It took a surprisingly long time for the large, corrugated-iron gate to creak open. In those moments waiting in the sun, even on a comparatively cool February morning, Phnom Penh’s inescapable heat and humidity could be felt as acutely as ever. When the gate finally opened, giving way to the impressive colonial-era villa that now houses one of Cambodia’s pre-eminent human rights non-governmental organisations (NGOs), the security guard met me with a timorous smile. The interview I was expecting to conduct had been postponed, he told me. My interlocutor, the organisation’s Advocacy Director, was not available. He could not explain why. What would otherwise be a tranquil setting, a carefully tended-to garden and patio with a small seating area, felt remarkably tense. Those employees who were still loitering outside were clustered around a small table, speaking in hushed tones, while another strode purposefully into the building. Inside the offices, I later discovered, key members of the organisation’s staff were running through safety procedures with the Cambodian political commentator and analyst, Meas Nee. Just twenty-four hours earlier, Meas Nee had been singled out and criticised publicly by then Cambodian Prime Minister, Hun Sen, as part of a typically sweeping speech in which he claimed to have obtained audio recordings of comments given to a leading English-language newspaper by both Meas Nee and the opposition MP, Son Chhay. How those recordings were obtained was left to speculation. Suspicion was rife, therefore – as was concern about the safety of other government critics. Just seven months prior, another prominent political activist, Kem Ley, whom I had also planned to interview as part of the research that culminates on these pages, had been publicly gunned down in broad daylight.

Coming only a handful of months before local Commune (Sangkat) Elections, and shortly after the complete collapse of a tenuous détente between the ruling Cambodian People’s Party (CPP) and the soon-to-be-dissolved opposition Cambodian National Rescue Party (CNRP), Meas Nee’s comments appeared to have touched a nerve. The CNRP had returned to their tactic of selectively boycotting sessions of the National Assembly after a short-lived ‘culture of dialogue’ with the CPP had run aground, but they had nevertheless announced their intention to call three senior officials in the Royal Government of Cambodia (herein, the government) to parliament for questioning.Footnote ¹ By submitting letters of request to the president of the National Assembly, the opposition hoped to compel the respective ministers to appear before parliament. First among the names to be called was Minister of Defence, Tea Banh, who the opposition hoped to interrogate over the promotion of two military officials just weeks after they had been released from prison, having served sentences for assaulting CNRP MPs (Nhay Chamroeun and Kong Saphea) directly outside of the National Assembly building. Supporting their request were Articles 89 and 97 of the Constitution, which state that, with the support of one-tenth of its members, the National Assembly may ‘invite high ranking officials to clarify important special issues to the National Assembly’, and that its legislative commissions ‘may invite any minister to clarify certain issues under their field of responsibility’.Footnote ² On 1 February, however, Prime Minister Hun Sen vowed to block any such request when it was received by the Council of Ministers.Footnote ³

The following day, newspaper reports of the stand-off had included quotes from Meas Nee, the most notable of which included an assessment of the potential ban on ministers appearing before the National Assembly. Any such ban, Meas Nee asserted, would be a ‘serious violation of the Constitution’.Footnote ⁴ The response from the Prime Minister the following day was characteristically categorical. ‘My reaction yesterday was that you yourselves have to respect the rules first; you must join the National Assembly’, Hun Sen told an audience of graduating students at the National University of Management, before adding:

What it meant to go ‘too far’, or what the limits of reasonable critique now were, of course, was not elaborated upon. Meanwhile, any suspicion that this sort of discursive confrontation might be a one-off was eradicated just over seven months later. ‘Constitutional interpretation is not the right of the analyst’, the Prime Minister asserted in a speech commemorating the 24th anniversary of the promulgation of the Constitution, because ‘only the Constitutional Council has the right to do so’.Footnote ⁶

This skirmish went more or less unnoticed at the time. For those involved, of course, such overt threats are deeply worrying. However, in a period that some would argue saw seismic shifts in the way Cambodia is governed – captured succinctly in the final headline of local English-language newspaper, The Cambodia Daily, which read ‘Descent Into Outright Dictatorship’Footnote ⁷ – the significance of such stories undoubtedly paled in comparison. Yet, the story provides a useful starting point for understanding constitutional contestation, because it symbolically captures what exactly it is that is being contested in Cambodia and in many other countries with comparable constitutional experiences. At first blush, Meas Nee’s experience is one of a prominent, public critic of a government, challenging his leaders on their commitment to following constitutional procedures. This is a compelling, but largely familiar story. However, a closer reading of the Prime Minister’s words, both on 2 February and later on 24 September, suggest that what was being contested was not whether the government had violated the Constitution, but who was the appropriate judge of constitutionality. Recognising this as the foundational contestation at play, meanwhile, raises more general questions for comparative constitutional studies about what sort of agency is it appropriate for a layperson to claim in the processes of constitutional interpretation, and what influence popular understandings of constitutional meaning have on constitutional practice.

The challenge presented to the government by Meas Nee, in other words, was not so much his claim that the government had violated the Constitution. Rather, the challenge was in his implicit and fundamental claim that he had the right to interpret the Constitution, as well as to articulate and defend that interpretation publicly. As I outline later in this chapter, and explain in great detail over the course of this book, such an assertion meets with a notable degree of ambivalence in comparative constitutional studies. As the rising tide of juristocracy and the judicialisation of politics brings constitutional review to new and far-flung shores worldwide, the issue of how constitutional agency can be embodied, and by whom, is increasingly significant but equally often overlooked. Similarly, as the field of comparative constitutional studies finds new and exotic fields in which to consider the decisions of courts, questions about the impacts of constitutions on everyday behaviour, and about how alternative constitutional interpretations continue to coexist alongside officially sanctioned ones, become increasingly prescient. Yet, such questions are infrequently and unevenly asked. With the rise in scholarship in comparative constitutional studies documenting the emergence of juristocracy and the judicialisation of politics, on the one hand, and the rise of authoritarian constitutionalism on the other, little room is left for the study of the role of laypeople in constitutional ordering. Yet, as an ethnographic look at constitutional practice in Cambodia attests, even in contexts where authoritarianism is relatively entrenched and where space for constitutional contestation is limited, alternative readings of constitutional meaning can not only persist, they can even shape the everyday experience of constitutional reality.

Subverting the ‘Sham’

Despite the danger that is implicit in such an enterprise, publicly articulated critiques of the government continue to be relatively commonplace in Cambodia. Equally commonplace, meanwhile, is the framing of such challenges, and their rebuttals, in constitutional terms. Paying close, ethnographic attention to this phenomenon provides a number of lessons. First and foremost, the very existence of such challenges shows us that constitutions are always potential sites of contestation, even if the political or institutional constraints of the context in which they are enveloped mean that those contestations do not play out through macro-political battles over constitutional change or within the walls of a courtroom through judicial processes and decisions (as students of comparative constitutional law are taught to expect). That is, even constitutions that might otherwise be described as mere ‘parchment barriers’,Footnote ⁸ or dismissed as ‘sham’,Footnote ⁹ ‘façade’, or ‘window dressing’,Footnote ¹⁰ can still be sites of contestation.

Second, paying attention instead to micro-political contestations, as they are embodied in everyday constitutional practices, compels us to recognise the plurality of constitutional agency. In other words, it calls our attention to the social fact that numerous, often overlooked societal actors can and do exercise a form of constitutional agency, often far beyond the reach of courts, as they engage in quotidian practices of constitutional interpretation and contestation in the shadow of the Constitution. Here, we see not only that constitutions matter, but that their actual and specific wording may matter far more than is typically understood or accounted for in academic scholarship, as societal actors make far-reaching decisions, at least partially, on the basis of what they understand a particular constitutional provision to mean. Hence, third, in addition to telling us about how constitutions shape behaviour, or how they shape even more nebulous phenomena, such as notions of national identity or conceptions of the good, paying fine-grained attention to everyday constitutional practices can also provide unique insights into the contexts in which those practices themselves occur. That is, the in-depth study of constitutional practice can provide insights into the functioning of legal and political systems, or the potential trajectories of their development; insights that cannot always be gleaned from the decontextualised reading of constitutional texts or the analysis of court decisions.

Discursive skirmishes over constitutional meaning bring into view some of the central fault lines in Cambodian society. Beneath those fault lines lay foundational tensions that this book seeks to expose and excavate throughout a series of case studies. Such tensions include those that have emerged between the Constitution’s sweeping promises of liberal democratic principles and a ruling party that is often seen to be unable or unwilling to live up to those promises, apparently viewing them as a threat either to the continuation of its own rule or, more charitably, to the stability on which much of its legitimacy is based. Beneath those fault lines also lay differing views on how and why Cambodia’s Constitution came into being in 1993, with that process – itself part of an unprecedented, UN-sponsored peace-making process – appearing as either a site of renewal for Cambodian civil society, or a rushed and non-participatory one in which ideas were imposed on the country from outside. It is also there that we find fundamental questions about what the relationship between the state and religious institutions should look like, and the extent to which Buddhist monks should be empowered to engage in politics or social activism. There, too, we find a poignant debate, about what it means to be Cambodian, and how the essence of Cambodian culture and identity should be protected.

That throughout the aforementioned case studies, as well as in the story of Meas Nee described earlier, people persist in referring to or relying upon constitutional ideals and arguments to support them in the pursuit of their various goals is interesting in itself. Those that articulate constitutional arguments in Cambodia (such as the analyst Meas Nee) do so with a pervasive and profound scepticism about the Constitution’s effectiveness. It is often in spite of a fundamental disbelief in the ability of the Constitution to fulfil its promises; in other words, that people continue to speak and act as if it were able to do so. In everyday constitutional practices that have been almost entirely overlooked in academic scholarship, Cambodians in various settings call upon the Constitution to fairly resolve disputes, to limit government, protect rights, and guarantee the separation of powers; to justify or to question the right of Buddhist monks to engage in politics; and, even, to explain what it means to be Cambodian. Yet, despite (or perhaps because of) their tendency to manifest outside of judicial or even institutional fora, scholarship on Cambodia has routinely overlooked the existence of constitutional contestation in the country. In a recent study of rule of law in Cambodia and Singapore, for example, Un Kheang and Stephen McCarthy concluded that ‘constitutional contestation has been relatively muted’.Footnote ¹¹ Such a view is only possible, I argue, if one assumes a narrow and formalistic definition of constitutional contestation that obscures the everyday constitutional practices that can be found when one looks beyond courts or state institutions. Rather than being unique to the relatively small body of literature that exists on the Cambodian constitutional system, however, this blind spot appears to be one that pervades the discipline, obscuring the extent to which constitutional meanings are discussed, contested, and shaped outside of courts in far more frequently studied jurisdictions that are far more central to the comparative constitutional studies canon.Footnote ¹²

Returning to the story that opened this chapter, it should be noted that in some instances, the public articulation of constitutional arguments in Cambodia can have something like the impact that their articulators intend. Two years after Meas Nee found himself in dangerous waters, for instance, a handful of similarly placed public figures expressed concern at a suggestion that Cambodia might reinstate the death penalty. Then Prime Minister Hun Sen, speaking to an audience of staff from an anti–human trafficking NGO, claimed that he was considering a national referendum on the return of capital punishment for the rape of children. Such a move would have required a constitutional amendment, given that provisions against capital punishment were included in the Constitution since it was drafted in 1993 – a fact that was pointed out immediately by Sok Sam Oeun, Ou Virak, Chak Sopheak, and Sok Touch. ‘I agree with their analysis’, the Prime Minister was quoted as saying just a day later, because: ‘Our country has abolished the death penalty since the era of the State of Cambodia. When we changed the Constitution from a popular Republic of Cambodia to the State of Cambodia, we already abolished the death penalty.’ While it is impossible to be sure how seriously his initial suggestion – which would have meant holding a referendum for the first time in Cambodia’s post–civil war era – should be taken, Hun Sen’s recognition of the constitutional arguments put forward by the aforementioned individuals is itself telling. The volte face, if nothing else, demonstrated not only that the Prime Minister was willing to contemplate amendments to the Constitution unexpectedly, apparently almost on a whim, but also that constitutionally framed arguments – articulated publicly, a long way from any courtroom – might play some role in shaping Cambodia’s constitutional order.

By focusing on exactly this sort of discursive contestation in Cambodia, this book aims to de-centre judicial institutions – at least momentarily – from the study of constitutional law and to explore some of the otherwise overlooked spaces in which constitutional practice might also manifest.Footnote ¹³ Viewed through the anecdotes outlined so far, this book argues that by taking ‘the analyst’ seriously as a constitutional actor, we can come to a more nuanced and textured understanding of the multiple roles that constitutions play.Footnote ¹⁴ Hence, this book will ultimately demonstrate that the role of a constitution extends far beyond the realm of judicial or even state institutions. Specifically, constitutional discourses pervade societal conversations about politics, religion, culture, and society. Equally, while the case study data on which this book is based is undeniably unique to Cambodia, this book posits that the lessons that can be extracted from that data are nevertheless generalizable. In other words, the questions that this book seeks to answer – namely what role does the Constitution play in micro-political contestations in contemporary Cambodia, and what role do micro-political contestations play in shaping Cambodia’s constitutional order – can and should be asked in numerous other jurisdictions or social contexts.

In order to highlight the novelty and significance of these twin questions, I continue this introductory chapter by providing a brief overview of the existent literature in comparative constitutional studies. This overview will be focused towards accounting for where and how comparative constitutional scholars have sought to de-centre courts, as well as the extent to which such attempts have been limited. Next, I provide a brief overview of the empirical context in which I pursue this question: first, by introducing the current Cambodian constitutional order and the historical context in which it has developed; then, by highlighting some of the specific contextual changes in Cambodia that occurred contemporaneously to this research and thus shaped its content. Finally, after reflecting on some specific methodology-related questions about this research, I close this chapter by providing an overview of the other seven that follow.

Beyond ‘Ideal Types’: Making Space for Cambodia in Constitutional Theory

It is an error, this book demonstrates, to overlook or underestimate the extent to which constitutional contestations do indeed exist in Cambodia, albeit outside of judicial institutions. First, it is an error because doing so obscures the frequency with which governments such as that in Cambodia – those that can be understood to have only a superficial fidelity to the constitutional text they inhabit – continue to seek legitimacy through explicit reference to constitutional procedures and provisions. Second, it is an error because doing so elides the ferocity with which such governments continue to be challenged on those same terms. Third, it is an error because doing so overlooks the extent to which constitutional vocabularies and concepts permeate everyday life. In the process, an immense amount of nuance is lost: in our understanding of the significance of constitutions to authoritarian regimes, and to those who are ruled by them, for example; or in in our understanding of how constitutional meanings are shaped and reshaped over time. Such oversights are not uncommon to the study of Cambodia; however, nor are they uncommon to the comparative study constitutions more generally. Instead, such simplifications are made possible, if not inevitable, by the above-mentioned preoccupation with elite-level, institutional politics. That is, these tendencies are a consequence of a common predisposition towards viewing constitutions ‘from above’.

The prevalence of ‘top-down’ approaches in comparative constitutional scholarship has already been diagnosed by a number of scholars. In a stellar survey of the field, for example, Ran Hirschl has pointed to the way in which the post–Cold War ‘proliferation of constitutional courts, judicial review, and constitutional rights jurisprudence worldwide, indeed the rise of the human rights discourse more generally, turned the comparative study of constitutionalism into a predominantly legalistic enterprise that is heavily influenced by the prevalent case-law method of instruction’. This, Hirschl argues, has come at the expense of attention to, amongst other things, ‘the extent to which constitutions actually shape or alter behavior’, as well as ‘the institutional, ideological, and political sphere with which the constitutional order constantly interacts’. As a result, the field of comparative constitutional studies has been characterised by a ‘narrowing down of the scholarly enterprise of comparative constitutionalism to court-centric analyses’. This preoccupation, it seems, exists symbiotically with what Hirschl elsewhere describes as the ‘near-exclusive focus on a dozen liberal democracies’, as the discipline’s privileging of liberal democracies shields comparative constitutional studies from exposure to examples of autocracy or illiberalism, while the discipline’s court-centricity precludes attention to jurisdictions where politics may be less likely to be judicialised.

This conventional predisposition towards viewing constitutions ‘from above’ is shaped by the enduring influence of ‘ideal types’ on our conceptualisation of what constitutional practice is and where we should look in order to find it. Specifically, Michael Dowdle and Michael Wilkinson describe the field of constitutional studies as having witnessed the rise to ‘a virtually hegemonic pre-eminence’ of what they call a ‘structural-liberal vision’ of constitutions. Emerging as a result of ‘American political influence’, Dowdle and Wilkinson argue, this vision perceives the limiting of public power (through law) as the inevitable and undisputable purpose of a constitution, constituting the ‘liberal’ component of the ‘structural-liberal vision’. Meanwhile, this presumption about the purpose of a constitution is, in turn, bundled together with specific institutional structures (particularly courts) or arrangements (such as the separation of powers) that have come to be understood as integral to the achievement of that purpose.Footnote ¹⁵ Hence, the implicit elevation of the ‘structural-liberal vision’ as an ‘ideal type’ has, until relatively recently, led comparative constitutional scholars to overlook constitutional contestations that take place (i) in authoritarian regimes and (ii) outside of judicial institutions.

Yet, the spotlight of comparative constitutional studies has begun to expand its focus in recent years. As such, constitutional scholars have begun to look beyond the borders of a narrow group of liberal democratic states (largely located in the Global North), which have come to be known as the ‘usual suspect’ settings,Footnote ¹⁶ or to look beyond the work of apex courts. With regard to the latter, it is notable that the move to de-centre courts, and move the discussion of constitutions away from an exclusive focus on the judiciary, has produced a number of fascinating new studies of the role of other branches of government. As such, there is a growing body of literature that acknowledges the role of legislatures in constitutional practice.Footnote ¹⁷ While not explicitly situating itself in the field of comparative constitutional studies, for example, the edited volume Legislated Rights provides a range of insights into the ways in which legislatures ‘secure’ rights. Meanwhile, Maartje de Visser’s study of non-judicial constitutional interpretation in the Netherlands – a jurisdiction where judicial review is constitutionally prohibited – excavates the role of Raad van State (State Council), the Staten General (parliament), and the Netherlands Institute for Human Rights in shaping constitutional debate and practice. Similarly, the move away from courts has also seen pioneering work on the rise of fourth-branch institutions, as Mark Tushnet’s eponymous edited volume highlights the increasing prevalence of institutions such as ombuds offices, electoral and anti-corruption commissions, and audit agencies. While the importance and insight of these studies is indisputable, their de-centring of courts in the study of constitutional practice leads largely to a re-centring of focus on adjacent state institutions.

While an ethnographic approach can enable comparative constitutional scholars to study constitutions ‘from below’, I argue, it does not necessarily do so. This is demonstrated by a 2004 special issue of Law & Society Review that was dedicated to the topic of ‘Constitutional Ethnography’. This special issue, edited by Kim Lane Scheppele, was pathbreaking in its elucidation of the “thick description’ that could not only highlight ‘distinctive and ungeneralizable features’ in a constitutional order, but also draw out logics that link various specific features found in the particular case into patterns whose traces may also be visible elsewhere with different ‘specific manifestations’.Footnote ¹⁸ Yet, with the exception of Jiří Přibáň’s submission, which focused on constitution-making and formal constitutional reform, the overwhelming majority of contributions to ‘Constitutional Ethnography’ focused primarily – if not entirely – on providing institutional ethnographies of apex courts.Footnote ¹⁹ Similarly, Benjamin Schonthal and Rohit De’s path breaking works on constitutionalism in Sri Lanka and India, respectively, have highlighted the manifold ways in which ‘ordinary’ citizens have engaged with the Constitution. While adding incredible nuance and texture to understandings of the constitutional history of the two countries, both Schonthal and De’s account nonetheless focuses primarily on courtroom struggles over the meaning of the Constitution, or privilege constitutional contestations that ultimately find themselves before the courts, thereby eliding those struggles that occur entirely and exclusively outside of judicial institutions.Footnote ²⁰ Though such an approach provides undeniably useful insights into the ‘everyday life’ of a constitution, it does so in a way that still places courts near the centre of that life, to the extent that their interest is in everyday practices that lead towards judicial institutions. As such, there persists a need to more accurately capture the diversity of contexts in which constitutional contestations may actually play out in the social world.

One strand of scholarship that has sought to study constitutional contestation beyond the courts, and outside of the walls of state institutions even, has been that which can be broadly categorised as studying ‘popular constitutionalism’. Here, scholars such as Bruce Ackerman, Mark Tushnet, and Larry Kramer have focused attention on the way in which constitutional change has been pursued, popularised, and precipitated constitutional transformations.Footnote ²¹ As Elisabeth Beaumont explains, these studies can largely be understood as responding to the fact that scholarship on constitutional law in the United States ‘offers an impoverished view of citizens’ relation to constitutional law and politics, and a skewed portrait in which ordinary people and the clamors of constitutional democracy are largely absent’.Footnote ²² By contrast, this school of scholarship has studied how, at ‘critical junctures’, in which public ‘constitutional disputes’ have erupted, citizens and civic groups have proffered ‘“unofficial” interpretations of the Constitution’ in an attempt to ‘influence the official Constitution’.Footnote ²³ While sometimes expressing an opinion about judicial appointments or court decisions, these movements have tended to exert an influence on constitutional developments from outside the court, largely in the form of mass protest and large-scale social movements.Footnote ²⁴

While, of course, such accounts are impressive examples of how we might study and understand constitutional practice in a way that de-centres judicial institutions, they also run the risk reinforcing the hegemony of the ‘ideal type’ in comparative constitutional studies. Specifically, putting aside the fact that these studies all emerge in the specific context of the United States, they all depend on a conventional form of contentious politics – built entirely upon mass movements and public protest – that is often politically infeasible in other political contexts, particularly those of authoritarian rule. As such, they paint a picture of constitutional contestation that is necessarily expressed through macro- rather than micro-political activity. As I explain in Chapter 7 of this book, the latter is likely to be a far more widely practised form of constitutional contestation, given that it is possible in contexts where the possibility of contentious politics is particularly constrained, as well as in contexts where it is deemed more permissible, but has largely been overlooked due to an understandable focus on the macro-level.

Part of the move away from ‘usual suspect’ settings, which the aforementioned studies certainly contribute to, has involved a much-needed focus on constitutional practice in the Global South. In The Global South and Comparative Constitutional Law, for instance, editors Philipp Dann, Michael Riegner, and Maxim Bönnemann arrange an array of contributions that together seek to pluralise the discipline, while suggesting that the Global South is itself a concept that can help us to ‘capture and understand a distinctive constitutional experience’.Footnote ²⁵ That experience, the editors argue, is defined by an experience of ‘socio-economic transformation’; of ‘struggle about political organization’; and of ‘denial of, and access to, justice’.Footnote ²⁶ However, chapters that deal with a ‘struggle about political organisation’ – namely ‘between democratic and authoritarian forces’ – focus principally on judicial institutions, ‘ruling elites’, or on explaining the absence of constitutionalism.Footnote ²⁷ Likewise, amid the much-needed growth in scholarship on constitutional practice in China, a focus on constitutional debates within the Chinese Community Party (CCP) has shifted the site of possible contestation away from courts, but kept it well within the confines of political elites.Footnote ²⁸

As I elaborate in greater detail in Chapter 3 of this book, this is demonstrative of a wider trend in which the study of authoritarian constitutional practice has typically been overlooked. In Cambodia, and elsewhere, this appears to be based on an under-nuanced understanding of authoritarian rule, which operates on the basis of a ‘tacit understanding’ that a concern with constitutional processes, principles, and legitimacy, let alone any attempt to challenge a government on this basis, is inevitably ‘dwarfed, or made outright irrelevant, by the crudeness of the political game’.Footnote ²⁹ In attempting to redress this simplistic understanding of authoritarian rule, comparative constitutional scholarship has tended to focus on the ways in which constitutional documents, principles, processes, and institutions are used by authoritarian regimes. Most notably, Tom Ginsberg and Alberto Simpser have argued convincingly ‘that authoritarian constitutions cannot be dismissed – that they matter’. Specifically, they elaborate, constitutions can serve as helpful problem-solving tools for authoritarian rulers, as they can be deployed to support processes of ‘coordinating multiple actors, controlling subordinates, and eliciting cooperation from subjects’.Footnote ³⁰ As such, constitutions can serve as ‘operating manuals’, helping to coordinate the heterogenous coalitions of actors that often make up authoritarian regimes; as ‘billboards’ that signal the intent of regime leaders to that same range of actors, and society at large; as ‘blueprints’ that map out the regimes aspirations; and as ‘window dressing’, wherein constitutions are used to create a façade for external observers.Footnote ³¹ Along similar lines, meanwhile, Melissa Crouch has pointed to the role that constitutions can play in ‘authoritarian regime stabilization and legitimation’,Footnote ³² and thus in contributing to authoritarian durability.Footnote ³³ Drawing on lessons from Myanmar, Crouch explains the country’s 2008 Constitution – which ostensibly purported to usher in liberal democracy – as merely representing a move ‘from direct military rule to a military-state’.Footnote ³⁴ Here, the military used a new constitution to introduce limited reforms, while maintaining their political centrality and supremacy, in order to pre-empt a more thoroughgoing democratic transition.Footnote ³⁵

A rich vein of literature that explores the nexus between constitutions and authoritarianism can subsequently be traced. Mark Tushnet, for instance, has sought to create a typology, according to which illiberal and undemocratic regimes can be categorised in constitutional terms. David Landau has highlighted how authoritarian regimes use constitutional change ‘abusively’ in order to ‘erode the democratic order’,Footnote ³⁶ while Landau and Rosalind Dixon have shown how such regimes also ‘borrow’ these abusive tactics from one another, as part of a global practice they term ‘abusive constitutional borrowing’.Footnote ³⁷ The former phenomenon finds echoes in a process that Richard Albert calls ‘constitutional dismemberment’, wherein authoritarians are understood to use constitutional amendments to ‘repudiate the essential characteristics of the [presumably liberal democratic] constitution and destroy its foundations’.Footnote ³⁸ Similarly, Kim Lane Scheppele’s account of ‘autocratic legalism’ has exposed the way in which processes of institutional reform and the passage, amendment, or reinterpretation of ordinary legislation have been used by rulers who seek to maintain a façade of ‘democracy and legality’ while simultaneously seeking to ‘hollow out its moral core’.Footnote ³⁹ Meanwhile, bringing a much-needed critical perspective, Günter Frankenberg’s account of ‘authoritarian constitutionalism’ suggests that we see the possibility of these processes as being inherent to liberal democratic constitutions, which – he argues – inevitably contain ‘a myriad of provisions bestowing discretion on administrative agencies (or courts)’.Footnote ⁴⁰ Despite seeming antithetical, in other words, ‘authoritarian constitutionalism’ often makes use of some of the key features and institutions that are common to liberal democratic constitutions, without necessarily undoing or overriding them.

Though an increasingly nuanced understanding of the relationship between constitutions and authoritarianism around the world has emerged from this scholarship over the past decade, we are left with little in the way of understanding with regard to the way in which these processes are understood – let alone opposed, challenged, or contested – in many contexts. These recognitions of how constitutions are used (or ‘abused’, ‘hollowed out’, or ‘dismembered’) by political leaders, in other words, has often come without an accompanying understanding of how those same constitutions are also used to challenge illiberalism and autocracy ‘from below’.Footnote ⁴¹ The view of constitutions in authoritarian regimes as ‘window dressing’, for instance, provides a useful starting point from which we might start to think about authoritarian rulers as using constitutional language and processes in order to legitimate their rule. However, it also risks understanding constitutional discourse in authoritarian contexts one-dimensionally, as a univocal phenomenon that is devoid of dissenting voices. This, in turn, obscures the extent to which constitutions also matter to those seeking to challenge or contest authoritarian rule.

Constitutional Listening, Constitutional Consciousness, and Constitutional Micro-politics

As an antidote or alternative to the prevalence of ‘top-down’ approaches, and those that reinforce the ‘structural-liberal vision’, then, I follow Dowdle and Wilkinson’s recommendation and adopt a posture they term ‘constitutional listening’. This requires the comparative constitutional scholar ‘to not privilege or essentialise legal judgment and judicial interpretation as the principle sources of a normative constitutional order’, as well as being charitably ‘sensitive to constitutional change and to the diversity of normative influences that comprise the constitutional arena’.Footnote ⁴² Adopting this approach in relation to autocratic or illiberal contexts, I would argue, also means being open to the internal pluralism of any given constitutional order. Where constitutions are easily dismissed as ‘window dressing’, as ‘façade’, or as a ‘sham’, constitutional listening requires that we take seriously not only the constitutional understandings and legitimations of those in powerFootnote ⁴³ but also those that exist in society at large.Footnote ⁴⁴ That is, without denying that constitutions may be manipulated or misused by authoritarian regimes, it is possible to challenge the idea that such constitutions inevitably serve that purpose in a uniform and unidirectional way – that they speak with one voice – by instead drawing draw the attention to the cacophony of voices that exist in the theatre of everyday constitutional practice.

This cacophony of voices, I argue, is best heard and understood in an ethnographic mode: particularly through attention to micro-politics and what – inspired by legal consciousness scholarship – we might call ‘constitutional consciousness’. The latter approach has been proposed by Lynette Chua, herself a prominent scholar of legal consciousness – as a way of acknowledging the extent to which ‘[c]onstitutional interpretation by ordinary people—their legal consciousness—in turn influences the development of constitutional law’.Footnote ⁴⁵ As such, Chua explains, by ‘studying the words, thoughts, feelings, and (non)actions of citizens as a means of revealing how they perceive, think, and behave toward the constitution, scholars can produce a different type of study about constitutional interpretation—one that emerges from the ground up’.Footnote ⁴⁶ Such studies, of course, have the potential to provide novel insights and perspectives on the everyday functioning and practical impacts of constitutions. Yet, as Chua explains, it is exceptionally rare to ‘come across accounts by constitutional law scholars that feature the voices of the people purportedly governed by a particular constitution’.Footnote ⁴⁷ This is despite the fact that such perspectives provide a prism through which we might understand the ‘hegemonic power of [constitutional] law, specially its far-reaching and invisible effects’, including its ability to shape individual and group identities, as well as ‘the potential and limits of [constitutional] law as a means of transforming society’.Footnote ⁴⁸ Hence, this book follows Chua’s call for attention to ‘constitutional consciousness’ as a way of moving comparative constitutional studies ‘out of the courts and onto the ground’.

Again, studying constitutions from a ‘bottom-up’ perspective is particularly necessary in authoritarian settings precisely because, for reasons noted earlier, constitutional contestations rarely manifest themselves in formal constitutional amendments or court cases in such contexts. Instead, the realities of constitutional governance, and the ways in which it is challenged, is made visible only through careful attention to ‘everyday politics’.Footnote ⁴⁹ Such an approach has already proven fruitful for the study of rule of law elsewhere in the region. Ethnographic scholarship within the law and society tradition, by the likes of Nick Cheesman and Jothie Rajah, for example, has shed surgical light on the ways in which rule of law operates under authoritarianism in Myanmar and Singapore. Through the exploration of ‘opposing ideas’, Cheesman’s Opposing the Rule of Law has shown how a conscious effort to ‘conflate’ rule of law with what he describes as its ‘asymmetrical opposite’, framed as law and order, has long undergirded the everyday practice of arbitrariness and injustice in Myanmar.Footnote ⁵⁰ Likewise, Jothie Rajah’s nuanced attention to discourse in Singapore has similarly helped to demonstrate how rule of law concepts have helped not only to entrench illiberalism in Singapore but also to legitimise it.Footnote ⁵¹ The careful study of ‘everyday politics’ in these cases, in other words, has helped to highlight the importance of law – or legal processes and discourses – to the practice of authoritarianism.

Of course, such a fine-grained approach to the study of law in authoritarian or illiberal contexts does not exclusively or necessarily lend itself to viewing law solely as an instrument of power. Cheesman’s exposition of law and order in Myanmar, even, concludes that rule of law is properly understood as ‘a political ideal around which people can mobilize for all sorts of purposes’, and which ‘fundamentally challenges how power has been and continues to be exercised’.Footnote ⁵² Similarly socio-legal techniques have also been central to the ability of Chua’s expositions of LGBT social movements, and their attempts to bring about legal and social change in those very same jurisdictions.Footnote ⁵³ There, the focus is on how sexual minority communities organise and advocate for legal change, in spite of prevailing authoritarianism, through everyday practices that she describes as ‘pragmatic resistance’ and ‘human rights as a way of life’.Footnote ⁵⁴ Finally, it is also worth noting that ethnography, and the study of micro-politics, has enriched the study of international human rights law. Specifically, through attention to micro-politics, Balakrishnan Rajagopal argues, it becomes possible for scholars to ‘take into account how individuals and groups experience power relations’, and thus to understand how ‘governmental practices themselves can be turned around into focus of resistance’.Footnote ⁵⁵ Meanwhile, taking an ethnographic approach to international human rights, Sally Engle Merry emphasised how laws against gender-based violence are ‘translated’ into local justice.Footnote ⁵⁶ Irrespective of differences in subject matter, then, this growing body of literature suggests that an ethnographically inspired approach, which explores the emergence of hegemonic discourses and their interaction with everyday practices, can be a productive one for the study of constitutions.

Hence, in addition to acknowledging the role of constitutional discourses in the practice of authoritarianism, this book seeks to de-centre the state from the study of constitutionalism, and to instead expand the range of actors and spaces that are available to it. In this regard, I follow Benjamin Schonthal’s call, in his pioneering study Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka, to ‘rethink’ constitutional law through: (i) the thick description of everyday practice that he describes as ‘constitutional microhistory’, and (ii) the use of an ‘expanded archive’ to study constitutionalism.Footnote ⁵⁷ Such an approach, Schonthal argues, ‘takes especially seriously the agency of actors whose voices have been occluded or elided by the official record’.Footnote ⁵⁸ Hence, this book extends Schonthal’s challenge to the canon of comparative constitutional studies a step further, by seeking to find constitutional practices not only in conventional spaces like courtrooms or parliaments but also in everyday practices that take place far beyond the reach of the state. It argues that, while far from an exhaustive list of possible constitutional actors, the groups described here provide poignant and diverse examples of the ways in which non-state actors can support, challenge, undermine, or even displace constitutional narratives through everyday practice and engagement in micro-political (as well as macro-political) contestation.

As I explain later in this chapter, this approach is necessitated by the specific, if not singular, circumstances under which constitutional practice takes place in Cambodia. However, its relevance is not exclusive to the Cambodian context. In fact, given the risks inherent in challenging the state’s interpretation of the Constitution, Cambodia could be understood as a ‘most difficult case’ for the study of constitutionalism beyond the courts.Footnote ⁵⁹ In other words, if it is true that constitutional contestation can and does take place publicly – if at times subtly – in repressive political environments such as those found in Cambodia, where analysts are told ‘to not go too far’ by their political leaders, then one can hypothesise that it must be equally – if not more – true elsewhere. This would be particularly pertinent in places where the public articulation of opposition to government is more common and widely tolerated, if not venerated.

At the same time, Cambodia in many ways offers an ideal environment – or a ‘prototypical case’Footnote ⁶⁰ – in which to explore the extent to which constitutional contestation can still take place under authoritarianism, not to mention the extent to which this contestation takes place beyond the reach of judicial or state institutions. Cambodia’s courts are frequently cited as one of the country’s least trusted institutions, and judges one of the least trusted types of public official, in research conducted by local and international organisations. The distrust of judicial institutions results in a general sense – which permeated a vast majority of the interviews conducted for this research – that courts should be avoided at all costs.Footnote ⁶¹ Meanwhile, the existence of authoritarian rule, and its uneasy coexistence with a formally liberal-democratic constitution, also produces a kind of tension between law-on-the-books and law-in-practice that can be productive for theorising about constitutions and constitutionalism. Cambodia’s hybrid system has, until recently, been characterised by the comparatively wide berth afforded to what become a vibrant – if largely non-autochthonous – civil society, as well as a relatively open political space. As such, constitutional contestation in Cambodia appears to have been able to flourish exactly to the extent that it has been able to operate outside of the courts and beyond the reach of the state. Far from making it an exception, however, I argue that this makes Cambodia a rich source of examples for what I believe to be a common, yet comprehensively overlooked, feature of constitutionalism: namely what I call micro-political contestation over constitutional meaning.

The question of what role a constitution plays in everyday political, social and cultural contestations that take place outside of the courts, in other words, is one that could and should be asked in other jurisdictions as well as Cambodia. It should be asked because doing so highlights the extent to which constitutions have a life outside of the courtroom. Further, by obscuring the existence – or at least the possibility – of this everyday life, we risk producing an impoverished account of how constitutions actually function in reality. As I suggested in the discussion of constitutional theory earlier in this chapter, and as the case studies presented in this book demonstrate, what is elided from such accounts might be significant – even fundamental – to the constitutional experience of many people around the world. Whether directly or indirectly, in other words, the life that a constitution leads outside of the courtroom – the divergent meanings it takes on, and the importance that particular provisions or principles are afforded – can directly impact the way that constitution works in practice. Yet, there is an additional, more pressing, reason to recognise the life that constitutions lead outside of judicial or state institutions. Namely because that life is created, supported, and given meaning by the everyday constitutional practices of people who are typically ignored or excluded from consideration by more conventional accounts of constitutionalism. In addition to being potentially significant to constitutional scholarship, the fact that the everyday practices of those people and communities – regardless of whether or not they themselves directly experience injustice, or risk their lives or freedom to engage in such practice – is then omitted from what is commonly understood as constitutionalism is in itself a form of injustice.

The interlocutors and interviewees I met during the course of gathering data for this book not only faced injustices in everyday life, but they are also done the additional injustice of being treated as though they are not actors, as though they do not have agency, in the constitutional order in which they find themselves. After this disempowerment is first asserted by those in power, it is later re-affirmed by constitutional scholarship that treats only judicial, or at most state, institutions as the primary actors in the practice of constitutionalism. As one interviewee said to me as I turned off my voice recorder and shuffled my papers at the end of a long conversation – which focused largely on the government’s use of the ‘public order’ provisions to limit the right to assembly and to curb public protests: ‘Please do not believe this stuff that they [government spokespeople] say. I don’t believe it, and ordinary people don’t believe it. We just cannot do anything about it’.Footnote ⁶² Yet, as I will show over the pages and chapters that follow this one, ‘ordinary people’ in Cambodia can and do try to do something about it. When attention is paid to everyday constitutional practices, it becomes clear that the constitutional interpretations put forward by the government are being incessantly, if often imperceptibly, questioned ‘from below’.

Cambodia: Exceptional and Exemplary

The misunderstanding of Cambodia’s Constitution and constitutional practices in academic scholarship, exemplified by the juxtaposition of Un and McCarthy’s assessment of constitutional contestation in Cambodia is ‘muted’Footnote ⁶³ with the constitutional debates initiated by the likes of Meas Nee, is neither uncommon nor difficult to understand. Such misunderstandings are particularly common for countries that do not fit the Western, liberal-democratic mould that is so regularly taken as the norm in comparative constitutional studies.Footnote ⁶⁴ Typically characterised as a country governed by a hybrid or electoral-authoritarian regime – not to mention one so infamously ravaged by civil war, genocide, and crimes against humanity, before being designated as the poster child of UN peace-building missions in the post–Cold War era – Cambodia is not the first place that scholars interested in constitutional law might look. Likewise, constitutional law and literature on constitutionalism have for a long time ranked low on the list of priority disciplines for Cambodia studies scholars, or those seeking to better understand Cambodian politics or society. As I have explained above, this tendency is exacerbated by the hegemonic status of the ‘structural-liberal’ model, which continues to underlie popular and academic understandings of constitutionalism.Footnote ⁶⁵ Yet, despite the lack of scholarly attention paid to the Cambodian Constitution, the vocabulary of constitutionalism in Cambodia is rife. Used differently but nonetheless regularly by actors across the country’s social and political spectrum in Cambodia, the spectre of the Constitution is simultaneously seen by some to offer legitimacy to authoritarian practices, as well as to those seeking to challenge them.

As such, this book seeks to provide a deeper, ‘thicker’Footnote ⁶⁶ understanding of constitutional practices, using Cambodia as a case study. Of course, the nature and substance of constitutional contestation is, to a large extent, influenced by Cambodia’s specific, if not singular, historical and social context. Cambodia’s modern history, as David Chandler rightly notes, has been characterised by tragedy.Footnote ⁶⁷ Foremost among those tragedies was, of course, the Democratic Kampuchea (DK) period from 1975 to 1979. As Simon Springer rightly notes, ‘the psychological scarring and unspeakable suffering’ caused in this period – during which time at least one-and-a-half million people, around twenty percent of the population, died as a result of the backward-looking and brutal policies of the Khmer Rouge – is in many respects ‘a national commonality’.Footnote ⁶⁸ In material terms, the Khmer Rouge’s attempt to return Cambodia to ‘year zero’ completely destroyed its legal system; the mistreatment and murder of anyone with an education (including a legal education), the destruction of almost all legal texts, and the repurposing of buildings that housed courts or law schools left Cambodia needing to rebuild a legal system ‘from scratch’.Footnote ⁶⁹ On a more psychological level, however, the recognition of this shared history can help observers understand – but not entirely explain, let alone excuse – state-led constitutional interpretations and practices to this day, as I explain in Chapter 3 of this book.

The tragedy of Cambodia’s recent history, however, goes back further than the undoubted devastation of Khmer Rouge rule, as this period was preceded – and to a large degree precipitated – by a four-year period (1969–1973) in which the United States ruthlessly bombed the country’s rural areas, killing an estimated 600,000 people.Footnote ⁷⁰ Further suffering was inflicted upon Cambodia in the decade after the fall of the Khmer Rouge, meanwhile. The fact that Cambodia was, on 7 January 1979, liberated, occupied, and transformed into a client-state (known formally as the People’s Republic of Kampuchea, or PRK) by its neighbour and America’s cold war adversary, Vietnam, meant that Cambodia spent almost the entire 1980s under international sanctions.Footnote ⁷¹ Adding insult to terrible injury, meanwhile, a coalition of anti-PRK forces that included the Khmer Rouge not only proceeded to wage a protracted civil war with foreign support, it also occupied Cambodia’s seat at the United Nations General Assembly in New York. The fall of the Berlin Wall and the end of the Cold War, however, brought a recalibration in Cambodia’s international status and domestic politics.Footnote ⁷² With Vietnam no longer able to act as a patron, and the West no longer willing to support a coalition that claimed the abhorrent Khmer Rouge leadership as members, ‘the Cambodia question that had been allowed to fester for a decade could finally be answered’.Footnote ⁷³ Reflecting a brief moment of international consensus, captured in the heady optimism of Francis Fukuyama’s declaration of ‘the end of history’,Footnote ⁷⁴ a peace process administered by the United Nations and centred on democratic elections was to be the order of the day. The recalcitrant Khmer Rouge later reneged on the commitments it made in the 1991 Paris Peace Agreements (PPA): refusing to give up their arms, boycotting the UN-supervised elections, and returning to guerrilla warfare against the state until their eventual surrender and reintegration in 1998. However, the Agreements enabled the effective isolation of the Khmer Rouge, as their former coalition partnersFootnote ⁷⁵ and the ruling partyFootnote ⁷⁶ agreed (at least in principle) to settle their political differences with ballots rather than bullets.

As Chapter 2 explains in greater detail, the promulgation of Cambodia’s Constitution on 24 September 1993 was the culmination of an eighteen-month experiment in internationalised peace-building, wherein the United Nations – under the auspices of its Transitional Authority in Cambodia (UNTAC) – supervised the country and administered its first genuinely democratic elections. The resulting document, then, was to be a harbinger for a new era for Cambodia, and the foundation of a triple transition: from decades of war to (relative) peace; from Marx to markets; and from authoritarianism to liberal democracy.Footnote ⁷⁷ As such, much of what has been written about Cambodia has focused primarily on those transitions, as Cambodia became somewhat of a poster child for internationalised peace-making processes, not to mention state- and democracy-building projects. In this sense, Cambodia’s constitutional experiences are in many ways emblematic of the post–Cold War period, and will no doubt bear many resemblances with those of other countries throughout the Global South.

To start with, early studies of Cambodia’s transition concerned themselves mainly with measuring and evaluating the impact of the UNTAC mission.Footnote ⁷⁸ Generally, they noted significant success in terms of the procedural aspects of the 1993 election but glaring failures with respect to its mandate for disarming the (in some cases still warring) conflict parties, or for de-politicising the country’s military and administrative apparatus.Footnote ⁷⁹ Subsequently, the majority of literature on Cambodia has been framed in terms of democratisation.Footnote ⁸⁰ Thus, scholars have been unsurprisingly concerned either with the progress of institution-building, or with the informal or external institutions that have inhibited democratic progress.Footnote ⁸¹ Studies have effectively and evocatively demonstrated how aid dependence,Footnote ⁸² systems of patronage,Footnote ⁸³ or neo-liberal capitalism,Footnote ⁸⁴ for example, have undermined democracy in Cambodia. More recently, meanwhile, reflecting an increased interest in the comparative study of authoritarianism and its varieties, modalities, and mechanics, a growing body of literature has amassed that treats Cambodia not as a test case for democratisation, but rather as an iteration of ‘competitive’ or ‘electoral’ authoritarianism.Footnote ⁸⁵ In addition to tracing the foundations of Cambodia’s ‘hybrid’ system back to UNTAC’s overwhelmingly procedural focus on elections, scholarship has now turned to study how institutions such as elections actually work to perpetuate authoritarianism in Cambodia.Footnote ⁸⁶

Constitutional Practice in Exceptional Times

The nature and extent of constitutional contestation in Cambodia, too, must be understood within the context of changes in the style or model of authoritarian governance being practiced. Though not a study that is focused on defining or classifying Cambodia’s ‘regime-type’, this book begins with an awareness that constitutional practice in Cambodia – like that in any other context – is contingent to some degree on the variety of authoritarianism that prevails there. By the time the concept was coined by Andreas Schedler, Cambodia already demonstrated many of the characteristics of ‘electoral authoritarianism’.Footnote ⁸⁷ Elections were and continue to be held regularly, and were generally understood to meet at least a minimum standard of procedural fairness. However, political space around elections was heavily circumscribed, and state institutions were comprehensively co-opted by the CPP, in such a way that the scales of political competition were heavily tipped in favour of the ruling party.Footnote ⁸⁸ As the category of ‘electoral authoritarianism’ was later refined, following the seminal work of Levitsky and Way, Cambodia came to be understood as a ‘competitive’ authoritarian regime, rather than a hegemonic one.Footnote ⁸⁹ In addition to the comparative fairness and openness of elections,Footnote ⁹⁰ this classification of Cambodia was based on the existence of: (i) a relatively free press; (ii) a large, active, and often critical civil society; and (iii) the existence of grassroots political space at both a national and local level. These factors, combined with the remarkably liberal-democratic character of the Constitution (a result of preconditions imposed on the 1993 drafting process by signatories of the PPA), similarly mean that constitutional contestation has been possible, often even vibrant, but ultimately imbalanced.

Nowhere has the imbalance been more evident than in Cambodia’s judicial system. As a consequence of the limitations of the UNTAC experiment (which will be explained in greater detail over the course of this book), the Cambodian Constitution inherited a ‘weak, corrupt, and politically subordinate’ judicial system.Footnote ⁹¹ On an everyday level, a lack of physical, financial, and human resources has meant that courts not only lack the capacity to dispense justice fairly and efficiently but also rely heavily on informal institutions of patronage and corruption in their functioning. Hence, the courts are frequently cited as one of the least trusted institution in the country. Meanwhile, the pervasiveness of patronage networks and political influence has also meant that – despite constitutional provisions to the contrary – the judiciary is widely understood to be loyal to the ruling party and subservient to the executive. Though this status quo is undeniably a key characteristic of CPP rule, it is not without historical precedent. As Sally Low explains in her pathbreaking history of law in colonial-era Cambodia, French rule in the country ‘facilitated a highly administrative and controlled indigenous legal system, a dependent judiciary, and a weak legal profession’.Footnote ⁹²

To the extent that courts are the forum for political or social contestation in contemporary Cambodia, then, they primarily work to perpetuate the dominance of the ruling elite while providing a thin veneer of competition and adherence to legality. In fact, as they have been increasingly used to hamstring electoral opponents and public critics of the government, the courts can be understood to have acted as a hegemonic counterpoint in what has otherwise been a competitive authoritarian system. While Cambodia’s electoral system appears to be set up to enable democratic political competition, in other words, its judicial system has increasingly functioned to limit that competition and ensure the hegemony of the ruling party by silencing critics and criminalising electoral opponents. Such an assessment will, of course, be familiar to those who study other competitive authoritarian regimes, or ‘tutelary democracies’, where the role of ‘disciplining’ electoral democracy can be performed by judiciaries but also militaries.Footnote ⁹³ It is for this reason, in fact, that Un and McCarthy suggest that rather than focusing on elections, attention to rule of law as a measure of progress towards liberal democracy proves to be ‘a far more important indicator’ and ‘more reflective of the particular regime type’.Footnote ⁹⁴ Similarly, an underlying theme in this book is that while the state of rule of law is not decisive in terms of whether or not constitutional practice exists in any given context, it is a major contributing factor in deciding what form that practice takes.

The discussion of regime-type, though, has one further significance for situating this research; a point that also gives this book’s findings about constitutionalism particular significance. Specifically, the period in which primary data for this book was taken actually coincided with a major political shift in the country. Decried at the time as a ‘Descent into Outright Dictatorship’, that shift has subsequently been characterised by political scientists as constituting a move from a competitive to a hegemonic model of electoral-authoritarianism. As Loughlin and Norén-Nilsson explain, the dissolution of the CNRP by the Cambodian Supreme Court in 2017, just a year before a national election, ‘brought to an end two and a half decades of competitive authoritarianism and ushered in a new era of hegemonic authoritarian rule’ by ensuring the ruling CPP would win all 125 seats in the National Assembly for the first time since Cambodia’s 1993 transition.Footnote ⁹⁵ However, the CPP’s clean sweep of the 2018 elections was, according to Loughlin and Norén-Nilsson, just ‘the culmination of a gradual narrowing of space for the political opposition, civil society, free media and other voices contesting the CPP’s dominance’ – a ‘crackdown’ – that had been set in motion by the CNRP’s near-victory in the elections of 2013 and enabled by ‘changes in the post–Cold War international milieu’.Footnote ⁹⁶

Cambodia’s ‘re-autocratisation’, then, was the pragmatic response to domestic and international changes. By offsetting the traditional influence of the West, which has been a feature of Cambodia’s aid-dependence since 1993, Un Kheang explains, ‘China’s engagement in Cambodia served as an important enabling factor’.Footnote ⁹⁷ Ultimately, though, it appears that domestic, electoral considerations necessitated the reversion to authoritarianism. As Un explains, having seen the CNRP make significant gains in the 2013 national election and 2017 communal elections: ‘the ruling party believed that the opposition might be unstoppable if the[y] … allowed the continuation of electoral authoritarianism with the presence of a united opposition party, press freedom (albeit limited), and the rather open operation of civil society organisations’.Footnote ⁹⁸ Formal competition and political space in Cambodia, then, was ultimately subverted as soon as it became clear that their continuation might lead to the electoral demise of the ruling party. Yet, other scholars have sought to ‘go beyond surface perceptions of dominance’, by attempting to ‘examine … power dynamics behind the scenes’.Footnote ⁹⁹ Most notably, Jonathan Sutton has pointed to the death of senior ruling party leader, Chea Sim, in 2015, which he claims ‘effectively removed the final limitations on Hun Sen’s personal power from within the regime’.Footnote ¹⁰⁰ From this perspective, Cambodia’s transition from competitive to hegemonic electoral authoritarianism is as much an expression of a less obvious shift within the ruling party, from a ‘power-sharing model’ to one of ‘personalist autocracy’,Footnote ¹⁰¹ as it is a product of national or international political considerations.

The view of Cambodia as a ‘personalist autocracy’ has been challenged, however. Describing Hun Sen as ‘a leader who is not unassailable or unresponsive to the needs of other elites’, for example, Neil Loughlin has convincingly described the extent to which the then Prime Minister had sought to ‘manage factional and other interests within his ruling coalition’ with an ‘attentiveness’ that sits ‘is in stark contrast to the violence and repression that his government has utilized to deal with resistance from below’.Footnote ¹⁰² By sharing the spoils of political pre-eminence and an increasingly lucrative relationship with China,Footnote ¹⁰³ as well as through the intermarriage of powerful ‘political families’,Footnote ¹⁰⁴ Loughlin argues, Hun Sen has been able to sustain a coalition that continues to dominate Cambodia’s political – and economic – landscape. Likewise, over the course of the period discussed in this book, the consolidation of power by Hun Sen and the CPP enabled the former to initiate a hereditary succession that saw his eldest son, Hun Manet, take over as prime minister.Footnote ¹⁰⁵ This prospect was made public by the CPP’s December 2021 announcement that Hun Manet would be the party’s next nominee for prime minister,Footnote ¹⁰⁶ which was then followed by a series of constitutional amendments – passed in August 2022 – that clarified the process by which a new prime minister is selected.Footnote ¹⁰⁷ Hun Manet was then selected as prime minister in August 2023,Footnote ¹⁰⁸ following the CPP’s landslide victory in national elections.Footnote ¹⁰⁹

That CPP rule was not entirely ‘personalist’ in nature, meanwhile, is demonstrated by the fact that Hun Sen’s handing over of power to his son was coordinated as part of a wider generational transition, which saw other CPP grandees (most notably, Minister of Interior Sar Kheng and Defence Minister Tea Banh) hand over their ministerial positions and portfolios to their own children (namely Sar Sokha and Tea Seiha).Footnote ¹¹⁰ Far from being absent from or immune to the dynamics of re-autocratisation in Cambodia, then, the Constitution has in fact been central to them. Belying the extent to which constitutional practice is overlooked in the Cambodia studies literature, in other words, this book will not only demonstrate how the CPP operationalised this transition through constitutional procedure, as well as seeking to legitimise it using constitutional language, but also why this is indicative of the role that law and constitutional legitimacy play in maintaining the supremacy and cohesion of Cambodia’s ruling elite.

Methodology

This book builds on more than four years of in-the-field experience in Cambodia, including almost two years of formal fieldwork and an additional eighteen months of writing from the field. The ethnographic approach that I take was to some degree a response to circumstance. Specifically, the lack of formal materials – such as official court decisions – available for analysis is such that dogmatic, jurisprudential work on traditional, narrowly defined constitutional law is virtually unavailable for research by all but the best-connected institutional insider. Using interpretive methods and rich qualitative data gathered from interviews, off-record conversations, and participant observation, as well as from archival research and written sources from the ‘expanded archive’ of constitutional practice,Footnote ¹¹¹ the mixed-methods approach employed in this account allows the circumnavigation of those obstacles. Yet, it is also, as I will demonstrate over the course of this book, an insightful and effective method in its own right; not to mention one that is both novel and necessary for furthering the comparative study of constitutions and constitutional law.

The ‘bottom-up’ approach that I employ to capture the role of previously overlooked constitutional actors in the everyday constitutional practice, meanwhile, starts from an understanding of constitutionalism as a discursive, as well as a procedural, phenomenon. As Jothie Rajah has noted, however, discourse itself has become ‘a term so expansive and inclusive in its meanings and applications that [it] should be marked “danger”’.Footnote ¹¹² It might be helpful to clarify, then, that the model of Critical Discourse Analysis, described extensively by Norman Fairclough, is the one that guides this study.Footnote ¹¹³ Ultimately, this approach is based on an understanding of language as ‘the primary medium of social control and power’, and the recognition that ‘disputes over the meaning of political expression [such as constitutionalism] are a constant and familiar aspect of politics’.Footnote ¹¹⁴ For the purpose of this book, it involved studying publicly available materials, such as public statements by government officials, NGO publications and press releases, and media reports, and asking what sort of constitutional arguments or interpretations were being deployed, as well as when, where, and by whom.

In this respect, the extensive reporting on Cambodian politics from the country’s leading Khmer-and-English-language newspapers, The Cambodia Daily and the Phnom Penh Post,Footnote ¹¹⁵ as well as predominantly online-only successors, such as Voice of Democracy and CamboJa News, was integral. This importance was not due to the fact that these newspapers report in English; in fact, I frequently read Khmer versions or cross-referenced English language stories with their Khmer equivalents, particularly to clarify how specific words or phrases had been translated. Instead, the importance of these publications owes to the principled independence and rigour with which they report (or reported) on current events in Cambodia. Nevertheless, a close reading of reporting from these outlets was also supplemented and cross-checked with Khmer-language media and state resources where relevant. Discourse analysis, then, forms a key methodological element of this study. The ‘close reading of texts’ helped to inform my conclusions about the role of the Constitution in Cambodia, grounding it ‘in the detail of history, language and social encounters’.Footnote ¹¹⁶

Discourse analysis, with its reliance on publicly available materials and principally written sources, however, would not provide a complete account of contemporary Cambodia’s constitutional experience. As such, the survey of constitutional practice provided by this book uses the aforementioned written sources to supplement data drawn from 45 open-ended, semi-structured interviews, as well as from participant observation and off-record conversations that numbered into the hundreds.Footnote ¹¹⁷ Conducted between September 2016 and August 2017, formal interviews generally lasted around one hour and were conducted either in cafes, restaurants, or at the participant’s place of work. In an attempt to capture a range of perspectives that were nonetheless relevant to the topic at hand, I employed ‘purposive sampling’,Footnote ¹¹⁸ building on my pre-existing knowledge and network in Cambodia to approach individuals who I believed to be uniquely well-placed to speak to particular viewpoints or sectors of society. The majority of interviews were conducted in Phnom Penh, although interviewees themselves were from a number of different provinces, thereby representing a broad swathe of the country in geographic terms. However, around ten interviews were conducted while on field visits to Steung Treng, Siem Reap, Kampot, and Battambang. In one instance, my attendance at a legal education workshop being held in Siem Reap – albeit by a Phnom Penh-based national NGO – resulted in interviews with participants from Preah Vihear and Ratanakiri provinces. Informal interviews or off-record conversations, meanwhile, took place between September 2016 and January 2020, but were supplemented by field visits in April to June of 2022 and in February of 2023.Footnote ¹¹⁹

As the fieldwork on which this book is based progressed, it became increasingly clear that a handful of specific issues would be of central significance, either because of how the research participants themselves perceived their importance, or because of what I argue is their unique ability to highlight exemplary aspects of constitutional practice in Cambodia. These issues were generally topical ones: problems or contestations that were playing out in the public sphere, in the background to my interviews. As such, they are dealt with in individual case studies, but presented as snapshots that can be understood to make two concurrent contributions: (i) to act as emblematic examples of constitutional practice beyond the courts, and (ii) to capture broader themes in Cambodia’s constitutional practice over the past two-and-a-half decades. As these themes and the resulting case studies began to crystallise, I was able to adapt my purposive sampling so as to hone in on them in greater detail. By the end of the fieldwork process, I had narrowed my interviewees down into categories: politicians, political figures and government officials, lawyers, NGO workers and activists, Buddhist monks, dispossessed communities, and artists, performers, and filmmakers;. Each category, in turn, was associated to one or two specific field sites where I conducted participant observation, while between five and ten participants from each ‘category’ were interviewed formally.Footnote ¹²⁰

While not the central focus of this book, particular effort was made to ensure that the Royal Government of Cambodia was represented in the selection of research participants. This was, it must be noted, no small challenge. As Jonathan Sutton has noted: ‘[a]ccess to the regime for outsiders, especially foreigners, is now virtually non-existent’.Footnote ¹²¹ While I believe Sutton’s assessment is somewhat overstated, it is undoubtedly true that gaining access to members of the ruling party – and particularly those with positions in government – was more challenging than gaining access to any of the other participant categories interviewed for this book. The vast majority of formal requests for interviews – sent by letter to the appropriate offices of specific ministries – went unanswered. Some that were answered, meanwhile, resulted in little more than prolonged exchanges by phone, often over a period of months, as my research assistant and I tried and failed to secure an interview that had, theoretically, been approved. Nonetheless, this research benefitted from the extensive length of time that I was able to spend ‘in the field’ and the wide-ranging network that I was able to develop in the process. Finally, and most importantly in respect to access to government officials, the assistance I received from the local research institution, the Cambodian Development Resource Institute, ensured that I was not only able to make contact with relevant ministries, but that I was able to do so in a way that followed the appropriate social etiquette and conventions. Without this assistance, I can see how some researchers might conclude that access is ‘virtually non-existent’.Footnote ¹²²

The comparative difficulty of securing interviews with government officials is also an inverted reflection of another often taken-for-granted reality in Cambodia: namely that even the busiest lawyer, civil society worker, monk, artist, or community activist will undergo no small inconvenience, and take genuine personal risk, to help a researcher (perhaps a foreign researcher particularly) understand their country from their perspective. This represents a foundational understanding upon which this book is built: that, even in repressive settings where constitutional contestation is supposedly ‘muted’,Footnote ¹²³ those who are typically excluded from academic accounts of constitutionalism often have an unerring desire to have their voice heard. If anything, my overriding feeling at the end of interviews with ‘laypeople’ who might not otherwise be considered relevant to the study of constitutional law was not one of disappointment at the lack of valuable data I had managed to ‘extract’ from participants, but rather a sense of guilt that perhaps my questions had not been thoughtful enough or had failed to give the interviewee the proper opportunity to express themselves. More than anything else, this research was only possible because of those people who shared with me their time, trust, knowledge, and experience.

The case studies on which this book is based are, of course, temporally bound. This is the inevitable result of a decision to focus on constitutional contestations that were prominent during the time that fieldwork was undertaken. Yet, in many cases, they are also representative of broader themes in Cambodia’s constitutional practice, as it has emerged and evolved over the past two-and-a-half decades. Chapter 2, for instance, situates itself at the very birth of Cambodia’s current constitutional order and is historical in its focus; yet, it nevertheless attempts to go beyond simply re-telling the Constitution’s origin-story and instead seeks to draw out themes from that history that pervade the following chapters. Equally, part of the research for each case study involved a significant historical component, as I sought to follow the genealogy of specific issues backwards in time. This approach seeks to place the ‘snap shots’ of constitutional practice that are the focus of each chapter within their appropriate historical context.

Outline of Chapters

The first such snapshot is primarily historical. Focused on providing an account of how Cambodia’s Constitution came into existence, Chapter 2 tells an ‘origin-story’ of the Cambodian Constitution that foreshadows many of the themes and debates that recur throughout the book. The chapter begins with an overview of the wider political context and peace-building process, in which Cambodia’s constitution-making process was set: from the negotiation of the PPA to the arrival of the United Nations Transitional Authority in Cambodia to democratic elections and the formation of a coalition government. Then, I reflect on the growing literature that has sought to understand and explain constitution-making processes, particularly post-conflict constitution-making processes, to lay out some of the central considerations that are at play in the Cambodian drafting process. Next, I provide an account of how Cambodia’s constitution-making process proceeded. Rather than offering a comprehensive account of the process,Footnote ¹²⁴ however, I take a thematic approach, focusing on the role of international actors, the role of domestic elites, and – finally – contestations around the lack of public participation. Constitution-making in Cambodia included a notable degree of ‘self-dealing’ by political elites, which was made possible by flaws in the structure of the process, as well as by the postponing or avoidance of a number of major constitutional, perhaps as a result of the tight time constraints that were imposed on the process. More generally, I argue, the constitution-making process was characterised by the international community’s desire to ‘lock-in’ formal commitments to liberal democracy, which may have pre-empted meaningful discussion about how Cambodia should be governed, as well as by a willingness to ‘lock-out’ of public participation, which prevented local voices from being heard by the constitution-makers in the name of preserving ‘order’ and ‘stability’.

One example of how these decisions, and these wider themes, continue to undergird macro-political developments in Cambodia is detailed in Chapter 3. As the only one to focus primarily on the state, this chapter examines the way in which the Constitution has been understood ‘from above’ by the ruling CPP. Specifically, it focuses on the CPP’s weaponisation of constitutional language and process, as exemplified by debates over the protection supposedly provided by parliamentary immunity and by the Supreme Court’s 2017 decision to dissolve the CPP’s primary electoral opponent, the CNRP. These examples, I argue, provide powerful and prescient examples of the way in which constitutional procedure, rather than being entirely overridden by the government, has in fact been used to undermine what would otherwise be considered some of the key normative contents of the constitutional document. In particular, I suggest, the constitutional language of ‘stability’ and ‘public order’ provide a subtext for the CPP’s reading of the formal Constitution that legitimises – or even necessitates – the overriding of democracy. As such, this chapter suggests that, rather than reflecting an absence of constitutionalism and rule of law, Cambodia can in fact be understood to exhibit characteristics of a ‘thick’ strain of ‘authoritarian constitutionalism’ that is rooted in a privileging of ‘law and order’.

Yet, this state-led constitutional narrative has not become entirely hegemonic, as it continues to be contested and challenged by various actors in Cambodian society. One forum for such contestation is – perhaps unsurprisingly – Cambodia’s judicial system. However, even when the courts appear to take centre stage here, the audience and message for courtroom performances are less predictable. As Chapter 4 explains, lawyers who articulate constitutionally framed arguments in high-profile court cases often see themselves as speaking first and foremost to journalists and NGO observers in the gallery, and thus to the local public and international stakeholders to whom those observers in turn report, rather than to the presiding judge. To the extent that courts play a role in constitutional practice, in other words, they do so as a stage on which contestations can be performed for a much wider audience. Hence, this chapter develops a concept of an ‘extended legal complex’, which seeks to capitalise on the ruling party’s desire to maintain at least a semblance of fidelity to the legal process to articulate critiques of the government and alternative interpretations of the Constitution before a national and international audience. The chapter then explains how the CPP has sought to neutralise this threat to their constitutional legitimacy by politicising the Bar Association, thereby hamstringing the work of activist lawyers and adding layers of legal complexity and uncertainty to their relationships with local NGOs.

Shifting the focus of constitutional enquiry almost entirely beyond the reach of state institutions, then, Chapter 5 highlights the extent to which newly imposed constitutional norms have – since 1993 – fundamentally challenged understandings of the relationship between religion and politics in Cambodia. Constitutional language, the chapter demonstrates, has come to infuse internal debates within the Buddhist sangha, where constitutional guarantees of universal suffrage sitting awkwardly alongside traditional expectations of monks existing above the corrupting world of secular politics. Beginning with a comparative and historical explanation of the different constitutional approaches to the universal franchise in Theravada Buddhist countries, the chapter hones in on the now decades-old debate about the voting rights of Cambodian monks by drawing extensively on interview data. Here, it is possible to see how constitutional vocabularies and arguments become intertwined with religious-doctrinal, as monks speak about the balancing of the universal franchise with the government’s mandate to promote and protect the state religion just as freely they discuss the teachings of the Buddha. Buddhist monks, in other words, reflect a hybridity of consciousness that is made possible by the new constitutional order, as they debate their place in that order with explicit reference to constitutional text and principle. Meanwhile, I go on to show, the constitutional extension of the franchise to Buddhist monks coincided with an increased political activism within the sangha, as some monks have interpreted this dual identity as justifying – or even requiring – the adoption of a more ‘engaged’ approach to social- and environmental-justice issues.

Expanding the horizons of constitutional practice still further, Chapter 6 then shows how the meanings and implications of the Cambodian Constitution – and particularly the mandate it gives the state to protect Cambodian culture and tradition – have been shaped by artists, filmmakers, and performers in their engagements with (or disengagements from) the state. Building on ethnographic observations and interviews with artists, it shows how the state’s attempts to control or shape artistic output have been understood, and often been avoided or subverted, by a diffuse network of artists who have persisted in representing radically different versions of Cambodian-ness to that envisaged by the state. The chapter begins by introducing the reader to the Ministry of Culture’s Code of Conduct for Artists and Performers, which was introduced in 2016. Quoting directly from Articles 35 and 70 of the Constitution, the Code of Conduct explicitly asserts the Ministry’s constitutional prerogative to oversee, censor, and discipline artists in the pursuit of ‘stability’ and ‘social order’, and to fulfil its duty to ‘protect the good traditions of Cambodian society’. Drawing on interviews from a number of artists from around Cambodia, as well as representatives from the Ministry of Culture, I suggest that the Code of Conduct represents a profound and widely shared anxiety about the meaning of modern Cambodian culture and national identity. In negotiating this fraught terrain, Cambodian artists explain how they have either directly challenged or avoided the regulations. In so doing, this disparate group has elaborated its own interpretation of the Constitution and offered its own definition of the ideas of ‘national culture’ and ‘good traditions’ contained therein. The result is both a micro-level account of constitutional contestation and an exploration of how art, culture, and constitutionalism intertwine, as the artists in question effectively shape the meaning of the Constitution from below, and thus effectively become constitutional actors themselves.

Finally, this book concludes with a chapter that synthesises the findings drawn from the empirical data presented in the previous five chapters, weaving the distinct strands into a cohesive picture of micro-political constitutional contestation in Cambodia. As such, it highlights key themes that run throughout the empirical case studies, or snapshots; these include ideas about authority and legitimacy, imposition and legal transplants, processes of translation, and the relationship of constitutions to ideas of order and stability. While drawing on lessons that have been extrapolated from Cambodia’s experience, the majority of the concluding chapter is largely pitched at a more generalisable level of theory, in order to highlight the significance that attention to micro-political constitutional contestations can have for the study of constitutions in Asia and around the world. As such, it also seeks to draw out comparative insights from other jurisdictions, particularly in Asia. Rather than striving to provide a comprehensive comparative study, this section overtly aims to be indicative: it draws attention to instances where existing literature on constitutions has already discussed micro-political constitutional contestations without explicitly acknowledging or analysing them as such, and it gestures towards places where attention to micro-politics approach could elicit new insights. Fundamentally, it argues that viewing constitutions in authoritarian regimes merely as ‘shams’ obscures more constitutional reality than it illuminates. Viewing constitutions from a ‘bottom-up’ perspective, it explains, can help shed light on the ways in which everyday social, political, cultural, and religious contestations are both structured by constitutional provisions and principles, on the one hand, and can serve to reshape the meaning of those same constitutional provisions and principles, on the other.