The article of Mark Tushnet (first appeared in I.CON 2003/1) examines the horizontal effect of constitutional norms (or the "state action" problem) in several constitutional systems. It argues that the difficulty of the issue varies depending on two features of such systems, their structures and their ideological commitments. System with generalized and centralized constitutional courts will find the issue of horizontal effect easier than systems with specialized constitutional courts, and particularly systems with strongly federal arrangements. Systems with greater commitments to social democratic norms will find the issue easier than systems with weaker social democratic commitments.
Ádám Földes writes about the experiences and problems of watching public areas with cameras. He emphasizes that society has two choices. It can decide that everything can be concealed, and everybody can possess information not available for others; that asymmetry can be upheld, and those who are stronger can take better precautions against unwanted information acquisition, or else can gain enough information to keep others in check. In this case it is obvious that citizens can win nothing. The other solution would be to make everything transparent, when nobody has any secrets and all information has to be made available. This decision would be the freedom of information, similar to the American freedom of speech. It would end in a symmetric situation. Tension may be eased. But one thing is for sure: there is no turning back.
In an interview Barnabás Lenkovics, ombudsman for citizens' rights stated his opinion that the ombudsman's proposal means the beginning of a conversation. That is, in relation to the conflict of state and citizen, if the state has violated the citizen's constitutional rights, the ombudsman intervenes, and makes a recommendation. If the body in question does not agree with this recommendation, they debate it, they reason, answering argument with argument, and the conversation goes on the professional level until one party convinces the other. As part of his creed he also said that matching interests and balancing them has an animating effect on the field of human rights. According to the ombudsman no particular human right can be practiced so as to annihilate or try to annihilate other human rights. This is the test of necessity and proportionality, which the Constitutional Court worked out as its own invention. The test itself is an ancient legal principle in private law: the subjective rights, "truths" of two parties face each other, and it is the judge who shares this truth between them, restricting the one to a necessary and proportionate degree so as to enable the other to manifest itself as well.
In our line-up about the autonomy of churches Zoltán Endreffy's writing quotes Jürgen Habermas, who is of the opinion that religions can fulfil an essentially refining position in modern secular societies because "their sacred documents and religious traditions articulate intuitions about sin and redemption, and also about the escape from condemned situations in life, and these intuitions have been subtly explained and kept in life by the means of hermeneutics through thousands
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of years." So according to Habermas religions are in the possession of such a knowledge that the secular state is in need of. Action is less and less harmonized by consensual values and norms gained from mutual consideration, and social solidarity is pushed out from more and more fields of life, replaced by the impersonal mechanisms of markets and civil service. This is why, in Habermas's opinion "it is the interest of the constitutional state to handle gently all cultural sources that feed the norm consciousness and solidarity of citizens."
Among others János Wildmann states that after the political transition many churches returned to the religiousness, which they unwillingly had to part with decades earlier. Since co-operation with the political left was impossible because of the forty years of religious persecution, whereas with the liberal forces because of their anticlericalism (but not antichurch feelings), they could only hope for the help of the political right. Co-operation, however, has often become more: the political right needed the legitimacy of the historical churches, if they wanted the religious voters on their side; the churches, on the other hand, identified with certain national-political ideologies, in their mistaken role. The author's opinion is that these churches may not even have realized that this was the very step from which the synod - rightly - had tried to protect them: they accepted not only solidarity, but also identity with certain political powers. Furthermore, they believed that above all they could secure the political and moral integrity of the country, which is the perfect misunderstanding of the secularization process.
Tibor Ruff emphasizes the idea that churches have to have the right to fully exercise the principles serving as the bases of their faith, in all institutions of religious community practice, of "public education". He thinks that the state on no account has the right to force religious individuals into a crisis of conscience by prohibiting them to keep to the Bible - or to any other sacred documents of other religions - in institutions founded by them, or elsewhere. That is, the state has to secure the right of churches to exclude individuals who violate their required moral norms, from their community and its institutions, naturally in a just procedure. However, he says no to the question that if the state financially supports educational institutions run by churches, does this not empower it to restrict the manifestation of churches' inner autonomy, at least in the management of their educational institutions. He argues, that state support given to church educational institutions is not a special favour or alms, nor is it the payment for their renunciation of human rights, the state does not present this money to religious people, but owes it to them. Of course, it has to be made clear if any budgetary money is due for these purposes on a normative basis.
Gábor Schweitzer is of the opinion that church autonomy remains incomplete if on the one hand its budgetary autonomy is not realized by degrees, on the other hand if any - even symbolic - form of eventual institutional interweaving with the state is not excluded. He states it about the dispositions of the Law on Equal Opportunity relating to churches, that it would hardly be attainable for the Law on Equal Opportunity to take churches entirely out of the law's sphere of authority, if only because of the different normative based financial forms. The exemptions embedded in the Law, on the other hand, give evidence of the fact that the legislative has the required tact and responsiveness towards church autonomy.
Botond Bitskey examines the problematics of antidiscrimination laws and church autonomy, and states that (state) legal liabilities, constraints and duties do apply to churches in some of their legal relations, if they had accepted the church status offered by the state. When evaluating and weighing duties, the spe-
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cific features of churches and their institutions, the fundamental freedom of religion, and the protection of church autonomy stated by the Constitution have to be taken into account. At the same time it has to be kept in mind that in the case of a collision the "opposite side" also has some aspects of fundamental rights. In this case a restriction is legitimate, but this does not necessarily mean the unconstitutional violation, emptying of church self-determination. Yet in the case of a legal debate clerical legal persons can use the legal opportunities that are secured for them by the regulation: their exemption of laws and legal duties, and the general and special rescuing possibilities.
In her writing about the relationship of churches and state education Szilvia Köbel believes that even with the restrictions, the Law on Public Education (LPE) allows ideologically committed public educational institutions more than it would generally follow from the Act on Equal Treatment, in relation to the other participants of society. The LPE does not wish these institutions to treat cases differently depending on occupation and subjects, but it gives a general authorization to the exclusion or restriction of the teacher's above-mentioned right. According to the present - and post-modification - provision of the LPE the institution cannot expect the teachers to share its religious spirit, but it can expect them not to propagate their own ideology within the institution, and to respect its spirit and teach accordingly.
The decision of the Constitutional Court in March made it possible to canvass for signatures for the preferential acquisition of Hungarian citizenship, to a future, decisive national referendum. Judit Tóth's writing tries to answer the question, what constitutional arguments were the bases of the decision, and whether elements of previous resolutions can be detected in it. Her final conclusion is, that the Constitutional Court should have rejected the proposal to referendum, because of its unconstitutional nature, since it is against some undertaken duties derives from international treaties, and the question does not meet the requirement of unambiguity, it essentially concerns citizenship regulation and legal status, and it shifts all unsolvable duties to the legislative.
The April decision of the Constitutional Court rejected the petition for the annulation of provisions concerning the limited publication of official secrets, documents for inner usage, and of decision-preparational documents. At the same time and in relation to the latter - acting ex officio - the Court declared unconstitutionality manifested in legislative ommission. Zsuzsa Kovács, who evaluates the decision, thinks that the answers of the constitutional judges to the constitutional questions raised in the proposal were not consistent in all respects. When they argued for the further strengthening of the guarantees of the freedom of information, they used a much weaker constitutional means, stating neglect, instead of annulling the unconstitutional rule.
Through the evaluation of the Constitutional Court's decision on the constitutionality of the Act on Hungarian Financial Supervisory Authority, Dániel Straub looks for an answer to what the reason can be for the Constitutional Court to be active in cases of state organization, and to the possible consequences of this tendency if continued. From a dogmatic, constitutional legal point of view the decision in question by all means leaves much to be desired, especially because it is in the case of the Constitutional Court's new legal insights that precise and elaborate tests are missing, on the basis of which the law makers/judges could have a point of reference for the future. In this way, a short-term uncertainty arises. However, if the activity of political power branches returns to a definitely lower-key channel, which is naturally indefinable precisely, the activism of the Constitutional Court will no doubt diminish.
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Balázs Schanda's writing: "Wearing Headscarf at School" starts out from the supposition, that from many aspects the integration of the Islam minority means a challenge for law, too: other frameworks developed by different conditions often prove to be unsuitable, and it is also ambiguous whether the receiving society is ready for the integration, and if so, with what expectations. Wearing religious symbols, clothing defined by religious regulation and tradition has been put on the agenda in this respect. In the past few decades the courts and legislatives of many European countries have been busy with this question. The article presents some of the aspects and turning points of these debates.
In this column we also present the summaries of decision of the Constitutional Court on the referendum on double citizenship, the Act on Hungarian Financial Supervisory Authority, the police's use of firearms, the publicity of data concerning the preparation of decisions, and the punishability of hate speech.
In this column we recommend the volume with István Bibó's speeches between 1942 and 1949, Tamás Csapody's book Not in My Name!, Judit Takács's volume: Homosexuality and Society and a volume published in honor of Mária Ludassy. ■
Visszaugrás
