| dc.description.abstract | For a long time, the fundamental rights of people from the mainland area have been a subject of much discussion. This article discusses the fundamental rights protection of people from the mainland area from the perspective of constitutional differences in human rights, national rights, and civil rights. It also examines the strength, scope, and standards of review of the Grand Justices regarding protection of the fundamental rights of people from The mainland area through J.Y. Interpretation No. 497, No. 618, No. 710, and No. 712, and observes the evolution of the protection of these rights.
In terms of literature review, the doctrines put forward by the Swiss jurist Bluntchli Johann Caspar, and the German public jurist Georg Jellinek, explain the importance of fundamental human rights, national rights, and civil rights, and understand the value of international human rights in light of international human rights conventions.
Additionally, this article examines the legal status of people from the mainland area and the differences between human rights, national rights, and civil rights from constitutional law perspectives, which are presented in three stages according to the timeline (before 1949, after 1949, and the views of modern scholars). Then, it discusses the reasons for legislators to formulate The Amendment of the Constitution of the Republic of China and Act Governing Relations between the People of the Taiwan Area and the Mainland Area in 1991.
The four J.Y. Interpretations described the core topic of this article: the Grand Justices’ outline of the fundamental rights protection of people from the mainland area and the differences between human rights, national rights, and civil rights. In the J.Y. Interpretation No. 497, the Grand Justices believed that people from the mainland area had the freedom of movement, which is one of the national rights, but they could not enjoy the same right to return home as those nationals with residence registration, a current status that is inferior to even that of foreigners. The Grand Justices adopted a lenient standard of review and held that it was consistent with the principle of proportionality. The J.Y. Interpretation No. 618 involved civil rights. The Interpretation explained that a ＂minimum scrutiny＂ had been adopted and considered that the decisions of the legislature should be respected in the absence of obvious and significant defects. The Judicial Yuan further explained that Interpretations No. 710 and No. 712 touched on the protection of human rights. In the former case, the Grand Justices confirmed that the protection of personal liberty had universal value, and even people from the mainland area were protected by the Constitution. In the latter case, the majority of the Grand Justices recognized the importance of family rights, affirming that marriage and family, which are also universal human rights, should be systemically protected by the Constitution, and their restriction should be subject to strict scrutiny. Furthermore, adoption was a right of freedom listed in Article 22 of the Constitution, and helped with the ＂systemic protection of marriage and family, and the protection of human dignity and free development of personality.＂ It is to be held invalid from the date of issuance date of this Interpretation.
This article argues that people from the mainland area cannot be left unregulated, simply because of concerns for human dignity and fundamental human rights. Likewise, the human rights of people from the mainland area cannot be restricted without limit based on the Article 11 of the Constitutional Amendment. In the face of this complex issue of mainland people’s basic human rights, legislators, the judiciary, and practitioners who deal with mainland people on the front line must consider how to find a consensus between human rights and national security. We, as people, must also understand what restrictions and regulations national laws have imposed on people from the mainland. How we strike a balance between the state, the Constitution, and human rights is exactly the question every one of us should consider. | en_US |