The study explores the difficulties of defining national minority, with a particular focus on the difference between the free assumption of identity and the free choice of identity, and the problems that arise from these. From a methodological point of view, the study puts a strong emphasis on a comparative legal approach, and in line with this, examines the regulatory (and where possible, enforcement) practices of the different countries. The study does not undertake a detailed explanation of the problems arising from the definition of the concept and the practice of identity choice, but it does, however, present the practice of indirect democracy in European countries, and, in this context, it also evaluates the dilemmas that have arisen in connection with the Hungarian legislation.
Keywords: comparative law, ethnic minorities, national minorities, parliamentary election, problems of national minority, representation
Hungary joined the European Union on 1 May 2004, which transformed the Hungarian institutional framework and also created the obligation for the Hungarian Constitutional Court to take its decisions not only in accordance with the Hungarian Constitution (Fundamental Law) but also in accordance with constitutional values based on common European traditions. In accordance with this obligation, from 14 December 2023, a 'counterpart' of this rule also appeared in Section 38/A of Act CLI of 2011 on the Constitutional Court (hereinafter: CC Act.). According to this provision, the Hungarian Constitutional Court shall, at the request of the Court of Justice of the European Union and in compliance with its powers under the EU Treaties, give a preliminary opinion on the compatibility with the Fundamental Law if the aspects listed in this Section of the CC Act are affected in the context of a case pending before the Court of Justice of the European Union and the interpretation can be directly derived from the Fundamental Law. Among these aspects [in points c) and e)], the questions of Hungary's national identity and its inalienable right to dispose of its population are also defined.
The Hungarian Fundamental Law declares in Article XXIX (1) that the national minorities living in Hungary are constituent factors of the State. As regards the definition of the identity of the national minorities living in our country, the Fundamental Law states: "[a]ll Hungarian citizens belonging to a nationality have the right to freely assume and preserve their identity". Defining national minority identity (formerly called ethnic identity), and examining the aspects arising from belonging to a given national minority is also essential to clarify issues of national identity and the population living in Hungary.
In the present study, therefore, we examine the criteria for deciding who can be considered as belonging to a given national minority, whether there is any control over this decision, and what consequences (e.g. rules, benefits) are associated with belonging to a given national minority. In this respect, the research pays special attention to the institution of indirect democracy, i.e. how national minority is reflected in the regulation of the electoral system and the right to vote.
The Hungarian Fundamental Law therefore regards the national minorities living in Hungary as a constituent factor of the State. The question is, however, who can be considered as belonging to the concept of a national minority. In this context, it is also important to distinguish between the concepts of national minority and ethnicity. To simplify a little, we could say that the distinction between the two concepts is only a matter of international law, referring only to the fact
- 13/14 -
that the former has a mother country, while the latter does not.[2]
When defining nationally organised groups and the scope of those belonging to them, a distinction is often made between objective (pre-existing) and subjective (individual-dependent) criteria of belonging to a community.[3] As Gustave Thirring put it in 1901, "national minority is understood to mean a group of individuals of common descent, i.e. originally of the same race, which has no political autonomy".[4] Of course, this concept is now well outdated, but it is a good example of objective-based classification. Károly Keleti, on the other hand, focused on subjective aspects, taking into account certain objective circumstances.[5] He stressed that language skills play a big role in the determination, but it is also important to look at other issues such as nationality, origin or place of birth. According to Frederic Barth, membership in an ethnic group is a matter of identity and should therefore be based on classification and self-classification. Ethnicity can only create organised difference if individuals accept it, submit to its compelling force, act upon it and make it part of their experience. In his view, the cultural differences that play the most important role in ethnicity are those that indicate the group's own distinctiveness and boundaries, rather than the analyst's perceptions of what the most indigenous or characteristic features of the culture are.[6]
It is certainly difficult to find a single definition of national minority (ethnic) belonging that is applicable to all situations. It can be deduced, however, that language, culture, shared history, and perhaps a common religion, are objective factors of belonging, while the expression of a commitment to one's identity is subjective. Even though we may assume affiliation on the basis of objective circumstances, in the absence of an affirmation of identity, it is difficult for the legal system to do anything about it. Whether we focus on the objective or the subjective aspects, it is clear that the right to choose or assume one's affiliation is mostly a matter for the individual's private autonomy. However, according to Richard Jenkins, the acceptance of an ethnic identity requires the 'other', the 'stranger' as the audience, because without the audience the question would not arise. After all, it would make little sense to speak of an ethnicity that does not recognise itself as an ethnicity.[7] However, even at this point, the self-classification of the individual is not open to question, as no one has the right to question the national minority of others. The issue becomes a real problem when identity is expressed in the context of additional rights, such as participation in elections for national minority self-government or even the right to receive subsidies for national minorities. In these cases, the question already arises as to whether the State can restrict the freedom to choose one's identity in the context of additional rights.
A Jogkódex-előfizetéséhez tartozó felhasználónévvel és jelszóval is be tud jelentkezni.
Az ORAC Kiadó előfizetéses folyóiratainak „valós idejű” (a nyomtatott lapszámok megjelenésével egyidejű) eléréséhez kérjen ajánlatot a Szakcikk Adatbázis Plusz-ra!
Visszaugrás
