into neighboring states on an ethnic basis and voting rights
now follow that. As the late Ambassador Max Kampelman once
observed: Minorities are like the canary in the coal mine. In
the end, democracy and minority rights stand or fall together--
if respect for minorities falls, democracy cannot be far
behind. And the rights of persons belonging to ethnic,
religious, and linguistic minority groups will likely suffer in
the absence of a robust democracy.
Max Kampelman, a long-time friend of the Helsinki
Commission, served with distinction as the head of the U.S.
delegation to the seminal 1990 Copenhagen meetings, where some
of the most important democracy commitments ever articulated in
the OSCE were adopted.
The participating States, and I quote from that document,
considered that ``the rule of law does not mean merely a formal
legality which assures regularity and consistency in the
achievement and enforcement of democratic order, but justice
based on the recognition and full acceptance of the supreme
value of the human personality and guaranteed by institutions
providing a framework for its fullest expression. They reaffirm
that democracy is an inherent element of the rule of law.''
At issue now is whether Hungary's democratically elected
government is steadily eroding the democratic norms to which
Hungary has committed itself, in the OSCE and elsewhere. And we
care about democracy in Hungary, for the people in Hungary as
well as for the example it sets everywhere we seek to promote
democracy.
I welcome all of our witnesses today, and let me thank you
all for being here. It really--I think this will be a hearing
that will get a lot of information and be able together on
these issues. Our first witness will be Brent Hartley, the
deputy assistant secretary of state for European affairs. Mr.
Hartley, thank you for being here. We welcome your testimony.
BRENT HARTLEY, DEPUTY ASSISTANT SECRETARY FOR EUROPEAN AND
EURASIAN AFFAIRS, U.S. DEPARTMENT OF STATE
Mr. Hartley. Thank you very much, Mr. Chairman, for
inviting me to join you today. I appreciate very much your
continued interest in events in Hungary and in the OSCE more
generally. I want to be clear at the outset and echo a bit what
you said in your own statement. Hungary remains a strong ally
of the United States. It is a valued member of two bedrock
trans-Atlantic organizations--the Organization for Security and
Cooperation in Europe and the North Atlantic Treaty
Organization--which define and defend democracy in Europe and
beyond.
However, in the last two years we've been open about our
concerns regarding the state of checks and balances and
independence of key institutions in Hungary. The United States
has not been alone in this regard, as the Council of Europe,
the European Commission, other friends and allies of Hungary,
and civil society organizations have expressed similar views.
If the government of Hungary does not address these concerns,
not only will the lives of Hungarian citizens be affected, but
it will also set a bad precedent for OSCE participating states
and new members of, and aspirants to, NATO.
Last year marked the 90th anniversary of U.S.-Hungarian
diplomatic relations: relations which remain strong, based on a
common security architecture as NATO allies, a deep economic
partnership and what we believe are fundamental values shared
by the American and Hungarian people. However, before Secretary
Clinton's June 2011 visit to Hungary, we took notice of
Hungary's controversial media law and a new constitution, the
Fundamental Law, portions of which also raised concerns among
impartial observers. In both cases, we had concerns about the
content as well as the process by which they were passed.
As we have often said, Hungarian laws should be for
Hungarians to decide. But the speed with which these laws were
drafted and passed, and the lack of serious consultation with
different sectors of Hungarian society, did not honor the
democratic spirit that the people of Hungary have long
embraced. Since then, the Hungarian parliament has passed
scores of laws at an accelerated pace. More than a few of these
laws posed threats, in our view, to systemic checks and
balances and the independence of key institutions that are the
bedrock of mature democracies. Privately and publicly, we
expressed our concern to the government of Hungary, as did
several European institutions and governments. Unfortunately,
in many respects, our message went unheeded.
When Hungary's Constitutional Court struck down a law on
fiscal issues, the parliament swiftly passed another law taking
away the court's competency to decide cases based on fiscal
matters. The government expanded the Constitutional Court from
11 to 15 members, allowing the current administration to select
the additional justice--justices, and thereby alter the court's
juridical balance. The new laws created a Media Council and
gave it significant powers to oversee broadcast media,
including the right to fine media for, quote, ``unbalanced
coverage,'' end-quote, an unsettlingly vague term.
No opposition parties are represented on Hungary's new
Media Council. The council members have nine-year terms and
cannot be removed without a two-thirds vote of parliament. The
new laws also created a National Judicial Office and gave it a
powerful, politically appointed president with a nine-year term
and the authority to assign cases to any court she sees fit--a
recipe for potential abuse. Another new law stripped over three
hundred religious congregations or communities of their
official recognition. To be clear, nonrecognized religious
groups are still free to practice their faith in Hungary, but
in order to regain legal status religions will have to be
approved by two-thirds of parliament, an onerous and
unnecessarily politicized mechanism.
In mid-2012 as expressions of concern from the United
States and Europeans mounted, the Hungarian government
responding in constructive ways. The government voluntarily
submitted many laws for review by the legal experts of the
Council of Europe's Venice Commission. We were further
heartened when, early this year, Hungary's Constitutional Court
issued several rulings striking down controversial legislation,
thus affirming its role in constitutional checks and balances.
Unfortunately, the government drafted and swiftly passed a
new constitutional amendment, the fourth amendment, on March
11th, parts of which were reinstated laws that had just been
struck down by the court. In doing so, the Hungarian government
ignored pleas from the Council of Europe, the United States,
the European Commission, and a number of allies, as well as
several respected, nonpartisan Hungarian NGOs, to engage in a
more careful, deliberative process and allow for Venice
Commission review.
I would like to address one other area that has provoked
much concern: the rise of extremism in Hungary. This phenomenon
is, sadly, not unique to Hungary. The rise in Hungary of the
extremist Jobbik Party as one of the largest opposition groups
in parliament, and Jobbik's affiliated paramilitary groups that
incite violence, are a clear challenge to tolerance. Let me be
clear, the ruling Fidesz party is not Jobbik. Fidesz' ideology
is within the mainstream of center-right politics, and its
platform is devoid of anti-Semitism or racism. Moreover, we
have seen a growing willingness by Hungarian government leaders
to condemn anti-Semitic acts and expressions.
However, such condemnation is not always perhaps as swift
or as resolute as it might be. One concern that some--one
concern also is that some local governments in Hungary have,
with little objection from the governing party, erected statues
and memorials to figures from Hungary's past tainted by their
support for fascism and anti-Semitism. And some of those
figures have been reintroduced into the national educational
curriculum without context. This contributes to a climate of
acceptance of extremist ideology in which racism, anti-
Semitism, anti-Romani actions and other forms of intolerance
can thrive. We also call upon Hungarian leaders to do more to
defend Romani Hungarians, who face discrimination, racist
speech and violence that too often goes unanswered.
In conclusion, the United States has long enjoyed and
benefitted from its strong alliance with Hungary and its
people. We respect their drive for freedom and democracy that
made Hungary the leader in bringing down the Iron Curtain. Just
as we continue to do hard work together in Afghanistan and
address other challenges around the globe, so too will we
continue to have a sincere, and at times difficult, dialogue on
the importance of resolutely upholding the fundamental values
that bind us.
Thank you, Mr. Chairman, for allowing me to express the
State Department's views on these issues. And I'm available for
your questions.
Mr. Cardin. Mr. Hartley, thank you for your--for your
comments. Let me just ask you a few points. Some of the trends
that we see in Hungary, we see in other countries in Europe
that have made progress towards democracy but seem to be now
moving in the wrong direction. Hungary is indeed unique because
it's our NATO ally. It also has advanced in integration in
Europe.
Is what is happening in Hungary--what impact does that have
on giving strength to other countries that are now going
through their second or third election cycle where they're
taking action against opposition that many of us think is
pretty extreme? Is it legitimating some of the other
illegitimate actions in Europe? Is it having a concern that
this could erode development in other countries?
Mr. Hartley. Well, I think the short answer is that--is
that there is a concern there. When Hungary and other new
members of NATO and the OSCE joined--well, joined NATO after
the fall of the--after the fall of the wall, and took up their
positions and the--and the commitments they made in the OSCE
following the fall of communism, they fundamentally agreed to a
certain set of values--democratic values, and to support
fundamental human rights.
When an ally, an OSCE member and a member of the EU, such
as Hungary, begins to take actions that call those commitments
into question, then of course it's a concern, not only for the
country itself--for Hungary itself--but for the example that it
can set for others. The--as the--as the bounds of what is
permissible gets stretched into directions that we think are
causes for concern, it gives space for other countries to
consider what the--and other governments to consider what they
might do in the same vein. So there's a concern for the example
it sets.
Mr. Cardin. I've heard from other countries that have
been--that we've had bilaterals with, that they'll use Hungary
as an example to justify some of their own conduct and point
out very clearly that NATO--that Hungary's one of our NATO
allies, that again, by association, saying, well, America's OK
with that, when in fact obviously we're not.
You mentioned the rise of extremism, which is happening in
many European countries. Jobbik, the party, is not part of
government, but some of its actions have been identified with
government. I specifically mention the case of Zsolt Bayer, who
was--who is known for his anti-Semitic, anti-Roma comments,
receiving recognition by one of the Cabinet members of the
current government. There have been other activities of
extremists that have been rehabilitated through recent
recognition.
That's a real troublesome sign to the Helsinki Commission.
Do you have any views as to why government officials would be
giving legitimacy to those types of extremist and outrageous
individuals trying to legitimate their place in history?
Mr. Hartley. Well, first of all, I don't--if I may, sir--I
think Zsolt Bayer is--was a founding member of Fidesz. I don't
think is a member of Jobbik.
Mr. Cardin. No, he's not, but he received an award from the
Cabinet officials, right?
Mr. Hartley. Yeah. Yes. Yeah, just to clarify that point.
Well, I'm--I know you've got a panel of other experts
coming up who I think are probably in a better position to talk
about the internal domestic calculations that might go into
something like that. Certainly we are--we are disturbed by such
actions. There was also a state award for journalism that was
extended to a journalist just in the last several days, who has
been known to make anti-Semitic and anti-Roma comments. And
we--our embassy issued a statement today questioning that and
suggesting that the government may want to look for a way to
revoke that award.
It is--it's disturbing when these things happen. As I--as I
think I mentioned earlier in my statement, the tolerance of
this--of intolerant acts simply gives more space and more room
for extremist philosophies to grow. So we're--we've expressed
our concern as a government on numerous occasions in the past
when these sorts of things have happened, and we'll continue to
keep a close watch.
Mr. Cardin. Thank you. Some of these laws, we're obviously
looking as to how they're going to be implemented. We had the
Media Council that you've already referred to. We have the
religions law. You have the court changes that were--some of
which have been struck down by the courts. Now they're changing
once again to try to reaffirm their positions. Do we have any
indication in our conversations with the Hungarians as to
whether they're reacting to some of our concerns--some of the
international community's concerns in the way these laws will
be implemented?
Mr. Hartley. Well, I think we were encouraged over the
course of 2012 by the dialogue--by the impact that the dialogue
that we, the European Commission, the Council of Europe and
others had with our Hungarian colleagues on a range of these
issues. Unfortunately, as has been mentioned, we were
disappointed that many of those positive steps with regard to
the judiciary, media law, things like that, seemed to take a
step backward with the adoption on March 11th of the--of this
new constitutional amendment.
We are heartened that the--again, in the spirit of
friendship and in the spirit of engaging a country that is a
co-member of NATO, and I think for others a co-member of the
European Union--there's been I think more of a public
commentary on the Hungarian government actions. We're pleased
that they've--have apparently agreed to submit the fourth
amendment to the Venice Commission for review. We had argued--
we'd supported the Secretary-General of the Council of Europe
in his statement on March 6th, that perhaps they would want to
do that before they adopt the law rather than after. We're--
they chose not to do that, but we're pleased that they'll go
forward with that now.
It is--but we--so I think that, you know, we're going to
remain engaged with them in dialogue. It's clear that a number
of their friends and allies in Europe--whether from
international organizations or bilaterally--will be raising
similar concerns. So we're hopeful that that dialogue will--
that they'll be--that they'll be responsive to that dialogue.
Mr. Cardin. Let me tell you one of my major concerns. And
that is that a lot of this is being done with minimal amount of
transparency. It happens. There is no evidence of widespread
corruption--at least I'm not aware of it--in the Hungarian
government. So I will make clear my concern here. The lack of
transparency in many cases lead to corruption. It's--you know,
it's how people can get away with personal corruption, which
ends up being pretty much part of government. And again,
there's no indication of this that I know of in Hungary. But if
the--if they condone a process that allows laws to be made and
policies to be implemented with little accountability or
transparency, it can breed a more serious problem within the
government itself.
Has that point been made by our people or Europe in regards
to conversations with Hungary, the concerns about the process
that they've been using in getting these laws passed?
Mr. Hartley. The--thank you sir--the--yes, we have been
very concerned about the process. I think you noted and I noted
in my statement that we've--the speed with which the new
constitution's been adopted, frequently--and other laws
frequently with major amendments being made, you know, deep
into the night before the--before the final vote--we've raised
that repeatedly and consistently and have suggested that it
would be a better process if they were to consult with the
opposition in the Parliament to give them a chance to voice
their views, if they were to consult with civil society and
otherwise open up the process by which they consider and vote
on legislation.
Mr. Cardin. Which brings me to, I guess, the point that you
raised, and that is it's up to Hungary to pass its own laws.
It's a--it's an independent country, it's a democratic country.
Laws they pass are subject to their system, and that we fully
support and fully understand.
Mr. Hartley. Yes, sir.
Mr. Cardin. What is the appropriate role for the Council of
Europe or the United States in pointing out or commenting on
what is happening in Hungary, as far as their legislation is
being enacted?
Mr. Hartley. Well, I think--thank you for the question,
sir--I think as most people are aware, the United States has
never been terribly shy about offering advice at any level of
government. The--and--but seriously, we take the commitments
that we and other NATO allies and other members of the OSEE, we
take those commitments very seriously. And regardless of
where--what country or what government it may be, if those
commitments, we feel, are not being fully observed or--in both
spirit and letter, then we will voice our concerns.
I am a little bit hesitant to speak for the Council of
Europe on it, but the Council of Europe, as I understand it, is
the keeper of the various human rights and other conventions
that European governments sign up to when they--when they join
the Council of Europe. And that is why the Council of Europe,
and in particular, the Venice Commission, which is a body of
legal experts, has played such an important role both in
addressing some of the issues that have been presented in
Hungary over the last couple of years, not to mention in other
parts of Europe; for instance, the capacity-building in the
Balkans and things like that.
Mr. Cardin. Well, I agree with the assessment. We are both
signatories to the OSCE, which gives us the right and actually,
the responsibility to raise issues where we believe they are
out of compliance with the commitments within the OSCE. We
have--we will continue to report on human rights records of all
countries, including the United States, including our
commitments to Helsinki, with OSCE, we'll comment on that.
So this--the--(inaudible)--question was sort of aimed at
pointing out that we all have responsibilities to point out
where we think they're out of compliance with their
international or OSCE commitments, and that we have a right and
responsibility to point that out. It's up to Hungary to pass
the laws that they believe is right for the people of their own
country.
Mr. Hartley. That's right, sir.
Mr. Cardin. Thank you very much, Mr. Hartley. Appreciate
your testimony.
Mr. Hartley. Thank you very much, sir. It's a pleasure to
be here.
Mr. Cardin. We will now go to Jozsef Szajer who has been
asked by the government of Hungary to represent it here today.
As I said in my opening statement and in my questions, that
Hungary is a close friend to the United States, a NATO ally, a
country that we share a common vision, and we very much
appreciate the fact that you are present here today. Thank you.
HON. JOZSEF SZAJER, HUNGARIAN MEMBER OF THE EUROPEAN
PARLIAMENT, FIDESZ-HUNGARIAN CIVIC UNION
Mr. Szajer. Honorable Chairman Cardin, ladies and
gentlemen, just by coincidence, two weeks ago, my caucus leader
at the European Parliament--(inaudible)--asked me to--if the
European Parliament is planning to introduce U.S. Congress-type
hearings in the--in the European Parliament, and asked me to--
and appointed me on behalf of our political group, the EPP, to
study it. I didn't think at that time that two days later, I
will get a phone call from my foreign minister, and I will be
just studying this event from inside immediately. But this is--
this is just what sometimes happens in life.
Mr. Cardin. I'm glad we could be helpful to you in giving
you the experience. (Laughter.)
Mr. Szajer. Right, that will be helpful definitely to see
inside from inside as much as from studying in the school
books.
Well, it's an honor for me and for my colleague, a member
of the European Parliament, member of the Hungary Parliament,
Gulyas Gergely, to share my views on the state of the Hungarian
democracy. I am a founding member of Fidesz. Twenty five years
ago, I was fighting against communism, and later in my capacity
as member of the first freely-elected Hungarian Parliament, and
since then, several times have participated in the preparation
of almost every major constitutional change. Recently, I had
the great honor of being the chairman of the drafting committee
on the Fundamental Law of Hungary, which included some other
members, including Gergely Gulyas.
I also would like to commemorate that today is the 69th
anniversary of when Hungary was occupied by the Nazi troops,
taking of the final bits off our national independence.
As a legislator myself, I would like to express my
appreciation for your personal interest and the U.S. Congress
interest the sovereign act of the Hungarian nation's historic
constitution-making enterprise. I admire your great
constitution, and we held it as a compass creating our new one.
Just a reference to the previous speaker, I would like to say
that our's was a little bit longer made, in nine months,
compared to the United States Constitution. But we held it as a
compass in creating our new one.
Elected representatives of our great freedom-loving
nations, the American and the Hungarian, should always find
appropriate occasions to exchange on equal grounds views and
experiences on matters of great importance. And what could be
more important than a nation's constitution? And what could be
more significant part of a nation's sovereignty than creating
her own constitution?
You in America gained your independence more than 200 years
ago. In the course of our history, thousands of Hungarians died
for Hungary's independence, but finally, we won it only a
little more than 20 years ago, when the Soviet occupation
finally ended. I was there. I was part of that generation which
achieved it. And now, our task is to consolidate freedom and
democracy.
Hence, you should be aware of the high sensitivity of our
nation towards questions of independence and self-
determination. We Hungarians, like you Americans, consider that
our nation's own Constitution is an exercise in democracy that
we should conduct ourselves. We listen to advice given in good
faith; we learn from the experience of others, as we did in the
preparation of our constitution from the South African to the
Spanish constitution; we studied many examples. This is the
very reason I am here, but we insist on our right to decide.
This is democracy and self-determination that we have been
fighting for so long.
In the 2010 election, my party won a victory of rare
magnitude, it has been already mentioned, obtaining a
constitutional majority, more than two thirds of the seats in
the National Assembly. The choice of the Hungarian people was a
response to a deep economic, social and political crisis before
2010. The mismanagement of public finances, public debt
slipping out of control, the collapse of public security and
skyrocketing corruption were among its symptoms. We also
witnessed serious violations in basic human rights by the
authorities; the most serious ones concerning the freedom of
assembly in the autumn of 2006.
At those difficult times, we were expecting the support of
the democratic community, of the world, to speak out against
state oppression of the citizens' freedoms. Unfortunately, the
international community turned a blind eye. For your
information, Mr. Chairman, I broke--I brought a book from--of
those events of trespasses of the police against the violation
of the right of assembly in 2006, which was one of the reasons
why we won so big majority later on.
Mr. Cardin. Thank you.
Mr. Szajer. Public order was seriously challenged also by
shocking events like the serial killings of our Roma
compatriots with clear racist motivations and with the public
authorities standing by, crippled.
In 2010, we received a mandate and the corresponding
responsibility to put an end to all that. A new constitution
was long overdue. All Central and Eastern European countries
except Hungary have adopted their new democratic constitutions
long before. The Venice Commission welcomed efforts, and I
quote,``made to establish a constitutional order in line with
the common European democratic values and standards and to
regulate fundamental rights and freedoms in compliance with the
international instruments.'' This quote is closed.
A few words on the recent amendment, which has been already
subject of the discussion before. Ninety-five percent of these
provisions, the so-called Fourth Amendment adopted last week,
had been in effect since the entry into force of the new
constitution in the form of the so-called Transitory Provisions
of the Fundamental Law. We did not intend to change our
Fundamental Law so soon after its adoption, but the
Constitutional Court--and I would like to remind, better checks
and balances are working in Hungary--annulled some of the
transitionary provisions. The provision of the Court, based on
the German constitutional doctrine of obligation of
incorporation, which is a very specific doctrine, which the
Constitutional Court applied, is that the Constitution should
be one single act; therefore, what had to be done was basically
copy-paste exercise to incorporate the Transitory Provisions to
the main text, hence, the length of the new amendment.
I also would like to remind on the basis of the previous
exchange of views that in Hungary, the constitution cannot be
adopted in an extraordinary procedure in Parliament, so that
all the procedural requirements of adopting or amending the
constitution have been met and it has been a public debate. It
has been a constitutional discussion on this.
Also, I would like to add that originally, when we adopted
our--(inaudible)--constitution, we had a survey of 7 million
voting-rights members of the Hungarian society, has been
consulted by 12 different questions about the future
constitution. This has been a nation rife with consultation, 1
million responses have arrived--(inaudible).
Back to the Fourth Amendment: The Fourth Amendment on the
request of the Court and not against it, as some critics
misleadingly claim. In fact, they do not understand what really
could be here the problem. The recent bombastic headlines and
judging editorials of certain newspapers failed to underpin
their argument 'til now, and they are misleading the public.
There are some new elements as well in the Fourth
Amendment, and these follow: All assertions to the contrary,
the--notwithstanding the Fourth Amendment does not reduce the
powers of the Constitutional Court, but it does--it's exactly
the opposite. It adds additional authorities to those having
the right to turn to the Constitutional Court. It repeals the
rulings of the Court passed under the previous constitution,
but as specified by an additional amendment before the final
vote, the Court shall remain free to refer to its own previous
case-law in its future jurisdiction.
Contrary to noisy criticism, the amendment does not strip
the Court of the power of review and annul the Constitution
text itself or its amendments, since in Hungary, during this
existence for two years--for two decades--the Constitutional
Court never had that power. So we couldn't take it off. My
definition of the separation of powers is that the Court
interprets but does not legislate the text of the Constitution.
In fact, the Fourth Amendment extended the power of the Court
explicitly, giving the right to scrutinize the
constitutionality of the procedure of amending the
Constitution, which is a widening of the rights of the
Constitutional Court and not narrowing.
Expressions of anti-Semitism and racism are and should be
cause for concern for every democrat. Even though the
phenomenon is not new and unfortunately widespread all over
Europe, Hungary is not an exception in this respect. Each and
every such incident in my own conviction and the Hungarian
government's conviction is deplorable and cause for more
determination to eliminate them. Prime Minister Orban has
confirmed in Parliament that the government shall protect every
citizen equally, including those who belong in minorities, and
the government will defend every Jewish citizen of Hungary.
The only Roma member of the 750-odd members, European
Parliament, Livia Jaroka, citizen of my great home city,
Sopron, was elected on the list of Fidesz. The only one of an
ethnic community numbering about 10 million in Europe, it comes
from Fidesz. It was under the Hungarian presidency of the
European Union that the first European Roma strategy was
adopted. In the Fourth Amendment, we choose to lay the
constitutional grounds for a single procedure open for any
person in case his or her religious, ethnic or national
community should be seriously offended in dignity.
So in the case you mentioned, Senator, about Zsolt Bayer,
in the case of Zsolt Bayer, after this amendment passed, there
will be a legal instrument and every Roma, every single Roma
person can claim in a civil procedure a remedy from this person
who is making such a deplorable statement. This is an
instrument and strong, long legal instrument against hate
speech for decades demanded by the different Jewish and ethnic
communities in Hungary. Rabbi Koves, leader of the United
Hungarian Jewish Congregation, called the relevant article of
the draft Fourth Amendment, and I quote, historic step forward
in this defense of the dignity of the communities.
Our policy is consistent with our unambiguous relations in
the past. It was the first Orban government which founded the
Holocaust Memorial Center in Budapest, and included a special
Holocaust Remembrance Day for the first time in the curriculum
of high schools. Yet, the latest shining evidence is the
international Wallenberg Memorial Year in 2012, launched by the
second Orban cabinet.
The time allotted to my testimony, Mr. Senator, may not be
long enough to address all your points raised, but I encourage
you to look at the amendments closely. We could dismiss your
worries in the past in the case of the Media Law, the Law on
the Judiciary, and I can cite many other examples. We welcome
your criticism if based on facts and arguments. Foreign
Minister Martonyi had requested the Venice Commission to give
its opinion on the Fourth Amendment. We abide by the rules of
the European Institution and expect the same from others.
However, there should not be double standards. I'm deeply
convinced that in a constructive dialogue, we can enrich each
other's constitutional experience and thus avoid unfounded
accusations and disagreements arising from misunderstanding.
For more details, information to make your judgment, I
brought you another book, which has been written together with
my colleague here on my left, on the background of the new
constitution of Hungary. It's titled Conversations on the
Fundamental Law of Hungary. We also opened the Hungarian
Constitutional Library on Amazon.com in English language.
Let me close my remarks with the first line of our national
anthem, hence, the first line of our new constitution: God
bless Hungarians: ``Isten, aldd meg a magyart.''
Mr. Cardin. Well, once again, thank you for your--for your
being here. And thank you for your testimony. We appreciate the
information you're making available to the commission.
First, let me make an observation and I have a few
questions. For a democratic country, the first election is
always a challenge to have a free and fair election after
you've been under the dominance of communist regimes. It's
always a challenge, but the great test comes in the second,
third and fourth elections, as to how you treat the opposition
and how you establish an ongoing way to deal with the
government and with opposition and different views and how you
respect the rights of all people, including those who oppose
the government itself. That's the real test of a democracy.
And therefore, the laws that you look at today need to be
laws that protect all of the people of Hungary and not just the
ability of a ruling party to be able to pass laws and their
policies. And that's one of the reasons that some of these laws
give us real pause. Let me mention a few and get your response.
You mention in your written statement that the freedom of
the press--the laws that you passed--that you are not aware of
any case of censorship or harassment of journalists. We
understand that ATV, a private television station, was warned
by the Media Council in February that if ATV characterized the
far-right extremist party, Jobbik, as far-right in their
broadcasts, that they could be fined.
Now, I would like to get your view on that. But I can tell
you, those types of statements have real chilling effects on
the freedom of the media, which is a critical ingredient of a
democratic state.
Mr. Szajer. I didn't have the time in my previous statement
to go on the--on the freedom of the press. Also, I would like
to say that the media law and the correction of the media law
was by the consultation with the European Commission on one
hand, and later on, by the constitutional court decision it
also shows a success story about how we can correct and normal
conversation--we can finally end up--end up to a--to a
satisfactory result.
The European Commission started an infringement procedure
concerning the media law, and finally, the Hungarian government
and the Hungarian parliament changed the media law accordingly
addressed exactly the questions which is why there is a wide
debate in every country. If you see the debate in the United
Kingdom about what are the limits of the freedom of the media,
is very clear.
I have no knowledge of any fines taken on any media in
Hungary. The Hungarian media, if you read it--there are some
web pages which are translating Hungarian daily newspapers on
the daily grounds. On that, you will see that anything could be
said about the Hungarian media, but not that it's--cannot
express anything. The Hungarian style, anyway--it's a very
vivid and open style, which means that we are not hiding our
views. We are--we like to speak directly.
I also would like to address that maybe even the Helsinki
Commission has failed to address the Hungarian social
government after the third election or the fourth election
concerning human rights or media regulations. There was a time
in Hungary--a not very long time ago--only eight years ago,
when every single newspaper had a background of some kind of
socialist ownership, which was one side of the political
spectrum. Even the biggest center-right newspaper was in the
hands of--directly entrepreneurs connected to the socialist
party. The situation is much more balanced now, and for that
reason, the Hungarian media is very open and clear. There is a
competition there, both on the market and both of the ideas.
Mr. Cardin. We don't really take a position on the leaning
of any particular media group, but what we will fight for is an
open, free media that can feel free to investigate and do
reports without fear of intimidation. And if there are threats
or fines, that has a chilling impact on independent reporting.
I would appreciate if you would investigate what I just said or
at least look into what I just said, because the rule of law is
not just the laws that you pass, but how you implement those
laws. And if there is a feeling that you cannot operate an
independent press, then there's a concern. And there's at least
some who believe that's the case in Hungary.
But let me move onto the second point. You mentioned you
received the advice of the Council of Europe in regard to the
media law. I have some information as to what they think about
your religious--
Mr. Szajer. Commission--European Commission----
Mr. Cardin. European Commission.
Mr. Szajer. Not the Council.
Mr. Cardin. I have the Council of Europe--excuse me on
that--on your religious law, where they say that the act sets a
range of requirements that are excessive and based on arbitrary
criteria with regard to the recognition of a church--in
particular, a requirement related to the national and
international duration of a religious community and the
recognition procedures based on a political decision should be
reviewed. This recognition confers a number of privileges to
churches concerned. The act has led to the deregistration
process of hundreds of previously lawfully recognized churches
that can hardly be considered in line with international
standards.
Finally, the act induces, to some extent, an unequal and
even discriminatory treatment of religious beliefs and
communities depending on whether they are recognized or not.
That's from the Council of Europe. Any comment?
Mr. Szajer. Chairman, if you allow me one sentence still on
the previous subject, that any decision of the Media Council is
subject to court review in Hungary. So if you are not satisfied
with the decision, you can go there, and there is a bill where
you can go through all of this process.
On the--concerning on the religious communities, I think
it's a very big and great misunderstanding. The paragraph which
is dealing with media--with religious freedom in Hungary states
nothing else than your constitution or several constitutions of
the world--the charter fundamental rights of the European Union
states, that every single citizen, individually or
collectively, has the right to exercise their religion publicly
or in their home, which means that--this is what your
constitution says. It doesn't go farther than that.
However, the European system--and I think the
misunderstanding comes from this point. The European system is
not about whether an individual or a community can exercise--
whether it can exercise or not their religion in--individually
or in a community, but in the European system, it's whether--
about--they have some additional rights, whether they are
entitled to some taxpayers' money, which means that the media--
the church law in Hungary is not really about church freedom. I
understand that the basis of the first amendment in this
country--it's even prohibited to regulate any religion because
of the--of the ban like this.
In Hungary, this is also--every single community, let it be
whatever. I am not giving examples, because that always leads
to--but any community and any individual can exercise this.
There is no restriction of any on this right. What the state,
in the church law, introduces as a procedure is a recognition--
as a--as a religious community, which has some extra claims by
cooperating with the state and getting state money--getting the
taxpayer's money as a support for paying their priest, for
having their charity organization and so on. And so the church
law is going beyond that, and the church law is a normative
law, so you cannot apply it arbitrarily.
And why--two-thirds majority in the Hungarian parliament is
something which is exactly the guarantee of the right consensus
needed on--concerning churches.
I also would like to add that in the neighboring countries,
the same recognition process--religious communities becoming
churches which are supported by the state, is, in number, much
less. Austria has much less, Slovakia has less state--less
churches. Hungary has, at the moment, 34. Romania has less, and
several European countries have less recognized churches like
that.
So we have various regulations in European countries in
which the Hungarian is the most accepting--the most open system
which is a public system, and the transparent procedure--how do
you recognize, not as a church--a religious community--as a
church, but as a religious community which is entitled to
taxpayer money.
I think the big misunderstanding here lies here. This is
about taxpayer money. It's not really a church law. It's church
financing law, which doesn't exist in this country, because
it's prohibited by the first amendment of your constitution.
Mr. Cardin. I thank you for that explanation, but I still
believe the discriminatory treatment of one church versus
another is of concern. Each country has a different set of
circumstances--its relationship to the faith community, but
discrimination against one church versus another is an issue of
concern, and I take it it is correct to say that this law did
deregister hundreds of previously lawful churches in Hungary?
Is that accurate?
Mr. Szajer. Yes, and the reason is that the state doesn't
want to provide taxpayers money for, for instance, business
religions--for religions which are doing only business. So they
are free to exercise their religious activity--their faith,
because that's the first sentence of our constitution, but they
are not recognized as churches which are entitled for
taxpayers' money. This is the difference.
However, it also comes to your statements, Senator, to the
question of double standards, which I think we have to be very
careful. In Europe, there are several countries--and I don't
name them, because we all know, in this room which they are--
they have state religions. They have state religions, which
means that the state religion has extra and specific rights
over other churches. They are coming from history, but the
Hungarian system, I can assure you, is not discriminatory. The
constitutional court had a decision on this and gave
guidelines, and a new amendment--the fourth amendment made
clear how the differences between religious exercise of our
religion in community and the cooperation with the state, which
involves taxpayers' money.
Mr. Cardin. I understand that point. The other area that
just doesn't look well is that, as I understand it, to become
registered under the law--if you're not registered, you need a
two-thirds vote of the parliament. Is that correct?
Mr. Szajer. No, no. There is a procedure in which a
religious community--which is an existing religious community,
can ask the recognition as a church, and so, entitled for
cooperation or benefits from the----
Mr. Cardin. And that requires a two-thirds vote of the
parliament?
Mr. Szajer. That requires a two-third qualified vote in the
Hungarian parliament in order to recognize a church for that.
But the fourth amendment introduces and acts on the request of
the constitutional court that, on procedural basis, there is an
opportunity to have a review of that in the constitutional
court, so you can appeal against this decision--on procedural
basis--to the constitutional court, which--it built in an extra
guarantee to the process, because that's what the
constitutional court was missing.
Mr. Cardin. Which, of course, brings me to the fourth
amendment, and our concern about the independence of the
judiciary. You said that you processed that law and put it into
effect because you were requested to by the court, yet I
understand the former chief justice of the constitutional court
and the former president urged the current president of Austria
to withhold signing the fourth amendment. Any reason why the
former chief of justice would have concerns that the----
Mr. Szajer. I am not aware of Hungary's conflict with
Austria, and that might be a hundred years before. I don't
understand the question.
Mr. Cardin. Well, we're concerned about an independent
judiciary. You've mentioned several times appeal to the
courts--the courts can do this----
Mr. Szajer. But how does it come to Austria?
Mr. Cardin. (Off mic)----
Mr. Szajer. We are hearing on Hungary.
Mr. Cardin. Did I say Austria? I meant Hungary. I'm sorry--
my apologies.
Mr. Szajer. Well, on the--what concerns the independence of
the judiciary--there are no new rules concerning--in this
fourth amendment, concerning the judiciary. All the rules which
are included are copied and pasted from the provisional, the
transitional provisions of the constitution, which had been
adopted in 2011. And in 2011--since 2011, the European
Commission, the Council of Europe, the Venice Commission all
studied in very big details--detailed judiciary.
And the day after, the Hungarian parliament voted on the
fourth amendment of the constitution, they voted also on the
amendment to the judicial law, which included, basically all
the catalog--all the list of which the European Commission
demanded. The European Commission made a statement on Tuesday,
which was a week ago, about--that they were studying, but on
the first glance, they see that it complies with the request
which has been made. There are no new rules in this sense. All
the rules which are now incorporated in the constitution, as I
said--it needed to be taken over from the provisional. Just, if
you ask my view on that, I don't think that this German concept
of incorporation obligation is something which Hungary should
apply. Sweden has four constitutions, Austria has two. So there
are pieces. But that was the constitutional court, and we abide
with the rules. But this incorporation concerning the judiciary
and the judiciary review is nothing new in there.
What your concern might be about signing the new
constitution--the former president of Hungary and the former
president of the constitutional court was asking the current
president for something which is not in line with our
constitution. I would say he was asking for something which
would be unconstitutional if the president--if President Ader
would be signing this--would be sending this amendment to the
constitutional court--the constitutional court should have said
that it comes from someone who is not entitled to do that,
because the constitutional authority in Hungary is not divided.
The constitutional authority stands for the legislator, and
that's--so in the last 24 years, in Hungarian constitutional
history.
Mr. Cardin. Well, I very much appreciate your explanation
in filling in the blanks on these issues. I would just point
out that the view of the international community--the view of
the--of Europe and the United States--when we look at the
changes that you've done to the judiciary, the changes that
you've in your religious laws, the changes that you've made in
your media laws, it gives us concern, because we are looking
beyond the current ruling party. We're looking at how this
framework will work for Hungary's future. And we see the
potential of real problems.
So I would just urge you, since you seem very willing to
seek the advice of Europe and the advice of your friends, to
look at our concerns--and we'll be glad to make sure that we
follow up and give you more information on this--that it is--it
presents some real serious concerns that your fundamental
document--the Constitution--could become a real problem in the
future democratic course for Hungary.
I want to end on one additional question. And you commented
that all Hungarians have the protections, whether they are
Roma, whether they are Jewish--all have the protections of the
law and will be protected by the government.
I very much appreciate that statement. It's a very
important statement, and coming from you, it's a--it means a
lot. And I mean that sincerely.
I do point out that the Helsinki Commission here in the
United States has invested a great deal of our attention to
dealing with anti-Semitism, the problems of anti-Semitism, the
problems of xenophobia, anti-Muslim activities, the tolerance
agenda. We are very proud that we now have special
representatives within OSCE that look at best practices in
countries and try to provide assistance to promote better
understanding and protection for minorities in all countries of
the OSCE and beyond the OSCE itself.
And one of the leading recommendations is to exercise
leadership. I remember very vividly, when there was a tragedy
in Turkey--the bombing of a synagogue--and the president of
Turkey went to the synagogue and showed solidarity with the--
with the Jewish residents of Turkey, that was a huge signal
about--the government would not tolerate that type of
discriminatory action. When we see, in Hungary, government
officials embracing individuals who are known for their anti-
Semitism and their anti-Roma activities, it is just the
reverse. It is a signal that the government really doesn't care
about those issues.
And then, it allows for more extreme activities within that
country to be accepted. Leadership becomes very important, and
the government has a responsibility to exercise leadership. In
Hungary today, we are concerned because we don't see that clear
direction by the leaders of the government--the consistent
direction that you will not tolerate discriminatory actions
against any Hungarian or a person from the Roma community,
Jewish community--any community, and that you will stand up
against those who promote that type of extremism to question a
person's loyalty based upon their blood as to whether they're
Hungarian. That activity needs to be condemned at the highest
levels, and we don't see that.
Mr. Szajer. Honorable chairman, may I answer in two parts?
The first is for your comment that you viewed major--and the
magnitude of the changes in Hungary with some concern. And I
fully understand that. Sometimes, myself--I work in Brussels in
the European parliament. I follow the events in Hungary, but
sometimes myself lose the track of speed by which these changes
are there.
But I would like to remind you--and I mentioned it briefly
in my original statement--that Hungary was a country at the
brink of bankruptcy in 2010. You really had to start from
scratch to build up the new country, and you had to start from
scratch from the foundations with the new constitution, and
then, dozens of new cardinal laws to make this country
economically, socially work. The reason for changing the
judicial system is not of gripping power over the judicial, but
because, in Budapest, in order to have your first hearing in
your very simple case--in a court case, you have to wait a
couple of months--dozens of months in order to have your first
time. So, the reason for the judicial review--or the changing
of the judicial system is making it more effective.
There has been criticism that the--that the court's
procedure of the Roma killings under the previous government
has been too slow. Yes, I agree, and I am also very much
unsatisfied with what's happening there. But exactly this is
why we are changing our court system--in order to make it a
modern, efficient judiciary. No one in the last 60 years has
made those efforts.
You have to--your institutions when you are financing it by
public money, they have to work. They have to provide the
citizens the necessary service. This was not the case in 2010.
Corruption, delays, bankruptcy--Hungary almost went bankrupt.
We had to go to the IMF for a--for a quick relief--and so on,
so which means that because the country was in so deep
difficulty and crisis, you had to use and restart it as you
here used the reset button. We pushed the reset button, and
sometimes you do not know why something is happening because
things are connected. But after the time--after you study--and
this is why I really recommend you the books which I was
bringing you and I also would like to ask the letter of our
ambassador to--on the Freedom House to include in their--in the
minutes of this meeting----
Mr. Cardin. Without objection.
Mr. Szajer.--That I provided for you which gives more
detailed information on these issues on that. But that we
should do. This is why I said that on our work, on our laws,
there is a very big burden of responsibility to taking over and
changing the country. Our mandate is like that. In Hungary, it
borders impossible to get to certain majority, but people were
so much unsatisfied with the current situation that they wanted
change, they wanted big change, and this is what we are doing.
Concerning anti-Semitism and the Roma, well, first I would
like personally express--maybe let me start on a personal note.
I am not of Jewish origin but many people in the media for
whatever reasons, they presume that I am. And I was subject--in
the media, in the public sphere, in the Internet--subject of
anti-Semitic statements myself. So, personally, I also cannot
accept and tolerate any kind of intolerance, any kind of racist
or anti-Semitic motives because I know how to be--what to be
the victim of that.
In Hungary, there are living hundreds, thousands of people
of the Jewish community whose ancestors and whose family had to
survive Holocaust. This is why our President Ader went to the
Knesset to express the share of the responsibility of the
Hungarian nation just a few months ago and also to recognize
that. This is why the prime minister said what I--what I
mentioned, that we defend every Hungarian citizen. But all the
things--and it has been refuted on the highest level--Deputy
Prime Minister Tibor Navracsics has made a very clear statement
about the statement of Zsolt Bayer which is a deplorable
statement which cannot be accepted in a democratic society. So,
in that sense, I think the Hungarian government's stance is
clear and I agree with the previous speaker here in this place
which said that the government is not part of that. And we are
not permissive in this area. I don't think that we can afford
that because we are not thinking--Fidesz has never been a party
which was conducting these anti-Semitism--any kinds of this
ideas.
We were founding our organization 25 years ago under the
communist system exactly in order to fight this kind of thing.
So, in that sense, your concerns are right because in every
society there are people who are anti-Semites, who are racist
but we have to do the most in order to eliminate and diminish
the number of those. I think on this grounds, if we start our
cooperation and our observation of the Hungarian constitution
and the constitutional order and the rule of law and separation
of powers and checks and balances, this could be a good and
very firm foundation, and I assure you that the Hungarian
government will be always partner on this--not only on the
symbolic issues but also on the ground.
Mr. Cardin. Well, I think that was a very fine summary, one
I completely agree with. As I said in my opening comments
there's no--that we understand that the ruling party is an
inclusive party. That, we fully understand. What I asked for
was leadership against those who do things that are
inappropriate. Not in your government but in your society. We
hope they're not in your government; they're not in your
government.
There are--we don't want to legitimate or give greater
credence to those who would affect the rights of all of your
citizens. But I must tell you I think the--your colleagues have
chosen the right person to study the system we have here, as
far as how hearings are going. You did an extremely effective
job. So, I know that you'll take back that experience to
Europe, and I look forward to continuing this dialogue and this
exchange. The Helsinki Commission is set up as the implementing
arm for the OSCE commitments. And as I said, we very much want
to work with our friends in areas that we have concern. And we
are--we raise issues not just in Hungary; we've raised issues
in the United States of America where we think we're out of
compliance with some of those standards.
So, we very much appreciate your participation here because
it did fill in the blanks in many different areas and we look
forward to the continuation of this dialogue. And it's been a
pleasure to have you before the commission.
Mr. Szajer. Chairman, I know it's very unpolite, but I have
to say this--that, first, I has been always open to this--I
know your colleagues, basically many people in this room--
consultations. We very rarely get this kind of occasion that we
can state our positions. Normally you hear our views with
second-hand or third-hand or fourth-hand or non-hand; just some
kind of headlines.
And I appreciate any kind of dialogue in Hungary, in the
United States, because I am deeply convinced that the Hungarian
democracy is a strong democracy and we are--Fidesz is a strong
democratic party committed to democracy, to rule of law, checks
and balances. This is our conviction for 25 years. This is why
we founded our organization at that time. And we didn't change
it. The circumstances, however, changed. There are very big
difficulties in my country. It's not easy to govern a country
from the brink of bankruptcy. And for that reason, I really
would like to ask you and encourage you to create more
occasions than we can speak directly with each other on these
issues to avoid misunderstandings which lead us to bitter
disillusionment. Thank you very much.
Mr. Cardin. I think that is a very good suggestion and I
look forward to those types of meetings and to continue to
strengthen the ties between our countries. Thank you very much.
We have a third panel. It will consist of Dr. Kim Lane
Scheppele, an expert on constitutional law from Princeton
University; Ms. Sylvana Habdank-Kolaczkowska from Freedom
House; and Dr. Paul Shapiro from the U.S. Holocaust Memorial
Museum.
I thank the three of you for your being here but also for
your patience. We don't normally have three panels but it was
a--I think particularly appropriate that we had a panel from
the country involved. So, we'll start with Dr. Scheppele.
KIM LANE SCHEPPELE, DIRECTOR, PROGRAM IN LAW AND PUBLIC
AFFAIRS, PRINCETON UNIVERSITY
Ms. Scheppele. Ah, yes, thank you. I am honored to testify
before you today. My remarks will be short; I have much longer
written testimony that I would like to enter into the record.
Ms. Cardin. Without objection. We'll take--all three of
your statements will be made part of the committee record.
Ms. Scheppele. Great, thank you. I am here today because
the current Hungarian government has felled the tree of
democratic constitutionalism that Hungary planted in 1989.
Since its election in 2010, the Fidesz government has
created a constitutional frenzy. It won two-thirds of the seats
in the parliament in a system where a single two-thirds vote is
enough to change the constitution. Twelve times in its first
year in office it amended the constitution that it inherited.
Those amendments removed most of the institutional checks that
could have stopped what the government did next, which was to
install a new constitution. The Fidesz constitution was drafted
in secret, presented to the parliament with only one month for
debate, passed by the votes of only the Fidesz parliamentary
block and signed by a president that Fidesz had named. Neither
the opposition parties nor civil society organizations nor the
general public had any influence in the constitutional process.
There was no popular ratification. This did not stop the
constitutional juggernaut.
The constitution--the government has amended its new
constitution four times in 15 months. Each time, the government
has done so with the votes of only its own political block,
rejecting all proposals from the political opposition or from
civil society groups. So, the current Hungarian constitution
remains a one-party constitution.
We've talked already about the fourth amendment passed last
week. It is a 15-page amendment to a 45-page constitution.
Laszlo Solyom, mentioned earlier, the conservative former
president of the Hungarian constitutional court and of the
Republic of Hungary, has said in conjunction with the fourth
amendment that it removes the last traces of separation of
powers from the Hungarian constitutional system. Under cover of
constitutional reform, the Fidesz government has given itself
absolute power. It now has discretion to do virtually anything
it wants, even if civil society, the general public and all
other political parties are opposed. The importance of divided
and checked powers is of course well-known--was well-known to
the American constitutional framers. James Madison wrote in
Federalist number 47: ``The accumulation of all powers
legislative, executive and judiciary in the same hands, whether
of one, a few or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very definition of
tyranny.''
By James Madison's definition, Hungary is on the verge of
tyranny. To demonstrate this, we should start with the basics.
Hungary has a unicameral parliamentary system of government. A
unicameral parliament has no upper house to check the lower
house, no senate to complicate life for the house of
representatives and vice versa; a parliamentary system means
that the most powerful executive--that is the prime minister--
is elected by the parliament rather than by the people. As a
result, the prime minister in Hungary is guaranteed a majority
for all of his legislative initiatives.
In 1990, the primary check on this system since that time
has been the constitutional court. Unlike a supreme court,
which is the highest court of appeal in the legal system, as we
know in the United States, a constitutional court is the only
court that is allowed to hear and decide constitutional
questions. And it does nothing else besides rule on
constitutional matters. Because the Hungarian constitutional
court conducts the primary oversight in a system that has
little formal separation of legislative and executive power, it
is even more important than the Supreme Court is in the United
States. But the Fidesz government has neutralized that court's
ability to provide that check.
Before 2010, the procedure for electing judges to the
constitutional court prevented the court from being captured by
any one political faction. But Fidesz changed the system for
electing constitutional judges so that now only a single two-
thirds vote of parliament is sufficient to put a judge on the
court. And, of course, they have the two-thirds. Fidesz also
expanded the number of judges on the court from 11 to 15, which
gave the governing party four more judges. Think of Roosevelt's
court-packing plan, only it worked in Hungary.
Between changing the process for electing judges and
expanding the number of judges that could be elected by this
government, the Fidesz government has been able to elect, as of
next month, nine of the 15 judges on this court--all with the
votes of only its own parliamentary bloc, although actually
Jobbik voted for a couple of their judges.
But even if the court is in Fidesz-friendly hands, a
powerful court might still be dangerous to a government that
shuns checks on its freedom of action. So, the jurisdiction of
the court has been cut. Mr. Hartley already mentioned that the
power of the court to review budget and tax laws has been--has
been cut back so that now the court may never review budget and
tax laws passed when the national debt is more than 50 percent
of GDP, which will be true for a long time.
So, let me give you a couple of examples. If a tax law
passed this year infringes an individual's or a corporation's
constitutionally guaranteed property rights or if such a tax is
applied selectively to particular minority groups, there is
nothing the constitutional court can do in perpetuity. And this
opens up a space for the government to violate many personal
rights without constitutional oversight.
The fourth amendment has also removed from the court the
power to review constitutional amendments for substantive
conflicts with constitutional principles. Mr. Szajer emphasized
that actually the court was given the power to review
amendments procedurally, which is a power it already had. So,
at least that power is confirmed. But its ability to review
amendments for substance has now been taken away.
So, for example, to give you just a couple of examples of
things that have just happened, if the constitution provides
for freedom of religion but a constitutional amendment requires
a two-third parliamentary vote before a church is officially
recognized--which has already happened--the court can't review
that because it's now in the constitution. Or if the
constitution says anyone may freely express her opinion, but an
amendment--for example, one added last week--says that no one
may defame the Hungarian nation, nothing the court can do. So,
the government can now bypass the constitutional court whenever
it wants by simply adding something to the constitution.
The fourth amendment also annuls the entire case law of the
constitutional court from before the constitution came into
effect. No other court in the world has ever had its whole
jurisprudence cancelled in this way, even when a new
constitution was written.
Just to put it in the American context, imagine if the
framers had decided to nullify the whole common law before
proceeding. It just cuts the ground out from under things that
were legally taken for granted. As you know, the independence
of the ordinary judiciary has also been compromised. The Fidesz
government lowered the judicial retirement age which knocked
out the senior-most 10 percent of the judiciary--
disproportionately the leadership. So, 20 percent of supreme
court justices and more than half of the appeals court
presidents were removed from their office in that way. Both the
constitutional court and the European Court of Justice found
against Hungary on that matter. And at first the government
defied those court judgments before finally agreeing to
reinstate at least some of the fired judges. But by the time
the judges were reinstated, all of the court leadership
positions were filled with new judges, which meant that when
the old judges were taken back, they were taken into much less
important positions.
So, how were those judgeships filled? The government
created something called the National Judicial Office, which
has a president who single-handedly has the power to hire,
fire, promote, demote and discipline all judges without
substantive check from any other institution. Just this one
person. And the Venice Commission has expressed an
extraordinary amount of concern over this issue. And so the
leadership of the--of the judiciary has been replaced by this
one person who, not surprisingly, was elected by a two-thirds
vote of the Fidesz parliament. The president of this office
also has the power to take a case and to move it to any court
in the country other than the one that the law would normally
assign it to. And as you've heard, one of the government's
defenses of this is that this is supposed to speed up the
processing of cases. But this rationale is belied by the facts.
From public sources, I have been monitoring the movement of
these cases in the first year that the president of the
National Judicial Office has had this power. She has moved only
a few dozen cases away from the courts--and these are courts
that have thousands of backlogged cases. And she has moved
these cases not to the least crowded courts in the countryside
but to other courts that also have backlogs. So, while my
statistics cannot reveal the motivation of the government, they
can show that the government is not moving a substantial enough
number of cases to make a different in waiting time and they
are not moving cases from the most to the least crowded courts.
I'm happy to make the data available if you would like to see
it.
So, in addition, we're worried as well about the electoral
framework because the legal framework for the 2014 election a
year from now is still in flux. The Fidesz parliamentary
majority has already enacted two election laws over vociferous
protest from opposition parties. These laws gerrymander the
districts for the next election. And it's not just a typical
American gerrymand, which happens one state at a time, but this
is a national gerrymand. And, moreover, all of the boundaries
of the electoral districts are put in a law that it will take a
two-thirds subsequent vote to change. So, it's going to be very
difficult to undo.
The new law also eliminates the second round of voting for
single-member districts, which allows, for the first time,
candidates without majority support to win a parliamentary
seat. And these changes keep doing. In fact, the election
system is not fixed. The fourth amendment actually created a
constitutional ban on political advertising during the election
campaign in any venue other than in the public broadcast media,
which is controlled by the all-Fidesz media board.
There's much more I could say. My testimony--my written
testimony says a lot more. And so what I would like to do is
just say something about what I think might be done in this--at
this intersection. The Hungarian government vociferously claims
that it is still a democracy because the political parties
freely organize for democratic elections. But its critics are
concerned that the government presently controls the media
landscape, has enacted a number of legal provisions that
disadvantage opposition parties, and continues to change the
electoral rules. The OSCE, which is a specialist in election
monitoring among other things, should insist that the electoral
rules be fixed far enough ahead of the election so that all
those who want to contest the election have a reasonable amount
of time to organize themselves accordingly.
In addition, the OSCE should also fully monitor the 2014
Hungarian parliamentary elections. This should not--this should
include not just election day or long-term monitoring missions.
The comprehensive changes in the constitutional framework
warrants an early needs assessment mission, one that can fully
review the effects of all the changes to Hungary's electoral
system.
Of course, as we've heard here, the U.S. government shares
with Hungary membership in both the OSCE and in NATO. Under
both of these organizations, Hungary and the U.S. have together
committed to a series of democratic principles and human
rights, and this gives, I think, the U.S. some substantial
interest in monitoring these things.
But the U.S. government should also be aware that under
pressure, the Fidesz government in the past has promised minor
changes to its comprehensive framework--changes that have not
in fact addressed the most serious problem, and that most
serious problem is concentration of political power in the
hands of one party.
The U.S. should resist entering the battle of competing
checklists of constitutional features. The Hungarian government
also insists that some other European country has the same
individual rule that its friends criticize. Perhaps in this
connection we should remember Frankenstein's monster, who was
stitched together from perfectly normal bits of once--of other
once-living things but who nonetheless was a monster. No other
constitutional democracy in the world, let alone in Europe, has
the combination of features that Hungary now has.
We might also say--and this came up actually in the first
panel--that other countries in Hungary's neighborhood are
looking with great interest at what Hungary is doing. They can
see that the EU, the Council of Europe, the OSCE, NATO and the
United States have limited ability to persuade a country to
change its domestic laws. Hungary's neighbors understand that
Hungary's getting away with consolidating all political power
in the hands of one party, and many find that enticing.
Troubling recent developments in Romania, Bulgaria and Slovenia
show that the Hungarian disease could spread if the U.S. and--
if the U.S. and its European allies don't stand up for their
values in the Hungarian case.
In closing, then, I would strongly urge the United States,
the U.S. Helsinki Commission and the OSCE to take Hungary
seriously, engage with the Hungarian government on matters of
constitutional reform and work toward ensuring that the
channels of democratic participation remain open in Hungary so
that the Hungarian people retain the capacity to determine the
sort of government under which they will live. Thank you.
Mr. Cardin. Well, thank you very much for your testimony.
Ms. Habdank-Kolaczkowska.
SYLVANA HABDANK-KOLACZKOWSKA, DIRECTOR FOR NATIONS IN TRANSIT,
FREEDOM HOUSE
Ms. Habdank-Kolaczkowska. Thank you very much. Thank you
for this opportunity to appear before the commission and
discuss recent developments affecting civil society in Hungary.
Freedom House's annual Nations in Transit report, which
focuses specifically on democratic governance in post-communist
world as well as our global surveys Freedom in the World and
Freedom of the Press, have all drawn attention to the
vulnerabilities and potential threats to democracy created by
these legislative changes affecting Hungary's media sector,
data protection authority and judicial system. We remain deeply
troubled by the restructuring and restaffing of Hungarian
public institutions in a way that appears to decrease their
independence from the political leadership. The ongoing use of
Fidesz's parliamentary two-thirds majority to insert these and
really striking array of other legislative changes into
Hungary's only less-than-two-year-old constitution is also
extremely troubling, particularly as some of the measures had
already been struck down by the Constitutional Court.
I was asked to comment specifically on recent Hungarian
media legislation and the law on churches, which I will do
briefly now.
Changes introduced in 2010 consolidated media regulation
under the supervision of a single entity, the National Media
and Infocommunications Authority, whose members are elected by
a two-thirds majority in parliament. A subordinate body, the
five-person Media Council, is responsible for content
regulation. Both the Media Authority and the Media Council
currently consist entirely of Fidesz nominees, and they are
headed by a single official who has the authority to nominate
the executive directors of all public media. The head of the
Media Authority and Media Council is appointed by the president
for a nine-year term. This year, the government responded to
criticism of the appointment process by introducing term limits
for this particular position and minimum background
qualifications; however, these will only take effect when the
current officeholder--when their term expires, six years from
now.
The particular issues of concern to us are the broad scope
of regulatory control and content requirements--for example,
the definition of ``balanced'' reporting--and the lack of
safeguards for the independence of the Media Authority and
Media Council.
Under the revised version of the so-called Hungarian Media
Law, the Media Council is officially responsible for
interpreting and enforcing numerous vaguely worded provisions
affecting all print, broadcast and online media. The council
can fine the media for ``inciting hatred'' against individuals,
nations, communities, or minorities. It can initiate a
regulatory procedure in response to ``unbalanced'' reporting in
broadcast media, though this no longer applies to print media.
All fines must be paid before an appeals process can be
initiated, and under the Media Law, the Media Authority can
also suspend the right to broadcast.
The Media Council is responsible for evaluating bids for
broadcast frequencies. Freedom House applauds the council's
recent decision to grant a license to the opposition-oriented
talk radio station Klubradio for its main frequency, in line
with a recent court ruling. We regret that it took nearly two
years and four court decisions for the council to reverse its
original decision, during which time the radio was forced to
exist on temporary, 60-day licenses, during which time it was
extremely difficult for them to attract advertisers. The
episode has cast a shadow on public perceptions of the Media
Council, even among those who were previously prepared to
believe that a one-party council could function as a
politically neutral body.
In 2011, the Hungarian National News Agency, MTI, became
the official source of all public media news content. The
government-funded agency publishes nearly all of its news and
photos online for free, and allows media service providers to
download and republish them. News services that rely on paid
subscriptions obviously cannot compete with MTI, and the
incentive to practice ``copy-and-paste journalism'' is
extremely high, particularly among smaller outlets with limited
resources. The accuracy and objectivity of MTI's reporting has
come under criticism since the Orban government came to power
in 2010. Under the Media Law, the funding for all public media
is centralized under one body, which is also supervised by the
Media Council.
Now Hungary's Constitutional Court, as we discussed a
little bit, has attempted to push back against some of the more
problematic legal changes introduced since 2010. At the end of
2011, it annulled several pieces of legislation affecting the
media. These revisions, most of which were confirmed by the
parliament in May 2012, represent only a small fraction of
those recommended by the Council of Europe. Moreover, they may
not even prove permanent, given the government's recent habit
of ignoring or overruling Constitutional Court decisions by
inserting voided legislation into the constitution.
This seems likely to be the fate of the law on churches,
which the court struck down last month, but which has already
made a reappearance in a proposed constitutional amendment that
is currently under consideration. The law essentially strips
all but 32 religious groups of their legal status and
accompanying financial and tax privileges. The over 300 other
previously recognized groups are allowed to apply for official
recognition by the parliament, which must approve them by a
two-thirds majority.
It should be noted that the previous regulations were quite
liberal, with associated financial benefits fueling an often
opportunistic proliferation of religious groups over the last
two decades. However, the new law has the potential to deprive
even well-established and legitimate congregations of their
official status and privileges. More fundamentally, the law
represents another instance in which the parliamentary two-
thirds majority has given itself new power over independent
civil society activity. The fact that the parliament will have
the right to decide what is and is not a legitimate religious
organization is without precedent in post-communist Hungary.
As our--as Mr. Szajer has mentioned, many of the areas
targeted for reform by the Orban administration, including
public media, health care, the education system, and even
electoral legislation, were in need of reform long before the
April 2010 elections brought Fidesz to power. No government
until now has felt emboldened or compelled to address so many
of these problem systematically--systematically and
simultaneously. However, speed and volume in lawmaking cannot
come at the expense of quality, which only broad consultation
and proper judicial review can ensure. Nor should reforms
create hierarchical structures whose top tier, again and again,
is the dominant party in parliament. Voters can still change
the ruling party through elections, providing some opportunity
for corrective measures, but the ubiquitous two-thirds majority
thresholds in recent legislation make it extremely difficult
for any future government to tamper with the legacy of the
current administration.
Ongoing economic crisis and political frustration in Europe
are likely to yield other governments that feel empowered to
reject international advice, make sweeping changes that
entrench their influence, and weaken checks and balances,
damaging democratic development for years to come. But such--we
believe that such behavior can be deterred if early examples
like the situation in Hungary are resolved in a positive
manner.
The threats to democracy that Freedom House has observed in
Hungary are troubling in their own right, but they are
particularly disturbing in the sense that the United States has
come to rely on countries of Central Europe to help propel
democratization further east, and indeed to the rest of the
world. The idea that these partners could themselves require
closer monitoring and encouragement bodes ill for more
difficult cases in Eastern Europe and the Caucasus. It's
therefore essential that the United States and its European
counterparts closely coordinate their efforts to address
backsliding in countries like Hungary and support them on their
way back to a democratic path.
Thank you.
Mr. Cardin. Thank you very much for your testimony.
Dr. Shapiro.
PAUL A. SHAPIRO, DIRECTOR, CENTER FOR ADVANCED HOLOCAUST
STUDIES, UNITED STATES HOLOCAUST MEMORIAL MUSEUM
Mr. Shapiro. Thank you, Mr. Chairman. On behalf of the
United States Holocaust Memorial Museum, I'd like to thank the
commission for organizing this important hearing regarding
democracy and memory in Hungary. My remarks today will
summarize some of the main points of my written statement, and
I request that my written statement----
Mr. Cardin. And--all your statements will be put in the
record.
Mr. Shapiro. Thank you.
Over a hundred years ago, philosopher George Santayana
wrote that ``Those who cannot remember the past are condemned
to repeat it.'' In mid-1944, the Jewish community of Hungary
was assaulted and nearly destroyed in its entirety over the
course of just a few months. That--those losses represented one
of every 10 Jewish victims of the Holocaust, one of every three
Jews murdered at Auschwitz. Today the memory of that tragedy is
under serious challenge in Hungary, with consequences that we
cannot yet fully predict but which are certainly ominous.
In my written remarks, I've provided the commission with a
brief summary of Hungary's Holocaust history. Here, just one
minute about this. Under Regent and Head of State Miklos
Horthy, foreign Jews resident in Hungary were deported to their
deaths. Jewish men were forced into labor battalions, where
tens of thousands died. And over 400,000 Hungarian Jews and at
least 28,000 Romani citizens of the country were deported from
Hungary to Auschwitz.
During the months that followed the removal of Horthy from
power in October 1944, the Arrow Cross Party of Ferenc Szalasi
committed additional atrocities. The record is one of immense
tragedy: 600,000 Hungarian Jews murdered out of a total Jewish
population of over 800,000, at least 28,000 Romani victims and
significant participation and complicity in the crime by
Hungarian authorities from the head of state down to local
gendarmes, police and tax collectors in tiny villages.
When one turns to the manner in which the memory of this
history has been treated in Hungary since the fall of
communism, two distinct phases are visible. The first spanned
Viktor Orban's first term as prime minister, 1998 to 2002, when
the coalition government that he led established a National
Holocaust Commemoration Day, brought Hungary into the
International Task Force for Cooperation on Holocaust Education
Remembrance and Research and appointed a commission to create
the Holocaust Memorial and Documentation Center in Budapest.
That center's permanent exhibition is certainly one of the best
in Europe. Socialist Party governments from 2002 to 2010
remained, more or less, on this positive path.
But the appearance in the middle of the last decade of the
openly anti-Semitic and anti-Romani Jobbik Party and the
paramilitary-style Magyar Garda or Hungarian Guard associated
with Jobbik, brought about a change of atmosphere. Symbols
associated with wartime fascism reappeared in public, incidents
of anti-Semitic intimidation and violence increased and anti-
Romani discourse took on an increasingly Nazi-like tone.
An especially noteworthy portent of change occurred in 2008
when the then out of power but still powerful Fidesz Party
failed to join with other mainstream political parties in
forceful condemnation of Jobbik's anti-Semitic and anti-Romani
sloganeering and Magyar Garda intimidation of Jews and violence
against the Romani population.
After Fidesz won the 2010 elections and returned to
government with an overpowering two-thirds majority in
parliament, the warning signs of 2008 proved to be accurate.
Still led by Prime Minister Orban, Fidesz and the Fidesz
government changed their approach to issues of the Holocaust.
In the judgment of some people, this was done in order to
appeal to Jobbik voters. Others were more inclined to see the
change as reflecting accurately the prejudices and actual
beliefs of Fidesz leaders and membership. It was likely some of
both.
Over the past three years, we've witnessed in Hungary
attempts to trivialize and distort the history of the
Holocaust, the development of an atmosphere that has given
reign to openly anti-Semitic discourse in the country and
efforts to rehabilitate political and cultural figures who
played a part in Hungary's tragic Holocaust history. This
deterioration of a once-better state of affairs has predictably
gone hand-in-hand with the broad political trends that the
commission is examining today.
For anyone who is familiar with the history of Nazi
Germany, efforts to impose government control on the media,
efforts to politicize and undermine the independence of the
judiciary and efforts to deprive certain religious groups of
equal status, all echo a past in which propagandistic control
of the media stoked race hatred, perversion of the law led to
lawlessness and mass murder and the de-legitimization of a
religious community led to the persecution and murder of its
members.
Racial violence against the Romani minority in Hungary,
while not perpetrated by the government, has not been
effectively addressed by the government either. And people like
Zsolt Bayer, a founding member of Fidesz, whose brutal anti-
Semitic rhetoric is equaled only by his truly despicable and
incendiary anti-Romani slurs, still finds a comfortable
political home inside the Fidesz Party.
Can a party with truly democratic intentions harbor a
person who recently called Gypsies, quote,``cowardly,
repulsive, noxious animals'' that are, quote again,``unfit to
live among people,'' and who incited violence by a call to deal
with the Romani population, quote again,``immediately and by
any means necessary''? A Fidesz spokesman, with a wink and a
nod, allowed that Bayer had penned his hateful words as a
journalist, not as a member of Fidesz.
With the Fidesz government and change of atmosphere in
Hungary has come an assault on the memory of the Holocaust. And
this has taken four principle forms. Here I will summarize in
respect of my time. First came an assault on the history
displayed at the Holocaust Memorial and Documentation Center.
Series of proposals to change the permanent exhibition were
made by Dr. Andras Levente Gal, the then-new, Fidesz-appointed
state secretary in the Ministry of Public Administration.
The first proposal was to eliminate mention on Miklos
Horthy's alliance with Adolf Hitler and participation in the
dismemberment of three neighboring states. Mr. Gal claimed that
that is irrelevant to the Holocaust. And yet, violation of
post-World War I national boundaries brought war in Europe. War
provided cover for the mass murder of the Jews. And it was
precisely the Jews of the regions that Hitler restored to
Admiral Horthy's Hungary who became the first targets of
deportation and death. Gal's second proposal was to sanitize
the record of Hungarian collaboration in the ghettoization and
deportation of the country's Jews.
Then came the so-called Nyiro affair, and here I cannot go
into detail. But it was the speaker of the Hungarian National
Assembly, parliament, founding member of Fidesz, together with
Hungarian state secretary for culture, also from Fidesz, who
united with the leader of Jobbik to honor posthumously Jozsef
Nyiro, a Transylvanian-born writer and fascist ideologue, who
had been vice chair of the Education Commission in the
murderous Arrow Cross regime and had fled the country, together
with Szalasi, in the final days of the war.
The plan was to rebury Nyiro's ashes in Transylvania, while
attempting to whip up nationalist sentiment among the ethnic
Hungarian minority there, through an elaborate official
funerary procession that would wend its way by train from the
Hungarian border to Nyiro's birthplace, some 200 miles inside
Romania. How did the Hungarian government deal with this
embarrassing incident? Of course, two members of the government
planned it. But there was no rebuke, only a claim, again, that
the planners were acting in their personal, not their official,
capacities.
The third root of assault on the Holocaust has been through
the inclusion of anti-Semites as positive role models in the
national school curriculum, a curriculum that also includes
efforts to relativize the significance of the Holocaust. I
could explain who the anti-Semitic players are. They are in
my--in my extended remarks. The curriculum--so let me address
the second point--the curriculum suggests that teachers treat
the Holocaust and Hungarian military losses at Stalingrad as
equal tragedies.
Now, equating the loss of military forces to an enemy army
in battle with the systematic, racially inspired murder of
civilian men, women and children who were citizens of one's own
country, solely because they were of a different religion or
ethnicity, of course, makes no sense unless relativization and
distortion of the Holocaust is the goal.
Final element in the assault on the Holocaust has been the
attempted rehabilitation of Holocaust perpetrators. The most
emblematic case is the attempted rehabilitation of Admiral
Horthy himself. Someone has already referred to statues of
Horthy, public places being named for him. When asked to take
action to halt the de facto rehabilitation of Miklos Horthy,
the Hungarian government has responded evasively.
The government isn't seeking to rehabilitate Horthy, goes
the standard line. But it's important to realize the Horthy is
a controversial figure and that there's no consensus of opinion
about his legacy. This, of course, leaves the door wide open.
Meanwhile, the government has played to nationalist sentiment,
seeking to purge Horthy's record as Hitler's ally and
glorifying the restoration of Hungary's, quote, ``lost
territories,'' unquote, that Horthy was able to achieve by
alliance with Adolf Hitler.
The government hasn't taken serious steps to research and
more rigorously evaluate Horthy's record of anti-Semitism and
complicity in the Holocaust. In short, the history of the
Holocaust is under assault and the rehabilitation of some of
the people responsible for the murder of 600,000 of the
country's Jews is well under way. It's understood that anti-
Semitic and anti-Romani discourse, and even intimidation and
violence, is not likely to illicit effective government action
to alter the atmosphere or the situation.
So the question is what to do? After extensive
consultations in the United States, in Hungary, and with
members of Prime Minister's Orban's government and the
Hungarian embassy in Washington, U.S. Holocaust Memorial Museum
has encouraged the government of Hungary to take a series of
actions, among them: establish a state-sponsored, international
commission of scholars to prepare a definitive report on the
history of the Holocaust in Hungary, including the history of
anti-Semitism, and to make recommendations to the government
regarding future Holocaust memorialization, education and
research activities; enact legislation to prevent the creation
of monuments, naming of streets or other public sites honoring
individuals who played significant roles in the Holocaust-era
wartime governments of the country; mandate in Hungarian
secondary--in the Hungarian secondary school curriculum that
every student in the country visit the Holocaust Memorial and
Documentation Center in an organized class visit during his or
her final four years of high school education; ensure that the
speaker of parliament consistently applies the recently
established authority of the speaker to censure, suspend and
fine MPs for expressions of racist and anti-Semitic views; and
take whatever additional steps are necessary to prevent ranking
members of government ministries and members of Fidesz from
participating, in either public or, quote, ``private,''
unquote, capacity, in activities that are likely reinforce
racist, anti-Semitic or anti-Romani prejudices or that appear
to rehabilitate the reputations of individuals who participated
in the mass murder of Hungarian Jewry.
Our museum has confirmed to the Hungarian government that
we stand ready to be helpful in ways that our experience or
expertise would allow.
Mr. Chairman, democracy and memory are closely
interrelated. Undermine democracy, and the rights of human
beings deemed to be different are easily violated. Misrepresent
the tragedies of one's national past, and soon it becomes
necessary to control the media, manipulate electoral
mechanisms, dispense with the legal niceties and adopt populist
and jingoist stances in order to stay in control of the story
by staying in power. That outcome is only available in
dictatorships, not in democracies.
Let me close. I appear here today--our museum appears here
today on behalf of 600,000 Hungarian Jews and thousands of
Hungarian Romani who can't be here, their lives snuffed out
through the decisions, prejudices and failures of their
country's leadership, fascist writers and ideologues and their
fellow citizens who are directly complicit in acts of theft,
deportation and murder. In their late name, let me stress that
what happens in Hungary matters.
Some weeks ago Hungary volunteered to assume the chair of
the International Holocaust Remembrance Alliance in 2015. I
would hope that before any decision is taken--to accept or
reject that, the Hungarian government will dramatically alter
the approaches that it has taken in addressing anti-Semitism
and Holocaust issues, reverse the current downward trajectory
and guide Hungary onto a path that is admired and praised
rather than criticized.
Nobel laureate and founding chairman of our museum Elie
Wiesel, who was himself forced into a ghetto by Hungarian
gendarmes and deported with his family to Auschwitz while
Miklos Horthy was regent of Hungary, once wrote: If anything
can, it is memory that will save humanity. Securing the memory
of the Holocaust in Hungary is essential.
Thank you, Mr. Chairman.
Mr. Cardin. Well, let me thank all three of you for your
testimony. I'm not going to have questions because I think your
statements, all three, were very, very comprehensive and very,
very clear and complete the record.
I do want to make a few observations. First to Dr. Shapiro,
I think you gave a very compelling account as to why we have to
be very concerned about what we see happening in Hungary as it
relates to Holocaust and the revisionists in history and
rehabilitation of figures that were involved in the Holocaust.
You cannot accept the fact that a person is doing this as a
person rather than as a government official, and you can't
condone silence. Why--where's the leadership? Where are the
leaders of the country speaking out against these types of
actions? I don't see it. So I think your concerns are very much
warranted for us to be very concerned as to how they will
respond to the points that you raise. So I just really want to
compliment on your complete presentation.
Dr. Scheppele, I want to--I will review with ODIHR and the
parliamentary assembly your suggestions on monitoring of the
elections. I think that is an important point, and we will do
what we can in that regard. I think your comment about this
being a one-party constitution is a very valid point. It's not
a constitution that appears to be aimed at the stability, over
the long term, of a democracy where you're going to have
governments that will change over time as what happens in a
democratic society.
You also point out that the changes that were made in
Amendment Four, as the Hungarians pointed out, were requested
by the courts--well, maybe they were, knowing the type of
courts that were appointed there, but clearly it takes away the
independence of the courts.
And I must tell you, Ms. Habdank-Kolaczkowska, that the--
your point about the media laws incorporating conditions that
are just not reasonable must have a chilling effect. And then
as you said on the religious laws, it's knocked down by the
courts and they're going to put it back in the constitution--it
just shows the failure of the Hungarian government to recognize
an independent judiciary. And that is a real serious concern as
we look at the development of Hungary as a democratic country.
And the point that all three of you have made, that what
happens in Hungary is important in Hungary but it's also
important in Europe, there are so many countries that look to
what is happening in Hungary and say, you know, maybe we should
stack the deck in our favor? And how can the West complain
after all their NATO allies are allowed to do this, so why
shouldn't we be allowed to do this. So I think it is a--very
troublesome developments. And we're going to continue to focus
on this. We're going to continue to take up the offer of
consulting with the Hungarians, and we'll work with our
European friends to point out that these laws do not fit the
type of development that Hungary is committed to doing. And we
will follow this very, very closely.
So again, thank you for all of your comments. They were, I
said, very, very complete and part of our record. And with
that, the commission stands adjourned. Thank you.
Ms. Scheppele. Thank you.
Mr. Shapiro. Thank you.
Ms. Habdank-Kolaczkowska. Thank you.
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Hon. Benjamin L. Cardin, Chairman, Commission on
Security and Cooperation in Europe
The progressive inclusion of post-communist countries into
transatlantic and European institutions reflected the expansion of
democracy and shared values, as well as the realization of aspirations
long denied. Indeed, in 1997, the Helsinki Commission held a series of
hearings to examine the historic transition to democracy of post-
communist candidate countries like Hungary prior to NATO expansion.
I was among the many in the United States who cheered when Hungary
joined NATO in 1999, and again when Hungary joined the EU in 2004--
illustrating not only Hungary's post-communist transformation, but also
Hungary's ability to join alliances of its own choosing and follow a
path of its own design. Hungary has been a valued friend and partner as
we have sought to extend the benefits of democracy in Europe, and
elsewhere around the globe.
But today, concerns have arisen among Hungary's friends about the
trajectory of democracy in that country.
Over the past two years, Hungary has instituted sweeping and
controversial changes to its constitutional framework, effectively re-
making the country's entire legal foundation. This has included the
adoption of a new constitution--already amended multiple times
including the adoption of a far-reaching Fourth Amendment just days
ago--and hundreds of new laws on everything from elections to the media
to religious organizations.
More than that, these changes have affected the independence of
judiciary, role of the constitutional court, the balance of power, and
the basic checks-and-balances that were in place to safeguard
democracy.
It seems to me that any country that would undertake such
voluminous and profound changes would find itself in the spotlight.
But these changes have also coincided with a rise of extremism and
intolerance in Hungary. Mob demonstrations have continued to terrorize
Romani neighborhoods. Fascist-era figures are promoted in public
discourse and the public place. A new law on religion stripped scores
of minority faiths of their legal status as religious organizations
overnight including, initially, Coptic Christians, Mormons, and the
Reformed Jewish Congregation. Most have been unable to regain legal
status, including the Evangelical Methodist Fellowship, a church that
had to survive as an ``illegal'' church during the communist period and
today serves many Romani communities.
At the same time, the constituency of Hungary has been re-defined
on an ethnic basis: citizenship has been extended into neighboring
states on an ethnic basis, and voting rights now follow that.
As the late Ambassador Max Kampelman once observed, minorities are
like the canary in the coal mine. In the end, democracy and minority
rights stand or fall together. If respect for minorities falls,
democracy can't be far behind. And the rights of persons belonging to
ethnic, religious, or linguistic minority groups will likely suffer in
the absence of a robust democracy.
Max Kampelman, who was long a friend of the Helsinki Commission,
served with distinction as the head of the U.S. delegation to the
seminal 1990 Copenhagen meeting, where some of the most important
democracy commitments ever articulated in the OSCE were adopted:
The participating States ``consider that the rule of law does not
mean merely a formal legality which assures regularity and consistency
in the achievement and enforcement of democratic order, but justice
based on the recognition and full acceptance of the supreme value of
the human personality and guaranteed by institutions providing a
framework for its fullest expression. They reaffirm that democracy is
an inherent element of the rule of law.''
At issue now is whether Hungary's democratically elected government
is steadily eroding the democratic norms to which Hungary has committed
itself, in the OSCE and elsewhere. And we care about democracy in
Hungary, for the people in Hungary as well as for the example it sets
everywhere we seek to promote democracy.
I welcome all of our witnesses here today, and I appreciate that
you are giving of your considerable expertise, your insights, and your
time.
I especially appreciate that our second witness, Jozsef Szajer, has
been asked by the Government of Hungary to represent it here today. As
one of the framers of the constitution, we could have no more
authoritative voice on the issues we are discussing and I thank you
from coming from the European Parliament where you serve to share your
views.
Our first witness will be Mr. Brent Hartley, Deputy Assistant
Secretary of State for European Affairs, followed by Mr. Szajer.
Our final panel will include Dr. Kim Lane Scheppelle, an expert on
constitutional law from Princeton University; Ms. Sylvana Habdank-
Kolaczkowska from Freedom House; and Dr. Paul Shapiro from the U.S.
Holocaust Memorial Museum.
Prepared Statement of Hon. Christopher H. Smith, Co-Chairman,
Commission on Security and Cooperation in Europe
Less than a month ago I chaired a hearing on ``Anti-Semitism: A
Growing Threat to All Faiths.'' One of the witnesses was Tamas Fellegi,
a former minister in the Orban government, who is himself Jewish. His
testimony was impressive, as was the long list of significant actions
the Orban government has taken to combat anti-Semitism in Hungarian
society.
Mr. Fellegi admitted frankly that anti-Semitism is a serious social
problem in Hungary. Fortunately, the Orban government is on a clear
upward trajectory here, and gives every sign that it will continue to
be part of the solution rather than the problem. I'm confident it will
particularly take on the persistent attempts to rehabilitate Holocaust
perpetrators and vicious anti-Semites, both from the 1930s and 1940s
and today. I will certainly continue to urge it to do so.
We all know that many NGOs and a few governments, including our
own, have been vocal in criticizing the Hungarian government on various
grounds touching on democracy and human rights--and that the Hungarian
government and its supporters have rejected these criticisms
vigorously.
Having reviewed material on both sides, I must say that I believe
the Orban government is right when it says that many of the criticisms
are unfair, involving double standards, misrepresentations, and
inaccurate information. The Hungarian government has carefully
documented this, for example in its ``Open Letter to Freedom House.''
For another example, the administration, in criticizing the Orban
government's adoption of a new constitution, claims in its written
testimony that in ``fundamental'' matters, ``the process must lead to a
consensus built from a cross-section of society, rather than reflect
only the opinions of the ruling coalition . . . the lack of serious
consultation with different sectors of society, did not honor the
democratic spirit . . .'' Anyone familiar with the passage of the
Obamacare legislation might well question whether this is a message our
government is ideally situated to deliver. Certainly it should have
avoided the rude insinuation about democracy.
Yet these kinds of messages need to be delivered--we must not give
in to the cynicism induced by our own or any other government's
failings.
But we should be a lot more humble--especially when we are dealing
with a country like Hungary, where the system of constitutional checks
and balances is alive and well, where a democratic party with an
unprecedented supermajority and a mandate for dramatic change, gained
in a free and fair election, passed a democratic constitution and shows
itself open to working with others to amend and improve the flaws in
its new laws.
This is a conversation between equals, and there is a lot we can
learn from Hungary. I'm thinking particularly here of the
constitutional cap on public debt and the statement that life will be
protected in the womb.
I'd like to congratulate the Hungarian government for the many
laudable things in the new constitution--many things that advance human
rights, including the prohibition of human trafficking, reproductive
cloning, and its promotion of the culture of life. And for the rest, I
look forward to a continuing conversation with the Hungarian government
about their and our constitutional traditions and how they can both be
improved.
Prepared Statement of Brent Hartley
Thank you, Chairman Cardin and members of the Commission, for
inviting me to join you today. Mr. Chairman, I am well aware of--and
appreciate--your continued interest in events in Hungary. I believe
your interest is warranted. Hungary remains a strong ally of the United
States. Hungary is a member of two bedrock transatlantic
organizations--the OSCE and NATO--which define and defend democracy in
Europe and beyond. However, in the last two years we have been open
about our concerns regarding the state of checks and balances, and
independence of key institutions, in Hungary. The United States has not
been alone in this regard, as the Council of Europe, the European
Commission, other friends and allies of Hungary, and civil society
organizations have expressed similar views. If the Government of
Hungary does not address these concerns, not only will the lives of
Hungarian citizens be affected, but it will also set a bad precedent
for OSCE participating States and new members and aspirants to NATO.
Last year marked the 90th anniversary of U.S.-Hungarian diplomatic
relations: relations which remain strong, based on a common security
architecture as NATO allies, a deep economic partnership, and what we
believe are fundamental values shared by the American and Hungarian
people. Hungary plays an active and positive role in international
fora, leading the way towards goals compatible with ours on a wide
range of issues.
U.S.-Hungarian security cooperation, especially with respect to
military, law enforcement, and counter-terrorism issues, is
exceptionally robust. We have enjoyed warm relations with each and
every Hungarian government since the transition from Communism over 20
years ago. This underscores a point that we always stress with our
Hungarian friends: our expressions of concern over the last two years
should be taken in the proper spirit because they come from a strong
friend of Hungary, and friends should be able to speak truth to
friends. Our concerns do not arise from any hostility toward Hungary,
ignorance of the specifics of the laws, or from a partisan slant
against its current leadership. They are a sincere expression of what
we and other friends of Hungary in Europe see as troubling trends in
laws passed in the last few years.
Before former Secretary Clinton visited Hungary in June 2011, we
took notice of Hungary's controversial media law and a new
constitution--which in Hungarian is called the Fundamental Law--
portions of which also raised concerns among impartial observers. In
both cases, we had concerns about the content as well as the process by
which they were passed. Due to the mechanics of the electoral system,
the current government gained a two-thirds majority of Parliament based
on winning 52 percent of the vote in free and fair elections in 2010.
This gave it the authority to pass new laws, and indeed a new
constitution. As we have often said, Hungarian laws should be for
Hungarians to decide. But for something as fundamental as a
constitution or a law impacting freedom of the press, the process must
lead to a consensus built from a broad cross-section of society, rather
than reflect only the opinions of the ruling coalition. The speed with
which these laws were drafted and then passed, and the lack of serious
consultation with different sectors of society, did not honor the
democratic spirit that the people of Hungary have long embraced.
That is why when Secretary Clinton visited Budapest in 2011, she
called for Hungary to show ``a real commitment to the independence of
the judiciary, a free press, and governmental transparency.''
Since then, the Hungarian parliament has passed scores of laws at
an accelerated pace. Most of these laws were unobjectionable and aimed
at addressing issues that had not been addressed in the early days
after Hungary's democratic transitions in 1989. But more than a few of
these laws posed threats to systemic checks and balances and the
independence of key institutions that are the bedrock of mature
democracies. Privately and publicly, we expressed our concern to the
Government of Hungary, as did several European institutions and
governments. Our message to our Hungarian allies is that all
democracies have a duty to safeguard institutional checks and balances.
Unfortunately, in many respects our message went unheeded.
My colleague Deputy Assistant Secretary Thomas O. Melia, whose
experience in Hungary goes back to 1989, has described the root of our
concerns with key Hungarian laws as the concentration of too much power
into too few hands.
When Hungary's Constitutional Court struck down a law on fiscal
issues, the parliament swiftly passed another law taking away the
Court's competency to decide cases based on fiscal matters. The
government also expanded the Constitutional Court from 11 to 15
members, allowing the current administration to select the additional
justices and thereby alter the Court's juridical balance. The new laws
created a Media Council and gave it significant powers to oversee
broadcast media, including the right to fine media for ``unbalanced
coverage,'' an unsettlingly vague term. Unlike similar media bodies in
other democracies, such as our Federal Communications Commission, no
opposition parties are represented on Hungary's new Media Council. The
Council members have nine-year terms, and cannot be removed without a
two-thirds vote of parliament. The long length of these terms ensures
that these political appointees will remain in place well past the next
planned parliamentary elections in 2014. This would tie the hands of
the next government should it have anything less than a two-thirds
majority.
The new laws also created a National Judicial Office and gave it a
powerful, politically-appointed President with a nine-year term and the
authority to assign cases to any court she sees fit. This enables the
office-holder to engage in``venue shopping'' by steering specific cases
to specific judges--a recipe for potential abuse.
Another new law stripped over three hundred religious congregations
or communities of their official recognition. To be clear, non-
recognized religious groups are still free to practice their faith in
Hungary. However, they do not enjoy certain tax benefits and subsidies
that recognized religious groups do. In order to regain recognition,
religions will have to be approved by a two-thirds vote of parliament,
an onerous and unnecessarily politicized mechanism. While we understand
that the new religion law was adopted to stop fraud, we have urged the
Hungarian Government to seek a less onerous and less politicized
procedure to weed out malfeasance.
In mid-2012, as expressions of concern from the United States and
Europeans mounted, the Hungarian Government began responding in
constructive ways. The government voluntarily submitted many laws for
review by the legal experts of the Council of Europe's Venice
Commission. In some cases, though by no means all, the government
modified laws to take into account specific concerns expressed by the
Commission. While some important issues remained unresolved, we were
heartened that Hungary was engaging in dialogue, recognizing the merits
of concerns expressed by the United States and others, and taking steps
to address them.
We were further heartened when, early this year, Hungary's
Constitutional Court issued several rulings striking down controversial
legislation. This demonstrated that the Court could serve as an
effective check on government. Unfortunately, the reaction by the
Hungarian government again called into question its commitment to
checks and balances and institutional independence. The government
drafted and swiftly passed a new constitutional amendment, parts of
which reinstated laws that had just been struck down by the Court.
Again, the process was rushed and lacking in broad societal
consultation. Moreover, the Hungarian Government ignored pleas from the
State Department, European Commission, and Council of Europe--as well
as several respected, non-partisan Hungarian NGOs--to engage in a more
careful, deliberative process and allow for the Venice Commission's
experts to review the amendment. This has prompted renewed expressions
of concern from the Council of Europe, the President of the European
Commission, and other allied governments, including the United States.
While the Government of Hungary has now submitted the amendment to the
Venice Commission, this is the opposite of the normal procedure,
whereby the Commission reviews laws before they are passed, not after
passage.
I would like to address one other area that has provoked much
concern: the rise of extremism in Hungary. This phenomenon is, sadly,
not unique to Hungary. The rise in Hungary of the extremist Jobbik
party as one of the largest opposition groups in parliament, and
Jobbik's affiliated paramilitary groups that incite violence, are clear
challenges to tolerance.
Let me be clear: the ruling Fidesz party is not Jobbik. Fidesz'
ideology is within the mainstream of center-right politics, and its
platform is devoid of anti-Semitism or racism. In 2012, the Government
of Hungary used the centenary of Raoul Wallenberg's birth to promote
tolerance. Moreover, we have seen a growing willingness by Hungarian
government leaders to condemn anti-Semitic and racist acts and
expressions. However, such condemnation is not always swift or
resolute. The Hungarian Government can and must do more to foster
tirelessly a climate of tolerance. One concern is that some local
governments in Hungary have, with little objection from the governing
party, erected statues and memorials to tainted figures from Hungary's
past. And some of these figures have been re-introduced into the
national educational curriculum. As the Department's former Special
Envoy to Monitor and Combat Anti-Semitism said last year, ``the recent
rehabilitation of figures from Hungary's past who are tainted by their
support for Fascism and anti-Semitism contributes to a climate of
acceptance of extremist ideology in which racism, anti-Semitism, and
other forms of intolerance can thrive.''
We also call upon Hungarian leaders to do more to defend Romani
Hungarians, who--like Romani in many other European countries--face
discrimination, racist speech and violence that too often goes
unanswered, just as in the United States leaders from both parties
routinely speak out against racism. We urge that perpetrators of
violent attacks against Roma--in Hungary as well as elsewhere in
Europe--will be arrested and prosecuted as swiftly as those who commit
anti-Semitic attacks.
In conclusion, the United States has long enjoyed and benefitted
from its strong alliance with Hungary and its people. Just as we
continue to do hard work together in Afghanistan and other danger spots
around the world, so too will we continue to have a sincere--and at
times difficult--dialogue on the importance of resolutely upholding the
fundamental values that bind us.
Thank you, Mr. Chairman, for allowing me to express the State
Department's views on these important issues.
Prepared Statement of the Hon. Jozsef Szajer
Chairman Cardin, Co-Chairman Smith and distinguished members of the
U.S. Helsinki Commission, Distinguished Members, Ladies and Gentlemen:
It is an honor for me to appear here to share my views on the state
of Hungarian democracy. I am a founding member of the now governing
party, Fidesz, which was the first opposition organization during our
transition to democracy 25 years ago. I am also Member of the European
Parliament elected directly by the citizens of Hungary. In my capacity
as member of the Hungarian Parliament, I have participated in the
preparation of almost every major constitutional change over the last
twenty years. Recently, I had the great honor of being the Chairman of
the Drafting Committee on the Fundamental Law of Hungary, the new
Constitution of my country, which is a subject matter of this hearing.
I want to underline that Hungary has been a constitutional
democracy, respecting the rule of law and the rights of the citizen
ever since the transition to democracy more than twenty years ago.
Anyone who might claim otherwise should be encouraged to come to
Hungary and make a first-hand experience, to study our difficult past
and recent history, to ask the Hungarians themselves. This is an
invitation I warmly extend to the U.S. Helsinki Commission.
Hungary is a nation with one of the longest, one thousand year old
constitutional tradition, which my country is very proud of. One of the
finest pieces of our historic constitution, the Bulla Aurea (our Magna
Charta) dates back to 1222. Hungary boasts the first ever
constitutional document on religious tolerance, the Torda Declaration
from the sixteenth century. Our new constitution follows the steps of
these historic achievements. It aims also to restore one thousand years
of historic constitutional continuity which was lost in 1944 as a
consequence of the Nazi, and the subsequent Soviet occupation of my
country.
As a legislator myself, I would like to express my appreciation for
your interest in the sovereign act of the Hungarian nation's historic
constitution making enterprise. I admire your great Constitution and we
held it as a compass in creating our new one. Elected representatives
of our great, freedom loving nations like the American and the
Hungarian should always find appropriate occasions to exchange, on
equal grounds, views and experiences on matters of great importance.
And what could be more important than a nation's constitution? And what
could be a more significant part of a nation's sovereignty than
creating her own constitution? You in America gained your independence
more than two hundred years ago. Thousands of Hungarians died for
Hungary's independence, but finally we won it only a little more than
twenty years ago when the Soviet occupation ended. I was there, I was
part of that generation, which achieved it, and now our task is to
consolidate it! Hence, you should be aware of the high sensitivity of
our nation towards questions of independence and non-interference. We
Hungarians consider that our nation's own constitution is an exercise
in democracy that we should conduct. We listen to advice given in good
faith, we learn from the experience of others. This is the very reason
I am here now, but we insist on our right to decide. This is democracy
and self-determination that we had been fighting for so long.
My core message is that on your behalf there is no reason to worry
about the commitment of Hungary to democracy and the rule of law. My
main argument is that the new amendment does not carry any significant
element which has not been tested before by the competent European
institutions and modified if necessary.
In the 2010 elections, FIDESZ won a victory of rare magnitude,
obtaining a constitutional majority, more than two-thirds of the seats
in the National Assembly. The choice of the Hungarian people was a
response to a deep economic, social and political crisis. The
mismanagement of public finances, public deficit and debt slipping out
of control and the frequent parading of paramilitary organizations were
among its symptoms. We also witnessed serious violations of basic human
rights by the authorities: the most serious ones concerning the freedom
of assembly in the autumn of 2006. At those difficult times we were
expecting the support of the democratic community of the world to speak
out against state oppression of the citizens' freedoms. Unfortunately,
the international community turned a blind eye. Public order was
seriously challenged by shocking events like the serial killings of our
Roma compatriots with clear racist motivations and with the public
authorities standing by crippled.
In 2010 we received the mandate and the corresponding
responsibility to put an end to all that: start a comprehensive reform,
including the adoption of a new constitution. In other words: correct
the trajectory of our democracy.
A new constitution was long overdue. All Central and Eastern
European countries had adopted their new, democratic constitutions long
before, while Hungary had to live with an updated, explicitly
transitory version of its 1949, Stalinist Constitution: in spite of
several attempts, previous governments and parliaments lacked either
the necessary majority or the political will to replace it altogether.
The Constitution of Hungary, as a member of the European Union and
of the wider Euro-Atlantic community, respects and promotes the values
of democracy and the rule of law. Large parts of the ensuing
legislation have been subject to political debate and to legal review
by the competent European institutions. For instance, it has been
subject to controversy right from the start for its pro-life and pro-
family stance. The new Fundamental Law was scrutinized by the Venice
Commission of the Council of Europe, which welcomed the ``efforts made
to establish a constitutional order in line with the common European
democratic values and standards and to regulate fundamental rights and
freedoms in compliance with the international instruments . . .'' and
noted that ``the current parliamentary system and the country's form of
government . . . have been maintained.'' While the European Commission
launched four infringement procedures on some cardinal laws following
the adoption of the Fundamental Law, it never challenged the
Fundamental Law itself. (Under Article 4 of the Treaty on European
Union the Union `shall respect' the constitutional sovereignty of the
member states.) The Hungarian Government was cooperating and complying
throughout the process: it changed the Media Law and the Law on the
Judiciary at the request of the Commission.
A few words on the new amendment. Around 95 percent of the
provisions of the so-called Fourth Amendment, adopted last week, had
been in effect ever since the entry into force of the new Constitution.
We did not intend to change our Fundamental Law so soon after its
adoption. What happened is that the Constitutional Court, in its recent
decision, annulled some of the Transitory Provisions of the Fundamental
Law on technical grounds. In fact, under the legislation, the
Transitory Provisions, subject to a two-thirds majority and as such put
on equal footing with the Fundamental Law, carried some constitutional
provisions the Court now ruled should be moved to the Fundamental Law
itself. In other words, the position of the Court, based on the German
constitutional doctrine of `obligation to incorporation' is that the
Constitution should be one single act: therefore, what had to be done
was basically a copy-paste exercise of a purely technical nature. Hence
the length of the new amendment! But not much new text. The Fourth
Amendment was based on the request of the Court, and not against it, as
some critics misleadingly claim.
Some words on the new elements.
All assertions to the contrary notwithstanding, the Fourth
Amendment does not reduce the powers of the Constitutional Court. In
fact, it does the opposite. It adds the President of the Supreme Court
and the Chief Prosecutor, to those having the right to file for the
constitutional review of laws. It repeals the rulings of the Court
passed under the old Constitution, but clarifies at the same time that
its rulings shall not lose their legal effect and--as specified by an
additional amendment--the Court shall remain free to refer to its own
previous case-law in its future jurisdiction. Nor can the Amendment
strip the Court of a power it never had: the right to review and annul
the Constitution text itself or its amendments, unless on the grounds
of procedural flaws. My definition of the separation of the powers is
that the Court interprets but does not change the text of the law. The
power to change (or annul) the text of the Constitution should belong
exclusively to the constitutional authority, which is the National
Assembly in the case of Hungary. The Fourth Amendment makes a big step
forward in making the procedures of the Constitutional Court
transparent, by opening it to public access. It also adds--following
several European examples--that the parties concerned in the
proceedings should have the right to express their views in the
procedure, changing the annoying and much criticized `black box' nature
of the Court.
Concerning the status of churches, I would like to reiterate that
the criticized legislation has nothing to do with religious freedom or
even with religion. According to Article VII (1) of the Fundamental
Law, the confession and exercise of faith individually or collectively
is a basic right of individuals and religious communities (without any
need for registration). The only power the National Assembly has in
this regard is to choose, on the basis of criteria codified by law, on
which religious community to confer the additional right to subsidies
from taxpayers' money. This is common practice in Europe but our list
of churches is more generous than the European average. I know that on
the basis of your Constitution's First Amendment, your system is
different from the European model. Our Fourth Amendment adds an
important correction: the parliamentary decision (by 2/3 majority) can
be appealed at the Constitutional Court on procedural grounds. This
change was adopted to implement the relevant Court decision.
On the front of the media, I have no breaking news. Here we can
tell a real success story, at least if measured by the sheer number of
reports, articles and other expressions that are harshly critical of
the government published every single day in the free press of my
country. If you read them, you will not witness any sign of the
infamous self-censorship either! Anybody taking the trouble to check
the situation on the ground rather than judging by hearsay would agree
with that. I am not aware of any case of censorship or harassment of
journalists during the three years of the current government. The
actual purpose of the Media Law was to adapt to the Internet age and to
streamline the financing of public media by our taxpayers. Many other
countries are studying this law. There are huge debates in countries
like the UK about appropriate press regulation. As mentioned earlier,
the Media Law has been corrected on a couple of occasions at the
request of the European Commission and the Constitutional Court.
Expressions of anti-Semitism and of racism in Hungary are cause for
concern. Even though the phenomenon is not new and unfortunately
widespread all over Europe, each and every such incident is deplorable
and calls for more determination to eliminate them. The Hungarian
Government is equal to the challenge. Prime Minister Orban has
repeatedly underlined that he stands for a policy of ``zero tolerance''
when it comes to anti-Semitism.
Here we are confronted with two conflicting expectations: to combat
hate speech and safeguard the freedom of expression at one and the same
time. One has to strike a balance. In the Fourth Amendment, we chose to
lay the constitutional grounds for civil procedure open for any person
in case his or her religious, ethnic or national community should be
seriously offended in its dignity. This might not be the only solution
to the problem; there has been criticism but we cannot stand aside
idly. To illustrate the paradox, let me remind you of the kuruc.info
case. Kuruc.info is a Hungarian language website, registered in the
U.S., infamous for propagating racial hatred and violence, targeting
the Hungarian public. The Hungarian authorities have in vain requested
its closure by the U.S. authorities. The answer has always been that it
was not possible under the more liberal U.S. laws.
Jewish communities in Hungary, which had been waiting for stronger
legal instruments against hate speech for decades, welcomed the move.
Rabbi Koves, leader of the Unified Hungarian Jewish Congregation and
the Action and Protection Foundation called the relevant article of the
Draft 4th Amendment as an `historic step forward in defense of the
dignity of the communities'.
Our policy is consistent with our unambiguous relationship with the
past. It was the first Orban Government which founded the Holocaust
Memorial Center in Budapest and included a special Holocaust
Remembrance Day for the first time in the curriculum of high schools.
Yet the latest shining evidence is the international Wallenberg
memorial year in 2012, launched by the second Orban cabinet to
commemorate the centenary of the birth of the Swedish diplomat who
rescued thousands of Jewish lives in Budapest at the end of World War
II and who was posthumously given the highest recognition by your
legislature, the Congressional Medal of Honor. The Wallenberg year has
earned universal acclaim. It gave us an opportunity to admit Hungarian
co-responsibility in the Shoah, which Mr. Janos Ader, President of
Hungary, solemnly did in his speech before the Israeli Knesset.
The time allotted for my testimony may not be long enough to
dismiss all your concerns but I am confident that they will abate once
the amendments are looked at more closely--as was the case with the
Media Law, the Law on the Judiciary, and I can cite many other
examples. I am here to assure you that the Hungarian Government is at
your disposal for further clarifications. We are open to criticism if
based on facts and arguments. Foreign Minister Martonyi has requested
the Venice Commission to give its opinion on the Fourth Amendment and
would propose changes if necessary. We abide by the rules of the
European institutions and expect the same from all others, including
our critics. I am deeply convinced that in a constructive dialogue we
can enrich each other's constitutional experience, and thus avoid
unfounded accusations and disagreements arising from misunderstandings.
The friendship between our two nations, Hungary and the U.S.
belonging to the same alliance and being each other's solid partners in
promoting, shoulder to shoulder, our common values in places like
Afghanistan and the Balkans will help.
Let me close my remarks with the first line of our national anthem,
hence the first line of our new constitution: God bless Hungarians!
Isten, aldd meg a magyart.
Prepared Statement of Dr. Kim Lane Scheppele
I am honored to testify before you today. My name is Kim Lane
Scheppele, and I am the Rockefeller Professor of Sociology and
International Affairs, as well as the Director of the Program in Law
and Public Affairs, at Princeton University. I am also a Faculty Fellow
at the University of Pennsylvania Law School.
Nearly twenty years ago, the US National Science Foundation gave me
a grant to move to Hungary to study the Hungarian Constitutional Court,
then the most impressive of the new courts in Eastern Europe. I planned
to go for one year but stayed for four, working as a researcher at the
Constitutional Court and serving as an expert advisor to the
constitutional drafting committee of the Hungarian Parliament in 1995-
1996, a position I occupied with the assistance of a second NSF grant.
I am grateful to the NSF for having funded my research on Hungary,
which documented how the new Hungarian constitution of 1989 put down
roots and grew to support a vibrant Hungarian constitutional democracy.
I have followed Hungarian constitutional developments closely ever
since.
I am here today because the current Hungarian government has felled
the tree of democratic constitutionalism that Hungary planted in 1989.
Since its election in 2010, the Fidesz government has created a
constitutional frenzy. It won two-thirds of the seats in the Parliament
in a system where a single two-thirds vote is enough to change the
constitution. Twelve times in its first year in office, it amended the
constitution it inherited. Those amendments removed most of the
institutional checks that could have stopped what the government did
next--which was to install a new constitution. The new Fidesz
constitution was drafted in secret, presented to the Parliament with
only one month for debate, passed by the votes of only the Fidesz
parliamentary bloc, and signed by a President that Fidesz had named.
Neither the opposition parties nor civil society organizations nor the
general public had any influence in the constitutional process. There
was no popular ratification. The Fidesz constitution went into effect
on January 1, 2012.
While the government claims it was given a mandate to make major
changes, the general Hungarian public thinks otherwise. During the
election campaign in 2010, Fidesz never said it would change the whole
constitutional system. Once the Fidesz governing program became clear
after the party came to power, the popularity of Fidesz has plummeted,
even more so after the government undertook to replace the
constitution.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
After the April 2010 election, Fidesz's popularity has steadily
dropped. But none of the other parties--the MSzP (Socialists), Jobbik
(far-right party), LMP (Politics Can be Different, a liberal/green/
youth party) or the new liberal electoral coalition Egyutt 2014
(Together 2014)--is any more popular. Surveys show that 50% or more of
Hungarian voters say that there is no political party that they
support.
Even though the government pushed through a one-party constitution
without support from any other political fraction, except its own
party-list partner the Christian Democrats, this didn't stop the
constitutional juggernaut. The government has amended its new
constitution four times in 15 months. Each time, the government has
done so with the votes of only its own political bloc, rejecting all
proposals from the political opposition or from civil society groups.
The current Hungarian constitution remains a one-party constitution.
Just last week, the Fidesz government passed a 15-page amendment to
the new 45-page constitution. Laszlo Solyom, the conservative former
president of both the Constitutional Court and the Republic of Hungary,
said in a public statement last week that the ``Fourth Amendment''
removes the last traces of separation of powers from the Hungarian
constitutional system. Under the constitution as amended, no
institution has the legal right to check many of the key powers of the
one-party government.
The Fourth Amendment nullifies more than 20 years of rights-
protecting case law of the Hungarian Constitutional Court that had been
developed before the new constitution went into effect. This leaves a
giant gap where firm legal protection of basic rights once stood. The
Fourth Amendment specifically overturns nearly all of the decisions
that the Constitutional Court made in the last year striking down
controversial new laws the Fidesz government had passed. The Fourth
Amendment removes the Court's power to evaluate on substantive grounds
any new constitutional amendments, a move which allows the government
to escape review by inserting any controversial new proposal directly
into the constitution. The Fourth Amendment entrenches political
control of the judiciary and gives the government new tools to prevent
the opposition from coming to power. The Fourth Amendment reverses many
of the concessions Hungary made last year when the European Union, the
Council of Europe and the US State Department criticized fundamental
aspects of that constitution.
Under cover of constitutional reform, the Fidesz government has
given itself absolute power. It now has discretion to do virtually
anything it wants, even if civil society, the general public, and all
other political parties are opposed.
How could Hungary have fallen so far so fast from the family of
stable constitutional democracies? The answer lies in the Achilles'
heel of the old constitutional system: a disproportionate election law
combined with an easy constitutional amendment rule.
Hungary's 1990 election law gave disproportionate numbers of seats
to the winner of an election, a feature that was designed to help
plurality parties form stable governments. When Fidesz got 53% of the
vote in the 2010 election, the election law converted this victory into
68% of the seats in the Parliament. While Fidesz won this vote in a
joint party list with the Christian Democrats (the KDNP), the Christian
Democrats barely have an independent existence apart from Fidesz and
its members vote in a bloc with Fidesz on every issue.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Translation: The Fidesz/KDNP joint party list (orange) received
52.7% of the vote, 263 of the seats and 68.1% of the Parliament. MSzP
(Socialists) (red) received 19.3% of the vote, 59 of the seats and
15.3% of the Parliament. Jobbik (far-right party) (dark green) received
16.6% of the vote, 47 of the seats and 12.2% of the Parliament and LMP
(Politics Can be Different) (light green) received 7.7% of the vote, 16
of the seats and 4.1% of the Parliament. There was one independent MP.
Armed with its two-thirds supermajority, the Fidesz government has
been able to make use of the old constitution's amendment rule, dating
to the communist constitution of 1949, which permitted the constitution
to be changed with a single two-thirds vote of the Parliament. This
``magic two-thirds'' has enabled Fidesz to make all of its
constitutional changes in a formally legal manner. Only one barrier
remained: In 1995, under a prior two-thirds government, the old
constitution was amended to require a four-fifths vote of the
Parliament before any new constitutional drafting process could begin.
One month into its term, Fidesz used its two-thirds vote to amend the
constitution to remove the four-fifths requirement.
Many of the laws, including the constitution itself, many of the
constitutional amendments and most of the cardinal laws, were
introduced through the parliamentary procedure of a ``private member's
bill,'' which bypasses the stage of public consultation required of all
government bills. That, combined with the fact that the Parliament
instituted a new rule through which a two-thirds vote could cut off
parliamentary debate on any topic, has meant that most of these new
laws have received very little public discussion. It has not been
uncommon for a constitutional amendment go from first proposal to final
enactment in just a few weeks.
Taken over three years, the constitutional changes are complicated,
detailed, and spread out across a new constitution, four major
constitutional amendments, dozens of ``cardinal'' (super-majority)
laws, and thousands of pages of ordinary laws that were all passed in a
giant legislative blur, sometimes in the middle of the night. I
strongly suspect that most Hungarians do not understand the details of
this new constitutional system. Even Hungarian lawyers are not able to
keep up with the total revolution in the law. In what follows, I will
try to explain how the new system of Hungarian government is
structured, current as of March 15, 2013, taking all of this new law
into account.
The primary source for my testimony is the Magyar Kozlony, the
official gazette of the Hungarian government that publishes all of the
laws. From my perch in the United States, I cannot say how the laws are
being carried out. But I can say how the laws are structured and what
they do and do not permit. I will call this whole new legal structure
the ``Fidesz constitution'' even though not everything is in the single
constitutional text or its amendments. Many elements of the system I
describe are in two-thirds ``cardinal'' laws that are almost as
entrenched as the constitution itself, which is why I don't make the
fine distinctions here except where they are crucial for understanding
how the system works. I am happy to provide detailed legal citations
for all of the claims I make below if you are interested in checking
more precisely what I say or precisely where in the law each of these
statements can find support.
Others who are providing testimony for this hearing will address
other crucial issues raised by the current Hungarian government's
actions over the last three years. They will address the fate of civil
liberties, the difficult situation for many churches in Hungary and the
growing and increasingly virulent strains of anti-Semitism and anti-
Roma agitation that have occurred alongside this constitutional
revolution.
My remit at this hearing today is to talk about something
altogether more boring, but no less important: the system of divided
and checked powers necessary for a government to remain both
constitutional and democratic. History tells us that a government that
has no limits on what it can do and that concentrates all powers in a
single party will soon cease to be either constitutional or democratic.
The importance of checked and limited powers was an insight very
familiar to the American constitutional framers. The Philadelphia
Convention did not even include a bill of rights in the US Constitution
because the framers believed that the most effective protection for
rights was a government that was limited by law. While American history
has taught us that a bill of rights matters--and the ratification
process of the US Constitution insisted on including one--we have also
learned much from Princeton graduate James Madison, who wrote in
Federalist #47: ``The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a few, or
many, and whether hereditary, self-appointed, or elective, may justly
be pronounced the very definition of tyranny.''
By James Madison's definition, Hungary is on the verge of tyranny.
In what follows, I will show that the Fidesz political party has
gathered all of the powers of the Hungarian government into its own
hands, without checks from any other political quarter and without any
limits on what it can do.
We should start with the basics: Hungary has a unicameral
parliamentary system of government. A unicameral Parliament has no
upper house to check what the lower house does, no ``Senate'' to
complicate life for the ``House of Representatives'' and vice versa. A
parliamentary system means that the most powerful executive, the prime
minister, is elected by the Parliament rather than directly by the
people. As a result, the prime minister in Hungary is virtually
guaranteed a majority for all of his legislative initiatives because
that legislative majority put him into his job. Not surprisingly, the
legislative-executive cooperation guaranteed in Hungary's unicameral
parliamentary system dates back to the communist constitution of 1949.
(From the mid-19th to the mid-20th centuries, Hungary had a bicameral
parliament.)
In 1989, however, major constitutional changes in Hungary added a
number of checks to this basic framework. A Constitutional Court was
created as the primary watchdog on the majoritarian dangers of a
unicameral parliamentary system. Unlike a Supreme Court which is the
highest court of appeal in the legal system (something we are familiar
with in the United States), a Constitutional Court is the only court
that is allowed to hear and decide constitutional questions--and it
does nothing else besides rule on constitutional matters. Because the
Hungarian Constitutional Court conducts the primary oversight in a
system that has little formal separation of legislative and executive
power, it is even more important than the Supreme Court in the American
separation-of-powers system.
Given such weighty responsibility in the 1989 constitutional
design, the Constitutional Court was made highly accessible to the new
democratic public in Hungary. Literally, anyone could ask the
Constitutional Court to review a law for constitutionality using a so-
called actio popularis petition. As a result, virtually every law was
challenged. From the time it opened in January 1990, the active
Constitutional Court kept each new government under constitutional
constraint regardless of the political leanings of the government.
Opinion polls showed that the Constitutional Court was consistently the
most highly respected political institution in Hungary.
The procedure for electing judges to the Constitutional Court
before 2010 prevented the Court from being captured by any one
political fraction. Because each judicial nominee to the Constitutional
Court had to first be approved by a majority of parliamentary parties
before then being elected to the Court by a two-thirds vote of the
Parliament, the Court always had a balance of different political views
represented on the bench.
Other changes that were made to the constitutional system in 1989
provided more checks on Hungary's unicameral parliamentary government.
Revamped parliamentary procedure required extensive consultation with
both civil society and opposition parties before government bills could
be put to a vote. Important issues of constitutional concern required a
two-thirds vote of the Parliament. As we have seen, however, the
private member's bill procedure allowed the consultation stage for
legislation to be bypassed and the two-thirds laws could cease to be a
real check on power when the government had two-thirds of the
parliamentary seats, something the disproportionate election law made
quite likely.
Four ombudsmen added after 1989 to the system of rights protection.
Other independent institutions--the central bank, state audit office,
prosecutor general's office, national election commission and media
board--provided both expertise and additional checkpoints. For example,
both the national election commission and the media board were
structured to ensure representation from across the political spectrum.
An independent self-governing judiciary ensured that the laws were
fairly applied.
There were so many different checks instituted after 1989 on the
power of the prime minister and his parliamentary majority that the
post-1989 constitutional system worked reliably to ensure that the
operation of majoritarian political power didn't ride roughshod over
democratic guarantees and constitutional limitations.
By contrast with this robust system of complementary powers, the
new ``Fidesz constitution'' removes virtually all of the checks added
to the prior communist constitution after 1989. I will detail the major
reversals here.
Under the Fidesz constitution, the Constitutional Court's power and
independence have been compromised in multiple ways. The system for
electing constitutional judges was changed so that now a single two-
thirds vote of the Parliament is sufficient to put a judge on the
Court, abolishing the multiparty agreement that was once necessary for
nomination. The Fidesz constitution also expanded the number of judges
on the Court from 11 to 15, giving the governing party four more judges
to name immediately.
Between changing the process for electing judges and expanding the
number of judges to be elected, Fidesz government has been able to
select nine of the 15 judges on the Court in its first three years in
office. The Fidesz parliamentary bloc, voting in unison as it always
does, put these judges onto the Court without multiparty support,
though a few of the new judges were able to garner some votes from the
far-right Jobbik party. The new constitutional judges have almost
always voted for the Fidesz government position in each case. Some of
the new judges have just voted for the government's position without
even giving reasons.
Even if the Court is in Fidesz-friendly hands, however, a powerful
Court might still be dangerous to a government that shuns checks on its
freedom of action. This may explain why the jurisdiction of the Court
has been cut. The Court no longer has the power to review laws based on
``actio popularis'' petitions, which are petitions that anyone can
file. Now, the only individuals who can challenge laws must show that
they have been concretely injured by the application of a potentially
unconstitutional law and that they have exhausted their remedies in the
ordinary courts. If the Constitutional Court can only hear cases that
have concrete victims, it is hard for the Court to rule on matters
pertaining to separation of powers and the structure of democratic
institutions. Individuals rarely get ``standing'' to challenge a law
that creates a new system for judicial appointments or a law that gives
a government agency the power to issue decrees without parliamentary
oversight, both laws that have been passed since Fidesz came to power.
Some elements of ``abstract review'' remain with the Constitutional
Court, but these, too, have been restricted.
Abstract review allows the Court to hear challenges to laws without
a concrete dispute before it. With the exception of the Parliamentary
Commissioner for Human Rights (who will himself be replaced by Fidesz
parliamentary majority later this year), the constitution gives the
power to challenge laws abstractly only to particular offices that are
currently occupied by people affiliated with Fidesz. One might guess
that Fidesz appointees do not have a strong incentive to limit the
power of their own government. While one-quarter of the Parliament is
also given the power to challenge a law at the Constitutional Court,
the one-third of the seats in the current Parliament that are not held
by the governing party are divided between parties of the center-left
and a party of the far right, who would have to agree on a challenge,
something that is not very likely. As a result, many laws have been
effectively insulated from constitutional challenge by the way that
abstract review power has been designed.
Even with the limitations on access to the Constitutional Court
that were built into the Fidesz constitution, the system of judicial
review in Hungary may seem broader than the system we have in the
United States. Therefore, the dangers of the new system in Hungary may
not be apparent to an American eye. Limiting the power to initiate
judicial review only to those who have been directly injured and only
to officials who owe their jobs to this government limits the ability
of the Court to reach constitutional violations that it used to be able
to reach. The U.S. Supreme Court cannot reach all constitutional
violations either, but the United States has a bicameral Congress, a
separately elected president, a vigilant and active civil society, and
federalism, which adds state governments and state courts as additional
checks on the power of temporary majorities. Hungary has none of those
checking institutions and so relies on the Constitutional Court to
carry more weight in the constitutional system. Making it difficult for
this Court to reach all constitutional violations creates blind spots
in which unconstrained political discretion can override constitutional
values.
In addition to limiting access to the Court, the Fidesz
constitution restricts the jurisdiction of the Court in other ways as
well. The Court may no longer review any law that deals with taxes or
budgets when those laws are passed at a time when the national debt is
more than 50% of GDP. Under the Fourth Amendment passed last week, the
Court will never have the power to review budget and tax laws that were
passed under these circumstances. As a result, if a tax law passed this
year infringes an individual's constitutionally guaranteed property
rights or if such a tax is applied selectively to particular minority
groups, there is nothing that the Constitutional Court can do--in
perpetuity. This opens up a space for the government to violate many
personal rights without any constitutional oversight.
The Fourth Amendment has also banned the Court from reviewing
constitutional amendments for substantive conflicts with constitutional
principles. As a result, if the constitution promises freedom of
religion but a constitutional amendment requires a two-thirds
parliamentary vote before a church is officially recognized (a
provision that was added to the constitution with the Fourth
Amendment), the Court can do nothing about this. Or if the constitution
says anyone may freely express her opinion but an amendment says that
no one may defame the Hungarian nation (a provision that was also added
to the constitution with the Fourth Amendment), there is nothing the
Court can do. These examples show that the government can now directly
amend the constitution any time it thinks the Constitutional Court
might strike down some policy that the government wants to enact
regardless of how much these new amendments violate principles that
have been guaranteed elsewhere in the constitution. In fact, the Fourth
Amendment already puts back into the constitution laws that the
Constitutional Court has already struck down as unconstitutional once
before under the new constitution.
To make matters worse, the Fourth Amendment also nullifies all
decisions made by the Constitutional Court before the new constitution
took effect. At one level, this makes sense: old constitution, old
decisions/new constitution, new decisions. But the Constitutional Court
had already worked out a sensible new rule for the constitutional
transition by deciding that in those cases where the language of the
old and new constitutions was substantially the same, the opinions of
the prior Court would still be valid and could still be applied.
Otherwise, where the new constitution was substantially different from
the old one, the previous decisions would no longer be used.
Constitutional rights are key provisions that are the same in the old
and new constitutions--which means that, practically speaking, the
Fourth Amendment annuls primarily the cases that defined and protected
constitutional rights. With those decisions gone, no one can say for
certain whether Hungarian law protects free speech, freedom of
religion, equality of all Hungarians before the law, property rights,
and virtually every other right in precisely the way that everyone in
Hungary had come to take for granted.
What other checks on Fidesz's untrammeled power have now been
removed in the Fidesz constitution? The independence of the ordinary
judicial system has taken a big hit. In 2011, the Fidesz government
suddenly lowered the judicial retirement age from 70 to 62, thus
removing the most senior 10% of the judiciary, including 20% of the
Supreme Court judges and more than half of the appeals court
presidents. Both the Hungarian Constitutional Court and the European
Court of Justice found that the sudden change in the judicial
retirement age was illegal.
The government's first reaction was to defy both courts' judgments,
before finally agreeing at the end of 2012 to reinstate fired judges
who wanted to return to their jobs. In the meantime, however, all of
the court leadership positions were filled with new judges, so the old
judges who wanted to be reinstated were returned to much less important
positions. Through this move, the government was able to replace much
of the top leadership of the judiciary in a single year. One court
leader who could not have been replaced in this manner (because he was
too young) was the then-President of the Supreme Court, Andras Baka. He
was removed from office when the new constitution went into effect
because of a new requirement, effectively immediately, that judges must
have five years of judicial experience in Hungary before being named to
the Supreme Court (newly renamed the Curia). President Baka's 16 years
of experience as a judge on the European Court of Human Rights did not
count.
How were the new judges named? The new president of the Supreme
Court/Curia was elected by a two-thirds vote of the Fidesz Parliament.
Beyond that, a new institution was created to oversee the appointment
of all other judges as well as the administration of the judiciary: the
National Judicial Office. This office replaced a system of judicial
self-government. The president of the NJO, elected by two-thirds of the
Parliament, has the power to hire, fire, promote, demote and discipline
all judges in the system without any substantive oversight from any
other institution. The national President has to countersign in cases
where a judge is appointed for the first time in the system, but it is
not clear he could refuse to do so. The new leadership of the ordinary
courts has thus been replaced by judges who owe their careers to an
official elected by the ``magic two-thirds'' of the Fidesz Parliament.
The Council of Europe's Commission on Democracy through Law (the
Venice Commission) sharply criticized the extraordinary powers of and
general lack of legal standards governing the president of the National
Judicial Office. The US State Department has also raised questions
about the independence of the judiciary under this system. In a
concession to criticism, the Fidesz government agreed to limit the
powers of the president of the NJO in legislation passed in summer
2012. But with the Fourth Amendment to the Constitution, those
concessions are clawed back. The constitution now entrenches the
National Judicial Office (NJO), whose president has the constitutional
power to ``manage the central administrative affairs of the courts,'' a
set of responsibilities in which the judges merely ``participate.''
None of the constraints that the Fidesz government agreed to under
international pressure--requiring a significant role for the judges in
their own self-government, establishing legal standards for the
president of the NJO to use in managing the judiciary, and no longer
allowing the president of the NJO to stay in office until her successor
is elected--are in the constitution itself. In fact, the concessions
that the Fidesz government made to Hungary's international critics may
be unconstitutional now that the Fourth Amendment gives the sole power
to manage the courts without these constraints to the president of the
National Judicial Office.
In another move that has attracted universal criticism, the Fidesz
government gave the president of the National Judicial Office the power
to take any case in the entire court system and move it to a court
different from the one to which normal procedure would assign it. So,
for example, if a political corruption case against members of the main
opposition party would normally be assigned to the trial-level court in
Pest, the president of the National Judicial Office can move the case
to Kecskemt. In fact, this is not a hypothetical; that very example has
already happened. The rationale given for this extraordinary power to
move cases is that the courts are overcrowded and case resolution can
be speeded up by moving cases to less crowded courts.
But this rationale is belied by the facts: From public sources, I
have been keeping track of the movement of these cases in the first
year that the president of the NJO has had this power. She has moved
only a few dozen cases away from courts that have thousands of
backlogged cases. And she has moved the cases not to the least crowded
courts in the countryside but to other courts that also have backlogs.
She has moved some of the most high-profile political cases in which
the political opposition has a stake, leading the opposition to charge
the government with picking the judges particularly in cases that have
strong political overtones. While my statistics cannot reveal the
motivation of the government, they can show that the government is not
moving a substantial enough number of cases to make a difference in
waiting times and it is not moving cases from the most to the least
crowded courts. I am happy to make the data available upon request.
With the Fourth Amendment passed last week, the power of the
president of the NJO to move any case to any court in the country is
entrenched in the constitution itself. And the constitution does not
include the legal constraints that Hungary agreed to under pressure.
Giving power to the president of the NJO to select which court handles
individual cases outside the rules of ordinary legal procedure is for
many--myself included--the end of the rule of law in Hungary.
The Constitutional Court and the ordinary judiciary have suffered a
severe blow under the Fidesz constitution. Other independent
institutions have fared no better.
The ombudsman system, which once comprised four independent
ombudsmen with independent jurisdictions, has now been folded into one
office with a much smaller staff. The former data protection ombudsman
was fired and the office has been absorbed directly into the
government, something that has generated an infringement action
launched by the European Commission against Hungary at the European
Court of Justice because EU law requires an independent data privacy
officer.
As of two weeks ago, the central bank has a new governor, who moved
to that job from being minister of the economy. He used his ministerial
power to unilaterally change the rules for the central bank. Without
the need for parliamentary approval or Court review, then, Gyorgy
Matolcsy, as the Fidesz economics minister, gave the office of Gyorgy
Matolcsy, the new central bank governor, dramatically increased powers
just before he moved from one job to the next. The charter of the
central bank, as it turns out, is not even a statute passed by
Parliament but a document that either the bank itself or the minister
of the economy can change at will.
The new media council has a chair appointed directly by the prime
minister and a membership that consists exclusively of members elected
by the Fidesz parliamentary two-thirds, both for nine-year terms. The
media council has draconian powers to levy bankrupting fines based on a
review of the content of both public and private media, including
broadcast, print and internet media. A Constitutional Court decision
freed the print media from some of these constraints, but the Fidesz
government could now easily amend the constitution to bring the print
media back under control and the Constitutional Court could say nothing
further about it.
The election commission has been revamped and now consists
exclusively of members who have been elected by the Fidesz
parliamentary two-thirds majority, all for terms of nine years. While
each party with a national list in the next election (scheduled for
April 2014) will have a temporary member on the commission during the
campaign, opposition parties will be easily outvoted by the Fidesz
majority.
The legal framework for the 2014 election is still in flux. The
Fidesz parliamentary two-thirds has already enacted two election laws
over vociferous protest from opposition parties, creating an even more
disproportionate system than the one it replaced. One law gerrymanders
the districts for the next election in such a way that it will be very
difficult for the opposition to win. The law even fixes the exact
boundaries of election districts in a cardinal law that requires a two-
thirds vote of the Parliament to change. This law also eliminates the
second round of voting for single-member districts so that someone
without majority support in a district can enter Parliament, which was
not previously the case.
The government passed a second cardinal law on elections that
instituted a system of voter registration, even though the country has
conducted more than 20 years of elections with an excellent ``civil
list'' that has never produced any complaints of irregularity. The
Constitutional Court struck down voter registration as
unconstitutional, and for now the governing party seems to have given
up on this idea. But with its parliamentary two-thirds vote, the
government has the power to override the Constitutional Court by simply
adding voter registration to the constitution. The government may also
change other important features of the election system right up until
the election takes place. In fact, at the moment, the election
framework is presently incomplete. Among other things, no rules have
yet been devised for making and verifying voter lists for ethnic
Hungarians in the neighboring states who have recently become eligible
for citizenship as the result of constitutional changes.
The Fourth Amendment added new electoral rules just last week. The
amendment created a constitutional ban on political advertising during
the election campaign in any venue other than in the public broadcast
media, which is controlled by the all-Fidesz media board. Moreover,
only parties with national party lists can advertise at all in the
national media, which might exclude smaller and newer parties. These
restrictions had been previously declared unconstitutional by the
Constitutional Court, so the government amended the constitution to
override that decision. And since these provisions are now in the
constitution itself, the Constitutional Court cannot review them again.
But suppose that, despite all of the obstacles that the current
governing party has put in the way of the political opposition, an
opposition coalition manages to win the next election. The Fidesz
constitution has created a trap that can be snapped in just such a
case. The constitution creates a national budget council with the power
to veto any future budget that adds to the national debt, which any
foreseeable budget will do. The members of the budget council have been
chosen by the Fidesz two-thirds majority for terms of 6 or 12 years and
can be replaced only if two-thirds of the parliament can agree on their
successors when their terms are over. Not only does this mean that, for
three elections cycles out, any future government must follow a
budgetary course agreed on by a council where all of the members were
elected by the Fidesz government, but this budget council has even more
power than that.
The constitution requires the Parliament to pass a budget by March
31 of each year. If the Parliament fails to do so, the president of the
country can dissolve the Parliament and call new elections. When this
provision is put together with the powers of the budgetary council, the
constraints on any future government are clear. If a new non-Fidesz
government passes a budget that adds to the debt, that budget can be
vetoed by the all-Fidesz budgetary council at any time, including on
the eve of the budget deadline given in the constitution. The
parliament would then miss the deadline and the president (also named
by Fidesz and serving through 2017) could call new elections. And this
process can be repeated until an acceptable government is voted back
into power.
The Fidesz government may have created this unfortunate interaction
of constitutional provisions inadvertently in an earnest attempt to
create a binding mechanism to achieve budget discipline. But it would
be easy for the Fidesz government to achieve fiscal discipline without
creating this anti-democratic trap. The Fidesz government could amend
the constitution to require that the budget council veto the budget by
a deadline that would give the Parliament time to pass a new budget
before the president gains the power to dissolve it. I have personally
suggested this to high-level members of Fidesz, but an amendment to
this effect has so far not appeared.
There is more that could be said about the new Fidesz constitution.
I have only mentioned what I take to be the biggest obstacles posed to
constitutionalism and democracy by this new constitutional framework.
What can be done about the Fidesz consolidation of power by the
United States, the US Helsinki Commission, and by the Organization for
Security and Cooperation in Europe?
First, of course, Hungarian democracy must be created and
maintained by Hungarians themselves. But a democratic public must be an
educated public and Hungarians themselves need to learn what has
happened to their own constitution over the last three years. Most have
no idea, and not because they couldn't or wouldn't understand.
The government celebrated its new constitution with great fanfare.
They set up ``constitutional tables'' at every town hall where people
could sign up to receive their very own copy of the constitution. Last
June, the government presented to every secondary school graduate a
coffee-table book with the words of the new constitution illustrated
with historic and specially commissioned paintings. But much of what I
have mentioned above is not contained in the text that government has
distributed. Many of the most worrisome provisions that I have
highlighted here are in the constitutional amendments made since that
time or in the cardinal laws that can only be accessed through reading
the immensely difficult legalese of the Magyar Kozlony. These laws are
posted online only in PDF form, not searchable unless one goes through
each individual daily issue separately.
Hungary's friends, including the United States, could assist
financially with a program to educate citizens, lawyers and judges in
Hungary about the new constitutional framework in Hungary. A public
education campaign about the new constitutional structure--conducted by
Hungarian constitutional experts from the government, from the
opposition and from academia--may assist in giving Hungarians better
information about their new constitutional system. Such a campaign
would be especially effective if it could be conducted through the
broadcast media in Hungary, though since the government functionally
controls the broadcast media through its Media Council, some monitoring
system would have to be put in place to ensure that both the government
and opposition voices are heard. Having read thousands of petitions
that ordinary Hungarians sent to the Constitutional Court in the 1990s,
I am confident that Hungarians themselves will rise to the defense of
both democracy and constitutionalism once they see the dangers of a
flawed constitutional design.
Second, the Hungarian government vociferously claims that it is
still a democracy because political parties may freely organize for the
parliamentary elections next year. But its critics are concerned that
the government presently controls the media landscape, has enacted a
number of legal provisions that disadvantage opposition parties, and
continues to change the electoral rules. In fact, nothing prohibits the
government from changing important elements of the electoral framework
at the last minute. With the election only one year away, it is
important to get the rules of the game fixed--fairly--as soon as
possible.
The OSCE has expertise in monitoring elections to ensure that they
are free and fair. The OSCE should insist that the electoral rules be
settled far enough ahead of the election so that all who want to
contest the election have a reasonable amount of time to organize
themselves accordingly.
Enough questions have been raised about the willingness of the
current Hungarian government to recognize the political opposition that
the OSCE/ODIHR should also fully monitor the 2014 Hungarian
parliamentary elections. This should include not just election-day or
long-term monitoring missions. The comprehensively changed new
constitutional framework warrants an early Needs Assessment Mission
from OSCE/ODIHR, one that can fully review the effects of all the new
provisions. It should focus on the ability of political parties to
organize and to get their message out, access to the media, and the
fairness of the basic election framework including the creation of
electoral districts and the compatibility of both the content and
timing of the new electoral rules with the principles of free and fair
elections.
Third, the US government should press the Hungarian government to
live up to its international commitments to democracy,
constitutionalism, the rule of law and robust rights protection. The US
should be vigilant in monitoring backsliding from the high level of
constitutional democratic protections that Hungary had achieved after
1989 and the US should cooperate with the Venice Commission, the
Council of Europe Parliamentary Assembly Monitoring Committee, and the
European Union (for example, the LIBE Committee of the European
Parliament), all of which have ongoing monitoring processes in place.
But the US government should also be aware that, under pressure,
the Fidesz government has in the past promised minor changes to its
comprehensive framework and then has discarded those changes when the
pressure lifted. Moreover, the changes that the Fidesz government has
previously offered to make do not really address the key problems of
the system. The Fidesz constitutional framework is a highly redundant
system that must be understood as a whole. Each individual legal rule
cannot be evaluated by itself because one must understand the function
of that rule in the larger system. Changing a number of small features
of this constitutional order may not in fact address the most serious
problem--which is the concentration of political power in the hands of
one party. In deciding whether the Hungarian government has been
responsive to international and domestic criticism, Hungary's allies
need to examine whether proposed changes really alter the way this
complex and integrated system works as a whole.
The US should resist entering the battle of competing checklists of
constitutional features. The Hungarian government often insists that
some other European country has the same individual rule that its
friends criticize. Perhaps we should remember Frankenstein's monster,
who was stitched together from perfectly normal bits of other once-
living things, but who was, nonetheless, a monster. No other
constitutional democracy in the world, let alone in Europe, has the
combination of constitutional features that Hungary now has. In
evaluating Hungary for its compliance with international standards, its
international friends must look at the whole constitutional system and
not just at individual pieces as it assesses whether Hungary still
belongs to the family of constitutional democracies.
Finally, Hungary is a small country in Europe. It may be hard to
see why the United States should spend any of its political capital to
address what former Secretary of State Hillary Clinton called Hungary's
backsliding from constitutional democracy. There are two main reasons
why the US should care, apart from the fact that it is painful to see
any country retreat from democracy and one should always be concerned
about the people adversely affected.
Hungary is a partner with the US not only in the OSCE, but also in
NATO. OSCE commits its member states to the protection of human rights
as defined under the Helsinki Final Act of 1975, and long experience
shows that human rights receive their best protection from the
maintenance of a constitutional and democratic government, both of
which are now in doubt in Hungary. The NATO Charter creates a union of
states ``determined to safeguard the freedom, common heritage and
civilisation of their peoples, founded on the principles of democracy,
individual liberty and the rule of law.'' But these commitments are
also being challenged by the concentration of power in Hungary under
its new constitutional framework. Both the OSCE and NATO commit its
member states to good behavior and good government, which these
organizations should be able to monitor.
In addition, other countries in Hungary's neighborhood are looking
with great interest at what Hungary is doing. They can see that the
European Union, the Council of Europe, the OSCE, NATO and the United
States have limited influence and ability to induce a national
government to change its domestic laws. Hungary's neighbors understand
that Hungary is getting away with consolidating all political power in
the hands of one party, and many find that enticing. Troubling recent
developments in Romania, Bulgaria and Slovenia show that the Hungarian
problem of overly concentrated power could spread if the US and its
European allies don't stand up for their values in the Hungarian case.
The US should therefore treat constitutional problems in Hungary with a
sense of urgency, both because of the speed with which this system is
being locked in and because of the likelihood that the Hungarian
constitutional disease could spread around the neighborhood.
In closing then, I strongly urge the United States, the US Helsinki
Commission and the OSCE to take Hungary seriously, engage with the
Hungarian government on matters of constitutional reform, and work
toward ensuring that the channels of democratic participation remain
open in Hungary so that the Hungarian people retain the capacity to
determine the sort of government under which they will live. The legal
changes I have described today pose a real danger to fundamental
democratic and constitutional values, and Hungary's friends need to
sound the alarm.
Prepared Statement of Sylvana Habdank-Kolaczkowska
Senator Cardin and Congressman Smith, thank you for this
opportunity to appear before the commission and discuss recent
developments affecting civil society in Hungary. The topic is one of
pressing importance, not only for democracy in Europe, but for the fate
of similar young democracies around the world.
Freedom House's annual Nations in Transit report, which focuses
specifically on democratic governance in the postcommunist world, and
our global surveys Freedom in the World and Freedom of the Press have
all drawn attention to the vulnerabilities and potential threats to
democracy created by legislative changes affecting Hungary's media
sector, data protection authority, and judicial system. We remain
deeply concerned by the restructuring and restaffing of Hungarian
public institutions in a way that appears to decrease their
independence from the political leadership. The ongoing use of Fidesz's
parliamentary supermajority to insert these and a surprising array of
other legislative changes into Hungary's two-year-old constitution is
also extremely troubling, particularly because some of the measures had
already been struck down by the Constitutional Court.
I was asked to comment specifically on recent Hungarian media
regulation and the law on churches, which I will do briefly now.
Changes introduced in 2010 consolidated media regulation under the
supervision of a single entity, the National Media and
Infocommunications Authority, whose members are elected by a two-thirds
majority in parliament. A subordinate body, the five-person Media
Council, is responsible for content regulation. Both the Media
Authority and the Media Council currently consist entirely of Fidesz
nominees, and they are headed by a single official who has the
authority to nominate the executive directors of all public media. The
head of the Media Authority and Media Council is appointed by the
president for a nine-year term. This year, the government responded to
criticism of the appointment process by introducing term limits and
minimum background qualifications, but those will only take effect when
the current officeholder's term expires, six years from now.
The particular issues of concern to us are the broad scope of
regulatory control and content requirements (for example, the
definition of ``balanced'' reporting) and the lack of safeguards for
the independence of the Media Authority and Media Council.
Under the revised version of the so-called Hungarian Media Law, the
Media Council is officially responsible for interpreting and enforcing
numerous vaguely worded provisions affecting all print, broadcast, and
online media, including service providers and publishers. The council
can fine the media for ``inciting hatred'' against individuals,
nations, communities, or minorities. It can initiate a regulatory
procedure in response to ``unbalanced'' reporting in broadcast media.
If found to be in violation of the law, radio and television stations
with a market share of 15 percent or higher may receive fines
proportional to their ``level of influence.'' These fines must then be
paid before an appeals process can be initiated. Under the Media Law,
the Media Authority can also suspend the right to broadcast.
The Media Council is also responsible for evaluating bids for
broadcast frequencies. Freedom House applauds the council's recent
decision to grant a license to the opposition-oriented talk radio
station Klubradio for its main frequency, in line with a recent court
ruling. However, we regret that it took nearly two years and four court
decisions for the council to reverse its original decision, during
which time the radio station operated under temporary, 60-day licenses
and struggled to attract advertisers. The episode has cast a shadow on
public perceptions of the Media Council, even among those who were
previously prepared to believe that a one-party council could function
as a politically neutral body.
In 2011, the Hungarian National News Agency, MTI, became the
official source for all public media news content. The government-
funded agency publishes nearly all of its news and photos online for
free, and allows media service providers to download and republish
them. News services that rely on paid subscriptions cannot compete with
MTI, and the incentive to practice ``copy-and-paste journalism'' is
high, particularly among smaller outlets with limited resources. The
accuracy and objectivity of MTI's reporting has come under criticism
since the Orban government came to power in 2010. Under the Media Law,
the funding for all public media is centralized under one body, the
Media Service Support and Asset Management Fund, supervised by the
Media Council.
Hungary's Constitutional Court has attempted to push back against
some of the more problematic legal changes introduced since 2010. At
the end of 2011, it annulled several pieces of legislation affecting
the media. For example, it excluded print and online media from the
scope of the sanctioning powers of the Media Authority; revoked the
media authority's right to demand data from media service providers;
deleted a provision limiting the confidentiality of journalists'
sources; and eliminated the position of media commissioner, an
appointee of the Media Authority president with the power to initiate
proceedings that do not involve violations of the law but can
nevertheless be enforced by fines and sanctions. These revisions, most
of which were confirmed by the parliament in May 2012, represent only a
small fraction of those recommended by the Council of Europe. Moreover,
they may not even prove permanent, given the government's recent habit
of ignoring or overruling Constitutional Court decisions by inserting
voided legislation into the constitution.
This seems likely to be the fate of the law on churches, which the
court struck down last month, but which has already made a reappearance
in a proposed constitutional amendment that is currently under
consideration. The law essentially strips all but 32 religious groups
of their legal status and accompanying financial and tax privileges.
The over 300 other previously recognized groups are allowed to apply
for official recognition by the parliament, which must approve them
with a two-thirds majority.
It should be noted that the previous regulations were quite
liberal, with associated financial benefits fueling an often
opportunistic proliferation of religious groups over the last two
decades. However, the new law has the potential to deprive numerous
well-established and legitimate congregations of their official status
and privileges. More fundamentally, the law represents another instance
in which the parliamentary supermajority has given itself new power
over independent civil society activity. The fact that the parliament
will have the right to decide what is and is not a legitimate religious
organization is without precedent in postcommunist Hungary.
Many of the areas targeted for reform by the Orban government,
including public media, health care, the education system, and even
electoral legislation, were in need of reform long before the April
2010 elections brought Fidesz to power. No government until now has
felt emboldened or compelled to address so many of these problem areas
simultaneously. However, speed and volume in lawmaking cannot come at
the expense of quality, which only broad consultation and proper
judicial review can ensure. Nor should reforms create hierarchical
structures whose top tier, again and again, is the dominant party in
parliament. Voters can still change the ruling party through elections,
providing some opportunity for corrective measures, but the ubiquitous
two-thirds majority thresholds in recent legislation make it extremely
difficult for any future government to tamper with the legacy of the
current administration.
Ongoing economic crisis and political frustration in Europe are
likely to yield other governments that feel empowered to reject
international advice, make sweeping changes that entrench their
influence, and weaken checks and balances, damaging democratic
development for many years to come. But such behavior can be deterred
if early examples like the situation in Hungary are resolved in a
positive manner.
The threats to democracy that Freedom House has observed in Hungary
are troubling in their own right, but they are particularly disturbing
in the sense that the United States has come to rely on the countries
of Central Europe to help propel democratization further east, and
indeed in the rest of the world. The idea that these partners could
themselves require closer monitoring and encouragement bodes ill for
the more difficult cases in Eastern Europe and the Caucasus. It is
therefore essential that the United States and its European
counterparts closely coordinate their efforts to address backsliding in
countries like Hungary and support them on their way back to a
democratic path.
Thank you.
Prepared Statement of Paul A. Shapiro
Mr. Chairman, Mr. Vice-Chairman, Distinguished Members of the
Commission:
The Commission on Security and Cooperation in Europe continues to
focus the world's attention on manifestations of anti-Semitism, anti-
Romani prejudice, and other threats to democracy as they appear in
Europe and elsewhere. On behalf of the United States Holocaust Memorial
Museum, I would like to thank you for organizing this important hearing
regarding democracy and memory in Hungary.
Over a hundred years ago, the Spanish-born American philosopher
George Santayana wrote that ``Those who cannot remember the past are
condemned to repeat it'' (The Life of Reason, Vol. 1, 1905). In mid-
1944, the Jewish community of Hungary--the last major Jewish community
in Europe that was still largely intact--was assaulted and nearly
destroyed in its entirety over the course of a few months in mid- and
late-1944. Today, the memory of that tragedy is under serious challenge
in Hungary, with consequences that we cannot yet fully predict, but
which are ominous.
The Holocaust in Hungary
Before addressing what appears to be a coordinated assault on
memory of the Holocaust, or at least a concerted attempt to rewrite
Holocaust history, permit me to briefly review the history. According
to Professor Randolph Braham's authoritative 2-volume The Politics of
Genocide: The Holocaust in Hungary, the Jewish population of Hungary at
the start of World War II totaled just over 825,000 souls. Many of
these Jews lived in territories that Hungary had recently occupied or
re-acquired from neighboring countries as Hungary's Regent and Head of
State, Admiral Miklos Horthy, participated as an ally of Adolf Hitler
in the destabilization of Europe and the dismemberment of
Czechoslovakia (in 1938 and 1939), then Romania (in 1940), then
Yugoslavia (in 1941). Hungary withdrew from the League of Nations and
joined Nazi Germany in its military invasion of the Soviet Union in
June 1941. Unlike Italy, which withdrew from its German alliance in
1943, and unlike Romania, which did the same in 1944, Hungary remained
allied with Nazi Germany to the end, until the country was overrun by
Soviet military forces advancing on Germany from the east. As a result
of these government policies, the Hungarian military suffered some
300,000 casualties during the war.
Of the country's 825,000 Jews, nearly 75 percent were murdered.
Antisemitism in Hungary did not arrive from abroad. Miklos Horthy's
Hungary was the first European country after World War I to put in
place numerus clausus legislation, which restricted Jewish
participation in higher education (1920). Racial laws similar to those
of Nazi Germany, which defined Jews based on religion and ``race,'' and
deprived them of the right to practice their professions, to own land,
and which forbade intermarriage, were passed in 1938 and 1939. With war
came the systematic theft of Jewish property and mass murder. In 1941,
20,000 ``foreign Jews,'' who were residents of Hungary but not
Hungarian citizens, were deported across the border by Admiral Horthy's
government to Kamenetz-Podolsky in Ukraine, where they were executed by
waiting German forces. Hungarian troops executed another 1,000-plus
Jews during their invasion of northeast Yugoslavia that same year. Over
40,000 of the Jewish men conscripted into Jewish forced labor
battalions and taken to the eastern front, armed only with shovels to
dig defenses for the Hungarian military, died there of exposure, killed
in battle areas, or massively executed by the Hungarians as they
retreated following their defeat at the battle of Stalingrad in early
1943. Then, between April and July 1944, over 400,000 Hungarian Jews
were driven from their homes, concentrated in ghettos, and deported to
Auschwitz, where the overwhelming majority of them were gassed on
arrival. It was the Hungarian gendarmerie and police who identified and
concentrated the Jews, loaded them onto trains, and delivered them into
the hands of German SS units waiting at the German-Hungarian border.
This process continued systematically until only the Jews of Budapest
remained alive.
Admiral Horthy, whose governments had done all of this, hesitated
to use the same tactics against the Jews in Budapest that he had
sanctioned in the rest of the country. After Horthy was ousted
following the invasion of Hungary by German forces in mid-October, in
the wake of a last-minute attempt to extricate Hungary from its
alliance with Hitler (Soviet troops were already advancing across the
country's borders), the Hungarian fascist Arrow Cross Party (Nyilas)
government that took over had no such hesitation. The weeks that
followed saw a combination of forced ghettoization in Budapest; death
marches involving men, women and children, whose slightest misstep was
rewarded with a bullwhip or a bullet; and renewed deportations to
Auschwitz. Nyilas gangs engaged in wild shooting orgies in Budapest.
They massacred the patients, doctors and nurses at the Maros Street
Jewish Hostpital, to give just one example, and considered it sport to
shoot Jews seized at random into the Danube from the riverbank. Three
months of Nyilas government cost the lives of an additional 85,000
Hungarian Jews.
Hungarian collaboration and complicity in the Holocaust was thus
substantial, as were the losses suffered by this once-large and great
Jewish community. Statistics can speak volumes. Nearly one in ten of
the approximately six million Jews murdered in the Holocaust was a
Hungarian Jew. One of every three Jews murdered at Auschwitz was a
Hungarian Jew. And while every country in which the Holocaust took
place would like to place ultimate responsibility on someone else, we
must be clear. These Jewish men, women, and children--from grandparents
to grandchildren and great-grandchildren--were murdered either directly
by, or as a result of collaboration by, Hungarian government
authorities, from the Regent, Miklos Horthy, and the ``Leader of the
Nation'' (Nemzetvezeto) Ferenc Szalasi who succeeded him, at the
highest level, to the civil authorities, gendarmerie, and police, as
well as military forces and Arrow Cross thugs, who represented the
government from the capital to the smallest Hungarian village and town
where Jews lived. Some 28,000 Romani citizens of Hungary were also
deported and fell victim to this horrific carnage.
The Early Post-Communist Period
How has the history of the Holocaust been treated in Hungary since
the fall of communism? A decade ago, I would have said quite decently.
During Viktor Orban's first term as Prime Minister (1998-2002), the
coalition government that he led established a national Holocaust
Commemoration Day and brought Hungary into the International Task Force
for Cooperation on Holocaust Education, Remembrance and Research (since
renamed the International Holocaust Remembrance Alliance or IHRA). The
government also appointed a commission to create a Holocaust Memorial
and Documentation Center (HDKE) in Budapest. In 2004 I attended the
dedication at the HDKE of what was rightly recognized one of the best
exhibitions on the Holocaust in continental Europe.
The Socialist Party governments from 2002 to 2010 remained on this
positive path.
But during these years, the situation in Hungary began to change
dramatically. In late 2008, at a European regional conference on anti-
Semitism held in Bucharest, Romania, I expressed concern about the
public display in Hungary of symbols associated with the wartime
fascist Arrow Cross Party, increasing incidents of anti-Semitic
intimidation and violence, and anti-Romani discourse that was
increasingly Nazi-like in tone. A party of the extreme right called
Jobbik (abbreviation for ``Movement for a Better Hungary'') made its
appearance in 2003. Its leader also created a so-called Magyar Garda,
or ``Hungarian Guard'' force, formations of which paraded through
Budapest and towns elsewhere in the country, dressed in uniforms
reminiscent of Arrow Cross uniforms, brandishing fascist symbols and
slogans and intimidating the remnant of the country's Jewish community
that had survived the Holocaust and remained in Hungary. An especially
noteworthy indication of change was the failure of the then out-of-
power, but still powerful Fidesz party to join with other major
political parties in forceful condemnation of Jobbik's anti-Semitic and
anti-Romani sloganeering and Magyar Garda intimidation of Jews and
violence against Roma.
Recent Developments
In the 2010 elections, Fidesz received 52 percent of the vote and
returned to government with an empowering two-thirds majority in the
Hungarian Parliament. Jobbik, however, which was already being
described in European political and media circles as ``fascist,''
``neo-fascist,'' ``neo-Nazi,'' ``racist,'' ``anti-Semitic,'' ``anti-
Roma,'' and ``homophobic,'' had obtained nearly 17 percent of the vote.
In this circumstance, regrettably, the warning signs apparent in 2008
regarding Fidesz proved to be accurate. Still led by Prime Minister
Orban, he and his party changed their approach to issues of the
Holocaust. In the judgment of some people, this was the result of a
desire to appeal to Jobbik voters and thus secure better prospects for
future electoral victory than the just experienced 52 percent
performance. Others were less inclined to see the change as mere
political maneuver, and more inclined to see it as reflecting the
internal prejudices and beliefs of Fidesz itself.
The United States Holocaust Memorial Museum praised publicly some
actions of the first Fidesz government. But attempts over the past
three years to trivialize or distort the history of the Holocaust,
actions that have given rein to open manifestations of anti-Semitism in
the country, and efforts to rehabilitate political and cultural figures
that played a part in Hungary's tragic Holocaust history, now require
us to be publicly critical. In June of last year, the Museum issued a
press release expressing grave concern about the rehabilitation of
fascist ideologues and political leaders from World War II that is
taking place in Hungary and called on the government of Hungary to
``unequivocally renounce all forms of antisemitism and racism and to
reject every effort to honor individuals responsible for the genocide
of Europe's Jews.'' Our Founding Chairman, Nobel Laureate Elie Wiesel,
repudiated a high decoration that had been conferred on him by Hungary,
to protest these same trends.
What are the causes of our concern? They begin with the broad
political trends that the Commission is examining today. For anyone who
is familiar with the history of Nazi Germany and the other fascist and
authoritarian regimes that appeared in Europe in the middle of the 20th
century--and especially for Holocaust survivors who experienced the
full fury of those times and those regimes--what is happening in
Hungary today will sound eerily familiar and ominous.
The Hungarian government has enacted laws to place restrictions on
the media. Just recall the Nazis' manipulation of the media if you need
a reminder of the danger to democracy that this represents and where it
can lead. Think of all you know about Joseph Goebbels and the images
that you can conjure up of Nazi propaganda. Control the media, and this
is where you can end up.
The Hungarian government has taken steps to politicize and
undermine the independence of the judiciary, and now through amendment
of the constitution, to undermine the ability of the judiciary to
review government-generated laws and decrees. Recall, please, the
undermining of the practice and administration of law, the racist
Nuremberg Laws of 1935, and the subversion of the judiciary in Nazi
Germany and elsewhere in Nazi-dominated Europe. Ultimately, lawlessness
on the part of the government and mass murder were the results.
Hungary's law on religion has stripped many religious groups of
their officially recognized status as ``registered'' religions, in
effect depriving them of equal rights and making the legitimacy of
religious faith an object of political whim. For Jews and Jehovah's
Witnesses, Polish Catholics, Seventh Day Adventists, Baptists, Old
Believers and others, the echo of the Holocaust era could not be more
powerful. Delegitimizing one's faith delegitimizes the person.
Racial violence, including outright murder, against the Romani
minority in Hungary, while not perpetrated by the government, has not
been effectively addressed by the government either. When Szolt Bayer,
a founding member of Fidesz, whose brutal anti-Semitic rhetoric has
long been recognized and commented upon in European and Israeli media,
wrote an editorial in the newspaper Magyar Hirlap (Jan. 5, 2013) in
which he called ``Gypsies'' ``cowardly, repulsive, noxious animals,''
that are ``unfit to live among people,'' are ``animals and behave like
animals,'' and incited action by calling for dealing with them
``immediately, and by any means necessary,'' it was not possible to
miss the echo of the despicable propaganda campaigns of dehumanization
that preceded the mass murder of the Jews of Europe, Hungarian Jews
included. Hungary's Justice Minister made a statement critical of
Bayer, but no legal action by the government followed. Here was what we
Americans would call a classic ``wink and a nod'' approach by the
government. Nor was the author of this vile incitement to violence
expelled from Fidesz. The party's spokesperson also finessed the issue
in a manner that has become all too common: Szolt Bayer wrote the
article as a journalist, not as a Fidesz party member, was the line
taken. The Prime Minister and leader of Fidesz remained silent, giving
a clear sign that the views that had been expressed by Bayer were not
unacceptable. If there is one thing that the Holocaust teaches above
all others, it is that silence empowers the perpetrator, empowers the
hater; and when it is the head of government that is silent, silence
messages assent and license to proceed.
This pattern has unfortunately become the norm, perhaps giving
answer to the question of whether it is maneuver or conviction that is
determining the actions of the Hungarian government and Fidesz vis-a-
vis the Holocaust.
Assault on Memory of the Holocaust
Is the history of the Holocaust secure in Hungary today? Thus far,
the government's actions raise serious doubt.
The Holocaust Memorial and Documentation Center (HDKE): Shortly
after Fidesz returned to power, the government appointed new leadership
at the Holocaust Memorial and Documentation Center. Then, a series of
proposals to change the permanent exhibition at the Center were made by
Dr. Andras Levente Gal, the new Fidesz-appointed Hungarian State
Secretary in the Ministry of Public Administration and Justice, which
had governmental oversight of the Center. Gal's first proposal was to
eliminate mention of Miklos Horthy's alliance with Adolf Hitler and
participation in the dismemberment of three neighboring states--
Czechoslovakia, Romania, and Yugoslavia--as ``irrelevant'' to the
Holocaust. Yet, violation of the post-World War I national boundaries
brought war in Europe, and war provided opportunity and cover for the
mass murder of the Jews. Moreover, it was precisely the Jews of the
regions that Hitler restored to Hungary who were the first targets of
the Hungarian gendarmerie and police as they drove to create a country
``cleansed of Jews.'' Gal's second proposal was to sanitize the record
of Hungarian participation in the ghettoization and deportation of the
country's Jews and placed full blame for the destruction of Hungarian
Jewry on Germany. Word of the proposed changes leaked out, and there
was strong international reaction. Thus far the exhibition remains
intact. But much of the staff of the HDKE was fired, and budget
allocations to the Center as late as last December left the staff that
remained fearful that they, too, would be released. Meanwhile,
visitation to the Center has declined, and the lack of mandated
Holocaust education in the school system has left the institution
severely underutilized.
Eventually, Andras Levente Gal left his position, and government
officials noted that he was gone if the issue of changing the permanent
exhibition at the HDKE was raised. But Gal remains an insider, and at
no point did the government, or Fidesz party spokespeople, or the Prime
Minister publicly criticize or issue a rebuke of Mr. Gal's attempt to
distort and sanitize Holocaust history. This left the impression
publicly that what Mr. Gal had tried to do was fine in the eyes of the
government and Fidesz, probably even inspired from above. Gal simply
had not succeeded in getting the job done.
The Nyiro Affair: A similar situation developed in the aftermath of
the so-called Nyiro affair. Last spring, Speaker of the Hungarian
National Assembly (Parliament) Laszlo Kover, who is a founding member
of Fidesz, together with Hungarian State Secretary for Culture Geza
Szocs, and Gabor Vona, the leader of Jobbik, united to honor
posthumously Jozsef Nyiro (1889-1953), a Transylvanian-born writer and
fascist ideologue, and member of Hungary's wartime parliament from 1941
to 1945. Nyiro served as Vice-chair of the Education Commission in the
Arrow Cross regime of Ferenc Szalasi. He was a member of the pro-Nazi
National Association of Legislators, and was one of a group of
legislators in the so-called ``Arrow Cross Parliament'' that left
Budapest and fled the country together with Szalasi in the final days
of the war. Nyiro had been a popular writer of short stories and novels
in the 1930s and 1940s, but he also characterized Joseph Goebbels as
someone who ``exudes intellect and genius.'' In parliament, Nyiro
labeled the ``discredited liberal Jewish heritage'' the enemy of
Hungary and, dispensing race hatred in all directions, called Hungarian
marriages with non-ethnic Hungarians ``mutt marriages'' and ``mule
marriages.'' Nyiro was editor-in-chief of the newspaper Magyar Ero
(``Hungarian Power''), whose editorials proclaimed that ``Getting rid
of the Jews is not a mere sign of the times, nor the agenda of a
political party, but a unified and pressing demand of all nations that
have recognized the Jewish threat and come to the conclusion that life
without Jews is much better, much happier'' (Magyar Ero, Nov. 6, 1942).
Nyiro passed away in Franco's Spain. The plan developed by Kover,
Szocs and Vona was to rebury Nyiro's ashes in Transylvania, while
attempting to whip up nationalistic sentiment among the ethnic
Hungarian minority there through an elaborate official funerary
procession that would wend its way by train from the Hungarian border
to Nyiro's birthplace, Odorheiu Secuiesc (Szekelyudvarhely), some 200
miles inside Romania and close to the easternmost demarcation line of
the Romanian territory awarded to Hungary by Nazi Germany in 1940. In
the end, the Romanian government protested, there was no train, but the
Hungarian officials I have mentioned still participated in an
``unofficial'' burial ceremony, following which Kover, accompanied by
Szolt Bayer, stayed on in Romania for the purpose of visiting with the
ethnic Hungarian (and Szekler) communities in Transylvania.
Diplomatically, the incident was not quite the equivalent of Admiral
Horthy astride his white horse leading the Hungarian army into the
regions of Transylvania given him by Adolf Hitler, as happened in 1940.
But symbolically, this was the intent.
How did the Fidesz government deal with this incident? Speaker
Kover personally was unrepentant. He labeled the Romanian Government's
action to prevent the reburial plan ``uncivilized,'' ``paranoid,'' and
``hysterical,'' and he called on the Hungarian ethnic minority in
Transylvania to ``press the books of Nyiro into the hands of their
children'' so that ``a new generation of Nyiros'' would be raised
there. He responded to criticism by Elie Wiesel by claiming that he was
honoring Nyiro the writer, not Nyiro the politician. Moreover, wrote
Kover, Nyiro was neither a war criminal, nor a fascist, nor anti-
Semitic, for if he had been, how could one explain the fact that the
Allies did not put him on trial after the war or extradite him to
Hungary in response to requests by the by-then Communist government of
the country? Pushing back by laying blame on others in this manner has
become a frequent tool in the Hungarian government's responses to
criticism of its actions. The Prime Minister, for example, responded to
a letter from a Member of the U.S. House of Representatives (Hon.
Joseph Crowley, 14th Dist., NY) by laying blame for the rise of anti-
Semitism in Hungary on a U.S.-based web site (kuruc.info), the
implication being that the Hungarian government could do nothing until
the United States dealt with its First Amendment ``problem.''
Meanwhile, Laszlo Kover has remained Speaker of the Hungarian
parliament, and recently proclaimed his eternal solidarity with Szolt
Bayer (see above) at Bayer's 50th birthday celebration.
As in the case of Andras Levente Gal, neither Fidesz nor the
Hungarian government, nor the Prime Minister himself, took any action
to criticize publicly or disassociate themselves from what Kover and
Szocs had attempted. Quite the contrary. The detailed ``Communications
Guidelines to Counter Accusations of Antisemitism'' that was sent to
Hungarian diplomats abroad following the Nyiro affair instructed the
government's representatives to stress that Speaker Kover participated
in the memorial ceremony for Nyiro ``in his private capacity,'' not as
Speaker of the National Assembly, and that Nyiro's record should be
appraised based on his literary merits, not his political activity. In
other words, the government was comfortable seeking to gloss over
Nyiro's involvement in a regime that perpetrated the Holocaust. The
government's talking points failed to mention that the Hungarian
Parliament had spent 6 million forints (over $25,000) on preparations
for the reburial, or that Speaker Kover's web site had announced his
planned trip to Romania as an official visit. As for Szocs, after some
delay he left office. His departure is noted by government
representatives when inquiries are made, but there has been no
government statement linking his departure to the Nyiro affair or
indicating that he was fired.
Anti-Semites in the National Curriculum: Nyiro's name and legacy
became issues again in connection with a review and proposed revision
of Hungary's national public school curriculum that was initiated by
the Fidesz government and is being carried out by the Ministry of
National Resources. The government has proposed to include among the
interwar authors whose works it is recommended teachers present to
their students Jozsef Nyiro (novels), Albert Wass (children's tales),
and Deszo Szabo, among others. The guidelines in the National
Curriculum provide no assistance to help teachers provide contextual
information about these writers--including information about their
political activities that might help teachers decide whether and how to
teach about them. I have already discussed Nyiro. Let me introduce
Deszo Szabo and Albert Wass, without attempting to evaluate the
literary merits of their prose. Deszo Szabo wrote, ``Jews are the most
serious and the most deadly enemy of Hungarians. The Jewish question is
a life and death question for Hungarians--a question that is linked to
every aspect of Hungarian life and the Hungarian future''
(``Antiszemitizmus,'' Virradat [Dawn], Jan. 21, 1921); and two months
later, after designating Judaism ``a tribal superstition exalted as a
religion,'' concluded ``In the interest of human progress, the
barbarian, murderous memories of dark, primeval centuries [that is, the
Jews--PAS] must be exterminated'' (``1848 marcius 15,'' Virradat, Mar.
16, 1921). Albert Wass, like Nyiro born in Transylvania, was convicted
by the Romanian government of war crimes during his service in the
Hungarian army, including complicity in the documented murder of two
Jews and two Romanians in Hungarian-administered Transylvania during
World War II. This did not prevent the incoming President of Hungary,
Fidesz Deputy President Pal Schmitt from quoting Wass in his inaugural
address in 2011.
In addition to the inclusion of problematic figures such as these,
each of whom either fostered anti-Semitism or participated politically
or militarily in regime-sponsored murder, the draft National Curriculum
also stresses the country's territorial losses after World War I as
Hungary's singular national tragedy, while suggesting equivalency with
lesser significance between the Holocaust and Hungarian military losses
on the Don River (Stalingrad) during World War II. Equating the loss of
military forces to an enemy in battle with the systematic, racially
inspired murder of civilian men, women and children who are citizens of
one's own country, solely because they are of different religion or
ethnicity, of course makes no sense, unless motivated by prejudice and
intended to reinforce prejudice.
Finally, while some information relating to Jewish history and the
contributions of Jews to Hungarian intellectual, cultural, and economic
life were included in the new National Curriculum approved at the end
of 2012, the information fell short of the subject matter suggested by
a consortium of Hungarian Jewish organizations. In a classic case of
the government seeking to have it both ways, directing students'
attention to the likes of Nyiro, Szabo and Wass will likely undercut
any positive effect of the new material reflecting positively on Jews,
unless the latter is considerably expanded. Hungarian Jewish
organizations have petitioned the government to remove these ``anti-
Semites'' from the curriculum, but thus far the reply has been
negative; indeed, it has been a more rigorous coordinated defense of
the three ``writers.''
The tactic of seeking to divert attention elsewhere to deflect
criticism has been mobilized on the curriculum issue. Government
spokespeople have responded to criticism from the United States, for
example, by pointing out that Henry Ford, Charles Lindbergh, and Ezra
Pound are included in American high school curricula, despite their
demonstrable anti-Semitism. At this point, downplaying the significance
of anti-Semitism as a factor to be considered, undermining
understanding of the contributions of Hungarian Jewry to Hungarian
national life, while trivializing and relativizing the significance of
the Holocaust have been codified as elements of the Hungarian
educational system that the Fidesz government has designed.
Rehabilitation of Holocaust Perpetrators: Hand in hand with
attempts to whitewash Hungarian collaboration and complicity during the
Holocaust, hand in hand with efforts to justify Hungary's alliance with
Nazi Germany, has gone a growing effort to rehabilitate the murderers.
See Nyilas operative Nyiro as a writer who deserves to be honored as a
national icon, not as a fascist. See Albert Wass as a writer of
children's tales, not as a convicted war criminal. In this context, it
is hardly surprising that we are witnessing the attempted
rehabilitation of Admiral Horthy himself. Several towns have erected
statues or placed plaques on buildings in his honor (e.g., in Kereki
and Debrecen). Placing an equestrian statue of the Regent on Budapest's
Castle Hill has also been discussed. In other localities, streets,
parks and public squares now bear his name (e.g., in Gyomro).
When asked to take action to halt the de facto rehabilitation of
Hungary's anti-Semitic interwar and wartime leader, during whose tenure
as Regent a half million Hungarian Jews were killed, the Hungarian
government responds evasively. The government is not seeking to
rehabilitate Horthy, goes the standard line, but it is important to
realize that Horthy is a ``controversial'' figure. Foreign Minister
Janos Martonyi, responding to a joint letter addressed by the American
Jewish Committee, B'Nai B'rith, and our Museum to Prime Minister Orban,
adopted precisely this approach, stating, on the one hand, ``that the
Hungarian Government has no intention to rehabilitate Regent Horthy,''
but qualifying the assurance with a reminder that ``there is no
consensus of opinion about his legacy'' (Martonyi letter of July 18,
2012). Implicit in such a response is that the government's approach
could change if a consensus favorable to Horthy develops. Meanwhile,
the government has taken advantage of the situation, and in the process
added its weight to a more positive evaluation of Horthy, by playing to
nationalist and populist sentiments, seeking to purge Horthy's record
as a Hitler ally, and glorifying the restoration of Hungary's ``lost
territories'' that Horthy was able to achieve, if only for a few years.
The government has not taken serious steps to research and more
rigorously evaluate Horthy's record. It has certainly not placed equal
emphasis on his record of anti-Semitism and complicity in the murder of
the country's Jews. Nor has it sought to defuse tensions with Hungary's
neighbors by tempering the country's fixation on the so-called ``lost
territories''--territories that today are parts of Austria, Slovakia,
Ukraine, Romania, Croatia, and Serbia.
Indeed, rather than assuming the responsibility of government to
clarify issues of historical and political significance, Fidesz and the
Hungarian government have thrown up a smokescreen to further confuse
the Horthy issue by allowing--perhaps encouraging--people who speak for
or represent Fidesz and the Hungarian Government to suggest that the
fact that Horthy was not put on trial by allied authorities after the
war is sufficient to indicate that Horthy's record was clean (Author's
conversation with Tamas Fellegi, December 3, 2012). This tactic of
shifting ``responsibility'' for the problem abroad, as we saw with the
Nyiro case and regarding the kuruc.info web site, has become routine.
But it hardly suffices to cleanse the reputation of Miklos Horthy, who
could write with pride to his Prime Minister in 1940, ``I have been an
anti-Semite my whole life,'' and to Adolf Hitler in May 1943, ``The
measures that I have imposed have, in practice, deprived the Jews of
any opportunity to practice their damaging influence on public life in
this country'' (Miklos Sinai and Laszlo Szucs, Horthy Miklos titkos
iratai [Miklos Horthy's Secret Correspondence], Budapest, 1965, pp. 262
and 392). Given his lifelong record of anti-Semitism and his complicity
in the murder of the Jews of Hungary, the attempt to rehabilitate
Miklos Horthy, or to condone his elevation even to the status of
someone whose reputation is ``controversial,'' might reasonably be
considered a manifestation of anti-Semitism.
The government has labeled the statues, streets and other Horthy
monuments that have appeared around the country local initiatives which
the national government has no way to prevent. The fact that the Fidesz
government has an overwhelming parliamentary majority, has promulgated
a new national constitution, and has recently passed dramatic new
constitutional amendments that limit the power of the Constitutional
Court to review the content of legislation, obviates the credibility of
such assertions.
In short, the history of the Holocaust is under assault in Hungary
and the rehabilitation of some of the people responsible for the murder
of 600,000 of the country's Jews during the Holocaust is well under
way. An atmosphere has been created in which it is understood that
anti-Semitic and anti-Romani discourse, and even intimidation and
violence, will not elicit effective government action to alter the
situation. The government and people perceived to be closely tied to it
may, in some cases, issue after-the-fact statements condemning anti-
Semitic or anti-Romani discourse and deed. But they are just as likely
not to do so, thus messaging clearly that such expression and activity
is, in fact, acceptable. The participation of Fidesz members and
government officials in activities that further inflame the toxic
atmosphere is clear. Such behavior requires swift and public censure,
including disavowal and censure by the Prime Minister himself. But this
has not happened. Government spokespeople assert that the problem is
Jobbik, but neither they nor the Prime Minister have thus far
forcefully and publicly condemned Jobbik as outside the boundaries of
what is acceptable in a democratic society.
Nor have the leaders of Fidesz distanced their party unequivocally
from Jobbik. When a party member or spokesperson makes a stronger
statement of condemnation of Jobbik, or takes a clearly critical
position vis-a-vis a manifestation of anti-Semitism or trivialization
or obfuscation of the Holocaust, the statement is very frequently
qualified, almost immediately, as a personal opinion, not a
governmental or party opinion. Thus, when Antal Rogan, leader of the
Fidesz faction in parliament, spoke out against Jobbik at a public
demonstration in front of the parliament building on December 2,
following an inflammatory speech by Jobbik MP and Vice Chairman of the
parliamentary Foreign Affairs Committee Marton Gyongyosi, who proposed
that lists of Jews be kept because Jews represented a national security
risk, Fidesz representatives pointed out the following day that Rogan
had been speaking in his personal capacity, not on behalf of the party.
A similar occurrence took place in Washington on February 27, 2013,
when Tamas Fellegi, a confidant of Prime Minister Orban, testified in
these august halls before a subcommittee of the U.S. House of
Representatives Committee on Foreign Affairs, at a hearing on
``Antisemitism: A Growing Threat to All Faiths.'' Mr. Fellegi took up
defense of the Hungarian government by stating that while Jobbik is
``an openly anti-Semitic party,'' ``[t]here is a clear line of
demarcation between Jobbik, and the center-right government and all
other mainstream parties.'' He delivered a lengthy and forceful defense
of the Prime Minister's party and performance in the first and second
Orban administrations. But when, perhaps to impress his independence of
opinion on his listeners, he allowed that the ``infamous commentaries
of [Fidesz member] Szolt Bayer'' could be ``deemed as racist,'' and
stated opposition to the ``rehabilitation of the historic period of
Admiral Horthy,'' he immediately made it clear that these were only his
personal views.
A Way Forward?
The issue that must be addressed, given the record I have
described, is how to find a way forward in combatting anti-Semitism and
ensuring Holocaust remembrance and education in Hungary. Every
criticism, explicit or implicit, in this testimony has been intended to
identify a problem that can be solved, not to induce despair or the
sense that the problems cannot be solved. It is important to remember
that Hungarian society emerged from communist dictatorship less than 25
years ago. It is important to remember that Fidesz was, at its origin,
a democratic movement in a totalitarian era. And it is important to
recall that it was the current Prime Minister, Mr. Orban, who during
his first administration established Hungary's national Holocaust
Commemoration Day and laid the foundation for establishment of the
Holocaust Memorial and Documentation Center in Budapest. Thus the
potential for sensitivity to the dangers inherent in anti-Semitism and
distortion or trivialization of the Holocaust exists.
And yet, in today's Hungary it was possible for a female member of
parliament to be shouted down and ridiculed by MPs from both Jobbik and
Fidesz, when she questioned the wisdom of rehabilitating Miklos Horthy
and members of the Arrow Cross (Hungarian National Assembly, May 29,
2012). It was possible for Jobbik's Marton Gyongyosi to suggest in the
parliamentary chamber that Jews were a national security risk, and to
experience no formal censure, only belated criticism by the government,
followed by refusal of the state prosecutor to pursue legal sanctions
that had been requested by the Jewish community (Hungarian National
Assembly, November 27, 2012). It is possible for Magyar Garda units to
continue to assemble and march, to intimidate Jews and Roma, despite a
formal legal ban. It is possible for incremental rehabilitation to be
under way for political figures who aligned the country with Adolf
Hitler; participated in the disruption of peace in Europe and the
murder of 600,000 Hungarian Jews and thousands of Romani; adopted
policies that resulted in hundreds of thousands of Hungarian military
casualties; and, ultimately, bore responsibility for policies that led
to the occupation of the country by Soviet military forces and led to
45 years of communist dictatorship. It is even possible for the legacy
of such people to be labeled ``controversial'' by Fidesz and Hungarian
government spokespeople.
In 2012, three major Holocaust-related monuments in Budapest--the
Holocaust Memorial and Documentation Center, the memorial statue
honoring Raoul Wallenberg, and the iconic bronze shoes on the banks of
the Danube which memorialize the 10,000 or more Jews shot into the
river during the final months of the war--were vandalized. A 2012
survey by the Anti-Defamation League identified Hungary as the European
country where anti-Semitic attitudes are most widespread.
Under circumstances such as these, we believe that it is the
responsibility of the Prime Minister to lead and the government to take
remedial action, not to equivocate, excuse, deflect, seek to divert
attention elsewhere, or lobby. The Hungarian government, by virtue of
its overwhelming parliamentary majority, is able to act, and for
precisely this reason bears responsibility for what is or is not done
vis-a-vis manifestations of anti-Semitism and Holocaust issues.
To be fair, the government has taken some steps of potential
significance in the right direction in recent months. In November,
Parliament passed a ban on the naming of public institutions or spaces
after individuals who played a role in establishing or sustaining
``totalitarian political regimes'' in the 20th century. In December,
the Government provided supplemental funding to the Holocaust Memorial
and Documentation Center to permit the Center to keep its doors open
and pay its staff through the remainder of the current fiscal year. A
week after the incident and in the wake of a major public demonstration
on December 2 to protest Jobbik MP Gyongyosi's suggestion that name
lists of the country's Jews be created, Prime Minister Orban finally
criticized Gyongyosi's remarks as ``unworthy of Hungary.'' Later in the
month, the Speaker of the Hungarian Parliament was given authority to
censure and potentially exclude from the chamber and fine MPs who used
hate speech during parliamentary sessions. The government has also
established a Hungarian Holocaust 2014 Memorial Committee, under
auspices of the Prime Minister's Office, to plan commemorative events
for the 70th anniversary of the mass deportation and murder of
Hungarian Jewry.
The actual impact of each of these steps, however, remains to be
seen. It is unclear whether Hungary's wartime governments, those under
the authority of Miklos Horthy as well as the government headed by
Ferenc Szalasi, will be considered to fall under the rubric of
``totalitarian political regimes.'' The Horthy statues and memorial
plaques and spaces remain in place, even though the new law stipulates
that existing memorials within the purview of the law were to have been
removed by January 1, 2013. The Holocaust Memorial and Documentation
Center, while open, remains severely underutilized and unable to pursue
much of the educational mission for which it was created. While he did
criticize Gyongyosi's speech, albeit belatedly, Prime Minister Orban
has yet to clearly draw a line that definitively separates Fidesz from
Jobbik. Nor has he publicly censured or repudiated members of Fidesz,
such as Szolt Bayer, who engage in distasteful and incendiary racist
and anti-Semitic discourse. It remains to be seen whether the Speaker's
new authority actually will be put to use to control anti-Semitic and
anti-Romani discourse in parliament. The activities to be undertaken by
the 2014 Memorial Committee remain to be defined. Whether or not they
effectively reduce anti-Semitic manifestations in Hungary and clarify
for the country's population issues that today are deemed
``controversial,'' relating to Hungary's wartime governments and the
Holocaust, will be the only true measures of the significance of the
current government's action.
Moreover, the steps that the Government has taken, even if all
implemented and effective, in our view will not suffice to address the
full range of issues relating to anti-Semitism and the Holocaust that
confront the country. The United States Holocaust Memorial Museum has
engaged in broad-ranging consultations with organizations in the United
States with which we regularly work, with members of Prime Minister
Orban's staff, with other members of the Hungarian Government,
including Ambassador Gyorgy Szapary, who represents his government in
Washington, and with NGO leaders, representatives of the Hungarian
Jewish community, and representatives of mainstream opposition
political parties in Hungary. Based on these consultations and our own
experience, in December we recommended the following to the Prime
Minister's Office:
a) Establish and appoint a state-sponsored International Commission
of Scholars to prepare a definitive report on the history of the
Holocaust in Hungary, including the history of anti-Semitism in the
country, and to make recommendations to the Government regarding future
Holocaust memorialization, education and research activities. The
Museum has provided the Prime Minister's Office with information
regarding the establishment and organization of such commissions in
other European countries. While the placement within the government of
responsibility for organizational, administrative, and financial
support for such a commission is clearly to be determined by the
Hungarian government, following appointment of the Hungarian Holocaust
2014 Memorial Committee, under auspices of the Office of the Prime
Minister, we have further suggested that the International Commission
of Scholars be established under the same auspices. The two-year time
frame established for the Memorial Committee would coincide very well
in practical terms with the time needed for preparation of a thorough
report by the International Commission of Scholars.
b) Enact legislation (or amend existing legislation) to prevent the
creation of monuments to, naming of streets or other public sites in
memory of, or otherwise honoring individuals (including but not limited
to Regent Miklos Horthy) who played significant roles in the Holocaust-
era wartime governments of Hungary. Clarify the inclusion of these
governments in the November 2012 law regarding individuals involved in
Hungary's 20th century ``totalitarian political regimes.''
c) Mandate in the Hungarian secondary school curriculum that every
student in the country visit the Holocaust Memorial and Documentation
Center in an organized class visit during his/her final four years of
high school education. This would require the provision of subsidized
transportation for students and teachers for day trips to and from
Budapest; enhancement of staff and management at the Center; and the
provision of additional space to the Center for student briefings and
post-visit discussions (potentially a rented nearby apartment
retrofitted as classroom/meeting room space). The initiative would
finally and effectively capitalize on the investment that Hungary has
already made in creating the Center.
d) Ensure that the Speaker of the Parliament consistently applies
the recently established authority of the Speaker to censure, suspend,
and fine MPs for expressions of racist and anti-Semitic views, or use
of other forms of hate speech. In addition, we recommend that such
censure be publicly announced, through official statements by the
Office of the Speaker issued to the media.
e) Institute a policy of censure by the Office of the Prime
Minister of ranking members of government ministries who participate,
in either public or ``private'' capacity, in activities that are likely
to reinforce racist, anti-Semitic or anti-Romani prejudices or that
appear to rehabilitate the reputations of individuals who participated
in the wartime governments of Hungary. Such censure should be publicly
announced through official statements issued by the Office of the Prime
Minister to the media.
f) Issue to the media an unequivocal statement by the Prime
Minister clearly defining the racist and extremist views expressed by
Jobbik as lying outside the boundaries of acceptable discourse in a
democratic society and totally unacceptable within the Prime Minister's
own political party, Fidesz. Members of the Prime Minister's party who
express similar views should be publicly reprimanded.
Our Museum has confirmed to the Hungarian Government that we stand
ready to be helpful. We have offered to host here in Washington one of
the plenary meetings of the proposed International Commission of
Scholars that would be required to enable members to complete the
drafting, debate and discussion of a comprehensive Commission report.
We believe that the actions we have suggested would help to reverse the
dangerous downward cycle which appears to define events in Hungary
today. In just a few weeks, Museum Director Bloomfield and I will be
participating in the dedication of a new permanent exhibition at the
Mauthausen Camp Memorial (KZ-Gedenkstatte Mauthausen) in Austria. Late
in the war, thousands of Hungarian Jews who had been selected for labor
in Auschwitz were ``transferred'' to Mauthausen. Many perished during
death marches that stretched between the two camps. Most of those who
reached Mauthausen perished there. In the shadow of that history,
Director Bloomfield and I have offered to travel to Budapest following
the Mauthausen dedication ceremony to meet with Prime Minister Orban
and those to whom he has entrusted responsibility for dealing
constructively with Holocaust issues and combatting manifestations of
anti-Semitism. We are hopeful that we will receive a positive response.
In the meantime, the Museum has planned a number of scholarly
activities for the coming year that will sustain focus on Hungary and
secure the historical record regarding what happened there during the
Holocaust. In April, we will publish, in partnership with Northwestern
University Press, a three-volume encyclopedia, edited by Professor
Randolph Braham of the City University of New York, that provides
information--county by county, town by town, village by village--on the
pre-Holocaust Jewish community of Hungary and the events of the
Holocaust in each respective community. Professor Braham, who is a
survivor of the notorious Hungarian Jewish labor battalions established
by the Horthy regime, is the world's leading expert on this history.
Later during the year, we will publish a document collection on The
Holocaust in Hungary as part of our archival studies series
``Documenting Life and Destruction.'' And in March of next year, on the
70th anniversary of the beginning of deportations of Hungarian Jewry to
Auschwitz, we will host at the Museum a major international conference
on the Holocaust in Hungary. When first proposing to the Hungarian
government the establishment of an International Commission of Scholars
on the Holocaust in Hungary, I had hoped that a plenary session of the
Commission might coincide with and be coordinated with this conference.
Timely action to establish a Commission might still allow for a degree
of coordination.
Conclusion
Today's hearing is focused on the trajectory of democracy and the
danger of extremism--in the form of racism, anti-Semitism, and
Holocaust trivialization--in Hungary. I have described trends that
potentially undermine the safety of Jews, Roma, and other minorities in
Hungary and that threaten the ability of Hungarians to come to grips
with the truth regarding the Holocaust--a national tragedy of a
different era. Democracy and memory: I want to stress that these two
concerns are interrelated. Undermine democracy, and the rights of human
beings deemed to be ``different'' are easily violated. The Hungary of
World War II provided an extreme example. And misrepresenting the
tragedies of one's national past--trivializing them, relativizing them,
or failing to clarify issues of fact when they become ``controversial''
or are distorted for political purpose--forces those in power to
subvert democratic practice, to control the media, manipulate electoral
mechanisms, and adopt increasingly extreme ``populist'' and jingoist
stances, in the hope of staying in power permanently--an outcome that
is only available in dictatorships, never in democracies.
I know that lobbyists are not seen in every instance in a favorable
light. But I appear today on behalf of the United States Holocaust
Memorial Museum as a lobbyist for the truth, a lobbyist for 600,000
Hungarian Jews and thousands of Hungarian Romani who cannot be here.
Their lives were snuffed out due to the decisions, prejudices and
failures of their country's leadership--Miklos Horthy, Ferenc Szalasi,
and numerous other political and military leaders, fascist ``writers''
like Nyiro, Szabo, and Wass--and those who collaborated or were
directly complicit in acts of theft, deportation and murder.
Will Hungary become a source of instability in Europe, this time in
the heart of the European Union, as it was in the late 1930s? Will
ethnic and religious minorities, including a Jewish community of 80-
100,000 souls remain free of harassment and safe there? Will this
country, which was once home to a Jewish population that numbered over
800,000, trivialize memory of the Holocaust and lead a revival of anti-
Semitic sentiment in Europe? Are contemporary developments appropriate
for a state that is a member of the International Holocaust Remembrance
Alliance (IHRA), a member of the European Union, and a member of NATO?
I will restrict my response to my assigned topic and expertise--the
Holocaust and anti-Semitism. Some weeks ago, Hungary volunteered to
assume the chair of the International Holocaust Remembrance Alliance in
2015. Given the current situation, which I have endeavored to describe,
this would be inappropriate and an insult to the living and desecration
of the memory of the dead. Ultimately, of course, the decision will be
taken by the state members of the IHRA, in all likelihood based on more
practical and political considerations. But I would hope that before
any decision is taken, including by our own representatives at the
IHRA, the Hungarian Government will alter the approaches that it has
taken in addressing anti-Semitism and Holocaust issues in Hungary,
adopt the suggestions our Museum has made, and guide Hungary--a country
with much to be proud of in its history--onto a path that is admired
and praised rather than scorned and criticized. Representatives of
Fidesz and the Hungarian Government with whom I have spoken frequently
complain that their missteps are always criticized, while their
positive actions are never commended. I for one, and the institution I
represent here, commit to praise when positive steps are taken.
I began these remarks by citing philosopher George Santayana. I
would like to conclude by quoting our Museum's Founding Chairman and
Nobel Laureate Elie Wiesel, who was sent to the ghetto by Hungarian
gendarmes and deported with his family to Auschwitz while Miklos Horthy
served as Regent of Hungary. ``There may be times when we are powerless
to prevent injustice,'' wrote Wiesel, ``but there must never be a time
when we fail to protest.'' I hope that my testimony today is sufficient
protest to stimulate action. On another occasion, Elie Wiesel declared,
``If anything can, it is memory that will save humanity.'' Securing the
memory of the Holocaust in Hungary is essential.
Mr. Chairman, I request that my written statement be included in
the record in full.
Testimony Concerning the Condition of Religious Freedom in Hungary, H.
David Baer, Texas Lutheran University
In July 2011, Hungary's Parliament passed Act C of 2011 ``on the
Right to Freedom of Conscience and Religion, and on the Legal Status of
Churches, Religious Denominations and Religious Communities.'' Act C of
2011 was a cardinal law, requiring a 2/3 parliamentary vote to be
passed or amended. However, the law was passed through a highly
irregular parliamentary procedure inappropriate for legislation on such
a fundamental matter as religious freedom. An initial bill was brought
to the floor by a representative of the Christian Democratic People's
Party (KDNP), a coalition party in the ruling government, but two hours
before the final vote, a member of Fidesz, Janos Lazar, proposed an
amendment from the floor that changed the bill in its entirety. Lazar's
surprise version of the bill was debated on the floor for two hours and
passed by Parliament.
On December 19, 2011, the Constitutional Court struck down Act C on
the basis of a narrow objection to the irregular procedure by which the
law was passed. Three days later, on December 22, a new religion bill
essentially identical to Act C was submitted to Parliament's Committee
on Constitutional, Legislative and Judicial Matters (Alkotmanyugyi,
igazsagugyi es ugyrendi bizottsag). The Constitutional Committee
discussed the bill from 9:09 to 9:53 a.m. and then forwarded it to
Parliament, where debate was taken up and closed the very same day.
Although representatives in Parliament had less than 24 hours to
consider the contents of the bill and propose amendments, it was passed
as Act CCVI of 2011 and went into effect January 1, 2012.
Act CCVI of 2011 introduced an elaborate registration procedure for
legal recognition of churches. The Act stipulates that religious groups
seeking legal recognition must conform to numerous criteria, almost all
of which are problematic. Some criteria presuppose a substantive
definition of religion that is biased toward Christianity. For example,
groups seeking legal recognition need to have ``a confession of faith
and rites containing the essence of its teaching.'' Although this
criterion may be appropriate for what are called ``orthodox''
religions, that is, religions like Christianity which emphasize
confessional and official teaching, it is hardly appropriate for what
are called ``orthoprax'' religions, that is, religions like Judaism and
Buddhism which emphasize religious practices but do not produce
authoritative confessions. Other criteria are excessively burdensome.
For example, groups seeking legal recognition need to have been
``operating internationally for at least 100 years or in an organised
manner as an association in Hungary for at least 20 years.'' Some
criteria are sweepingly vague. For example, the activities of a
religious group seeking registration cannot be contrary to the
Hungarian constitution--a constitution, one might add, that has already
been substantially amended four times in a single year.
According to the Act, legal recognition to churches is granted only
by a 2/3 vote of Parliament. However, even in cases where a religious
group meets all of the criteria enumerated in the law, Parliament is
not required to grant that religious group legal recognition. Tamas
Lukacs, chair of the parliamentary Committee on Human Rights, Minority,
Civic and Religious Affairs (Emberi jogi, kisebbsegi es vallasugyi
bizottsag), has stated repeatedly that religious groups do not have a
right to be legally recognized as a church or religious community, but
that legal recognition is a matter of political discretion. In Lukacs's
view the state is free to refuse recognition to religious groups even
in cases where they meet all the criteria enunciated in law.
Importantly, the Committee on Human Rights which Lukacs chairs has been
responsible for determining whether applications by religious groups
for legal recognition are forwarded to Parliament. Thus Lukacs's views
on these matters are of consequence.
When Act CCVI of 2011 was first passed, Parliament recognized only
14 churches/religious communities, all of which were either Christian
or Jewish. In February 2012, perhaps in response to international
pressure, Parliament recognized an additional 13 groups, including
Muslims, Buddhists, and smaller Christian groups, thereby raising the
number of recognized churches to 27. (Numerous reports have listed the
number of accepted churches as 32. However, Act CCVI of 2011 and its
``annex'' list a total of 27 churches. Five Buddhist communities merged
and were recognized collectively as one church in the law. If one
incorrectly adds those five Buddhist groups separately to the list of
27 accepted churches, one gets 32). Act CCVI of 2011 also stripped all
religious groups not recognized by Parliament of legal standing,
forcing them to apply for recognition as civil associations.
Criticisms of Hungary's religion law
In March 2012, the European Commission for Democracy Through Law
(Venice Commission) issued an opinion on Act CCVI of 2011. Although the
Commission raised questions about many aspects of the law, its most
severe criticism was directed against the procedure by which Parliament
determined legal recognition. According to the Venice Commission:
The recognition or de-recognition of a religious community
(organization) remains fully in the hands of Parliament, which
inevitably tends to be more or less based on political considerations.
Not only because Parliament as such is hardly able to perform detailed
studies related to the interpretation of the definitions contained in
the Act, but also because this procedure does not offer sufficient
guarantees for a neutral and impartial application of the Act. . . .
Motives of the decisions of the Hungarian Parliament are not public and
not grounded. The recognition is taken by a Parliamentary Committee in
the form of a law (in case of a positive decision) or a resolution (in
case of a negative decision). This cannot be viewed as complying with
the standards of due process of law. (Opinion 664/2012 par. 76-77).
In fact, as Tamas Lukacs pointed out in the Hungarian media, since
church recognition is a matter of political discretion, members of
Parliament are not even required to offer reasons related to the
criteria enumerated in the law for refusing recognition to a religious
group.
That members of Parliament do not feel constrained by the criteria
set forth in Act CCVI of 2011 was made clear in a meeting of the
Committee on Human Rights, Minority, Civic and Religious Affairs held
on November 27, 2012. The Committee considered and rejected an
application for recognition by a Christian group named Lectorium
Rosicrucianum. The publicly available minutes from this meeting
indicate clearly that members of the Committee did not make their
evaluations on the basis of the criteria enunciated in Act CCVI of
2011. Maria Wittner, a member of Fidesz, reasoned against legal
recognition on the following grounds:
There was a time when we were considered pagans; yet we weren't
pagans--we believed in one God. Then came the Reformation, the Reformed
Church, then the Lutheran, and churches have multiplied, even though
there is only one God. Well, even though I don't believe that this
association will be able to attract many members in Hungary, I still
believe that sects should not be considered churches. I don't know for
what purpose or whether it is to reach worldwide hegemony, but I see
that the tendency today, even in religion, is to divide and conquer! We
have Christianity here, we have a Catholic Church, which is more than
two thousand years old and has existed in Hungary for a thousand years,
and we have a reformed Church as a result of the Reformation, but what
I was most struck by is that 187 churches have been registered in this
country since 1990. Gentlemen! There is only one God! One God! (EMB/
147-1/2012, page 11).
The inappropriate character of this reasoning will be apparent to
everyone. The point to emphasize, however, is that Act CCVI of 2011
allowed reasoning of this sort to be the basis for determining whether
or not a religious group received legal recognition.
The troubling features of Act CCVI of 2011 led Hungary's ombudsman
to file a petition with the Constitutional Court, and numerous
deregistered religious groups also filed petitions. On February 26,
2013, in a substantial and carefully reasoned decision, Hungary's
Constitutional Court struck down as unconstitutional numerous
provisions within Act CCVI of 2011. Article 7 of Hungary's new
constitution guarantees religious freedom. Article 15 guarantees
equality under the law. Articles 24 and 29 guarantee each citizen the
rights of due process and legal redress. Thus a religious association
of Hungarian citizens has an equal right to apply for recognition as a
church by means of a procedure that follows due process and ensures the
right of legal redress. The provisions for recognition set forth in Act
CCVI of 2011 failed to do this. Thus the Court struck down those parts
of the Act in which Parliament had determined legal recognition of
religious groups.
Fidesz's response to this, as to other decisions of the high court,
has been to amend the constitution. The controversial fourth amendment,
passed on March 11, grants Parliament the authority to determine which
religious groups are recognized as churches by changing the text of
article 7 on religious freedom. The provision of Act CCVI of 2011 most
severely criticized by the Venice Commission has now been written into
the Hungarian constitution. Reconciling Parliament's power to bestow
legal recognition with the rights of due process and legal redress will
be a challenge. Furthermore, article 7 allows Parliament to decide not
only the content of the law concerning religious freedom, but also its
application in individual cases. Such a provision would appear in
tension with the separation of powers principle enshrined in article C
of Hungary's constitution.
Impact of Hungary's religion law on unrecognized religious groups
In addition to undermining principles of constitutionalism, Act
CCVI of 2011 has had a significant impact on religious groups not
legally recognized by Parliament. As a consequence of the Act numerous
religious communities that had been legally recognized as churches
prior to 2011 were stripped of their status. Indeed, Act CCVI of 2011
completely replaced the legal regime that had governed religious
freedom in Hungary since 1990. Thus far not much attention has been
directed toward assessing the impact of deregistration on those groups.
The Venice Commission opinion focused on the registration procedure
itself, as did the ruling of the Constitution Court. But in the
meantime deregistered religious communities have been forced to adapt
to a new legal context in which they are denied what most Americans
would consider basic aspects of the right of religious freedom.
Over the past six months I have been working to assess the impact
of Act CCVI of 2011 on Hungary's unrecognized religious communities.
Using public records and resources available on the internet, I have
attempted to compile a comprehensive list of Hungary's unrecognized
religious communities. I also visited Hungary in summer 2012 and
interviewed numerous representatives of deregistered churches.
Additionally, I recently completed a survey of deregistered religious
communities that seeks to measure objective indicators of religious
discrimination.
Estimates concerning the number of deregistered churches vary. The
Hungarian government claims there were well over 300 registered
churches in Hungary prior to 2011, but has never explained how it
arrived at this estimate. I have been able to identify 122 deregistered
churches thus far, some of which ceased operating on their own prior to
2011. I believe this list to be accurate and close to complete.
I estimate that somewhere between 160 and 180 independent churches/
religious communities were operating in Hungary prior to passage of Act
CCVI of 2011, and that the Act deprived approximately 130 religious
communities of legal recognition. I have been able to establish contact
with 106 unrecognized religious groups, whom I invited to participate
in my discrimination survey. Forty-nine groups responded to my inquiry
and 43 agreed to participate, which translates to a participation rate
of 40%. I closed the survey only two weeks ago and have not yet run a
complete statistical analysis of the data. I wish to emphasize,
therefore, that the statistical information provided below is
provisional.
Initial analysis suggests that while almost all religious groups
report some level of discrimination, the amount of discrimination
varies significantly, with a little over half of the participants
reporting what I would call significant discrimination. After Act CCVI
was passed, deregistered churches were told they must apply for
recognition as civil associations. Failure to apply for status as a
civil association, or failure to meet the deadline for applying as
such, would result in total liquidation of the community's assets, that
is, appropriation of the community's property by the state. The
overwhelming majority of religious groups surveyed indicate that they
have been recognized as civil associations. However, I was able to
identify two instances were courts ordered the liquidation of a
community and a few additional instances were a final decision has yet
to be rendered. Even so, a surprising number of those surveyed, almost
15%, report that some of their property was liquidated after
deregistration. Others report, again about 15%, that leases they held
on rental property were terminated. Among those surveyed, 16% indicated
they were forced to shut down schools as a consequence of being
deregistered; 30% indicated they were forced to close down charitable
organizations; 40% indicated they were forced to abandon additional
ministries (other than education and charity work).
Unlike legally recognized churches, religious groups classified as
civil associations do not enjoy complete internal autonomy. Civil
associations must have a specific administrative structure. For
example, they must have a presidency and all members must have the
right to vote on decisions made by the association. In many cases,
although not all, these administrative requirements violate the
religious conscience of believers. Among deregistered religious groups
participating in my survey, 17% refused to apply for civil association
status, and many of them reported in written comments that their
refusal to apply was based on reasons of conscience. These groups now
live under the fear of court ordered liquidation. Among deregistered
religious groups that did apply for recognition as a civil association,
36% reported that they had been required to change their organizational
structure. Additionally, a high number of respondents, 30%, reported
that their clergy had been prevented from visiting patients in the
hospital; 27% reported that they were prevented from visiting persons
in prison. A small but noticeable number of respondents, a little over
10%, reported that they had been forced to change their religious
confession, their official teaching, or worship services in order to be
recognized as a civil association. Also, unrecognized religious groups
are not permitted to have the word church in their official name. Among
those groups applying for recognition as a civil association, 60%
reported that they had been forced to change their name.
Reasons offered for the new law by the Hungarian government
When Parliament first passed Act CCVI of 2011, the Hungarian
government claimed the new law was necessary in order to correct abuses
made possible by the previous religion law. In the Hungarian media,
representatives of the government frequently spoke of ``business
churches,'' an imprecise and polemical term. The claim was that non-
religious organizations were registering themselves as churches in
order to receive tax exemptions and state subsidies. However, no impact
studies were conducted, so neither the extent of abuse nor the
effectiveness of the remedy could be evaluated. The only evidence of
abuse offered by the government was the claim that more than 300
churches were operating in Hungary. This number, the government
believed, was clearly excessive and indirect evidence of the existence
of ``business churches.'' As already indicated, I believe the 300+
estimate is too high. I would also add that in the course of my
research I have been able to identify only two cases where I suspect
organizations registered as churches under pretext. The most notable of
these involves the mayor of Erpatak, a man named Mihaly Orosz who is a
member of the right-wing political party Jobbik. Mr. Orosz was
affiliated with, or the founder of, at least four different groups
registered as churches under the old law.
Even if there were significant abuse under the old law, having
Parliament bestow legal recognition on religious groups hardly seems an
effective remedy. In fact, the possibility of remedy existed under the
old legal regime, something pointed out by the Constitutional Court in
its February 2013 ruling. According to the Court, under the old law a
state prosecutor had a right to request information and investigate a
church suspected of illegal activity. An organization engaged in
running a business but seeking registration as a church could thus be
prevented from registering, or if already registered, prosecuted for
violations of the law. According to the Constitutional Court, under the
old law state prosecutors initiated legal proceedings against
registered churches on a number of occasions.
Conclusion
When attempting to interpret the behavior of a political regime
whose decision-making process is not transparent, political scientists
often attempt to infer intentions from effects. That is, instead of
taking the public pronouncements of the regime at face value, political
scientists examine the effects of the regime's actions to determine its
true intentions. Viktor Orban's government is not transparent. Cardinal
laws addressing basic human rights and constitutional amendments
addressing the rule of law are introduced in Parliament and approved in
a matter of hours. Even after fundamental laws have been passed, they
are amended immediately whenever the Constitutional Court renders a
decision not to the government's liking. I therefore submit that the
best way to understand Viktor Orban is to look not at what he says, but
at what he does.
If we look at what the Orban government has done in respect to
religious freedom, infering intentions from effects, it becomes
difficult to believe that the intention behind Act CCVI of 2011 was to
eliminate legal abuses occurring under the old law. First, the Orban
government never made an attempt to assess the extent and nature of the
alleged abuse. Second, legal remedy against abuse was already
available. Third, the negative impacts on religious freedom caused by
Act CCVI of 2011 were far greater than any legal abuses the Act
putatively sought to correct. If the aim of the government had been to
eliminate abuse, much simpler and less destructive solutions were
available. Addressing the problem of ``business churches'' certainly
did not require modifying the constitution in a way that allows
Parliament to bestow legal recognition.
A more plausible explanation for Act CCVI of 2011 is that the Orban
government is seeking to hinder the activities of religious groups it
dislikes, perhaps because it views those groups as ``sects,'' perhaps
because the leaders of some of those groups have criticized the
government, or perhaps because the membership of many of those groups
is Roma. Whatever the Orban government says, its actions indicate that
it holds the right of religious freedom in low regard.
[all]
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