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Judicial Review of Legislation under the Austrian Constitution of 1920*

Published online by Cambridge University Press:  02 September 2013

J. A. C. Grant
J. A. C. Grant
Affiliation:
University of California at Los Angeles
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Extract

When Canada set up a federal system of government in 1867, she had nearly eighty years of American experience to build upon. Consequently, she was able to evade many of the problems in which we find ourselves entangled today. When Austria provided for judicial review in her constitution of 1920, she could profit from more than a century and a quarter of American experience, as well as from the various modifications of the American plan to be found in the British Dominions and elsewhere. Hence, we should not be surprised to learn that in the opinion of Dr. Hans Kelsen the theory and practice of judicial control of legislation reached a more complete development in Austria than in any other nation.

Type
Foreign Governments and Politics
Information
American Political Science Review , Volume 28 , Issue 4 , August 1934 , pp. 670 - 676
Copyright
Copyright © American Political Science Association 1934

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References

1 Kelsen, , “Rapport sur la garantie juridictionelle de la constitution,” Annuaire de l'Institut International de Droit Public (1929), 52, 53Google Scholar.

2 Ratified by a rump parliament on April 30, 1934. Unless otherwise noted, all references in the present article are to the constitution of 1920.

3 Art. 89 (1). See also Art. 140 (4).

4 Arts. 137–148; and law of April 4, 1930, Bundesgesetzblatt, No. 112. The latter is hereafter referred to as Slat. 1930.

5 Const., Art. 147 (1), as amended July 30, 1925; Stat. 1930, Art. 1. Nine members constituted a quorum. Stat. 1930, Art. 7. A member might be ineligible to sit in a given case because of an indirect interest in the litigation. Id., Art. 12.

6 Const., Art. 147 (6), as amended December 7, 1929.

7 Const., Art. 147, as amended December, 1929. The president, vice-president, six of the associate members, and three of the alternates were chosen from the list prepared by the federal ministry. They must have had experience as judges, administrative officials, or professors of law or political science. Three associate members and two alternates were chosen from a list prepared by the lower house of the legislature (Nationalrat), and the remaining three associates and one alternate from nominees of the upper house (Bundesrat). Neither house was restricted in its choice except by the general requirement that no person should be eligible for appointment to the court who had not completed the university course in law and political science and practiced an allied profession for at least ten years. Administrative officials were required to resign their offices before taking their seats on the court. Members of either house of parliament, or of a state or local legislature, were ineligible for appointment until the term for which they were elected had expired. See Kelsen, op. cit. supra note 1, p. 198.

8 In keeping with American terminology, I have translated land as state.

9 As in the United States, an administrative ordinance, to be valid, was required to comply with the statutes as well as with the constitution.

10 Const., Arts. 142, 143; Stat. 1930, Arts. 72–81. The charges were preferred by the proper legislative body.

11 “The Supreme Constitutional Court shall render judgment concerning contested elections to the Nationalrat, to the Bundesrat, to the Landtage, or to any other general representative body; and on application of one of these representative bodies, it shall render judgment in respect to the declaration that one of its members has lost his seat.” Const., Art. 141. And see Stat. 1930, Arts. 67–71.

12 Const., Art. 137; Stat. 1930, Arts. 37–41.

13 Const., Art. 144 (1); Stat. 1930, Arts. 82–88.

14 Const., Art. 138 (1); Stat. 1930, ss. 42–52.

15 Const., Art. 92.

16 Art. 140 (1). “The ministry that makes the application must communicate it immediately to the competent state government or the federal ministry, as the case may be.” Id., Art. 140 (2).

17 Stat. 1930, Art. 54, passed in pursuance of Const., Art. 138 (2), added by the amendment of July 30, 1925. It was only where the dispute related to the division of powers between the federal and state governments, or between two or more states, that the validity of a bill might be raised prior to its passage.

18 Const., Art. 140 (1); Stat. 1930, s. 65.

19 Id., as amended December 7, 1929. This amendment appears to have been modeled after the practice in Czechoslovakia. See Peska, M. Z., “Le development dela constitution Tschecoslovaque” (1930), 47 Revue du Droit Public, 224Google Scholar.

20 Stat. 1930, Art. 62 (1).

21 It is the opinion of Austrian jurists that to allow this to be done would “entail a too serious danger of rash actions, and the risk of an unsupportable obstruction of the rolls.” They concede, however, that “it is incontestibly in this manner that the political interest that exists in the elimination of irregular acts would receive the most radical satisfaction.” Kelsen, op. cit. supra note 1, p. 126.

22 Op. cit. supra note 1, pp. 128–129.

23 See Const., Arts. 6 (3), 7, 26 (5), 84, 85, 90 (2), 149 (1).

24 Op. cit. supra note 1, p. 128.

25 Stat. 1930, Arts. 15, 62 (1).

26 Stat. 1930, Arts. 19 (1), 63 (1).

27 Id., Art. 63 (1). If the case involved a dispute as to the division of powers between the nation and the states, the federal government and all state governments were summoned to the hearing with the indication that it was permissible for them to participate therein. Id., Art. 56 (2).

28 Id., Art. 63 (1).

29 Id., Art. 19 (1).

30 Id., Art. 24 (2).

31 Id., Art. 63 (1). At the time of the summons, the non-plaintiff governments were invited to present to the court, not less than one week prior to the date set for the hearing, a written brief on the questions to be decided. Id., Arts. 56 (3), 63 (2). The statement filed at the time the action was brought (see supra note 25) may be considered as constituting the plaintiff's brief. Greatest reliance was placed, however, upon oral argument.

32 Id., Art. 63 (3).

33 Kelsen, op. cit. supra note 1, p. 121.

34 Id. Such a restriction is in force in Czechoslovakia. Peska, op. cit. supra note 19, p. 236.

35 Art. 140 (2).

36 Kelsen, op. cit. supra note 1, p. 120. And see Mirkine-Guetzévitch, B., “Les nouvelles tendances du droit constitutionnel (1928), 45 Revue du Droit Public, 5, 38Google Scholar.

37 Const., Art. 140 (3). The provision was clearly mandatory.

38 Stat. 1930, Art. 64 (2).

39 Const., Art. 140 (3).

40 Const., Art. 140 (4), as amended December 7, 1929.

41 Const., Art. 140 (3).

42 Id., as amended July 30, 1925.

43 “This retroactive effect of the annulment is a technical necessity because without it, the authorities charged with the application of the law [i.e., the judges of the Supreme Court and of the Supreme Administrative Court, respectively] would not have an immediate and consequently sufficiently cogent interest to cause the intervention of the constitutional court. … It is necessary to encourage them to present these requests by attributing in case of annulment a retroactive effect.” Kelsen, op. cit. supra note 1, p. 127.

44 For example, if a statute went into force in March, and the judgment of annulment did not become effective until July, the annulled act was still applied to a set of facts arising in May. In short, the citizen had no alternative to abiding by the law while it remained on the statute book save to run the chance that it would be his case that would be made the basis of a petition to the Supreme Constitutional Court by the Supreme Court or the Supreme Administrative Court.

45 The adoption of such a practice may have been due, in part, to the fact that Continental jurists as a group consider the judicial review of legislation essentially legislative in character.

46 It should be noted that a state law could not go into effect until eight weeks following the date of its passage, unless the federal ministry expressly consented to earlier publication. Const., Art. 98.

47 This generalization is subject, of course, to the qualification noted above.

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