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Does China’s Constitution Guarantee Freedom of Religion?


For the outside observer seeking to make sense of China’s religious policy, the Chinese Constitution presents quite a conundrum.

Article 36 of the Constitution not only guarantees freedom of religious belief and forbids discrimination on the basis of religion; it goes further in mandating that the state protect “normal” religious activities. On the other hand, this same article also stipulates that religious activities shall not disrupt public order, endanger the health of citizens, or interfere with the state’s educational system. It further goes on to forbid foreign domination of religious affairs.

Clearly the guarantee of religious freedom is not as absolute as similar guarantees in the constitutions of many Western nations. This guarantee is conditioned, firstly upon whatever definition of “normal” activities the state wishes to invoke, and secondly upon the state’s interest in guiding social and individual development, including the exclusion of foreign religious influence.

Zhang Yushuang of the China University of Political Science and Law sheds some light on this juxtaposition of guarantees and conditions in his chapter in Joel A. Carpenter and Kevin R. den Dulk’s Christianity in Chinese Public Life, entitled “Political Constitution and the Protection of Religious Freedom: A Jurisprudential Reading of Article 36 of the Chinese Constitution.” 

According to Zhang, in order to make sense of Article 36 we need to view it through two lenses, one historical, the other political.

Zhang points to three historical factors that have conditioned the Chinese state’s view toward religion.

  • China’s traditional Confucian ideology, a kind of theocracy in Zhang’s view, placed all religion under state domination.
  • As a result, successive regimes from the Tang Dynasty onward have all required religious organizations to register with the state, which has assumed the right to monitor and to intervene in religious affairs.
  • The Opium War signaled the beginning of a clash between the Chinese state and Christianity in particular, which came to be seen as a foreign religion directly threatening Chinese culture and thought.

These factors have all contributed to the current regime’s stance on religion as something to be allowed only within limits. They also shed light on the state’s concern, voiced at the end of Article 36, that religion could again become a tool in the hands of foreign forces intent on destabilizing China.

The political lens comes into focus as we look back at the preamble to the Constitution, which, according to Zhang, lays out a clear hierarchy of values. At the top is the preeminence of the Chinese Communist Party, followed by socialism, democratic centralism, China’s modern socialist construction, and, finally, the protection of individual rights.

“To sum up,” Zhang says, “the wide variety of freedoms protected in the Constitution have less to do with human dignity or intrinsic value of life than with the collective morality needed for the accumulation of national material wealth.”[1]

Viewed within this hierarchy, religion is not protected as an inalienable right in the Western sense. Rather, religion is valuable only to the extent that it serves the larger goal of socialist construction under the leadership of the Party. Hence, according to Zhang, the stipulation that the state will protect only “normal” religious activities, leaving it up to administrative authorities to define “normal” according to the needs and requirements of the state.

Freedom of religious belief may be enshrined in the Constitution and thus appear to enjoy legal protection. However, as Zhang notes, this freedom is not actively protected by the Chinese legal system, which is itself subservient to the Party. Rather, the responsibility for deciding how and when it will be protected is delegated to administrative organs (such as the State Administration for Religious Affairs), leaving no recourse for believers who find their fundamental rights have been infringed.

Footnotes

  1. ^ Zhang Yushuang, “Political Constitution and the Protection of Religious Freedom: A Jurisprudential Reading of Article 36 of the Chinese Constitution,” in Joel A. Carpenter and Kevin R. den Dulk, Eds. Christianity in Chinese Public Life: Religion, Society, and the Rule of Law. (New York: Palgrave Macmillan, 2014): 90.

Image credit: China Winter 2010 – 0373 by Spiffy0777, on Flickr 

Brent Fulton

Brent Fulton

Brent Fulton is the founder of ChinaSource. Dr. Fulton served as the first president of ChinaSource until 2019. Prior to his service with ChinaSource, he served from 1995 to 2000 as the managing director of the Institute for Chinese Studies at Wheaton College. From 1987 to 1995 he served as founding …View Full Bio


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