interpret "the people of the Republic of China" in Article 7 as encompassing all
individuals within the R.O.C., which aligns with the Constitution's intent to protect
fundamental human rights and avoid conflicts with other constitutional provisions.
Furthermore, Article 141 of the Constitution could serve as a reinforcing basis for this
interpretation, allowing for the incorporation of international human rights law into
the domestic legal order as binding norms. 1
Denying non-citizens equal protection under the Constitution would not only
contradict international human rights covenants and the norms of civilized nations but
also undermine the value of fundamental rights protections for non-citizens. However,
equal treatment does not necessarily imply identical treatment for non-citizens and
R.O.C. citizens as may be justifiable distinctions based on the nature of certain
fundamental rights. The key issue lies in whether such differential treatment is
reasonable. Scholars argue that non-citizens are still subject to fundamental rights
under the R.O.C. Constitution but are subject to reasonable restrictions per Article
23. 2
2.
Hierarchical Standards for Differential Treatment
Taiwan’s Constitution not explicitly distinguish between the basic rights of
citizens and foreigners. Traditionally, constitutional scholars have categorized basic
rights into three levels: human rights, national rights, and citizenship rights, with the
rights enjoyed by nationals and foreigners differing based on nationality. However,
globalization has led to the scope of non-citizens' basic rights protection gradually
extending from human rights to national rights.
Scholars argue that human rights, which are natural and inherent rights, must
not be subject to differential treatment. Since there is no fundamental difference
between foreigners and nationals regarding these rights, any discrimination would
Li Nian-zu, "On the Equal Protection of Foreigners' Fundamental Human Rights under the
Constitution of Taiwan," Constitutional Times, Vol. 27, No. 1, p. 95, July 2001.
2
Li Zhen-shan, "On the Immigration System and Fundamental Rights of Foreigners,"
Taiwan Indigenous Law Journal, No. 48, pp. 53-56, July 1, 2003.
1
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