Where Is The New Constitution? - A Nation Still Waits For Iceland 2.0

Where Is The New Constitution? – A Nation Still Waits For Iceland 2.0

Where Is The New Constitution? – A Nation Still Waits For Iceland 2.0

Published November 9, 2020

Photo by
Narfi Þorsteinsson, Art Bicnick et al.

The collapse of Iceland’s economy in late 2008 incited a tremendous amount of anger in the nation’s people. While the Special Investigation Commission sought to determine who and what were to blame for the collapse, the feeling amongst many Icelanders was that the system itself needed some fundamental changes. That would include the creation of a new constitution.

Iceland’s constitution is more or less borrowed from the Danes, and has changed very little since 1874, when the country was then known as the Kingdom of Iceland. The nation sought to change that, through democratic processes great and small, leading to a draft for a new constitution. As it stands today, however, Iceland is still stuck with the constitution it has had since 1944, when the country first gained independence.

How was the constitutional draft created, what changes does it seek to make, and why is Iceland still waiting for the reboot of its country? To understand that, we need to start at the impetus—and speak to some of the people who are still fighting for the new constitution, which even the most recent polls show is something that matters a lot to most Icelanders.

The people’s council

Much like the protests that erupted through 2008 and 2009, the creation of the constitutional draft was also a grassroots effort, albeit with a more formalised process. That began with then-Prime Minister Jóhanna Sigurðardóttir submitting a bill to Parliament in 2009 for the creation of a Constitutional Assembly, which would be tasked with reviewing the constitution. This bill was made law, with the amendment that what changes should be made arise from a National Forum. In 2010, the Forum came together, tasked with assessing what the nation itself might want to change about the constitution.

Former Primer minister, jóhanna sigurðardóttir, first gay head of state, speech, politics, lgbt, gay rights, equality

Former Prime Minister Jóhanna Sigurðardóttir. Photo: Magnus Fröderberg

The National Forum drew about 1,000 people to offer their ideas on what the new constitution should focus on. The topics that the everyday Icelanders who participated in the Forum brought up is a reflection of what many saw as recurring problems in Icelandic society: a need for greater transparency in government and a more democratic way of electing it; stronger protections for the environment and natural resources; and clearer codification of human rights.

All great ideas, but formalising them into a constitutional draft would involve a more focused effort—albeit one that was not without its problems.

Assemble the assembly

The idea behind the Constitutional Assembly was noble. Those who had served in or run for public office were prohibited from running for the Assembly; the idea here was to have 25 people who were not professional politicians, and who were elected by the people, prepare the constitutional draft. Elections were held, and the results came in on November 30, 2010.

Two problems soon became apparent. First, turn-out for these elections was very low: only 37% of eligible voters bothered casting ballots. Second, and far more troubling, complaints were lodged with the Supreme Court within days of the election that the election itself should be declared invalid.

These complaints took issue with the procedures of the elections themselves: the partitions between voting booths were such that you could technically see what the person in front of you was voting for, the ballot boxes could not be locked, and the like. These complaints were compelling enough to the court for them to rule the elections invalid in January 2011.

It looked like Iceland was on the fast track to getting its long-awaited, democratic, modern constitution. But that didn’t happen.

Undeterred, Jóhanna simply had these 25 individuals appointed to a Constitutional Council, who were then tasked with writing the constitutional draft.

“Crowdsourcing” the constitution

At this point, the task of working out the finer points of the constitutional draft was not solely in the hands of the Council—the people were also directly involved, through a website where Icelanders were encouraged to offer their own suggestions on specific articles, clauses and amendments.

It was this aspect that attracted probably the greatest degree of international attention, often framed as “Iceland is crowdsourcing its constitution”. During a time when many countries were still recovering from their own financial crises—and questioning the political systems that enabled them—the Icelandic people re-writing their constitution was aspirational.

After many months, a draft proposal was submitted to Parliament in July 2011. Specific articles of this draft, and whether to write a new constitution based on the draft, were put to a national referendum in 2012. In that referendum, 66.3% of voters in the referendum said that they wanted a new constitution based on the draft that was drawn up by the Constitutional Council the year previous. The people also voted on specific changes, such as having natural resources that are not privately owned to be declared national property; giving equal weight to votes cast in all parts of the country; a provision stating that a certain proportion of the electorate is able to demand that issues are put to a referendum; and more.

It looked like Iceland was on the fast track to getting its long-awaited, democratic, modern constitution. But that didn’t happen.

Up on a shelf

Katrín Oddsdóttir, a human rights lawyer and chair of the Constitutional Society in Iceland, has been a part of the fight for the new constitution from the very beginning.

Katrín Oddsdóttir. Photo by Art Bicnick

“What we have been doing ever since, for eight years now, is fighting for this result of the national referendum to be honoured,” she says. “It is a huge democratic paradox to be fighting your own Parliament to honour a referendum that Parliament called for. I don’t think this happens very often in democratic societies, that the legislature calls for a referendum but then ignores it based on the fact that this was a consolatory referendum and not a binding one.”

Katrín believes there are systemic forces at work resisting the new constitution, both within Parliament and in the business world.

“Systems reject change,” she says. “There’s articles in the new constitution which says, for example, that natural resources belong to the nation, and that the nation should get full price for the usage for its fisheries. Currently, we have a system where maybe 100 people or so in Iceland make most of the money for huge fisheries. According to law, they are owned by the nation, but for some weird reason, the nation only gets about 20% of the actual profit. But it doesn’t really matter, because in Iceland, justice finds its way. It’s taking time, sure, but in the end it will go well for Iceland, I’m sure. We’re just taking as many steps as we can in this marathon of a run.

“There is a sort of pull within the political parties for slow, or no, changes to the constitution. The system wants to maintain itself. That’s what makes it a system. I think that’s the reason why we ended up in this cul de sac at the moment.”

“It’s easy to rule by fear”

Helga Baldvins Bjargardóttir, president of the Women’s Association for the New Constitution, agrees, and believes business interests extend their way into Parliament to assist this resistance.

Helga Baldvins Bjargardóttir. Photo by Art Bicnick

“There are always some owners of capital who ensure that they have a say in how policy is being made,” Helga says. “I think that’s the case with all the old political parties. Currently, it’s the Left-Greens who are standing most in the way. They should have every means to pass this, instead we get these terrible excuses of constitutional changes. It was really disappointing to see that this is as far as they think they can get when working with the Independence Party. It’s quite sad.”

“There’s also conservatism at work,” Katrín says. “There’s people who feel it’s too much to change the constitution in one step; that we should do it slowly over many steps. There are many reasons for opposition to the new constitution. But I’d like to point out that one of the reasons is the fact that the current system has built-in injustices within it, and the new constitution makes an effort to challenge these injustices, but there are people and companies who do not want to see those changes.”

Another factor, Helga believes, is the smallness of Iceland itself.

“People know that they are very vocal about something, they know they might be ruining their chances of getting a promotion or the jobs that they want to.”

“Because we’re such a small nation, it’s easy to rule by fear,” she says. “People know that they are very vocal about something, they know they might be ruining their chances of getting a promotion or the jobs that they want to. Without a culture of protection and making people accountable, it’s easy to rule by fear.”

She adds that rural Icelanders—many of them voters for more conservative parties—are being misled by these parties.

“People in the countryside are afraid that changing things to one person equals one vote would mean Parliament would only focus on Reykjavík, that they would be left out,” she says. “But they forget that there is an article in the new constitution which says that you cannot discriminate against someone based on where they live. So the constitution would actually transform the way we think about how we provide services all around the country.”

The Prime Minister and the people

Recently, Prime Minister Katrín Jakobsdóttir has announced that she will submit a bill to Parliament—interestingly, not as Prime Minister but as a parliamentarian—which would make some amendments to the current constitution. Katrín Oddsdóttir believes these changes are lacking.

Katrín Jakobsdóttir. Photo by Art Bicnick

“We personally feel that this isn’t good enough, because the referendum asked if the draft of the new constitution should be the basis, and that’s certainly not what’s being done now,” she says. “They’re trying to amend the old one, a constitution which was always only supposed to be preliminary. The big quest of this nation to own its own social contract is still being ignored. Secondly, the proposals she’s putting forward are in many ways just watered-down versions of similar proposals in the new constitution.”

Katrín speculates that one of the reasons why the Prime Minister is choosing this route comes from a desire to please everyone in the government.

“This is just my personal theory, but I think what might have happened is that inside [the Left-Greens], there are very conservative people, and they do hold a lot of power inside the party,” she says. “Basically what they’ve said to the people, and to Katrín, is that this will never be done unless it’s done with political harmony, where all the parties come together and make a solution. But this is completely incorrect. Firstly, we see now that this isn’t happening. Even the [Independence Party] are not backing her up. Why is she putting [her bill] forward as a parliamentarian and not a government minister? Secondly, it is just wrong that all constitutional changes in Iceland’s history have been done in some kind of Disney moment where everybody agrees. We have had huge disputes, like when we were changing the electoral territories. Parliament was at war over the issue.”

“It is a huge democratic paradox to be fighting your own Parliament to honour a referendum that Parliament called for.”

Katrín does, however, believe that the Prime Minister is doing what she can with what she says to work with, albeit with reservations about how things are being attempted.

“I think Katrín is doing her best,” she says. “I think she thought that she would be able to lead the other parties into some kind of unity about certain constitutional changes that would continue after the next election. Even though she has no certainty over who is going to lead the country after the election, so it makes absolutely no sense. We also have to remember that the new constitution was put together by 25 very different people, and we all had very different political opinions. It’s a huge compromise, and the compromise already lives inside that document. As soon as you start treating the new constitution as some kind of buffet, where you just pick and choose articles and try shoving them into the old constitution, they have completely and utterly abandoned that big compromise.”

Do the people still want a new constitution?

Support for the new constitution has not by any means waned. A petition was circulated over recent months—one that requires an official signature from the National Registry—which accrued over 43,000 signatures in support of a new constitution based on the draft. This equals somewhere between 15% and 20% of all eligible voters, which in a historic Icelandic context is a very strong showing of support. In fact, poll after poll over the years has shown that most Icelanders support the initiative, including a poll from Maskína, conducted during the last week of October. The results showed 53.5% in support of the new constitution, 21.3% opposed, and 25.2% ambivalent.

There have also been other demonstrations of support, ranging from everything, from a recent social media campaign employing the hashtag #hvar (#where), to the painting of a giant mural by the Ministry of Fisheries asking, in bold letters, “Where is the new constitution?”

“That happened on a Saturday, and on the Monday after, they came and cleaned the wall,” Katrín points out. “Which is very funny, because this wall had been filled with graffiti for years and nobody ever cleaned it. It was like a symbolic gesture on behalf of the power-holders, sort of trying to silence this big, democratic question for Iceland.”

Soon after that mural was erased, a new, even bigger mural was painted nearby.

“You can say a lot of things about Icelanders. They’re very tolerant of the corruption that goes down here. But we don’t like to be silenced, that’s for sure.”

“And that one still stands, because what the power-holders realised is that when they try to silence us, we become stronger,” she says. “As soon as they washed this wall, it was all over the media, and thousands of people signed the petition. You can say a lot of things about Icelanders. They’re very tolerant of the corruption that goes down here. But we don’t like to be silenced, that’s for sure. The voters answered in a very cool and polite manner.”

What does the new constitution change?

There’s a great deal that Helga likes about the changes that the new constitution would offer, a great deal of them having to do with creating a more just and democratic society.

“One of the most important changes in the new constitution are that natural resources should be the property of the nation,” she says. “The biggest mistake that we made in Iceland in terms of inequality is in how the fishing quota system came about. There’s just a few families getting all the money from the fisheries in Iceland, when it could be used to build our education, welfare, and health care systems. Instead, this money is hidden in some tax havens in Tortola. It also expands the human rights articles, such as the right to information and the protection of journalists. Those are major changes that would help us make a better, more just society.

“Another important change that if there’s a piece of legislation that the people don’t want, and they want to have a vote on it, then the people can ask for a referendum and they can vote on it. We’ve been seeing around the world that there are politicians trying to decrease the rights of women and the queer community. If a politician wanted to try that here, the nation could intervene and stop it from being law.”

Dr. Lawrence Lessig, an academic, attorney and political activist, has been keenly interested in the Icelandic constitutional process for many years. In an interview the Grapevine took with him in 2016, he offered that the new constitution could even have wider implications for the rest of the world.

Dr. Lawrence Lessig. Photo: Joi Ito/Wikimedia Commons

“I think that the process for drafting this constitution is the most democratic process we’ve seen in the history of constitutions anywhere,” he told us. “We’ve never seen something like this. This process involved an incredibly intelligent mix between grassroots, citizen-driven input, expert-crafting direction, and an actual deliberative process for drafting the constitution that wasn’t controlled by insiders. The process was representative of the values that the constitution should embrace; it mixes the different elements that a democratic constitution should include: it has expertise, but it also has democratic pedigree. There isn’t another constitution that has not passed through this mix of democratic accountability in the history of constitutions. That’s objectively a very important fact about the nature of the constitution.”

Helga agrees, citing as well the process by which the new constitutional draft was written.

“We elected ‘normal people’; not solely politicians [to work on this constitution],” she says. “It’s written by the people and for the people. It’s right there in the preface. You can see what values that it’s based upon, and has this long-term thinking, which is not what we’re used to. It’s a text that’s written with the heart and soul in it. It’s supposed to be our social covenant that we can base everything else upon. Of course, it’s not perfect. It’s supposed to be a living instrument. But if Parliament is going to make any changes to the draft, this is the criteria that they should use: that those changes are for the benefit of everyone; not just the few.”

“We really need people to realise that having this new constitution benefits the people. It’s a game changer in terms of how we deal with unemployment, bankruptcy, and what’s ahead of us.”

“I think it matters to democratic activists and theorists around the world, because we have so many examples of democracy failing around the world, that we need an example of democracy succeeding,” Lawrence says. “And this would be an example of that because of two parts: one part is basically a grassroots democratic movement to crowdsource a constitution, which is then supported by two-thirds of the voting public, and eventually enacted. That’s a kind of reassertion of the vitality in the democratic process. But on the other side, it would also be important to see the elites and the government yield; to see them acknowledge and concede to the authority of the democratic process.”

So how do we get there?

If there’s so much resistance to the constitutional draft, how can we affect change? Katrín sees a number of options. There is, for example, the fact that the Social Democrats, the Pirate Party, and the two former Left-Green MPs—Andrés Ingi Jónsson and Rósa Björk Brynjólfsdóttir—recently submitted a bill to Parliament based on the new constitution. While Katrín is not optimistic about its chances of passing, she does believe it could pave the way for more substantial changes.

“At least this is one way of keeping the new constitution alive, and keeping where it belongs: inside Parliament, to be discussed there and hopefully one day voted on there,” she says. “One of the horror stories about this case is that just before the 2013 elections, the [Social Democrat and Left-Green] majority wanted to put this forward to be voted on in Parliament, parties such as the Independence Party used filibustering to prevent the vote from happening.”

“I think we need to vote for parties that are actively pushing for the new constitution, and push the old parties to tell us exactly where they stand, so that the voters can have a clear idea before going to the polls,” Helga says. “This is what we want to press.”

Katrín is of much the same mind, with her sights set on 2021, when the next parliamentary elections will be held.

“We have to realise that if we want to try to equalise the balance, we need this new constitution. It’s the basis. It’s how you move forward with everything.”

“We really want this to be one of the major issues of the elections,” she says. “This is the big picture. Elections tend to revolve around smaller things. We are at the point in time where we need to start thinking about what sort of society we’re going to be. Are we this ‘New Iceland’ that we were promised after the economic crash? Will it ever actually see the light of day? We have really big things to work on as a society, and if we don’t work from our foundations in deciding how we’re going to proceed as a nation, then it’s very hard to see how we’re going to be able do this in any kind of beautiful way.”

“I think it’s very important now because we’re going into a recession, and a time that we’ve never known before with this pandemic,” Helga says. “We really need people to realise that having this new constitution benefits the people. It’s a game changer in terms of how we deal with unemployment, bankruptcy, and what’s ahead of us.”

Ultimately, Helga believes the very future of Iceland—especially in these trying times—hinges upon the creation of a new constitution.

“It’s like we have two nations here,” she says. “There’s the few, who have all the money, resources and own most of the media, and then just normal people. We have to realise that if we want to try to equalise the balance, we need this new constitution. It’s the basis. It’s how you move forward with everything.”

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