Towards Zero discrimination: judges from Asia and the Pacific unite to address HIV, human rights and the law

04 Jun 2013

image UNDP is helping to improve legal aid services for HIV patients at the Daytop Drug Abuse Treatment Rehabilitation Centre in Yunnan, China. Photo: UNDP

Bangkok – Some 30 judges from the highest national courts from 16 countries in Asia and the Pacific met in Bangkok, Thailand from 2-4 June to discuss the role of the judiciary in the AIDS response.

They discussed specific actions that can be taken by judges to create a more supportive legal and social environment for people living with and vulnerable to HIV, including people who use drugs, sex workers, men who have sex with men and transgender people.

The meeting, convened by the Joint United Nations Programme on HIV/AIDS (UNAIDS), the UN Development Programme (UNDP) and the International Commission of Jurists (ICJ), comes as part of efforts to address the widespread existence of punitive laws, policies and practice across the region, that dissuade and obstruct access to HIV services by people living with HIV and from key populations at highest risk of infection.

Faced with punitive legal environments, many people in need of HIV services for prevention and treatment do not access them for fear of stigma, discrimination, legal reprisals and violence.

The judges and members of the judiciary at the meeting affirmed the critical role of the judiciary in ensuring that the application of the law is based on scientific evidence on HIV and upholds the principles of justice for all.

“We as judges carry an important flame; we are bearers of political power. Our authority is based on reason and evidence and this is the strongest ally we have in addressing the HIV epidemic and what we need for just and fair outcomes,” a Justice of the Constitutional Court of South Africa, Hon. Justice Edwin Cameron, said while discussing his experience as a judge on the Constitutional Court of South Africa – a court that issued some of the most significant HIV-related legal decisions – and sharing unique perspectives as a judge living with HIV.

Considering key issues

Through a series of informative presentations at the Bangkok meeting, judges and representatives of judicial training institutions considered the key issues and principles relevant to judicial decision-making on these issues, and discussed examples of jurisprudence from the region and around the world that have recognised and protected the rights of key populations and reduced legal barriers to their access to HIV services.

They also identified effective strategies for supporting the judiciary to make informed and independent decisions.

Also actively involved in the dialogue were representatives from communities living with HIV and key populations at highest risk including sex workers and men who have sex with men, people who use drugs and transgender people, who underlined the importance of the judiciary’s active support to the revision and removal of punitive laws in Asia and the Pacific.

“If we don’t deal with these issues, we are not going to end AIDS,” the Regional Coordinator of the Asia Pacific Network of People Living with HIV, Shiba Phurailatpam, said.

“Judicial action can affect social views and have an impact on stigma and discrimination. It can save people’s lives,” he added.

“UNAIDS believes in the critical role of the judiciary for advancing ‘Zero discrimination’ in the context of HIV. The law must be a shield that protects, not a sword that punishes and increases vulnerability to abuse, harassment and HIV infection,” the UNAIDS Deputy Executive Director, Jan Beagle, said during her keynote address.

“Judges have a powerful opportunity to stand for non-discrimination, access to health care services, and justice for all. Judges can help shape social and community attitudes by stance and attitude toward people living with HIV and members of key populations,” she added.

Thirty years into the AIDS response, the need for legal environments to be aligned with the latest scientific developments on HIV and treatment was underlined.

Some interpretation of the law relevant to HIV in the region is still based on outdated views that were formed prior to the availability of effective HIV treatment. Latest evidence shows that access to HIV treatment not only enables people living with HIV to live long and productive lives but also significantly reduces risk of HIV transmission.

Research and modelling studies reviewed by the Global Commission on HIV and the Law suggest that increased interventions for enhanced legal and policy environments in the context of HIV could cut new adult HIV infections in half over the next 15-20 years.

“Getting the legal environment right is essential for addressing the social and structural inequalities which fuel HIV and impede health and development progress. Judicial leadership is an essential component of addressing these inequalities," the Director of UNDP’s HIV, Health and Development Practice, Dr Mandeep Dhaliwal, said.

A key component of future action will be efforts to ensure sustained judicial engagement in the HIV response through enhanced judicial education and sensitization. With several judicial training institutions present at the dialogue, judges and participants helped formulate and develop strategies and resources to initiate and expand judicial education and exchange on HIV.

As part of these actions, the first-ever developed Judicial handbook on HIV, Human Rights and the Law was launched at the meeting by UNAIDS. This handbook provides judges with updates on the latest scientific developments on HIV as well as key human rights and legal considerations that are critical in the context of HIV.

“An independent, informed judiciary can help protect at-risk populations from discriminatory laws, negative stereotypes, and misguided policies,” the Asia Pacific Regional Director for the International Council of Jurists, Sam Zarifi, said. “Supporting judicial leadership on HIV is not a one-off task. It has to be sustained through continuing opportunities for exchange, awareness raising and dialogue on HIV and the law,” he said.

Transformative jurisprudence

A number of protective jurisprudence examples showcased at the meeting have had a transformative and beneficial impact on the national AIDS response and on public perception of HIV. These include:

•    In 2009, the High Court of Delhi struck down Section 377 of the Indian Penal Code that criminalised consensual same-sex relations between adults on the grounds that it violated fundamental rights to life, equality before the law, freedom from discrimination and personal liberty guaranteed under the Constitution of India;
•    Progressive court decisions in Nepal, India, Bangladesh and Taiwan that have recognized that sex workers enjoy human rights as defined under national Constitutions;
•    Decisions in Thailand and India that have ensured access to affordable generic medicines;
•    Pakistan Supreme Court’s issuance of an Order recognizing the civil rights of transgender persons by including them in population registration under the status of a third gender with a view to ensuring access to government benefits; and
•    Employment cases in India and China upholding Non-discrimination on grounds of HIV status.

The UNAIDS/UNDP/ICJ Asia Pacific Judicial Dialogue on HIV, Human Rights and the Law is the first of its kind in Asia and the Pacific and one of a series of dialogues being carried out in other regions of the world including southern and western Africa.