DECISION 22/ 1997: 25 APRIL 1997
ON STATE FUNDING FOR CHURCH SCHOOLS
The petitioner sought ex post facto review of certain provisions of Act LXXIX of 1993 on Public Education.
The Act provided, inter alia, by s. 4(6) that non-stare schools were entitled to the same budgetary contribution from the state as state- and local government-run schools. Additional financial assistance was available to non-state schools where they concluded an agreement, under s. 81(1)(e) of the said Act, with the Minister of Culture and Public Education or the local government According to such agreement in return for financial support in proportion to their undertaking to perform state duties, the non-state schools would ensure education and instruction was free.
In addition, according to s. 19(1 ) of Act IV of 1990 on the Freedom of Conscience and Religion, and on the Churches, the State was to provide church schools, under a separate Act, with the same amount of budgetary contribution as the state institutions receive when dealing with the same functions.
The petitioner submitted, inter alia, that s 4(6) (when read with s. 81( 1)(e)) effectively terminated the State's or local government's obligation to fund additionally non-state (church) schools. The subsection guaranteed the-discretionary power of the Minister or local government without imposing conditions on its exercise thereby opening it up to arbitrary determination contrary to principle of equality and the prohibition on discrimination contained in Arts 2(1) and 57 of the Constitution.
.Section 4(6) of Act LXXIX of 1993 on Public Education was constitutional. It derived from Art. 60 on the fundamental right on freedom of religion, from the practice of the Court as well as from s. 19(1) of Act IV of 1990 that, in addition to the compulsory budgetary contribution (being the same for all types of schools), additional financial assistance should be provided by the State or local government to church schools. The sum provided represented the proportion of the duties the church schools undertook which otherwise would have had to be performed by the State or local authority. This constitutional requirement was retrospective in effect and came into force on the same day as s. 4(6).
IN THE NAME OF THE REPUBLIC OF HUNGARY!
On the basis of the petition seeking an ex post facto review of the unconstitutionality of legal rules the Constitutional Court has rendered the following
DECISION
The Constitutional Court declares: to apply s. 4(6) of the Act LXXIX of 1993 on Public Education (henceforth: the Act) it is a constitutional requirement that besides the compulsory budgetary contribution, which is the same in case of the schools owned either by the State, local government or the church, the State or the local government should provide the schools owned by the church with additional financial assistance in proportion as these schools undertake duties which would otherwise be completed by the State or the local government. This constitutional requirement has a retrospective effect, it came into force on the day when the provision of de Act in question has come into force.
The Constitutional Court rejects the petition to establish the unconstitutional character of ss. 4(6), 17(1)(l), 81(6) and 129(5) of the Act and to annul them.
The Constitutional Court will publish this Decision in the Hungarian Official Gazette.
REASONING
[…]
According to the petitioner, s. 4(6) of the Act terminated the obligation of the State and the local government concerning the additional financial assistance for the schools not owned by the State or the local government. This provision ensures the discretionary power of the State and the local government without imposing conditions on practising this power, therefore it gives a possibility for an arbitrary procedure which is against the principles of equality and prohibition of discrimination. [....]
[A]ccording to the contested provision of the Act the new system of subsidization of schools not owned by the State ensures that these schools are entitled to the same budgetary contribution as the schools owned by the local governments. This provision makes possible only in case of concluding [only makes it possible for schools, which conclude] an agreement on public education to obtain the additional financial assistance in the proportion that these schools undertake state duties; and as a result of which, the education will be free of charge. To decide on providing these schools with additional financial assistance therefore is in the discretionary power of the local government or de Minister of Culture and Public Education.
According to Art. 70/F(2) of the Constitution the State has various responsibilities to ensure the realization of the right to be taught concerning the different educational forms. This provision of the Constitution prescribes the obligation of free and compulsory eight-grade education. Under this regulation concerning grammar[?] schools, the State has the constitutional obligation to ensure the free education, while the parents and the pupils entitled to the free education. According to s. 3(3) of the Act, the State ensures free and compulsory eight-grade education through maintaining state and local government institutions and fulfilling the State's and the local government's duties.
Concerning secondary education, the Constitution requires the State to make arrangements for general access to it, and to assist financially those in school. Section 3(3) however goes beyond Art. 70/F of the Constitution, declaring secondary education free.
The Constitutional Court states that the State is obliged to establish and maintain only a neutral school. It cannot be stated, that the State has to ensure free education for everybody in a school that was chosen by them.
According to s. 17(1) of the Act IV of 1990 on the Freedom of Conscience and Religion, and on the Churches "the legal entity of a church can manage such educational, cultural, social, health, sport functions, and functions concerning the protection of children and youth that the law does not secure absolutely to the State, or to state institutions. The church can maintain institutions in this field".
According to s. 19(1) "the State provides the church-owned institutions dealing with educational, social, health, sport functions, children, and youth protection, according to a separate Act/statute, with the same amount of budgetary contribution as the state institutions dealing with the same functions get, and thc assistance comes from a separate fund."
The Constitutional Court in Dec. 4/1993 (II.12) AB (MK 1993/15; ABH 1993, 48) defined the content of the freedom of religion, and examined the conditions of the realization of this freedom in the field of education, and also determined the State's obligation concerning the schools owned by the church with regard to compulsory school education.
In the framework of this, the Constitutional Court declared (Dec. 4/1993 (II.12) AB: MK 1993/15 at 706-707; ABH 1993, 48 at 56 and 57; (1993) HCCR 000),:
[…] The State must not legally prevent schools committed to any religion or atheism from being founded: the necessary statutes must be passed. But the State is not required to establish non-neutral schools. If, however, the church or the parents establish and run a committed school, the State has to support them in as much as these institutions fulfill state obligations; moreover, support cannot be denied if thc Sate is already; supporting a comparable committed institution and the discrimination has no constitutional reason.
Even though parents are not entitled to expect the State to establish schools committed to the world-view of their wish, they do have the protective right not to have their children attend schools that are contrary to their world-view. Likewise the Constitutional Court stated in connection with the freedom of conscience, the State must refrain not only from a compulsion like this but also within reasonable bounds it must render an alternative attitude possible. It is not unconstitutional if, for the sake of the latter, those who would like to act according to their conscience are constrained to make a sacrifice, which is not a disproportionate one.
The Constitutional Court held in Dec.18/1994 (III.31) AB (MK 1994/34 at 1243, ABH 88 at 91) that "the State's duty to provide an institutional framework means, that the State is obliged to provide a legal framework for establishing schools committed to religious education and to assist them in proportion as these schools undertake responsibilities of the State or the local government".
The Government in its Resolution: No 1080/1996 (VII.23) MTh regulated the agreement on public education concerning schools owned by legal entities of the church at the same time when it amended the Act on Public Education. In this Resolution the Government declared that, with maintaining the public education agreement with the schools owned by the legal entities of the church, it had to ensure besides the compulsory budgetary contribution, the kindergartens. For this reason, the Government stipulated that during the drafting the Act on the State Budget providing the cover for these agreements should be taken into account.
It derives from Art. 60 of the Constitution, which declares the fundamental right to freedom of religion, from the above mentioned Decisions of the Constitutional Court, and from s. 19(1) of Act. IV of 1990 on the Freedom of Conscience and Religion, and on the Churches, as, the specific regulation from the point of view of the Act on Public Education that besides the compulsory budgetary contribution, which is the same in case of the schools owned either by the State, local government or the church, the State and the local government should provide the schools owned by the church with additional financial assistance in the proportion to which these schools undertake duties which would otherwise be completed by the State or the local government. Thus in this case the local government or the Minister of Culture and Public Education has to conclude an agreement on public education with the maintainer of the church school, and in the framework of this they have to ensure additional financial assistance, besides the compulsory. budgetary contribution, in proportion as these schools undertaking state or local government duties.
The Constitutional Court declared in Dec. 4/1993 (II.12) AB (MK 1993/15 at 710-711 and 712-713 ABH 1993, 48 at 64 and 68; (1993) HCCR 000) on the constitutionality of Act XXXII of 1991 on the Settlement of the Ownership of Real Estate Formerly Owned by Churches, that because of the historical and social role of the churches — especially the "historical churches" mentioned in the Act on the Settlement of the Ownership of Real Estate Formerly Owned by Churches -- and the fundamental right to freedom of religion the restitution of the church property is not arbitrary with regards to the other owner affected. In case of these historical churches the restitution of the church property was not primarily a compensation but it was important to ensure the financial conditions of exercising a fundamental right. The Constitutional Court declared in Dec.35/1994 (VI.24) AB (MK 1994/68 at 2503, ABH 1994, 197 at 204; (1994) HCCR 000) on the preliminary review of the Act on Arable Land, that it was not unconstitutional that according to this Act a legal entity of the church could acquire arable land, since this possibility helps the legal entities of the church to fulfil their constitutional tasks.
That part of s. 81(10) of the Act according to which "the Minister of Culture and Public Education must conclude an agreement on public education with the national minority government, if the education and instruction of the members of the national or ethnic minority is not solved in the framework of fulfilling the tasks of the local government," however Art. 68 of the Constitution declares the fundamental rights of the national and ethnic minorities. There is no constitutional reason that the Act does not contain a similar binding regulation concerning thc legal entities of the church in order to ensure the financial condition for exercising the right to maintain such an institution deriving from the freedom of religion.
To summarize the abovementioned the Constitutional Court stated that positive discrimination (affirmative action) with regard to the pub1ic education agreement concluded compulsorily according to s. 81(10) of the Act, and concerning the compulsory budgetary contribution and the additional financial assistance for the church-owned schoo1s determined by the operative part of this Decision is needed to enforce the fundamental rights defined by Arts. 60 and 68 of the Constitution.
Since on one hand s. 4(6) of the Act could be interpreted unconstitutionally, which could lead to an unconstitutional situation, on the other hand die Government can at anytime amend its abovementioned vague Resolution, this provision of the Act can be applied only in accordance with the constitutional requirement declared by the Constitutional Court in its current Decision's operative part. This constitutional requirement has a retrospective effect, it came into force on the day when the provision of the Act in question has come into force.
Taking into consideration all the foregoing, the Constitutional Court did not hold that s. 4(6) is contrary to Arts 2(1), 70/A(1) and 70/F of the Constitution.
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