December Constitution

TheDecember Constitution(German:Dezemberverfassung) is a set of six acts that served as theconstitutionof theCisleithanianhalf ofAustria-Hungary.The acts were proclaimed byEmperorFranz Josephon 21 December 1867 and functioned as the supreme law of the land until the collapse of the empire in 1918. Five of the Constitution's acts were replaced by theFederal Constitutional Lawbetween 1918 and 1920; the sixth law, abill of rights,is still in force.

Content

The December Constitution consists of

• a law expanding the powers of theImperial Council;
• the Basic Law on the General Rights of Nationals (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger), abill of rights;
• the Basic Law Establishing a Supreme Court of the Empire (Staatsgrundgesetz über die Einsetzung eines Reichsgerichts);
• the Basic Law on the Judiciary (Staatsgrundgesetz über die richterliche Gewalt), a law establishing an independent court system;
• the Basic Law on the Executive (Staatsgrundgesetz über die Ausübung der Regierungs- und Vollzugsgewalt);
• the Delegation Law, a law regulating relations between the Cisleithanian andTransleithanianlegislatures.

The Basic Law on the General Rights of Nationals is abill of rightsstipulating, among other things, equality before the lawfor all the empire's ethnicities (articles 1, 2, 3, and 19), the end of all forms ofserfdom(art. 7), freedom of the press(art. 13), freedom of religion(articles 14 and 15), freedom of assembly(article 12), and secrecy of correspondence(art. 10). It also established a limited form ofdue process;under the Basic Law, a person could not be arbitrarily deprived of the freedom of their person (art. 8), their property (art. 5), or the inviolability of their home (art. 9).

The Basic Law of the Judiciary stipulated theseparation of administration and judiciaryand the independence of the courts. It also guaranteed the right of the people to participate in the administration of criminal justice; serious crimes would from now on requiretrial by jury.Last but not least, the Law established a system administrative courts, making executive acts of government subject to judicial review.

The Delegation Law affirmed and ratified, for the Cisleithanian party to the conflict, the main outcome of theAustro-Hungarian Compromise of 1867:Cisleithania and Transleithania would act as a single monolithic entity for the purposes of international law; they would have a joint diplomatic service, a joint foreign office, and joint armed forces. Otherwise, theKingdom of Hungarywould be a fully independent separate country.

The remaining laws dealt mainly with procedural details and miscellanea such as the immunity of Imperial Council delegates.

Genesis

Until 1848, theAustrian Empirewas anabsolute monarchywith no written constitution and no modern concept of therule of law. In 1848, awave of revolutionsswept Austria; the revolutionaries demanded, among other things,constitutionalismandfreedom of the press.By 15 March, EmperorFerdinand Ihad been forced to promise to meet these demands. On 25 April, pursuant to this promise, Ferdinand proclaimed thePillersdorf Constitution,named after its principal framer, Minister of the InteriorBaron Franz von Pillersdorf. The Pillersdorf Constitution, written essentially by the cabinet with no consultation of any kind of elected council, was widely seen as inadequate and did nothing to stem the tide of revolutionary unrest. In December, Ferdinand was forced to abdicate. Among other desperate measures, he had already declared the constitution "provisional" in May and completely scrapped it in July.

Ferdinand's successor,Franz Joseph,was determined to reassert absolute monarchy. By March 1849, he had taken back the streets and mostly neutralized the intellectuals. He still needed to sideline the revolutionaries' unauthorised constitutional assembly, theKremsier Parliament,which had promulgated its own draft constitution, theKremsier Constitution.Between 4 and 7 March, to preempt the Kremsier Parliament, he proclaimed hisMarch Constitution,seemingly giving in to most of the Kremsier demands. The Kremsier Parliament dealt with, he revoked his own constitution with the 31 December 1851New Year's Eve Patent.

No written constitution left in force, Austria was once again an absolute monarchy. The empire, and with it the personal authority of the Emperor, was severely weakened by a series of diplomatic setbacks, the rise ofcivic nationalism,and the growing disaffection of the empire'sHungarianandSlavicsubjects with the Habsburgs' rule. By 1860, Franz Joseph was forced to formally share power again. A new constitution, the 1860October Diploma,granted more autonomy to the provinces and strengthened regional nobility; regional legislative and administrative authority would partially lie with each region's respective aristocracy. The October diploma proved to be too little, too late: it neither satisfied the nobles nor, in particular, the people of theKingdom of Hungary.The 1861February Patentmade further concessions, again failing to pacify Hungary.

Hungary had come close to independence during the 1848 revolutions, had been beaten into submission only with the help of theRussian Empire,and had lived under what effectively was amilitary dictatorshipever since. In 1866, Austria was defeated in theAustro-Prussian Warand lost its claim to being the leadingGermanstate, plunging the Habsburg dynasty and their German-speaking realms into an unprecedented identity crisis. The monarch's moral authority gravely damaged once more, unrest in Hungary threatened to erupt again. His back to the wall, Franz Joseph saw no choice but grant Hungary all but full independence in theAustro-Hungarian Compromise of 1867.To prevent the empire's non-Hungarian ethnicities from demanding similar levels of autonomy, Franz Joseph then had to return to constitutionalism and vest the empire's peoples with participation rights in the legislative and administrative process.

Abrogation

As a result of Austria's defeat inWorld War I,Austria-Hungary collapsed in October 1918. Both theKingdom of Hungaryand theSlavicprovinces of Cisleithania broke away from the German-speaking core lands to form modernnation states.Many of the institutions established by the December Constitution collapsed; in particular, the Imperial Council could no longer function. Many of the provisions of the Constitution became moot outright. It was obvious the emerging rump state would need a new legal framework. On 21 October 1918, parliamentarians from the German-speaking regions convened to form a Provisional National Assembly (Provisorische Nationalversammlung) to manage this transition.

On 30 October, the Assembly proclaimed a provisional constitution. The provisional constitution did little more than establish the Assembly as a provisional parliament, establish the parliament's three-memberpresidiumas the provisional head of state, and set up a provisional cabinet. Even so, most of the articles of the December Constitution were thus implicitly abrogated. The actdid not include any catalogue of basic rights, although it was followed on the same day by a resolution abolishing censorship and establishing freedom of the press, leaving the Basic Law on the General Rights of Nationals on the books.

General elections on 16 February 1919 replaced the Provisional Assembly with a Constitutional Assembly (Konstituierende Nationalversammlung). On 1 October 1920, the Assembly passed theFederal Constitutional Law,confirming and formalizing the abrogation of the December Constitution. The Law not containing any new bill of rights either, the Basic Law on the General Rights of Nationals in still in force. Together with the 1955Austrian State Treatyand the 1955European Convention on Human Rights,ratified by Austria in 1958 and part of the country's body of constitutional law since 1964, it serves as Austria'sbill of rightsto this day. In particular, the promise ofequalityin Austria's current constitution is modelled on the analogue provision in the statute.

Literature

• Berchtold, Klaus (1998):Verfassungsgeschichte der Republik Österreich.Springer. Vienna, Austria.ISBN3-211-83188-6.
• Brauneder, Wilhelm (2005):Österreichische Verfassungsgeschichte. 10. Auflage.Manz. Vienna, Austria.ISBN3-214-14875-3.
• Öhlinger, Theo and Eberhard, Harald (2014):Verfassungsrecht. 9., überarbeitete Auflage.Facultas. Vienna, Austria.ISBN978-3-7089-0844-1
• Walter, Friedrich (1970):Die österreichische Zentralverwaltung. III. Abteilung. Von der Märzrevolution 1848 bis zur Dezemberverfassung 1867. Band 3. Die Geschichte der Ministerien vom Durchbruch des Absolutismus bis zum Ausgleich mit Ungarn und zur Konstitutionalisierung der österreichischen Länder 1852 bis 1867.Holzhausen. Vienna, Austria. No ISBN.