In June 2011 the UN General Assembly Special Session on HIV/AIDS (UNGASS) made a specific commitment to include legal services programs in national HIV and AIDS strategies. This is contained in clause 80 of the Political Declaration on HIV/AIDS (see Annex I, Background Paper). It is the job of civil society to hold governments and donors to account in meeting their political commitments. It is important to refer to this specific commitment when making arguments for resources to be allocated to HIV-related legal services – whether these are implemented by the government itself or by non-government organizations.
The UN Economic and Social Commission for Asia and the Pacific (ESCAP) convened a meeting from 6-8 February 2012 to review progress in meeting the UNGASS commitments (See Report of the Asia-Pacific High Level Intergovernmental Meeting on the Assessment of Progress against Commitments
6 in the Political Declaration on HIV/AIDS and the Millennium Development Goals E/ESCAP/HIV/IGM.1/4. 13 February 2012. The meeting endorsed the Regional Framework to Support the Implementation of International and Region-specific Commitments – see Annex IV.) States that are members of ESCAP will meet in mid-2012 to pass a resolution on HIV and the law. It is hoped that the resolution will provide further support to Resolution 67/9 by calling upon members and associate members to commit to participatory and inclusive national reviews of their laws and law enforcement practices, to ensure that they are supportive of universal access to HIV services.
The Global Commission on HIV and the Law is an initiative led by UNDP on behalf of the UNAIDS family. The Commission’s report is scheduled for release in July 2012. It will be useful to refer to the recommendations made in the forthcoming report in advocacy with governments.
The UNAIDS Strategy 2011-2015 (Getting to Zero) includes specific commitments to support HIV-related legal services as an essential program in the creation of enabling legal environments for effective HIV responses
A survey was sent out to all participants attending this Regional Consultation. The survey results are provided in the Background Paper (Annex I). Some additional data provided during the consultation is also included in the Background Paper.
The purpose of conducting the survey was to build a map of where HIV-related legal services are being delivered in Asia and the Pacific, and to document the types of services being delivered, who is funding legal services, common challenges, and success stories. Survey responses were not received from every country, so there are some gaps.
The survey highlighted the diversity of legal services operating in the region.
Each country has a different approach. The survey provided an opportunity to consider the relative merits of providing HIV-related legal services through government agencies or non-government organizations (NGOs).
Typically, HIV-related legal services in Asia and the Pacific are operated by small NGOs, with only one or two lawyers on staff. Some HIV-related legal services are also provided through government legal aid systems, e.g. in India and Vietnam.
The delivery of HIV-related legal services through government legal aid systems helps to bring HIV into the mainstream and potentially offers a long term, sustainable solution.
However, a key issue to consider is the willingness of sex workers, people who use drugs, transgender people and men who have sex with men to use government funded services if they distrust government authorities. This is particularly true if a person needs legal help to complain about a government agency or service. NGOs are more likely than government services to take up controversial cases, and to challenge government decisions.
Success stories described in survey responses included cases relating to:
Employment discrimination
Police misconduct
Rights of prisoners
Compensation rights of blood transfusion recipients
Identity documents
Family law disputes
Rights of children to attend schools
Violence protection orders for women.
7 Generally, successful cases were the result of negotiated solutions, rather than winning cases in the courtroom.
Common challenges for HIV-related legal services include stigma and discrimination experienced within the justice system, the disengagement of both communities and the legal profession, and lack of funding. Lawyers often do not want to work on HIV issues because of the stigma and lack of financial reward.
Clients are also reluctant to come forward to seek legal help. Communities often lack confidence that the legal system will deliver a practical resolution to their immediate problems. Legal services are challenged to create demand for HIV-related services.
Points raised in questions and discussion: Survey responses
It is a very tough funding environment. Engaging with communities, outreach and legal literacy programmes are key to generating demand. RTI has experience in supporting the community outreach work of the Yunnan Daytop Legal Service in China. It has been difficult to attract funders to support this work.
In the Philippines, the NGO Action for Health Initiatives (ACHIEVE) is involved in training of lawyers and building a network of lawyers interested in HIV through government law organizations and institutions, alternative law groups, private law firms and law schools. ACHIEVE has also proposed that a centralized legal referral mechanism be established. However, HIV-related issues are generally a low priority issue for the government.
In China, Premier Wen Jiabao called for the revision of discriminatory laws and policies at a World AIDS Day meeting in 2011. His comments were made in response to reports of the first three employment discrimination cases that have been litigated in China. Each case involved a person living with HIV who had been refused employment as a teacher because of failure to pass a public service medical examination, which automatically excludes people living with HIV. The three court cases in China did not succeed at trial, but placed the issue in the spotlight. To assist the policy reform process, RTI conducted research on the legal environment. The International Labor Office (ILO) sent this research to the Ministry of Labor, which shared the findings with the Ministry of Health.
In Vietnam, it is not easy for NGOs to be involved in providing legal services if the government does not officially recognize them. People are wary of becoming affiliated with NGOs unless they are officially recognized. There is not a good understanding among people in government of the role of community-based organizations in reaching communities. From the perspective of government, legal aid services provided by NGOs should not be recognized if they are duplicating services provided by the state.
In Malaysia there has been a successful and enduring partnership between an NGO (PT Foundation) and the Malaysian Bar Council. The needs of people living with HIV are becoming more complex, particularly in relation to discrimination in the workplace. Organizations do not necessarily have the right expertise and resources to respond to demand. Services need to evolve to respond to new needs.
It is important for legal services to have a voice on policy issues. UNAIDS can facilitate more opportunities to access policy dialogues. It may be easier for organizations to attract funding if they have a higher profile in advocating for policy issues. The UN has conducted research looking at human rights activities in HIV programs supported by the Global Fund to Fight AIDS, Tuberculosis and
8 Malaria (the Global Fund). Legal service projects are less common than other human rights activities funded by the Global Fund, such as stigma and discrimination reduction projects and legal training of health care workers.
In Thailand it can be difficult to find lawyers with expertise in intellectual property law who are not already working for drug companies. The knowledge of the judiciary can be lacking in relation to drug registration procedures and other technical issues that affect access to medicines. The judiciary and legal profession need education so that there is an appropriate focus on human rights and public health, rather than only on trade.
LBH Masyarakat reaches communities through outreach programs in Jakarta. A challenge for this legal service is to ensure that outreach workers have sufficient knowledge about the law, policy processes and human rights. The legal and policy context in Indonesia is complex. The practices of government bureaucracies affect the way laws and policies are actually implemented.
Court costs present a significant financial obstacle for poor people seeking to access justice in India. It is challenging working in countries such as India that have dual legal systems comprising local customary or religious laws, as well as the formal laws introduced by colonial powers. In Calcutta, Delhi and Mumbai self-regulatory boards have been established by sex workers to regulate their own communities and to address issues such as involvement of underage girls in the sale of sex.
In Papua New Guinea there are a small number of lawyers who provide legal aid.
We must examine why there are not enough lawyers providing legal support for HIV-related cases. Lawyers in private practice are highly paid compared to most other people and a gap exists between people working in NGOs and private practice. The challenge is to make working in the legal aid field a more attractive option for lawyers. The Papua New Guinea Development Law Association (PNGDLA) is exploring options for engaging lawyers on retainer to attend court in the provinces where PNGDLA has no presence. The government funds private lawyers to take on HIV-related cases in one province (Morobe), but this is an isolated example.
The Pacific Islands AIDS Foundation (PIAF) has relied on funding from the Global Fund for its legal project. The legal project commenced in 2003 and has had a strong focus on training to raise awareness about HIV-related legal issues. As countries introduce new HIV laws our focus will shift to explaining these new laws, as has been the case in Fiji, which now has an HIV Decree. PIAF is concerned that funding to sustain the legal service will be difficult to obtain in future years because the Global Fund has announced that there will be no Round 11 grants.