The Austrian Presidential Crisis of 2016

On July 8, 2016 the term of the old president, Heinz Fischer, ended; from then until earlier this week, the three presidents of the Austrian parliament represented the Federal President as a collegiate body. It was nonetheless remarkable that the candidate of the Freedom Party, Norbert Hofer, the third president of parliament, participated in the function of the Federal President in that period of time because he was not willing to withdraw his function in parliament. The annulment thus had the interesting effect that the candidate of the Green Party, Alexander Van der Bellen, had to once again contest the election while the losing candidate participated in the collegiate body that represented the Federal presidency.

Two weeks before the run-off elections were held in May, the Federal chancellor, the leader of the social democrats, stepped down and a new Federal chancellor was appointed by the old Federal President just five days before the run-off elections.

It is interesting to note that the public, the media and political actors did not seem to perceive any form of (political) crisis in this situation. The country found itself in a kind of irritating interim phase. But people acted as though the country was still running in a mode of “business as usual”.

Two further irritating events after the annulment illustrate the fragility of the situation:

1. The re-vote in the election should have taken place on October 2, 2016. Due to damaged envelopes for the postal votes (the reason was a production error that led to improperly sealed envelopes) the re-vote had to be postponed. As the parliamentary statute concerning the election of the Federal President did not contemplate the possibility of postponing the elections and it was already clear that the damaged envelopes would lead to an annulment of the re-vote, the parliament amended the relevant Act of Parliament to postpone the elections to December 4, 2016. The political effect was that the short-term postponement meant that the two candidates would have to mount a third campaign (one in May, one in September and one in November). This not only had financial implications in connection with raising money for three campaigns but it also affected the interests of the people in media debates.

2. The president of the Austrian Constitutional Court did not comment on the judgment after the public announcement and was not willing to participate in the public debate of the judgment.

This situation led to a public statement by one of the 14 judges of the Constitutional Court, Johannes Schnizer, who publicly defended the judgment at the end of September. Schnizer explained that there had been procedural irregularities in the election. These irregularities, he thought, could have been prevented by the scrutineers of local electoral commissions, which he also observed had been provided by the Freedom Party. Schnizer’s statement caused great controversy and he faced pressure to resign. In the end, he apologized but he stayed on the bench. Just two weeks ago, the Freedom Party decided to sue the judge for libel.

To sum up, the Constitutional Court annulled the run-off vote. The Federal chancellor changed at the same time and the government was not able to hold the re-vote, which resulted in the decision of parliament to postpone the elections via parliamentary statute. The losing candidate has formed part of the collegiate body, which represents the Federal President, whose position had been vacant for at least six months. The president of the Constitutional Court refused to defend the judgment of the Court and the only judge who publicly defended the judgment is now sued for libel by the Freedom Party.

The elections are finally over and the Constitutional Court’s judgment seemed to be legitimized by the popular vote on December 4, 2016, which resulted in a vote for the same candidate as in May. Voter participation increased and the margin of victory increased by over 300,000 votes.

The Austrian presidential crisis of 2016, which has never been perceived as such, finally ended. The crisis, however, revealed the fragility of the constitutional system and the deficits in Austrian constitutionalism. Constitutionalism is under stress these days. The stress test will reveal the political, legal and cultural weaknesses as well as the resilience of each system.

*Priv.-Doz. Dr. Konrad Lachmayer is independent researcher in Vienna. In his research, he is focusing on comparative constitutional law (www.lachmayer.eu). From 2014 to 2016, he was research fellow at Durham Law School (UK) and research chair at the Hungarian Academy of Sciences in Budapest.