The Icelandic experiment raises many intriguing questions: how do citizens of a country get called to this office? How do they draft a new constitution? What sort of political forces do they have to balance? An insider view from a former member of the Constitutional Council.
Iceland went to the polls on October 20, 2012 to vote on a new crowd-sourced constitutional bill that emanated from the country’s financial crash of 2008.
The drafting of the bill was guided by a National Assembly of 950 citizens drawn at random from the national registry, meaning that every Icelander eighteen years of age or more had an equal chance of being invited to take a seat in the Assembly. Convening for a day in late 2010, the National Assembly decided that Iceland does need a new constitution, as the parliament had also resolved by 63 votes to zero, and laid down the lines for some key provisions that a new constitution needed to contain, including ‘one person, one vote’ and national ownership of the country’s natural resources.
It does not happen every day that ordinary citizens are offered the opportunity to help rewrite their country‘s constitution. Like 522 other Icelanders, I decided to put my name forward. Friends of mine collected fifty endorsements, the maximum allowed (30 was the minimum), and I then left the country for Africa and did not return back home until after the election. I did not spend a penny as there was no campaign. Like other candidates, I was interviewed for three or four minutes on state radio, in my case by phone from South Africa, and I posted a few short articles on the internet with websites that accepted such contributions from candidates. Also, I opened a Facebook page where I posted a few short messages intended for my friends. The daily newspaper in which I had published a weekly column since 2003 asked me to lay aside my pen from the announcement of my candidacy until after the election. Many if not most of the other candidates kept an equally low profile before the election. Very few advertised or spent significant amounts of money to promote their candidacies. As I see it, this was the least expensive and most civilized election 'campaign' in the history of the republic. The turnout was 37%, which is respectable in view of the fact that this was a special election as opposed to a general election, and considering that strong political forces keen to preserve the status quo tried to denigrate the whole process and even encouraged their supporters to boycott the election. But, overall, the political parties did not field candidates nor did they interfere in the work of the Constitutional Council
Elected by the nation and appointed by the parliament, the 25-member Constitutional Council took on the task of converting the resolution of the National Assembly into a coherent constitutional bill. In the process, the Council was encouraged by popular participation via more than 300 unsolicited reports from the public plus thousands of communications on the Council’s interactive website. After four months of work in mid-2011 in full view of the public (the Philadelphia convention in 1787 also took four months, behind closed doors), the Council approved the bill unanimously with 25 votes to zero. Eight months after receiving the bill, in early 2012, the parliament directed some issues to the Council, convening it for a four-day follow-up meeting. There, in response to the issues raised by parliament, the Council, again unanimously, proposed alternative wording for some provisions in the bill, mostly for clarification, with minimal substantive changes involved. Four months thereafter, the parliament decided by 35 votes against fifteen, with thirteen abstentions, to hold a consultative national referendum on the bill and some of its key provisions on 20 October 2012. The referendum was fought tooth and nail by the political opposition in parliament. The opposition resorted to filibustering in an attempt to derail the promised referendum, an action that ultimately failed.
The ballot presented six ‘Yes or No’ questions, all of which the voters answered decisively in the affirmative. Presumably, the parliamentary majority’s intention was to be able to say to the opposition afterward: Look, the voters not only accept the bill as a whole, but specifically also accept several of its key individual provisions. This strategy worked. Voter turnout was 49%, well above the Swiss average in more than a hundred referenda since 2000.
The questions and answers of those who took a stand were as follows.
- Do you want the proposals of the Constitutional Council to form the basis of a legislative bill for a new Constitution? 67% said Yes.
- Would you want natural resources which are not in private ownership to be declared the property of the nation in a new Constitution? 83% said Yes.
- Would you want a new Constitution to include provisions on a National Church of Iceland? 57% said Yes.
- Would you want a new Constitution to permit personal elections to the Althing to a greater degree than permitted at present? 78% said Yes.
- Would you want a new Constitution to include provisions to the effect that the votes of the electorate across the country should have the same force? 67% said Yes.
- Would you want a new Constitution to include provisions to the effect that a specific proportion of the electorate could call for a national referendum on a specific matter? 73% said Yes.
With such unequivocal guidance from the people via their clear expression of the popular will, the parliament must now finalize the bill and ratify it. The 1944 constitution stipulates that, for the bill to take effect, the next parliament, following a parliamentary election in April 2013, must also ratify the bill.
Here the plot begins to thicken. The current opposition and allied forces have at least three reasons for opposing the bill. First, they have strong ties to the fishing industry that has for many years received fishing quotas practically gratis from the government, a corrupt arrangement that the bill aims to end. Second, they are worried about ‘one person, one vote’ because some of their current MPs would not have much of a chance of being re-elected under ‘one person, one vote.’ Third, the freedom of information provisions in the bill aim to promote transparency by breaking a pervasive culture of secrecy that has enabled the political class to get away with, among other things, the Russian-style privatization of the banks in the period from 1998-2003 that paved the way off the edge of cliff in 2008.
The opposition insists on the right to propose substantive changes to the bill even if the bill has already been accepted by the people - two to one. Some think the opposition really aims to kill the bill. The parliamentary majority, by contrast, wants to respect the will of the people by making only a few changes of wording if necessary as well as perhaps fairly minor changes that the Constitutional Council already approved at its follow-up 2012 meeting. Confident of continued popular support for the bill, the prime minister has raised the possibility of presenting the final version of the bill to a second referendum at the time of the parliamentary election in 2013 in an attempt to reduce the likelihood that the next parliament tries to thwart the will of the people and kill the bill. In any case, the bill awaits a bumpy ride through parliament. “The people have put the parliament on probation,” said the prime minister after the vote.
Around the world, nations routinely change their constitutions, every 19 years on average. In a remarkably prescient 1789 letter to James Madison, Thomas Jefferson wrote that “Every constitution ... naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” On the basis of its textual elements, taking into account its various provisions, researchers at the University of Chicago predict that the new Icelandic constitution, if ratified, will last 60 years, adding that “drafting the right text has been found to be surprisingly important for constitutional mortality“ and declaring the bill to “be at the cutting edge of ensuring public participation in ongoing governance, a feature that … has contributed to constitutional endurance in other countries.“
A modified version of this article has previously been published on VoxEU.