Constituting and Implementing the Constitutional Right to Housing: Focusing on Judicial Review
Date Issued
2016
Date
2016
Author(s)
Chen, Kuan-Wei
Abstract
There are numerous controversies related to housing in Taiwan recently. Meanwhile, with the growing emphasizing on international human right law, the right to housing has been concerned frequently. This thesis tries to bridge the gap between “human rights” and “constitutional rights”, exploring the possibilities and the ways to constitute and to realize the right to housing in the consitution, focusing on judicial review, an essential mechanism to “recognizing rights” as well as “realizing rights”. First of all, with respect to constituting right, this thesis introduces the origin of housing protection in constitutions, the legitimate basis of the right and the regulatory model on modern comparative constitutional law, analyzing the approaches to constitute constitutional rights. This thesis argues that under the social-state constitution in Taiwan, the demand from covenants and actual needs, it is worth trying to constitute the right to housing as a constitutional right through interpretation. This thesis as well discusses several constitutional bases to accommodate the right to housing, and claims that through the “right to life” of Article 15 is the most possible way to include the right to housing. Besides, the “Schutzbereich” and the function of the right to housing are both capable of connecting to the right to life. However, the protection of right to life and housing should not be limited to minimum core. When it comes to the realization, i.e., the highly controversial judicial review, this thesis claims that it cannot be abandoned merely due to the controversy of justiciability. Instead, the suitable review model should be found. Therefore, through comparative law analysis, this article suggests two possible ways: “decision-making review” and “principle of proportionality combined with procedural review”. The advantage of these two models is to ease up the controversy of making decisions by the judiciary through demanding political sectors to reasoning, and through transparency to democratize the judicial process. In addition, this thesis also introduces several special types of housing problems, which need to be noticed. Moreover, in order to strengthen the protection of rights, during the judicial review process, the content and spirit of the covenants should be included in the right to housing in the constitution.
Subjects
the right to housing
judicial review
International Covenant on Economic, Social and Cultural Rights
adequacy
minimum core
due process of eviction
right to life
justiciability
decision-making review
principle of propotionality
Type
thesis
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