ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

116 THE RIGHT OF NON-CITIZENS TO
CONSTITUTIONAL REVIEW AND
IMPLICATIONS FOR HUMAN RIGHTS
AND DEMOCRACY
In this age of routine transnational mobility, the topic of
non-citizen residents’ access to constitutional review,
partly as a means for protecting their human rights is
pertinent to most countries. This panel from East Asia
engages in: Comparative examination of non-citizens’
right to constitutional review in defense of their human
and constitutional rights. Normative evaluation of the
questions: How should constitutional rights practices
respond to the expansions and complications of human
rights brought on by globalization and migration? What
kind of role can constitutional rights review play in realizing
the universal human rights of everyone, including
“Others”? Does granting constitutional review rights to
non-citizens threaten or facilitate democracy? Do mechanisms
of constitutional rights review enable non-citizens
to participate in the constitutional process of their
society of residence? Does the meaning of democracy
need to be reconstructed or reconceived in our time?
Participants
Name of Chair
Room
Jiewuh Song
Yoon Jin Shin
Kelley Ann Loper
Yi-Li Lee
Jiewuh Song
UL9 E25
Jiewuh Song: Rights, Borders and Democracy: in
Theory, Law and Asia
This paper has three aims. First, it presents a human
rights justification for non-citizens’ rights to constitutional
review. Second, this paper argues – against
e.g. some South Korean jurisprudence – that non-citizens’
access to constitutional review should range
over both civil and political and socioeconomic rights.
In particular, this paper criticizes the jurisprudential
argument that the logic of cooperatively produced
socioeconomic goods excludes noncitizens. Finally,
this paper argues that previously authoritarian Asian
countries should institutionalize robust constitutional
review for non-citizens as, inter alia, safeguards
against predictable human rights threats. This conclusion
is consistent with both the moderate position
– still standard in international law – that political
participation rights are citizen rights and the ambitious
position – advocated by some co-panelists – that sees
non-citizens’ constitutional review rights as part of a
more inclusive vision of democracy.
Yoon Jin Shin: Constitutional Rights Practice by
Non-Citizens and Implications for Democracy
and Human Rights: The Case of South Korea
This paper discusses how constitutional rights
practice can empower non-citizens, those residing
Concurring panels 165
within a state boundary but outside the political community,
in terms of human rights and democracy. The
research introduces South Korean Constitutional
Court cases, including a landmark case on the guest
worker system. Migrant workers, who as a group had
been excluded from equal protection of labor-related
human rights, challenged the law and brought about a
constitutional decision that transformed the national
foreign labor policy. The paper argues that constitutional
rights adjudication process does not pose a
threat to democracy, but can indeed be a facilitator
of it, by providing a venue of rights discourse to articulate,
communicate, and accommodate conflicting
views and interests among diverse groups of citizens
and non-citizens. This transnational rights practice
enables more effective and comprehensive human
rights protection and a democratic society with more
cosmopolitan nature.
Kelley Ann Loper: Protecting the Rights of Non-
Citizens in Hong Kong: The Role of Judicial Review
As the causes and nature of migration continue
to evolve across the region Asian jurisdictions face
new challenges and fresh human rights claims made
by non-citizens living within their borders. This paper
examines the Hong Kong experience in this regard
and aims to contribute to comparative research on
judicial approaches to non-citizens’ rights. This paper
considers selected cases that illustrate i) the courts’
approach to determining the legitimacy of limitations
on rights based on residency status; ii) issues related
to reliance on the right to equality as the basis for such
claims; and iii) the extent to which ‘non-citizens’ can
access socio-economic rights. This analysis raises
broader questions about the effectiveness of judicial
review as a means of protecting human rights in a nondemocratic
political system and the possible contribution
of the courts toward an evolving understanding of
‘citizenship’ in the sense of inclusion.
Yi-Li Lee: The Constitutional Landscape of Immigration
and the Rights of Non-Citizens: The Case
of Taiwan
Globalization and competitive international economy
facilitate the free movement of goods trade and
people. Numerous non-citizen complaints have been
witnessed to appear before the Constitutional Court of
Taiwan in recent years. This paper is aimed at systematically
examining these judgments and analyzing in what
ways and to what extent the Constitutional Court of Taiwan
strategically deal with those non-citizen disputes.
This paper argues the Court was actively involved in
the rights of foreign workers while Taiwan incorporated
itself into international human rights regime in recent
years. However the Court took a rather deferential approach
in reviewing the cases about the immigrants
from mainland China in the context of changing crossstrait
relations.