Constitutional Dynamics of Judicial Discourse on the Rights of Non-citizens: The Case of Taiwan

Abstract

The recent developments in global and regional immigration attitudes challenge the constitutionality of policies and regulations on immigrants and foreigners in many countries. Similar demands for such judicial resolutions also occurred in Taiwan while it underwent the successful democratic transition in the 1990s. Its Constitutional Court has rendered several decisions to address the civil, social, and political rights of non-citizens in recent years. Against the backdrop of these vibrant developments, this chapter discusses in what ways and to what extent the Constitutional Court of Taiwan has addressed disputes about the rights of non-citizens in the settings of the democratic transition and globalization and the features and critiques of those judicial decisions are. Having examined those judicial decisions, this chapter finds that the Court’s decisions reveal two significant features. First, the Court has increasingly taken an inclusive approach in the civil rights of non-citizens, which has facilitated the subsequent development of migrant regulations. Second, the Court and the individual Justices have actively used international human rights instruments to address the rights of non-citizens while Taiwan incorporates itself into the international human rights regime. However, the Court’s decisions on social and political rights drew scholarly critiques when it took a rather deferential approach in reviewing related cases due to concerns of national security and limited social resources. Since non-citizens are usually regarded as “discrete and insular minorities,” this chapter argues that the Court should consider applying stricter scrutiny to the legal restrictions on the social and political rights of non-citizens, especially when the issue of national origin classification is sensitive. In addition, to guarantee human rights for non-citizens, the Court should find it necessary to develop diverse criteria to review the disputes that pertain to the social and political rights of non-citizens.