HIV/AIDS is a serious health challenge, and the law itself is in crisis in responding to this epidemic in the Asia and the Pacific Region. The legal impediments to universal access, which also enhance stigma and discrimination, were discussed at length at the recently concluded 10th International Congress on AIDS in Asia and the Pacific (10th ICAAP) in Busan, South Korea.
Whether it was Dr JVR Prasada Rao, Senior Adviser to UNAIDS Executive Director, or Kay Thi Win, a sex worker from Myanmar, or Jenithaa from Malaysia, or Karyn Kaplan, Director Policy and Development, Thai AIDS Treatment Action Group, all diverse voices univocally agreed that an adverse legal environment is a serious impediment for vulnerable populations of men, women and children and condemned the legal impediments to universal access to HIV treatment, prevention and care, which also enhance stigma and discrimination.
For 30 years HIV has exposed health and social inequalities across the globe, abetted by a disabling legal environment criminalizing vulnerable communities. More women than men have got infected with HIV during the last decade. Dr Rao gave examples of some repressive laws existing in the Asia Pacific region that fail to protect women and children against violence and exploitation: mandatory pre marital HIV testing laws in China and Malaysia; non consensual abortion and forced sterilization of women living with HIV in Vietnam and Sri Lanka; laws banning same sex relationship in most countries. All these laws impede treatment access and prevent in reaching out to the affected communities with prevention tools.
Karyn made a passionate appeal to reform drug control laws. According to her, "Here in Asia, where more than half the world’s opiate users live, home to over 16 million drug users and at least 6.5 million injectors, where HIV prevalence among injectors is among the highest in the world, where the HIV epidemic is largely driven by unsafe injecting practices, where less than 10% of heroin injectors are on methadone, and where injectors can access an average of just 2 sterile syringes per month, we also lack 90% of the resources necessary to provide the essential harm reduction services necessary for realizing the right to health. But while resources are a significant challenge, unless and until we address and remove the legal and policy barriers to accessing services for people who use drugs, investing in harm reduction is tantamount to flushing your money down the toilet. No smart investor in harm reduction would ignore the repressive legal and policy environments in which harm reduction services in Asia take place. Strict law enforcement practices, the constant threat of police arrest, violence, and incarceration at harm reduction drop-in centers/methadone clinics and other places where people using drugs receive services and the failure to respect, protect and fulfil human rights for marginalized groups, collude to undermine and even undo the benefits of all the harm reduction services."
Dr Rao conceded that although the law in books and practice is meant to protect the socially disadvantaged, one of the main reasons for limited impact of global efforts to stop the spread of HIV/AIDS is that the law itself is not responding to the situation. Most countries in the Asia Pacific region have laws that criminalize sex work, same sex relationships and drug use. This has had a profoundly negative impact on the epidemic. Traditional religious laws and practices have further distorted the situation. The Sharia penalty for same sex behaviour may amount to death in some parts of Pakistan, and beating/flogging in many other countries. Very often countries invoke customary religious laws to punish unprotected groups. A secular body like the Election Commission of Philippines invoked the Bible and Koran to justify refusal of registering a political Party of sexual minorities in 2009.
Kay Thi Win and Jenithaa asserted that criminalization of drug users and sex workers contributes to an environment which violates basic principles of human rights, and blocks access to treatment services. They pleaded for laws that are community friendly and not repressive and said that unless sex work is legalized, stigma will not be removed. They found it strange that men want sex but pronounce it illegal. State violence in both these countries (and in other countries too) is high. According to Kay Thi, the legal environment in Myanmar is so repressive for sex workers that it is best to never recruit a lawyer to fight the case, and never say no to any of the police accusations—whether true or false. She explained that if the sex workers do not refute the police charges they are jailed for 3 months, but if they contradict false police accusations they get booked for 1 year. Also, if they recruit a lawyer to fight their case, the final hearing takes so long that they remain in jail for much more than one year (as happened with one of her friends who spent 13 months in jail by hiring a lawyer).
Karyn rues that "Although the Global Commission on Drug Policy, has categorically accepted that the Global War on Drugs has failed, with devastating consequences for individuals and societies around the world, still human rights abuses rather than treatment are characteristic of the dominant approaches used by governments to control drugs in the Asia Pacific region. Not only are massive human rights violations taking place under the aegis of public security and drug control, but these methods are also failing to achieve their own goals of reducing and deterring drug use. There are more people using different drugs than ever; however we have less capacity to effectively address their harms."
The law seems to be absent from areas where strong legal framework is needed. There is lack of anti discrimination laws; laws protecting environment in work place; laws guaranteeing continuous treatment access and social protection; laws that protect women’s inheritance as well as sexual and reproductive health rights. There needs to be greater thrust to enact such protective laws in many countries of the region. In India, the HIV Bill, which was drafted in 2004, has yet to see the light of the day.
There is evidence to believe that a supportive legal environment can make HIV responses more effective. Laws can act as social determinants of health and can have a profound impact. Countries like Australia and Switzerland, where criminalizing drug laws have been reformed or removed, boast of low HIV prevalence, whereas countries where governments have failed to remove these outdated laws have extraordinarily high prevalence rates, such as Thailand, China or Vietnam.
Dr Rao pleaded that it is high time the governments proactively try to bring legal reforms and implement constitutional guarantee of equality; repeal abusive laws; stop criminalizing sex work, drug use and same sex behaviour. Use of criminal laws to impose moral values creates problems in a diverse and evolving society.
As Reverend Martin Luther King Jr. said, "Justice too long delayed is justice denied…Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed."
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