Dr Ilaria Bottigliero, Lecturer, Department of Government & Public Administration, Chinese University of Hong Kong
Fernando, W J Basil, The right to speak loudly: Essays on law and human rights,
Asian Legal Resource Centre, Hong Kong, China, March 2004, ISBN 962-8161-0509, 125pp.
The right to speak loudly brings together Basil Fernando’s personal reflections on various human rights issues of serious concern for South East Asia, such as torture, independence of the judiciary, impunity, corruption, and victims’ rights, among others. Fernando is a well-known human rights activist, and as director of the Hong Kong-based Asian Human Rights Commission, he has championed the rule of law in many Asian countries. In The right to speak loudly Fernando shares with the reader his many years of hands-on experience with human rights issues in Hong Kong, Cambodia and Sri Lanka.
The right to speak loudly comprises seventeen chapters. Chapters one to four focus on freedom of speech; social change and the rule of law; torture in police custody; and impunity. Chapters five to seven concern the human rights situation in Hong Kong, with an interesting recollection and analysis of the 1 July 2004 ‘pro-democracy march’, which saw around one million persons taking to the streets and demanding democratic change, universal suffrage and the preservation of basic human rights guarantees in Hong Kong. In chapter eight, Fernando reflects on features of certain ‘new authoritarian regimes’, while chapters nine to twelve, fourteen and sixteen focus on specific issues of concern in Sri Lanka, such as enforced disappearances and the lack of proper morgue facilities. In chapters thirteen, fifteen and seventeen Fernando considers the deterioration of law enforcement agencies in Asia, reviews Asian frameworks for governance, and comments on the deterioration of the Indian justice system.
In chapter four, entitled ‘Impunity as a cause of poverty’, Fernando presents perhaps one of the more interesting arguments of his book: “Whereas poverty is widely held to be the biggest problem facing most parts of the world today, relatively few persons recognise how poverty is caused by impunity” (p. 17). He contends that, “The tendency has been to treat impunity as a problem of some importance, but not as a key to unlock the reasons for more serious problems of economic deprivation” and that “wherever there is increasing poverty, there is deepening impunity” as well as ‘institutionalised corruption’ (p. 17). Fernando goes further to argue that the main development agencies “pour money into institutions from which it drains out of innumerable holes, rather than reaching its intended recipients” (p. 17). He then cites relevant examples from Burma, Cambodia, India, Indonesia and Sri Lanka, and urges that concerned agencies should direct more funds towards the building of effective institutions and the elimination of impunity and institutionalized corruption. This in turn would make development aid implementation more effective, and benefit those most in need. Fernando’s evident frustration over this issue is quite understandable. Corruption has to be recognized among the main obstacles to democracy, the rule of law, economic development and the full enjoyment of human rights. In ‘Some features of the new authoritarianism’ (chapter eight), Fernando warns that certain corrupt authoritarian regimes manipulate poverty into a political issue that relegates the poor to the status of ‘political slaves’, because institutions tend to cater exclusively to those “who have demonstrated political allegiance” (p. 36).
One could mention that, at the United Nations level, Ms. Christy Mbonu, Alternate Expert Member of the UN Sub-Commission for the Promotion and Protection of Human Rights, echoed this link in her 2003 working paper on “Corruption and its impact on the full enjoyment of human rights, in particular economic, social and cultural rights”. She observed in that paper that
In many societies, bad leadership breeds corruption and poverty. Unfortunately, poverty itself induces corruption in the societies. Everywhere corruption is frowned at, yet, in many countries, corruption thrives, and becomes systemic or endemic; it becomes a way of life. In some it is blatant and crude; in others it may be refined and indeed camouflaged in public relations budgets. Whether open, endemic or systemic, blatant or polished, corruption has disastrous effects on society generally and on most vulnerable groups in particular. … Corruption creates poverty, which in turn engenders denial of economic, political, social, civil and cultural rights.
In other essays, Fernando urges an empowering of the poor with better means to defend their rights – above all the right to seek and obtain adequate remedy for harm suffered – in order to free society from the shackles of corruption, impunity and poverty. He argues that, “Any attempt to alleviate rural poverty must include a strategy for protection of those persons seeking to defend their rights” (p. 21). The theme of victims’ rights runs through Fernando’s essays and he touches upon such issues as the enjoyment of available remedies, equitable redress, forms of reconciliation, access to justice and monetary compensation (pp. 43, 51, 57, 65, inter alia). While Fernando approaches these matters exclusively from the domestic angle of his extensive Sri Lankan experience, his arguments in favour of granting crime victims some basic forms of redress find support in many international standards and are of universal relevance. In this connection, one could mention that the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, affirms that victims of crime are entitled to have access to justice, to obtain prompt redress and that the related formal or informal procedures should be expeditious, fair, inexpensive and accessible. The Declaration also underlines that victims should receive material, medical, psychological and social assistance as part of their right to redress. In cases where public officials or other agents acting in an official or quasi-official capacity have violated domestic criminal law–a concern Fernando voices all throughout his book–the Declaration provides that victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. The Declaration also encourages States to incorporate into their national law norms proscribing abuses of power and providing remedies to victims of such abuses, as well as to establish funds for the compensation of crime victims, and to include restitution as one of the sentencing options in criminal cases. Better conformity of State legislation and practice with these minimum standards would provide a good platform upon which to improve the rights of victims in South East Asian countries.
The right to speak loudly also comprises four appendices, including an interesting draft document proposing the establishment of a public complaints procedure against the police, which Fernando submitted to the Sri Lankan National Police Commission; as well as a comment by the Asian Human Rights Commission challenging the 2003 Sri Lankan Bill on Organized Crime as possibly resulting in the “encouraging and rewarding of torture”–both well worth reading.
Fernando has a talent for homing in on difficult human rights issues while at the same time keeping the victim in central focus. The right to speak loudly makes refreshing reading because it reflects well Fernando’s commendable enthusiasm and commitment to the human rights cause in Asia.
