Iceland has been undergoing a process of constitutional revision. This process, which included substantial citizen involvement, resulted in a new draft constitution. The English version is available here.
In November 2012, the draft constitution was sent to the Venice Commission for its comments. The Commission has now issued its opinion. It is available here.
For the purposes of this blog, perhaps the most interesting comments concern the presidency.
For example, the Commission wonders whether direct election is necessary for such a weak president. However, given it is proposed that the president should still have the power to veto a bill and automatically generate a referendum, the Commission considers that direct election may indeed be appropriate. That said, they are not at all happy with this power. They would prefer the president to have a veto power that could be overridden by parliament or a veto that would then be considered by the courts.
Here is what the Commission’s says: “It seems most unfortunate that … the [veto] procedure is conceived as a confrontation between the main state organs – Althing and Government on one side, President on the other – with the people as arbiter. One or the other organ may result to be severely damaged by the conflict. If the President is of the opposite political colour of the majority in parliament, there is a strong temptation, especially for a directly elected President to whom not many other functions have been entrusted, to use this procedure for unpopular laws and thereby damage or reverse the government. This procedure makes the President very much a political player while otherwise he/she is more designed as a neutral Head of State.”
The other main issue in relation to the presidency is the Commission’s suggestion that the people might be given some power to initiate a recall vote for the president. Currently, such a vote can occur, but it can only be initiated by the legislature. They state: “Since the President is elected by universal suffrage, allowing the people to recall him/her from office evidently makes sense. However, placing the call for the referendum solely in the hands of Parliament and excluding the people completely from this stage of the proceeding somewhat spoils the idea of a direct responsibility of the President to the people. Hence, it might be suitable to allow also for the people to call a referendum.”
The issue of the president’s veto and the legislature’s power to initiate a recall referendum are also the subject of comment later on in the Commission’s document. Here, they leave aside the issue of a popular recall initiative and think through the potential for institutional conflict between the president and legislature. They write: “It must be said, however, that the President’s legislative veto right (and the subsequent referendum under Article 60) is a very remarkable prerogative. In the opinion of the Venice Commission, this may lead to a political crisis whose outcome would be difficult to predict. One may imagine that, in the event that the President would veto a law, the Althing could put forward the political responsibility of the President under Article 84 of the Bill. This extraordinary veto granted to the President may thus be seen as a source of danger in the democratic game, which does not match the role of a President in a balanced parliamentary system.”
Iceland Review is reporting that Alþingi’s Constitutional and Supervisory Committee has discussed the Commission’s reports and is likely to make some changes to the original draft of the new constitution. However, the report also states that the president’s veto power will not be amended. We can also safely assume that the president will remain directly elected. So, whereas changes may be made in relation to the section on human rights, it looks like no changes will be made to the role of the president, despite the Commission’s comments.