Asian People’s Alliance for Combating HIV&AIDS

Anand Grover, the Director of Lawyers Collective HIV&AIDS Unit, Mumbai and UN Special Rapporteur on Health is one of the leading figures in Asia. Mr. Grover has significantly contributed in the sectors of Law and HIV&AIDS. He is one of the pioneer human rights defender around the issues of violation of human rights in face of HIV&AIDS. Mr. Grover and his team have worked significantly to promote rights and justice in India and abroad. Sabita Gyawali, spoke to Mr Grover on issues around Law and HIV&AIDS in Asia. Below is the summary of the conversation.

What role can law play in the response to HIV&AIDS?

A1. The law can play an important though only a supplementary role. It can provide the necessary normative paradigm and also help in establishing an enabling environment essential to tackle HIV&AIDS.
What is the overall Asian response on HIV&AIDS and the law?

A2. In terms of actually enacting a law on HIV&AIDS, we have HIV specific laws in few countries like Philippines, Cambodia and Australia. However, lot of other countries have also started using the right's based approach to tackle HIV&AIDS, this means protecting and the promoting the rights of PLHAs in order to tackle HIV&AIDS.
In some Asian countries there are HIV&AIDS laws but they have not been used for the benefit of the PLHAs and the vulnerable communities, what do you think of that? Is making a law enough to protect rights? What do you think should be done?

A3. There are only few countries that have HIV specific laws; others do not have it. However, it is necessary that the law must be based on the rights based approach that is to combat the spread of HIV&AIDS one must protect the rights of PLHAs not infringe them. If one does not have a PLHA-rights based law, there are minor possibilities of protecting or promoting their rights. However even if one has a PLHA rights based law, it does not mean that they have got their rights. Implementation is another step; Implementation requires building the capacity of the PLHAs to exercise their own rights and the State and other duty bearers (establishment) to respond to it. This involves sensitizing the State entities on the rights and the law. Apart from this you need access to the justice (court) system with sensitive lawyers and legal aid that works. All these elements are necessary to protect and realize the rights of PLHAs.
Most often the legal sector in Asia seems to be least bothered about HIV&AIDS issues, what is the main reason behind this and what is your message to your fellow lawyers?

A4. You are right. Overall, the legal system in Asia has been less responsive. That is partly because the way HIV has affected the Asian countries. It is still a concentrated epidemic. It largely affects the marginalized groups, who are disempowered and not likely to demand their rights. So the issues do not enter the legal system. Even when they do, on account of marginalization, lawyers are not ready to take up those cases. But in some countries, like in India, HIV has spread in the “general public”, where legal issues of discrimination against workers are in the workplace have come to the fore. These (workers) are not traditionally disempowered sections of society and they are active to demand their rights and as a result are ready to go to court. Lawyers are ready to take up such cases. However it is a big step for lawyer to do a case from worker’s to that of a drug user or a sex worker or gay man. Likewise, it is poverty which is the basic reason for the less responsive nature of the legal system. Again that is because there is no money in the area. Lawyers need to be sensitized. Money needs to be pumped in for legal aid. My message to fellow lawyers is that the HIV issue is not only very challenging legally but also very rewarding. Lawyers should take it up like a mission to protect the rights of PLHAs and to fight for their right and dignity.
How far has India gone with the HIV law making process and how optimistic are you about it?

A5. We had a very good beginning and laid a very good foundation. Not only is the HIV bill fairly good, the process of drafting has ensured that the community has a big stake in it. It was drafted by the Lawyers Collective with inputs from all the stake-holders, PLHA networks, marginalized groups like sex workers, drug users, Men having Sex with Men (MSM); trade unions and employers; women; children; health care workers; government bodies etc. This will ensure that when the law is finally passed it will be beneficial to all. The HIV Bill was fully approved and endorsed by the Health Ministry and finally it was sent to the Law Ministry last year. The Law Ministry chopped few parts of the bill but the Health Ministry wants them restored. The PLHA networks protested the removals. We hope that all this will be sorted out by early next year and the Bill will be tabled in the next session of Parliament.
What are the major challenges regarding the issues of Law and HIV&AIDS and the rights of people?

The major challenge initially is to make the governments accept that the rights based approach, that is, protecting and promoting the rights of PLHAs plays fundamental role in tackling the spread of HIV in society. The legal issues that are involved are consent only to HIV testing and treatment; preservation of confidentiality; non-discrimination; access to treatment; right to information and education; protection harm or risk reduction strategies; facilitating access to justice for PLHAs; involving PLHAs and other affected groups in decision making, implementation and monitoring the implementation.
How role does the law play in ensuring people’s access to medicines at a time when the issues of WTO and patent regimes are dominating public priorities?

A7. The role of the law is even more important in the era of the WTO mandated patent regimes. The TRIPS mandated patent regime does not detract State Parties from their other obligations under international law or their own Constitutions. State Parties which have signed on to various covenants, including the International Covenant on Economic, Social and Cultural Rights (ICESR), the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW), or the Child Rights Convention (CRC) are bound to protect and promote the right of health of all persons. Initially there was a doubt whether TRIPS and IPR agreements over rule the other obligations under International Humanitarian law. After the Doha Declaration it is accepted internationally that every state is entitled to use all the provisions in the TRIPS mandated regime to ensure that medicines are available to all. So State Parties cannot escape from the obligations under international humanitarian law. However rather than a general obligation of the right to health either international law or the Constitution, I think it is better that the right to health is particularized specifically in a statute which is enforceable.
Do you consider a need for a multi-sector response to HIV&AIDS? In this regard do you see a potential link between the Lawyers Collective and APACHA?

A8. The multi-sector response is an effective response to HIV&AIDS. The question is what that means. Does it mean integration of HIV in the existing frame-work of sometimes inefficient sectors of governance or does it mean the new paradigm of rights espoused in HIV&AIDS being taken as a new paradigm in other sectors? I would think it is the latter. In that scheme of things all civil society actors, particularly the PLHA networks and rights based NGOs can link up and play an important role. In that framework I definitely see a potential link up with the Lawyers Collective and APACHA.
How do you respond to the increasing privatization of health and a weak public health system in Asia?

A9. This is a major issue. I don’t think we will be able to deliver health for all based on the privatization of health. We need to campaign aggressively for larger investment in public health facilities, which alone can deliver Health for all. There is a need to strike a correct balance between the public and the private sector.
You have been appointed as the UN Special Rapporteur on Health. What are the major responsibilities and challenges?

A10. The UN Special Rapporteur (SR) is a particularly challenging assignment. It is an unpaid job with double responsibilities. The idea being that the SR should remain an independent expert. However the SR’s job is huge and one has to take up the challenge, which is ultimately quite rewarding. The SR receives complaints about violations of rights, in my case about health. The complaints are converted into letters of allegations (if not urgent) and Urgent Appeals (if urgent) and sent to the State Party (Government) who are concerned. The text of the letter or appeal is confidential. The assessment is that the Governments respond to these appeal if in case they do not respond specifically to the SR, the SR can issue press statements,( in case of very important issues). We just did that in the case of Zimbabwe. The SR is also expected to make thematic reports on issues of importance. This has been about three a year. Lastly the SR makes two country missions a year. This is dependant on the invitation from the State party.