Background

On 16 November 2012, the Chair of the Constitutional and Supervisory Committee of the Parliament of Iceland asked the Venice Commission to provide an Opinion on the Bill for a new Constitution of Iceland (hereinafter the Bill).

On 17-18 January 2013, the working group travelled to Iceland in order to meet with representatives of the Constitutional Council having prepared the Constitutional Bill, as well as of  the Constitutional and Supervisory Committee of the Parliament (the Althing), the political parties represented in the Althing, the executive, the Supreme Court and the civil society. The Venice Commission wishes to thank them all for the discussions which took place on this occasion and the Constitutional and Supervisory Committee for the excellent organisation of the visit.  

The present Opinion is not meant to be an in depth study of the entire Bill. The timeframe was far too short for such a study and the limited availability of English translations of important material made it difficult to examine all aspects thoroughly. Consequently, the opinion is limited to a technical-legal analysis of the Bill submitted to it for examination on the basis of the material provided.

The Venice Commission has tried to place the opinion as much as possible in the specific historical, demographical, legal and political context of Iceland - and mainly addresses issues or areas which it has been invited to examine in more detail, namely: the functioning and the interaction between institutions (the Parliament, the Government and the President), the increased possibilities for referendums, the electoral system proposed and its impact on democratic representation. The Opinion furthermore addresses a number of topics raised by the Rapporteurs and discussed in the context of the visit to Iceland: fundamental rights and freedoms, the judiciary, foreign relations, the procedure for amending the Constitution.

In view of the timeframe of the constitutional process in Iceland, upon authorisation by the Venice Commission at its 93^rd Plenary Session in December 2012, the Draft Opinion was transmitted to the authorities of on 11 February 2012. The Opinion was subsequently adopted by the Commission, with slight amendments, at its 94^th Plenary Session (Venice, 8-9 March 2013).

Conclusions

The Venice Commission welcomes the efforts currently being made in Iceland to consolidate and improve the country’s constitutional order, based on the principles of democracy, the rule of law and the protection of fundamental rights and in line the international instruments that are binding for Iceland, as well as the country’s historical cultural, legal and constitutional traditions.

The authorities’ firm willingness to provide Iceland, following the recent economic and financial crisis, with sound, modern and democratic legal and institutional foundations for the Icelandic people to build a more just society and more adequately benefit from the common heritage, is to be commended. The Commission also welcomes the effort to provide increased transparency and clarity as to the functioning of institutions in the provisions of the Bill for a new Constitution. The special attention paid to the active involvement of citizens in the constitutional process, including by using the modern communication technologies, has attracted much interest and enthusiasm domestically and internationally.

In spite of these commendable developments, there are different views in Iceland as to the actual need and appropriateness for a new Constitution. The manner in which the constitutional process was conducted has also been the subject of debate. It is not the task of the Venice Commission to formulate conclusions on such aspects. The Commission has however noted that there is a risk that, if adopted, the Bill does not reach the consensus needed for it to be confirmed by the next parliament.

The Constitutional order established by the Bill maintains the country’s form of government – a parliamentary republic - associated with a complex set of mechanisms aimed at enabling increased direct participation of citizens in decision-making. While drawing on the existing system, it introduces also a series of changes and novelties, most of which intended to concretise the option for a strong parliamentary regime that underlines the proposed system.

While in itself such a model might be deemed suitable to the specific context in Iceland, its translation in legal and constitutional terms raises a number of issues of concern, which are presented in detail in the Specific Remarks section of this Opinion.

The Venice Commission notes in particular that numerous provisions of the Bill have been formulated in too vague and broad terms, which, despite the clarifications that might be provided by the Explanatory Notes, may lead to serious difficulties of interpretation and application, including in the context of the adoption of the implementing laws.

The proposed institutional system is rather complex and marked by lack of consistency. This concerns both the powers granted to each of the main constitutional actors - parliament, government and President -, the balance between them and their inter-institutional relations, often too complicated, as well as the mechanisms of direct participation introduced by the Bill.

The many possibilities for the people’s intervention, through referendums, in decision-making, may in principle be welcomed. This being said, like other decision-making mechanisms provided by the Bill, these appear too complicated in the constitutional provisions, which would need a careful review, both from legal and political perspective. Overall, there are reasons for the Venice Commission to see the risk of political blockage and instability, which may seriously undermine the country’s good governance. Similar considerations have been raised by the proposed electoral system, which would also need more careful consideration.

The human rights provisions, while introducing guarantees for a wide range of fundamental rights and freedoms, including socio-economic rights and “third generation” rights, would need increased precision and substantiation as to the scope and nature of the protected rights and related obligations, extended by the Bill to both public authorities and private stakeholders, as well as to possible limitations to these rights.

Provisions dealing with the judiciary, while generally in line with the relevant standards, would also benefit from increased clarity, especially on issues such as the immovability of judges and the independence of prosecutors. Similarly, clarifications should be provided as to several key aspects pertaining to the transfer of state powers and the place of international norms in the domestic legal system.

It is not for the Venice Commission to decide on the way to proceed to address the concerns raised in the present document. This is a political decision for the parliament of Iceland to adopt, taking into account the specific circumstances prevailing in Iceland at present.

If it were too difficult to come up with a solution in the present parliament, it might be considered appropriate to focus the current process on amending, at this stage, the procedure in force for revising the Constitution - rather complicated under the current Constitution - and leave to the future parliament the task of continuing the work of constitutional revision under the new procedure, taking the time needed to consider the comments and questions raised by the various stakeholders, including the Venice Commission, and improve the Bill accordingly. Other points - priority issues for the country or matters that are of wider acceptance and/or less controversial -might also be included.

The Venice Commission remains at the disposal of the authorities of Iceland for further assistance.

 Text of the opinion CDL-AD(2013)010