Kurz : The State

"... and the state is not a dream, but remains like my pillow, a state that shapes me, the threads, the torn and world-managing state that moves through me and me ... ", Blumfeld

At a time when finance is deciding everything, our politicians only speak of democracy out of hypocrisy. The institutions of democracy are left, their rituals. We hold elections, just as some indigenous peoples performed rain dances. Did your dances influence the course of the clouds?

Franco «Bifo» Berardi

"The efficiency of the system makes individuals unfit to recognize that it contains no facts that do not convey the repressive power of the whole. ”Herbert Marcuse

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.

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

Aristotle distinguishes between six forms of government: the monarchy (sole rule), the aristocracy (rule of the best) and politics as good forms as well as their degenerate counterparts tyrannis, oligarchy (rule less) and democracy (defined by him as rule of the free-born poor; to Differentiation from today's concept of democracy also known today as ochlocracy). Aristotle believes that a good form of government tends to degenerate, this degenerate form gives rise to the next good form, etc. In order to avoid this cycle, he advocates a form of mixed constitution between democracy and oligarchy, which he also calls politics.

• Monarchy → Tyrannis,

• Tyrannis → aristocracy,

• Aristocracy → oligarchy (or plutocracy as a sub-case),

• Oligarchy → politics,

• Politics → democracy or ochlocracy,

• Democracy → Monarchy ...

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 legislative field, the so-called legislative violence, the organs of the Bundestag and 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 option of influencing state legislation within the framework of direct democracy (https://www.parlament.gv.at/PERK/BOE/). .

Austria is a federal state with 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 and state governments (parliament explains the state of Austria, the federal principle).

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

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:

Had Kurz []made it clear that he does not plan to repair the hastily adopted laws and regulations, which may not be constitutional, because they should not apply in the long run anyway. Until a review by the highest courts has taken place, "they will no longer be in force," said Kurz(April 14, 2020 , Small newspaper)

The deputy SPÖ club boss Jörg Leichtfried found it "disconcerting when a head of a government cares so little about the rule of law and legal compliance and maintains such sloppy dealings" (just there)

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 ... measures with the constitution do not have to be taken too precisely," said even FPÖ club chairman Herbert Kickl (Die Tagesstimme, April 15, 2020). 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: exit restrictions, all bars and most shops apply were closed. Austria announces a new timetable. The Austrian federal government had informed the citizens about how to proceed in the struggle. The first easing of the drastic measures was soon announced.

Briefly explained that the tracking of the population was also being considered. When asked whether a mandatory 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 (Mercury, May 11, 2020).

Are these exit restrictions mentioned legal? The restrictions on freedom that have been put in place are problematic from two points of view in particular: many measures lack an explicit oneBasis of authorization; 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 generally 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 bans must allow exceptions to do justice to the individual case (Fundamental Rights: Questions and Answers, Society for Fundamental Rights, March 2020).

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.

Impressum

Verlag: BookRix GmbH & Co. KG

Tag der Veröffentlichung: 26.05.2020
ISBN: 978-3-7487-4323-1

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