Source: US Global Legal Monitor
Unlike most countries, Austria does not have just one constitutional document, like the Constitution of the United States for example, but several documents that have constitutional status. Of these documents, the most important one is the Austrian Federal Constitutional Law (Bundes-Verfassungsgesetz). It was adopted by the Constituent National Assembly on October 1, 1920—100 years ago today—and entered into force on November 10, 1920. It was amended in 1925 and 1929, and rendered inoperative in 1934. In 1945, after the end of World War II, the Federal Constitutional Law was reinstated. The Federal Constitutional Law established the Austrian State as a federal republic with a strong bicameral parliament and set out the basic structure of the state, democracy, and the courts.
Debate of the Draft Constitution in the Constituent National Assembly
The university professor, legal philosopher, and jurist Hans Kelsen, also known as the “Father of the Austrian Constitution,” had been tasked in 1919 by Karl Renner, the then-chancellor of the Austrian republic, to produce a draft constitutional text. The deliberations with the provinces and in the Constituent National Assembly took more than a year and the draft was revised multiple times. In particular, the division of powers between the federation and the provinces proved controversial. Kelsen’s influence in the final version of the Federal Constitutional Law is particularly noticeable in the rules on the composition of the Federal Council (Bundesrat), whose members were delegated by the provinces and represented the latter’s interests, and the establishment of the Federal Constitutional Court with the power to review the constitutionality of legislation. On some issues, such as the fiscal constitution, the organization of administrative services in the provinces, and competences regarding schools and education in general, no compromise could be achieved, and they were dealt with in the 1925 amendment. The amendment of 1929 strengthened the role of the federal president, providing that he be directly elected by the people instead of by both houses of parliament (Federal Assembly).
Bill of Rights
Another controversial topic was the inclusion of a comprehensive bill of rights. As no agreement on a new catalog of rights could be reached, the representatives decided to adopt the rights enshrined in the Basic Law on the General Rights of Nationals of 1867. (Federal Constitutional Law, art. 149.) There are a few isolated provisions in the Federal Constitutional Law that grant civil and political rights and procedural guarantees. After Austria joined the Council of Europe in 1955, the European Convention on Human Rights (ECHR) and its first additional protocol were awarded constitutional law status in 1964. The rights codified in the ECHR are human rights and are granted to everyone, whereas those contained in the Basic Law of 1867 and the Federal Constitutional Law are mostly citizen rights, meaning they are granted to Austrians and EU citizens only.
The Federal Constitutional Law of 1920 established a strong bicameral parliament, composed of the National Council (Nationalrat), whose members are directly elected by the people for a period of four years, and the Federal Council (Bundesrat). (Federal Constitutional Law, arts. 24, 34.) The Federal Constitutional Law provided that the federal government be elected by the National Council and depended on its confidence. (Id. arts. 70, 74.) In addition, the federal president was to be elected by the Federal Assembly, meaning jointly by the National Council and the Federal Council. The first federal president, the independent jurist Michael Hainisch, was elected in December 1920. In 1929, an amendment to the Federal Constitutional Law provided that the federal president henceforth be directly elected by the people. (Id. art. 60.)
The Federal Constitutional Law of 1920 set up a Federal Constitutional Court with the power to review the constitutionality of legislation. (Id. arts. 137-148.) Hans Kelsen, who served as a member of the court until 1930, said that this part of the Federal Constitutional Law was what “mattered most” to him and he regarded it as his “most personal work.” (The Constitutional Court, at 29.) At the time, such a specialized constitutional court was unique, only the then-Czechoslovak Republic had established one. (Id. at 30.) In the second half of the 20th century, the “Austrian model” inspired many countries to adopt similar models, such as the Federal Constitutional Court in Germany. The 1925 and 1929 amendments strengthened the powers of the court and changed the modalities for the appointment of judges in an effort to “depoliticize” the process. (Id.) The amendments prohibited the appointment of members of federal or state governments or members of parliament to the court. Half of the members are proposed by the federal government and the other half by the two houses of parliament. (Federal Constitutional Law, art. 147, paras. 2, 4.)
Throughout this year, the Austrian Federal Constitutional Court is celebrating the 100th anniversary of the Federal Constitutional Law with a lecture series on the constitution and the Court. Summaries and videos of some of the past events are available on their website. In addition, the Federal Constitutional Law has been published in an easily readable magazine format with added graphics.