Proposals for a constitutional reform to integrate civil society in political and constitutional decision-making processes

The loss of trust in democratic processes and the rule of law, as well as the increased mistrust of the ‘political elites’ in combination with the rapid spread and use of social media (in which there is often no rational debate, but rather an emotional distance from politics), calls for reflection on how this highly worrying development can be countered.

In addition to participation in elections, the population must be offered opportunities to participate in both democratic legislative procedures and constitutional procedures in such a way that they can exert a concrete influence and not merely join in the discussion.

A project within the framework of the ‘Straniak Initiatives’, funded by the Hermann and Marianne Straniak Foundation.

Constitutional reform to involve civil society in the legislative process at the municipal, provincial and federal level

This project focuses on the participation of interested citizens selected by lot for a process of deliberation and decision-making in certain important matters that fall under municipal self-government as well as state and federal legislation.

As examples in constitutional processes from the recent past in Canada, Ireland and other countries have shown and, also, in the Austrian federal state of Vorarlberg at the municipal level, the legitimacy of decisions won in such a way increases considerably (see David van Reybrouck, Against Elections, 2016). Through these forms of political participation, the knowledge and self-confidence of the population in factual issues and their trust in political processes could be strengthened, the quality of decisions and their social acceptance increased, as can be demonstrated in many examples.

In the course of the project, the most interesting participation models of different countries and their political relevance will be compared and contrasted with theoretical models. The result of the comparison will be used to develop a model that can be harmoniously integrated into the Austrian political and constitutional system.

Rights of civil society to petition the Constitutional Court for review of laws, state treaties and ordinances

An concerned civil society does have the possibility to establish interest groups and NGOs, which can participate in the parliamentary review of draft laws, call for demonstrations, organise campaigns via social networks, spread critical comments and constructive proposals via classic and new media, engage in political lobbying, etc. However, laws and ordinances classified as unconstitutional or unlawful or legally questionable state treaties can only be challenged at the Austrian Constitutional Court if they interfere with the legal sphere of an individual or a legal entity without a judicial or administrative decision. It often takes numerous and lengthy proceedings – which cost not only the parties seeking justice but also the state a lot of money – before the Constitutional Court can be called upon to review the constitutionality or legal conformity of a legal provision. If the Constitutional Court repeals a challenged legal provision, usually only the cases that gave rise to the challenge benefit from the repeal; often the legal provision that was found to be unconstitutional or unlawful but has not yet been repealed is applied to many equally affected parties. In order to counteract such unjust results and at the same time saving ressouces in the judiciary and administration by reducing procedures, the social partners and other civil society interest groups should be given the opportunity to challenge laws, state treaties and ordinances before the Constitutional Court from the moment they come into force. This efficient form of legal participation could be perceived by civil society as a sign that their interests and commitments are taken seriously by politicians and are legally reflected. Examples of this can be found above all in Anglo-American legal systems in the form of ‘public interest motions’.

In the course of the project, the most interesting models and their political relevance are to be compared and contrasted with theoretical models. The result of the comparison will serve to develop a model that can be harmoniously integrated into the Austrian constitutional system. Based on this, proposals for a corresponding amendment of the relevant Art 139 and 140 of the Austrian Constitution will be developed.