Sujarijvorakul (Department of People's Rights Protection and Legal Aid, the Office of the Attorney General, Thailand), Mr. Tran Huy Lieu (Ministry of Justice, Vietnam), Ms. Ajeng Larasati (LBH Masyarakat, Indonesia), and Ms. Laya Medhini (ARTICLE 39 Center for Legal Aid and Rights, India).
Mr. Nuttawut Teachatanawat (RTI International) The panel was asked to address the following issues:
• What progress is being made in scaling-up HIV-related legal services?
• What issues are faced in obtaining funding to sustain HIV-related legal
9 services for the long term?
• What strategies should be used to ensure more people living with HIV and key populations have greater access to justice?
Contextual factors affecting funding opportunities include the reduction of contributions to the Global Fund, the financial crisis currently affecting high-income donor countries, and the trend towards decentralization of programs and budgets in low and middle-income countries.
Mrs Nittha Sujarijvorakul (Office of the Attorney General, Thailand)
HIV-related legal protections were first addressed in the National HIV/AIDS Protection and Control Plan 1992-1996. Regulations were introduced to ensure non-discrimination and to protect the rights of people living with HIV and the general public. Mechanisms for receiving and addressing complaints were established.
The Department of Legal Aid provides services to people living with HIV in the 76 provinces of Thailand. The Department of Legal Aid was assigned responsibility for legal protections relating to HIV by the National AIDS Committee. Activities included receiving complaints and disseminating knowledge. The Ministry of Public Health provided funding to the Office of the Attorney General under successive five-year plans until 2007. The budget was very limited until 2007.
Since 2007 there has been a more integrated approach to planning under the National HIV/AIDS Plan, with many organizations and Ministries involved (e.g.
Education, Defence, Interior, Public Health, Justice, and Attorney General). There is now a specific budget allocated by the Office of the Attorney General for HIV-related legal activities.
Under the National HIV/AIDS Plan for 2012-2016, Thailand has adopted the UN theme of “Getting to zero” by 2016, with targets of zero new infections, zero deaths, and no discrimination or stigma. We aim to reduce human rights violations by at least 50 per cent.
The existing law protects citizens from discrimination on the grounds of a physical or health condition, and legal remedies are available from the civil and administrative courts. However, very few people make complaints. There are fewer than 10 cases per year. These complaints relate mostly to employment discrimination, or the rights of children to attend school. When we receive a complaint we consult with the director of the school or the manager of the company to resolve the case. Government agencies know that it is unlawful to discriminate on the grounds of HIV.
We have published materials to educate the public about the rights of people living with HIV. However, we found that very few people would take the publications because of fear of being associated with HIV. The public request information on protection from infection, including the rights of health care workers. More work is required to address attitudes and to educate the community to reduce stigma and discrimination.
Mr. Tran Huy Lieu (Ministry of Justice, Vietnam)
The Ministry of Justice recognizes the rights of people living with HIV to work, to access education, to have a family and to own property. On World AIDS Day the government committed to eliminating discrimination. There are several laws that protect the rights of people living with HIV including the Constitution, the HIV Law, Health Law and Family Law. The government’s HIV response requires
10 cooperation between different Ministries, including Ministry of Justice and Ministry of Health.
The Rights Protection Department within the Ministry of Justice is responsible for legal aid centers at district and sub-district levels. There are 242 offices that can provide legal aid to people living with HIV. The aim is to provide coverage for Vietnam’s 63 provinces through government systems.
Under Vietnam’s system it is not possible for government to provide resources to NGOs to provide legal aid services. NGOs need to find support from international agencies if they want to conduct legal aid activities. Government resources are focused on the public legal aid system. There are different levels of support provided by the government legal aid system depending on the nature of the legal problem. In some cases an attorney is provided for free to represent the citizen in court. In other cases, advice and support is provided, but there may not be a fully qualified lawyer available to represent the person.
The right to legal aid is established under the 2006 Law on Legal Aid.
Approximately 50 per cent of people in Vietnam are eligible for free legal aid.
People who are eligible include poor people, people who served in the military, people with a disability, victims of human trafficking and disadvantaged ethnic minorities. The government provides legal aid for civil and criminal cases, except for people with commercial or business law problems.
There are 305 government lawyers who work for the public and 8,000 officials who can provide basic legal advice. There are also 1,000 volunteers who provide free legal aid. Some lawyers from the private sector enjoy providing free legal aid.
Lawyers are prohibited from disclosing the HIV status of their clients without permission of the client.
There are obstacles to providing legal services to people living with HIV. They may be reluctant to meet with a government official, even if the official is offering free help. Many people simply do not know where to find a legal aid office. Some lawyers lack knowledge about HIV and do not have the understanding required to work sensitively with people living with HIV. Training is required.
Funding is a challenge. Many lawyers provide their services to poor people for free. The government may contribute to legal fees in some cases. However, overall funding is limited. International donors provided funding for the legal aid system from 2002-2009, but then they withdrew support. The government now relies on national budgets rather than international assistance.
The National Strategy on HIV/AIDS Prevention and Control 2011-2020 includes commitments to provide legal services and to improve the law. The Ministry of Justice plans to strengthen networks for providing HIV-related legal services over the next three years. The aim is to provide a system for the long term.
Ms. Ajeng Larasati (LBH Masyarakat, Indonesia)
LBH Masyarakat received support from IDLO to enable it to strengthen and expand its community legal empowerment model of legal services. LBH Masyarakat provides free legal aid for people living with HIV and key populations, including people who use drugs and sex workers. An emphasis is placed on raising awareness of legal rights in the community and training community members to be paralegals.
11 The number of people in need of legal aid is very high but we only have two lawyers. To handle the demand for legal services we developed a “shadow lawyer” approach, which involves use of paralegal staff to support clients to advocate for themselves.
The approach to scaling-up to reach more people has been conducted through training paralegals. In 2010, LBH Masyarakat reached six communities through 20 paralegals. Paralegals help to empower people to advocate for themselves, and to pass advocacy skills and legal knowledge on to others. People who have been reached by paralegals develop their own knowledge and skills and then empower other communities. It takes a long time to ensure community members have all the legal information required to handle cases of rights violations. For most people, their priority concerns are access to treatment and health care.
Legal and human rights issues are not their main focus in life.
Legal aid services are very limited in Indonesia. Some lawyers refuse to assist people who use drugs because they are considered to be criminals with no right to legal help.
After the funding for the project from IDLO ended, no further funds have been found for the related legal service. However, we continue to provide HIV-related legal services through the use of volunteers. We use legal students as volunteers who can provide legal counseling to communities and provide
“shadow” lawyering. This opportunity is highly valued by students. LBH Masyarakat is the only organization in Indonesia that welcomes law students to act as volunteers in providing legal aid services.
LBH Masyarakat also works with an organization of sex workers that provides access to medicine in Jakarta. This organization is also facing difficulties in obtaining funding. A major obstacle for this organization and other community-based organizations is the inability to provide a funding proposal in English.
A significant victory for LBH Masyarakat involved obtaining a court order for a drug user to be referred to rehabilitation services rather than being given a prison sentence. This was an important case under Indonesia’s new Narcotics Law.
Ms. Laya Medhini (ARTICLE 39, India)
The organization I work in is the Center for Legal Aid and Rights, and Article 39 is named after the provision of the Constitution of India that provides a right to free legal aid, which is what we do
Each state government in India is mandated to set up state legal service authorities, so in theory legal aid is available. UNDP set up pilot HIV legal clinics with state legal service authorities in some states. These programs addressed issues such as inheritance, property rights, and removal of children from schools.
The states of Tamil Nadu and Andhra Pradesh have scaled-up these legal aid services. The state legal service authorities provide lawyers, who are part of a roster to provide legal aid to people living with HIV. This service is provided by a partnership between the State AIDS Control Society and the Legal Services Authority. A lawyer, an outreach worker and a social worker staff each legal clinic.
UNDP is conducting a feasibility study to assess whether to implement this model in other states across India.
Funding for legal aid for people living with HIV has never been considered to be as important as money for treatment. We are not asking for a compromise on treatment, merely recognition of the importance of legal aid in the lives of people affected by HIV.
12 In some states where lawyers are a part of the legal clinic only for a month, their knowledge and skills in addressing HIV-related cases need to be refreshed.
Although training is provided, sometimes the quality is compromised. As new lawyers become involved, there is an ongoing need for the training to continue.
Lawyers need to be sensitive to the specific challenges faced by client populations.
Many lawyers are ignorant of simple procedural matters that have particular importance in HIV cases, such as knowing that cases can be filed anonymously in court to protect confidentiality. There are limitations on eligibility for legal aid, for example careers and family members of people living with HIV may not be eligible for assistance.
People may be reluctant to access a state-funded legal aid service if they want to complain against a branch of the government. For example, a public hospital refused to admit a pregnant woman who was in labor because of her HIV status.
Although the woman has the right on paper to request legal aid from the government through the legal service authority, the practicalities of the situation are not so clear.
Lawyers complain that the subsidy for providing free legal aid services is very low.
The quality of legal aid may be low because the work is poorly paid. After a time, lawyers lose interest in the work, particularly if there is no opportunity to take a case before a court. Their clients who can afford to pay fees are then usually given priority over legal aid clients.
It is often possible to find funds for training and advocacy on policy matters, but it is extremely difficult to find funds to support a person fighting against a government organization such as a school or hospital.
Legal aid centers that are independent of government should be able to challenge government run organizations like hospitals, treatment centers, schools etc.
When I headed the HIV/AIDS Initiative at the Human Rights Lawyers Network we provided HIV legal services through 28 legal centers across India, with trained lawyers and counselors. The project explored the feasibility of forming partnerships with local networks of people living with HIV and these networks are funded by the state. The risk for these community networks was that if they supported us and we challenged the state government in court, the government might cut off their funding. Nonetheless, we were able to form informal partnerships with the positive networks.
We learnt the importance of building trust and proactively reaching out to communities through partnerships with community-based organizations working in related fields such as women’s groups, gender and sexual minorities, etc.
Engaging communities is critically important to success. An important example of this is a public interest litigation case on access to treatment, which was taken to the Supreme Court. A challenge for the lawyers was to gather evidence of people’s problems in accessing ARVs and to engage communities in the work. By 2010, close to 80 community-based organizations had come forward with information in support of the change in policy to allow greater access to ARVs. It is also important to involve communities in monitoring results of cases, so that they can see if commitments are kept.
ARTICLE 39 is an example of an independent legal aid service that provides genuinely free legal aid. Other legal aid services require clients to pay some basic costs, which can be a major obstacle for poor people, particularly women. Most women who are living with HIV lack independent finances and do not access
13 positive networks or other forms of support. We reach out to women in the community and are known as a service that is women and child-friendly and help them not just reach us for the free legal aid, but also help them come to court and follow their cases personally.
Points raised in questions and discussion: sustainability and funding There is no absolute right to legal aid in India except in criminal cases. If you have a civil claim there is no automatic right to a lawyer. Justice is less accessible in civil cases.
The Delhi Legal Service Authority provides legal aid to protect women from violence and to women who have been raped. In some civil matters, the authority may pay court fees. State legal aid can provide support for public interest class actions. State legal service authorities have broad powers. The more fundamental issue is that although there is a good supply of lawyers the demand for legal services is not great. People living with HIV are reluctant to come to court because they have other priorities.
Mumbai High Court will expedite cases if the litigant has HIV. India’s HIV Bill has been pending for many years.
The model in Thailand is to provide legal assistance free of charge, through a one-stop service. There is a memorandum of understanding between the office of the Ombudsman, the national Human Rights Commission and the office of the Attorney General to receive complaints in non-criminal cases. In cases where there is a lawsuit against another government agency, help may also be available from the lawyers association or the protection fund of the Ministry of Justice.
Thailand has a range of protective laws and there is access to alternative dispute resolution mechanisms so that settlement of cases can occur outside of court.
Administrative laws can be useful in the context of challenging government decisions. For example, it may be possible to obtain an injunction to prevent the government signing a free trade agreement on the grounds that it will restrict access to medicines.
Thailand has a strong public health response to HIV, and state and non-state actors work together well on most HIV issues. Compulsory licensing of ARVs and placement of methadone on the essential drugs list were important victories.
Forming broad coalitions enabled activists to succeed, despite political obstacles that seemed insurmountable. Referring to the human rights obligations of States under international treaties can play an important role in providing extra momentum on these issues.
In China, insurance companies have been persuaded to change their policies so that people living with HIV are not discriminated against. Several compensation claims have been successful. Some legal service agencies also provide other support, such as information about housing and welfare support.
In Papua New Guinea, the network of people living with HIV (Igat Hope) argued that there was a need for a new legal aid service with expertise in HIV, because the service provided by the Public Solicitor’s office was insufficient. With IDLO’s support, the PNG Development Law Association established an office for our HIV service. We are having success in obtaining protection orders for women who are at risk of violence from their husbands. The protection orders extend to protect women from their husband’s relatives.
14 Most Pacific island countries do not have a special HIV law. Legal awareness training relates to constitutional law and UN declarations and covenants. However, constitutional cases are expensive and can run for years. More accessible remedies are required. Most Pacific island states include enactment of HIV laws in their national HIV/AIDS plans, but there has been slow progress. The National AIDS Committees want something more tangible than awareness training. PIAF has adjusted its trainings to respond to the demand to develop legal instruments that specifically address the rights of people living with HIV. These can then be promptly taken to parliament. To facilitate the process, PIAF has been able to utilize personal connections with high-level officials in countries such as Kiribati and Tuvalu. Targeting gatekeepers can accelerate change.
In Indonesia, LBH Masyarakat, as well as other NGOs focusing on HIV issues, helped a case in which a girl was refused entry to a school after being diagnosed with HIV. The case was disseminated on Twitter. Through Twitter the school was pressured to accept the girl. The National Human Rights Commission and Ministry of Welfare intervened in support of the child. The National AIDS Commission and Ministry of Health were also supportive. The facts of the case became widely known through the broadcast media. The outcome of the case set a positive example for all schools in Indonesia. In another case, pressure was placed on the government to stop disseminating expired ARVs. To achieve this outcome, NGOs conducted a public demonstration, there was coverage of the issue in the newspaper and meetings were held with the National AIDS Commission.
In Indonesia, LBH Masyarakat, as well as other NGOs focusing on HIV issues, helped a case in which a girl was refused entry to a school after being diagnosed with HIV. The case was disseminated on Twitter. Through Twitter the school was pressured to accept the girl. The National Human Rights Commission and Ministry of Welfare intervened in support of the child. The National AIDS Commission and Ministry of Health were also supportive. The facts of the case became widely known through the broadcast media. The outcome of the case set a positive example for all schools in Indonesia. In another case, pressure was placed on the government to stop disseminating expired ARVs. To achieve this outcome, NGOs conducted a public demonstration, there was coverage of the issue in the newspaper and meetings were held with the National AIDS Commission.