The Human Rights Chapter

One aspect of the constitution that has been expanded substantially in the council’s proposal has to do with the rights of citizens. While noble in their aims, these proposals strike me as unnecessary at best and troublesome at worst. Why?

 

Why unnecessary? Well, none of the rights included in the amendments strike me as controversial – these are more or less things that all icelanders believe are rights already (if this was the US constitution things night look a little different). So really this is just fluff…more or less. And pretty harmless as such. So if it makes is feel good about ourselves, why not include these amendments?

Well, some of these can actually be seen as being closer to policies than rights. Like the right to free education.  The proposed section, Section 24, in rough translation, is:

“Everyone shall be guaranteed by law the right to general education and instruction suited to them.

Everyone subjected to compulsory schooling, shall receive the opportunity of receiving free education.

Education shall aim at everyone’s general development, critical thinking and awareness of human rights, democratic rights and responsibilities.”

Now, you and I may agree that this is in general a good idea.  But it is not inconceivable that future generations may think differently – they may come to the conclusion that the private sector is better at providing education, that paying for education creates elicits more effort from students (or their parents), etc.  Maybe it is a crazy idea that future generations might think differently.  But if that is the case then there really is no need to include the clause in the constitution.  The point is that either  the proposal ties the hands of future generations, i.e., in the future a minority will be able to hold on to the right of free education even if a large majority prefers a different form of educational provision, or it doesn’t matter at all.  The section is not only about the right to education, it is also about how that education is delivered.  In my view these should be separated.  The right to education should be guaranteed (probably) in the constitution but how it is delivered should be left up to the government, or the people, at any point in time.

I’ve only picked on education here as an example – similar arguments can made about several other clauses in the constitution. And, for the record, I do think education should be free.  I just don’t think it is something that belongs in a constitution.  Overall, I get the sense that not enough thought has been given to what belongs in the  constitution, i.e., what really constitutes rights – things that we really believe future governments shouldn’t be allowed to change without much difficulty, and what doesn’t, i.e., general public policies.  A constitution that limits the choice of future generations to change policy doesn’t strike me as terribly democratic.

A second issue with Section 24, and many others, is that it makes a reference to laws that are supposed to spell out in greater detail the rights of citizens or the implementation of those rights.  Now, I may sound like I am contradicting myself here, since I just argued that these things should be determined by regular laws.  However, the things to be provided by regular law often seem quite fundamental, e.g., “Everyone shall be guaranteed by law the right to general education and instruction suited to them” sounds very much crucial to what the right to education constitutes.  That is, a regular law will presumably spell out what ‘general education’ and ‘ instruction suited to them’ means.  To me, ‘general education’ could mean something as little as reading and writing.  What on earth does ‘instruction suited to them’ mean?  Who determines what instruction suits me?  Can I sue the government if I receive education that I don’t think suits me?  I’m not sure whether vagueness of the section renders it meaningless or if it will result in a slew of lawsuits centered on whether the law is constitutional, i.e., whether the government is indeed providing ‘general education’ and ‘suitable instruction’.

Many of the sections in the chapter on human rights share these characteristics: Sections 11, 12, 13, 14 (to some degree), 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 25, 27, 33, 35, and 36 all rely, to a varying degree, on legislation to both further define the rights being addressed and how they are to be protected.  I’ll happily concede that in some of the cases this is probably a minor issue but in some instances I’m not so sure.  So in sum, at best,I think the majority of the clauses are largely meaningless.  At worst, I think they may cause some real problems in the future and, as a result, they will serve to strengthen the judiciary, which will be called upon to rule on the constitutionality of the government’s legislation.  And, because, these sections tend to be fairly vague, the judiciary will have considerable leeway to interpret them as it sees fit and in effect make public policy in areas such as education and health.  That doesn’t strike me as very democratic.

A couple of things that I’ll just mention briefly.  First, I have assumed in the above that there is a neat distinction between ‘rights’ and ‘policies’ and that the former belong in constitutions and the latter don’t.  Whether such a distinction really exists, I don’t know – not all of the human rights here have always been considered human rights.  Maybe the only difference between the two is that there is a general consensus about ‘rights’ but not (necessarily) about policies.  I don’t know. I’ll leave that to the political philosophers.  Second, many constitutions have promised a number of rights, e.g., the right to education, that the state has not been able provide.  One may worry about the effect of constitutions promising more than the state can feasibly deliver, i.e., if the constitution is violated and nothing can be done about it, might that not undermine the legitimacy of the whole document?  Now, Iceland is a wealthy country that is perhaps less likely to run into such problems than many of the countries that have found themselves in such situation but, still, Section 23 promises “Everyone shall be guaranteed by law the right to the best mental and physical health possible” (“Allir eiga rétt til að njóta andlegrar og líkamlegrar heilsu að hæsta marki sem unnt er”).

Size of Parliament

In an article on visir.is, Þorvaldur Gylfason, a member of the constitutional council, argues that the size of parliament should be reduce from 63 to 53 seats.  Þorvaldur, a former colleague at the University of Iceland, had actually asked me to put together a short summary about research on the size of legislature before the Supreme Court invalidated the outcome of the election to the Constitutional Assembly – at which point I put the matter aside and then, apparently, forgot about it.  Þorvaldur’s article was a timely reminder so here are my two cents.

In short, not a whole has been written about the size of legislatures and much of it focuses on the effects legislature size on government spending.  Most research finds that larger legislatures spend more.  The argument is that individual legislatures are concerned with winning election and in order to win election are more likely to propose pork barrel projects to build a personal vote base.  In addition, larger legislative size makes pork barrel projects cheaper as the deliver target benefits while the costs are distributed more widely (greater number of districts).  A lot of this literature is focused on the U.S. where the conjecture appears to be supported by the empirical evidence (in unicameral legislatures). Mukherjee (2003) does find the same effect in a cross-national study.  As pork barrel politics appear to have been fairly important in Iceland historically and the preferential votes system is not likely to reduce those incentives, reducing the size of Althingi can be expected to reduce government spending (which may or may not be a good thing depending on one’s political leanings).  On the other hand, Primo and Snyder (2005) work suggests that the type of spending that is affected are, as the argument above suggests, inefficient pork barrel projects, which are less controversial.  However, that depends a lot on what the electoral system will look like – pork barrel projects may very well benefit the rural areas, which traditionally have been overrepresented in Althingi.  That said, even under a  preferential voting, it seems quite plausible that legislators/candidates will seek to carve out ‘strongholds’ even if the country is a one electoral district.

There is no question that Iceland’s legislature is large given the country’s population – there are roughly 5060 citizens for each legislator.  Only Tuvalu, Andorra, and Antigua and Barbuda have fewer citizen per legislator.   One implication of this is that under the preferential vote system shaking hands and kissing babies (hopefully they will stop short of kissing chickens as Irish politicians have been known to do) really looks like a feasible strategy.  Randomly looking up MPs, I found, e.g., that Helgi Hjorvar has 2407 friends on facebook – surely that is enough to get elected under the preferential system.  Reducing the number of MPs from 63 to 53 is, however, unlikely to make much of difference – it increases the number of citizens per legislator by slightly less than thousand.  Thus, under the preferential system, shaking hands, doing favors and providing pork would remain a feasible strategy unless a much larger reduction in the number of legislators was undertaken.

However, at 63 legislators, Althingi is already a small legislature.  A lot of the discourse about the reform has focused on strengthening Althingi – although I think that discourse is in large part based on rather strange ideas about parliamentary regimes.  Leaving my skepticism aside, the literature on legislature frequently cites strong committee systems as an important, if not the primary, source of legislatures’ power vis-a-vis the executive.  One strand of those arguments focuses on institutional powers (ability to amend bills or kill bills in committee – which often are absent or dominated by party discipline in parliaments).  Such institutional powers are not likely to be affected by the number of legislators.  Another strand of arguments about the importance of legislative committees focuses on the opportunity that permanent legislative committees offer MPs to specialize.  As it stands there are 12 permanent committees composed of nine MPs each (11 for the the budget committee).  Thus, on average, each MP serves on 1.74 committees.  That seems quite a lot to me and I am skeptical that this allows MPs to become specialists in any policy area.  Reducing the number of MPs by 10 would increase that to 2.07 committees per MP, which certainly won’t help matter.  All in all, if one considers the committees the way to increase parliament’s influence, I think there is a strong case for increasing the number of MPs.

Parliament’s role is not just to legislate – it is supposed to provide oversight.  One might argue that Althingi failed spectacularly in its oversight role in the years leading the the economic crash in 2008, which in no small part pushed the constitutional reform forward.  Despite being charged with protecting the interests of its citizens, not a single MP (save one minister) thought it necessary to resign.  The question is why Althingi didn’t take its oversight role seriously.  While I don’t know the answer to that question, a part of the problem has to do with Althingi’s resources – including the number of MPs for the reason cited above.  If Althingi is to have any real influence on policy or be able to exercise oversight it needs to have the resources to do so – meaning that either it needs to provide the right conditions for MPs to specialize in policy or vastly expand (establish?) Althingi’s research capabilities.  The problem with Althingi is not that it is too expensive but that it is too cheap.

There are also some other issues that need to be considered.  Ministers have, nearly without exception, been drawn from the legislature.  That is, the legislature is effectively the talent pool from which ministers are drawn.  What are the effects of shrinking the talent pool?  Supposing there are 10 ministers (as proposed by the constitutional council) then nearly two-fifths of the MPs of the governing parties (assuming a narrow majority) are become ministers.  Frankly, I find that a little worrying.  I’ll quote (a great quote) from Dewan and Myatt (2008) about ministerial selection in the UK:

“Paxman (2003, p. 209) recounted that Tristan Garel-Jones, a whip in a United Kingdom government of the 1980s and a close confidante of Prime Minister John Major, recalled scanning a list of fifteen candidates for a junior ministerial post and thinking

“I wouldn’t employ a single one of them. The problem was that, if you include all the various ranks of ministers, you have to find maybe ninety people to form a government. You have perhaps 350 or so people to choose from. Once you’ve eliminated the bad, mad, drunk and over-the hill, you’ve got rid of a hundred. You then have to pick ninety people out of a pool of 250. Is it any wonder that the calibre is so low?” “

Changing the number of MPs is also likely to affect the number of parties (thought how that pans out depends on the electoral system) – most likely reduce the number of parties and raising the barrier of entry for new parties.  That brings us back to the size of government.  Mukherjee (2003) finds that the number of parties in the legislature has a positive effective on government spending and others have shown that the number of parties in government also increases government spending (Bawn and Rosenbluth) but greater legislative fragmentation should lead to larger coalition governments (i.e., more parties).

In sum, I can see arguments for and against reducing the size of Althingi – in the end I think it depends on the role one wants Althingi to play.  However, I think a lot more research is required to offer a conclusion answer.  As it stands, we actually know fairly little about what members of Althingi do.  For example, how important are the legislative committees in the current system?  How much does Althingi amend legislative bills?  Are these amendments substantive or are they primarily cosmetic?  How important is pork barrel in Icelandic politics?  Making an informed decision actually requires answering these questions – and ideally not just rely on our hunches about what the answers might be.

 

For references: See Required Readings

Some additional notes on related readings.  Stigler (1976) is one of the early studies of legislature size and its consequences.  Lowenberg (2007) discusses how different conceptions of representations have implication for the choice of the size of the legislature.  Gilligan and Matsusaka (2007), Primo and Snyder (2005) and Chen and Malhotra (2007) provide evidence for the positive relationship between legislature size and government spending in the U.S.  Mukherjee (2003) shows that legislature size and the number of parties increase government spending.  Ricciuti (2004) also examines government spending cross-nationally and fails to find evidence for a relationship. Nadia Fiorino and Roberto Ricciuti (2007) find a large effect of legislature size on per capita regional government spending in the Italian regions. Rasmusen and Ramseyer (1992) examine the relationship between size of legislature and bribes.

Counselling the Council

The constitutional council claims to have  consulted a number of experts in coming up with its proposals.  I was curious to find out who these experts were since I had offered the council to help them find experts that might be able to provide useful advice – having spent years studying political institutions I have gotten to know a number of the leading scholars in the field, some of which have been involved in similar efforts at institutional reform and many of which would have been happy to give their advice if approached.  Needlessly to say, the constitutional council didn’t take me up on my offer.  The council’s website lists the experts who have been consulted.  I can’t say that I was surprised.

If I have counted correctly, the council sought the advice of experts a total of 21 times.  In twelve of these cases, the expert was a lawyer (the same lawyer was consulted in four of these cases, another one in three of them).  In seven cases, the expert consulted was a ministry. The secretary of Althingi’s budget committee was consulted once.  And in one case a political scientist was consulted.

So while I don’t know what kind of experts the people preparing the responses for the ministries were or if the council sought the advice of other experts informally, I think it is fairly striking that only in one instance did the council see fit to consult a political scientist.  And even in that instance, the choice of an expert seems a little odd – the council sought comments about the section on parliament and parliamentary procedures and the chosen expert is, primarily, a political historian who, as far as I can tell, hasn’t done any work on parliaments.  That’s not to say that his comments shouldn’t have been sought but it is difficult to see why this expert was chosen over other Icelandic (or foreign) political scientists who have studied parliaments.  But I shouldn’t complain – at least there is one political scientist.

I have complained the about role of lawyers in the process – I won’t repeat my argument here but I think the fact that over half the experts are lawyers  is a cause for worry.  To be clear, I think lawyers should be involved – I just don’t think only lawyers should be involved.  The results aren’t entirely surprising. Looking at the current draft proposal, the branch of government whose powers will be made stronger is the judiciary.  And the vagueness of many sections of the draft (to be fair, it is a draft and hopefully these things will be ironed out) almost seems constructed to guarantee lawyers work for years to come.

At any rate, it is extremely frustrating that the constitutional council almost seems to make a concerted effort to make uninformed decisions.  It might be blamed on ignorance about what political scientists actually do but there are actually, at least, two political scientists on the council – neither would qualify as an expert on most of the institutions being debated – so that doesn’t seem like a plausible excuse (although not impossible).  So why doesn’t the constitutional council seek the advice and input of scholars that have spent years of their lives collecting and analyzing data about how the very institutions being debated actually work?

The President's Veto

The ability of the Icelandic president to refer legislation to a referendum has been source of controversy every since the president used his veto for the first time in 2004 to veto a bill on the ownership of the media.  The episode lead to much debate that was primarily focused on whether the president’s actions were actually constitutional – a different clause in the constitution states that the president’s powers are exercised by the government’s ministers.  The debate was legalistic and basically focused on competing interpretations of the constitutions.  Regardless of what interpretation is ‘correct’, the episode highlights the limits of the legalistic discourse that has surrounded the Icelandic constitution – and still appears to surround the making of the new constitution.

The fact remains that the president did use his veto.  He was able to do so because the constitution was sufficiently ambiguous and the political context was right – the government forced a bill, seen as targeting particular individuals, through parliament without much consultation and it appeared unpopular with the public.  It can be argued that the president’s veto fundamentally changed the political system – previously it had been semi-presidential in name only.  Since then the president has used the veto twice.  In short, all the legal arguments about the constitutionality of the presidential veto didn’t matter at all.  The veto came to be because it served the political ends of the president (whether those were opposition to the legislation or a desire to strengthen the presidency).  On one hand, this suggest that the law is important, i.e., if we want the constitution to be effect it needs to be clear and unambiguous.   On the other hand, it suggests the limitation of legalistic approaches as politicians (and people in general) react strategically to the institutions that constrain their actions.  In other words, politicians generally don’t get involved in politics out of desire to follow the law but rather to achieve a variety of other goals, e.g., changes in policy or a desire to hold a public office.  The constitutions sets the rules of the game but politicians will, of course, try to use those institutions to their advantage – much like football players occasionally take a dive or pull a shirt.  The legal approach to constitution making largely ignores how political institutions create strategic incentives and, therefore, remains silent on what the unintended consequences of those institutions might be.  As I have mentioned before, the fact that most of the writings that the Constitutional Council appears to be consulting (judging by its website) is written by lawyers (not to mention primarily being case studies focused on Iceland).  I think Posner once wrote that there was few things as dangerous as a lawyer that didn’t know economics.  These days I worry that there are few things as dangerous in Iceland as lawyers (or constitutional writers) that don’t know political science.

In some ways the controversy surrounding the use of the veto in 2004 can be seen as having sparked the constitutional reform debate so it is not surprising that the Constitutional Council has offered a proposal.  The Council actually offers two options.  The first one is to retain the current veto + referendum combination while an alternative proposal adopts a more traditional form of the veto where a veto sends the bill back to the parliament which can override the veto by simply passing the legislation again with a majority (i.e., no supermajority is required).

The first option, retaining the veto in its current form, might sound like sticking with the status quo but that is not entirely clear.  The veto has been used by a single president that was elected as a figurehead rather than a political actor with the ability to shape policy outcomes.  If the president retains his veto, chances are that the next presidential election in which there is no incumbent will be quite different – the candidates are likely to distinguish themselves more on policy grounds than simply, for the lack of better words, their ‘presidential-ness’.  In other words, the actions of the current president are not necessarily a good indicator of how future presidents will behave.  I would not be surprised that the use of the veto would increase, especially under co-habitation, as the role of the president becomes more political.  Alternatively, the government will increasingly consult and bargain with the president over major legislation in order to avoid the exercise of the veto.  Whether that is a good thing or not, I don’t know.  It doesn’t strike me as a terrible idea, but it has the potential to change Icelandic politics quite radically.

I am less enamored with the second option, combining a veto with a simple majority override provision.  Essentially it makes for a very weak veto power – parliament can always override the president’s veto.  In essence, the power of the veto only amounts to being able to delay legislation for a little while.  The proposal does require the president to explain why he vetoes a bill, which some might argue does allow the president to shape the agenda a bit but it is not clear to me that the president doesn’t have that same ability to persuade without the veto.  The proposal also has a built in incentive for parliament to ignore the president’s suggestions as any amendments to the legislation would offer the president another opportunity to veto the bill.  Thus, in circumstances in which parliament is uncertain about what compromises are required to obtain the president’s signature, it may consider itself better of by making potential improvements to the legislation in order to avoid further delay.

Somewhat strangely, then, the more substantial proposal for changing the constitution is actual the less radical one – the relationship between the president and the government will remain similar to what it has been for the past 65 years.  The seemingly less radical proposal of retaining the current veto powers, on the other hand, actually has a far greater potential for changing politics in Iceland because the use of those powers has been reinterpreted in the past few years to provide for an active political role for the president.  Thus, the proposal retaining the status quo relationship between government and president is the more radical one as it seeks to codify the president’s powers.