Democratic Constitutional Design: The Icelandic Constitution continued

By Jón Ólafsson

In 2013 the Icelandic constitutional project, which had received international attention, got stalled in the Icelandic Parliament — Althingi — before a constitutional bill was voted on. The bill had been created by the Constitutional Council — a body of 25 individually elected representatives, in a completely open and transparent process offering wide and multi-faceted public participation.

Although the bill was created through an extra-parliamentary effort the current constitution requires that constitutional amendents — including passing a new constitution — are confirmed by two consecutive parliaments. In the spring of 2013 the leaders of the parties in the outgoing government — which was about to loose its majority — stopped the process rather than have parliament vote in the hope that there would be room for reaching a broader political support for constitutional revision during the next term.

Although little has been achieved since then, the political parties have gradually been forced to acknowledge the necessity not only of changing the constitution, but also of the need, because of how the process was begun, to engage the public in an effort to bring the project to a satisfactory– and inspiring — conclusion.

Since early this year the current government has been preparing a new constitutional process through which a complete revision of the constitution will be finished in steps over a seven year period. The draft constitution created by Constitutional Council will not be a foundational text in this process although the Council‘s work will be taken into account and in some cases its proposals may be adopted. The important lesson from earlier efforts however is the extensive public consultation which will be a part of this new process.

The conference, “Democratic Constitutional Design — The Future of Public Engagement” is hosted by EDDA Research Center at the University of Iceland in cooperation with the Prime Minister‘s office, 27–29 September 2018. The conference has two main objectives. One is to create a venue for a discussion of newest developments in democratic participation and public engagement. The discussion will be a close scrutiny of past efforts in Iceland and elsewhere to base constitutional design and lawmaking on direct public input. A second objective is on the one hand to facilitate exchange between academics and policy-makers and on the other to connect academic discussion of public engagement with an informal citizens‘ meeting, which will be organized in a cooperation with political parties represented in the parliament.

The timing and organization of the conference is directly linked to the newest revision plan in Iceland and the organizers expect close cooperation with the Icelandic government and with the main political parties. The first day will be devoted to democratic theory, epistemic democracy, crowdlaw and crowdsourcing. Speakers include Betty Noveck, José Luis Martí and Lawrence Lessig. The second day presents a discussion of current and recent constitutional projects in the West-Nordic region i.e. in Iceland, the Faroe Islands and Greenland, a discussion on the use of Deliberative polling in constitutional revision with a keynote talk by James Fishkin, a discussion of Constitutional revision in Ireland and presentations of a few key projects currently underway in various parts of the world. On the third day of the conference a citizen‘s meeting on constitutional revision will include expert panels and discussion on some of the key issues in the Icelandic constitutional project.

The general expectation in Iceland that a new — or a thoroughly revised — constitution must be achieved with broad public engagement raises the question what makes such engagement so important. Why not entrust this task to elected representatives in parliament who can then — if necessary — put their proposals to a national referendum? This question has two answers, one populistic and obvious, another epistemic and to many people less obvious. The first answer emphasizes public ownership of the constitution and the fact that as an independent nation Iceland has so far failed to produce a genuinely Icelandic constitution. The current constitution is closely related to the former Danish constitution and indeed was never meant to be more than a provisional constitution, created in a hurry as Icelanders founded their own republic during the German occupation of Denmark in World War II.

The second answer contains a deeper argument according to which inclusive processes increase the quality of constitutional design. The conference will focus on this second argument, and on the reasons we have to believe that cognitive diversity should be seen as even more important in designing constitutions and key legislation than expert knowledge. Related questions are how representative democracy and public engagament go together (if they do), to what extent public participation can at the same time be effective and empowering for the public in general, what direct democracy entails and whether it is a threat to representative democracy.

The Icelandic constitutional project 2010–2013 brought no immediate reslts and was certainly flawed in many ways. Yet it has been quite influential and is even described as an iconic process. Since the Icelandic government has now begun a new revision project and intends to bring the constitutional revision to a satisfactory conclusion, the conference is also the starting point of a research project which will study the old process and critically monitor the new one, in an effort to make sure that the newest ideas and results are taken into account