Beschränkungen der Wirksamkeit von Verfassungsgerichten durch Gesetze. Lehren aus der »Ausschaltung« des Wiener Verfassungsgerichtshofs und deren Aufarbeitung in der österreichischen Rechtswissenschaf

Abstract

The article shows that since the 1930s governments around the world have tried to neutralize constitutional courts for the purpose of limiting the constitutional review of their legislation. One of the most discussed examples for suchlike ambitions was the approach of the Dollfuß-government in Austria in 1933. A more recent and quite similar example is the situation in Poland, in which the Kaczyński-government has passed bills through parliament to incapacitate the work of the court. In regard to these developments, there have been numerous discussions about how to secure the court's ability to work. Meanwhile a consensus has been formed that those laws are contrary to common European standards of constitutional law as they contradict to the supremacy of the constitution as an element of the rule of law. Contrary to the claim made by the acting governments are those laws not justified by the principle of democracy, quite the reverse they object to it. The real problem of these cases is not a matter of substantive law but rather a matter of how to deal with laws that are supposed to be unconstitutional in an ongoing proceeding. Because even if the legal system of a country follows the theory of nutility, there is no certainty whether the government will not change the constitutional process law in conflict with its constitutional court and will switch to the theory of voidability. Therefore, these cases show that the validity of the constitution depends on extralegal circumstances as the willingness of the government to follow the rules of the constitution; but for this willingness no guarantee exists. Finally, the author concludes that the success of laws trying to neutralize constitutional courts rely on the people living under the constitution which preservation by its constitutional court is at stake.