New Constituents

Originally published in Spanish in Letras Libres 

Carl Schmitt argued that the "constituent power is the political will or authority whose force is able to take the concrete joint decision of the manner and form their own political existence, thus determining the existence of political unity as a whole." Constituent power is a political being above the Constitution and therefore no constitutional law may limit or prescribe the manner of their activity.

Iceland is a particular case in the recent constitutional processes , applying and reinterpret the constitutional theory of Carl Schmitt. The same public pressure did the resignation of Geir Haarde, Icelandic Prime Minister in 2008, got the constitutional and administrative basis of Iceland were under review and discussion.

In November 2009 the Prime Minister Johanna Sigurdardottir-known for being the first openly gay Prime Minister - presented to the world-Icelandic parliament - Althingi - an initiative to convene a Constituent Assembly. The two main reasons behind this decision were, firstly, that the current constitution dates from when they managed Icelandic independence from Denmark in 1944 and is an adaptation of the Danish constitution in the institutions that replaced the constitutional monarchy in those corresponding to parliamentary system. Second, powerful and clear, that political parties had not demonstrated sufficient capacity to agree on reforms that the Icelandic constitution needed. 

The initiative was approved in June 2010 and the constitutional process began with a National Forum with the participation of 950 Icelanders to brainstorm on ideas and principles that should be recovered and analyzed by the Constituent Assembly.

In November 2010 elections were held to elect members of the Assembly. For this process, 522 candidates were registered and voted for 25 representatives. However, the Icelandic Supreme Court, based on three complaints, decided to annul the elections for various irregularities, the vote could not be issued on a secret, defects in the polls and the counting was not open and not as representatives allowed to be present during the count. 

But when a society decides to transform the constitutional will is unstoppable. The Prime Minister, with the agreement of the leaders of political parties represented in Parliament, joined a group of experts to analyze the decision of the Supreme Court and seek a solution that would continue with the constitutional process. The solution was, by decision of Parliament, a Constitutional Council composed of representatives who have had more votes in the election to the Constitutional Assembly fails.

The Constitutional Council was composed on April 6 and in accordance with Parliament's decision items to be discussed were:

  1. Fundamentals of the Icelandic Constitution
  2. Relationship between the Executive and Legislative
  3. Independence of the Judiciary
  4. Provisions on elections and electoral system
  5. Mechanisms of participatory democracy
  6. Foreign policy and relations with international organizations
  7. Ownership and use of natural resources.

The Constitutional Council opened the website Stjornlagarad and created accounts on Facebook , Twitter , Flickr and Youtube for citizens to monitor and review the process. The Council's work was divided into three groups. Monday and Tuesday work internally and proposals of each group were presented Wednesday to delegates from other groups for comment. The proposals were presented Thursday enriched at general meetings of the council that were broadcast live via the website . A special committee received the contributions made by users and social networking site and submitted to council vote. Comments on the draft can be made until the end of the approval process that will conclude on 29 July. As I write these notes are carried out by the end of the discussion to be leaving the paper to be submitted to Althingi for discussion.

That the Icelandic society has participated in deciding the form and manner of its political existence on Twitter or Facebook is not important. That discussion is open and horizontal is what matters to constitutional theory. It is the openness and horizontality in which the constituent states and will become pillars of democratic political decision. The technological tools have been the means by which the Icelanders have been closer to that ideal of constitutional theory in which the Constitution is a decision of the people on their political existence. That's the novelty of the constitutional process.