Enough is enough on section 44: it’s time for reform

H. K. Colebatch, UNSW

Among the many lessons the recent Liberal leadership spill has taught us is that the problems arising from section 44 of the constitution, which already has quite a hit list, have not gone away, and there may be more to come.

The section deals with disqualifications from parliament. The problems with it have not gone away, but have become part of the political struggle. They are also not only about citizenship, nor are they simply a matter of doing the paperwork.

It is not clear what the disqualification provisions are, or how they are enforced. And, finally, the problem is not going to be resolved if politicians continue to ignore it.

When section 44 issues were first raised, then Prime Minister Malcolm Turnbull tried to use them as a way of attacking his parliamentary opponents. The ALP is now repaying the favour. Both sides have been more interested in using the issue as a weapon than reaching a solution.

---

Read more:
Could Section 44 exclude Tony Abbott and Barnaby Joyce from parliament?

---

More than dual citizenship

The original disqualification questions were about holding foreign citizenship. But it is now being asked if the special jobs created for Tony Abbott and Barnaby Joyce breach the “office of profit” provisions, while Peter Dutton’s business dealings have come under scrutiny for a potential s44 breach.

Meanwhile, the question of disqualification on the basis of an entitlement to foreign citizenship, or to its “rights and privileges”, remains unaddressed. If the High Court were to look into the cases of the MPs with such entitlements, and to rule consistently with its earlier decisions, up to a third of the parliament could be disqualified.

But the whole issue is clouded in uncertainty. The section is very badly drafted; partisan conflict has meant that few cases have made it to the High Court and, when they have, the court’s judgments have been, in Jeremy Gans’s words, “too rare, sparse and cryptic for anyone to confidently rule most Australians in or out” of eligibility.

Different judges have reached different conclusions on the same cases. Even those who have agreed with the other judges have done so for different reasons, so no consistent rule can be derived from the case.

Judges are more interested in reaching a decision on the case in front of them than articulating a general rule that can guide future action. So while QCs may make declarations about how the High Court would rule in any case put to them, as the Commonwealth Solicitor-General said on the Dutton case, “it is impossible to predict” how the High Court will rule on a particular case.

The fact that no one is responsible for applying and enforcing these provisions exacerbates the uncertainty. While section 34 on qualifications is amplified by the Electoral Act and administered by the Australian Electoral Commission, there is no comparable authority for determining disqualifications.

The constitution provided three avenues: the ancient right of parliament to determine if members were qualified to sit; some ways in which the High Court could determine disputes as a Court of Disputed Returns; and the possibility of lawsuits by citizens against members whose eligibility was challenged.

This has meant there is no consistent enforcement. The AEC has refused to involve itself in judging disqualifications. The parliamentary power to determine is completely discredited by the partisan motivation of the politicians. The High Court will only hear cases brought within 40 days of the election unless these are referred by parliament. And the first time anyone used the Common Informers Act, the High Court sniffily declared the act was not properly drafted and was in breach of the constitution. The court threw out the case, nullifying the provision specifically inserted in the constitution to give ordinary citizens the right to enforce the disqualification rules through the courts.

Turnbull announced that all MPs would be asked for a declaration that they were not disqualified by reason of holding a foreign citizenship. These declarations were recorded in a citizenship register, but no action was taken as a result. The register appeared to be an empty gesture.

So we have rules on disqualification that are applied only to those who are honest enough to resign or unlucky enough to find a parliamentary majority organised to refer their case to the High Court.

The multiparty parliamentary committee investigating the problem (the third one to do so) concluded (like its predecessors) that section 44 is not fit for purpose. It proposed a constitutional amendment to put the determination of disqualifications back into the hands of parliament. But Turnbull rejected this proposal before the committee had even proposed it.

Where do we go from here?

Probably everyone in Canberra is too shell-shocked right now to think of more than surviving the upcoming election. But, after the election, the best starting point would be the parliamentary committee’s recommendation to put responsibility back into parliamentary hands. This would enable work to begin on how best to deal with the tensions arising from citizenship, public employment, business dealings and so on, and what sort of regulatory structure would be most appropriate.

The question is how to overcome the inertia and partisan opportunism that have impeded the search for a resolution of the problem up to now. The most promising course would be the development of a cross-party advocacy network, building on the work of the Joint Standing Committee on Electoral Matters. It would help if members of the public were to write to or ring their MPs and senators to express their concerns.

---

Read more:
Explainer: is Peter Dutton ineligible to sit in parliament?

---

If this sounds too unambitious, those with the energy to do so could organise to challenge, within the 40-day window, the election of all those members and senators who are entitled to another citizenship or to its rights and privileges.

How many were caught in this net would depend on how many of the present representatives were re-elected, but it would probably not be less than 20-25% of the parliament. For them, the exclusion would be permanent, because while a foreign citizenship can be renounced, an entitlement cannot be: it remains in the law of the foreign country, and the High Court recognises foreign law as the determinant of citizenship status.

The possibility of having a quarter of the parliament thrown out in this way might just be enough to induce the parliamentarians to support a move to a better system.

H. K. Colebatch, Visiting Professorial Fellow, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Think the dual citizenship saga does not affect state parliamentarians? It might be time to think again

It has been widely assumed that any dual citizenship problems are confined to the federal parliament. But that may need a rethink.
Shutterstock

Lorraine Finlay

Over the past year, we have seen 15 federal parliamentarians leave the Australian parliament because of dual citizenship.

Under Section 44(i) of the Australian Constitution – which has been given a strict interpretation by the High Court of Australia in recent cases – a person is not eligible to nominate for, or be elected to, the federal parliament if they are a dual citizen. The removal of such a large number of parliamentarians in such a short space of time is unprecedented.

---

Read more:
Parliamentary report recommends referendum to solve the dual citizenship saga: Here’s why it won’t happen

---

Throughout this controversy, it has been assumed that any dual citizenship problems are confined to the federal parliament. Certainly, it is widely acknowledged that state constitutions do not contain the same general prohibition of dual citizenship, and that dual citizens are at least initially eligible to be elected to state parliaments.

Unfortunately, the analysis generally stops at this point. There has been little consideration given to the important follow-up question of whether there are any other disqualification provisions that might affect any dual citizens sitting in our state parliaments.

An examination of state constitutions (and relevant electoral laws) reveals that while a dual citizen is eligible to be elected, this citizenship status may subsequently put them at risk of disqualification if they engage with that foreign citizenship while serving in the parliament.

In particular, in New South Wales, Queensland, Western Australia and Tasmania, the state constitutions, or relevant electoral laws, provide that a parliamentary seat will become vacant if a member commits any act that acknowledges allegiance to any foreign power.

This disqualification does not apply in Victoria, the ACT or the Northern Territory, and in South Australia it has been expressly limited to make it clear it doesn’t apply in particular circumstances.

Clearly, these state provisions are substantially different from the dual citizenship prohibition at the national level. A dual citizen is eligible to be elected as a state member of parliament, and will only be disqualified if there is a positive action taken by them that acknowledges a foreign allegiance.

And that’s the pertinent question: what exactly constitutes an “acknowledgement of allegiance”?

A plain reading of this phrase would seem to suggest that any positive act that seeks to exercise any right arising from citizenship would be disqualifying. In essence, a person who seeks to rely on their foreign citizenship in some way (however trivial) is making an acknowledgement of that foreign allegiance. Some obvious examples would be travelling on a foreign passport, or even renewing a foreign passport.

If a state MP from NSW, Queensland, WA or Tasmania did either of these things, they would appear to be in breach of the state constitutional requirements, resulting in their disqualification from parliament.

This issue has been been flagged as a potential problem in the past. For example, leading constitutional expert Professor Gerard Carney suggested almost 20 years ago that if an elected state member

… subsequently acts to affirm the foreign citizenship, such as by renewing or applying for a foreign passport, disqualification will be incurred.

The question was also considered by the NSW Parliamentary Joint Committee on the ICAC, which recommended repealing this grounds for disqualification back in 1998.

This broad interpretation is further reinforced by the fact that South Australia saw a need back in 1994 to insert a qualifying provision into its state constitution to provide that members would not be disqualified simply because they acquired or used a foreign passport.

The fact that such a qualification was thought necessary highlights that acquiring or using a foreign passport will ordinarily fall into the category of being an “acknowledgement of allegiance”.

---

Read more:
Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians

---

It is important to note these issues have never been tested before the state courts, and there is no particular evidence to suggest any current state parliamentarians are in breach.

It is also worth noting that some jurisdictions – notably Queensland – have provisions that allow parliament to resolve to disregard a “trivial” disqualifying event.

But given we are having a national conversation about dual citizenship and the Australian Constitution, it seems an opportune time to consider the constitutional impact of dual citizenship at the state level as well. Otherwise, we may find we are still left with a constitutional cloud hanging over a number of state parliaments.

At the very least, the affected state parliaments should introduce a citizenship register like the one introduced last year by the federal parliament. Requiring citizenship information be disclosed is a necessary first step to reassure the public that the dual citizenship controversy will not expand to disqualify any of our state parliamentarians.

When the prime minister referred the question of Section 44 to the Joint Standing Committee on Electoral Matters, he did so on the basis that:

Australians must be assured that all members of the Australian Parliament are constitutionally eligible to serve.

The same principle must also apply to our state parliaments.

Lorraine Finlay, Lecturer in Law

This article was originally published on The Conversation. Read the original article.

Grattan on Friday: Bill Shorten faces a summer of uncertainty

Michelle Grattan, University of Canberra

It is not impossible that the Greens, who started the citizenship crisis with the resignation of then-senator Scott Ludlam, could end up winners from this fiasco that has cut a swathe through the parliament and threatens more havoc.

Wednesday’s reference to the High Court of Labor’s David Feeney, who holds the Melbourne seat of Batman, has certainly put a gleam in the Greens’ eyes.

Feeney hasn’t been able to produce the documentation to confirm the renunciation of British citizenship which he says he made a decade ago.

Unless the paperwork turns up or the High Court shows a leniency that hasn’t been in its nature recently, a byelection in Batman would give the Greens a big chance of installing a second MP to keep Adam Bandt company in the House of Representatives.

Bill Shorten is understandably livid about Feeney, who before the last election overlooked declaring a A$2.3 million house, only narrowly held off the Greens in his seat, and now, if he triggers a byelection, could reduce the opposition’s numbers. No wonder there’s speculation he’d be ditched as Labor’s candidate.

And Feeney’s rank carelessness, to describe it most charitably, comes on top of the recent new revelations about Labor senator Sam Dastyari’s conduct, showing how deeply the New South Wales numbers man has been in the thrall of the Chinese, in particular of a Chinese business benefactor.

It’s made for a very uncomfortable end to the parliamentary year for Shorten, who in previous months had most things breaking his way.

The citizenship crisis had taken a heavy toll on the government, with a minister and the Senate president gone from parliament, and the deputy prime minister and a Liberal backbencher forced to byelections.

To put things in perspective: yes, they all failed to do due diligence, but none of them compromised themselves in the way Dastyari did.

Now it’s Labor in the crosshairs. The situation of several of Shorten’s MPs – leaving aside the egregious case of Feeney – is problematic, and Shorten’s boast about Labor vetting processes is being seen as hubristic.

It will be months before Labor will know what damage the citizenship crisis might do to it.

It will be more contained if the High Court, when it considers the case of ACT senator Katy Gallagher who was also referred this week, accepts the ALP argument that an MP is constitutionally eligible provided they took reasonable steps to renounce foreign citizenship before nominating, even though confirmation didn’t come through by then.

If, however, the court were to find that the candidate needs the confirmation before they nominate, that could trigger byelections in three ALP seats (Braddon in Tasmania, Longman in Queensland and Fremantle in Western Australia) as well as in Mayo, held by crossbencher Rebekha Sharkie.

The Gallagher case will set a precedent for the other MPs with similar circumstances (although if Gallagher were knocked out her Senate position would be filled by a countback, not a byelection).

While byelection swings usually go against governments (Saturday’s result in New England notwithstanding), the thought of having to fight in the marginal seats of Longman and Braddon would make Labor nervous.

Even if it turned out that the only byelection were in Feeney’s seat, the strong prospect of a loss there would sour and distract Shorten’s new year.

Similarly, the extent of the fallout from the Dastyari affair is not yet clear.

There is no defence for Dastyari’s action in warning his Chinese benefactor that his phone was likely tapped, so they should talk outside. That was the core of the latest revelations, which came on top of earlier ones about Dastyari receiving financial largesse and toeing China’s policy line on the South China Sea.

But from Shorten’s point of view, dealing with the Dastyari issue is fraught.

All Shorten has done this time is strip him of what minor responsibilities he had.

It’s fanciful to think Shorten would ever contemplate trying to throw him out of the Labor Party, which would mean taking on the NSW right, and would reduce Labor’s Senate numbers.

But while Dastyari stays, Shorten is open to Coalition attacks and hostage to anything further that may come out – just when the government is cracking down on attempts by foreign interests to influence Australian politics. Dastyari might face an inquiry by the Senate privileges committee.

It would be a gift for Shorten if Dastyari were to decide rehabilitation is too long a road and he should look for other career opportunities.

The problems that Shorten currently faces highlight certain weaknesses that his critics identify in his political approach.

The citizenship issue shows the way he plays the tactical game relentlessly, with insufficient appreciation of how things can come back to bite you.

Of course Labor would make the most of the government’s embarrassment over its dual citizens, but Shorten left himself little wriggle room when he insisted for so long Labor was fireproofed, despite warning signs it mightn’t be.

When its vulnerability was exposed this week, Shorten doubled down. After all MPs’ declarations became public, Shadow Attorney-General Mark Dreyfus produced a list of Coalition members who Labor said hadn’t supplied enough evidence that they were not dual citizens. One was Josh Frydenberg, whose mother had been fleeing persecution. Frydenberg’s inclusion in the Dreyfus list brought rebukes from two Labor MPs.

This was followed by Labor’s unsuccessful attempt to refer four Liberals (not including Frydenberg) to the High Court, as well as four of its own and Sharkie.

The move on the Liberals looked like seeking cover, especially when one of them, Nola Marino, produced a letter from Italian authorities saying she did not have Italian citizenship.

Surely it is adequate to rely on a country’s word that someone is not a citizen? Certainly Labor’s deputy leader Tanya Plibersek is using a letter from Slovenian authorities.

The Dastyari affair raises questions about how far Shorten is willing to go for those who are politically important to him.

Dastyari had to leave the front bench after the initial revelations about his Chinese links.

But within months he was given a partial leg up, becoming deputy opposition whip in the Senate. This seemed undue haste, and it raises concerns about Shorten appearing beholden to his allies. We see another example in his refusal to take a tougher line towards the Construction, Forestry, Mining and Energy Union.

Despite the setbacks, Shorten is still very well-placed, compared with Turnbull, as the end of 2017 approaches, although the December 16 Bennelong byelection will play into this balance.

Nevertheless, it is Shorten, rather than Turnbull, who appears to face the bigger uncertainties in the early part of 2018.

https://www.podbean.com/media/player/xac9s-7e77c6?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Turnbull and Shorten haggle over detail of citizenship disclosure system

Michelle Grattan, University of Canberra

Malcolm Turnbull and Bill Shorten are inching toward an agreement on the form of a citizenship declaration that each MP would have to make within weeks.

The two met in Melbourne on Wednesday, with Turnbull hoping they would finalise the declaration. But Shorten, who was accompanied by Labor Senate leader Penny Wong, had two objections to the proposal outlined by Turnbull earlier this week.

Shorten told a news conference later that Labor believed the declaration should outline what steps a person whose parents or grandparents had been born overseas had taken to investigate whether they were a dual citizen. Also, Labor wanted a shorter timeframe for MPs submitting the declaration.

Under Turnbull’s plan, an MP would state the details of where they were born and where their parents were born, and their belief that they were not a dual citizen. The declarations would have to be submitted 21 days after the Senate and the House of Representatives respectively passed a motion approving the new decoration system.

The government plans to move motions for the declaration in the Senate next week and when the House of Representatives meets on November 27.

It emerged on Wednesday that the government was proposing to bring the parliament back in late December to consider the declarations, which would open the way for any MPs who were thought to be dual citizens to be referred to the High Court. But Shorten seized on the point that a special sitting of parliament would be very costly for the taxpayer.

Shorten said the statements should be in by December 1, five days after the lower house resumes, and a week before parliament rises for Christmas.

“This would allow the disclosures to be checked out and then if there are any problems requiring referral to the High Court, that could be done in the last week of parliament,” Shorten said.

On Labor’s proposed tougher test, Shorten said: “Mr Turnbull’s resolution only goes to what the actual individual MP might believe, but I think that we require, and the High Court set, a higher test of us. Labor is not going to support watering down the High Court decisions to help a few MPs scrape back into parliament.”

Late on Wednesday the government and opposition were exchanging proposals for changes to the wording of the motion.

Both Turnbull and Shorten described the talks as “constructive”.

“We are certainly agreed on the need for disclosure of the kind that I’ve set out in the resolution,” Turnbull told a separate news conference.

“We’ve also agreed that the matter must be dealt with before the end of the year.

“By that, I mean that the disclosures should be made before the end of the year and the House and the Senate should have the opportunity, having considered those disclosures, whether any members or senators should be referred to the High Court … of course it may be that nobody needs to be referred to the High Court.”

Meanwhile, Liberal backbencher John Alexander, the member for Bennelong, is waiting for British Home Office advice on whether he is a dual British citizen. The issue revolves around whether Alexander’s father, who was born in Britain, renounced his citizenship – as Alexander believed.

If Alexander turns out to be ineligible to sit in parliament the government would face a byelection in a seat it would be vulnerable to losing.

The government is homing in on Labor MP Justine Keay, from Tasmania, who moved to renounce her UK citizenship before she nominated but did not receive confirmation until after the election. Labor insists that Keay met the requirement to make every reasonable effort to renounce a foreign citizenship.

Issues are being raised about several other MPs. The crisis has already claimed half-a-dozen victims.

Postscript

Four Liberal senators including a minister have nominated for Senate president – but the Nationals New South Wales senator John “Wacka” Williams has said he will not contest. Special Minister of State Scott Ryan has nominated to be the government’s candidate, as have David Fawcett, Dean Smith and Ian Macdonald. If Ryan were successful that would open up a vacancy in the outer ministry.

The government’s candidate will be chosen before the Senate meets on Monday.

Tasmanian Greens senator Peter Whish-Wilson will contest the position against the government candidate but has no hope of success.

The Nationals have never held the position. Williams’ bid was seen as part of the tensions between the Coalition partners in the wake of the citizenship crisis which has claimed two Nationals ministers, forcing Deputy Prime Minister Barnaby Joyce to a byelection and ending – at least for the foreseeable future – the political career of Fiona Nash.

https://www.podbean.com/media/player/k3zus-7afe23?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Turnbull proposes all MPs make declarations on citizenship

Michelle Grattan, University of Canberra

The Turnbull government is trying to limit the damage from the citizenship crisis with a plan to have all MPs make declarations about their circumstances.

The motion, agreed to by cabinet on Monday, will be moved in the Senate next week and in the House of Representatives when it resumes late this month.

The move came as questions continued about the status of Energy Minister Josh Frydenberg, whose mother was born in Budapest but arrived in Australia stateless, and assistant minister Alex Hawke, born of a Greek mother.

Fairfax Media late Monday reported that Liberal backbencher John Alexander, who holds the New South Wales seat of Bennelong, might be a dual British citizen by descent because his father was born in the UK. It quoted a spokesman saying that Alexander “believes” his father renounced his British citizenship before Alexander was born.

Last week Senate President Stephen Parry quit parliament when he found he was a dual British citizen by descent.

Opposition Leader Bill Shorten – who proposed on Friday a universal disclosure by MPs which was dismissed by Turnbull – said he would meet with Turnbull on Wednesday to discuss the move. But Shorten said this was “a rather dramatic about-face” and questioned what was behind Turnbull’s change of heart.

Section 44 of the Constitution prohibits a dual citizen being eligible to sit in parliament.

Under the government’s plan, MPs will have to state within 21 days of the resolutions being passed in their respective houses:

• that when they nominated they were not, to the best of their “knowledge and belief”, a citizen of any other country, and that they are not currently a dual citizen;

• the place and date of their birth, and their citizenship at that time;

• the places and dates of their parents’ births; and

• whether the MP has ever been a citizen of another country, and if so, the details and evidence of the time and manner of the renunciation of that citizenship or how otherwise it ended.

Turnbull said the move was about transparency, confidence and standing up for the Constitution.

He stressed this would not be an “audit” – for which there have been widespread calls – because an audit would involve bringing in an outsider.

“The obligation to comply with the Constitution, in terms of being qualified to sit in the House or the Senate, is on the shoulders of each and every member and senator,” he told a news conference after the cabinet discussion. “That’s why this will be their declarations and their disclosures.”

The disclosure would be similar to those made by MPs about their pecuniary interests and they would be provided to the registrar of members’ interests. If anyone made a false statement they would be in contempt of parliament, with parliament able to impose penalties – although in practice penalties are not imposed for inaccuracies in statements of pecuniary interests.

Turnbull stressed that it is only the High Court that can adjudicate on citizenship status. If the declaration process threw up instances of dual citizenship, the House of Representatives or the Senate could refer the cases to the court.

“Members and senators have been put squarely on notice now, and so they will be turning their mind to their own affairs and the issues of … foreign citizenship,” Turnbull said.

He said in recent instances foreign citizenship had come about in two ways – citizenship by descent, as with Barnaby Joyce and Fiona Nash, and where somebody had been a citizen of another country and had not properly renounced that citizenship, as with Malcolm Roberts.

Turnbull said the Liberal federal director Andrew Hirst “has told me that all of the Liberal Party members believe that they are in compliance with the Constitution”.

Details about grandparents are not being required, although they are relevant to citizenship by descent.

Asked about their omission, Turnbull said it was a question of “remoteness and knowledge”.

“I think we may find that some members will have to do quite a bit of research to determine the place and date of birth of their parents, let alone their grandparents or potentially great-grandparents. It’s simply trying to get a balance between what is reasonably accessible and remote.”

He said some people “when they do due diligence might come to the conclusion that they are not eligible and they choose to resign”.

“On the other hand, the circumstances that are published may be of a nature that other members say, well, you may be believe you are eligible but I do not.” And then the latter member could move the case be referred to the court.

The declarations would also be made after an election.

Turnbull said there were many aspects of the recent decision by the court – which ruled five of the seven current or former MPs before it were ineligible when elected – that needed to be worked on for future elections.

“For example we have to consider whether people who nominate for parliament should not be obliged to provide information like this as part of the nomination process, even if only to make sure they turn their minds to it,” Turnbull said.

Turnbull foreshadowed that there could be further cases. “The court made its decision in the terms it did. It may give rise to more cases.”

“The High Court decision does create some real challenges because they have said that knowledge is not material. The fact is that very often people do not know.

“It may be that they do not know because it is very hard to know. Maybe they do not know because they have not thought about it,” Turnbull said.

Liberal backbencher Eric Abetz, who last week called for an audit, welcomed the “prime minister’s strong and decisive action to restore the integrity of the parliament”.

“I am confident that it will go a long way to ensure the parliament is seen to have integrity not only in the short term but well into the future,” Abetz said. “I am appreciative that the prime minister has taken on board the views of the backbench on this issue.”

Greens leader Richard Di Natale said Turnbull’s plan was “full of holes” and did “nothing to end the uncertainty”. The Greens would continue to press for an audit. There needed to be a “forensic look at the documentation” when there were questions about a person’s potential dual citizenship.

Australian Conservatives leader Cory Bernardi tweeted:

//platform.twitter.com/widgets.js

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

North Korea: US Citizen Jailed

China Keeps Church Leaders from Public Worship Attempt

Police put pastors under house arrest over weekend, before detaining at least 160 on Sunday.

DUBLIN, April 11 (CDN) — Police in China held “about two dozen” pastors and elders of Beijing’s Shouwang Church under house arrest or at police stations over the weekend to keep them from attending a Sunday worship service in a public location, according to Bob Fu of the China Aid Association.

Three top leaders of the church remain in jail and several others are under strict surveillance after  hundreds of Chinese police yesterday cordoned off the walkway to a third-floor outdoor meeting area adjacent to a property purchased by the church in Haidian district, Beijing, and arrested at least 160 members of the 1,000-strong church as they tried to assemble.

The church members were bundled into waiting vans and buses to prevent them from meeting as planned in the public space, Reuters and The Associated Press (AP) reported, and most had been released by today.

Church leaders claimed officials had pressured their landlords, forcing them out of both rented and purchased locations and leaving them no choice but to worship in the open.

“The government cornered them into making this decision,” Fu said, adding that the church had initially tried to register with the government. “They waited for two years, and when the government still denied them registration, they tried to keep a low profile before finally deciding to buy the Daheng New Epoch Technology building.”

Shouwang is a very unique church, he said.

“Most members are well-educated, and they include China’s top religious scholars and even former government officials, which may be a factor in the government’s response to them,” he said.

As one of the largest house churches in Beijing, Shouwang is unique in insisting on meeting together rather than splitting the congregation into smaller groups meeting in several locations, Fu said. Zion church, for example, may have more members than Shouwang, but members meet in smaller groups across the city.

“This is based on the founding fathers’ vision for Shouwang Church to be a ‘city on a hill,’” as stated in the Bible in Matthew chapter five, Fu explained. “So they’ve made a conscious decision not to go back to the small-group model. Either the government gives them the keys to their building or gives them written permission to worship in another location, or they will continue meeting in the open.”

Police arrested anyone who showed up to take part in the service, AP reported.

 

‘Most Basic Necessity’

Church leaders last week issued a statement to the congregation explaining their decision to meet outdoors.

“It may not be the best decision, but at this time it is an inevitable one,” the statement said, before reminding church members that the landlord of their premises at the time, the Old Story Club restaurant, had come under government pressure and repeatedly asked them to leave, while the previous owners of the Daheng New Epoch Technology building, purchased a year ago by the church for 27.5 million RMB (US$4.2 million), had refused to hand over the keys. (See, “Church in China to Risk Worshipping in Park,” April 7.)

The church had already met outdoors twice in November 2009 before officials gave tacit consent to move to the Old Story Club restaurant. Officials, however, again prevented Shouwang Church from meeting in May and August of last year.

Fu said it was common for government officials across China to pressure landlords into revoking leases for house church groups.

“For example, right now I know of at least two churches that were made ‘homeless’ in Guangzhou this week, including one church with at least 200 members,” he said.

Shouwang’s statement pointed to Article 36 of China’s Constitution, which grants every citizen freedom to worship, and the Universal Declaration of Human Rights, ratified by China, which states that every citizen has the right to observe his religion or belief “either alone or in community with others and in public or private.”

For this reason the church planned to meet outdoors until officials granted legal, written permission to worship in an approved location – preferably at the building purchased by the church.

The document also advised church members not to resist if they were held under house arrest or arrested at the Sunday venue.

“Objectively speaking, our outdoor worship must deliver this message to the various departments of our government: attending Sunday worship is the most basic necessity for Christians in their life of faith,” the statement concluded.

The number of Protestant house church Christians in China is estimated at between 45 and 60 million, according to Yu Jianrong, a professor at the Chinese Academy of Social Sciences Rural Development Institute, with a further 18 to 30 million people attending government-approved churches.

Report from Compass Direct News
http://www.compassdirect.org

Burmese Officials Order Closure of Chin Church

Government punishes pastor for refusing to wear campaign T-shirt, amid other election abuses.

DUBLIN, November 18 (CDN) — Officials in Mergui Region, Burma, ordered a Baptist church to cease holding worship services after the pastor refused to wear an election campaign T-shirt supporting the military government’s Union Solidarity and Development Party (USDP).

The election commission summoned 47-year-old Pastor Mang Tling of Dawdin village, Gangaw township, Mergui Region on Nov. 9, two days after the election and ordered him to stop holding services and discontinue the church nursery program, the Chin Human Rights Organization (CHRO) reported yesterday.

The CHRO works against human rights abuses, including religious discrimination, for the Chin people, a minority group in Burma’s northwest estimated to be 90 percent Christian.

Village headman U Than Chaung had given the pastor a campaign T-shirt to wear in support of the USDP, and when he refused to wear it, the headman filed a report with local authorities accusing him of persuading Christian voters to vote in favor of an opposing party.

Under Burmese law, religious leaders can be penalized for “engaging in politics,” giving the pastor a solid legal reason to decline the T-shirt. The law also bans leaders of religious groups from voting in national elections, according to the CHRO, although lay members of those groups are able to vote.

“The election law is quite vague,” a CHRO spokesman told Compass today. “One of the things we were watching out for during the election was to see if church elders or council members might be excluded from voting. But these people were able to vote. The law seems to apply only to pastors, monks and imams.”

Officials interrogated Mang Tling in Gangaw until Sunday (Nov. 14), when he was allowed to return home.

Meantime, the USDP won the election amid widespread evidence of “advance” voting and other forms of voter manipulation throughout Burma.

Previously known as the Union Solidarity and Development Association, and before that the State Peace and Development Council, the USDP was formed by a ruling junta composed largely of army generals. The junta has ruled Burma without a constitution or parliament since 1998, although in 2008 they pushed through support for a new constitution that will take effect following this month’s elections, according to the 2010 International Religious Freedom report released yesterday by the U.S. Department of State’s Bureau of Democracy, Human Rights and Labor.

The new constitution forbids “abuse of religion for political purposes,” the report stated. Election laws published in March also banned members of religious orders from voting for or joining political parties and reserved 25 percent of seats in the new parliament for members of the military.

The 2008 constitution “technically guarantees a degree of religious freedom. But then, it’s Burma,” a CHRO spokesman told Compass.

 

Voter Intimidation

The Chin National Party defeated the USDP in three electorates in Chin state despite reports of widespread voting anomalies, some of which were outlined in a CHRO press release on Nov. 7.

In Tedim township northern Chin state, for example, USDP agent Go Lun Mang went to the home of a local resident at 5 p.m. the day before the election and told the family that he had already voted on their behalf in favor of the USDP. He added that soldiers in a nearby camp were ready to arrest them if they complained.

On Nov. 5, the local government had already ordered village officials to instruct residents to vote for the USDP. On Nov. 7, the day of the election, USDP agents in campaign uniforms stood at the gate of the polling station in Tedim and asked voters if they intended to vote for the USDP. Those who said yes were allowed into the station, while those who said no were refused entrance.

USDP agents also warned Chin voters in Thantlang town that they should vote for the USDP “while the door was open” or they would regret it, Burma News International reported on Nov. 5.

David Mathieson, a senior researcher for Human Rights Watch (HRW), said the intimidation indicated that the junta and the USDP knew how unpopular they were.

Reports by the CHRO show a long history of discrimination against the majority Christian Chin, including the destruction of crosses and other Christian monuments, state-sponsored efforts to expand Buddhism, forced contributions of finance and labor to Buddhist construction projects, arrest and detention, torture and particularly harsh treatment of pastors. In addition, officials have refused construction for all new church building projects since 2003.

A report issued by HRW in January confirmed serious and ongoing abuses against Chin Christians.

One Chin pastor interviewed by HRW described how soldiers held him at gunpoint, forced him to pray in a Buddhist pagoda and told him that Burma was a Buddhist country where Christianity should not be practiced. (See “Report Documents Abuse of Chin Christians,” Feb. 20.)

 

SIDEBAR

Suu Kyi’s Release Stirs Guarded Hope among Burma’s Christians

NEW DELHI, November 18 (Compass Direct News) – The release of democracy leader Aung San Suu Kyi from house arrest in Burma on Saturday (Nov. 13) has sparked cautious optimism about human rights among Christians and the country’s ethnic minorities even as the junta does battle with armed resistance groups.

Freeing her six days after elections, the military regime of Burma (also known as Myanmar) kept 1991 Nobel Peace Prize Laureate Suu Kyi from running in the country’s first election in 20 years, but ethnic minorities are still “very happy” and “enthused with hope and anticipation,” said Plato Van Rung Mang, who heads the India chapter of Chin Human Rights Organization.

Suu Kyi is the only leader from the majority Burmese community – predominantly Buddhist – who is trusted by the ethnic minorities, said Mang, an India-based Christian originally from Burma’s Chin state, which borders India.

“We have faith in Suu Kyi’s honesty and leadership, and she has been our hope,” he added.

The ethnic Chin, Kachin, Karen and Karenni people – many of whom are Christian – as well as mostly Buddhist ethnic Shan, Mon and Arakanese (some of them Muslim) people have been fighting for self-determination in their respective states and opposing the military junta’s policy of centralized control and Burmese dominion.

“We trust that Suu Kyi can fulfill her father’s ideal and political principles which have been subverted by the Burmese military junta’s Burmanization policy,” said Mang. Suu Kyi’s father, Aung San, was the nation’s leader at the time of independence and favored autonomy for ethnic minorities.

“Just as her father was trusted and held in high esteem by the ethnic people, Aung San Suu Kyi also has the ability to work together with the minorities to build a better, peaceful Burma where the human rights of all citizens are respected and protected,” said Garrett Kostin, a U.S. citizen who runs the Best Friend Library, built by a Buddhist monk in support of Suu Kyi, in Chiang Mai in northern Thailand.

While sections of the ethnic communities have been involved in armed resistance against the junta’s rule, many local residents in the region remain unarmed but are also at risk of being killed in the post-election conflict.

In the wake of the Nov. 7 election, as expected (See “Burma’s Ethnic Christians Fear Bleak Future after Election, Oct. 22), clashes between armed ethnic groups and the Burmese army erupted in three of the seven ethnic states – Karen, Shan and Mon – mainly along Thailand and China border, reported Thailand-based Burma News International. The violence has resulted in an influx of over 20,000 people into Thailand – the largest flow in the last five years.

According to US-based Refugees International, the Thai government forced many of the asylum seekers back.

There are also tensions in Kachin and Karenni states, which could erupt at any time, between the Burmese army and the Democratic Karen Buddhist Army, the Karen National Union, the Kachin Independence Army, the Shan State Army-North, and the Karenni National Progressive Party.

Rights advocates, however, were still heartened by Suu Kyi’s release.

It’s “a wonderful opportunity for the ethnic minorities of Burma to unify in support of each other’s rights and desires,” said Kostin.

In September 2007, many Buddhist monks joined democracy activists in street protests against the military regime’s decision to cut fuel subsidies, leading to a sharp rise in gas and diesel prices. Known as the Saffron Revolution, the protests resulted in hundreds of deaths as government security personnel resisted it militarily.

In numerous clashes between the repressive military regime and political opponents and ethnic minorities, over 3.5 million Burmese have been displaced and thousands killed over the years.

Suu Kyi will continue to enjoy the trust of ethnic minorities because “she has been working so hard since the beginning [of her political career] to speak out about the plight of ethnic people with an honest and sincere commitment,” said Bangkok-based Soe Aung, deputy secretary for Foreign Affairs of the Forum for Democracy in Burma.

Chiang Mai-based Christian relief group Free Burma Rangers (FBR) recalled that Suu Kyi, the general secretary of the National League for Democracy, along with allies won more than 80 percent of the seats in parliament “in Burma’s only truly democratic election” in 1990. “The military regime, however, did not recognize the results and continued to hold power,” it said in a statement.

Last week’s election was “neither free nor fair,” FBR said, adding that “thousands of political prisoners [estimated at 2,200] are still in jail, ethnic minorities are attacked [on a regular basis], and the people of Burma remain under oppression.

“Still, we are grateful for the release of Aung San Suu Kyi as she is a leader who gives real hope to the people of Burma.”

An FBR team leader who spoke on condition of anonymity recalled Suu Kyi requesting his prayers when he met with her during a brief period when she was not under house arrest in 1996.

“The Global Day of Prayer for Burma and the ethnic unity efforts we are involved in are a direct result of that meeting,” the leader said. “As she told me then, one of her favorite quotes is, ‘You will know the truth, and the truth will set you free.’”

Some Christians, however, remained cautious.

“Although San Suu Kyi wants Burma to be a true federal country, there is no certainty in the hearts of the Karen people because they have suffered for very long, and the so-called Burmese have turned their backs on them several times,” said a Karen Christian from Chiang Mai who identified himself only as Pastor Joseph.

La Rip, a Burmese activist in China, also said that while Suu Kyi deserved to enjoy freedom, she and her party “do not seem to have a clear idea on how to solve the long-standing issues” related to ethnic minorities.

For her part, Suu Kyi spelled out a plan to hold a nationwide, multi-ethnic conference soon after she was freed. Her father held a similar meeting, known as the Panglong Conference, in 1947. Aung San, then representing the Burmese government, reached an agreement with leaders from the Shan, Kachin and Chin states to accept full autonomy in internal administration for the ethnic controlled frontier areas after independence from Britain.

Suu Kyi’s planned conference is seen as the second Panglong Conference, but it remains uncertain if the new Burmese regime, which is likely to be as opposed to ethnic minorities as the junta, will allow her plan to succeed.

In the awaited election results, the junta’s proxy party, the Union Solidarity and Development Party (USDP), is likely to have majority in parliament to form the next government. Suu Kyi’s party had been disbanded by the military regime, and only a small splinter group ran in the election.

It is also feared that Suu Kyi, who was under house arrest for nearly 15 years since 1990 until her release last weekend, could face assassination attempts or fresh charges followed by another term under arrest.

Burma has a population of around 50 million, out of which around 2.1 million are estimated to be Christian.

Report from Compass Direct News

Burma’s Ethnic Christians Fear Bleak Future after Election

Military hostilities against insurgents may result in Christian casualties and persecution.

CHIANG MAI, Thailand, October 22 (CDN) — With Burma’s first election in over 20 years just two weeks away, Christians in ethnic minority states fear that afterward the military regime will try to “cleanse” the areas of Christianity, sources said.

The Burmese junta is showing restraint to woo voters in favor of its proxy party, the Union Solidarity and Development Party (USDP), but it is expected to launch a military offensive on insurgents in ethnic minority states after the Nov. 7 election, Burma watchers warned.

When Burma Army personnel attack, they do not discriminate between insurgents and unarmed residents, said a representative of the pro-democracy Free Burma Rangers relief aid group in Chiang Mai, close to the Thai-Burma border. There is a large Christian population in Burma’s Kachin, Karen and Karenni states along the border that falls under the military’s target zone. Most of the slightly more than 2 million Christians in Burma (also called Myanmar) reside along the country’s border with Thailand, China and India.

The military seems to be preparing its air force for an offensive, said Aung Zaw, editor of the Chiang Mai-based magazine Irrawaddy, which covers Burma. The Burmese Air Force (BAF) bought 50 Mi-24 helicopters and 12 Mi-2 armored transport helicopters from Russia in September, added Zaw, a Buddhist.

Irrawaddy reported that the BAF had procured combat-equipped helicopters for the first time in its history. Air strikes will be conducted “most likely in Burma’s ethnic areas, where dozens of armed groups still exert control,” the magazine reported, quoting BAF sources.

“Armed conflicts between ethnic armies and the military can flare up any time,” said Zaw. “However, to boost the morale of its personnel, the military is expected to attack smaller ethnic groups first, and then the more powerful ones.”

Seven states of Burma have armed and unarmed groups demanding independence or autonomy from the regime: Shan, Karenni (also known as Kayah), Karen, Mon, Chin, Kachin, and Arakan (also Rakhine).

The junta has designated many areas in this region as “Black Zones” – entirely controlled by armed ethnic groups – and “Brown Zones,” where the military has partial control, said the source from FBR, which provides relief to internally displaced people in states across the Thai-Burma border.

“There are many unarmed Christian residents in these zones where Burmese military personnel attack and kill anyone on sight,” the source said.

A Karen state native in Chiang Mai who identified himself only as Pastor Joseph, who fled Burma as a child, referred to the junta’s clandestine campaign to wipe out Christians from the country. At least four years ago a secret memo circulated in Karen state, “Program to Destroy the Christian Religion in Burma,” that carried “point by point instructions on how to drive Christians out of the state,” reported the British daily Telegraph on Jan. 21, 2007.

“The text, which opens with the line, ‘There shall be no home where the Christian religion is practiced,’ calls for anyone caught evangelizing to be imprisoned,” the Telegraph reported. “It advises: ‘The Christian religion is very gentle – identify and utilize its weakness.’”

Persecution of Christians in Burma “is part of a wider campaign by the regime, also targeted at ethnic minority tribes, to create a uniform society in which the race and language is Burmese and the only accepted religion is Buddhism,” the daily noted.

The junta perceives all Christians in ethnic minority states as insurgents, according to the FBR. Three months ago, Burma Army’s Light Infantry Battalions 370 and 361 attacked a Christian village in Karen state, according to the FBR. In Tha Dah Der village on July 23, army personnel burned all houses, one of the state’s biggest churches – which was also a school – and all livestock and cattle, reported the FBR.

More than 900 people fled to save their lives.

 

Vague Religious Freedom

The Burmese regime projects that close to 70 percent of the country’s population is ethnic Burman. Ethnic minorities dispute the claim, saying the figure is inflated to make a case for Burman Buddhist nationalism.

The new constitution, which will come into force with the first session of parliament after the election, was passed through a referendum in May 2008 that was allegedly rigged. It provides for religious freedom but also empowers the military to curb it under various pretexts.

Article 34 states, “Every citizen is equally entitled to freedom of conscience and the right to freely profess and practice religion subject to public order, morality or health and to the other provisions of this Constitution.” Article 360 (a), however, says this freedom “shall not include any economic, financial, political or other secular activities that may be associated with religious practice,” apparently to bar religious groups from any lobbying or advocacy.

Further, Article 360 (b) goes on to say that the freedom “shall not debar the Union from enacting law for the purpose of public welfare and reform.”

Adds Article 364: “The abuse of religion for political purposes is forbidden. Moreover, any act which is intended or is likely to promote feelings of hatred, enmity or discord between racial or religious communities or sects is contrary to this Constitution. A law may be promulgated to punish such activity.”

Furthermore, Article 382 empowers “the Defense Forces personnel or members of the armed forces responsible to carry out peace and security” to “restrict or revoke” fundamental rights.

The Burmese junta is expected to remain at the helm of affairs after the election. The 2008 constitution reserves one-fourth of all seats in national as well as regional assemblies for military personnel.

A majority of people in Burma are not happy with the military’s USDP party, and military generals are expected to twist the results in its favor, said Htet Aung, chief election reporter at Irrawaddy.

Khonumtung News Group, an independent Burmese agency, reported on Oct. 2 that most educated young Burmese from Chin state were “disgusted” with the planned election, “which they believe to be a sham and not likely to be free and fair.”

They “are crossing the border to Mizoram in the northeast state of India from Chin state and Sagaing division to avoid participating,” Khonumtung reported. “On a regular basis at least five to 10 youths are crossing the border daily to avoid voting. If they stay in Burma, they will be coerced to cast votes.”

There is “utter confusion” among people, and they do not know if they should vote or not, said Aung of Irrawaddy. While the second largest party, the National Unity Party, is pro-military, there are few pro-democracy and ethnic minority parties.

“Many of the pro-democracy and ethnic minority candidates have little or no experience in politics,” Aung said. “All those who had some experience have been in jail as political prisoners for years.”

In some ethnic minority states, the USDP might face an embarrassing defeat. And this can deepen the military’s hostility towards minorities, including Christians, after the election, added Aung.

For now, an uneasy calm prevails in the Thai-Burma border region where most ethnic Christians live.

Report from Compass Direct News

Christian in Bhutan Imprisoned for Showing Film on Christ

Court sentences him to three years on dubious charge of ‘attempt to promote civil unrest.’

NEW DELHI, October 18 (CDN) — A court in predominantly Buddhist Bhutan has sentenced a Christian to three years in prison for “attempting to promote civil unrest” by screening films on Christianity.

A local court in Gelephu convicted Prem Singh Gurung, a 40-year-old ethnic Nepalese citizen from Sarpang district in south Bhutan, on Oct. 6, according to the government-run daily Kuensel.

Gurung was arrested four months ago after local residents complained that he was showing Christian films in Gonggaon and Simkharkha villages in Jigmecholing block. Gurung invited villagers to watch Nepali movies, and between each feature he showed films on Christianity.

Government attorneys could not prove “beyond reasonable doubt” that Gurung promoted civil unrest, and therefore “he was charged with an attempt to promote civil unrest,” the daily reported.

Gurung was also charged with violation of the Bhutan Information, Communication and Media Act of 2006. Sections 105(1) and 110 of this law require that authorities examine all films before public screening.

A Christian from Bhutan’s capital, Thimphu, told Compass that the conviction of Gurung disturbed area villagers.

While Gurung has the right to appeal, it remained unclear if he had the resources to take that course.

Both Gonggaon and Simkharkha are virtually inaccessible. It can take up to 24 and 48 hours to reach the villages from the nearest road.

“Both villages do not have electricity,” the daily reported. “But Prem Singh Gurung, with the help of some people, is believed to have carried a projector and a generator to screen the movies in the village.”

Over 75 percent of the 683,407 people in Bhutan are Buddhist, mainly from western and eastern parts. Hindus, mostly ethnic Nepalese from southern Bhutan, are estimated to be around 22 percent of the population.

It is also estimated that around 6,000 Bhutanese, mostly from south, are Christian in this landlocked nation between India and China. However, their presence is not officially acknowledged in the country. As a result, they practice their faith from the confines of their homes, with no Christian institution officially registered.

Buddhism is the state religion in Bhutan, and the government is mandated to protect its culture and religion according to the 2008 constitution. As in other parts of South Asia, people in Bhutan mistakenly believe that Christianity is a Western faith and that missionaries give monetary benefits to convert people from other religions.

Yesterday’s Kuensel published an opinion piece by a Bhutanese woman from New York who described herself as “an aspiring Buddhist” condemning both the conviction of Gurung and Christian “tactics.”

“Although we may not like the tactics used by the Christians to proselytize or ‘sell’ their religion to impoverished and vulnerable groups, let’s not lose sight of the bigger picture, in terms of religious tolerance, and what constitutes ‘promoting civil unrest,’” wrote Sonam Ongmo. “If we truly want to establish ourselves as a well-functioning democracy, with equal rights for all, let’s start with one of the fundamental ones – the right to choose one’s faith. We have nothing to worry about Buddhism losing ground to Christianity, but we will if, as a predominantly Buddhist state, we start to deny people the right to their faith.”

While her view is representative of liberal Buddhists in Bhutan, a reader’s response in a forum on Kuensel’s website reflected the harder line.

“These Christians are a cancer to our society,” wrote a reader identifying himself as The Last Dragon. “They had crusades after crusades – we don’t need that. We are very happy with Buddhism. Once Christianity is perfect – as they always claim [it] to be, then let’s see.”

In July, the government of Bhutan proposed an amendment in the Penal Code of Bhutan which would punish “proselytizing” that “uses coercion or other forms of inducement.” (See,  “Buddhist Bhutan Proposes ‘Anti-Conversion’ Law,” July 21.)

Christian persecution arose in Bhutan in the 1980s, when the king began a “one-nation, one-people” campaign to “protect the country’s sovereignty and cultural integrity.” Ethnic Nepalese, however, protested the move on grounds of discrimination. Authorities responded militarily, leading to the expulsion or voluntary migration of over 100,000 ethnic Nepalese, many of whom were secret Christians, to the Nepal side of the border in Jhapa in the early 1990s.

An absolute monarchy for over 100 years, Bhutan became a democratic, constitutional monarchy in March 2008, in accordance with the wish of former King Jigme Singye Wangchuck, who served from 1972 to 2006. Since the advent of democracy, the country has brought in many reforms. It is generally believed that the government is gradually giving more freedom to its citizens.

The present king, Jigme Khesar Namgyel Wangchuck, and Prime Minister Lyonchen Jigmey Thinley, are respected by almost all Bhutanese and are seen as benevolent rulers.

Report from Compass Direct News