Basil Fernando

Ashoka Fellow
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Sri Lanka
Fellow Since 2005
This description of Basil Fernando's work was prepared when Basil Fernando was elected to the Ashoka Fellowship in 2005 .

Introduction

Most Asian nations struggle along the road to democracy. Beyond the obvious billboards—such as eloquent constitutions and periodic elections—there are few signs of progress towards basic human rights and the rule of law. The courts, police, and state bureaucracies, all vital to democracy, are commonly undermined by political influence and corruption, and corroded by the same prejudices that afflict society at large. Citizens, not states, are leading the search for fundamental rights and freedoms. For the past decade, Basil Fernando has brought new ideas and clarity to the field of human rights work. From South Korea to Pakistan, Basil has linked people of a dozen countries to campaigns for systemic legal reform. In many ways, Basil's life personifies the democratic journey: he was born in a poor Sri Lankan fishing village; he overcame the strictures of caste and class to become a firebrand human rights attorney; he fled danger where democracy crumbled and sought sanctuary where it flourished; and, today, he has emerged as leading creative force for social change.

The New Idea

Basil and his Asian Human Rights Commission are building a continental movement that reveals human rights abuse, advocates solutions, scrutinizes public institutions, and fixes serious flaws in the justice systems of Asian societies. He argues that the field’s prevailing techniques are inadequate to Asia’s unique challenges, largely because they evolved in societies with stronger judicial and political systems. Asia’s social situation is different too: huge numbers of the poor people face prejudice and exclusion and benefit little from the law. Unable to address these realities, the human rights field has evolved into two disjointed styles of work. The first responds to individual cases, communities, and issues as they arise—a grassroots approach. The second addresses legal reform: rewriting laws, arguing cases in court, critiquing systems. Seldom do the two interact effectively to achieve real change.

Basil unites the two by demonstrating how “protection” of victims and their communities is the missing link between grassroots credibility and systemic reform. Unprotected and exposed to reprisal, people do not dare lodge a complaint against police or inquire after a disappeared child. The result is silence and inaction. The rights movement itself must offer protection, since police, government, and the courts are too weak or complicit to do so. Without protection, “participation” is not possible; without participation of victims, campaigns lack the driving energy of a citizen base. And without a base, the field cannot effectively monitor institutional practices, scrutinize them, and redress failures. This duty falls to the citizen at risk—the dalit, the tribesman, the widow, the detainee.

Basil has built a number of ways to put this core idea into action. One is an electronic Urgent Appeals system that transmits information about cases of abuse to outside friends and supporters. Urgent Appeals works. AHRC has flooded rural police stages with faxes from all over the world while a detainee is still in custody, often securing his release. Another is what amounts to a “grassroots witness protection program” that houses and cares for victims, witnesses, and others in danger of retribution. In Sri Lanka, this underground railroad, linking poor villages around the country, harbored a youth tortured by police, shielding him from intimidation, until the day he took the witness stand. Supporting these initiatives are networking, training, and campaign programs. These include, to name some, the Asia Human Rights Folk School; web-based graveyards for the disappeared; a regional People’s Tribunal program; the Human Rights Correspondence School; internships for human rights workers at AHRC’s Hong Kong headquarters; publications; and radio, television, and newspaper advertising; and a program that monitors national human rights commissions.

The Problem

Three billion people in Asia live in societies with legal, administrative, and social systems that are inadequate to protecting basic rights and freedoms. While each society is unique and complex, similarities run between them. In India, Pakistan, Sri Lanka, and Nepal, caste preserves inequality, not equality, as a social ideal. From Indochina to Afghanistan, improbable nation-states, dashed together during colonial rule, struggle with ethnic conflict. Authoritarian rule in Thailand, Malaysia, Sri Lanka, and Myanmar have co-opted the courts and police, often under the rubric of state security. India’s courts can be so corrupt that magistrates sell groundless arrest warrants to businessmen to use against rivals. Governments sometimes try, and sometimes succeed, in cleaning up this pollution, but change is slow, piecemeal and often temporary.

The citizen sector has evolved to fill this void. However, the rights movement in Asia has faced many difficult challenges. Politicians have denounced human rights as an alien concept, transferred indiscriminately from the west. Human rights advocates have been assailed as lackeys of foreign governments seeking influence in Asia. Indeed, as Basil has written, the discourse of human rights reflects western experience more than modern Asian realities, not because rights are alien to Asian minds, as some would claim, but because the Asian reality is so extreme:

Many of the problems faced by people in Asia are beyond the comprehension of those who are used to this discourse. Persons from the western tradition struggle to understand how a police officer may so readily resort to torture as his means for routine criminal investigation, or how he may spend more time making a living on the side than dealing with his official duties. They cannot easily accept that a prosecutor may belong to a powerless agency, or that a complete buffoon may sit as Chief Justice and make a mockery of the very institution he represents.

These extreme failures overturn the assumptions that govern the field: that fair legal recourse exists, and merely has to be “accessed”; that the courts turn on a fair contest of evidence; that a few bad apples poison an essentially sound police force; that the state is committed to prosecuting crimes brought before it; that a victory in court sets a precedent that informs and guides future decisions; that equality is an agreed value which society simply has to pursue with greater technical skill and a bit more vigor.

Human rights work can feel awkward at home too. Organizations are usually founded by members of the educated urban middle class. Yet the people they hope to serve are mostly poor, uneducated, and living in rural areas. Reaching out to the poor, groups may commit a false diagnosis. Borrowing from the left, they assume that “lack of awareness” about rights and legal systems prohibit the poor from taking action, and then strive to “raise awareness.” In Basil’s view, a more insidious reality is at work. People know they are missing out on freedom and justice. They also know that challenging powerful interests puts them at risk. Without protection, full citizenship is impossible.

While the problems are many, the tactics are few: raising awareness, organizing protests, bringing an occasional case to the courts, generating public outcry. Outcry alone will not spark change, because public institutions are generally insensitive to critique. Even successes such as legal victories, concessions by government, and vivid press coverage do not automatically change the culture and behavior of police and other state agents.

The Strategy

Improving human rights in Asia is an enormous challenge. Basil and AHRC are not starting from scratch. There is an existing citizen sector with many human rights groups; the challenge is to draw a new roadmap for the field. Basil’s strategy is to develop a network of partner organizations throughout the region and, working together, demonstrate success time after time, in one country after another, setting new goals, employing new methods, and achieving unprecedented results.

Ten years ago Basil had a vision in mind but no map in hand. He knew that the poor were generally left out of the human rights movement and must take part. He knew that the citizen sector was turning away from international mechanisms, such as the United Nations, disappointed with their apparent ineffectiveness. Basil was determined to make them work better rather than ignore them. He knew that the divided ideologies of the Cold War were fading, and that new economic and political realities would bring a new form of authoritarianism. Old debates that divorced economic and political rights might persist, but with different connotations.

Basil’s first strategic question was whom to work with and how to find these partners. AHRC has spent much of the last decade finding the right partners, building relationships and collaborating. Partners do not have to be professional human rights organizations—in fact they seldom are. They need little in the way of organizational resources or even experience in human rights work. All of these can be learned and gained through practice. What AHRC looks for is a deep connection to communities of the dispossessed: dalits throughout South Asia; coastal fisherman eking out a living in Sri Lanka; wives and mothers of the disappeared; organizers of illegal Burmese migrant workers in Thailand; outcast widows in rural Nepal; stateless refugees in the mountains of Bhutan; loosely affiliated survivors of police torture. These are the people central to Basil’s vision of Asia’s rights movement, and the journey can not start without them.

Conventional human rights groups might approach communities with the goal of enlisting them in existing programs, training them on human rights concepts, circulating petitions, interviewing, snapping pictures, “organizing” their communities for one purpose or another. Basil will have none of it. Listening, not lecturing, is his starting point. Borrowing from a 19th century Danish social movement, he created the Asia Folk School—the name denotes a method, not a campus—through which partners sponsor vernacular dialogue among ordinary people. The purpose is to listen to the human rights issues that people are already dealing with and talking about in their daily lives, albeit in colloquial terms, and take this existing discourse as a starting point. The Folk School is not some Freirean exercise in populist organizing, but a way to orient both AHRC and its partners to reality: real people, real issues, and real opportunities for collaboration.

AHRC stays alert to the opportunities. In the late nineteen-eighties, for example, thousands of young Sri Lankans disappeared in state-sponsored killings. Few bodies were found. The disappearances created many conflicts: over political leadership, over legal recourse, over the role of the army and police in public life, over ethnic and religious divisions that had brought the country to civil war. Cases had been documented and petitions filed, but answers about the fate of the missing were elusive. Activists, academics, and outspoken social critics denounced the disappearances, but in general citizens were wrapped in an abject silence. In the mid 1990s, talking to parents and widows, AHRC stumbled on a cultural dimension to the disappearances that could stir a reticent public. Never recovering a body meant never holding proper funerals. People of all faiths struggled in a state of suspended mourning, denied the chance to hold final rites. AHRC began a campaign on the right to hold funerals as way to generate action. With Basil’s help, a coalition of relatives built a public monument to the disappeared and promoted it as a place where Buddhists, Christians, Hindus, and Muslims alike could hold funeral rites even without bodies. Citizen leaders emerged and began asking their neighbors, “How do we prevent this from happening to us again?” AHRC began holding dialogues about due process, arrest, detention, notification, and police behavior. A movement began.

This sequence of events, though logical enough, refutes practice and wisdom in human rights work. “The right to hold a funeral” is not contained in the prominent covenants of human rights law. Established human rights groups do not train or lecture on the subject, and academics would debate the legitimacy of this “right” to its finest grains of meaning. Those who fund human rights work are not in the habit of paying for monuments and memorials (the Monument to the Disappeared in Sri Lanka was paid for by public donations). Surely experts, not villagers, should analyze and critique due process. Basil, a highly experienced lawyer in his own right, does not dismiss the roles that experts and formal human rights law play, but he sees them as resources to employ in much broader campaign to generate public participation.

Once partnerships have begun, and the initial link has been made between people’s issues and structural change, AHRC offers many forms of support. It introduces the Urgent Appeals system so that citizens can take action on any new case of abuse. Basil sees this program as the backbone of their strategy, because it establishes a continuous relationship between AHRC and its partners. Urgent Appeals is, among other things, Basil’s answer to the problem that many regional organizations face: intermittent meetings and workshops with long intervals of inactivity. Appeals also break the isolation that many rural victims suffer, because frequent demonstrations of international solidarity and support can boost local morale. Meanwhile, AHRC begins working more closely with carefully selected individual partners, offering internships in it Hong Kong office. There they see the entire chain of interventions and develop close relations with AHRC staff. Close relationships among carefully chosen colleagues are critical to communicating over great distances and across cultures and societies.

Together AHRC, its citizen base, and partners create a platform that can support long-term campaigns for systemic change. To continue the example, AHRC has launched a relentless campaign against police torture in Sri Lanka. Fed by citizens and maintained through and Appeals system, AHRC has raised the issue of torture to unprecedented levels of public recognition. Various protection systems—so central to Basil’s insight—enable citizens to speak out while reducing their fear of harassment. AHRC takes out radio, television, and newspaper advertisements asking why torture persists. AHRC watches every move of the national human rights commission, constantly pressuring it to do more, act faster, own up to its limitations. When a case stalls in the courts, AHRC flood the Ministry of Justice with inquiries. When a policeman tries to intimidate a witness, his name and rank are broadcast worldwide. When a law goes unenforced, AHRC files a complaint. Lawyers and judges sympathetic to human rights also begin to speak out, emboldened by the changing atmosphere.

Perhaps Basil’s most important strategic decision is to remain open to new opportunities as they arise, but never to flit around from issue to issue. AHRC will not take on a new issue at the expense of an existing campaign. What matters most is developing the tactics and partnerships, and new issues just come with the territory. Disappearances and state security laws are turning up again as AHRC develops its work in Nepal. In India, AHRC is building its network around caste discrimination, corruption in police forensic procedures, and campaigns to reform procedure in criminal investigations. In Thailand, military abuse in the Muslim south is hidden because the government intimidates and silences reporters who might cover it. There, AHRC is taking up the link between violence and press freedom. In all cases Basil’s vision calls for a newly energized, newly equipped movements that will lead societies on the long—perhaps endless—journey in search of human rights.

The Person

Since childhood, Basil has watched two opposing forces, repression and freedom, shape the societies where he lived and worked. Basil’s personal encounters with these forces, along with the effects he saw them have on others, built in him a restless fascination with human rights, a struggle he has described as one of “power versus conscience.”

Basil Fernando was born in 1944, in a small village in southwestern Sri Lanka, nestled between a canal and the sea. The people of Palliyawatte were poor, but the sea provided a living and the community provided familial and neighborly ties. Nevertheless, life was hard. One of Basil’s formative childhood memories is the death of his sister from pneumonia; Evelyn was the first person Basil recognized as a victim of society’s failure to care for its weakest members.

The village was mostly Catholic, but during Basil’s childhood, caste remained a major social influence. Basil was born into a “low” caste, defined by the traditional occupation of washing clothes, demeaned by those of higher status. He has written:I am supposed to belong to a low caste; I say “supposed,” as I do not accept caste. My caste is called the washerman’s caste. I am expected to be very shy about this and never mention it in public, as it will be to my misfortune. However, it never intimidated me and I did not think anyone superior to me because of birth. This aggressive behavior has had an advantageous side. Ordinary people trust those coming from there own background who are able to move among those they were made to believe are superior. Their suppressed humanity gets a lift.

Despite—or because of—their vulnerable social status, the people had developed a culture that preserved their self esteem, at least among their caste peers. Still, discrimination was a daily fact. Basil describes incidents he witnessed as a child in which adults, respected in their own circles, became meek and self-conscious in the presence of their caste betters. The contrast between the resilience of the poor and the injustice heaped cultivated in Basil an unusual rebelliousness, a characteristic that would both serve and threaten him later on.

At his local mission school, and later at church-sponsored boarding schools and colleges, Basil was a precocious intellect, a formidable debater, a natural leader, and all-round troublemaker. When teachers or priests wielded their authority with prejudice or cowardice or impunity, Basil was quick to point out the fact. As progressive members of the church were reprimanded for social activism, Basil sided with the reformers. At university Basil studied law. A student of his background was a rarity in that faculty.

Throughout the 1970s Basil taught English at a Colombo college, practicing law on the side. In 1975 he organized a large public demonstration after a young Tamil who died in police custody, the first such protest. The campaign was large enough to draw police scrutiny, and Basil and his friends were briefly arrested. They later sued the arresting officers, one of whom would rise to a prominent position by the time Basil fled Sri Lanka in 1989.

By the 1980s Basil devoted himself to practicing law. He became a constant thorn in the side of an often corrupt, often unfair legal system. He overturned convention by, for example, arguing his cases in Sinhalese, rather than English, so that his clients could follow the proceedings. His opponents answered this insouciance by dragging caste into the court. Basil recalls a prosecutor’s remark to the judge, “I know the learned friend on the other side knows better than anyone else how to wash dirty linen in public.” The judge snickered, Basil was unfazed. He made many friends among the dispossessed, and many enemies among police, politicians, lackluster judges, and local elites.

In September 1989, amid a wave of disappearances in which as many as 60,000 people may have died, Basil was informed by a family friend that his name appeared at the top of a death list. Two local politicians had Basil in their sights. He packed up his wife and infant daughter, bid farewell to his friends and relatives, and moved to Hong Kong.

Basil was asked to lead the UNs legal reform program during its major reconstruction program in Cambodia. Cambodia had a profound effect on Basil’s view of human rights as an organized discipline practiced by the international community. Cambodia’s social fabric had been shredded, first by the Khmer Rouge in the 1970s, and then by civil war and foreign occupation throughout the 1980s. By the time the UN showed up, the country was a mere shell of its former self. There was no legal system to speak of, and no civil society institutions. The well-meaning efforts of constitutional scholars, trainers, delegations of foreign lawyers and judges added up to very little. The people had lost all faith in the concept of government, and the legal system had long ago abandoned its mission of delivering justice. International assistance was mostly limited to a technical exchange.

After Cambodia, Basil returned to Hong Kong with a clear vision for the future. Asia would need a fresh human rights movement. Its foundation would be the enormous citizen base of the poor and disenfranchised: Dalits in caste-laden societies; mothers and widows of the disappeared; rural folk whose livelihoods were dwindling away; youths at the mercy of sinister police. Basil envisioned a network of Asia’s most capable human rights organizations that could restore and strengthen the link between legal advocacy and grassroots organizing. It was at this time that a Board member of the Asian Human Rights Commission approached Basil. AHRC founded years earlier under the auspices of a regional church organization, had few staff, an unclear mission, and little energy. Basil assumed leadership, began building the organization, divorced it from its social-worker origins, reconstituted the Board, absolved it of its church ties, and set it free as an independent entity.