Constitutions and Public Ethics

by Elias Blum

Traditionally (in the 18th and 19th centuries) constitutions were mainly concerned with: (i) fundamental rights [What are the limits of the state?] and (ii) the basic structures of representative government [How is the state to be governed?].

In the 20th century, the scope of constitutionalism was extended to include: (iii) socio-economic rights and principles [What will the State provide for its citizens, and what is the relationship market and the state?] and (iv) statements of identity, nationhood and culture [Who are we, where have we come from, where are we going, and what are the values that unite us?].

We are also discovering another important function of the constitution, which is defining and upholding public ethics [What are the standards of behaviour that we demand of those in public office, and how can we ensure that those in office exercise their powers in a fair, non-corrupt way?].

We see in recent (post-1945) generations of constitutional design, we see a stronger emphasis on institutions like ombudsmen, auditors, independent electoral commissions, public service commissions etc, which seek to ensure that power is used in justifiable, rational, non-partisan, non-corrupt ways.

But I think the time has come to go further; perhaps more constitutions should, for example, regulate campaign finance and political donations, and prohibit conflicts of interest. This would help tackle these problems. It would make clear the boundaries between what is and what is not acceptable behaviour, and provide mechanisms for the enforcement of ethical standards in public life.

Some moves in this direction have already been taken. The 2010 Constitution of Kenya, for example, includes extensive provisions on public ethics, as did the 2013 draft Constitution for Fiji, and the 2009 Constitution of the Solomon Islands. We do not generally find such provisions, however, in the constitutions of established Western democracies, where it was long assumed that active parliamentary politics, backed by a free media and the rule of law, would be sufficient to guard against corruption.

Such hubris and complacency can no longer be entertained. It has become clear, especially since the 2008 financial crisis, that Western democracies are characterised by gross, systemic corruption: the distortion of policy by the interests of corporate financial capitalism and the richest crust of the population. If we are serious about building a democracy that works for everyone, and that serves the common good not the private interests of those in and near to power, then we must tackle these problems.

Strong constitutional rules on matters such as campaign finance and political donations, on public ethics and on conflicts of interest, may a useful tool – alongside others, such institutions of direct and participatory democracy – that the people can use to help recapture the state from narrow, oligarchic elites.