Kurz : the state

It cannot and must not be assumed that our dear Federal Chancellor Sebastian Kurz knows little or nothing about the state. So here is an explanation. It won't help, but you can try it.

The government is obviously made up of ordinary and unsanctified men and is therefore a legitimate object of criticism and even contempt. If your own party is in power, it can be assumed that things are moving safely enough, but if the opposition is in there, all security and honor have clearly fled the state. In practice, however, the Democrat does not treat his elected citizen in the least with the respect of a king, and the sophisticated citizen does not honor dignity even when he finds it. The Republican state has almost no traps to address the feelings of the common man. What it has is of military origin, and in an unmilitary era, even military traps have rarely been seen. At such a time, the meaning of the state almost disappears from people's consciousness.

What is the state Can our Chancellor answer that? We don't know and maybe that's a good thing.

The state needs three things that make it a state. These are:

1. the national territory, this is a geographically defined area of ​​the earth's surface;

2. the state people, that is the sum of the nationals;

3. State power, a stable government that exercises its violence to the max.

What is the Republic of Austria now? The Republic is a federal state made up of nine independent federal states. The federal character is a constitutional principle that can only be changed on the basis of a referendum.

The state population is initially the population of the state, i.e. all persons who have a permanent residence in the state territory, regardless of their (ethnicity, origin). This is the total of those who can participate in the status activus, i.e. those who can actively participate in the state (for example through elections).

State authority in the Federal Republic of Austria is divided between the legislature, the executive and the judiciary. .

In the area of ​​the legislative branch, the so-called legislative power, the organs of the Bundestag and the Bundesrat must therefore be mentioned. This violence therefore lies with parliament as the leading authority in democracy.

In the area of ​​the executive, the so-called executive power, the federal government deserves special mention. It is headed by the Federal Chancellor, who sets the policy guidelines.

The Federal President is also a head of state as head of state, but has a more representative function.

The Federal Constitutional Court and the five highest federal courts are responsible for the judiciary, the so-called judicial power.

In contrast to a centrally organized state, legislation and enforcement in a federal state are divided between the federal and state governments. The state laws and municipal law are decided by the state parliament. The state governments take care of the state administration. Citizens of a federal state also have the opportunity to influence state legislation within the framework of direct democracy1.

Austria is a federal state that is made up of nine federal states (Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg and Vienna). The federal principle means: The state tasks are divided between the federal government and the states. 2

How is Austria structured? The structure of Austria is characterized by the following elements:

The federal and state governments have their own legislation.

The federal and state governments have their own enforcement.

The federal states participate in the administration of the federal government through the indirect federal administration.

The federal and state governments each have their own financial economies, i.e. their own budget. You can also collect your own taxes. However, essential taxes such as income tax, VAT etc. are only levied by the federal government. The federal states receive funds from the entire federal tax income as part of the financial equalization. This is only valid for a few years and is renegotiated regularly.

The federal principle arises not only from Art. 2 of the Federal Constitutional Law (B-VG), but also from other provisions of the B-VG, through which the states are granted a relatively autonomous state legislation and state administration3.

That was a very small extract of what a Chancellor should know. Now we will talk about what our Chancellor does not know and does not want to know: the constitution.

What does Chancellor Sebastian Kurz know about the constitution? Here is a small excerpt:

Kurz had made it clear that he was not planning to repair the hastily passed laws and regulations, which may not be constitutional, because they should not apply in the long run anyway. Until a review by the supreme courts has taken place, "they will no longer be in force," Kurz said

The deputy SPÖ club boss Jörg Leichtfried found it "worrying when a head of a government cares so little about the rule of law and legal compliance and maintains such sloppy dealings" 2.

The rule of law does not have to be upheld, even in difficult times. That's where we need legal certainty! A head of government in particular has to be very careful with the constitution, fundamental rights and freedoms. Nobody is allowed to move outside the law! "Chancellor Kurz is obviously of the opinion that the Corona measures do not have to be taken too seriously with the constitution," said FPÖ club chairman Herbert Kickl3. Apparently the beauty of the constitution had lost its appeal for President Van der Bellen at the moment when it no longer seemed to be particularly important to the Chancellor. Is that acceptable? Isn't there always a need to deal responsibly with the constitution and with the fundamental rights of citizens?

Since March 16, public life in Austria has been largely silent due to the corona virus: exit restrictions apply, all restaurants and most shops were closed. Austria announces a new corona virus road map. The Austrian federal government had informed the citizens about the next steps in the fight against the corona virus. The first easing of drastic anti-corona measures was soon announced.

Briefly explained that the tracking of the population was also being considered. When asked whether a mandatory Corona app would come to register contacts, Kurz replied: “We are working on this question. The basic problem is: can I remember who I have had contact with in the past ten days? I could not do it. Nobody will know who he was sitting next to on the bus. "The Austrian government also thought about solutions for people who do not have a smartphone:" There will be an opportunity to develop a key ring. The majority of Austrians support this initiative. Track, test, isolate. ” In addition to a tracking app, tests and the isolation of infected people should also be part of the strategy to curb the spread of the coronavirus. 4

Are these exit restrictions mentioned legal? The restrictions on freedom that have been put in place are problematic from two points of view: many measures lack an explicit authorization basis; and it is questionable whether they are proportionate. The government uses the Infection Protection Act (IfSG) as a basis for authorization, according to which various measures can be ordered, for example a quarantine, but only in connection with a specific infection or suspected infection. Even according to the police and regulatory law of the federal states, which contains the legal basis for official measures to avert danger, a ban can only be issued in certain individual cases to enter certain places. However, entire areas cannot be blocked on the basis of these laws. Finally, the civil protection law of the federal states offers the possibility, if a disaster case is declared, to take certain measures - curfews are not regulated there either. In the absence of a specific basis for intervention, the question arises whether exit and contact restrictions can be based on a so-called “general clause”, that is a very general formulated interception standard. In the Infection Protection Act there is a general clause for "necessary protective measures". However, there are important reasons against this general clause being sufficient for this. In the case of interventions in fundamental rights that are as extensive as they are currently, a special legal basis with precise requirements is required. They are necessary if there is no milder agent with the same effect. However, the legal judgment about the current and upcoming fundamental rights interventions faces the same problem as politics: We do not know how many new infections our health system can endure per day. Thousand? Hundred? Fivethousand? How long can there be how many? And we also don't know which measures can actually contain the pandemic most effectively. With so much uncertainty, the law of politics leaves a lot of room for judgment.

The measures must bring something, otherwise they are illegal. A suggestion from the Federal Ministry of Health had to stop at this barrier: the authorities should be able to request the location data of the cell phones of infected people, which were determined via radio cells, in order to identify contact persons.

The restrictions on freedom must also be coherent. For example, those who have been at their second home for months must not be forced to return to their home country if this increases the risk of infection. Therefore, all prohibitions must allow exceptions in order to do justice to the individual case1.

With an empowerment law, the parliament gives the government extraordinary powers. Here is an example: An article in the B-VG was repealed, according to which every overall change to the federal constitution had to be subjected to a referendum. Furthermore, the new constitution adopted by emergency ordinance was declared to be the current federal constitution. The functions of the National Council and the Federal Council have been declared extinct. All powers (particularly legislation) have been delegated to the Federal Government. To also regulate the transition to the new constitution and to determine when the constitution became effective in 1934.

We want to leave it at that.

So what is the constitution?

Today, the constitution refers to special and very special laws that form the basis for state action and regulate the establishment and exercise of political rule. For example, a constitution contains the rules for how a state is structured and who can pass laws2.

Criticism of this government's corona measures is growing. Lawyers complained that some measures violated the constitution. It's about trifles, like the restriction of almost all civil liberties - from freedom of movement to freedom of travel to economic freedom. By the stroke of a pen, innumerable livelihoods were destroyed.

Breach of the Constitution - so what?

Chancellor announced that because of such a bit of a breach of the constitution, please nobody should puff up and make important. Everyone stopped and stopped. Federal President Van der Bellen, as well as the Green Kolitionpartner. What more do you need?

With its rules, a constitution expects everyone who has functions and responsibilities in the state. The fulfillment of these expectations cannot be taken for granted - for example, that the Parliament discusses laws in detail or that judges are independent. Therefore, these expectations need special protection. And so everything that is decided by Parliament and what the government does must also be measured against the constitution. It must be checked whether what is happening in politics and in the state corresponds to the rules that the citizens have drawn up for it. The constitution must therefore be accepted by all citizens of a state, but above all by the political parties and their representatives in parliament. It should be the basis of their political actions.

The constitution should ensure stability. It also means that constitutions cannot be changed easily.

In Austria, the constitution can only be changed if at least half of the members of the National Council are present at the vote and two thirds of them support the change. In addition, constitutional laws must be described as such very precisely. Some constitutional laws can only be changed with the approval of the Federal Council. If the basic principles of the Federal Constitution are changed, even the people must vote on it1.

Maybe that helps a little Mr. Kurz!

Who advises Sebastian Kurz?

The journalist Knittelfelder explains Kurz and his politics based on the closest colleagues. And unlike others, he knows exactly what he is writing about: he has known the game for years. The hardest currency in politics is particularly important: loyalty. It has grown over the years in the team around the Chancellor and is unbreakable. Using the example of individual protagonists, it is demonstrated that even consultants whom the turquoise party leader blindly trusts today had to work long and hard to get their stand. Kurz’s team is about ideology-free careerists or a new “Buberl party.” According to Knittelfelder, it is a “partly ore-conservative group with political hardliners”, which in individual cases combines a pronounced aversion to social democracy.

This can be exemplified on the "right hand" of Chancellor, Head of Cabinet Bernhard Bonelli. He is described as a strictly religious traditionalist, who maintains views that are sometimes “incapable of a majority in society”. The boss of the short think tank, recently hyped by interviews, Antonella Mei-Pochtler, omitted Knittelfelder in the description of the closest circle2.

Long-standing business consultant Antonella Mei-Pochtler is little known to the general public. The 59-year-old is one of the Chancellor's closest circle and has advised Kurz during his time as Secretary of State for Integration. In the election campaign, she helped Kurz with questions of economic policy. Now their sphere of activity has been drastically expanded. In the Federal Chancellery, it is supposed to establish the Think Austria think tank. The problem: Nobody knows exactly what ideas the head of government should hatch. 3

1 https://www.parlament.gv.at/PERK/BOE

2 Parlament erklärt Der Bundesstaat Österreich  Das bundesstaatliche Prinzip

3 Der bundesstaatliche Aufbau Österreichs

4 14. April 2020 , Kleine Zeitung

5 Eben da

6 Die Tagesstimme, 15. April 2020

7 Merkur, 11. Mai 2020

8 Corona und Grundrechte: Fragen und Antworten, Gesellschaft für Grundrechte, März 2020

9 Parlament erklärt Die Bundesverfassung Was ist eine Verfassung?

10 https://www.parlament.gv.at/PERK/VERF/WAS/index.shtml

11 Erzkonservative Truppe": Wer Sebastian Kurz berät

12 Zeit Online