Skip to main content Accessibility help
×
Home

FREEDOM IN HANDCUFFS: RELIGIOUS FREEDOM IN THE CONSTITUTION OF CHINA

  • Songfeng Li (a1)

Abstract

Article 36 of the Chinese Constitution tells only part of the story about religious freedom in China. The Chinese constitution establishes five restrictions on the religious freedom described in Article 36. First, the Chinese Constitution establishes state atheism as an official ideology. All Chinese citizens, whether religious believers or not, are required to be educated in Marxist ideology and under the leadership of the Chinese Communist Party. Second, religious freedom, along with other rights in the Chinese Constitution, are merely legal rights, rather than fundamental rights. The National People's Congress can therefore pass legislation limiting individuals’ religious freedom. Third, the Chinese Constitution enumerates basic obligations of citizens that limit religious freedom. Fourth, Article 36 protects only the inner freedom of religious belief, not freedom for religious practice. Finally, the second half of Article 36 places limitations on religious practices. Religious freedom in the Chinese Constitution is thus a highly limited freedom. To improve religious freedom protections in China it is necessary to amend the Constitution rather than simply promote full implementation in its current form.

Copyright

References

Hide All

1 Eric Carlson shows how the religious regulations are used to “constrain religion within government-set parameters rather than to protect freedom of religious belief.” Carlson, Eric R., “China's New Regulations on Religion: A Small Step, Not a Great Leap, Forward,” Brigham Young Law Review 2005, no. 3 (2005): 747–97, at 781. See also United States Department of State, Bureau of Democracy, Human Rights and Labor, “China (Includes Tibet, Hong Kong, and Macau) 2017 International Religious Freedom Report,” in International Religious Freedom Report for 2017, https://www.state.gov/reports/2017-report-on-international-religious-freedom/china-includes-tibet-hong-kong-and-macau/.

2 Human Rights Watch, “China and Tibet,” in World Report 2002, 205–15; Amnesty International, People's Republic of China: The Crackdown on Falun Gong and Other So-Called “Heretical Organizations,” March 23, 2000.

3 See Zongjiao Shiwu Tiaoli (宗教事务条例) [Regulations on Religious Affairs] (promulgated by the State Council, July 7, 2004, effective March 1, 2005; rev'd by the State Council, June 14, 2017, effective February 1, 2018) art. 44, 2017 State Council Gazette, no. 26. (http://www.gov.cn/gongbao/content/2017/content_5225861.htm); Beijing Shi Zongjiao Shiwu Tiaoli (北京市宗教事务条例) [Regulation on Religious Affairs in Beijing Municipality] (promulgated by the Standing Committee of the People's Congress Beijing Municipality, July 18, 2002, effective Nov. 1, 2002; revised by the Standing Committee of the People's Congress of Beijing Municipality, July 28, 2006), article 27, 2006 Gazette of Beijing Municipal People's Government 9, at 11.

4 “Chinese Government Accused of Burning Crosses in Christian Crackdown,” CBS News, March 10, 2016, https://www.cbsnews.com/news/china-communist-party-crackdown-on-christians-religious-freedom/.

5 Levi Browde, “After 17 Years of Persecution, Falun Gong Survives,” Diplomat, July 21, 2016, https://thediplomat.com/2016/07/after-17-years-of-persecution-falun-gong-survives/. Of course, discussing Falun Gong raises the vexed question of the definition of “religion.” Falun Gong has been discussed as an ideology, as a form of qigong, as an ethical code, as a religion, and in relation to other issues; Shiping, Hua and Ming, Xia, “Guest Editor's Introduction,” in “The Falun Gong: Qigong, Code of Ethics, and Religion,” special issue, Chinese Law & Government 32, no. 6 (1999): 513, at 5. However, the Western world has always regarded Falun Gong as a religion and condemned China's violation of the religious freedom of Falun Gong practitioners; US Department of State, “China (Includes Tibet, Hong Kong, and Macau),” 2. Benjamin Penny provides some good reasons to define Falun Gong as a modern Chinese religion by seriously examining Falun Gong teachings, beliefs, practice, and its history. Penny, Benjamin, The Religion of Falun Gong (Chicago: University of Chicago Press, 2012), 2435.

6 Bao Guohua, a Protestant pastor, and his wife, Xing Wenxiang, were sentenced to fourteen and twelve years in prison, respectively, in 2016; Edward Wong, “Pastor in China Who Resisted Cross Removal Gets 14 Years in Prison,” New York Times, February 26, 2016, https://www.nytimes.com/2016/02/27/world/asia/china-zhejiang-christians-pastor-crosses.html. Jin Tianming, the lead pastor of Shouwang Church in Beijing, has been under house arrest since 2011, and more than one hundred churchgoers were detained because they were trying to hold an outdoor prayer service after having failed to secure permission to open a church; Barbara Demick, “Chinese Police Detain Members of Unregistered Church,” Los Angeles Times, April 11, 2011, https://www.latimes.com/local/la-xpm-2011-apr-11-la-fg-china-church-crackdown-20110411-story.html. Bishop Thaddeus Ma Daqin, a Shanghai Catholic bishop, was under house arrest after dramatically resigning from the government-controlled Catholic Patriotic Association during his ordination at St. Ignatius's Cathedral in Shanghai in 2002. See Andrew Jacobs, “China Reportedly Strips Shanghai Bishop of His Title,” New York Times, December 12, 2012, https://www.nytimes.com/2012/12/13/world/asia/china-is-said-to-strip-shanghai-bishop-of-his-title.html.

7 For example, Fenggang Yang offers a broad overview of the Chinese religious situation and proposes a triple-market model: “a red market (officially permitted religions), a black market (officially banned religions), and a gray market (religions with an ambiguous legal/illegal status).” Yang, Fenggang, “The Red, Black, and Gray Markets of Religion in China,” Sociological Quarterly 47, no. 1 (2006): 93122, at 97.

8 Of course, “freedom of religious belief” is an official translation of the Chinese constitution. National People's Congress of the People's Republic of China, http://www.npc.gov.cn/englishnpc/constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.shtml. In the discussion that follows, I show that the Chinese Constitution sets a series of restrictions on religious activities in order to prevent religious influence on politics and society. In this regard, it would be more accurate to translate the concept in Article 36 as “freedom from religion.”

9 See Zongjiao Shiwu Tiaoli (宗教事务条例) [Regulations on Religious Affairs] (promulgated by the State Council, July 7, 2004, effective March 1, 2005; revised by the State Council, June 14, 2017, effective February 1, 2018) articles 8, 44, 45, 55, 56 and 59, 2017 State Council Gazette, no. 26. (http://www.gov.cn/gongbao/content/2017/content_5225861.htm).

10 Jones, William C., “The Constitution of the People's Republic of China,” Washington University Law Quarterly 63, no. 4 (1985): 707–35, at 710.

11 Deva, Surya, “The Constitution of China: What Purpose Does It (Not) Serve?Jindal Global Law Review 2, no. 2 (2011): 5577, at 74; Shigong, Jiang, “Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China,” Modern China 36, no. 1 (2010): 1246, at 13.

12 See Clarke, Donald C., “Puzzling Observations in Chinese Law: When Is a Riddle Just a Mistake?,” in Understanding China's Legal System: Essays in Honor of Jerome A. Cohen, ed. Hsu, C. Stephen (New York: New York University Press, 2003), 93121, at 105; Cai Dingjian, “Xianfa Zhidu de Fazhan yu Gaige” [Development and reform of the constitutional system], Ling Dao Zhe, no. 25 (2008), http://reading.caing.com/105849/105893.html.

13 Qianfan, Zhang, “A Constitution without Constitutionalism? The Paths of Constitutional Development in China,” International Journal of Constitutional Law 8, no. 4 (2010): 950–76, at 952.

14 See generally Law, David S. and Versteeg, Mila, “Sham Constitutions,” California Law Review 101, no. 4 (2013): 863952.

15 For example, according to Carl Minzner, “on paper, the Chinese constitution recognizes a range of civil rights, including the freedom of association, religion, and speech, as well as equal rights for women and guarantees against unlawful deprivation of personal freedom. But the lack of any mechanisms to enforce the constitution, combined with official efforts to ensure continued party control over Chinese society, mean that many of these provisions have little value in practice.” Minzner, Carl, “China,” in Countries at the Crossroads 2011: An Analysis of Democratic Governance, ed. Dizard, Jake, Walker, Christopher, and Tucker, Vanessa (Washington, DC: Freedom House, 2012), 136. Similarly, Eric Kolodner writes, “the absence of an independent judiciary further ensures the Party's monopoly over constitutional interpretation. Because no entity can enforce the Constitution against high political authority, the government is under no pressure to respect citizens’ constitutional liberties. The nonjusticiability of the Constitution allows government officials to violate citizens’ religious rights with impunity.” He goes on to note that the “1982 Constitution does not even allow citizens to appeal to the Procurate for alleged violations of their rights by the bureaucracy.” Kolodner, Eric, “Religious Rights in China: A Comparison of International Human Rights Law and Chinese Domestic Legislation,” Pacific Basin Law Journal 12, no. 2 (1994): 407–30, at 422–23. However, Paul Gewirtz offers that there are three approaches concerning constitutional enforcement worldwide: “popular constitutionalism,” “political constitutionalism,” and “judicial constitutionalism.” Paul Gewirtz, “Constitutional Enforcement: Who Should Do it and How?” (unpublished paper), 2, accessed February 16, 2020, https://law.yale.edu/sites/default/files/china-law-documents/gewirtzconstitutionalismarticleenglishincompletedraft222016.pdf. Over the past years, the most visible efforts to implement the Chinese constitution in China have been examples of “popular constitutionalism.” Gewirtz, “Constitutional Enforcement,” 4–5.

16 I have met Western scholars who think that China does not even have a constitution. Also telling is the fact that most Chinese law students are reluctant to choose constitutional law as their major when they pursue graduate degrees.

17 Zhang Qianfan argues “to turn its constitution into constitutionalism, China needs a set of institutional arrangements that holds its government responsible to the citizens so that it will faithfully enforce the Constitution and laws.” Zhang Qianfan, “A Constitution without Constitutionalism?,” 976.

18 More than thirty years ago, Owen Fiss compared the free speech guarantees of the Chinese Constitution with the Free Speech Clause of the First Amendment of the US Constitution and noted the key gaps between the Chinese Constitution and US Constitution. Fiss, Owen M., “Two Constitutions,” Yale Journal of International Law 11, no. 2 (1986): 492503, at 492.

19 Cohen, Jerome Alan, “China's Changing Constitution,” China Quarterly, no. 76 (1978): 794841, at 832.

20 Jones, “The Constitution of the People's Republic of China,” 707.

21 The direct cause that led to the making of the constitution was a prompting from Soviet Union leader Joseph Stalin. One of the reasons Stalin provided was that Western countries would criticize China for not having a constitution and would note that its government is unelected.

22 Henkin, Louis, “A New Birth of Constitutionalism: Genetic Influences and Genetic Defects,” in Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspective, ed. Rosenfeld, Michel (Durham: Duke University Press, 1994), 3953, at 40.

23 As Ernest Caldwell argues, “Criticism is frequently leveled at China on the grounds that although the Chinese constitution grants … a range of individual rights … it does not provide institutional mechanisms to enforce these rights.” Caldwell, Ernest, “Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes,” Chicago-Kent Law Review 88, no. 1 (2012): 6391, at 65. However, Caldwell points out, approaches that focus on Chinese political issues that “impede the institution of western-style judicial review mechanisms, often construe a ‘right’ as merely having vertical effect”; Caldwell “examines a series of court cases involving employer-employee labor disputes” and finds that “lower court judges actively engaged in constitutional interpretation and openly invoked and enforced horizontally oriented socio-economic rights to prosecute exploitative labor practices.” Caldwell, 63.

24 Hungdah, Chiu, “The 1982 Chinese Constitution and the Rule of Law,” Review of Socialist Law 11, no. 2 (1985): 143–60, at 155.

25 Xianfa preamble, ¶ 13 (1982). Unless otherwise noted, all subsequent citations are to the 1982 promulgation of the Constitution. The translation I have used for this article is an official English translation of the Chinese constitution. National People's Congress of the People's Republic of China, http://www.npc.gov.cn/englishnpc/constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.shtml.

26 Constitution of the Chinese Communist Party preamble, ¶ 30 (2017).

27 On January 31, 1999, the Central Committee of the Communist Party of China held a symposium of non-party organizations, inviting the heads of the Democratic Party's Central Committee, the National Federation of Industry and Commerce, and non-party representatives to give advice on amending the Constitution. Jiang Zemin delivered a speech at this symposium. See “Zhonggong Zhongyang Zhaokai Dangwai Renshi Zuotanhui” [The Central Committee of the Communist Party of China held a symposium of non-party organizations], Renmin Ribao, February 1, 1999, at 1.

28 “Hu Jintao: Zai Shoudu Gejie Jinian Quanguo Remin Daibiao Dahui Chengli 50 Zhounian Dahui Shang de Jianghua” [Hu Jintao: Speech on the 50th Anniversary of the National People's Congress], Renmin Ribao, September 16, 2004, at 1. Unless otherwise noted, all translations from the Chinese are mine.

29 “Hu Jintao: Jianding Buyi Yanzhe Zhongguo Tese Shehuizhuyi Daolu Qianjin Wei Quanmian Jiancheng Xiaokang Shehui er Fendou” [Hu Jintao: Firmly march on the path of socialism with Chinese characteristics and strive to complete the building of a moderately prosperous society in all respects], Renmin Ribao, November 8, 2012, at 1.

30 “Xi Jinping: Zai Shoudu Gejie Jinian Xianxing Xianfa Gongbu Shixing 30 Zhounian Dahui Shang de Jianghua” [Xi Jinping: Speech on the 30th anniversary of the promulgation of the current constitution in all sectors of the capital], Renmin Ribao, December 5, 2012, at 2.

31 Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Shixing Xianfa Xuanshi Zhidu de Jueding (全国人民代表大会常务委员会关于实行宪法宣誓制度的决定) [Decision of the Standing Committee of the National People's Congress on Implementing the Constitutional Oath System] (promulgated by the Standing Committee of the National People's Congress, July 1, 2015, effective January 1, 2016; revised by the Standing Committee of the National People's Congress, February 24, 2018), Renmin Ribao, February 25, 2018, at 3.

32 Xianfa preamble, ¶ 13.

33 Chen, J., Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Development (Boston: Kluwer Law International, 1999), 58n7.

34 Fiss, “Two Constitutions,” 493.

35 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutmann (Princeton: Princeton University Press, 1997), 37.

36 U.S. Constitution, preamble.

37 Peerenboom, Randall, “Social Foundations of China's Living Constitution,” in Comparative Constitutional Design, ed. Ginsburg, Tom (Cambridge: Cambridge University Press, 2012), 138–63, at 139.

38 Xianfa preamble, ¶ 13.

39 Ghai, Yash, Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 1997), 8486, 89–92.

40 Xianfa preamble, ¶ 7.

41 Yang, Fenggang, “Exceptionalism or Chinamerica: Measuring Religious Change in the Globalizing World Today,” Journal for the Scientific Study of Religion 55, no. 1 (2016): 722, at 9.

42 Marx, Karl, “Introduction to ‘Contribution to the Critique of Hegel's Philosophy of Law,” in Karl Marx and Frederick Engels: Collected Works, vol. 3, Marx and Engels: 1843–44 (New York: International Publishers, 1975), 175–87, at 175. The phrase “the opium of the people” has sparked widespread controversy. Actually, Marx believed that religion had both positive and negative functions in society. On the one hand, religion can reduce people's immediate suffering and provide them with pleasant illusions that give them the strength to carry on. On the other hand, religion can weaken the drive toward revolution and thus can function like opium for an individual. For more on the meaning of “the opium of the people,” see Mckinnon, Andrew M., “Reading ‘Opium of the People’: Expression, Protest and the Dialectics of Religion,” Critical Sociology 31, no. 1/2 (2005): 1538.

43 Lenin, Vladimir Ilyich, “The Attitude of the Workers’ Party to Religion,” in Lenin Collected Works, vol. 15, March 1908–August 1909, trans. Rothstein, Andrew and Isaacs, Bernard (Moscow: Progress Publishers, 1973), 402–13, accessed March 31, 2020, https://www.marxists.org/archive/lenin/works/1909/may/13.htm.

44 Qianfan, Zhang and Yingping, Zhu, “Religious Freedom and Its Legal Restrictions in China,” Brigham Young University Law Review 2011, no. 3 (2011): 783816, at 783, Cox, citing Lawrence, “Freedom of Religion in China: Religious, Economic and Social Disenfranchisement for China's Internal Migrant Workers,” Asia-Pacific Law & Policy Journal 8, no. 2 (2007): 371430, at 397n85.

45 Guanyu Woguo Shehui Zhuyi Shiqi Zongjiao Wenti de Jiben Guandian he Jiben Zhengce (关于我国社会主义时期宗教问题的基本观点和基本政策) [The Basic Viewpoint and Policy on the Religious Question During Our Country's Socialist Period] (promulgated by the Central Committee of the CCP, March 31, 1982), accessed March 15, 2020, http://www.sara.gov.cn/zjzc/316531.jhtml.

46 Bell, Anna Scott, “Revisionist Religion: Xi Jinping's Suppression of Christianity and Elevation of Traditional Culture as Part of a Revisionist Power Agenda,” Georgetown Journal of Asian Affairs 3, no. 1 (2016): 6793, at 75.

47 Zai Ganbu Jiaoyu Peixun Zhong Jiaqiang Lixiang Xinnian he Daode Pinxing Jiaoyu (在干部教育培训中加强理想信念和道德品行教育) [Notice on Strengthening Ideals and Beliefs and Moral Character Education in Cadre Training] (promulgated by the Organization Department of the CPC Central Committee, July 21, 2014), Renmin Ribao, July 21, 2014, at 4.

48 “China Focus: President Xi Calls for Improved Religious Work,” accessed March 31, 2020, http://english.cctv.com/2016/04/24/ARTIKBIo7gAkeaoh0g9eazQj160424.shtml.

49 Zhonggong Zhongyang Guanyu Goujian Shehui Zhuyi Hexie Shehui Ruogan Zhongda Wenti de Jueding (中共中央关于构建社会主义和谐社会若干重大问题的决定) [Decisions of the CCP Central Committee on A Number of Major Issues in Relation to the Establishment of a Harmonious Socialist Society] (promulgated by the Plenary of the CCP Congress, October 11, 2006), Renmin Ribao, October 19, 2006, at 2.

50 Gu Yuanshan, “Jianshou ‘Dangyuan Buneng Xinjiao’ de Tieguiju” [Adhere to the iron rule of “Party members cannot believe in religion”], Zhongguo Jijian Jiancha Bao, May 24, 2015, 2.

51 “Fazhan Zhongguo Tese Shehui Zhuyi Zongjiao Lilun Quanmian Tigao Xinxingshi xia Zongjiao Gongzuo Shuiping” [Develop a theory of socialist religion with Chinese characteristics, and comprehensively improve the level of religious work in the new situation], Renmin Ribao, April 24, 2016, 1.

52 Gu Yuanshan, “Jianshou ‘Dangyuan Buneng Xinjiao’ de Tieguiju,” 2.

53 Xianfa art. 24, § 1.

54 Xianfa art. 24, § 1.

55 Xianfa art. 24, § 2.

56 Xianfa art. 24, § 2.

57 The leaders of the CCP have discussed the relationship between atheism and dialectical and historical materialism in detail. See Zhonggong Zhongyang Wenxian Yanjiushi, Zhonggong Zhongyang Bianyiju [Party Literature Research Office of the CCP & Compilation and Translation Bureau of the CCP Central Committee], ed., Makesi Engesi Liening Sidalin Maozedong Dengxiaoping Jiang ze min Lun Wei Wu Lun he Wu Shen Lun [Marx, Engels, Lenin, Stalin, Mao Zedong, Deng Xiaoping and Jiang Zemin on Materialism and Atheism] (Beijing: CCP Central Literature Press, 1999).

58 Ben Blanchard, “China's 100 Million Religious Believers Must Banish Their ‘Superstitions,’ Says Official,” Independent, April 21, 2013, https://www.independent.co.uk/news/world/asia/chinas-100-million-religious-believers-must-banish-their-superstitions-says-official-8581982.html.

59 Qianfan and Yingping, “Religious Freedom and Its Legal Restrictions in China,” 788.

60 Zhou Wei, Li Cheng, and Li Hao, Fating shang de xianfa: pingdeng ziyou yu fan qishi de gongyi susong [The Constitution in the courts: Equality, freedom and anti-discrimination public interest litigation] (Jinan: Shan Dong Ren Min Press, 2011).

61 Perry, Michael J., Human Rights in the Constitutional Law of the United States (Cambridge: Cambridge University Press, 2013), 131.

62 Duanhong, Chen, “Lun Xian Fa Zuo Wei Guo Jia de Gen Ben Fa yu Gao Ji Fa” [On China's constitution as higher law and fundamental law of China], Zhong wai faxue/Peking University Law Journal 20, no. 4 (2008): 485511, at 494.

63 Chen, “Lun Xian Fa Zuo Wei Guo Jia de Gen Ben Fa yu Gao Ji Fa,” 494.

64 Ann Kent, Waiting for Rights: China's Human Rights and China's Constitutions: 1949–89, Human Rights Quarterly 13, no. 2 (1991): 170–201, 188.

65 For the purposes of this article, the terms fundamental rights and human rights are equivalent and used interchangeably.

66 Perry, Michael J., A Global Political Morality: Human Rights, Democracy, and Constitutionalism (Cambridge: Cambridge University Press, 2017), 63.

67 Perry, A Global Political Morality, 70 (internal citations omitted).

68 Many scholars have argued that Chinese traditional cultural lacks respect for the individual and has never developed an adequate conception of human rights. See Weber, Marx, The Religion of China: Confucianism and Taoism (New York: Free Press, 1951), 235–36; Woo, Peter K. Y., “A Metaphysical Approach to Human Rights from a Chinese Point of View,” in The Philosophy of Human Rights: International Perspectives, ed. Rosenbaum, Alan S. (London: Aldwych Press, 1980), 113–24, 118–21; Hsiung, James C., “Human Rights in East Asian Perspective,” in Human Rights in East Asia: A Cultural Perspective, ed. Hsiung, James C. (New York: Paragon House, 1985), 130, at 10–12; Hung-chao Tai, “Human Rights in Taiwan: Convergence of Two Political Cultures?,” in Human Rights in East Asia, 89–92. However, this view has been criticized by some scholars. See King, Ambrose Y. C., “Weber and Modern State Building in China,” Twenty-First Century, no. 3 (1991): 5672; Yong, Xia, “Human Rights and Chinese Tradition,” in Human Rights: Chinese and Dutch Perspectives, ed. Baehr, Peter R. et al. (The Hague: Martinus Nijhoff, 1996), 7790.

69 Bell, Daniel A., “The East Asian Challenge to Human Rights: Reflections on an East West Dialogue,” Human Rights Quarterly 18, no. 3 (1996): 641–67, at 650 (quoting an unpublished manuscript by Jack Donnelly). Whether or not the concept of human rights exists in Asian political thought remains a hotly contested question. Central to the debate is the question, “Which rights are fundamental, universally valid human rights, and which ones are locally valid, ‘peripheral’ rights?” Daniel A. Bell, “Which Rights Are Universal?” Political Theory 27, no. 6 (1999): 849–56, at 849. For related discussion, see Benedict Shing Bun Chan, “An East and West Debate on Human Rights” (PhD diss. University of Maryland, 2011). Elsewhere Bell acknowledges, “the East Asian region is a complex mix of societies, cultural traditions, and political viewpoints” and “values change significantly over time in response to various internal and external pressures and this is evident in the region.” He points out, “some traditional values in some East Asian societies … may diverge from some human rights ideas and practices typically endorsed in Western countries.” Bell, “The East Asian Challenge to Human Rights,” 644. However, some scholars call for diverse approaches in understanding human rights in Asia. Randall Peerenboom, Preface to Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA, ed. Randall Peerenboom, Carole J. Peterson, and Albert H. Y. Chen (London: Routledge, 2006), x–xi, at x.

70 Lee, Seung-Hwan, “Was There a Concept of Rights in Confucian Virtue-Based Morality?Journal of Chinese Philosophy 19, no. 3 (1992): 241–61, at 256.

71 Rosemont, Henry Jr., “Why Take Rights Seriously? A Confucian Critique,” in Human Rights and the World's Religions, ed. Rouner, Leroy S. (Notre Dame: University of Notre Dame Press, 1988), 167–82, at 177.

72 For more on the history of the CCP's use of human rights language, see Pinghua, Sun, Human Rights Protection System in China (Berlin: Springer, 2014), 2426.

73 Ching, Julia, “Human Rights: A Valid Chinese Concept?,” in Confucianism and Human Rights, ed. de Bary, Wm. Theodore and Weiming, Tu (New York: Columbia University Press, 1998), 6782, at 77–80.

74 Dicey, A. V., Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan and Company, 1915).

75 Dicey, Introduction to the Study of the Law of the Constitution, 38. Dicey's analysis was regarded to have been made irrelevant by the constitutional reforms since 1997 and by Britain's entry into the European Communities in 1973. Vernon Bogdanor contended that England was “now in transition from a system based on parliamentary sovereignty to one based on the sovereignty of a constitution, albeit a constitution that is inchoate, indistinct and still in large part uncodified.” See Bogdanor, Vernon, The New British Constitution (Oxford: Hart Publishing, 2009), xiii. See also Delaney, Erin F., “Judiciary Rising: Constitutional Change in The United Kingdom,” Northwest University Law Review 108, no. 2 (2014): 543605, at 546.

76 Lord Irvine of Lairg, “Sovereignty in Comparative Perspective: Constitutionalism in Britain and America,” New York University Law Review 76, no. 1 (2001): 122 (describing the difference between constitutional and parliamentary supremacy). Of course, whether judicial supremacy has superseded constitutional supremacy in today's America remains controversial. See Devins, Neal and Fisher, Louis, The Democratic Constitution, 2nd ed. (Oxford: Oxford University Press, 2015), especially chapter 1.

77 Xianfa, art. 57. Of course, it is questionable whether China's Parliamentary sovereignty is equal to the people's sovereignty. The representatives of the National People's Congress are not elected directly, but indirectly, by Chinese citizens. The power to elect and remove deputies is retained by the CCP. Consequently, these representatives retain their legislative seats without challenge from the people. See Killion, M. Ulric, “China's Amended Constitution: Quest for Liberty and Independent Judicial Review,” Washington University Global Study Law Review 4, no. 1 (2005): 4380, at 69.

78 Kellogg, Thomas E., “Constitutionalism with Chinese Characteristics? Constitutional Development and Civil Litigation in China,” International Journal of Constitutional Law 7, no. 2 (2009): 215–46, at 216.

79 Xianfa art. 3, § 3.

80 Qianfan, Zhang, The Constitution of China: A Contextual Analysis (Oxford: Hart Publishing, 2012), 124.

81 According to Article 64 of the Chinese Constitution, “Amendments to the Constitution are to be proposed by the Standing Committee of the National People's Congress or by more than one-fifth of the deputies to the National People's Congress and adopted by a vote of more than two-thirds of all the deputies to the Congress. Laws and resolutions are to be adopted by a majority vote of all the deputies to the National People's Congress.” Xianfa art. 64, § 1, 2. In reality, most laws and resolutions are to be adopted by a vote of more than two-thirds of all the deputies to the Congress. Although there is no exact data, few deputies vote against any draft law.

82 Qianfan, Zhang and Yingping, Zhu, “Religious Freedom and Its Legal Restrictions in China,” Brigham Young University Law Review 2011, no. 3 (2011): 783816, at 790. Zhang Qianfan and Zhu Yingping demonstrate in their article that Chinese laws and regulations tend to limit the freedom of religion in China.

83 Qianfan and Yingping, 783.

84 See Caldwell, “Horizontal Rights and Chinese Constitutionalism, 75.

85 Head, John W., “Feeling the Stones When Crossing the River: The Rule of Law in China,” Santa Clara Journal of International Law 7, no. 2 (2010): 2583, at 81.

86 Head, “Feeling the Stones When Crossing the River,” 82.

87 Stephenson, Matthew, “A Trojan Horse behind Chinese Walls? Problems and Prospects of U.S.-Sponsored ‘Rule of Law’ Reform Projects in the People's Republic of China,” UCLA Pacific Basin Law Journal 18, no. 1 (2000): 6497, at 96.

88 Svensson, Marina, Debating Human Rights in China: A Conceptual and Political History (London: Rowman & Littlefield, 2002), 39. See also Enoch, David, “A Right to Violate One's Duty,” Law and Philosophy 21, no. 4/5 (2002): 355–84; Waldron, Jeremy, “Dignity, Rights, and Responsibilities,” Arizona State Law Journal 43, no. 4 (2011): 1107–36.

89 The emphasis on the unity of rights and duties is attributed to Karl Marx. Claims of this nature continue to appear in constitutional law and jurisprudence textbooks in China.

90 Xianfa art. 36, §§ 3, 4. I analyze Article 36 in the next section.

91 Xianfa art. 40. These aspects of articles 36 and 40 were noted by Hungdah, “The 1982 Chinese Constitution,” 149.

92 Xianfa art. 42, § 1.

93 Xianfa art. 46, § 1.

94 Xianfa art. 33, § 3.

95 Kent, “Waiting for Rights,” 179.

96 Xianfa art. 51.

97 For example, married Chinese couples are assigned the duty to practice family planning and help the state in controlling the growth of the population. Parents have the duty to rear and educate their children. Adult children have the duty to look after and help their parents. Xianfa art. 49. In addition, it is the duty of the Chinese citizens to receive education and to work. Xianfa arts. 46, 42.

98 Article 51 is actually a general duty to all rights and freedoms in the Constitution.

99 Xianfa arts. 52–56.

100 See The State Council Information Office of the PRC, “Xin Jiang de Zong Jiao Xin Yang Zi You Zhuang Kuang” [White paper: freedom of religious belief in Xinjiang], Renmin Ribao, June 3, 2016, at 10.

101 Piazza, James A. and Walsh, James Igoe, “Transnational Terror and Human Rights,” International Studies Quarterly 53, no. 1 (2009): 125–48, at 125, citing Human Rights Watch, World Report 2004: Human Rights and Armed Conflict (New York: Human Rights Watch, 2004); Hina Jilani, “Anti-Terrorism Strategies and Protecting Human Rights,” Amnesty Magazine (2005).

102 According to Human Rights Watch, “more than 140 governments have passed counterterrorism legislation since September 11 … Of particular concern is the tendency of these laws to cover a wide range of conduct far beyond what is generally understood as terrorist” [many of the laws] can ban and have been used to stifle peaceful political dissent or to target particular religious groups.” “In the Name of Security: Counterterrorism Laws Worldwide since September 11,” https://www.hrw.org/report/2012/06/29/name-security/counterterrorism-laws-worldwide-september-11#page.

103 Article 300 of China's criminal law subjects to criminal prosecution “whoever organizes or utilizes superstitious sects, secret societies or evil cults to (1) undermine the implementation of the laws, (2) undermine the implementation of administrative rules and regulations of the State; (3) cheat another person; (4) causes death to the person; (5) rape a woman; (6) swindle money or property.” In particular, the first two categories of criminal behavior (undermining the implementation of the laws and administrative rules and regulations of the state) are vague and can be invoked by the authorities to restrict religious freedom. See Xing Fa (刑法) [Criminal Law] (promulgated by the National People's Congress, July 1, 1979, revised by the National People's Congress, March 14, 1997, effective October 1, 1997) art. 300, 1997 Standing Committee of the National People's Congress Gazette volume 2, at 192.

104 It should be asked whether Falun Gong is an evil cult according to Chinese law. Article 300 of the criminal law “failed to clarify the definition of ‘evil cults’ and the degree of severity of related crime.” Keith, Ronald C., Lin, Zhiqiu, and Hou, Shumei, China's Supreme Court (New York: Routledge, 2014), 72. In 1999, the Supreme People's Court and the Supreme People's Procuratorate jointly issued “Interpretation on Several Questions in Law Concerning Criminal Cases of Organizing and Using Evil Cult Organization” and defined “cult” “with reference to specific patterns of undesirable behavior.” Keith, Lin and Hou, China's Supreme Court, 72. According to this new definition, “Evil Cult Organizations are organizations established by utilizing the name of religion, Qi Gong, or other names, in which the leader is deliberately deified. The organization makes and spreads superstition and heresy to deceive and tempt others, to recruit and control its members, and to harm society.” See Guanyu Banli Zuzhi he Liyong Xiejiao Zuzhi Fanzui Anjian Juti Yingyong Falv Ruogan Wenti de Jieshi (关于办理组织和利用邪教组织犯罪案件具体应用法律若干问题的解释) [Interpretation on Several Questions in Law Concerning Criminal Cases of Organizing and Using Evil Cult Organization] (promulgated by the Supreme Peoples’ Court, October 9, 1999, and the Supreme People's Procuratorate, October 8, 1999) art. 1, 1999 Supreme People's Court Gazette 202. Some scholars thought that this interpretation expanded the field of punishable behavior under Article 300, increasing the range of severe criminal law punishment. Keith, Lin and Hou, China's Supreme Court, 72.

105 On June 3, 2014, state news agency Xinhua ran a front-page piece providing the names of fourteen groups officially identified as “evil cults”: the Shouters (呼喊派), the Disciple Society (门徒会), the Lingling Sect (灵灵教), All Sphere Church (全范围教会), Lord God Sect (主神教), New Testament Church (新约教会), Guanyin Method (观音法门), Anointed King (被立王), the Unification Church (统一教), Three Grades of Servants (三班仆人派), True Buddha School (灵仙真佛宗), Children of the Heavenly Father (天父的儿女), Dami Mission (达米宣教会), and World Elijah Gospel Mission Society (世界以利亚福音宣教会).

106 Of the fourteen “evil cults” identified by the Chinese government, seven were identified by the Ministry of Public Security, and the other seven were identified by the General Office of the CCP and General Office of the State Council of the People's Republic of China.

107 Guanggao Fa (广告法) [Advertising Law] (promulgated by the Standing Committee of the National People's Congress, October 27, 1994, revised April 24, 2015, effective September 1, 2015) article 9, 9, 2015 Standing Committee of the National People's Congress Gazette 405.

108 Murong Xuecun, “China's Clampdown on ‘Evil Cults,’” editorial, New York Times, June 17, 2014, https://www.nytimes.com/2014/06/18/opinion/murong-chinas-clampdown-on-evil-cults.html.

109 Of course, in addition to Muslim countries, some Asian countries have also banned Jehovah Witnesses for refusing to serve in the military, among them Singapore, Japan, and South Korea. In July 2000, Taiwan revised its military service law and introduced alternative service to recognize conscientious objection.

110 Fang Chan Shui Zan Xing Tiao Li (房产税暂行条例) [Provisional Regulations on Real Estate Tax] (promulgated by the State Council, September 15, 1986; effective October 1, 1986, revised January 8, 2011) art. 5, 3, 2011 State Council Gazette, supplement, http://www.gov.cn/gongbao/content/2011/content_1860812.htm.

111 Irish, Leon E., Dongsheng, Jin, and Simon, Karla W., China's Tax Rules for Not-for-Profit Organizations: A Study Prepared for the World Bank (Beijing: World Bank, 2004), 14n8.

112 See Zongjiao Shiwu Tiaoli (宗教事务条例) [Regulations on Religious Affairs] (promulgated by the State Council, July 7, 2004, effective March 1, 2005; revised by the State Council, June 14, 2017, effective February 1, 2018), article 59, 2017 State Council Gazette, no. 26, http://www.gov.cn/gongbao/content/2017/content_5225861.htm.

113 Hungdah, “The 1982 Chinese Constitution,” 149.

114 Joann Pittman, “What Does the Chinese Constitution Say about Religion?,” ChinaSource (blog), March 19, 2013, https://www.chinasource.org/blog/posts/what-does-the-chinese-constitution-say-about-religion.

115 Xianfa art. 36.

116 Fulton, Brent, China's Urban Christians: A Light that Cannot Be Hidden (Cambridge: Lutterworth Press, 2016), 127.

117 “The Basic Viewpoint and Policy on the Religious Question during Our Country's Socialist Period, Document No. 19 (March 31, 1982),” Chinese Law & Government 33, no. 2 (2000): 17–34, at 22.

118 Joann Pittman, “Religious Policies in China: Defining Normal,” ChinaSource (blog), December 3, 2013, https://www.chinasource.org/resource-library/articles/religious-policies-in-china-defining-normal.

119 “International law provides little useful guidance in distinguishing normal from abnormal religious activities and legitimate groups from cults.” Randall Peerenboom, “An Empirical Overview of Rights Performance in Asia, France, and the USA: The Dominance of Wealth in the Interplay of Economics, Culture, Law, and Governance,” in Peerenboom, Petersen, and Chen, Human Rights in Asia, 1–64, at 28; see also Evans, Carol, “Chinese Law and the International Protection of Religious Freedom,” Journal of Church and State 44, no. 4 (2002): 749–74, at 766–67.

120 Peerenboom, “An Empirical Overview of Rights Performance in Asia, France, and the USA,” 28.

121 Kolodner, Eric, “Religious Rights in China: A Comparison of International Human Rights Law and Chinese Domestic Legislation,” UCLA Pacific Basin Law Journal 12, no. 2 (1994): 407–30, 422.

122 “Religious Issues in Socialism Discussed,” Foreign Broadcast Information Service, CHI 88-106, June 2, 1998: 33, quoted in Kolodner, “Religious Rights in China,” 422.

123 Tong, John, “The Church from 1949 to 1990,” in The Catholic Church in Modern China: Perspectives, ed. Tang, Edmond and Wiest, Jean-Paul (Eugene: Wipf and Stock, 2013), 727, at 18.

124 Tong, “The Church from 1949 to 1990,” 19.

125 Tong, 19.

126 Tong, 20.

127 Tong, 20.

128 See Guanyu Jingnei Jigou Juanzeng Waihui Guanli Youguan Wenti de Tongzhi (关于境内机构捐赠外汇管理有关问题的通知) [Notice of the State Administration of Foreign Exchange on Issues Concerning the Administration of Foreign Exchange Donated to or by Domestic Institutions] (promulgated by State Administration of Foreign Exchange, December 25, 2009, effective March 1, 2010) article 8, §2, http://www.safe.gov.cn/hubei/2019/0428/939.html.

129 See Cantwell v. State of Connecticut, 310 U.S. 296 (1940); Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942).

130 Anti-cult education is part of the current primary and secondary school education in China. See Guanyu Jin Yi Bu Zai Zhong Xiao Xuexiao Kaizhan Fan Xiejiao Jiaoyu de Tongzhi (关于进一步在中、小学校开展反邪教教育的通知) [Notice of the Ministry of Education on Further Education against Cult in Primary and Secondary Schools] (promulgated by Ministry of Education, Apr. 12, 2002), http://www.moe.gov.cn/jyb_xxgk/gk_gbgg/moe_0/moe_8/moe_24/tnull_271.html. The Ministry of Education reiterated this point in 2007. See Zhong Xiao Xue Deyu Gongzuo Zhinan (中小学德育工作指南) [Guidelines of Moral Education in Primary and Secondary Schools] (promulgated by Ministry of Education, August 17, 2017), http://www.moe.gov.cn/srcsite/A06/s3325/201709/t20170904_313128.html.

131 My university requires all students to sign a letter of commitment to ensure that they do not participate in religious activities. One of my students refused to sign on the grounds of religious freedom based in the Constitution. However, he was criticized by the university's political counselor and was threatened with the cancelation of his scholarship to attend university.

132 Joann Pittman, “Regulating Religion,” ChinaSource (blog), October 10, 2016, https://www.chinasource.org/blog/posts/regulating-religion.

133 Lin, Yan and Ginsburg, Tom, “Constitutional Interpretation in Law-making: China's Invisible Constitutional Enforcement Mechanism,” American Journal of Comparative Law 63, no. 2 (2015): 467–92, at 467.

134 Jianfu, Chen, “The Revision of the Constitution in the PRC: A Great Leap Forward or a Symbolic Gesture?,” China Perspectives, no. 53 (2004): 1532, at 23.

Keywords

FREEDOM IN HANDCUFFS: RELIGIOUS FREEDOM IN THE CONSTITUTION OF CHINA

  • Songfeng Li (a1)

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed.