HIV/AIDS : Laws and ethical issues

By Sapana Pradhan Malla

Human Rights are universal, inalienable and indivisible rights of every human being. However, their widespread abuses and violations in association with HIV/AIDS have emerged as a major challenge all over the world. In South Asia, this is not only due to individual, social and cultural behaviour, but also because of the state made laws and policies. The state cannot escape from its obligation to promote and protect the right of People Living with HIV/AIDS (PLWHA) by making individual behaviour alone responsible. Discrimination and stigmatization on the basis of HIV infection is a violation of right to live with human dignity.

Bringing social and cultural change is a challenging issue. But law also plays a definite and purposeful role in bringing about desired social change if it is sensitive to social, economic and cultural complexities. Moreover, the process of law making generates social capital, which is necessary for the effective implementation of law.

Unfortunately, the law-making process reflects a ‘top-down’ approach, insensitive to the social, economic and cultural complexities, which have always been challenging at the enforcement stage. In this context, it is important to facilitate structuring of a comprehensive human rights and gender sensitive HIV/AIDS policy and legal framework in the country.

The ‘threat perception’ among medical professionals discriminate PLWHA as a means of protecting themselves. Furthermore, it is difficult for most health institutes to apply and observe universal precautions due to the lack of resources and infrastructure. Even the process of decontamination of wastes is not being practised at many health institutions in Nepal. The media has, by highlighting only the sexual mode of transmission of HIV, further stigmatizes its victims. Due to the social misunderstanding of the problem, PLWHA cannot disclose their sero-status to avoid becoming alienated in their own family and to prevent unemployment at work place – so there exists a great potential for infection by denying its existence for fear of being chastised.

Even though various fundamental rights are guaranteed by the constitutions of South Asian countries, when it comes to people living with HIV/AIDS, applications of rights are unequal. For example, the Indian Supreme Court suspended the right to marriage for PLWHA, whereas in Bangladesh, the High Court established the right of sex workers to work going beyond constitutional provisions that discouraged prostitution and gambling. Such conflicting rights have created confusions among lawmakers and interpreters.

The judiciary can play an important role through the judicial intervention in protecting the rights of PLHWA. In a country like Nepal, where the Government does not seem to be committed to solving the problem, access to justice through the implementation of the Covenant on Economic, Social and Cultural Rights could be one strategy to define the link with human rights instruments. Lack of infrastructure and resources cannot be an excuse for not accepting it as a right of every individual.

Various laws such as the Infectious Disease Act, 1963; the Prisons Act, 1963; and the Hotel Management and Sales and Distribution of Liquor (Control) Act, 1966 discriminates against PLWHA segregating them on the basis of their sero-status. Health insurance policy excludes HIV infected persons and denies treatment to those who are in urgent need of health care. Drug policy does not recognize medicine as a basic need of people. Policies such as safe syringe distribution for intravenous drug users, and lack of law for mandatory screening of blood and blood products
for transfusion have also created complications in addressing the problem. The taboo related to sexuality in general public and non-acceptance of homosexuality are some of the factors that increase the vulnerability of homosexuals.

Laws have made women more vulnerable to HIV infection. Marital rape is not recognized as an offence. The law is still based on traditional concept that sees women as an object made for the comfort of men, and once a woman is married, she cannot say no to sex, as it is considered her duty to serve her husband. The law itself has indirectly permitted rape of prostitutes, since raping prostitutes only warrants a tokenistic punishment of a fine of Rs 500 or an imprisonment of up to one year. State made laws themselves facilitate the rape of certain categories of women. Around 200,000 Nepalese women are in Indian brothels. Adultery by a woman provides a legal ground for divorce, whereas the same is not applicable for men.

Abortion is not allowed even in the case of HIV positive mother. Though the Country Code (Eleventh Amendment) Bill, 1999 does contain a provision for the right to abortion, due to lack of political commitment towards women’s issues, the Bill is still pending in parliament even after having been registered six years ago. Discriminating laws such as property rights and lack of control of resources is another problem facing the women of Nepal, India and Bangladesh. Therefore these women are more vulnerable to harassment as they are dependent on their male family members.

Human-trafficking is a serious crime and is very rampant in South Asia. It has been documented that there is a lack of extra territorial jurisdiction; lack of application of extra territorial jurisdiction; and extradition treaty among India, Bangladesh and Nepal. The Extradition Treaty between India and Nepal does not include trafficking. This and uncontrolled migration have made women more vulnerable to HIV/AIDS.

In Nepal, a protectionist approach has been introduced under the Foreign Employment Act, (1985) which states that an employment agency needs the approval from the guardians and the government to send women for foreign employment. Instead of creating conducive environment, laws restrict human rights that include rights to mobility and income generation, making the situation graver.

An initiative has been taken to enact a new trafficking law which has proposed to criminalize prostitution and the state has taken a neutral stand with regard to voluntary prostitution. Under Section 54 of the Criminal Penal Code (CRPC) of Bangladesh, if a woman is found with a condom, police may arrest and put her in jail. This makes Commercial Sex Worker (CSW) vulnerable to HIV/AIDS as it discourages the use of condom.

Such legal provisions are prevalent in other South Asian countries as well. Therefore, it is also important to have a regional study to identify "commonalities in terms of social, economic, political and cultural factors and particularly cross border activities institutionalized in several respect, to enable appreciation and comprehension of the problem at a broader level possibly leading to nation specific and region focused approaches to address the problem".

Empirical data collected by Forum for Women, Law and Development (FWLD) has identified cultural and social factors that have contributed to women’s vulnerability to HIV. It has been identified that respondents are reluctant to discuss sex; right to sexuality is controlled by men; and refusal to have sex with one's husband can lead to severe consequences such as rape, bigamy, extramarital relation, physical and mental abuse. It has also been found that because only male-friendly condoms are available in the country, women sex workers lack negotiating power to use condoms, and denial to sex without condoms can lead to torture and abuse. This is due to economic dependence and customary practice towards marriage.

Condoms are perceived as a tool for birth control only and not for the protection of sexually transmitted disease It was concluded from the empirical data collected that women have been discriminated in power relation due to social and culture context which makes them more vulnerable to sexual exploitation, and hence, to HIV/AIDS infection.

It is indeed challenging to formulate gender sensitive laws and policies that take into account social and cultural factors as well.

Right or left, no woman there

By Pragya Karki

As usual, noise, laughter and merrymaking prevailed in our family gathering, the other day. From the undisputed head from our family to the youngest ones, everyone was having their sweet time. No doubt, family gathering is the best time to speak out and listen carefully to others. In the meantime, one of my sisters shared her experience with us. She had gone to give an interview after she had passed her written examination. She went inside the room where judges/interviewers were stting. She was asked various questions and she gave her best replies. In the course of the interview session, she noticed that all of them were men. Her eyes searched for a presence of a lady, but except herself (an interviewee) there wasn’t any female in the panel of judges. She finished her oral examination and came out curious and dissatisfied. She was applying for a job in such a big financial institution where females do work but in a decision making process, there was no role for them, or so it seemed. After hearing this story, we females ( in the family gathering) voiced our utter grievances.

Man and woman, they say are the two wheels of a chariot. Since ancient times, woman have played a prominent role. We cannot imagine the existence of Lord Shiva without Parvati (Shakti), neither can we praise the heroic fighting of Lord Ram without giving due recognition to Mother Sita for her virtues such as tolerance, patience and self-control. But still women’s qualities are taken for granted or passed off as common traits, not as her invaluable strength.

On behalf of all the Nepali women, I have a genuine question especially to those who give a long lecture and speech against gender inequality. We have witnessed a third round of the peace-talks between the government and the Maoists. We have seen the results too.

Surprisingly, we didn’t see any female negotiator, neither from the government side nor from the Maoist side. As far as I know there are ladies present (though very few) in Sher Bahadur Deuba's jumbo cabinet. Decision making is a human and rational process which calls for intellectual abilities. The perception that only men are endowed with such gift is laughable, and smacks of rustic prejudice.

Politics of wastes

By Chiranjibi Kafle

Politics of wastes in our country will probably take a long time to end, as none in the concerned sector is yet truly serious about resolving the garbage menace. Back in 1992, when P L Singh was elected to the mayorship of the capital city of Kathmandu, he had pledged to turn the then municipal city into a clean-green-and-healthy metropolis. And indeed, he made the city ‘metropolis’, but the clean-green-and-healthy project remained only a promise.

Obviously, P L’s pledge for a clean-green-and-healthy Kathmandu was motivated by nothing other than the widespread concern of the general public over the rampant pollution caused mainly by the haphazard and ill-managed solid waste disposal system of this city. Sadly, this concern has always been superseded by dirty party politics whenever it comes to the question of doing something concrete to root out the problem. As a result, whether it is on the question of finding a lasting site for dumping Kathmandu Valley's waste or launching preventive or corrective measures that can help keep the city atmosphere clean, vested interests of some groups or political parties have got priority over public needs.

It is known to all that, during the past few years the city’s solid waste has provided much fuel to the drivers of major political parties, or their sister organisations, to steer the cause of their own vested interests. Otherwise, how can the authorities concerned —who are none other than the license-holders of one or other of the same political parties—relish the irresponsible activities such as dumping the waste at Tundikhel in the heart of the city or leaving the ‘garbage’ uncollected for weeks and even months, thus displaying the city’s shame?

In fact, solid waste has grown beyond limit in Kathmandu. Wherever we walk through, we have to cover our nose, screw up the face and move ahead with a sense of helplessness. The situation does not seem to be changing even though a dozen autumns have passed after the restoration of democracy. Neither the Ministry of Environment nor the local bodies concerned seem to have any interest now, as if the question of solid waste management deserves to be kept in a perpetual limbo. It’s as if a lasting solution to this problem would deprive our political leaders of ‘food’ for next elections, or as if a clean atmosphere would ruin the prospects for lucrative donations to the health and sanitation related NGOs.

No municipal authority would perhaps want a teaching from anyone as to how it could manage its wastes. This is because the topic is so ordinary and it would sound just foolish, or rather, it may hurt one’s prestige, to try to learn from others the art of keeping one’s place clean.

Yet, as things have not changed even over a long period of time, it may not be wrong to think that most of our municipal officials are ‘incompetent’ to manage solid waste and maintain urban sanitation. So, teaching them some techniques may not be out of order.

If municipal authorities are really interested in coping with the present mess of garbage management, what they need to do is: at least take some simple but bold moves that can encourage people’s participation. As people and their habits are primarily responsible for the creation of solid wastes, the problem cannot be effectively tackled without their support.

Agree or disagree, increasing use of plastic or polythene bags by people of various strata—from fruit vendors and pedestrians to vegetable grocers and shopkeepers—has contributed much to an ever growing solid waste. If such inorganic bags were to be avoided, people would arrange for dumping much of their organic domestic rubbish on heir own house premises, which in turn would soon decompose into the soil. Presently, the same wastes are stuffed into plastic bags and thrown away, adding to the piles of garbage on the roadsides. Banning of plastic bags can naturally reduce the city’s solid waste to a great extent.

Only a few weeks ago, it was reported that the Tribhuvannagar Municipality in Dang had shown some interest in checking the unrestrained flow of plastic bags in the town. Unfortunately, however, the project had to confine itself within the papers only, as politics sneaked into the scene. According to news reports, the drive against the use of polythene bags in Dang was obstructed by local businessmen's non-cooperation. And they continued to use the plastic bags, saying the ban was meant only for the brands other than theirs. Also, some businessmen tried to justify the use of plastic bags based on their colour. For them, the white ones were just "permissible". The Municipality could not enforce its anti-pollution drive effectively. This is quite disheartening.

The drive against the use of polythene bags is intense even in the cities like Darjeeling, Kurseong and Gangtok in India. Municipal authorities there have enforced their order in this respect rather strictly and impressively. All these cities have announced a fine of up to Rs 5000 or six months’ jail term against the use of plastic or polythene bags. Particularly notable is Sikkim’s move to declare the whole state as "polythene-free". Guess what, no parties clashed, but instead, all of them are cooperating in this drive for common good. It would be better if we learn something from them. After all, how long should we continue with the politics of wastes?