Problems and Purpose

The Constitutional Assembly was a body of 25 appointed Icelandic citizens, which was charged with creating a constitutional draft between 6 April and 29 July 2011. Initially, the constitution was meant to be revised by a nationally elected assembly, but following a controversial Supreme Court decision to void the assembly elections, the Icelandic parliament (Althingi) appointed the elects to form the Assembly.

The parliament had called for a constitutional revision in response to the national economic meltdown, which had caused the country’s stock exchange, currency and banks to crash in October 2008. [1] Taking its cue from nation-wide protests and non-confrontational efforts by civil organisations, the governing parties decided that the citizens should be involved in creating a new constitution. [2]

On 16 June 2010, the Icelandic parliament accepted the “Act on a Constitutional Assembly no. 90/2010” (hereafter: the “Constitutional Act”). This act ordered a complete overhaul of the old Icelandic constitution, which dated from 1944. Iceland had in this year gained independence from Denmark and the Danish constitution served as a model for the Icelandic one. Consequently, the text of Iceland’s constitution was almost literally identical with its Danish counterpart. Since then, the only changes that had ever been made to this document were small ones, such as the substitution of the word “king” with “president”. [3] There had been several parliamentary committees that conducted reviews of the 1944 Constitution, but these had until 2009 never made any amendments.

The purpose of the revision was therefore to revise the old Constitution in its entirety, bringing it up-to-date with the reality of present Icelandic politics.[4] Specifically designated subjects of consideration included the authority of the legislative and executive branches, the role of the President, the independence of the judiciary, electoral reform, public participation, supervision of the finance sector, and the ownership of natural resources.[5] Over the duration of four months, the Assembly was then asked to draft a legislative bill for the attention of parliament.

Background History and Context

The constitutional revision process was officially initiated through a bill to the parliament by Prime Minister, Johanna Sigurdardottir (Social Democratic Alliance). This bill was presented in the wake of the Icelandic economic meltdown in 2008-11, which had caused a string of protests (also known as the “Kitchenware Revolution”) that led to the resignation of the government in 2009.[6] Parallel to these protests, citizens started to organise in grassroots-based think-thanks. On 14 November of that year, a group of such organisations – collectively called “The Anthill” – held a “ national assembly”. By inviting 0.5% of the population, the organisers of this event hoped to obtain a participative mandate that was representative enough to hold the government accountable.[7]

Their findings added to the already existing social discourse, which demanded the review of matters like the separation between legislative and executive powers, the responsibilities and supervision of the executives, and the possibility of direct public participation in decision-making. Faced with such fundamental questions, much of the public attention was directed at the fact that Iceland had never had an actual democratic discourse concerning its Constitution. This consequently became a prominent topic in the debate around national reform. Anticipating this demand, Sigurdardóttir already announced the creation of a special parliament to revise the constitution while the formation of the coalition was still incomplete in early 2009.[8]

Thus, after the submission of the bill and perhaps under the pressure of the 2009 National Assembly, parliament decided to add provisions for a national assembly and an inclusive and public drafting process to the Constitutional Act. The act received the support of 39 members of the parliament, with 11 members abstaining, one voting against the Act and 11 absences (out of a total of 62).

The parliament appointed a Constitutional Committee, which was to make preparatory arrangements. This committee consisted of seven members, and was tasked with organising the National Gathering. Afterwards they were to write a report about the Forum’s findings and organise the Assembly elections. However, the Supreme Court ruled that the elections were invalid due to technical errors (because of carelessness, it would have theoretically been possible for someone to find out people’s personal voting preferences). Since this ruling did not disprove the actual election results, Althingi decided to appoint the Assembly members to a Constitutional Assembly. (Consequently, these two bodies are practically the same.) On 29 July 2011, the Assembly had finished the final draft, which was send to parliament for a reading. After this reading, it may be returned to the Assembly for amendments or it may be accepted as a whole by parliament. In both cases, it is also possible that it is presented for approval by the citizens in a national referendum.

Organizing, Supporting, and Funding Entities

The Constitutional Assembly was initiated by the Icelandic parliament, who went on to appoint publicly elected members to sit on the Constitutional Assembly.

Participant Recruitment and Selection

The body that was to produce the actual draft was originally intended to be a publicly elected Assembly of 25 to 31 normal citizens. Icelandic citizens with full suffrage were allowed to vote for the members of the Constitutional Assembly. They were also allowed to stand for election, except for the President, ministers and the members of parliament. In total, 522 people stood for election, out of whom 25 were elected to the Assembly by Single Transferable Vote (STV). The turn-out was around 83,000 people from a population of 320,000, a 35.95% participation rate.[9] For Icelandic standards, this is said to be an unprecedented low turnout.[10] Possible reasons for this low participation rate could have included low media coverage, lack of debate about basic issues and between clearly profiled candidates, disagreement over the importance of a Constitutional Assembly, and finally a general "election fatigue" (it was the third Icelandic election of that year).[11]

On the 25th of January, 2011, the Icelandic Supreme Court Ruled that the elections were invalid due to deficiencies in its execution.[12] However, this controversial decision of the court was de facto dismissed by the parliament, which ruled that the elected Assembly members were to sit on a Constitutional Assembly. The resolution was passed with 31 votes in favour, 21 against and seven no-votes.[13] The Constitutional Assembly thus became a Constitutional Assembly, with the same tasks and of almost exact the same composition (one person gave up her seat and was replaced by the 26th person on the list).

Methods and Tools Used

Taking its cue from nation-wide protests and non-confrontational efforts by civil organisations, the governing parties decided that the citizenry should be involved in creating a new constitution. The Assembly was ordered to do this by drawing on the results of a consultative citizens’ forum, as well as by advertising “extensively for proposals from the public, interest groups or other parties.”[2]

The Assembly attempted to meet this condition by making innovative use of the internet, subscribing to popular social media like Youtube, Twitter, Facebook and Flickr and arguably making Iceland the first country to use crowdsourcing as a means for constitutional revision. This may have produced some notable ideas, such as the public ownership of Iceland’s natural resources, an article on information rights, and an attempt to enshrine the Parliament’s role in the supervision of financial management.

What Went On: Process, Interaction, and Participation

Article 20 of the Act specifies that the Assembly “shall advertise extensively for proposals from the public, interest groups or other parties who may wish to bring forward their proposals and other material to the attention of the Assembly.” The Assembly managed to do this quite creatively, having subscribed to popular social media like Youtube, Twitter, Facebook and Flickr. They used these to post updates, minutes, interviews with Assembly members and videos of their deliberations. Together with the official website, these digital media served as a platform for Icelandic citizens to bring their proposals forward. According to the council, most of the online discussion consequently took place on Facebook.[14] In other words, the process of participant selection was open: users could self-select. The only thing they were required to do was give an address, and consequently the process was even open to non-nationals.

During the 4 month writing process, the Assembly regularly published preliminary drafts online for public review.[15] Additional suggestions by members of the public that were approved for consideration by the Assembly were posted on the website. The public could then debate these suggestions online. Finally, the Assembly would consider the arguments for and against the suggestions and decide whether to include them in the next draft. Some suggestions, such as the prohibition of livestock maltreatment, have thus been adopted in the constitutional draft. [16]

On 29 July, 2011, the Assembly presented a final draft resolution for revision to Althingi. This will be reviewed and possibly returned to the Assembly for amendments, after which it will be submitted to a parliamentary vote. There is also the possibility that the draft will be put to a referendum.[17]

Influence, Outcomes, and Effects

The constitution draft was finished on 29 July 2011 and presented to parliament on the same day. The proposals included most of the recommendations of the 2010 National Assembly and were supported unanimously by the Constitutional Assembly itself. Proposals included:

• ‘one person, one vote' (in the existing system, a candidate 'requires much more votes to be elected as an MP in Reykjavik than in one of the more rural areas');
• a referendum on abolishing the state church (polls indicated 73% would vote in favour of separation of church and state);
• a number of changes to government, including not automatically making the biggest party's leader PM, introducing a ten-year limit for PM terms, and that a vote of no confidence should have to include a proposed replacement PM;
• obliging the state to provide internet access to all citizens;
• introducing a three-term limit for the President;
• allowing 15% of voters to put bills to parliament or call for a referendum on proposed laws;
• restricting government size to ten ministers, and barring ministers from being MPs at the same time; and
• declaring Iceland's natural resources public property.[30]

A non-binding constitutional referendum was held in Iceland on 20 October 2012. It had originally been scheduled to coincide with the presidential election of June 2012 but was delayed due to opposition from the Independence Party and Progressive Party.

Voters were asked whether they approved of six proposals included in the new draft constitution:[31]

• Do you wish the Constitution Assembly's proposals to form the basis of a new draft Constitution?
• In the new Constitution, do you want natural resources that are not privately owned to be declared national property?
• Would you like to see provisions in the new Constitution on an established (national) church in Iceland?
• Would you like to see a provision in the new Constitution authorising the election of particular individuals to the Althingi more than is the case at present?
• Would you like to see a provision in the new Constitution giving equal weight to votes cast in all parts of the country?
• Would you like to see a provision in the new Constitution stating that a certain proportion of the electorate is able to demand that issues are put to a referendum?

All six questions were approved by voters.[32]

The bill was supported by a majority of MPs but, partly through filibuster by the opposition, the bill did not come before parliament for a vote before recess was called prior to the 2013 election. The election was won by opponents to the new constitution, putting the bill's future into jeopardy. The judgement of Thorvaldur Gylfason was:

It is one thing not to hold a promised referendum on a parliamentary bill as was done in the Faroe Islands. It is quite another thing to disrespect the overwhelming result of a constitutional referendum by putting democracy on ice as is now being attempted in Iceland by putting a new constitution already accepted by the voters into the hands of a parliamentary committee chaired by a sworn enemy of constitutional reform as if no referendum had taken place. Parliament is playing with fire. It risks the demotion of Iceland from the club of full-fledged democracies.[33]

However, Gylfason has also stated that 'As always, however, there will be a new parliament after this one. One day, most probably, the constitutional bill approved by the people of Iceland in the 2012 referendum or a similar one will become the law of the land'.[34]

Analysis and Lessons Learned

Political Independence

The Supreme Court’s decision to void the Assembly Elections on technical grounds has proved very controversial. On close examination, the ruling appears to rest on a set of questionable arguments.[20] Its motivation appears to be political, since four of the five Supreme Court Judges were appointed by the Independence Party. This party had a strong interest in not letting the assembly operate after it became clear that most of the elects were in favour of allotting Iceland’s natural resources to “the Nation”. Many members of the political elite are interested in privatising these natural resources instead.[21]

The decision has therefore been called “an extremely dangerous precedent in the history of the Icelandic judiciary.” [22] Indeed, it was “the first time ever in a western society that a general election is declared to be invalid without any formal demonstration that the outcome was somehow incorrect.”[23] Although the Althingi has in response to this ruling decided to appoint the 25 elected assembly members to the Constitutional Assembly, it has demonstrated that the decisions taken by the Assembly were not independent of political goodwill.

Another important question in this regard is to what degree the Constitutional Assembly has been an autonomous force in the initiation of participatory processes. Thorvaldur Gylfason, the winner of the Assembly elections, mentioned immediately after the elections that since the constitutional draft might recommend to reduce the number of MP’s, the parliament was unfit to review the draft and should send it on immediately to a national referendum.[24] A note was submitted with the final draft on July 29, 2011, which declared that “all delegates agree that the population should be given a chance to vote on the new constitution before the Althingi’s final vote on it.”[25] This seems to reflect a wish of the Assembly to escape parliamentary control. The change in form may have contributed to this goal: the Assembly has been able to decide on its own work methods, whereas quite stringent regulations had been made for the original body in this regard.[26] The idea to “crowdsource” the public’s opinion seems to have originated with the Assembly itself.

It seems that this wish for autonomy fits well within the assembly’s mandate, and the degree to which it manages to do so will therefore partly reflect its democratic legitimacy.[27]

Legitimacy Issues

The small amount of votes backing the majority of the Assembly members (15 of which did not manage to gather even a thousand votes) has been considered a sign of the weak authority of the Assembly.[28] So far, no reliable data have been published to indicate the level of online engagement. However, the fact that just over 4,000 people have “liked” the Assembly's Facebook page during the constitutional drafting seems to indicate that it was not very intensely used. It is therefore unclear whether the revision process has succeeded in truly engaging the Icelandic population.

This may have been less of a problem with the crowdsourcing element, where individual users could have an impact by generating a debate within the Constitutional Assembly itself. However, this also meant that the outcome of this debate was not controllable by users, or that the outcomes were necessarily representative. Moreover, many of the suggestions seem to be policy recommendations rather than constitutional rights.[29] This may be why at least one expert of comparative political institutions has complained that the constitution is too specific and therefore too inflexible for future generations. Thus, there appears to be a precarious balance between heeding public input too little and heeding it too much.

See Also

Icelandic National Assembly 2009

Icelandic National Forum 2010

References

1. ↑ http://edition.cnn.com/2009/WORLD/europe/04/25/iceland.elections/index.html
2. ↑ Act on a Constitutional Assembly no. 90/2010, Article 20 and Interim Provision
3. ↑ Alda Sigmundsdottir, Associated Press (12/6/2011)
4. ↑ Stjornlagarad.is. “A Bill Submitted to Althinghi”
5. ↑ Article 3 of the Constitutional Act
6. ↑ Helga Kristin Einarsdottir, “Iceland’s Ruling Coalition Splits Following Protests” http://www.bloomberg.com/apps/news?pid=newsarchive&sid=avntV39aM_7I&refer=europe [DEAD LINK]
7. ↑ Interview with Gudjon Mar Gudjonsson on OhMyGov.com [DEAD LINK]
8. ↑ Iceland Review_Online 30/01/2009
9. ↑ Stjornlagarad.is. “Elections for the Constitutional Assembly”
10. ↑ Iceland Review Online, “Poor Turnout in Constitutional Assembly Election.” 28/11/2010
11. ↑ Iceland Review Online, "Poorest Election Turnout in Iceland’s History." 29/11/2010
12. ↑ Icelandreview.com, “Iceland Constitutional Assembly Voting Invalid, 25/1/2011
13. ↑ IceNews.is. “Icelandic parliament passes constitutional bill change,” 24/3/2011
14. ↑ Berghildur Bernhardsdottir, the Public Relations manager of the Forum and the Council in AP, “Tech-savvy Iceland goes online for new constitution” 12/6/2011
15. ↑ Older versions of the draft.
16. ↑ AP, “Tech-savvy Iceland goes online for new constitution” 12/6/2011
17. ↑ Article 79 of the old constitution
18. ↑ Iceland Review (17/04/2009)
19. ↑ Reynir Axelsson 2011, Comments on the Decision of the Supreme Court, p. 9-10.
20. ↑ Wade and Sigurgeirsdottir 2011, Iceland’s Meltdown, p. 70.
21. ↑ Axelsson 2011, Comments on the Decision of the Supreme Court, p. 9-10.
22. ↑ Professor Olafur Hardarson, head of the Faculty of Social Sciences at the University of Iceland, quoted in an interview [DEAD LINK]
23. ↑ IcelandReview, “Iceland’s Election Results Announced” 1/12/2010
24. ↑ Official Assembly website
25. ↑ IcelandReview, “Constitutional Assembly to Hand in Suggestions in June”, 1/3/2011
26. ↑ The Act specified that the Assembly should address “public participation in the democratic process, including the timing and the organisation of a referendum, including a referendum on a legislative bill for a constitutional act.”Article 3, clause 6
27. ↑ IcelandReview, “Iceland’s Election Results Announced” 1/12/2010
28. ↑ http://stjornlagarad.is/erindi/
29. ↑ Professor Indridi H. Indridason’s blog
30. "Stjórnlagaráð" ["A Proposal for a new Constitution for the Republic of Iceland"]. stjornlagarad.is. 29 July 2011. Retrieved 29 August 2015.
31. Advertisement regarding the Referendum to be held on 20 October 2012 – Icelandic Ministry of Interior
32. Thorvaldur Gylfason, 'Iceland: How Could This Happen?', CESifo Working Paper no. 4605, Category 6: Fiscal Policy, Macroeconomics and Growth (January 2014); https://notendur.hi.is/gylfason/cesifo1_wp4605.pdf
33. Thorvaldur Gylfason, 'Democracy on Ice: A Post-mortem of the Icelandic Constitution', Open Democracy: Free Thinking for the World, 19 June 2013. http://www.opendemocracy.net/can-europe-make-it/thorvaldur-gylfason/democracy-on-ice-post-mortem-of-icelandic-constitution.

External Links

Constitutional Assembly website – English version

Social Media: Facebook page, Twitter account, Flickr page, Youtube page

"Blueberry Soup" Documentary on Icelandic Constitutional Reform

Center for Democratic Constitutional Design: KRIA Icelandic Constitution Archives

A useful blog about the process by Indridi H. Indridason, an Associate Professor of Political Science at the University of California-Riverside.

Landemore , Hélène (2/12/2013). Inclusive Constitution-Making: The Icelandic Experiment.

Axelsson, Reynir. Comments on the Decision of the Supreme Court to Invalidate the election to the Constitutional Assembly (2011). http://stjornarskrarfelagid.is/wp-content/uploads/2011/07/Article_by_Reynir_Axelsson.pdf (Accessed on 8/8/2011)

Robert H. Wade and Silla Sigurgeirsdottir. “Iceland’s meltdown: The rise and fall of international banking in the North Atlantic.” Real-world Economic Review, 56, 2011: 58–71. http://www.paecon.net/PAEReview/issue56/WadeSigurgeirsdottir56.pdf (Accessed on 8/8/2011)

Notes