The Constituent Assembly: A study in failure

14 The Constituent Assembly A study in failure Downloaded by [University of California, San Diego] at 04:06 11 February 2017 Jón Ólafsson The idea of electing a constituent assembly was not born with the left-wing government that took power in early 2009 after days of barricaded protest on the streets of Reykjavík. But circumstances had certainly transformed this rather fantastic idea into a realistic proposal. Less than two years later, an assembly existed with 25 individually elected representatives who were to begin rewriting—or revising—the Icelandic constitution in early 2011. Then came the backlash: the Supreme Court, whose role was to evaluate complaints about the elections, decided that due to a number of technical flaws in how the elections were conducted, the results would have to be annulled.1 This decision was fateful for the process. Parliament voted to reappoint the elected members of the Constitutional Assembly, since in spite of the conclusion that the elections had not been ideally carried out, no suspicion of fraud ever arose.2 But the process was already tainted, and the legitimacy of the reappointed Constitutional Assembly (CA) as a Constitutional Council (CC) was contested. The CC basically had the status of a parliamentary commission appointed by resolution; the status of its members was strangely undefined.3 Most of them continued to see themselves as elected representatives of the people. Yet, critics certainly had a point when they argued that an appointed council must be seen as such and that by accepting appointment, the CC members had not resurrected their roles as representatives of the public, but, rather, had just agreed to serve on a parliamentary commission.4 There is no single reason that explains why the draft constitution, which the CC submitted to Parliament in 2011, failed to become the basis for a new constitution. A few central issues can be identified. Weaknesses in the design of the process help understand the deeper flaws that eventually drove supporters of the constitutional bill into a blind alley. The time frame to consider is approximately two and a half years, from the beginning of the campaign before the elections to the CA in November 2010, and until massive criticism of the draft constitution effectively killed it in the spring of 2013. During this time, the process suffered a number of crucial setbacks, each of which upset the hopes of those who had believed that a new and improved constitution would result from the work of the CC. Setbacks are, of course, to be expected in any process. Arguably, however, confusion about the status as well as the task of the CC prevented an effective response to setbacks. Moreover, Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 253 political disagreement about the CA and subsequently about appointing the CC was never directly addressed by Parliament. As I will show here, disagreement and discontent, together with the confusion about status and tasks, served to increase the distrust between the CC and political elites. The consequences were serious, since the CC needed the support of political elites in order that the constitutional bill could be passed.5 This chapter is a study of the constitution-making as a failed process. I will focus on one step made by the CC, which, in my view, had the most fateful consequences, and which must be understood in connection with, on the one hand, Parliament/Council relations and, on the other, activism of prominent Council members. This was the decision to write a new constitution rather than revise the old one. My reason for discussing only this part of the process is twofold. First, it is a topic that needs to be treated at length, and second, even if not the only reason for the defeat, it is clearly the most serious one, since it was a decision made by the Council itself, which obviously increased the risk of failure greatly in comparison with simply revising the current constitution. Had the CC chosen the path of revision, it would most probably have been able to accomplish something. Yet, the Council does not seem to have debated the pros and cons of its choice in any systematic manner. I will explore the discussion (or lack of discussion) in the CC about this decision and suggest some explanations. Since I think that it was unfortunate that the Council decided to rewrite without sufficiently exploring what that meant, I also question the motivations behind it: whether, for example, some of the Council members may have seen it as a bigger sacrifice to agree to a compromise than to fail in writing a new constitution. I also partially lay out the consequences of the decision. I conclude that what it shows is that if a deliberative body that, like the CC, is given a specific task must also work under instructions specific enough to avoid a situation in which it must itself make controversial policy decisions. The CA/CC should have been asked either to write a new constitution (in which case four months would have been insufficient) or to revise the constitution or some important parts of it. Public against Parliament: the activist face of the Constitutional Council The CC was conceived as an independent body with the specific task of submitting a bill to Parliament. The Council’s members took very seriously and quite literally their independence of governmental institutions. Not only was there no communication with Parliament at all; the more vocal CC members argued that Parliament was morally obligated to pass the bill with, at most, cosmetic changes and, thus, had no right to debate the draft as such.6 This activist stance and the lack of communication further exacerbated conflicts between the CC and political and administrative elites. Although opinions differed within the CC on how Parliament should treat the draft constitution once it had been submitted, the most vocal and active members of the Council continued to confront Parliament Downloaded by [University of California, San Diego] at 04:06 11 February 2017 254 J. Ólafsson and demand that it accept the bill as expressing the will of the people by simply organizing a referendum on it with a clear commitment to abide by the results.7 This position was somewhat supported by opinion polls, which showed a majority in favor of the new constitution. The most active proponents, however, vastly overstated the case, since public opinion seemed to favor “basing” a new constitution on the draft rather than simply accepting the draft.8 When it was finally put to national referendum in 2012, that was also the question asked: should the new constitution be based on the draft? The last and the most serious wave of attacks on the draft began after the 2012 referendum, when a number of prominent legal specialists and political scientists delivered reports and openly criticized the draft itself as well as the whole constitutional process. At this point, supporters of the bill had run out of political capital, due, at least in part, to the strained relations between the Council and Parliament.9 The clash between the “political” and the “civic” is, in my view, another central issue for the work of the CC. It is too simple to understand the hostile reaction of many members of different “establishments” as a display of elite maneuvers to neutralize a non-traditional civic body. Opinion pieces written by some of the CC members as well as a number of public statements showed a desire to identify with grassroots movements against political elites.10 Yet, some of the CC members saw their work in the Council as a prologue to more direct political involvement. They participated in founding a new political party, Dawn, with other activists. Subsequently, CC members led in the formation of two other parties, which also put up candidates in the parliamentary elections in 2013. The creation of the parties suggests that, for at least some of the individuals elected to the CA, the experience of campaigning to be elected and then participating in writing a constitution proved a politically formative experience. Given the seemingly favorable reception of the draft constitution by the general public, the assumption was not unreasonable that a new party, having grown out of this novel experience in civic participation, would appeal to a considerable number of voters. But general support of the draft did not translate into meaningful support of any single new political force derived from the Constitutional Council. Dawn got less than 3.0% of the vote in the parliamentary elections and not a single MP elected; the other two parties, the Iceland Democratic Party and the Households Party, also received around 3% of the vote.11 Many—even most—CC members probably never intended to translate their civic experience into direct politics, but saw their involvement in writing a constitution as just that: an important exercise in civic participation.12 A split can, therefore, be seen in the Council between those for whom the CC, in the end, became an instrument of political resistance against established elites—“the political class,” as one CC member put it—and another group for whom the CC remained a civic forum, in an important way detached from everyday politics. Since activists of a political bent, however, presented a much more visible face of the CC, their views tended to dominate public discussion about the constitutional process.13 Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 255 It is clear that the process failed, in the sense of failing to produce a constitutional text that could get the necessary support to be passed by Parliament. I do not think, however, that the exercise as a whole was worthless. It provided an extremely important experience both for the democratic process in Iceland and, more importantly, for the idea of constitutional reform in general.14 The experience showed that a short and well-organized campaign could bring interesting results. It is quite impressive how much a group of people, most of whom had no legislative experience, were able to accomplish in a few months. The draft, in spite of all its flaws, presents a more or less complete constitutional structure. But it also showed how carefully such a process must be managed and how easily it can be compromised. By appointing a Council with an open mandate, the government apparently meant to ensure that it could do its work without political interference or meddling. At the same time, it left crucial decisions in the hands of the Council itself.15 The Council, of course, could have made a wise choice. And yet, given the high spirits surrounding it, and the revolutionary rather than reformist agenda of many of the CC members, it should not be seen as surprising that its initial— and critical—choices were neither wise nor strategically well thought out. From clean slate to consensus: methodological weaknesses The CC met for the first time on April 6, 2011. The first meetings were spent on discussing organizational and procedural issues. Rules of procedure, as the parliamentary resolution on the Council instructed, were quickly designed to ensure the quality and constructive spirit of the Council’s work. One of the main principles stated at the beginning of the document was that the Council would aim to “use judicious discussion and objective criticism to achieve a consensus rather than force of vote.”16 This principle may have been partly inspired by the atmosphere of consensus that had characterized the 2010 National Forum, which had ranked core values and objectives and whose results the CC was expected to take into account.17 No available evidence suggests that anyone questioned this goal. It seems to have been taken for granted that discussion and criticism, if done in the right way, would support the objective of reaching consensus.18 While consensus may be valuable as such, deliberation in assemblies—the invitation to comment, criticize, and discuss—should produce better and more informed conditions of decision-making and may help in generating higher-order principles to govern conflict, but will not necessarily create a consensus.19 The emphasis on consensus, which can be seen in the rules of procedure, was also expressed in many of the comments made by CC members in the Council’s first meetings. The idea seems to have been generally accepted that a sufficiently informed and intelligent group of people must be able to develop a common vision on what constitutes the public interest, and that deliberation will lead to convergence.20 But, as the overly general and vague proposals put forward by the National Forum had already shown, loss of precision is the cost of consensus. The consensus orientation, arguably, led to a tendency to avoid debating the Downloaded by [University of California, San Diego] at 04:06 11 February 2017 256 J. Ólafsson more contentious issues, and to seek instead less definitive formulations, allowing different interpretations.21 The “happy ending” of the National Forum is easily explained by the absence of trade-offs. Participants were invited to brainstorm together and then commonly rank values and objectives. No discussion took place on the consequences of the priority rankings.22 The eventual consensus on the final draft, which was supported by all CC members, can be explained in a similar way. The consensus did not mean that all CC members actually agreed on how the constitution should be. The consensus, rather, showed that they could all see the document and the vote itself as allowing the interpretation they favored.23 But, as was later pointed out, insufficient attention had been given to excluding interpretations. Once legal scholars and constitutional experts began to scrutinize the text, they could point out a number of articles that were either too vague or could be interpreted in a number of different ways from a legal standpoint.24 This suggests that the consensus objective worked against deeper deliberation. It may also have increased the tendency to strategic behavior, in some cases, and a willingness to leave open the interpretation of individual articles rather than face trade-offs.25 The Council’s third meeting on April 13, 2011 appointed a committee of five people to make proposals on the division of labor between working groups and on a “basic document” to work with.26 This was quite a relevant issue, since, of course, there existed an “old” constitution, and Parliament had not made it clear whether it expected the CC to revise it, write a new constitution, or simply make a number of proposals for each article of a new constitution, which would then be submitted to a referendum.27 The original law on the CA describes the task as a “revision” of the constitution (the English translation of the CC’s rules of procedure uses the even weaker term “review”).28 However, the law also describes how the Assembly was to prepare a “constitutional bill” without specifying whether such a bill should propose changes in the current constitution or a whole new constitution.29 The parliamentary resolution by which the elected CA members were reappointed to the CC used a slightly different formulation, according to which the Council was to make proposals on revisions of the constitution and these proposals should be “submitted to the parliament in the form of a constitutional bill.”30 The commentary accompanying the bill on the CA submitted to Parliament on November 4, 2009 also referred to revisions and proposals to be made in a way that would leave it open for the Assembly to write a new constitution.31 Thus, the task of the CA/CC was never fully clarified. The very idea of electing a CA seems to imply that a new constitution is to be written rather than revised. CC members understood suggestions made by the Constitutional Committee as pointing in the same direction.32 The Constitutional Committee appointed by the government to prepare the ground for the CA—a task that included the convening of the 2010 National Forum—had prepared guidelines for the CC. Its report contained expert analysis on some of the central issues that the CC was to discuss, as well as a summary of the results of the National Forum. It also contained two ready-made constitutions variants to be used in part or as a whole.33 Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 257 The question of where exactly the work of the CC should begin was not really brought to the table until after the committee on working groups and the “basic document” had been adopted.34 In the committee, perhaps predictably, two opposing views immediately emerged: whether the current constitution should be treated as a “basic document” and the CC would then propose changes to its text and structure, or whether the CC should start with a “clean slate.”35 After what the committee members described as a “long discussion,” a compromise was reached, according to which the CC would compose a new text, but it would keep the “old” constitution at the side, regarding the new text as an alternative to the current constitution rather than as proposals to change it. Thus, the CC would, indeed, write a new constitution rather than just change the current one, but it would not entirely throw away the old constitution.36 This formula, a compromise between two groups of Council members, seems quite confusing. To make matters even more complicated, as some Council members pointed out in the discussion, the variants prepared by the Constitutional Committee needed to be taken into account. If Council members were to focus on the existing constitution and the proposals made by legal experts, the danger was that their mission, to both genuinely represent the public and change the political culture in Iceland, would be unsuccessful. During a short and rather confused discussion of the different kinds of approaches, one Council member expressed such frustration quite strongly. He said: I am totally against somehow basing the work on the current constitution, even if it is only considered a working document. I think we are all here to write a new constitution, not to improve the old one, which is as we all know, deeply flawed. And I think it will give a completely wrong message to society if we seem to be patching up this old, unusable document. . . . We should start with a table of contents, nothing else.37 The compromise suggested by the committee seemed difficult to grasp for some Council members. One who spoke a little later admitted that she did not understand what the discussion was about: “I don’t know what we are debating. Sorry, I just have to admit I don’t really understand it.”38 The main issue concerned the general approach. Those who favored using the current constitution as a basic document and defining their work as a revision of that document—whereby deviating from it needed to be argued for—were described as conservatives, and those who wanted a clean slate as radicals. Some Council members openly protested such labels, but the division seems to have lasted for the whole four-month period.39 The difference between the radicals, on the one hand, and the conservatives, on the other, emerged not only when debating the question about whether or not to use the current constitution as a basis but also with respect to the more general vision of the task itself.40 The radicals (and not only the radicals) tended to be aware of restrictions and instructions from the authorities, and emphasized the freedom of the CC to organize its work and determine its task in any way it saw fit.41 For them, the Downloaded by [University of California, San Diego] at 04:06 11 February 2017 258 J. Ólafsson CA/CC was a direct consequence of the crisis of 2008, and the new constitution should be conceived of as a break with the past. Some wanted to treat the framework provided by the Constitutional Committee simply as suggestions to be taken into consideration as a part of the Council’s working documents.42 During the work of the CC, one group even conferred to work on ideas about how to include backward-looking articles in the draft, that is, articles that would serve to prevent or, at least, minimize the chance that social, financial, and political developments could be similar to what had happened prior to the 2008 crisis, to the extent of even allowing retroactive legislation to deal with the perceived perpetrators of the economic collapse.43 While clearly not sharing this vision, the “conservatives” also had doubts about the Council’s chance within the given time frame of rewriting—successfully—the constitution in a way that would secure its backing by parliament.44 One of them pointed out that there were strong arguments in favor of revising rather than rewriting, even for the more radically minded among Council members: It was my personal view that the most promising way to go in light of what has happened—given the low participation in the elections and the perhaps contestable method to appoint us, it was at least controversial in the parliament and many other things—that it would in many ways be more suitable to begin with the current constitution, it was just more likely that such an approach could to lead to success in the end.45 Yet, the discussion in the Council about this crucial step was very limited. According to one appraisal, the approach finally taken was in a way natural. Given the differences, and the very strong opposition to basing the work on the current constitution, the compromise simply seemed a perfectly reasonable solution.46 Those in favor of a different approach realized that they were a minority and, therefore, seem also to have thought that the compromise (not throwing out the old constitution entirely) was about as good a solution as they could expect. Some of the more radically minded had suspicions about the compromise proposal to begin with, but then also admitted that it was sufficient: [B]ecause I may have put it in rather strong terms before, it seems to me, as things have been explained better, that I put it too strongly and that the empty sheet may very well have the respect it should have there. So I will not oppose this proposal, but will abstain.47 So it was decided to work on the compromise principle suggested by the committee, according to which the task was essentially to write a new constitution, using the current constitution and the two variants provided by the Constitutional Committee as proposals or alternatives that could be used, but were not to be seen as basic in any way.48 The rather obvious worry that this might prove impossible seems not to have entered the discussion except in the general remark The Constituent Assembly 259 Downloaded by [University of California, San Diego] at 04:06 11 February 2017 quoted above that revision might be less risky than embarking on writing a new constitution. A greater worry seems to have been that the CC would be engaged in patching up an old document rather than creating something new, and that existing documents might put illegitimate restraints on CC members. As one of them put it: [I] must say that I don’t think it is appropriate to put the old constitution in [the evolving draft] because . . . it is a basic document. Certainly it is. But we should not allow that basic or provisional document to influence this too much. We should write the material. It’s a quilt that’s being discussed, but I want a whole blanket.49 Many concerns about the current constitution no doubt contributed to the view that it would be a mistake to try to continue to build on that document. It had not only retained the basic character of nineteenth-century thinking: it really was a kind of patchwork, formed by successive attempts to write new political realities into a textual construct that, as a whole, conveyed an archaic spirit. One of the points made by participants in the National Forum was that a constitutional text should be very lucid and easy to understand for the general public.50 The argument was sometimes made that a child should be able to understand it—its meaning so crisp that no legal interpretation was really necessary to grasp at once what the constitution said and what it meant.51 In less idealistic terms, it was also argued that some of the more complicated articles dealing with how power was vested in the President, who then transferred it to ministers, needed to be made simpler and to reflect more accurately the fact that the role of the President was first and foremost ceremonial.52 However, none of these concerns were formally or systematically addressed in the Council, since it never discussed its prioritization in terms of what were the most important tasks. One Council member later argued that “one of the main challenges of the CC was the fact that the mechanics of the existing constitution . . . no longer mirrored the democratic governmental system in the country.”53 Unfortunately, no recordings or verbatim reports exist of the committee meetings, but judging from the verbatim reports of Council meetings, Committee B—which was responsible for the role of the executive and legislative branches of government, including the presidency—did not, at least not to begin with, see this as the main problem. According to the first report of Committee B to the Council, its initial discussion was about changing—fundamentally—the constitutional order, for example, by electing the executive directly.54 Committee B seems at the beginning to have been more concerned with the question of whether or not to propose radical changes than with problematic aspects of archaic formulations in the constitution. Eventually, however, the task became to write a new text that made the constitutional order clearer and simpler without essentially changing it.55 To be sure, substantial issues emerged in the discussion, where differences were also addressed and, to some extent, dealt with. But any methodological Downloaded by [University of California, San Diego] at 04:06 11 February 2017 260 J. Ólafsson discussion—or a common decision about priorities—was conspicuously missing. There is even evidence that such discussion was treated with impatience by Council members who wanted to get on to substance rather than spend time on “procedures and methods.”56 In his book Iceland and the International Financial Crisis, Eiríkur Bergmann, a Council member, explains that “rather than developing the document in a traditional linear fashion, the Council decided to apply the agile method often used in software development gradually completing the holistic document in several rounds.”57 This approach certainly facilitated the use of input from the public, since everyone could comment on the document on every stage. But while CC members apparently were genuinely interested in eliciting public participation, their work lacked the clear vision necessary to focus on public input as well as a formal means of filtering and dealing with commentary, criticisms, and proposals from the wider audience that ideally should be monitoring and, to some extent, participating in the work of the Council. Adopting a procedure for moving back and forth between submitting drafts and admitting proposals and commentary from the public is not establishing a method in that sense. Since relatively few members of the public actually were active in engaging CC members in Facebook discussion, submitting formal and informal proposals or demanding attention from Council members in other ways, this aspect of the work never became a big problem. But it certainly would have become very difficult to do justice to real widespread interest.58 The Council’s lack of methodology explains, at least partly, how severely constitutional scholars and political scientists later attacked the draft. Without clear priorities and real trade-offs, many of the provisions proposed could only be superficially addressed. As a result, the question most frequently asked after the draft was submitted was simply: What does this or that article actually mean? How can its consequences be assessed? Many critics immediately complained that the new constitution would need to be tested for “stress”—that, for example, some of the new rights could not be adopted unless it was clear that they did not impose too heavy obligations on the government.59 One must conclude that the apparent inability of the CC to make methodological decisions, as well as the vague instructions its mandate was based on, left the Council in a very weak position to address, convincingly, the basic questions of how to plan its work and establish methodological and substantial priorities to guide it. We—the people: the public again Many critics of the plan to convene a CA argued that it was not right to change or rewrite the constitution at a time when emotions were high and many people, feeling that it was important to punish those responsible for the disastrous precrisis policies in Iceland, were moved to activism.60 The argument most often put forward to support this criticism was simply that since the constitution could not be seen as having caused the Icelandic crisis, there was no hurry to rush to rewrite it as a consequence of it. Although no one (to my knowledge) argued that Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 261 the constitution had directly caused the crash by somehow allowing or even leading to the decisions and reactions of the government prior to the crisis, now seen as vastly inadequate, activists argued that a better constitution could have prevented some of the excesses during the boom years.61 Awkward responses to public criticisms from leading politicians showed how unprepared they were to be openly accused of total failure. Just a few weeks after the collapse of the banking system, a town hall meeting was held in Reykjavík, by an informal group of citizens who had organized themselves after the crisis struck. The meeting was held in the biggest cinema hall in Reykjavík. Around 1500 people filled the hall and formed a crowd outside, where the meeting could be followed on a wide screen. The meeting was one in a series of gatherings held during this period, but the occasion was special because all MPs had been invited, including all government ministers.62 During the meeting, there was a lot of shouting and arguing, and the slogan “We are the people” was often seen and heard, creating a symbolic reference to the 1989 collapse of Communist governments in Eastern and Central Europe.63 Toward the end of the meeting, a crowd shouting various slogans constantly interrupted Ingibjörg Sólrún Gísladóttir, the Minister of Foreign Affairs and leader of the Social Democratic Alliance, in her final remarks. She finally lost her patience and pointed out that the people who happened to be present at the meeting could hardly claim that they represented the whole nation. Rather, she wanted to see them as a group of individuals, using their right to free speech to express their personal opinions. The immediate effect of these words was only increased booing and shouting as the discussion continued.64 Its long-term echoes, however, were quite interesting. Over the next months and years, the remark would be quoted and repeated as an example of how a political leader loses touch with political realities that have become radicalized. This small example illustrates the problem as grassroots activists perceived it: the political establishment was unable to develop a meaningful dialogue with the public. While the more conservatively minded among the public pointed out that the political system had not collapsed in spite of the financial collapse, the more activist-minded argued that the disappearance of trust amounted to political collapse. The Icelandic crisis was, thus, interesting not least because of the strong and general sentiment that there was more behind it than a series of catastrophic events in the international financial system, as Icelandic governmental ministers and officials tried at first to argue.65 The overwhelming sentiment in the country was that the international crisis only partly revealed the reasons for the financial disaster in Iceland. The failure of the Icelandic government to respond properly to the crisis was frequently explained by two different approaches. First, the public administration had failed because of its incompetence, caused partly during years of corrupt hiring policies, through which ties to the governing Independence Party consistently played a bigger role than professional ability, education, and experience.66 Second, a deep and long-standing corruption among top members of the political elite meant that some of the privatizations for which Downloaded by [University of California, San Diego] at 04:06 11 February 2017 262 J. Ólafsson Iceland had been lauded internationally constituted the handing out of public property to favored individuals and groups who had then become too strong for the government to control.67 A widespread view was that the only effective reaction to such incompetence and corruption would be a complete overhaul of the political system and the introduction of new practices within the government and in the public sector in general. A new government should be committed to improving politics through systemic reforms, within both the political and administrative spheres. Gradually, the groups that emphasized a social contract and the need for a clean-up of political practices in Iceland converged on the constitutional project, especially after the parliamentary elections of 2009 and the formation of the left-wing government. Constitutional reform was now widely seen as the most promising sphere for achieving wide-ranging social and political reform. As a consequence, many, if not all, Council members seem to have honestly believed in the possibility of creating a document that would lead to palpable changes in the country’s political structures and traditions. The cooperative spirit reflected in public statements by CC members and in the emphasis on unanimity about the final document suggests that eventually a relative consensus on public priorities emerged in spite of the persisting divide between conservatives and radicals. Discussion in the Council seems to have been agonistic rather than antagonistic, thus creating a suitable environment for debating priorities, consulting specialists and politicians who, in the end, would be instrumental in the success of the draft.68 But, for some reason, the Council never took such steps, and it can be argued that its isolation grew as its work progressed. Transparency may also have had contradictory results. Since it was well exposed through its own website and social media, no Icelandic newspaper or broadcast media provided a regular coverage of its work. Reports would appear only around something “newsworthy,” such as a disagreement about some principal issue, radical proposals, or evidence of split within the Council.69 This may also partly explain why CC members eventually felt that if they really wanted to reach their goal of transforming Icelandic politics, they would have to do more than just submit a constitutional bill to a corrupt parliament. They would actually have to take the further step of forming their own political party to transform the political culture.70 Transitional solidarity If there was any overarching demand that unified the civic activists and grassroots movements of the 2008 crisis, it was the demand for an improved—even a radically new—political culture. But, like the overly general “values” expressed by the National Forums in 2009 and 2010, this demand was somewhat unspecified. For some, the culture change consisted primarily in the move from bargaining strategies to reasoning—which implied preferring deliberative rather than aggregative conceptions of policy- and decision-making; for others, however, it meant direct public control of political representatives.71 Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 263 These two conceptions of political culture (deliberation and public control) are not opposed, but they tend toward different ideals of political organization. While deliberation acknowledges moral disagreement and takes it as a fact that political decision-making must be based on accepting and working with difference, the idea of public control rests on the idea that the public shares interests and goals—even comprehensive views or doctrines—and that in a representative democracy it is most important to ensure that politics serves public rather than special interest. The National Forums were based on the belief that Icelandic society, since it is small and relatively homogeneous, could express values that were not only common but also comprehensive. As such, it should guide the government as well as the CC in making choices that reflected a shared Icelandic worldview. It follows that moral disagreement was treated as either absent or irrelevant. The CC, to a large extent, adopted this basic view, which may explain the emphasis on final consensus and on seeing the Council as representing the uncorrupt public in contrast to the argumentative and corrupt Parliament, where special interest would always, in the end, come out stronger than the public interest. In this description, the CC did not engage in deliberative democracy in the sense in which this concept is usually understood.72 There was no clear distinction drawn between a political role (discussing, clarifying, and even reaching an agreement about constitutional provisions given moral disagreement) and moral leadership (showing how a diverse group of people could find ways of creating a constitutional framework that would prevent moral failure of government). But ignoring moral disagreement is to leave out a central part of pluralistic politics, since it requires the acceptance of one or more comprehensive doctrines as the basis for political culture.73 Activists, and later on many CC members, shared the desire to restore integrity to political life by forging a new social contract. But instead of emphasizing the deliberative part of that enterprise, the most visible members of the group argued that the main goal would be achieved not by ensuring better deliberative practices, but, rather, by excluding politicians and interest groups bypassing the supposedly corrupt former elites.74 In the discussions and debates in and around the CC, ideas about solidarity, common values, and consensus thus dominated the scene, rather than questions about trade-offs, diversity, and consequences.75 The belief in solidarity may have blinded CC members not only to actual political disagreements but also to the inevitable moral disagreement in a pluralistic society. Since the CC was working toward one document on which agreement was to be reached, its members acted as if the Council could serve as a vehicle of national consensus. This created an idea of moral superiority, which was shared by many or most CC members, who also expected Parliament to acknowledge it by accepting as a moral obligation that no obstacles should be put in the way of the eventual constitutional bill, and submitting it unchanged to a national referendum. Thus, they expected that even though neither the Council’s proposals nor the result of a referendum could be legally binding for Parliament, it would accept both as morally binding.76 The consensus outlook, of course, may have corresponded to the Downloaded by [University of California, San Diego] at 04:06 11 February 2017 264 J. Ólafsson post-crisis mood that had dominated political discussion in Icelandic society after the publication of the damning reports by the Special Investigative Committee and the special Working Group on Ethics.77 Icelandic officials and political leaders certainly had all the information they needed to draw the right conclusions, yet failed to do so until it was too late.78 Given the unusual circumstances in Icelandic society due to the financial crisis and the resulting demand for transformative changes, the emphasis on solidarity was both easy to understand and to justify to a large part of the public. But solidarity inevitably excludes. It can either be formed around very basic issues or be the solidarity of a very distinct group. A third kind of solidarity can be formed around views or proposals formulated very generally or in terms that allow for several interpretations. Such solidarity is not worth much once a clear understanding is needed, and in that sense the solidarity so greatly emphasized by the CC may have prevented, rather than facilitated, a more favorable reaction from Parliament. Although it must remain speculative, the possibility cannot be excluded that a more diverse product, such as a bundle of proposals that would have given Parliament a considerable choice of alternatives, accompanied by a rich discussion on pros and cons, explanation of trade-offs, and some assessment of consequences, would have had more impact than the ready-made constitution submitted to Parliament with the expectation of swift approval. Conclusion I have focused here on the constitutional process and avoided discussion of the proposal itself made by the CC. There is no doubt that the process was a great experiment, but as with all great experiments, what is most important is not any particular success, but what can be learned from it. One general lesson should be clear by now: it is unfortunate if a body elected, or put together in other ways, is given an open or unclear task and mandate. It means that the body must itself make policy decisions, which will (since they are controversial) undermine its legitimacy and general appeal. I believe that the main flaws in the constitutional process may be summarized in the following way: the CC was given too little time. It was insufficient for both the proper attention to detail that would be necessary and for adequately working with Parliament, which in the end would have to pass the bill not once but twice. The CC was not equipped to make the decisions necessary to ensure that the approach toward writing the new constitution would be sufficiently methodic and built on a deliberated prioritization whereby actual substantive differences had been dealt with and resolved. More time, especially if a draft constitution could have gone through critical assessment by specialists before the CC was supposed to have finished its work, would have helped considerably.79 The CC overestimated the political significance of unanimity and underestimated the ability of constitutional scholars and political scientists to undermine the project by pointing out textual obscurities and structural weaknesses. It also failed to see how unanimity may serve to conceal differences to the extent of Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 265 preventing compromise. The problem is that a common expression of basic values or fundamental preferences needs both common instrumental preferences, that is, a common understanding of the means to promote the fundamental preferences, and a common interpretation of the fundamental preferences. The CC, just like the earlier National Forums, provided an excellent platform to reaffirm a common commitment to building a society of equality, transparency, freedom, and integrity. But the interpretation of concepts like these was kept open, and instrumental preferences, the ranking that could reflect the means that would be required, were also kept open, and that means unresolved.80 Although the constitutional bill did not survive opposition from political and academic elites, theoretically it can still be used as the basis for a new Icelandic constitution by any future government that chooses to do so. If this happens, its novelty should not be underestimated. Even if changes are made in individual chapters and articles, the fact remains that the draft submitted to the Icelandic Parliament by the CC was the result of audacious and original thinking, which should inspire and influence the way we think about constitutions and how they should be written. Notes 1 Ákvörðun Hæstaréttar [Supreme Court Decision], January 25, 2011, accessed 5 December, 2015, www.haestirettur.is/control/index?pid=1109. 2 Of the elected 25 CA members, 24 accepted the reappointment. The person who had been number 26 was appointed to replace the only elected member who declined to be reappointed. Many of the elected members, however, although they accepted reappointment, were openly critical of how Parliament had dealt with the situation (see, for example, Salvör Nordal, “Opið bréf til Alþingis,” Fréttablaðið, March 30, 2011). 3 “Þingsályktun nr. 19/139 um skipun stjórnlagaráðs” [Parliamentary Resolution 19/139 on the Appointment of the Constitutional Council], 549. mál, þskj. 1120. Alþingi 2010–2011, 139. Löggjafarþing, accessed December 5, 2015, www.althingi.is/altext/ 139/s/1120.html. 4 “Nefndarálit um tillögu til þingsályktunar um skipun stjórnlagaráðs” [A Committee Report on a Proposed Parliament Resolution on the Appointment of the Constitutional Council]. 549. mál, þskj. 1028, Alþingi 2010–2011, 139. löggjafarþing, accessed December 5, 2015, www.althingi.is/altext/139/s/1028.html. It is made clear in the commentary that the Parliament did not regard Council members as representatives of the public: In light of the Supreme Court decision to annul the elections, those individuals who were elected to the Constitutional Assembly do not any more get their mandate from the people. The parliamentary resolution means that Parliament appoints a constitutional council and that its members get their mandate from the Parliament, i.e., from its nationally elected representatives. See per contra Thorvaldur Gylfason, “From Collapse to Constitution,” in Public Debt, Global Governance and Economic Dynamism, ed. L. Paganetto (Milano: Springer Milan, 2013), 392. 5 A simple majority was sufficient to pass the bill. Before the 2013 elections, the government would probably have been able to have Parliament accept the constitutional bill. But since two consecutive parliaments were needed to pass changes of the constitution, and it was improbable that the majority would survive elections, passing it, without broad support, could even have proved counterproductive. Downloaded by [University of California, San Diego] at 04:06 11 February 2017 266 J. Ólafsson 6 Thorvaldur Gylfason, Hreint borð. Greinasafn um frumvarp Stjórnlagaráðs til nýrrar stjórnarskrár (Reykjavík: Gutti, 2012), 59–60. Gylfason pointed out that in the case that MPs were opposed to the draft constitution as submitted by the CC, Parliament could propose an alternative and ask voters to choose between the Council’s version and its own. See also personal blog of Council member Illugi Jökulsson (“Vesalings fíflin í Stjórnlagaráði,” accessed December 5, 2015, http://blog.pressan.is/illugi/2011/ 08/03/vesalings-fiflin-i-stjornlagaradi/). 7 Thorvaldur Gylfason, Hreint borð, 65. Among MPs, there were supporters of making the people decide in a referendum whether to adopt the new constitution, leaving Parliament out of it (see Guðmundur Steingrímsson, “Fín stjórnarskrá,” personal blog, accessed December 5, 2015, http://blog.pressan.is/gummisteingrims/2011/08/12/ fin-stjornarskra/). Valgerður Bjarnadóttir, who chaired the Constitutional and Supervisory Committee, was quick to point out that “Parliament has the last word” (Valgerður Bjarnadóttir, “Stjórnlagaráð—hvað næst?” Fréttablaðið, August 9, 2011). 8 According to an opinion poll by the Icelandic survey company Market and Media Research (MMR) in April 2012, 66.1% of voters supported “basing a new constitution on the CC’s proposals” (see Market and Media Research, “Tveir þriðju styðja tillögur Stjórnlagaráðs,” accessed December 5, 2015, www.mmr.is/frettir/birtar-nieurstoeeur/249tveir-trieju-styeja-tilloegur-stjornlagaraes). According to a poll in September 2011, 75.3% supported an immediate national referendum, but supporters were divided as to whether the referendum should be binding (47.7% in favor, 27.6% against; see Market and Media Research, “Vilja þjóðaratkvæðagreiðslu um Stjórnlagaráðsfrumvarp,” accessed December 5, 2015, www.mmr.is/frettir/birtar-nieurstoeeur/223-vilja-tjoearat kvaeeagreieslu-um-stjornlagaraesfrumvarp). A third poll just a few weeks after the constitutional bill was submitted to Parliament suggested that a majority (57.6%) still thought that Parliament should “thoroughly discuss” the CC proposal, while 42.6% thought that Parliament should not have much to do with finalizing the bill (see Market and Media Research, “Skiptar skoðanir á aðkomu Alþingis að stjórnlagafrumvarpi,” 2011, accessed December 5, 2015, www.mmr.is/frettir/birtar-nieurstoeeur/220-skiptar-skoeanir-aaekomu-altingis-ae-stjornlagafrumvarpi). 9 The draft, and indeed much of the work of the CC, was fiercely attacked in a series of meetings organized by Law Departments of four Icelandic universities and held between November 2012 and February 2013. See Stofnun stjórnsýslufræða og stjórnmála, “Fundaröð um stjórnarskrána,” accessed December 5, 2015, http://stjornsyslustofnun.hi.is/node/494. 10 See, for example, Eiríkur Bergmann’s piece in the daily DV. He discusses the critical reception of the constitutional bill by an academic, a former prime minister, and a specialist on public administration, claiming that their critical comments simply represented feeble attempts to defend the interests of political and academic elites. “Stjórnlaga hvað?” DV, August 8, 2011, accessed December 5, 2015, www.dv.is/ blogg/eirikur-bergmann/2011/8/8/stjornlaga-hvad/. 11 See official election results as reported by the National Electoral Commission: Landskjörstjórn, “Apportionment of Seats to the Althingi, the Parliament of Iceland: Results of the Elections on April 27, 2013,” accessed December 5, 2015, www. landskjor.is/media/frettir/ElectionsResults_April27_2013.pdf. It is ironic, of course, that the new parties had considerable combined support. Their solidarity in backing the draft constitution was clearly not enough to trump their political differences about other issues. 12 The Ministry of Justice and Human Rights published a booklet with short introductions to all CA candidates. These introductions in some cases contain concrete policy issues or views, but in most cases personal motivation is in the foreground, where the desire to participate as a citizen is emphasized. See the website providing information about the elections, accessed December 5, 2015, www.kosning.is/stjornlagathing/, and the booklet “Kynning á frambjóðendum og kosningum til stjórnlagaþings 27. The Constituent Assembly 267 13 Downloaded by [University of California, San Diego] at 04:06 11 February 2017 14 15 16 17 18 19 20 21 22 23 nóvember 2010,” accessed December 5, 2015, http://issuu.com/athygli/docs/stjornlag athing?e=2270875/5699599. Thorvaldur Gylfason, “Democracy on Ice: a Post-Mortem of the Icelandic Constitution,” openDemocracy, June 19, 2013, accessed December 5, 2015, www.open democracy.net/can-europe-make-it/thorvaldur-gylfason/democracy-on-ice-post-mortemof-icelandic-constitution. See Hélène Landemore, “Inclusive Constitution-Making: The Icelandic Experiment,” Journal of Political Philosophy 23, no. 2 (2015): 166–191. Parliamentary Resolution 19/139 specified eight basic issues that the Council was to discuss, but stated also that it could decide to discuss other things it wanted to include in its eventual constitutional bill. See an English translation of the rules available on the Council’s website, accessed December 5, 2015, http://stjornlagarad.is/english/rules-of-procedure/. Skýrsla stjórnlaganefndar, vol. 1 (Reykjavík: Constitutional Council, 2011), 21–22. This was not understood, of course, as consensus on every level, and there was a lot of voting both in committee meetings and in the Council sessions. But the goal was to create a document that would be passed by consensus, and that goal was achieved. See Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton: Princeton University Press, 2004), 64–65. Toward the end of the Council’s work, the pressure increased on working to reach consensus. But the spirit of cooperation was cultivated from the very beginning, which can be seen, for example, by the frequent use of the address “dear friends” in the proceedings. This kind of compromise could be seen clearly in how the questions about the constitution and some key issues in the 2012 referendum were formulated. They could be understood in different ways, and therefore the results were of limited help to policymakers. See Jón Ólafsson, “Rökræðulýðræði verður stofnanalýðræði: Er hættulegt að færa vald til almennings? Athugasemdir við grein Vilhjálms Árnasonar ʻValdið fært til fólksins?ʼ” Tímarit um stjórnmál og stjórnsýslu 10, no. 1 (2014): 119–142. James Fishkin, “Rökræðulýðræði og lýðvistaða stjórnarskráin. Tilraunastarfsemin verður að halda áfram,” in Lýðræðistilraunir. Ísland í hruni og endurreisn, ed. Jón Ólafsson (Reykjavík: University of Iceland Press, 2014), 23–32, 27; Jón Ólafsson, “Rökræðulýðræði verður stofnanalýðræði: Er hættulegt að færa vald til almennings?” 133–134; Vilhjálmur Árnason, “Valdið fært til fólksins? Veikleikar og verkefni íslensks lýðræðis í aðdraganda og eftirmála hrunsins,” Skírnir 187 (2013): 11–54. One curious episode resulting from remarks made by the President of Iceland, Ólafur Ragnar Grímsson, in a speech given to Parliament at its opening session two months after the constitutional bill was submitted illustrates the situation. The President claimed that the Council had proposed increasing the power of the President. CC member Eiríkur Bergmann reacted in a radio interview, arguing that the President had completely misunderstood the draft. That same evening, another CC member, Lýður Árnason, on his regular blog, contradicted Bergmann, saying that on his understanding the President’s interpretation made perfect sense (see “Address by the President of Iceland Ólafur Ragnar Grímsson at the Opening of the Althingi October 1, 2011,” accessed December 5, 2015, www.forseti.is/media/PDF/2011_10_01_Thingsetning_ English.pdf; Lýður Árnason, “Túlkun forseta á tillögum Stjórnlagaráðs”, personal blog, accessed December 5, 2015, www.dv.is/blogg/lydur-arnason/2011/10/1/tulkunforseta-tillogum-stjornlagarads/). A third CC member partly supported Eiríkur Bergmann, pointing out that the President’s interpretation showed the importance of public discussion in which CC members would have a chance to further explain and justify their proposals (Vilhjálmur Þorsteinsson, “Forsetinn og nýja stjórnarskráin,” personal blog, accessed December 5, 2015, http://blog.pressan.is/vthorsteinsson/2011/10/02/ forsetinn-og-nyja-stjornarskrain/). Downloaded by [University of California, San Diego] at 04:06 11 February 2017 268 J. Ólafsson 24 This criticism was made and challenged in numerous seminars and public meetings in 2011 and 2012. See, for example, Kristrún Heimisdóttir, “Comment on the CC proposals,” unpublished talk, Reykjavík University, November 16, 2012. She argued that to adopt the draft constitution without substantial changes could lead to a “constitutional paralysis.” 25 Gunnar Helgi Kristinsson, “Ráðskast með stjórnarskrá,” Tímarit um stjórnmál og stjórnsýslu 8, no. 2 (2012): 565–569 (The Constitutional Council chose to organize its work in such a way that the result was a wish list of changes to be made rather than a sober exploration of strengths and weaknesses of individual ideas or their inner coherence) 568. 26 Stjórnlagaráðstíðindi 2a: Umræður á ráðsfundum (Reykjavík: Constitutional Council, 2011), 33. In the original law on the CA, three working groups were supposed to work on different issues. The CC was not required to abide by instructions in the CA law, since it was established on the basis of a parliamentary resolution. The Council had much more freedom to organize its work according to what Council members felt was best. 27 Discussion in the CC on this issue revealed the uncertainty about the actual task (see Stjórnlagaráðstíðindi 2a, 23 (Lýður Árnason)). According to the exact instructions given by Parliament in its decision to appoint a Constitutional Council, the CC should prepare “a bill on constitutional law.” In the early discussion in the CC, at least some of the members seem to have understood this as a bill containing a complete constitution to be adopted or rejected. But this is an incorrect, albeit not illogical, understanding of the formulation (see Stjórnlagaráðstíðindi 2, 31 (Gísli Tryggvason)). 28 Lög um stjórnlagaþing [Act on a Constitutional Assembly], nr. 90/2010, art. 1. An English translation of the Act is available. Accessed December 5, 2015. http://thjodfundur2010.is/other_files/2010/doc/Act-on-a-Constitutional-Assembly.pdf. 29 Lög um stjórnlagaþing nr. 90/2010, art. 26. 30 Parliamentary Resolution 19/139 on the Appointment of the Constitutional Council. 31 Frumvarp til laga um stjórnlagaþing, 152. mál, þskj. 168. Alþingi 2009–2010, 138. löggjafarþing, 17, 20. [Bill No. 152 from 2010 on the Constitutional Assembly]. 32 Salvör Nordal, interview, May 6, 2014. See also Salvör Nordal, “Þátttaka borgara í ákvarðanatöku og ábyrgð stjórnvalda. Lærdómar af stjórnarskrármáli,” Skírnir 189, no. 1 (2015): 119–141. 33 See Skýrsla stjórnlaganefndar, vol. 1, 182–214. 34 Stjórnlagaráðstíðindi 2a, 33. 35 Stjórnlagaráðstíðindi 1, 34. 36 Stjórnlagaráðstíðindi 2a, 35. 37 Stjórnlagaráðstíðindi 2a, 35 (Illugi Jökulsson). 38 Stjórnlagaráðstíðindi 2a, 38 (Þórhildur Þorleifsdóttir). 39 Stjórnlagaráðstíðindi 2a, 36–38. 40 Pawel Bartoszek, interview, September 9, 2011. 41 Stjórnlagaráðstíðindi 2a, 231 (Andrés Magnússon), 252 (Pétur Gunnlaugsson). 42 Stjórnlagaráðstíðindi 2a, 37 (Eiríkur Bergmann). Although dissatisfaction was not expressed at Council meetings, some of the more radically minded CC members felt that the proposals made by the Constitutional Committee were too narrow and limited the scope for new thinking in the Council. Björg Thorarensen, who was a key member of the Constitutional Committee, had, according to one CC member, simply expected her proposals to flow smoothly into a new constitution, but that was not acceptable for the CC (Thorvaldur Gylfason, interview, September 6, 2011). The verbatim reports of Council meetings, however, clearly show that once the Council got down to discussing proposals to put into its evolving draft, members were constantly in dialogue with the Constitutional Committee proposals, comparing them with their own or, in some cases, adopting them. Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 269 43 Stjórnlagaráðstíðindi 2a, 76 (Andrés Magnússon). See also Stjórnlagaráðstíðindi 2b, 606 (Andrés Magnússon), 611 (Íris Lind Sæmundsdóttir), 660 (Andrés Magnússon). 44 There were “radicals” who had argued before the CC was convened that it would be more practical not to embark on writing a new constitution right away but, rather, begin with amendments to the old one. Thorvaldur Gylfason was among those arguing in this vein before the CA elections (see Thorvaldur Gylfason, Hreint borð, 119). He did not continue this argument in the CC, but accepted the compromise solution. 45 Stjórnlagaráðstíðindi 2a, 34 (Pawel Bartoszek). 46 Thorvaldur Gylfason, interview, September 6, 2011. 47 Stjórnlagaráðstíðindi 2a, 40 (Illugi Jökulsson). 48 When possible, proposals made by the CC subcommittees was discussed in connection with a corresponding proposal in the Constitutional Committee’s report (or in connection with the lack of such a proposal). Salvör Nordal also points out that the report was a very important document for the CC’s work. Interview, May 6, 2014. 49 Stjórnlagaráðstíðindi 2a, 40 (Erlingur Sigurðarson). 50 See statements of this sort in the list of sentences made by participating groups expressing visions of future social, political, and economic arrangements in the forum, accessible from its site thjodfundur2010.is, accessed December 5, 2015. 51 The demand for simplicity and lucidity was frequently heard from candidates in the CA elections in 2010; see, for example, Valgarður Guðjónson’s web page with his campaign program, accessed December 5, 2015, www.valgardur.com/frambod.htm. 52 The point is emphasized in the CC’s commentary to the constitutional bill, which clearly states that according to the draft, the President will no longer have an active legislative role. See Frumvarp stjórnlagaráðs, 35. 53 Eiríkur Bergmann, Iceland and the International Financial Crisis: Boom, Bust and Recovery (London: Palgrave Macmillan, 2014), 180. 54 After a short report describing the discussion in one of the first meetings of Committee B, one council member (Lýður Árnason) urged the committee members to discuss urgently “whether the executive should be elected by the public or the parliament” (Stjórnlagaráðstíðindi 2a, 81). The committee members pointed out that this was one of the questions under discussion, and that proposals could be made in that direction (81–82). Subsequent discussion, however, shows that the committee was treating the question as completely open, that is, as regards the role of the President under a new constitution as well as the possibility of electing the prime minister directly. Yet, by the committee’s second meeting, it seems clear that its members did not consider abandoning parliamentary democracy a real option (68), although such changes certainly continued to be discussed. 55 Some discussion arose on this issue after the publication of the draft with extensive commentary in August 2011, where numerous changes are explained as attempts to clarify meaning rather than actually change the constitutional order. See, for example, Frumvarp stjórnlagaráðs með skýringum, 50, 76, 195; see also Eiríkur Bergmann “Of flókið fyrir þjóðina?” February 21, 2012, accessed December 5, 2015, www.dv.is/ blogg/eirikur-bergmann/2012/2/21/of-flokid-fyrir-thjodina/. 56 See, for example, a remark made by Erlingur Sigurðarson during discussion on the basic document: “I don’t like this discussion now, how we are talking about procedures and methods, but not the issues,” Stjórnlagaráðstíðindi 2a, 40. 57 Eiríkur Bergmann, Iceland and the International Financial Crisis, 179. 58 Eiríkur Bergmann even suggests in his assessment of the process that the CC’s handling of the comments and proposals it did get was not satisfactory. See Iceland and the International Financial Crisis, 179. 59 See “Gagnrýnir óvissuferð stjórnvalda,” mbl.is, December 13, 2012, accessed December 5, 2015, www.mbl.is/frettir/innlent/2012/12/13/gagnrynir_ovissuferd_stjornlagarads/. In this newspaper article, Gunnar Helgi Kristinsson, Professor of Political Science at the University of Iceland, argues that the draft constitution would have 270 60 Downloaded by [University of California, San Diego] at 04:06 11 February 2017 61 62 63 64 65 66 67 68 69 70 71 72 J. Ólafsson uncertain consequences if it were adopted. The old constitution, on the other hand, he pointed out, had been tested many times in various judicial proceedings. See, for example, Pétur Blöndal, “Stjórnlagaþingið,” Morgunblaðið, December 6, 2010. Some candidates in the CA elections even declared their intention, if elected, to defend the old constitution from “agitators.” See, for example, Þorsteinn Arnalds, “Skemmum ekki stjórnarskrána,” Morgunblaðið, November 20, 2010. See Stjórnlagaráðstíðindi, vol. 2b, 312 (Thorvaldur Gylfason). “Um 1500 manns voru á borgarafundi,” Fréttablaðið, November 25, 2008. Government ministers are as a rule also MPs in Iceland. The most visible movement at the time was the newly formed “Borgarahreyfingin” [The Citizens’ Movement], whose members often mentioned the Civic Forum during the Czech Velvet Revolution as their model. An amateur recording of the remarks is available on youtube.com, “Púað á Ingibjörgu Sólrúnu,” www.youtube.com/watch?v=LVq9nA3DIg0. The meeting took place on November 24, 2008. Her exact words were (my translation): “I am not sure that those in the audience can necessarily claim to be talking on behalf of the nation, or have the right to . . . [booing and shouting from the audience] . . . that’s it.” Geir Haarde, “Address to the Nation by H. E. Geir H. Haarde, Prime Minister of Iceland,” October 6, 2008, accessed December 5, 2015, http://eng.forsaetisraduneyti. is/news-and-articles/nr/3035. See also Ingimundur Fridriksson, “The Banking Crisis in Iceland in 2008,” February 6, 2009, 11, www.sedlabanki.is/lisalib/getfile. aspx?itemid=6795; Heather Horn, “Iceland Is Wrong to Blame Its Leaders for the Financial Crisis, and So Are We,” The Atlantic Monthly, March 6, 2012, accessed December 5, 2015, www.theatlantic.com/international/archive/2012/03/iceland-is-wrongto-blame-its-leaders-for-the-financial-crisis-and-so-are-we/254039/. This claim is made in part in a report on the causes of the collapse of the Icelandic banks written by a special parliamentary commission. See Rannsóknarnefnd Alþingis [The Special Investigation Commission of the Icelandic Parliament], Aðdragandi og orsakir falls íslensku bankanna 2008 og tengdir atburðir, 9 vols. (Reykjavík: Icelandic Parliament, 2010). See also Thorvaldur Gylfason, Hreint borð, 28. Thorvaldur Gylfason, Hreint borð, 15–16. For a discussion on agonism, see Chantal Mouffe, The Democratic Paradox (London: Verso, 2000), 80–108. During June 2011, as most of the main ideas supported by the CC took shape, the daily Fréttablaðið (the most widely read newspaper in Iceland) only twice reported on the CC. In both cases, the news stories were superficial, without any attempt at analysis or explanation, and published in a somewhat sensational way. The first (“Dregið verði verulega úr hlutverki forsetans,” Fréttablaðið, June 6, 2011) stated that the CC intended to greatly limit the role of the Icelandic President, the second (“Stjórnlagaráð leggur til að kosningakerfinu verði bylt,” Fréttablaðið, June 11, 2011, 12) that changes to the election system proposed by the CC would be revolutionary. At the same time, some of the CC members published opinion articles in the paper about some aspects of the CC’s work. See the party statutes “Lög Dögunar,” accessed December 5, 2015, www.xdogun.is/ index.php?page=loeg-doegunar, and central policy statements “Kjarnastefna,” accessed December 5, 2015, www.xdogun.is/index.php?page=kjarnastefna. Discussion on various systems and e-platforms that could be used to channel the views and wishes of citizens directly to politicians, who would then be required to react in some way to such information, was frequent in the immediate aftermath of the crisis. The idea of directly controlling delegates still exists within movements such as the Pirates, who won three seats in the 2014 parliamentary elections 2013. See information on the Pirate Party policy platform on its website, accessed December 5, 2015, www.piratar.is/policies/?lang=en. Gutmann and Thompson, Why Deliberative Democracy? 3–7. Downloaded by [University of California, San Diego] at 04:06 11 February 2017 The Constituent Assembly 271 73 Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 26. 74 It is a little difficult to cite direct textual evidence to support this, since no one argued explicitly against deliberation. The idea that central political institutions in Iceland were deeply corrupt and should not be consulted was frequently heard in debates about the constitution. A memorable event during which the idea of consulting with MPs was discussed was a seminar with Pasquale Pasquino and a few CC members, organized by the EDDA—Center of Excellence, May 30, 2011. Pasquino encouraged active consultations with MPs to create a friendlier atmosphere around the CC’s work. The CC members present, however, argued vehemently and at length against this idea. The main argument was that the CC’s integrity would suffer from such connections. 75 The draft was passed unanimously in the CC on July 29, 2011, as many of the Council members had hoped, since they thought that consensus would increase moral pressure on Parliament to accept it. See “Íslendingar verði hreyknir af nýrri stjórnarskrá sinni,” Morgunblaðið, July 30, 2012; Thorvaldur Gylfason, “Við lýsum eftir stuðningi,” Fréttablaðið, July 28, 2011. 76 See Thorvaldur Gylfason’s blog, in which he argues, citing Jon Elster, that from a moral perspective Parliament must adopt the draft as fit for a referendum and, depending on its outcome, approval or rejection, accessed December 5, 2015, www.dv.is/ blogg/thorvaldur-gylfason/2012/5/15/thetta-sagdi-jon-elster/. 77 Vilhjálmur Árnason, “Moral Analysis of an Economic Collapse—An Exercise in Practical Ethics,” Nordic Journal of Applied Ethics 4, no. 1 (2010), 109–115. 78 Special Investigation Commission, Causes and Effects of the Fall of the Icelandic Banks, vol. 8, 179–180. 79 In its report, the Venice Commission, which had been asked to evaluate the constitution bill, developed a number of criticisms, emphasizing shortcomings that clearly reflected lack of time and organization. See European Commission for Democracy through Law (Venice Commission), Opinion on the Draft New Constitution, March 11, 2013, CDL-AD(2013)010. 80 See Scott Page, The Difference: How the Power of Diversity Creates Better Firms, Schools and Societies (Princeton: Princeton University Press, 2007), 240. Bibliography Árnason, Vilhjálmur. “Moral Analysis of an Economic Collapse—An Exercise in Practical Ethics.” Nordic Journal of Applied Ethics 4, no. 1 (2010): 101–123. Árnason, Vilhjálmur. “Valdið fært til fólksins? Veikleikar og verkefni íslensks lýðræðis í aðdraganda og eftirmála hrunsins.” [Power Given to the People? Weaknesses and Problems of Icelandic Democracy before and after the Collapse] Skírnir 187, no. 1 (2013): 11–54. Árnason, Vilhjálmur, Salvör Nordal, and Kristín Ástgeirsdóttir. “Siðferði og starfshættir í tengslum við fall íslensku bankanna 2008” [Morality and Working Practices in Relation to the Collapse of the Icelandic Banks 2008]. 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