Post by David Farrell (October 17, 2011)
Due to great interest from various organisations and individuals abroad, The Constitutional Society in Iceland has obtained and published an independent English translation of The Constitutional Bill delivered by The Constitutional Council 29 July 2011. This can be found here.
Irish Politics Forum 
I’ve been quite enthusiastic about this document since I first saw it several weeks ago (have already made some comments on it in the recent Seanad thread https://politicalreform.ie/2011/09/29/is-there-still-a-future-for-the-seanad/comment-page-1/#comment-6096 ).
The introduction of some direct democracy provisions immediately led to good first impressions on my part. It is proposed that voters, via a citizens’ petition within 3 months of a bill being signed, can trigger a referendum, which if successful strikes down the bill. It’s also proposed that voters can introduce legislation via this route (though there are some exclusions, e.g. for money bills, and am not entirely sure from the wording whether constitutional amendments are allowed via this method, one article argued they were possible, but the wording is a little unclear on that point).
This document does set a high bar for our own upcoming constitutional convention (supposedly to start in the new year). Thorvaldur Gylfason (an elected member of the constitutional council and Professor of Economics at the University of Iceland) recently had two short but interesting articles up on the VoxEU.org website. One article: http://voxeu.org/index.php?q=node/7090 gave a quick summary of the process involved with their constitutional convention (including their consultation with the Icelandic population via the internet and “crowd-sourcing”). Another article http://voxeu.org/index.php?q=node/7077 gave a list of some of the highlights of the final document.
There seemed to be an overwhelming demand to keep the somewhat Semi-Presidential flavour of the current Icelandic system. Iceland has a parliament (the Althingi)/prime-minister and also a president, who for the most part is ceremonial and supposed to be above politics (rather like our own). Candidates for their presidential election have to be nominated by a specified number of signatures. Their President, though, does have the significant power of being able to refuse to sign any bill and refer it to referendum, a power never used though until the Icesave bill. It’s proposed that this power remains with the President in the new constitution.
The President’s, up to now, mainly notional powers of public appointment are strengthened and more clearly defined. He’ll get a veto over judicial and DPP appointments, which only a 2/3 parliamentary super-majority can override. According to Glyfason: “nearly all candidates agreed that the way judges are appointed needs to be changed”.
And, according to Glyfason, “to put an end to ministerial appointments of incompetent people to high office”, an independent “civil service committee” is to be created to make recommendations for all other public appointments. The President gets to nominate the chair of this committee. The minister involved has to accept one of the committee’s recommendations. Only a 2/3 parliamentary super-majority can bypass this.
From proposed article 96: “Ministers shall make appointments to other posts as defined by law following recommendation by an independent committee. If a Minister does not appoint to such an office one of the persons regarded as most qualified, the appointment shall be subject to the approval of the Althing by a two-thirds majority vote. The President of Iceland shall appoint the chairman of the committee.”
As might be expected from such a constitutional process, a lot of work went into describing and redefining fundamental rights (see chapter II of the proposed constitution). There are new constitutional protections to safeguard Iceland’s natural resources and environment. Perhaps the highlight of this chapter is giving new freedom of information rights to citizens to (according to Glyfason) “help uproot a pervasive official culture of secrecy”.
“Information and documents in the possession of the government shall be available without evasion and the law shall ensure public access to all documents collected or procured by public entities.” (see article 15 for the full FoI provisions).
The constitution also proposes new protections for independent state or regulatory agencies. Any changes in their legislation or operation will require a 2/3 super-majority. Glyfason says this was in response to the summary abolition of the National Economic Institute in 2002; the rationale given by the government of the time was that the analysis being given by the banks themselves was more than sufficient.
Reforming public appointments (and putting at greater arms length this patronage) even in itself would help ameliorate executive dominance. But there are also a number of other measures to help strengthen parliament and boost executive-legislature separation.
The role of speaker is strengthened and his election would now require a 2/3 super-majority (so usually will no longer be a job just handed out by government).
One the prime-minister’s powers (useful to whip MPs into line) is taken away. He’ll no longer be able to summarily dissolve parliament and call elections. There’s the introduction of a constructive vote of no confidence mechanism (this means no confidence motions, like in Germany and some other countries, now have to have the name of an alternative Prime Minister attached, who becomes PM if the motion succeeds). This procedure makes dissolution harder for the Prime Minister (even a more straightforward dissolution now requires a majority via a parliamentary resolution).
And it’s now proposed that all MPs have alternates. If a MP becomes a minister or speaker he loses voting rights and his alternate takes his place. MPs can also table votes of no confidence in individual ministers. If successful these will cause the particular minister to resign (but not the government as a whole to fall).
Those are probably most of the highlights but don’t cover everything. There’s a lot of other interesting stuff in the document, e.g. proposed changes to some existing unfairnesses in the current electoral system where regional areas are more heavily represented, and the creation of a constitutional office of Ombudsman.
Seemingly, there’s still some significant resistance to the proposed changes, particularly from the up-to-recently two main Iceland political parties who are now in opposition. But the current plan seems to be to put this document to a referendum next year (some time before their presidential election).
Overall, IMO it’s a surprisingly satisfactory document, most of the right boxes being ticked in some way. It’ll be a very useful standard with which to compare our own eventual constitutional convention. The Icelandic convention had an extremely broad remit. I sincerely hope our process isn’t confined to a narrow terms of reference and doesn’t deal only with low-key issues like changing the presidential term and nomination process and just merely doing a bit of constitutional tinkering around the edges. I think we need something with at least the scale and scope of what went on in Iceland.
Iceland will join South Africa as the only other country to include sexual orientation in its constitution; except in Iceland LGBT people will in reality have equal rights as opposed to just on paper as is the case for most LGBT people in South Africa.
What a remarkable example from the people of Iceland in how they have faced up to their economic crisis, begun to hold those responsible for causing it to account and implemented the change needed to avoid it ever happening again. Then compare and contrast with Ireland … the only change we were capable of delivering was a change in the faces of the cronies now fattening themselves at the trough and Fianna Fáil were so fat they are probably glad of the rest.
It would seem for all the whinging Irish people do things mustn’t actually be nearly as bad as people say otherwise it’s hard to explain why so many people in Ireland have simply nothing to say about the future direction of the country and how it affects them, their children and grandchildren.
Where else would the banks get bailed out for billions from the taxpapyer for loans the banks say will never be repaid and then for the same banks to refuse to allow debt forgiveness for the very loans it said would never be repaid for which it then hounds the consumer for to the last cent, meaning in effect that the not only has the bank customer repaid the loan in full plus interest and penalities, that same person has paid the loan twice through their taxes!
Yet, there is total silence from the public on this point – you couldn’t make it up.
Another rather nice article on the Icelandic Constitutional Council only recently appeared on the OpenDemocracy website: http://www.opendemocracy.net/richard-bater/hope-from-below-composing-commons-in-iceland
It’s a very readable summary of the political background and the sequence of events that led to their convention, some of the hiccups it encountered along the way, and gives one or two interesting insights into its functioning.
Thorvaldur Gylfason (elected member of the constitutional council and professor of economics) has recently produced what’s probably the most definitive account yet of the proposed constitution and the events and processes that led to it (see http://www.econstor.eu/bitstream/10419/57288/1/689491360.pdf ). The paper runs to over 40 pages but is nonetheless very readable. Gylfason also recently gave a 45 minute talk on much the same material (you can find a link to a recording here: http://www.nordichorizons.org/2012/04/great-meeting-on-march-29thin-parliament-with-professor-thorvaldur-gylfason-who-won-the-highest-number-of-votes-in-elections.html ).
Its gives the rationale behind some of the new main constitutional provisions. The paper doesn’t paint a pretty picture of Icelandic politics (he’s quite dubious of the independence of judiciary etc., but perhaps given the tussle their constitutional convention had with the courts that’s not surprising). What’s interesting is the significant clout held by the owners of the fishing boats and permits. Some individuals have become extremely rich on the back of such licences. And there are evidently question marks over the procedures by these fishing licenses were handed out. Some of these figures seemingly exert very significant political influence and control of the media. He quotes a former editor of an Icelandic newspaper as saying it meant political suicide to go up against the fishing quota owners in rural areas. Such issues with regards to fishing quotas seem to be behind the big emphasis on protection of natural resources in the proposed constitution (and the evident big public demand for that as part of the constitutional process).
Another interesting snippet of information in the paper was that the Icelandic president’s power to veto legislation (and put it to a referendum) was actually also used in 2004. Was familiar with its use with regards to the Icesave bill (which I thought was the first ever use of that power) but wasn’t aware of this earlier use. According to Gylfason this was used when “the parliament passed a law that would have broken up and effectively closed down the second largest television station and the second largest newspaper, concentrating control of the media in the hands of the government parties.” However, the government then withdrew the legislation concerned so it never went to a referendum.
A lot of the issues in the paper sound like things that have happened not a million miles (perhaps more magnified there though; I suppose if we suffer from small country syndrome then the tiny Icelandic population makes even Ireland look like a big country).
There is significant resistance to the new proposed constitution. The intent was to hold a referendum on this at the same time as presidential elections in June. However, Icelandic law requires two months notice in parliament before such a referendum. Late night last minute filibustering in the Althing recently meant that this 2 month window was missed. Obviously the powerful boat owners aren’t happy with it. The proposed constitution, however, also makes some significant changes to the voting system. It seeks to correct big distortions between representation between rural and urban areas (with voters in Reykjavik having far less MPs representing them). Plus, what I hadn’t realized, was that there’s a change in wording that would now give voters the right to opt for individual candidates rather than just overall party slates. Obviously many MPs may not be too keen on this constitutional bill either. Nonetheless, it’s still far from being dead in the water. But, it seems that oppostion from powerful vested interests means it passage is far from being a certainty.
A referendum on the proposed Icelandic constitution is to be held on October 20th. As the current constitution requires two identical votes separated by a general election to be amended or replaced, the vote is, strictly speaking, advisory. The following questions will be asked (see http://www.kosning.is/thjodaratkvaedagreidslur2012/english/):
“1. Do you wish the Constitution Council’s proposals to form the basis of a new draft Constitution?
2. In the new Constitution, do you want natural resources that are not privately owned to be declared national property?
3. Would you like to see provisions in the new Constitution on an established (national) church in Iceland?
4. 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?
5. Would you like to see a provision in the new Constitution giving equal weight to votes cast in all parts of the country?
6. 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?”
Was quite disheartening to read lately that the Icelandic “pots and pans” constitutional experiment is effectively dead. I expected that the constitutional bill would at least be voted through parliament this term (new elections for the Althing are to be held soon). Actual constitutional change would then still demand a further identical vote in the new parliament (which might have been a far taller order). However, not even this parliament has ratified it. All of which again emphasizes how difficult reform is for established systems (what happens I guess when the incumbents of a system are the gatekeepers of that very same system). Anyway, as I’ve frequently quoted articles by Thorvaldur Gylfason already, may as well link to his take on recent events: http://truth-out.org/news/item/15462-putsch-icelands-crowd-sourced-constitution-killed-by-parliament