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Encyclopedia > Austrian constitution

The Constitution of Austria or sterreichisches Bundes-Verfassungsgesetz (B-VG) is one of the chartas governing political life in the Republic of Austria. In spite of its name, the Constitution of Austria is not a comprehensive specification of the procedural and ideological framework of Austrian politics but merely forms the kernel of a large body of constitutional law scattered across literally dozens of separate legal documents. For example, the Constitution of Austria does not include a bill of rights, but provisions on civil liberties are split up over different constitutional legislative acts.


Over time, both the Constitution of Austria and the numerous pieces of constitutional law supplementing it have ungergone literally hundreds of minor and major amendments.

Contents

History

The constitution was based on a draft by Hans Kelsen and first enacted on October 1, 1920. Originally, it characterized Austria as a classical parliamentary republic. The prerogative to enact law was to lie with a comparatively strong parliament. The responsibility for implementing law was to reside with a cabinet appointed by a comparatively weak president who in turn was to be elected by the parliament. In 1929, the constitution underwent a revision significantly broadening the prerogatives of the president, thus furnishing the legal framework of Austrian politics with elements more typically found in presidential systems. In particular, the president from now on was to be elected directly by the people rather than by the members of the legislature. The president was also to be vested with the authority to dissolve the parliament, a power typically not held by heads of executive branches of parliamentary republics. This move away from a government steered predominantly by a fairly large and (by definition) factionalized deliberative body towards a system concentrating power in the hands of a single autonomous leader was made in an attempt to appease the vaguely rebellious para-fascist movements thriving in Austria at that time.


In 1934, following years of increasingly violent political strife and gradual erosion of the rule of law, the ruling Christian Socialist Party, which by then had turned to full-scale Austrofascism, formally replaced the constitution by a new basic law defining Austria as an authoritarian corporate state. The Austrofascist constitution was in force until Austria surrendered itself to Nazi Germany in 1938, ceasing to exist as a souvereign state. The Constitution of Austria was eventually reinstated on May 1, 1945, Austria having reestablished itself as an independent republic shortly before Nazi Germany's definitive collapse. Interestingly, the modifications enacted in 1929 were not then rescinded and essentially remain in effect until this day.


Structure

The Republic of Austria is slightly smaller than Maine, Scotland, or Hokkaidō and home to an ethnically and culturally homogenous population of barely more than eight million people. Given that almost one fourth of its inhabitants are concentrated in the city of Vienna and its adjacent suburbs, Austria's only metropolitan area, the nation is also naturally unipolar in terms of both economic and cultural activity. Austria's constitutional framework nevertheless characterizes the republic as a federation consisting of nine autonomous federal states:

English German
States of Austria
1. Burgenland Burgenland
2. Carinthia K rnten
3. Lower Austria Nieder sterreich
4. Upper Austria Ober sterreich
5. Salzburg Salzburg
6. Styria Steiermark
7. Tyrol Tirol
8. Vorarlberg Vorarlberg
9. Vienna Wien


Just like the federation, the nine states of Austria all have written state constitutions defining them to be republican entities governed according to the principles of representative democracy. Austria's state constitutions congruently define the states to be unicameral parliamentary democracies; each state is outfitted with a legislature elected by popular vote and a cabinets appointed by said legislature. The federal constitution defines Austria itself to be a bicameral presidential democracy with near-complete separation of powers. Austria's government structure is thus highly similar to that of incomparably larger federal republics such as Germany or the United States. The main practical difference between Austria on the one hand and Germany or the United States on the other hand is that Austria's states have comparatively little autonomy: federal legislature takes precedence over state legislature in almost all matters of practical importance, including but not limited to criminal law, corporate law, most other aspects of economic law, education, academia, welfare, telecommunications, and the health care system. The most significant formal difference pertains to the organization of the judicial branch of government. On the one hand, the federal judiciary is subdivided into two distinct and independent court systems. On the other hand, the member states as such do not have any courts at all, the constitutional framework defining jurisdiction to be exclusively federal matter.


Federal legislature

Federal legislative powers are vested with a body the constitution refers to as a parliament. Ever since the somewhat paradoxical 1929 revision of the constitution, which strengthened the formal separation of powers in Austria at the instigation of sympathizers of fascism, Austria's legislature technically bears more resemblance to a congress than to a parliament. As a practical matter, however, it continues to function as a parliament anyway. Austria's parliament consists of two houses, the National Council and the Federal Council. The 183 members of the National Council are elected by nation-wide popular vote under statutes aiming at party-list proportional representation. The 64 members of the Federal Council are elected by Austria's nine state legislatures under a statute allocating seats roughly proportional to state population size. In theory, the National Council and the Federal Council are peers. As a practical matter, the National Council is decidedly more powerful; the predominance of the National Council is such that Austrians frequently use the term "parliament" to refer to just the National Council instead of to the parliament as a whole.


While bicameral legislatures such as the Congress of the United States allow bills to originate in both chambers, Austrian federal legislation always originates in the National Council, never in the Federal Council. In theory, bills can be sponsored by National Council members, by the federal cabinet, by popular initiative, or through a motion supported by at least one third of the members of the Federal Council. In practice, most bills are proposed by the cabinet and get passed after mere token debate. Bills passed by the National Council are sent to the Federal Council for affirmation. If the Federal Council approves of the bill or simply does nothing for a period of eight weeks, the bill has succeeded. Bills passed by both houses (or passed by the National Council and ignored by the Federal Council) are ultimately signed into law by the federal president. The president does not have the power to veto bills, his or her signature is a technical formality notarizing that the bill has been introduced and resolved upon in accordance to the procedure stipulated by the constitution. The president does not even have the authority to refuse signing a bill he or she deems unconstitutional as such; a bill may be vetoed only on the grounds that its genesis, not its substance, is in violation of basic law. Adjudicating upon the constitutionality of the bill itself is the exclusive prerogative of the Constitutional Court.


Provided that the bill in question neither amends the constitution such that states' rights are curtailed nor in some other way pertains to the organization of the legislature itself, the National Council can force the bill into law even if the Federal Council rejects it; a National Council resolution overruling a Federal Council objection merely has to meet a higher quorum than a regular resolution. For this reason, the Federal Council has hardly any real power to prevent the adoption of legislation, the National Council being trivially able to override it. The Federal Council is sometimes compared to the British House of Lords, another deliberative body able to stall but usually not to strike down proposed law. While the House of Lords occasionally exercises its stalling power, however, the Federal Council hardly ever does. Since the parties controlling the National Council consistently also hold a majority in the Federal Council, the latter gives its blessing to essentially everything the former has adopted.


Federal executive

Federal executive authority is vested with the federal president, an official elected by popular vote for a term of six years and limited to two terms of office. The president is the head of state and appoints the federal cabinet, a body consisting of the federal chancellor and a number of ministers. The president also appoints the members of the Constitutional Court and numerous other public officials, represents the republic in international relations, accredits foreign ambassadors, and acts as the commander in chief of Austria's armed forces.


While Austria's federal cabinet is technically not answerable to the legislature, it has comparatively little scope and would be almost totally paralyzed should the National Council fail to actively support it. Since constitutional convention prevents the executive from exerting its authority to dissolve the Nation Council, the president is unable to hector the legislature into doing his or her bidding, and the president's cabinet is for all intents and purposes subject to National Council approval. The cabinet's composition therefore reflects National Council election results rather than presidential election outcomes. In the aftermath of every National Council election, the leader of the plurality party forms a coalition holding a majority of council seats. The coalition agrees on a list of ministers. This list customarily includes the coalition parties' leaders, assigning the office of federal chancellor to the plurality party leader and the office of federal vice chancellor to her junior partner. The list is then submitted to the president; the president usually adopts it without much argument. Should the coalition parties at some later point decide to dissolve their partnership, the cabinet petitions the president to exercise his power to dismiss the cabinet. The president customarily grants the cabinet's request. The National Council then customarily disbands itself, thereby bringing about new elections. As a matter of course, plurality party leaders do not form coalitions in cases in which the plurality party by itself holds a majority of seats, a situation uncommon but not unheard of.


The federal chancellor's dual role as executive officeholder and heavyweight party official well-connected to the legislature makes him or her far more powerful than the formally senior federal president. Actual executive authority thus lies with the chancellor and his or her ministers, while the federal president is a figurehead rather than an actual head of government. Austria's presidents are largely content with their ceremonial role, strive for the role of impartial mediator and dignified Elder Statesperson, and consistently steer clear of the murky waters of hands-on politics. The stern frown worn by the late president Thomas Klestil while swearing in Wolfgang Sch ssel's controversial cabinets is widely considered to be the strongest unilateral political statement made by any Austrian president ever since the establishment of republican rule.


Judicial and administrative review

Federal and state judicial authority, in particular responsibility for judicial review of administrative acts, lies with the Administrative and Constitutional Court System, a structure essentially consisting of the Constitutional Court and the Administrative Court. The Constitutional Court examines the constitutionality of laws passed by the National Assembly. It also tries disputes between the republic and its states, demarcation disputes between other courts, impeachments of the president, and suits involving alleged violations of constitutional civil liberties. The Administrative Court tries all kinds of cases which involve ex officio decisions by public officials or bodies and which are not dealt with by the Constitutional Court. Note that only the Constitutional Court has the authority to strike down laws. In recent years, independent review senates in administrative (Unabh ngige Verwaltungssenate - UVS) and tax law (Unabh ngige Finanzsenate) issues have been introduced to improve the review of the conduct of administrative authorities.


The Austrian constitution was thus the first in the world to enact (in 1920) judicial review under what came to be known as the "Austrian system", where a separate constitutional court reviews legislative acts for their constitutionality. After the US, where the regular court system is in charge of judicial review, Austria was the second country in the world to have judicial review at all. Many European countries adopted the Austrian system of review after World War II.


Judiciary

Judicial powers not committed to the Administrative and Constitutional Court System are vested with the Civil and Criminal Court System, a structure consisting of civil courts on the one hand and criminal courts on the other hand. Civil courts try all cases in which both the claimant and the respondent are private citizens or corporations, including but not limited to contract and torts disputes: Austria's legal system, having evolved from that of the Roman Empire, implements civil law and therefore lacks the distinction between courts of law and courts of equity sometimes found in common law jurisdictions. Civil courts do not try suits against the federation or its states in their capacity as administrative units, but only when acting in the form of private law.


Most cases are tried before District Courts, with Regional Courts serving as courts of appeal and the Supreme Court serving as the court of last resort. In cases considered particularly grave or technically involved, the Regional Courts serve as courts of first instance and specialized Regional High Courts as courts of appeal, the Supreme Court still being the court of last resort. Unlike with court systems such as that of the United States federal judiciary, parties have a statutory right to appeal; higher courts cannot refuse to review decisions reached by subordinate courts. Note that the Supreme Court and the Constitutional Court are two distinct entities.


Civil and human rights

The thing most closely resembling a bill of rights that Austria has is the Basic Law Regarding the Common Rights of the Citizens of the Kingdoms and Lands Represented in the Reichsrat, a decree issued by Emperor Franz Josef on December 21, 1867 in response to pressure by liberal insurgents. An important part of what forms Austria's canon of constitutional civil liberties thus originated as an imperatorial edict predating the Constitution of Austria by roughly fifty years. However, further civil liberties are set out in other parts of constitutional law, and Austria is party to the European Convention of Human Rights, which has been implemented as a directly applicable constitutional law. Given that the Constitutional Court has begun to interpret the B-VG's equal treatment clause and other constitional rights rather broadly since at least the early 1980s, civil rights are, as a general matter, relatively well protected.


Further checks and balances

In addition to their legislative capacity, the members of the two houses of parliament have the authority to to impeach the president, who is then tried before the Constitutional Court, or call for a referendum to have the federal president removed from office. Exertion of these emergency powers is a two-step process: first the National Council requests the president to be impeached or subjected to referendum, then the members of the National Council and the Federal Council convene in joint session, thus forming the National Assembly, and decide on the National Council's motion.


The president has the authority to call, upon request by his or her cabinet, for a referendum concerning specific bills passed by the National Assembly. The president may even altogether dissolve the National Council. Note that the president does not have the power to veto specific acts of legislation: no matter how vehemently the president objects to some particular bill, all he or she can do is either try to have the National Assembly overruled by the constituency or try to liquidate the National Council before the bill is actually passed.


None of these emergency powers has so far been exercised.


Criticism and reform proposals

The probably most unusual and problematic aspect of the Austrian constitution is the fact that constitutional amendments need not be incorporate into the main text of the B-VG or any other of the more important parts of the constitution, but can be enacted as separate contitutional acts or simply as statutes within any other act, while being designated as constitutional law and approved by the National Council with the required supermajority of two thirds, since only major constitutional reforms changing the structure of the constitution (such as Austria's accession to the EU) need approval by a popular vote.


Over the years, the Austrian legal system became littered with thousands of constitutional provisions split up over numerous acts. The reason for this was in many cases that the legislature, especially when the government parties alone controlled two thirds of the National Council (as 1945-1966, 1986-1994 and 1995-1999), enacted laws that were considered constitutionally problematic as constitutional laws in order to protect them from judicial review. There were even some cases where a provision that had been declared unconcstitutional by the constitutional court was subsequently enacted as a constitutional law, and only in one case so far has the constitutional court found that a constitutional law was in violation of the major guiding principles of the constitution and would thus have required a referedum.


At present, a constitutional convention consisting of representatives of all parties, representatives of all layers of government and many groups of Austrian society is debating whether and how to reform the constitution. However, it seems unlikely that this is going to result in any signficant reforms, as the political parties have a vested interest in keeping the current system in place, especially with respect to federalism, which is by more and more critics considered to be excessively expensive and basically unnecessary given Austria's size.


  Results from FactBites:
 
the austrian legal system | in english (2152 words)
The Austrian Constitution establishes Austria as a representative, or indirect, democracy with a two chamber parliamentary system, in which the separation of powers principle is recognized.
Constitutional law is given a higher status by virtue of the fact that it is harder to amend.
Austrian constitutional law was thus joined with EU law as the most fundamental source of law (Dual-constitution).
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