· About 10 minutes read

The Constitution so far

There’s been a lot of bad information floating about the Internets, mostly after a slightly misleading Guardian article a couple of days ago. I really wish people would try to write articles based on their understanding, rather than trying to fit the information they have to a preconceived idea, but that’s the way the media works I suppose.

The Icelandic Constitutional Council has now been operating for around two months and the new Icelandic constitution is coming together. I just got confirmation today that there will be an extension of one month, but it’s not a lot of time though since the completed text is supposed to be ready by the 16th, after which only minor changes will be made. On the 17th of June – Iceland’s Independence Day – IMMI, Clara, the Icelandic Constitutional Society and a few other groups, along with some members of the constitutional council, will be meeting at the Clara offices in Reykjavík to work on threat modelling the constitution.

So far, there are a number of very unusual things about how this constitution is coming into existence, almost all of them good. I had some worries early on, including the potential for heavy special interest lobbyism, but none of my worries have materialized so far. I’m going to try  and explain the process to some extent, but it’s complicated, so bear with me…

The demand for a new constitution started a long time ago, but in the run-up to the bank crash of 2008 the voices got louder. Our constituion, from 1944, was originally adopted with a clause saying it should be revised no later than 1945. That never happened. It has since been amended several times, including the 1995 change to include a human rights chapter. Despite that, there are several logical and structural inconsistencies that people wanted to fix.

Working on the design pattern of a meeting held by the Anthill Collective in 2009 testing a new type of participatory democracy forum, a meeting of 1000 randomly selected people was held by the government last November where the basic guideline for what the constitution should become was laid out. I did a writeup of one of the first trial runs for that here, but couldn’t attend the forum because I was abroad (besides, I wasn’t selected). This National Forum yielded a number of statistical aggregations showing the spectrum of views on various subjects as well as strong distilled statements on the subjects of justice, wellbeing, human rights, equality, nature, division of power, and many other things. This is the portion which has been referred to as “crowdsourcing”, but as you can see it’s only a partial crowdsourcing – just seeding the process with input, not completing the process.

After this, as granted by a law set earlier in 2010, a popular election for a special constitutional assembly was held. It had 523 candidates, including myself, running for 25 seats. The rule was actually that if there was a strong gender difference more seats would be added to balance out the sexes, although never more than 6 seats.

These elections were by far the least politically charged, erudite, civilized and sensible election campaign I’ve ever seen, with candidates teaming up to petition the state broadcaster to provide better coverage of the elections and pressuring the government conduct affairs in an appropriate way.

The result of this was the smallest voter turnout in Icelandic history, roughly 37% – in comparison, parliamentary elections here have a typical turnout of roughly 85%. However, with 37% of the electorate there’s still, ironically, more votes behind each potential member of the constitutional assembly than behind a comparative parliamentarian.

The election also marked the first time Single Transferable Vote was used as an election system in Iceland, a great move in the direction of individual over party voting, and from the results we can see how great a wrench it threw in the social mechanics of the country, when suddenly the powerbases that are the political parties got marginalized. Many claimed that it was a failure, but I disagree.

The only failure was that of the state, which spent virtually no effort in explaining this system, and many, including Illugi Jökulsson, who ended up winning a seat, wrote long and poorly informed rants about how unreasonably complex the STV system is. I contended at the time that anybody who didn’t understand STV was probably not going to understand the nuances required to write a constitution; perhaps a bit technocratic of me, but I still believe I’m right on that count.

I had been working with mathematician and former Icelandic chief of energy affairs Þorkell Helgason prior to the election, running simulations on the election under various different sets of assumptions and running trial elections in focus groups, to try and get rid of the kinks in the presentation and make sure that the “user interface” was simple enough. Then both Þorkell and I decided to run in the election, at which point we extracted ourselves from the process so as not to create any conflicts of interest. He won a seat, I didn’t. As a side note to that, I never billed the parliament for that work.

After the results were in on December 1st, a lot of discussion got going as to whether the results reflected a populistic result. I had originally expected very unpopulistic results, but was surprised when the majority of the seats were filled by well known public figures. I believe that part of that is due to the overwhelming number of participants in the elections, but also to the fact that there was very little airtime given to candidates so although within the group of people that was most interested in the elections there was a lot of erudite debate, surprisingly little of it filtered through to the general public. Mostly older people showed up to vote, and voted for people they recognized. Despite that, the council has been doing a great job.

Now, I’ve alternated somewhat between the use of the term “council” and “assembly”. This is not an error. See, the council was not elected. This may come as a surprise, given the fairly in-depth discussion of the elections, but in fact the story became more complicated after three of the candidates, all of whom, I am told, are affiliated with the Independence Party (I cannot independently verify this), took the election results to court.

I was sitting in a meeting with the minister of Interior, Ögmundur Jónasson, several months later, discussing the issues of opening up Iceland’s communications infrastructure, when an aide came in and told him that the prime minister wanted to talk to him right now about something urgent. He returned a few minutes later and said he had to cut the meeting short, as the constitutional assembly elections had been judged as illegal. It’s always really fascinating to see how things happen on the inside. Anyway, this was my first taste of what can only be called an unprecedented and unusual court verdict which invalidated the results of the elections due to six minor technicalities, none of which was actually reasonable.

Now, having read the verdict, I cannot say with a straight face that it was grounds for dismissal of the entire elections. Sure, a slap on the wrist, and the election committee definitely should have resigned – in fact, they did, only for their chairman to be reinstated a few weeks later, but none of the issues were grave enough to actually invalidate the entire elections. One of the issues was that the voting booths didn’t reach all the way to the ceiling, so it was conceivable that anybody well over two meters tall could have possibly seen over the booths, and if said person had also had alarmingly good vision he might have seen some of the small digits being written on the ballot. Suffice to say that almost all of the judges in the supreme court were appointed by the political party that opposed the constitutional assembly.

The Icelandic Constitutional Society has an ongoing fundraising project to have the court verdict translated into English by a registered translator, so that the world can marvel at this alarming abuse of power. Please support that effort so that you don’t have to take my word for it.

Anyway, this of course caused a fair deal of ruckus. Parliamentary committees discussed the issue for a bit and it ended with a parliamentary decision to scrap the democratically elected assembly, as conducting a second vote would be too costly, and instead replacing it with an appointed Constitutional Council. Coincidentally the same people were appointed as would have won the election had it been deemed legitimate. Seriously. I’m not sure I could make any of this up. This may seem fairly crafty, but to me it stands out as a pretty bad scar on a process that is otherwise incredibly important and unique in the world’s history… oh well.

The good news is that when the council finally convened, it made a lot of very sensible decisions right off the bat. The Council decided, for example, to use agile development methods to create the constitution. Splitting the council into three committees which focus on different aspects of the constitution, they’ve structured their activities so that on Mondays and Tuesdays they meet in parallel, on Wednesdays they meet serially (so that everybody has a chance to audit every committee’s activities), and on Thursdays they have Council meetings where results are presented, deliberated, and eventually adopted. Fridays are freeform days which allow Council members to focus on other aspects of the work.

They have a form on their site for accepting suggestions and comments, as well as monitoring Facebook and Twitter, have all their meetings open to the public and webcast them. I haven’t been fortunate enough to have time to attend any meetings, but I’ve watched all of them on the webcast and sent a bunch of comments, which have then been taken into consideration, so I’d say that the system is working.

Now, as I previously mentioned, there are ideas about doing a threat assessment of the constitution before it is put to referendum, so as to eliminate internal inconsistencies and other problems. See earlier links for details, or I can comment further on a later date.

What’s been made and adopted so far is phenomenal, in my opinion, and shows a very clear progression towards what is probably not the best possible constitution, but very likely the best constitution ever made. I don’t like everything that’s in there, and have complained about some articles both publicly and privately. Hopefully a lot of it can be ironed out. Also, some controversy has emerged over the issue of whether or not to include a state church in the constitution. It is entirely incompatible with reason for there to be state sanction of one religion above others, and over 70% of Icelanders support disestablishment, so hopefully it’ll end up being fixed in due time.

In the meantime, we’ve got the Etherpad translation up, and a bunch of text on the support project that’s doing the analysis. Anybody is welcome to help.

I hope this clarifies some of the process for people. Please feel free to post questions if there are unclear points.