The Laws of China and its Interaction with Religion

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The Laws of China and its Interaction with
Religion

• HKU Faculty of Law LLAW 3118
• Professor Benny Tai

Rob Kallio Ken Lee Hugh McKee Jordan
Nahmias Frankie Tam
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Agenda of Presentation

• Chinese Legislations and Regulations on Religious
  Affairs
• Intro to Religious Freedom in China
• Christianity
• Islam
• Confucianism
• Judaism
• Falun Gong
• Conclusion

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Intro to Religious Freedom in PRC

• China officially recognizes five religions
• Buddhism
• Catholicism
• Islam
• Protestantism
• Taoism

4
Chinese Legislations and Regulations on Religious
Affairs

• International Documents
• International Covenant on Civil and Political
  Rights Article 18
• Universal Declaration of Human Rights (1948)
  Article 18
• United Nations Charter Article 1(3), 55
• United Nations Declaration on the Elimination of
  All Forms of Intolerance and of Discrimination
  based on Religion or Belief

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Chinese Legislations and Regulations on Religious
Affairs (2)

• Current Domestic Laws
• Constitution of the Peoples Republic of China
  (1982) Article 36
• Document No. 6 Circular Issued by the Central
  Committee of the Communist Party and the State
  Council on Some Problems Concerning Further
  Improving Work on Religion (5 Feb 1991)
• Document No. 19 The Basic Viewpoint on the
  Religious Questions During Our Countrys
  Socialist Period (31 Mar 1982)
• Regulations on the Management of Religious
  Activities of Foreigners in China (Decree 144 of
  State Council, 31 Jan 1994)
• Religious Affairs Regulations (Decree 426 of the
  State Council, 30 Nov 2004)

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Intro to Religious Freedom in PRC (2)

• Constitutional protection of religious freedom
• Subject to Community Party leadership
• Communism
• 1950s goal of religious freedom to lead people
  to abandon religion
• Control by CCP over official religious
  organisations
• Govt financed religious publications
• Control religious activities involving foreigners
• CCP National Religious Work Meeting (2001)
• Religions will survive for long time
• Influence on national development and social
  stability
• Factor in international politics

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Christianity in the PRC

• Brief history
• The CCPs current strategies on Christianity
• -three-self policy self-administration,
  self-support, and self-propagation
• -Only protects normal activities
• -mandatory registration with patriotic
  association (Chinese Protestant Three-Self
  Patriotic Movement, China Christian Council)
• -Limit external influence on churches

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Christianity in the PRC (2)

• Challenges faced by Christian churches today
• -Officially registered churches
• -underground churches

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Christianity in the PRC (3)

• Officially registered churches
• -close supervision by government controlled
  patriotic association
• -mandatory political education for churches
  personnel
• -lack of foreign churches support
• -Screening of preaching
• -banning Christians from joining the Communist
  Party
• -uncertainty about the definition of normal
  activities

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Christianity in the PRC (4)

• Underground churches
• -regarded as illegal in China
• -frequent raids, arrests and detention
• -Criminal prosecution of religious dissidents,
  or counter-revolutionary charges
• -Labour camps and unfair trails

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Christianity in the PRC (5)

• Since Chinas opening up of its economy in 1979
• - Law is used as a tool to suppress Christianity
• More recently, from 2000 onward
• -an emphasis on accommodation, churches
  adaptation to Chinese socialism, social harmony
  and development of rule of law
• -Law is used as a tool to allow religious
  tolerance, but no freedom of religion is
  guaranteed

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Islam in the PRC

• Historical Background
• Focus on Modern China after est. of PRC
• Two dimensions
• State and Religion (Islam)
• State and Ethnicity (Hui and Uygurs, etc.)

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Islam in the PRC (2)

• Inception Trading with Arabs coming to China in
  Tang Dynasty (7th century)
• Refused to kowtow to Chinese Emperor
• Islam not recognise filial piety (xiao)
• Each viewed other as foreigner
• Yuan Dynasty Resentment against Muslims and
  Stereotypes
• Qing Dynasty Muslim Rebellions

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Islam in the PRC (3)

• Islam as a way of life without a separation of
  state and religion.
• Strong sense of foreignness
• Belong to larger Islamic world the universal
  Umma.
• reinforced through the daily prayers, and Hajj
  (the pilgrimage to Mecca)
• Brew suspicion between state and Islam
• Constant suppression by Chinese rulers and
  rebellions of the Muslims

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Islam in the PRC (4)

• Pragmatism Room to manoeuvre under Islamic
  theology
• War between Dar-al-Islam (Pax Islamica)
  consisting of Islamic and non-Islamic territories
  held under Islamic sovereignty and Dar-la-Harb
  comprising of rest of the world
• While fighting for Islamic superiority in
  Dar-la-Harb, Muslims under religious obligation
  to take cognisance of (not accept) non-Islamic
  sovereignty (for considerations of law and order)
• Ambiguity whether a territory which Muslim law
  is respected but the rulers are non-Muslims
  constitute Dar-al-Islam or Dar-la-Harb
• Unclear means of jihad

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Islam in the PRC (5)

• Preventing succession of Xinjiang
• Religious schools closed down
• Only licensed religious leaders could preach
• Written pledges of loyalty to govt required
• Diplomacy Middle-Eastern and Arabic policies
• Diplomatic connections set up between China and
  Arabic countries
• Search for new energy sources from Middle East
• However, greater exposure of Muslims in China to
  great success of Islamic world

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Confucianism in the PRC

• Background and History
• Confucius, the philosopher (551 479 BC)
• Thought to be the author of the Five Classics, a
  set of ancient books used as a basis of study for
  Confucianism
• Popular after he died through his disciples
• His teachings found in the Analects of Confucius

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Confucianism in the PRC (2)

• Key Practices and Teachings
• Morality and Virtue
• human beings born to pursue 4 fundamental
  qualities
• Propriety (Li), Humanity (Ren), Righteousness
  (Yi), and Wisdom (Zhi)
• Relationships
• Confucian state is composed not of individuals
  but of interconnections everyone is expected to
  have a role and know their role
• The Superior Man
• portrayed as wise, humane, and courageous
  motivated by righteousness rather than profits
• A well-ordered society is a result of behavioural
  exemplification of the superior mans moralistic
  virtue

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Confucianism in the PRC (3)

• Is it a religion?
• Focus on present life, not next life
• No central God or supernatural entity
• More a way of life or philosophy
• based on a moral system where phrases and
  teachings suggest how one should lead their lives
• Depends on what definition of religion is used

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Confucianism in the PRC (4)

• History of Treatment in PRC
• Qin Dynasty (221 BC 206 BC)
• All schools of thought besides Legalism were
  banned
• Burning of intellectual books and burying
  Confucianism
• Han Dynasty (206 BC 220AD)
• Confucianism as we now know it began
• Emperor Wu officially declared China a Confucian
  state and used Confucianism as a political system
  to run China
• Confucianism has survived since then, often
  debated with Buddhism and other rising religions
• Republic Period (1912-1948)
• many believed Confucianism and its traditional
  roots would not move China into the modern,
  industrial world
• Cultural Revolution (1966 1976)
• Mao used Confucian ideals to praise sacrifice for
  the greater good, but spoke out against
  Confucianism

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Confucianism in the PRC (5)

• Current state of Confucianism in China
• Not recognized as an official religion by PRC
• No evidence of official persecution of its
  practice
• Has permeated throughout Chinese culture,
  including legal system
• Contract negotiations
• Enforcement of piracy laws
• Mediation and arbitration
• Judicial independence

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Judaism in the PRC

• Key Aspects of Judaism
• Compatibility with Chinese Culture and Communism
• Historical Background
• A brief history of Judaism in China
• Past and Present Treatment of Jews in China

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Key Aspects of Judaism

• Although hundreds of rules govern the lives of
  Orthodox Jews, some basic rules include
• kosher,
• Sabbath,
• High Holiday observances,
• freedom of practice,
• Temples of Worship.
• Generally speaking, Jews can live under any
  government, so long as they are allowed to
  practice freely.
• However, in China, there are limitations
• For example, the general absence of Kosher meat,
  lack of Synagogues and restrictions on religions
  which are not approved by the Communist Party,
  make practicing Judaism difficult, if not
  impossible.

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Historical Background

• Jewish presence in China since 1605, in Kaifeng,
  possibly dating from the 11th C.
• Jews in China beginning in the Tang and Song
  Dynasties
• Jews have historically lived in Harbin, Shanghai,
  Kaifeng and Nanjing, as well as other cities
• Traditionally, referred to as youtai zhong,
  loosely meaning the Jewish Race

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The Movement of Jews into China

• Jews arrived during the Han Dynasty, and followed
  in the Tang and Song Dynasties, through to the
  Qing Dynasty

Early Kaifeng Jews in traditional clothing
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• In the late 19th and early 20th centuries, many
  more Jews arrived in Harbin, Nanjing and
  Shanghai, as they were colonial business and
  financial centres.

• By the 1930s and 1940s, Jews were bring forced
  out of Europe, and many fled to the same cities
  in China to escape the Holocaust.

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• During World War II, many more Jews fled to
  China, specifically to Shanghai, where the
  remaining Jewish communities exist today.

The remaining parts of the Ohel Moishe Synagogue,
in Shanghai. It was used as an insane asylum
until recently.
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Treatment of Jews in China under the Cultural
Revolution

• By the time of the establishment of the PRC, few,
  if any Jews remained in China
• Under Maos laws, and as a result of the Cultural
  Revolution, Jews were seen as a separate and
  distinct race.
• Most, if not all, synagogues and temples in China
  were destroyed, and Jews were forced to leave
  China.

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Intellectual Treatment of Jews

• Authors such as Pan Guangdan Wu Zelin, maintained
  an interest in Jews, even when they were
  mistreated in China.
• They argued that since the Han Dynasty was
  superior, and the Jews assimilated with the Han
  Dynasty, then the Jews are a superior race.
• They also suggest that Jews are forever imagined
  in the context of money lenders, oppressed
  people, smart, capitalists, and a distinct race
  altogether.

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• Today, interests in Jews as people, and not a
  religion, are at a high point.
• Since recommencing relations with Israel, Israel
  is Chinas second most important trading partner
  (particularly in arms and war technology)
• Books, like Youtairen Chaofan Zhihui Jiemi
  (Revelations on the Jews Superior Intelligence)
  are becoming part of popular literature
• Jewish descendants in Kaifeng have been given
  allowances, and exempted from the birth control
  policies, in order to create a rebirth in
  Chinas Jewish minority

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Flattering Anti-Semitism

• However, the interest in Jews today is more on
  the imagined basis that all Jews are rich,
  clever, successful and can handle money
  efficiently.
• Moreover, the new treatment of Jews in Kaifeng
  has been argued to be an example of the Chinese
  government portraying itself as tolerant of
  other religions.

Headline from a magazine which reads CHILDHOOD
COMPANIESMaking money from children is no longer
only a trick of the Jews. The whole world has
joined this activity...
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Falun Gong in the PRC

• I Is the practice of FLG a religion?
• II Human Rights
• III Background
• IV The PRCs Legal Toolkit
• V The Results
• Concluding Thoughts

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Issue I Is the practice of FLG a religion?

• What is a religion?
• Lack of intl consensus
• Academic classification methods
• New Religious Movement (NRM)
• What is a cult?
• What is an evil cult organization?

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Issue II Human Rights

• Freedom of Religion - UDHR
• Belief vs. Manifestation dichotomy
• Collectivist vs. Individualist Rights
• Confucius state, collective, individual
• Can China accommodate freedom of conscience?

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Issue III Background

• Founded by Li Hongzhi 1992
• Central Text Zhuan Falun
• Eclectic mix of Buddhism, Doaism, Confucianism
  the qigong
• Cultivation of truthfulness, compassion and
  tolerance
• Appeal to marginalized groups in society large
  cross-section of followers
• April 25, 1999 10,000 practitioners
  demonstrate outside of Zhongnanhai
• Even by the regimes conservative enumeration, it
  is one of the largest non-govt. organizations in
  the history of the Peoples Republic

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Issue IV The PRCs Legal Toolkit

• Art. 36 of the PRC Constitution
• FLG repression had to fit within the limitation
• Executive needed to be reinforced in either NPC
  decision or judicial interpretation
• PRC Law Governing Assemblies, Parades and
  Demonstrations not especially useful
• July 22, 1999- Ministry of Civil Affairs declared
  that the FLG was an illegal organization
  applied various Articles of the November 1989
  Regulations Governing the Registration and
  Administration of Public Organizations, various
  CL provisions, and Regulations Governing Public
  Order and Security REGISTRATION
• warrant for the arrest of Li issued by the
  Ministry of Public Security
• Legislative
• Oct. 30, 99 NPC Standing Committee promulgated
  the Decision to Eradicate Evil Cult
  Organizations and to Prevent and Punish Evil Cult
  Activities passed a decision to eliminate FLG
  activities eliminate evil cult organization,
  re-educate
• Didnt answer What is an evil cult organization?
  In what ways the FLG fits into this definition?

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Issue IV Cont.

• Judicial
• Applies Article 300 of the Criminal Code to cults
  clarifies degrees of severity of related crime
• Increased substantive content
• The rule of law tied to heresy
• Ex post facto determination?
• Notice 29 (Nov. 99) instructions to local
  courts must be fully aware of the important,
  complex, and long-term nature of this struggle
  and they must make it their serious public duty
  to punish every kind of heretical organization
• Penal Code can only target peoples actions, not
  their thoughts or group identity (Gao)
• The FLG was accused of breaking a range of
  specific laws on publication, associational
  registration, demonstration and the illegal
  misappropriation of confidential state material,
  and various sections of the Regulations on
  Governing Public Order and Security, related CL
  provisions with regard to disturbing social
  administrative order and specific crimes dealing
  with illicit sexual relations and cult practices
  resulting in personal injury or death.
• RETL Camps 99
• Forced Labour Camps violates multiple articles of
  the PRC Constitution (5, 10, 33, 37, and 38)
• A newly constructed balance between the
  requirements of rights protection and public
  order (Ronald C. Keith and Zhiqiu Lin, The China
  Quarterly)

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Issue V The Results The Paradox

• Deaths
• Increased devotion to the practice
• A potential international PR disaster
• The fall of communism or the adaptation to a
  system better able to accommodate competing power
  bases?
• Internal public opinion A mixed reaction

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Falun Gong - Conclusions

• Hard to ascertain the facts
• Broad brush stroke is alarming
• Belief vs. Manifestation
• International Customary Law belief
• ICC jurisdiction Crimes Against Humanity
• unable or unwilling sovereignty waive
• Issues of Complicity?

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• Questions