Constitutional Theory I

Deliberative mini-publics bring randomly selected citizens together to deliberate and make recommendations based on expert evidence. This paper analyses the use of deliberative mini-publics in conjunction with referendums as a constitutional amendment method. It does so through the prism of the much-lauded Irish experience of deliberative constitutionalism in the context of amendments on same-sex marriage and abortion. The paper argues that the representativeness of deliberative mini-publics – both in demographic and attitudinal terms – is critical to the normative and sociological legitimacy of such bodies. If the addition of a deliberative element to a referendum process is to be a positive response to the well-documented weaknesses of referendums, greater focus needs to be placed on improving the representativeness of deliberative mini-publics and enhancing transparency in respect of deficits in representation.

While hypocrisy is extensively studied by political scientists & theorists, it has received comparatively little attention from constitutional law scholars. This article suggests that the concept warrants scrutiny from a constitutional perspective for several reasons. First, hypocritical government officials present a problem for constitutional law because they present a threat to constitutional values such as the rule-of-law principle that no one, including public officials, is above the law. Second, a government marked by hypocrisy may destabilise a constitutional system by engendering the public feeling that officials are not acting in the public interest. Third, hypocrisy challenges the typical constitutional mechanisms for ensuring accountability. The article illustrates these aspects of hypocrisy as a constitutional vice by reference to a prominent form of hypocrisy that occurred during the COVID-19 pandemic — government officials not obeying COVID-19 containment measures.

Written during an internationalised peace process, Cambodia‘s 1993 Constitution is ostensibly guided by principles of liberal democracy and rule of law. With recent practice in Cambodia characterised by increasing autocratisation, however, constitutional contestation in Cambodia is often assumed to be “muted,“ with the Constitution a mere “sham.“ An ethnographic look at everyday practice, which necessarily sees beyond the courts, instead finds that constitutional contestations are rife. Drawing on two years of fieldwork, this paper argues that not only formal political actors, but also Buddhist monks, NGOs, community leaders, artists and other lay actors frequently mobilise constitutional ideas and reshape constitutional meaning “from below.“ Acknowledging the socio-cultural significance of constitutions, I suggest, brings to light otherwise overshadowed stories in which they are translated into practice by a diverse array of actors who are rarely attributed constitutional agency.

A common observation can be made in contemporary democracies: public institutions are experiencing a decay of trust, which is affecting the concerns of the population about politicians. In order to deal with this phenomenon, many governments have adopted a body of “political ethics rules“ which reflects an increased will to put politicians under scrutiny from the way they exercise their mandates to their personal behavior. It has been developed in the United States (and then in the United Kingdom) since the late 1960s and have gradually reached continental Europe since the beginning of the 21st century. The progressive transformation of these ethics rules into binding legal rules raises many questions. One of these is the interference with the right to privacy of members of parliament. In this paper, the tight balance to reach between the extension of the transparency requirement and the right to privacy will be addressed in the light of national and international case law.