Last week the Icelandic Supreme Court ruled the election to the Constitutional Assembly null and void. One can naturally debate the reasons the Court cited (various administrative errors, e.g., ballot boxes not having locks) but I’m not particularly interested in arguing about those. The interesting question, of course, is “What now?” One option is to simply hold the election again. Another option that has been voiced is to do without an election and having parliament simply appoint the members elected in the voided election.
While the latter option has the benefit of being far cheaper, it strikes me as a bad idea. And I say that even though I think it unlikely that the flaws in the administration of the elections influenced the outcome. I think it is very likely the outcome of a new election would be very similar to the voided one. Then, why bother? The reason is that a constitution is just a piece of paper. To a large degree, constitutions only matter because people accept them as prescribing the rules of the game. This may sound strange to Icelanders where discourse about the constitution has always had a very legalistic tone – the question that is always asked is what the law (or constitution) says. This, in my opinion, is a fundamentally wrong approach to thinking about politics and how to set rules of the game. One doesn’t have to look far to see why the legalistic approach falls short. According to the Icelandic constitution, the president has a legislative veto. However, article 13, “The President entrusts his authority to Ministers” and for about six decades no president exercised the veto power. But one day the president did and effectively transformed Iceland from a parliamentary system to a semi-presidentialist one. Admittedly, as the discourse about the use of the veto highlighted, this was an instance of an ambiguity in the relevant constitutional provisions rather than a political actor choosing to violate the constitution but it highlights the fact political interests, and opportunities, shape how political actors choose to interpret constitutions. Again, this was not an instance in which a political actor chose to break constitutional provisions (although some legal scholars might consider that to be the case) but one of the reasons we haven’t seen that happen in Iceland is that everyone accepts that the constitution sets the, sometimes ambiguous, rules of the game.
So, the question is what would politics be like if not everyone accepted the rules of the game provided by the constitution? I don’t know the answer to that but I would be inclined to err on the side of caution. And this means holding another election. If parliament decides to appoint the members elected in the voided election it would only serve to undermine the legitimacy of the constitutional assembly. It may be the case that it is a fairly small minority that really considered the administration of the election serious enough to void and even that the case was brought for political reasons but that is largely irrelevant. It is simply important to build a broad consensus about process of drawing up a new constitution. Undoubtedly there will be disagreements about the constitution that is produced in the end but it will not help if the process is seen as lacking legitimacy.
Rather than seeing this as a step backwards, it should be seen as a new opportunity. Parliament will, presumably, need to write a new bill to establish a constitutional assembly and, this time, maybe they can do it right. As I have argued in previous posts, it is nothing short of ridiculous to give the constitutional assembly only two (or four, if extended) months, to come up with a new constitution. Its members need to have time to learn about how political institutions work if they are to do a decent job.