Non-Citizens’ Rights and Judicial Review for Inclusive Democracy

Citizenship still defines boundaries of political membership and democratic participation in most states. On the other hand, many constitutions acknowledge certain, if not all, basic rights for non-citizens and enable them to challenge law or government actions when those rights are violated. Democratic theories do not require excluding those persons subject to law based on their nationalities. Democracy can and should take more inclusive and transnational forms to adhere to its principles. Participation of non-citizen rights holders in norm-making processes through judicial review can play an effective role in this transformation. Examples in this paper show that constitutional rights review empowers disfranchised individuals by providing them with an institutionalized way of democratic participation other than voting. The cases also suggest a way how international human rights and constitutional law can work together in concertizing rights of individuals in transnational situations.