Chinese Christian jurist asserts that freedom of worship complies with the constitution
In Shanxi, a court president illegally keeps three Protestant leaders in prison without trial. But the law can also be used to show that religious freedom conforms with the law, this according to Feng Xuewei, a legal expert who worked on China’s entry in the WTO.
Beijing (AsiaNews) – Li Shanshan, Chen Ying, and Wen Huijuan, wives of Pastor Li Jie, Pastor Han Xiaodong, and Brother Wang Qiang of the Linfen Covenant House Church visited the Yaodu District Court in Shanxi province, northern China, for the fifth time in July. After previous failures, they managed to meet Court president Xie Binghua to plead for the release of their husbands, but the judge’s response was clear: there are no grounds, according to him, to consider the three men’s detention as illegal, ChinaAid reports. Instead, the judge “warned the wives not to criticize, comment on, or interfere with the case” by posting comments or messages on Weibo, China’s foremost social media platform.
The three Christian men, who were arrested on 19 August 2022 on charges of "fraud”, will remain in preventive detention without a trial date, simply for practicing their religion.
Beijing and religious freedom
This is but the latest case in a long series, a forceful reminder that, in China, religious freedom and worship are subordinate to the ideology and strict control of the ruling Communist party. This applies to Christians as well as others, most notably Muslims who are victims of widespread persecution in different parts of the country, aimed at “sinicising" dogmas, rites and functions.
However, someone from within the country’s power structure has come out against this policy, with arguments and attitudes unusual for the country. Former Chinese State Council official Feng Xuewei, a member of the team of experts who negotiated China’s entry into the World Trade Organisation (WTO), wrote a piece calling for religious freedom, stressing that it is important for the development of the country and its citizens.
Drafted in September 2023, her proposal is titled Application to the Standing Committee of the National People’s Congress and the Constitution and Law Committee to conduct a constitutional and legal review of the “Regulations on the Administration of Religious Affairs” that violates the Constitution and the Legislative Law.
Using legal language, and it could not be otherwise given the background of the person who wrote it, the text relies heavily on the law and jurisprudence to underline the importance of the free practice of religion even in the People's Republic of China.
Feng Xuewei, a Christian, served for 12 years as deputy director in the Translation and Review Foreign Affairs Department of the State Council. She also participated in major international negotiations, starting with the WTO. She is currently a member of the Beijing Shepherd Church.
A struggle using the finer points of the law
Feng Xuewei explains that the "Regulations on Religious Affairs" revised on 1 February 2018 contradicts several principles enshrined in the constitution and the legislative law.
To uphold the dignity of the two basic texts of Chinese law, the expert asked the Constitution and Law Committee of the National People's Congress (NPC) to review the constitutionality and legality of the "Regulations on Religious Affairs" and take the necessary decisions in accordance with the provisions contained therein.
No state body, social group or person can, she writes, “force citizens to believe in religion or not believe in religion, nor discriminate against citizens who believe in religion or do not believe in religion.”
The state must protect regular religious activities, while no one can use religion to disturb the social order, harm the health of citizens, or hinder the national education system.
In her lengthy argument, Feng Xuewei notes that from the perspective of the country's legal system as a whole, except for Article 36 of the constitution, China currently has no basic "law" on religious affairs.
The latter fall within the principles laid out by the constitution and formulated by the NPC or its Standing Committee. Since the authority to manage religious affairs is not explicitly listed among the powers of the Council of State established by the constitution, “regulating the management of religious affairs" does not ipso facto fall within the statutory powers granted to the Council of State by the constitution.
The third issue raised by the jurist is that the legislative power in matters of religious affairs in the Legislative Law belongs to the National People's Congress, not the Council of State.
Religion and constitution
In the final part of her analysis, the expert concludes that freedom of religious belief falls within the scope of "other matters" provided for in Article 11, paragraph 11, of the Legislative Law.
Since freedom of religious belief, as one of the basic rights of citizens, has an important position in the constitution, “it is not appropriate for the State Council, the highest administrative organ that only manages administrative affairs, to formulate regulations on this matter.” For this reason, “the State Council does not have the responsibility to protect basic citizens’ rights, including the right to freedom of religious belief, in its scope of duties.”
At the end of her reflection, Feng Xuewei draws a four-point conclusion. First, the State Council does not have the power to formulate administrative regulations on issues relating to the fundamental rights of citizens. Second, the NPC did not authorise the Council of State to formulate administrative regulations on religious matters. Three, the NPC has not yet formulated a basic "religious law", so the State Council has no grounds to formulate administrative regulations to implement religious laws. Four, religious affairs do not fall within the scope of the powers of the Council of State provided for in the constitution and the Council of State does not have the legal basis to formulate administrative regulations on its own.
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02/11/2020 15:31
