The Right to Privacy in Asian Constitutions' by Graham Greenleaf in
The Oxford Handbook of Constitutional Law in Asia (Forthcoming)
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This Chapter examines how jurisdictions in East and Southeast Asia protect various aspects of privacy through their constitutional regimes. It first surveys East Asian jurisdictions, starting with the jurisdictions that are most protective of privacy rights, then turns to Southeast Asia, again starting with the jurisdictions that are relatively more protective of privacy. Finally, certain patterns and highlights are identified from viewing constitutional privacy rights in East and Southeast Asian jurisdictions together as a region.
Of the jurisdictions considered in this chapter, only two do not provide any apparent constitutional protection of privacy (Brunei, Laos), but constitutional protections are not justifiable in at least three others (China, North Korea, and Vietnam). Protections are of uncertain existence in Malaysia and Singapore, and untested in the courts in four jurisdictions (Timor Leste, Thailand, Cambodia and Macau SAR). That leaves six North and Southeast Asian jurisdictions where constitutional privacy protections have been enforced by the courts (South Korea, Taiwan, Japan, Hong Kong SAR, Indonesia and the Philippines).
The decisions of the Taiwan Constitutional Court, the Korean Constitutional Court, and the Philippines Supreme Court are the most detailed articulations of the protection of privacy by constitutional courts in Asia. All three courts have recognized strong privacy protections, particularly as they are based primarily on implied privacy rights, but on different issues, ranging from ID card schemes to telecommunications interception, to compulsory fingerprinting.
Asian courts with the most developed privacy jurisprudence frequently use similar language to protect privacy. Courts have found privacy to be an implied right based on protections of dignity and autonomy interests, such as personality development and informational self-determination. In defining valid restrictions on the constitutional right of privacy, the courts have adopted strikingly similar legal tests. However, despite there being a wealth of privacy jurisprudence from some Asian courts, there are no instances of these courts citing each other’s decisions as valuable sources of arguments about privacy.
