Courts an avenue for people with HIV/AIDS to protest against discrimination

Debbie A. Lubis, The Jakarta Post, Jakarta

As the country enters the fifteenth year since the first case of AIDS was identified, stigma and discrimination have become the most formidable and pervasive barriers to people living with HIV/AIDS who wish to live a normal life.

Such treatment, however, has yet to be brought to the courts, although existing rulings provide protection for people living with HIV/AIDS, known by the Indonesian acronym as ODHA, a noted lawyer said.

Lawyer Todung Mulya Lubis said that ODHA could address the stigma and discrimination against them through the courts because of the threat to their life through exclusion from health care services, employment, educational opportunities and social life.

"HIV infected people should not spend the rest of their life in an atmosphere of misunderstanding, fear and hatred .., he said.

"Stigma and discrimination increase the vulnerability of people living with HIV/AIDS and, isolating and depriving them of treatment, care and support, will worsen the impact of infection," Zubairi Djoerban, chairman of Indonesian AIDS Society said.

Both were speaking at a gathering of AIDS activists on Saturday titled: Legal Aspects of Discrimination Against HIV -infected People, in conjunction with the commemoration of World AIDS Day which fell on Sunday.

World AIDS Day this year carries the slogan: Live and let live, aimed at spurring worldwide efforts to remove the barriers of stigma and discrimination.

There are an estimated 120,000 people infected with the virus across the country.

Recent surveys conducted by Pelita Ilmu Foundation and Spiritia Foundation have shown that ODHA are discriminated against by health professionals, hospitals, religious and community leaders, companies, families, the media, government officials, and even non-governmental organizations.

This manifests in the form of the lack of health care services, identity and medical record disclosure, alienation, isolation, mockery, dismissal, and a ban from working overseas.

Todung said that ODHA could bring such cases to court based on articles in the 1945 Constitution, the Criminal Code (KUHP), Civil Code (KUH Perdata), and the law on health which guarantees the rights of all people, regardless of their HIV status.

He said that the refusal by hospitals or health professionals to treat ODHA violated Article 304 of KUHP, which states that anyone who prevents someone from leading a life of dignity, or refuses to provide treatment and care for a person in suffering may be prosecuted.

Such violations carry a prison term of between seven and nine years if they cause loss or severe injury.

Meanwhile, media, laboratory and health workers, or the general public who intentionally reveal the identity of ODHA to damage their reputation could face a nine-month jail term, based on Article 310 of KUHP.

If the publication is made in the form of a written disclosure or photograph, they may be sentenced to one-and-a-half years in prison.

According to Todung, confidentiality of medical records is also guaranteed in Article 322 of KUHP.

He added that ODHA who were laid off from their workplaces, refused treatment by hospitals and health workers, and isolated in the educational community just because of their HIV status could bring their case to court based on Article 1365 of KUH Perdata and demand financial compensation.

"Bringing cases of stigma and discrimination to the courts is a litigation strategy to build public opinion and to create an attitude that does not discriminate against people living with HIV/AIDS," Todung said.

Todung, however, called on people not to view the HIV/AIDS epidemic as a legal or a health matter but a problem of national development that required a comprehensive approach.