China's New Regulations on Religion: A Small Step, Not a Great Leap, Forward

Brigham Young University Law Review, 2005 by Carlson, Eric R

I. INTRODUCTION

The interaction of government and religion in China has long been a volatile situation. As the number of religious believers grows, the situation does not appear to be improving.1 While the Chinese constitution guarantees freedom of religious belief, the government of China maintains close supervision over religion and religious activities with a complex system of legal mechanisms and enforcement actions. As part of its larger program for social control, the government permits some religious liberties for authorized and supervised religions, and generally prohibits, represses, and prosecutes unauthorized groups. Simultaneously, China is making the transition from a "rule by law" society, where the government uses the law to rule and is itself above the law, to a "rule of law" society, where law binds all actors-governmental and individual.2

The Chinese government recently issued new regulations governing religions and religious activities.3 The government asserted that these new regulations, which became effective March 1, 2005, are a "paradigm shift" and a "turning point" in religious affairs and will standardize disparate regional practice, provide more legal recourse for citizens whose rights have been violated, and generally "safeguard" religious freedom in China.4

This Comment analyzes these new regulations and argues that the new regulations are a step in the right direction toward the rule of law in China in that they provide more uniformity in the administration of religious regulations, clarify the interaction between religious bodies and government organs, give recourse to citizens whose religious liberties have been violated, harness the vagueness of the regulations to achieve flexibility in accommodating religion, omit some restrictive provisions found in previous regulations, and give additional legal protections in a few areas. Despite these improvements, the regulations are only a small step towards true religious freedom because they represent continuing strong state supervision of religion, do not protect nonsanctioned groups, provide punitive and possibly arbitrary penalties for noncompliance, leave interpretation of important yet vague provisions to bureaucratic discretion, and leave unanswered hosts of questions regarding other religious regulations and implementation issues. Unfortunately, whether the new regulations ensure religious freedom hinges on how government officials implement and interpret the regulations at the national, provincial, and local levels.5 In all, the regulations reflect a small step toward true religious freedom in China but no more.

Part II of this Comment gives a brief overview of law and policy in China and the structures that affect religious administration. Part III analyzes the improvements and shortcomings of the new regulations and includes a discussion of questions the regulations fail to answer. Part IV offers a brief conclusion and a look toward the future. The Appendix contains an English translation of the new regulations.6

II. A BRIEF OVERVIEW OF LAW, POLICY, AND RELIGIOUS ADMINISTRATION IN CHINA

Law does not exist in a vacuum, and the structures and history of religious administration in China give context and background to the new regulations. In China, the Communist Party heavily influences state decision making. The state, in turn, wields formal executive, legislative, and judicial power, as well as supervising the quasi-public religious associations.7 Various state organs closely monitor and supervise religious affairs.8 While the Party, government, and government-associated organizations at all levels are generally treated as a monolith, sometimes each body-and different levels of the same body-has different interests and motivations.

A. The Communist Party

The Communist Party of China (CPC or "Party") is the "party in power" in China and has been since Mao Zedong consolidated power in 1949.9 The CPC provides the leadership in establishing policy, interpreting law, and enforcing regulations using state organs. The official Party doctrine regards control over religion as a short-term solution while awaiting religion's eventual demise. The Party prefers to co-opt and harness religion rather than to fight it.10 Party members-who are required to espouse atheism-fill all major state offices.11

B. State Structures

1. Constitution

While the CPC is the party in power, the state constitution is at least theoretically the supreme law of the land.12 Article 36 of China's latest constitution, enacted in 1982, provides for "freedom of religious belief" and protects "normal religious activities," although neither phrase is defined. Article 36 also prohibits individuals, organizations, and state organizations from compelling citizens to believe or to not believe in religion and from discriminating against citizens based on religious belief. Religious groups and activities must be free from "foreign domination," though this term is also left undefined.13

2. State Council, Religious Affairs Bureau, and Public Security Bureau