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The Context of Iceland‘s Constitutional Revision – Will it Doom the Draft?

– Ragnhildur Helgadóttir, Professor of Law, Reykjavík University

The revision of the Icelandic constitution (see posts from Oct. 15 and 21) was an important part of the reaction to the financial crisis of 2008. Following the crash, a government had to leave office and a Parliamentary Investigative Commission handed in a black report on the sources and reactions to the crises. In addition to the drafting of a new constitution (http://www.althingi.is/altext/138/s/1537.html), reactions to the crash included:

a) Extensive legislative amendments
b) Application for membership of the EU
c) Various prosecutions and disciplinary measures.
d) And perhaps most importantly; a huge lack of trust – in politicians, in the political process, the courts and civil society.

Many of the reactions – notably the EU application – have lost popular support in the two years since the list of reactions to the crisis was finalized. This, however, is not true of the constitutional draft, which gathered overwhelming support in the consultative referendum in October.

This is interesting given that Iceland has since 1944 been a stable, well functioning democracy with a near-perfect record of human rights. Why, then, would a new constitution be a priority for the majority of voters? Especially since the legal work on the draft remains to be done (last June, Parliament asked a group of lawyers to make the draft technically satisfactory, consistent, clear and so that it reflects the will of the Constitutional Council) and the draft is in many respects not radical. Most of the changes consist of elevating rules found in ordinary legislation to constitutional status and adding new paragraphs which accord with the legal situation as it is right now. (See http://reykjavik.academia.edu/RagnhildurHelgadóttir/Talks for a more detailed analysis).

The symbolic value of constitutions is one factor. The premise of a great deal of public opinion seems to be that drafting a new constitution is more important, more radical and will have more impact than focusing on more detailed, less symbolic legislation, such as the Freedom of Information Act. The symbolic emphasis of the constitution drafting is also evident in that this constitutional draft is much less legal or minimalist than earlier Icelandic constitutions. It moves from a very legalistic view of the constitution to a more declaratory, strategic one.

The perceived nation-building effect of constitution-drafting is another factor. In public debate, the main argument for the drafting has been that the Icelandic people have never written their own constitution. The 1944 constitution replicated (as far as possible) the constitution of the monarchy since politicians agreed to found the Republic first and argue about constitutional details later. But the complete revision of the constitution which was promised in the early-1940s and attempted in the late-1940s came to nothing. This argument has serious weaknesses, both historic and legal, but it has resonated.

Finally, one reason that crisis “fatigue” does not hit the draft constitution as hard as e.g. the prosecutions of bankers is that the draft for the most part builds only indirectly on the events of 2008. Its text and preparatory works show some mistrust of government and politicians, as evidenced e.g. by comments about the necessity of mentioning the ombudsman in the constitution so as to prevent the ombudsman being shut down. The ombudsman in Iceland has about the same status as the Federal Courts in the U.S. – it is unthinkable to close it down. But mostly, the draft introduces increased qualitative control of legislation, administrative decisions and various functions of the state. This is a reasonable response to the financial crisis and the failure of governmental control found to have contributed to that. This indirectness in responding to the crisis may be one more factor in the draft‘s favor.

Ragnhildur Helgadóttir is professor of law at Reykjavík University (ragnhildurh@hr.is)

Posted by: Ran Hirschl

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Published on November 10, 2012
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