Iceland’s ‘crowd-sourced’ constitution is dead

The true history of Iceland’s ‘innovative’ constitutional reform.

One of the recurring issues in news coverage on Iceland is how absolutely rubbish foreign news media is at reporting about Iceland.

We’ve seen how detached from reality economic news on Iceland is, ignoring our burgeoning mortgage crisis and the consequences of the government’s harsh austerity measures.

Their frothy and exuberant reports about Iceland’s proposed new constitution also tend to gloss over the details and ignore domestic discourse in favour of completely fabricated spin.

If you read what foreign language blogs and newspapers wrote about the constitution you’d believe that it was a daring experiment going from success to success and that we were now enjoying a completely new crowd-sourced constitution that had been passed into law with a referendum last autumn. Which is not true.

A complete and total clusterfuck is much closer to the truth.

It started well, with a national forum where a thousand attendees where chosen by lottery. These meetings gathered together a cross-section of society and let them outline what they felt ought to be the priorities in the constitutional process—what issues and matters should be covered.

This worked. It resulted in a predictably vague and wishy-washy list of touchy-feely priorities—little more than ordering a list of pre-selected words in order of importance along with a bunch of meaningless single sentence slogans—but it worked.

The problems began with the election for a constitutional parliament. First, those running weren’t given nearly enough time to promote and canvass, meaning that the list tat voters could choose from consisted mostly of strangers. Second, the ballot itself was extremely confusing, requiring extensive explanations. Thirdly, and most importantly, a lot of people didn’t believe any of it mattered.

Y’see, it was known from the start that whatever the constitutional parliament drafted would be non-binding—that the constitution draft would be rewritten by politicians anyway, rendering the entire exercise somewhat meaningless.

So, voter participation reached record lows in Iceland, where we’re used to voter participation in the 80-90% range.

Fewer than 37% percent voted in the election for the constitutional parliament.

And the clusterfuck continued. One thing that most foreign reporters omit is that there is considerable resistance to constitutional reform by a lot of influential groups in Iceland. Another thing omitted is the fact that the government at the time was a mess and couldn’t organise a piss-up in a brewery. So, it shouldn’t have been a surprise that the election was challenged in the courts and that Iceland’s High Court declared the election, and its results, null and void because of serious issues with voter privacy—that the secrecy of the individual vote had been compromised. (You can get more details at the Icelandic Wikipedia page on the election which is pretty accurate. Of course, as with most data and references on the subject, it’s in Icelandic.)

The government responded by ignoring the High Court and passed a law establishing a constitutional council composed of the exact same people as those who would have been members of the constitutional parliament.

That council then decided to do what most bloggers do: post their ideas online; listen to feedback on twitter, facebook, and in comments; and make sure that changes, drafts, and edits were noted online as they went along.

This is what the news outlets labelled crowd-sourcing. It’s no more crowd-sourced than boing boing is. Open, sure. Transparent, absolutely. But, crowd-sourced?

No. Not by a long shot. If the draft constitution was crowd-sourced then this blog is crowd-sourced as well and the term is meaningless. The draft constitution was written by a committee using a transparent process. It was a good thing that didn’t need to be spun into something it wasn’t.

Of course, over half the nation still believed that the work of the council was meaningless since anything with a bite to it would be removed by the politicians once they got their hands on it. But the council did its job as well as it could. It published a draft that contained a lot of interesting ideas while still remaining a somewhat conservative evolution of our existing constitution. It was exactly the sort of document that was enough of a compromise to have a chance of passing while still containing the reforms that Iceland badly needs.

A lot of the wording in the draft is vague and open to interpretation, which would be disastrous in a real constitution, but that’s only because it was still just a draft.

The next step should have been to put the draft to a committee that would then have solicited feedback from constitutional scholars, lawyers, and other experts. Parliament should have then spent several months of continuous work hammering out the gaps, loopholes, and wording of the document before presenting it to the nation.

Instead the government put it in a drawer and sat on it for months. Constitutional scholars kept commenting that the draft needed work and that work would take time. Lawyers openly worried about some of the consequences of the wording used in places. Foreign academics picked the draft apart when it was presented to them as a completed proposal.

And time was running out.

Here’s another fact that most foreign outlets leave out of their coverage of Iceland’s constitutional process: it’s very very difficult to change the constitution. Any change to the constitution needs to be passed as a law in two separate parliaments separated by a parliamentary election. Given that the next parliamentary election is going to be in the spring 2013 (this April, in fact) and that Iceland’s parliament today is so dysfunctional that passing even non-contentious laws can take months, the government had a very narrow window of opportunity to pull this off.

Especially because they wanted to hold a referendum on the proposed constitution before they actually passed it as a law.

At first the goal was to put the completed constitution proposal to a referendum alongside the presidential election in June 2012. Then it became clear there wouldn’t be anything concrete for people to vote on by then because little to no work was being done on the draft.

The second idea was to put a constitution proposal to a referendum in the autumn 2012 but, again, because no work was being done on the draft there was nothing to vote on. Instead they decided to hold a referendum asking voters six vague and bland questions on what they wanted from the constitution (and yes, that’s exactly what the national forum was supposed to discover).

Again, the referendum was non-binding and Bjarni Benediktsson, the leader of the country’s largest party, the Independence Party, declared beforehand that he thought the exercise was undemocratic and pretty meaningless.

Voter participation was around 50% and two-thirds voted that they wanted a new constitution that was based on the draft written by the constitutional council.

The Independence Party immediately declared that even though it was clear that voters wanted some kind of constitutional reform, it did not feel bound by the constitutional council’s draft since over two-thirds of voters had either rejected the draft or not shown up to vote. It was obvious from the debate in Icelandic news media that the referendum was going to be a completely ineffective tool for getting the Independence Party to support constitutional reform.

Which meant that the constitutional reform process was dead, because reform won’t get anywhere without the support of Iceland’s largest political party. The Independence Party is guaranteed to be one of the major parties in Iceland’s next government (most polls show a distinct swing to the right among Icelandic voters) and, remember, to change the constitution you need to pass the changes as a law in two separate parliaments with an election between. Even if the government had pulled its thumbs out of its ass, completed the process of turning the draft into a proper proposal and passed the law, the proposal would have died after the election at the hands of the Independence Party in the next government.

The only thing that the autumn 2012 constitutional referendum accomplished was to prove that the new constitution was dead.

But that’s not how foreign media reported it.

The government still had the chance to pull off an ideological victory of sorts. They could have completed work on the draft and passed the law proposing the change to the constitution. That would have forced the next government to address the issue directly and made sure that they would have had to explicitly reject the new constitution at the start of a new parliament.

But, no, they couldn’t even pull that off. The end of the current parliament grew nearer and nearer and the constitutional process didn’t show any life to speak of.

Until, at the last moments before the end of parliament, the government proposed an amendment of the current constitution with the intent of making it a bit easier to change the constitution. This amendment, which was passed in the last hours of the parliament, means that, if passed again by the next parliament, they will be able to change the constitution by ‘just’ passing a law with a super-majority in parliament (two-thirds of MPs have to vote in favour) followed by a referendum where over 40% of registered voters approve of the change. (So, if voter participation reaches 80%, over half of those who show up have to vote in favour.)

This amendment was passed with the slimmest of majorities in parliament, 25 votes out of 48, and would not have qualified as a change to the constitution under the rules it proposes.

It’s up to the next government to pass this amendment after the next election to finally ratify it as a constitutional amendment and then use it to do the reforms the constitution badly needs. They may or may not do this. It depends largely on the attitudes and priorities of whichever party ends up in government with the Independence Party (probably the Progressive Party) but the work of the constitutional council is now completely off the table.

Even if this amendment passes, Iceland’s crowd-sourced constitution is officially dead.