A Review of Iceland’s Draft Constitution from the Comparative Constitutions Project

–Zachary Elkins, University of Texas; Tom Ginsburg,University of Chicago;                James Melton,University College London

On the heels of an extraordinarily interesting experiment in constitutional design by crowdsourcing, Iceland is headed to the polls this week to test the public’s reaction to the draft constitution.  This draft is a proposed revision of the 1944 document, which was motivated in part by recent economic instability. The draft was produced by 25 citizens elected by their peers.

The non-binding referendum on Saturday will include six questions, which ask voters for their general opinion of the draft as well as their opinion of particular elements such as the provision for natural resources, the role of the church, the electoral system for the legislature, and a provision regarding national referenda on legislation.  Using data from our Comparative Constitutions Project we analyzed the draft constitution in a report available here.  Our focus is on identifying novel or atypical elements of the draft and situating the draft’s provisions with respect to those of both current and historical constitutions, including the Icelandic document of 1944, as amended through this year.

Some highlights from the report:

The draft produced by the commission is based on the 1944 Constitution, which itself has been amended several times.  But there are a few notable differences between the two documents. The draft does not define the Evangelical Lutheran Church as the state church, instead leaving the matter to be decided by law. Any change to that provision will have to go before the public in a referendum.  There are also sections on local government and foreign affairs that are entirely absent from the 1944 constitution.  Article 111 of the latter section, notably, requires that a binding referendum is required prior to “entry into international agreements that include the devolution of state power to international institutions,”  a clause that gives Icelandic citizens a veto on any attempt at integration into the European Union.

Elements of direct democracy appear throughout the proposed Constitution.  Like the 1944 Constitution, the draft allows the public to vote on bills that have been returned to the parliament by the President,[2] but the draft also allows public a role in the determination of a state church and the approval of certain treaties. In addition, 10% of voters may demand a referendum on any bill within three months of its passage (Art.65), subject to certain exceptions listed in Art 67 (e.g. the budget). Voters may propose bills to the parliament (Art. 66).  The parliament can presumably accept the proposal or put up a counter proposal for public referendum.[3] The public is also involved in approving removal of the president by parliament (Art. 84) as well as constitutional amendments (Art. 113).  Candidates for president must have the prior endorsement of 1% of voters (Art. 78). In short, the entire effort puts the public in conversation with their elected representatives.

The provision on natural resources, Art. 34, has been controversial because it states that such resources are the property of the state, and not available for sale to private parties. A licensing scheme is contemplated, with leases and licenses limited to a “modest period of time.”

The draft constitution states that the form of government would be that of a parliamentary democracy.  The system of executive-legislative relations is probably more similar to what political scientists categorize as “semi-presidentialism,” in that there is a directly-elected executive who maintains non-trivial amounts of power as well as a prime minister.   In this sense, the draft is very similar to the previous Icelandic constitution, which had carved out a rather unique balance of power among three executives: (1) a largely symbolic President of Iceland, (2) a prime minister who heads the cabinet, and (3) a President of the Althingi (legislature).

Our report analyzes the draft constitution with respect to some of basic comparative dimensions. We find that it is relatively general; has higher levels of legislative power and lower levels of executive power relative to the 1944 Constitution; is one of the most inclusive documents in history in terms of the extent to which citizens are incorporated into decision-making;  and expands the number and type of rights. The old constitution contained 24 rights from our list of 74 possible rights found in constitutions, while the new draft has 31 rights.

Table 1 summarizes the enumeration of rights in some detail.  We mark those rights that are included in both the draft and current Icelandic constitutions, as well as the distribution of that right across all national constitutions written in specified eras.

Table 1.  Rights Provisions in Iceland’s Constitutions

In terms of life expectancy, we note that national constitutions generally do not last that long.  In a book we published recently, The Endurance of National Constitutions, we found that for all national constitutions, the median life expectancy is 19 years, meaning that it will likely be suspended or replaced after that period.  In that sense, the 1944 Icelandic constitution has outlived expectations.  Still, the 1944 draft has a few attributes in its favor (namely, its flexible amendment procedures and relatively inclusive attributes – two key risk factors) and, in fact, our actuarial model predicted a 50-year lifespan for the document.  If the current process goes forward on schedule, the 1944 document will have lived for 69 years.  For what it is worth, the proposed draft has an even longer life-expectancy of 60 years, taking into account its various provisions.  Of course, this is but an estimate and we make it based on its textual elements alone.  Still, drafting the right text has been found to be surprisingly important for constitutional mortality.

To sum up, Iceland’s constitution-making process has been tremendously innovative and participatory, which we predict will enhance its endurance.  Though squarely grounded in Iceland’s constitutional tradition as embodied in the 1944 Constitution, the proposed draft reflects significant input from the public and would mark an important symbolic break with the past. It would also be at the cutting edge of ensuring public participation in ongoing governance, a feature that we argue has contributed to constitutional endurance in other countries.