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Former Chinese State Council Official Calls for Religious Freedom

Poster for Ms. Feng Xuewei's lecture (Source: Internet)
Poster for Ms. Feng Xuewei's lecture (Source: Internet)

(Beijing, China – August 6, 2024) Recently, reporters have just learned about a proposal written by Ms. Feng Xuewei, a former State Council official in mainland China, on September 5, 2023, calling for religious freedom. The 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 “Legislation Law“.

 

Feng Xuewei worked in the Translation and Review Foreign Affairs Department of the State Council Legislative Affairs Office for 12 years from 1990 to 2002, as deputy director. Since then, she has participated in the multilateral negotiations for China’s accession to the World Trade Organization and participated in the WTO Ministerial Conference held in Doha in November 2001 and the signing ceremony for China’s accession to the WTO. After China joined the World Trade Organization, in October 2002, she was admitted to the Legal Affairs Department of the WTO Secretariat as a legal affairs officer and counselor. As a professional lawyer and international staff of the WTO, she assists the expert group members for the WTO dispute settlement cases conducting legal research to resolve trade disputes between countries. She is currently a member of the Beijing Shepherd Church.

 

Feng Xuewei noticed that the newly revised “Regulations on Religious Affairs” on February 1, 2018 has several major contradictions with China’s “Constitution” and “Legislation Law”, and there are obvious violations of the “Constitution” and “Legislation Law”. In order to maintain the dignity of the “Constitution” and the seriousness of the “Legislation Law”, she requested the Constitution and Law Committee of the National People’s Congress review the constitutionality and legality of the “Regulations on Religious Affairs” in accordance with the “Constitution” and “Legislation Law”, and make corresponding handling decisions in accordance with the provisions of the “Constitution” and “Legislation Law”.

 

Feng first introduced her legal profession and professional background, and raised questions about the constitutionality and legality of the “Regulations on Religious Affairs” in the proposal. The country’s current version was revised and adopted at the 176th executive meeting of the State Council on June 14, 2017, promulgated by Order No. 686 of the State Council of the People’s Republic of China on August 26, 2017, and implemented on February 1, 2018.

 

Article 1 of the “Regulations on Religious Affairs” stipulates: “In order to protect citizens’ freedom of religious belief, maintain religious harmony and social harmony, standardize the management of religious affairs, and improve the level of legalization of religious work, these regulations are formulated in accordance with the Constitution and relevant laws.”

 

In the phrase “according to ‘Constitution and relevant laws’”, which specific provisions of the Constitution and which specific “laws” are referred to? The provisions on religious belief in the Constitution are in Article 36 of Chapter 2 of the Constitution, “Basic Rights and Obligations of Citizens”: “Citizens of the People’s Republic of China have freedom of religious belief. No state organ, social group or individual may 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 protects normal religious activities. No one may use religion to disrupt social order, harm the health of citizens, or hinder the national education system. Religious groups and religious affairs are not subject to the control of foreign forces.”

 

Ms. Feng Xuewei believes that it is obvious that it is in accordance with the requirements of the Constitution on “citizens’ freedom of religious belief” and “protecting normal religious activities” and also in order to “regulate the management of religious affairs” that the State Council has formulated and promulgated the “Regulations on Religious Affairs”, an administrative regulation of the State Council. From the perspective of the country’s legal system as a whole, except for the above-mentioned Article 36 of the Constitution, the country currently does not have any basic “laws” on religious affairs that are below the Constitution and formulated by the National People’s Congress or its Standing Committee. In this case, should religious affairs that fall within the scope of “basic rights and obligations of citizens” be legislated by the National People’s Congress first? Does the State Council have the power to formulate administrative regulations on this matter in advance? This needs to be determined based on (1) the specific scope of the State Council’s powers as stipulated in the Constitution; (2) the importance of freedom of religious belief as a basic citizen right in the Constitution; and (3) the division of legislative powers and legislative procedures of the legislature as stipulated in the Legislative Law.

 

Feng’s second question is whether or not the scope of the State Council’s powers in the Constitution include the management of religious affairs.

 

From the scope of power of the State Council, the highest administrative organ, as stipulated in Article 89 of the Constitution:

Article 89 The State Council exercises the following powers:

(1) According to the Constitution and laws, prescribe administrative measures, formulate administrative regulations, and issue decisions and orders;

(2) Submit proposals to the National People’s Congress or the Standing Committee of the National People’s Congress;

(3) Prescribe the tasks and responsibilities of ministries and committees, unify the leadership of the work of ministries and committees, and lead the national administrative work that does not belong to the ministries and committees;

(4) Unify the leadership of the work of local state administrative organs at all levels throughout the country, and prescribe the specific division of powers between the central government and the state administrative organs of provinces, autonomous regions, and municipalities directly under the Central Government;

(5) Formulate and implement the national economic and social development plan and the national budget;

(6) Lead and manage economic work and urban and rural construction, and ecological civilization construction;

(7) Lead and manage education, science, culture, health, sports, and family planning;

(8) Lead and manage civil affairs, public security, judicial administration, etc.;

(9) Manage foreign affairs and conclude treaties and agreements with foreign countries;

(10) Lead and manage national defense construction;

(11) Lead and manage ethnic affairs and safeguard the equal rights of ethnic minorities and the autonomous rights of ethnic autonomous areas;

(12) Protect the legitimate rights and interests of overseas Chinese and the legitimate rights and interests of returned overseas Chinese and their families;

(13) Change or revoke inappropriate orders, instructions and regulations issued by ministries and commissions;

(14) Change or revoke inappropriate decisions and orders of local state administrative organs at all levels;

(15) Approve the regional division of provinces, autonomous regions and municipalities directly under the Central Government, and approve the establishment and regional division of autonomous prefectures, counties, autonomous counties and cities;

(16) Decide that some areas within the scope of provinces, autonomous regions and municipalities directly under the Central Government enter a state of emergency in accordance with the law;

(17) Review and approve the establishment of administrative agencies, appoint, remove, train, assess and reward and punish administrative personnel in accordance with the law;

(18) Other powers granted by the National People’s Congress and the Standing Committee of the National People’s Congress”.

Since the authority to manage religious affairs is not explicitly listed in the powers of the State Council as stipulated in the Constitution, “regulating the management of religious affairs” naturally does not fall within the statutory powers granted to the State Council by the Constitution. Therefore, the State Council’s regulation and implementation of religious affairs by formulating administrative regulations is inconsistent with the clear powers stipulated in Article 89 of the Constitution.

 

The third question raised by Feng is that the legislative power of religious affairs in the Legislative Law belongs to the National People’s Congress rather than the State Council.

 

Article 10 of the Legislative Law stipulates that “the National People’s Congress and the Standing Committee of the National People’s Congress exercise the state legislative power in accordance with the provisions of the Constitution. The National People’s Congress formulates and amends criminal, civil, state institutions and other basic laws.” Does “religious affairs” fall within the scope of “other basic laws” mentioned in this article?

 

From the nature of religious belief, since the provisions on freedom of religious belief are in Chapter 2 of the Constitution, “Basic Rights and Obligations of Citizens”, and the basic rights of citizens involve the legitimate rights and interests of every citizen in the entire country, they belong to the scope of the basic rights and freedoms of the people recognized by the Constitution of the country, and are also the basic guidelines for the Party and the State to serve the people in specific aspects. Naturally, they should belong to the scope of “other basic laws” stipulated in Article 10 of the Legislative Law, and therefore the National People’s Congress should exercise legislative power to formulate basic laws. Only in this way can the provisions of Article 5 of the Legislative Law be realized: “Legislation should comply with the provisions, principles and spirit of the Constitution, follow the statutory powers and procedures, proceed from the overall interests of the country, and safeguard the unity, dignity and authority of the socialist legal system.”

 

In addition, the Legislation Law also clearly lists and stipulates matters that can only be enacted by law (thus prohibiting the enactment of administrative regulations without legal basis):

Article 11 The following matters can only be enacted by law:

(i) Matters concerning state sovereignty;

(ii) The formation, organization and powers of people’s congresses, people’s governments, supervisory committees, people’s courts and people’s procuratorates at all levels;

(iii) The system of regional ethnic autonomy, the system of special administrative regions and the system of grassroots mass autonomy;

(iv) Crimes and penalties;

(v) Deprivation of citizens’ political rights, compulsory measures and penalties for restricting personal freedom;

(vi) Basic taxation systems such as the establishment of tax types, determination of tax rates and tax collection management;

(vii) Collection and requisition of non-state-owned property;

(viii) Basic civil systems;

(ix) Basic economic systems and basic systems of finance, customs, finance and foreign trade;

(x) Litigation system and basic arbitration system;

(xi) Other matters that must be enacted by law by the National People’s Congress and its Standing Committee”.

She concluded that it is obvious that freedom of religious belief falls within the scope of “other matters” stipulated in Article 11, Paragraph 11 of the Legislative Law. Because 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. The reason is very simple: 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. The State Council cannot provide protection for other basic citizens’ rights of similar nature in the Constitution. For example, the right to personal freedom (Article 37), the right to personal dignity and protection (Article 38), the right to housing (Article 39), and the right to freedom of communication and confidentiality (Article 40).

 

These basic citizens’ rights can only be protected through the National People’s Congress enacting laws and the People’s Courts enforcing the Constitution and related basic laws in judging cases in accordance with the law. These are all basic constitutional rights of citizens that are beyond the scope of the State Council’s authority and should naturally fall within the scope of Article 11, Paragraph 11 of the Legislative Law: “Other matters that must be enacted by the National People’s Congress and its Standing Committee”.

 

On the other hand, in the enforcement process of the current “Regulations on Religious Affairs“, in fact, it is often involved in Article 11, Paragraph (5) of the “Legislation Law”, “enforcement measures that restrict personal freedom” – including the fact that some local police accused some Christian church preachers of suspected “fraud” and “illegal business operations” for daily missionary activities and arrested, filed cases and sentenced them (see Annex 2 and Annex 3).

 

Since the management of religious affairs involves “enforcement measures that restrict personal freedom”, this matter also meets the provisions of Article 11, Paragraph (5) of the “Legislation Law” and must be carried out in accordance with the provisions of “Article 11, Paragraph (5) of the “Legislation Law”: The following matters can only be governed by law”.

 

The problem with the State Council formulating administrative regulations on religious affairs without the basic legal basis of the National People’s Congress is that since the State Council does not need to explain to the National People’s Congress how well it performs its duties in accordance with Article 89 of the Constitution and accept the supervision of the National People’s Congress, the formulation and implementation of relevant administrative regulations by the State Council will lead to a situation where administrative organs can easily abuse their powers without a legal mechanism for supervision. This also proves that it is unreasonable for the State Council to formulate administrative regulations on religious affairs that fall within the scope of citizens’ basic rights, and that it is legal and reasonable for the National People’s Congress or its Standing Committee to legislate and formulate religious affairs norms. Otherwise, it will result in a mismatch between the power and responsibility of the State Council, and the principles of the Constitution and the Legislative Law will be violated by the State Council’s practices, which is not conducive to maintaining the unity of the country’s legal system, the harmonious operation of the legal system, and the practical protection of citizens’ freedom of belief.

 

Regarding the way of authorized legislation, although according to Article 12 of the Legislative Law, the State Council can first formulate administrative regulations based on the authorization of the National People’s Congress to obtain the legitimacy of legislation: “Article 12 Where laws have not yet been enacted for matters specified in Article 11 of this Law, the National People’s Congress and its Standing Committee shall have the power to make a decision to authorize the State Council to first enact administrative regulations for some of the matters in accordance with actual needs.” However, the “Regulations on Religious Affairs” do not specify that the National People’s Congress authorizes the State Council to enact the administrative regulations. In the absence of explicit authorization by the National People’s Congress and its Standing Committee, the version enacted by the State Council violate Article 89 of the Constitution and the specific legal provisions of Articles 10, 11 and 12 of the Legislation Law.

 

Not only that, it is also legal for the National People’s Congress not to authorize the State Council to enact administrative regulations. Because Article 72 of the Legislation Law also has specific provisions on the scope of administrative regulations enacted by the State Council:

Article 72 The State Council shall enact administrative regulations in accordance with the Constitution and laws. Administrative regulations may make provisions on the following matters:

(i) Matters for which administrative regulations need to be enacted to implement the provisions of the law;

(ii) Matters within the administrative management powers of the State Council as specified in Article 89 of the Constitution.

This article further clarifies the legislative power of the State Council: administrative regulations can only be formulated in accordance with the Constitution and laws, and the scope of administrative regulations is either for the purpose of “implementing the provisions of the law” or “matters within the administrative management powers of the State Council as stipulated in Article 89 of the Constitution”. Religious affairs do not fall into any of the above two items, and therefore do not fall within the scope of “matters” formulated by the State Council’s administrative regulations. Therefore, the State Council’s overstepping of authority to formulate the “Regulations on Religious Affairs” also violates the provisions of Article 72 of the “Legislation Law”.

 

Based on the above, it is concluded that the “Regulations on Religious Affairs Management” revised by the State Council in 2017 violates Article 89 of the Constitution and the specific legal provisions of Articles 10, 11, 12 and 72 of the “Legislation Law”.

 

The fourth suggestion made by Feng Xuewei is that administrative regulations that violate the “Constitution” and the “Legislation Law” should be revoked by the Standing Committee of the National People’s Congress.

 

Regarding the circumstances under which administrative regulations that violate the “Constitution” and the “Legislation Law” can be revoked, the “Legislation Law” has corresponding provisions:

Article 107 If any of the following circumstances occurs in a law, administrative regulation, local regulation, autonomous regulation, separate regulation or rule, the relevant authority shall change or revoke it in accordance with the authority specified in Article 108 of this Law:(1) Exceeding the authority;

(2) The lower law violates the provisions of the higher law;

(3) The regulations on the same matter are inconsistent and one of the regulations should be changed or revoked after a ruling;

(4) The regulations are considered inappropriate and should be changed or revoked;

(5) Violating the legal procedures.

As an administrative regulation of the State Council, the Regulations on Religious Affairs meets the above three conditions:

  1. exceeds the authority.
  2. the lower-level law violates the higher-level law.
  3. violates the legal procedures and should be revoked by the competent authority.

 

The Legislative Law also stipulates the specific organs that have the power to revoke:

Article 108 The power to change or revoke laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules is:(1) The National People’s Congress has the power to change or revoke inappropriate laws enacted by its Standing Committee, and has the power to revoke autonomous regulations and separate regulations approved by the Standing Committee of the National People’s Congress that violate the Constitution and the provisions of the second paragraph of Article 85 of this Law;

(2) The Standing Committee of the National People’s Congress has the power to revoke administrative regulations that conflict with the Constitution and laws, and…;

(3) The State Council has the power to change or revoke inappropriate departmental regulations and local government regulations.

According to the provisions of Article 108 (2) of the Legislative Law, the Standing Committee of the National People’s Congress has the power to revoke the State Council’s administrative regulations “Regulations on Religious Affairs” that conflict with the Constitution and the Legislative Law.

 

Regarding the specific procedures for revoking unconstitutional and illegal administrative regulations, the Legislative Law has the following provisions:

Article 110 If the State Council, the Central Military Commission, the National Supervisory Commission, the Supreme People’s Court, the Supreme People’s Procuratorate and the Standing Committees of the People’s Congresses of provinces, autonomous regions and municipalities directly under the Central Government believe that administrative regulations, local regulations, autonomous regulations and separate regulations are in conflict with the Constitution or laws, or there are constitutionality or legality issues, they may submit written requests for review to the Standing Committee of the National People’s Congress, and the relevant special committees and working bodies of the Standing Committee of the National People’s Congress shall review and make comments.

Other state organs, social groups, enterprises, institutions and citizens other than those specified in the preceding paragraph believe that administrative regulations, local regulations, autonomous regulations and separate regulations are in conflict with the Constitution or laws, they may submit written suggestions for review to the Standing Committee of the National People’s Congress, and the working bodies of the Standing Committee shall review them; if necessary, they shall be sent to the relevant special committees for review and comments.

According to the provisions of the second paragraph of Article 110 of the Legislative Law, any citizen who “believes that administrative regulations… conflict with the Constitution or laws may submit a written proposal to the Standing Committee of the National People’s Congress for review.”

 

The fifth question raised by Ms. Feng Xuewei is that the current State Council’s “Regulations on Religious Affairs” restricts the improvement of the Chinese people’s moral level and lags behind international standards.

 

She believes that many people overemphasize the power of material, the power of guns, the power of money, and the power of authority. But in the long run, it is the power of spirit, the power of truth, and the power of the heart and the power of true love that ultimately play a decisive role. Jesus Christ was penniless, he didn’t even have a place to lay his head. He certainly didn’t have a sword, let alone guns.

 

After World War I and World War II in the last century, European and American countries, including Eastern countries, established the United Nations and formulated the “Charter of the United Nations” after deep reflection. In order to prevent the recurrence of World War I and World War II, the United Nations adopted the “Universal Declaration of Human Rights” in 1948, and the “United Nations Economic, Social and Cultural Covenant” and the “United Nations Covenant on Civil and Political Rights” in 1966. This reflects the spirit of human equality, fraternity, and protection of basic human rights for all people advocated in the New Testament of the Bible.

 

Such a system of freedom of religious belief improves the welfare of the people and is a good governance system that helps the country achieve long-term stability, so it deserves legal protection.

 

Therefore, as one of the basic rights of people of all countries, Article 18 of the United Nations Covenant on Civil and Political Rights stipulates how to protect citizens’ religious beliefs:

  1.  Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to have or change his religion or belief and freedom to manifest his religion or belief, either alone or in community with others and in public or private, in worship, precepts, practice and teaching.
  2. No one shall be subjected to coercion that would impair his freedom to have or change his religion or belief.
  3. The freedom to manifest one’s religion or belief shall be subject only to such restrictions as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to respect the freedom of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. “

In 1998, former Premier Zhu Rongji signed the United Nations Covenant on Civil and Political Rights to express his acceptance of the principles of the Covenant, but the Standing Committee of the National People’s Congress has not yet carried out the treaty ratification procedures. However, the signature of the leaders of the Chinese government also shows that we support the above principle of freedom of religious belief stipulated in this covenant.

 

Article 18 of the Universal Declaration of Human Rights formulated by the United Nations after World War II in 1948 also stipulates that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom to manifest his religion or belief, either alone or in community with others and in public or private, in teaching, practice, worship and observance.” This principle is the same as the later human rights covenant. Eighty percent of the member states of the United Nations have ratified at least one human rights convention. This shows the vital importance of these objectively formulated conventions.

 

As one of the five permanent members of the UN Security Council, China is an important international force that cannot be ignored in maintaining peace and security in the international community. It abides by the Universal Declaration of Human Rights and the United Nations Civil and Political Rights Convention. The specific internationally accepted provisions of the International Covenant on Civil and Political Rights on the protection of citizens’ basic rights will win a good international reputation and trust for the Chinese government to abide by the important principles commonly recognized by international law, and play a long-term, extensive and vital role.

At present, China’s current “Regulations on Religious Affairs” violates Article 89 of the “Constitution”, Articles 10, 11, 12 and 72 of the “Legislation Law”, Article 18 of the United Nations “Universal Declaration of Human Rights”, and Article 18 of the “United Nations Covenant on Civil and Political Rights”.

 

On the one hand, the current law sets too high a threshold for the legal registration of churches. In addition, some places have enforced the law and convicted preachers of house churches who have failed to register for private gatherings. These are measures that directly violate the provisions of these international conventions. Such law enforcement is not conducive to protecting the citizens’ right to freedom of religious belief. In the long run, this illegal law enforcement will hinder the development of the future moral and spiritual health of Chinese citizens.

 

Feng Xuewei’s sixth point is that according to the principles of rule of law and the unity of the legal system, in addition to complying with the Constitution, legislation must also comply with the powers and procedures stipulated in the Legislative Law. Legislation that violates the statutory powers and procedures stipulated in the Constitution and the Legislative Law violates procedural justice need to be corrected.

 

She came to four conclusions:

  1. The State Council has no power to formulate administrative regulations on matters related to citizens’ basic rights.
  2. The National People’s Congress has not authorized the State Council to formulate administrative regulations involving religious issues.
  3. The National People’s Congress has not yet formulated a religious law, and there is no situation where the State Council has formulated administrative regulations of an implementing nature in accordance with the law to implement religious laws.
  4. Religious affairs are not within the scope of the State Council’s powers stipulated in the Constitution, and the State Council has no legal basis to formulate administrative regulations on its own.

 

In order to promote the implementation of Article 36 of the Constitution of our country on citizens’ freedom of religious belief, implement the provisions of the Constitution on the scope of the State Council’s powers, and effectively implement the provisions of the Legislative Law on the legislative procedures and the division of legislative powers, and maintain procedural justice and the unity of the legal system, as a former civil servant, I hereby request the Constitution and Law Committee of the National People’s Congress conduct a constitutional and legal review of the Regulations on Religious Affairs in accordance with the Legislative Law, and at the same time request the Standing Committee of the National People’s Congress and its Legal Affairs Committee conduct a constitutional and legal review of the current religious regulations in accordance with the procedural provisions of Articles 107, 108, and the second paragraph of Article 110 of the Legislative Law, the scope of the State Council’s powers in Article 89 of the Constitution, and the legislative powers in Articles 10, 11, 12, and 72 of the Legislative Law, and make a decision to revoke it.

 

This proposal of tens of thousands of words is full of historical references, quoting classics, with clear arguments and rigorous legal principles. At the end, Ms. Feng Xuewei also left her name, employer, home address and ID number, which shows her sincerity and openness.

(Beijing, China – August 6, 2024) Recently, reporters have just learned about a proposal written by Ms. Feng Xuewei, a former State Council official in mainland China, on September 5, 2023, calling for religious freedom. The 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 “Legislation Law“.

 

Feng Xuewei worked in the Translation and Review Foreign Affairs Department of the State Council Legislative Affairs Office for 12 years from 1990 to 2002, as deputy director. Since then, she has participated in the multilateral negotiations for China’s accession to the World Trade Organization and participated in the WTO Ministerial Conference held in Doha in November 2001 and the signing ceremony for China’s accession to the WTO. After China joined the World Trade Organization, in October 2002, she was admitted to the Legal Affairs Department of the WTO Secretariat as a legal affairs officer and counselor. As a professional lawyer and international staff of the WTO, she assists the expert group members for the WTO dispute settlement cases conducting legal research to resolve trade disputes between countries. She is currently a member of the Beijing Shepherd Church.

 

Feng Xuewei noticed that the newly revised “Regulations on Religious Affairs” on February 1, 2018 has several major contradictions with China’s “Constitution” and “Legislation Law”, and there are obvious violations of the “Constitution” and “Legislation Law”. In order to maintain the dignity of the “Constitution” and the seriousness of the “Legislation Law”, she requested the Constitution and Law Committee of the National People’s Congress review the constitutionality and legality of the “Regulations on Religious Affairs” in accordance with the “Constitution” and “Legislation Law”, and make corresponding handling decisions in accordance with the provisions of the “Constitution” and “Legislation Law”.

 

Feng first introduced her legal profession and professional background, and raised questions about the constitutionality and legality of the “Regulations on Religious Affairs” in the proposal. The country’s current version was revised and adopted at the 176th executive meeting of the State Council on June 14, 2017, promulgated by Order No. 686 of the State Council of the People’s Republic of China on August 26, 2017, and implemented on February 1, 2018.

 

Article 1 of the “Regulations on Religious Affairs” stipulates: “In order to protect citizens’ freedom of religious belief, maintain religious harmony and social harmony, standardize the management of religious affairs, and improve the level of legalization of religious work, these regulations are formulated in accordance with the Constitution and relevant laws.”

 

In the phrase “according to ‘Constitution and relevant laws’”, which specific provisions of the Constitution and which specific “laws” are referred to? The provisions on religious belief in the Constitution are in Article 36 of Chapter 2 of the Constitution, “Basic Rights and Obligations of Citizens”: “Citizens of the People’s Republic of China have freedom of religious belief. No state organ, social group or individual may 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 protects normal religious activities. No one may use religion to disrupt social order, harm the health of citizens, or hinder the national education system. Religious groups and religious affairs are not subject to the control of foreign forces.”

 

Ms. Feng Xuewei believes that it is obvious that it is in accordance with the requirements of the Constitution on “citizens’ freedom of religious belief” and “protecting normal religious activities” and also in order to “regulate the management of religious affairs” that the State Council has formulated and promulgated the “Regulations on Religious Affairs”, an administrative regulation of the State Council. From the perspective of the country’s legal system as a whole, except for the above-mentioned Article 36 of the Constitution, the country currently does not have any basic “laws” on religious affairs that are below the Constitution and formulated by the National People’s Congress or its Standing Committee. In this case, should religious affairs that fall within the scope of “basic rights and obligations of citizens” be legislated by the National People’s Congress first? Does the State Council have the power to formulate administrative regulations on this matter in advance? This needs to be determined based on (1) the specific scope of the State Council’s powers as stipulated in the Constitution; (2) the importance of freedom of religious belief as a basic citizen right in the Constitution; and (3) the division of legislative powers and legislative procedures of the legislature as stipulated in the Legislative Law.

 

Feng’s second question is whether or not the scope of the State Council’s powers in the Constitution include the management of religious affairs.

 

From the scope of power of the State Council, the highest administrative organ, as stipulated in Article 89 of the Constitution:

Article 89 The State Council exercises the following powers:

(1) According to the Constitution and laws, prescribe administrative measures, formulate administrative regulations, and issue decisions and orders;

(2) Submit proposals to the National People’s Congress or the Standing Committee of the National People’s Congress;

(3) Prescribe the tasks and responsibilities of ministries and committees, unify the leadership of the work of ministries and committees, and lead the national administrative work that does not belong to the ministries and committees;

(4) Unify the leadership of the work of local state administrative organs at all levels throughout the country, and prescribe the specific division of powers between the central government and the state administrative organs of provinces, autonomous regions, and municipalities directly under the Central Government;

(5) Formulate and implement the national economic and social development plan and the national budget;

(6) Lead and manage economic work and urban and rural construction, and ecological civilization construction;

(7) Lead and manage education, science, culture, health, sports, and family planning;

(8) Lead and manage civil affairs, public security, judicial administration, etc.;

(9) Manage foreign affairs and conclude treaties and agreements with foreign countries;

(10) Lead and manage national defense construction;

(11) Lead and manage ethnic affairs and safeguard the equal rights of ethnic minorities and the autonomous rights of ethnic autonomous areas;

(12) Protect the legitimate rights and interests of overseas Chinese and the legitimate rights and interests of returned overseas Chinese and their families;

(13) Change or revoke inappropriate orders, instructions and regulations issued by ministries and commissions;

(14) Change or revoke inappropriate decisions and orders of local state administrative organs at all levels;

(15) Approve the regional division of provinces, autonomous regions and municipalities directly under the Central Government, and approve the establishment and regional division of autonomous prefectures, counties, autonomous counties and cities;

(16) Decide that some areas within the scope of provinces, autonomous regions and municipalities directly under the Central Government enter a state of emergency in accordance with the law;

(17) Review and approve the establishment of administrative agencies, appoint, remove, train, assess and reward and punish administrative personnel in accordance with the law;

(18) Other powers granted by the National People’s Congress and the Standing Committee of the National People’s Congress”.

Since the authority to manage religious affairs is not explicitly listed in the powers of the State Council as stipulated in the Constitution, “regulating the management of religious affairs” naturally does not fall within the statutory powers granted to the State Council by the Constitution. Therefore, the State Council’s regulation and implementation of religious affairs by formulating administrative regulations is inconsistent with the clear powers stipulated in Article 89 of the Constitution.

 

The third question raised by Feng is that the legislative power of religious affairs in the Legislative Law belongs to the National People’s Congress rather than the State Council.

 

Article 10 of the Legislative Law stipulates that “the National People’s Congress and the Standing Committee of the National People’s Congress exercise the state legislative power in accordance with the provisions of the Constitution. The National People’s Congress formulates and amends criminal, civil, state institutions and other basic laws.” Does “religious affairs” fall within the scope of “other basic laws” mentioned in this article?

 

From the nature of religious belief, since the provisions on freedom of religious belief are in Chapter 2 of the Constitution, “Basic Rights and Obligations of Citizens”, and the basic rights of citizens involve the legitimate rights and interests of every citizen in the entire country, they belong to the scope of the basic rights and freedoms of the people recognized by the Constitution of the country, and are also the basic guidelines for the Party and the State to serve the people in specific aspects. Naturally, they should belong to the scope of “other basic laws” stipulated in Article 10 of the Legislative Law, and therefore the National People’s Congress should exercise legislative power to formulate basic laws. Only in this way can the provisions of Article 5 of the Legislative Law be realized: “Legislation should comply with the provisions, principles and spirit of the Constitution, follow the statutory powers and procedures, proceed from the overall interests of the country, and safeguard the unity, dignity and authority of the socialist legal system.”

 

In addition, the Legislation Law also clearly lists and stipulates matters that can only be enacted by law (thus prohibiting the enactment of administrative regulations without legal basis):

Article 11 The following matters can only be enacted by law:

(i) Matters concerning state sovereignty;

(ii) The formation, organization and powers of people’s congresses, people’s governments, supervisory committees, people’s courts and people’s procuratorates at all levels;

(iii) The system of regional ethnic autonomy, the system of special administrative regions and the system of grassroots mass autonomy;

(iv) Crimes and penalties;

(v) Deprivation of citizens’ political rights, compulsory measures and penalties for restricting personal freedom;

(vi) Basic taxation systems such as the establishment of tax types, determination of tax rates and tax collection management;

(vii) Collection and requisition of non-state-owned property;

(viii) Basic civil systems;

(ix) Basic economic systems and basic systems of finance, customs, finance and foreign trade;

(x) Litigation system and basic arbitration system;

(xi) Other matters that must be enacted by law by the National People’s Congress and its Standing Committee”.

She concluded that it is obvious that freedom of religious belief falls within the scope of “other matters” stipulated in Article 11, Paragraph 11 of the Legislative Law. Because 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. The reason is very simple: 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. The State Council cannot provide protection for other basic citizens’ rights of similar nature in the Constitution. For example, the right to personal freedom (Article 37), the right to personal dignity and protection (Article 38), the right to housing (Article 39), and the right to freedom of communication and confidentiality (Article 40).

 

These basic citizens’ rights can only be protected through the National People’s Congress enacting laws and the People’s Courts enforcing the Constitution and related basic laws in judging cases in accordance with the law. These are all basic constitutional rights of citizens that are beyond the scope of the State Council’s authority and should naturally fall within the scope of Article 11, Paragraph 11 of the Legislative Law: “Other matters that must be enacted by the National People’s Congress and its Standing Committee”.

 

On the other hand, in the enforcement process of the current “Regulations on Religious Affairs“, in fact, it is often involved in Article 11, Paragraph (5) of the “Legislation Law”, “enforcement measures that restrict personal freedom” – including the fact that some local police accused some Christian church preachers of suspected “fraud” and “illegal business operations” for daily missionary activities and arrested, filed cases and sentenced them (see Annex 2 and Annex 3).

 

Since the management of religious affairs involves “enforcement measures that restrict personal freedom”, this matter also meets the provisions of Article 11, Paragraph (5) of the “Legislation Law” and must be carried out in accordance with the provisions of “Article 11, Paragraph (5) of the “Legislation Law”: The following matters can only be governed by law”.

 

The problem with the State Council formulating administrative regulations on religious affairs without the basic legal basis of the National People’s Congress is that since the State Council does not need to explain to the National People’s Congress how well it performs its duties in accordance with Article 89 of the Constitution and accept the supervision of the National People’s Congress, the formulation and implementation of relevant administrative regulations by the State Council will lead to a situation where administrative organs can easily abuse their powers without a legal mechanism for supervision. This also proves that it is unreasonable for the State Council to formulate administrative regulations on religious affairs that fall within the scope of citizens’ basic rights, and that it is legal and reasonable for the National People’s Congress or its Standing Committee to legislate and formulate religious affairs norms. Otherwise, it will result in a mismatch between the power and responsibility of the State Council, and the principles of the Constitution and the Legislative Law will be violated by the State Council’s practices, which is not conducive to maintaining the unity of the country’s legal system, the harmonious operation of the legal system, and the practical protection of citizens’ freedom of belief.

 

Regarding the way of authorized legislation, although according to Article 12 of the Legislative Law, the State Council can first formulate administrative regulations based on the authorization of the National People’s Congress to obtain the legitimacy of legislation: “Article 12 Where laws have not yet been enacted for matters specified in Article 11 of this Law, the National People’s Congress and its Standing Committee shall have the power to make a decision to authorize the State Council to first enact administrative regulations for some of the matters in accordance with actual needs.” However, the “Regulations on Religious Affairs” do not specify that the National People’s Congress authorizes the State Council to enact the administrative regulations. In the absence of explicit authorization by the National People’s Congress and its Standing Committee, the version enacted by the State Council violate Article 89 of the Constitution and the specific legal provisions of Articles 10, 11 and 12 of the Legislation Law.

 

Not only that, it is also legal for the National People’s Congress not to authorize the State Council to enact administrative regulations. Because Article 72 of the Legislation Law also has specific provisions on the scope of administrative regulations enacted by the State Council:

Article 72 The State Council shall enact administrative regulations in accordance with the Constitution and laws. Administrative regulations may make provisions on the following matters:

(i) Matters for which administrative regulations need to be enacted to implement the provisions of the law;

(ii) Matters within the administrative management powers of the State Council as specified in Article 89 of the Constitution.

This article further clarifies the legislative power of the State Council: administrative regulations can only be formulated in accordance with the Constitution and laws, and the scope of administrative regulations is either for the purpose of “implementing the provisions of the law” or “matters within the administrative management powers of the State Council as stipulated in Article 89 of the Constitution”. Religious affairs do not fall into any of the above two items, and therefore do not fall within the scope of “matters” formulated by the State Council’s administrative regulations. Therefore, the State Council’s overstepping of authority to formulate the “Regulations on Religious Affairs” also violates the provisions of Article 72 of the “Legislation Law”.

 

Based on the above, it is concluded that the “Regulations on Religious Affairs Management” revised by the State Council in 2017 violates Article 89 of the Constitution and the specific legal provisions of Articles 10, 11, 12 and 72 of the “Legislation Law”.

 

The fourth suggestion made by Feng Xuewei is that administrative regulations that violate the “Constitution” and the “Legislation Law” should be revoked by the Standing Committee of the National People’s Congress.

 

Regarding the circumstances under which administrative regulations that violate the “Constitution” and the “Legislation Law” can be revoked, the “Legislation Law” has corresponding provisions:

Article 107 If any of the following circumstances occurs in a law, administrative regulation, local regulation, autonomous regulation, separate regulation or rule, the relevant authority shall change or revoke it in accordance with the authority specified in Article 108 of this Law:(1) Exceeding the authority;

(2) The lower law violates the provisions of the higher law;

(3) The regulations on the same matter are inconsistent and one of the regulations should be changed or revoked after a ruling;

(4) The regulations are considered inappropriate and should be changed or revoked;

(5) Violating the legal procedures.

As an administrative regulation of the State Council, the Regulations on Religious Affairs meets the above three conditions:

  1. exceeds the authority.
  2. the lower-level law violates the higher-level law.
  3. violates the legal procedures and should be revoked by the competent authority.

 

The Legislative Law also stipulates the specific organs that have the power to revoke:

Article 108 The power to change or revoke laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules is:(1) The National People’s Congress has the power to change or revoke inappropriate laws enacted by its Standing Committee, and has the power to revoke autonomous regulations and separate regulations approved by the Standing Committee of the National People’s Congress that violate the Constitution and the provisions of the second paragraph of Article 85 of this Law;

(2) The Standing Committee of the National People’s Congress has the power to revoke administrative regulations that conflict with the Constitution and laws, and…;

(3) The State Council has the power to change or revoke inappropriate departmental regulations and local government regulations.

According to the provisions of Article 108 (2) of the Legislative Law, the Standing Committee of the National People’s Congress has the power to revoke the State Council’s administrative regulations “Regulations on Religious Affairs” that conflict with the Constitution and the Legislative Law.

 

Regarding the specific procedures for revoking unconstitutional and illegal administrative regulations, the Legislative Law has the following provisions:

Article 110 If the State Council, the Central Military Commission, the National Supervisory Commission, the Supreme People’s Court, the Supreme People’s Procuratorate and the Standing Committees of the People’s Congresses of provinces, autonomous regions and municipalities directly under the Central Government believe that administrative regulations, local regulations, autonomous regulations and separate regulations are in conflict with the Constitution or laws, or there are constitutionality or legality issues, they may submit written requests for review to the Standing Committee of the National People’s Congress, and the relevant special committees and working bodies of the Standing Committee of the National People’s Congress shall review and make comments.

Other state organs, social groups, enterprises, institutions and citizens other than those specified in the preceding paragraph believe that administrative regulations, local regulations, autonomous regulations and separate regulations are in conflict with the Constitution or laws, they may submit written suggestions for review to the Standing Committee of the National People’s Congress, and the working bodies of the Standing Committee shall review them; if necessary, they shall be sent to the relevant special committees for review and comments.

According to the provisions of the second paragraph of Article 110 of the Legislative Law, any citizen who “believes that administrative regulations… conflict with the Constitution or laws may submit a written proposal to the Standing Committee of the National People’s Congress for review.”

 

The fifth question raised by Ms. Feng Xuewei is that the current State Council’s “Regulations on Religious Affairs” restricts the improvement of the Chinese people’s moral level and lags behind international standards.

 

She believes that many people overemphasize the power of material, the power of guns, the power of money, and the power of authority. But in the long run, it is the power of spirit, the power of truth, and the power of the heart and the power of true love that ultimately play a decisive role. Jesus Christ was penniless, he didn’t even have a place to lay his head. He certainly didn’t have a sword, let alone guns.

 

After World War I and World War II in the last century, European and American countries, including Eastern countries, established the United Nations and formulated the “Charter of the United Nations” after deep reflection. In order to prevent the recurrence of World War I and World War II, the United Nations adopted the “Universal Declaration of Human Rights” in 1948, and the “United Nations Economic, Social and Cultural Covenant” and the “United Nations Covenant on Civil and Political Rights” in 1966. This reflects the spirit of human equality, fraternity, and protection of basic human rights for all people advocated in the New Testament of the Bible.

 

Such a system of freedom of religious belief improves the welfare of the people and is a good governance system that helps the country achieve long-term stability, so it deserves legal protection.

 

Therefore, as one of the basic rights of people of all countries, Article 18 of the United Nations Covenant on Civil and Political Rights stipulates how to protect citizens’ religious beliefs:

  1.  Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to have or change his religion or belief and freedom to manifest his religion or belief, either alone or in community with others and in public or private, in worship, precepts, practice and teaching.
  2. No one shall be subjected to coercion that would impair his freedom to have or change his religion or belief.
  3. The freedom to manifest one’s religion or belief shall be subject only to such restrictions as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to respect the freedom of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. “

In 1998, former Premier Zhu Rongji signed the United Nations Covenant on Civil and Political Rights to express his acceptance of the principles of the Covenant, but the Standing Committee of the National People’s Congress has not yet carried out the treaty ratification procedures. However, the signature of the leaders of the Chinese government also shows that we support the above principle of freedom of religious belief stipulated in this covenant.

 

Article 18 of the Universal Declaration of Human Rights formulated by the United Nations after World War II in 1948 also stipulates that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom to manifest his religion or belief, either alone or in community with others and in public or private, in teaching, practice, worship and observance.” This principle is the same as the later human rights covenant. Eighty percent of the member states of the United Nations have ratified at least one human rights convention. This shows the vital importance of these objectively formulated conventions.

 

As one of the five permanent members of the UN Security Council, China is an important international force that cannot be ignored in maintaining peace and security in the international community. It abides by the Universal Declaration of Human Rights and the United Nations Civil and Political Rights Convention. The specific internationally accepted provisions of the International Covenant on Civil and Political Rights on the protection of citizens’ basic rights will win a good international reputation and trust for the Chinese government to abide by the important principles commonly recognized by international law, and play a long-term, extensive and vital role.

At present, China’s current “Regulations on Religious Affairs” violates Article 89 of the “Constitution”, Articles 10, 11, 12 and 72 of the “Legislation Law”, Article 18 of the United Nations “Universal Declaration of Human Rights”, and Article 18 of the “United Nations Covenant on Civil and Political Rights”.

 

On the one hand, the current law sets too high a threshold for the legal registration of churches. In addition, some places have enforced the law and convicted preachers of house churches who have failed to register for private gatherings. These are measures that directly violate the provisions of these international conventions. Such law enforcement is not conducive to protecting the citizens’ right to freedom of religious belief. In the long run, this illegal law enforcement will hinder the development of the future moral and spiritual health of Chinese citizens.

 

Feng Xuewei’s sixth point is that according to the principles of rule of law and the unity of the legal system, in addition to complying with the Constitution, legislation must also comply with the powers and procedures stipulated in the Legislative Law. Legislation that violates the statutory powers and procedures stipulated in the Constitution and the Legislative Law violates procedural justice need to be corrected.

 

She came to four conclusions:

  1. The State Council has no power to formulate administrative regulations on matters related to citizens’ basic rights.
  2. The National People’s Congress has not authorized the State Council to formulate administrative regulations involving religious issues.
  3. The National People’s Congress has not yet formulated a religious law, and there is no situation where the State Council has formulated administrative regulations of an implementing nature in accordance with the law to implement religious laws.
  4. Religious affairs are not within the scope of the State Council’s powers stipulated in the Constitution, and the State Council has no legal basis to formulate administrative regulations on its own.

 

In order to promote the implementation of Article 36 of the Constitution of our country on citizens’ freedom of religious belief, implement the provisions of the Constitution on the scope of the State Council’s powers, and effectively implement the provisions of the Legislative Law on the legislative procedures and the division of legislative powers, and maintain procedural justice and the unity of the legal system, as a former civil servant, I hereby request the Constitution and Law Committee of the National People’s Congress conduct a constitutional and legal review of the Regulations on Religious Affairs in accordance with the Legislative Law, and at the same time request the Standing Committee of the National People’s Congress and its Legal Affairs Committee conduct a constitutional and legal review of the current religious regulations in accordance with the procedural provisions of Articles 107, 108, and the second paragraph of Article 110 of the Legislative Law, the scope of the State Council’s powers in Article 89 of the Constitution, and the legislative powers in Articles 10, 11, 12, and 72 of the Legislative Law, and make a decision to revoke it.

 

This proposal of tens of thousands of words is full of historical references, quoting classics, with clear arguments and rigorous legal principles. At the end, Ms. Feng Xuewei also left her name, employer, home address and ID number, which shows her sincerity and openness.

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