Chapter 5 Three Levels of (Non)Accommodation of Islam in Eastern Europe

5.1 Legal Level

The legal basis for the governance of religion (including Islam), and, arguably, by extension, the top-down churchification or securitization of Islam, in the post-communist Eastern European countries under investigation is laid down first of all in the national . However, as constitutions, in general, tend to be concise documents, attention to religious matters in them is usually very limited and basic. Most countries have a special (lex specialis) devoted to the governance of religions. These special are perceived to be a detailed expose of and elaboration of the constitutional norms. However, as is noted by legal experts, it sometimes happens that the law in some of its injunctions ap- pears to contradict the national . In such cases, it is referred to the Constitutional , the decisions of which bind the two documents into a single doctrine. The Constitutional Court decisions either endorse the law’s injunctions found to appear to be unconstitutional, or state that the law has deficiencies to be remedied in accordance with the spirit and letter of the Con- stitution. For this and other (political) reasons, national laws on religious gov- ernance are regularly amended. Sometimes, even constitutional clauses on religious matters get amended, as happened in 2001 with the North Macedo- nian Constitution. As the legal level, in view of the proposed analytical model (Figure 2), is deemed to be the first level of the churchification and securitiza- tion of Islam, the present section presents the sum of national constitutional norms, injunctions of lex specialis and Constitutional Court decisions pertain- ing to the governance of religion (and particularly, Islam), which are found to be relevant for the analysis of the churchification and securitization of Islam in the countries under investigation. The Constitutions1 of all countries under research one or another way make clear that the states are secular (for instance, Art. 13.2. of the Bulgarian

1 The texts of Constitutions are drawn from the Constitute database (constituteproject.org). The latest version of the Hungarian Constitution, which over the course of its short life has already seen numerous amendments, including several pertaining to the registration and status of religious collectivities, is taken from the Hungarian government’s site

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­Constitution declares: “Religious institutions shall be separate from the state”; Art. 7.3. of the Hungarian Constitution reads: “The State and religious commu- nities shall operate separately”; and Art. 19 of the North Macedonian Constitu- tion states: “The Macedonian Orthodox Church and other religious communi- ties and groups are separate from the state”). Such constitutional norms, however, have been challenged by some religious organizations. So, for exam- ple, Anderson reports that the in Poland intervened in the constitutional debate: “When a full constitution was finally debated in 1995 – 97 the [Catholic] Church sought to include some reference to God and in the preamble, to prevent the use of the word ‘separation’ in reference to church-state relations, and to introduce a constitutional guarantee of the right to life from the moment of conception” (Anderson, 2000: 4). Some Constitutions also explicitly state that religious communities are au- tonomous. For instance, the Hungarian Constitution (Art. 7.3.) states that “Re- ligious communities shall be autonomous” and the Polish Constitution (Art. 25.3.) also acknowledges autonomy of churches and other religious orga- nizations. Moreover, equality among religions (or rather citizens with different faiths) is firmly established (for instance, in Art. 4 of the Bosnian, Art. 6.2. of the Bulgarian, Art. 15.2. of the Hungarian, Art. 29 of the Lithuanian, Art. 19 of the North Macedonian, and Art. 25.1. of the Polish Constitution). Consequent- ly, no Constitution establishes any religious tradition as official/ . However, at the same time, some Constitutions name particular religious tradition(s) or organizations, intrinsically, if not elevating them above all oth- ers, making them primus inter pares. So, for instance, while the the Preamble of the Polish Constitution acknowledges “the Christian heritage of the Nation,” the Hungarian Constitution not only “recognize[s] the role of in preserving nationhood” in its Preamble but also commands (Art. R.4.) that “The protection of the constitutional identity and Christian culture of Hunga- ry shall be an obligation of every organ of the State,” the Bulgarian Constitution (Art. 13) mentions Eastern Orthodox Christianity and the North Macedonian Constitution (Art. 19) mentions the Macedonian Orthodox Church, the Islamic Religious Community in Macedonia, the Catholic Church, Evangelical Meth- odist Church, and the Jewish Community.2 It may be mentioned that the Con- stitution of Republika Srpska, a constituent entity of Bosnia and Herzegovina, specifically mentions (Art. 28) the as “the church of

(http://www.kormany.hu/download/f/3e/61000/TheFundamentalLawofHungary_20180629_ FIN.pdf). ­Accessed February 25, 2019. 2 The original version of the Constitution adopted in 1991 named only the Macedonian Ortho- dox Church.