For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.
Part IV—Zhiwei Tong (童之伟) Series: The state is obligated to provide equal protection for citizens’ religious beliefs
Speaking of seeking a consensus, we should start by analyzing our Constitution for its position on church and state relations. From the theoretical perspective of Marxism, it agrees with the implementation of separation of church and state in a socialist country, and does not agree with the establishment of a state religion or the lack of separation between church and state. At the legal level, China’s Constitution does not directly make provisions on church and state relations though from the relevant provision one can see the stand that the Constitution takes on the establishment of a state religion and on the lack of separation between church and state.
Article 36 of the Constitution provides that: “Citizens of the People’s Republic of China enjoy freedom of religion. / No state organs, public organizations or individual may compel citizens to believe or not in any religion, nor discriminate between religious and non-religious citizens. / The state protects normal religious activities. No person shall make use of religion to carry out activities that would disrupt public order, impair the health of citizens or interfere with the educational system of the state. / Religious bodies and religious affairs are not subject to any foreign interference.” From the above provisions of the Constitution itself, we still cannot see whether the Constitution sanctions a state religion or the lack of separation between church and states. However, there is a paragraph within Article 33 of the Constitution that says, “all citizens of the People's Republic of China are equal before the law.” From these provisions within the Constitution, the problem then answer becomes clear.
Taking Article 33 and 36 of the Constitution together, we should conclude that: the Chinese constitution would not only contradict the existence of a state religion or the lack of separation between church and state, but also require the equal treatment of its citizens regardless of their religious beliefs. Equal protection of citizens’ freedom of religion, requires the State to treat various religions without a hint of favoritism. Establishing a state religion or failing to separate the church and state, regardless of the country is bound to result in different levels of intimacy between the government and various religious groups; the opposite is true as well, if you have varying degrees of familiarity with different religions then it would inevitably result in the creation of a de facto state religion or a situation where the church and state are not separated. In both cases, the state would violate the Constitutional requirement of equal protection of freedom of religion. Because, the state’s one-sided support of a religion is bound to constitute discrimination against citizens of other religions, it would constitute infringement of citizens’ right to freedom of religion.
In this regard, the latest and most vivid demonstration occurred at Baoshan in Shanghai. According to reports, on the morning of January 1, 2011, Baoshan Temple held its 500th anniversary by rebuilding the statues of Buddha. Leaders from Shanghai Municipal People’s Congress Standing Overseas Chinese Ethnic and Religious Affairs Committee, Shanghai Ethnic and Religious Affairs Committee, Communist China, Baoshan District, the District People's Congress, District Political Consultative Conference, and district government authorities and agencies all attended the celebrations. A deputy director of the Shanghai Ethnic and Religious Affairs Committee also gave a speech, saying “I hope that party leadership and government departments in all districts and counties in future construction efforts can learn from the successful experience of Baoshan district so that when construction goes ahead at temples in other districts and counties we can all not only be good leaders, but good protectors as well.” It seems that the government and other public organizations of power are expressing significant support for certain religions.
We can say with some certainty that the involvement and support of national and other public authorities with a particular religion is not consistent with the law and spirit of the Constitution. In accordance with the Constitution, citizens have the freedom of religion and are equal before the law. Irrespective of creed or religion, all citizens should have the right to equal protection of the state. The state has the obligation of guaranteeing the freedom of religion and must not exhibit any favoritism and engage in any form of discrimination. In reality, state support for the activities of one religion, if it does not give equal support to the other religions, then it is a violation of the equal rights of citizens of other religions, undermining their freedom of religion. This truth cannot be ambiguous. According to the requirements of the above provisions of the Constitution, the state or those acting on behalf of the state or its public agencies should take the position that equal support be granted to activities of all religions, or no support for any religious activities are allowed ensuring state neutrality and equality between the religions.
If we take above provisions of the Constitution as a requirement for secularization, then the state only has one option: cease all participation and support for any religious activity and strive to remain neutral and equally apart from the various religions. In modern nations governed by rule of law, almost without an exception, follow this rule governing the relationship between church and state. Of course, there are often fuzzy boundaries and disputes. In general, it is pretty standard for the state and representatives of public authorities to not get directly involved in or support any religious activity. However, in order to maintain an equal relationship between the state and all religions is quite difficult and controversial.
For decades, the state and other national agencies have discriminated against the various religions, damaging the right of citizens to freedom of religion and equal protection before the Constitution. We have obviously witnessed a lot of state organs and leaders participating and support Buddhist religious activities, but we have almost never seen any state participation or support for Christianity and other religions. According to the Constitution, if state organs participate and support Buddhist activities, they must also participate and support in other religious activities as well.
In today’s seminar, Professor Guo Daohui talked about the constitutional principal of issues that has many teachable benefits. There are a couple of truths that can be explained further.
First, China must first enact legislation to protect fundamental rights such as freedom of religion. Given the rigorous enforcement of the statutory system of the country, if something is not written in the Constitution, then it is not enforceable. For many fundamental rights, even if it is written in the Constitution, it is treated as not being present. Moreover, even if fundamental rights are implemented within law, there is no guarantee that they will be effectively protected. Therefore, the development of a special law to protect religious freedoms and implement the relevant provisions of the Constitution is an absolute necessity.
Second, in order to protect the freedom of religion, the law should be able to take make certain restrictive provisions on the specific behavior of citizens exercising religious freedoms. However, these restrictions are conditional. Under normal circumstances, constitutional guarantees of fundamental rights can only be restricted by law and cannot be restricted by any form of regulations. If you can regulate, then it is tantamount to saying that even provisions of the Constitution approved by a two-thirds majority of the National People’s Congress can be arbitrarily denied by administrative organs or departments. This reasoning, in theory, is logical.
Legal restrictions on the fundamental rights of citizens ensure that everyone can fully enjoy their rights and freedoms. These rights should not limited for the sake of limiting rights and cannot deny or reduce a citizen’s basic rights for the for the purpose of restricting fundamental rights. Otherwise, it becomes a violation of the provisions and spirit of the Constitution.
Third, the law used to limit citizens’ fundamental rights cannot violate the provisions and spirit of the Constitution. If such is the case, then such a law should be determined invalid upon examination. In order to sincerely consider the Constitution, we cannot insult people’s intelligence and employ self-deception to deceive.
The Regulations on Religious Affairs that everyone is discussing is a set of administrative rules and regulations. If this set of regulations is a precursor to the enactment of laws regulating the behavior of government management of religious affairs, then there is no problem as it will have no impact upon citizens being able to enjoy their religious freedoms. However, if these regulations impose substantial restrictions upon a citizens’ freedom of religion, then we must consider the regulations’ constitutionality. This problem is rather complicated and requires a careful study of the situation.