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.