TESTIMONY OF ERIC R. CARLSON[1]
BEFORE THE CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

NOVEMBER 20, 2006

I.            INTRODUCTION

As a lawyer by training and trade, I hope to offer a few thoughts from a legal perspective on China’s national and regional regulations, with the full realization that the situation on the ground does not always comport with legal requirements.

The Chinese government promulgated the Regulation on Religious Affairs (RRA) in an attempt to standardize religious administration and practice.  New and amended regional regulations issued after the RRA, however, are sometimes at odds with the RRA and pose questions for religious groups.  While these regulations reveal some tinkering around the edges, these regulations can be seen as more of a codification and reaffirmation of existing policies established under the RRA than a radical departure from the RRA framework.  Groups outside of the regulatory regime continue to have an uncertain legal status.  How these groups are integrated into the religious administration may be indicative of the future of religious freedom in China.

II.            REFLECTIONS ON THE RRA

In late 2004, China’s State Council announced that it was issuing a new Regulation on Religious Affairs (RRA) that would be a “paradigm shift” in religious administration.  At the time, many observers, including myself,[2] expressed cautious optimism that, while the RRA did not represent a fundamental reordering of state supervision over religion, it might result in a small step toward greater religious freedom in China.  The RRA omitted several restrictions contained in prior national and regional regulations and left several provisions vague, possibly indicating a gradual shift toward more flexibility in religious administration and perhaps allow space for unregistered groups to flourish.  Further, the RRA provided additional legal protections in several areas.

In the two years since the announcement of the RRA, this optimism has been tempered by actual events.  The RRA offered few unrestricted rights -- most contained qualifications, provisos, and restrictions.  The omissions that were thought perhaps to signal a new openness did not grant any new rights, and religious groups are not fundamentally on more solid legal ground than before.  Further, the vagueness in the RRA cuts both ways, allowing for inconsistent interpretations and the possibility of abuse of discretion by less sophisticated local officials.  Scholars cautioned that much would depend on implementing guidelines issued subsequent to the RRA.  To date, these guidelines have not been publicly issued.[3]  The practical implementation of the RRA, however, indicates that the rights set forth in the RRA may be viewed as a ceiling rather than a floor.

III.     THE INTERRELATIONSHIP OF NATIONAL AND REGIONAL REGULATIONS

Since the promulgation of the RRA, one national-level regulation and eight regional regulations affecting religious administration have been issued.  The overall scheme of state supervision over religion remains constant.  Inconsistencies among these regulations pose practical questions for both registered and unregistered religious groups. 

            A.            Measures for Registration of Religious Venues

Six weeks after the RRA took effect, the State Administration for Religious Affairs (SARA) promulgated the “Measures on the Examination, Approval, and Registration of Venues for Religious Activity” (“Measures”).[4]  Like the RRA, the Measures do not provide any new rights per se, but do represent a more sophisticated effort to give clarity to the registration process.  Specific procedures give both religious organizations and bureaucrats a clearer process to follow.  The Measures also provide for decentralized decisionmaking, pushing approval down to the regional and lower levels, which then report their decisions to SARA.  Decentralization may result in faster decisionmaking and possibly abuse by regional and lower-level officials, who are often less sophisticated than their national counterparts.  Article 2 of the Measures includes “other fixed venues for religious activities” in the definition of permitted religious venues, rather than limiting religious venues to those of the five traditional religions.  The term “religious groups” is not defined in the Measures.[5]  Article 5 of the Measures requires, among other things, a list of the members of the preparatory committee.  While a list of only the preparatory members is better than previous provisions requiring a list of all members, it still reflects an underlying mistrust of religions and implies that only “good” citizens should be able to establish religious groups.  Two clarifying provisions help in giving more legal certainty: Article 11 clarifies that previously registered venues need not re-apply for registration, and Article 15 clearly repeals the supplemental registration regulations promulgated by SARA in 1994.  The largest problem with the Measures is that no clear approval standard exists.  Article 6 requires religious cadres to “solicit the opinions” of local leaders.  Do these local leaders exercise a veto over approval of a religious venue?  If not, how much weight is given their “opinions”?  If an application is denied, can it be appealed to the regional RAB or to SARA?  The Measures provide additional clarity in registration procedures but, like many of the post-RRA regional regulations, leave many unanswered questions.

            B.            New and Amended Regional Regulations

Despite the efforts of the RRA and the Measures to establish clear standards for religious administration, they have not systematized the application of laws in ways some scholars had envisioned.  The patchwork of municipal, regional,[6] and national regulations remains, and from a legal perspective, the events following the RRA pose conundrums for religious groups and their leaders.  Eight regions have issued new or amended regulations on religious affairs following the RRA’s entry into force in March 2005 and the enactment of the Measures in April 2005.  In April 2005, Shanghai was the first to amend its regulation.[7]  Henan and Shanxi issued new regulations in July 2005.  Zhejiang amended its regulation in March 2006, as did Anhui in June 2006.  Beijing amended its regulation in July 2006, and Hunan and Chongqing did so in September 2006.[8]  Some of these regulations bring the provincial law in conformity with the RRA, but others retain and re-enumerate provisions that are at odds with the RRA and the Measures. 

                        1.            Preemption Issues

China’s Legislation Law indicates that national-level regulations have a “higher legal authority” than regional or local regulations.[9]  The Legislation Law provides that where a national-level regulation has come into force, contravening provisions in regional regulations are invalid, and the issuing regional body “shall amend or repeal such provision on a timely basis.”[10]  But the Legislation Law also provides that a regional regulation can be used to “implement a national law or administrative regulation in light of the actual situation of the jurisdiction.”[11]

From a legal point of view, the drafters of the post-RRA regional regulations seem to believe either: (1) the pre-existing provisions of regional regulations do not conflict with the RRA and therefore do not need to be changed; or (2) the regional regulations do in fact conflict with the RRA but serve to implement religious administration “in light of the actual situation” in that province.[12]  For the provinces that have not acted after the RRA, it could be because either (1) they believe that the RRA implicitly repealed all regional-level regulations on religious administration, and thus there is no need to repeal the prior regulations; (2) they are in the process of drafting an amended or new regulation; or (3) they have chosen to ignore the RRA and continue to pursue religious administration as before.  The disparate reactions among the provinces following issuance of the RRA indicate that all of these situations are possible.[13]

While these preemption issues pose interesting theoretical legal issues, they also have real consequences for religious believers.  Because religious organizations exist and operate in towns, counties, and provinces whose regulations sometimes conflict with national regulations, what set of laws should religious believers and their leaders follow?  If a regional regulation conflicts with the RRA, which provision should a religious body follow?  If the RRA provides rights that a regional or local regulation does not provide, can a religious body successfully assert these rights?  What significance does the absence of new or amended regulations in other provinces have?  Does the RRA apply in place of the preexisting regional regulation, as a supplement, or neither?[14]  For instance, should a religious body in, say, Xinjiang assume that the RRA is applicable in the province, the preexisting regional regulation, or parts of both?  If the venue registration provisions of a regional regulation are not the same as the Measures, which procedures should a religious group follow to register a venue?  Can religious groups avail themselves of rights contained in regional regulations but not the RRA, and vice versa?  Are groups subject to penalties contained in the RRA but not in regional regulations?  If regional RAB cadres applied a penalty that was more restrictive than that provided for under the RRA, would an administrative appeal be possible under Article 46 of the RRA?[15]  If so, to what body?  What should groups make of deletions from new/amended regulations?  How do unregistered groups fit in to this legislative morass?  Some provinces recognize groups outside the traditional five -- can these groups “leverage” registration in one province to obtain registration in another?[16]  Are religious groups outside the traditional five presumptively unauthorized in provinces where post-RRA regulations still limit the definition of “religion” to the traditional five?

                        2.            Key Changes in the New and Amended Regional Regulations

The drafters of the new and amended regional regulations seem to have been closely examining the RRA when drafting but made a conscious decision not to simply copy and paste provisions.  Rather, it appears that regional regulations adopted some provisions of the RRA and Measures, modified other provisions, omitted some provisions in the Measures, and added new provisions not contained in the RRA or Measures.  At times, it appears that the drafters sought to salvage the existing regional regulation and only make changes where the regulation’s provisions were in direct conflict with national policy.  Even then, as the table below shows, many disparities remain.

Numerous variations make it difficult to draw broad conclusions from the amended regional regulations.  Nevertheless, a few trends emerge:

• No regional regulation significantly curtails religious freedom further, but no provincial regulation attempts to expand significantly the scope of protections beyond that of the RRA.  In this regard, the post-RRA regional regulations can be seen as a codification and entrenchment of religious policies rather than a significant advance beyond the basic policies and principles enshrined in the RRA.
• Many of the amendments and new regulations bring the regional administrative requirements closer to that set forth in the RRA, but many provisions still conflict
• Several regional regulations restate the traditional five religions in the definition of “religious organizations” but add an “other” category that in the end could potentially be used to register groups outside the traditional five.
• Several provinces permit religious observance within the home but with various limits (limited to only “normal” religious activities, or observance permitted so long as it does not influence the “normal lives” of others)
• Provisions requiring annual inspections have been eliminated.
• Legal liability provisions in many regional regulations parallel RRA provisions.
• Several new regulations provide incremental improvements (e.g., separate provision in Hunan regulations for registration of venues for folk beliefs; preferential tax treatment in several regulations; additional administrative protections in several regulations).

IV.             GROUPS OUTSIDE THE REGULATORY REGIME

All of the analysis above applies to the five traditional religious belief systems long recognized in China: Buddhism, Catholicism, Daoism, Islam, and Protestantism.  Groups and belief systems outside of these five remain in an uncertain position.[19]  Some groups have received tacit consent from the government to carry on some form of religious observance despite having no legal existence or enforceable rights.  Some groups have attempted to register as religious groups or as social groups but have not been successful.  The religious affairs authorities have shown some willingness to accommodate these groups outside the traditional five, but there are theoretical and practical problems related to the patriotic religious associations (PRAs), which traditionally have served as the supervising authority over religious groups.  At least five possible scenarios exist for dealing with these new belief systems.

1.  Fit the religious group into an existing PRA.  The government could lump the group into the PRA that most closely resembles the group.  But fundamental doctrinal differences (e.g., Judaism, Bahá’í) might make this unpalatable to both the group and the PRA.[20]

2.  Establish a new PRA for the new group.  This solution would presumably satisfy the government’s desire for continued close supervision of religious practice, but may be undesirable to organizations which may prefer to decline close government supervision.  Additionally, once additional PRAs are established beyond the original five, the government might fear opening a Pandora’s Box to a number of less desirable religious groups.  If the government seeks to apply the law fairly, it also would face the tricky question of defining “religion.”

3.  Register as a religious group directly with SARA outside the context of the PRAs.  SARA may be amenable to have religious groups register outside the context of the PRAs.  Indeed, SARA’s establishment of a new Section to supervise folk beliefs and “religions outside the five main religions” may indicate SARA’s flexibility.  Bureaucratic politics may hamper such an option.  SARA, a state organ, is under the supervision of the State Council; the PRAs are under the supervision of the United Front Work Department, a party organ, which might resist efforts to place religious groups outside its jurisdiction.

4.  Register as a social organization but not as a religion.  The government could permit religious groups to register as a social organization under the applicable regulations but not have any formal religious status.  While such a scenario might be acceptable to some groups, others may insist on being treated as a religion rather than merely a social organization.  The government may also feel that religious groups need additional supervision, though this may be a soluble issue.

5.  Continue the status quo.  Because of the shortcomings of the above options, the most likely outcome is to continue the status quo.  The government could continue to permit meetings of some unobjectionable religious groups, particularly those that seem to pose no threat to the government.  The government has tolerated such an arrangement for several groups of expatriates with established followings outside China.

The Orthodox community in China poses an interesting case study exemplifying these issues.  Both Heilongjiang and Inner Mongolia have recognized the Orthodox Church in their regulations,[21] and the Orthodox Church also is registered in Xinjiang.  After the announcement of the RRA, the Orthodox community announced its intention to apply for registration with SARA.  SARA has not registered the Orthodox church, though SARA has cooperated with the Orthodox community to rebuild Orthodox churches in China and in other ways.[22]  How groups outside the traditional five, such as the Orthodox Church, are integrated into China’s system of religious administration may be indicative of the future of religious freedom in China.

V.             CONCLUSION

As indicated above, this analysis has focused somewhat narrowly on the legal structures affecting religious administration in China.[23]  The basic policies of continued state supervision over religion with marginal improvements that were outlined in the RRA have not been altered by subsequent national and regional regulations.  Conflicts between provisions in the RRA and regional regulations leave religious groups in a state of legal and practical uncertainty.  Further, the system of national and regional regulations does not address religious groups that are not formally recognized by the government.  China’s religious administration policies and laws must make additional efforts to resolve these questions.  While a call for unfettered religious freedom will likely go unheeded, it would be a step in the right direction for China to enact laws that comply with international standards that provide basic rights for all religious believers and groups.  China’s WTO accession and growing interactions with other countries amplify the need to hasten its transition from a rule-by-law to a rule-of-law nation and the need for all of its laws, including those governing religious freedom, to provide clarity, transparency, and predictability.