The Icelandic constitutional experiment

This Saturday, a year after a Constitutional Council has written a draft constitution with the help of citizens, voters agreed this draft should be the basis for a new constitution. This writing experiment stands out for its surprisingly democratic process, but a closer look reveals some of its limitations.

Giulia Dessi
23 October 2012
Ballot paper in the Icelandic referendum on 20 October 2012 regarding proposals for a new constitution. Demotix/Arnthor Ævarsson. All rights reserved.

Ballot paper in the Icelandic referendum on 20 October 2012 regarding proposals for a new constitution. Demotix/Arnthor Ævarsson. All rights reserved.

On a national referendum last Saturday, about two thirds of the Icelanders who went to the polls voted yes to the first question and backed the draft constitution.

But if anyone thought that polemics over a new constitution would have ceased with the referendum, they couldn’t have been more wrong. The parliament of Iceland, Althingi, has been indeed split between those who promoted the Constitutional Council – the movement and the ruling coalition of Social Democratic Alliance and Left-Green Party – and those who are against – the conservative opposition’s Independence and Progressive parties. And it is still split today, over the interpretation of results and turnout.

But rather than the text, at the centre of the controversy is the Council’s work. Conservatives believe that the formulation of such a document should be the exclusive concern of the parliament. What has happened instead is that in the fall of 2010, 25 ordinary citizens – the Constitutional Council – have been elected by the nation to draft a new constitution. Through the Internet the general public had the chance to give comments and suggestions. The international media have praised this to the skies. They have gone as far as to say that the entire nation has written the new draft constitution. The facts are slightly different. There has indeed been a fundamental change in Icelandic society and those who have drawn up the document are really ordinary people. But a closer look reveals also three other limitations on this. Traditional party politics has had a finger in the pie. Some citizens did not have a clue about the whole rewriting process. And the parliament might still distort the draft constitution before approval of it. The intention of drafting a new constitution has its origins in 1944, when Iceland became a republic independent from Denmark. The country inherited the Danish document, but it was agreed to draft a new code in the following years. Still, only a few changes have been made since then. Right-wing and left-wing parties have repeatedly shown themselves unable to come to an agreement.

When the financial system collapsed in 2008, Icelanders claimed important changes in the foundations of society. But the idea of writing a new document beyond the walls of Althingi came from the Social Democrat PM Jóhanna Sigurdardóttir. In 2010, one year after her election, the parliament appointed a Constitutional Committee of seven people not directly involved in politics. Their task was to prepare the groundwork for a Constitutional Council that would have to be elected soon thereafter. The Committee first organised a national brainstorming session – whose public response was outstanding – to discuss the type of constitution that Icelandic society wanted. Then, as many as twenty experts offered their knowledge on all issues through a 700-page report. “This work made a lot of difference for the Council,” says Gudrún Pétursdóttir, chairman of the Constitutional Committee. “Even though they did it absolutely their own way, they didn’t have to start from scratch.” National elections for the 25-member Constitutional Council were held in November. Every citizen was allowed to run and 522 people presented their candidacy. The turnout was disappointing: only 35.9 percent of the eligible voters went to the polls.

There appear to be three reasons of this low turnout. First, the Single Transferable Vote system proved to be too complicated. Under STV, people are asked to list their candidates in order of preference. Icelanders could vote either for one person or for all 25. Hördur Torfa, artist and leader of the protests that rose in response to the financial collapse, argues that “the system was wrong” because people didn’t know how to vote for 25 people out of 500. “It took me more than a day to read all the profiles, but people didn’t spend time doing this,” he says adding that the government was to blame for not having explained it properly to the public. Moreover, many Icelanders lost trust in the process due to the uncertain future of the proposal once handed over to the parliament. “People thought that the parliamentarians would change it to what they wanted it to be – in a time when trust in parliament was 10 percent,” says Kristinn Már Ársælsson, founder of ALDA (Association for Sustainability and Democracy). And, finally, the low attendance was also traceable to an abstention campaign by the Independence party. “They called on people to stay at home,” says Thórhildur Thorleifsdóttir, Council member and theatre director. “They are very powerful and they have money, so they can buy opinion very easily.”

The boycott might have been successful but conservatives appeared not to have considered an unintended consequence of this tactic. Because people who went to the polls were more inclined towards other parties, they elected those who had similar political or ideological views. The composition of the Constitutional Council ended up being unbalanced in favour of the Left. Citizens also tended to vote for the people who had been in the spotlight before. Their jobs varied a great deal. But what they had in common was involvement in politics and the willingness to help the process of changing Iceland.

Even so, some in Iceland did not appreciate their lofty motives. In January 2011, after three citizens reported technical irregularities during the polling, the Supreme Court nullified the results of the elections. Judges stated that voters were not allowed enough privacy while voting. Among the deficiencies were traceable ballots, unlocked ballot boxes, and separator panels in the polling booths that had been too short. Still, there was no evidence that privacy’s rights had been actually infringed. The Supreme Court is supposed to be independent but seven judges out of nine were good friends of the Independence Party, says Ástrós Signýjardóttir, the youngest member in the Constitutional Council. The problem is that judges are appointed by the government and, since the Independence Party has been in power from 1991 to 2009, most of the judges were conservatives. The left-wing government agreed reluctantly to abide by the Supreme Court’s ruling and answered by appointing a Council with the same 25 people that had been elected.

The Council drafted a document that improves government transparency, strengthens human rights, and gives greater power to the people. “Althingi exercises the legislative power on behalf of the nation,” Article 2 states. In other words, the people are sovereign but they devolve the exercise of that power to parliament. Moreover, 10 percent or more of voters are allowed to demand a national referendum on new laws passed by Althingi. The proposed constitution also takes some powers away from the government and grants them to the parliament. “We had a very strong Prime Minister who controlled the parties with an iron fist, but now people want to change this,” says Gudmundur Hálfdanarson, historian at University of Iceland. As for human rights, the preamble seeks to promote harmony, security, and happiness as of paramount importance; but a good 30 articles in the second chapter also revolve around these points.

Every single issue covered in the draft constitution has been debated within the Council, but citizens could put forward their suggestions. ALDA association was one of those that handed over very detailed and well thought-out proposals to the Constitutional Council. Among its twelve suggestions are innovative methods of appointing MPs and ministers. Twenty-one MPs out of 63 should be randomly selected from Icelandic citizenry, ALDA members advised. And ministers should be directly elected by people, instead of being nominated by the PM. None of the suggestions have been accepted. But some of them were part of the Council’s discussions.

A sore point in the whole process is the issue of time. Many believe that the time allocated was too short for the complexity of the task. “Writing a constitution in four months makes absolutely no sense whatsoever,” says Gunnar Grímsson, the founder of Citizens Foundation, a non-profit organisation with the aim of promoting electronic democracy in Iceland. He believes that the Council has accomplished a remarkable job, but there is no excuse for the government’s decision to economise. Saving money while writing a constitution exposes a country to a much higher chance of a poor result. Kristinn Már Ársælsson, who has kept an eye on the Council’s work, advances other reasons for that short time. First, the government lacked experience of interactive democracy. Second, it does not have much interest in changing the democratic system towards direct democracy, he says. Jóhanna Sigurðardóttir herself, the PM who promoted the idea of the Council, did not seem concerned by the rewriting process. “She has never confronted us, never came to us, never talked to us,” says Ástrós Signýjardóttir. Neither she nor the ministers were present when the Council handed over the draft to the parliament. “We were handing out a new constitution for Iceland and nobody cared,” she says with dismay. “Foreign media said that the nation wrote the constitution, but it’s only those who were interested watching the website and commenting.”

Only recently have people realised the challenging goal the Council has achieved in formulating a draft constitution and that a new foundation for their society is at stake. After all, this constitution draft hasn’t exactly been written by the nation, nor has it been completely free from party political influence. “The idea of selecting a citizens’ Council to come up with new ideas and the way the Council worked were pretty good. But they could have done it better”, says Kristinn Már Ársælsson. The final proposal also appears to be an adequate document. Still, the procedure had several faults.

If it is true that in the aftermath of the crash the general public felt the need of a new constitution, it is also true that the whole process was pushed forward by the government. As the Constitutional Committee was appointed by the majority, the selected people were probably not ideologically distant from the left-wing government. Moreover, the Independence Party’s boycott of elections for the Council meant the elections of members who were unlikely to have conservative political views. So, although nobody has tried directly to affect the Council’s work, party political influence in it has been strong. Time constraints have prevented the great potential of this experiment – to engage the whole society in discussions, open meetings, and debates in the media. Icelanders did not have enough time to think over what kind of constitution they wanted. It is small wonder the draft constitution ended up being quite moderate in its clauses, as no innovative or radical ideas had the time to be fully digested  and accepted. The Council, Kristinn Már Ársælsson says, limited itself to the concepts that have been floating around in the general discussion up to that point, which is to say what parties had been discussing for years.

Despite these flaws, the Council succeeded in running a surprisingly democratic process. And the national referendum has just paved the way for a new constitution based on their suggestions. 

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