Will Iceland Get a New Constitution? A New Revision Process Is Taking Shape

—Alexander Hudson, Max Planck Fellow Group “Comparative Constitutionalism”

The “crowdsourced” constitution-making process that took place in Iceland in 2011 received a great deal of attention in the international press, and later in academic work as well. As readers of this blog no doubt know, the draft constitution produced in that process was never ratified by the Parliament. In the years since, constitutional revision has remained an issue in Iceland politics, but was not one of the key issues for most voters in the elections of 2013, 2016 or 2017. The 2013 election saw the return to power of center-right parties that had for the most part opposed the 2011 draft constitution. The 2016 and 2017 elections were precipitated by scandals involving the prime ministers at the time.[1] While the Pirate Party made ratification of the 2011 draft constitution a central part of their platform, other parties focused on other issues. The 2017 election brought a new (and unusual) coalition to power, as Katrín Jakobsdóttir of the Left-Green Movement became the Prime Minister in coalition with the Progressive Party and the Independence Party in November 2017. A poll taken in September 2017 indicated that a majority of Icelanders wanted to see a new constitution ratified by this most-recently elected Parliament.

In January 2018, Prime Minister Jakobsdóttir announced a new effort toward constitutional reform in Iceland.

This process will unfold over a relatively long period of time (seven years), spanning two parliamentary terms. Perhaps learning from the failure of the 2011 drafting process, in the new revision process Parliament will be central. The key decision-making body at the current stage of the revision process is a committee composed of the leaders[2] of the eight parties with representation in Parliament, which has been meeting regularly. The Prime Minister’s memorandum introducing this process emphasizes that the process will involve broad consensus and extensive consultation with the public. The means of public consultation have not yet been determined, but there is great interest in Iceland in incorporating deliberative polls or similar innovations in public engagement.

At the end of September 2018, the University of Iceland hosted a conference on “Democratic Constitutional Design,” in collaboration with the Prime Minister’s office. The first presentation at the conference was a speech by Prime Minister Jakobsdóttir. Ms. Jakobsdóttir reiterated the central themes in the original memorandum, adding that a great deal of conflict about constitutional change remains, and that it will take time to overcome distrust and controversy. Notably, Ms. Jakobsdóttir called for extensive involvement from both the public and the academic community. Ms. Jakobsdóttir expressed the hope that a “holistic reform” of the Icelandic constitution will be an example of democracy for the rest of the world.

Given the failure to ratify the 2011 draft (which introduced some notable democratic innovations but did not significantly alter the institutional structure of the Icelandic government), what should we expect from this new revision process? In my view, not a great deal. As I have argued elsewhere, it was the independence of the 2011 drafting body from Parliament and political parties that enabled the drafters to include so much public input in their draft constitution. Of course, that also meant that when the time came to ratify the constitution in Parliament (after it was approved by the people in a non-binding referendum), the draft lacked sufficient support. The current revision process will certainly escape that problem by making the leaders of the parties represented in Parliament central players. However, this also increases the likelihood that (1) the changes to the constitution will be very minor, and (2) input from the public will not have a significant impact. The central tension here (as in many other constitution-making processes) is the problem of achieving both a significant voice for the people, and carefully balanced compromises between political parties.

On the positive side, the current revision process is likely to result in actual legal changes to the constitution. Since Parliament is the institution with the legal mandate to approve constitutional changes, it makes sense for Parliament to be involved in deciding on the content of the revisions. There are of course arguments against legislatures taking on this role, but solely from the perspective of actually ratifying a new law, the participation of the Parliament seems essential.

The timeline for this revision process is quite long (especially since it follows other revision attempts), but is perhaps understandable given Iceland’s recent history and the requirements for ratifying amendments to the Icelandic constitution. Iceland has been debating constitutional revision for more than decade now. Even before the 2008 financial crisis catapulted major institutional renovations into the center of national debate, the Parliament had convened a committee to consider constitutional changes between 2005 and 2007. And after the failure to ratify the 2011 draft before the election of 2013, Parliament convened another committee to study constitutional changes that met between 2013 and 2016. At present, while there is clearly some support for ratifying the 2011 draft among the general public, one does not get the sense that constitutional revision is a major concern for the majority of Icelandic voters. If there is such a thing as a “constitutional moment,” this is not that. Rather it is a slowly unfolding process of negotiation between political parties, with some consultation with the public along the way.

The major reason that this time frame might be reasonable is that a constitutional amendment (or indeed a replacement) faces a fairly high bar for ratification in Iceland. If Parliament votes to amend the constitution, it is to be dissolved and a new election must be called. Then, the newly elected Parliament would have to vote to ratify the same amendment that was passed before the election. This disincentives proposals of constitutional amendments except at the end of the parliamentary term, at which point the parties are pivoting to campaign mode and less interested in risking political capital on constitutional amendments. The long-term process of constitutional revision proposed by Ms. Jakobsdóttir could potentially allow agreement on constitutional changes between the parties to stick long enough to be approved under the current procedure.

While there has been very little to report regarding constitutional change in Iceland since 2013, scholars interested in participatory constitution-making may want to keep an eye on this sparsely inhabited rock in the North Atlantic as the new revision process unfolds.

Suggested Citation: Alexander Hudson, Will Iceland Get a New Constitution? A New Revision Process Is Taking Shape, Int’l J. Const. L. Blog, Oct. 23, 2018, at: http://www.iconnectblog.com/2018/10/will-iceland-get-a-new-constitution-a-new-revision-process-is-taking-shape

[1] The 2016 election was held several months after Prime Minister Sigmundur Davíð Gunnlaugsson had to resign after the Panama Papers revealed that he had used overseas tax shelters. The 2017 election was called after it was discovered that Prime Minister Bjarni Benediktsson’s father vouched for a convicted pedophile in an Icelandic legal procedure that restores some rights to convicted criminals.

[2] Note that the Pirate Party does not have a single leader, but is represented by one of the members of its parliamentary caucus.