The Approach of Introducing International Human Rights Treaties into the Interpretation of Constitutional Provisions in Taiwan

Abstract

The Constitution of the ROC contains a Bill of Rights Chapter which requires the fundamental rights of the people to be protected. Since it was drafted seven decades ago, an important issue arises concerning whether and how to keep the Bill of Rights in line with the development of international human rights treaties and practices. In this chapter of the book, the author argues for the desirability and importance of ensuring a living constitution for the Republic by incorporating international human rights treaties and practices into the decisions made by the Constitutional Court. The author suggests that the fundamental interpretative method of relying on textual interpretation should be employed to look for the appropriate ordinary meaning of the constitutional text. But the “ordinary meaning” should not be the “ordinary meaning” at the time when the Constitution was adopted. Instead, it should be the “ordinary meaning” at the time when a provision is interpreted; it should evolve by taking into consideration the development of international human rights treaties and practices. This approach would be more in line with the duty entrusted by the Constitution to the Court to “interpret the Constitution” and also in line with the desirability that the constitutional provisions will not become obsolete.