The throne of development

Starting from zero: leave your Western standards out of the suitcase. They may not be useful in India. A simple visit to the loo is not so automatic anymore. It may require some thought, planning and… flexibility. I confess this was one of my first challenges when I saw myself installed in the Paying Guest Accommodation (PG) owned by a family from Tamil Nadu when I came from London to Bangalore. Six months later the issue came back as a topic of discussion: a UN Report divulged by national and international press stated that “India has far more mobile phones than toilets”. From BBC to Al Jazeera, the world seemed to be concerned with Indian crisis of sanitation. The country is now in the spotlight both for its potential as an emerging economic power and for misplacing priorities. Click here to watch Al Jazeera story.

The numbers: 366 million people (31 per cent of the population) in India had access to improved sanitation in 2008. And 545 million mobile phones are now connected. The UN claims: we must accelerate the process of creating access to toilets in order to meet the Millennium Development Goal (MDG) on sanitation by 2015. Visiting the loo is definitely a symbol of progress.

One side of this debate is focused on the universal right to have access to healthy sanitary conditions and the consequences of not having it. Without clean water, the population is obviously exposed to countless diseases. At home or even at schools, children are used do number 1 and number 2 in the open, sometimes in the middle of the garbage.

The other side of this debate is cultural and ideological. Local practices must be understood in particular context. Without an analysis of local meanings, the supposed universality of Human Rights may be read as an arrogant process that establish differences between ‘us’, the developed, and ‘them’, the barbarians. A local newspaper maintains the debate on the issue. The author states: “This statistics must be true for the developed world also. You do not need common sense to ascertain the veracity of this since in a family unit of four there could at the most be four mobile phones while there could be only two toilets”. Check the article and comments here.

Beyond the hygiene theme, there are local cultural issues implicit in this discussion. What is public or private does not seem to be so obvious here.

Gabi Goulart Mora, from Bangalore, India.

A Critical Appraisal of the Child and Adolescent Statute – ECA (1990) and the Brazilian System and Policies Toward the Protection of Children’s Rights

Part VIII – 1988 Brazilian Federal Constitution: the first step in a long way

José Anastácio de Sousa Aguiar

The 1988 Brazilian federal Constitution was resulted from the process of re-democratization of the country, led to a full national debate, with the active participation of civil society. As a consequence, social questions and the rights of children and adolescents were given an unprecedented treatment in the present Constitution, compared with previous charters.

The 1988 Constitution and the Child and Adolescent Statute expressed a comprehensive view of the human rights of children and adolescents, including the indivisibility of these rights, their reciprocal implementation and the equal importance of all the rights, whether civil, political, social, economic or cultural. The article 227 (1) of the Constitution guarantees children and adolescents political, civil, social, economic and cultural rights, according to the following principles: (a) full protection; (b) absolute priority; (c) responsibility shared between the family, society and the State; and (d) children and adolescents as rights-bearers.

Law n.º 8.069/90 (ECA): is it appropriate to Brazilian reality?

Encouraged by the UN Committee on the Rights of the Child, as Philip Alston and John Tobin (2005) (2) argue, and reinforced by the civil society pressure, Brazil has adopted a comprehensive law (code) or so-called ECA. It is important to bear in mind, as UNICEF (2007) (3) assures, that ‘Code’ refers to a single piece of legislation intended to cover an entire subject or area of law. In principle, then, a children’s code should cover all legal matters concerning children, or at least all those covered by the CRC. Among these are the following: civil rights, such as the right to nationality and freedom of thought and association; social rights, such as the right to education, health care and an adequate standard of living and working conditions; the relationship between children and their families; alternative family care; protection against abuse, neglect and exploitation; juvenile justice; standing and participation in legal and administrative proceedings; and general principles such as the ‘best interests’ principle and the right to development.

ECA, Law No. 8.069, was passed in 1990, revoking the previous Code of Minors and reconciling the sub-constitutional norms to the new set of constitutional principles. The ECA is designed to regulate the juridical situation of persons up to the age of 18 years, defining as a child a person up to the age of 12 years and someone aged between 12 and 18 years as an adolescent. (4)

The first step for the full implementation of CRC principles was done. It is important to keep in mind that implementation, as Trevor Buck (2005) (5) suggests, is the process whereby States parties take action to ensure the realization of all rights in the Convention for all children in their jurisdiction. Actually, the article 4 of CRC requires States parties to take “all appropriate legislative, administrative and other measures” for implementation of the rights contained therein, and ECA is the legislative measure to implement CRC principles.

It is important to be said that the ECA statute guarantees children and adolescents under Brazilian jurisdiction all the rights provided for in the CRC and emphasizes the democratic principle of the participation and control of civil society in formulating and implementing policies and initiatives designed to promote and defend rights. This new paradigm promotes the doctrine of full protection to the child and adolescent and recognizes a logic and a set of principles of its own directed at ensuring the prevalence and primacy of the interests of the child and adolescent. In their capacity as rights-bearers in a special stage of development, the right to special protection is guaranteed to children and adolescents. From the human rights standpoint, the 1988 Constitution and the Child and Adolescent Statute expressed a comprehensive view of the human rights of children and adolescents, including the indivisibility of these rights, their reciprocal implementation and the equal importance of all the rights, whether civil, political, social, economic or cultural. (6)

ECA has replaced the old National Policy of Child Welfare and has instituted a new Policy of Assistance for the Rights of the Child and Adolescent, which is based on two basic guidelines coming from the 1988 federal Constitution (art. 227, paragraph 7): political-administrative decentralization and popular participation.

[1] Article 227 of the 1988 Brazilian Constitution lays down that: “It is the duty of the family, society, and the State to guarantee children and adolescents, with absolute priority, the right to life, health, food, education, leisure, professional training, culture, dignity, respect, liberty and family and community life, besides maintaining them safe from any form of negligence, discrimination, exploitation, violence, cruelty and oppression.”

 [2] In the context of a State whose authorities or traditions attach great importance to the constitutional expression or recognition of social policy and related objectives, there is a strong case to be made that serious consideration should be given to such a measure following ratification of the Convention. This approach explains why the Committee on the Rights of the Child has on occasion welcomed instances in which States have incorporated sections on children’s rights into their national constitutions and has sometimes encouraged States without such provisions, to consider doing so. ALSTON, Philip and TOBIN, John – Laying the Foundations For Children’s Rights – UNICEF – Italy – 2005, p. 21.

 [3] UNICEF – Innocenti Research Centre – Op. cit., p. 2.

(4) Art. 2º Considera-se criança, para os efeitos desta Lei, a pessoa até doze anos de idade incompletos, e adolescente aquela entre doze e dezoito anos de idade. (Art. 2. For the purposes of this Law, the child is considered as the person who has not yet completed twelve years of age and the adolescent as that between twelve and eighteen years of age).

 [5] BUCK, Trevor – Op. cit., p. 54.

[6] Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties (2003) – Brazil, p. 10.