Aaron Halegua. Open Democracy. "Sexual harassment at Walmart’s stores and suppliers in China"

Aaron Halegua. Open Democracy. "Sexual harassment at Walmart’s stores and suppliers in China"

A coalition of labor groups, including Global Labor Justice and the Asian Floor Wage Alliance, issued a report last month documenting extensive sexual violence and harassment at Walmart apparel supplier factories in Bangladesh, Cambodia, and Indonesia. In the study, ‘Gender Based Violence in the Walmart Garment Supply Chain’, women also reported retaliation when they refused sexual advances or complained about the mistreatment. The findings are based on interviews with 250 workers in 60 factories over a six year period.

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Ira Belkin & Sida Liu. Professional Ethics for the Criminal Defense Lawyer: A Transcript of a Discussion Comparing the Rules and Practice in China and the United States

Ira Belkin & Sida Liu.  Professional Ethics for the Criminal Defense Lawyer: A Transcript of a Discussion Comparing the Rules and Practice in China and the United States

In 2012, the revisions to the Chinese Criminal Procedure Law strengthened key procedural rights of defendants, including the right to conduct an independent investigation into the facts of a case and the right to request a special hearing to exclude “illegally collected” evidence. Yet with an expansion of rights comes a concomitant expansion of defense lawyers’ professional and ethical responsibility.

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打破秘密: 美国反性骚扰立法对“我也是”运动的回应

“Me too”(“我也是”运动)将美国法律禁止却又普遍存在的性骚扰推到了风口浪尖。从哈维·温斯坦的性骚扰指控曝光开始,每天都有性骚扰的新闻报道,演艺界、议员、企业高管、体操队队医、政府高级官员因为性骚扰的指控或曝光而被辞退、辞职、面临高额索赔,甚至被判处终身监禁。

受害者们之所以过了十年甚至更久才站出来说“我也是”,除了性骚扰带来的耻辱感、精神痛苦、对隐私的顾及,保住工作机会的生存需要等因素外,还有一些制度性的障碍,让受害者不能说,让其他潜在的受害者不知道,使得性骚扰成为秘密。而制度性的障碍中就有和解保密协议以及强制仲裁协议,这些协议把员工分散化,封住了受害人的口,使员工很难告诉他人自己的遭遇,也很难通过集体诉讼来实现权利。

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Aaron Halegua & Yizhi Huang. ChinaFile. "What Is the Significance of China’s #MeToo Movement?"

As the #MeToo movement has swept America, it has also made waves in greater China. On the mainland, the most widely publicized incident involved Luo Xixi’s allegation in a January 2018 Weibo post that her professor at Beihang University, Chen Xiaowu, sexually harassed her over a decade ago. The allegation lead to Chen’s dismissal. Since then, Chinese women have organized at least 70 open letters to universities and have posted some of their stories of sexual harassment on social media, with the #MeToo hashtag attracting over 4.5 million hits on Weibo. The government has tried to suppress some of this, blocking the #MeToo hashtag and deleting posts, and China’s social media movement has had difficulty moving “offline,” as it has outside of China. Nonetheless, some Chinese officials have acknowledged that sexual harassment is a problem and are discussing how universities and government agencies should respond. Hong Kong women have similarly been taking to social media to air their grievances.

The following conversation, organized by Aaron Halegua, a lawyer and research fellow at NYU School of Law, addresses the significance of the #MeToo movement from a variety of perspectives, including its impact on sexual harassment litigation and worker protections; implications for youth, feminist, and LGBTQ movements; the role of public interest lawyers in social movements; and the push for gender equality in Hong Kong. —The Editors

Read Aaron Halegua and Yizhi Huang's Comments here: http://www.chinafile.com/conversation/what-significance-of-chinas-metoo-movement

Alvin Y.H. Cheung. ChinaFile. Who's to Blame for Hong Kong's Weakening Rule of Law?

January 23, 2018

Rimsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.

According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.

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Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

The influence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system.

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Aaron Halegua. ChinaFile. Is Chinese Investment Good for Workers?

China’s Belt and Road Initiative is a $1 trillion plan to deepen economic relations between itself and up to 60 other countries worldwide through large investments in infrastructure, construction, and other projects. Many commentators have considered the significance of Belt and Road from a political, economic, or even environmental perspective. This discussion, conceived and led by Aaron Halegua, considers a largely neglected topic: what are the initiative’s implications for labor in China and the target countries?

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Margaret K. Lewis. ChinaFile. Protecting the Rights of the Accused in U.S.-China Relations.

As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.

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Margaret K. Lewis. East Asia Forum. Taiwan's Enduring Death Penalty.

In May 2014, a man stabbed four people to death and injured dozens on a Taipei train. He was executed on 10 May 2016 — 10 days before President Tsai Ing-wen assumed office. The pace of executions in Taiwan has waxed and waned over recent decades — after a nearly five-year pause in executions, 33 people were executed between 2010 and 2016. Today, the death penalty remains legal, popular and contentious.

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Margaret K. Lewis. The Diplomat. "Taiwan’s Human Rights Revolution and China’s Devolution"

The gulf between legal systems across the Taiwan Strait is far wider than a hundred miles. Last month, Lee Ming-che — a Taiwanese citizen and human-rights activist — pleaded guilty to subversion charges in China for peacefully expressing political opinions. Today he remains in custody awaiting a decision on his punishment. Lee’s case has heightened already strained cross-strait relations. It has also laid bare the increasing divergence between China and Taiwan with respect to protecting human rights.

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Eva Pils. CPIA. "A New Torture in China"

‘In China, we say that for a person meditating in a cave, a day passes as though it were a thousand years; it is like paradise. And where did I experience paradise? In there in the detention centre, being tortured. A day was like a thousand years. That’s how it felt. The disturbingly aged and altered face of the human rights lawyer sharing this observation gave me a sense of what he had been through during his most recent detention, and what colleagues who remained ‘in there,’ including Jiang Tianyong and Wang Quanzhang, might still be suffering.

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Margaret K. Lewis. China Policy Institute: Analysis. "Penetrating Law Into the Walls of Chinese Detention Centers."

Last Saturday, the window closed for comments on the draft PRC Detention Center Law.  The Ministry of Public Security touts the draft law’s ability to protect human rights (人权保障), and the release of the long-awaited draft at least indicates the government’s acknowledgement that existing legal provisions are inadequate. Yet any celebrations about an improvement to current detention practices is premature.

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Jerome A. Cohen. Peter Dutton. SCMP. "How India border stand-off gives China a chance to burnish its global image."

BorderWall.JPG

Jerome A. Cohen and Peter A. Dutton call on Beijing and New Delhi to seek impartial arbitration to resolve their problem. After its heavy-handedness in the South China Sea, the latest row offers China a fresh chance to show respect for international law.

Friday, 21 July, 2017

For the past month, there has been a tense stand-off between China and India in the tri-border Himalayan region that ­includes Bhutan. Troubles began when China resumed building a road on the Doklam Plateau, which is disputed between Bhutan and China. India, because of its own security interests and as Bhutan’s security guarantor, stepped in to defend the position of the kingdom. China now claims India has invaded “its” territory. Tensions are high, and more than a few commentators have suggested this may be the most serious Sino-Indian ­border crisis since their 1962 war.

Many possibilities have been advanced for ­Beijing’s motive to stir up trouble. Some suggest ­Beijing seeks to peel Bhutan from India’s orbit. ­Others believe China seeks to take tactically useful high ground from which to threaten a narrow pass connecting to India’s eastern territories. Others focus on domestic Chinese political-military motivations ahead of the 19th Communist Party Congress. Another possibility is that China may be using the tension to create leverage in advance of border ­dispute negotiations. But why provoke India now?

It is important to remember that President Xi ­Jinping (習近平) undoubtedly wants to demonstrate to the upcoming party congress that he has a plan to make his bold foreign policy undertaking, the “Belt and Road Initiative”, a success. The long-term problem Xi faces is that both the maritime “Road” and the overland “Belt” are vulnerable to Indian interference. Thus, the future of the initiative relies heavily on Indian cooperation, or at least non-interference.

What does China have to offer India in return for its important acquiescence? Perhaps Xi created serious border tensions in order to bring India to the negotiating table, where China could offer a settled land border on terms favourable – but not too favourable – to Indian security. There is precedence in China’s negotiating approach with Vietnam ahead of finalising their land border in 2009. Indeed, unlike its thousands of miles of disputed maritime borders with eight other states, Beijing has in fact successfully negotiated nearly all its land border disputes, sometimes explicitly invoking relevant international law. Stark exceptions are China’s still-disputed borders with India and Bhutan.

Yet, almost seven decades of experience suggests that prospects for successful Sino-Indian border negotiations are not bright, and the current military confrontation might lead to actual armed conflict between two nuclear powers.

To avoid such a dangerous development, both Beijing and New Delhi should consider the time ripe for impartial arbitration or adjudication to resolve the problem. This would be a much less dangerous way than military provocations to achieve the “peaceful dispute resolution” that Beijing so vociferously endorses. Moreover, resorting to an independent international tribunal would go a long way towards repairing the damage to Beijing’s reputation caused by its refusal to accept the outcome of the UN Convention on the Law of the Sea arbitration brought against it by the Philippines over disputes in the South China Sea.

As of now, Beijing is vulnerable to criticism that its heavy-handedness in the Himalayas is another example of Xi’s “peaceful” policies. On the one hand, he professes to favour peaceful settlement through negotiations; on the other, he says, “China will never compromise on matters of sovereignty” over what are, in fact, controversial territorial claims. Beijing’s bullying in the South China Sea has also led ­others to conclude it believes only in power-based approaches to international dispute resolution.

When Prime Minister Narendra Modi visited the Council on Foreign Relations in New York in September 2015, he was asked whether India and China might settle their land border disagreements through arbitration. Modi dismissed the possibility without stating any reasons. But since India recently settled its disputes with Bangladesh in the Bay of Bengal through the UN convention arbitration, we are left to infer that the problem is China, not India. Apparently, Modi understandably has no hope that China would agree to such an approach.

Indeed, it is a fair question to ask, especially in view of Beijing’s recent flat-out rejection of the decision in the South China Sea case, why should India seek arbitration with Beijing? Even knowing Beijing will reject the arbitration proposal, India may want to strengthen the global esteem it already enjoys from its gracious acceptance of the adverse Bay of Bengal arbitration award. Seeking arbitration would also ­reflect India’s confidence in its legal position and its rejection of China’s current preference for bullying.

Appearances to the contrary notwithstanding, the Philippines gained much through its arbitration against China. It may take years or even decades for the fruit of its efforts to ripen, but even now it is apparent that quiet bilateral negotiations stimulated by the arbitration have gradually begun to emerge. And it is important to note that through arbitration, even ­“losers” can be winners.

When India was awarded the lesser portion of maritime rights in the Bay of Bengal, Modi’s enlightened acceptance emphasised that now the two sides could cooperate in regional resource development that had been previously stymied.

Beijing has a lot of work to do to repair its international image. What do other members of the UN sea convention think about China’s blatant rejection of its commitment to the agreement’s mandatory dispute resolution provisions? What do the British think about Beijing’s recent unilateral declaration that the 1984 Joint Declaration supposedly guaranteeing Hong Kong’s future until 2047 no longer has realistic meaning? What do other states that have ratified the UN Convention against Torture think about China’s continuing nationwide abuses? What do Australians think about the way Rio Tinto’s Stern Hu was tried despite the bilateral consular convention? What do Taiwanese think about Beijing’s refusal to apply the cross-strait judicial assistance agreement to Taiwan human rights activist Lee Ming-che’s detention? What do forcibly repatriated North Koreans think of Beijing’s violations of the Refugee Convention?

The present dispute with India offers Beijing a splendid chance to demonstrate respect for the institutions and processes of international law.

Jerome A. Cohen is an NYU law professor, faculty director of its U.S.-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations. Peter A. Dutton is a professor and director of the China Maritime Studies Institute at the US Naval War College and adjunct professor of law at NYU


This article appeared in the South China Morning Post print edition as: move moUntains

*Click here to view original article.

 

Jerome A. Cohen. South China Morning Post. Taiwan's Landmark Ruling on Same-Sex Marriage Highlights the Gulf with Mainland China.

 

May 29, 2017 

 

The decision of Taiwan’s constitutional court last week, invalidating a civil code provision prohibiting same-sex marriage, will have profound implications. Domestically, it will spur the executive and legislative branches to break the political stalemate over the legislative action necessary to amend the code, so as to conform to the constitution’s guarantee of social equality for all. They must now fulfil this constitutional responsibility within two years.

The constitutional court has taken similar actions in other controversial situations in recent decades. For example, its decisions played a critical role in ending the power that Taiwan’s police long exercised outside the regular judicial system, to imprison anyone they chose to declare a “hooligan”. The court also required that the government end an abuse similar to the notorious “re-education through labour” recently abolished, at least in form, in mainland China.

The much more controversial same-sex decision reminds me of the landmark US Supreme Court Brown vs Board of Education ruling, which in 1954 led a divided America away from segregated schools and other previously legal segregation practices. Although Brown, like last week’s Taiwan case, generated a major backlash from many conservative groups, it proved a major step toward social progress.

Read the entire article here.

 

 

Jerome A. Cohen. ChinaFile. Comments on Lee Ming-che's Arrest.

April 20, 2017

A Taiwanese Man’s Detention in Guangdong Threatens a Key Pillar of Cross-Straits Relations

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.”

Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei?

Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

 

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.” Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei? Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

Read the entire article here.

Jerome A. Cohen. Storm Media Group. 孔傑榮專文:北京錯估逮捕李明哲的後果

June 06, 2017

日前不幸消息傳來,中華人民共和國以「顛覆國家政權罪」「逮捕」了臺灣人權活動人士李明哲。這亟需我們進行反思和進一步評論。       

 

首先值得注意的是,北京在宣布正式「逮捕」前已經將李明哲隔離監禁了六十八天(按:見刊此時已經八十天)。這再次表明,中國國家安全部和公安系統如今頻繁使用「監視居住」手段,來規避中國《刑事訴訟法》所規定的普通拘留或逮捕程序的時限。即便警察扭曲解釋了《刑事訴訟法》,那至多也只能允許他們在檢察院正式作出逮捕決定之前拘留嫌疑人三十七天。按照國際標準,這一拘留時間已經遠遠長於正常的期限。然而,現在警察只要聲稱當事人涉嫌危害國家安全,就能在提請檢察院批准「逮捕」之前,通過監視居住這一強制措施關押嫌疑人長達六個月。此外,如同警察在其他一些涉及人權律師案件中的作法,他們甚至可以再次或多次更新為期六個月的監視居住,以長期拘留嫌疑人。這無疑是對《刑事訴訟法》的嘲弄。

其次,如臺灣陸委會簡要指出,圍繞李明哲被捕的情況進一步證實,北京方面自從臺灣新任總統蔡英文一年前就職以來,一直拒絕執行重要的《海峽兩岸共同打擊犯罪及司法互助協議》。中國不但沒有按照協議及時通報臺灣當局李明哲被限制人身自由的訊息,而且在近十周的監禁後,仍然沒有安排家屬探視。臺灣的海峽交流基金會,表面上雖然屬於半官方機構,但被兩岸授權負責執行所謂「非官方」的兩岸協議。而如今,在北京置之不理的情況下,海基會要求中國政府保護李明哲的權利並公布支持其指控的相關證據。之前在臺灣前總統馬英九執政時期與中國執法機關保持良好合作關係的臺灣法務部,現淪落到只能通過電子郵件向中國檢察院要求在調查期間保障李明哲的身體健康、人身安全和司法程序中的權利。至少在名義上,檢察院擁有對全能的秘密警察進行監督的權力。

Read the entire article here.

USALI Affiliated Professor Eva Pils Quoted in Guardian Article

April 28, 2017

China convicts rights lawyer Li Heping of 'subversion of state power'

Li, once told that China considered him ‘more dangerous than Bin Laden’, sentenced in secret trial to three years in prison with a four-year reprieve

A respected Christian human rights lawyer has been convicted of “subversion of state power” at a secret trial in China, almost two years after he was first detained in a sweeping crackdown.

Li Heping was sentenced to three years in prison with a four-year reprieve, the court in the eastern city of Tianjin said on an official social media account, meaning he should be released but could be arrested and jailed at any point.

The trial was held behind closed doors on Tuesday because “the case involved state secrets”, the court said, but was only announced along with the verdict on Friday.

 

'I want to rescue my dad': children's heartbreak for the lawyers China has taken away

Li was swept up in a nationwide crackdown on rights lawyers and activists in July 2015, where police detained or questioned about 250 people. Since assuming power, China’s president, Xi Jinping, has launched a new wave of attacks on activists and the lawyers who defend them.

Li’s case drew attention around the world, and EU officials, as well as the embassies of 11 countries, called for his claims of torture while in custody to be investigated. His wife has said authorities used electric shocks on him.

“A suspended sentence does not mean he’s free until we actually get to see him and he’s allowed to speak freely, and given what we’ve seen in the past that probably won’t happen,” said Eva Pils, a professor at King’s College London and longtime friend of Li.

“It was a secret trial so we don’t know what state he is in,” Pils added. “In addition to our usual concerns about torture and physical health, I’m worried that this entire process may have robbed him of his mental health, especially after what they’ve apparently done to his brother.”

Li’s younger brother, Li Chunfu, emerged from 500 days of secret detention in January and was later diagnosed with schizophrenia, according to his family.

Li became well known for defending the disenfranchised, including Christian house churches, victims of forced evictions and free speech advocates. He worked within the scope of China’s legal system, rather than taking to the streets in protest. One Chinese security agent reportedly once told Li that the state considered him “more dangerous than Bin Laden”.

Although Li is likely to be released in the coming weeks, he has already spent more than 20 months in detention. At least 11 activists who received suspended sentences disappeared shortly after they were released, with some forced to undergo months of political education classes before being placed under house arrest by local police, according to human rights groups.

The court’s verdict was seen as a warning to other activists, and included a catalogue of vague charges, without citing any specific examples of illegality.

“The court ruled that since 2008, the defendant Li Heping repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system,” the court said. The court also accused Li of accepting foreign funds and employing paid defendants.

A lawyer hired by Li’s family to defend him was rejected by authorities and he was ultimately given a government appointed lawyer, an increasing trend in political prosecutions.

The conviction came on the same day that another civil rights lawyer, Xie Yang, was set to go on trial, but it was later cancelled.

Read the full article here.

USALI Affiliated Professor Eva Pils Quoted in Reuters Article

June 5, 2017

China activists fear increased surveillance with new security law

By Christian Shepherd

(Refiles this May 25 story to add "Chinese" to advocacy group's name in paragraph 13.)

By Christian Shepherd

Chinese activists say they fear intensified state surveillance after a draft law seeking to legitimize monitoring of suspects and raid premises was announced last week, the latest step to strengthen Beijing's security apparatus.

Half a dozen activists contacted by Reuters say they already face extensive surveillance by security agents and cameras outside their homes. Messages they post on social media, including instant messaging applications like WeChat are monitored and censored, they said.

The draft of a new law to formally underpin and possibly expand China's intelligence gathering operations at home and abroad was released on May 16.

However, the law was vaguely worded and contained no details on the specific powers being granted to various state agencies.

"State intelligence work should...provide support to guard against and dispel state security threats (and) protect major national interests," the document said.

The law will give authorities new legal grounds to monitor and investigate foreign and domestic individuals and bodies in order to protect national security, it said.

Public consultation for the draft ends on June 4. It is unclear when the final version may be passed.

Hu Jia, a well-known dissident, said the release was met with fear and despair in his circle of reform-minded activists, where it was seen as a sign of strengthening resolve in the ruling Communist Party to crush dissent.

"Before, the party acted in secret, but now they have confidence to openly say: 'We are watching you'," Hu told Reuters.

"The law is also partly to frighten people ahead of the 19th Party Congress; to tell them to be careful, to be quiet," he added. Hu was referring to the once in five years congress of the Communist Party likely to be held in October or November in which President Xi Jinping is likely to further cement his hold on power by appointing allies into the party's inner core.

Read the entire article here.