Compendium of Judgments: Judicial Dialogue on HIV, Human Rights and the Law in Asia and the Pacific, Bangkok, June 2–4, 2013
B. Citro, T. Avafia, T.M. Fidalgo, et al.
United Nations Development Programme, Bureau for Development Policy, HIV, Health & Development Group (New York: UNDP, 2013)
Freely available online here.
Reviewed by HHR contributor Prem Misir, PhD, MPH
This new compendium from the United Nations Development Programme (UNDP) is an effort to support lawyers’ and judges’ understanding of how the law is applied to protect human rights. Compiling the proceedings from the Judicial Dialogue on HIV, Human Rights and the Law in Asia and the Pacific, which was held in Bangkok on June 2-4, 2013, the text builds on the UNDP’s July 2012 publication, Global Commission on HIV and the Law: Risk, Rights & Health.
Expressing confidence in the growing effectiveness of the judiciary’s response to HIV challenges, the author notes that members of the judiciary play a key role in protecting the rights of people living with HIV. The compendium focuses on a range of HIV-related issues including: Non-discrimination in employment, health care, and other settings; access to medicines; same-sex relations; transgender persons’ rights; sex workers’ rights; drug users’ rights; prisoners and detainees’ rights; laws against transmission, exposure, and non-disclosure; discrimination against sexual orientation; and issues of privacy and confidentiality, including unwilling participation in testing.
The compendium focuses primarily on court judgments from Commonwealth countries, reflecting increased judicial effectiveness to HIV-related issues. The following three cases represent the range of judgments covered in the compendium:
- Case 1: In 2012, an auxiliary nurse complained to the High Court of Lagos State, Nigeria that she was terminated from a medical center on the basis of her HIV status. While the nurse was an employee at the medical center, she became pregnant and contracted a skin disorder. At her request, doctors administered tests but failed to disclose the nature of the testing or the results. She was placed on leave and sent to a hospital, which also administered tests without explanation. The nurse was subsequently advised that she had tested positive for HIV. She was not provided with any pre- or post-test counseling services. The nurse was then terminated from her position at the medical center on the grounds of public safety. The High Court ruled that the termination was discriminatory and unlawful; the medical center and the doctor’s failure to obtain informed consent before administering the HIV test amounted to battery; the nurse was legally required to receive pre- and post-test counseling services; and denial of care on the basis of her HIV-positive status was a violation of her right to health. The court ordered the medical center and the doctor to compensate the nurse 5 million naira for unlawful termination and 2 million naira for negligence and failure to obtain informed consent before administering the HIV test.
- Case 2: An armed reserve police constable applied for a position with the civil police in the State of Andhra Pradesh in India. He passed written and physical examinations and was selected provisionally. After his medical examination revealed that he was HIV positive, he was denied training for the new position, in accordance with Andhra Pradesh police code, which stipulated that HIV-positive persons were not suitable for recruitment. The matter went to the Andhra Pradesh High Court, which ruled that the police code was not constitutionally valid. The police recruitment board was ordered to verify the constable’s eligibility for his position based on his current health status, and to appoint him in the new position within three months of the High Court order.
- Case 3: Kylie, a sex worker in South Africa, was dismissed from her job and brought the matter to the South African Commission for Conciliation, Mediation, and Arbitration. One commissioner explained that since sex work was illegal in South Africa, the Commission had no jurisdiction over the matter. Kylie challenged this ruling in the Labor Court, which also ruled that since sex work was illegal, the employment contract was null and void and unenforceable. She then referred the matter to the Labor Appeals Court, which ruled that the constitutional right to fair labor practices is available to all, regardless of whether there was no formal contract. The court noted that the Commission had jurisdiction to arbitrate Kylie’s complaint, regardless of the illegality of the sex work.
This compendium of judgments comes at a critical time, as stigma remains a major challenge to people living with HIV and to key populations seeking access to prevention, treatment, care, and support. While the case studies in the text show a favorable trajectory toward greater support for persons with HIV, there are limitations to the power that the judiciary wields in providing an enabling human rights environment and challenging stigma and discrimination on HIV-related issues. The judiciary is only one factor in the behavior change equation. In order to effectively respond to HIV challenges, the judiciary may have to impact the individual’s intention and the influence reference groups have over that individual’s behavior. In order to effectively respond to HIV challenges, the judiciary may have to understand both the individual’s intention and that individual’s reference groups’ influence over his/her behavior. While the court rulings in this compendium are critical in impacting behavior change toward people living with HIV and AIDS, they are not often disseminated beyond the courts to the HIV workers and communities that need them. We must find a way to use such court judgments to further strengthen the human rights environment for people living with HIV/AIDS.
Ajzen, I, “The theory of planned behavior: Reactions and reflections,” Psychology & Health (2011), pp. 1113—1127.