Introduction
China's religious freedom has been the target of sustained and harsh criticism from scholars and writers around the world.Footnote 1 There are severe religious freedom violations year after year in China. Some people have lost their jobs while others have been arrested, arbitrarily detained, tortured, and even killed for their religious beliefs.Footnote 2 Propagating religion is prohibited in public places.Footnote 3 Although the Chinese government will never admit to these violations, many reports prove their existence. For example, in the past two years, the government in Zhejiang province in southeast China has removed and sometimes burned down crosses from as many as two thousand churches.Footnote 4 Since the end of the last century, Falun Gong, labeled an “evil cult” by the Chinese government, has been banned, and many of its practitioners have been persecuted.Footnote 5 International newspapers often report news about pastors or bishops being sentenced in China.Footnote 6 Of course, more importantly, only five religions—Buddhism, Taoism, Islam, Protestantism, and Catholicism—are formally recognized by the Chinese government. All religious activities are restricted to state-approved religious sites. Any religious activities in the public square are strictly illegal and prohibited. In short, the freedom to manifest religion is extremely limited in China.
Some socialists have described the complex situation and analyzed the heavy regulation of religion in contemporary China.Footnote 7 However, from the legal point of view, there is a legal system for protecting the religious freedom of citizens in China. Article 36 of the Chinese Constitution expressly provides that Chinese citizens “enjoy freedom of religious belief.”Footnote 8 It prohibits religious discrimination and forbids state organs, public organizations, or individuals to compel anybody to believe—or not—in any particular religion. The Regulations on Religious Affairs, which was enacted by the State Council in 2005 and amended in 2017, allows state-registered religious organizations to possess property, publish literature, train and choose clergy, collect donations, and take advantage of preferential tax policy.Footnote 9
The question arises as to why the Chinese Constitution says that freedom of religion is protected when, in reality, it does not allow people to enjoy this right. It is easy to conclude that China's constitution is not enforced and plays little role in China's legal system, being only a symbolic document. As William Jones observed in 1985, “The constitution seems to bear no relation to the actual government of China.”Footnote 10 That is to say, the structure and values set out in the constitutional text are not consistent with the Chinese social reality.Footnote 11 Observers have characterized the Chinese Constitution as a national policy declaration or political outline rather than as a legally enforceable document.Footnote 12 It is a combination of slogans, rather than law. In other words, China's Constitution is a “dead letter” that “lacks any effective review mechanism” ensuring constitutionality, so that the implementation of the Constitution “is left unguarded against official violations.”Footnote 13 The Chinese Constitution is a merely formal “constitution,” and is not a legally binding constitution. It is a classic example of what has been called a “sham constitution.”Footnote 14 This is conventional wisdom and widely accepted by Chinese and Western scholars.Footnote 15 At least two direct consequences follow from these observations. First, the Chinese Constitution is largely ignored. Law students have little motivation to study a constitution that plays no role in real life.Footnote 16 The result is that both the positive and negative aspects of the Chinese Constitution are hardly explored at all. Second, experts, organizations, and governments attempting to effect positive change in China's constitutionalism and the rule of law (including religious freedom) have chosen to pressure the Chinese government to implement the Constitution,Footnote 17 not realizing that there is an issue not only with the implementation of the Constitution but also with its stipulations. The Constitution itself must be brought under scrutiny and not be dismissed in the heat of the battle for implementation.
Religious freedom in the Chinese Constitution is a limited and conditional freedom. The present religious policy and religious freedom of China, deploying “religious freedom” in a limited sense, are basically in line with the spirit and provisions of the Chinese Constitution. The understanding of religious freedom in the Chinese Constitution should not be drawn exclusively from Article 36, neglecting the rest of the constitution. Nor should we draw a parallel with the US Constitution and the religion clauses of the First Amendment. In short, these are two completely different documents although both of them are called “constitutions.”Footnote 18
In this article, I first examine the problems commonly cited by scholars when criticizing China's religious freedom policies and review how the Constitution could be taken seriously in the eyes of the Chinese government. Next, I critically examine the potential limitations that the Chinese Constitution places on religious freedom. The Chinese Constitution effectively creates at least four classes of limitations on religious freedom. I examine the limitations resulting from the national ideology and the limitations that constrain the nature of fundamental rights. I examine the stipulation of certain duties of citizens and then examine the limitations in Article 36 itself. These limitations can have unforeseen consequences that seriously limits citizens’ religious freedom. I conclude by arguing that the religious freedom in Article 36 of the Chinese Constitution is a freedom in handcuffs. This means that we should pressure the Chinese government not only to implement the Constitution but also to amend the Constitution and remove its stated limitations on religious freedom.
Taking the Chinese Constitution Seriously
The conclusion that China's Constitution is a merely symbolic document does not itself answer the question of why the Chinese government took the trouble of creating constitutional provisions with which they do not comply. As Jerome Cohen has observed, “one of the major unresolved puzzles of Chinese constitutionalism is to ascertain why these freedoms continue to be asserted when to do so flies in the face of the everyday experience of Chinese people.” He continues that this is true particularly when retention of such symbols of freedom courts either popular concern or “the risk that large numbers of people may actually try to enjoy those freedoms.”Footnote 19 One possible answer is that the Chinese Constitution “purports to establish a government that appears quite recognizable to Westerners.”Footnote 20 In other words, the Chinese government uses this Constitution to whitewash its autocratic character. This may be one aspect,Footnote 21 but it is not the whole story. In an era in which “constitutionalism is commonly identified with a written constitution,”Footnote 22 the Chinese Constitution does have ideological significance in light of norms by which the legitimacy of the government is judged. But if the goal were purely symbolic, the Chinese Constitution could be made to appear closer to Western constitutional standards. But instead, the Chinese Constitution retains many characteristics of Chinese socialism.Footnote 23
In addition, the importance of the Chinese Constitution is reflected in the fact that leaders speak of it seriously. The Chinese government has repeatedly revised the constitution in the past thirty years, indicating that it cares very much about what it stipulates. China has had four constitutions (1954, 1975, 1978, and 1982) since 1949, when the Chinese Communist Party (CCP) came to power. The current constitution of China was promulgated in 1982 and has been amended five times (1988, 1993, 1999, 2004, and 2018). The 1982 Constitution is generally viewed as far better than any of its predecessors according to a systematic survey.Footnote 24 This periodical revision of the Constitution makes the Chinese Constitution one of the most frequently revised, if not the most frequently revised, constitution in the world. At present, the Chinese Constitution, which is only thirty-eight years old, contains fifty-two amendments, double that of the US Constitution, which has endured two hundred years. Although it is easy for the Chinese government to make multiple revisions, it is clear from these periodic modifications that the Chinese government is constantly revising the constitution to keep pace with the times. If the Chinese Constitution is simply dismissed as a dead letter, it is difficult to explain not only its origination but also why the CCP feels the need to repeatedly amend it, if they have no intention of following it. Why enshrine constitutional guarantees for the right to religious freedom, among others, when the CCP obviously opposes such rights? Actually, the Chinese government attaches great importance to what the Constitution does and does not provide. If the government thinks certain rights or freedoms should not be granted to the citizens, it will never be included in the Constitution. For example, the 1975 Constitution added the freedom to strike, which subsequently was dropped from the 1982 Constitution. The 1954 Constitution laid down the freedom to change residence, which was also abolished under the current Constitution. All these revisions indicate that the Chinese government takes the Constitution seriously in at least some sense.
Second, both the Chinese Constitution and the CCP's constitution require the CCP to abide by the Constitution. The Chinese Constitution states that it “has supreme legal authority” and “all political parties” which, of course, includes the CCP, “must abide by the constitution.”Footnote 25 The new party Constitution adopted in 2017 also requires that “the party must conduct its activities within the limits permitted by the Constitution and the laws of the state.”Footnote 26 This shows that abiding by the Constitution is not only required of the Chinese people, but also is required of party members themselves.
Third, Chinese leaders have come to realize the importance of the Constitution and have increasingly stressed the importance of implementing it. In the past twenty years, party leaders have several times highlighted the need to abide by the country's Constitution. In January 1999, then Chinese president Jiang Zemin conducted a meeting to collect the opinions of citizens outside the party regarding draft amendments of the Constitution. As he pointed out, “the Constitution is the basic law of the country and has a very important role in national life.” He stressed, “it is extremely important to protect the dignity of the Constitution and to ensure the enforcement of the Constitution.”Footnote 27 Former president Hu Jintao also emphasized that “governing the country according to the law must adhere to the Constitution” and “all comrades of the party, all staff of state departments, and people of the whole country must study the constitution, abide by it, safeguard it and ensure its implementation.”Footnote 28 He also stressed that fully implementing the Constitution is very important and indispensable in state governance and social management and in accelerating the construction of a socialist country.Footnote 29 In December 2012, at a congress marking the thirtieth anniversary of the Constitution's implementation held in Beijing, Xi Jinping, general secretary of the party's Central Committee, pledged to “promote the authority of the Constitution”:
To fully implement the Constitution is the primary task and the basic work in building a socialist nation ruled by law. The Constitution is the country's basic law and the general rule in managing state affairs. The Constitution is of supreme legal status, authority and efficacy, and it is fundamental, stable, lasting and concerns the overall situation. The people of all nationalities, all state organs, the armed forces, all political parties and public organizations, and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct and bear the duty to uphold the dignity of the Constitution and ensure its implementation. No organization or individual may have the privilege of being above the Constitution and the law. All acts in violation of the Constitution or laws must be legally pursued.Footnote 30
Although what was said does not equal what was done, it nonetheless suggests that complying with the Constitution has become central to China's official political language.
Fourth, China has recently organized a Constitution Day, and established a constitutional oath system to promote respect for and implementation of the Constitution. In October 2014, the CCP's Central Committee approved the Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law, making December 4 (the current constitution was passed on December 4, 1982) China's National Constitution Day. By July 2015, the Standing Committee of the National People's Congress passed a decision on implementing the Constitution Oath System. According to the fortieth amendment of the Constitution in 2018, the state staff are required to publicly make the following oath to abide by the Constitution before taking office:
I pledge to be loyal to the PRC Constitution, to safeguard the authority of the Constitution, to perform obligations imposed by law, to be loyal to the country and to the people, to be fully committed in performing my official duties, to have integrity and always work in the interest of the public, to accept the supervision of the people, and to work hard for the great cause of building a prosperous, democratic, civilized, harmonious and beautiful socialist country!Footnote 31
Both the setting up of a National Constitution Day and the establishing of a constitutional oath system are aimed at promoting the rule of law and highlighting the importance of upholding China's Constitution.
Unlike the US Constitution, the Chinese Constitution is not a social contract that limits the power of government. Rather, it was formulated under the leadership of the CCP and represents the institutionalization and legalization of the party's position and policies. In the words of the last paragraph of the preamble of the Chinese Constitution, “this constitution affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the state in legal form.”Footnote 32 In short, the Chinese Constitution does not so much protect the fundamental rights and freedoms of every citizen as define the future direction of the whole country. With the development of legislation and legal reforms, a number of administrative laws and regulations has been issued implementing various aspects of the Constitution, making the Constitution much more relevant in practical terms. It is becoming much more common for Chinese scholars to argue that certain legal reforms are constrained by the present constitutional arrangement.Footnote 33 Thus, the CCP and the Chinese government are under increasing pressure to implement the Constitution.
Returning to the initial question, since the Constitution purports to protect freedom of religion and the Chinese government has stressed the implementation of the Constitution, why are there a large number of cases in which religious freedom has been violated? The answer is that the Chinese Constitution provides only a very limited protection for religious practice. Article 36 of the Constitution protects freedom of religious belief and “normal” religious activities. The government has the power to decide which activities are “normal” and which are “abnormal.” This leaves open the possibility that the government can deem various religious practices “abnormal” and thus outside the sphere of legal protection.
“In any legal system there is a gap between stated ideal and actual social practice, and the Chinese would be the first to acknowledge that they are no exception to this rule.”Footnote 34 Article 36 has not prevented widespread and sometimes brutal persecution of religious beliefs and practices. It needs to be stressed that this reality is not a difference between the Constitution on paper and the Constitution in practice. The Chinese Constitution superficially appears to be a document providing religious liberty, but in essence it has set multiple limits on civil rights, including so-called religious freedom. When people are concerned about how to implement the Chinese Constitution, they ignore the fact that it is not a Constitution worthy of implementation in regard to its stipulations on religious freedom. In other words, strict implementation of the Constitution does not bring about full religious freedom in China. In the following section, I analyze the constitutional restrictions on religious freedom, uncovering the problems with the religious freedom clause (Article 36) in the Chinese Constitution.
National Ideology Restrictions on Religious Freedom
Inquiry into the religious freedom guarantees of the Chinese Constitution, simply as a stated ideal, must begin with recognition of the fact that Article 36 tells only part of the story. In matters of interpretation, it is important to understand context. In the words of the late Justice Antonin Scalia, “In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation—though not an interpretation that the language will not bear.”Footnote 35 The context of the entire Chinese Constitution offers a more complete picture of religious freedom in China. Although Article 36 of the Chinese Constitution purports to protect religious freedom, other provisions in the same Constitution place multiple restrictions on it. As noted, in this section I focus on the limitations on religious freedom.
The Chinese Constitution was based on Western models, and it looks familiar and seems broadly consistent with constitutions elsewhere in terms of general principles such as popular sovereignty, state institutions and their powers, and fundamental rights. However, the purposes of constitutions vary from country to country. The purpose of the United States Constitution can be understood to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”Footnote 36 In general, the Chinese Constitution serves by contrast to “energize the people to better serve the state and contribute to a stronger China; symbolize national unity; affirm the policies of those in power; and set forth the ideals and goals for society to achieve.”Footnote 37 That is why the Chinese Constitution begins with an unusually lengthy preamble that traces the long and glorious history of China and sets forth basic goals. The last paragraph in the preamble of the Chinese Constitution summarizes and clearly states the purpose of the Constitution: “in legal form, [it] affirms the achievements of the struggle of the Chinese people of all nationalities and defines the basic system and basic task of the State.”Footnote 38
The Chinese Constitution is ideology-ridden, but no part is more heavily so than its preamble, which is called the “secret” to understanding the Chinese Constitution.Footnote 39 The first sentence of the preamble states that China is a country with one of the longest histories in the world, a great source of pride for the Chinese people. But it is a history characterized by national humiliation at the hands of foreign powers from the mid-nineteenth century to 1949, when the CCP, led by Mao Zedong, came to power. The legitimacy of Mao Zedong and the party's government, then, is grounded in their overthrow of the reactionary rule of imperialism, feudalism, and bureaucratic-capitalism and in their subsequent unification of the whole country and the establishment of the New China. The preamble cites major achievements under the CCP in defending the nation against foreign aggression and feudal autocracy, developing the economic and social order, and improving the living standard of the people. This historical narrative is used to justify the legitimacy of the CCP and bestows the party with the authority to rule, stating that the country is a “dictatorship of the proletariat” operating “under the leadership of the party and the guidance of Marxism-Leninism and Mao Zedong Thought.”Footnote 40
Being a communist state, Marxism-Leninism and the Chinese communist ideology are the guiding principles of China and are enshrined in the preamble of the Chinese Constitution. Atheism thus constitutes the official stance of both the CCP and the whole country.Footnote 41 Karl Marx of course had an ambivalent attitude toward religion, viewing it primarily as “the opium of the people.”Footnote 42 Vladimir Lenin took that attitude a step further: “We must combat religion—that is the ABC of all materialism, and consequently of Marxism.”Footnote 43 In this sense, the Chinese Constitution establishes an atheistic state, rather than a secular state. This is the background of China's restriction on religious freedom.
The restriction of religious freedom has four aspects. First, the official atheist ideology has “accustomed government officials and society at large to view religion as a mere superstition—a product of ignorance—or as an unstable force in society.”Footnote 44 Even though there is a theoretical conflict between Marxist doctrine and religion, contemporary Chinese leaders reject the immediate and comprehensive abolition of religion. The CCP contends that religion is a historical product that will disappear only when socioeconomic and cultural conditions have improved to the extent that people no longer require this opiate.Footnote 45 In the CCP's eyes, it is difficult to “liberate” people from the influence of religion, and so they must be patient while working hard to achieve it. Thus, the CCP has chosen to take a more gradual approach to the issue. As Anna Scott Bell has noted, “in a training document issued by the Organization Committee of the [CCP's] Central Committee, [Marxism and religion] are explicitly linked, with the document exhorting cadres to resist foreign ideological influences.”Footnote 46 The document states: “We must remain steadfast in our faith in Marxism, never lose our bearings when discussion becomes heated about Western constitutional democracy, ‘universal values,’ and ‘civil society,’ and avoid losing our sense of self under the influence of feudal superstitions and religion.”Footnote 47
Religion has long been treated as a negative phenomenon in China. The government has repeatedly stressed that religious individuals should “merge religious doctrines with Chinese culture, abide by Chinese laws and regulations, and devote themselves to China's reform and follow the steps of socialist modernization in order to contribute to the realization of the Chinese Dream of national rejuvenation.”Footnote 48 The Central Committee of the CCP has acknowledged since 2006 the positive role religion can play in the establishment of a harmonious socialist society,Footnote 49 but it is also has aimed at tightening governmental control.
Second, as noted above, adhering to Marxist-Leninist ideology, the CCP is an atheistic party. All CCP members are required to be atheists and to unremittingly propagate atheism. Any CCP member who forsakes the party's worldview of dialectical materialism and converts to any religion is to be severely punished. In May 2015, the newsletter of the party's Central Commission for Discipline Inspection published an article warning that any CCP member who is found to have religious beliefs or to take part in any religious activities would be disciplined. According to this article, CCP members do not enjoy a right to religious freedom.Footnote 50 Xi Jinping, the president of China and the general secretary of the CCP, emphasized in a speech that CCP cadres must act as “unyielding Marxist atheists … and bear in mind the party's tenets.” He also told them to “consolidate their faith,” oddly employing a religious phrase.Footnote 51 In other words, Marxism is the only and necessary “religious belief” of the party's members. “There can be no doubt about the fact that the founding ideological principle that Communist Party members cannot be religious believers has been upheld by our party from the outset … Communist Party members … are fighters in the vanguard for a communist consciousness … they are firm Marxists, and also atheists.”Footnote 52 This means that the CCP's official adherence to militant atheism has not changed.
Third, all citizens, both religious and non-religious, must be trained in Marxism-Leninism. The Chinese Constitution stresses the effort “to strengthen the construction of socialist spiritual civilization.”Footnote 53 The construction of socialist spiritual civilization includes two aspects: cultural construction and ideological construction. Cultural construction refers to education, science, health, and sports development. The Chinese Constitution stipulates from Articles 19 to 22 that the state is to actively develop these disciplines. Ideological construction involves civic ideals, morality, and law education. Article 24 of the Chinese Constitution stipulates that “the State strengthens the building of socialist spiritual civilization through spreading education in high ideals and morality, general education, education in discipline and the legal system, and through promoting the formulation and observance of rules of conduct and common pledges by different of the people in urban and rural.”Footnote 54 The state advocates “the civic virtues of love for the motherland, for the people, for labor, for science and for socialism; it educates the people in patriotism, collectivism, internationalism and communism and in dialectical and historical materialism; it combats the decadent ideas of capitalism and feudalism and other decadent ideas.”Footnote 55
In the eyes of the Chinese Constitution, atheism is the only correct worldview. Section two of Article 24 in the Chinese Constitution authorizes the state to foster education in “dialectical and historical materialism” for all people in China.Footnote 56 Atheism is an indispensable component of dialectical and historical materialism.Footnote 57 In the words of Wang Zuoan, who was then head of the State Administration of Religious Affairs, “For a ruling party which follows Marxism, we need to help people establish a correct world view.”Footnote 58 Thus, in Qiu Jiandong v. Sichuan University, the plaintiff claimed that “his right to religious freedom was infringed by a passage in The Philosophical Principle of Marxism, a textbook which stated that ‘religion is, in nature, spiritual opium for the working people.’”Footnote 59 The court declined to review the case and rejected the claims.Footnote 60 Sichuan University is of course a public institution which represents the government in carrying out its educational functions. The Chinese government is granted under Article 24 of the Constitution the power to monopolize education in the area of citizen's beliefs. This also explains why the philosophical principles of Marxism constitute a compulsory course for all Chinese students.
As legal scholar Michael Perry has written, “the internationally recognized human right to religious and moral freedom is entrenched in the constitutional law of the United States.”Footnote 61 The US Constitution deploys the separation of powers (executive, legislative, and judicial) to restrain the violation of religious freedom. The Chinese Constitution comes from a different political approach. According to Chen Duanhong, a law professor at Peking University, there is a hierarchy of five fundamental values implied and affirmed in the preamble of the Chinese Constitution: the first fundamental value is that “the Chinese people are under the leadership of the CCP”; the second is “adherence to socialism”; the third is “democratic centralism”; the fourth is “modern construction of socialism in China”; and the fifth is “the protection of the fundamental rights and freedoms of individuals.”Footnote 62 The fundamental rights of individuals, including religious freedom, are placed at the lowest level of value in the Chinese Constitution. When there is any conflict between different levels of value, the latter value is subjected to the former, and all the values are subjected to the first, which stands supreme. It is clear from this hierarchical approach that the first value, the leadership of the CCP, is the “fundamental law” of the Chinese Constitution and the “absolute constitutional law” of China.Footnote 63
In summation, the Chinese Constitution establishes Marxism as the national ideology. Religious freedom protected in Article 36 is subject to the national ideology and the hierarchical values in the Preamble of the Chinese Constitution. The guiding ideology and first value in the Chinese Constitution, the claim that the Chinese people are led by the Communist Party, forms the “backbone” of the Constitution and is “frequently invoked to restrain … moves towards the informal expansion of civil and political rights.”Footnote 64
Legal Restrictions on Religious Freedom
All rights granted by the Chinese Constitution, including the right to religious freedom, are fundamental legal rights, rather than fundamental rights, even though they are called fundamental rights or basic rights. This means that these rights are vested by the Constitution and are not inalienable human rights but are instead subject to legal restrictions. Fundamental rights refer to rights that are so basic that governments, including the congress, cannot overturn or violate them. In other words, the Chinese Constitution does not acknowledge that the right to religious freedom is a kind of morality of human rights.Footnote 65 According to Perry, “a commitment to the morality of human rights also requires a commitment to certain limitations on democracy.”Footnote 66 On Perry's account, the government can regulate religious freedom only if it can satisfy three conditions:
• The legitimacy condition: The government action at issue (law, policy, etc.) must serve a legitimate government objective. The specific government action at issue might be not the law (policy, etc.) itself but that the law does not exempt the protected conduct.
• The least burdensome alternative condition: The government action—which, again, might be that the law does not exempt—must be necessary to serve the legitimate objective, in the sense that the action serves the objective significantly better than would any less burdensome government action.
• The proportionality condition: The legitimate objective served by the government action must be sufficiently weighty to warrant the burden imposed by the government action.Footnote 67
Contrary to these norms, as I argue, the Chinese constitution establishes a system of legislative supremacy. There is no judicial review of the constitutionality of legislative actions. The judiciary has no power to supervise the legislative or executive branch, when either exceeds its authority. The legislature is nominally the supreme branch in the Chinese Constitution. The Chinese Constitution does not prohibit the congress from infringing upon constitutional rights, instead empowering congress to restrict them. In short, the Chinese government does not need any conditions or reasons to pass laws curtailing religious freedom.
Neither traditional Chinese philosophy nor contemporary political philosophy subscribe to the Western notion that human beings have certain rights that are inalienable; that is, they are granted by the Creator God and must not be taken away.Footnote 68 As Daniel Bell has written, “‘the idea that all human beings, simply because they are human, have certain inalienable political rights,’ was essentially foreign to Asian political thought.”Footnote 69 Fundamental rights are a strange concept in traditional China. In Confucian morality, the very identity of human persons is reducible to a web of social relationships.Footnote 70 As Henry Rosemont explains,
For the early Confucians there can be no me in isolation, to be considered abstractly: I am the totality of roles I live in relation to specific others. I do not play or perform these roles; I am these roles. When they have all been specified I have been defined uniquely, fully, and altogether, with no remainder with which to piece together a free, autonomous self.Footnote 71
Human rights has long been a sensitive subject in China under the rule of the CCP. The CCP initially used the idea of human rights to obtain the support of Chinese people in order to defeat the National Party.Footnote 72 However, after the CCP came to power, human rights became a threat to their newly gained authority and a threat to their new establishment.Footnote 73 With the inclusion of the phrase “the State respects and preserves human rights” in the 2004 Constitution and the release of the National Human Rights Action Plan of China in 2009, the CCP began to accept a concept of human rights. Human rights became less of a sensitive subject in China's public debates, as the Chinese government did not recognize human rights as natural or fundamental rights. Rather, they came to see rights as vested or granted to a citizenry by the government. Thus, any religious freedom, either of belief or practice, is subject to the goodwill (or lack thereof) of the government.
In a certain sense, parliamentary supremacy, the system adopted by the People's Congress, was established by the Chinese Constitution. Although many definitions of the doctrine of parliamentary supremacy exist, the most enduring is that supplied by legendary Oxford law professor Albert Venn Dicey in his classic book, Introduction to the Study of the Law of the Constitution.Footnote 74 In his words, parliamentary supremacy means that the Westminster Parliament has “the right to make or unmake any law whatever,” such that “no person or body is recognised by the law of England as having a right to override or set aside” its legislation.Footnote 75 Constitutional supremacy is different from parliamentary supremacy. In a constitutional supremacy state, the United States for example, the constitution is a higher order law, prior and superior to the powers of the legislative, judicial, and executive branches of government.Footnote 76
The Chinese Constitution establishes parliamentary supremacy in the form of the NPC. Article 2 of the Chinese Constitution states that all power in the country “belongs to the people.” And “the National People's Congress and the local people's congress at various levels are the organs through which the people exercise state power.” Article 57 of the Chinese Constitution officially established that “the National People's Congress of the People's Republic of China is the highest organ of state power.”Footnote 77 The National People's Congress as the supreme and highest organ of state power is not counterbalanced, at least in theory, by the other departments of the government.Footnote 78 Both the administrative and judicial branches are elected by it, and these organs are responsible to and supervised by the National People's Congress.Footnote 79 Such a status is “implied in the unitary constitutional structure, where the highest power is singularly lodged in the central (national) government and its laws and regulations enjoy unlimited supremacy.”Footnote 80 Although the Constitution is regarded as the supreme law and is superior to laws passed by the National People's Congress in the hierarchy of China's laws, the Congress has the right to interpret the Constitution. It is also easy for the Congress to amend the Constitution.Footnote 81 As Zhang Qianfan and Zhu Yingping point out, “In practice, both central and local authorities [the NPC and the local people's congress at various levels] have enacted laws and regulations imposing restrictions on religious freedom.”Footnote 82 For example, all citizens have the obligation to perform military service regardless of religious belief. Otherwise, they will be punished according to the Military Service Law enacted by the NPC in 1984. This provision fails to accommodate the special needs of those individuals who have religious reasons for objecting to military service. Furthermore, as Zhang Qianfan and Zhu Yingping point out, “Article 300 of China's Criminal Law, which was amended by the NPC in 1997, provides that “[w]hoever organizes or utilizes superstitious sects, secret societies … or sabotages the implementation of the state's laws and executive regulations” shall be sentenced to imprisonment of a fixed term between three and seven years.”Footnote 83
A related problem with the legislative supremacy is that the basic rights in the Chinese Constitution are legal rights. The extent to which these rights are protected is entirely dependent on the legislature. In addition, the basic rights in the Chinese Constitution involve all legal relationships, including not only relationships between the government and the individual, but also between private individuals. In practice, some lower court judges actively draw on constitutional principles when adjudicating private litigation involving “horizontally” oriented rights issues. Thus, Chinese constitutional rights are more important in ordering the relationship between non-state individuals than between the state and the individual. That means when an individual's constitutional rights are allegedly infringed upon by another individual, the state, in the form of the judiciary, makes a decision protecting the individual's constitutional rights.Footnote 84
In other words, the legal system of China is more about controlling the people than about restricting the power of the government over the people. Scholars such as John Head have interpreted this in light of China's attempt to achieve a “thin” rule of law. He has observed that “the flurry of legal reform undertaken in China in the past three decades has moved the country at breathtaking speed toward meeting that goal of a ‘thin’ rule of law.”Footnote 85 However, even today China does not meet standards of a liberal democratic version of a “thick” rule of law. A “thick” rule of law is a legal system that is in the best interests of the people. Disagreements abound as to “just what version of a ‘thick’ rule of law, if any, China aspires toward today.”Footnote 86 It is beyond doubt that China needs to move in the direction of what those seeking legal reform have identified as a “substantive version of the rule of law,” one that “protects certain basic rights” and promotes a certain version of justice.Footnote 87 But, for now at least, fundamental rights, including religious freedom, cannot be deployed by citizens to restrict the government.
Citizen's Duties Restrict Religious Freedom
Religious freedom, as one of the basic rights in the Chinese Constitution, is subject to the basic duties of every citizen as may be specified. A right is an entitlement or prerogative that an individual or organization has that lets him or her act in a certain way, or that lets him or her demand certain treatment from the government. Examples include a right to practice religion and a right to be treated equally by laws. A duty is the obligation that a person has to take a certain action or refrain from a certain action. “There has been a long and winding philosophical debate among Western philosophers on whether, or to what extent, rights and duties are correlative.”Footnote 88
The Chinese Constitution subscribes to the view that there can be no rights without duties.Footnote 89 Chapter 2 of the Chinese Constitution is titled “Basic Rights and Duties of Citizens.” Unlike the Bill of Rights in the US Constitution, this chapter, as its title suggests, provides the basic rights of citizens and the basic duties or responsibilities that every citizen is required to perform. While providing a particular right to the citizen, the Constitution often states simultaneously duties to the state. For example, Article 36 says that “the state protects normal religious activities” but adds that no religious affairs may be “subject to any foreign domination.”Footnote 90 Article 40 guarantees the “freedoms and privacy of correspondence,” but at the same time allows public security departments or surveillance organs to censor people's correspondence in accordance with procedures prescribed by law to “meet the needs of state security or of investigation into criminal offenses.”Footnote 91 Article 42 of the Chinese Constitution provides that Citizens “have the right as well as the duty to work,” but the “duty” may be specified by the state in a way that violates the individual's freedom.Footnote 92 Article 46 provides that citizens “have the right as well as the duty to receive education,” but the state reserves the right to specify the institutional program and curriculum pursued.Footnote 93 Other provisions in this chapter specifically spell out required duties that, when not performed, limit basic rights listed in the same chapter. For example, the first article of the chapter, “Basic Rights and Duties of Citizens” (Article 33), states, “every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law.”Footnote 94 In other words, “every right allowed Chinese citizens is matched by a corresponding duty.”Footnote 95 Although the term used in this article is “at the same time,” duties are seen as prior to rights. Whatever rights the Constitution may grant, Article 51 requires that “the citizen may not infringe upon the interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other citizens in exercising their freedom and rights.”Footnote 96 In short, every citizen enjoys his basic rights and freedoms only when he performs his basic duties. It can be concluded that the Chinese Constitution performs a game of “give and take” in outlining basic rights.
In additional to specific dutiesFootnote 97 and general duties,Footnote 98 the Chinese Constitution sets out five duties from Article 52 to 56 that every citizen must perform. These five mandatory duties limit the religious freedom in Article 36: (1) “safeguard the unification of the country and the unity of all its nationalities”; (2) “abide by the constitution and other laws, keep State secrets, protect public property, observe labor discipline and public order and respect social ethics”; (3) “safeguard the security, honor and interests of the motherland”; (4) “perform military service and join the militia in accordance with law”; (5) “pay taxes in accordance with law.”Footnote 99
First, national unity and security as stipulated by Article 52 and 54 are the top priorities of the Chinese government and are also the most acceptable political policies for the Chinese people. Therefore, these are often the most effective justification used by the government to restrict the rights of citizens. The Chinese government maintains that China must prohibit “any organization or individual from splitting the country, disseminating extremist religious thoughts, inciting ethnic hatred, undermining national unity, disturbing social order, or impairing citizens’ physical and mental health in the name of religion.”Footnote 100 However, the Chinese government's primary concern is national unity and security for the sake of maintaining the power of the CCP.
The desire for national unity and security is central to the reason why the Chinese government prohibits religious organizations from making foreign alliances. Catholic and Protestant missionaries were expelled from China when the CCP came to power in 1949. Although China's relations with the Vatican have been changing since early 2018, there may still be a long way to go because of many problems involved. In the past few years, with the increase of terrorist activity, the Chinese government began to strengthen controls on religion, especially in Xinjiang and Tibet, in the name of maintaining regional stability and safety. It is true that separatist and terrorist activity, whether or not based on religion, cannot be tolerated by any country in the world, and should be dealt with firmly. To take an example outside of China, “the U.S. government curtailed the political and civil liberties of non-citizens, expanded the detention and surveillance powers of law enforcement agencies, tortured detainees and tightened government secrecy as a result of the terrorist attacks of September 11, 2001.”Footnote 101 At the same time, such counterterrorism efforts provide excuses for governments to over-restrict religious freedom.Footnote 102
Second, the obligation to abide by the Constitution and various laws provides a “legitimate” basis for the legislature and local authorities to restrict and curtail religious freedom. The provision in criminal law concerning “evil cults” is an example. Article 300 of the existing criminal law identifies six categories of criminal behavior related to “evil cults.”Footnote 103 Article 300 thereby provides a legal basis for eliminating Falun Gong activities.Footnote 104 Presently, at least fourteen religions or denominations are officially labeled “evil cults” by the Chinese government.Footnote 105 Yet it is not clear who has the power to identify an evil cult.Footnote 106
Article 9 of the Advertising Law of China (2015) provides that “an advertisement shall be prohibited from … containing any … religious content.”Footnote 107 This provision not only prohibits preaching but also restricts religious expression. On June 1, 2014, Pastor Wang Yi of the Early Rain Reformed Church in Chengdu, Sichuan Province, was arrested in the name of “illegal advertising” while distributing anti-forced-abortion leaflets.Footnote 108 On the whole, as described in the preceding section, the article on religion of the Chinese Constitution does not prohibit the legislature from interfering with religious activities in the manner of the Constitution of the United States. Instead, it requires citizens to abide by whatever legislation is passed. This, in effect, empowers the legislature to restrict religious freedom.
Thirdly, the obligation to perform military service and join the militia in accordance with law once again restricts religious freedom. Article 3 of the Military Service Law of China clearly stipulates that all citizens of the PRC, regardless of religious belief, have the obligation to perform military service according to the provisions of this law. That means that no one in China can refuse to serve in the military based on religious belief. Jehovah's Witnesses (although not currently recognized as a legitimate group by the Chinese government) would have to serve in the military under the existing Chinese Constitution. Jehovah's Witnesses have been confronted with the issue of compulsory military service in many lands and have received support from many Constitutions.Footnote 109 However, in the Chinese Constitution, the obligation of citizens to the state is superior to any rights, including that of religious freedom.
Finally, paying taxes in accordance with law is also an obligation of religious organizations in China. Major tax exemptions enjoyed by religious organizations only apply to the land occupied by religious temples and churches. According to the Provisional Regulations on Real Estate Tax, “the real property of religious temples, parks, and places of historic interest or scenic beauty for their own use are exempt from property tax.”Footnote 110 “The ‘real property of religious temples for their own use’ refers to the buildings where religious rites are held and the houses for the religious staff to live in, but only if they are used by the organization and not leased to another unit.”Footnote 111
At present, the problem of tax exemption for religious organizations in China is obvious. In order to qualify for tax exemption, the law stipulates that religious organizations cannot engage in profit-making activities and may not collect fees, raise funds, or accept donations in violation of relevant regulations. These regulations, to a large extent, restrict religious organizations from offering charitable services or raising funds because religious organizations are not-for-profit groups and do not engage in commercial profit-making activities. They have no income and cannot engage in charitable activities. Therefore, the so-called tax exemption makes no sense to religious groups.
Article 59 of the Regulations on Religious Affairs in 2017 provides that
Religious groups, religious schools, religious activity sites, and religious professionals shall implement state provisions on tax management, lawfully pay taxes and enjoy tax benefits. Religious groups, religious schools, and religious activity sites shall handle tax registrations for religious professionals in accordance with law. Tax departments shall lawfully implement taxation management for religious groups, religious schools, religious activity sites, and religious professionals.Footnote 112
Thus, whether and to what extent religious organizations can enjoy tax exemption remains a pending issue.
In summary, the above-mentioned basic obligations of citizens in the Chinese Constitution limit the basic rights of citizens, including religious freedom. More importantly, these provisions about basic obligations are exceedingly vague, in the cases of national unity and security, or very general, in the case of provisions requiring individuals to abide by the Constitution and the laws. Thus, these vaguely and generally phrased provisions can be and are often invoked by the authorities of the People's Republic of China to restrict the freedoms of the citizen otherwise protected under the Constitution.Footnote 113
Religious Clause Restrictions on Religious Freedom
Finally, but even more importantly, Article 36 of the Chinese Constitution itself provides for a very limited religious freedom insofar as it provides for religious freedom at all. Article 36 consists of four sections and “is actually the most comprehensive of all the articles in the protections that it seems to offer citizens.”Footnote 114 The full article reads as follows:
(§ 1) Citizens of the People's Republic of China enjoy freedom of religious belief.
(§ 2) No State organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.
(§ 3) The State protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.
(§ 4) Religious bodies and religious affairs are not subject to any foreign domination.Footnote 115
Section 1 of this article specifies that citizens enjoy freedom of religious belief, but the last three sections place severe limits on that freedom. Furthermore, Section 1 only protects the “freedom of religious belief,” rather than freedom of religion, not to mention freedom of religious activities. According to section three, only “normal religious activities,” as opposed to all religious activities or legal religious activities, are protected by the State. Section 2 seems to be a neutrality clause stating that all state organs, public organizations, and individuals are to remain neutral between different denominations and between the religious and nonreligious. However, Section 3 provides grounds for nullifying this neutrality by stipulating that “religious activities shall not disrupt public order, endanger the health of citizens, or interfere with the state's educational system.”Footnote 116 Section 4 goes yet further, forbidding foreign domination of religious affairs.
While religious belief is protected, Article 36 does not guarantee the right to worship or otherwise practice religion. Zong jiao xin yang zi you (freedom of religious belief, 宗教信仰自由), rather than zong jiao zi you (freedom of religion, 宗教自由) is stipulated. Often called CCP Document No. 19 of 1982, The Basic Viewpoint and Policy on the Religious Question during Our Country's Socialist Period, sets the foundation for the current religious policy. Document 19 defines “freedom of religious belief” as follows:
What do we mean by freedom of religious belief? We mean that every citizen has the freedom to believe in religion and also the freedom not to believe in religion. Every citizen also has the freedom to believe in this religion or that religion. Within a particular religion, s/he has the freedom to believe in this sect or that sect. A person who was previously a nonbeliever has the freedom to become a religious believer, and one who has been a religious believer has the freedom to become a nonbeliever.Footnote 117
In short, Section 1 of Article 36 guarantees the freedom of an individual's inner belief. Section 2 ensures the inner freedom to choose religious belief excluding any external interference. But internal belief is a private, personal matter. The state has neither the power nor the ability to interfere in the private beliefs of individuals.
Sections 3 and 4 of Article 36 guarantee normal religious activities. As Joann Pittman has pointed out, “this concept of ‘normal religious activities’ is at the heart of the religious regulatory regime in China.”Footnote 118 Although the term “normal” has never been clearly defined,Footnote 119 a clue to its interpretation is found in the government's policy. Generally speaking, “the potential for religious authority to challenge and undermine state authority has led to a wavering and incoherent doctrine both internationally and within many countries with respect to such issues as separation of church and state and reasonable restrictions on religious practice.”Footnote 120 Clearly, from a practical point of view, the Chinese government retains the right to declare what religious activity is considered “normal” and what is not. Therefore, it can be said that what the government permits is considered “normal”; what it does not permit is considered “abnormal.” As Eric Kolodner points out, “During a 1988 conference on religion and socialism, government officials attempted to define what constitutes ‘normal’ religious practice.”Footnote 121 Kolodner goes on to quote from a summary of the discussion:
The so-called normal religious activities … refer to the religious activities other than the religious activities that are abnormal and illegal … It is in itself abnormal to put forward the term “normal religious activities.” The emergence of such an abnormal phenomenon is due to the fact that in carrying out religious activities, a small number of people, as actuated by some abnormal purpose, conduct religious activities in an excessively frequent and long manner.Footnote 122
John Tong has determined that “normal religious activities” can best be interpreted by looking at the “bottom lines” of the government's policy toward religious activity in China.Footnote 123 By examining some important documents published by the CCP and the central government of the PRC, Tong found four “bottom lines,” two from the speech of Li Weihan, former CCP head of the United Front department in 1980, the other two from Document 19. The first bottom line is the principle of “avoiding two extremes and keeping the middle way,” which means a “certain number” of churches are to be opened and a “certain number” of seminarians and sisters to be trained.Footnote 124 The second bottom line is that “while ‘winning over and uniting the greatest number of religious persons to serve socialism, we must also isolate the few reactionaries among them.’ This foreshadowed pressures that would later be brought to bear on the key leaders of the ‘underground’ church.”Footnote 125 The third bottom line is that “churches must adhere to the principle of the independent and autonomous administration of their own affairs. They must not permit any foreign religious body to come to China to do missionary work and they should oppose the diffusion of religious propaganda from abroad.”Footnote 126 The fourth bottom line is that “[f]oreign donations must be given without any strings attached. Small sums may be accepted, but large donations may not be accepted without government approval.”Footnote 127 According to the new rules released by the State Administration of Foreign Exchange governing the administration of foreign funds donated to or by domestic institutions, religious organizations accepting funds of 1 million RMB (around $162,800) or more must obtain permission from the State Administration for Religious Affairs (for national-level religious groups) and from the relevant provincial government (for local religious groups and sites).Footnote 128
Clearly the guarantee of religious activities freedom in Article 36 of the Chinese Constitution is not as absolute as similar guarantees in the constitutions of many Western nations. It can be seen from the above analysis that this guarantee is conditioned, first by whatever definition of “normal” activities the state wishes to invoke, and second by the state's interest in guiding social and individual development, including the exclusion of foreign religious influence. In addition, the caveat in Section 3 of Article 36 is that no one can use religion to disrupt public order, interfere with the educational system of the state, or impair the health of citizens. This is not wholly unfamiliar for US citizens, as case law has maintained similar restrictions on religion when it would cause, for example, imminent lawless action or would injure others.Footnote 129 However, what merits close attention is that this section prohibits anyone from making use of religion to interfere with the educational system of the state but does not prohibit the state from making use of education to interfere with religion.
There are some local governments making use of education to interfere with the religious practices of both children and adults. For example, local religious management officials in Wugang City of Hunan Province in February 2012 required parents to sign a guarantee promising not to participate in any “evil cult” activities as a prerequisite for their children registering in local public schools.Footnote 130 Many universities require students to sign a letter of commitment to ensure that they do not participate in religious activities.Footnote 131
All in all, as Pittman argues, “while the first half of [Article 36] seems to grant some measure of religious freedom,” it protects only the inner freedom of religious belief, not the freedom of religious practice. The second half of the article “actually places limitations or restrictions” on religious freedom. As Pittman concludes, “not only does [Article 36] not guarantee noninterference in religious affairs by the state, it spells out how and where the state can interfere” with religious activities.Footnote 132
Conclusion
From the above analysis, it can be seen that religious freedom in the Chinese Constitution is beset with problems. The term religious freedom is deployed, but it is unclear what it means. On the basis of the Chinese Constitution, citizens are free to believe what they want, but the government reserves the right to set the boundaries as to how the beliefs are practiced. And, more importantly, the limitations the government sets are dependent upon the Chinese Constitution. The Constitution establishes multiple limitations on religious freedom. First, the Chinese Constitution establishes state atheism as an official ideology, rather than remaining secular and neutral. All Chinese citizens, whether religious believers or not, are required to be educated by the atheistic government and under the leadership of the CCP. Second, religious freedom, among other rights in the Chinese Constitution, is a legal right, rather than a fundamental right, which means that these so-called rights and freedom are vested by the Constitution, and since they are not inalienable, they are subject to legal restrictions. The NPC can and does pass legislation, to a certain extent, limiting individuals’ religious freedom. Third, the Chinese Constitution stipulates basic obligations of citizens that limit religious freedom. Fourth, Article 36 of the Chinese Constitution protects only the inner freedom of religious belief, not the freedom of religious practice. And the second half of Article 36 places restrictions on religious freedom. In sum, religious freedom in the Chinese Constitution is an exceedingly limited form of freedom.
Although it is true that “China's Constitution is unenforceable, and plays little role in China's legal system,”Footnote 133 it cannot be ignored that the Chinese Constitution itself establishes many limitations on religious freedom. To promote religious freedom in China, it is necessary to amend the Constitution rather than merely to promote its implementation. Many Chinese people believe that the actual implementation of the Constitution would be sufficient to protect their fundamental rights.Footnote 134 However, implementation is insufficient for the promotion of religious freedom. Article 36 of the Chinese Constitution provides a sort of religious freedom, but the goal of this clause and the whole Constitution is not to preserve religious liberty to the fullest extent possible, but rather to keep religions subservient to socialist society. It is possible to protect religious freedom through the implementation of the Constitution only by removing the constitutional handcuffs on religion. As for how to amend the Constitution in regard to religious freedom protections, further research is required.
Acknowledgments
In writing this article, I benefited tremendously from my participation in the Advanced Program on Religion and the Rule of Law at Christ Church, Oxford (2018), sponsored by the International Center for Law and Religion Studies at Brigham Young University, and the visiting scholar program at Notre Dame University, sponsored by the Veritas Forum. I also offer my profound thanks to Professor Richard W. Garnett of Notre Dame University; Professor Michael J. Perry of Emory University; retired federal judge Rollin A. Van Broekhoven; Professors Brett G. Scharffs, W. Cole Durham Jr., and Jane Wise of Brigham Young University; and Professor Lance N. Long of Stetson University for their encouragement and thoughtful comments, feedback, and suggestions on earlier drafts of this article. Special thanks to Steve and Charlene Giegerich and Virgil Wesco for help with my English grammar. Thanks also to the anonymous peer reviewers and editors of this journal for their valuable suggestions and guidance. This research was partially supported by a grant from the 2017 School-Level Scientific Research Program (no. 17ZFG82011) and No. 5 Young Professors Academic Research Team Program (no. 18CXTD10) of China University of Political Science and Law.
