I am currently writing a dissertation on a Constitution for an Independent Scotland. Here is an extract based upon the ‘Icelandic Revolution’ of 2008-present.
An important case study of constitutional construction to consider is that of Iceland, especially from 2008 till present. There are four reasons why useful comparisons can be drawn from the Icelandic experience: 1) Iceland, like Scotland, is a Western, liberal democracy – and therefore shares a common political, philosophical and social heritage; 2) Iceland, as of 2008, was at a point of political and social crisis; 3) Participation of citizens (civic republicanism) was at the forefront of constructing, reviewing and ratifying the new Icelandic Constitution; and 4) This process was praised both internally and externally of Iceland as an example of Constitutional innovation of relevance to other political communities.
It is useful, first of all, to provide context to the Icelandic experience. In October 2008 Iceland was hit with the biggest financial disaster any nation in the world has ever experienced. (Economist 2008) The failure of Iceland’s three major banks added an asset and debt burden of nearly 900% of the nation’s Gross Domestic Product to the Treasury. (Ibid.) Beyond the financial burden of the crash, this created a failure of legitimacy both in financial institutions and the government regulations which had ‘liberalised’ finance and capital. In response, citizens took to the streets. A major demand of the protest movement was not only the resignation of the government and public access to the fruits of the island’s natural resources, but a new Constitution. On the 25th of January 2009 the Icelandic Government resigned from office and change began.
From the failures of liberal democracy and due to continuous public insistence, the Constitutional process was set in motion. Two significant structures were established to construct a Constitution. A National Forum of 950 Icelandic citizens was selected by lot. They agreed upon the need for a new Constitution and established eight conclusions. (National Forum 2010) Secondly, an elected Constitutional Assembly – which contained 25 Icelandic citizens of the 522 who applied – constructed a constitutional document.
Professor Thorvaldur Gylfason from the University of Iceland was a significant figure within this process. He was the citizen with the highest public vote to sit on the assembly and has documented much of its activity. His forthcoming book on the subject is entitled From Crisis to Constitution, of which extracts are available. (Gylfason 2013)
His experience is a vindication of the ‘wisdom of crowds’ thesis. (Surowiecki 2004) In Iceland “ordinary people from all walks of life were interested in – or even passionate about – seeing the constitution revised”. (Gylfason, 2011b) The Assembly had three significant features: the group was plural in nature, it had the freedom to undergo serious and extensive deliberation, and it had access to the guidance of authorities in law and academia. (Ibid.) Gylfason describes participants in this process as “not only doctors, lawyers, priests, and professors, but also company board members, a farmer, a fighter for the rights of handicapped persons, mathematicians, media people, erstwhile members of parliament, a nurse, a philosopher, poets and artists, political scientists, a theatre director, and a union leader – a good cross section of society.” This process led to a 25-0 consensus in favour of a draft Constitution. (Iceland Draft 2011)
In November of 2010 this draft was considered at the ‘National Assembly’. This concluded in favour of the central tenants of the draft Constitution, including the voting system and national ownership of the country’s natural resources. (Gylfason 2012) Therefore the project received validation beyond the ‘political class’, both from the wider civic body as well as the 25 ‘active citizens’ at the heart of the Commission’s deliberations. A public referendum was held on the 20th of October 2012, which contained six questions in relation to the Constitution. All passed. The Constitution now awaits full implementation within the next year.
The democratic structures contained within the Constitution replicate the culture from which it was formed. The Constitution places power in the citizenry requiring public consent, deliberation and participation throughout the affairs of parliament. This includes the power of citizens to propose laws to Parliament (Act 66), for a coalition of voters (10% minimum) to call a public referendum on laws (Art 65), and that the public consent to the candidacy and removal of any President – through petition and referendum. (Act 78 and 84) Article 34 states that the natural resources of the land belong to the people.
The outcome of the Constitutional process was the renewal of Icelandic democracy and the entrenchment of civic, as opposed to representative, power. Researchers at the University of Chicago described the process as “tremendously innovative and participatory” from which Iceland would “be at the cutting edge of ensuring public participation in ongoing governance” (Elkins 2012: 11). In ranking ‘inclusiveness’ – the “degree to which citizens are incorporated into decision making” – Elkins ect. ranked Iceland’s Constitution second within a process of global comparison. This makes it “one of the most inclusive in history”. (Ibid: 3-4)
There are, however, several limitations, not only within the Icelandic experience, but in the ability to apply this experience to Scotland. Firstly, this account perhaps understates the original and ongoing struggle that was necessary for constitutional reform. Iceland witnessed unprecedented protests over the Winter of 2008 and required the election of a new government to further the aims of the movement. Gylfason claims that opposition to constitutional reform remains, based upon vested interests with dubious financial connections to industry who fear the limitations imposed by political transparency. (Gylfason 2011a) Civic empowerment comes at the cost of the power of political representatives. That transition is likely to incur opposition from those who benefit most from that structure of power.
Furthermore, it is important to remember that Iceland is a small (population 320,000) and constitutionally literate nation which has lived under written Constitutions for over a century. Scotland has neither of these qualities. As a result it faces the extra practical challenges of geography, achieving consensus and educating citizens at the centre and margins of political power to participate.
Despite these limitations the Icelandic experience has a continuing relevance to thinking on a Scottish Constitution. This is due to its democratic culture, its experience of crisis, use of civic participation and the positive outcomes of this process. This is not too dissimilar to the profound institutional reforms that would arise in the event of an Independent Scotland. Iceland’s Constitution, therefore, cannot be transfused to a Scottish model, yet it presents an ethos of constitutional formation for Scotland to follow and learn from.
This experience is encapsulated in Professor Gylfason’s comment on the motivation for constitutional reform in Iceland: “Strangely, democratic states often allow tiny minorities to get away with murder by exploiting the masses, big time.” (Gylfason 2012) On the 29th of March 2012 Professor Gylfason spoke at the Scottish Parliament and said Scotland could follow Iceland’s lead and construct a Constitution by and for citizens. (Nordic Horizons 2011) In Scotland’s challenging constitutional circumstances, it is valuable to consider this advice from a wise neighbour.
Photo: Oddur Benediktsson.
Available under a Creative Commons license.