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by Srimega Wijeratne

Protection of the Rights of the Elders Act No. 9 of 2000 had been in the statute book since May 2000. Over 14 months have elapsed but the law has not yet been brought into operation by a gazette notification by the Minister in charge of Social Service as required by Section 1 of the Act.

This important piece of social legislation that will benefit over two million elders over sixty years of age was a unique piece of consensual legislation. In fact, it was during the parliamentary debate on this bill that the Leader of the Opposition stated that on issues of national importance there should be a consensual approach and thereafter participated in discussions with the government on the draft constitutional proposals.

The Elders Law, which took a long gestation period of three years and sustained efforts of a band of dedicated officials in the Social Service Ministry and experts from the HelpAge, should be made operational without further delay.

For the past few months, several articles including few by the writer have pleaded for the implementation of the Law. Four months ago, the Deputy Chairman of the National Development Council wrote to the then Minister of Social Services requesting the implementation of the law.

The custodian of the law, the Social Service Department, not particularly famous for quick, efficient action doled out the standard departmental excuse for inaction i.e. the law had been referred to the Attorney General for advice. The normal practice is to refer a draft law to the Attorney General before presentation in Parliament and not delay implementation on that pretext.

After the unanimous enactment of the law in May 2000, two United Nations Days of the Older Persons on 1 October 2000 and 2001 passed us. No one disputes that the elders phenomenon is the most important demoghrapic, social and economic challenge that Sri Lanka is facing next perhaps to the fratricidal war. Then why is this lethargy and reluctance to implement a law already adopted by the Parliament?

May be elders are a voiceless people. The social fabric where elders were respected advisors with their wealth of experience had ruptured in the globalize economy. But more importantly, apart from the government pensioners, elders are not organized.

Their voice is not heard en block like other social and religious groups. But this situation is bound to change as has happened in the USA. The American Association of Retired Persons (AARP) has a membership of 32 million members. It is the most important lobby in the United States. No President or government could afford to ignore them.

Ken Dytchwald, one of the world's leading authorities on age related issues describes the AARP as the "world's second largest non-profit organization after the Catholic Church". AARP's annual budget is approximately US$ 550 million.

The potential for Sri Lankan elders to organize to advocate the rights of the elders is tremendous. Demographic projections show that 2 million elders, or one sixth of the national electorate, are over 60 years of age. If the elders appeal to the political leaders as a group, the latter are bound to listen.

The time has come for them to clamour for the implementation of the Elders Law, which is purely humanitarian and non-political. The activities related to implementation of the law should be entrusted to the UNFPA who could garner the support of HelpAge and other elder related civil society organizations.

The Elders Law has some legal drafting warts but they could be corrected in the course of implementation. Some of the salient features of the Law, which I have highlighted earlier, are restated for those who missed reading them.

Elders Law

The thrust of the new law has failed to escape from the stereotype perceptions regarding ageing. The law bunches everyone over sixty as elders, differing from the internationally accepted norm of sixty-five years.

The Sri Lankan Law has failed to differentiate between young elders (up to 75 years) who are expected to contribute to the development with their accumulated knowledge and experience and the frail elders who are more dependent on care providers.

Despite this shortcomings the Elders law provides for the first time in Sri Lanka, a legal mechanism for indigent elders to receive sustenance from neglecting children but leaves the elders to devise their own ways to live with self-respect, independence and dignity (Section 12).

The National Council of Elders, the policy making body established under the law is entrusted with the responsibility of assisting elders to achieve the stated objectives. The Council will mobilize the support and active participation of the voluntary associations and persons in furtherance of its objectives (Part III).

The National Council for Elders

The apex policy making body consist of fifteen members three of whom are ex-officio members while the balance twelve would be appointed by the President in consultation with the minister, three of whom would be elders, five would represent voluntary organizations providing services to elders, and the balance four from among professionals the public and corporate officials. The Secretary of the Ministry of Social Services, who is an ex-officio member, will be the chairman and his deputy would be the vice-chairman. In addition to the principal function of the council as set out in Section 12 of the Law of Promotion and protection of the rights of the elders, the council is entrusted with an exhaustive list of functions to develop an elder supportive culture in Sri Lanka.

The financing of the activities of the council would be from a fund established for the purpose titled National Fund for the Welfare of the Elders which inter alia could even receive contributions from foreign donors. The Council is vested with unique powers of rule making to further its objectives. Under Section 35 (2), the Minister shall approve every rule made by the council and notification of such approval shall be published in the gazette. Thus it is mandatory for the Minister to approve the rules promulgated by the council.

Non-discrimination

The Elders Law is a significant addition to the existing human rights related legal regime in Sri Lanka. The Sri Lanka Constitution, the existing or the proposed, does not identify the elderly as a vulnerable group, like women and children needing special protection. The new law provides for non-discrimination of the elders in relation to use of public space (Section 15 (3)) but leaves out the areas of employment and education. The provision is inadequate to meet the standards of non-discrimination envisaged in the 1991 UN declaration on the elderly or even those provided by the stillborn Equal Opportunity Law of Sri Lanka.

Maintenance from children

Section 15 castes the primary responsibility on children to maintain their indigent parents. In the absence of sibling caregivers, the state will provide care to the destitute elders. The enforceable duty cast on the children (Section 25) to provide care and look into the needs of the parents envisages the family to be the natural and basic unit of our society.

International Human rights instruments recognize the family as the natural and fundamental group in human society. However, the modern socio-economic forces of urbanization, migration and globalization have disrupted the traditional family not only in the West but also in the Asian countries where the family was the traditional care provider for the elderly.

Furthermore, the increasing emphasis on individual freedoms of choice have unleashed contradictory forces of single parenthood, same sex marriage which are immical to elderly care based on the foundation of family. In the wake of globalization, it would be a matter of time before the matrimonial norms of the global leaders creep in to the societies of less affluent countries. They will follow the same road taken by the Big Mac and Diet Cola.

Claims board

Part VI of the Elders law provide for the establishment of one or more Boards on inquire into claims for maintenance forms or on behalf of indigent parents. Upon receipt of a claim the board is authorized to summon the children and after full consideration of all relevant facts either conciliate or make a just and equitable maintenance order. Among the relevant facts that will be considered by the Board are the financial ability of the siblings and whether the parents have on their part neglected or abandoned their siblings when in need of parental care.

The maintenance orders of the Board are legally enforceable in the same manner as the maintenance orders of a Magistrate Court under the Maintenance Ordinance. Interference with the lawful process of the Board or committing any act to bring the Board or any one of its members to disrepute attracts persecution as an offence of contempt committed against or in disrespect of the Court of Appeal.

The Claims Board no doubt is on paper an effective claims investigation and enforcement mechanism with sufficient teeth. The members of the Board are deemed to be public servants within the meaning of the Penal Code but the proceedings before the board is deemed to be judicial proceedings. The Elders' Law gestated in draft form for nearly two years but was kept confidential and was not a subject of public debate.

Among the peripheral views expressed during the limited debate was the criticism on the provision for claims against the children. It was contended that in Sri Lanka, siblings naturally looked after their elderly parents and legal compulsion would disturb prevailing intergenerational amity. This is likely to be false fear as the board will investigate claims of indigent parents who are neglected.

The elderly parents who are economically independent or who are looked after well by the children will have no grounds to complain. In any event, existence of a claims board will act as a 'shame mechanism' and dissuade affluent children from neglecting their parents.

The Elders Law is silent about the appointing authority and the criteria of membership of the board. Given the human rights related quasi-judicial nature of the functions of the board, the members of the board should be neutral, non-political and purely humanitarian.

The failure to stipulate the criteria of membership, tenure of membership, the mode of removal and above all non-identification of the appointing authority are cardinal omissions that would call for amending legislation when the Elders Law comes into operation.

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