Two Chinese Commentators on the Slow Progress towards a Law on Religions

Abstract

2010: The Legal Context In 1956, Liu Shaoqi, then President of China, said in his report to the National Congress of the Communist Party of China that the establishment of a complete legal system had become an absolute necessity. (1) But priorities quickly changed for the Party, and establishing a legal system was soon openly criticised by Premier Zhou Enlai. The work of establishing a legal system was not begun until after the Great Proletarian Cultural Revolution. But it was not until more recent times that Jiang Zemin promised that China would have a complete legal system by 2010. (2) In March this year, the Chairman of the Standing Committee of the National People's Congress, Wu Bangguo, promised that the work would be complete in 2010. (3) However, even the basic framework is unlikely to be in place by the end of 2010, much less a fully complete legal system. This is particularly evident in the area of law relating to religion. In any country, it would be difficult to prepare and pass appropriate comprehensive laws, but in China, there are special difficulties which will be examined in this short paper. Part of this effort to establish a legal system has been the movement towards a more constitutional form of government. A key step was the establishment of the Legislation Law in 2000. (4) According to the Legislation Law, future laws would be enacted according to a standardised process, and past laws would be brought into conformity with the Legislation Law. This process requires a hierarchy of laws: at the peak is the Constitution, then the laws passed by the National People's Congress, and under the authority of those laws, there is provision for national administrative regulations, and below these, local regulations. The State Council Information Office published a White Paper on 28 February 2008 entitled China's Efforts and Achievements in Promoting the Rule of Law. (5) The White Paper, composed of eight chapters and six appendices, describes the Chinese people's protracted and unremitting struggles for democracy, freedom, equality and the building of a country under the rule of law. The document is well worth reading, for the insight it gives into the categories and assumptions of the Party in establishing legislation. Who should legislate for religion? The White Paper provides that: In accordance with the Legislation Law of the People's Republic of China, laws on the following affairs must be made exclusively by the National People's Congress and its Standing Committee: affairs involving state sovereignty, the formation, organisation as well as the functions and powers of state organs, the system of regional ethnic autonomy, the system of special administrative regions, the system of self-government of people at the grassroots level, criminal offences and their punishment, deprivation of citizens' political rights, mandatory measures and penalties involving restriction of the freedom of the person, expropriation of non-state-owned property, basic civil system, basic economic system and basic systems of finance, taxation, customs, banking and foreign trade, and systems of litigation and arbitration. But the National People's Congress and its Standing Committee have yet to legislate for the important question of religion, and to regulate the functions and powers of the state organs which control religion. This failure will be explained below. The White Paper also points to the Constitution as the legal safeguard of freedom of religious belief: The Constitution stipulates that citizens of the People's Republic of China enjoy freedom of religious belief. No state organ, public organisation or individual may compel citizens to believe in or not believe in any religion; nor may they discriminate against citizens who believe in or do not believe in any religion. The state protects normal religious activities. …