By Richard Bater
Iceland’s fate epitomizes
the tragedy of ‘constitutional democracies’ as they have been variously practiced and imposed in recent times: whereby the writing of a constitution by the people is considered the revolutionary exception, and not the rule.
Never before has a ‘peacetime’ state constitution been drafted by an Assembly of ordinary citizens. Never before has a constitution’s fundamental
values framework been ‘crowd-sourced’. Never before has a constitution been produced under the intense gaze of a population, scrutinising each draft as it is uploaded onto a website, watching meetings beamed live on the internet, with publics relaying feedback for improvement in real time.
Never before has so much been at stake in the peacetime re-drafting of a constitution in such circumstances, and never before have citizens had such a stake in the process of its creation. Never again can the world be told by the custodians of the old that the people cannot be relied upon to write the contract between citizens and government, and write it well.
In what follows I hope to make up for the faintly patronising tone struck by other accounts dealing with this event. There are, I would argue, in fact, serious lessons to be learned from Iceland that may also be applicable to other, larger states.
Iceland embarked on this path to constitutional change not following a pre-planned strategy but, as always, driven by events; irreducible to one or the other, but each, nevertheless, crucial to shaping the course of action that has since come to pass, yet could so easily have been otherwise. Disbelief, awe, frustration, astonishment, horror, spooked with a simmering fury, strike the tone that seeps out of every seething pore of Andri Snær Maganson’s bestselling, well-researched, non-fiction tragi-comedic polemic – Dreamland (2006). The book (and subsequent film) lucidly sketches the corruption, the botched ‘privatisations’, the cosy relations of the financial-business-political (and media) complex, the unique processes of ministerial accountability, Davið Odsson’s uncanny ability to forever avoid participating in a parliamentary debate; as well as the concrete effects these arrangements have had for Nature whilst they have formed the ritualistic functioning of Icelandic government
during recent decades. Magnason held the Mirror of Truth to Iceland, and the reflection wasn’t pretty. Many already knew something was going
wrong, but had neither the energy nor the incentive to revolt.
In January 2008, as the magnitude of the crisis was becoming apparent, a lone Hörður Torfason began to sing protest songs outside the Icelandic parliament, day-in-day-out. Persistently, insistently, during the dark days of the Icelandic wintertime, he struck a rhythm in harmony with mainstream, hitherto (on-the-whole) silent, opinion, and contributed to drawing-out the profound disharmony between the population at large and the corrosive politics that had ruled elite Icelandic affairs, particularly since around 1991. Post-Soviet states have a term – ‘political
technology’ – to refer to its similar widespread, intricate gaming of politics; Iceland has the less vast but similarly corrosive ‘Octopus’.
Those responsible for the crisis number little more than thirty. But each weekend, as more and more people assembled outside parliament, the musician who would play protest songs became one among a multitude involved in the composition of a whole movement for change.
For the first time in living memory, Icelanders assembled en masse, each Saturday, with ever more disregard for elites, ever-intensifying anger, and ever-solidifying determination to force those responsible for the present out of command of their collective future. For the first time in post-independence history too, citizen discontent met elite dissatisfaction head on; the citizens whose day job was to occasionally perform as riot police, were commanded to restore ‘order’ by pepper spraying the protesters into retreat. The ethical order that had proven its failure, and now, with the turn to violence, complete absence of authority, came under unprecedented popular pressure. The government was forced to resign. The ‘Pots and Pans Revolution’, as it has become known in the media, is not a revolution strictly defined, but it did achieve the only government to be
forced out by popular revolt owing directly to the ‘financial’ crisis (other governments such as Greece and Italy have been forced-out too, but overwhelmingly by finance industry pressures), and this in no small way contributed to the constitutional change of today that has inspired movements around the globe.
The Social Democratic – Green coalition government, sworn-in on February 1, 2009, was led by Jóhanna Sigurðardóttir – a long-term advocate of constitutional renewal, ever-stymied in her attempts by the outright hostility to change both in the Parliament and Supreme Court. The twin-resistance of these institutions had more than a little to do with the existing Constitution itself that few objections to make with the ruling parties’ political, clientelistic appointments to the civil service and Supreme Court. The Alþingi’s (the Icelandic Parliament)
Constitutional Council had been tasked with re-writing the Constitution within a year of complete independence of Denmark in 1944. By 2010 (aside from a few amendments), the Council had failed to complete this (only) task entrusted to it, resulting in the situation that the citizens’ governing contract with the Republic of Iceland remained structured by a framework more appropriate to the monarchy of nineteenth century Denmark.
Why re-write the Constitution now? The leadership of Jóhanna Sigurðardóttir offers some explanation, but by no means all. It is demonstrative of the depth of the pathos (described by eminent constitutional democracy scholar Pasquale Pasquino) afflicting the Icelandic political elites that not only the people but also the politicians no longer trusted themselves to adequately re-write a Constitution that would attain popular legitimacy.
The government, too, located the source of the crisis not only in the risk-blind investment practices of the banks, their gargantuan leveraging-up of lending, their swelling of non-secured assets in an unprecedentedly short period, and their insider-trading; but also in the complicity of members of successive governments in these actions. In fact, as later revealed by the Truth Report, members of government actively engaged in insider-trading themselves; denied the economy was in a precarious situation, and funded propaganda campaigns to counter the diplomatic, yet
stern, warnings of the IMF and others, as far back as 2005.
The public was rendered blissfully unaware of the precariousness of the situation – crucial information was systematically withheld from the Prime Minister; committee meeting minutes and reports were ‘spun’ at best, or remained unpublished at worst. The paid-for press monopoly of Morgunblaðið, tight on funds and politically aligned to the governing parties, failed in its duty to critically investigate and make these, and other, issues public over successive years.
In sum, aside from profound ethical lapses in the interconnected financial-government-business complex (the ‘Octopus’), what drove the crisis and ensured that it would never be effectively resolved on behalf of the people, were numerous, symmetrical, systematic ‘failures’ in accountability structures. These enabled and institutionalised obscure, inappropriate relationships that engrained particular rationalities of rule into the functioning of government, as well as the routine concealment of information, compounded by an ineffective media that may otherwise have equipped the population with information to make informed judgments for themselves. The economic crisis was completely and non-accidentally
bound-up with the ways in which Iceland’s elites, particularly since the pseudo-privatisation of the fishing and banking industries, related to each
other and governed in, and for, their own interests – a political malaise bred economic malaise bred social malaise bred environmental malaise.
What happened next? The new coalition government resolved to repair the constitutional infrastructure that had failed the people to the ruination of the country, by competently rewriting it. Thus on June 16 2010, the Alþingi passed (despite the opposition of the previous governing parties) the ‘Act on a Constitutional Assembly’ – a historically-unique document that delegates the intensely legalistic task of writing a peacetime constitution to a group of citizens, supported by legal council.
What does Iceland mean today?
The Act established, first, a National Meeting in November 2010 with the purpose of crowd-sourcing the norms and values of the population of twenty-first century Iceland.
The meeting adopted a sophisticated process based on participatory democracy techniques practiced by ‘Agora’, an Icelandic company that specialises in arranging and advising on participatory democracy procedures for rewriting documents such as organisational charters. The
meeting was composed of fifteen hundred randomly selected citizens from around Iceland, and drew both on the experience of the National Assembly revived in 2009, and partly based on a (successful) speculative trial conducted on a small scale in January 2010 that focused specifically on the Constitution. Citizens were divided into small groups focused on particular themes (e.g. Human Rights), where each participant had the time and space to contribute meaningfully to the debate; to express opinions, ideas, and reach consensus. The aim of the meeting was to produce a bottom-up map of contemporary Icelandic values on particular constitutional matters – to establish the values framework within which the Constitutional Assembly (CA) would produce its draft Constitution. The Meeting collectively answered the question: what does Iceland mean in the twenty-first century?
Second, the Act initiated processes for the election of citizens to the twenty five-member CA. Any citizen was eligible to apply, subject to existing limitations on election to Parliament, provided they were not already elected members of the Alþingi, and as long as they were able to collect the requisite number of signatures to qualify for the shortlist. One potential shortcoming of this procedure, however, was that the elected were by and large already recognisable public figures. Nevertheless, they were chosen by the people for largely non-partisan reasons.
Following the CA election however, several members of the long-hostile opposition parties submitted a complaint to the (also hostile) Supreme Court regarding the legality of the elections. Their argument was that six (very minor) technicalities invalidated the entire election process, despite the technicalities having, at the maximum, resulted in the election of one candidate who should not have been, and who in any case voluntarily withdrew. The Supreme Court agreed (see: ruling here and thoughtful riposte here), and ruled the election invalid. The decision left the government with three options: a) to re-run the election at considerable expense; b) to appoint representatives to a Constitutional Council; or c) to abandon the whole procedure. The government chose to respect the result of the initial election and appointed the victors to the Council.
The Constitutional Council (CC) was sworn in, and was given three months (starting April 2011, later extended to four months) to write, from scratch, the Constitution, with the aid of a legal council. Councillors worked full time, and were paid the equivalent of a parliamentarian. The Council was completely self-governing – it elected a chairperson, and elected members to four sub-committees that were tasked with brainstorming statutes falling under their respective competences, within the values framework of the National Meeting.
In a non-descript office block in the suburbs of Reykjavík, day-in day-out the Councillors met, brainstormed, and reviewed their statutes. At a weekly meeting, the sub-groups assembled in a (televised) general meeting, and debated and agreed new submissions and amendments. Each week, the new draft was uploaded onto the website, and the Council actively encouraged letters, Facebook messages, and emails from the general
public, containing suggestions about how the document could be strengthened and improved; what should be added, what should be taken away. The composition of the Constitution process extended far beyond the bounds of the grey, concrete block in which it was written, to the living rooms, offices, and cafes of citizens throughout Iceland. The public’s submissions were actively considered and debated in the sub-group sessions, and on most occasions the correspondent received a human response.
The Council’s legitimacy did not draw simply from its composition of elected ‘ordinary’ Icelanders; it stemmed from the ongoing, real time, technology-enabled dialogue between the Council and the people. It stemmed from the Council’s openness to the public (which was invited to observe general meetings) and from its complete independence from political meddling and subversive corporate lobbying. All public correspondence to the committee was published online. With each passing meeting, the CC attempted to achieve greater proximity between the written document and the sentiments of the people, whilst constantly referring also to ‘state-of-the-art’ Constitutional practices from around the world.
Finally, the Constitutional Analysis Support Team (CAST), a semi-formal collective of individuals sharing an interest in the Constitution process, was established by Smári McCarthy and Eleanor Saitta in January 2011 in order to undertake analysis of the Constitution as it was drafted. The collective made itself aware to the CC, and indeed many of the Constitutional Councillors became involved in CAST’s project. In
particular, towards the end of the drafting process as the Constitution started to ‘stabilise’ (mid-June), CAST arranged a Constitution ‘Stress Test’ – an event open to citizens with a willingness to contribute to testing and finding gaps in the Constitution. The testing drew heavily on the linguistic analysis expertise of the internet company, whose director was also a lead proponent of the exercise. All those present were divided into smaller working-groups operationalising different textual analysis approaches. The results were tweeted in real-time, and a summary report of the findings was produced and uploaded onto CAST’s website, and informally reviewed by many on the Constitutional Council.
After four months of intense drafting, the Council completed its work on July 27, 2011, ready to be put to referendum. The Chairperson handed the draft Constitution over to the Parliament to the accompaniment of a rather stuffy wood-panelled fanfare – tradition that jarred with the break with tradition that the entire process had hitherto marked. The people had been entrusted with the task of writing the rules by which they are governed; of replacing the state of affairs that provided for the anti-politics-as-usual of previous years and the systematic production of concealment, patronage, and terror which contributed so acutely to our economic, social, and environmental ruin.
The foundational document that defines and unites people is written by and for the ordinary people of the country. The Supreme Court
would now be fully independent. The minutes of all meetings would now be made public. The Prime Minister would now be obliged to account for
his/her government before Parliament. Information about issues that concern the public would now always be available to the public.
Throughout, and because of this process, the people had been, and would henceforth, be sovereign.
Whilst this is no guarantee of good government, Iceland’s Constitutional process nevertheless remains a timely reminder of not only the powerful hope that change from below represents, but, as evidenced by recent (anti-)democratic trends in southern Europe, a reminder of the necessarily interdependent, non-incidental character of relations between systems of government and the varieties of capitalism, that inform the foundational structure of the ways in which we are governed. The ‘Truth Report’ traced the roots of the economic crisis in Iceland (ruined poster-boy of neoliberal experiment) to a crisis of democracy, transparency, and accountability.
A ‘Truth Report’ of transnational scope and ambition might just make it apparent that these were not uniquely Icelandic failures, but rather more intrinsic to the rationality of rule itself than the rulers are willing to admit, and hence make it incumbent on all those whose lives are tainted by the unique infrastructures of power peculiar to the family of neoliberalism to also radically reassess and recover their own constitutional democracy.