Legal issues relating to HIV positive people are little known.

Dev Nadkarni
There are an estimated 80,000 people living with HIV/ AIDS in the Pacific islands region, with the highest incidence being in Papua New Guinea. The rate of infections is steadily rising not just in PNG but also other hotspots in the region like Fiji and smaller countries have begun to report new cases over the past couple of years.

Sustained publicity and outreach programmes in the region have shown good results in terms of increased awareness and knowledge of causes and prevention methods, but there are a number of other issues relating to people living with HIV that do not get the importance they deserve in the fight against HIV/ AIDS.

One of these is legal issues. Discrimination, ethical aspects, right of access to treatment, privacy and confidentiality tend to get sidelined in the blitzkrieg of publicity about prevention and prophylaxis. There is comparatively little that appears in the media about these important issues that sufferers have to contend with after turning positive.

Last month, a conference in Auckland brought these issues into sharp focus for the entire region. Organized by the United Nations Development Programme’s (UNDP) Pacific Centre, Pacific Regional Rights Resource Team (Pacific RRRT) and UNAIDS, the consultation resulted in a declaration signed by fifteen participating Pacific islands countries that laid out a path for legal reform relating to cases involving people living with HIV.

The three day meet attended by some forty delegates including Attorneys General, health ministers and senior government officials besides legal experts also examined existing legislation and came up with suggestions for legislative reform that can be adapted for each Pacific Island country context.

The participating countries involved in this HIV review were Papua New Guinea, Vanuatu, Solomon Islands, Fiji, Marshall Islands, Federated States of Micronesia, Palau, Nauru, Niue, Tokelau, Samoa, Kiribati, Tonga, Tuvalu and the Cook Islands.

Delivering the keynote address, Australian judge and HIV activist, the Honourable Justice Michael Kirby said the Pacific region no longer had the luxury of “living in denial”, urging Pacific leaders and policy makers to tackle the difficult and controversial issues. Some strategies for combating HIV such as promotion and knowledge of condoms and decriminalization of sex workers were controversial and therefore often given less priority, he pointed out.

UNDP Resident Representative in PNG, Dr Jacqui Badcock said the Pacific was following the global trend in which HIV disproportionately affected the feminine gender, attributing it partly to the reluctance of countries and individuals to embrace gender equality in thought, law, policies and social institutions.

“There is a growing body of evidence to show that a significant number of women infected in PNG have been infected by their husbands or intimate partners. There is virtually no defense against that reality: the power imbalance in marriage is too great to permit or to request the regular use of condoms,” she said.

Many of the conditions that exist in PNG and have fueled the rapid spread of HIV also exist in other Pacific Island countries and it is important to learn from the PNG experience and apply that knowledge in those countries.

Former Fiji Vice President and legal practitioner Ratu Joni Madraiwiwi said, “The right to privacy and confidentiality of people with HIV/AIDS continues to face practical and competing challenges. The dearth of constitutional and legislative provisions to reinforce and anchor this right emphasizes the vulnerability of those affected.”

He also pointed out the challenges faced by people living with HIV in existing employment laws and privacy issues relating to medical records. He illustrated circumstances in which the veil of secrecy and confidentiality relating to an individual’s HIV positive status need to be lifted. “Although Pacific jurisprudence in this field has yet to develop, Courts in other jurisdictions have been very active,” he said quoting instances in countries like Canada.

Global and regional experts in the areas of HIV advocacy, the law, human rights and gender also discussed issues of privacy and confidentiality, testing and counseling, access to medication and information, and care as well as support issues during the conference. A few short films highlighting issues relating to people living with HIV in the islands were also screened in between sessions.

Misa Telefoni Retzlaff, Samoa’s Deputy Prime Minister summed up the three day meeting by highlighting that HIV was a human issue that touched individuals, communities, countries and economies and needed a holistic human rights based approach.

He also emphasized the urgent need for all sectors of the community --from infected and affected people, religious leaders, sex workers and the gay community-- to work together to counter HIV.

The fifteen participating countries signed a declaration --what is now known as the “Auckland Consultation Statement”-- emphasizing the importance of:
•    Rights based responses and public health approaches;
•    Access to medicines and intellectual property rights;
•    Privacy, confidentiality and all human rights of those living with HIV;
•    Law reform; and
•    Working with and for marginalized and vulnerable groups.

The Declaration noted that stigma and discrimination towards people infected or affected by HIV impeded universal access to prevention, treatment, care and support and provision of services.

It identified National legislative reform as being an important mechanism in controlling the spread of HIV in the Pacific and reducing stigma and discrimination towards people infected or affected but HIV.

The Declaration called upon UNDP, UNAIDS and Pacific RRRT to continue providing technical assistance in the area of legislative reform, building on the discussions that were started during the course of the three day conference.

It also noted the importance of regional networking to encourage dialogue, share best practices and sustain the regional co-operation in the area of HIV.

The Pacific leaders agreed that the UNDP Pacific Centre, UNAIDS and RRRT would take a lead role in the regional networking initiative in the area of HIV and the Law, Ethics and Human Rights.

This conference successfully focused on the human rights and legal issues faced by people living with HIV in the Pacific and took the first steps to usher in a climate of legislative as well as policy reform.

Madraiwiwi eloquently underscored the importance of law in fighting the spread of HIV saying, “The law must have an enabling and facilitative role which places those with HIV/AIDS at the head of their priorities. What is critical is an understanding and appreciation that a co-operative, and compassionate empathy must infuse and inform all the resulting initiatives. Without it, the HIV/AIDS pandemic may well continue to plague generations as yet unborn.”