Thursday 26 February 2009

The injustice of discrimination

Activists here frequently press for a law on HIV. The current legislation does not mention HIV specifically, and there is fear that the law on contagious diseases (which allows for quarantining of those infected) might be applied to HIV infection. We all know that HIV is not contagious, but the difference is not clear in Indonesian.

There is also hope that a law on HIV would outlaw discrimination. In fact discrimination in the health care sector is prohibited by the 1945 Constitution. This should be enough, but although one of the most prominent lawyers here, Todung Mulya Lubis, over ten years ago offered to take any cases of discrimination against people with HIV to court for free, no one has yet to take him up on that offer. Why? Perhaps because the law here is unpredictable. And certainly it would be impossible to guarantee anonymity - in fact almost certainly the plaintiff would become famous!

But most discrimination occurs because of fear, caused by lack of understanding, caused by lack of information. As I raised many years ago in a case involving Dr. Samsu, is it appropriate to take people to court for ignorance? Yes, I know 'ignorance of the law is no excuse', but surely the first approach must be to inform people. Of course there are 'bad' people who enjoy exercising their prejudices, but in my experience that's fairly rare here, at least among the medical profession.

But back to a law on HIV. I've always opposed this for a number of reasons. Firstly, would it not be seen as further exceptionalising AIDS? If we need a law on HIV, don't we also need one on hepatitis? And what will happen when the successor to AIDS appears - as it inevitably will? Will we have to wait years again for a specific law covering it? In my view, much better we develop a more general law which can apply to all infectious (but not contagious) diseases now and in the future.

The second reason is that it is easy to start a movement for a new law. But it is impossible to predict how it will develop. I am very scared that, particularly given the moralising by members of parliament which was characterised by the pornography law, we could end up with a law which does more harm than good. I'll return to this topic in a future post.

I have suggested that we should work to get HIV and other infectious diseases covered more generally in existing laws, particularly Law No, 23 from 1983 on Health and/or Law No. 4 of 1984 on Contagious Diseases. In fact, I was involved in work that started some time back with the Parliament to develop amendments to these laws. However this effort expired as the life of that Parliament ended.

Fact is that the Parliament has a huge backlog of draft laws, so there's not much hope of anything effective happening soon. I guess we're left with current advocacy approaches, which may in fact be more appropriate.

Babé

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