Making the Law Work for HIV : The Fiji HIV/AIDS Decree 2011

                                                                                                                                                                                                                                                                                                                                                                                                                                                              Address by Nazhat Shameem* at the 10th International Congress on AIDS in Asia and the Pacific – 26-30 August 2011 – Busan, South Korea.


Introduction
The HIV/AIDS Decree was passed in Fiji in February 2011. It ended years of lobbying and assistance in preparation by UNAIDS and other civil society groups, determined to enable a legal framework in Fiji which would facilitate an approach to HIV/AIDS based on human rights, non-stigmatisation, education, and awareness.

I was asked to conduct a number of workshops around Fiji, by the Fiji School of Medicine and the Ministry of Health. The workshops were for health professionals, but also for civil society groups, lawyers, judges and police officers. In short, they were for anyone who might have any communication or relationship with those who have HIV status. One of the first attendees was His Excellency the President of Fiji, who has a commitment to HIV issues. Another attendee was the Chief Justice with three of his judges. The Dean of the Fiji School of Medicine, Nursing and Health Sciences attended. Most of the senior teaching staff at the College attended.


The workshops were organised in a way that participants learnt about every section of the Decree, and about the relationship between the International Guidelines on HIV/AIDS, as well as the UN Declaration of Commitment. There were case studies for group work, with examples which touched on culture, religion, the disciplined forces, partner notification, and blood screening for transfusions. The workshops ended with lists of recommendations for effective implementation of the Decree.

In this paper, I set out a summary of the Decree, the background to it, the barriers that I see which still exist in the effective implementation of a human rights based HIV law, and some of the attitudes which can be recognised as continuing to create difficulties in the effective prevention and treatment of HIV/AIDS.

The provisions of the Decree

The purpose of the Decree is set out in its title. It is – “TO PROVIDE HUMAN-RIGHTS BASED MEASURES TO ASSIST IN HIV PREVENTION, AND HIV/AIDS CARE AND SUPPOPRT AND FOR RELATED PURPOSES.’ Section 3 provides that in interpreting the provisions of the Decree, and when exercising any power under it, regard should be had to international human rights standards and in particular to ICCPR, ICESCR, CEDAW, CRC, and CRPD, in addition to the international Guidelines and UN Declaration of Commitment. The Decree was evidently a response to the UN Declaration of Commitment which found that;

“....stigma, silence, discrimination, and denial, as well as a lack of confidentiality, undermine prevention, care, and treatment efforts and increase the impact of the epidemic on individuals, families, communities, and nations....”
The Decree is therefore based on the Guidelines. It has a definition of discrimination under section 2 which is consistent with international jurisprudence, and has a comprehensive definition of “harassment” and “stigmatisation”. The word “stigmatise” has for example the following meaning;
““Stigmatise” includes vilifying or subjecting a person or group to harassment or to incite hatred, ridicule or contempt against a person or group on the grounds that a person or member of a group is believed to be, or is known to be a person living with or affected by, or tested for HIV by-
Another person;
The publication, distribution or dissemination to the public of any matter; or
The making of any communication to the public, including any action or gesture, that is with reference to HIV/AIDS threatening, abusive, insulting, degrading, demeaning, defamatory, disrespectful, embarrassing, critical, provocative, or offensive.”

The Decree makes it unlawful to discriminate against any person who is either living with HIV, or is affected by HIV/AIDS. The latter group is all those people who are partners friends, close and extended family members, work colleagues and members of the same religion, of a person who has tested positive for HIV antibodies or antigen. Apart from a general anti-discrimination provision, the Decree makes it unlawful to refuse accommodation, to refuse employment or promotion, to refuse entry in educational institutions, to refuse partnership in a company, to refuse membership of groups and clubs, to a person who is living with HIV or affected by HIV/AIDS.

The Decree also makes it unlawful to refuse a person means of protection from HIV/AIDS, the term “means of protection” defined as including condoms (male and female) and awareness materials on HIV/AIDS. It is also unlawful to coerce a person to undergo an HIV test, and any test conducted without voluntary informed consent, is unlawful. “Voluntary informed consent” is defined as;

 “a prior written consent specifically related to the performance of that test, freely given without force, fraud, coercion, duress, undue influence, or threat and given with knowledge and understanding of the medical, domestic, and social consequences of a positive or negative result, the nature of that test, that knowledge and understanding having been gained through counselling.”

Fundamental to the effectiveness of the Decree, is the creation of the HIV/AIDS Board, which is to be chaired by the Permanent Secretary for Health. The membership is as follows:

1.     The Deputy Secretary Public Health;
2.    The Chairperson of the Country Coordinating Mechanism;
3.    The Permanent Secretary for women, education, youth and the police force;
4.    A medical practitioner of the Ministry of Health with professional expertise and experience in HIV/AIDS medicine appointed by the Minister for Health;
5.    A senior member of staff from one of Fiji’s three universities with knowledge and commitment to HIV/AIDS issues;
6.    A representative of the international community of donors, the United Nations and regional bodies;
7.    A representative of a maximum of two civil society organisations concerned with the human rights of persons living with or affected by HIV/AIDs. At least one of these people must publicly self-identify as a person living with HIV/AIDS.

The Board has wide powers to drive policy, and to advise the Minister on HIV/AIDS matters in Fiji. It will approve forms for counselling, foster networks of people engaging in HIV/AIDS programmes and activities, and it will keep under review, the effectiveness of the Decree. The Board will have a full time Chief Executive Officer and officers and staff as the Board recommends.

There are other provisions of the Decree which are important, such as the prohibition of mandatory testing, and the provision for the screening of donated blood for certifying and transfusion.
There were also some provisions of the Decree which were not in my view, consistent with the international Guidelines, and which needed re-visiting by Fiji. Indeed, submissions were made to the Fiji government to make amendments to the Decree, and the response was encouraging and progressive. Just days before this conference, those provisions were removed by the HIV/AIDS (Amendment) Decree 2011. 

Reforms

Under section 4(2) of the Decree, immigration officers retained the power to refuse entry to Fiji of a person (not being a Fiji citizen) suffering from HIV/AIDS. However, immigration officers have no powers to force a person to undergo a test for HIV at the airport (or indeed elsewhere) and no powers to ask travellers about their HIV status. In the absence of any such powers, it was difficult to see how the power to restrict entry could be enforced.

The International Guidelines recommend the lifting of all travel restrictions purely on HIV status. More than 125 countries in the world now no longer have such travel restrictions, and the United States, and China lifted their HIV related restrictions in 2010. Indeed there is no evidence that travel restrictions have any effect on preventing HIV/AIDS. Such restrictions may also give the false impression that HIV/AIDS is a foreign problem. The HIV/AIDS Amendment Decree 2011, signed and made into law only two days ago, repealed this provision. There are now no travel restrictions for persons on the basis of HIV status, in Fiji.

Another provision which gave rise to questions was section 5(2) of the Decree, which provided that the Decree did not apply to the Fiji Military Forces. This effectively deprived all soldiers of the protection from discrimination under the Decree. This provision was apparently included because soldiers on peacekeeping missions are required by host countries or other countries which have soldiers serving on multi-national forces, to have mandatory testing for HIV/AIDS.

However, although peacekeeping is a legitimate social aim for the armed forces, the exemption for soldiers from all of the protections under the Decree, was too wide. The HIV/AIDS Decree has now been amended to repeal this provision, and by amendment to section 22, now provides that in posting, recruitment, promotion and discharge, the Republic of Fiji Military Forces is exempt from the provisions on unlawful discrimination. The power to order mandatory testing is preserved for soldiers (and members of the uniformed services) on overseas posting where such testing is required.

Another provision which appeared to be inconsistent with the tenor of the Decree, was section 29(2)(e) and (f) which allowed for a written law which provides for mandatory testing, and for the Minister to order a mandatory test on the advice of the HIV/AIDS Board and the Permanent Secretary. It is difficult to imagine a situation where either section might become operative. Wisely, this provision was repealed this week by the HIV/AIDS Amendment Decree 2011.

Finally, the Decree had a section which created the criminal offence of deliberately infecting a person with HIV or attempting to do so. To prove this offence, the prosecution would have had to prove that the suspect knew he or she carried HIV. However the International Guidelines advise against criminal offences which target those who are living with HIV/AIDS. After all, the criminalising of HIV/AIDS has been counter-productive in preventing and treating the infection. It drives those who are infected underground, making it harder to achieve behavioural change through education and counselling.

The Fiji’s Crimes Decree already contains an offence which is general, of negligently spreading an infectious disease, knowing or having reasonable grounds to believe that one has the infection. The word “negligent “under the Crimes Decree is harder to prove than the civil standard of negligence. It is “gross” negligence which requires evidence of such a high degree, that it warrants the interference of the criminal law. In the circumstances, it is difficult to justify another offence in the HIV/AIDS Decree, which “targets” those with HIV/AIDS. Similarly the provision in section 40(2) of the Decree which allowed the Permanent Secretary to obtain an injunction against a person, whose conduct may on the balance of probabilities transmit the infection to others, was unnecessary. The Crimes Decree offence, with the Bail Act which allows the court to set conditions on bail, breach of which is a criminal offence, are general provisions which apply to all persons. They do not target those who are living with HIV/AIDS. They also provide adequate remedies against those rare individuals who deliberately transmit the infection despite counselling, by, for instance, having unprotected sex.

The whole of section 40 has now been repealed by the HIV/AIDS Amendment Decree.
Why was Fiji able to so effectively pass this Decree, and then, having found that some sections in it were inconsistent with the International Guidelines, how was Fiji able to make the necessary changes so quickly?

I believe that the answer is firstly in the partnership and networking approach adopted by civil society groups, the Fiji government, and UN agencies such as UNAIDS and the UNDP. Secondly, I believe that Fiji's Ministry of Health has a strong commitment to a human rights based approach to HIV/AIDS prevention and care. Thirdly, there is a strong political will, in Fiji, to ensure that the reform to HIV law is based on a framework which has long term survival and sustainability. Lastly, I believe that the support of advocates for HIV work, from the President of Fiji, to the many civil society groups represented here at this conference provides strong and enlightened leadership such that the necessary reforms could be effected. The result is an HIV law in Fiji which is now a model for the world. Indeed there are many developed countries which can take a leaf out of the Fiji book in this regard.

The Future

No matter how good a law is, the effectiveness of it is in the implementation, and in the will of those concerned to implement it. The reason why there may be challenges in implementation is the same reason why the law had to be changed in the first place. That reason is stigma, and attitudinal barriers to a human rights-based approach to HIV/AIDS protection and prevention. It is now well known that gender inequality is one of the factors which make HIV prevention so difficult to tackle. If, for instance, a wife of partner in a relationship has no effective right to ask for protected sex, because of the inequality in the relationship, then the law on the right to access to protection is unlikely to be ever implemented. If she is unable to request a condom, she is also unlikely to have an effective means of accessing the justice system in order to enforce her rights.

Similarly, attitudes to sex work create another barrier. As in most countries in the world, Fiji continues to criminalise sex work. A sex worker in effect, is unlikely to report a failure to accede to a request to wear a condom, if in doing so he or she will have to make an admission that he or she is involved in sex work. In this regard, the de-criminalising of homosexuality, in 2009 through Fiji’s  Crimes Decree was a significant step towards the effective implementation of a human rights approach to HIV/AIDS.

 Police attitudes to HIV/AIDS are another hurdle. All the unlawful acts under the Decree, the unlawful act of discrimination against a person living with or affected by HIV/AIDS, the unlawful act of stigmatisation, the unlawful act of refusing a person means of protection from HIV/AIDS, and the unlawful act of providing blood products without screening and certifying, are all criminal offences, punishable with a maximum sentence of two years imprisonment and/or a fine of $100,000 for corporations, and $50,000 for individuals. Responsibility for investigation and prosecution lies with the police force. The effective implementation of the laws on HIV/AIDS will depend on police awareness of the reason for the law, and sensitivity to a human rights approach to HIV prevention. Traditionally, the police have only been concerned with people who “deliberately infect others with HIV”.

Much depends on the HIV/AIDS Board, its membership, adequate resourcing of it, and the effectiveness of the policy guidelines issued by it. Its membership gives us good reason to expect effective implementation. The Decree also provides that any policies issued by the Board will have the force of law, and that any person who contravenes the policies commits an offence. This provision gives the Board “teeth”, but will require a strong partnership with the police force to ensure that police officers are aware of the provision, and of the Board’s policies.

Nevertheless, with the passing of the HIV/AIDS Decree, the future for HIV/AIDS prevention and treatment in Fiji looks a great deal sunnier than it did in 2010. The Decree indicates in the clearest possible terms, a political will to adopt a law based on the International Guidelines. The Decree provides that in the interpretation of the Decree, the courts and other bodies shall use the Guidelines and international law. The adoption of the Guidelines and other international instruments and conventions has already led to courts in Fiji to conclude that government intends the incorporation of ICCPR rights in our domestic law. This is so, despite the fact that Fiji has not ratified the ICCPR.

Another very positive indicator for Fiji is that the Ministry of Health itself, took the initiative to train as many people as it could, on the provisions of the Decree. This shows a political will to see that the Decree works. In particular, the attitude of the Program Manager for HIV/AIDS is one of determination and commitment. Other members of the Ministry, some of whom are attending this conference, are similarly enlightened and committed. This attitude was evident during the workshops. Indeed their passion enthuses others, even the cynical lawyers, and the suspicious civil society groups! The Ministry’s work with UNAIDS and civil society shows us that the best approach, both nationally and internationally, is one based on support, networking and partnership. The implementation of the Decree will showcase the effectiveness of that partnership.

Conclusion

The passing of the HIV/AIDS Decree in Fiji was a positive step towards dealing effectively with the prevention and treatment of HIV/AIDS. Properly implemented, it will help health workers and civil society to take an intelligent approach to HIV prevention and care. It will also help Fiji to take head on the problems of discrimination and stigmatisation, which have so far, impeded such an approach.

The Fiji government’s response to amending various provisions of the Decree, such as the section which criminalised the deliberate infection of others,was positive and encouraging. The HIV/AIDS (Amendment) Decree removes those provisions which appear to be inconsistent with the UN International Guidelines on HIV law. The setting up of the HIV/AIDS Board and continuous training will be important to ensure the effective implementation of the Decree.

The Decree provides an enabling environment for changes in social and professional attitudes. It is a significant and enlightened step towards the effective and human rights based approach to the prevention and care of those who live with HIV or are affected by HIV, in Fiji.
       


Nazhat Shameem, Barrister and Solicitor, Fiji.
I was assisted by Ms Ana Tuiketei, Barrister and Solicitor, and Mr Jone Vakalalabure, Programme Officer, UNAIDS.
The author of this paper wrote a discussion paper for UNAIDS on suggested reform of the Decree which was in turn submitted to the Fiji government. After consideration by Cabinet, Government agreed to approve the Amendment Decree which, in effect, removed the provisions.
 Section 26(2)(a).
 Section 33 of the Decree.
State v. Sakuisa Basa and Others Suva High Court, 15 August 2011, per Thurairaja J. His Lordship found that the HIV/AIDS Decree which specifically incorporated ICCPR rights allowed the courts to use those rights to protect person in custody. Costs were awarded against the State for discontinuing a prosecution which was hopeless at a very late stage in the trial, for a prisoner who was held in solitary confinement in prison.