[Joint House and Senate Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
CHINA'S NATIONAL AND LOCAL REGULATIONS ON
RELIGION: RECENT DEVELOPMENTS IN LEGISLATION AND IMPLEMENTATION
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
NOVEMBER 20, 2006
__________
Printed for the use of the Congressional-Executive Commission on China
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate House
CHUCK HAGEL, Nebraska, Chairman JAMES A. LEACH, Iowa, Co-Chairman
SAM BROWNBACK, Kansas DAVID DREIER, California
GORDON SMITH, Oregon FRANK R. WOLF, Virginia
JIM DeMINT, South Carolina JOSEPH R. PITTS, Pennsylvania
MEL MARTINEZ, Florida ROBERT B. ADERHOLT, Alabama
MAX BAUCUS, Montana SANDER LEVIN, Michigan
CARL LEVIN, Michigan MARCY KAPTUR, Ohio
DIANNE FEINSTEIN, California SHERROD BROWN, Ohio
BYRON DORGAN, North Dakota MICHAEL M. HONDA, California
EXECUTIVE BRANCH COMMISSIONERS
STEVEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
FRANKLIN L. LAVIN, Department of Commerce
CHRISTOPHER R. HILL, Department of State
BARRY F. LOWENKRON, Department of State
David Dorman, Staff Director (Chairman)
John Foarde, Staff Director (Co-Chairman)
(ii)
C O N T E N T S
----------
Page
STATEMENTS
Carlson, Eric R., attorney, Covington & Burling, LLP, Washington,
DC, and Fellow of the International Center for Law and Religion
Studies, J. Reuben Clark Law School, Brigham Young University,
Provo, UT...................................................... 2
Fu, Xiqiu ``Bob,'' President, China Aid Association, Midland, TX. 5
Tong, James W., associate professor of comparative politics,
University of California-Los Angeles, Los Angeles, CA.......... 9
APPENDIX
Prepared Statements
Carlson, Eric, R................................................. 26
Fu, Xiqiu ``Bob''................................................ 34
Tong, James W.................................................... 40
CHINA'S NATIONAL AND LOCAL REGULATIONS ON RELIGION: RECENT DEVELOPMENTS
IN LEGISLATION AND IMPLEMENTATION
----------
MONDAY, NOVEMBER 20, 2006
Congressional-Executive
Commission on China,
Washington, DC.
The Roundtable was convened, pursuant to notice, at 2 p.m.,
in room 2200, Rayburn House Office Building, David Dorman
(Senate Staff Director) presiding.
Also present: John Foarde, House Staff Director; Kara
Abramson, Senior Counsel; Lawrence Liu, Counsel; Mark S.
Milosch, Special Advisor; Diana Wang, Senior Research
Associate; and Susan O'Sullivan, Office of Hon. Barry
Lowenkron, Assistant Secretary of State for Democracy, Human
Rights, and Labor.
Mr. Dorman. Let's get started. Today's Congressional-
Executive Commission on China staff-led roundtable will address
China's national and local regulations on religion, and their
impact on freedom of religion in China.
On behalf of our Chairman, Senator Chuck Hagel, and our Co-
Chairman, Representative Jim Leach, I would like to welcome all
of you to our roundtable today, and in particular, thank our
very distinguished panelists who are with us today to share
their knowledge, experience, and wisdom on a very complex set
of issues.
As has been past practice, I will begin the roundtable by
making a short statement on behalf of the Commission. Following
that, I will introduce each of our witnesses and give each 10
minutes to make an opening statement.
Once each of the witnesses has made a 10-minute statement,
we will begin a question and answer period. Each person on the
dais will have five minutes to ask a question of one or all the
witnesses and hear an answer, and we will continue asking
questions and hearing answers until we reach 3:30, or run out
of questions.
To date, we have never run out of questions during a
roundtable, so I think we will be all right. In fact, we have
often found it necessary, unfortunately, to end roundtables
before all the questions have been asked.
So if our witnesses would take their seats, we will get
started.
I noticed that Mr. Harry Wu is in the audience. A special
welcome to you, Harry, a real champion for human rights in
China. We are glad that you were able to join us today. Thanks.
And thanks for all your good work.
On March 1, 2005, the State Council's Regulation on
Religious Affairs entered into force, representing the first
comprehensive national regulation devoted to religious issues.
Since then, some provincial level governments in China have
amended or issued new regulations on religion, while others
continue to use older regulations.
The Regulation on Religious Affairs and related local
regulations introduced some transparency to China's system of
religious regulation, but inconsistencies among regulations and
ambiguities within them persist.
Although Chinese Government officials and some scholars
have stated that the Regulation on Religious Affairs represents
a paradigm shift by limiting state control over religion, in
the past year the Commission and other human rights groups have
reported continued government repression of some unregistered
groups and tight controls over registered communities.
This roundtable will examine the interplay between the
National Regulation on Religious Affairs and local regulations,
and discuss the practical impact of such regulations on freedom
of religion in China.
With that, as is standard practice, we will introduce the
witnesses in alphabetical order, beginning with Mr. Eric R.
Carlson. Mr. Carlson is an attorney with Covington & Burling
LLP in Washington. He is the author of ``China's New Religious
Regulations: A Small Step, Not a Great Leap, Forward'' and co-
author of the book ``Religious Freedom on China: Policy,
Administration, and Regulation.'' Mr. Carlson also serves as a
Fellow of the International Center for Law and Religion Studies
at the J. Reuben Clark Law School at Brigham Young University.
Mr. Carlson, you have 10 minutes for an opening statement.
I would ask that you would speak into the microphone so we can
get a clear recording for the record. Thank you.
STATEMENT OF ERIC R. CARLSON, ATTORNEY, COVINGTON & BURLING
LLP, WASHINGTON, DC, AND FELLOW OF THE INTERNATIONAL CENTER FOR
LAW AND RELIGION STUDIES, J. REUBEN CLARK LAW SCHOOL, BRIGHAM
YOUNG UNIVERSITY, PROVO, UT
Mr. Carlson. Thank you very much.
Good afternoon.
My name is Eric Carlson, and I am an attorney with
Covington & Burling LLP. These remarks reflect my personal
viewpoints and not those of the firm or any of its clients.
As a lawyer by training and trade, I hope to offer a few
thoughts from a legal perspective on China's national and
regional regulations, with the full realization that the
situation on the ground does not always comport with legal
requirements.
In late 2004, China's State Council indicated that it would
issue a new Regulation on Religious Affairs, or RRA, that would
be a paradigm shift in religion administration.
At the time, many observers, including myself, expressed
cautious optimism that, while the RRA did not represent a
fundamental reordering of state supervision over religion, it
might result in a small step toward greater religious freedom
in China.
The RRA omitted several restrictions contained in prior
national and regional regulations and left several provisions
vague, possibly indicating a gradual shift toward more
flexibility in religious administration, and perhaps allowing
space for unregistered groups to flourish. Further, the RRA
provided additional legal protections in several areas.
In the two years since the announcement of the RRA, this
optimism has been tempered by actual events. The RRA offered
few unrestricted rights. Most contained qualifications,
provisos, and restrictions. The omissions that were thought
perhaps to signal a new openness did not grant any new rights,
and religious groups are not fundamentally on more solid legal
ground than before.
The vagueness in the RRA cuts both ways, allowing for
inconsistent interpretation and the possibility of abuse of
discretion by less sophisticated local officials. Scholars
cautioned that much would depend on implementing guidelines
issued subsequent to the RRA. The practical implementation of
the RRA indicates that the rights set forth in the RRA could be
viewed as a ceiling rather than a floor.
Since the promulgation of the RRA, one national-level
regulation and eight regional regulations affecting religious
administration have been promulgated. While the overall scheme
of state supervision over religion remains constant,
inconsistencies among these regulations raise practical
questions for both registered and unregistered religious
groups.
Six weeks after the RRA took effect, the State
Administration for Religious Affairs [SARA] promulgated the
Measures on the Examination, Approval, and Registration of
Venues for Religious Activity [Measures]. Similar to the RRA,
the Measures do not provide any new rights per se, but do
represent a more sophisticated effort to give clarity to the
registration process. Specific procedures give both religious
organizations and bureaucrats a clear process to follow.
The Measures also provide for decentralized decisionmaking,
moving approval down to provincial and lower levels, which then
report their decisions to SARA. While this decentralization may
result in faster decisionmaking, it could also be prone to
abuse by provincial and lower level officials who are often
less sophisticated than their national counterparts.
Article 2 of the Measures includes ``other fixed venues for
religious activities'' in the definition of permitted religious
venues, rather than limiting religious venues to those of the
five traditional religions. The term ``religious groups'' is
not defined in the Measures.
Article 5 of the Measures requires, among other things, a
list of the members of the preparatory committee, which is
better than previous rules requiring a list of all members, but
still reflects a seeming mistrust of religion.
Article 11 clarifies that previously registered venues need
not apply for registration, and Article 15 clearly repeals the
supplemental registration regulations promulgated by SARA in
1994. These clarifying provisions are helpful in giving more
legal certainty to religious groups.
The largest problem with the Measures, though, is that no
clear approval standard exists. Article 6 requires religious
cadres to ``solicit'' the opinions of local leaders.
The question arises: do these local leaders exercise a veto
over approval of religious venues? If not, how much weight is
given to their opinions? If an application is denied, can it be
appealed to the provincial religious affairs bureau [RAB] or to
SARA? The Measures do provide additional clarity in the
registration procedures, but like many of the post-RRA regional
regulations, leave many unanswered questions.
Despite the efforts of the RRA and the Measures to
establish clear standards for religious administration, they
have not systemized the application of laws in ways that some
scholars had envisioned.
The patchwork of municipal, provincial, and national
regulations remains, and from a legal perspective the events
following the promulgation of the RRA pose conundrums for
religious groups and their leaders.
China's Legislation Law indicates that national-level
regulations have a ``higher'' legal authority than provincial
or local regulations. The Legislation Law provides that, where
a national-level regulation has come into force, contravening
provisions and regional regulations are invalid and the issuing
regional body ``shall amend or repeal such provision on a
timely basis.'' But the Legislation Law also provides that a
regional regulation can be used to ``implement a national law
or administrative regulation in light of the actual situation
of the jurisdiction.''
From a legal point of view; then, the drafters of the post-
RRA regional regulations seem to believe either: (1) that the
preexisting provisions of provincial regulations do not
conflict with the RRA and therefore do not need to be changed
or (2) that the provincial regulations do in fact conflict with
the RRA, but these regional regulations serve to implement
religious administration in light of the actual situation in
that province.
For the provinces that have not amended their regulations
after the RRA, it could be either because, first, they believe
that the RRA implicitly repealed all provincial-level
regulations on religious administration and thus there is no
need to repeal the prior regulations; or, second, that they are
in the process of drafting an amended or new regulation.
While these preemption issues pose interesting theoretical
legal issues, they also have real consequences for religious
believers. Because religious organizations exist and operate in
towns, counties, and provinces, what set of laws should
religious believers and their leaders follow?
If a provincial regulation conflicts with the RRA, which
provisions should a religious body follow? If the RRA provides
rights that a provincial or local regulation does not, can a
religious body successfully assert these rights?
What significance does the absence of new or amended
regulations in other provinces have? Does the RRA apply in
place of preexisting provincial regulations as a supplement, or
neither? For
instance, should a religious body in, say, Xinjiang, assume
that the RRA is applicable to the province, the preexisting
provincial-level regulation is applicable, or parts of both? If
the venue registration provision of the regional regulations is
not the same as the relevant provision of the Measures, which
procedures should a religious group follow?
Can religious groups avail themselves of rights contained
in regional regulations and not in the RRA, and vice versa? Is
a group subject to penalties contained in the RRA, but not in
regional regulations?
If regional cadres applied a penalty that was more
restrictive than that provided for under the RRA, would any
administrative appeal be possible under Article 46 of the RRA?
If so, to which body would this appeal be presented? Do
unregistered groups fit into this legislative morass?
Some provinces do recognize groups outside the traditional
five authorized religions. Can one of these groups leverage
registration in one province to obtain registration in another?
Do religious groups, which are essentially unauthorized in
provinces or post-RRA regulations, limit the definition of
religion to the traditional five? As you can see, there are a
number of interesting and very practical questions for
religious bodies.
With so many variations in the eight regional regulations
that have been issued subsequent to the RRA, it is difficult to
draw broad conclusions on these different regulations.
Nevertheless, a few trends emerge.
First, no regional regulation significantly curtails
religious freedom further, but also no provincial regulation
attempts to expand significantly the scope of protections
beyond that of the RRA.
In this regard, the post-RRA regional regulations can be
seen as a codification and entrenchment of religious policies
rather than a significant advance past the basic policies and
principles enshrined in the RRA.
Second, several provinces restate the traditional five
religions in the definition of religious organizations, but
also add another category that, in the end, could be
potentially used in the long term to register groups outside
the traditional five.
Third, several provinces permit religious observance within
the home, but with various limits, such as limiting observance
to only ``normal'' religious activities--still undefined--or so
long as the
observance does not influence the ``normal lives'' of others,
also undefined.
Fourth, provisions requiring annual inspections have been
eliminated. Fifth, legal liability provisions in many regional
regulations parallel the relevant RRA provisions. Sixth,
several new regulations provide incremental improvements to
existing regulations.
All the previous analysis applies to the five traditional
belief systems long recognized in China, that is Buddhism,
Catholicism, Daoism, Islam, and Protestantism.
Groups and belief systems outside these five remain in an
uncertain position. Some groups have received tacit consent
from the government to carry on some sort of religious
observance, despite having no legal existence or personal
rights.
Some groups have attempted to register as religious groups
or associate groups, but have not been successful. The
religious affairs authorities have shown some willingness to
accommodate these groups outside the traditional five, but
there are theoretical and practical problems related to the
patriotic religious associations that traditionally have served
as the supervising authority over religious groups.
At least five possible scenarios have arisen for dealing
with these new belief systems:
Option 1: fit the religious group into an existing
patriotic religious association.
Option 2: establish a new patriotic religious association
for the new group.
Option 3: register the new group as a religious group
directly with SARA outside the context of any patriotic
religious association.
Option 4: register as a social organization but not as a
religion.
Option 5: continue with the status quo.
How groups outside the traditional five are integrated in
China's system of religious administration may be indicative of
the future of religious freedom in China.
In conclusion, as indicated above, this analysis has been
focused somewhat narrowly on the legal structures affecting
religious administration in China. The basic policies of
continued state supervision over religion, with the marginal
improvements that were outlined in the RRA, have not been
altered by subsequent national or regional regulations.
Conflicts between provisions in the RRA and regional
regulations leave religious groups in a state of legal and
practical uncertainty. Furthermore, the system of national and
regional regulations does not address religious groups that are
not firmly recognized or registered by the government.
China's religious and administrative policies and laws must
make additional efforts to resolve these questions. While a
call for unfettered religious freedom will likely go unheeded,
it would be a step in the right direction for the Chinese
Government to enact laws that comply with international
standards that provide basic rights for all religious believers
and groups.
China's WTO accession and growing interactions with other
countries amplify the need for China to hasten its transition
from a rule-by-law to a rule-of-law nation, and the need for
all of its laws, including those governing religious freedoms,
to provide clarity, transparency, and predictability.
Thank you.
[The prepared statement of Mr. Carlson appears in the
Appendix.]
Mr. Dorman. Mr. Carlson, thank you very much.
Next, I would like to introduce Pastor Bob Fu, who is
president of the China Aid Association in Midland, TX.
Pastor Fu was born and raised in mainland China. As a house
church pastor in Beijing and English lecturer at the Beijing
Administrative College and Beijing Party School, he was
arrested in 1996, along with his wife, as an illegal
evangelist. After his release, Mr. Fu escaped to Hong Kong and
came to the United States in 1997.
Mr. Fu is presently a Ph.D. candidate at Westminster
Theological Seminary in Philadelphia, and is a visiting
professor in religion and philosophy at Oklahoma Wesleyan
University. In addition, he is the Editor-in-Chief of the China
Law and Religion Monitor and the Religious Freedom in China Web
site. He has served as a guest editor of China Law and
Government and has written articles on religion and pubic
security in China, and religious freedom and the rule of law.
On a personal note, we are always pleased when we meet new
contacts who bring additional points of reference on issues as
complex as this one, and Professor Tong and Mr. Carlson are new
and much appreciated contacts for the Commission.
But Pastor Bob Fu is not. He has testified here before and
is a good friend of the Commission. We, over the past couple of
years, have become very aware of his work and his selfless
dedication to religious freedom in China. So Pastor Fu, I would
like to thank you for your important work.
Pastor Fu, you have 10 minutes for an opening statement.
Thank you.
STATEMENT OF XIQIU ``BOB'' FU, PRESIDENT, CHINA AID
ASSOCIATION, MIDLAND, TX
Mr. Fu. Thank you very much.
Before the promulgation of the national RRA, the various
provincial RRAs were very comprehensive regional regulations,
basically embracing all aspects of religious organizations,
religious faculty, religious activities sites, religious
publications, religious activities or external affairs,
religious properties, legal liabilities, et cetera.
Judging from a comparative observation of the textual
framework and content, my testimony will argue that the
national RRA, in its six-year history of research,
investigation, and promulgation, has absorbed in its
legislative format and content certain religious legislation
and enforcement provisions taken from various provinces and
reached legislative definitions with a higher level of
generalization and greater directness.
The following is a selective analysis of the emphasis of
the religious administration legislation in China, based on
examples of changes in the content of the RRA provisions of
Beijing and Shanghai municipalities and Zhejiang province
before and after the amendments.
So I will do a comparison. First, with respect to changes
in the Beijing RRA before and after the amendments. I would
particularly highlight the comprehensive inspection process in
the Beijing regulation. Following the text of Article 18 of the
national RRA, the Beijing RRA amended Article 20 to read:
``Religious activities sites shall establish sound
administrative organizations and regulations and accept the
guidance, supervision, and inspection of the Administrative
Department of Religious Affairs and other departments concerned
with the People's local district or county government.''
Although such wording as ``annual inspections'' have
disappeared, the departments with the authority over
``guidance,
supervision, and inspection'' of religious activities sites
have been expanded from ``Administration of Religious Affairs''
to all ``departments concerned'' in order to implement
integrated supervision and control by the public security,
state security, industrial and commercial, urban construction,
and other government departments. So this is one of the
changes.
And pursuant to Article 22 of the national RRA, Article 26
of the Beijing RRA has been amended to read as follows: Clause
1, ``Anyone who intends to organize a large-scale religious
event that crosses provincial, autonomous regions, or directly
administered municipality boundaries and exceeds the capacity
of religious activities sites, or if it intends to hold a
large-scale religious event outside of the religious activity
site, shall undergo application and approval procedures,
according to the State Council ``Regulation on Religious
Affairs.'' Clause 2 says, ``Organizers of other types of large-
scale religious events shall obtain consent from the religious
group of the municipality and first report to the religious
affairs department of the People's Government of the district
or county in which the religious event is to be held. The
Religious Affairs Department and other departments concerned
with the People's government of the district or county in which
the religious event is to be held shall, in accordance with
their respective official responsibilities, provide management
as needed.''
This type of amendment actually requires not only that
large-scale religious events crossing provincial boundaries
obtain approval from the provincial Administration of Religious
Affairs--the County Administration of Religious Affairs has
lost its authority of approval in this case--but also the local
Administration of Religious Affairs, the Public Security
Bureau, and even the State Security Bureau will coordinate to
provide supervision. As a result, this arrangement actually has
strengthened control over large-scale religious events.
In Beijing, I know there is a very large house church that
actually wants to register. The congregation, after debate and
making a resolution saying they wanted to register, and after
six or eight months of filing all the papers, and processing,
instead of being registered--they submitted the pastor's name,
the names of the elders, their accounting process--their pastor
was interrogated and their elders were taken away and also
interrogated. So, that happened last Christmas as the result of
these changes.
I also want to emphasize the changes in the Zhejiang
provincial RRA, before and after the amendments, because many
things happened, and are happening now, in Zhejiang on these
religious persecution events, so I want to analyze the Zhejiang
amendment.
Let me emphasize in the case of the new Zhejiang RRA,
provisions governing the control of and on the registration
process for religious sites. The previous Zhejiang RRA passed
on December 11, 1997, and stipulated a clause on ``abnormal
religious activity,'' which was not found in the previous
Beijing and Shanghai RRAs, to regulate cross-regional religious
activities. Therefore, I argue that Article 22, Clause 1 of the
national RRA, originates from Article 32 of the previous
Zhejiang RRA.
Article 38 of the current amended Zhejiang RRA inherits the
original legislative principle of the clause on so-called
``abnormal'' religious activity and sets down a more formal
procedural definition modeled on the formal legislative
language of Article 22, Clause 1 of the national RRA.
The regulation has four conditions for holding these types
of activities. Simultaneously, in accordance with the
requirement of Article 2 of the national RRA, adding Article
38, Clause 3: ``Religious groups or religious activity sites
holding an abnormal religious activity shall adopt effective
measures to prevent unexpected emergencies. The People's
Government in a rural or urban township in the location where
the activity takes place, and departments concerned with the
People's Government at the county level and above shall
implement the necessary management techniques, according to
their respective duties and responsibilities, to guarantee the
safe and orderly conduct of the abnormal religious
activities.''
So as a result of these restrictions, the last chapter
under ``Legal Liabilities,'' the amended Zhejiang RRA describes
abnormal religious activities in further detail, adding two new
types of religious activities.
For example, those ``presided over by non-religious
personnel'' and ``unauthorized cross-regional'' that are
included within the range of activities potentially liable to
administrative penalty. Article 46 is also stipulated according
to the principle of Article 43, Clause 1 of the national RRA.
So in the RRA of Zhejiang province, it first proposes the
clause of imposing an administrative penalty on so-called
``illegal religious buildings.''
It actually means to forcibly demolish unauthorized meeting
places. I think as a result of that, in Zhejiang province
alone, more unregistered religious buildings were destroyed in
the past year than in all other provinces combined.
The latest one that I know of occurred on July 29. Several
thousand military policemen, hired by government workers,
destroyed a building, and 60 laborers and pastors were arrested
and beaten. Six senior leaders of that church are still being
held and are facing trial, probably next month.
At this point, I want to recognize some of the
distinguished Chinese human rights lawyers who are sitting in
the audience today that we invited to come here. They are some
of the legal representatives for these six pastors in Zhejiang.
Among them are Mr. Li Jianqiang, who is in the audience
today, who is the legal representative for one of the six
pastors. Also, Mr. Zan Aizong, who is a journalist who lost his
job for just reporting about this event. So we are very glad
they are here.
Also, Mr. Li Jingsong, and Mr. Li Subin, who are the two
attorneys for the imprisoned blind activist, Mr. Chen
Guangcheng, are also here today.
Now, a comment about the local RRA changes in Shanghai. Let
me finish this quickly. I want to emphasize that in the
regulation on publishing religious materials in Shanghai, that
is, the government amendment, before the promulgation of the
previous Beijing RRA, the revised ``Regulations Governing
Printing'' and ``Regulations Governing Publication'' were
promulgated and took effect.
The new ``Regulations Governing Printing'' specifically
prescribes that internal religious publications must undergo a
dual review and approval procedure to obtain authorization from
both the Administration of Religious Affairs at the provincial
level and be issued a ``print permit'' from the Administration
of Press and Publications at the provincial level, while other
types of internal publications need only be issued a ``print
permit'' from the Administration of Press and Publications only
at the provincial level.
The design of the ``authorization by provincial level
departments'' is intended to have a psychological effect in
that regulation by a higher authority is a more intense level
of public policy implementation.
This type of legal procedural discrimination is without
explanation or plausible rationale; it violates the
constitutional principle of equal treatment, at the same time
violating the rights of equality, religious freedom, and
freedom of the press. So it is based precisely on the unfair
treatment of religious publications.
The new Regulations Governing Publications adds a new
Chapter 5 called ``Importation of Publications: Establishment
of a Special Operations and Review System on Imported
Publications.''
The previous Beijing RRA had a special chapter on religious
publications that categorizes them by three criteria: ``open
publications,'' ``internal material publications,'' and
``overseas publications,'' with emphasis on regulating,
publishing, printing, and
distributing of religious ``internal publications'' and
``overseas publications.'' This chapter has been preserved
intact in the new RRA.
Based on these new regulations, we see a number of cases
that have happened since last year, with the suppression and
arrest of those who are either house church leaders, or
Buddhist workers who publish and distribute their internal
religious literature, including Bibles and Buddhist literature.
Of course, we heard this from Pastor Cai Zhuohua's case
last year, and then to the Anhui Wang Zaiqing case, who was
sentenced to four years, and was fined for 100,000 yuan because
of the publication of Bibles and other Christian literature.
In April of this year, a Buddhist monk, Mr. Lei Daying, was
sentenced to four years in Beijing by the Beijing Intermediate
Court for publishing and distributing Buddhist literature. So,
that is a direct result of these new restrictions.
In conclusion, from analyzing the content changes in legal
clauses among the RRAs of Beijing, Zhejiang, and Shanghai
before and after the amendments, I would argue that the Chinese
Government, at the central and local levels, has shifted its
regulatory emphasis on religious activities from the singular
target of religious activities sites to more comprehensive
regulation of religious undertakings. The more comprehensive
regulatory system includes the new system of integrated
regulation of religious activities; the qualification system
for religious faculty; the review and approval
system of establishing, expanding, relocating, and constructing
religious activity sites; the review and approval of religious
publications, especially internal material publications; the
permission mechanisms for cross-regional religious activities;
the system of
integrated regulation of religious activity sites, the system
of application, approval, and preventive measures regarding
large-scale
religious activities, and so on. All these changes result in
more comprehensive, rigid, and diverse set of regulatory
measures.
Although this regulation is merely an ``administrative and
regional law,'' the promulgation of the unconstitutional
national RRA and the amendment or establishment of regional
RRAs symbolize the formal establishment of the system of
``legally regulating religion'' because Chinese citizens do not
enjoy freedom of assembly, the judicial system is not
independent, the people's congresses do not have adequate
representation, and there is no judicial review of
constitutionality or system for private citizens to litigate
questions of constitutionality.
Of course, given what international law mandates and how it
defines religious freedom, including not only the freedom of
religious belief but also the manifestation of such belief both
in private and in public, it is certainly a violation of
international law in that sense.
Thank you very much.
[The prepared statement of Mr. Fu appears in the Appendix.]
Mr. Dorman. Pastor Fu, thank you very much. I would like to
second what Pastor Fu said about the Chinese human rights
defenders who are visiting here today. We are, of course,
honored that they were able to join us. These are men of
tremendous courage and commitment and we would like to publicly
thank them for their tremendous work. So, thank you.
Third, testifying today is Professor James W. Tong.
Professor Tong is Associate Professor of Comparative Politics
at the University of California-Los Angeles, and editor of the
journal Chinese Law and Government.
Professor Tong served as the Vice Chairman of UCLA's
Department of Political Science and its Director of the Center
for East Asian Studies from 1996 to 2002. His publications
include a book on peasant revolts from the 14th to the 17th
century in China, three journal articles on the Falun Gong, and
articles on the 1989 Democracy Movement in Beijing.
In addition, he has edited or co-edited three journal
issues on central and provincial religious policy documents in
China. He has served as a World Bank consultant on fiscal
policy in China, briefed the U.S. Commission on International
Religious Freedom on religious policy in China, and hosted two
visits of delegations from China's State Administration for
Religious Affairs to UCLA.
Professor Tong received his Ph.D. from the University of
Michigan, and M.A. from the University of Washington, and has
held teaching positions at Michigan State University and the
California Institute of Technology.
Thank you, Professor Tong, very much for joining us today.
You have 10 minutes for an opening statement. Thank you.
STATEMENT OF JAMES W. TONG, ASSOCIATE PROFESSOR OF COMPARATIVE
POLITICS, UNIVERSITY OF CALIFORNIA-LOS ANGELES, EDITOR, CHINESE
LAW AND GOVERNMENT, LOS ANGELES, CA
Mr. Tong. Thanks for inviting me.
Let me begin with the observation that religion in China is
managed religion. It has a Religious Affairs Bureau at the
national, provincial, city, and county levels.
Religious organizations and religious venues need to be
registered and can be de-registered. Schools of religion must
meet the approval of the state. The state claims the right to
order religious organizations to remove the administering
officials of religious organizations, and also religious
venues. Foreigners cannot proselytize, and also there cannot be
all-male religious congregations in the Catholic Church.
It is also the case that, since at least March 1982, a
number of laws, and also Party documents at both the national
and also provincial levels, have granted religious
organizations greater autonomy in protecting religious freedom
at both the national and local levels.
At the local level, there are 55 provincial and municipal
regulations that have been promulgated since March 1982. I see
the significance of the national Regulation of Religious
Affairs that was promulgated on November 30, 2004, in the
following ways.
First, it provides greater ideological and administrative
autonomy for religious organizations. For instance, religious
organizations are no longer required to demonstrate patriotism,
support the leadership of the Chinese Communist Party, and also
socialism.
Also, the number and type of requirements for prior
approval by the Religious Affairs Bureau has been reduced, and
in the place of prior approval for these religious activities,
only notification after the fact, or reports for the record, or
simply inclusion in the annual report, would suffice.
Second, in terms of religious formation, it is now the
religious organizations, and not the Religious Affairs Bureau,
that approve candidates for schools of religious studies. Also,
it is the religious organizations and not the Religious Affairs
Bureau that examine, certify, and re-certify religious
personnel.
Third, the government has also broadened the definition of
religious activities to include, for instance, social services,
that religious organizations now can undertake.
There is much more rigorous protection of religious
properties, so land use departments need to consult with the
local Religious Affairs Bureau before they can change the
designation of a property for religious use. Also, if a local
government wants to remove or demolish religious buildings,
they also need to compensate the religious organizations by
``assessed market value.''
There is also much more latitude given to local churches in
relations with foreign churches, so the schools of religious
studies can now send students to religious schools outside the
Chinese territory, not only, for example, to the United States
and Europe, but also to Hong Kong, Macau, and Taiwan.
In reverse, religious schools outside China can also send
students to Chinese schools of religious studies, and these
schools can also invite theologians to lecture in Chinese
schools of religious studies.
Finally, the RRA also provides for administrative appeals,
and also judicial challenges. That is, if a local religious
organization disagrees with the local Religious Affairs
Bureau's decision or ruling on a religious affairs issue, they
can appeal that decision. Even if the appeal is not decided in
their favor, they can also challenge it in court.
Now, since the RRA took effect on March 1, 2005, I have
counted seven provinces that have also promulgated their own
religious affairs regulations. So what is the difference
between the National RRA and the provincial regulations?
In several important regulations, the provincial
regulations have not incorporated the National RRA. So, for
instance, the RRA provision for administrative appeal, and also
judicial challenge, is omitted in all the provincial
regulations, except the regulations in Shanghai.
Also, the stipulation that land use departments need to
consult the local Religious Affairs Bureau before they change
the designated use of religious property is omitted in all the
seven provincial regulations. In addition, the provision to use
``assessed market value'' as a principle to compensate
religious organizations if religious properties are demolished
or removed for urban development projects this principle is
also omitted in all of the seven provincial regulations, except
the one in Zhejiang province.
On the other hand, provincial regulations have also
provided other stipulations that go beyond the RRA in providing
religious freedom, so, for example, all seven provincial
regulations stipulate the right of the believers to practice
religion and observe religion in their own residences, and
three provinces--Shanghai, Xinjiang, and Henan--stipulate that
religious personnel can participate in social security
programs. Some of these programs are very generous, and the
ability of a cleric to participate, of course, depends on the
city, county, or province where the program is running.
In Shanghai, for example, religious personnel can
contribute 3 percent of their monthly salary, and upon
retirement can get a pension of up to 90 percent of their pre-
retirement monthly salary. In addition, the Shanghai
regulations also stipulate that religious personnel who are
from outside Shanghai can be eligible for local residence--
hukou--in Shanghai after three years of continuous service in
the Shanghai municipality.
So far I have only covered the legislation at the national
and provincial levels. What about implementation of certain
policies? Probably the greatest variation, and the most
problematic, is in the area of religious property.
The category that is not as problematic is religious
property for religious use, meaning churches, temples,
rectories, et cetera. As a general rule, when these types of
properties have been seized, they are returned to the religious
organization.
What is problematic, however, is the following categories.
First, properties housing religious social services, for
example, the schools, the hospitals, the orphanages that were
once owned and managed by the religious organizations.
After the Communists took over in 1949, they also managed
these schools, orphanages, clinics, and hospitals. So what has
happened to the ownership, management, and rights to use these
properties that support social services that the State and
local governments have been managing for four decades or more?
Second, there is also the issue of investment properties.
Before the Communists took over, many religious organizations
owned houses, apartments, et cetera, as investment properties.
When the Communists took over, they allocated many of these
houses and apartments, et cetera, to the employees of different
government and Party agencies who were entitled to low-cost
rental. So what has happened to the investment properties?
Right now in a number of cities, many negotiations are
underway. In one city in Henan province the Religious Affairs
Bureau manages the investment income of RMB4 million, but only
40,000, or 1 percent is given to the Catholic diocese.
If the Catholic diocese would manage these investment
properties, however, it is unlikely that it would be able to
collect all the rents from both the private occupants and the
government agencies that also are occupants of these
properties.
Probably the greatest improvement in the local regulations
is in the area of social services, so both the Protestant and
the Catholic churches may now operate homes for the aged,
clinics, and hospitals. The Protestant church also manages a
thriving network of YMCAs that provide English classes,
computer classes, and also sports facilities.
In the area of religious formation, both the Protestant and
Catholic church manage the selection of students that they
would send to schools of religious affairs outside China. The
Protestant church, in 2006, held a nationwide exam and selected
more than 10 students out of an applicant pool of 30 that they
would send abroad, and also the Catholic church has also had
their own selection process whereby they interviewed candidates
to be sent abroad.
Right now, there are about 300 Roman Catholic priests,
nuns, and other seminarians that are enrolled in religious
studies programs outside China. In addition, this year the
national Protestant seminary in Nanjiang has six visiting
theologians from four countries lecturing national seminary
students. Catholic theologates are also hosting 20 theology
professors from seven countries.
So in conclusion, the overall trend since the promulgation
of the Religious Affairs Regulation in November 2004, is that
there is both real and substantial progress in the area of
autonomy of the religious organizations and religious
activities, in the certification of personnel, and in the
relationship with the church outside China. The actual
implementation varies from city to city, and also depends on
the type of religious activity.
Thank you.
[The prepared statement of Mr. Tong appears in the
Appendix.]
Mr. Dorman. Well, good. Thank you very much for three
excellent statements. We all recognize on the dais, and I am
sure everyone in the audience recognizes after hearing your
testimony, that this is a very complex issue.
I would like to begin with a question that might help us to
better understand the topic of this roundtable, regulation of
religious freedom, by breaking the issue down into a few more
manageable components.
This is a point that you raised, Professor Tong, but I want
to pose the question in a slightly different way and ask each
of our panelists to address it.
As we look at the practice of religion in China, I think we
would all agree that we see inconsistency in the degree of
religious freedom or religious repression from place to place.
This results from a number of factors, among these: Party
policy regarding religion, government implementation or lack of
implementation of law and regulation, and the actions of local
officials.
There will certainly be questions from the dais on Party
policy, and on implementation of national and local
regulations.
But to start, I wanted to take a step back and try to
disassociate the national regulation from Party policy and from
implementation to give us a better understanding for how all
these pieces fit together.
The first question is--and there will be two parts--as you
all look at this regulation, setting aside the degree of
implementation, and setting aside the fact of an often hostile
Party policy toward religion, if the regulation was implemented
as written, would it represent a step forward? Although this
may be a difficult question to address in isolation, it may be
useful to think about these issues separately, before we
recombine them again.
The second part of the question is this: as you look at the
regulation as written, what does it tell you about the
intentions of the Chinese leadership in terms of religious
freedom in China? There has been a change. A new regulation is
in effect. But do we see China moving closer to international
human rights standards regarding religion or do we see China
moving away from these standards? I hope all of you could share
your knowledge, experience, and thoughts regarding this
question. Anyone can begin.
Mr. Carlson. I will comment very briefly, then defer to my
fellow panelists.
With regard to the first point, I assume you are referring
to the RRA?
Mr. Dorman. Yes. I am sorry, I should have made that clear.
Mr. Carlson. I published a paper about a year and a half
ago entitled ``China's New Regulations on Religion: A Small
Step, Not a Great Leap Forward,'' which contains my conclusions
on the RRA. I think I would stand by most of those conclusions.
I think that the RRA and subsequent regulations are a small
step forward in providing standardization, providing
codification, proving more clarity, and attempting to resolve a
lot of the patchwork quilt that had previously existed among
the regional regulations.
So if you analyze the RRA outside that scope of
implementation, I would say, yes, it is a small step forward. I
do not think it is the paradigm shift that the government would
have us believe.
As China tries to move from rule by law to rule of law, it
is a small but important step. I think the decision to make it
an administrative regulation rather than a law on religion
passed by the National People's Congress. My understanding is
that that option was considered, but rejected.
Relating to your second question of whether this means that
China is moving closer to international human rights standards:
In terms of freedom of religious belief, yes, China continues
to provide for freedom of religious belief. In terms of freedom
of religious practice, however, it largely turns on what a
bureaucrat at the national, provincial, or municipal level
decides is a ``normal'' religious activity or ``normal''
religious behavior, as opposed to what is ``abnormal'' or
``atypical.''
On their face, the regulations provide a great deal of
vagueness, which could be used in the long term to give more
flexibility, especially to unregistered groups, but the fact
that many of these very key terms are left undefined still
leaves a lot to be desired.
Mr. Fu. I think I agree with what Mr. Carlson said on the
overall picture. I think at one point I observed, if it is
fully implemented, it could be real progress. For the first
time, you see in the regulation it imposed sort of a deadline,
like in 30 days you have to have a response.
If it is really implemented--I mean, just imagine if tens
of thousands of house churches just showed up at the
registration buildings and wanted to register. If they had the
paper and they really seriously considered their application,
and they need to have a 30-day deadline to give approval or
disapproval, that should be regarded as real progress, if it is
seriously implemented.
In regard to the overall tone or the attitude, I think it
is still premature to say that the intention of the current top
leadership is to relax the rules to permit true international
religious freedom, as defined in Article 18 of the Universal
Declaration of Human Rights. In particular I want to point out
how, in Zhejiang province, the new RRA, the add-on Chapter 7,
reflects the four duties of government at various levels in
that regulation.
The government still has the four duties of safeguarding
rights, hearing, and coordination and guidance. Among the
descriptions of these duties there is an alarming clause that
remains in the text: ``guiding religion to become compatible
with socialism.'' You can translate that into ``become
compatible with a socialist society,'' in the more accurate
form.
But that clause can be clearly translated into some radical
negative actions against those religions who are regarded as
not compatible in any sense with the national socialism
doctrines.
That would discourage those really qualified religious
doctrines, and those people who want to serve in a church or
diocese, but who maybe in some sense do not fully agree with
the national political doctrine.
For example, one Buddhist monk who was a former political
dissident, was dismissed just because he performed a religious
service for the victims of the government. This purely
religious service--of course, can be interpreted by the
political body as non-conforming to the socialist doctrine. So,
that's my opinion and my concern.
Mr. Tong. I would also agree with the previous two
presenters, that the implementation is a step forward. If you
look at both the national, and also provincial regulations,
there are no new restrictions on any type of religious
activities. The previous restrictions have been dropped. There
are still cities and provinces that have restrictions, and it
is because they were there before.
It is also, I think, the intent of the Central Government
of China that these be implemented, so since its promulgation
in November 2004, there has been a nationwide campaign just to
publicize the RRA to different cadres of the Religious Affairs
Bureau at four different levels.
First of all, there is a national-level seminar. Second,
there are six regional seminars where five or six provinces are
grouped, and then all the leading religious cadres have to be
trained in the RRA. Third, at the provincial level there are
also such seminars conducted. Then the different religious
organizations also have training seminars to brief their own
religious personnel on the new RRA.
There is also a rather significant event that has not been
reported: SARA, the State Administration of Religious Affairs,
has launched a Web site where it has publicized all of the
religious regulations, religious affairs circulars, et cetera
with links to the different provincial Religious Affairs
Bureaus, as well as national organizations.
About seven or eight provincial religious affairs bureaus
also have their own Web sites. These are rather user-friendly
ones, so to take on one of the facts that were reported by
Pastor Fu, there are about 17 or 18 types of religious
activities that require permission by the local religious
affairs bureau, and these are listed in many of the religious
affairs' Web sites.
Not only that, but there are also downloadable forms where
the religious organizations and religious venues can apply for
this permission online. So I think, this is progress in the
right direction, where they tried to be more friendly to the
religious organizations, religious personnel, and also
religious venues.
Mr. Dorman. Good. Thank you very much.
I would like to turn the questioning over to my colleague,
John Foarde, who serves as Staff Director for our Co-Chairman,
Representative Jim Leach.
John.
Mr. Foarde. Thank you, Dave. Thanks to all three of our
distinguished panelists. Thank you for coming and sharing your
expertise with us this afternoon.
I know that all my colleagues want to ask questions, so I
will try to ask a couple of very quick ones.
Eric Carlson, I was particularly taken by your series of
sort of rhetorical questions about whether new religious groups
that wanted to be approved might need to have, for example, a
patriotic national association to affiliate with, or the very
intriguing concept that such groups might try to leverage a
local registration and bootstrap themselves to a national
registration.
But I would like to actually ask you first, and then maybe
the others could comment briefly, on your views of the chance
that any new religious groups will be approved under this sort
of rubric, or any other, let us say, in the next couple of
years.
Mr. Carlson. I would answer that in two ways. For groups
that the government is not otherwise inclined to register, I
would say that the chances are almost zero. For groups where
the government is perhaps more inclined to register, for
instance, the Orthodox Church, the options I presented are ways
that the government could fit these existing organizations the
government understands as being non-problematic.
For instance, if the Orthodox Church is registered in
Xinjiang or Zhejiang, could they go to a different province,
perhaps in Beijing, and say: ``We are registered in this other
location, can we also register here? '' It seems like there's
at least the possibility that this could happen. But for
organizations the government has clearly disfavored--for
instance, some of the more radical house church movements--I
would say the chance of using some of these options is near
impossible.
Mr. Foarde. Either of the other panelists? Really briefly,
because I want to go on.
Mr. Fu. Yes. I, myself, I do not think there will be a
chance to recognize a new religion in the next two years. I
could be stoned to death if I am wrong. [Laughter.]
Mr. Tong. There are signs that new religious groups will be
recognized and registered. So in SARA, the State Administration
of Religious Affairs, there used to be only five offices
dealing with each of the five recognized religions:
Catholicism, Protestantism, Islam, Buddhism, and Daoism. But
lately, there is a new office that deals with new religious
groups. That is the authority to prepare for eventual
recognition and also registration of other religions.
So I asked SARA whether there was any religious group that
they have that they would approve registration for, et cetera,
and they said that they deal with only national-level groups.
For local-level groups, it would be up to the provincial
Religious Affairs Bureaus. I was told indirectly that, in
Fujian, they have approved the registration of some local folk
religions, like the Mazu.
Mr. Foarde. Useful. Thank you very much.
Thank you.
Mr. Dorman. Good. Thank you, John.
I would like to recognize, next, Susan O'Sullivan, who
represents Assistant Secretary of State for Democracy, Human
Rights, and Labor, Barry Lowenkron, who is one of our Executive
Branch Commissioners.
Susan.
Ms. O'Sullivan. Thank you, Dave.
I wanted, first of all, to thank all of you for your
presentations. But I want to take advantage of Professor Tong's
work on the Falun Gong to ask a question. You seem to be
somewhat optimistic, or cautiously optimistic, about the trends
for religious freedom for recognized religions in China.
But at least in our discussions with the Chinese over the
past seven years since the Falun Gong has been banned, there
just seems to be zero tolerance. I am wondering what you see
going forward in terms of government policy, and whether you
anticipate any changes.
I admit up front that I have not read your articles, but I
would be interested in your thinking about what might happen
there, given that tens of thousands of practitioners are
currently in custody.
Mr. Tong. For the Falun Gong, I do not see any signs that
the Chinese Government would be more tolerant. The Falun Gong
has been driven underground, certainly, and they still survive
as an underground organization.
They not only practice Falun Gong at home, but also they
build cells in cities and they have been also going out,
putting up posters, protesting Chinese Government policies, et
cetera.
But if you look at the more overt defiance of the Falun
Gong, there used to be a time in 2003 that they would insert
Falun Gong propaganda--videos, et cetera--in provincial, and
also city television stations' programs. That has not been
repeated more recently.
In 2003, there were many public demonstrations by Falun
Gong practitioners. They would demonstrate outside the State
Labor Reform Schools. I have not read reports that that has
been the case in 2005 and 2006. So, it is a two-way street.
That is, Falun Gong would not stage this overt defiance of the
Chinese state and the government, and there are isolated
reports that they have been actually releasing Falun Gong
practitioners from the labor reformatories before their term
has expired. So, they may be releasing them early.
Mr. Fu. After talking with our Chinese guests, some of them
still working within the government system, I got some new
information. I am not completely sure whether that it
represents a new trend or a new policy, but I heard from them
that there is some sort of relaxed attitude toward Falun Gong
practitioners, especially those who serve in the government. In
the past, there was almost zero tolerance: either deny or go to
the labor camp.
Now, I was told that in many cases, they said, if you are
known as a Falun Gong practitioner, as long as you are not
putting up posters or doing work on the street, you are
tolerated, and in some cases you are getting some better, even
preferential, treatment because of maybe some media or
international pressure. So, that might represent something
where there is more tolerance, but I do not know whether this
represents a major trend.
Mr. Dorman. Good. Thank you, Susan.
Next, I would like to recognize Commission Senior Counsel,
Kara Abramson. As you all know, Kara did the important work of
organizing this roundtable. So, thank you for that, Kara. Kara
also looks at issues of religious regulation for the Commission
and has the very difficult task of explaining to her staff
directors what this all means.
So, Kara, questioning over to you. Thanks.
Ms. Abramson. Thank you. I would like to thank each of you
for participating today.
My question involves worship at home. As you know, the
Chinese Government has said in its White Paper on religion that
citizens do not need to register with the government to hold
worship services in private homes ``mainly attended by
relatives and friends for religious activities such as praying
and Bible reading.''
Indeed, religious groups that have fewer than 50 people
would not even qualify as a religious organization that could
then apply to register an outside site of worship.
The national RRA is silent on this issue of worship at
home. So I am curious to what extent the government does
protect such worship at home, if it does so to any extent, and
I wonder how we are to interpret provincial regulations that
include provisions that say that individuals, and in some cases
members of a family, can ``live a religious life'' or hold
religious activities at home.
Mr. Tong. The provincial regulations say that believers can
practice religious life in their own homes. But I do not know
the interpretation of that. Does that mean that they cannot
invite other believers to also come to their own homes?
Can only members of the immediate family practice religion
in their own homes? But this is what the provincial regulation
says, that is, the believers can practice religious life in
their own residences.
Mr. Fu. We should give credit to Ambassador John Hanford's
persistent efforts after some negotiations. At least we know,
on the Web site, in written form, they said in one provision
``friends and relatives.''
I think law enforcement officials had difficulty defining
who are ``friends.'' With relatives, that can be easily
defined, but the friends clause is very difficult. They should
issue definitions for who should be regarded as friends.
Also, I learned today, actually, when we had a meeting with
one of our Chinese guests, Mr. Li Jingsong, said that he read a
new document recently released by the government that said as
long as there are fewer than 25 people in the household who are
friends or relatives, they should not be required to register.
I have not personally read or known this document before, so
this is a new thing.
Mr. Dorman. Good. Thank you.
Next, I would like to recognize Lawrence Liu, who is a
Counsel on the Commission and looks at freedom of expression.
Lawrence.
Mr. Liu. I would like to thank the witnesses also for your
excellent presentations and providing us with so much useful
information.
My question relates to the content-based restrictions on
publishing that are provided for in the Regulation on Religious
Affairs.
Article 7 of the RRA stipulates that publications with
religious content may not include content that--and I am
paraphrasing--upsets the harmony between religious citizens and
non-religious citizens, upsets the harmony between different
religions or within a religion, insults or discriminates
against religious or non-religious citizens, spreads religious
extremism, or violates the principles of religion's
independence and self-governance.
So I have a few questions. The first is, has anyone been
punished for violating this provision of the regulations? If
so, what did they publish and how did it violate this
provision? Then my second question is, how do these content-
based restrictions affect the substantive content of what
religious organizations publish in China? I address this
question to each of the panelists.
Mr. Tong. I have no specific information on whether people
are actually penalized for breaching these stipulations. If you
read Article 7, it says that religious publications have to
also be in conformity with the central government's rules
governing publications.
So there is a national law governing publications, and also
news and information media, in television, and printed
newspapers and magazines, et cetera. There is a list of what
can be published and what cannot be published. Part of it is
the list of the restrictions that you referred to. But beyond
that, I do not have specific information.
Mr. Fu. I think the definition of ``religious literature''
should be more clear. Let me say it this way to address the
content issue. Two years ago, there was a couple in either
Anhui or Hunan province. They were found to be duplicating and
selling DVDs or CDs published by Yuan Zhiming, who is a former
political dissident but who became a Christian evangelist based
in California. He published a DVD series called ``The Cross.''
It is basically a history of the Chinese church, especially
Chinese house churches. We got a hold of all the indictment
papers when the couple was originally arrested and charged with
a crime like subverting the national government, but the
evidence was that he owned this DVD series and was duplicating
them and distributing them to the people, and then the
government said it contains ``June 4th contents.'' That is, it
mentions the Tiananmen Square massacre on June 4, 1989, which
the government says is harmful to the society.
I think that is an example of how that clause could be used
to punish people for distributing religious literature that is
regarded overseas as nonreligious or that might be labeled of a
political nature by some overzealous political figures and then
the publishers or distributors could be punished.
Mr. Carlson. I will add two points. First, my understanding
is that when people are punished for a publication, it is
normally done under the Criminal Law rather than under the
provisions of RRA.
Second, I agree that the list of the prohibitions you read
clearly can serve as a chilling effect. I am not sure whether
that actually happens in practice, but at least on a
theoretical basis, these are people who want to print
something, but when they look at the
regulations, they may see that their publication is potentially
problematic, so therefore they will err on the side of not
publishing something versus publishing something that could
potentially get them into trouble.
Mr. Dorman. Thank you.
Next, I would like to recognize Commission Special Advisor,
Dr. Mark Milosch, who looks at religious freedom.
Mark.
Mr. Milosch. I would like to second my colleagues' thanks.
I observe that you all agreed that the RRA would have been a
step forward if it had been implemented. I would like to ask
you what you think it was a step forward toward.
Was it a step toward a genuine liberalization which would
have the state getting out of the business of managing
religion, or is it a step more toward a kinder and gentler
management which would be, for all that, and all the more
encompassing and more effective control of religion?
Reading the regulations and observing recent events--
including the beating on four occasions last year of registered
Catholic priests--I have my own suspicion that it represents a
move toward more effective control and not toward less control.
I would be interested to hear your observations.
Mr. Fu. Let me see. I at least observed one very overt
element. In Zhejiang province, it is called ``Qian Hu Tiao
Kuan.'' It relates to the household. In order to be qualified
to move from one province to another province as a religious
leader, Article 19 imposes one requirement and four procedures
on any given religious leader or teacher who wants to move into
a province, or even within a province.
For employment in the province, you have to be there for
three years or more, have recommendations by religious groups,
approval by the Administration for Religious Affairs of the
county, the city, and the province. This requirement is a
direct violation of the Chinese Constitution, which guarantees
equal treatment.
Even the floating population does not have to comply with
these sort of restrictions. For example, if you want to do a
building project, you are an expert worker on building, you do
not need to go through these types of complicated procedures in
order to be qualified, especially from one province to another
province.
Even within the province itself, it is certainly a step
backward and puts so much burden even on the government-
approved religious leaders who only wish to perform their
religious services. It is even more difficult for those accused
of being self-proclaimed evangelists or other religious
figures.
I think if everything is implemented, at least we can see
that it is toward the rule of law instead of rule of religion
by secret documents, regulations, or files. It has more
transparent rules that people can go to. Even those government-
sanctioned religious figures can have more rules, guidance, and
an appeals process.
That, I think, is progress. In the past, religion was
primary managed by secret documents. There is now, of course,
number 19, number 6. In the past, they were all secret
documents. And, of course, behind the scenes there are more top
secret documents to manage these types of affairs, but at least
we have a document at the national level to follow.
Mr. Tong. I think that is certainly true. There is also the
rule of law, transparency. If you look at the RRA, there is a
list of stipulations for the constituted authority of both SARA
and provincial, city, and county religious affairs bureaus what
the national religious organizations can and cannot do, and
also what the religious venues can and cannot do. In addition,
the various procedures on religious activity and the process,
how to register it, what kind of permission is required. So,
definitely it is codification of regulations related to
religious activities.
At the same time, I also think that it is not only kinder
and gentler management of religion, but I think it is also a
step toward greater liberalization. You can see it by the
number of restrictions, previous restrictions and requirements,
that used to be asked for religious organizations and many of
these have been dropped or watered down.
Mr. Dorman. Good. Thank you very much. Remarkably, we are
almost out of time. We have about two minutes left. So, taking
that into consideration, I am going to give Kara Abramson our
last question, and apologize to our witnesses, because we might
go two or three minutes over, if that is all right. Thank you.
Ms. Abramson. Thank you.
As you have all noted, the national RRA is written in broad
language and includes some vague terminology. It also leaves
out some language found in other regulations. It does not, for
example, mention the five main religions by name. As Professor
Tong has noted, it also has left out some restrictions that
have been found in older regulations.
My question is, first, does leaving out mention of a
restriction necessarily mean it is no longer in place? Second,
what are we to make of the RRA's ambiguous language? Does it
reflect political compromise, sloppy drafting, the intent to
have provincial governments clarify meaning through their own
legislation, or something else? What are we to make of vague
language and various omissions, including the omission of
previously stated restrictions?
Mr. Carlson. From a legal perspective, the absence of a
restriction that previously existed would imply that the
restriction, at least on a national level, would no longer
exist. The fact that there have been provincial-level
regulations that have been passed since, also without these
provisions, would also imply at least a trend toward omitting
those restrictions.
Of course, the absence of restrictions does not necessarily
guarantee affirmative rights. It merely guarantees the absence
of the restrictions.
Your second question was?
Ms. Abramson. What are the reasons behind this vague
language? That is the million-dollar question.
Mr. Carlson. That is the million-dollar question which I,
unfortunately, do not have an answer to. I would defer to my
co-panelists on that.
Mr. Tong. I think it is a question of legal jurisdiction.
The RRA is on a national level. You can see that several
national- and international-level religious affairs provisions
would stipulate, for example, what to do with the consecration
of Catholic bishops, with a successor to the Dalai Lama. That
is not mentioned in all of the provincial ones.
At the same time, the national-level regulations do not
stipulate many religious activities at the local level. For
instance, the registration of the religious venues, and also
the training seminars at the local level, the RRA did not
mention those, but these are in the provincial regulations. So,
that is the first point, the legal restriction.
The other one is that in the hierarchy of legislation in
China, the higher level is usually a statement of general
principles that are necessarily abstract, and then they would
need the provincial and the local ones to make it more concrete
and specific and apply to the local circumstances.
Mr. Dorman. Our time is up, unfortunately. Obviously, the
conversation on this regulation specifically, and religion in
China generally, is not over. We hope that we can invite our
witnesses back in the future to continue the conversation,
because their knowledge and expertise has certainly helped
illuminate the issue for us.
So on behalf of our Chairman and Co-Chairman, I would like
to thank all of our witnesses and everyone in the audience for
coming today. On that, I will bring this roundtable to a close.
Thank you.
[Whereupon, at 3:33 p.m. the roundtable was concluded.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Eric R. Carlson\1\
november 20, 2006
I. Introduction
As a lawyer by training and trade, I hope to offer a few thoughts
from a legal perspective on China's national and regional regulations,
with the full realization that the situation on the ground does not
always comport with legal requirements.
The Chinese government promulgated the Regulation on Religious
Affairs (RRA) in an attempt to standardize religious administration and
practice. New and amended regional regulations issued after the RRA,
however, are sometimes at odds with the RRA and pose questions for
religious groups. While these regulations reveal some tinkering around
the edges, these regulations can be seen as more of a codification and
reaffirmation of existing policies established under the RRA than a
radical departure from the RRA framework. Groups outside of the
regulatory regime continue to have an uncertain legal status. How these
groups are integrated into the religious administration may be
indicative of the future of religious freedom in China.
II. Reflections on the RRA
In late 2004, China's State Council announced that it was issuing a
new Regulation on Religious Affairs (RRA) that would be a ``paradigm
shift'' in religious administration. At the time, many observers,
including myself,\2\ expressed cautious
optimism that, while the RRA did not represent a fundamental reordering
of state supervision over religion, it might result in a small step
toward greater religious freedom in China. The RRA omitted several
restrictions contained in prior national and regional regulations and
left several provisions vague, possibly indicating a gradual shift
toward more flexibility in religious administration and perhaps allow
space for unregistered groups to flourish. Further, the RRA provided
additional legal protections in several areas.
In the two years since the announcement of the RRA, this optimism
has been tempered by actual events. The RRA offered few unrestricted
rights--most contained qualifications, provisos, and restrictions. The
omissions that were thought perhaps to signal a new openness did not
grant any new rights, and religious groups are not fundamentally on
more solid legal ground than before. Further, the vagueness in the RRA
cuts both ways, allowing for inconsistent interpretations and the
possibility of abuse of discretion by less sophisticated local
officials. Scholars cautioned that much would depend on implementing
guidelines issued subsequent to the RRA. To date, these guidelines have
not been publicly issued.\3\ The practical implementation of the RRA,
however, indicates that the rights set forth in the RRA may be viewed
as a ceiling rather than a floor.
III. The Interrelationship of National and Regional Regulations
Since the promulgation of the RRA, one national-level regulation
and eight regional regulations affecting religious administration have
been issued. The overall scheme of state supervision over religion
remains constant. Inconsistencies among these regulations pose
practical questions for both registered and unregistered religious
groups.
A. MEASURES FOR REGISTRATION OF RELIGIOUS VENUES
Six weeks after the RRA took effect, the State Administration for
Religious Affairs (SARA) promulgated the ``Measures on the Examination,
Approval, and Registration of Venues for Religious Activity''
(``Measures'').\4\ Like the RRA, the Measures do not provide any new
rights per se, but do represent a more sophisticated effort to give
clarity to the registration process. Specific procedures give both
religious organizations and bureaucrats a clearer process to follow.
The Measures also provide for
decentralized decisionmaking, pushing approval down to the regional and
lower levels, which then report their decisions to SARA.
Decentralization may result in faster decisionmaking and possibly abuse
by regional and lower-level officials, who are often less sophisticated
than their national counterparts. Article 2 of the Measures includes
``other fixed venues for religious activities'' in the definition of
permitted religious venues, rather than limiting religious venues to
those of the five traditional religions. The term ``religious groups''
is not defined in the Measures.\5\ Article 5 of the Measures requires,
among other things, a list of the members of the preparatory committee.
While a list of only the preparatory members is better than previous
provisions requiring a list of all members, it still reflects an
underlying mistrust of religions and implies that only ``good''
citizens should be able to establish religious groups. Two clarifying
provisions help in giving more legal certainty: Article 11 clarifies
that previously registered venues need not re-apply for registration,
and Article 15 clearly repeals the supplemental registration
regulations promulgated by SARA in 1994. The largest problem with the
Measures is that no clear approval standard exists. Article 6 requires
religious cadres to ``solicit the opinions'' of local leaders. Do these
local leaders exercise a veto over approval of a religious venue? If
not, how much weight is given their ``opinions'' ? If an application is
denied, can it be appealed to the regional RAB or to SARA? The Measures
provide additional clarity in registration procedures but, like many of
the post-RRA regional regulations, leave many unanswered questions.
B. NEW AND AMENDED REGIONAL REGULATIONS
Despite the efforts of the RRA and the Measures to establish clear
standards for religious administration, they have not systematized the
application of laws in ways some scholars had envisioned. The patchwork
of municipal, regional,\6\ and national regulations remains, and from a
legal perspective, the events following the RRA pose conundrums for
religious groups and their leaders. Eight regions have issued new or
amended regulations on religious affairs following the RRA's entry into
force in March 2005 and the enactment of the Measures in April 2005. In
April 2005, Shanghai was the first to amend its regulation.\7\ Henan
and Shanxi issued new regulations in July 2005. Zhejiang amended its
regulation in March 2006, as did Anhui in June 2006. Beijing amended
its regulation in July 2006, and Hunan and Chongqing did so in
September 2006.\8\ Some of these regulations bring the provincial law
in conformity with the RRA, but others retain and re-enumerate
provisions that are at odds with the RRA and the Measures.
1. Preemption issues
China's Legislation Law indicates that national-level regulations
have a ``higher legal authority'' than regional or local
regulations.\9\ The Legislation Law provides that where a national-
level regulation has come into force, contravening provisions in
regional regulations are invalid, and the issuing regional body ``shall
amend or repeal such provision on a timely basis.'' \10\ But the
Legislation Law also provides that a regional regulation can be used to
``implement a national law or administrative regulation in light of the
actual situation of the jurisdiction.'' \11\
From a legal point of view, the drafters of the post-RRA regional
regulations seem to believe either: (1) the pre-existing provisions of
regional regulations do not
conflict with the RRA and therefore do not need to be changed; or (2)
the regional regulations do in fact conflict with the RRA but serve to
implement religious administration ``in light of the actual situation''
in that province.\12\ For the provinces that have not acted after the
RRA, it could be because either (1) they believe that the RRA
implicitly repealed all regional-level regulations on religious
administration, and thus there is no need to repeal the prior
regulations; (2) they are in the process of drafting an amended or new
regulation; or (3) they have chosen to ignore the RRA and continue to
pursue religious administration as before. The disparate reactions
among the provinces following issuance of the RRA indicate that all of
these situations are possible.\13\
While these preemption issues pose interesting theoretical legal
issues, they also have real consequences for religious believers.
Because religious organizations exist and operate in towns, counties,
and provinces whose regulations sometimes conflict with national
regulations, what set of laws should religious believers and their
leaders follow? If a regional regulation conflicts with the RRA, which
provision should a religious body follow? If the RRA provides rights
that a regional or local regulation does not provide, can a religious
body successfully assert these rights? What significance does the
absence of new or amended regulations in other provinces have? Does the
RRA apply in place of the preexisting regional regulation, as a
supplement, or neither? \14\ For instance, should a religious body in,
say, Xinjiang assume that the RRA is applicable in the province, the
preexisting regional regulation, or parts of both? If the venue
registration provisions of a regional regulation are not the same as
the Measures, which procedures should a religious group follow to
register a venue? Can religious groups avail themselves of rights
contained in regional regulations but not the RRA, and vice versa? Are
groups subject to penalties contained in the RRA but not in regional
regulations? If regional RAB cadres applied a penalty that was more
restrictive than that provided for under the RRA, would an
administrative appeal be possible under Article 46 of the RRA? \15\ If
so, to what body? What should groups make of deletions from new/amended
regulations? How do unregistered groups fit in to this legislative
morass? Some provinces recognize groups outside the traditional five--
can these groups ``leverage'' registration in one province to obtain
registration in another? \16\ Are religious groups outside the
traditional five presumptively unauthorized in provinces where post-RRA
regulations still limit the definition of ``religion'' to the
traditional five?
2. Key changes in the new and amended regional regulations
The drafters of the new and amended regional regulations seem to
have been closely examining the RRA when drafting but made a conscious
decision not to simply copy and paste provisions. Rather, it appears
that regional regulations adopted some provisions of the RRA and
Measures, modified other provisions, omitted some provisions in the
Measures, and added new provisions not contained in the RRA or
Measures. At times, it appears that the drafters sought to salvage the
existing regional regulation and only make changes where the
regulation's provisions were in direct conflict with national policy.
Even then, as the table below shows, many disparities remain.
------------------------------------------------------------------------
Location, Date, and Type Key Changes
------------------------------------------------------------------------
Shanghai--April 2005 (amended)............ Expands definition of
``religious affairs''
beyond five traditional
religions, but still within
legal confines--established
and registered according to
law (old art. 3; new art.
3)
Eliminates requirement that
national agencies within
city abide by these
regulations (old art. 8)
Religious groups and venues
enjoy preferential tax
treatment (new art. 11; cf.
RRA art. 36) [no
corresponding requirement
to report income and
expenditures]
Deletes list of permitted
titles for religious
officials (old art. 15)
Religious personnel can
participate in city's
social security program
(new art. 13)
Detailed registration
requirements and procedures
for religious venues (new
arts. 17--19; cf. RRA art.
13)
New provisions on large
outdoor statutes (new art.
23; cf. RRA art. 24)
Religious believers may have
a ``religious life'' within
their homes (old art. 30;
new art. 27)
Eliminates enumerated list
of permitted religious
activities, potentially
broadening scope (old art.
30)
Amends prior prohibition on
various activities: (1)
deletes references to
fortune telling, palm
reading, and casting of
lots; (2) maintains
prohibition on divination,
exorcism, and healings, (3)
limits the prohibitions to
those activities that ``are
in opposition to the public
morality or church
teachings'' (old art. 28;
new art. 24)
Specific requirements for
approval of large-scale
religious activities (new
art. 26)
Provisions on religious
institutes modified to come
closer to RRA provisions
(old arts. 35--39; new
arts. 32--37; cf. RRA arts.
8--9)
Prohibits transfer of
religious relics and
property (new art. 39; cf.
RRA art. 32)
Chapter title changed from
``Foreign Contacts'' to
``Foreign-Related Religious
Affairs'' (old ch. 8; new
ch. 8)
Deletes approval process for
foreigners to apply for
approval for filming at
religious venues (old art.
50; but see RRA art. 25)
Eliminates permission for
foreigners to bring in
religious articles for
personal use (old art. 51)
Significantly restructures
``Legal Responsibilities''
(i.e., penalties) section
with more specific
requirements and penalties
for violations (old arts.
54--59; new arts. 51--61;
cf. RRA arts. 38--46)
Eliminates authorization for
Shanghai RAB to bear
responsibility for
interpretation and to
implement detailed rules
(old arts. 61--62)
Apparently effective upon
promulgation (new art. 63
retains March 1, 1996
effective date)
------------------------------------------------------------------------
Shanxi--July 2005 (new)................... No previous provincial-level
regulation
Defines ``religious groups''
as the patriotic religious
associations governing the
five traditional religions,
plus ``other religious
organizations established
in accordance with law''
(new art. 7)
Specific requirements for
registration of religious
groups: (1) name,
residence, and responsible
person; (2) does not
violate the Constitution,
laws, regulations, or
rules; (3) has a legitimate
source of income; (4) is
textually researchable,
conforms to the country's
modern evolution of
religious history, and does
not violate classic
scriptures, doctrine, or
canon; and (5) the
organizational structure
must be representative (new
art. 8)
Includes in the definition
of religious venues
``Buddhist temples, Daoist
temples, mosques, churches,
and other fixed locations
for religious activities
that have been legally
registered'' (new art. 11;
cf. Measures art. 2)
Detailed requirements for
registration of religious
venues (new art. 12)
somewhat track requirements
in Measures arts. 5, but
not entirely
Enumerates a list of
religious personnel from
traditional five religions
``and so on,'' but no real
provision for those outside
traditional five religions
(new art. 16)
Defines ``religious
activities'' via an
enumerated list (new art.
20)
Religious citizens can
perform ``normal''
religious customs within
their own homes (new art.
22)
Authorization procedures for
religious activities
somewhat parallel RRA
provisions, but with
shorter time windows (new
arts. 23--24; cf. RRA 22)
``Legal liability'' chapter
(new arts. 28--34) somewhat
parallels RRA provisions
(RRA arts. 38--46) but with
inconsistent provisions
Two-month window between
enactment and effective
date (new art. 35)
No chapter on religious
property
------------------------------------------------------------------------
Henan--July 2005 (new).................... Defines ``religion'' as five
traditional religions (new
art. 2)
Special provisions for
registering a Catholic
diocese (new art. 8)
Specific requirements for
training of religious
personnel (including
``patriotic education'' and
``conforming religion to
socialist society'') and
approval procedures (new
arts. 9--10) [``conforming
religion to socialist
society'' often found in
religious policy documents
but not usually in law]
List of requirements for
registering religious
venues (new art. 17)
largely parallel Measures
but adds requirement to
submit a building plan
Religious citizens can
practice religious customs
within their homes (new
art. 21)
Approval requirements for
multiprovincial activities
largely parallel RRA
provisions (new art. 23;
cf. RRA art. 22)
Publication requirements
(new art. 25) parallel RRA
provisions (RRA art. 7) but
add sentence that
organizations and
individuals cannot ship,
sell, distribute, or post
any illegally printed or
imported religious
publications or materials
Legal liability chapter
(arts. 26--31) parallels in
condensed form the
provisions of the RRA (RRA
arts. 38--46)
Explicitly repeals 1991
regulation (new art. 32)
------------------------------------------------------------------------
Zhejiang--March 2006 (amended)............ Deletes references to five
traditional religions (old
art. 2)
Emphasis on rule of law (new
arts. 7, 21)
Expanded chapter on
religious personnel (new
arts. 9--15)
Specific requirements for
training of religious
personnel and approval
procedures (new art. 9)
Eliminates specific list of
religious personnel (old
art. 13)
``Encourages'' religious
organizations and venues to
undertake social welfare
projects (new art. 13)
Specific requirement for
Catholics to obtain
approval from provincial
Catholic body for religious
activities; more onerous
registration requirements
(new arts. 18, 19)
Expands approval procedures
for new and remodeled
venues (new arts. 22, 24;
cf. RRA art. 13)
Prohibits individuals or
unapproved groups from
establishing religious
venues (new art. 23)
Detailed requirements for
``democratic management''
(new art. 25; cf. RRA art.
18)
Slightly broadens the types
of acceptable donations
(but retains prohibition on
unapproved groups accepting
religious donations) (new
art. 28; cf. RRA art. 20
New provisions for religious
sites with tourist
implications and statutes
(new arts. 29--31; cf. RRA
arts. 24, 26)
Requires preapproval for
filming at religious sites
(new art. 32; cf. RRA art.
25)
Allows permission to hold
religious services in one's
own home retained but
limited: ``[such worship
services] cannot influence
other people's normal
lives'' (new art. 36)
Additional requirements for
approval of ``atypical''
activities: (1) conformity
to religious doctrine and
custom; (2) necessity of
holding the atypical
activity; (3) has an
actionable plan, including
an emergency plan; and (4)
``other must-have
conditions'' (new art. 38)
[undefined and therefore
susceptible to abuse]
Scaled-back provisions on
religious interference in
foreign affairs (old arts.
34--39; new art. 39)
Religious groups and venues
enjoy preferential tax
treatment; required to make
donation information public
(new art. 42; cf. RRA 36)
Eliminates permission to
rent religious real estate
(old art. 44)
Restructured penalty section
with more specific
requirements and penalties
for violations (new arts.
44--50; cf. RRA arts. 38--
46)
Two-month window between
enactment and effective
date (new art. 51)
------------------------------------------------------------------------
Anhui--June 2006 (amended)................ Very minor amendments rather
than a wholesale revision
to conform with RRA
provisions
Requires invitations for
religious personnel from
outside the province and
approval by city religious
organizations and city
religious affairs officials
(art. 14)
Requires religious colleges
and universities to obtain
the approval of the
provincial religious body
(art. 34)
------------------------------------------------------------------------
Beijing--July 2006 (amended).............. Stated goal is to bring
regulation in conformity
with the RRA\17\
Relatively minor amendments
rather than a wholesale
revision
Removes requirement for
annual inspections (art.
20)
Advance consent of
management group requested
before new construction or
expansion (art. 25)
Expands procedures for large-
scale or cross-provincial
religious activities (art.
26)
Precludes transferring,
mortgaging, or investing in
buildings and structures
used for religious
activities (art. 34; cf.
RRA art. 32)
Modifies ``legal
liabilities'' section,
though still differs from
RRA provisions (arts. 47--
48)
------------------------------------------------------------------------
Hunan--Sept 2006 (new).................... Regulations are a hybrid of
prior Hunan provisions,
amended Shanghai
regulations, and RRA
Specifically cites the RRA
and several RRA provisions
(new arts. 1, 13); also
cites national ``Law on
Accounting'' (new art. 40)
Eliminates references to
five traditional religions
in definition of
``religion'' (old art. 2;
new art. 2)
Retains references to
resisting foreign
influences (old art. 5; new
art. 5)
Adds ``other religious
organizations'' to the
definition of ``religious
groups,'' which previously
included only the patriotic
religious associations
governing the five
traditional religions (old
art. 7; new art. 8)
Includes ``other fixed
venues'' in the definition
of permitted religious
venues (new art. 12; cf.
Measures art. 2)
Allows for designation of
temporary religious venues
according to need (new art.
12)
Specific responsibilities
outlined for ``democratic
management organization,''
including annual reports
(new art. 16; RRA art. 17)
Provisions for management of
religious tourist
destinations (new art. 23;
cf. RRA art. 26)
Religious personnel can
participate in city's
social security program
(new art. 28)
Specific approval provisions
for cross-provincial
activities (new art. 32;
RRA art. 22)
Permits home worship (new
art. 29)
Provisions for religious
education (arts. 33--36;
RRA arts. 8--10)
``Religious property''
chapter, including tax
preferences (new arts. 37--
42) roughly mirrors RRA
provisions (RRA arts. 30--
37)
Religious organizations can
accept donations from
abroad (new art. 38)
``Legal Liability'' chapter
(new arts. 43--47) is
abbreviated version of RRA
provisions (RRA arts. 38--
46); includes provision for
administrative and criminal
penalties for dereliction
of duties (new art. 47)
Separate provision for
registration of venues for
folk beliefs (new art. 48)
Retains provision deferring
to the national government
religious involvement in
foreign affairs and
religious exchanges with
Taiwan, Hong Kong, and
Macau (old art. 42; new
art. 49)
Three-month window between
enactment and effective
date (new art. 50)
Specifically repeals Hunan's
2000 regulation governing
religious affairs (new art.
50)
------------------------------------------------------------------------
Chongqing--Sept 2006 (new)................ Somewhat parallels new Hunan
regulations\18\
Specifically cites the RRA
and several RRA provisions
(new arts. 1, 13)
Requirement that People's
Government at all levels
``listen'' to the ideas of
religious groups, venues,
and citizen-believers (new
art. 7)
Retains list of patriotic
religious associations,
including ``other religious
organizations'' (old art.
26; new art. 8)
Special provisions for
registering a Catholic
diocese (new art. 9)
Specific requirements for
registration of religious
groups: (1) name,
residence, and responsible
person; (2) does not
violate the Constitution,
laws, regulations, or
rules; (3) has a legitimate
source of income; (4) is
textually researchable,
conforms to the country's
modern evolution of
religious history, and does
not violate classic
scriptures, doctrine, or
canon; and (5) the
organizational structure
must be representative (new
art. 8) [parallels article
8 of new Shanxi regulation]
Disapproval of applications
requires written
explanation (new arts. 11,
31)
Includes ``other fixed
venues'' in the definition
of permitted religious
venues (new art. 14; cf.
Measures art. 2)
Provisions for religious
venues roughly parallel RRA
(new arts. 14--27; cf. RRA
arts. 12--26)
``Normal'' religious
activities within the home
permitted (new art. 29)
Eliminates enumerated list
of permitted religious
activities (old art. 31)
Eliminates prohibition on
proselytizing outside of
religious venues (old art.
33)
Special provisions for
approval of Catholic
bishops (new art. 32)
Retains separate chapter for
``Religious Publications''
(old and new ch. 6, new
arts. 35--37) somewhat
parallels RRA provisions
(new art. 7)
Detailed provisions for
``Foreign-Related Religious
Affairs'' (new arts. 38--
41), including specific
permission for foreigners
to attend religious
services in the city and to
hold religious activities
upon registration
Eliminates restriction on
overseas religious
organizations sending
instructions and funding
(old art. 45); modifies
requirement that
interactions with
foreigners must follow
principles of independent
governance, mutual respect,
reciprocal non-
interference, and equality
(new art. 38)
``Legal Liability'' chapter
(new arts. 42--47) is
abbreviated version of RRA
provisions (RRA arts. 38--
46)
Provision for administrative
and criminal penalties for
dereliction of duties (new
art. 42)
Penalties for foreigners who
violate regulation (new
art. 45)
Provides for administrative
appeal of unfavorable
decision (new art. 47)
Two-month window between
enactment and effective
date (new art. 49)
------------------------------------------------------------------------
Numerous variations make it difficult to draw broad conclusions
from the amended regional regulations. Nevertheless, a few trends
emerge:
No regional regulation significantly curtails religious
freedom further, but no provincial regulation attempts to expand
significantly the scope of protections beyond that of the RRA. In this
regard, the post-RRA regional regulations can be seen as a codification
and entrenchment of religious policies rather than a significant
advance beyond the basic policies and principles enshrined in the RRA.
Many of the amendments and new regulations bring the regional
administrative requirements closer to that set forth in the RRA, but
many provisions still conflict.
Several regional regulations restate the traditional five
religions in the definition of ``religious organizations'' but add an
``other'' category that in the end could potentially be used to
register groups outside the traditional five.
Several provinces permit religious observance within the home
but with various limits (limited to only ``normal'' religious
activities, or observance permitted so long as it does not influence
the ``normal lives'' of others).
Provisions requiring annual inspections have been eliminated.
Legal liability provisions in many regional regulations
parallel RRA provisions.
Several new regulations provide incremental improvements
(e.g., separate provision in Hunan regulations for registration of
venues for folk beliefs; preferential tax treatment in several
regulations; additional administrative protections in several
regulations).
IV. Groups Outside the Regulatory Regime
All of the analysis above applies to the five traditional religious
belief systems long recognized in China: Buddhism, Catholicism, Daoism,
Islam, and Protestantism. Groups and belief systems outside of these
five remain in an uncertain position.\19\ Some groups have received
tacit consent from the government to carry on some form of religious
observance despite having no legal existence or enforceable rights.
Some groups have attempted to register as religious groups or as social
groups but have not been successful. The religious affairs authorities
have shown some willingness to accommodate these groups outside the
traditional five, but there are theoretical and practical problems
related to the patriotic religious associations (PRAs), which
traditionally have served as the supervising authority over religious
groups. At least five possible scenarios exist for dealing with these
new belief
systems.
1. Fit the religious group into an existing PRA. The government
could lump the group into the PRA that most closely resembles the
group. But fundamental doctrinal differences (e.g., Judaism, Baha'i)
might make this unpalatable to both the group and the PRA.\20\
2. Establish a new PRA for the new group. This solution would
presumably satisfy the government's desire for continued close
supervision of religious practice, but may be undesirable to
organizations which may prefer to decline close government supervision.
Additionally, once additional PRAs are established beyond the original
five, the government might fear opening a Pandora's Box to a number of
less desirable religious groups. If the government seeks to apply the
law fairly, it also would face the tricky question of defining
``religion.''
3. Register as a religious group directly with SARA outside the
context of the PRAs. SARA may be amenable to have religious groups
register outside the context of the PRAs. Indeed, SARA's establishment
of a new Section to supervise folk beliefs and ``religions outside the
five main religions'' may indicate SARA's flexibility. Bureaucratic
politics may hamper such an option. SARA, a state organ, is under the
supervision of the State Council; the PRAs are under the supervision of
the United Front Work Department, a party organ, which might resist
efforts to place religious groups outside its jurisdiction.
4. Register as a social organization but not as a religion. The
government could permit religious groups to register as a social
organization under the applicable regulations but not have any formal
religious status. While such a scenario might be acceptable to some
groups, others may insist on being treated as a religion rather than
merely a social organization. The government may also feel that
religious groups need additional supervision, though this may be a
soluble issue.
5. Continue the status quo. Because of the shortcomings of the
above options, the most likely outcome is to continue the status quo.
The government could continue to permit meetings of some
unobjectionable religious groups, particularly those that seem to pose
no threat to the government. The government has tolerated such an
arrangement for several groups of expatriates with established
followings outside China.
The Orthodox community in China poses an interesting case study
exemplifying these issues. Both Heilongjiang and Inner Mongolia have
recognized the Orthodox Church in their regulations,\21\ and the
Orthodox Church also is registered in Xinjiang. After the announcement
of the RRA, the Orthodox community announced its intention to apply for
registration with SARA. SARA has not registered the Orthodox church,
though SARA has cooperated with the Orthodox community to
rebuild Orthodox churches in China and in other ways.\22\ How groups
outside the traditional five, such as the Orthodox Church, are
integrated into China's system of religious administration may be
indicative of the future of religious freedom in China.
V. Conclusion
As indicated above, this analysis has focused somewhat narrowly on
the legal structures affecting religious administration in China.\23\
The basic policies of continued state supervision over religion with
marginal improvements that were outlined in the RRA have not been
altered by subsequent national and regional regulations. Conflicts
between provisions in the RRA and regional regulations leave religious
groups in a state of legal and practical uncertainty. Further, the
system of national and regional regulations does not address religious
groups that are not formally recognized by the government. China's
religious administration policies and laws must make additional efforts
to resolve these questions. While a call for unfettered religious
freedom will likely go unheeded, it would be a step in the right
direction for China to enact laws that comply with international
standards that provide basic rights for all religious believers and
groups. China's WTO accession and growing interactions with other
countries amplify the need to hasten its transition from a rule-by-law
to a rule-of-law nation and the need for all of its laws, including
those governing religious freedom, to provide clarity, transparency,
and predictability.
ENDNOTES
\1\ Attorney, Covington & Burling LLP. These remarks reflect my
personal viewpoints and not those of the firm or any of its clients.
\2\ See Eric R. Carlson, ``China's New Regulations on Religion: A
Small Step, Not a Great Leap Forward,'' 2005 BYU L. Rev. 747; see also
Kim-Kwong Chan & Eric R. Carlson, Religious Freedom in China: Policy,
Administration, and Regulation (2005).
\3\ Sources indicate that many local Religious Affairs Bureaus
(RABs) are awaiting clearer guidelines from SARA in order to implement
the RRA. Several jurisdictions may be used as pilot projects for these
additional guidelines.
\4\ A good English translation can be found at http://www.cecc.gov/
pages/virtualAcad/index.phpd?showsingle=38682.
\5\ Presumably, the term ``religious groups'' (zongjiao tuanti,
sometimes translated as ``religious organizations'') refers to the
patriotic religious associations, but regional regulations promulgated
after the Measures leave open the possibility that groups apart from
patriotic religious associations may be able to register.
\6\ I use ``regions'' synonymously with ``provinces'' to describe
provinces, provincial-level municipalities, and provincial-level
autonomous regions.
\7\ In 1995, Shanghai also was the first province to issue a
comprehensive religious regulation. Shanghai issued its amended
regulation on the same day as SARA issued the Measures. Interestingly,
the amended Shanghai regulation is the only regional regulations posted
on the SARA website. This may be due more to timing (the Shanghai
regulation was the only one in effect when SARA uploaded most of its
website content in July and August 2005) than an indication of SARA's
approval of the Shanghai regulation.
\8\ Liaoning and Jiangxi also are expected to issue new or amended
regulations. See James Tong, Testimony Presented at the Issues
Roundtable, Congressional-Executive Commission on China, Nov. 20, 2006,
available at http://www.cecc.gov/pages/roundtables/2006/20061120/
Tong.php.
\9\ See Legislation Law of the People's Republic of China, art. 79
(``The effect of administrative regulations is higher than that of
local regulations and rules.''); cf. art. 80.
\10\ See id. art. 64: ``Where a national law or administrative
regulation enacted by the state has come into force, any provision in
the local decree which contravenes it shall be invalid, and the
enacting body shall amend or repeal such provision on a timely basis.''
\11\ See id. art. 64: ``A local decree may provide for the
following: (i) matters for which enactment of a local decree is
required in order to implement a national law or administrative
regulation in light of the actual situation of the jurisdiction; (ii)
matters which are local in nature and require the enactment of a local
decree.'' Cf. Article 63.
\12\ Article 88 of the Legislation Law permits the National
People's Congress to repeal any local regulations conflict with the
Constitution, laws, or administration.
\13\ Of course, a political explanation is also possible:
provincial authorities, without a strong push from the central
government, do not feel compelled to obey strictly Beijing's commands.
As long as the provincial regulations are not unreasonable, this
explanation continues, the provincial authorities do not fear meddling
by Beijing.
\14\ Some of these preemption issues could be resolved if the
National People's Congress passed a law, rather than the State Council
issuing administrative regulations. In practice, however, such a law
(which had been previously considered) may not affect the reality of
religious practice in China. See Magda Hornemann, ``Would a Religion
Law Help Promote Religious Freedom?,'' F18News, Sept. 11, 2006,
available at http://www.forum18.org/Archive.php?article--id=840.
\15\ In other words, do the RRA's administrative appeal provisions
apply only to decisions taken with regard to the RRA, or to all
decisions taken in relation to religious affairs?
\16\ See infra Section IV (discussing the Orthodox Church).
\17\ Beijing is apparently the only province to make conformity
with the RRA an explicit goal, though other regulations (e.g., Hunan,
Chongqing) explicitly reference the RRA.
\18\ Because the Hunan and Chongqing were issued at the same time
(and given Hunan and Chongqing's geographical proximity), they may have
been developed concurrently.
\19\ For these unregistered groups, it is unclear whether they can
rely on the RRA provisions (art. 38) imposing penalties on state
functionaries for abuse of power, neglect of duty, or illegal action
for personal gain. A failure to register a group that should otherwise
be registered could at least in theory be seen as neglecting one's
duty.
\20\ Other religious groups are similarly situated, such as
Seventh-day Adventists, Jehovah's Witnesses, the Church of Jesus Christ
of Latter-day Saints, Sikhism and Hinduism, not to mention a host of
home-grown Chinese religious organizations. See Hans Petersen,
``Despite New Regulations, Religious Policy Still Under Strain,''
F18News, March 8, 2006, available at http://www.forum18.org/
Archive.php?article--id=740.
\21\ See 1997 Heilongjiang regulation, arts. 2, 24, and 31; Inner
Mongolia 1996 regulation, art. 2.
\22\ See various stories at www.orthodoxy.cn.
\23\ Many NGOs and other groups track the actual reality of the
status of religious freedom in China. Many of these reports provide
troubling evidence that what laws and protections do exist are being
unevenly enforced.
______
Prepared Statement of Xiqiu ``Bob'' Fu
november 20, 2006
Changes in Religious Legislation as Seen Through the Promulgation and
Amendment of the Regulation on Religious Affairs
I. PREFACE
The State Council ``Regulation on Religious Affairs'' (Hereafter
abridged as
National RRA) was implemented March 1, 2005. This regulation replaces
two prior regulations: the ``Regulations Governing Religious Activities
Sites'' and the ``Regulations Governing Religious Activities of
Foreigners in China.'' The former was annulled after the comprehensive
administrative law, the National RRA, took effect. The Standing
Committee of the People's Congress in the following provinces and
directly administered municipalities amended and promulgated the
``Regulation on Religious Affairs'' (Hereafter abridged as Regional
RRA) as regional regulations: Shanghai (April 21, 2005), Zhejiang
(March 29, 2006), Anhui (June 29, 2006) and Beijing (July 28, 2006).
Henan RRA was promulgated July 30, 2005 and enforced January 1, 2006;
Shanxi RRA was promulgated July 29, 2005 and enforced October 1, 2005.
Before the promulgation of the National RRA, the various provincial
RRA's were themselves comprehensive regional regulations, basically
embracing all aspects of religious organizations, religious faculty,
religious activities sites, religious publications, religious
activities or external affairs, religious properties, legal
liabilities, etc. Judging from a comparative observation of the textual
framework and content, this article argues that the National RRA in its
six year history of research, investigation, and promulgation, has
absorbed in its legislative format and content certain religious
legislation and enforcement from various provinces, and reached
legislative definitions with a higher level of generalization and
greater directness.
In view of the fact that the administrative regulation is higher
than regional regulations in terms of effect, and that the content of
the latter must not contradict the former, therefore relevant
provisions of the Regional RRA's must be amended to comply with the
National RRA. Following is an analysis of the emphasis of the religious
administrative legislation of China, based upon examples of changes in
the content of the RRA provisions of Beijing, Zhejiang, and Shanghai
before and after amendments.
II. CHANGES IN THE BEIJING RRA BEFORE AND AFTER AMENDMENT
Corresponding changes have been made in religious organizations,
religious faculties, religious activities sites, religious
publications, religious activities or external affairs, religious
properties and legal liabilities.
According to Article 8 Clause 1 of the National RRA, the Beijing
RRA amended Article 9 Clause 1 as follows: Establishment of religious
academies and schools will not be reported by the Municipal Government
but by the Municipal Administration of Religious Affairs to the State
Council Administration of Religious Affairs for approval.
Although Article 14 Clause 1\1\ has removed the phrase ``religious
activities sites,'' the provision in Article 22 that ``the collective
religious activities of believers shall be conducted in religious
activities sites,'' and the procedural design that cross-regional
religious activities must be approved\2\ implies that the change does
not mean ``free'' space, but merely more concise wording and rigidity
of logic. This is also reflected in the changes in Article 14 Clause
2.\3\
According to Article 18\4\ of the National RRA, the Beijing RRA
amended Article 20\5\ to read: ``Religious activities sites shall
establish sound administrative organizations and regulations and accept
the guidance, supervision and inspection of the Administrative
Department of Religious Affairs and other departments concerned with
the People's local district or county government.'' Although such
wording as ``annual inspections'' have disappeared, the departments
with the authority of ``guidance,
supervision and inspection'' over religious activity sites have been
expanded from ``Administration of Religious Affairs'' to all
``departments concerned'' in order to implement integrated supervision
and control by the public security, state security, industrial and
commercial, urban construction and other government departments.
According to Article 25\6\ of the National RRA, Article 25\7\ of
the Beijing RRA has been amended the word ``or'' to ``and'' requiring
that adding a new structure, building conversion or extension at a
religious activity site must obtain prior approval from the
administrative organization of the place, i.e., the local
Administration of Religious Affairs, and undergo proper procedures.
This amendment is intended to prevent evasion of control over religious
buildings by the Administration of Religious Affairs. Yet this dual
approval has already been regulated in Article 11 of the 1994
``Regulations Governing Places of Religious Activities,'' and this
Beijing amendment is only a correction of the mistake in the 2002 RRA.
According to Article 22\8\ of the National RRA, Article 26\9\ of
the Beijing RRA has been amended to read as follows: Article 1:
``Anyone who intends to organize a large-scale religious event that
crosses provincial, autonomous regions, or directly administered
municipality boundaries and exceeds the capacity of the religious
activity site, or if intends to hold a large-scale religious event
outside of a religious activity site shall undergo application and
approval procedures according to the State Council ``Regulation on
Religious Affairs.'' Article 2: ``Organizers of other types of large-
scale religious events shall obtain consent from the religious group of
the municipality and first report to the religious affairs department
of the People's Government of the district or county in which the
religious event is to be held. The Religious Affairs Department and
other departments concerned with the People's Government of the
district or county in which the religious event is to be held shall, in
accordance with their respective official responsibilities, provide
management as needed.'' This type of amendment actually requires that
not only large-scale religious events crossing provincial boundaries
obtain approval from the provincial Administration of Religious Affairs
(the County Administration of Religious Affairs has lost its authority
of approval), but the local Administration of Religious Affairs, the
Public Security Bureau, and even State Security will coordinate to
provide supervision. As a result, this arrangement actually has
strengthened control over large-scale religious events.
According to Article 32\10\ of the National RRA, Article 34\11\ of
the Beijing RRA has been amended to prohibit the assignment,
mortgaging, or use as an investment in kind of religious properties.
The amendments to Articles 47 and 48\12\ of the previous regulation
merely amount to adjustments in the format of expression regarding
categorization of legal penalties: The essence has not changed, i.e.,
penalties are exercised on religious activities (setting up religious
activities sites, establishment of religious academies and schools and
training classes) in violation of the policy of ``three fixes'' of
``fixed location,'' ''fixed personnel,'' and ``fixed section'' that
evade the regulatory order of administrative permission, including
annulment or order to stop an activity, warning, seizure of illegal
earnings, bulldozing of illegal buildings, administrative detention or
fines. However, what is worth noticing is that this application of
systematic penalties targeting the religious professional faculty--
religious buildings--academies and schools (training classes)--
donations--across region evangelization and location is the first time
that the National RRA is cited as its basis.
III. CHANGES IN THE ZHEJIANG RRA BEFORE AND AFTER AMENDMENT
The previous regulation of Zhejiang, like that of Beijing, had
already set forth a clear definition of ``religious affairs.'' The
amended RRA,\13\ in reference to Article 5 Clause 1 of the National
RRA, has changed the definition to ``Affairs that exist between
religion and state, society and citizens, and involve state interests
or social public welfare.'' This formality has provided a plausible
cause for regulating religion. However, ``state interests,'' ``social
public welfare,'' or ``public affairs'' are all uncertain concepts. If
the administrative authorities alone have the arbitrative power to
determine at will what constitutes ``public interests'' and use
administrative logic to govern ``public affairs,'' then the religious
system may possibly fall into the system ``pyramid'' permissible by
administrative orders and become one of its subsystems losing its
religious independence and due functions.
Article 7\14\ was added to the amended RRA to reflect the four
duties of government at various levels in the regulation of religion:
safeguarding rights, hearing, coordination, and guidance. Among these,
``guiding religion to be in conformity with the socialist society''
\15\ originates from the No.6 Directive jointly issued by the Central
Committee of the Chinese Communist Party and the State Council on the
requirement of ``strengthening the Party's leadership of religious
work.'' This Directive, against the background of the June 4, 1989
Incident and the dramatic transformation of Eastern Europe, signified
the transition of religious policy from ``soft'' to ``hard.''
Zhejiang, in its attempt to embody the legislative principle of
Article 5 of the National RRA concerning the ``united defense and
coordinated regulation'' of religious affairs by government
administrative departments, takes a path similar to that of
Shanghai\16\ but different to RRA from Beijing, has made more refined
and specific provisions in its amendments. One example is the duty
designed for such ``self-governing organizations by the masses'' as
neighborhood committees and village committees\17\ to ``assist the
government in the administration of religion.'' Against the background
that Christian house churches in China refuse to register but worship
in dispersed family gatherings, this type of system design extends the
network of ``united defense'' against religion to the living quarters
of citizens and enables stricter surveillance and more convenient
regulation.
Article 11 Clause 2 of the amended Zhejiang RRA is a newly added
clause which specifically sets forth terms and conditions of
establishing religious training classes, amounting to virtual
restrictions on the scale of training.\18\
Article 17 of the amended Zhejiang RRA is similar to the previously
mentioned Article 14 of Beijing RRA, only with more concise language.
The newly added Article 19, i.e., ``household movement'' Article
imposes one requirement and four procedures on the religious faculty
moving into the province or within the province: employment in the
province for three years or more, recommendations by religious groups,
and approval by the administration of religious affairs of the county,
the city (within the district), and the province.\19\ Although the
Chinese Constitution does not prescribe ``freedom of movement,'' it
does contain the clause ``right of equality.'' Why are there such
strict requirements and cumbersome application approval procedures for
the movement of religious faculty households? Where is the legislative
cause to justify the restrictions on the right to move a religious
faculty? Is religious evangelization presenting such an obvious threat
or detriment to ``public interests'' that it warrants strict restricted
freedom of movement of religious faculty engaged in evangelization?
This unique, ``innovative'' clause of Zhejiang Province actually smacks
of the most wanton violation of the Constitution.
The amended Zhejiang RRA sets down more detailed and concrete
procedural specifications than before on the building of new
structures, expansion, relocation, and construction of religious
activity sites according to Articles 13 and 15 of the National RRA:
Activity sites are divided into temples/churches and other fixed
locations, and the approval procedures are classified as approval by
the county, city (with districts), and provincial Administration of
Religious Affairs. The terms of establishing religious activity sites
not only requires approval of the administrative department in charge,
but also entails review and approval from at least two levels, in
contrast to places of commercial services which do not require approval
from the Administration of Industry and Commerce at various levels.
This procedural requirement imposes unreasonable prior restrictions on
the right of religious freedom. The newly added Article 31 concerning
the ``construction of outdoor large religious statues'' \20\ also
requires gradual approval from the Administration of Religious Affairs
of the city (with districts) and province.
Chapter 5 ``religious activity'' of the amended Zhejiang RRA
differs from the previous regulation by setting forth an explicit
separation between ``collective religious activity'' and ``family
religious life.'' \21\ The ``collective religious activity'' is limited
to those held in legally registered religious activity sites or those
permitted by the Administration of Religious Affairs at the county
level or above, thus correcting the ambiguity in the previous
regulation.\22\ Although ``family religious life'' has been
acknowledged, the scale of a family gathering has been regulated by the
newly added restrictive clause of ``not affecting normal daily life of
others,'' \23\ thus providing a pretext for outlawing house churches on
the basis of ``interfering in people's lives'' or ``disturbing public
order,'' etc.
The previous Zhejiang RRA (December 11, 1997) stipulated the clause
on ``abnormal religious activity'' which was not found in the previous
Beijing and Shanghai RRA's to regulate cross-regional religious
activity. Therefore, this paper argues that Article 22 Clause 1 of the
National RRA (March 1, 2005) originates from Article 32 of the previous
Zhejiang RRA.\24\ Article 38 of the current amended Zhejiang RRA
inherits the original legislative principle of the clause on ``abnormal
religious activity'' and sets down more formal procedural definitions
modeled on the formal legislative language of Article 22 Clause 1 of
the National RRA and the Requirement of Four Conditions on holding this
type of activity.\25\ Simultaneously in accordance with the requirement
of Article 2 of the National RRA,\26\ adding Article 38 Clause 3:
``religious groups or religious activity sites holding an abnormal
religious activity shall adopt effective measures to prevent unexpected
emergencies. The People's government of a rural or urban township in
the location where the activity takes place and departments concerned
with the people's government at the county level and above shall
implement necessary management techniques according to their respective
duties and responsibilities to guarantee the safe and orderly conduct
of the
abnormal religious activity.''
In its last chapter ``Legal Liabilities'' the amended Zhejiang RRA
describes ``abnormal religious activity'' in further detail, adding two
new types of religious activity, i.e., those ``presided over by non-
religious personnel'' and ``unauthorized cross-regional'' that are
included within the range of administrative penalty.\27\ Article 46 is
also stipulated according to the principle of Article 43 Clause 1 of
the National RRA.\28\ In the RRA of this province it first proposes the
clause of inflicting an administrative penalty against an ``illegal
religious building.'' \29\ It actually means to forcefully demolish
unauthorized meeting places.
IV. CHANGES IN SHANGHAI RRA BEFORE AND AFTER AMENDMENT
The emphasis of the Shanghai RRA is basically identical to that of
Zhejiang; the uniqueness of the amended Shanghai RRA lies in its
specific definitions on ``religious publications.'' Article 12 Clause 2
of its previous RRA stipulated ``printing, publishing, and distribution
of religious books and periodicals, religious printed matters, and
religious audio-visual products shall be conducted according to
relevant provisions.'' This clause has been changed by the amended RRA
to: ``printing, publishing, and distribution of religious newspapers,
religious periodicals, religious books, religious electronic
publications, and religious audio-visual products and so on
(hereinafter termed ``religious publications'') shall be handled
according to provisions of the state and this municipality concerning
publication regulations.'' Also a new clause has been added reading
``any religious groups and religious activity sites (hereafter termed
``religious organizations'') that are in need of producing printed
religious material out of the range of religious publications shall
precede according to relevant regulations of the state and this
municipality.'' This amendment seems, on the surface, to categorize
religious publications, yet in reality it is requiring all religious
publications (especially internal materials) be controlled by the
licensing authorities of administrative departments.
Before the promulgation of the previous Beijing RRA,\30\ the
revised ``Regulations Governing Printing'' and ``Regulations Governing
Publication'' were promulgated and took effect.\31\ The new
``Regulations Governing Printing'' specifically prescribes that
internal religious publications must undergo a dual review and approval
procedure to obtain authorization from the Administration of Religious
Affairs at the provincial level and issued a ``print permit'' from the
Administration of the Press at the provincial level. While other types
of internal publications need only be issued a ``print permit'' from
the Administration of the Press at the county level.\32\ The design of
the ``authorization by provincial level departments'' is intended to
have a psychological effect in that regulation by a higher authority is
a more intense level of policy implementation.\33\ This type of legal
procedural discrimination is without explanation or plausible cause; it
violates the constitutional principle of equal treatment at the same
time violates the rights of equality, religious freedom and freedom of
the press. It is based precisely on the unfair treatment of religious
publications. The new Regulations Governing Publications adds a new
chapter 5 ``Importation of Publications: establishment of a special
operations and review system on imported publications.'' The previous
Beijing RRA has a special chapter on religious publications which
categorizes them by three criteria: ``open publications,'' ``internal
material publications,'' and ``overseas publications,'' with emphasis
on regulating publishing, printing and distribution of religious ``internal
publications'' and ``overseas publications.'' And this chapter has been
reserved intact in the new RRA.
Article 12 of the previous Zhejiang RRA before the promulgation of
the new ``Regulations Governing Printing'' and ``Regulations Governing
Publication'' states, ``printing, publishing, and distribution of
religious books and periodicals, religious printed materials, and
religious audio-visual products shall obtain authorization from the
Department of Religious Affairs of the province and approval from the
Department of the Press of the province'' has been amended to Article 5
Clause 1: ``publication of openly circulated religious publications
shall be conducted according to regulations by the Publishing
Administration of the state,'' and Clause 2 states: ``internal
religious materials compiled by religious groups and temples/churches
shall obtain authorization from the Administration of Religious Affairs
of the province and issuance of a ``printing permit'' from the
Administration of the Press of the province.'' This amendment has
similarly divided religious publications into ``open circulation
publications'' and ``internal material publications,'' and the latter
needs to undergo dual authorization from both the Administration of
Religious Affairs and the Administration of the Press of the province.
It can be seen that religious publications, especially internal
material publications, have become the emphasis of religious
regulation; this is precisely the newly formulated regulative measure
targeting independent Christian house churches that print and produce
in quantities larger than the publishing regulation order in China.\34\
V. CONCLUSION
From analyzing the content changes in legal clauses of the RRA's of
Beijing, Zhejiang, and Shanghai before and after their amendments, this
paper argues that the Chinese government, at the central and local
levels, has shifted the regulative emphasis on religious activities
from the singular target of religious activities sites to more
comprehensive religious undertakings: the system of integrated
regulation of religious activities, the identity qualification system
of a religious faculty, the review and approval system of establishing,
expanding, relocating, or constructing religious activities sites, the
review and approval of religious publications especially internal
material publications, the permission mechanisms of cross-regional
religious activities, the system of integrated regulation of religious
activities sites, the system of application and approval and preventive
measures regarding large scale religious activities, the permission
procedures for large outdoor religious statues, legal liabilities
especially the formal provision allowing forceful demolition of
unauthorized religious buildings, etc. All these result in more
comprehensive, rigid and diverse regulation measures.\35\ Although this
regulation is merely an ``administrative and regional law,'' the
promulgation of the unconstitutional National RRA and the amendment or
establishment of Regional RRA's symbolize the formal establishment of
the system of ``legally regulating religion'' due to the fact that
Chinese citizens do not enjoy freedom of assembly, the judicial system
is not independent, the People's Congress does not have adequate
representation, and there is no review or litigation system for
unconstitutionality.
ENDNOTES
\1\ ``Certified religious professionals can preside over religious
activities in venues of religious activities.''
\2\ Article 16: ``Religious professionals registered on record of
this municipality going to other places to preside over religious
activities, or religious professionals from other locations coming into
this municipality to preside over religious activities, shall obtain
prior approval of the municipal religious organizations and report to
the religious affairs administrative departments of the People's
Government of the Municipality, or District or County for record
keeping.'' Also see amendments to Article 26 below.
\3\ ``Personnel who are not certified and registered on records or
who have been removed from the status of religious professionals shall
not preside over religious activities,'' has been changed to
``personnel who are unqualified to be religious professionals or whose
credentials do not fit the specifications of the religion shall not
preside over religious activities.''
\4\ ``Places of religious activity shall strengthen internal
management and shall, in accordance with the provisions of relevant
laws and regulations, establish sound systems of management in the
areas of personnel, finance, accounting, security, fire control,
cultural relics protection, health, and epidemic prevention. They shall
accept guidance, supervision, and inspection from concerned departments
of the People's Government.''
\5\ ``Venues of religious activities shall establish sound
administrative organizations and systems and accept the annual
inspection from the administrative department of religious affairs of
the people's government of the local district or county.''
\6\ ``If a unit or individual intends to remodel or build a new
structure at a place of religious activity, or intends to establish a
site for commercial services, to hold an exhibition, or to shoot film
or television footage, it shall first obtain consent from said place of
religious activity and from the department of religious affairs of the
local People's Government at the county level or higher.''
\7\ Adding a new structure, conversion or extension of buildings,
establishing a site for commercial services, holding an exhibition, or
shooting film or television footage within the range of management of a
place of religious activity must obtain consent from the administrative
organization of the place, and the Administration of Religious Affairs
of the Municipality or District and County, and undergo necessary
procedures at the department concerned.
\8\ Article 1: The religious group or temple/church which intends
to organize a large-scale religious event that crosses provincial,
autonomous region, or directly administered municipality boundaries and
exceeds the capacity of the place of religious activity, or intends to
hold a large-scale religious event outside of a place of religious
activity, shall submit an application to the religious affairs
department of the People's Government of the province, autonomous
region, or directly administered municipality in which the religious
event is to be held at least 30 days prior to the date when the event
is to be held. The religious affairs department of the provincial,
autonomous region or directly administered municipality People's
Government shall make a decision to approve or not to approve within 15
days of receipt of said application. Article 2: The large-scale
religious event shall be conducted pursuant to the requirements
recorded on the notice of approval and without deviation from religious
ritual. It shall not contravene the provisions of articles 3 and 4 of
these regulations. The organizing religious group or temple/church
shall take effective measures to prevent accidents. The departments
concerned of the township People's Government and county and higher-
level local People's Governments for the area in which the large-scale
religious event is to be held shall, in accordance with their
respective official responsibilities, provide management as needed to
ensure the safety and orderly progress of the large-scale religious
event.
\9\ Organizing large-scale religious event shall obtain consent
from religious groups of the municipality and report to and obtain
approval from the religious affairs department of the People's
Government of the Municipality or District or County according to
relevant regulations of the Municipality, and fulfill relevant
procedures.
\10\ ``Buildings and structures used by places of religious
activity for religious activity and the appurtenant living quarters of
religious instructors may not be assigned to another party, mortgaged,
or used as investment in kind.''
\11\ ``Religious organizations and places of religious activity can
lease and assign religious real estate or utilize religious real estate
for other business purposes according to relevant regulations of the
state and this municipality.''
\12\ Article 47 has been amended to read: ``violation of provisions
in Articles 9, 14, 16, 18 and 27 of this Regulation and falls within
any one of the following situations, shall be annulled or ordered to
stop activity, or be given a warning, or have illegal earnings seized
if any, or have unlawful buildings or structures dealt with according
to relevant laws and regulations, or be inflicted with security
administrative penalty if any, by the religious affairs department of
the People's Government of the this municipality or district or count,
and other departments concerned: (1) Establishment of religious
academies or schools or holding training classes without authorization;
(2) Having personnel unqualified for religious faculty or non
conforming with requirements of the religion to preside over religious
activities; (3) religious faculty from outside of the region coming to
this municipality to preside over religious activities or religious
faculty of this municipality coming to other regions to preside over
religious activities without obtaining consent from religious groups of
this municipality and reporting to the religious affairs department of
the People's Government of the municipality or of district or county
for record keeping; (4) establishment of place of on religious
activities without authorization; and (5) conducting evangelization
outside of places of religious activities, or erecting religious stand
or statue at public places without authorization.'' Article 48 has been
amended to read: ``Violation of provisions in Article 36 of this
Regulation, non-religious organizations or places of non- religious
activities receiving offerings, donations or other religious
contributions, shall be ordered by the religious affairs department of
the People's Government of the municipality or of the district or
county,; and have unlawful earnings seized if any; and be inflicted
fines of three times of unlawful earnings.''
\13\ Article 2 Clause 2: ``The religious affairs mentioned in this
regulation refer to the social public affairs that exist between
religion and the state, society, and citizens.''
\14\ Article 7 ``People's Government at various levels shall
safeguard the legal rights and interests of religious groups, places of
religious activities, religious faculty, and religious citizens, hear
the opinions from religious groups, places of religious activities,
religious faculty, and religious citizens, coordinate administration of
religious affairs, and guide religion to be in conformity with the
socialist society''
\15\ Article 8 of the amended Shanghai RRA has similar statement.
\16\ See amended Shanghai RRA Article 6 Clause 4.
\17\ Amended Zhejiang RRA Article 8 Clause 3.
\18\ Amended Zhejiang RRA Article 11 Clause 2.
\19\ Amended Zhejiang RRA Article 19 Clause 1, Clause 2.
\20\ Clause 1, Clause 2, Clause 3.
\21\ Amended Zhejiang RRA Article 35. Article 36 Clause 1, Clause
2.
\22\ Old Regulation Article 28. This statement may be interpreted
as meaning citizens cannot carry out personal religious activities in
their homes.
\23\ Amended Zhejiang RRA Article 36 Clause 2.
\24\ Original Zhejiang RRA Article 32. National RRA Article 22
Clause 1.
\25\ Amended Zhejiang RRA Article 38 Clause 1, Clause 2, Clause 3.
\26\ National RRA Article 22 Clause 2.
\27\ Amended Zhejiang RRA Article 45.
\28\ National RRA Article 43 Clause 1.
\29\ Amended Zhejiang RRA Article 46.
\30\ The previous RRA of Beijing was promulgated July 18, 2002 and
enforced November 1 the same year.
\31\ ``Regulations Governing Printing'' (promulgated 19970308,
enforced 19970501, annulled); ``Regulations Governing Printing (Sate
Council Order No.15, promulgated and enforced August 2, 2001)
``Regulations Governing Publication'' (promulgated 19970102, enforced
19970201, annulled); ``Regulations Governing Publication,'' (enforced
20020201)
\32\ ``Regulations Governing Printing'' (Sate Council Order No.315,
promulgated and enforced August 2, 2001) Article 18 Clause 1:
``Printing enterprises accepting orders for printing internal material
publications must verify the presence of the print permit issued by the
administration of the press of the local people's government at the
county level or above.'' Clause 2: ``Printing enterprises accepting
orders for printing internal material publications with religious
content must verify the presence of the authorization paper from the
religious affairs administration of the People's Government of the
province, autonomous region or directly administered municipality and
the print permit issued by the administration of the press of the
people's government of the province, autonomous region or directly
administered municipality.'' Clause 3: ``the administration of the
press shall decide, within 30 days of receipt of the application for
printing of internal material publications or for printing internal
material publications with religious content, on whether it will grant
the print permit or not, and notify the applicant; No decision beyond
the period shall be deemed consenting to the application.''
\33\ For example, ?State Council-Transmitted Report of the General
Administration of Press and Publication and Other Work Units' Work on
the Prevention of Abuse in Compiling and Printing of Books and
Magazines and Strengthening Publishing Management Work?(1980-06-22)
stipulates that ``printing of calendars and hanging calendars must be
approved by the competent departments at the provincial level or
higher.'' ``No printing house may make printing plates for or publish
books or magazines not authorized by publishing units without approval
from top-level provincial publishing administration organs.''
\34\ See National RRA Article 7 Clause 1: ``religious groups may,
in accordance with relevant state regulations, compile and print
publications for internal religious use. The publication of publicly
distributed religious publications shall be subject to regulations
governing publications.'' Clause 2: ``Published materials that contain
religious information shall comply with the Regulations Governing
Publication and shall not contain the following: (1) That which would
upset harmonious relations between religious citizens and non-religious
citizens; (2) that which would upset harmony between different
religions or within a religion; (3) that which discriminates against or
insults religious citizens or non-religious citizens; (4) that which
propagates religious extremism; and (5) that which violates the
principle of religious autonomy and independence.''
\35\ The case of Cai Zhuohua ``unlawful business operations crime''
in 2005, the case of Wang Zaiqing ``unlawful business operations
crime'' in 2006, and the case of forceful removal of Dangshan church
building of Xiaoshan, Zhejiang--believers suspected of ``violent
resistance of law enforcement'' arrested, are all proofs.
______
Prepared Statement of James Tong
november 20, 2006
The Regulations on Religious Affairs in China: Provincial Regulations
and Implementation--November 2004-November 2006
In the post-Mao reform era, regulations on religion has been a
balancing act between the Chinese regime's felt need to control
religious activities on the one hand and to provide religious freedom
on the other. While religion remains under state management where all
religious organizations (RO) and religious venues (RV) need to be
registered, schools of religious affairs approved, foreigners cannot
proselytize, and the state can order RO's to remove heads of RV it
deems to have breached its laws, the overall trend has been incremental
relaxation of the state's restriction on religion, at least since March
1982, when the Central Committee issued the historic Document 19 on
religious policy.\1\ In the past two decades since then, the gentler
and kinder policy enunciated in that document has resulted in widening
ideological and administrative autonomy of RO's, fewer limitations on
religious activities and venues, more rigorous protection of religious
property, increasing latitude for RO's to interact with their overseas
counterparts, and greater circumscription of the power of government
agencies to rule of law.
I. NATIONAL AND PROVINCIAL RELIGIOUS REGULATIONS
These benign developments are codified in the ``Regulations on
Religious Affairs'' (hereafter ``Regulations'') promulgated by the
State Council on November 30, 2004. As the first comprehensive set of
central government statutes on religion in the reform period, the
Regulations stipulate clear administrative norms to manage religious
affairs, place the latter in the system of existing laws in China, and
introduce provisions for administrative appeal and judicial challenge.
They replace the existing micro-management system by Religious Affairs
Bureau's (RAB) toward macro supervision by rule of law through reducing
the number and type of religious activities that require prior official
approval, omitting requirements for religious organizations to support
Communist and state ideology, granting the right of RO's to
certify its religious personnel, permitting RO's to receive
contributions from domestic and extra-territorial donors, and
stipulating more rigorous protection of religious property.
Comparison of national vs. provincial regulations
Since the promulgation of the ``Regulations'' in November 2004, six
provincial-level units (hereafter provinces, viz, Beijing, Shanghai,
Zhejiang, Henan, Shanxi, Hunan) have promulgated new or amended
religious regulations, efforts for an additional four (Chongqing,
Hebei, Jiangxi, Liaoning) have also been underway.\2\ The six new
provincial religious regulations have generally left out the State
Council Regulations on international and national level policies,
omitting those that govern religious exchange among the mainland,
Taiwan, Hong Kong and Macau (Art. 47), those on the selection of the
Dalai Lama and Catholic bishops (Art. 27), those regulating the
activities of national level religious organizations (The Three-Self
Church organizations), national level policies relating to organizing
pilgrimages for Chinese Muslims (Art. 11), as well as the sending and
receiving students of religious schools to and from China and overseas
RO's (Art. 10).
But provincial omissions go beyond issues of jurisdictional
authority. Most provincial regulations also omit the State Council
stipulations that undercut their political and economic power. Of the
six provinces, only Shanghai echoes the State Council regulation
stating the right of RO's and individuals to contest the decisions of
the local RAB's through administrative appeal and judicial challenge in
courts (Art. 46). Only Beijing legislates against the encroachment of
the legal rights of RO's, RV's and citizen believers at the pain of
civil and criminal liability (Art. 39). Provincial omissions of State
Council regulations are also conspicuous in issues on protecting
religious property. The State Council stipulation that local land
management bureaus need to consult the local RAB's in proposed changes
over the land use of RV's (Art. 31) are omitted in all the provincial
regulations. The entire section of the SARA document on protecting
religious property is totally omitted in the Henan and Shanxi
regulations. Only Zhejiang incorporates the State Council stipulation
that ``assessed market value'' be used as the criteria for compensating
religious property removed for urban development and major construction
projects (Art. 43).
On the other hand, provincial regulations also include provisions
protecting religious rights not in the State Council regulations. All
six provinces legislate the right for believers to practice religions
in their homes. Shanghai, Zhejiang and Hunan stipulate that religious
personnel are eligible to participate in the social security program.
In addition, Shanghai also entitles students of religious schools after
three years of local service to apply for local residence in the
metropolis, a much coveted status (Art. 36). Zhejiang requires local
authorities to consult with religious organizations in determining the
price of admissions of tourist sites related to religious venues (Art.
30), while Hunan stipulates occupational discounts for religious
personnel visiting tourist sites related to their own RO's (Art. 23).
Comparison of old vs. new provincial regulations
To what extent has the new set of provincial regulations amended
obsolete provisions and adopted the new regulations of the State
document? Of the six provinces which have promulgated religious affairs
regulations since March, 2005, four (Beijing, Shanghai, Zhejiang,
Hunan) have also an earlier set of regulations with which we can make
the comparison. The overall trend is one of relaxation of state control
of religious organizations, regulation by rule of law rather than by
local religious affairs bureaus, and recognition of the rights of
religious organizations. Compared to the earlier set of regulations,
there is not a single provision in these four provinces where new
limits on religious rights and freedoms are imposed and tighter control
over religious organizations are decreed.
First, state power is more circumscribed in the new provincial
regulations. The powers of the local religious affairs bureau over
religious organizations are defined as those of ``directing,
coordinating, managing, and oversight'' in the new Shanghai regulations
(Art. 6). Two other sets of more interventionist powers (inspecting,
supervise and urge [ducu]) in the 1995 Shanghai regulations were
dropped in the definition. The requirement that religious organizations
need to educate religious personnel and believers in ``patriotism,
socialism and rule of law'' in Zhejiang's 1997 regulations (Art. 11)
has been reduced to those of ``patriotism and rule of law'' in its 2006
version (Art. 14).
At the same time, some rights of religious organizations have
received greater
recognition in the new regulations. Zhejiang province adds a reference
to the new right of religious organizations to construct large-scale,
outdoor religious icons in its 2006 statutes (Art. 31) that was not in
its 1997 version. Those of Hunan province introduces a new provision
that religious organizations can accept extra-territorial donations
(Art. 38), that was absent in its old version. Those of Shanghai adds
the stipulation that infringements on the legal rights of religious
organizations, venues and believers will receive administrative penalty
or civil liability (Art. 51).
There is more positive recognition of the good deeds of religious
personnel and their social service programs. Hunan adds the provision
that religious organizations, venues, and personnel that have made
significant contributions to the national and public interests should
receive official commendation and encouragement (Art. 7). Instead of
stating minimally that RO's ``should be allowed to establish social
services'', the new version in Zhejiang province now states in more
positive terms that ``they should be encouraged'' to undertake such
activities (Art. 13).
Two poles of provincial regulations: Shanxi vs. Shanghai
Of the six sets of provincial regulations, those of Shanxi are more
restrictive than those of the State Council and other provinces. Shanxi
is the only province of the six that did not have any set of provincial
regulations on religious affairs prior to the promulgation of the State
Council document. It is one of the two provinces (with Henan) that does
not have a section on protection of religious property. While the RAB's
of the other five provinces have user-friendly websites listing
policies and regulations, on-line applications and downloadable forms,
the Shanxi RAB does not have a website. On the process of certifying
religious personnel and appointing important positions in religious
organizations, the State Council stipulates that the power to make
those decisions rests with the RO, which are required only to notify
the local RAB's to report to record [bei an] their decisions (Art. 28).
Thus only post-hoc notification is required, as also minimally
stipulated in the five other provinces. Shanxi, however, stipulates
that their certification would be determined by the regulations set by
the Provincial RAB, and that the RO's need to notify the local RAB's
before they can issue the certificate. The power of local RO's in
certifying religious personnel is thus encumbered and there are
additional regulatory hurdles for the RO's to complete the process. On
important positions in religious organizations, Shanxi further requires
that the RO's need to notify the local RAB's before they can appoint or
remove these positions, while other provinces do not have this
restriction. On local religious personnel being invited to officiate
religious functions outside the province, the State Council document
does not impose any condition, but all provinces stipulate that the
provincial religious organizations need to approve such invitation.
Shanxi requires further that local religious organizations need to
inform the local religious affairs bureau 15 days before the visits
take place (Art. 19). Neither the State Council nor the five provinces
stipulate restrictions on religious, cultural, or academic exchange
activities organized by local religious organizations, but Shanxi
requires the latter to inform the local RAB's on the time, location,
and content of the planned activities (Art. 24). For activities
involving religious organizations outside China, Shanxi is the only
province that requires a 15-day advance
notice on the time, location, content, size, participating
organizations, and description of the extra-territorial religious
organization (Art. 24). It is also one of only two provinces (with
Zhejiang) that stipulate rules for cross-county religious activities
(Arts. 23), and one of three provinces (with Henan and Zhejiang) that
requires prior permission of the local religious affairs bureau to
organize training sessions for religious personnel and believers (Art.
25).
In contrast, the Shanghai regulations incorporate most provisions
in the State Council document that protect religious organizations,
even including some that are unique in the national and provincial
regulations. It is the only province that provides for administrative
appeal and judicial challenge against the local religious affairs
bureau (Art. 59). It is also the only province stipulating protection
and control areas for religious buildings designated as national or
important municipal historical buildings (Art. 41) When the national
and four of the six provincial regulations do not have a section on
foreign religious relations, Shanghai and Beijing have such sections
(Chap. 8). Shanghai is the only set of provincial regulations that
states that foreign nationals can participate in religious activities
in local religious venues, that the latter can also perform religious
activities at the request of foreign nationals, that foreign religious
professionals visiting China in that capacity can preach and give
homilies in local religious venues, that foreign nationals (not
necessarily religious personnel) can engage in cultural and academic
activities with local religious organizations (Arts. 45, 46, 48). It is
not clear whether State Administration for Religious Affairs (SARA)
would consider Shanghai or Shanxi be the norm for provincial
regulations, but of the six, it only lists the Shanghai regulations and
in full text in its website.
II. IMPLEMENTATION
In implementation, both the central and provincial governments have
issued supplementary regulations. In the two years since the
promulgation of the ``Regulations'', SARA has issued the ``Methods for
approving and registering Religious Venues'' (April, 2005), while six
provinces have promulgated their own religious affairs regulations as
noted earlier. Aside from legislative activities, three issues have
engaged the attention of religious affairs authorities. First, close to
half of the provinces have proposed local regulations for registering
RV's, in particular, those on distinguishing the traditional
established religious venues from other fixed places of worship.\3\
Second, both central and provincial agencies have to create new policy
instruments to implement the ``Regulations''. To standardize the
procedures for registering RV's, SARA has to design the registration
certificate and companion forms. To codify the local RAB approval
procedures, it has also proposed tentative regulations on the
conditions, process, and bureaucratic time-lines for approving the
establishment of religious schools, training seminars for the
``Regulations'', the sending and receiving students of religious
schools, and the convening of cross-county religious activities.\4\ At
the province level, religious venues are required to create its
financial control and accounting system to be eligible for
registration. In Jiangsu province in 2006 alone, more than 600 person-
classes were organized to train the staff in religious organizations to
learn such systems. The RAB and the Provincial Finance Bureau of
Liaoning have jointly developed and tested a pilot project on
``Accounting System for the Private, Non-Profit Sector'' for adoption
by RAB's of the
entire province.\5\
Third, several central and provincial agencies have adopted
measures to protect the economic interests of the religious
communities. Shanghai is working on its draft regulation on ``Methods
for the participation of religious personnel in social security
programs'', while Jiangsu has produced its ``Opinions on the living
standards and social security of religious personnel''. Chongqing
Municipality has reportedly resolved the problem of social security for
religious personnel. Beyond social security, several State Council
ministries have resolved to provide half-fare for students of religious
schools for home visits during the Chinese New Year, and to offer
discount admissions for religious personnel at religious tourist
sites.\6\ How two provinces managed the problem of religious property
will be discussed in the following section on Challenges.
Increasing autonomy in religious education
In addition, religious organizations have reported increasing
autonomy in religious education. The Religious Affairs Regulations have
legitimized the process of Chinese religious organizations sending
religious students for training abroad, a process that used to be done
covertly. For the first time, the Protestant Church
organized its own nation-wide examination, selecting over 10 religious
students from more than 30 candidates to be trained overseas in 2006,
while the Catholic Church also chose its own religious students by
interviewing for overseas training. Both Christian churches report that
SARA had no role in the selection process, and only provided assistance
to get their passports. In the 2006 academic year, there are around 300
Catholic priests, nuns, and seminarians from China enrolled in
religious studies programs in the Philippines, Korea, Germany, Italy,
Belgium and the United States. Conversely, both the Protestant and
Catholic seminaries have invited foreign theologians to lecture in
their institutions. Also in the current academic year, the Protestant
Nanjing Seminary has theology faculty visiting from Germany (2), Canada
(2), the United States (1), and Finland (1); while Catholic seminaries
have hosted over 20 visiting theologians from the United States,
Germany, Korea, Spain, Ireland, Malta and Thailand. At least the
Catholic Church reports that there was no prior screening by SARA, and
neither the national Patriotic Church nor RAB sent representatives to
observe the classes. At a more institutionalized level, the Protestant
National Seminary in Nanjing has established a program of pastoral
counseling with the Fuller Seminary of Pasadena, California. A related
development is the substantial support the central and local
governments provided to the Christian churches in constructing their
seminaries. The Protestant National Seminary in Nanjing has received a
new land grant from the Jiangsu provincial government for its new
seminary that can house 1,000 religious students. Inaugurated in
September, 2006, the new Catholic Seminary at the Daxing County in the
outskirts of Beijing is a four building campus with 200,000 sq. ft. of
floor space constructed with a land grant of 12 acres and monetary gift
of Y73 million from the Beijing municipality.
In contrast to the Maoist policy of restricting religious
activities to worship inside religious venues, the Christian churches
are not only allowed but encouraged to undertake social services, as
stated in the Zhejiang regulations. Both the Protestant and Catholic
churches have revived their traditional charitable works in
establishing and operating orphanages, homes for the elderly, medical
clinics and kindergartens. Presently, the Catholics manage 22
kindergartens, 20 orphanages, 10 homes for the aged, 4 hospitals, 174
health clinics, and co-managed 2 leprosy institutions. In addition to
operating 150 health clinics and close to 100 homes for the elderly,
the Protestants have been managing a thriving network of YMCA's in
Beijing, Tianjin, Hangzhou, Nanjing, Guangzhou, Chengdu and Wuhan
offering English, computer classes and exercise facilities, some of
which have been in operation for over 20 years. While religious
organizations are still not permitted to
establish their own elementary to graduate schools, the Protestant
church has established vocational schools, and a boarding school for
Autism in Qingdao that uses the Christian Bible as part of the official
curriculum. Both Protestant and Catholic educational institutions
outside China have established joint partnerships with China's leading
colleges. A consortium of Jesuit Business Schools has a joint program
with the Guanghua School of Management at Beijing University for many
years. In September, 2005, the Baptist University of Hong Kong and the
Beijing Normal University inaugurated an International College in its
Zhuhai campus that enrolls both Chinese and Hong Kong students. Unlike
all other colleges in China, the International College does not have
organizations of the Chinese Communist Party, and political education
is not a required subject.\7\
III. CHALLENGES
Central vs. local authority
As evident in the substantial variations of provincial regulations,
the first challenge to the new regulatory regime for religion is one of
local compliance, where local RAB cadres may be unwilling or unable to
implement the new regulations. The issue is more than simply local
active opposition or passive resistance to central policy objectives.
In the constitutional framework of China, provincial and municipal
legislatures are vested with legislative powers to enact local laws and
regulations, provided these are not in contradiction to the state
constitution, state laws and administrative regulations.\8\ In the
realm of religious affairs, SARA, as a central government agency, has
jurisdiction over national and international religious policy, and
manages the national-level religious organizations. Local religious
affairs, including the registration of religious organizations and
venues, falls within the jurisdiction of the local RAB's. As
administrative law promulgated by the State Council, the Religious
Affairs Regulations is more authoritative than provincial regulations
in China's hierarchy of laws when one contradicts the other,\9\ but
much of the variations noted earlier do not pertain to direct statutory
conflict. Shanxi and Henan are not breaching China's Legislative Law if
their religious regulations do not stipulate the ``Regulations''
protection of religious property, as are all six provinces if they do
not include the provision for administrative appeal and judicial
challenge in their regulations. When cases arise, religious
organizations can still base their legal claims on the State Council
regulations. The absence of these provisions in provincial regulations
does suggest that local authorities maybe predisposed to safeguard
their own power and interest when these conflict with those of
religious organizations that the ``Regulations'' aim to protect.
Bureaucratic conflict
Second, religious policy in China is no longer only an issue
between the RAB's and the RO's, but has become increasingly entangled
in a complicated bureaucratic web at both the central and local levels
where benefits and burdens have to be bargained and turf wars fought.
To illustrate the need for multi-agency coordination, the training
seminar on ``Regulations'', convened in Beijing in late January, 2005
for religious affairs cadres, was jointly organized by the United Front
Department, the National Public Administration College, the
Organizational Department, the Legal Affairs Office of the State
Council and SARA,\10\ while the five regional seminars were organized
by the last three agencies.\11\ The policy to provide half-fare for
religious students in home visit train-rides during the Chinese New
Year was negotiated among SARA, the Ministry of Railway and the
Ministry of Education. The notice to offer discount admission for
religious personnel at religious tourist sites was not issued by SARA,
but by the State Development and Reform Commission.\12\ As will be seen
in the paragraph that follows, bureaucratic warfare among RAB and other
local government agencies were even more vicious in cases involving
religious properties.
Protection of religious property
Third, the challenge in protecting religious property involves not
only RAB's and RO's but also local government agencies with strong
vested economic interests. Religious revival combined with growing
affluence has increased tourism and temple traffic, while the new
authorization for religious venues to receive donations has made
temples a lucrative source of revenue. At the same time, urban
development has aggravated the need to relocate temples and churches,
while the red-hot property market has attracted predators to covet
religious real-estate. The problem is complicated by three decades of
dogmatic Communist rule which legitimized the seizure of religious
property for government use, when de facto occupation trumped de jure
ownership. For many religious shrines, the question of property rights
is further exacerbated by investments of local park services and
tourist bureaus to build on and renovate these properties. It is thus
difficult to sort out ownership, management and user rights, as well as
the equity shares of the religious organizations and their new
government and non-government tenants.
Recent efforts to resolve conflicts over religious property have
been reported in Guangdong province, where three cases of ownership of
religious property languishing for more than two decades have been
settled in favor of the RO's.\13\ Jiangxi Province has also reportedly
resolved the problems of five prominent Daoist and Buddhist temples, in
a two-pronged solution on the ownership, management, and financial
problems. For ownership and management, the local township, cultural
relics and tourist departments were ordered to return the premises to
the local religious organizations. In terms of financial revenue from
tourist admissions, the local government is allowed to collect all gate
receipts until its total investments are
repaid, after which these receipts become the revenue of religious
organizations. Religious organizations will collect all religious
donations. In cases where local government agencies have currently
recovered all its investments, they are permitted to wean their
dependence on temple gate receipts gradually, beginning with 50 percent
share in the first year of the arrangement, decreasing their annual
shares until the religious organizations will get the total amount.\14\
In one of the three Guangdong cases, relocation of religious
property presents a special knotty problem. The case involves the two
hundred year old Fusheng Convent in Guangzhou which was ordered by the
city's urban development, state land administration, and housing
agencies to be demolished for urban redevelopment. Contrary to what is
stipulated in the ``Regulations'', the municipal agencies offered only
to replace the land in a site where real-estate prices were much lower.
As plaintiff, the local Buddhist association solicited the assistance
of the municipal RAB, which insisted that the new religious regulations
stipulate that the developer should also pay for the reconstruction
cost of the convent in a land parcel of equivalent size of the RO's
choice. After protracted negotiations, the developer finally agreed to
the terms of the local RAB and the Buddhist Association.\15\
For both local RAB and religious organizations, the new Religious
Affairs Regulations present a great challenge in implementation. For
RAB, the task of registering the RV's, in addition to the many new
requests for permission to be processed according to new criteria, pose
a new set of administrative burden for the local bureaucracy. To meet
these new tasks, the RAB's of nine provinces (Guangdong, Jiangsu,
Guizhou, Shandong, Hubei, Chongqing, Jiangxi, Hunan, Fujian) receive
higher budget and staff personnel allocations. To illustrate the new
work load, Jiangsu established a new office of policy and regulations
in each of its 13 municipal RAB's, and created the position of office
assistants in 1,200 out of 1,400 townships, villages and housing
blocks, in effect quadrupling the religious affairs agents from under
500 to close to 2,000 in these basic units. Shanghai seconded 350 local
cadres to receive basic seminar training on the new religious
regulations and to become certified religious affairs agents.\16\
IV. CONCLUSION
The ``Regulations on Religious Affairs'' (November 30, 2004) is a
major landmark in religious policy in China in the reform period. It is
most comprehensive in scope among the preceding set of national-level
government and party documents on religious policy issued in 1982,
1985, 1991, and 1994.\17\ It integrates the reform features in
provincial religious regulations in the past decade and broadens the
scope of liberalization. In terms of specific stipulations, the
Regulations provide, for the first time, the rights of the religious
organizations to: (1) accept financial contributions from
extraterritorial organizations or individuals; (2) produce and print
religious publications for internal distribution; and (3) construct
large, outdoor religious icons. Going beyond specific stipulations, the
Regulations move toward a new regulatory framework that sheds much of
the requirements for prior approval by the local Religious Affairs
Bureau governing activities on religious venues, religious personnel,
and contact with extraterritorial religious organizations. Instead, the
new regulatory framework is built on a much softer set of requirements
for religious organizations and venues to inform and report to local
Religious Affairs Bureaus, and for the latter to supervise and oversee,
rather than to approve and rule on specific religious activities.
As shown in the foregoing pages, there has been substantial
progress in enacting supplementary regulations at both the central and
provincial government levels. Progress has been more notable at the
central government level, where national religious organizations are
given land and monetary grants to construct national seminaries,
authorized to select religious students to receive theological training
abroad, inviting foreign theologians to lecture at Chinese seminaries.
Religious organizations are also permitted to re-establish their
traditional works of charity like orphanages, homes for the aged,
medical clinics and YMCA's, as well as venture into new apostolates
like caring for autism children. With no Communist Party organized
presence or required political education courses, the International
College in Zhuhai represents a breakthrough in joint partnerships
between Chinese universities and an outside Christian college. The
picture is less clear at the local level, where local officials have
jurisdiction over local religious affairs, and where both more
authoritarian and liberal provincial regulations have been promulgated.
It is too early to decipher the magnitude of the impact of the new
Regulations. But the direction is clear. In both statutory enactment as
well as policy implementation, and at both the central and provincial
levels, the overall trend has been one of the increasing institutional
autonomy of religious organizations, greater protection of religious
organizations, venues and personnel. Even for the more authoritarian
provinces, no retrogression toward greater restriction on religious
freedom is evident either in the legislative stipulations or policy
enforcement of its new provincial regulations. To date, a great
majority of provinces has not enacted new religious affairs
regulations, but for the six that have, they promise an even more
benign milieu for religion in China.
ENDNOTES
* I am indebted to the following who have contributed information
for this statement: Dr. Danny Yu of the Christian Leadership Exchange
of Arcadia, California, Mr. Liu Bainian of the China Patriotic Catholic
Association, Rev. Deng Fuchuan of the Nanjing National Seminary, the
Policy and Regulations Department of the State Administration of
Religious Affairs of the People's Republic of China, and the Holy
Spirit Study Center of the Catholic Diocese of Hong Kong.
\1\ Central Committee of the Chinese Communist Party, ``The Basic
Viewpoint and Policy on the Religious Question during our country's
socialist period,'' Document 19 (March 31, 1982), in Mickey Spiegal and
James Tong eds., Chinese Law and Government (March-April, 2000), pp.
17-34.
\2\ ``Xin Fagui, Xin Jinzhan--`Zongjiao shiwu tiaoli' shisi
yinianban zongshu'' [New Regulations, New Progress--General report on
the implementation of the ``Religious Affairs Regulations'' after one
and a half years], SARA, unpublished memo, circa June 2006 (hereafter
SARA, 2006), p. 2.
\3\ SARA (2006), p. 2.
\4\ SARA (2006), p. 2.
\5\ Ibid., p. 6.
\6\ Ibid., pp. 2-3.
\7\ Personal communications with the Executive Vice President of
the International College, August, 2005.
\8\ ``The Legislative Law of the People's Republic of China'', Art.
33.
\9\ Ibid., Art. 79.
\10\ Xinhua, Beijing, January 26, 2005.
\11\ Zhongshan ribao, January 14, 2005; Shaanxi ribao, January 30,
2005.
\12\ SARA (2006), pp. 2-3.
\13\ SARA (2006), p. 3.
\14\ SARA (2006), p. 5.
\15\ SARA (2006), p. 10-12.
\16\ SARA (2006), pp. 6-7.
\17\ James Tong, ``A New Framework for State-Religious Relations:
the Regulations on Religious Affairs in China, March 2005'', presented
at the Forum on China's Regulations of Religious Affairs, Fuller
Seminary, Pasadena, California, March 2, 2005, p. 19.