Report: Special Rapporteur on Religious Intolerance, E/CN.4/1995/91 (excerpt) [p.68]
Economic and Social Council
22 December 1995
COMMISSION ON HUMAN RIGHTS
Item 22 of the provisional agenda
IMPLEMENTATION OF THE DECLARATION ON THE ELIMINATION OF ALL FORMS OF INTOLERANCE AND OF DISCRIMINATION BASED ON RELIGION OR BELIEF
Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1994/18
III. VISIT BY THE SPECIAL RAPPORTEUR TO CHINA
From 19 to 30 November 1994, the Special Rapporteur on Religious Intolerance visited China, on the proposal and at the invitation of the Government of the People's Republic of China, under the terms of his mandate and in accordance with Commission on Human Rights resolution 1994/18 of 25 February 1994. During that visit, the Special Rapporteur met representatives of the Government and of the non-governmental sectors. In particular, he had discussions with the leaders of the five principal religions represented in China (Buddhism, Taoism, Islam, Catholicism and Protestantism), worshippers and scholars and also with a recently released Tibetan monk. He also visited places of worship and of religious significance, as well as religious institutes. During the visit the Rapporteur went to Beijing, Chengdu (Sichuan Province), Lhasa (Tibet Autonomous Region) and Shanghai.
The Special Rapporteur wishes to extend his sincere thanks to the Chinese authorities for inviting him. He attaches symbolic importance to this first visit to China of a Special Rapporteur of the Commission on Human Rights. In this connection, he wishes to welcome the openness shown by the Chinese Government and its efforts, its sustained interest and its desire to cooperate. He is also very grateful to the various high-level individuals he met during the preparation and in the course of this visit.
The visit, and the high quality of the discussions during both consultations with government representatives and interviews with the various religious groupings, provided a better understanding of the religious aspects of the human rights situation in both its religious and political dimensions. China is a very large and complex country, an analysis of which demands sustained attention and special efforts. China has for some time been engaged in a process of fundamental reforms in every field, including that of human rights. Thus the visit resulted in a better understanding of Chinese realities and at the same time the identification of certain fields of progress and aspects where further development may be hoped for. In this connection, the Special Rapporteur considers that exchanges of this kind should be continued.
C. Legislation in the field of tolerance and non-discrimination in relation to religion or belief
1. Legislation currently in force
Article 36 of the Chinese Constitution reads as follows:
"Citizens of the People's Republic of China enjoy freedom of religious belief. 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. The State protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.
Religious bodies and religious affairs are not subject to any foreign domination."
The Autonomous Regions of National Minorities Act (arts. 11 and 53), the Penal Code (arts. 147 and 165), the Civil Code (art. 77), the Military Service Code (art. 3), the Electoral Code (art. 3), the Compulsory Education Act (art. 16) and the Organization of Rural Committees Act provide for the protection of freedom of worship and equality of rights for religious citizens. In particular, article 147 of the Penal Code provides that: "State officials who violate the freedom of worship of citizens or the customs of national minorities are punishable in serious cases by imprisonment for not more than two years or by a short term of imprisonment. Any person who forcibly prevents legal religious activities, compels believers to abandon their religion, compels a citizen to practise any form of worship, illegally closes or demolishes legal places of worship or other religious premises is violating democratic rights and individual freedom and failing in his duty and is punishable by law."
On 31 January 1994 two new regulations governing religious activities came into force. The first (entitled "Provisions governing the religious activities of foreign nationals within the frontiers of the People's Republic of China") was promulgated by Council of State Decree No. 144. Article 1 of this regulation states that its purpose is to "protect the freedom of religion of foreign nationals in China". Articles 3 and 4 provide that foreign nationals may engage in religious activities provided that the latter take place in religious venues or places recognized as such by the Office of Religious Affairs. The regulation also guarantees to foreign nationals the right to bring with them religious publications not exceeding in quantity "what they require for their personal use" and prohibits "entry of any document of a religious character" the contents of which prejudice the interests of the public in Chinese society (art.6).
Foreign nationals must respect Chinese laws and regulations and "are not permitted to establish religious organizations, liaison offices, venues for religious activities or non-religious schools and institutes within China; they are not allowed to recruit believers among the Chinese citizens, appoint clergy or undertake other evangelist activities" (art. 8). Article 9 states that any foreign national engaging in activities of these kinds is liable to penalties in accordance with Chinese law.
The second regulation (entitled "Regulation concerning the functioning of places of worship") was promulgated by Council of State Decree No. 145. Its purpose is to protect "normal religious activities" (see art. 36 of the Constitution). It guarantees the right of religious organizations to receive subsidies or gifts, to sell objects of a religious nature and to administer their assets and income themselves (arts. 6, 7 and 8). Article 3 states that their "legal rights, and the normal religious activities ..will be under the protection of the law, and no organization or person will be permitted to transgress or interfere". Article 2 states that all "places devoted to religious activities" (temples, monasteries, mosques, churches or other places in which religious activities take place) must be declared to the authorities in accordance with rules established by the government Office of Religious Affairs. Article 4 prohibits all activities "which harm national unity, ethnic unity or the social order, harm citizens' health or destroy the national educational system". It also prohibits organizations or individuals established outside China from exercising any control over religious groups in China. Article 15 provides that violators of these provisions are liable to penal sanctions.
On 12 May 1994 the National People's Congress added 18 new articles to the January 1987 Regulations Governing Public Order Offences. Three of the new articles - those relating to "carrying out activities under the name of a social organization without registration", "organizing activities of superstitious sects and secret societies to disrupt public order" and "disturbing public order and damaging people's health through religious activities" - affect religious congregations.
2. Concerns of the Special Rapporteur
During his visit, the Special Rapporteur paid particular attention to the points analysed in the subsections which follow.
(a) The right to freedom of belief
(I) Young people under age 18
The Special Rapporteur asked what were the reasons for the non-recognition of the right to religious education and belief for young people under age 18 (which is contrary to the 1981 Declaration and article 14 of the Convention on the Rights of the Child). The authorities stated that there were no provisions on the subject and that, under the Constitution, all citizens enjoyed freedom of belief; that provision excluded any restriction. It was pointed out that, in practice, it was necessary to be over 18 years of age to become a monk. Non-governmental representatives stated that there were no provisions either establishing or prohibiting the right of persons under age 18 to freedom of belief. It was indicated that that right was a private matter for individuals and that the law encouraged the definition of responsibilities vis-a-vis society and not vis-a-vis religions. It was also stated that religious education could not be imparted to young persons under age 18 in public institutions.
(II) Members of the Chinese Communist Party
The Special Rapporteur asked whether freedom of religious belief was not permitted for members of the Chinese Communist Party. The authorities stated that the Constitution and the laws provided for freedom of belief for all citizens, whereas the doctrine of the Communist Party was atheistic. It was stated that the prohibition existed in theory but that freedom of religious belief was acceptable among party members from ethnic minorities.
(b) The right to freedom to manifest one's religion
Article 36 of the Constitution provides for the right to freedom of religious belief but not the right to manifest one's religion as provided for in the first paragraph of article 1 of the 1981 Declaration. The Special Rapporteur asked the Chinese authorities whether they were considering the possibility of an amendment to article 36 of the Constitution in order to guarantee respect of the freedom to manifest one's religion. The authorities stated that the Constitution was the basic law, laying down an extremely comprehensive set of principles, whereas the details were regulated by laws, codes and decrees. The authorities went on to state that the right to freedom to manifest one's religion existed in practice. Non-governmental representatives stated that citizens were free to believe or not to believe and that it was therefore preferable not to have constitutional provisions relating to freedom to manifest one's religion. Representatives of the religious groups added that in China the concept of "mutual respect" was preferred to that of "freedom to manifest one's religion".
(c) The practice of religion
The Special Rapporteur sought to learn more concerning the conditions under which proselytizing activities were carried on by Chinese and by foreigners. The authorities stated that the right to freedom of belief and to manifest one's belief had to be exercised within the framework of the Constitution and the laws, and in particular the right to carry on normal religious activities in places of worship. It was also pointed out, firstly, that meetings in public places required the prior authorization of the public security authorities in accordance with the Demonstrations Act, and secondly, that the public security authorities treated demonstrations of a religious character on an equal footing with demonstrations of other kinds.
As regards proselytizing activities carried on by non-Chinese, the authorities referred to the new Decree No. 144. It was pointed out that any unauthorized assembly of a large number of persons constituted a breach of the law, as did any assembly directed by foreigners, as such an assembly would be incompatible with the status of tourists and the decrees and regulations concerning entry to and exit from Chinese territory. Non- governmental representatives also indicated that foreigners had had occasion to conduct religious activities in China, particularly within churches.
(II) The concept of normal and abnormal religious activities
The Special Rapporteur sought information on the criteria defining the concepts of normal and abnormal religious activities. The authorities replied that normal religious activities were provided for, prescribed and protected by the Constitution and by laws and regulations (including Decrees Nos. 144 and 145) and that religious activities which failed to comply with those instruments were considered abnormal. The representatives of the Ministry of Public Security stated that the practice of a religion at home, and the classification of it, had not always been treated uniformly.
(III) Registration for the practice of a religion
The Special Rapporteur asked whether believers were required to register in order actually to practise their religion. The authorities stated that registration concerned religious associations and places of worship, but not individual believers or meetings within families.
(d) Places of worship
(I) The concept of the "fixed place"
Article 2 of Decree No. 145 specifies what places are places of worship but does not define the concept of a "fixed place". The Special Rapporteur asked for more detailed information on this concept and, in particular, asked whether a home could be considered to be a place of worship. The authorities stated a religion could be practised in the workplace or at home and that, where the construction of a place of worship was impossible, a home could be a place of regular practice under a temporary registration. It was also explained that cases of this kind were few inasmuch as places of worship were being constructed rapidly. It was also explained that such cases occurred mainly within the Protestant religion, which had meeting- places which could be registered if it was established that they complied with the provisions of the decrees in force. Non-governmental representatives stated that prayers were forbidden during work because they infringed the rights of non-believers.
(II) Criteria for registration and appeals
The Special Rapporteur asked what were the criteria for registration of places of worship. The authorities gave the following criteria: official name; a fixed place; a certain number of worshippers; sufficiently qualified clergy; income or receipts in accordance with the law; and regulations. Once all those criteria were met, a request for registration could be submitted to the Government. Regarding the criterion of the number of worshippers, the authorities stated that there were no precise limits and that the number of worshippers could exceed 20 or 30. As for the criterion of qualification of the clergy, the authorities stated that clergy must have a minimum standard of religious knowledge.
The authorities stated that, in the event of refusal of registration, appeals could be addressed to a higher administrative body or to a court of law if the application for registration was rejected notwithstanding the fact that all the requisite conditions were met.
(e) Gifts and voluntary work
The authorities stated that gifts and voluntary work were possible so long as they were not compulsory in any way. It was also stated that voluntary gifts from foreigners were authorized (examples were quoted of gifts from the United Arab Emirates and the Development Bank); that certain conditions had to be met; and that the rules concerning gifts from foreigners were the same for every religion.
(f) The Penal Code, the new Act and the draft bill
(I) Penal Code
Several of the persons met stressed the importance of article 147 of the Penal Code (which provides for penalties in respect of all infringements of freedom of religion by State officials), since in their view the principal difficulties currently being experienced with regard to freedom of religion derived from infringements committed by officials.
(II) Act concerning compensation for persons detained and acquitted
The Special Rapporteur asked for more detailed information on this Act, the entry into force of which was scheduled for 1 January 1995. He obtained a copy of the Act in Chinese and is waiting for a French translation. The Ministry of Justice indicated that the question of compensation lay within the competence of the people's courts. A member of the Institute of World Religions stated that the Act was a major step forward inasmuch as it constituted a development of the rights of the individual and his defence, particularly with regard to officials who would have to accept their responsibilities and pay compensation following violations committed against persons who were subsequently acquitted. It was added that only the principle of compensation had been accepted and that its implementation would be difficult; in particular, it presupposed the acceptance of the new concept by the public.
(III) General bill on freedom of religion
The Special Rapporteur asked the authorities about the desirability of a general act concerning freedom to practise a religion. The authorities stated that they had no plans for draft legislation of that kind. Non- governmental representatives considered that legislation of that kind was necessary but that some time would be needed to obtain the required experience, and that the recent decrees were transitional measures forming part of a general process of improvement of the situation.
D. Implementation of legislation and policy on tolerance and non-discrimination based on religion or belief
1. Summary of information
According to the information transmitted by the Chinese authorities with regard to the Chinese Government's policy on freedom of religious belief, "the Chinese Government always respects and protects the citizens' free choice of religious belief, adopting a policy of religious freedom guaranteed by law". Chinese citizens are free to believe in religion or not, and to choose to believe in any kind of religion. Within a religion, they are free to believe in any sect. Non-believers may become believers, and believers may at any time change their beliefs. Politically and legally, religious adherents and non-believers are equal and have the same rights and obligations.
"The State follows the principle of separation of religion from politics and education." Religious groups operate under the guiding principles of independence, autonomy and self-management, without State or foreign interference. "Governments at various levels carry out its policy by helping religious circles reopen their monasteries, temples and churches and other sites for normal religious activities. The Government supports and encourages religious believers to take an active part in the country's socialist construction and the building of a socialist spiritual and material civilization." With regard to the enforcement and monitoring of policy on freedom of religious belief, the Chinese Government includes a Department of Religious Affairs which is responsible for enforcement of the law and policy on freedom of religious belief, not for meddling in the religious activities of individual religious groups. "In case of any infringement of the policy on freedom of religious belief, the Government will promptly correct the mistakes and handle the incident properly. The People's Congress and the People's Political Consultative Conference at all levels supervise the implementation of the policy on freedom of religious belief by democraticmeans."
According to information transmitted to the Special Rapporteur prior to his visit, the five religions officially recognized in China have been amalgamated into a patriotic association, which is answerable for its activities to the Government's Office of Religious Affairs. Eight religious organizations are said to have official authorization in the whole of China: the China Buddhist Association, the China Taoist Association, the China Islamic Association, the Chinese Patriotic Catholic Association, the National Administration Commission of the Chinese Catholic Church, the Chinese Catholic Bishops' College, the Three-Self Patriotic Movement Committee of the Protestant Churches of China and the Christian Council.
It appears that the Chinese authorities are trying to restrict and repress all religious activities outside the existing structures mentioned above and are at the same time reducing authorized religious activities across the whole of China (se e the allegation of 25 November 1993, E/CN.4/1994/79). The Tibet Autonomous Region continues to encounter grave difficulties as far as religious tolerance is concerned (E/CN.4/1994/79 idem). The Chinese Communist Party is reported to have issued two documents on religion: Document No. 6 of 6 February 1991 and Document No. 19 of March 1982. "Document No. 6 would call for registration of all religious meetings and for tighter control of religious affairs. It would state that 'Communist Party members are allowed neither to believe in religion' nor participate in religious activities 'and would contain a prohibition on the activities of "Self-styled preachers"'; 'Document No. 19 would state that religious work is an important part of the Party's mass and of our Party's United Front Work. Therefore, our Party committees at all levels must powerfully direct and organize all departments, including the United Front departments, the Religious Affairs Bureaux . and all other people's organizations to unify their thinking, understanding and policies'. It would also state that the only religious professionals permitted to perform religious duties are those who, after examination, are judged 'politically reliable'."
2. Concerns of the Special Rapporteur
(a) Situation of the religious communities: statistical data
During his visit, the Special Rapporteur attempted to collect statistical data on the five main religious communities in China. The tables below reproduce the information obtained from the Office of Religious Affairs and the Chinese People's Political Consultative Conference (CPPCC). They indicated that the data were sometimes approximate, or even non-existent (as in the case of the Taoist population), because of difficulties in establishing statistics. The Ministry for Public Security told the Special Rapporteur that no mention was made of citizens' religion either in the registers of inhabitants or in the files on arrested and detained persons.
With reference to the Chinese Government's reply of 22 December 1993 (E/CN.4/1994/79), differences are to be noted between the statistical data transmitted last year and this as far as the Christian religion, particularly Protestantism, is concerned.
December 1993 November 1994 Catholicism 3.5 million 4 million Protestantism 4.5 million 6.5 million. This development, which was confirmed by numerous persons interviewed during the visit, seems to reflect a religious revival, as illustrated by the growth of the Christian communities. According to various non- governmental sources, the figures for the Catholic and Protestant communities are much higher (in millions), but cannot be reflected in the tables below because of the difficulty of taking into account all the believers affiliated to unofficial religious organizations.
Statistical data on Buddhists in China (Chinese-languagefamily Buddhism, Tibetan-language-family Buddhism, Pali- languagefamily Buddhism or Lamaism)Information provided by the Office of Religious Affairs Information provided by the Chinese People's Political Consultative Conference (CPPCC)Number of believers100 million (approx.) Number of members of religious orders170 000170 to 180 000 Number of places of worship 9 500 monasteries 10 000 temples, monasteriesNumber of theological institutes 1420 institutes and 2 000 seminarists National Buddhist association China Buddhist Association (1953)National association publication"Voice of the Dharma""Voice of the Dharma"
Statistical data on Chinese-language-family BuddhismInformation provided by the Office of Religious AffairsInformation provided by the CPPCCNumber of members of religious orders 40 000+ monks and nuns Number of monasteries 5 000+
Statistical data on Tibetan-language-family BuddhismInformation provided by the Office of Religious AffairsInformation provided by the CPPCCPopulation 7 million: Tibetans, Mongols, Tu, Yugur, Naxi, Pumi, MoinbaNumber of members of religious orders120 000 lamas and nuns120 000Number of places of worship3 0003 000.
Statistical data on Pali-language-family BuddhismInformation provided by the Office of Religious AffairsInformation provided by the CPPCCPopulation1.5 million: Dai, Blang, Deang, Va, AchangNumber of members of religious orders8 000 monks and nunsNumber of places of worship 1 000 monasteries
(b) Special questions
(I) Religious workers
The Office of Religious Affairs and the religious representatives emphasized the shortage of religious workers which was due in particular to the effects of the Cultural Revolution. In the case of Tibet, the Commission on Ethnic and Religious Affairs (CERA) stated that in one sense a limit on the number of monks was necessary in order to take account of the economic capacity of monasteries, some of which, overwhelmed by the number of lamas, had decided to turn away new arrivals. The head of the Drepung monastery said that the monastery had 550 lamas and that an increase in their number would lead to financial difficulties, threatening the monastery's financial independence and the provision of high quality teaching. The Director-General of the Chinese Centre of Tibetan Studies in Beijing explained that it was important to have good quality lamas rather than a high number of lamas, which led to social stagnation and slowed down economic development. The CERA also informed the Special Rapporteur that persons under the age of 18 were able to become monks providing they did so voluntarily and had their parents' consent.
b. Freedom of movement of religious workers
The Special Rapporteur received details from the authorities and the religious associations of numerous and varied inter-denominational exchanges with foreign countries. The CERA stated that religious workers were free to travel without authorization, although unofficial sources qualified this by explaining that very often there was no special reason for the journeys or sometimes formalities had to be completed.
c. Financial resources
The religious representatives stated that their salaries came from believers donations and not from State subsidies. In the case of Tibet, the CERA told the Special Rapporteur that the regional Government was about to give grants in the form of salaries to monks in large monasteries.
(II) Places of worship
a. Number of places of worship
According to the information transmitted to the Special Rapporteur from official and other sources, there are insufficient places of worship for the number of believers.
b. Worship in the home
The Special Rapporteur was told that worship in the home was accepted, particularly in the case of Protestants who had meeting places in houses in suburban and rural areas. These meeting places are in fact attached to the
churches and are mentioned during the registration procedure. According to religious representatives, the practice of using the home for worship is however irregular if there is already a place of worship such as a church nearby. Non-governmental sources report a growth in the use of homes as places of worship because of the development of unofficial Christian religious organizations, including sects.
According to the authorities, since the new decrees came into force, hundreds of thousands of places of worship have been registered. However, they were unable to provide any precise information.
The authorities stated that, because of the policy of separation of the State from religion, the construction of places of worship depended on the religious organizations and their financial capacity. However, the Government could contribute financially to the major places of worship. Furthermore, voluntary donations were permitted. It was not possible to obtain more precise information on the scale of construction of places of worship or the exact amount of money earmarked for this.
According to the authorities, the State can give financial assistance for the restoration of places of worship and other religious places. In Tibet, the authorities claimed to have spent 40 million Yuan on the restoration of the Potala. In addition, 1,400 places of worship are said to have been restored and re-opened. The Institute of World Religions states that public fund-raising is also possible. There is no full and detailed information on the restoration of places of worship or places of a religious character in general.
The majority of the religious associations (Christian, Muslim and Taoist) are said to encounter difficulties in reclaiming places of worship and property confiscated during the Cultural Revolution. The Chinese People's Political Consultative Committee stated that it sent out delegations on this matter every year to be able to submit the problem to the central authorities. The authorities would assist with the restitution of these places of worship but the procedure underway would take some time. Once again, specific data and figures are not available.
g. Access to places of worship
The Special Rapporteur was informed that entrance fees were charged at places of worship only for tourists and only at large or medium-sized places of worship. Moreover, the State did not deduct any tax. It was also confirmed that in Tibet, religious workers who had served sentences for "counter-revolutionary crimes" could not return to their places of worship.
With regard to Tibet, when the Special Rapporteur asked about the presence of security posts in monasteries, the CERA replied that all monastery staff were members of religious orders, some of whom, in the large and medium-sized monasteries, were employed as guards by the Democratic Management Council. Police stations were to be found within the environs of monasteries and they could request the assistance of the security forces at large-scale events in order to ensure that traffic flowed smoothly and those entering the monastery did so in an orderly fashion.
(I). Administration and regulation of places of worship
The CERA stated that, in Tibet, the monasteries' statutes were laid down by the Democratic Management Council, which was an autonomous organization. Members of religious orders also reported that monasteries had to be financially independent and commercial activities were encouraged. During the Special Rapporteur's visit to China, members of religious orders also told him of their intention to set up companies and firms, that is to turn to economic activity in order to finance places of worship and other properties.
(II) )Religious objects
With regard to Tibet, the CERA stated that 350 tonnes of statues of Buddha had been restored and returned to temples. The Special Rapporteur was given photographic evidence showing that a large number of statues and religious objects had been damaged or destroyed, though no dates or locations were mentioned.
In response to the Special Rapporteur's question on the theft of religious objects in Tibet and on suitable ways of preserving them, such as having an inventory drawn up by UNESCO, the CERA stated that a law on antiques had been promulgated, as well as relevant regulations in Tibet, and there was a Council for the Protection of Precious Religious Objects. Protection of religious objects was the responsibility of the Office of Religious Affairs and the Office of Antiquities. The Special Rapporteur was also informed that an inventory was in progress, but any action undertaken by the international community through UNESCO, for example, would be most welcome.
c. Photographs of the Dalai Lama
The Special Rapporteur was not able to verify claims that the sale of photographs of the Dalai Lama was banned in Tibet. He saw photographs of the Dalai Lama during visits to places of worship, but was informed by unofficial sources that restrictions did exist.
d. Religious writings and publications
According to the information obtained by the Special Rapporteur, religious associations do not encounter any restrictions on the writing and distribution of religious works.
(iv) Practice of religion
The Office of Religious Affairs reported that the majority of those practising the five religions were elderly people, women, illiterates and country people. According to the Special Rapporteur's information, religious practice is growing, particularly amongst young Christians. The authorities stated that the under-18s were allowed to practice religion freely. As far as religious ceremonies and traditions are concerned no restrictions were noted in the information gathered by the Special Rapporteur, other than in the case of a few specific sects such as the Protestant "shouters" sect. It is not permissible to compel Muslims to do voluntary work and give alms and the call to prayer must take place within the mosque. As far as Catholics are concerned, mass is increasingly being celebrated in Chinese rather than in Latin, or even in English for foreigners.
With regard to pilgrimages to Tibet, the CERA stated that exiled Tibetans did not face any special obstacles and that there was a body specifically responsible for taking charge of them.
Several persons with whom the Special Rapporteur spoke expressed reservations about proselytizing by the Christian sects, for they considered it to be irregular and likely to be in breach of the law, firstly because it spread rumours which caused disorder (such as the announcement of the apocalypse) and secondly, because it was not in accordance with Christianity. However, it was emphasized that the solution lay not in arrests (unless the law had been broken) but in properly educating and training clergy to meet the needs of believers.
(v) Religious education
a. Number of teachers
The Special Rapporteur was informed that there were insufficient teachers to train members of religious orders. This was due to the consequences of the Cultural Revolution. Catholic representatives said that seminarists were being sent abroad to solve the problem. Protestant representatives felt that it was necessary to expand the training of lay preachers.
b. Training for religious orders
The Special Rapporteur was informed that theology constituted the main element of training for religious orders and that part of the curriculum was devoted to international affairs and legislation. The theology classes were taught by members of religious orders, whilst tuition in the other subjects was provided by non-believers. In the case of Tibet, unofficial sources reported that religious trainees had insufficient time to study theology since they were overwhelmingly concerned with administrative problems, largely to do with the necessity of ensuring that monasteries are self financing. The CERA considered on the contrary that pressure of time did not affect the study of theology. The Director-General of the Chinese Centre for Tibetan Studies said that monks receiving training were a problem since some of them were illiterate, having been sent to the monasteries at birth in order to ensure their survival. A survey of monks at the Sera Monastery had apparently shown that 78 of them were in fact illiterate and were therefore incapable of acquiring the necessary theological knowledge.
c.Religious education for the under-18s in schools and places of worship
The authorities and religious representatives believed that religious education could not be introduced in schools because of the policy of separation of religion from education and because it was necessary to take into account the majority of the population who were non-believers. With regard to religious education for under-18s in places of worship, the practice appears to vary. Protestant associations stated that they were able to teach religion to under-18s in their churches, but this does not seem to be the case for other religious associations.
(VI)Arrest and detention of believers and religious workers
During his visit to China, the Special Rapporteur handed the Chinese authorities a list of allegations concerning believers and members of religious orders detained in Beijing, Shanghai, the provinces of Anhui, Fujian, Heibei and Henan and the Tibet Autonomous Region (see appendix I). These cases mainly involved believers and members of unofficial Christian religious organizations, some of which were sects, as well as Tibetan monks.
b. The authorities' reply
The Chinese authorities gave the Special Rapporteur their reply, firstly, to the second part of the allegation transmitted on 25 November 1993 (see appendix I), and secondly concerning 15 of the cases in the above-mentioned allegation presented during the Special Rapporteur's visit (see appendix 2). The results of investigations into the remaining cases were not yet available. In these replies and in talks with the Special Rapporteur, the Chinese authorities said that there were no religious prisoners in China, and specified that infringement of the law, not religion, constituted the grounds for every conviction. The authorities stated particularly categorically that the arrests of monks and believers in the Tibet Autonomous Region were linked not to their religion, but to acts carried out in support of Tibetan independence such as riots which breached the peace and caused material damage.
c. Practice of religion and places of worship in detention centres and prisons
The Ministry of Justice stated that religious activities did not take place in prison and that detainees were allowed religious reading matter, on condition that it was compatible with their re-education. The Ministry of Public Security stated that prisoners were able to practise their religion in their cells or in designated places, but that in general, detention centres did not have places of worship because of the small number of practising believers.
(VII) Release of prisoners and situation of released persons
a. Release of prisoners
In a press release of 16 November 1994 (HR/94/57), the Special Rapporteur noted with satisfaction the release of two Tibetan monks: Yulo Dawa Tsering and Thupten Namdrol. During his visit, he requested firstly the release of the detainees listed in the allegation of 25 November 1993 and in that transmitted directly to the Chinese authorities, as well as confirmation that others had been released (see appendix 1), and secondly to meet Mr. Yulo Dawa Tsering. The authorities stated that all prisoners were sentenced in accordance with the law and that, consequently, they could be released only within the terms of the law. It was also made clear that the two Tibetans had been released because of good behaviour and in one case constituted release against security and in the other a reduction of sentence. As far as amnesties or pardons were concerned, these had been granted only once, in the 1950s. In their replies to the two allegations transmitted by the Special Rapporteur (25 November 1993 and November 1994), the authorities confirmed the release of some prisoners and agreed to a meeting between the Special Rapporteur and Mr. Yulo Dawa Tsering.
b. Meeting with Mr. Yulo Dawa Tsering
On 26 November 1994, the Special Rapporteur met Mr. Yulo Dawa Tsering, a senior Tibetan monk released on 6 November 1994, and asked him a number of questions. Mr. Yulo Dawa Tsering stated that he had been arrested for the first time in 1959 for campaigning for Tibetan independence and had been sentenced to life imprisonment, but his sentence had been reduced and he had been released in 1979. On 15 December 1987, he had been arrested for appealing to Italian tourists for the support of the international community for Tibetan independence. He said that his arrest had been on political grounds. Referring to the periods he had spent in detention, Mr. Yulo Dawa Tsering said that in Jaji (Tchaji) Prison, he had been held with 193 other monks and believers and 74 nuns, in Gutsa Prison, he had been held with a number of lamas and in Lingzhi Prison with 4 lamas, one of whom had since been released.
He stated that, as a monk, he had enjoyed special treatment during his first period of imprisonment. On the second occasion, the reverse had been true and, in particular, all portraits of the Dalai Lama discovered had been confiscated. Furthermore, he had been forbidden to practise his religion under threat of harsh treatment. During this time, he had initially been held with ordinary prisoners. Then, at the end of 1989, he had been separated from these detainees, 10 of whom had been selected for confinement with the political prisoners. During his imprisonment, the prisoners initially received 35 yuan per month for subsistence, then 52 yuan per month because of price rises.
Referring to his release, Mr. Yulo Dawa Tsering said that the official statement according to which he had been freed because of his good behaviour, observance of prison regulations and admission of his guilt was not true. As far as his present situation was concerned, he said that, given the policy of freedom of religious belief, religious activities were possible, but he had been banned from his posts, notably with the Office of Ethnic and Religious Affairs and the Buddhist Association, and he was prohibited from joining any monastery, as were monks who had demonstrated or put up posters for Tibetan independence. He mentioned the example of Tubdan Namdrel, a fellow prisoner, who had been sent away from Jokhang Monastery the day after his return, despite assurances given him in prison that he would be allowed to go back. This exclusion from places of worship is not apparently enforced by the monks' religious superiors on the grounds that Mr. Yulo Dawa Tsering and the other imprisoned lamas have the necessary religious knowledge. Mr. Yulo Dawa Tsering expressed concern on two matters, firstly, the fact that monks jailed for demonstrating and poster campaigns were excluded from places of worship upon their release and, secondly, the international community's concept of the history of Tibet. He also voiced his disquiet over the fate of Mr. Lobsang Tenzin, imprisoned for having attempted to hand over a letter addressed to an ambassador which had been intercepted by an interpreter. He concluded by expressing his hopes regarding the international community, in particular, should his meeting with the Special Rapporteur have negative consequences for him.
With regard to the Tibet Autonomous Region, the Commission on Ethnic and Religious Affairs of the Tibet autonomous Region confirmed that Tibetan nuns and monks who had served their sentences were prohibited from returning to any place of worship (convent or monastery) if the acts of which they had been convicted constituted counter-revolutionary crimes, (such as demonstrating for Tibetan independence). According to the authorities, this measure was intended to prevent breaches of public order in places of worship and did not apply to those convicted of ordinary crimes.
E. Conclusions and recommendations
The Special Rapporteur's visit to China afforded a better understanding of the present situation in that country. Through all the information received from various governmental and non-governmental sources and from various talks and visits, he was able to observe some developments in the human-rights situation in China, especially as far as tolerance of and non-discrimination against religion or belief were concerned. Some aspects of these developments represent progress, while others call for correction and improvement.
The Special Rapporteur is aware of the complexity of the situation in China, a vast, densely populated, multi-religious, multi-ethnic territory which has to come terms with and reconcile many factors, or even contradictions, such as the atheism and marxist doctrine espoused by most of the population, the spread of religious movements, and the need to strike a balance between non-interference and national political sensibilities on the one hand and the requisite respect for human rights on the other. During his visit, the Special Rapporteur was therefore able to perceive the beginnings of a trend which should become one of steady change, accommodating itself to, and thus unhindered by, the passage of time. It must bring changes in legislation on religious freedom and its application, as well as in policy on the matter.
The Special Rapporteur believes that substantial progress has been made in the field of laws on religious freedom. Article 147 of the Penal Code punishing all violations committed by State officials is important and the Special Rapporteur likewise considers the promulgation of two Council of State decrees, Nos. 144 and 147, to be a step forward, despite some legal ambiguities and an apparent sensitivity to the outside world. The Special Rapporteur regards these new regulations as transitional measures in a process leading to gradual improvement. In this context, the Special Rapporteur wishes to submit the following recommendations, based on a study of Chinese legislation and the talks held on this subject with various people in China.
With regard to the right of freedom to manifest one's religion, the Special Rapporteur recommends that amendments be made to the pertinent legal texts, such as article 36 of the Constitution, so as to provide a constitutional guarantee of respect for freedom to manifest one's religion or belief in accordance with article 1, paragraph 1, of the 1981 Declaration.
With regard to the right of persons under the age of 18 to freedom of belief, the Special Rapporteur recommends that steps be taken to adopt a provision explicitly mentioning this right, so as to ensure the requisite compliance with the Convention on the Rights of the Child, especially article 14, which was ratified by China on 2 March 1992.
The Special Rapporteur further recommends the adoption of a text recognizing the right to freedom of belief and freedom to manifest one's belief for all, including members of the Communist Party and other socio- political organizations.
With reference to places of worship, the Special Rapporteur recommends that the notion of a "fixed place" (para. 2 of decree No. 145) be defined so as to clarify legally the particular terms, conditions and restrictions applying to worship at home. The Rapporteur recommends a more precise definition of the criteria for the registration of places of worship, especially the number of believers and the qualifications of members of religious orders.
Lastly, with regard to religious freedom in general, the Special Rapporteur recommends the introduction in the medium term of a law on religious freedom, so as to harmonize all the pertinent legal texts, remedy legal ambiguities and, in keeping with established international standards, overcome the particular fears and sensitivities prompted by the distinction between nationals and foreigners.
The Special Rapporteur was encouraged to note a political determination to apply legislation and policy in the field of tolerance of and non- discrimination against religion and belief, despite some practical monitoring difficulties. In particular, some adjustment of traditions and modes of behaviour seems to be needed if a new culture among administrative and prison authorities is gradually to take shape. Of course, this aim cannot be achieved in the immediate future. Nevertheless, the Chinese authorities could begin by clearly showing the way to reduce and combat abnormal situations and excesses. There is a risk that if an administration has discretionary power of judgement, this can degenerate into arbitrariness. Endeavours must therefore be made to ensure that progress in legislation on religious freedom is not negated by individual, administrative or political design. It is essential to secure the principle of religious freedom and its manifestation and to limit it only in exceptional circumstances justified by objective legal grounds of which the persons concerned are notified immediately.
Furthermore, it is necessary to define the notion of "trespass to the person" expressly as an act committed by a public official, which may be unrelated to the performance of that person's duties or of a public service activity, so that the official has greater personal liability under civil and criminal law for direct or indirect, overt or covert infringements of or interference with religious freedom.
The Special Rapporteur noted during his talks that the distinction between normal and abnormal religious activities was not drawn very clearly and was applied fairly flexibly. In some cases, for example, it had been found that people had been prosecuted for engaging in abnormal activities, whereas, in others no action had been taken on activities which might be regarded as abnormal. The Rapporteur is of the opinion that this flexible approach should be extended so that ultimately the distinction effectively disappears. The Special Rapporteur considers that there must be no interference with religious activity falling within the scope of the 1981 Declaration. At all events, there must not be any surveillance of a kind to infringe the right to freedom of belief and to manifest one's belief.
With regard to sects, the Special Rapporteur particularly wishes to point out that the 1981 Declaration protects not only religion, but also theist beliefs and that article 1, paragraph 3, of that Declaration states that freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
With regard to the alleged arrest or detention of members of religious orders and believers belonging to unofficial religious organizations (including members of sects and Tibetan monks) and restrictions affecting them, the Special Rapporteur reiterates his request that these persons be freed. A decision of this kind would be even clearer evidence of the moves in China towards religious freedom which the Special Rapporteur discerned during his visit.
The Special Rapporteur realises that it is difficult to draw a distinction between the religious and the political sphere in Tibet. This distinction cannot be general or absolute. Nevertheless, although he was aware of these real or supposed links between politics and religion in Tibet, the Special Rapporteur deliberately examined only questions which principally concerned religious freedom as defined in the 1981 Declaration, without passing any judgement whatsoever on other aspects.
The Special Rapporteur noted the extremely devout attitude perceptible in Tibet, the full scale and extent of which has not, perhaps, been sufficiently appreciated so far. This factor must be taken into account when analysing the religious situation in Tibet. Moreover, the question of Tibet would be less acute if it did not have an added dimension, in other words if it turned solely on religious aspects.
The Special Rapporteur considers that deep religiousness may be the source not only of great spirituality, but also of real difficulties. The latter should be dealt with through dialogue, tolerance and education. Any repression of religion can lead to greater religiousness, or even, in some cases, a form of extremism, despite the apparently non-violent nature of Buddhism in general and Tibetan Buddhism in particular, the values of which might be severely tried by changes to the demographic data of Tibet. The Special Rapporteur recommends that the balances and compromises required by social dynamics be reached, so as to avoid the deeply religious being tempted by religious extremism.
The Special Rapporteur strongly recommends that religious figures who have served their sentences for "counter-revolutionary acts" should no longer be banned from entering places of worship. Furthermore, he recommends that a reasonable balance be worked out between the number of students of religion and the quality, duration and time set aside for their instruction. Likewise, the basically religious function of places of worship and the aims of making them financially independent should be made reasonably compatible.
As for more general recommendations about policy and practice concerning tolerance of and non-discrimination against religion and belief throughout China, the Special Rapporteur wishes to stress the importance of giving State officials and judges adequate human-rights training, especially on the subject of religious freedom. He recommends that the technical assistance and advisory services of the Centre for Human Rights should help in this area.
The Special Rapporteur also recommends that the principal texts on religious freedom should be posted in the administrative services concerned. Furthermore, the publication and distribution of a compendium of texts on religious freedom, including implementing instructions, is strongly recommended. The distribution of documentation about human rights to all religious institutions would also be desirable. The Special Rapporteur also recommends that citizens and institutions be informed about appeal procedures available in the event of a refusal to register religious organizations.
Education about tolerance of and non-discrimination against religion and belief should be considered and introduced as soon as possible, as a way of combating all forms of intolerance and discrimination based on religion or belief. At the same time, the Special Rapporteur urges the creation of universities offering religious instruction as a main or subsidiary subject. More broadly, the Special Rapporteur recommends that a culture of human rights and in particular of tolerance should be spread by promoting the creation of human rights clubs in universities, which would strive chiefly to further the development of tolerance of and non-discrimination against religion and belief.
TIBET AUTONOMOUS REGION
Ngawang Phulchung: Born in August 1957 in Toelung Dechen. Monk at Drepung Monastery. Detained on 16 April 1989 and sentenced on 30 November 1989 to 19 years' imprisonment and 5 years' deprivation of political rights. Held at Prison No. 1 (Drapchi), Unit 5.
Jampel Changchub (Paymane: Yugyap): Born in 1960 in Toelung Dechen. Monk at Drepung Monastery. Detained on 16 March 1989 and sentenced on 30 November 1989 to 19 years' imprisonment and five years of deprivation of political rights. Held at Prison No. 1 (Drapchi), Unit 5.
Lobsang Tsultrim: 72 years old, senior monk at Drepung Monastery. Arrested in April 1990 and sentenced to six years' imprisonment.
Phuntsong Nyidron (Pingcuo Nizhen; Paymane: Tseten): Born in 1968 in Phenpo (Lundrup County). Nun at Michungri Nunnery. Detained on 14 October 1989. Sentence was extended in October 1993 to 17 years' imprisonment. Held at Prison No. 1 (Drapchi), Unit 3.
Tenzin Thubten: Born in 1969. Nun at Michungri Nunnery. Detained on 21 August 1990 and sentenced to five years with one year to be reduced if her behaviour was good. In October 1993, she was sentenced to an additional nine years. Held at Prison No. 1 (Drapchi) Unit 3.
Gyaltsen Drolkar (Jiacing Zhouga): born in 1970 in Meldro Gongkar. Nun at Garu Nunnery. Sentenced on 30 November 1990 to four years with one year to be reduced if her behaviour was good. In October 1993, she was sentenced to an additional eight years. Held at Prison No. 1 (Drapchi) Unit 3.
Ngawang Chemo (Choegna): Age 21. Nun at Gari Nunnery. Arrested on 14 June 1993.
Kelsang Drolma: Age 23. Nun at Gari Nunnery. Arrested on 14 June 1993 and sentenced to two years imprisonment.
Gyaltsen Lhaksam: Age 20. Nun. Arrested on 21 August 1990 and sentenced to seven years' imprisonment.
Dekyi: Age 22. Nun at Gari Nunnery. Arrested on 14 June 1993 and sentenced to seven years' imprisonment.
Godekyi: Age 19. Nun at Gari Nunnery. Arrested on 14 June 1993 and sentenced to five years' imprisonment.
Release to be confirmed
Jampal Monlam: Age 24. Monk. Arrested in March 1989 and sentenced to five years' imprisonment.
Reply from the Chinese authorities
Ngawang Phulchung, male, lama at the Drepung Monastery, Tibet. In January 1989, he set up an illegal "Independence of Tibet" organization at the monastery. Colluding with and on the orders of foreign forces, he collected State secrets, drafted, printed and distributed leaflets to encourage the "Independence of Tibet", and was involved in the Lhasa riots in March 1989. Under the Chinese penal code he was sentenced on 30 November 1989 by the Intermediate People's Court of Lhasa to 19 years' imprisonment and stripped of his political rights for five years, for gross violations of national security and of the penal code.
Jampel Changchub, male, a lama from the Drepung Monastery, Lhasa. In accordance with the law, was sentenced on 30 November 1989 by the Intermediate People's Court of Lhasa to 19 years' imprisonment and stripped of his political rights for five years for his involvement in the activities of an illegal separatist organization in January 1989 and for collecting State secrets.
Kelsang Drolma, female, ethnic Tibetan, a nun at Gari nunnery before her arrest. In accordance with the law, she was sentenced on 13 October 1993 by the Intermediate People's Court of Lhasa to two years' imprisonment (from 14 June 1993 to 13 June 1995). She is serving her sentence in the Tibet Autonomous Region prison, and is in good health.
Jampel Monlam was released on 14 July 1994 after serving his full prison term.
IV. CONCLUSIONS AND RECOMMENDATIONS
The Special Rapporteur once again deplores the frequently serious infringement of the rights of persons belonging to religious minorities in countries with an official or clearly predominant majority religion. He also notes the difficult situation of the members of certain religious denominations in several countries and certain regions, even when they are not strictly minorities, as is the case of the Shiites in Iraq and Saudi Arabia and the members of the Christian communities in the Sudan, Egypt and Viet Nam, as well as the Buddhists in Viet Nam and in the autonomous region of Tibet.