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By Helen Chung

On Saturday 16 August, the Bar Council presented a seminar on Human Rights and HIV/AIDS to improve general understanding of the disease, as well as to explore some of the ways in which lawyers can help promote and defend the human rights of people affected by HIV/AIDS. Speakers included Dr Chow Ting Soo, an infectious disease specialist; Datuk Dr Faisal from the AIDS/Infectious Disease Branch at the Ministry of Health, Professor Mehrun Siraj from the Law and Ethics Committee of the Malaysian Aids Council and two other persons living with HIV to share their experiences with the participants.

What is HIV/AIDS?

According to the Malaysian Aids Council 'Staying Alive' booklet:

HIV (Human Immunodeficiency Virus) is the virus that causes AIDS. HIV attacks the body's immune system, making it weak and less able to fight off diseases. When a person is confirmed to have been infected by HIV, the person is said to be HIV positive (HIV+). This does not necessarily mean that the person has AIDS.

AIDS (Acquired Immune Deficiency Syndrome) is the name given to a group of illnesses, which occur in HIV+ people as a result of a weakened immune system.

A cure for the disease has not yet been found.

In the December 2002 report by the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the World Health Organization (WHO), it was estimated that the total number of people living with HIV/AIDS was 42 million. In 2002, alone, there were an estimated 5 million new infections and 3.1 million deaths as a result of the disease.

Although the HIV/AIDS epidemic is having its worst impact in sub-Saharan Africa, one would be mistaken to think that HIV/AIDS is not also a matter of grave concern in Malaysia. In the seminar, Dr Chow referred to a report from June 2002, which stated that over 47,000 cases of HIV/AIDS have been reported in Malaysia since the first case in 1986. This figure has increased by over 3,000 each year since 1994.

An escalating HIV/AIDS epidemic will have an increasingly adverse impact on the socio-economic development of the nation. There is therefore a need for concerted action by all Malaysians to halt the spread of HIV. To assist in this effort, the Malaysian AIDS Charter sets out a basic framework of shared rights and responsibilities incumbent upon all in Malaysia. It contains general rights and responsibilities, those of individuals and healthcare workers and those in relation to employment, education, prisons and detention centres. Many of the rights contained in the Charter are based on internationally recognised human rights.

HIV/AIDS and Human Rights

The Malaysian government has made commitments to addressing the HIV/AIDS epidemic, such as through the United Nations General Assembly's adoption of the Declaration of Commitment on HIV/AIDS in 2001. However, it is yet to enact legislation which adequately protects the human rights of people affected by HIV/AIDS.

As an indication of the human rights situation amongst HIV+ people in Malaysia, a survey was conducted by the Malaysian AIDS Council in 2000 entitled 'Living with HIV/AIDS in Malaysia: a peer documentation on discrimination.' It stated that, of the 95 HIV-positive respondents involved, 27.4 percent claimed they were discriminated against by health workers, 19 percent were mistreated at work, 41 percent lost their jobs, 14 percent were forced to change residence and 55 percent lost their partners. Other forms of discrimination include refusal of insurance coverage and more frequent disclosure of personal information.

The case of Mr and Mrs Chang provides another example of discrimination suffered by persons living with HIV/AIDS. Mr Chang is a Malaysian national. He has effectively been prohibited from living with his wife. The reason for this is that she is a Taiwanese national and they are both HIV positive. Taiwanese law prohibits Mr Chang from immigrating to Taiwan. Unfortunately Malaysian law also prohibits Mrs Chang from immigrating to Malaysia. This is a form of discrimination because, if it were not for their HIV status, Mr and Mrs Chang would be legally able to live together. This example shows that Malaysian laws not only fail to sufficiently protect the rights of people affected by HIV/AIDS, but they have directly violated them.

It is important to acknowledge that there may be justifiable circumstances in which the rights of people affected by HIV/AIDS need to be limited. In such cases, the human rights should only be restricted when: (i) it is prescribed by law; (ii) it is necessary; (iii) it takes place in a democratic society and (iv) it is proportional in achieving the aim. When placed under this test, Malaysia's restrictions on immigration for foreigners with HIV may not seem justifiable. However, the writer would suggest that, at the very least, there should be a legal process whereby exceptional cases, such as genuinely married couples, can be considered.

What can lawyers do?

You can:

• recognise that there are human rights which persons living with HIV/AIDS should enjoy to the same extent as other citizens;

• promote these rights in your personal and professional lives;

• defend the rights of people living with HIV/AIDS;

• lobby people in government and Parliament to make appropriate legislative changes including not only recognition of rights, but clear procedures for their enforcement;

• set an example for the rest of Malaysian society so as to help eliminate stigma, discrimination and human rights abuses.

The intention of this article is only to provide a brief introduction to the issues regarding HIV/AIDS and human rights. Further information can be obtained through the UNAIDS website www.unaids.org or through contacting the Malaysian Aids Council (MAC) at their office at No. 12 Jalan 13/48A,The Boulevard Shop Office, Off Jalan Sentul, Kuala Lumpur. MAC has a resource center and also a Law and Ethics Committee which will be able to provide information from a legal perspective.

Due to the lack of responses for the seminar we had on HIV/AIDS and Human Rights recently, the Human Rights Committee would like to have your feedback on whether this would be an interesting topic to discuss again in future. If yes, what sort of methodology or structure would you find most effective, etc. We would also appreciate your input on what human rights areas would be of interest and use to you. Please let us know through email to the Bar Council at council@malaysianbar.org.my.

In future, we would like to establish a survey to find out which areas of interest you have on human rights so that we can assist you in developing your interest. A questionnaire will be sent out to each one of you and we would appreciate it if you could return the completed questionnaire for our reference.

Published in Infoline September 2003

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