The constitutional assembly is charged with the addressing eight aspects of the constitution (from the law on the Constitutional Assembly found here: http://stjornlagathing.is/other_files/2010/doc/Act-on-a-Constitutional-Assembly.pdf):
- The foundations of the Icelandic constitution and its fundamental concepts;
- The organisation of the legislative and executive branches and the limits of their powers
The role and position of the President of the Republic;
The independence of the judiciary and their supervision of other holders ofgovernmental powers;
- Provisions on elections and electoral districts;
Public participation in the democratic process, including the timing and organisationof a referendum, including a referendum on a legislative bill for a constitutional act;
Transfer of sovereign powers to international organisations and the conduct of foreignaffairs;
- Environmental matters, including the ownership and utilisation of natural resources
There are a number of things to note about this list. First, I’ll come clean – I don’t understand what the first item in the list refers to (even in the Icelandic version of the bill). I’m guessing this refers to the basic values the constitution is intended to uphold.
Many of the eight items have roots in recent political events/debates (to a varying degree). For the benefit of any non-Icelandic readers, I’ll briefly list those – the rest of you can skip to the next paragraph (or read it and correct me in the comments). The second and third issue are rooted in the controversy surrounding a law on the ownership of the media that the previous government forced through parliament and was subsequently vetoed by the president. Parliament’s lack of influence was not exactly front page news but the episode highlighted its weaknesses but the president’s use of his veto power certainly was. The sixth, direct democracy is also related to this episode – it doesn’t sound very democratic to take away the president’s veto (which is then subject to a referendum). It is difficult to justify taking away the president’s veto without giving citizens another way to vote in a referendum. The fourth issue, the independence of the judiciary, is probably rooted in increased judicial activism over the last decade. The sovereignty and foreign policy issue touches on Iceland’s application for EU-membership and also, I suspect, Iceland’s decision to join the coalition of the willing without allowing parliament’s foreign affairs committee a chance to have its say on the matter. The eight, the ownership and use of natural resources, is not exactly a new issue – it goes back to the adoption of a quota system for the fisheries but in recent years it involves to a greater degree aluminum smelters, hydroelectric power plants, and a sense that Iceland’s nature is being sacrificed for largely foreign industrial interests.
It is quite natural that the focus of the revision/rewriting of the constitution is on those of its aspects that have been perceived to have lead to controversy or are related to what some see as undesirable policy outcomes. It is also unfortunate that this is the case – it invites the risk that perceived solutions will be guided at solving particular policy problems rather than being guided by general principles. In other words, although it is possible that people may disagree with me on this point, constitutional amendments should not be about policy but, rather, provide the framework within which policy is to be made. One argument in favor of this interpretation of what a constitution is, or should be, is that enshrining a policy in constitutional law gives it a special status – not just in normative terms but also because (most) constitutions are protected from changes to a greater degree than regular laws. That is, they tend to be quite a bit harder to change. I suspect few of us would, e.g., think it wise to the income tax rate in the constitution. Changing situations, including changing preferences, call for some flexibility in determining the tax rate. For this reason, I remain skeptical about the desirability of addressing issues such as the use of natural resources in the constitution. Take the adoption of the quota system for the fisheries. It seems quite plausible to me that the quota system introduced considerable efficiencies into the fishing industry and that it may have helped prevent a collapse of the fishing stock around Iceland (which is not to say that it was fair with regard to the effects it had on redistribution of wealth – that is a different issue). Now, if the use of this natural resource had original been addressed in the constitution it might have prevent the adoption of the quota system with potentially disastrous consequences. It might have to lead to a ‘fairer’ distribution but it might have left very little left to distribute. To be clear, my point here is not about the quota system but, rather, by using the constitution to set policy we reduce our ability to react to changing circumstances. It may seem like a good idea today but who knows what the future will look like.
Adopting constitutional remedies to policy problems is not necessarily a good idea. That is not to say that there are never circumstances in which policy matters should be addressed in constitutions but they should probably be restricted to, e.g., fundamental values such as human or political rights. That is, values that we can be fairly sure won’t change over time. Of course, it that is the case, it is not clear that they need constitutional protection to begin with. Perhaps the key point is that constitutions aren’t particularly democratic. That may seem counterintuitive but because constitutions are more difficult to change than regular laws they protect the views of the adopters of the constitution but bind the hands of future generations. Or rather, supporters of the status quo will be better able to protect their positions – even if majority favors change.
The second reason that it is unfortunate that recent controversies/policies motivate the revision of the constitution is that instead of taking a broader view of where a particular institution succeeds and where it fails, the danger is that the focus is solely on the latter. Now, we may have disagreed with the president’s decision to use his veto on the law on the owner ship of the media or the Icesave bill – the two instances the veto has been employed. My worry is that people may not be able to separate the substance of those two bills from the veto as a political institution or power. The merits of the presidential veto should be evaluated on the basis of how it is expected to influence politics and policy. Strong veto powers, combined with the president’s constituency corresponding to the whole nation, have, e.g., often been argued to be an effective tool against inefficient pork barrel politics – so perhaps the presidential veto powers should be strengthened rather than weakened. Again, I’m not arguing for stronger veto powers but the case for or against a presidential veto should be built on careful analysis and examination of the experience of other nations rather than one the veto’s surprise resuscitation in Icelandic politics or the substantive issues that were at stake on the two occasions.
This is perhaps especially worrisome given that the proposals of the Constitutional Assembly must be adopted by parliament whose members are likely to have considerable stake in the outcome (and probably have stronger opinions about the political events mentioned above). Of course, the process of amending the constitutions makes this unavoidable – constitutional changes must be passed by two parliaments with an election held in the interim. The hope then is that the Constitutional Assembly will be seen a as legitimate actor in proposing amendments – to the extent that parliament’s scope to amend the assembly’s proposals will be limited. I think two factors are crucial in achieving that status for the Constitutional Assembly. First, it must engage in a real debate about proposed constitutional amendments that relies on actual evidence about the functioning of political institutions. Second, it cannot be perceived as an agent of particular interests or parties – in which the election to the assembly is crucial. It, therefore, strikes me as unfortunate that some of the candidates running for a seat on the Constitutional Assembly have (or have had) ties with parties. These individuals, of course, have every right to run for the Constitutional Assembly but in effect it may undermine the whole process and reduce both the Constitutional Assembly’s scope of influence and the possibility of real conversation about what a good constitutions would look like.