1. Religious Freedom and Its Legal Restrictions in China Qianfan Zhang Constitutional and Administrative Law Center, Peking University

2. Religious Freedom and Constitutional Limits 1982 Chinese Constitution Art. 3: 1982 Chinese Constitution Art. 3: Citizens enjoy freedom of religious belief. State may not compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens on religious basis. Citizens enjoy freedom of religious belief. State may not compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens on religious basis. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair health of citizens or interfere with educational system. Religious bodies and affairs are not subject to any foreign domination. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair health of citizens or interfere with educational system. Religious bodies and affairs are not subject to any foreign domination.

3. Cultural Differences Western view: Government may not inquire whether any given religion is “ true ” or “ false ”, “ reasonable ”, or “ credible ”…… Western view: Government may not inquire whether any given religion is “ true ” or “ false ”, “ reasonable ”, or “ credible ”…… China ’ s Marxist secular view coupled with dogmatic tradition: religion is “ superstitious ” ; government has authority to judge whether a religion is “ true ”, “ false ”, “ good ”, “ evil ”, “ normal ”, “ beneficial ”, “ harmful ”. China ’ s Marxist secular view coupled with dogmatic tradition: religion is “ superstitious ” ; government has authority to judge whether a religion is “ true ”, “ false ”, “ good ”, “ evil ”, “ normal ”, “ beneficial ”, “ harmful ”.

4. Social Attitudes Secular view of religion under Marxist influence: “ superstition ”, “ backward ”, inconsistent with modern (socialist) spirit. Secular view of religion under Marxist influence: “ superstition ”, “ backward ”, inconsistent with modern (socialist) spirit. Governments fear religious gatherings and developments, take actions to hinder growth of religious community, interfere with religious activities, dissipate religious influence. Governments fear religious gatherings and developments, take actions to hinder growth of religious community, interfere with religious activities, dissipate religious influence.

5. First Textbook Litigation Sichuan University ’ s textbook on Marxist philosophy: religion is “ spiritual opium ” in essence to sooth laborers. Sichuan University ’ s textbook on Marxist philosophy: religion is “ spiritual opium ” in essence to sooth laborers. Fujian lawyer sued for emotional harm, but Chengdu courts declined to review the case on jurisdictional reason. Fujian lawyer sued for emotional harm, but Chengdu courts declined to review the case on jurisdictional reason.

6. Legal Limits of Religious Freedom Laws specially directed to religious activities: Laws specially directed to religious activities: State Council: Religious Affairs Regulation (2005) State Council: Religious Affairs Regulation (2005) Local government regulations Local government regulations Other laws that influence religious freedom: Other laws that influence religious freedom: Criminal Law Criminal Law Military Service Law Military Service Law

7. Religious Affairs Regulation Art. 3: State protects “ normal religious activities ” ; religious groups are obligated to uphold national unity, inter-ethnic cooperation, and social stability. No organization or individual shall use religion to upset social order, harm health of citizens, or obstruct state education system, or engage in activities that harm national interests and social welfare …… Art. 3: State protects “ normal religious activities ” ; religious groups are obligated to uphold national unity, inter-ethnic cooperation, and social stability. No organization or individual shall use religion to upset social order, harm health of citizens, or obstruct state education system, or engage in activities that harm national interests and social welfare ……

8. Religious Affairs Regulation (cont.) Art. 6: religious associations are subject to Regulations Governing the Registration of Social Organizations. Art. 6: religious associations are subject to Regulations Governing the Registration of Social Organizations. Art. 7: religious publications for “ internal use ” are subject to Regulation Governing Publication; shall not contain anything that would upset harmonious relations between religious and non-religious citizens, upset harmony between different religions or within a religion, discriminates against or insults religious or non- religious citizens, propagates religious extremism, or violates principle of religious autonomy. Art. 7: religious publications for “ internal use ” are subject to Regulation Governing Publication; shall not contain anything that would upset harmonious relations between religious and non-religious citizens, upset harmony between different religions or within a religion, discriminates against or insults religious or non- religious citizens, propagates religious extremism, or violates principle of religious autonomy.

9. Constitutional Problems Strict substantive limitations on religious activities, publications, and establishments. Strict substantive limitations on religious activities, publications, and establishments. Lack of effective legal remedies against illegal interferences: may bring litigation, but lack of judicial independence, must first appeal to Religious Affairs Bureau. Lack of effective legal remedies against illegal interferences: may bring litigation, but lack of judicial independence, must first appeal to Religious Affairs Bureau. Legislation Law Art. 8: is State Council and local powers authorized to limit religious freedom? Compare political rights and personal freedom. Legislation Law Art. 8: is State Council and local powers authorized to limit religious freedom? Compare political rights and personal freedom.

10. Local Limitations Religious Affairs Regulation of Zhejiang Province: Similar substantive and procedural limitations. Religious Affairs Regulation of Zhejiang Province: Similar substantive and procedural limitations. Art. 19: outside religious personnel are subject to more restrictive conditions and approvals; discriminations based on household registration. Art. 19: outside religious personnel are subject to more restrictive conditions and approvals; discriminations based on household registration.

11. Other Limitations Military Service Law: No exceptions for conscientious objectors. Military Service Law: No exceptions for conscientious objectors. Criminal Law: Criminal Law: Can criminals exercise religious rights? Can criminals exercise religious rights? How to define “ evil religion ” ( 邪教） ? Separate punishments for “ evil religion ” risks violation of constitutional equality. How to define “ evil religion ” ( 邪教） ? Separate punishments for “ evil religion ” risks violation of constitutional equality.

12. Separation of Church and State Religious exemptions for Religious exemptions for Criminal law; Criminal law; Tax regulations; Tax regulations; Food and sanitary requirements; Food and sanitary requirements; Control of media reports, e.g. Da Vinci Code. Control of media reports, e.g. Da Vinci Code. Financial support for religious schools and projects; Financial support for religious schools and projects; Direct official management of religious places, e.g. Nanshan Guanyin project in Hainan Province: local government took over management of Buddhist temple for commercial tourist purpose. Direct official management of religious places, e.g. Nanshan Guanyin project in Hainan Province: local government took over management of Buddhist temple for commercial tourist purpose.

13. Politicization of Religious Organization Local governments established political criteria for evaluating religious personnel, e.g. certain counties in Chongqin may revoke qualification of religious personnel if fail to pass review. Local governments established political criteria for evaluating religious personnel, e.g. certain counties in Chongqin may revoke qualification of religious personnel if fail to pass review. Religious Affairs Regulation Art. 45: Religious Affairs Bureau may suggest religious organization to remove personnel convicted for violation of law. Religious Affairs Regulation Art. 45: Religious Affairs Bureau may suggest religious organization to remove personnel convicted for violation of law.

14. Politicization of Religious Organization (cont.) Religious association: quasi-official management organization? Main function is to help control religious personnel. Religious association: quasi-official management organization? Main function is to help control religious personnel. Charter of Chinese Islamic Association: Charter of Chinese Islamic Association: Presidents and secretary must have good political quality, support CCP leadership and socialism. Presidents and secretary must have good political quality, support CCP leadership and socialism. Receive government subsidies as major source for funding. Receive government subsidies as major source for funding.

15. Future of Religious Freedom in China Chinese governments and society have much to do to enhance respect and protection of religious freedom. Chinese governments and society have much to do to enhance respect and protection of religious freedom. Where and how do we start? Where and how do we start? More (and higher) religious legislations? More (and higher) religious legislations? Judicial review in area of religious freedom? Judicial review in area of religious freedom? More tolerance for (and recognition of?) house churches More tolerance for (and recognition of?) house churches