Introduction

As an officially atheist country which once denounced religion as “the opium of the people”, the People’s Republic of China (PRC) has had to grapple with the reality that there are at least over 100 million religious believers in China today.[1] Adding further complexity to the situation is the fact that many believers are at the same time ethnic minorities, inhabiting two-thirds of the total area of China.[2] Given the sheer size and geographical extent of religious believers, efficient regulation of religious activities to ensure social stability and regime legitimacy has become one of the top priorities of the Chinese Communist Party (CCP). This paper traces the development of religious laws and regulations in the PRC in response to China’s ever-changing social, political and economic reforms. It is contended that the CCP has been quite successful in flexibly and pragmatically reinterpreting various religious organizations as contributors to China’s “socialist spiritual civilization” (shehuizhuyi jingshen wenming), instead of the traditional Marxist “opiate” view.

Since the CCP first came into power in 1949, it has maintained tight control over religion through its United Front Work Department and Religious Affairs Bureau. The CCP’s initial expectation was that religion would disappear in a relatively short period of time upon China’s re-engineering into a socialist society in due course. Thus, only five “religions” were officially recognized by the CCP: Daoism, Buddhism, Islam and Protestant and Catholic Christianity. All five religions were required to adopt the administrative structure of “patriotic religious organizations” to bring them under unified supervision and management accountable to the Party. However, even this restricted sphere of toleration was gradually curtailed throughout the 1950s and 1960s, as Chinese politics leaned increasingly towards the left, and was entirely abrogated during the catastrophic Cultural Revolution of 1966-1976.[3]

The 1980s: Document 19

After the Cultural Revolution ended, the CCP started to adopt a relatively more tolerant perspective on religion.[4] Ever since, Party policy on religion over the past 30 years has reflected a marked departure from the repressive policies of the Maoist period. The restoration of the policy of freedom of religious belief first began in a national religious work conference attended by more than eight hundred cadres and religious leaders in Shanghai in January 1979. The conference publicly criticized the undermining of religious policy by the “Gang of Four” and announced both the rehabilitation of key religious leaders and the Party’s intention once again to permit “normal religious activities”.[5] Religious belief was once again recognized as a personal and private matter to be protected by the Constitution. This change in policy was not merely a reversion to the pre-1966 situation.[6] The new policy sought to correct “leftist errors” going back to the early 1950s, such as requiring all religious property that had been confiscated since 1949 to be returned to religious organizations, and compensation be paid for the years of occupation.[7]

The official stance of CCP policy on religion was summarized and issued in 1982 as “Document 19”, which reaffirmed the state’s basic policy of respect for and protection of freedom of religious belief, pending such future time when religion itself would disappear.[8] Document 19 also stated that the anti-religious violence of the radical leftists had “forced religious movements underground”, leading to a rise of illegal practices and counterrevolutionary groups.[9] Apparently, the CCP realized that coercion to prevent religious belief was ineffective and counterproductive.[10] In short, China’s religious policy laid down in Document 19 aimed to unite all believers in each religion under one umbrella and bring them into the open, thus ensuring that religious groups stayed loyal to the regime and that religious activities remained within acceptable limits. Another sign of the CCP’s tolerance for religious freedom was the new Criminal Code adopted in July 1979, which added a clause (Article 147) making state personnel liable to prosecution for depriving citizens of their religious freedom.[11]

The Constitution

The promulgation of China’s 1982 Constitution after the Cultural Revolution also expressly protects freedom of religious belief in Article 36 (which is retained in the constitutional amendments of 1988, 1993 and 1999):[12]

(1) Citizens of the PRC 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.

However, the protection of freedom of religious belief, as with other citizens’ rights, was qualified by Article 33, which states that “every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law.”[13] These duties were the Four Basic Principles of (1) upholding the socialist road, (2) the dictatorship of the proletariat, (3) the leadership of the Party, and (4) Marxism, Leninism, Mao Zedong Thought.[14] Hence, freedom of religious belief is conditional not only on compliance with the law and relevant regulations, but more fundamentally on submission to the CCP’s policies and edicts of the party-state. The necessary requirement that religious believers must be patriotic can be expressed in the slogan “Love one’s country, love one’s religion (aiguo aijiao) and in that order. As such, all religious organizations and believers in China must observe this “patriotic” dimension when exercising their freedom of religious belief.

If we take a closer look at Article 36 above, the first two clauses are constitutional guarantees of freedom of religious belief, while the latter two clauses are restrictions on that freedom. It is ambiguous as to whether the first two clauses take precedence over the latter two clauses or the other way round. From a constitutional legal perspective, the first two clauses on religious freedom should be the general principle, while the restrictions contained in the latter two clauses should be the exception. However, it is unclear whether the Constitution adopts this interpretation.[15] In reality, the situation is often reverse, that is, religious freedom is the exception, while restriction on religious activities is the norm. It is contended that freedom of religious belief is merely a component of the CCP’s approach to rebuilding regime legitimacy.[16] After the chaos of the Cultural Revolution, the CCP was willing to accept a trade-off of broader social and economic autonomy in exchange for its religious leaders and believers to remain loyal to the CCP’s leadership, socialism, and national and ethnic unity in the pursuit of Deng Xiaoping’s Four Modernizations. Throughout the late 1980s, various specific laws also articulated the principle of freedom of religious belief. For example, the General Principles of Civil Law (1986) provides in Article 75 for the protection of personal property, including cultural items and in Article 77 for protection of religious organizations. The Law on Elections to National and Local People’s Congresses (1986) provides in Article 3 for the right to stand for election, regardless of religious belief, as does the Organization Law on the Village Committees (1987) in Article 9. However, fundamentally, the Party’s ideology was still strongly committed to unremitting propaganda to support Marxist atheism, and to using its control over the educational system (section 4, Article 36) to marginalize religious belief until it would eventually die out.[17]

The 1990s: Document 6 and Jiang’s “Three Sentences”

After significant social unrest in Tibet and Xinjiang in the late 1980s and the nation-wide crisis of the June Fourth democracy movement in 1989, the CCP Central Committee issued “Document 6” in early 1991, emphasizing increased regulatory control over all religious activities.[18] While Document 6 continued to claim to protect freedom of religious belief, it required all believers to comply with the imperatives of Party leadership, social stability and social interests. The provisions also limited proselytization, recruitment, fund-raising and other activities in support of organized religion.[19]

Despite these efforts at increased regulatory control, a religious revival in China gathered considerable momentum throughout the 1990s.[20] To cite just a few examples, the number of Chinese Protestants went up from 3 million in 1982 to 15 million in 1999, with even higher rates in some urban areas.[21] There has also been a sharp interest in restoring Daoist temples, with some tens of thousands of Daoist ritual masters, monks and nuns active in many provinces.[22] This was the context in 1993 when Jiang Zemin, then General Secretary of the CCP, made a major statement on religion that has formed the foundation of Party policy since then. This policy, sometimes referred to as the “Three Sentences” (sanjuhua), was not a policy shift so much as an elaboration of the policy implications of the long-term persistence of religion in socialist China.[23] These “Three Sentences” were: (1) that the policy of religious freedom must be completely and correctly implemented; (2) that the Party must strengthen the administration of religious affairs in accordance with (and by means of) law; and (3) that it must actively guide the religions in China to adapt themselves to socialist society.[24] One main policy initiative of Jiang’s “Three Sentences” was the insistence that religion must “adapt to socialist society” under the “active guidance” of the CCP. As China’s rich array of religious belief systems re-emerged,[25] the CCP realized that religion did not “die out” as expected. It was now time to consider long-term accommodation of religion within China’s socio-political system. As such, the CCP was tasked with the challenge of maintaining sufficient authority to ensure political control while at the same time presenting a broad image of tolerance to its vast religious subjects. Shortly after Jiang’s “Three Sentences” speech late in 1993, various national-level regulations on religion were released. For instance, the Education Law (1995) Article 9 prohibits discrimination in educational opportunity based on religion, although Article 8 reminds that religion may not interfere with the state educational system. The Labour Law (1995) Article 12 prohibits discrimination in employment based on religion. The revised Criminal Law of the PRC (1997) reiterated in Article 251 for punishment of state personnel who unlawfully deprive citizens of their freedom of religious belief. Various specific laws on the protection of freedom of religious belief were also updated with qualifications that religious activities must not conflict with the state’s political authority, national unity and solidarity of ethnic groups and social stability. For example, in the Law on Autonomy in Nationality Regions (1984, 2001) allows in Article 11 for freedom of religious belief, subject to qualifications against harm to social order, personal health and state education.

The 2000s: Regulations on Religious Affairs

The early 2000s saw the tumultuous events of the September 11 Attacks and the Falun Gong movement. Despite violent repression against the Falun Gong and heightened security measures against Muslims in China, the CCP’s policy continued to sound a theme of cautious accommodation with religion in general, under the theme of adaptation between religion and socialism. Nevertheless, the legislative landscape of religious laws as examined above, was quite patchy and unsystematic, with regulations scattered throughout Constitutional documents (Article 36), Party documents (Documents 6, 19), and various specific rules and regulations issued at both national and lower levels of government. Recognizing the need for a consistent policy on religious issues, the State Council eventually issued the most comprehensive legal document to date, the “Regulations on Religious Affairs (zongjiao shiwu tiaoli)”.[26] On March 1, 2005, the Regulation on Religious Affairs (RRA) was approved by Premier Wen Jiabao and entered into force, representing the first comprehensive national regulation devoted entirely to religious issues. The Xinhua News Agency, a government news agency, claimed that the government had spent six years drafting the new provisions, in consultation with “people in law, religion and human rights.” The new law was described as “a significant step forward in the protection of Chinese citizens’ religious freedom.” It was further stated that the new provisions were designed to “deal with new situations and issues that have emerged in recent years with China’s rapid socio-economic development.”[27]

However, the RRA are not strictly “laws” in the legal sense, which according to the Chinese Constitution must be discussed and passed by the National People’s Congress (NPC). Instead, they are administrative regulations (xingzheng fagui) issued by the State Council under powers vested in Article 56 under the Legislation Law (lifafa) of the PRC to enact administrative regulations in accordance with the Constitution and national law, apparently on a trial basis to allow time for the NPC to draft and pass legislation proper. This document, in 48 articles, represented China’s first comprehensive effort to define the legal rights of and restrictions on religious sites, clergy, and religious bodies and their property. However, a point worth noting is that the RRA’s standing as State Council administrative regulations, rather than law, underlines the fact that their prima facie concern is to strengthen state regulation rather than to safeguard religious citizens’ rights. Upon closer examination of the articles in detail, we can see that the RRA may be a mixed blessing for China’s religious flock.

A closer look at the “Regulation on Religious Affairs (RRA)”

The 48 Articles of the RRA is divided into seven sections: (1) General Principles, (2) Religious Bodies, (3) Religious Venues, (4) Religious Personnel, (5) Religious Finance and Property, (6) Legal Responsibilities, and (7) Addenda. They lay out a comprehensive system to control affairs for all religious believers in China.

Apparently, the CCP’s overriding concern is contained in Article 3, which states that, “Religious bodies, religious venues and believers must uphold the constitution, laws and regulations to safeguard national unity, harmony between the national minorities, and social stability.” While Article 3 also states that “normal religious activities” will be protected. However, what is “normal” and what is “abnormal” are not defined. Clearly, the CCP wishes to reserve its discretion in making such distinctions. Article 7 grants government control over religious publications. Even “patriotic” or registered religious organizations are still restricted to printing limited numbers of religious books for their internal use and circulation only. Books with a religious content are still heavily censored and must not promote “religious extremism.” Again, what is “extreme” is not defined by the CCP. Regarding the supervisory role of state officials, Article 19 states that, “Religious venues must accept the supervision and investigation of the Religious Affairs departments.” Government registration for all religious organizations is reaffirmed in Articles 6, 12 and 15. In Article 12, it was stated that, “The collective religious activities of religious citizens must generally take place in religious venues which have been registered.” But for those religious groups who refuse to register, Article 43 reads, “Those who arbitrarily set up religious meetings, and religious meetings which after having had their registration cancelled continue to meet, as well as those who arbitrarily set up religious schools, will all be prohibited by the Religious Affairs departments which will confiscate their illegal gains such as illegal property. Non-religious bodies and non-religious organizations and venues which undertake religious activities and receive religious offerings will be ordered to stop by the Religious Affairs departments. If they have illegal gains, these will be confiscated. In serious circumstances, they can be fined two to three times the worth of what they have illegally gained.”

Arguably, Article 43 above has the most serious repercussions for underground house churches in China. Many Catholic and Protestant churches refuse to register for reasons of religious identity and conscience. On the other hand, there are those who seek to register but are turned down and thus forced to go underground. Under these provisions, Christians who use their offices, factories, shops or homes for unregistered worship meetings may risk losing their property. Article 43 also limits religious believers’ freedom of movement by prohibiting “those who take it upon themselves to organize pilgrimages overseas.” This clause is obviously designed to prevent China’s 20 million Muslims from traveling to Mecca without formal state authorization and in Article 11 it is clearly stated that all pilgrimages to Mecca “must be organized by a state-monitored national religious body of Islam”.

While the RRA has tightened religious regulation through the above articles, there are also a few gains and improvements in protecting Chinese citizens’ religious freedom. For example, Article 15 orders local government to respond within 30 days to requests from religious believers to register a new church or temple. If implemented, this may help Christian believers cut through the often impenetrable thicket of bureaucracy when applying for official registration. Subject to the requirement of registration, the rights of registered religious organizations to their property are also safeguarded, as is the right to proper compensation if religious buildings are demolished in light of China’s nation-wide urbanization and reconstruction, according to Articles 30 through 33. Should there be any abuse on religious freedom by government officials, Article 6 provides the legal remedy of appeal to the Supreme People’s Court. Article 34 grants permission for registered religious organizations to “set up social service projects in accordance with the law.” Some Protestant and Catholic churches have already been operating kindergartens, orphanages, old people’s homes and clinics on a modest scale, but this provision should provide impetus and positive encouragement for further expansion of these services. This article also reflects the CCP’s paradigm shift from regarding religion as opium, to a contributing force for promoting social harmony and stability, two key goals for maintaining the CCP’s regime legitimacy.

Overall, the RRA represents the latest stage in the CCP’s quest to regularize and strengthen the state’s management of religious life in China by means of law, a quest given greater urgency by the dramatic rise in sectarian activity since the late 1990s. One point worth noting is the complete lack of reference to the “patriotic religious organizations”, implying a broader definition of a “religious body” under law than that enshrined in the 1982 Document 19. The RRA also recognized that some religious observances require a large-scale public gathering that cannot be contained within a church, temple, or mosque, and laid down clearer legal procedures for securing government approval for such events. The greater specificity and transparency in the RRA created the potential effect of reducing arbitrariness and abuse in the implementation of religious policy. That is why some Chinese government officials and scholars have hailed that the RRA as a “paradigm shift" by the CCP in limiting state control over religion. However, inconsistencies among regulations and ambiguities within China’s system of religious regulation persist. Especially in some remote areas, where local officials continue to employ traditional repression tactics on both registered and unregistered religious groups.

Implementation of religious regulations

Over the past two decades, the rapid growth of religion in China has alarmed party hardliners. Islamic separatism in Xinjiang, Buddhist nationalism in Tibet and Mongolia, the growth of Catholic and Protestant house churches, and the spread of religious cults such as the Falun Gong and Lightning from the East have all combined to place the control of religion at the top of the CCP’s agenda. While the Constitution provides authority for specific legislation on religious matters, it is the State Council’s Religious Affairs Bureau, recently renamed State Administration for Religious Affairs (SARA), which has responsibility for regulatory initiatives and supervision aimed at implementing Party policy.[28]

SARA works closely with various governmental departments at both the national and local levels. For example, religious broadcasts, internet information, and literature and materials brought into China from abroad are subject to special inspection and confiscation.[29] Foreigners, including those from Hong Kong, are generally prohibited from proselytizing, recruiting candidates to go abroad for instruction, and bringing to China religious materials that endanger public interest.[30] Various Religious Affairs Bureaus of China’s provinces and major cities are empowered to issue local regulations on the control of religion.[31] These regulations mirror provisions of national regulations on the authority of the government to maintain lawful supervision over religious affairs, including registration and supervision of religious organizations, religious personnel, places of worship, and religious activities, education and property.[32]

Religious control over Christianity

The growth in popularity of Christianity during the post-Mao period coupled with a historiography that links Christian missionary work with Western imperialism has driven the CCP to devote new efforts at control.[33] As of 2007, there are at least 5 million Catholics and 10 million Protestants in China.[34]

With its longer history of missionary activity in China and more formalized hierarchy of clergy professing exclusive loyalty to the Vatican, the Catholic Church has posed particular problems for the CCP regime.[35] Apart from being diametrically opposed in terms of ideology, one of the main obstacles to reconciliation between the Vatican and Beijing is the issue of appointment of Chinese bishops. Having suffered almost a century of foreign domination and being reduced to semi-colonial status, China is particular sensitive to foreign political influence trying to interfere with China’s internal affairs. Hence, when the Vatican exercises its religious authority in appointing bishops in China, the CCP considers this as a challenge to the leadership of the party-state. Bishops and believers associated with the underground church who refuse to renounce the authority of the Vatican have regularly been singled out for criminal prosecution and repression.[36]

But perhaps more fundamentally, the irreconcilable conflict lies in the constitutional principle of Chinese autonomy free from foreign imperialist influence. Article 36 section 4 unequivocally reads “Religious bodies and religious affairs are not subject to any foreign domination.” That is why the CCP insists on autonomy in appointing bishops in China. On the other hand, one of the most important and defining characteristics of Catholicism is her believers’ communion with the Holy See. The very word “Catholic”, derived from the Greek Katholikos, means “universal”. The Catholic Church is a universal church. Hence, the Vatican also cannot back down. Otherwise, Catholicism would no longer be “Catholic”, but Protestant! Therefore, unless the CCP restricts the interpretation of “foreign domination” as not including the Vatican’s religious authority in appointing bishops, the situation between the Vatican and Beijing is trapped in a constitutional deadlock (Section 4, Article 36).

On the other hand, Protestants have reportedly received less attention, partly because of its autonomy from the Vatican.[37] However, the relative fluidity of Protestant organizational structure has made it hard for the government to control unregistered house churches. Most Protestants are likely to accept the CCP’s rule as ordained by God (Romans 13) but only under the view that the church and state are separate. Ironically, those Protestants who refuse to register with the state or to cooperate with the state-sanctioned “Three-Self Patriotic Movement (TSPM)” Churches are usually the most apolitical believers, because the reason for their resistance is the perception that the TSPM is a political entity and that the church must remain totally separate from the political sphere.[38] Unfortunately, the CCP has generally regarded these Protestants’ refusal to register as a political act, and routinely employed its coercive power against them, with penalties running from fines to both short-term and long-term prison sentences.[39]

As such, while the CCP has recognized and even encouraged the contribution of Chinese Christians in charitable social service projects, such as operating kindergartens, orphanages, old people’s homes and clinics (RRA, Article 34), the CCP nevertheless maintains tight control over Christian activities owing to the traditional historiography of Christianity in China being associated with Western imperialism and anti-communism.

Conclusion

The continuing evolution of China’s laws and regulations on religion has been reflected in the historical context of China’s rapid socio-economic transformation since the CCP came into power. Starting from minimal toleration within the Marxist ideology of “religion as opium” in the 1950s, to the wholesale destruction of all forms of religion during the extreme left Cultural Revolution, Chinese policy on religion has seen a wide spectrum of approaches employed by the CCP to control and regulate its diverse population of religious believers.

With accelerated efforts in market economy reform during the late 1990s, the modern Chinese state has become a vehicle for socio-economic inequality – facilitating economic opportunities for privileged groups and individuals, while deploying the mechanisms of repression to keep the rest in check.[40] In the face of limited resources to provide sufficient public welfare or deliver public goods and services to disadvantaged groups, the CCP has once again shifted its paradigm on the regulation of religion. Instead of expecting religion to disappear under social progress and atheism, the CCP has been flexible and pragmatic in recognizing the persistence of religion into modernity. While still maintaining strict control and close monitoring on various religions, the CCP has been willing to allow religion to play a positive role in soothing people’s social and spiritual needs. Ongoing discourse between Chinese academics and the CCP has also convinced the Party that religion could play a beneficial role in the construction of “socialist spiritual civilization” (shehuizhuyi jingshenwenming) and contribute to China’s much needed social harmony and stability in the face of rapid socio-economic modernization.

China’s successes in liberalizing socio-economic relations over the past three decades have also created rising expectations of personal freedom and a general image of tolerance for increased autonomy among the populace at large. In light of the swelling numbers of religious believers, building legitimacy for government policies on religion has prompted the CCP to trade-off religious autonomy as a condition for continued political loyalty and subservience of religious believers, which is reflected in a mix of both control and allowance for registered religious activities. As such, it is expected that the CCP will continue to flexibly adjust and modify its religion policy to find the suitable balance between state-religion relations as China joins other countries in stepping into the 21^st century’s global modernity.[41]