—Ragnhildur Helgadóttir, Reykjavik University School of Law
The Icelandic draft constitution of 2011 has received wide attention, including on this blog. One reason for that is the emphasis placed on public participation in the drafting process. In its (otherwise quite critical) opinion, the Venice Commission (the European Commission for Democracy through Law) wrote:
The wide range of – sometimes innovative – consultation mechanisms which have been used throughout the drafting process launched in 2010 – organization of a national forum, selection among the population of the members of the Constitutional Council to prepare the draft new Constitution, extensive informal consultation and involvement of the public by way of modern technology means, consultative referendum in the fall of 2012 – have given this process a broad participatory dimension and have been widely praised at the international level.[i]
I have elsewhere discussed the process and each of these mechanisms in detail.[ii] One interesting conclusion is that contrary to what was thought, internet consultations during the drafting seem to have further empowered a politically strong group (native-born, middle-aged males) instead of the youngest voters or those who generally do not participate in politics. Meanwhile, “traditional” consultation in Parliament drew a somewhat different group of people to the table and mixed up the picture somewhat.
In early 2011, a Constitutional Council, appointed by the Icelandic Parliament, spent 4 months drafting a new constitution for Iceland. To ensure that all discussions would be public and open to all and to further the public’s participation in the process, the Council opened an internet portal, where citizens could, inter alia, submit ideas, make suggestions and comments and follow the Council’s work. It also opened a Facebook page for the same purpose.[iii] The Facebook page will not be discussed further here, for (with one exception concerning the wording of a paragraph on free dissemination of information on the internet) no substantive proposals were submitted there, only “likes” and congratulations. By contrast, the Council’s internet page shows 323 suggestions from 218 different individuals and organizations.[iv] One should note in this context that 320.000 people live in Iceland. When one looks at those participating on the web-page, it becomes apparent that the participation of different groups in such informal (internet) consultations differs widely. Of the submissions on the web-page, 13% come from women, 77% from men and 10% from organizations.[v] While the age of those participating is not readily available, 40 submitters were chosen at random and their age examined. Out of that sample, very few were young people: Around 80% were between 40 and 65 years of age. Finally, a few foreign citizens made suggestions via the web-page.
Althing (the Icelandic Parliament) then discussed a draft constitution, based on the Council’s draft but with changes suggested by a committee of specialists. The consultation process in Alhting was unusual, as a general advertisement was published for all interested to send in opinions and comments, the consultation period was unusually short, and specialists and interest groups were not specifically invited to submit opinions or attend hearings, but generally both these mechanisms are used for consultation. Althing received 90 submissions from 53 different individuals and legal entities.[vi] The percentage of submissions from women doubled in Althing compared to the internet consultations. However, foreign citizens did not participate when parliament asked for opinions although they had done so on the internet. Many of those who made submissions to the parliament had also participated earlier in the process: Two out of the four organizations which participated had already participated in the Council’s work. Out of the 26 men who sent submissions, 6 had participated in the process before, but none of the 14 women who wrote to Althing had done so.
This is, of course, only one example but the Icelandic experience suggests that different groups (even when only determined by citizenship, gender and age) participate in constitutional drafting to different degrees based on the method of participation, whether that method is formal or informal, its timing within the process and other particularities.
This necessitates considering the consequences of different decisions regarding public participation in constitution drafting. If different groups, even within a quite homogeneous population, show different levels of interest in participating in the constitutional process – and have different levels of influence – depending on the method of consultation employed, it seems clear that decisions on that point have consequences. It matters whether public participation finds its place via civil society; depends on randomly chosen delegates; via the internet, etc. Contrary to what might perhaps be expected, crowd-sourcing in this case empowered primarily Icelandic born middle-age males – not by any means an underrepresented group in traditional politics. This may, in turn, suggest that expectations towards informal mechanisms for public participation should be kept in check; they are not a clear solution for groups that are underrepresented in traditional politics, they can hardly replace more traditional mechanisms completely and a multiplicity of consulting mechanisms may be best.
Suggested citation: Ragnhildur Helgadóttir, Which Citizens? – Participation in the Drafting of the Icelandic Constitutional Draft of 2011, Int’l J. Const. L. Blog, Oct. 7, 2014, available at: www.iconnectblog.com/2014/10/which-citizens-participation-in-the-drafting-of-the-icelandic-constitutional-draft-of-2011/
[i] www.ruv.is/files/skjol/skyrsla_feneyjarnefndar.pdf , para 1
[ii] Talks given at Grunnlovssymposiet ved det Juridiske Fakultet i Bergen 20.2.2014 https://www.academia.edu/6263582/_Facebook-demokratiet_-_et_islandsk_eksperiment (in Danish) and Colloque Europa 2013, http://www.europaong.org/actions/colloques-europa/colloque-2013/ (book forthcoming).
[v] Icelandic naming customs make it very easy to identify the gender of a writer.