Report of the Asia Pacific Regional Consultation on HIV-related Legal Services and Rights
Bangkok, Thailand
9-10 February, 2012
i Acknowledgements
This report was prepared by Mr. John Godwin, consultant.
The Consultation was co-hosted by IDLO, RTI International, the University of Sydney, UNAIDS, UNDP and the Asia Pacific Network of People Living with HIV/AIDS.
The Consultation was supported by AusAID under the International Seminar Support Scheme, RTI International, UNAIDS, UNDP and the OPEC Fund for International Development (OFID). OFID is the development finance institution of OPEC member states. OFID provides financial support for socioeconomic development, particularly in low-income countries. www.ofid.org
Disclaimer
The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of IDLO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.
IDLO does not warrant that the information published in this publication is complete and correct and shall not be liable for any damages incurred as a result of its use.
The views expressed by participants at the meeting and noted in this report do not necessarily reflect the positions of any particular governments or organizations.
© IDLO 2012. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization.
Version: 17 March 2012 Published by:
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Contents
Glossary of acronyms and terms ... iii
1 Background ... 1
2 Experiences of people living with HIV and affected communities ... 1
3 Political commitments and survey results ... 5
4 Sustainability and scale-up: national and external funding ... 8
5 The law, legal literacy, and access to justice issues faced by women ... 15
6 Challenges ... 19
7 Reflections, key messages and next steps ... 20
Annex I Background Paper ... 23
1 Commitments and recommendations on HIV and access to justice ... 23
1.1 United Nations High Level Meeting on HIV/AIDS ... 23
1.2 United Nations Economic and Social Commission for Asia Pacific ... 23
1.3 Global Commission on HIV and the Law ... 23
1.4 UNAIDS Strategy 2011-2015 ... 24
2 Survey responses: Mapping of HIV-related legal services... 25
2.1 Providers of HIV-related legal services ... 25
2.2 Funding sources ... 27
2.3 Casework ... 28
2.4 Success stories ... 29
2.6 Challenges ... 31
2.7 Staff ... 33
Annex II Agenda ... 35
Annex III Participants List ... 36
Annex IV Regional Framework ... 39
iii
Glossary of acronyms and terms
ACHIEVE Action for Health Initiatives
ANPUD Asian Network of People who Use Drugs
APN+ Asia Pacific Network of People Living with HIV/AIDS AusAID Australian Agency for International Development
CCLPHH Centre for Consulting on Law and Policy on Health, HIV/AIDS
CLS Community Legal Service
ESCAP Economic and Social Commission for Asia and the Pacific
EU European Union
FTA Free Trade Agreement
Global Fund Global Fund to Fight AIDS, Tuberculosis and Malaria HRLN Human Rights Law Network
IDLO International Development Law Organization
LBHM Lembaga Bantuan Hukum Masyarakat (Community Legal Aid Institute)
NGO Non-government organization
OFID OPEC Fund for International Development PIAF Pacific Islands AIDS Foundation
PLHIV People Living with HIV
PNGDLA Papua New Guinea Development Law Association SDC Swiss Agency for Development and Cooperation TRIPS Trade-Related Aspects of Intellectual Property Rights UNAIDS Joint United Nations Programme on HIV/AIDS
UNDP United Nations Development Programme
UNGASS United Nations General Assembly Special Session USAID United States Agency for International Development VNP+ Vietnamese Network of People Living with HIV/AIDS
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1 Background
On 9th-10th February 2012, the International Development Law Organization (IDLO), RTI International, the University of Sydney, the Asia Pacific Network of People Living with HIV/AIDS (APN+), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP) co- hosted an Asia Pacific regional consultation on HIV-related legal services and rights.
Participants attended from Australia, Cambodia, China, Fiji, India, Indonesia, Malaysia, Papua New Guinea, Philippines, Thailand and Vietnam. Participants included government and civil society representatives, including people living with HIV and members of key HIV-affected populations.
The objectives of the Consultation were:
(i) to report on progress made in establishing and scaling up HIV-related legal services in countries across the region;
(ii) to identify successes and challenges in scaling up HIV-related legal services and factors demonstrated to enhance access to and usage of legal services;
(iii) to create and strengthen linkages with related regional initiatives and promote sharing and networking on HIV-related legal services and rights;
(iv) to build upon the outcomes and recommendations of the UN Economic and Social Commission for Asia and the Pacific (ESCAP) High Level Intergovernmental Meeting on HIV (February 2012), the UN High Level Meeting on HIV AIDS (June 2011), the Asia Pacific Regional Dialogue of the Global Commission on HIV and the Law, and other reviews.
This report contains a summary of the presentations and discussions at the Consultation. Prior to the Consultation, a survey of HIV-related legal services was circulated to the participants and other informants. The Background Paper in Annex I contains a summary of relevant international and regional commitments and recommendations on HIV and access to justice, along with the results of the survey. Annex II contains the agenda for the Consultation, and Annex III contains the list of participants.
Day 1
2 Experiences of people living with HIV and affected communities
Panel members: Mr. John Rock (APN+) (Session Chair), Mr. Chalermsak Kittitrakul (AIDS Access Foundation, Thailand), Mr. Dean Lewis (Asian Network of People who use Drugs, ANPUD), and Mr. Dong Duc Thanh (USAID Pathways for Participation Project Vietnam).
Mr. John Rock (APN+)
The law affects people living with HIV at multiple levels. At the international level, patent laws and free trade agreements (FTAs) contain provisions that threaten to restrict access to affordable medicines. Current issues include:
(i) the EU-India FTA, which threatens the supply of generic antiretroviral drugs (ARVs) from India to the world;
(ii) a constitutional challenge to India’s patent law by the pharmaceutical company Novartis, which could threaten the viability of the manufacturers of generic ARVs based in India;
2 (iii) negotiation of the Trans Pacific Partnership, which is a trade
agreement that will include Vietnam, Malaysia, Singapore, Brunei, Australia and New Zealand.
Activists are encouraging governments to make greater use of flexibilities allowed under the Agreement on Trade Related Aspects of International Property Rights (TRIPS Agreement). Exercise of TRIPS flexibilities such as compulsory licensing can ensure that patients can access affordable generic versions of essential medicines such as ARVs.
Other issues that are priority concerns include the application of the criminal law to people living with HIV (PLHIV) and communities affected by HIV, and rights to education, housing, work, and access to health services. APN+ has been involved in new research on the sexual and reproductive health rights of women living with HIV, which will soon be published. A fundamental concern is that people living with HIV need to be empowered to know their rights so that they can take legal action to realize their rights.
Mr. Chalermsak Kittitrakul (AIDS Access Foundation)
The AIDS Access Foundation has been promoting treatment rights since the 1990s in Thailand.
A landmark case involved challenges to the patent on the ARV didanosine (ddI). A significant step was when the court confirmed that organizations representing people living with HIV could challenge the legality of drug company patents on behalf of their community. In 2004, the pharmaceutical company reached a settlement with consumer advocates relating to this drug. Other manufacturers were allowed to produce cheaper generic versions of the drug.
The AIDS Access Foundation successfully advocated to government to exercise powers to issue compulsory licenses under the Patent Act. This allowed the Thai government to import and produce generic ARVs. These victories enabled the government’s national ARV treatment programme to scale-up using generic medicines.
A major political obstacle to these efforts has been the government’s fear of retaliation from trade partners. It was perceived that the Thai government was concerned that issuing compulsory licenses for ARVs would damage trade relations with the United States of America (USA) and the European Union (EU).
However, after pressure from non-government organizations (NGOs), the Thai government issued compulsory licenses for ARVs (lopinavir and ritonavir) and a drug for treating heart disease. This generated an angry response from the USA and EU, who said that it was inappropriate to use compulsory licensing except in the case of emergencies.
The response of the drug company that sold lopinavir and ritonavir, Abbot Pharmaceuticals, was to withdraw applications for registration of seven drugs in Thailand. It seemed that the message that the drug company wanted to send was that it would refuse to register its new drugs in any country that issues a compulsory license on its patents.
Thailand has issued a number of compulsory licenses for ARVs during the last decade. The Thai government has been willing to utilize compulsory licenses despite pressure and threats of retaliation from trade partners. Compulsory licensing reduced the prices of some ARVs. Issuing a compulsory license carries political risks, but these can be managed.
3 There are ongoing concerns about the impact of FTAs on access to medicines in Thailand. If a country signs an FTA that requires strong patent protections for pharmaceuticals, the government may have to change its patent law accordingly, with the result that access to affordable generic versions of drugs is reduced.
Mr. Dean Lewis (ANPUD)
People who use drugs experience disempowerment and alienation from society.
The stigma associated with drug use and its criminality means that people who use drugs feel that they have absolutely no rights.
Migrant workers who use drugs face legal obstacles. For example, foreigners who are working in Thailand may be tested for drug use at any time. A positive test result can lead to immediate deportation. Similarly, foreigners working in Malaysia may be tested for HIV and deported if the test result is positive. Migrant workers often have no legal recourse in these situations.
In 1986, a draconian drug law was introduced in India (Narcotic Drugs and Psychotropic Substances Act 1985). This law required that accused persons must prove their innocence, which reversed the normal onus of proof in criminal cases.
The prosecution did not have to prove that a person was guilty. The offense was non-bailable and carried a minimum sentence of 10 years for possession of over 0.25 of a gram of heroin. Activists worked with lawyers to successfully challenge the constitutionality of these provisions. The minimum amounts for possession was increased, and sentencing is now dependent on the commercial value of drugs seized.
It can be strategic to focus efforts on educating judges. Progress can occur without requiring a change in the written law. For example, although punitive drug laws remain in place in Malaysia, judges have become more willing to provide lenient sentences to people convicted of drug use offences as a result of improved awareness about drug dependency as a health issue.
Collaborations between people who use drugs and the Lawyers Collective in India have resulted in training activities and free legal representation in some cases (pro bono work). Lawyers have been able to intervene to secure the release of people held in detention. Just having the phone number of a lawyer can be helpful if seeking bail.
There is generally no access to legal services for prisoners while they are held in remand awaiting trial. People who are in police custody often do not have access to any HIV medicines or substitution therapies (methadone or buprenorphine).
Legal services are needed at the pre-trial stage to assist in securing access to medicines. After sentencing, people are sent to prison where there is usually some access to basic health care. Before sentencing, there is nothing.
ANPUD’s priority is to advocate for laws that support voluntary, evidence-based drug treatment programmes, needle syringe programmes and substitution therapy programmes. At this stage, decriminalization of drug use is not the main focus of our advocacy in Asia. Our focus is the decriminalization of services.
Mr. Dong Duc Thanh (Pathways)
People living with HIV are isolated; face stigma and many problems in their everyday lives, particularly those who are current or former drug users. Most people do not know where to get help. For many years there were no protective laws in Vietnam. Some legal protections now exist, but sources of practical assistance and legal support are limited.
4 As people living with HIV we started our work to support the community of people living with HIV in Vietnam by working at the provincial level. We used an email group to keep in contact with other people living with HIV in five provinces. We have implemented several projects including addressing the supply of medicines and consultations with officials.
Possession of drugs is illegal in Vietnam, so people who use drugs are scared of being identified and arrested. We can educate people about the law, but in practice it is still very difficult for people whose behavior is criminalized to come forward and access legal help. Sex workers also face legal difficulties and there is no legal support for men who have sex with men.
Vietnamese communities are interested to learn from the experience of other countries such as Thailand on the use of the law to improve access to treatments.
A particular challenge in Vietnam is treatment for patients who are co-infected with HIV and hepatitis C virus. There are very limited treatment options for people living with hepatitis C virus, because drugs are expensive.
Points raised in questions and discussion: experiences of communities What action is being taken to dismantle compulsory detention centers for drug users and sex workers?
Mr. Dean Lewis (ANPUD)
Compulsory detention centers are found in many countries in Asia. Although they are meant to offer rehabilitation, most of these centers do not offer evidence- based treatment for drug dependence. In some cases, people are arrested in the street and detained without any due legal process. Malaysia recently took the courageous step of switching to voluntary treatment centers, which sets a positive example for other countries.
Law enforcement practices are often highly punitive. For example, social order campaigns can result in the detention of a range of people considered undesirable by authorities, including street people, people who use drugs, men who have sex with men, people who sell sex and their children. A person who commits a drug offence for the first time may be treated very harshly. For example, a teenage girl who goes to a disco and uses amphetamines for the first time can be detained and placed in a detention centre populated by much older repeat offenders. Often there is no judicial oversight of police sweeps and detention practices. The health of detainees is poor, due to high rates of sexually transmitted infections (STIs), HIV and tuberculosis (including multidrug-resistant tuberculosis).
Some people enter detention centers voluntarily for the purpose of rehabilitation.
However, many people then discover that they are unable to leave, so in reality it is a form of compulsory detention and punishment. Minimum standards have been developed to improve conditions in these centers. However, it can be difficult to enforce these standards in privately funded treatment centers.
How did you build the capacity of community members in addressing complex laws relating to patents and intellectual property?
Mr. Chalermsak Kittitrakul (AIDS Access Foundation)
We started with treatment education on issues familiar to community members, such as the life-saving nature of HIV medicines, the occurrence of side effects and the need to take drugs regularly. We then discussed more unfamiliar issues, such as the origin of drugs, the drug registration process, and the relevance of patents. It was a step-by-step educational process, so that people could
5 understand how drugs are marketed and the supply chain from factories to consumers.
The treatment access movement in Thailand was formed through collaboration between people living with HIV and a group of academics. Both groups were interested in understanding the obstacles to treatment access and the reasons for high drug prices. Training materials were developed that explained the link between the term of a patent and access to affordable medicines.
Advocates need to understand the Thai patent law and the operation of international agreements, including the Anti-Counterfeiting Trade Agreement (ACTA), and free trade agreements with the USA and the EU that impose high levels of protection to intellectual property rights. We have links with activists in India and Europe. Currently we are emphasizing the need to oppose provisions of the proposed India-EU FTA, which will restrict access to medicines if agreed in its current form. Globally, over 80 per cent of generic medicines come from India. If the EU-India FTA is signed, Indian factories that manufacture generic drugs may be forced to close, which will be harmful for people with a range of chronic diseases, not just HIV.
Successful outcomes have resulted from close collaboration between community activists, academics and supportive officials within the Ministry of Health. There was sufficient political will to test the flexibilities that the law permits. However, it is uncertain whether Thailand will issue more compulsory licenses in the future.
The government continues to be concerned that exercising flexibilities allowed by the TRIPS agreement will result in retaliation from trade partners, particularly the USA and EU.
Mr. John Rock (APN+)
APN+ and the International Treatment Preparedness Coalition (ITPC) have been working on a program of treatment education. People living with HIV have worked productively in partnerships with lawyers in Thailand, India, Brazil and South Africa. ITPC has developed a toolkit to advise people living with HIV on issues such as how to find out about free trade agreements and patents and how to form alliances with lawyers.
In the Pacific, the Fijian Network of People living with HIV (FJN+) has issued a press release on FTAs and access to drugs. It is encouraging to see the rights- based provisions of the HIV Decree in Fiji, which other countries may look to as a model.
3 Political commitments and survey results
Mr. John Godwin (Consultant)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.
4 Sustainability and scale-up: national and external funding
Panel members: Mr. Nuttawut Teachatanawat (RTI) (Session Chair), Mrs. Nittha 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 HIV-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 Malaysia, the successful partnership between HIV NGOs and the Bar Council was created in the context of the Anwar Ibrahim sodomy case. NGO staff felt threatened by the political context at that time. The Bar Council offered to provide legal advice at the NGO offices. This has evolved into a ten-year partnership. Providing legal advice at NGOs that are accessible to local communities of people living with HIV, sex workers, men who have sex with men and transgender people has been an effective model.
In the Philippines, lawyers interested in HIV formed a network that provides free consultations for people living with HIV. Lawyers have offered practical assistance, for example by accompanying protesters in a public demonstration to ensure police abuses do not occur. The National AIDS Commission established a working group on HIV and human rights. A central referral mechanism was proposed to be established for case documentation, referral and management. The “Aid for AIDS”
network developed a ten-point agenda, with guidelines for lawyers on documentation of HIV-related cases and appropriate management of HIV cases.
In Vietnam, the situation has improved over the last five years. Discrimination was common in schools and health care settings. The Centre for Consulting on Law and Policy on Health and HIV/AIDS provided technical support to development of the Law on HIV (2006), and provided training on the rights of people living with HIV to attend school, and to access ARVs and social support services. The Centre has provided training for lawyers in 26 provinces. Attitudes have improved and legal services have set up a network. With the support of UNAIDS, a book on HIV and the law was produced that highlights successful cases and explains rights to education, work and treatment, and the rights of people living with HIV in detention centers. Important initiatives have included use of trained peer counselors to reach people in their communities, and provision of financial support to enable people who live in remote areas to travel to a lawyer’s office.
15 Access to medicines is not only an issue for people living with HIV. It may be strategic to combine strengths with lawyers and advocates focusing on other health issues, such as treatment of cancer and cardio-vascular disease.
DAY 2
Reflections from Day 1
The representative of the Ministry of Justice, Vietnam, expressed interest in following up the concern that the provisions of the Trans Pacific Partnership could restrict access to medicines. The Ministry of Justice will address issues that require coordination across government by signing a memorandum of understanding with the Ministry of Health on HIV.
Funding is a common challenge. In China, legal services will need to look outside of health and HIV for sources of funding. The Ministry of Justice needs to be engaged.
It is clear that there is no single master model for provision of HIV-related legal services in the region. However, sharing lessons can spark ideas for new approaches and generates a sense of solidarity between advocates and service providers in different countries. A regional network of legal services and NGOs engaged in these issues would be helpful for lawyers and activists who are interested in ongoing communication.
Cases are seldom won in court. More often, cases are successful because a good outcome is negotiated and attitudes are changed.
Approaches to generating demand for legal services need to be explored more.
Outreach to communities is clearly important.
5
The law, legal literacy, and access to justice issues faced by women
The panel comprised Ms. Felicity Young (RTI) (Session Chair), Ms. Shen Tingting (Korekata AIDS Law Center, China), Ms. Lydia Karre (Papua New Guinea Development Law Association), and Ms. Varsha Gaikwad (Positive Women’s Network, India).
Ms. Felicity Young (RTI International) The panel was asked to address three questions:
(i) What are the priority HIV-related legal issues for women?
(ii) How can access to justice for women be improved?
(iii) How can HIV-related legal services address gender equality?
The UNGASS Political Declaration on HIV/AIDS (2011) included three specific targets relating to women and universal access, as well as the commitment to legal services. We need to hook our advocacy to UN declarations and commitments. The 2012 ESCAP meeting on HIV also identified gender as a major issue for the region’s HIV response.
Ms. Shen Tingting (Korekata AIDS Law Center)
In 2008-2009 we established two community-based projects. The projects involved outreach to sex workers and harm reduction. These projects adopted legal empowerment approaches. About 80 per cent of sex workers know nothing about the law. Many sex workers have no confidence in the police, so will not
16 report a crime to the police if they are abused. The sex worker outreach project involved provision of information and training on legal rights by peer educators.
Under Chinese law, sex work, organizing sex work, and providing assistance to sex workers is illegal. There are regulations governing some entertainment establishments where sex work occurs, but these are focused on monitoring of business activities by police and officials rather than protecting the health and safety of workers. The penalty for sex work is RMB 5,000, and public security officials have power to detain sex workers at compulsory re-education centers for up to two years under administrative law. Detainees are subject to compulsory testing for STIs and HIV. Detainees must pay for medical treatment themselves.
Police extortion is common. Sex workers often pay much more than the prescribed penalty to corrupt police so that they can continue to work.
Sometimes police detain sex workers and will only release them if a sum is paid.
In one case, RMB 20,000 had to be paid to police to avoid sex workers being sent to a compulsory re-education centre. The problem is that there is no mechanism for the community to monitor improper police behavior.
Police often confiscate condoms as evidence of sex work. The Ministry of Public Security organizes periodic police sweeps of undesirables. In 2010, public security officers implemented a ‘Strike Hard’ campaign. Over 1,000 people were detained and the media broadcast their identities. Police sent letters to the families of these sex workers stating that the families needed to help to ‘rescue’ the detained women from the sex trade.
Under Chinese law, people can only access public health care in the town where they are registered as residents. As a result, sex workers who leave their homes in rural areas to work in the cities cannot access ARVs.
Sex workers need to have an organization to represent their voice in China. The Internet provides a way to share information and create support for law reform.
Ms. Lydia Karre (Papua New Guinea Development Law Association)
Papua New Guinea Development Law Association (PNGDLA) provides services to people living with HIV, sex workers, transgender people, vulnerable women and children.
Culture and custom contribute to women’s vulnerability. Traditionally, the husband’s family pays a bride price. As a result, women are treated as property of their husband’s family. If there is violence in the marriage, women feel that they cannot complain to police because it is considered to be an internal family matter. Women often have little or no education, and may be dependent on their husband’s income. Men usually own the family home, so if a wife seeks to leave her husband she has nowhere to stay and the children are considered to belong to the husband. Traditionally, men are allowed to marry more than one woman.
Many young, uneducated women find themselves in polygamous relationships.
Priorities for PNGDLA are to address sexual violence, marital rape, and abuse of sex workers by police. Sex work is illegal and blackmail by police officers is common. Sex workers are often required to provide sexual favors to secure their release. Although it is a crime for a husband to rape his wife, wives are often afraid to speak out because of bride price and cultural pressures.
The HIV Management and Prevention Act was introduced in 2003, but it has never been enforced in court. Testing without consent is a common practice at
17 antenatal clinics, although this is prohibited by the Act. This practice needs to be challenged.
Breaches of patient confidentiality are known to be common in health care settings. This leads to discrimination.
Police are abusive. In one case, police refused to find and arrest a husband who had breached a restraining order because they said they had no fuel for the police car. PNGDLA had to pay for the fuel.
There is a pro bono system that provides access to free legal services, but HIV cases are given a low priority. Sex workers do not feel comfortable attending the Office of the Public Solicitor because they fear discrimination by lawyers.
The location of the PNGDLA office is important. It is in a busy area that is considered to be safe and is not stigmatized.
Access to justice for women seeking protection from violence has been improved by the introduction of a simple procedure for obtaining interim protection orders from the courts. There is a Sexual Violence Unit at one police station, which is staffed by police officers who have received specialized training.
Empowerment of women requires changes in social attitudes so that violence in the family is condemned. We also have to educate lawyers, magistrates and judges on HIV and the importance of confidentiality.
Gender equality in the workplace can be addressed by ensuring a gender policy is in place, and that practices such as working hours are flexible, so as to take into account child care responsibilities.
Ms. Varsha Gaikwad (Positive Women’s Network, India)
The Positive Women’s Network has provided a national voice for Indian women living with HIV since 1998. The first national consultation for positive women was held in 2002, as a partnership between civil society, the United Nations and government. It was decided that a rights-based approach should be given priority.
Research was conducted to document the experience of women in eight states, in terms of the rights of women living with HIV under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
HIV positive women experience double discrimination – discrimination because they are women and discrimination because they have HIV. Laws protect women from domestic violence but many women are unaware of these laws and how to access the justice system.
In 2007 a national public hearing was held on women and HIV. HIV testing without consent and discrimination against women living with HIV by health care workers were common complaints. When women are diagnosed with HIV, their spouse and in-laws generally blame them as the source of infection.
An advocacy success was to change the terminology used from “prevention of mother to child transmission” to “prevention of parent to child transmission”, to emphasize the role of men in transmitting HIV to their wives.
The Positive Women’s Network implemented a project in eight states. Women living with HIV were educated about their property rights and domestic violence in 35 districts. Cases were referred to legal aid. Over 1,000 cases were identified.
Some problems could not be resolved because women did not have the required
18 documents. Lengthy legal processes can be shortened if legal assistance is provided to help women to obtain documents from the courts or government offices. Identity cards and birth certificates are important so that women can access health care and other services. Lack of a marriage certificate affects inheritance rights.
Peer education, referral networks and organizing of communities are crucial in addressing the rights of women living with HIV.
Points raised in questions and discussion: Women and HIV
ACHIEVE is an NGO in the Philippines that has worked with the police in raising sex work issues. One of the outputs of this is a plan to integrate rights-based approaches into HIV 101 training among the police, with assistance from the Quezon City health department. Training addresses the importance of not confiscating condoms from sex workers, or using them as evidence of prostitution and/or trafficking.
Vietnamese women who are trafficked into China are entitled to free legal services under an agreement between countries. Vietnam and China need to share experiences in supporting victims of trafficking who are living with HIV.
There are very few organizations that provide HIV-related legal services in China.
It is very difficult to reach Vietnamese women who have been trafficked into China. They are a hidden population.
There is ongoing tension in China between public security and public health approaches to sex work. The punitive police approach can make it difficult to conduct HIV prevention outreach and legal outreach to sex workers. There is a need for constructive dialogue and training for police. There have been some positive experiences in working with the police academy in Yunnan and building bridges between public security and health authorities.
In China, there is interest in learning from the experience of sex work law reform in Taiwan, where some brothels have operated legally in red light districts and there is an active sex workers’ rights movement. There is hope in China that opinions will change as ideas spread through new technology. A proposal to legalize sex work was submitted to parliament, although we do not expect law reform for many years. The first step is public education to de-stigmatize sex work and to empower sex workers.
In India, there is a provision in the Immoral Traffic (Prevention) Act that enables police to prosecute sex workers who are identified through police raids. Some states have ordered police not to exercise their powers against sex workers. An internal order of the Police Commissioner in Delhi directs the police to target brothel owners, rather than sex workers. The attitudes of officials have improved and this has been achieved without decriminalization.
A petition is pending before the Supreme Court of India on the rehabilitation of sex workers. Old attitudes prevail in some states of India, but there have been improvements in others.
Use of technologies such as the Internet and mobile phones may enable services to reach more people. In China, Internet chat sites have proved to be useful to reach people because chat sites can be accessed anonymously. However, many clients do not have access to new technologies because they are poor and have low literacy levels. In Nepal and Papua New Guinea, radio has been an effective
19 tool to reach communities. Meeting clients face-to-face and forming personal relationships is very important to gain their trust.
6 Challenges
Participants worked in groups to identify challenges in strengthening and expanding HIV-related legal services, and how these were overcome. Themes identified from Day 1 were: outreach to communities; the role of case work in informing advocacy; capacity building (of lawyers, judiciary, health care workers and communities); resource mobilization; and coalition building.
Pacific region and India
Legal services are challenged to identify lawyers who are motivated to work on HIV-related issues. Lawyers are often unwilling to work for low fees or free of charge. A way to provide an incentive is to showcase the good work of volunteer lawyers. Publicly acknowledging the work of lawyers can motivate others to volunteer. If a legal service is providing training to lawyers, a volunteer lawyer can attend and explain their story of involvement in the organization. This can be helpful to persuade others to become involved. Capacity building of the judiciary requires supporting judges who have experience in HIV-related matters to educate their peers. Creating networks with communities is critical for referrals and to generate trust.
In India, the HIV Bill is under consideration. Nonetheless, there are many laws that can be used to promote rights in areas such as health care, inheritance and family law. Public interest litigation in India has enabled courts to interpret constitutional rights to the benefit of people living with HIV. ‘One-stop shop’
models that provide health, welfare and legal services at one accessible location should be explored as a way to reach more clients.
The President of Fiji (Ratu Epeli) has provided leadership in the Pacific by being outspoken on HIV-related human rights issues. This provides a role model for parliamentarians of other island states. Within bureaucracies, middle management can be obstructive to reform proposals. It is more effective to target ministers or more senior officials such as the director-general of public health.
Papua New Guinea
Dame Carol Kidu is the only woman in parliament and she has been a champion for HIV-related law reform. However, she is leaving office soon. The challenge is to persuade people to adjust their understanding of culture and custom so that it is more sensitive to gender and human rights concerns.
Vietnam and Malaysia
It is important to build relationships between NGOs, community-based organizations and legal services. An internship program that places people living with HIV in law firms could help them to develop skills as paralegals and improve the understanding of lawyers about HIV. Lawyers may be motivated if they have opportunities to improve their skills, to travel and have access to the media so that their expertise is publicly acknowledged. Mobile clinics are a form of outreach that brings services to communities.
Community-based organizations are important in supporting specialist HIV legal services, rather than providing legal aid only within generalist legal aid services.
Vietnam lacks a structure to legally recognize the role of NGOs and community- based organizations in delivering legal aid.
20 Thailand
Key affected populations such as sex workers accept violations of their rights as a normal part of their daily life. Development of tools to raise awareness about rights is an important first step. To facilitate a policy dialogue among government agencies, Thailand involved all relevant ministries in the National Sub-committee for the Protection and Promotion of AIDS Rights. The private sector has also been engaged on rights issues. A television campaign helped to raise funds from private sources to support people living with HIV and children affected by HIV and AIDS. Civil society plays a role in documenting human rights issues. NGOs provide reports to the UN on the compliance of government with obligations under international treaties. The Thai NGO Coalition on AIDS conducts an annual review of HIV-related human rights situations. NGOs have been able to provide input to the Universal Periodic Review, in partnership with Ministry of Justice, through which the UN assesses the government’s performance in addressing human rights issues.
Indonesia
Building the capacity of communities is key. A systematic approach can move beyond awareness of rights to empowering communities to advocate for their own rights. Paralegals can lead this work and many cases can be resolved through self-advocacy. More complex cases can be referred to lawyers.
China
Korekata AIDS Law Center has networked with activists in South Africa and lawyers in India (the Lawyers Collective) to train Chinese lawyers and to share information about best practices. It is sometimes difficult to talk about cases and law reform issues in China. Partnering with institutions outside the country provides an opportunity to discuss issues frankly and other NGOs within China can become more aware of global debates. Public interest lawyers prefer to work on less controversial issues such as the rights of migrant laborers, rather than HIV. With few clients prepared to take HIV-related cases to court, it is difficult to maintain a network of lawyers who are interested and engaged in HIV issues.
Philippines
Resource mobilization is a continuous challenge. Networking with other organizations in the region can help address isolation and build solidarity.
7 Reflections, key messages and next steps
IDLO will finalize the Consultation report, issue a media release and put a story on the IDLO website about the Consultation, evaluate IDLO’s work and publish the results, and continue working with IDLO’s Alumni Associations and legal services in the region. (See www.idlo.int/healthlaw).
RTI’s Asia regional office will translate the meeting report into Chinese, Thai and Vietnamese and seek funding from donors to support community-led advocacy on stigma and discrimination. RTI is interested in documenting experiences of legal services to help shape the priorities of donors and UN agencies. This includes documenting how HIV-related legal services make a difference and impact to HIV prevention, care and treatment. Demonstrating this link is important when seeking funds from HIV budgets.
ACHIEVE in the Philippines will seek to use a telephone hotline and other information technology to expand access to legal services.
