Questions on the ballot - discussion and clarification

The first question on the ballot paper seeks to elicit the voter’s position as to whether, if a new draft Constitution is submitted to the Althingi, it should be based on the Constitutional Council’s proposals.

The way things are now

The Constitution of the Republic of Iceland, Act No. 33 of 17 June 1944, was based on the Constitutions of 1874 and 1920. When the Republic was established, the only amendments that were made were those necessarily entailed by the dissolution of the union with Denmark. One of the main amendments made at this time was the introduction of the presidential veto under Article 26. The intention was that the Constitution would be revised later.

Various amendments have been made to the Constitution in the past few decades. Most of the amendments have applied to elections and constituency boundaries; the last of these was made in 1999. Some amendments concerning the functioning of the Althingi were made in 1991, and a new section on human rights was approved in 1995. Attempts to have a comprehensive review of the Constitution made have not as yet proved successful.

The Constitutional Council’s proposals

The Constitutional Council’s proposals allow for the enactment of a new Constitution for Iceland, with the arrangement and presentation of the material substantially different from that in the current Constitution. Under the proposals, the number of articles in the Constitution would rise from 81 to 114. The text would be divided into nine chapters, in addition to a preamble: Fundamentals; Human Rights and the Natural Environment; the Althingi, the President of Iceland; Ministers and the Government; the Judiciary; Local Government; Foreign Affairs and Final Provisions. The introductory section of the explanatory notes accompanying the proposals contains a survey of their principal contents and the main changes they entail, as compared with the present Constitution. The explanatory notes accompanying the Constitutional Council’s proposals state that the council followed three guiding principles in its work: distribution of power, transparency and accountability. The emphasis in the revision of power mechanisms and the limits of state power is on the view that all power should entail accountability.

Further information in Icelandic on the proposals, explanatory notes and comments are here.

Discussions and arguments

The need to revise the Constitution in certain respects has been discussed for a long time. There has been disagreement as to whether to make amendments to the present Constitution or to start from scratch and make a completely new one. This is one of the reasons why the parties now represented in the Althingi have not managed to agree on further collaboration on a review on the basis of the proposals by the Constitutional Council.

An advisory referendum

As has been stated before, the outcome of the referendum will have an advisory value. The Icelandic Constitution can only be amended if the amendment is passed by two parliaments, with a general election taking place in the middle of the process. This procedure is described in Article 79 of the Constitution, and also in the following explanatory text on the ballot paper itself.

For amendments to the Constitution, a bill of amendment is presented to the Althingi. It then goes through three readings, and may be amended in the course of discussion by the Althingi. If the bill is then passed, the Althingi must be dissolved and a new Althingi must be elected. The bill is then presented again, and if the Althingi passes it without amendment, the amendments to the Constitution then take effect once they have been confirmed by the President. The Constitutional Council has presented to the Althingi its proposals for a new draft Constitution. If this draft is submitted to the Althingi, it will be treated as described above.

Thus, the Althingi cannot assign its legislative power in a binding manner; consequently, the Constitutional Council was ‘entrusted with an advisory role towards the Althingi,’ as it was put in the notes to the proposal for a parliamentary resolution appointing the council. Thus, processing of the matter therefore lies with the Althingi in accordance with the provisions of the Constitution, the Parliamentary Procedure Act and other decisions that the Althingi may take.

It is not yet clear whether a constitutional bill will be presented to the Althingi, or who would do this. Individual members and ministers, and the Government itself, have the right to do so.

The proposals submitted by the Constitutional Council in summer 2011 have been under examination by the Althingi’s Constitutional and Supervisory Committee ever since. The committee has received a large number of comments on the proposals and has consulted experts of various types concerning their contents. Last May the committee commissioned a group of four lawyers to examine the proposals in their entirety. This work is now in progress, and will not be complete until after the referendum. The group was asked to examine the proposals from a technical point of view, giving consideration to the following points, among others:

• human rights conventions which Iceland has undertaken to observe
• internal cohesion and potential contradictions
• protection under the law, as compared with the present Constitution, taking account of the explanatory notes on the proposals
• the possibility of legal actions against the state.

Reviews by the group or comments by other parties may result in the Althingi’s amending, re-wording or removing particular provisions in the proposals by the Constitutional Council, or adding new provisions when compiling a draft Constitution.

What will happen after the referendum?

Invariably, all bills submitted to the Althingi can undergo change when they are under examination there, either in response to written or oral comments and criticisms or in the course of debates by the Althingi. This also applies to a draft Constitution, irrespective of whether it would take the form of the Constitutional Council’s proposals as they are now or include amendments to them.

If amendments to the Constitution are passed, the Althingi must be dissolved and a general election called. The custom has been that constitutional amendments are only passed at the end of the term of a parliament.

Here, the question asked is whether natural resources that are not privately owned should be declared national property. However, no definition is given in the question of what is meant by the term national property or of what constitutes a natural resource.

The way things are now

The Icelandic Constitution contains no provisions on the ownership, utilisation or treatment of natural resources, with the exception that the second paragraph of Article 72 provides for restrictions to be imposed on the right of foreign parties to own property interests or shares in businesses in Iceland. It also follows from the general powers granted to the legislature that it may set rules on the treatment, utilisation and ownership of resources, whether these are privately owned, state owned or without owners. Thus, various provisions on the ownership of natural resources (e.g. state ownership of public lands and the resources of the seabed) and on the treatment of natural resources (e.g. the quota system governing catches from marine stocks) are to be found in ordinary statutes.

The Constitutional Council’s proposals

The council’s proposals, Article 34, include provisions stating that resources in Iceland’s natural environment which are not privately owned are to be the common and permanent property of the nation. No one would be able to acquire ownership of these resources, or of rights pertaining to them, or have them at their disposal on a permanent basis, and it would be prohibited to sell them or mortgage them. It can be seen from the council’s explanatory notes to this proposal that the term ‘national property’ is intended to establish a right of ownership in the legal sense. Thus, this is not simply a reiteration of Iceland’s sovereign right over the natural resources within its jurisdiction and the need to ensure that they are utilised for the benefit of the nation as a whole; rather, the purpose of this provision is to establish a particular type of right of ownership of natural resources which are not privately owned.

Natural resources owned by the nation are defined in the proposals as natural goods of all types, such as exploitable marine stocks, other resources of the sea and the sea-bed within Iceland’s jurisdiction and water springs and harnessing rights, rights over geothermal resources and mining and quarrying rights. In addition, it would be possible to determine, in ordinary statutes, that resources lying below a certain depth under the surface of the ground would be national property. The notes state that this list comprises examples of the main types of resources under national ownership, but that the list is not intended to be regarded as being exhaustive.

Discussions and arguments

In recent years and decades, various European countries have adopted constitutional provisions claiming the ownership of the state or the nation of natural resources. These provisions have various meaning and purpose. Opinion has been divided in Iceland as to the form that such provisions should take.

The term ‘natural resources’ usually applies to all aspects of the natural environment, the earth, the biosphere, water, the sea, air or sunlight, that may constitute value. In the case of the utilisation of wild animals or fish, the right of utilisation or fishing rights may be owned privately or by the state. On the other hand, wild animals, e.g. fish that have not been caught, cannot, strictly speaking, constitute property in the normal sense of the word until they are caught or confined.

On the basis of this view, the criticism has been expressed that it is unclear what goods would be covered by the category ‘national property’ if this categorisation is intended to establish an actual right of ownership. Another criticism that has been voiced is that ‘the nation’ is too vague a collective entity to be regarded as being the owner of anything, and that consequently, ‘national property’ means ‘state-owned property’.

Proposals on having provisions on natural resources included in the Constitution can be traced at least as far back as the 1960s in Iceland. In those proposals, however, the term, whether it is worded as ‘property of the nation’, or ‘national property’ or ‘communal property of the nation’, was not always used in the same sense.

On the one hand it has been used to refer to rights of ownership in the legal sense, ‘national property’ hence amounting to state ownership. In these earlier proposals, the caution was generally expressed that only natural resources that were not privately owned were to be regarded as property of the nation.

On the other hand, the term has been used as meaning that Iceland’s right of sovereignty entails a right on the part of the state to take steps to ensure that natural resources are used for the benefit of the nation as a whole. In these instances, the term ‘national property’ has been used to apply to natural resources of all types, irrespective of whether they are privately owned, state owned or ownerless.

Here, voters are asked whether they wish the new Constitution to contain provisions on a national church in Iceland, as has been the case in the Constitution up to now. It should be noted that the question does not cover voters’ attitudes on a separation between the present national church and the state.

The way things are now

Article 62 of the Constitution states that Evangelical Lutheran Church shall be the State Church in Iceland and, as such, shall be supported and protected by the State. Provision is made for this to be amended by law, which is an exception from the general procedure applying to amendments of the Constitution: no other amendments can be made by the ordinary enactment of legislation. There is nevertheless a special rule in the second paragraph of Article 79 of the Constitution to the effect that amendments regarding the status of the church must be approved in a referendum.

The Constitution contains no further description of the form that support and protection of the State Church is to take; this can be found, however, in ordinary statutes, and in particular the Act on the Status, Governance and Functioning of the National Church, No. 78/1997. The view has been taken that owing to its special status, the National Church has certain obligations in Icelandic society which it is to discharge towards the public as a whole, and not only to those who are part of its congregation.

The Constitutional Council’s proposals

Under the proposals of the Constitutional Council, Article 19, there would be no provisions determining the status of churches in the Constitution, and thus no mention of the National Church. It is proposed that the status of churches be determined in ordinary statutes, amendments to such statutes being put to a referendum; thus, the nation would continue to be in a position to adopt a position directly on the issue, as is provided for in the present Constitution. A provision on the referendum requirement would thus be added to the Act on the Status, Governance and Functioning of the National Church, which would continue to be in force.

According to the explanatory notes to the Constitutional Council’s proposals, the removal of the provision on the National Church from the Constitution was one of the most hotly disputed matters that the council discussed. The notes also state that the aim of the article is to make it easy for the legislature and the executive to take a decision on the status of the church in Iceland in the future; such a decision would necessitate a referendum in which the nation itself would decide how the issue were treated.

Discussions and arguments

Established national churches are found in many countries in Europe. The constitutional provisions on the National Church in Iceland are derived from those in the Danish constitution; a materially identical provision is still in Denmark’s constitution of 1953. The Supreme Court[1] ruled that the provision was compatible with the principles of the Constitution regarding freedom of religion and equality, and also the international human-rights conventions that Iceland has ratified, providing that it does not abridge the individual’s right to practice another religion, found a religious association or to remain unaffiliated to the National Church or other religious associations, and providing individuals do not suffer discrimination in consequence.

The rules of the Constitution represent a covenant regarding the structure of the state and the position of the individual within it. They are therefore more important than other rules, and take precedence over ordinary statutes. The constitutional provisions stating that the Evangelical Lutheran Church is to be the State Church in Iceland entails the conferral on the National Church of a role as part of the constitutional structure of society.

Opinion was divided among the experts whom the council turned to on this point. Some experts were the opinion that dropping the provision on the State Church from the Constitution and having provisions on the status of the church in ordinary statutes is the first step in the direction of a separation of church and state. Others expressed the view that the provision on the State Church could not be dropped from the Constitution without submitting the decision to do so to a binding referendum in accordance with the second paragraph of Article 79 of the Constitution, as it would entail an amendment to the status of the church. Others again were of the opinion that dropping the provision, as the proposals envisage, would be a viable course of action.

This question concerns whether a provision should be included in the Constitution on the election of particular individuals which would be broader than is the case in the present legislation on electoral procedure. The question does not ask how far to proceed in authorising the election of individuals in the Constitution.

By ‘the election of individuals’ is meant an arrangement in which the voter is able to choose individual candidates (one or more) from the list on the ballot paper instead of choosing between party-political lists as has been customary in general elections in Iceland.

The way things are now

The present Constitution contains no provisions on the election of individuals. Under Article 82 of the General Elections Act, No. 24/2000, voters are permitted to cross candidates’ names out or change the order in which they are ranked on the list of their choice. The authorisation to change the order was expanded in the current General Elections Act; for more than half a century prior to that, changes made on the ballot paper by voters had had practically no effect. In the general elections of 2007 and 2009, four candidates were moved one position down on their lists as a result of changes made by voters to the list for which they voted.

Under the current provisions, in order to change a candidate’s position by one seat on a list through the crossing out of names (the method that is by far most commonly used), 10-25% of those who vote for the list in question must cross out the same name. If voters wish to ensure a particular candidate a secure seat in parliament, or cause a candidate who already occupies a safe seat to lose it, more is required: as many as half of those who vote for the list in question would have to make the same deletions.

A certain type of individual election has been practised in Iceland since about 1970 in the form of ‘primaries’ held by the political parties in the run-up to general elections. In most cases in recent years, the primaries have only been open to party members or supporters.

The Constitutional Council’s proposals

Article 39 of the proposals envisage that the ranking of candidates on political parties’ lists would not determine which of the candidates were elected to the Althingi; this would depend on the number of votes the individual candidates received. Voters who merely chose lists would therefore leave the ranking of candidates on the list to other voters, irrespective of whether many or few availed themselves of this possibility. It is stated in the explanatory notes to the proposals that this arrangement would go further than is done in various other countries as regards election on an individual basis. The proposals allow for voters’ being able to choose candidates from lists fielded by different political organisations, though it would be up to the legislature to decide whether this option were actually employed.

Discussions and arguments

In most parts of the world, provisions on election on an individual basis are less extensive than those proposed by the Constitutional Council. Election of individuals is nevertheless the dominant practice in the Faroe Islands, Finland, the Netherlands and Ireland. Thus, the voters determine at the polling stations which candidates are actually elected from each list, just as the Constitutional Council is proposing here. Examples can be found of mixed methods, different rules for how the lists are presented, and election on an individual basis. It is rare that voters can choose candidates from more than one list, but this is the case, for example, in Ireland.

As an example of how this works in practice, voters in Sweden can choose from ranked lists of candidates. If 5% of those who vote for a particular list mark a particular candidate, then he or she will be put at the top of the list. The same applies if more than one candidate is marked in this way: they will all be put at the top of the list, their positions relative to one another then being determined by the number of votes received by each. It is rare that Swedish candidates have been elected as a result of such changes to the lists, but since this system was introduced in 1998, 22-30% of voters have made use of this option of choosing individual candidates.

Another example is the Danish method. In this, parties may field either ranked or unranked lists; most field unranked lists. In the general election of 2007, about half the voters ranked the candidates, so determining who was actually elected from each of the lists.

The main argument in favour of having elections based to a greater degree on the choice of individual candidates is that this would give voters greater choice and make for greater accountability on the part of politicians. Voters would be able to choose the individuals they consider most competent and trust best to represent them in parliament.

The main argument against the election of individuals it that it is impossible to predict what effect such a system would have. Great emphasis on individuals may increase the likelihood of irrelevant issues creeping into the political process, and in many places, election on an individual basis has led to problems in monitoring financial contributions to political activities.

The point in question here is whether votes cast in all parts of the country should carry equal weight. The question does not cover the issue of whether the country should consist of one or more constituencies.

Votes of equal weight or different weight

Unequal weighting of votes means that more votes will be needed in one constituency than in another in order to have a member of parliament elected. In the 2009 general election, there were 2,366 voters on the register for each MP elected in the Northwest constituency, compared with 4,580 in the Southwest constituency. In the latter case, therefore, more than twice as many votes were needed to elect an MP.

With equal weighting of votes, there would be no such difference between the constituencies. In the 2009 general election, there were 3,977 voters on the register for each MP elected in the Reykjavík South constituency, compared with 3,979 in Reykjavík North. Votes in these two constituencies carried equal weight.

The way things are now

Ever since Iceland’s first general election in 1844, there has been imbalance in the weighting of votes from one constituency to another, though this has been reduced in recent years.

Under the fifth paragraph of Article 31 of the Constitution, the imbalance may not be greater than a ratio of 1:2, and seats may be transferred between constituencies if the ratio gives occasion for doing so. This happened in 2003 and 2009 in the Northwest constituency. In the next general election, one seat will be transferred from the Northwest to the Southwest constituency, where there will be 13 seats instead of the 12 there were in 2009. This will bring the number of MPs from the Northwest constituency down from ten as they were in 2003 to eight.

The Constitutional Council’s proposals

The council proposes in Article 39 that all votes in the country carry equal weight, and also that the Althingi may decide that the whole country is to be a single constituency, though it may also choose to split it into more than one, in which case only some MPs (a maximum of 30 out of 63) would be elected on a constituency basis. The explanatory notes to this proposal state that the principle of having votes in all parts of the country carry equal weight is, in substance, an innovation. As to whether the country should be a single constituency or not, the council has taken a middle road, since it proposes that candidates would be able to address their campaigns to particular regions or constituencies, while voters would nevertheless be able to make their choice from among all candidates in the country.

Discussions and arguments

All the Nordic countries, except the Faroe Islands, have a constituency system for electing MPs, and the same is true of most western democracies. In a constituency system, ensuring balance between constituencies can be complicated. Greater equality in the weighting of votes, and even more or less complete equality, can however be achieved in such a system.

The main argument in favour of having the same weighting of votes in all parts of the country in general elections is that it is natural that all voters should have an equal say in the election, irrespective of where they live and other social circumstances.

The main argument in favour of having differences in the weight that votes carry is that otherwise, the major population have too much influence, at the expense of the rural areas. It is therefore natural that those who live in the rural districts far from the administrative centres and the seat of government should have more MPs than could be expected on the basis of their numbers alone.

This question is intended to establish voters’ position on whether the Constitution should specify that a certain proportion of the electorate (e.g. a minimum percentage of the electoral register) can take the initiative on having particular issues put to a referendum. It does not ask how large the proportion should be.

The way things are now

The present Constitution contains no provision allowing for voters to take the initiative on referring matters to a referendum. Referendums are rather uncommon in European countries, though more of them have been held in the past few decades, for example in connection with states’ accession to the European Union. Iceland has little tradition of holding referendums in order to establish the nation’s views on particular issues or of exercising the authorisations found in the Constitution for putting matters to a referendum. The pattern in recent decades in Iceland has been similar to that in the other Nordic countries, where referendums are intended as a safety mechanism to maintain balance against representative democracy and have been held under special circumstances.

The Constitutional Council’s proposals

The council proposes, in Article 65, that 10% of the electorate could demand a binding referendum on laws passed by the Althingi. The same proportion of voters could take the initiative on proposing issues for debate by the Althingi, which would then be referred to the nation in either binding or advisory referendums, the choice of type lying with the Althingi according to Article 66. The proposals specify, in Article 67, that matters to be put to a referendum demanded or initiated by voters must concern the public interest, and they include a list of categories of issues that would not qualify for such treatment.

Discussions and arguments

Referendums are common in some countries, e.g. in Switzerland and Italy, where voters are able to call for the holding of referendums under provisions in the constitution. The constitutions of the Nordic countries do not contain such provisions.

Article 108 of the Local Government Act, No. 138/2011, contains a provision on initiatives taken by inhabitants of local government areas on calling for a general vote on particular issues, and the local authority is obliged to comply with such a request if it is made by 20% of voters.

The main argument in favour of referendums is that they tend to sharpen voters’ understanding of the issues under discussion, so enhancing their political competence. Referendums can also inform the government of what voters want and put issues that have not aroused politicians’ interest on the agenda. In some cases, they have been used to resolve disputes that are difficult to address in any other way.

The main argument against making referendums more common is that they can reduce turn-outs in elections and encourage a tendency not to see matters in a broader context but instead to concentrate on each one separately. Attitudes towards matters other than the subject of the referendum (e.g. towards the government) can sometimes influence the outcome, and powerful financial interests or the media can also exert a great influence. In some cases, the government itself can then determine how the results are interpreted.