One aspect of the constitution that has been expanded substantially in the council’s proposal has to do with the rights of citizens. While noble in their aims, these proposals strike me as unnecessary at best and troublesome at worst. Why?
Why unnecessary? Well, none of the rights included in the amendments strike me as controversial – these are more or less things that all icelanders believe are rights already (if this was the US constitution things night look a little different). So really this is just fluff…more or less. And pretty harmless as such. So if it makes is feel good about ourselves, why not include these amendments?
Well, some of these can actually be seen as being closer to policies than rights. Like the right to free education. The proposed article, Article 24, in rough translation, is:
“Everyone shall be guaranteed by law the right to general education and instruction suited to them.
Everyone subjected to compulsory schooling, shall receive the opportunity of receiving free education.
Education shall aim at everyone’s general development, critical thinking and awareness of human rights, democratic rights and responsibilities.”
Now, you and I may agree that this is in general a good idea. But it is not inconceivable that future generations may think differently – they may come to the conclusion that the private sector is better at providing education, that paying for education creates elicits more effort from students (or their parents), etc. Maybe it is a crazy idea that future generations might think differently. But if that is the case then there really is no need to include the clause in the constitution. The point is that either the proposal ties the hands of future generations, i.e., in the future a minority will be able to hold on to the right of free education even if a large majority prefers a different form of educational provision, or it doesn’t matter at all. The article is not only about the right to education, it is also about how that education is delivered. In my view these should be separated. The right to education should be guaranteed (probably) in the constitution but how it is delivered should be left up to the government, or the people, at any point in time.
I’ve only picked on education here as an example – similar arguments can made about several other clauses in the constitution. And, for the record, I do think education should be free. I just don’t think it is something that belongs in a constitution. Overall, I get the sense that not enough thought has been given to what belongs in the constitution, i.e., what really constitutes rights – things that we really believe future governments shouldn’t be allowed to change without much difficulty, and what doesn’t, i.e., general public policies. A constitution that limits the choice of future generations to change policy doesn’t strike me as terribly democratic.
A second issue with Article 24, and many others, is that it makes a reference to laws that are supposed to spell out in greater detail the rights of citizens or the implementation of those rights. Now, I may sound like I am contradicting myself here, since I just argued that these things should be determined by regular laws. However, the things to be provided by regular law often seem quite fundamental, e.g., “Everyone shall be guaranteed by law the right to general education and instruction suited to them” sounds very much crucial to what the right to education constitutes. That is, a regular law will presumably spell out what ‘general education’ and ‘ instruction suited to them’ means. To me, ‘general education’ could mean something as little as reading and writing. What on earth does ‘instruction suited to them’ mean? Who determines what instruction suits me? Can I sue the government if I receive education that I don’t think suits me? I’m not sure whether vagueness of the article renders it meaningless or if it will result in a slew of lawsuits centered on whether the law is constitutional, i.e., whether the government is indeed providing ‘general education’ and ‘suitable instruction’.
Many of the articles in the chapter on human rights share these characteristics: Articles 11, 12, 13, 14 (to some degree), 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 25, 27, 33, 35, and 36 all rely, to a varying degree, on legislation to both further define the rights being addressed and how they are to be protected. I’ll happily concede that in some of the cases this is probably a minor issue but in some instances I’m not so sure. So in sum, at best,I think the majority of the clauses are largely meaningless. At worst, I think they may cause some real problems in the future and, as a result, they will serve to strengthen the judiciary, which will be called upon to rule on the constitutionality of the government’s legislation. And, because, these articles tend to be fairly vague, the judiciary will have considerable leeway to interpret them as it sees fit and in effect make public policy in areas such as education and health. That doesn’t strike me as very democratic.
A couple of things that I’ll just mention briefly. First, I have assumed in the above that there is a neat distinction between ‘rights’ and ‘policies’ and that the former belong in constitutions and the latter don’t. Whether such a distinction really exists, I don’t know – not all of the human rights here have always been considered human rights. Maybe the only difference between the two is that there is a general consensus about ‘rights’ but not (necessarily) about policies. I don’t know. I’ll leave that to the political philosophers. Second, many constitutions have promised a number of rights, e.g., the right to education, that the state has not been able provide. One may worry about the effect of constitutions promising more than the state can feasibly deliver, i.e., if the constitution is violated and nothing can be done about it, might that not undermine the legitimacy of the whole document? Now, Iceland is a wealthy country that is perhaps less likely to run into such problems than many of the countries that have found themselves in such situation but, still, Article 23 promises “Everyone shall be guaranteed by law the right to the best mental and physical health possible” (“Allir eiga rétt til að njóta andlegrar og líkamlegrar heilsu að hæsta marki sem unnt er”).