Participants at the judicial dialogue on HIV, human rights and the law. Bangkok, Thailand. 2-4 June 2013. Credit: UNAIDS
In Asia and the Pacific, almost all countries have some kind of punitive laws, policies and practices that hamper access to HIV services for people living with HIV and key populations at highest risk including people who use drugs, sex workers, men who have sex with men, and transgender people.
Faced with punitive legal environments, many people in need of HIV prevention and treatment services are not able to access them for fear of stigma, discrimination, legal reprisals and even violence.
Seeking to address these challenges, some 30 judges from the highest national courts of 16 countries in Asia and the Pacific joined to discuss the role of the judiciary in responding to HIV. They also debated about the specific actions that can be taken to create a more supportive legal and social environment for people living with and vulnerable to HIV in the region.
Convened by UNAIDS, UNDP and the International Commission of Jurists, the meeting was part of efforts to support judges become leaders in the HIV response. Participants stressed the critical role of Judges and courts in protecting people living with and affected by HIV and achieving the UNAIDS vision of ‘zero discrimination’.
30 years into the AIDS response, the need for legal environments to be aligned with the latest scientific developments on HIV and treatment was underlined. “Our authority is based on reason and evidence—this is the strongest ally we have in addressing the HIV epidemic and what we need for just and fair outcomes,” said Hon. Justice Edwin Cameron, Justice of the Constitutional Court of South Africa.
During the gathering, UNAIDS launched a new Judicial handbook on HIV, Human Rights and the Law, providing updated information on the latest scientific developments on HIV as well as key human rights and legal considerations to assist and guide judges’ HIV-related work.
Our authority is based on reason and evidence—this is the strongest ally we have in addressing the HIV epidemic and what we need for just and fair outcomes
Hon. Justice Edwin Cameron, Justice of the Constitutional Court of South Africa
Of the 38 United Nations Member States in the region, 11 impose some form of restriction on the entry, stay and residence of people living with HIV based on their HIV status; 37 criminalize some aspect of sex work; 18 criminalize same sex relations; 11 impose compulsory detention centres for people who use drugs; and 15 provide the death penalty for drug-related offences.
“The time has come for us to address all laws concerning people from marginalized sections of society. We need to re-look at legislation through the lens of the human rights guaranteed under the Constitution and ensure it is aligned to enable progress and to move with the necessary urgency,” said former Chief Justice of the Delhi High Court in India, Hon. Ajit Prakash Shah. Judge Shah was on the bench that handed down the July 2009 ruling that found India's 150-year-old statute (Section 377 of the Indian Penal Code) prohibiting homosexual acts as discriminatory and therefore a violation of fundamental rights.
Transformative jurisprudence
The striking down of Section 377 through the Delhi High Court was one of a number of protective jurisprudence examples that have had a transformative and beneficial impact on the national AIDS response and on public perception of HIV. Other examples are the progressive court decisions in Nepal, India and Bangladesh that have recognized the human rights of sex workers as defined under national Constitutions; decisions in Thailand and India that have ensured access to affordable generic medicines; and Pakistan’s inclusion of transgender people in population registration under the status of a third gender, among others.
Discussions at the Bangkok dialogue were supported by active involvement of representatives from groups of people living with HIV and key populations at highest risk, together with United Nations agencies and partners, who underlined the importance of the judiciary’s active support to the revision and removal of punitive laws in the region.
“If we don’t deal with these issues, we are not going to end AIDS,” said Mr Shiba Phurailatpam, Regional Coordinator of the Asia Pacific Network of People Living with HIV. “Judicial action can affect social views and have an impact on stigma and discrimination—it can save people’s lives,” he added.
“The law must be a shield that protects, not a sword that punishes and increases vulnerability to abuse, harassment and HIV infection,” said UNAIDS Deputy Executive Director, Management and Governance, Jan Beagle who delivered the keynote address at the meeting. “Judges can help shape social and community attitudes by stance and attitude toward people living with HIV and members of key populations,” she added.
Director of the UNDP HIV Health and Development Practice, Dr Mandeep Dhaliwal stressed that judicial leadership is an essential component of addressing inequality. “Getting the legal environment right is essential for addressing the social and structural inequalities which fuel HIV and impede health and development progress,” she said.
