BY WEI HONG

  The Regulations on Religious Affairs, adopted by China's State Council on November 30, 2004, became effective on March 1, 2005. The regulations are the first specialized legal document in China's religious field. Its promulgation and implementation of the regulations are a major event in the country's religious work and legal system. To promote the legal construction on religions in China, the following issues should be addressed.

Religious Belief: Domain of Freedom

  China's Constitution provides that citizens enjoy freedom of religious belief. The "freedom"here is however referred to the religious belief in people's inner world, or referred to a series of freedom such as setting up religious bodies, participating in religious activities and rituals, reciting religious scriptures, or carrying out research on theology according to law. In reality, people have long had two completely different comprehensions on the freedom of religious belief, that is, freedom in people's inner world, and freedom of religious activities that are exterior, tangible and organized. Some suggest that to avoid misunderstanding, "freedom of religious belief"should be additionally defined as not only inner world freedom but also freedom in carrying out religious practice and activities, or "freedom of religious belief"replaced by "religious freedom."If there is no such an additional definition, the stipulation of "freedom of religious belief"can only be an abstract expression on citizens' rights in this respect. So the freedom of religious belief stipulated in the Constitution seems to really contain a question, that is, whether it is on earth referred to freedom in people's inner world or the freedom including people's exterior behaviors.

  In theory, the question is actually not a problem. What is law? Law is norms of people's behavior, and not norms of people's thoughts in their inner world. In other words, law is not norms of people's thoughts, concept and emotion in their inner world. The regulations on religious affairs belong to administrative laws and regulations, while the administrative laws and regulations in the Law on Legislation are incorporated into China's legal system. Yet the Constitution norms are all the more the supreme legal norms among all the law norms. Therefore, since citizens?freedom of religious belief is incorporated into the Constitution and into the administrative laws and regulations, which are legal norms, and can only be about freedom of belief of people's behavior. That is to say, whatever thoughts there are in people's minds, including a person's religious belief, they cannot be necessarily regulated or harnessed by law so long as they remain in the inner world as a kind of concept, feeling and wish. Therefore, once we are clear that laws are used to regulate people's behavior and not to control people's thoughts, it become apparent that the principle "freedom of religious belief"not only includes the freedom of belief in people's inner world but also people's behavior.

  Of course, some may rebut that this is just because laws are not involved in people's thoughts, people's belief in their inner world is free from the laws; laws are used to regulate people's behavior rather than their minds. This, however, is a misunderstanding of the freedom. Article 35 of China's Constitution stipulates that citizens enjoy the freedom of speech, of the press, of assembly, of association, of procession and of demonstration. All this is related to people's behavior instead of people "pure"thoughts. At the same time, they are not exempted from responsibilities, but need the involvement of laws. How can you negate the freedom of people's relevant behavior just because those are behaviors and should be regulated by laws. In fact, legal norms do not mean to negate or restrict the freedom of behavior itself that should be protected as being stipulated in the legal documents. Otherwise the stipulations in legal documents would be meaningless. The stipulations in the legal documents are used to guard against the unlawful behaviors that are exploited in the name of lawful behaviors to infringe upon the interests of others, society and state. For instance, you have the freedom of speech, but you do not have the freedom of fabricating facts to frame others; you have the freedom of the press, but you do not have the freedom of utilizing publications to spread hatred among nationalities; you have the freedom of assembly, but you do not have the freedom of utilizing the assembly to plan military rebellion and subvert the lawful government. Therefore, law's regulation of behavior does not mean to negate the obligation protecting the freedom of relevant behavior that is defined in the legal document. Just on the contrary, it aims to protect the proper freedom of relevant behavior. All the same, law's regulation of the act of religious belief is also to protect the proper freedom of such.

  The freedom of religious belief not only includes the freedom of belief, but also includes the freedom of belief in the domain of behavior. It is of significance to recognize this point: on the one hand, the regulations that "citizens enjoy freedom of religious freedom"do not need to have additional articles or postiche explanations; on the other hand, if religious belief including the freedom in the domain of behavior is acknowledged, citizens have independent rights to set up religious bodies, participate in religious rituals, recite religious scriptures, carry out research on theology, and other activities so long as they abide by the state laws and observe the public order. Hence, the government should not restrict and ban these activities, but should protect them, which obviously conform to the original meaning enshrined in the Constitution. If citizens are denied the freedom in the domain of their behavior, no matter whether their behavior harms the interests of others, society and state, the outcome would be that any religious activity would be subject to the government decision, or to say, if the government is willing, the activities would be permitted, if the government is unwilling, the activities would be not permitted. Evidently, it is not only illogical, but also not consistent with the original meaning of the Constitution.

 Religious Bodies: Legal Nature

  Two approaches can be adopted to figure out the legal nature of religious bodies in China: one is to look at the relation between politics and religions; and the other is to look at the way that religious bodies get the certificate of legal entity. As for the relation between politics and regions, the principle that "citizens enjoy freedom of religious belief"in the Constitution logically contains the system of separation between politics and regions, namely, the state power is not involved in the domain of religious belief and maintains neutral among various religions.

  According to the Constitution, China has taken Marxism as the basis in the building of the nation and Marxism is atheism, which naturally decides China is a secularist nation and it has no official religions. Under such conditions, the Constitution stipulates that "citizens enjoy freedom of religious belief,"and further stipulates that "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."This shows China does not establish official religions, does not ban citizens?freedom of religious belief, and in the meantime it protects citizens' freedom of religious belief. This further shows that religious belief is citizens?own option and has a nongovernmental nature. And various religions are equal in China according to law. Otherwise, this might be meant that China has religions of official nature. Actually, the No. 19 Document issued by the Central Committee of the Communist Party of China in 1982 gives more explicit explanation: The state power of socialism should never be used to promote a certain religion, and should never be used to ban a certain religion so long as it is normal religious belief and religious activity. What is separation between politics and regions? Many regard the first amendment to the US Constitution as typical expression of politics-religions separation system which stipulates the state organ should not make laws on establishment of religions or prohibition of religious belief. If this is used as criterion, China's Constitution with its entire implied meaning is in fact more clear in defining the politics-religion separation spirit, although there is no word expression in the politics-religion separation system.

  As for the way that religious bodies get certificate of legal entities, the Regulation on Registration and Administration of Social Organizations has specific stipulation. According to Article 3 of the regulation, social organizations must follow the registration procedure set out in these regulations. But two kinds of semi-official organizations are not included: People's organizations which participate in the Chinese People's Political Consultative Conference; and organs under the administration of the authorized State Council departments are exempt from registration with the approval of the State Council. Since religious bodies are not under the administration of the authorized State Council departments, their establishment, alteration or cancellation of registration shall be registered in accordance with Article 6 of the Regulations on Registration Administration of Associations, and they are not included in the people's organizations which are exempt from registration, therefore, in China's legal system, religious bodies are legal entities of pure social bodies with nongovernmental nature, and are not semi-official organs between the government and religious believers.

  Legal entities of social bodies with nongovernmental nature are, of course, a civil subject on their legal status. But looking at it in another way, it is not so. That is to say, not all civil subjects are necessarily of nongovernmental nature. For example, state-owned schools and hospitals, enterprises and institutions affiliated to the government, social bodies with semi-official nature, and state organs themselves all have the civil capacity subject in civil affairs activities. These civil subjects with official nature, however, have some relationship with the government organs, relations between superior and inferior, in consideration of administrative and legal relations. It is taken for granted for the government to lead and concern itself with the work of state-owned schools and hospitals, public-owned enterprises and institutions, people's bodies under the administration of state organs and funded by the government revenues. If the government ignored its leadership over them, it is illogical in legal theory. Civil subjects of nongovernmental nature, however, are different. For instance, private enterprises may be supervised and checked by the government according to law, but they are not legally obligated to receive the leadership of the government. For the same reason, since they are legal entities of social bodies with pure nongovernmental nature, religious bodies are independent from the government on the legal status, there are no administrative superior-inferior relations between religious bodies and the government. Namely, religious bodies should receive supervision of the government according to law, but they are not legally obligated to be led by the government and the government is not allowed to be involved in the election of religious bodies leaders.

  The Regulations on Religious Affairs adopted by the State Council have three special points in safeguarding the independence and self-governance of legal personality of religious bodies: Firstly, the regulations stipulate that the activities carried out by a religious body in accordance with its articles of association are protected by law, which means that if a religious body carries out activities in accordance with articles of the association, the government organs shall not interfere with its internal affairs. In the meantime, the government does not ban but protect citizens?freedom of religious belief. Secondly, the regulations stipulate: "Members of the management organization of the site for religious activities shall be recommended or elected upon democratic consultation, and then be reported to the registration administration department of such site for the record.""Religious personnel who are determined qualified as such by a religious body and reported for the record to the religious affairs department of the people's government at or above the county level may engage in professional religious activities.""Where religious personnel are to assume or leave the chief religious posts of a site for religious activities, the matter shall, upon consent by the religious body of the religion concerned, be reported to the religious affairs department of the people's government at or above the county level for the record."The above stipulations show that religious bodies themselves have the rights to elect management members of a religious site, and determine professional religious personnel and religious personnel assuming or leaving chief religious posts, while the government only implements the registration procedure. Thirdly, the regulations stipulate: "Where anyone refuses to accept a specific administrative act taken by the religious affairs department, it may apply for administrative reconsideration according to law; if it refuses to accept the decision of the administrative reconsideration, it may institute an administrative lawsuit according to law."This once again proves the nongovernmental nature of religious bodies, and also provides a legal channel for lawful rights of religious bodies if they are infringed upon by administrative acts. Therefore, the rights and interests of religious bodies will be well protected, if the regulations are seriously implemented.

Legal System of Religions: Concept Used as Guidance

  The Regulations on Religious Affairs adopted by the State Council sum up the value goals of religious legal system, that is, ensuring citizens?freedom of religious belief, maintaining harmony among and between religions, preserving social concord and regulating the administration of religious affairs. What I'd like to discuss here is how to adjust way of thinking in legal construction of religions based on the guidance of value goals and from the perspective of regulating religious behavior, which includes the following three major points:

1. Citizens who believe in religions and citizens who do not believe in religions: Equal rights and duties

  Citizens who believe in religions and citizens who do not believe in religions are all citizens, religious bodies and other social bodies are all legal entities of social bodies according to the Civil Law, and sites for religious activities are one kind of places of various social activities. Therefore, religious citizens and non-religious citizens, religious bodies and other social bodies, religious sites and sites for other social activities are all equal before the law, according to the principle of the Constitution "all citizens are equal before the law,"and the stipulation "no state organ, public organization or individual … may discriminate against citizens who believe in, or do not believe in, any religion."

In accordance with the concept, universal laws of the country should be equally applied to religions no matter what background a religious body is. It is not necessary, and should not, to differently treat religious citizens, religious bodies and religious sites, except for the universal laws can not cover, or can not be applied to, the special situation in the religious circle. In this way, donations to religions can be handled according to the donation law, business income of religions can be dealt with according to the tax law, and religious sites can be tackled according to the country's laws and regulations such as planning, environment protection and fire fighting. Hence, the laws and regulations related to religions are incorporated into the nation's legal system, and they are not specialized laws and regulations of religions. Accordingly, organs of law enforcement related to religious citizens, religious bodies and religious sites are not necessarily religious affairs departments of the government, and they may include civil affairs, taxation, planning, environment protection, fire fighting, and others.

2. Government Organs and Religious Bodies: Law enforcement organs and law enforcement liability

  Religious bodies are legal entities of social bodies with nongovernmental nature, and their relations with government organs are law-enforcing and law-abiding. Therefore, government organs and religious bodies are not superiors and inferiors, and the staff of religious affairs organs should change their concept, that is, to work as law enforcement personnel, not as leaders, when they handle their relations with religious bodies. In line with this concept, the government is only obliged to engage in law enforcement, it has no rights, and also unnecessarily, to interfere into the internal affairs of religious bodies beyond laws. If they do so, government organs would shoulder the responsibility of breaking law. For the same reason, religious bodies, as law enforcement liability, shall strictly abide by law and behave themselves according to regulations. In this way, the relations between government organs and religious bodies are very clear, which is a legal relationship and is not relationship of rule by men.

  Of course, religious bodies, compared with other social bodies, have their own special nature. Since it is religious belief, believers usually have devotional will and deep-rooted feeling, and many introject their personalities into belief. What's more, many even dare to sacrifice their lives for their belief. For this reason, religious belief, in contrast to other people's faith, has some irrational characteristics, which has two major points: they do not allow others to doubt, even think that others' doubt is to blaspheme their personalities; one religion regards another religion as cult, and think it is a sin that people believe in another religion. It would be terribly harmful to society when these irrational factors are accumulating in social bodies, especially when these factors are mixed with politics. Therefore, religious belief, on the one hand, can make people become benevolent and do goodness to the society, and on the other hand, it may go extreme to bring calamities to society. The question here, however, is not whether we should or should not deal with these irrational factors, but is what concept we will apply to deal with these factors. Actually, it is question of rule of law or rule by men. If rule by men is adopted, personnel of government organs would be mobilized to control irrational factors in religious belief. If doing in this way, problems can not be solved but covered up. And even more, it will make it impossible to establish long-term and effective mechanisms. If the concept "rule of law"is adopted, it would bring the irrational factors in religious belief to legally rational track and would be helpful to establish long-term and effective mechanisms. Virtually, it is a permanent cure.

  So, the fundamental question is rule of law, that is, the government does not interfere into the leadership election of religious bodies and require them to abide by law and practice of public order. In this regard, the state's laws are "red-light district”. No matter whom that break law will shoulder responsibility. The practice of public order is "yellow-light district”. Anyone who is in the district will be checked according to law and measures shall be taken to avoid misbehavior. Taking into consideration of special nature of religions, the government will require, through legislation, believers to abide by laws, observe the practice of public order, safeguard religious harmony and social concord, tolerate believers of other religions and their criticism, forbid spreading hatred among religions and nationalities, forbid advocating horrors such as doomsday, care for believers' health both in body and mind, forbid believers to sacrifice their lives for belief, forbid religious persons to rape women in the name of belief, forbid illegal medical practice in the name of religious belief, and so on. Those requirements shall be preconditions for registration of religious bodies, be incorporated into their constitutions. Those shall also be rules of their behavior that should be supervised by law. As to a newly rising religion, its doxy should not contain any contents that contradict to the above requirements. As for traditional religions, if their doxies contain the contents that contradict to the above requirements, they should declare to give up or give the explanations that do not contradict to the requirements. I held that in doing so, it doesn't  matter who would be leaders of religious bodies. 

3. Basic Law of Legal System of Religions: Civil law, not Administra-tive law

  Religious belief is citizens?freedom and religious bodies are legal entities of social bodies with nongovernmental nature. Naturally, the basic law of legal system of religions is civil law and is not administrative law. Hence, many affairs that are regulated by administrative law can be handled by civil law, and much work that is done by government organs of religious affairs can tackled by internal mechanism within religious bodies. Therefore, it is needed to make law on religious bodies with nature of civil law so as to protect the basic human rights of ordinary believers in religious bodies and guarantee internal mechanism of religious bodies consistent with society. For instance, the Regulations on Religious Affairs adopted by the State Council stipulates the members of administrative management of a religious site "shall be elected through democratic consultation”, professional religious personnel be "determined by religious bodies”, personnel assuming or leaving chief religious post be "agreed with by religious bodies”. All these are of great significance. If democratic way is adopted to elect administrative leaders and determine professional personnel by religious rituals, a restrictive mechanism would be formed within a religious body. Of course, another mode can be discussed, that is, it is allowed to fund believers so that a board of directives can be established which would be real power organ in a religious body, and the professional religious personnel would be invited by the board. If doing so, it would be conducive to avoiding the centralized power and extremism.

  Maybe, some would think it is interference into internal affairs of a religious body. It is really wrong to think so. Companies are legal entities and their internal affairs should not be interfered into by the state. But, why does the state make law on companies? Marriage or families all belong to private business, then why do countries make laws on marriage and families? To make law on religious bodies with the nature of civil law doesn't mean to interfere into internal affairs of a religious body, but it aims to protect the rights of believers in religious bodies. In the meantime, it is conducive to leading to harmony between religious bodies and society. This is not wrong at all in legal theory. Since human rights are regarded as a value, human rights of believers in religious bodies should be concerned about. Since a democratic system of a country is a value, why do social bodies in countries have centralized power? In fact, if a law on religious bodies were made, religious bodies would run itself favorably on the legal track and religious affairs departments of the government would spare much effort in dealing with what they unnecessarily do.

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The author is professor with the law teaching and studies department of China National School of Administration.