Non-democratic “Before States,” unlike democratic “After States,” crack down on religions they regard as dangerous “before” they commit any crime. The Tai Ji Men case proves the distinction is not clear-cut.
*A paper presented at the 2024 Judicial Day Forum “Review and Vision of Judicial Independence: The Tai Ji Men Case,” National Taiwan University, Taipei, January 9, 2023.
An article already published in Bitter Winter on January 11th, 2024.
The vast majority of states around the world are signatories of international declarations on the subject of universal human rights. And nearly all of these play lip service to the concept of freedom of religion. However, the ways in which the concept of human rights is understood and implemented differ enormously and, I would suggest, there are very few—if, indeed, any—states in which the possibility exists for all individuals and/ or all religions to be able to manifest their beliefs without some sort of prejudicial interference from the very state that has signed such declarations and/or its agents.
I am not a lawyer, but a sociologist of religion, who has been studying minority religions and spiritual or philosophical groups and social reactions to such movements for over half a century. It has become clear to me that there are numerous ways in which the legal philosophies of states can be distinguished—one classificatory distinction could be between what I shall call “Before” and “After States.”
“Before States” have a policy of enacting laws so that their citizens will be protected from potential harms by a minority movement “before” any such harm has taken place. “After States,” on the other hand, allow citizens to act relatively freely but apply a universally applicable law about, for example, murder, theft, fraud, or child abuse, only “after” the law has been broken.
In other words, “Before States” have laws that prevent either some or all minority religions from manifesting their religion in a number of ways—or possibly ban them altogether. Conversely, “After States” are unlikely to have any laws about particular religions or their members that do not apply to the general population. It is only “after” a religion and/or its members are proved guilty of breaking a general law that any restrictions/punishments will be imposed on them. They are, in other words, assumed innocent until proved guilty,
Of course, these two types (Before and After States) rarely, if ever, apply unambiguously in reality. Most states will be more or less “Before” or “After” in their policies. However, it is possible to suggest that democracies are more likely to be After States than either theocracies or communist or socialist states, which are more likely to be Before States. Examples of democratic countries such as those of North America, Northern Europe, Australia, Japan, South Korea and Taiwan would seem, at least “prima facie”, to be more likely to be After States, while North Korea, Mainland China, Vietnam, Russia, and Iran are more likely to be Before States.
But almost as soon as we make the distinction, we start to run into difficulties. France, for example, is undoubtedly a democracy, but it has passed a number of laws that might seem to place it firmly in the Before category. Interestingly, given the situation in which Tai Ji Men has found itself, the French courts claimed that money donated to Jehovah’s Witnesses was not eligible for tax exemption because it was not a real religion, but a “cult.” Eventually, however, the European Court of Human Rights over-ruled the French decision, and the Witnesses were repaid the taxes that they had been forced to pay.
Indeed, once one starts to look at actual practices, we can see that there are a number of ways in which the law can be misused or circumvented by what are apparently “After States” in order to curtain the free practice of certain religions—or, at least, make it difficult for them to realise their constitutionally guaranteed legal freedoms.
England, clearly a democracy and, according to its laws, fairly obviously an After State, does have an established Church (the Church of England) but it is unnecessary for other religions to register—all are free to practice in whatever way they wish—or not to practice any religion. However, if religions want to get certain tax exemptions, then they have to register as a charity—though this is entirely voluntary, and some movements prefer not to apply for charitable status.
Until fairly recently, it was assumed that all religions could qualify as a charity merely by being a religion, but then some unpopular religions (the Church of Scientology is an example) were declared not to be a “real religion” and were, therefore, denied charitable status. Even more recently, charity law has been changed so that a religion has not only to prove that it is a “real religion,” but also that it is “of public benefit.” The Plymouth Brethren Christian Church was deemed not to be “of public benefit” although was not accused of having committed any crime—until, a few years later, it was able to convince the Charity Commissioners that it did not cruelly ostracise members from former members of their own family.
Staying in the UK, at the time of what are referred to as “The Troubles” in Northern Ireland, several movements (such as the Irish Republican Army), were banned as terrorist organisations. Since then, a number of religious organisations have been banned (mainly Islamic groups such as ISIS or the Mujahedeen, but also some right-wing Christian movements).
In Lithuania and several other countries, there are various levels of recognition. All religions can practice freely, but according to the length of time they have operated in the country and/or the number of members that they have, they will have more or fewer benefits—such as tax relief or access to public media or being able to teach in schools.
One way in which the rights of religions can be denied is by labelling them in a certain way. Some are denied consideration as a religion because some other description takes precedence over that of “religious.” In Mainland China, for example, some organisations are labelled as “xie jiao,” which I gather really means heterodox teachings but is often translated as “dangerous cults.” This means they cannot be regarded as a religion because they are considered criminal organisations subject to imprisonment and other punishments.
In Russia, certain texts, such as the literature produced by the Jehovah’s Witnesses or written by the Islamic scholar Said Nursi, are considered “extremist” because, for example, the Jehovah’s Witnesses claim that they are the True Religion so anyone reading such literature is subject to criminal proceedings. (But, one may ask, which religion claims it is not the true religion?)
Yet another way in which the religious freedoms may be denied, despite their legal rights, is by the administrators of justice simply not following the law. In the USA and western European democracies in the 19780s and 1980s, there were literally hundreds of cases of ‘’deprogramming”—that is, illegally kidnapping converts to unpopular religions and holding them against their will until they managed to escape or to convince their captors that they had renounced their faith. In such cases, the religions might complain to the authorities or the person him- or herself might manage to contact the police, but frequently the police just turned a blind eye and might even collaborate with the deprogrammers in keeping the captor from returning to his or her religion. In one case in the UK, the Unification Church brought a case of habeas corpus in an attempt to get one of their members released from deprogrammers, but the judge just ruled that the 28-year-old woman was being held because her parents were concerned about her belonging to a “dangerous cult”such as the so-called “Moonies,” and they (the parents) were good people who were clearly doing the best for their daughter. Consequently, the daughter was then held for a month in a remote spot in France, having at times been threatened at gun point. Eventually she was able to return to her Church, and it took some time to repair her relationship with her parents. The deprogrammers who, together with the media and so-called “anti-cult movement” had convinced the parents to spend thousands of pounds on her deprogramming, were able to walk free with a considerable sum of money in their bank accounts.
From what I understand of the case of Tai Ji Men, it would seem that this is a situation in which an organisation has been denied what is its legal rights by part of the apparatus of the very government that has declared that its rights are being abused. Dr. Hong has been detained without any justification—as clearly states by a Supreme Court decision—and the movement has been imposed tax bills and land confiscated by the tax authorities for reasons that other sections of the government have declared illegal.
And yet Taiwan is a democracy which is, in many ways, more clearly an “After State” than many other countries in the region and, indeed, throughout the world. In other words, it would seem clear that Taiwan is falling way below its own standards as far as the Tai Ji Men case is concerned.
This is, to say the very least, a shameful situation so far as the rule of law and the rights not only of both Dr. Hong and all of Tai Ji Men’s dizi, but also of Taiwan itself, are concerned. The rule of law is believed by most people to be “a good thing”—but that is only the case if the laws are just and fair laws and if they are followed honestly by legislators and implementers of the law, rather than being perverted by perverse motives.
I very much hope that Taiwan will, after all these years, put its legal house in order and remedy what seems a most unfortunate anomaly.