The Constitutional Experiment in Iceland: The Future that Failed?

With the return of the two political parties that hold the responsibility for the Icelandic economic collapse of 2009 back into political power, the bottom-up constitutional experiment that started in the crisis’ wake faces an uphill struggle. The general elections of yesterday, 27 April, have secured 51 percent of the Icelandic votes for the centre-right Independence Party and the Progressive Party, which will most likely form a coalition. In particular the first, but also the second party, have shown a strong aversion to the citizen-driven constitution-making process, also because they represent vested interests, not least those related to the fishery industry. But where the Independence Party has rejected the whole process of constitution-drafting, the Progressive Party appears not adverse to the change of at least some parts of the 1944 Constitution.

As I related in my post of 21 October, 2012, a national, advisory referendum confirmed a widespread support for the draft constitution, and in particular also for specific questions, such as the role of participatory democratic instruments or the declaration of natural resources as national property. While the turnout for the referendum was relatively high – almost 50 percent – the sceptical centre-right forces have argued that only a minority of 30 percent of the total Icelandic electorate expressed itself in favour of the new constitution. Their approach in the Icelandic Parliament (Althing) seems to have been largely one of ‘gerrymandering’ in order to hold up constitutional renewal. The outgoing Parliament and now former government headed by the socialist party have not been able to adopt the citizens’ constitution nor any of its parts. The only tangible step undertaken by the Parliament was the adoption of a new, additional amendment rule on 28 March, just before the end of its mandate. The new rule states that the constitutional change can be adopted by a favourable vote of two-thirds of the Parliament, followed by a popular referendum in which at least 40 percent needs to express itself in favour. This new way of changing the Icelandic Constitution is clearly constituting a high threshold, while the old rule (art. 79 of the 1944 Constitution) can also be seen as relatively difficult to initiate as it requires two consecutive parliamentary majorities in favour of change. One of the main reasons behind the new amendment rule is to ensure that a new document would be adopted with a clear majority consensus, in order to counter the sceptics’ critique that constitutional change is only desired by a minority.

The elections have not only entailed a clear return to political power of the centre-right parties, but also seen two newcomers, the Bright Future party and the Pirate Party, both of which are explicitly in favour of a new constitution. The latter has for instance called the citizens’ constitution a ‘shining example of direct democracy in action’. Their electoral weight – 8.4 and 5.1 percent of the votes respectively – makes them a visible force, but not powerful enough to strongly define the future of the citizens’ draft.

(with thanks to Baldvin Thor Bergsson)

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Italy: in a democratic and constitutional crisis?

Italian democracy is in a prolonged state of exception. The elections of February this year have failed to decisively break with a period of technocratic politics and paralysis of party-based representative democracy that initiated a year and a half ago with the fall of Berlusconi and the subsequent establishment of the Monti government. Only now, at the end of April 2013, a new government has been formed, but it is not the outcome of electoral victory but a President-driven attempt to break out of enduring political stalemate. This blockage is the result of two months of failed attempts to form a government following the normal practices of formation as indicated by the Constitution. Rather than a formative initiative by the winning political party or coalition, the formation of an interim government of “larghe intese” (a grand coalition) is presided over and conditioned by the recently re-elected President Napolitano. The grand coalition combines forces from both the centre-right and centre-left, political forces that have been radically opposed and continuously engaged in reciprocal contestation in the last twenty years. In the process, the Italian citizens and their demands for profound change and enhanced bottom-up access to politics are largely marginalized.

The dismissal of the Berlusconi government at the end of 2011 and its replacement by a technocratic government, headed by Mario Monti and appointed by the President Giorgio Napolitano, heralded in what now proves to be a prolonged state of suspension of normal democratic interaction. In many ways, the nomination of the Monti government, not elected by popular vote, indicated a suspension of democracy, an insight that was perhaps most dramatically articulated in the legal referral by a Sardinian lawyer in which she claimed the installment of the Monti government violated the first article of the Italian Constitution, which refers to “popular sovereignty”. The Monti government – self-defined as a “governo di impegno nazionale” [a government of national effort] – formed a transition government that was supposed to only temporarily replace representative, party-based politics in order to address urgent matters related to the economic crisis in Italy. The transitory government was supported by a parliamentary majority, including both the centre-left (Pier Luigi Bersani’s Democratic Party, PD) and the centre-right (Silvio Berlusconi’s People of Freedom, PDL). This majority was however continuously threatened by a withdrawal of support by the centre-right and early elections, something which indeed occurred in December 2012.

The February 2013 elections was among other things supposed to mean a return to party and representative politics, thus ending the suspension of democracy and political representation. This was so not least because it meant voters would be able to express themselves on the draconic measures of the austerity policy of the Monti government (including “spending reviews”). In the 2013 elections, Monti himself actually ‘stepped down’ into normal politics by forming a political party, ambiguoously called “Citizens’ Choice” [Scelta Civica], a “list of civil society”, whose supporters included a business man such as Luca Cordero di Montezemolo, CEO of Ferrari.

The outcome of the 24-25 February elections was however extremely problematic, in that none of the two larger political parties – PD and PDL – won a clear majority, leading to political stalemate. The elections also saw the overwhelming success of a new political movement, by many seen as an ‘anti-systemic’ and ‘anti-political’ movement, the ex-comedian Beppe Grillo’s Five Star Movement (M5S). Some numbers: the centre-left alliance headed by the PD obtained 29,54% in the ‘Camera’ (Chamber of deputies) and 31, 6% in the ‘Senato’ (Senate), the centre-right alliance of the PDL 29,13% and 30,66%, and the Five Star Movement 25,55% and 23,79%. The Monti list disappointed very much by obtaining only around 10%. Due to the ambivalent Italian electoral law, the centre-left alliance obtained a majority of seats in the Chamber of deputies (345), but the Senate clearly showed the picture of a ‘hung parliament’. The great winner is Grillo, who is now heading the largest singular political party (or movement?) in Italy.

Since the end February, Bersani as the leader of the centre-left alliance has been attempting to form a government, negotiating both with the Five Star Movement and the centre-right alliance of Berlusconi. The immediate outcome showed an unwillingness of collaboration from the side of two of the three major political forces (the PD and the M5S). For the PD, its grass-roots support (“la base”) clearly indicates a wholesale rejection of any collaboration with Berlusconi, while the M5S in various ways isolated itself. Bersani’s attempts to form a coalition government therefore failed due to the unwillingess to cooperate from the side of Grillo, while Bersani himself showed unwilling to form a Grand Coalition or “governo di larghe intese” with Berlusconi. Bersani’s task was further complicated by the fact that the mandate of the President of the Republic – Giorgio Napolitano – was set to end on 15 May.

After the failed attempts at formation, Bersani returned to President Napolitano, who set up an ad-hoc commission of 10 “wise men” (“saggi”) who were supposed to prepare the ground for necessary institutional and constitutional reforms (most urgently, the electoral law). The proposals of the group were then supposed to help find a broad political platform. Some observers have argued that the move by the President is unconstitutional, not least because the expert commission means a suspension of party politics and therewith of democracy. This would violate article 92 comma 2 of the Italian Constitution in that it forms a new, ad hoc instrument that is not mentioned in the constitutional procedure for forming a new government. What is more, Grillo’s Five Star Movement was sidelined in the expert commission.

A new phase started with the elections of a new President of the Republic, starting on Thursday 19 April. The political deadlock was once again clear in the presidential elections. Only in a sixth round, held on Saturday 20 April, did the parliament manage to vote with an absolute majority for a “new” president, the leaving President Napolitano. On various proposals for presidential candidates of Bersani, including the former head of the European Commission Romano Prodi, no broad political majority could be found (the Constitution prescribes a two-thirds majority in Parliament in the first three voting rounds, an absolute majority thereafter). After the presidential elections, Bersani himself stepped down as a leader of the PD. The election of the new President again indicates a constitutionally ambivalent move. That is, it is for the first time in Italy’s post-war history that a President has extended his mandate to 14 years in total, which according to the Constitution is seven years (art. 85). A constitutional convention since 1948 has been that a President can only be elected once.

Napolitano, the new-old President, has currently appointed the second man of the PD, Enrico Letta, as formator of a new government. Letta has formed a grand coalition with the centre-right PDL on Saturday 27 April, which would need to last for two years and to carry out, as requested explicitly by Napolitano, the proposals made by the commission of wise men. These proposals contain fairly far-reaching institutional and constitutional reforms. The government includes Angelino Alfano, right-hand of Berlusconi, Emma Bonino, an ex European Commissioner, and Fabrizio Saccomanni, president of the Italian Central Bank. What seems clear however is that the new government will (again) ignore a large part of popular sentiment that grows increasingly hostile to political elites, corruption, and technocratic austerity measures. First, because the grass-roots movement of Beppe Grillo is largely kept marginalized and in opposition (and with it the civic anger it stands for and that was expressed in its electoral success), second, since the reforms are largely initiated by the President, who is obtaining an ever larger weight in the Italian system, while party-political initiative seems reduced to the implementation of the programme. Political representation seems reduced in the process. Third, as seen in the bottom-up movements of Occupy-PD, within the centre-left a significant part of the civic base feels “tradito” or betrayed. This makes broad, civil society sustenance for the significant institutional and constitutional reforms that are on the table shallow and unstable. In a structural sense, it counterposes a politics closed in on itself to a disillusioned and increasingly impatient civil society.

A Hungarian translation has appeared in: http://www.szuveren.hu/politika/alkotmanyos-valsag-olaszorszagban.

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Citizens’ constitution difficult to ignore with Icelandic referendum results

A new draft constitution – written by a citizen-based Constitutional Council – was consigned to the Icelandic Parliament in July 2011, and has ever since been awaiting further action (see my post of 16 January 2012). The Constitutional Council responsible for the draft had already suggested the need for a referendum on the draft, and in October 2011, the prime-minister equally favoured a public consultation on the draft constitution. The initial idea was to hold the referendum together with the Presidential elections scheduled for June 2012, but parliament was not able to organize this in time. Ultimately, at the end of August 2012, it was decided to hold a (non-binding or advisory) referendum on 20 October. The referendum asked 6 questions to the Icelandic citizenry, the first of which asks generally whether citizens want a process of change on the basis of the draft, while the further 5 questions ask for specific views on, inter alia, natural resources, the role of the church, and electoral matters:

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 authorizing the election of particular individuals to the Alþingi 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 be put to a referendum?

Criticism with regard to the referendum process has pointed among other things to the status of the citizens’ constitution as an unfinished draft or statement of intent as well as to the allegedly ambiguous legitimacy of the Council. Particular from the political right, skepticism has accompanied the grass-roots constitution-making process from the start, and it is particular the conservative Independence Party that is far from eager to adopt a new constitution on the basis of the citizens’ draft (also because of its thrust towards public ownership of natural resources, among others).

The referendum of 20 October has been an undeniable success, in that a turn-out of almost 50% of the Icelandic electorate was achieved (as of late evening of Sunday 21 October) (in the elections for the Constitutional Council in November 2010, the turn-out was only 37%) and around two-thirds of those who voted has indicated a strong will for constitutional change, in particular regarding general change (question 1), the public ownership of natural resources (question 2), the composition of Althingi (the parliament) (question 4), and direct democracy (question 6).

An important boost to the citizens’ draft was given very recently by means of a very positive expert report on the constitutional text. This is significant, because skepticism, including that of legal scholars, and also on an international level, is often pointing to the lack of expertise, and constitutional and legal knowledge of ordinary citizens, and hence tends to dismiss a non-expert-based constitution-making process out of hand. The three international constitutional scholars evaluated the constitutional drafting as ‘tremendously innovative and participatory’, and the final result ‘as one of the most inclusive in history and well-above the mean of contemporary constitutions’. The experts’ short report was published on 14 October, a week before the referendum. The scholars further argue that ‘[e]lements of direct democracy appear throughout the proposed Constitution’ and ‘it would also be at the cutting edge of ensuring public participation in ongoing governance’.

As I wrote some months ago, the new draft is definitely an improvement in terms of a more inclusive and civic-participatory dimension, although an above-average ‘radical-democratic dimension’ seems to me not evident. In some contrast to my conclusions, the three scholars are more optimistic with regard to an innovative participatory potential of the draft, and base their views on data from a large-scale, global comparison of constitutions (including ‘old’ constitutions such as that of the US). While in such a general sense, the judgment of the innovativenes of the Icelandic draft seems accurate, at the same time it seems also true that in the light of recent innovative and civic/bottom-up driven constitution-making processes in other parts of the world, such as Latin America and Africa, the Icelandic results seem less spectacular. In the cases of for instance Venezuela, Bolivia, and Ecuador, citizens can trigger the convocation of constituent assemblies that can alter the constitution in fundamental ways. In that sense, the three scholars might have pursued a slightly more detailed analysis. They argue for instance that article 113 of the draft involves the public in constitutional amendment, suggesting an important dimension of direct democracy. In reality, the article only mentions a referendum on constitutional amendments, which is not uncommon, also for instance in some of the relatively new constitutions of the post-communist Central and Eastern European states. My point is that one might have expected more radical-democratic proposals from a unique process of grassroots constitution-making, triggered predominantly against entrenched elite politics. In the current draft, no constitutional citizens’ assemblies or civic initiative in constitutional amendment is mentioned, features that some other recent constitutions do display, as mentioned, and that point to possibilities for a more direct and robust influence of the citizenry on the constitutional frame.

But what seems clear is that the referendum results make a dismissal or avoidance of the citizens’ constitution by official politics by and large impossible, even if the referendum is non-binding. It is highly likely that parliament will soon start a formal process of constitution-making on the draft’s basis, and will perhaps even adopt a new constitution for Iceland before the next general elections in spring 2013.

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Romanian Constitutionalism: Form without Content?

Romanian constitutional democracy is once again experiencing a period of great turmoil. In the early 2000s, Romanian democracy seemed to get closer to the idea of a Rechtsstaat and the rule of law, and what in general could be called a form of ‘legal constitutionalism’ or ‘new constitutionalism’, after a troublesome phase of a limited role of the constitution in Romanian democracy, if not in the form of ‘constitutional nationalism’[1]. However, by 2012 it has become clear that the Romanian constitution mostly takes the form of a façade constitution, largely (ab-)used by political forces for distinct power games. In this, the old Romanian theory on ‘forms without content’ (formele fără fond) that was used at the end of the 19th century to criticize superficial experiences with modernization in the form of Westernization seems to be once again a realistic description of Romanian – in this case constitutional – reality. The theory indicates a large gap between ‘legal Romania’ and ‘real Romania’, and thus a distance between imported or transplanted constitutional/legal institutions and wider society and its forms of interaction.[2] Not only has a weak culture of constitutionalism emerged, but what seems worse is that a constitutional language is distant from societal interaction, and mostly abused for narrow political purposes. Constitutional values seem to fail to inform wider society in terms of a civic and political orientation to constitutional values and public debate on the foundations of Romanian democracy.

1. Constitution-making in post-1989 Romania

Part of the Romanian constitutional predicament might be related to the constitution-making process since 1989. The Romanian regime change in 1989 had a character decisively different from the ‘negotiated revolutions’ in Hungary and Poland. Whereas in the latter countries constitutionalization and reforms had been introduced since at least the 1980s, and, even if with difficulty, some form of dialogue had emerged between the communist party and oppositional forces (the most conspicuous case is obviously the role of Solidarnosc), in Romania virtually all forms of political or economic reformism had been suppressed by the Ceauşescu-regime, while only few oppositional forces had managed to organize in the decade that preceded the collapse of the communist regime (the most famous case is that of Paul Goma). The ostensibly profound rupture – in terms of a violent revolutionary change – with the preceding communist regime (which culminated in the execution of the Ceauşescus on 25 December 1989), consisted in reality in significant continuity, not only in terms of the continuity of holders of political power (i.e., a political coalition dominated by the ex-communist nomenklatura), but also in terms of political outlook and practice, and the (ethno-nationalist) perception of the political community.

Three moments of constitutional politics can be identified in the post-communist history of Romania, the first moment in December 1989 and the beginning of 1990 with the effective regime change, the second moment with the debate on and adoption of the new constitution in 1991, and the third with the revision of the constitution in 2003.[3] The political transformation started in December 1989 with popular uprisings in, among others, the cities of Timişoara and Bucharest. When the Ceauşescu-regime fell, the moment of vacuum in political power was quickly seized by the self-declared transitional political council of the National Salvation Front (NSF ). The self-declared goal of the NSF was ‘to establish democracy, and the liberty and dignity of the Romanian people’.[4] The Front absorbed the political sovereignty of the preceding regime, and instituted the so-called Provisional Council of National Unity (PCNU), which some observers have understood as a Romanian version of Roundtable Talks. The first constitutional moment was dominated by the post-communist NSF and their particular vision of an ‘original democracy’,[5] in the elaboration of the political, procedural framework that was to inform the drafting and adoption of the new constitution. The post-communist NSF defended above all a vision of the national unitary state, which was informed by a ‘discourse of limited change’,[6] and built on traditions of Romanian particularism as well as the national communism of the second half of the communist period.[7]

The second moment of constitutional politics began with the election of the constituent assembly in May 1990. The constituent assembly took the form of a kind of proto-parliament, one of whose main tasks it was to draft a new constitution. The constituent assembly was dominated by members of the NSF, i.e., of the 515 members of the assembly, 355 were part of the NSF. The Constitutional Commission that was responsible for the writing up of the draft text consisted of 28 members, of which 13 belonged to the NSF, while Antonie Iorgovan, the head of the drafting team, was formally independent but had a communist past and was considered close to the NSF. In general the constitutional debate can be seen as having involved the affirmation of the majority’s constitutional view, rather than a genuine pluralist dialogue.[8]

In the constitutional debate held between February and December 1991, the post-communist majority showed a clear predilection towards what I have called an ‘ethic of identity’ or what Lungu has identified as a form of ‘constitutional nationalism’.[9] One of many instances of ‘constitutional nationalism’ in the constitutional debate is a long intervention by Gheorghe Dumitraşcu during a debate on the principles of the constitution, in particular those of article 1. He remarked amongst others:

‘[t]he tendency to unite all men of ([the same, pb] descent, language, and faith is, forgive me the formula, a divine motive, expressed by national instinct. Without running the risk of speaking about a national consciousness, a thing is clear, our entire history has been the history of the struggle for independence and for national unity’… ‘[t]he Romanian state is the national state because of the fact that the Romanians constitute the autochthonous, the fact that they have lived permanently here, the fact that they are of a dominant number, while the others have come [from elsewhere, pb]’.[10]

The symbolical dimension of the constitution received explicit and ample attention in the debate, in particular with regard to its role as vehicle of Romanian traditions and culture, and coincided with a gradualist if not conservative approach to democratic reforms of the dominant political party of the social-democrats. In this sense, the identitarian dimension took the overhand over the functional constitutional dimension of explicating rights and institutional prerogatives and limitations (which were an explicit part of the demands of the democratic opposition). While the constitution did embody the demands of the 1989 revolution, these demands were particularly interpreted as the right to national self-determination of the Romanian majority. The final constitutional text was adopted by the parliament on 21 November 1991, and popularly approved of by means of a national referendum on 8 December of the same year.

The third moment of constitutional politics emerged mostly because of a widely perceived dual necessity. On the one hand, the adoption of the acquis communautaire and imminent membership of the European Union called for modifications of the 1991 constitution (in particular in terms of the relation between national, European, and international law, as well as regarding the status of minorities).[11] On the other hand, the 1991 constitution was deemed to contain a number of ambiguities that needed to be resolved in order to clarify relations between political institutions, strengthen the rule of law, and accelerate the legislative and judicial process, as well as strengthen the institutional and constitutional guarantees of fundamental liberties and rights.[12] To this end, a constitutional commission with the task to draft amendments for a revised constitution was established in 2002 on the basis of a political agreement between the parties in parliament.

The constitutional revision entailed in a number of important respects a shift away from the relatively nationalist and centralistic outlook of the 1991 Constitution, towards a more pronounced emphasis on the ethic of rights, in particular visible in a clear reference to the separation of powers (art. 1), the enhanced status of the Constitutional Court as final arbiter, the emphasis on the equality of citizens, access of citizens to public institutions, the right to a fair legal process, as well as the right to the free access to culture and the right of minorities to participate in local government.[13] In the debate, there was a relatively clear-cut consensus among the participants for the need for amendment, and thus the importance of constitutional politics as a means of updating and revising the constitution. A now changed constitutionalist view among the predominant social-democratic party (PSD; successor of the NSF) was neatly expressed by Adrian Năstase,[14] the prime minister, who argued:

‘The Romanian Constitution, approved by national referendum on 8 December 1991, was the expression of the victory of the Romanian revolution of 1989… No constitution is eternal and therefore unchangeable… The revision of the constitution and of legislation in general has become a practice of nearly all democratic states today, corresponding to the exigencies of the Rechtsstaat. The supremacy of the constitutional norms in the frame of the legal system of a state imposes the necessity that this corresponds with historical-social evolution, in themselves consolidating the capacity to innovate and modernize a society’.

2. The Role of the Constitutional Court in the Romanian Transition

An important role in the constitutionalization of most new democracies is that of the constitutional court, even if hardly any tradition of judicial review exists in the Central and Eastern European region. Said Arjomand has described the role of constitutional courts in transitions to democracy as that of crucial protagonists in democratization.[15] Many other observers have similarly argued that in the absence of strong democratic players such as political parties and civil society actors the constitutional court provides the most effective basis for democracy in statu nascendi. For a good part of the post-1989 years, the Romanian Constitutional Court seemed not to fit such a description. Already early on in the transition, the idea of a Constitutional Court formed the most important conflict in the debate on the new constitution. As argued by Ion Muraru, president of the Romanian Constitutional Court in the 1990s, ‘[i]n our country, in the debates in the Constituent Assembly, it was hard to convince even the lawyers that we needed a distinct authority of this sort’.[16] Throughout the 1990s, the Romanian Constitutional Court proved to play a rather secondary role in the Romanian democratization process. Some observers have indeed argued that it held a marginal and largely irrelevant position during the 1990s, with only one decision of public impact, related to the legitimization of a third consecutive presidential mandate of Ion Iliescu.

What is more, until the amendment of 2003, the Romanian court was the only court in the region (with the Polish Constitutional Tribunal until 1997) that was not considered the final arbiter in constitutional matters, as art. 145 of the 1991 constitution allowed a 2/3 majority in parliament to override its rulings.  In addition, as argued by Sadurski, the Romanian court was less strong than some of its counterparts in the region, because prior to the 2003 revision it could not arbiter conflict between public institutions. Up until 2003, the Romanian case involved a form of legislative supremacy. The parliament formally held a final say in constitutional matters.[17] In general, throughout the 1990s there seems to have been little parliamentary acceptance of Constitutional Court rulings as mandatory, not least due to the Court’s apparent response to political demand. The Romanian scholar Renate Weber argues that ‘silence and ignorance’ characterized the first decade of the court’s operation.[18] As another observer puts it more staunchly: ‘[f]or a very long time after the adoption of the 1991 Constitution, neither public debates nor political disputes were framed in the language and logic of constitutionality or constitutionalism. The local “Guardian of the Constitution” was relegated to a marginal, almost irrelevant position’.[19]

Since the EU induced constitutional revision of 2003, the powers of the constitutional court as established in the 1991 Constitution (article 144) have been largely brought in line with a wider pattern in Central and Eastern Europe,[20] and include both abstract a priori and concrete a posteriori review (144a). The main novelties introduced by the 2003 revision include the position of Ombudsman, the extension of the court’s prerogatives regarding the constitutionality of international treaties and intermediation in inter-institutional conflicts, and rendering of the court’s decision as erga omnes. The revision has effectively abolished the parliamentary right to override decisions of unconstitutionality, bringing the Romanian system in line with “new constitutionalism”.

The 2003 revision has contributed to a peculiar and drastic change in status, visibility and activity of the court since the early 2000s. The court has made various decisions with significant political clout and conflictive potential, such as its decision in 2008 on a law on disclosure of personal files of the secret police. In particular in the second half of the 2000s, the court has attempted to mediate in cases of high-level political conflict (predominantly between the President and the government) and constitutional crisis. In this, the Romanian constitutional order seemed to move towards a form of new constitutionalism based on a form of judicial supremacy, in particular with the extension of the prerogatives of the Constitutional Court in 2003 and the constitutional amendment that promoted the Court’s status to that of final arbiter. The increased status of the Court also meant increased visibility. By the mid-2000s, the Court became increasingly the object of referrals,  while also ‘many public and political debates have suddenly started to be carried out within constitutional parameters’.[21]

3. Constitutional crises

The second decade of post-1989 constitutionalization saw an increase in importance of the rule of law and rights as well as of the roles of the judiciary and the constitutional court. These seem clear indications of a move towards a judicial, legal or new form of constitutionalism, which is grounded in the idea of the constitution as a higher law and the constitutional court as its guardian. Paradoxically though, in the same period, constitutional conflicts became more frequent, and at least two moments of evident and deep constitutional crisis can be indicated. The first moment of crisis emerged in 2007, when a direct confrontation between the president Traian Băsescu and the incumbent Liberal government led to the start of an impeachment procedure of the president, which in constitutional terms needs to be confirmed by a referendum. However, the popular referendum, held in the summer of 2007, reconfirmed popular support for Băsescu, who stayed on as president. One of the salient constitutional dimensions to this crisis (apart from the head-on confrontation between political institutions) relates to the fact that according to the Romanian Constitution, impeachment can only follow from the identification of ‘grave acts infringing upon Constitutional provisions’ by the president (Art. 95(1)). In an advisory opinion, the Constitutional Court ruled that relevant acts by the president could not be qualified as ‘grave’, and also that the final responsibility lied with the parliament (Advisory Decision 1, April 2007).[22] Much of the crisis in 2007 had to do with ‘presidential activism’ and inter-party struggles, in relation to attempts to expand political power by various political actors.

The constitutional crisis of 2007 was repeated recently, during the summer of 2012, when a renewed attempt to impeach president Băsescu was undertaken by the government of Victor Ponta, a social-democratic government.[23] The apparent trigger to the crisis was a conflict over whom should represent Romania at the meeting of EU leaders in Brussels on 27 June. But the Ponta government did not merely return to the impeachment procedure claiming the unconstitutionality of Basescu’s actions. The actions of Ponta and his socialist party went themselves into a clearly unconstitutional direction[24] by dismissing the speakers of both chambers of parliament (who were replaced by allies), as well as the Ombudsman, by restricting the powers of the Constitutional Court and threatening its judges with impeachment, and by issuing a decree (as well as a draft law) on the Law on Referendum in order to drastically increase the probability of a successful impeachment referendum. A further step taken was putting the control over the publication of the official gazette in the government’s hands, thereby having effective sway over the public promulgation of laws (and therefore their implementation).[25]

The dramatic nature of the constitutional assault by the Ponta government has become clear from the reaction of the constitutional court, which has sent two very unusual complaint letters – in July and August 2012 – to the Council of Europe’s Venice Commission as well as to European officials to ask for help against “virulent attacks” on its independence by the government. The Constitutional Court has clearly also showed some strength in resisting the attacks, by, first of all, issuing a negative decision on the amendment of the law on public referenda (against the government’s intent to implement a simple majority), and second, in its decision on the invalidity of the referendum held on the impeachment of Băsescu. This referendum, held on 29 July, failed to reach the quorum of 50% of the electorate, as upheld by the constitutional court in its earlier ruling. Therefore, the constitutional court ruled on 21 August that the referendum was void, which meant that Băsescu was re-installed. Ponta has declared to accept to the court’s decision.

4. Democratic deficit

The relative political ease that resulted from the negative outcome of the referendum and the re-installment of the Băsescu as president is very likely to be only of a short-term nature. The intrinsic power struggle in the Romanian democratic system, in particular related to the cohabitation between president and PM, and in distinct ways facilitated by the Constitution’s vagueness over presidential prerogatives,[26] is unlikely to go away. The long-standing predominance of the Social-Democratic party has definitely waned, and continuous intra- and inter-party struggles have shown to be the result.[27] But other, structural factors can be identified. Romanian democratization can hardly be identified as a judiciary-driven process, in which an (over-)active Constitutional Court plays an outspoken political role in identifying fundamental democratic values (a tendency that has been indicated – for good or for bad – in some of the other countries in the region in the last two decades).[28] Rather, in the case of Romania, democratic politics seems largely reduced to a narrowly understood political game, captured by clientelistic political factions that are prone to use constitutionalist language for other purposes, while neither the Constitutional Court as a third party, nor the wider public or civil society have any real possibility of intervening into politics in order to endorse “real” democratic politics, in the sense of pursuing issues related to justice, equality, and freedom.

This should not be taken to mean that other social and political actors are absent from the scene. It is worth noting that on various moments civil society actors have tried to publicly endorse different views of constitutional democracy and made their own constitutional claims. One such moment might be identified with the initiative of a Constitutional Forum in 2002, which entailed a constitutional dialogue between parliament and representatives of civil society.[29] Another – more expert-driven – attempt was the set up of the Commission for a New Constitution and the organization of public debate on the constitution at the initiative of the Horia Rusu Foundation in 2010.[30] In the current crisis, a group of Romanian civil society organizations – including the Group for Social Dialogue, the Expert Forum ,and the Romanian Helsinki Committee – has made various public statements on the perceived threat to the rule of law.[31] But the political impact of most of these initiatives has so far remained modest.

One of the more challenging problems of Romanian constitutional democracy seems then the absence of a widely diffused culture of constitutionalism. Reasons for this seem to include two factors: the absence of an authoritative and balanced Constitutional Court and the ineffectiveness of pro-democratic movements to get their constitutional claims heard and institutionalized. Politics is absorbed by a self-indulgent political class, and little space is left for a truly public, democratic politics.


[1] I. Lungu (2002), ‘Romanian Constitutional Nationalism’, in: Polish Sociological Review, 4(140), pp. 397-412.

[2] See M. Guțan (2012), ‘Historical Overview of the Romanian Constitutionalism’, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2089403.

[3] Cf. I. Huiu (2003), ‘Revizuirea Constitutiei. Radiografie Parlamentara’, in: Sfera Politicii, 104, pp. 5-8.

[4] Communication of 22 December 1989, in: C. Ionescu (1998), Dezvoltarea Constituțională a României. Acte şi Documente 1741-1991, Bucharest: Lumina Lex.: 834.

[5] Based on the idea of a national consensus, see V. Pasti (1997), The challenges to transition. Romania in transition, English translation by Fraga Cheva Cusin, Boulder: East European Monographs.

[6] P. Blokker (2004), ‘Modernity and its varieties. A historical sociological analysis of the Romanian modern experience’, unpublished PhD-thesis, Florence: European University Institute.

[7] The Romanian constitutional scholar Elena-Simina Tănăşescu has described Romanian constitutionalism as hovering between universal constitutionalism and national constitutionalism. The 1990s were a period in which the latter predominated, E.S. Tănăşescu (2011), ‘Post-communist constitutionalism in Romania’, available at:  http://www.fljs.org.

[8] Lungu 2002; C. Preda (2002), ‘La Nation dans la Constitution’, in: Nation and National Ideology. Past, Present, and Prospects, Bucharest: New Europe College, pp. 390-445: 399-400; for the full records of the debate, see Regia Autonomă (1998), Geneza Constituţiei României. Lucrările Adunării Constituante, Bucharest: Regia Autonomă Monitorul Oficial.

[9] Lungu 2002.

[10] Regia Autonomă 1998: 69.

[11] V. Duculescu and R. Adam (2006), ’Romania’, in: Alfred E. Kellermann et al. (eds.), The impact of EU accession on the legal orders of new EU member states and (pre-)candidate countries: hopes and fears, The Hague: TMC Asser, pp. 113-42.

[12] Cf. Duculescu & Adam 2006; Huiu 2003.

[13] I. Muraru and E.S. Tănăşescu (2005), Drept constituțional şi institutuții politice, ediția 12, vol. I, Bucharest: Editura All Beck.: 109.

[14] Năstase has recently been much in the limelight for a 2-year conviction regarding corruption, and his subsequent (apparent?) attempt at suicide.

[15] S.A. Arjomand (2003), ‘Law, Political Reconstruction and Constitutional Politics’, in: International Sociology, Vol 18(1): pp. 7–32.

[16] A. Mungiu-Pippidi (1997), ‘Interview with President of the Romanian Constitutional Court, Ion Muraru’ in: East European Constitutional Review, winter, pp. 78-83, p. 79.

[17] Which in reality, it however never successfully used.

[18] R. Weber (2002), ’The Romanian Constitutional Court: In Search of its Own Identity’, in: W. Sadurski (ed.) Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in A Comparative Perspective (The Hague, Kluwer International), pp. 283-308.: 284.

[19] B. Iancu ’Constitutionalism in Perpetual Transition: The Case of Romania’, in: B. Iancu (ed.) The Law/Politics Distinction in Contemporary Public Law Adjudication (Eleven International Publishing, 2009), pp. 187-211, p. 187.

[20] Cf. Weber 2002.

[21] Iancu 2010: 187.

[22] “Luând în dezbatere propunerea de suspendare a domnului Traian Băsescu din funcţia de Preşedinte al României, la data de 5 aprilie 2007, Curtea Constituţională a dat Avizul consultativ nr.1, potrivit căruia propunerea „se referă la acte şi fapte de încălcare a Constituţiei, săvârşite în exerciţiul mandatului care, însă, prin conţinutul şi consecinţele lor, nu pot fi calificate drept grave, de natură să determine suspendarea din funcţie a Preşedintelui României în sensul prevederilor art.95 alin.(1) din Constituţie”. Rămâne ca Parlamentul să decidă, pe baza datelor şi a informaţiilor care îi vor fi prezentate cu ocazia dezbaterilor, asupra existenţei şi gravităţii faptelor pentru care s-a propus suspendarea din funcţie a Preşedintelui României, în concordanţă cu dispoziţiile art.95 din Constituţie” (emphasis added).

[23] See Kim Lane Scheppele, NYT, 5 July 2012. The credentials of Ponta himself are in dispute, as there are evident signs that he copied a fair part of his doctoral thesis and he apparently falsely claimed to have a Master’s degree from a Sicilian university.

[24] The Romanian constitutional scholar Ioan Stanomir has argued that the ‘Romanian constitution has become an insignificant and irrelevant element’ in Romanian politics, commenting on the Ponta governments’ actions, see http://www.evz.ro/detalii/stiri/ioan-stanomir-constitutia-romaniei-a-devenit-un-element-insignifiant-991426.html

[25] The actions of the Ponta government have been strongly criticized internationally, not least in a progress report on Romania of the European Commission (available at: http://ec.europa.eu/cvm/docs/com_2012_410_en.pdf). The latter called on the Romanian government to return to serious reform in the name of the rule of law, as recent events have “raised serious doubts about the commitment to the respect of the rule of law or the understanding of the meaning of the rule of law in a pluralist democratic system”. The Commission’s report triggered a response by a large number of Romanian intellectuals and representatives of civil society that replied with a Letter to the EU, in which they argue that the Commission ignores the fundamental legal principle of “audiatur et altera pars” and thereby underestimates the unconstitutional and undue political behavior of Băsescu. In addition, it fails to acknowledge the detrimental consequences of the crisis for Romanian parliament, which has turned into an “empty shell” (available at: http://www.stelian-tanase.ro/la-zi/scrisoare-catre-uniunea-europeana-bruxelles/). The response was restated in the European Parliament on 12 September by the MEP Renate Weber, who accused in particular the Commissioner Reding for an exaggerated reaction not based on the facts, and ignoring the illegitimacy of Băsescu, see http://actmedia.eu/daily/heated-debates-among-mep-groups-over-the-political-situation-in-romania/42025.

[26] E.S. Tănăşescu (2008), ‘The President of Romania, Or: The Slippery Slope of a Political System’, in: European Constitutional Law Review, 4: pp. 64–97.

[27] This becomes clear from the high level of new political alliances and parties that have been formed in recent years, as well as a very high degree of political migration, see Romanian Academic Society (SAR) (2012); ‘Romania: The Political Economy of a Constitutional Crisis’, Policy Brief #60 July 2012, available at: http://www.sar.org.ro.

[28] This has sometimes been hailed as ‘democracy by judiciary’. But a more balanced, critical view that acknowledges potentially problematic consequences of the substitution of democratic, parliamentary politics seems a more adequate reading of the role of constitutional courts in the region.

[29] http://www.forumconstitutional.ro. The official idea behind the forum was that it ‘represented the practical participative democracy concept, as well as a premiere in Romania, inspired by the European citizen’s consulting practice where fundamental political decisions are concerned’ (http://www.forumconstitutional.ro/fcnet6en.pdf).

[30] See B. Dima (2011), ‘The Commission for a New Constitution. A Civil Society Perspective on the Process of Constitution Revision’, in: Rom. J. Comp. L. 2, pp. 151-172.

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Grassroots Constitutional Politics in Iceland

Iceland has recently embarked on an experimental form of constitution-making from below. Iceland is in this a rare – in distinct ways probably unique – example of a popular or citizen-driven constitutionalism. This participatory approach in many ways challenges core assumptions of mainstream, modernist understandings of constitutionalism, such as the idea of constitutionalism as a social phenomenon and practice dominated by legal professionals or that of constitutions as higher laws that are near to impossible to change. At the same time,  the Icelandic experience brings to the fore many questions that popular or democratic constitutionalism raises as an alternative understanding and practice of constitutionalism, not least related to the modes and effectiveness of participation, the notion of representation in the constitution-making process, the role of deliberation, as well as the actual, substantive results of participatory constitution-making.

Recent debates among experts of constitutionalism have centered for a good part on the tension between the constitution as a higher law, on the one hand, and democracy, politics, and civic participation, on the other. While some argue that there is no tension between constitutions and democracy, since the former provide the necessary prerogatives for the latter[1], many observers see a strong tension between the legalist idea of higher laws (i.e., laws that are particularly difficult to revise), including the ideas of entrenched rights and the guardianship of constitutions by means of judicial review, and democratic politics inspired by the idea of popular sovereignty.[2] The latter would include the idea of the governed being able to give themselves their own laws. Those emphasizing the civic-democratic dimensions of constitutions often take a very different view of the role of the constitution in democratic societies than that of a legalistic perception of a higher law.[3] Rather than providing the fundamental parameters for democratic regimes, constitutions are seen as vehicles of public participation and debate, as well as of social integration. James Tully, for instance, endorses what he calls “democratic constitutionalism”, a form of constitutionalism that endorses “the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change”.[4] An important component in democratic constitutionalism is an emphasis on the possibility of the members of a political community to themselves change their fundamental rules of association.[5] As also Allan Hutchinson and Joel I. Colón-Ríos have recently argued: “from a democratist standpoint, the merit of a constitution is to be found not so much in its longevity and its force towards stability, but in its capacity for both democratic participation and constitutional transformation. It is not only whether people can take part in constitutional decision‐making, but how easily, how often, and how actively they can do so; there must be adequate mechanisms and processes in place to maximize these opportunities”.[6]

Until recently, the importance of the idea of democratic constitutionalism could be observed almost exclusively in democratizing countries in Latin America and Africa, in which in the last two decades or so quite some constitution-making processes have witnessed innovative forms of inclusive, participatory constitutional politics. These societies often have had to deal with the legacies of authoritarian pasts and forms of deep (ethnic) divisions. Since 2008, however, what is by many regarded as an advanced and thoroughly consolidated democratic regime, if not one of the most wealthy countries in the world, has embarked on what in some of its facets might be seen as the most radical form of democratic constitutionalism “in action”. An enduring series of civic protests has involved a strong critique of not only the political establishment’s handling of the economic crisis and its run-up, and forced the government to resign in early 2009. Civic resistance has also called for a revision of the ground rules of the Icelandic democratic community.[7] One of the more immediate results of the so-called pots and pans revolution in Iceland has been an original attempt at rewriting the Icelandic constitution by means of popular constitution-making.

Some facets of the current constitution-making process in Iceland can be understood as unique, but at the same time, so I believe, the process highlights significant and more general tensions intrinsic to modern constitutionalism. Such tensions can equally be observed – even if in different ways – in other so-called advanced (as well as in some new) democratic societies, and thus are of wider significance, beyond the in many ways peculiar case of the current Icelandic “moral revolution”. Such constitutional frictions might be understood as forms of what I call “constitutional anomie”, that is, a distance between existing, institutionalized constitutional orders, on the one hand, and wider societal perceptions, interpretations and tendencies, on the other.[8] Constitutional anomie can be seen as indicating forms of constitutional failure. One form of constitutional anomie that manifests itself in the Icelandic case is that of the idea that the constitution is archaic and obsolete, and does not provide the adequate means to regulate democratic society.[9] A second form is the idea that the current Constitution does not provide adequate moral guidance to the Icelandic community and does not reflect its key values.[10] Another dimension of constitutional anomie relates to the idea of self-governance and legitimacy, which in the Icelandic case boils down to the view that the current constitution is not of the Icelanders’ own making. Yet another – related – dimension of constitutional anomie is the idea that it should be the people itself that actively gives the political community its fundamental rules, or at least should have democratic channels to be able to participate in the formulation of fundamental rules; in this case, the Icelandic people deliberating and formulating the ground rules of the Icelandic democratic community.[11] These are some of the tensional dimensions that play a role in the current civic constitution-making process in Iceland, which, I believe, are of wider significance for other democratic societies in which the role of constitutionalism is being debated.

Constitutional Politics in Iceland
The Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document. A parliamentary committee set up for the purpose has never been able to gather sufficiently widespread support for changing the 1944 Constitution.[12] The perception of the constitution’s transitory nature results inter alia from it having been de facto adopted in an emergency situation (the Second World War) in which only the minimally necessary changes were made to transform Iceland from a country dependent on the Danish monarchy into an independent republic. Another aspect that fed into the idea of the constitution’s transitory nature is the fact that it is largely based on the Danish constitution and thus does not reflect the autonomy of the Icelandic political community. Things have changed radically with the 2008 economic crisis and its devastating effects for the Icelandic economy. One admirable consequence of this crisis has been the attempt at political-moral renewal through the reformulation of the fundamental values of the Icelandic constitutional regime. The story of the Icelandic constitutional “revolution from below” is clearly a unique but at the same time conflictive process, which raises complex questions about constitutional change and innovation. A good part of the thrust for political and constitutional renewal came from the Icelandic population, that is, from individual dissenting citizens, intellectuals, and civic organizations.[13] One key early activist and initiator of the revolution was Hördur Torfason, a musician, songwriter, and human rights activist. People of a variety of backgrounds, representing various ideas and groups, such as for instance anarchists,  brought in different justifications to engage in the “pots and pans revolution”,[14] which consisted in enduring protests and extensive resistance to the political establishment as well as critique of the status quo.

An early manifestation of civic action was the organization of a National Assembly or national “brainstorming session” by the so-called Anthill movement, a collective of grassroots movements, in November 2009. The aim of this event was to discuss the future and main defining values of Iceland (the slogan of the event read: “National Convention – a date with the future”). Organizers included Gudjón Mar Gudjónsson, a young entrepreneur with extensive ICT skills, and creator of the Ministry of Ideas, a civic movement promoting participatory democracy. Of the participants of the National Assembly, 1,200 were randomly selected from the Icelandic census, and 300 were deliberately selected from among political institutions and relevant associations. The highly innovative format – small, modified group discussions identifying main themes and core values, which were then voted on in the plenary – led to the identification of a number of themes and values that were to designate an Iceland of the future. The nine themes that were identified as particularly significant for Iceland were: Education, Economy, Equal Rights, Family, Environment, Public Administration, Welfare, Sustainability, and Opportunities. The four core values that were identified were: Integrity, Equal Rights, Justice, and Respect. While these outcomes might seem abstract and general, and contain a highly universalistic flavour (and thus not necessarily identifying purely Icelandic ideals), the importance of the event lay probably much more in the deliberative and civic-participatory nature of the session. In other words, one of the underlying themes was clearly the need for a politics from below – in contrast to elite and institutionalized politics – as an answer to the various political failures and forms of negligence that were at the basis of the economic crisis of 2008. In this, the event became an important inspiration for those who favoured the idea of constitution-making as a way to address the crisis and to provide Iceland with a new and citizen-driven and locally engendered set of fundamental rules and values.

It should be mentioned that the transitory nature of the Icelandic constitution provided, however, not only fertile ground for a grassroots revolution, but it also reignited a political project for constitutional revision, as some distinct political forces had been endorsing a project of constitutional change for some time. In particular, the new prime minister, Johanna Sigurdardottir (Social Democratic Alliance), who heads the centre-left government that came to power in April 2009 – after the collapse in January 2009 of the prior, conservative government (headed by the Independent Party) – had been pressing for constitutional reform for years. The new government’s agenda included the idea of establishing a special Constitutional Council which was to revise the Icelandic Constitution. A bill to this extent was submitted to parliament, and adopted in June 2010 after extensive debate.[15]

The Act on the Constitutional Assembly (ACA) that was adopted in June 2010 not only stipulated the election and mandate of a Constitutional Council but also proposed a Constitutional Gathering on constitutional matters, a one-day civic-participatory event to be held before the elections of the Constitutional Council, and to be prepared by a constitutional committee of seven members.[16] The Act stated that the ‘National Gathering shall endeavour to call for the principal viewpoints and points of emphasis of the public concerning the organization of the country’s government and its constitution; the committee shall process the information collected at the National Gathering and deliver to the Constitutional Assembly when it convenes’ (Interim Provision/Act 2010). The National Gathering was thus to gather information among citizens regarding the main themes and core values for a new constitution. In this, the National Gathering was clearly strongly inspired by the November 2009 Assembly, which also came through in the cooperation in the Gathering’s organization by members of Anthill. The originality and unprecedented nature of the whole process lies clearly in the explicit emphasis on citizens’ driven constitutional reform, a form of ‘crowd-sourcing’ in the form of a civic brain-storming session, and the explicit exclusion of members of political parties to participate in either the National Gathering or to stand for elections for the Constitutional Council. The citizen-driven constitutional revision process is unique in any established democratic society (other recent innovative, civic examples of constitution-making regard Latin American as well as African countries, but not North-American or European ones).[17] The constitutional dimension that is clearly played on is the idea of self-governance and a perception of constitutionalism which understands civic participation as a necessity in order for a constitution to become a vibrant reflection of a political community’s political imaginary and self-understanding.

The Constitutional Gathering was held on 6 November 2010, organized amongst others by Agora, a non-profit organization headed by the aforementioned Gudjón Mar Gudjónsson. 950 randomly selected Icelanders participated in the event, and discussed fundamental values and distinct constitutional categories in 128 roundtables.

Source: Agora/Ministory of Ideas

The main themes that resulted from the roundtables were based on “word clouds” which themselves reflected those themes mentioned most frequently by individual participants. The outcome was the identification of eight main themes for a new Icelandic constitution (country and nation; morality; human rights; justice, well-being and equality; the nature of Iceland, conservation and utilization; democracy; division of power, responsibility and transparency, and peace and international cooperation). These themes were then to be one of the bases of the deliberations of the Constitutional Council. This Council was elected on 27 November, when 37 percent of the Icelandic electorate selected up to 25 candidates among 522 self-enlisted candidates by means of a proportional STV system. The elections had been advertised by the National Electoral Commission twenty-four days earlier, while mostly modest campaigns had been held by the candidates (their campaign money could not exceed 12.500 Euro). The novelty of these elections clearly lay in the explicit exclusion of politicians from candidature and the idea of establishing a purely citizen-based constituent assembly. Article 6 of the ACA on eligibility read “[p]ersons who qualify to stand for elections to the Althing may stand for election to the Constitutional Assembly. However, the President of the Republic of Iceland, members of parliament, their alternates, cabinet ministers and members of the Constitutional Commission and the Organising Committee are not eligible to stand for the election”. One senses a flavour here of “anti-political politics” as it emerged for instance in the 1970s and 80s in East-Central Europe. An important aspect of such a view of politics is the idea of the self-empowerment and responsibility of citizens.[18] There were, however, major problems with the elections, in that the turn-out was particularly low (normal national elections see turn-outs of around 85%) and, at least according to some skeptical observers (probably exaggerating somewhat), procedures had been far from flawless. The latter led to complaints to an ad hoc, executive committee of the Supreme Court, which suggested to annul the elections on 25 January 2011. In this very insecure situation for the Constitutional Council, the parliament decided after heated debate to install a Constitutional Council by means of parliamentary appointment. The ACA was in this repealed.

Clearly, the set of intricate events has weakened the social legitimacy of the Constitutional Council, starting with the low turn-out and ending with the Council’s political appointment rather than its popular election. Nevertheless, the Council started its work in April 2011 on the basis of a wide range of materials, including the conclusions of the National Gathering, a detailed report by the seven-member Constitutional Committee which had also been set up in the ACA, and an extensive electronic database provided by the latter. One could argue that part of the civic-participatory potential was in part recuperated (and it should not be forgotten that the members of the Council were indeed ordinary citizens or at least non-politicians or constitutional lawyers) by means of an exceptionally open and transparent mode of working. The Council had an active website as well as Facebook page, which could be used by citizens to provide comments and suggestions, while draft proposals were posted on line. Citizens could thus closely follow the evolution of the debate on the constitution. What is more, active usage was being made of the afore-mentioned Facebook, as well as of Twitter, Youtube, and Flickr. The whole process has clearly been very innovative and open, even if the argument that this was an example of “crowd-sourcing”, made by many a foreign journalist,[19] appears to be not accurate as the taking up of citizens’ comments in the final draft seems to have been ultimately fairly limited and the wider role of the public was mostly consultative rather than truly participative.

Moving from the process of constitution-making to the substance of the actual draft, it seems fair to say that although there are a number of civic-democratic channels that have been included in the constitution, the overall nature of the text – including the civic-participatory dimension – does not differ drastically from many other constitutions in Europe.[20] The most conspicuous aspects regard the articles 32-36, which deal with the preservation of Icelandic cultural heritage and treat the natural resources as common property. It is interesting to observe, in this respect, that the radically participative and grassroots form of constitution-making has in this case not led to the adoption of a radically participatory form of democracy in constitutional terms. The most radical proposals in civic-participatory terms can be found in the articles 65 and 66. Article 65 gives the possibility to organize a petition by at least 10 % of the electorate to call for a referendum on legislation passed by the parliament.[21] Article 66 gives the possibility for 2 % of the electorate to submit an item on the parliamentary agenda, while 10% of the electorate may submit a legislative bill to the parliament.[22] Article 113 dealing with constitutional revision introduces an obligatory referendum regarding constitutional amendments. While the civic-participatory thrust of these articles seems clear, at the same time, the draft constitution introduces a novel legalistic element: an institution resembling  a constitutional court (the Lögrétta) with ex ante powers. This institution can be asked for an opinion on the constitutionality of legislative bills by the parliament or parliamentary committees. This could be seen – at least in theoretical terms – as in partial tension with the parliamentary democratic form mentioned in article 1 and the civic-participatory dimension of the articles 65 and 66.

The draft constitution has been consigned to the Icelandic Parliament in July 2011 and is now pending. The Constitutional Council responsible for the draft has emphasized that it has been adopted in full consensus[23] within the council and has called for a referendum on the draft. In October, the prime-minister has indeed suggested a public consultation on the draft constitution, to be held together with the Presidential elections scheduled for June 2012. On 16 January, also the chairman of the parliamentary constitutional and supervisory committee, which has been examining the draft since the autumn of 2011, has argued that it is not unlikely that the text will be put to a national referendum. The Icelandic parliament will not debate and vote on the draft before the autumn of 2012. Be that as it may, the formal adoption procedure would be the one outlined in article 79 of the current constitution.

What is clear is that – even in the worst-case-scenario in which the draft constitution is ultimately dismissed by the Icelandic Parliament[24] – the constitution-making process has been innovative and in many ways unprecedented, and will undoubtedly have important repercussions for Icelandic democracy. One example of this is the formation of a new political party, which includes members of the Civic Movement, and endorses a new constitution reflecting the draft. But the experiment clearly also entails wider lessons regarding the role of constitutions, and of citizen participation, in contemporary democracies. The whole process of Icelandic grassroots constitution-making has been original in its civic-participatory nature and in its explicit rejection of formal political interference. While not living up to more radical expectations of civic involvement, the process did raise the interest and participation of the wider citizenry (e.g., written comments submitted through the new media totaled 3600, while suggestions added up to approximately 370). And despite the lack of a radical-democratic dimension in the new draft, the text is clearly an improvement, not least with regard to civic-participatory channels. The draft addresses a number the issues I have indicated with the notion of constitutional anomie: a more up-to-date, clearly and accessible written text; the attempt to reconstitute a dimension of moral guidance to the constitution; the attempt to enhance a substantive participatory dimension in constitutional terms; and finally, in terms of the draft’s making, the reflection of autonomy and self-governance through an Icelandic, citizen-driven constituent convention.

References
Bater, R. (2011), ‘Hope from below: composing the commons in Iceland, Opendemocracy.net, available at: http://www.opendemocracy.net/richard-bater/hope-from-below-composing-commons-in-iceland.

Bellamy, R. (2007) Political constitutionalism: a republican defence of the constitutionality of democracy, Cambridge University Press.

Blokker, P. (2010), ‘Modern Constitutionalism and Constitutional Anomie in the New EU Member States’, Quaderni del Dipartimento di Sociologia e Ricerca Sociale, Università degli Studi di Trento.

Blokker, P. (2011), ‘Modern Constitutionalism and the Challenges of Complex Pluralism’, in: G. Delanty and S. Turner (eds), The Routledge International Handbook of Contemporary Social and Political Theory, Routledge.

Dworkin, R. (1995), ‘Constitutionalism and Democracy’, European Journal of Philosophy, 3 (1) 2-11.

Falk, B. (2011), ‘Between past and future. Central European dissent in historical perspective’, Eurozine, available at: http://www.eurozine.com/articles/2011-05-26-falk-en.html.

Habermas, J. (2011), ‘Europe’s post-democratic era. The monopolisation of the EU by political elites risks reducing a sense of civic solidarity that’s crucial to the European project’, The Guardian, available at: http://www.guardian.co.uk/commentisfree/2011/nov/10/jurgen-habermas-europe-post-democratic.

Hardt, M. and A. Negri (2011), ‘ La sinistra come potenza costituente’, Micro-Mega, 8/2011.

Hutchinson, A.C. and J.I. Colón-Ríos (2011), ‘Democracy and Constitutional Change’, Victoria University of Wellington Legal Research Paper No. 16/2011.

IDEA (2006), Participation in Constitution Making, available at: http://www.idea.int/resources/analysis/const_making_particip.cfm

Scheppele, K.L. (2011), ‘Hungary’s Constitutional Revolution’, New York Times, blog Paul Krugman, available at: http://krugman.blogs.nytimes.com/2011/12/19/hungarys-constitutional-revolution/.

Thorarensen, B. (2011), ‘Constitutional Reform Process In Iceland’, paper presented at the Oslo-Rome International Workshop on democracy, available at: http://www.uio.no/english/research/interfaculty-research-areas/democracy/news-and-events/events/seminars/2011/papers-roma-2011/Rome-Thorarensen.pdf.

Tully, J. (2001) ‘Introduction’, in A-G. Gagnon and J. Tully (eds.) Multinational Democracies, Cambridge University Press 1-34.

 


[1] See, e.g., Dworkin 1995.

[2] See, e.g., Bellamy 2007.

[3] I have discussed this debate concisely in Blokker 2011.

[4] Tully 2001: 5, 6.

[5] Another relevant project is that on constituent power of the Italian scholar Antonio Negri. With regard to the possibility of a constituent power of progressive political forces, he notes: “the third point on the basis of which an alternative left needs to organize its constituent capacity consists in the overcoming of political representation as a profession… The expansion of the instruments of direct democracy is fundamental and can only expand towards the inclusion of the themes of the security of the life in common and the functions of protection and control of both privacy and social relations. It is clear that also the functions of the judiciary are to be opened up to direct democracy, removing the illusion that a professional legal apparatus could have guaranteed independence and farsightedness in the face of economic privilege and social superiority’ (Hardt & Negri 2011; my translation).

[7] See for a recent description of the protests, Bater 2011.

[8] For an early elaboration, see Blokker 2010.

[9] This is an aspect that is for instance also discussed in the case of the Netherlands, where some view the language of the 1814 Constitution as out of touch with current times. Also the far-going changes in the British constitutional system were to some extent inspired by the idea that the traditional system of common law was out of touch with the challenges of modern times.

[10] In a kind of negative comparison, it could be argued that moral guidance also plays an important role in the current Hungarian “constitutional counter-revolution”. See for one recent statement, Scheppele 2011.

[11] There are other examples of “advanced” democracies where this dimension has recently come into play. Some of the inspiration for the constitutional changes in the British case is to be found in the idea of democratic participation, while also in the Netherlands some have argued along these lines: ”In een volwaardige parlementaire democratie maakt het volk zelf zijn Grondwet.” [In a fully fledged parliamentary democracy, the people makes its own Constitution]  (see http://www.nieuwegrondwet.nl/). Also the (failed) European attempt at constitution-making was evidently driven by an idea of public deliberation and civic participation. One of the main protagonists of the constitutionalization of Europe, and proponent of the idea of ‘constitutional patriotism’ in which civic participation plays a fundamental role, Juergen Habermas, currently warns for the dangers of excluding the citizens from a European ‘post-democratic politics’ (Habermas 2011).

[12] One serious attempt of creating a new draft has been made, but the constitution was never implemented. The fact that the Icelandic Constitution has never been widely revised probably has also to do with the difficulty of doing so. As Article 79 states: “Proposals to amend or supplement this Constitution may be introduced at regular as well as extraordinary sessions of Althingi [Icelandic Parliament, pb]. If the proposal is adopted, Althingi shall immediately be dissolved and a general election held. If Althingi then passes the resolution unchanged, it shall be confirmed by the President of the Republic and come into force as constitutional law”.

[13] The grassroots movement was perhaps not in all facets a spontaneous popular reaction to the crisis. It would in this be worthy to study the variegated composition of the popular protests. As one member of the Constitutional Council, whom I interviewed in August 2011, argued, an important role was played by more ‘elitist’ persons, including academics and writers, who clearly had more familiarity with acting in the public sphere.

[14] A particularly significant and alarming episode regards an early eruption of protest in December 2008, when some 30 dissenting citizens set out to use their constitutional right to publicly assist at a parliamentary session in the House of Parliament, with the intent to publicly read a critical declaration, but were stopped by a policeman and guards. Nine persons were arrested and face heavy charges (from 1 to 16 years of imprisonment), not least on the basis of being charged with violation of section 100 of the penal code which stipulates that anyone found guilty of “attacking the sovereignty of Parliament” will be sentenced to a minimum of 1 year imprisonment. In February 2011, the Reykjavik District’s Court ruled that four dissenters were found guilty of minor charges, and five not guilty. The law case against the “Reykjavik 9” has led to widespread public criticism, expressions of solidarity, and a recent documentary highlighting the absurdity of the charges.

[15] Main arguments against the undertaking of revising the constitution were its inappropriateness in times of crisis and an insistence on the parliament’s prerogatives in constitutional politics, see Thorarensen 2011.

[16] The chair of the constitutional committee recently gave an informative talk on the constitution-making experience, see http://www.youtube.com/watch?v=AiO9oNbpN14&feature=relmfu.

[17] Switzerland is a partial exception in that 50,000 citizens can initiate a revision of the constitution (IDEA 2006). Even if the ‘fear of the masses’ with regard to constitution-making processes is now much less outspoken than in the immediate post-WWII years (IDEA 2006), and public participation of some form is now widely endorsed, in particular in the case of democratizing and post-conflict societies, in most cases civic participation takes the form of consultation (the Kenian National Constitutional Conference is one example of an inclusive, but not citizen-driven assembly). The Icelandic case has the potential to be unique (depending in a way on what happens with the Draft Constitution produced by the Constitutional Council) in that the Constituent Assembly is made up of the “people” rather than politicians and/or experts.

[18] See e.g. Falk 2011.

[20] The Constitutional Council took into account many European constitutions in its deliberations.

[21] By way of comparison, article 75 of the Italian constitution allows for citizen-initiated referenda: “A general referendum may be held to repeal, in whole or in part, a law or a measure having the force of law, when so requested by five hundred thousand voters or five Regional Councils”.

[22] By way of comparison, article 71 in the Italian constitution allows for popular bills: “The people may initiate legislation by proposing a bill drawn up in sections and signed by at least fifty-thousand voters”.

[23] The consensual basis of the draft might enhance its legitimacy, but might also indicate a reason for the lack of a radical democratic dimension of the draft. In other words, a more general problem of deliberation might have come into play, that is, a “taming” scenario in which radical dissenting views ultimately succumb to the more conservative views of a majority.

[24] Much depends on the favourable attitude of the governing parties, aided by support of members of the opposition. Also the way in which the draft will ultimately be dealt with is obviously of great importance, that is, the adoption of a largely unrevised text, or, alternatively, the more or less extensive revision of the draft according to expert opinions and parliamentary considerations. A complete rejection of the constitutional draft seems not likely, in that a revision of the constitution was a campaign promise of in particular the Social-Democrats. As one of the members of the Constitutional Council put it in an interview with me at the end of August 2011, as long as the current government remains in power, some impact of the constitutional project seems likely. This member of the Council also pointed, however, to important problems with regard to the legitimacy of the Council (badly harmed by the allegedly flawed elections), and, one might add, the potential frictions resulting from what some see as a lack of cooperation between the Council and the parliament.

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Inizio

This blog is a platform to express some of my concerns on politics in the contemporary world, not least regarding the predicament of modern democracy. I am particularly keen on exploring the possibilities for and status of civic participation, forms of resistance, dissent, and critique, and the way all this relates to the role of constitutions in democratic societies.

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