Newsroom / News / Media / Info Magazine LGP NEWS 01/2022 / Constitutional state under scrutiny

Constitutional state under scrutiny

Constitutional state under scrutiny

Our Austrian constitution, which has stood the test of time for decades, offers a balanced system of power that prevents politicians from political unilateralism and letting the country slide into an authoritarian system. Is it still possible to repair the enormous damage to our democratic constitutional state that has been caused by the “structural” corruption of the political elite? 

It was easy to understand the Federal President when, under the impression of the government crisis of 2019, he spoke almost enthusiastically of the “elegance of the constitution”. Like no Federal President of the Second Republic before him, Alexander Van der Bellen was suddenly confronted with a series of extremely delicate situations: first, he had to dismiss the Minister of the Interior, against his stated wishes, at the suggestion of the Chancellor. Then all the members of the government of his small coalition partner resigned, meaning that several new ministers had to be appointed. No sooner had they been appointed than the entire federal government was overthrown by a vote of no confidence in parliament, with the result that the Federal President had to appoint a new federal government as quickly as possible. Although he was legally free to do so, he had to make sure that this government did not have a majority against it in the National Council. Otherwise, a new vote of no confidence would have been the consequence. 

The Austrian constitution has taken wise precautions in this regard. Why? Because a well-thought-out system of the balance of power prevents politicians from acting unilaterally and thus a slide into an authoritarian system. The distribution of power at the head of the Republic is well-balanced and has, so far, given the Federal President a firm basis for his actions. And he has made clever use of it. Domestic and foreign media alike suddenly found words of praise for the prudence of the Austrian constitution. This had not always been the case. Some Austrian media, and statements by politicians, repeated a good deal of criticism of the Austrian constitution: it was, after all, already a hundred years old, cumbersome and hardly suitable as a sound foundation for the Republic in the future. Conservative politicians in particular loudly considered abolishing the office of Federal President. An “Austria Convention”, which met from 2003 to 2005, was supposed to deliver proposals for fundamental constitutional reform. In the end, a total restructuring of the Austrian constitution met with no support whatsoever. Apart from numerous (and quite important) requirements to reform the details of the constitution, its fundamental concept was not called into question. It has proven itself over many decades and provided clear evidence of this, not least in the crisis situation of 2019. 

So how is it that a short time later more and more voices were raised speaking of a “democracy on a slippery slope”, an “ailing democracy” or even a “permanently damaged democracy” (ARD, ttt on 31 October 2021)? For the constitutional lawyer, this is easy to resolve: almost 60 years ago, the German constitutional lawyer and constitutional judge Böckenförde pointed out that “the liberal, secular state [...]” lives on “preconditions which it cannot guarantee itself”. Hardly any statement by a constitutional lawyer has become more popular than this one. It says no more and no less than that no constitution, no matter how clever and well-thought-out, can guarantee on its own that people will live in a free democratic constitutional state. This goal can only be achieved if at least the people who exercise functions in this state do so in the awareness of their responsibility towards a democratically constituted society. If this sense of responsibility is missing, such a state will slide into an authoritarian system. 

This insight provides a good explanation for the recent developments in Austria. The Republic is not in a threatening situation solely because of corruption here and there: on their own, these kinds of events cannot do much to the state’s overall structure. However, such events become an existential crisis when corruption becomes “structural” corruption. This means that the state institutions and bodies set up to prevent or sanction corruption are paralysed. This occurs when political elites do not exercise their power in the public interest but in fact, undermine the separation of powers by one political force attempting to dominate all state powers and thus preclude checks and balances. 

Unfortunately, it is impossible to overlook the fact that the Republic has already taken several steps in this direction. When the unveiling of serious allegations of corruption is obstructed by the highest state authorities, when parliamentary control is made more difficult by all means and when, finally, the independence of the media is eliminated through advertisement corruption, and thus public opinion is manipulated, a dangerous path has been taken. When we speak of structural corruption here, it means that the state authorities that were created to fight corruption have become complicit. 

Structural corruption is always corruption of the political elites. Such developments are also dangerous because they are difficult to detect from the outside. If, for example, public prosecutors are obstructed in their work, this is initially only known to the people who are directly affected by it. By the time these events reach the public consciousness, the damage is already so great that it is difficult, if not impossible, to repair. 

The anti-corruption petition currently underway is an important step: it aims not only at improving the legal situation in order to make such developments impossible in the future, but also at raising public awareness of the fact that the threat state and society in Austria has long been real. 


em. o. Univ.-Prof. DDr. Heinz Mayer, Senior Expert Counsel at LGP

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