From the people to the people, a new constitution

What the future holds in store and what will be the fate of the bill for a new constitution is hard to say at this point in time. But what is evident is that the battle of “who owns Iceland” is being fought and is at its high water mark. There is much at stake.

Thorhildur Thorleifsdottir
13 November 2012

During the Icelandic 'Pots-and-Pans Revolution' in January 2009. Wikimedia Commons/OddurBen. Some rights reserved.

The end of the cold war marked the beginning of a process which led to the great financial collapses in 2008. People had been locked in ideological prisons since the end of the war and dualism has dominated the discussion, west or east, for or against, black or white, good or bad. No alternatives, no shades were allowed.

The first fall

This situation came to an end - metaphorically speaking - with the fall af the Berlin Wall. Suddenly people were out in the open. The winds of ‘freedom’, i.e. the free market, blew over the world, no longer hindered by walls. Post- modernism followed with what most people would argue, rightly, was necessary deconstruction and re-evaluation. Extreme individualism, another byproduct, craved diversity to such an extent that no two people had anything in common. In the name of freedom and so called healthy competition – ‘everyone for him or herself’ dominated everything else. People were judged and valued by the scale of greed, the more you could grab the more you were admired. No questions asked. This was the new gospel glorifying individual ‘freedom and happiness’.

This is of course a short and simplified version of what happened, but nevertheless, this was generally the atmosphere that paved the way to a new Iceland. With the help of the government, a coalition of the conservative party, called Independent Party and a central party called The Progressive Party, great changes took place. Deregulations, privatization of banks, sold off at low prices to members of these two parties, were amongst the measures taken to encourage the growth of the financial scene.

Buying and selling of fish quotas, with great profits, enabled by new laws, created a new class of extremely rich individuals and families, hitherto unknown to that extent in Iceland. The stock exchange overflowed, not only did the new rich class buy stocks using the money that mainly came from selling fish quotas, the general public was encouraged to buy stocks, even to take loans out to buy them, which was easy. The banks seemed bursting with money and were giving loans out left, right and centre. Everyone could walk into a bank and get money to buy houses, cars, stock or any and every consumable. What was not known, partly due to a very weak Financial Supervisory Authority, was that all this consuming was financed by foreign loans. On the surface everything was blooming. Iceland was top of the list of the richest countries in the world and the idea of Iceland becoming a banking empire on a worldwide scale was fostered.

Growing nationalism became apparent. We were supposed in some ways to be superior, due to our viking blood and heritage. Even the president of Iceland went around boasting about our genetic superiority. The young bankers and financial geniuses were hailed like national heroes which enabled and encouraged them to continue gambling, not only in Iceland but with the savings of people in other countries like England and Holland, which later led to the so called ‘Icesave case’. The banks grew to weight three times the GNP, so that the collapse when it came in Iceland was far heavier than in other countries. Signs of great political and financial corruption were routinely ignored.

The second fall

This was generally the situation when the spectacular financial crash took place in October 2008. Three banks comprising 85 percent of the country´s banking system collapsed within a week and the domestic equity market was virtually wiped out overnight. The rest of the banking system crashed in quick succession. The natural thing for inhabitants in any country to do in such a situation is to inspect their legal and constitutional foundations in order to look for latent flaws and to fix them.

This in fact took place in Iceland. Meetings were held every Saturday on a square, called Austurvöllur, right in front of the Parliament House. Thousands of people turned up and this gradually grew into what became known as the Pots–and-Pans revolution. It owes its name to the boisterous banging of kitchen utensils, which was to emphasize the fact that the general public, real families and homes were the actual victims of the financial crash. The three main demands of the Pots-and-Pans revolution were the following: for the government to resign, the general director of the Central Bank to resign (interestingly enough he was the former prime minister and leader of the conservative party, who had himself appointed to this post when he resigned from politics) and for a new constitution. The government resigned in early 2009 and a new government was formed - a coalition of the Social Democratic Alliance and the Left-Green Movement. Soon after the general director of the Central Bank was forced to resign. An election was held in the spring , after which the two above-mentioned parties formed a new government. One of the promises it made was to rewrite the constitution.

After the election in the spring of 2009 the parliament decided to face up to a promise it had made itself to revise a constitution that had been pending for 65 years. It decided to have a constituent assembly elected by the people to do the job. It must be recognized that the prime minister, Jóhanna Sigurdardóttir, leader of the Social Democratic Alliance, had over the years spoken of this possibility and put forward resolutions on the matter, so she cannot be accused of rank populism. The Althing´s decision was to proceed in three steps: a) Calling a National Assembly, b) appointing a Constitutional Committee and c) holding an election for the Constitutional Assembly. Thus emphasizing that the constitution should come from the people rather than from politicians and their lawyers.

  • a) The National Assembly consisted of 1,000 individuals selected at random from the national registry, with certain restraints such as to select an equal representation of men and women of different ages and from different parts of the country. It was held for one day in October 2010 in a big sport stadium in Reykjavík. People were divided into small groups of 10-12 persons who discussed what they wished to see in a new constitution. The National Assembly had expressed very strong views on, for example, public ownership of the country’s resources. The Constitutional Assembly was by law expected to consider the conclusions of the National Assembly.
  • b) A Constitutional Committee, consisting of seven professionals from different areas of expertise, including law, literature and political science, was appointed by the Althing. Its role was to gather information, provide analyses and propose ideas. The committee produced a 700-hundred- page report with detailed ideas and information, for example, quotations from different constitutions and related literature, as well as clause-by-clause analysis of the constitution from 1944, always taking into consideration views expressed by the National Assembly, including on the management and ownership of natural resources.
  • c) The Constitutional Assembly was elected in November 2010. There were 523 candidates competing for the 25 seats in the assembly. The candidates were all representing themselves as individuals, not presenting any political parties or unions, and the campaign was very civilized and moderate. Most candidates just put their names forward, wrote a few articles emphasizing their viewpoints on different matters, hardly advertised at all and answered questions put to them by the media or the public through Facebook.

The political parties did not support any special candidates, but the Independence (conservative) Party and The Progressive Party opposed the idea of electing an assembly from the beginning and encouraged people to ignore the election. Just before the election day The Independence Party mailed a list of favoured candidates to its party members, but only two of those were elected. The media, including state television and radio, did little to inform the public about the issues or candidates. No opinion polls were conducted, so no one knew which were most likely to be elected. The electoral system used was STV (single transferable vote) and the turnout was 37 percent.

The representatives elected formed a very diverse group of people, with broad and different experience: doctors, lawyers, political scientists, priests and professors, a farmer, a bold fighter for the rights of handicapped people, mathematicians , mediapeople, former members of parliament, a nurse, a philosopher, a theatre director and a labour union leader.

An unexpected hiccup

A surprising aftermath was the sudden and unexpected intervention of the Supreme Court of Iceland. One unsuccessful candidate and two other individuals, all with connection to The Independence Party, filed a technical complaint about the designs of the voting booths, claiming the election was not secret. The fact being that the booths were 15-20 centimetres lower than in parliamentary elections, but approved of in many countries.

After reviewing the complaints, the Supreme Court declared the Constitutional Assembly election null and void in what must be the first instance of a national election being invalidated in a democracy and, as considered by many, on very flimsy grounds. It must be mentioned here that members of the Supreme Court had over the years been appointed by The Independence Party and/or The Progressive Party. The appointments were often highly criticized, especially during the reign of Mr. David Oddsson, leader of The Independence Party and Prime Minister for seventeen years. Also worth mentioning is that according to opinion polls the public does not have great confidence in the judicial system, even less in fact than it has in the political system or rather Althing, i.e. around ten percent.

The Althing reacted to the Supreme Court decision by appointing the 25 elected representatives to a Constitutional Council, revising accordingly the law governing the Constitutional Assembly. Of the 25 elected representatives, ten women and fifteen men, all but one accepted the parliamentary appointment. The abstainer was replaced by the person who came in 26th position in the vote tally.

Probably as intended, the opponents of the project have used the Supreme Court intervention to question the legitimacy of the Council, referring to it as an irrelevant ‘conference’ that no one needs pay any particular attention to. Others have asked: if the parliament wanted to appoint 25 people to a Constitutional Council, which 25 individuals would have been better suited to the task than the 25 who were elected through a process that not even the Supreme Court claimed was affected by the alleged technical flaws in question? This is a key point: the Supreme Court invalidated the election without suggesting that the election results had been affected by the problems cited.

Back to work for democracy

But back to the now-appointed Constitutional Council, and its work. Opinion polls suggested that the broad consensus among the elected representatives as well as among the 523 candidates reflected not only the sentiments of the National Assembly as attended by 1,000 randomly selected citizens, but reflected also public opinion. For example, the broad consensus among the representatives about the need to substantiate, or rather reclaim, the people’s ownership rights to their natural resources accords with public opinion polls that have for many years consistently shown about 70 percent of the electorate opposing the discriminatory nature of the fisheries management system that has turned a small group of boat owners into billionaires and major political power brokers.

The National Assembly echoed this popular sentiment. The Constitutional Council considered itself obliged by law to take the resolutions of the National Assembly into consideration. Therefore, no one should have been surprised when the Constitutional Council approved and delivered to parliament a constitutional bill that, if ratified in a national referendum, will entail a major overhaul of Iceland’s constitution.

Early on in the Constitutional Council’s work it became clear that most of its members wanted to start with a clean slate, to write a new constitution rather than revise the existing one. Even so, the council reached a consensus, approving the bill after four months of work with 25 votes against zero, a remarkable feat, not least in view of the fact that the reforms proposed are quite far-reaching and radical in a number of ways. The bill stresses stronger checks and balances between the three branches of government as well as between power and accountability. It stresses transparency, fairness, protection of the environment, and efficient and fair exploitation - plus national ownership of the country’s natural resources.

It aims to stamp out corruption and secrecy, yet leaves both words unspoken. At the same time, the bill promises continuity and stability by preserving and strengthening the semi-presidential form of parliamentary government laid out in the provisional constitution from 1944.

‘Property of the nation’

A short preamble in first-person plural sets the tone:

“ We, the people of Iceland, wish to create a just society with equal opportunities for everyone. Our different origins enrich the whole, and together we are responsible for the heritage of the generations, the land and history, nature, language and culture.
Iceland is a free and sovereign state, resting on the cornerstones of freedom, equality, democracy and human rights. 

The government shall work for the welfare of the inhabitants of the country, strengthen their culture and respect the diversity of human life, the land and the biosphere.

We wish to promote peace, security, wellbeing and happiness among ourselves and future generations. We resolve to work with other nations in the interests of peace and respect for the Earth and all Mankind.

In this light we are adopting a new Constitution, the supreme law of the land, to be observed by all.”

All members of the Constitutional Council will agree that they might all have personal wishes or views that do not appear in the bill, but that is a natural result of consensus. You cannot have everything your own way. If that is your attitude you cannot work with other people, at least not in the consensus method. But most, if not all, would agree that article 34 is essential and it is also the one causing the most serious dispute because of its content, which radically changes the ‘ownership of Iceland’.

In the new bill, article 34 is as follows: 

“Iceland’s natural resources which are not in private ownership are the common and perpetual property of the nation. No one may acquire the natural resources or their attached rights for ownership or permanent use, and they may never be sold or mortgaged. Resources under national ownership include resources such as harvestable fish stocks, other resources of the sea and sea bed within Icelandic jurisdiction and sources of water rights and power development rights, geothermal energy and mining rights. National ownership of resources below a certain depth from the surface of the earth may be provided for by law. The utilization of the resources shall be guided by sustainable development and the public interest. Government authorities, together with those who utilize the resources, are responsible for their protection. On the basis of law, government authorities may grant permits for the use or utilization of resources or other limited public goods against full consideration and for a reasonable period of time. Such permits shall be granted on a non-discriminatory basis and shall never entail ownership or irrevocable control of the resources.”
By “full consideration” is meant full market price – that is, the highest price that anyone is willing to pay, e.g., in a market, at auction, or in an agreement with the state as agent for the resource’s rightful owner, the nation – for the right to exploit the resource in question. This marks a clear departure from current practice where vessel owners have been granted access to valuable common-property fishing quotas. The Iceland bill makes an explicit conceptual distinction between the ‘property of the nation’ and ‘property of the state.’ State property – office buildings, for example – can be sold or pledged at will by the state. The property of the nation is different in that it “may never be sold or mortgaged.” This means that the present generation or future generation do not have the right to dispose of the resources for its own benefit. These restrictions are meant to refer to the natural resources themselves as well as to the rights attached to the resources.
In part to clarify the meaning of the nation‘s, as opposed to the state‘s, ownership rights to its natural resources, the article on natural resources is preceded by a corresponding article on cultural assets (article 32): “Valuable national possessions pertaining to the Icelandic cultural heritage, such as national relics and ancient manuscripts, may neither be destroyed nor surrendered for permanent possession or use, sold or pledged.” National ownership of cultural assets as well as of (renewable) natural resources is intended to impose on the current generation a duty to preserve the assets in question for unborn generations. State ownership involves no such duty.
Articles concerning nature and environment are quite explicit. Article 33 starts as follows: “Iceland’s nature is the foundation of life in the country. Everyone is under obligation to respect it and protect it...”. It reflects increased and growing awareness of the necessity for environmental protection. According to the bill public access to preparations for decisions that will affect nature and environment is ensured.
Without going into the details of every article a few will be mentioned. Clauses on the electoral system, opening up the possibility to vote for individuals as well as party slates, equal votes, “one person-one vote”. This means that the votes of voters everywhere in the country should have equal weight. Not all politicians agree with this as MPs from rural areas currently have much fewer votes behind them than their fellow MPs from the Reykjavík area. Clauses of freedom for the press, to ensure public access to information and documents in official possession and strict rules about appointment to public offices are also to be found in the bill.
Worth mentioning is the article on referendum which allows “Ten percent of the electorate (to) petition for a referendum on legislation passed by Althing…” and “Ten percent of the electorate may submit a legislative bill in the Althing...”. 

How it was done

The Constitutional Council decided to do things differently from the customary methods used in political discussions and decision-making processes. The council was divided into three committees, each working on a different subject. Once a week the whole council met and introduced the work already done in the committees. Suggestions were discussed, altered if need be and voted on. When an article or a provisional one had been agreed on it was included in a paper, always published on our website for the public to see and comment on if they so wished, thus gradually building up a whole bill.

Before the actual work began it was decided to aim for consensus and to have the process open to the public. The job was done in three overlapping rounds. First, each week, the Constitutional Council posted on its website some new provisional articles for perusal by the public. In a second round, usually two to three weeks later, after receiving comments and suggestions from the public as well as from experts, the Council posted revised versions of those articles on the website. Then, in a final round, proposals for changes in the document as a whole were debated and voted upon article by article, and the final version of the bill was prepared. At the end of the last round, each article was approved by an overwhelming majority of votes.

The Council decided to invite the people of Iceland to participate in the drafting of the constitutional bill on the Internet. Judging by the traffic on the Constitutional Council's website, the people of Iceland welcomed the Council’s invitation to participate in the project. The Council received 323 formal proposals that the three committees of the Council discussed and answered. More than 3,600 written comments were posted on the website by visitors; the Council representatives answered many if not most of them. Nearly all the proposals and comments received proved useful in one way or another.

Owners, spoilers and gatekeepers

Contrary to this interest of the public the lack of enthusiasm of the majority of academics, not only lawyers, became very evident. Like everyone else they were welcome to make their point on the website or visit the council. In spite of this it must be underlined that the council actively sought and received the advice of many experts, every step of the way, in meetings as well as in writing.

In July, after four months of work, the council reached a consensus, approving the bill with 25 votes against zero. The bill was then sent to the Althing. Then another interesting process began. In discussing the bill The Independent Party and The Progressive Party opposed the bill so strongly that it proved impossible to get it through the parliamentary process. The content of the bill was hardly mentioned in the discussions - the emphasis was on the process. They claimed everything had been done the wrong way, the election to the Constitutional Assembly and the appointment of The Constitutional Council. The bill was bad they claimed, and needed to be corrected from beginning to end etc. although what and how was never stated.

Furthermore and interestingly enough the main obstacle was never mentioned. Which was of course the article 34 concerning the nation’s ownership of its natural resources or rather the fact that vessel owners and quota holders should from now on pay “full market price” for the utilization of the resources. This would deprive the elite that had until now been granted access to valuable common-property fishing quotas, of this privilege. The majority of vessel owners and quota holders support the Independent Party and pay great sums to it and expect in return to be protected by the party, which they have been. So there is much at stake here. Some would even say that the parliamentarian discussion on the bill crystallizes the battle of “who owns Iceland”. The nation or a few privileged!

Not being able to pass the bill and legislate on it the government decided to put the bill into a referendum. Give it back to the public and ask whether it would like to base a new constitution on the bill proposed by The Constitutional Council. Thus taking one additional very democratic step. Five other questions were as well included in the referendum. The ownership of the natural resources was one. Another was if the Evangelic Protestant Church should be mentioned in the constitution (as it is in the existing constitution). There were further key questions regarding the electoral system, one person-one vote and the clause allowing the public to ask for a referendum. Needless to say the opposition was strongly against this referendum.

Who owns Iceland?

The referendum was held on 20 October this year. The turnout was around 50 percent and 69 percent said yes to the first question concerning the bill being used as a base for a new constitution and to four of the other five questions. Judging by the vote, Icelanders, contrary to the bill, want to have a state church.

This result has not quieted the voices of opposition. The discussion is getting even harder. Now the whole process right from the year 2010, starting with the National Assembly handing the bill to the Constitutional Council is, just to mention a few arguments, called undemocratic, utterly unnecessary and a total waste of money. According to the opposition, the writing of a new constitution should not be done by amateurs but by Althing with the help of lawyers chosen by MPs etc.

What the future holds in store and what will be the fate of the bill for a new constitution, or a new constitution altogether, is hard to say at this point. But what can be said and what is evident is that the battle of “who owns Iceland” is being fought and is at its high water mark. There is much at stake - and I personally hope the opponents are fighting a losing battle.

Special thanks to Professor Thorvaldur Gylfason for giving me free access to his texts and writings on the writing of the bill for a new constitution and the Constitional Council.

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