Iceland: a never-ending constituent-making process

As a consequence of the financial crash that involved the default of all three of the country's major privately-owned commercial banks in late 2008, the demand for a radical constitutional change grew among Icelandic society, and the leftist government of Johanna Sigurdardottir assumed the challenge by triggering in

“New constitutionalism” & constituent power 179 2009 a process to replace the 1944 Constitution.³’⁴ The independent Icelandic republic had certainly never autonomously written a brand-new document matching the nature of an independent republic since the 1944 constitution focused on ending the Danish monarchy and was otherwise largely a copy of the 1874 Danish constitution (Bossacoma, 2020, pp.

The crisis opened the door to reviewing the pillars ofthe Icelandic constitutional framework under profound innovations concerning the amendment procedure. The reform was inspired by the view that the people, as constituent agent, should have a direct impact on the constitution’s contents and values without major involvement by the political parties (at least during the initial stages of the drafting). Deliberation and inclusiveness were intended to be the vectors to organize the new constitutional arrangements.

Shortly after the collapse of the Icelandic economy, a grassroots association calling itself“the Anthill” organized a large public event called a “National Forum” to discuss the future of Iceland. This National Forum gathered 1,500 individuals most of them randomly selected from the National Population Register, in a one- day exercise that consisted of articulating the values and priorities that should guide the renewal of government and public administration (Landemore, 2020, p.

Indeed, on June 16, 2010, Parliament had passed the constitutional act initiating the constitutional revision process and providing the shaping of a Constituent Assembly in charge ofwriting the constitutional draft. On November 6, 2010, a Constitutional Committee appointed by Parliament organized the aforementioned second National Forum, which encompassed 950 randomly selected citizens tasked with establishing “the principle viewpoints and points of emphasis of the public concerning the organization of the country’s government and its constitution” (Landemore, 2015, p. 170, and 2020, p. 183; Suteu, 2015, p. 261). The National Forum’s report constituted the starting point for the deliberation ofthe Constitutional Assembly, with 25 members from 522 candidates elected on November 27, 2010. The elections to the Constitutional Assembly showed, however, the first cause of disappointment in the constituent process: only 37 per cent of the electorate turned up at the polls (Thorarensen, 2017, p. 107). Such low turnout, much lower than for the elections of candidates to the legislature (which generally exceeds 80 per cent) was not certainly the best credential for a constituent process supposedly characterized by “the exceptional mobilization” of the people, to say it in Ackermanian terms.

Among the reasons suggested for the low turnout in the Constitutional Assembly elections was that the large numbers of candidates in the election made it difficult for voters to pick candidates from the great number of mostly unknown people (Thorarensen, 2017, p. 107). As the candidates had no connections with political parties and acted solely in their own personal capacity,

it was likely to be difficult for voters to assess what policies they advocated. Such detachment of the candidates to the Constitutional Assembly from the political establishment, considered as a cause that might explain the low turnout, maybe suggests that even in constituent moments popular mobilization requires some sort of relation between the constituent agent and the immediate political debates developed by the representatives.

Beyond the problem of the low turnout, the elections to the Constitutional Assembly had to surmount an invalidating ruling of Iceland's Supreme Court since a request concerning the candidates' legitimacy was held (Saunders, 2012, p. 6). The election of the Constitutional Assembly was disputed on the grounds of various alleged electoral defects in its execution, among them the violation of the right to vote by secret ballot (Thorarensen, 2017, p. 108). The 25 delegates originally elected were, on March 24, 2011, nevertheless, appointed by the Parliament to a body, whose name had been changed, called from then on the “Constitutional Council,” which was given the same consultative role as the Constitutional Assembly had been intended to perform (Contiades and Fotiadou, 2017, p. 20). This decision by the Parliament was severely criticized by the opposition parties in the Parliament arguing that it constituted a circumvention of the decision of the Supreme Court (Thorarensen, 2017, p. 108). The change of the name would not cancel the problems of legality and legitimacy in which the creation of that institution incurred.

The Constitutional Council, however, convened and began to work. The Council basically sought (1) to inform the public of its progress, (2) to encourage public participation, and (3) to make suggestions as discussions went forward (Suteu, 2015, p. 262). For these purposes all sorts of social media were used including Facebook, Twitter, YouTube, and Flickr (Meuwese, 2013, p.

The Council's proposals were unanimously approved by all delegates on the council and submitted to the Althingi as a bill for a new constitution of Iceland at the end of July 2011. In the Parliament parties did not move much in terms of the next steps to be taken on the bill. Instead of preparing and processing the constituent task further, the bill was referred to one of the parliamentary standing committees which blocked the process for more than a year (Thorarensen, 2017, p.

109). Since the Parliament was strongly divided by the constitutional revision issue (a bill proposed by the Council with no intervention by Members of Parliament - MPs) it was likely that the political establishment opted for the typical option taken when the representatives do not want to go forward with something: sending it to a committee. In the end, however, the majority of MPs in the governing coalition parties decided to hold an advisory referendum on the original proposals on October 20, 2012 (Landemore, 2015, p. 170). Six questions were posed in this referendum, including “do you wish the Constitutional Council's proposals to form the basis of a new draft Constitution?” (Suteu, 2015, p.

110). It should be underlined that the Council's proposals were submitted to the Venice Commission which issued a report expressing serious doubts about such constitutional proposals.⁵ The Venice Commission saw a risk of political obstruction and instability that could undermine the country's good governance (Landemore, 2020, pp. 190-197).

Despite the results of the advisory referendum, political parties were unable to fully consider the draft before the general election in April 2013 (Bergsson and Blokker, 2014, p. 165). The bill with the constitutional proposals had been discussed twice in Parliament before another bill was passed in March 2013 which effectively postponed the third and final discussion for the new legislature which was going to be voted on that spring. Total constitutional revision needed a final and favourable vote of the Althingi to be passed. However, such a vote never occurred since in the mentioned elections on April 27, 2013, the conservative parties opposed to the new constitutional arrangements won a majority of seats and paralyzed the process (Landemore, 2020, p. 184).

The resignation of the conservative Prime Minister, Sigmundur David Gunnlaugsson, in April 2016, the problematic dissolution of the Parliament, and the elections that finally were held in October 2016 did not invigorate the debate on the constitutional revision mainly because in spite of the fact that the forces which took power in January 2017 accepted some kind of constitutional changes, they disagreed about the character and the intensity of such changes (Helgadottir and Ingolfsdottir, 2017, p. 3). Again, the supposed “extraordinary politics” attached to a constitutional transformation were subordinated to the fate of the day-to-day democracy developed by the representatives of the Parliament.

In spite of such disagreements, among the three parties the 2017 coalition agreement stated the commitment to carrying on the work of revising the Constitution on the basis of the previous contributions but remarking the central role of the Parliament in the process: the work on the draft had to be mainly developed in a parliamentary committee. However, the Icelandic Government formed in January 2017 was disbanded after only eight months in power, due to several scandals affecting the Prime Minister Bjarni Benediktsson, and new elections were held in October 2017.

A new coalition government was concluded under the leadership of Katrin Jakobsdottir between the Leftist-Green Movement (a left-leaning socialist party), the Progressive Party (centre), and the liberal conservative Independence Party. The mentions of constitutional change in their agreement were still scarcer than in the previous political phase. Nevertheless, in January 2018, Prime Minister Katrin Jakobsdottir announced a new effort towards constitutional reform in Iceland, but on this occasion, it was planned from the outset that the constitution-making process would take a long period of time (seven years, two parliamentarian terms) in order to ensure a broad social and political consensus around the reform. Jakobsdottir's initiative envisaged the reemergence of innovative public consultation means but the cornerstone of the proposal relied on recognizing the centrality of the Parliament in the whole process. The failure of the 2011 drafting process revealed that constitutional change would not have any prospect of success if it does not couple the public engagement expressed in innovative channels of participation, with the will of the political representatives in the existing institutions.

Aside from the evolution of the process and its possible conclusion with a “holistic reform” of the Icelandic Constitution, the constitutional product is not likely, however, to come from “a revolutionary moment” nor to represent a constitutional transformation, either, as shortly after, the economic crisis appeared to be the case. In the new horizon of the revision process, the key decision body has been placed on a committee composed of the leaders of the parties with representation in the Parliament in a way that although it makes the parties the central players of the process, thereby increasing the likelihood of ratification of the draft, it also increases the likelihood that the changes will be minor and that the input from the public will not have a significant impact (Hudson, 2018).

In the Icelandic case, some paradoxes might be observed: despite the support for the new constitutional settlement, the general election in 2013 was won by anti­revisionist parties. To some extent a part of the electorate which once supported the constitutional change from 2009 had, in the 2013 parliamentary elections, voted for the parties opposed to that change. Thus, the Icelandic experience shows that even the highest level of concern of public participation, mobilization, and deliberation on constitutional issues may lead to a stalemate, particularly if those

“New constitutionalism” & constituent power 183 opposed to the revision get the constitutional changes proposed watered-down or dissolved by the passing of time. The world's so-called first “crowdsourced” constitution-making (see Colon-Rios, 2012, p. 182; Landemore, 2020, p. 189; Saunders, 2012, p. 6; Suteu, 2015, p. 261) was a process in which the citizenry not only behaved with relative indifference (it participated less in the election to the Constituent Assembly than it did in parliamentarian elections) but, furthermore, voted for the representatives that proposed the abandonment of the initiative. If political mobilization regarding the claim of passing a new constitution had been strong enough, this demand would also have been translated into legislative representation. The lower turnout to both the November 2010 elections to the Constitutional Assembly and the October 2012 advisory referendum on the questions relating to the constitutional revision also confirm that Icelandic society was more concerned by other issues than constitutional reform or, more precisely, that it saw the opportunity to overcome the crises without the necessity to change the legal framework altogether.

Another contradiction of the Icelandic events arises from the subordination of the Constituent Assembly to the legislature. Instead of being led by “extraordinary politics,” it was “ordinary politics” which marked the tempo of the constitutional discussions. In spite of the initial financial shock, the constituent process never set out a complete replacement of the incumbent elites, the citizenry initiative to create a new constitutional order had to coexist with the representatives who finally managed to abort the attempt. Putting it differently: leaving aside the first expectations arisen while the Icelandic financial system was collapsing, the constituent process was never intended to be revolutionary - it was finally assumed that somehow the amendment of the rules in the existing constitution had to be respected including the fact that the Parliament had to hold the final word on the approval of a new constitution. The resignation with which the citizenry accepted that its proposals would need the final consent of the politicians may explain the apathy which progressively dominated events. Either way, the “crowdsourced” Icelandic constitutional process did not succeed in allowing “the People” to speak in creating a set of constitutional rules effectively passed.

The economic and social turmoil caused by the 2008 crash had not affected the grounds of Icelandic liberal democracy. Constitutional transformations and the appearance of the constituent power as we understand them are not likely to occur within stable contexts, meaning that the decisions on the allocation of power are not questioned at the most fundamental level.