The more one studies the 13th amendment to the Constitution, the more one realizes how completely potty it is. I am not sure though whether this lunacy is entirely the fault of J R Jayewardene, even though I have little doubt that his is the primary responsibility for the failure to consider principles at all in formulating legislation, and indeed policies in general. Highlighting process rather than principle however has been a feature of most constitutions based on the British model, perhaps because the British never had a Constitution, and have muddled along on the basis of practicality.

The particular genius of the British is that they did very well on that basis. Others came a cropper however when they tried to emulate them, which is why countries like ours should have rather studied the American Constitution. That was based on the most enlightened political principles, albeit at a time when social equity was not as well developed a concept as it became after industrialization.

The guiding principle of the American Constitution was that power should be limited to the purposes for which power is legitimately exercised. By legitimately is meant the promotion of the interests of the people, since it was at that period that the idea first developed, after Greek and Roman Republic times, that the state belonged to the people, rather than to a monarch. Thus the American Constitution sits well with the principle of subsidiarity, which is that power should be exercised in any particular respect by the smallest group affected by that power, to the extent that its exercising such power should not adversely affect others.

Modern thinking, in the context of the breakdown of local communities consequent upon industrialization and increasing labour migration, includes within the concept of the legitimate exercise of power the enhancement of state mechanisms to provide social care and welfare. State health and education systems, or compulsory pension schemes, unthinkable two centuries back when humane outcomes in such fields was the business of charity, are now seen as a right. That right, it should be noted, also benefits society as a whole, for it promotes greater productivity through fulfilling the potential of all citizens – though such a utilitarian outcome, it cannot be stressed enough, is not the purpose of such social care, but only an ancillary benefit.

This lengthy preamble, which will I hope provoke some reflection, is to set in the context of national needs the question of how the care of children should be promoted. This is based at present on several enactments that have led to some confusion, and that is why it is now agreed that the relevant legislation should be amended. To do so without some consideration of the principles involved, and understanding of the practicalities of enforcement, would however lead to even greater confusion.

The basic instrument of Child Care is the Ordinance of 1939, which provides for probation services. I have noted previously the argument that the concept there is the British Poor Law concept, which seemed to attribute fault to those in need of care, and therefore a punitive approach. This seems at odds with the more inclusive approach the State adopted to Education, which is of course another vital element in the care of Children.

In 1987 the Thirteenth Amendment handed over Social Services and Rehabilitation to the Provincial Councils, and introduced as the first of four items in this regard ‘Probation and Child Care Services’. However it left ‘National Policy on all Subjects and Functions’ in the hands of the Central Government.

This makes sense because Policy, at least with regard to most issues, cannot vary in different areas of the country. However since then there has been no clear thinking about how the State can formulate policy – though this should be with due consultation of local concerns – and ensure its fulfillment, whilst strengthening local mechanisms to undertake day to day implementation.

One problem is that we have not yet worked out how to monitor activity and maintain standards, without trying to engage in that activity ourselves. This, as I have noted in other contexts, is what is destroying our education system, where the obligation of the state to make sure that everyone gets a decent education has turned into the determination to provide everyone with education through a state system, regardless of whether it is good or bad, or whether its recipients feel obliged to supplement what they receive, paying vast sums for the purpose to those whom the state also pays to provide the service deemed insufficient.

With regard to Child Care, it was decided, after Probation had been devolved to the Provinces, that there was need of a central Probation Department, to develop policy and help the Provinces implement this. As far as I can see however, this Department has no formal powers, and its effectiveness is based on personal initiatives and contacts, which is doubtless why we see such variations in the quality of services on offer.

What does have statutory powers is the National Child Protection Agency which was set up in the nineties, and which has a clear mandate to protect children islandwide. However no system was put in place to ensure coordination between the NCPA and either the national Probation Department or provincial agencies.

Fortunately the new Secretary to the Ministry of Child Development and Women’s Empowerment has proposed a coordinating mechanism at Divisional Secretariat level, which is clearly the right level if monitoring is to be effective. Fortunately the Ministry of Public Administration has agreed to the proposal to set up a Women and Children’s Unit in every Divisional Secretariat, and I hope that the necessary cadre provisions will be created and filled in the near future. But it is also necessary that the new Act deals with the issues coherently, and ensures that national polices are fulfilled effectively for the benefit of all children.

The Island 21 Oct 2012 – http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=64271

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