Question No. 1 – The Constitutional Council’s proposals and the explanatory text on the ballot paper

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.