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专题:非西方国家宪法研究 (2024年, 5期)
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  • Area Studies. 2024, (5): 3-4.
  • Zhang Xiaohu, Xiong Suqin
    Area Studies. 2024, (5): 5-37.
    Under the influence of the Arab Spring in 2011, Egyptian situation remained unrest. Since President Mubarak resigned, House of Representatives closed repeatedly, chaos continued until the military overthrew the Freedom and Justice Party(formed by the Muslim Brotherhood government). In the meantime, Egypt's Constitution has been revised several times. Due to the disadvantages of Instrumental Constitutionalism, the conflict between the military's authoritarian rule and Morsi's Islamization legislation has been extremely intense. The conflict on Egypt's Constitutional Amendments became the key factor of Egypt's Constitutional Reform. At the beginning of 2014, the new Constitution Draft of Mansour's transitional government has passed referendum with a high vote, but the crisis was still there. And new amendments were introduced to Egyptian constitution in 2019. Whether the new constitution can bring stability and development in Egypt? How can Constitutional Negotiations be achieved between differing political factions? How can SCAF play a unique role? Whether the public will and constitutional demand can be fulfilled? These problems will be the key which helps the Egypt get out of the constitutional crisis.
  • Zhai Yida
    Area Studies. 2024, (5): 38-71.
    The Constitution is the fundamental law of a country and lays down the legal basis of the political system. Myanmar is one of the few countries in the world where a military regime has long been in power. It handed over political power to an elected government in March 2011, but before that a constitution with stringent standards for amendments was made to guarantee the military's vested interests. Over the past 10 years, different political forces in Myanmar have struggled for the constitution amendments, but substantial results have not been achieved. The military clique staged another coup d'état in 2021 to overthrow the democratically elected government. Since October 2023, the army has suffered a series of defeats in battles with local resistance forces, affecting the political prospects of Myanmar. Among the several prospects for Myanmar's future political transition, constitutional amendments based on the 2008 Constitution of the Republic of the Union of Myanmar would be a candidate. Constitutional amendments involve not only the text of the Constitution, but also is related to political actors who have distinct interests and have different reactions to the amendment. Therefore, in the process of political transition of Myanmar, constitutional amendment must take into account political actors. This article examines two cases of constitutional amendments in Myanmar since 2010, both of which have failed. Adopting the method of “legal formalist political science,” I analyzed the 2008 Constitution of the Republic of the Union of Myanmar, and put forward the main contents, the principles, and paths of constitutional amendment.
  • Ding Chenxi
    Area Studies. 2024, (5): 72-108.
    The Moroccan constitutional system serves as a quintessential example of a “composite constitution”, seamlessly blending traditional and modern elements. The traditional component traces its origins to Morocco's historical “Commander of the Faithful” institution and its continuation in the constitutional text, while the modern elements are adopted from the mixed system of the French Fifth Republic. Existing literature lacks systematic research on the modern elements of Morocco's constitutional system from the perspectives of comparative constitutional law and legal transplantation. The 1962 Constitution of Morocco was transplanted from the 1958 Constitution of France, bearing similarities to the constitutional framework of the Fifth French Republic. However, compared to the French President, the King of Morocco enjoys greater power. The constitutional practice of the 1962 system has never experienced a “divided majority” or “co-habitation” situation, and the country's political system exhibits characteristics of a “super-presidential system” with dominant royal power. In terms of the structure of executive power, the King leads the executive branch with singular dominance. In the structure of legislative power, the King has numerous powers to influence and intervene in legislation. Regarding the relationship between the government and parliament, the “rationalized parliamentarism” transplanted from France has led to an imbalance in the parliament's ability to check the government. Although the constitutional transplantation has introduced modern elements into Morocco's political system, limitations still exist.
  • Li Hongji
    Area Studies. 2024, (5): 109-133.
    During the transition period of South Africa at the end of the 20th century, the newly established Constitutional Court of South Africa had the function of reviewing the constitution. In 1996, the Constitutional Court of South Africa examined the new Constitution of South Africa and the Constitution of the Province of Kwazulu-Natal, mainly on the basis of the Interim Constitution of 1993 and constitutional principles, thus influencing the constitutional order of the new society of South Africa. From the perspective of the sociology of constitution, the Constitutional Court of South Africa in the transition period played a special social function, guaranteeing the continuity and unity of the constitutional order of South Africa, and promoting the transformation of South Africa from an unequal racial order to an equal constitutional order.
  • Cui Hanyu
    Area Studies. 2024, (5): 134-161.
    The judicial review system has been a focal point of legal reform in numerous countries, but this kind of system reform aiming at judicial empowerment cannot produce good social effects. Taking judicial review as a tool of political game will seriously affect judicial independence and the function of power restriction. The political motivations and effects of the Israeli constitutional revolution in the 1990s fully demonstrate the functions and limits of judicial empowerment. The political motivation of the Israeli Supreme Court to promote the constitutional revolution made the judicial review system thus established fail to give full play to its positive role in the construction of democracy and rule of law, but made Israel fall into the abyss of political judicialization, intensified the power struggle among different interest groups in the country, and had a negative impact on the stability of national politics. The research on the internal and external causes of the Israeli constitutional revolution provides us with experience and samples to analyze the functions and limits of judicial empowerment, and helps us to reflect on the path choice of the rule of law reform in modern countries.
  • Chen Xixi
    Area Studies. 2024, (5): 162-190.
    The Supreme Court of India has gone through three stages on the question of whether the right to privacy is protected by the Constitution, which are denying the right to privacy as a fundamental right, assuming the right to privacy as a fundamental right and affirming the right to privacy as a fundamental right. By analyzing the privacy jurisprudence of Indian Supreme Court, this paper outlines the development of the right to privacy and the interpretation of related constitutional provisions, and points out that the theory of constitutional interpretation of the Supreme Court of India has undergone a transition from original interpretation to “living constitution”, and such a transition is made through the transition from textualism to structuralism at the level of methodology. This shift in the Supreme Court of India, which took place mainly in the aftermath of the Emergency, reflects a change from a positivist view of law to emphasizing the spirit of the Constitution, which has enabled a range of rights, such as the right to privacy, which are not enumerated in Part III of the Constitution, to be brought within the scope of protection of article 21 of the Constitution by means of a structuralist approach to constitutional interpretation.