Download Araujo on China - Mirror of Justice

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Download Araujo on China - Mirror of Justice

Render Unto Mao The Things That Are Mao’s

    Robert John Araujo, S.J.

    John Courtney Murray, S.J. University Professor, Loyola University Chicago

    1Render unto Caesar the things that are Caesar and to God, the things that are God’s...

    2I am the king’s good servant, and God’s first.

I. Introduction

     The two opening quotations of this essay offer perspectives about the longevity of issues dealing with the ability to believe in Godespecially as a Christianin two societies where

    there was pressure to do otherwise. The first is instruction from Jesus Christ the concerns the relation between the Church and the state and how the believer has a responsibility to both the City of God and the City of Man during the Roman Empire’s reign in first century Jerusalem. In

    the end, the supreme fidelity is to be rendered to God. From the second quotation we know how Sir and Saint Thomas More, who was a most faithful public servant to King Henry VIII, nevertheless suffered intensely as a member of the Catholic Church for his fidelity to God and the Church God incarnate established. Both of these quotations remind us today of natural rights claimed by religious persons from the past to believe in and practice their faith in political contexts where the right of religious freedom was circumscribed.

     In the present age, the subject of human rights is no stranger to most people across the world. In both the national and international contexts, human rights are often viewed as a

     1 Matthew 22:21.

    2 A Thomas More Source Book, Gerard B. Wegemer and Stephen W. Smith, eds., Catholic University Press, 2004, p. 357.


    universally recognized general norm that protects each person in the exercise of fundamental

    3 Rights properly belong to each claims that properly belong to the dignity of the human person.

    member of the human family because of the humanity of the individual to whom they belong. Moreover, these natural rights inhere in humanity due to the nature and essence of the human person. Therefore, they are not the creation or gift of the state or of any organization or group. They subsist in the human person because of one’s humanity. Whatever the state grants, it can

    withdraw. This is why the state cannot be the author of human rights; however, the state must be their defender out of obligation to advance the common good of the human family and all its members. The ability for a person to exercise one’s rights also brings into play the obligations

    and responsibilities that accompany their exercise. But the fact that there are accompanying responsibilities does not diminish the existence of rights that are natural to the person nor the state’s duties regarding them. A fundamental right which many domestic laws recognize and

    which international law protects is religious liberty and the inherent fidelity of the religious believer to God above all else.

     My examination investigates the matter of religious liberty in China, a country often in the news these days on many fronts that include its persecution, in different ways, of religious believers. While formally a communist state, the reality of China today in the early twenty-first century is quite different. The country presently has a robust economy that encourages aggressive capitalist development that is subject to state control but which is often arbitrarily exercised against its own citizens and foreign nationals. One of the rights claimed by persons around the world is religious freedom. However, in China, this right is often subject to the whimsical and sometimes brutal control of the state. This paper focuses on the particular status

     3 See, Jacques Maritain, The Rights of Man and Natural Law, Charles Scribners Sons, 1951, p. 65.


of the Catholic Church in China and the state’s positivist control of the fidelity of Catholic


II. Backgroundthe status of religion (especially Catholicism) in China

     With the European exploration of the Orient, Christianity was introduced in China with the advent of Catholic missionaries during the sixteenth and seventeenth centuries. Notable among these efforts were the works of the Jesuits such as Johann Adam Schall and Matteo

    4 Although the Communist party has persecuted and controlled the presence and practice of Ricci.

    Christianity in China in more recent times, Christianity is present and intersects the lives of millions of the Chinese faithful and has been present for centuries.

     In addition, the Chinese state recognizes the presence of Christian believers. Moreover, there exist under the Chinese Constitution formal protections of fundamental rights of the

    5Chinese citizenry. For example, the Chinese constitution identifies the basic rights and duties of

    citizens in a fashion that parallels the rights addressed in the Bill of Rights of the United States Constitution and the Universal Declaration of Human Rights. Article 33 asserts that all citizens are “equal before the law” and recognizes that the “state respects and guarantees human rights.” This article further notes that while citizens have rights they also have duties which must be performed. The kinds and nature of these duties are not always clearly identifiedbut they

    6assuredly exist.

     4 See, Liam Matthew Brockey, Journey to the East: The Jesuit Mission to China, 1579-1724, Harvard

    University Press, 2007.

    5 Chapter Two, Chinese Constitution, official website,

    6 In a general context, Chapter 2 of the Constitution addresses “rights and duties.” One duty that is spelled

    out is that married couples have the duty to practice “family planning.” Article 49, Chinese Constitution.


     When it comes to particular rights paralleling those found in the Bill of Rights of the United States Constitution, the Chinese Constitution acknowledges the existent of the rights to freedom of speech, of the press, of assembly, of associations, and of processions and

    7demonstrations. Moreover, Article 36 protects religious rights, and this provision reads in its entirety:

    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. (Italics added)

    Initially this article dealing with religious rights grants broad rights to individuals, but it is questionable whether it also applies to groups of persons or to religious organizations. Moreover, the text indicates that the state has a duty to protect “normal religious activities.” But what are and what are not “normal religious activities” is ambiguous and what person or authority makes

    this determination is indeterminate. It would be reasonable to assume, however, that some government official or department reserves the prerogative to determine what constitutes a normal religious activity. Moreover, additional ambiguity emerges with the language’s

    prohibition against the use of religion that disrupts public order and other concerns of the state. Finally, it is evident that religious bodies and affairs of religion “cannot be subject to any foreign domination.” What falls into the category of “foreign domination” is also unclear. However, it is

    reasonable to conclude that the Pope and the Holy See would be candidates for individuals or entities considered as “foreign domination.”

     This element of Article 36 is a likely source of friction between religious believers in China and their government. In particular, this element is clearly relied upon by the Chinese

     7 Article 35, Chinese Constitution.


    authorities in their dealings with Catholics and the Church China. Without question the state has made efforts to control the activities of Catholics by establishing the Chinese Patriotic Catholic Association, the so-called Patriotic Church. This latter institution was established in the late 1950s by the Chinese state’s Religious Affairs Bureau, and it is the sole means by which any

    8activities of Catholics are recognized. One principal difficulty of the Religious Affairs Bureau is

    that its officials are government functionaries who are often not religious believers; yet, they make decisions concerning the beliefs and activities of Christians who attempt to live in a public fashion their faith. As one considers this problem today, it is relevant to take stock of the history of government interference with the practice of Catholicism in China.

     In 1958, Pope Pius XII decried the state repression existing in China in his encyclical

    9letter Ad Apostolorum Principis. He began the letter by expressing his sorrow over the

    10expulsion of foreign Christians from China and the persecution of native Chinese Catholics. In

    his opening lines, Pope Pius recalled his 1952 encyclical Cupimus Imprimis in which he objected

    to the attacks of the Chinese state on Christians and asserted that the Church posed no threat to

    11anyone in China, including the state. In 1954, the pope had to further refute the baseless

    allegations of the People’s Republic that Catholics were not loyal to their country because of

    12their fidelity to the universal Church. By 1958, the pope had little choice but to declare that the

    “patriotic association”, in spite of stated objectives, was a government effort “to execute certain

     8 See, The Chinese Patriotic Catholic Association Celebrates 50 Years at a Less than Ideal Moment,, July 25, 2007,

    9 On Communism and the Church in China, June 29, 1958.

    10 Id., N. 5.

    11 Id., N. 6.

    12 Id., N. 7. In the 1954 encyclical, Ad Sinarum Gentem (N. 6), Pius XII stated that the “persecutors” of

    Christians in China falsely accuse the faithful of not being good citizens, but the pope noted that they have demonstrated time and again that they are.


    well-defined and ruinous policies” directed to the Catholic faith and the members of the

    13 The pope spoke bluntly about his understanding of the Patriotic Association when he Church.

    branded it “a fraud” designed to make Catholics “gradually embrace the tenets of atheistic

    14materialism.” The pope also noted that while the legal mechanisms of the state presumably protect religious liberty, the Patriotic Association does not advance or protect these rights but

    15rather strives to subject the Church to the complete control of the state. In particular, he

    identified the objective of the civil authorities as one to separate the Catholic community from

    16the Apostolic See. Pope Pius then elaborated in detail the mechanisms employed by the state to

    17achieve its objective to subjugate the Church.

     As an astute diplomat and experienced representative of the Holy See in other states, particularly Germany prior to and during its transformation into a totalitarian state, the pope reminded all that Catholics owe two duties: one to Caesar and one to God. In making this observation, he reminded any reader that an incontestable principle of Christianity is that the

    18believer must never obstruct “what is truly useful or advantageous to a country.” Yet, by the

    same token he argued that the state has no right to interfere with the rights of believers to

    19exercise their religious duties which include preserving the ties with the universal Church. The

    pope reasserted the condition of following Christ that has been proclaimed since the Church’s

     13 Id., N. 10.

    14 Id., N. 11.

    15 Id., N. 13.

    16 N. 14.

    17 NN. 15-20.

    18 N. 22.

    19 N. 23.


foundation: regarding those matters falling within the competence of the natural moral law, “We

    20 must obey God rather than men.”

     The tensions, challenges, and persecutions addressed by Pius XII in his 1950s documents on the Church in China still exist over fifty years later. Moreover, the abuses catalogued by him

    21in 1958 remain to this day. Included on this list is the improper appointment of bishops by the Patriotic Association without the consent of the Holy See and the ordination of priests by men

    22who have not been appointed by the Holy See to episcopal office. For the past several years

    there have been occasions of agreement and disagreement between the Holy See and the

    23People’s Republic concerning the appointment of bishops. Moreover, there has been renewed

    24tension over the issue of “foreign domination.” In this regard, one needs to recall the rhetorical

    25question of Josef Stalin regarding how many divisions does the pope have. Well, he has none,

    therefore the Church poses no military threat to one of the greatest military powers in the world today. Yet, The People’s Daily published an online article in August of 2011 claiming that,

    The Pope, you see, is not just the Vicar of Rome, which is one of his titles. He is also a head of

    State, with soldiers who carry real guns, a diplomatic corps and a bank. Europeans may choose to

    see this as quaint, but China is questioning the principle of letting a foreign state dictate to another

    what happens on its own territory. The Vatican also has a history of meddling in politics,

    threatening the excommunication of Catholic politicians who deviated from the party line as late at 26the 1960s in Belgium and Holland.

     20 N. 24 citing the Acts of the Apostles, 5:29.

    21 NN. 35-36.

    22 NN. 36-49.

    23 See, e.g., “Illicit Ordinations in China: the Holy See Explains What Is to Be Done with Excommunicated

    Bishops,” June 13, 2011,,

    24 See, e.g., “China’s Religions Retrospect and Prospect,” February 19, 2011, China.Org,

    25 See,

    26 “Catholicism Should Adapt to Local Conditions,” People’s Daily Online, August 10, 2011,


     There have been times of modest cooperation between the civil authorities in Beijing and the Holy See, and there have been occasions of strong disagreement and objection by Rome regarding episcopal ordinations. To illustrate this latter point, in 2010 and early 2011, two bishops recognized by Rome and the civil authorities, Paul Pei Junmin and Joseph Li Liangui, were reprimanded and disciplined by the civil authorities for not doing what the civil authorities demanded concerning attendance at meetings and episcopal ordinations not sanctioned by

    27 In November of 2011, there was a small rapprochement between Rome and Beijing Rome.

    28concerning the selection of the Rev. Peter Luo Xuegang to be the coadjutor bishop of Yebin. In

    its consent to his episcopal consecration, the Holy See indicated that no “illegitimate” bishop can

    29be permitted to participate in the episcopal consecration. However, an illegitimate bishop did

    30attend and participated in the consecration.

     On other fronts, it has been reported that meetings might be conducted between official representatives of the Holy See and the People’s Republic to discuss a reestablishment of

    31diplomatic relations; however, to date no meetings have taken place. A detailed discussion of

     27 “China Disciplines Bishop for Not Participating in Illegitimate Ordination,” Vatican Insider—, October 24, 2011,

    28 See, “Ordination of New Bishop in China with Pope’s Approval on November 30,” Vatican Insider—, November 25, 2011,

    29 See, “Vatican Urges China to Respect Church Norms in Next Ordination,” Vatican Insider—,

    November 28, 2011,

    30 See, “Bishop Approved by Pope Ordained in Southwest China,” Vatican Insider—,

    November 26, 2011,

    31 See, “Cardinal Paul Shan Eyes China-Vatican Dialogue in Trip,” The China Post, February 21, 2011,


    present day relations can be found in insightful studies such as that published by Professor

    32 Thomas Farr.

     Given that religious freedom is a subject recognized and protected by public international law, two fundamental questions must now be posed: is the position of the People’s Republic

    consistent with the requirements of the law of nations? Or, to put the question another way, are the expectations of the Catholic Church in accord with the applicable international norms? To these questions I now turn. As the reader will see, the answer to the first question will be no; that to the second question is yes.

III. The International Legal Context

     Public International Law is an appropriate foundation from which to make religious liberty claims. This is especially true for those parts of the world where the free exercise of religion is in question or does not exist. A good place to begin the study of applicable international norms is with the Universal Declaration of Human Rights (UDHR) which states

    33that “Everyone has the right to freedom of thought, conscience and religion.” While the UDHR

    is not a juridical text per se, it is generally considered a component of principles of international

    34law. Nevertheless, it is a crucial basis from which religious freedom arguments are frequently made. The UDHR further maintains that religious rights exist for the individual as well as “in

    community with others and in public or private, to manifest his religion or belief in teaching,

     32 Thomas F. Farr, World of Faith and Freedom, Oxford University Press, 2008, pp. 273-307.

    33 UDHR, Article 18.

    34 See, e.g., Ian Brownlie, Principles of Public International Law (Sixth edition), Oxford University Press,

    2003, pp. 534-35.


    35 These are broad claims that arguably have universal practice, worship and observance.”

    meaning and application. Moreover, there is a recognition in the UDHR that it is not to be interpreted in a fashion that implies that any state, group, or person can “engage in any activity

    36or [] perform any act aimed at the destruction of any of the rights” addressed by the UDHR.

     Additionally, the International Covenant on Civil and Political Rights of 1966 protects religious freedoms in Articles 2, 4, 18, 24, 26, and 27. Although China signed the Covenant in 1998, it is not a party to this important pact. However, the People’s Republic of China is a party

    to the International Covenant on Economic, Social, and Cultural Rights of 1966. But this covenant has only one reference to religion, which states that no party will discriminate against

    37anyone on the basis of religion.

     Recognizing the limited legal exposure of China to substantive juridical norms that protect religious liberty, it is vital to take stock of what the drafters of the UDHR had in mind regarding the protection of religious freedom. As Johannes Morsink points out, the UDHR’s

    protection of religious freedom makes everyone “free to pursue the thick human good of religion

    38in his or her own way, alone or with others of like mind and heart.” As he further argues, these

    39provisions support pluralism and difference in perspectives. This is especially significant in

    circumstances where a state attempts to monopolize matters dealing with the exercise of religion. In noting that the UDHR rejects the idea that “religion is needed to provide the moral cement that holds a nation together,” the norms of the declaration nevertheless are designed to protect

     35 Id.

    36 UDHR, Article 30.

    37 ICESCR, Article 2.2.

    38 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting & Intent,

    Philadelphia, University of Pennsylvania Press, 1999, p. 260.

    39 Id.


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