Editor’s Note: Today we publish the 2016 Report on Icelandic constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Ragnhildur Helgadóttir, Reykjavik University School of Law, and Anna Lísa Ingólfsdóttir
I. Introduction
From a constitutional perspective, the year 2016 was a tumultuous one in Iceland. However, the events of the year mostly played out in elections and on TV, not in courts. In early April, the Prime Minister resigned after a scandal concerning his off-shore property broke on national television, and parliamentary elections to take place in the fall were announced. In June, a new president was elected. In the parliamentary elections on October 7, parties had representatives elected to Parliament, which meant that forming a government was no easy task and the year ended without one. These events will be discussed in more detail below.
Iceland has, in spite of the financial crisis of 2008, which hit the country severely, remained a stable democratic state. To some extent, the constitutional drafting process begun in 2011 is still underway although it is unclear to what extent changes will be made. This will also be discussed further below. So will seminal court cases decided in 2016.
II. Introduction to the Constitution and the Courts
Iceland’s constitutional history from the late 19th century is characterized by constitutional continuity. In spite of the important changes to the constitutional system, which have taken place since the first undisputedly Icelandic Constitution of 1874, only three Constitutions have entered into force (1874, 1920 and 1944).
The current Constitution of Iceland dates from 1944 (no. 33/1944). In 1942, it was decided that a republic would be founded once it became possible to end the association with Denmark after 1943. A constitutional committee was set, charged with drafting a constitution for the republic, but expressly forbidden to make any amendments except those directly following the dissolution with the Danish monarch and the founding of the republic. Consequently, the only changes made to the constitution of the monarchy at the founding of the Republic were those directly related to the head of state and the mode of government. The constitution of 1944 was viewed as provisional. Constitutional committees were at work from 1944 onwards. That project was abandoned in the 50s, to be taken up again in the early 1970s (a new Constitution draft was introduced in 1983 but was not adopted) and then again in 2009. In 2011, a Constitutional Council drafted a new Constitution, but this draft has not been adopted either.
This does not mean, however, that the Constitution has remained unchanged from 1944. In 1959, the electoral system was drastically changed; in 1968, the rules on eligibility to vote were altered; in 1984, the electoral system was amended once again; in 1991, Althing (the Icelandic Parliament) was made unicameral and the distinction between the executive and judicial powers made clearer. In 1995, a completely revised chapter on human rights was adopted and the fiscal control of Parliament was clarified. In 1999, the electoral system was amended once again and in 2013, an amendment to simplify the amendment procedure entered into force, adopted in order to make it easier to pass any amendment based on the constitutional drafting that took place in 2011-2013.
Throughout this time, Iceland has been—and still remains—a representative democracy with an elected head of state that holds a largely ceremonial role, a parliamentary system of government and independent courts. However, public trust in institutions is relatively low.
The court system is (until Jan. 1, 2018, when a new Court of Appeals will come into existence) two-tiered. There are eight district courts and one Supreme Court. All courts exercise judicial review of parliamentary acts as well as executive decisions. Constitutional review is thus vested in all courts. Courts in Iceland have been relatively active (compared to most of their European neighbours) in finding laws unconstitutional.[1]
III. Constitutional Controversies
A. Presidential Authority and the Dissolution of Parliament
The main constitutional event of 2016 began with the publication of the so-called Panama Papers.[2] Sigmundur Davíð Gunnlaugsson, who was then Prime Minister of Iceland, walked out of a TV interview with journalists from the Swedish and Icelandic state broadcasters when asked about a company called Wintris Inc., established in a tax haven. One of the main issues of his career as Prime Minister had been the treatment of foreign creditors after the financial crisis of 2008.[3] It later became clear that he had sold his half of the company to his co-owner (the woman now his wife) for $1 on Dec. 31, 2009, the day before a law entered into force that would have required him to declare the ownership of Wintris as a conflict of interest.[4]
Large parts of the public viewed this as a conflict of interest and a breach of good faith, irrespective of whether the ownership ever had any influence on Mr. Gunnlaugsson’s politics. The ensuing scandal led to the largest protests in the history of Iceland, and a course of events in which considerable constitutional uncertainty arose. On April 5th, the Prime Minister met with the President and (allegedly) requested the dissolution of Parliament. In a press conference after their meeting, the President stated that the Prime Minister had requested a dissolution of Parliament, but that he, the President, had refused to dissolve Parliament, inter alia because he wanted to discuss this with the other party in the coalition government.[5]
Shortly after the President’s press conference, a short press release came from the office of the Prime Minister, stating that the he had in fact not requested dissolution of Parliament. It thus seems that the protagonists in this drama disagree on whether the Prime Minister indeed requested the dissolution of Parliament or not. It is clear, however, that the Prime Minister was increasingly isolated politically and that he had not discussed the option of dissolving Parliament with his coalition partner (the Independence party), whose chairman stated in the media that the dissolution order from the President had been intended as a threat to get the coalition to stick together.[6] Mr. Gunnlaugsson’s Progressive Party decided in a party meeting that very same day that he would resign as Prime Minister while keeping his position as Chairman of the party.[7]
In Icelandic constitutional law, the dissolution of Parliament is permissible under art. 24 of the Constitution. It provides that the President of the Republic may dissolve Althing (the Parliament). A new election must take place within 45 days from the announcement of the dissolution. Althing shall convene not later than 10 weeks after its dissolution. Members of Althing shall retain their mandate until Election Day. However, according to art. 13 of the Constitution, the President shall entrust his authority to Ministers, and according to art. 14 of the Constitution, Ministers are accountable for all executive acts.
The constitutional question concerning the dissolution of Parliament was twofold: first, as the crisis was brewing, the question arose whether the President could step in and dissolve Parliament, thus in effect making the electorate the arbiter of the scandal that had arisen. The second question was whether the President could independently evaluate a request for the dissolution of Parliament. Because of the largely ceremonial role played by the President, the theory for much of the 20th century had been that this was not the case. But the President did, indeed, refuse to sign such an order on April 5, 2016.
In spite of the limited role of the head of state, it had been argued in theory at least from 2009 that no dissolution of Parliament would take place unless both the Prime Minister and the President agreed on that decision.[8] There was therefore no doubt that the President could not dissolve Parliament unless the Prime Minister agreed. This is based mostly on art. 19 of the Constitution, which provides that executive acts become valid when counter-signed by a Minister. The question that remained was whether the President had been within the boundaries of his role when he refused to sign an order dissolving Parliament when requested to do so by the Prime Minister. One of the authors of this article (RH) stated in the media that such was her opinion already on April 5. This was based on the assessment that these were the extraordinary circumstances of a very isolated and arguably distraught PM attempting to use the dissolution of a democratically elected Parliament as leverage to increase his chances of success in negotiating how to endure a political scandal. Other academics were more hesitant to accept the constitutionality of the President’s action.[9] However, the President clearly thought that the Prime Minister’s request was arguably a misuse of the possibility of dissolving Parliament, as he stated at the press conference that it wasn’t possible to use the presidency in a tug-of-war between the leaders of political parties.[10] The open question that remains in Icelandic constitutional law is how to hold a President—since he can undertake such evaluations— accountable for his or her decisions, as it is stated clearly in the Constitution’s art. 11 that ‘The President of the Republic may not be held accountable for executive acts’. If these events signal a more powerful presidency, and not only an emergency use of presidential powers, that question will be immensely important.
B. The fate of the Constitutional Draft of 2011
In 2011, a Constitutional Council was tasked by Parliament to draft a new Constitution for Iceland. It handed a draft Constitution to Parliament later that year after a quite inclusive and innovative process.[11] Voters approved enacting a new Constitution ‘based on the draft’ in a referendum in the fall of 2012. The draft was discussed in Parliament but not adopted before the general elections in 2013, in which anti-revisionist parties gained a majority in Parliament.[12]
Before the elections that were held in October 2016, NGOs and others tried to put the constitutional revision back on the agenda.[13] The different standpoints of political parties in the 2016 elections can be divided up in two: on one hand the parties that wanted to hold onto the current Constitution but amend it in some ways and update it, and on the other hand parties that championed a new Constitution and wanted to use the draft that the Constitutional Council presented in 2011 at least as a starting point.
It is interesting to note that the parties who formed the coalition government which took power in January 2017 fundamentally disagree on how to go about the changes. The Independence Party believes that every change to the Constitution should be carefully considered and that it is not desirable ‘to overthrow the Constitution and get a completely new one. That can hardly be reconciled with predictability and legal certainty.’[14] However, the party believes that there should be a provision on referendum in the Constitution and that provisions on the presidential powers should be updated.[15]
The party Bright Future wants to use the draft of the Constitutional Council but act on objective and well-founded suggestions for improvement. They also mention that it is necessary that the explanatory report and other travaux preparatoires need to be clear. Finally, they think that the nation should get time to familiarize itself with the new Constitution.[16]
The third coalition party, Viðreisn, believes that it is necessary to finish the revision of the Constitution. They want to strengthen direct democracy so that the public can have a say on important issues and to sharpen the separation of power.
In the coalition agreement between these three parties from January 2017, it is stated that the work of revising the Constitution will be continued on the basis of the extensive work that has taken place in the past few years. The cabinet will invite all political parties represented in Parliament to appoint representatives to a parliamentary committee, which will work with specialists in constitutional law and agree on amendments to the Constitution that will be submitted to Parliament no later than 2019.[17]
The coalition agreement also notes that it is important for the amendments to be discussed thoroughly in public before being discussed in Parliament.[18]
Finally, it must be noted that the provisional amendment enacted by Act 91/2013, which provided for a special amendment process in order to facilitate building on the constitutional drafting of the last few years, will run its course on April 30, 2017. The regular amendment process (two Parliaments with a general election in between must adopt a constitutional act) will thus be applicable to any amendments discussed in 2019.
IV. Major Cases
A. Separation of powers
Hrd. 268/2016 of June 9, 2016
In this case, the dispute was between the capital city of Reykjavik and the state of Iceland and centred on whether the state was obligated to close one landing field in the domestic airport in Reykjavik. In 2013, the Interior Minister and representatives of the city of Reykjavik had signed an agreement requiring inter alia the state to close one landing field of the domestic airport and to revise zoning rules for the airport.
In the case, the state argued that the Minister of Interior did not have the authority to make such an agreement but the Supreme Court noted that arts. 13 and 14 of the Icelandic Constitution provide that the President lets the Ministers execute his powers, and that the Ministers are responsible for all executive acts. The Court also cited art. 1 of the Cabinet Act no. 115/2011 and art. 4 of President Edict no. 71/2013, in which all matters assigned to the Ministry of Interior are listed, but this list included affairs concerning transportation. Therefore, the Court held that the Interior Minister was competent to make such an agreement in the name of the Icelandic government.
The Supreme Court interpreted the agreement and found it clear that by signing this agreement, the Minister had obligated the state of Iceland to announce the closing of the landing field. However, it found the request that zoning rules be revised to be unjustifiable.
B. Rights and freedoms
Hrd. 80/2016 of December 1, 2016
The plaintiff, S, is a woman with disabilities who received payments from the city of Reykjavik which enabled her to receive full service in her own home because of her disability—but only every other week. This meant that she had to spend every other week at a home for people with serious disabilities. In an agreement done in accordance with rules thereon, the city of Reykjavik had thus agreed to pay inter alia for a certain number of hours of help in the house, general help and a supporting family, so that she could live in her own apartment in her parents’ house every other week. The plaintiff requested that the payment be increased so that she could live in her apartment full time. The city of Reykjavik refused that request.
In this case, the plaintiff argued that by refusing, the city had contravened several provisions of the administrational law; para. 1 of art. 71 of the Constitution (protecting the right to privacy and family life); and art. 76 of the Constitution (guaranteeing certain social rights) and interfered with the rights of people with disabilities, guaranteed by certain acts[19] as well as the UN Convention on the Rights of Persons with Disabilities (CRPD).
The Supreme Court stated that the city’s decision was a refusal to provide the plaintiff with services beyond what was required by the rules governing agreements such as that made with S. It held that neither the provisions of Act no. 40/1991 nor Act no. 59/1992 placed any further obligations on the city than those listed in these rules. The Supreme Court also noted clearly that the UN convention on the rights of persons with disabilities had not been incorporated into Icelandic law and could therefore not increase the city’s obligations towards persons with disabilities that were legally imposed on the city. The city of Reykjavik was acquitted.
There are two noteworthy aspects to the case. First of all, the Court’s refusal to interpret article 76 of the Constitution in light of the state’s obligations under the CRPD. It is traditional in Icelandic law (see e.g. Hrd. 125/2000) to interpret domestic law in light of international obligations but that is not done here to a degree sufficient to require the city to enable S to live independently. Secondly, the Court states clearly that the CRPD has not been incorporated into Icelandic law. This may herald a step back towards the hard-line dualism that characterized Icelandic court decisions before 1990. However, the authors find it more likely that this comment was added to refute the argument by the plaintiff that the CRPD had indeed been incorporated by Act no. 59/1992. As amended in 2010, that Act’s art. 1 states that the executing of this Act ‘shall be informed by the international obligations that Iceland is bound by, especially the CRPD.’ In light of this, it seems likely that the Supreme Court was just clarifying that this reference was intended to lead to the Convention being used in interpretation but was not incorporated so as to trump older laws. But this is not clear.
Hrd. 100-108/2016 of December 8, 2013
A group of people were arrested in 2013 for protesting the building of a new road in a lava field called Gálgahraun. They were condemned for violation of art. 19 of the Police Act, which states that the public shall obey police instructions when the police are maintaining law and order in public. A few of them sued against the Icelandic state for compensation for unlawful arrest. All of the cases were alike. The Supreme Court found that the road construction had been lawful (legal) and that the police had therefore the duty to do what was necessary to preserve public order and to ensure that the public road administration could continue the construction.
It was undisputed that the people arrested had not obeyed police instructions when they were repeatedly asked to leave and had therefore tried to prevent the construction. The Supreme Court had also found (in previous cases) that the actions of the police had been in accordance with the principle of proportionality.
The plaintiffs argued that art. 19 of the Police Act did not provide clear authorisation for an arrest, and that arresting people protesting peacefully was a violation of freedom of expression, (art. 73 of the Constitution) and freedom of assembly (para. 3 of art. 74 of the Constitution). They also argued that their arrest and placement in a prison cell was a violation of art. 67 of the Constitution and art. 5 of the ECHR. The Supreme Court discussed this argument and stated that art. 19 of the Police Act was a rule of conduct, and that a violation of that rule was punishable, as evidenced by a number of earlier cases. It was therefore lawful to arrest the plaintiffs. The lower court (whose opinion was affirmed with additional comments) noted that the authorisation for arresting people in this case was not art. 19 of the Police Act, but para. 1 of art. 90 in Act no. 88/2008 of criminal proceedings.
The Supreme Court thus held that the arrest had been in proportionality and that art. 67 of the Constitution and art. 5 of ECHR had not been violated. It noted that the freedoms of assembly and expression could be limited by law to maintain public order. The arrests were therefore held to be lawful and the state was acquitted.
C. Foreign, International and/or Multilateral Relations
Hrd. 80/2016 of December 1, 2016
See above.
Hrd. 707/2016 of November 9, 2016
A district court’s ruling on devolving a five-year-old Icelandic boy to the Norwegian child protection agency was appealed to the Supreme Court. The boy’s mother and grandmother had taken the boy illegally to Iceland in the summer of 2016 after the mother had lost custody of the boy in Norway. The Norwegian child protection agency requested that the boy be returned to that country based on Act no. 160/1995 on the Recognition and Enforcement of Foreign Decisions on the Custody of Children and the Return of Abducted Children, etc.
The Supreme Court noted that the child protection agency had provided a statement from Norwegian authorities stating that it had been unlawful to leave Norway with the boy and keep him elsewhere. The Supreme Court also noted that the Norwegian agency had custody over the boy according to the custody decision in Norway and Norwegian law. It held that it was not the Icelandic judiciary’s role to re-evaluate that verdict. The mother and the grandmother argued that returning the child would violate para. 2 of art. 66 of the Icelandic Constitution, which states inter alia that no Icelandic citizen shall be expelled from the state. The Supreme Court stated that return of a child to those that have custody of the child is not an expulsion within the meaning of para. 2 of art. 66 of the Constitution, and that the provision did therefore not prevent returning a child with Icelandic citizenship based on the Act.
V. Conclusions
It is too early to determine what the most important developments were in Icelandic constitutional law in 2016.
It is interesting that the role of the President is arguably more unclear than before as the traditional view of a strictly ceremonial head-of-state role took a beating in the relatively dramatic events concerning the attempt by an embattled Prime Minister to get an order to dissolve Parliament.
The outcome regarding constitutional changes and the continuation of the amendment process started in 2010 is quite uncertain.
Arguably the most important Constitutional Court case of the year was the case concerning assistance for independent living. The decision does not seem unduly progressive but whether it actually is a step backwards, either for the protection of rights which are guaranteed both in domestic and international law or more generally for international law in the Icelandic legal system, remains to be seen. Other cases discussed here were clearly in accordance with earlier case-law and theories.
[1] See Ragnhildur Helgadóttir, ‘Status Presens – Judicial Review in Iceland’ (2009) 27 Nordisk Tidsskrift for Menneskerettigheter 185 and Björg Thorarensen, ‘Judicial Control over Althingi: Altered Balance of Powers in the Constitutional System’(2016) 12(1) Stjórnmál og stjórnsýsla.
[2] See, for clarification, Wikipedia, ‘Panama Papers’ <https://en.wikipedia.org/wiki/Panama_Papers> accessed 17 April 2017 and Luke Harding, ‘What are the Panama Papers? A guide to history’s biggest data leak’ The Guardian (London 5 April 2016) <https://www.theguardian.com/news/2016/apr/03/what-you-need-to-know-about-the-panama-papers> accessed 17 April 2017.
[3] See e.g. Brian Bremner and Omar Valdimarsson, ‘Iceland gets tough with foreign creditors of failed banks’ Bloomberg.com (10 May 2013) <https://www.bloomberg.com/news/articles/2013-05-09/iceland-gets-tough-with-foreign-creditors-of-failed-banks> accessed 17 April 2017.
[4] See the full interview at https://www.youtube.com/watch?v=Zx7c8huezqY For English-language commentary, see e.g. http://www.telegraph.co.uk/news/2016/04/04/icelands-prime-minister-walks-out-of-interview-over-tax-haven-qu/ and http://www.independent.co.uk/news/world/europe/panama-papers-icelands-prime-minister-walks-out-of-interview-over-tax-questions-a6967091.html.
[5] Freyr Gígja Gunnarsson, ‘Féllst ekki á ósk Sigmundar Davíðs um þingrof’ ruv.is (Reykjavik, 5 April 2016) http://www.ruv.is/frett/fellst-ekki-a-osk-sigmundar-davids-um-thingrof accessed 2 April 2017.
[6] Nanna Elísa Jakobsdóttir, ‘Sigmundur Davíð segir forsetann hafa sagt ósatt’ visir.is (Reykjavik, 5 April 2016) http://www.visir.is/g/2016160409279/sigmundur-david-segir-forsetann-hafa-sagt-osatt accessed 17 April 2017.
[7] Ibid.
[8] Ragnhildur Helgadóttir, Þingræði á Íslandi: Samtíð og saga (Forlagið 2011).
[9] Áslaug Karen Jóhannsdóttir, ‘Forseti aldrei hafnað tillögu forsætisráðherra um þingrof’ stundin.is (Reykjavik 5 April 2016) http://stundin.is/frett/forseti-aldrei-hafnad-tillogu-forsaetisradherra-um/ accessed 15 April 2017.
[10] Freyr Gígja Gunnarsson, ‘Lygileg atburðarrás 5. apríl’ ruv.is (Reykjavik, 5 April 2016) http://ruv.is/frett/lygileg-atburdaras-5-april accessed 2 April 2017.
[11] Stjórnlagaráð, ‘The Constitutional Council – General information’ <http://stjornlagarad.is/english/> accessed 17 April 2017.
[12] Iceland review, ‘Iceland’s Parliamentary Election: Final results’ http://icelandreview.com/news/2013/04/28/icelands-parliamentary-election-final-results accessed 17 April 2017.
[13] See e.g. the videos made by Stjórnarskrárfélagið https://www.facebook.com/Stjornarskrarfelagid/videos/1317088394968676/.
[14] Sjálfstæðisflokkurinn, ‘Stjórnskipunar – og eftirlitsnefnd, landsfundarályktun 2015, <http://xd.is/wp-content/uploads/2016/03/Stj%C3%B3rnskipunar-og-eftirlitsnefnd-
Landsfundur-Sj%C3%A1lfst%C3%A6%C3%B0isflokksins-2015.pdf> accessed 3 April 2017.
[15] Sjálfstæðisflokkurinn, ‘Stjórnskipunar – og eftirlitsnefnd, landsfundarályktun 2015, <http://xd.is/wp-content/uploads/2016/03/Stj%C3%B3rnskipunar-og-eftirlitsnefnd-
Landsfundur-Sj%C3%A1lfst%C3%A6%C3%B0isflokksins-2015.pdf> accessed 3 April 2017.
[16] Björt Framtíð, ‘Áherslurnar’ <http://www.bjortframtid.is/politik/aherslurnar/> accessed 3 April 2017
[17] Stefnuyfirlýsing ríkisstjórnar Sjálfstæðisflokks, Viðreisnar og Bjartrar framtíðar http://www.mbl.is/media/34/10134.pdf accessed 3 April 2017.
[18] Ibid.
[19] Act no. 40/1991 on municipal social services, Act no. 59/1992 on the matters of people with disabilities.
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