HIV & Law Indonesia - Back Ground Paper Aug ust 2009


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Since the first identified case of HIV in Indonesia in 1987, there has been a growing awareness of the importance of law in the prevention and management of HIV and AIDS. Key legal issues associated with HIV in Indonesia include discrimination and stigmatization, legal protection for people living with HIV (such as HIV positive employees), criminalization of commercial sex work and commercial sex venues, regulatory protection for health workers and confidentiality in HIV testing.

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HIV & Law Indonesia - Back Ground Paper Aug ust 2009

  1. 1. Legal Services & Human Rights in the Management of HIV & AIDS in Indonesia Background Paper for the National Stakeholder Meeting on HIV & Law Jakarta, Indonesia 19 August 2009
  2. 2. AcknowledgmentsThis report was written in Bahasa Indonesia by Mr Simplexius Asa, a legal consultantwith many years’ experience in the legal response to HIV and AIDS in Indonesia. Thereport was translated into English by Ms Fahmia Badib. The English version was edited byMs Naomi Burke-Shyne.DisclaimerThe designations employed and the presentation of the material in this publication do notimply the expression of any opinion whatsoever on the part of IDLO concerning the legalstatus of any country, territory, city or area or of its authorities, or concerning thedelimitation of its frontiers or boundaries.IDLO does not warrant that the information published in this publication is complete andcorrect and shall not be liable for any damages incurred as a result of its use.© IDLO 2010. All rights reserved. This material is copyrighted but may be reproduced byany method without fee for any educational purposes, provided that the source isacknowledged. For copying in other circumstances or for reproduction in otherpublications, prior written permission must be granted from the copyright owner and afee may be charged. Requests for commercial reproduction should be directed to theInternational Development Law Organization.Published by:International Development Law OrganizationHeadquartersViale Vaticano, 10600165 Rome, ItalyTel: +39 06 4040 3200 Fax: +39 06 4040; www.idlo.intAsia Pacific Regional CenterOld Glebe Court House - 2 Talfourd Street2037 Glebe NSW- AustraliaTel. +61 2 85 85 67 00Fax +61 2 85 85 67 2
  3. 3. PREFACESince the first identified case of HIV in Indonesia in 1987, there has been a growingawareness of the importance of law in the prevention and management of HIV and AIDS.Key legal issues associated with HIV in Indonesia include discrimination andstigmatization, legal protection for people living with HIV (such as HIV positiveemployees), criminalization of commercial sex work and commercial sex venues,regulatory protection for health workers and confidentiality in HIV testing. Additionally,since 2000, there has been increased focus upon the relationship between injecting druguse and HIV in Indonesia. Legal issues associated with injecting drug use arise as a resultof discrimination and human rights abuse by police and by authorities within the penalsystem, discrimination by healthcare providers, (implied or actual) regulatory restrictionsassociated with the possession of injecting equipment or syringes, restricted access tomethadone treatment and a weak legal framework regulating drug related researchethics.In order for legal systems to support the prevention and management of HIV and AIDS inIndonesia, people living with HIV must be protected from human rights abuses and bemade aware of their legal rights, the broader community must be made aware of thelegal rights of people living with HIV, and the rights of people living with HIV must beformally protected and enforced.On 19 August, 2009, representatives from the National AIDS Commission (NAC),Indonesian legal aid organizations, injecting drug user communities, sex workercommunities, lesbian, gay, bisexual and transgender (LGBT) communities and HIVsupport groups came together to contribute to assessment and planning processes onHIV and the law in Indonesia (the Stakeholder Meeting).The objectives of the Stakeholder Meeting were to: identify priority legal issues and legal protection needs associated with HIV; identify possible partners and provinces for a project to strengthen and expand HIV- related legal services in Indonesia; and define the next steps to be taken in developing a HIV-related legal services project.This report is a revised version of the background notes prepared for StakeholderMeeting.Technical and financial support for the Stakeholder Meeting was provided by theInternational Development Law Organization (IDLO).Contents:1. Situation analysis: HIV-related legal issues in Indonesia2. Response analysis: the legislative environment in Indonesia3. Assessment of the gaps in current and proposed responses to HIV4. Recommendations for a pilot project on HIV-related legal servicesAnnexes:1. Activities implemented by participants 3
  4. 4. 1. Situation Analysis: HIV-Related Legal Issues in IndonesiaEvidence indicates that people living with HIV and communities vulnerable to HIVinfection (specifically, injecting drug users (IDUs), sex workers, men who have sexwith men (MSM) and transgender people (waria) (together, Key Populations)), facehuman rights violations in many facets of their lives. Commonly encountered humanrights violations are detailed below.Arrest, Imprisonment and Detention – Key Populations and people living withHIV report experiencing arrest, imprisonment and detention without due process, aswell as physical and psychological abuse during detention.IDUs in particular, report discrimination and psychological abuse within the lawenforcement and penal systems. The latter often involves being accused of immoraland socially aberrant behaviour. The criminalization of drug use and harshsentencing regulations for drug related offences under the Indonesian Criminal Coderesults in high rates of imprisonment for IDUs. This in turn increases the vulnerabilityof IDUs to HIV infection (the rates of HIV in Indonesian prisons aredisproportionately high).Marriage and Inheritance – Key Populations and people living with HIV reportbeing subject to restrictive marriage and inheritance laws. Specifically, there aremarriage laws in place in some regions of Indonesia that prohibit marriage betweenHIV positive and HIV negative persons and restrict LGBT persons from marrying orliving with their partners. There also are inheritance laws in place in some regions ofIndonesia that preclude people living with HIV from receiving or bestowing property.Stigma and Discrimination - Key Populations and people living with HIV reportexperiencing stigma and discrimination on the basis of their actual or perceived HIVstatus, sexual orientation, gender, involvement in the commercial sex industryand/or use of illegal drugs both in the broader community and within the healthcaresystem.Employment and Labor Issues - Key Populations and people living with HIV facediscrimination and stigma in the workplace, this results in reduced employmentopportunities.Domestic Violence – Women within Key Populations and women and children livingwith HIV are disproportionately vulnerable to domestic violence. Notably, womenwithin Key Populations and women living with HIV face gender inequity issues inaddition to HIV-related legal issues. 4
  5. 5. 2. Response Analysis: The Legislative Environment in IndonesiaLaw focused HIV initiatives have taken steps to address the legal issues describedabove and protect the rights of Key Populations and people living with HIV. Effortshave focused on socializing information about HIV, encouraging public and politicaldialogue on HIV, providing law and human rights training and advocating for lawreform. A summary of activities implemented by Participants to date is included atAnnex 1.This section considers the current legislative environment in Indonesia.The Health Bill – At the time of the Stakeholder Meeting, HIV activists were in theprocess of lobbying for the inclusion of HIV-focused legal protections in the HealthBill. Previous national Health legislation (Law Number 23 of 1997 regarding Health)failed to specifically refer to HIV, even within the context of clauses referring toinfectious disease or diseases which may affect a high number of patients and/orcause a heavy death toll. 1The Bill for the Prevention and Management of Dangerous Diseases - In mid-2004, the Indonesian Forum of Parliamentarians on Population and Developmentbegan preparing a draft Bill on HIV and AIDS Management. This Bill was expected toaddress all matters related to the prevention and management of HIV however; inlight of the urgent need to respond to SARS, Avian Flu (H5N1) and Swine Flu(H1N1), the draft Bill formulation team broadened the scope of the Bill and changedthe title of the Bill to The Bill for the Prevention and Management of DangerousDiseases. At the time of the Stakeholder Meeting, the Bill had not been finalised.The Law on Human Rights - In 1999 Indonesia passed human rights legislation(Law Number 39 of 1999 regarding Human Rights). This law creates two categoriesof human rights violations; ordinary human rights violations and severe humanrights violations. Ordinary human rights violations refers to the actions of persons or groups of persons (including the state), whether intentional or negligent, which reduce, hinder, limit or revoke human rights guaranteed by law. Ordinary human rights violations may take the form of:  Stigmatization - the casting out of a person or group of persons by giving them certain labels or names.  Discrimination - the limitation, harassment or exile of a person or group of persons based (directly or indirectly) upon their religion, race, ethnic group, social status, economic status, gender, language or political belief; which leads to a reduction of fundamental freedoms, whether individually or collectively, in the areas of politics, economics, society, culture or other aspects of life.  Torture - every intentional act, performed in order to obtain a confession or information, leading to a person’s severe pain or suffering, whether physical, mental or spiritual.1 Note, Indonesia has in place a legal framework which regulates the prevention of infectious diseases(Law Number 4 of 1984 regarding an epidemic of infection disease, Government Regulation Number: 40 of1991 regarding the Management of Infectious Diseases and the Ministry of Health Regulation Number 560/Menkes/ VII/ 1989 regarding particular diseases which can cause epidemics). HIV and AIDS are notspecified within this framework. Indonesia is still in the process of questioning the need to regulatespecifically for HIV, AIDS or sexually transmitted diseases (STDs). 5
  6. 6.  Severe human rights violations refers to genocide crimes (every act committed with the intention of destroying or eliminating an entire or part of a people/nation, ethnic race, religious group) and crimes against humanity (an act committed as part of a broad or systemic attack aimed directly at civilians, including murder, elimination or slavery).Provincial and District Regulations (PERDA) – In 1999, the Habibie governmentinstigated a policy of decentralisation (Otonomi Daerah) and passed two lawsgranting significant regional authority to Indonesia’s provincial and district levelgovernments.The Department of Justice and Human Rights, in cooperation with UNDP, has issueda Practical Guidebook for Understanding the Design of Regional Regulations. Thisguidebook is credited as a key tool in supporting regional community welfare viaprovincial and district regulation (Peraturan Daerah, or PERDA). PERDA: function as policy instruments, effectively implementing regional and district level autonomy; allow national laws to be implemented at provincial and district level (note however, that PERDA adhere to rules of legislative hierarchy and cannot contravene higher/national laws); and allow provincial and district governments to enact laws specifically relevant to their provinces or districts, respectively.Indonesia currently has nine Provinces and 20 Districts with PERDA regarding theprevention and management of HIV. These PERDA are designed to support the aimsof the National Prevention and Management of HIV & AIDS Strategy 2007–20102 andare intended to guarantee regional/district budgets for HIV initiatives. These PERDAare yet to be effectively implemented and enforced.Supportive Policy - The following national policies support the existing HIV-legalframework: the Minister of Manpower and Transportation Regulation Number 68 of 2004 regarding AIDS in the Workplace; the Coordinating Minister for the People’s Welfare Regulation Number 02 of 2007 regarding Sterile Syringe Needle Services; and the National Strategy for HIV and AIDS Management in Prisons.Law Reform – Law reform activities supporting the prevention and management ofHIV in Indonesia include reform of the Narcotics Law, the Psychotropic Law, theAmendment to the Health Law and the Establishment of Law for the Public HealthSystem.Advocacy - HIV and law related advocacy work in Indonesia to date has included: advocacy initiatives in support of HIV-focussed PERDA; activities to push for increased government funding and budgets for HIV; advocacy efforts to reduce stigma and discrimination;2 The aims of the National Prevention and Management of HIV & AIDS Strategy 2007–2010include preventing and reducing HIV infection, improving the quality of life of people livingwith HIV and reducing the socio-economic impact of HIV upon individuals, families and thecommunity. 6
  7. 7.  advocacy work to campaign for the rights of drug users after arrest; and the promotion of rehabilitation sentences rather than jail sentences for drug users.Empowerment and Capacity Building - Several non-governmental organisationshave supported HIV prevention and management strategies through communityempowerment and capacity building training focusing on human rights.International Conventions and Treaties – In 2006 Indonesia acceded to theInternational Covenant on Civil and Political Rights, the Optional Protocol to theCovenant on Civil and Political Rights and the International Covenant on Economic,Social and Cultural Rights. 7
  8. 8. 3. Assessment of the Gaps in Current and Proposed Responses to HIVThe response to HIV-related legal services to date has taken a problem basedapproach. A preferable approach would be to focus on establishing ongoing andsustainable legal services for Key Populations and people living with HIV.Participants at the Stakeholder Meeting considered the following five questions inrespect of current and proposed responses to HIV: What form should legal services take; taking into account the needs of Key Populations and people living with HIV? What type of community training is required to support HIV-related legal services/the prevention and management of HIV? What kind of advocacy activities must be undertaken to reform laws and regulations that hinder the prevention and management of HIV? Who should be engaged in building a strong network for the prevention and management of HIV in Indonesia? What steps should be taken to develop a pilot project for HIV-related legal services?Participants’ responses to these questions are summarized below.Legal Services – What form should legal services take; taking into account theneeds of Key Populations and people living with HIV?Participants agreed that legal services should be designed and developed on thebasis of Key Population research and needs assessments. It was suggested that anyresearch or needs assessment studies be conducted in conjunction with informationsessions to ensure a baseline understanding of HIV-related legal issues.Participants observed the need for accessible, free of charge legal services for KeyPopulations and people living with HIV.Participants recognized the importance of recording, monitoring and evaluatingactivities and projects implemented (for example documentation of human rightsviolations recorded by victim networks).Participants noted the need for an in-depth review of HIV-related law and policy inorder to create a solid understanding of the current legislative and policyenvironment. From this base, key stakeholders can advocate for law and policyreform and push for modifications to legal policy.Experience indicates that in addition to the provision of legal services and activitiesdesigned to strengthen the capacity of Key Populations and people living with HIV;HIV prevention and management must be supported by broader education andawareness raising. It is important that law enforcement agencies, professional legalassociations, members of parliament and government, religious leaders and keypublic figures are made aware of HIV-related legal issues. 8
  9. 9. Community Training – What type of community training is required to supportHIV-related legal services/the prevention and management of HIV?Participants agreed that community training must be done in partnership and incollaboration with the community. The following topics were considered potentialsubject areas for community training: HIV and AIDS generally; the psychosocial issues associated with HIV; drug abuse and addiction; sexual orientation and gender; and human rights.Participants considered that the following suite of community focused activities couldboost the effectiveness of HIV-related legal services: the provision of legal training to paralegals to support HIV-related legal services; the identification and development of a network of legal service providers; the recruitment of experts (such as retired lecturers, police, prosecutors and judges) as part of an alliance; the investigation, documentation and analysis of human rights violation cases; the development of advocacy capacity within Key Populations and community groups; and the delivery of joint training activities for lawyers and the police on HIV and on harm reduction.Advocacy Activities - What kind of advocacy activities must be undertaken toreform laws and regulations that hinder the prevention and management of HIV?Participants agreed upon the value of advocacy activities in complementing andsupporting HIV-related legal services. Specifically, advocacy activities should bedesigned to target laws and policies which impinge upon the rights of KeyPopulations and people living with HIV. A key part of this advocacy strategy would beto provide advocacy training for Key Populations and people living with HIV; thussupporting and empowering these groups to become agents for the change they wishto create.Participants considered the following activities to be important in supportingadvocacy efforts: awareness raising in respect of the rule of law and anti-corruption training; and community involvement in legal processes and advocacy activities.Stakeholders, Affiliates and Collaborations – Who should be engaged in buildinga strong network for the prevention and management of HIV in Indonesia?Participants considered the following institutions, bodies and organisations to be keyplayers in the prevention and management of HIV: government agencies, specifically the Department of Health, the Department of Justice and Human Rights; the Supreme Court of Indonesia; 9
  10. 10.  legal aid institutions such as IKADIN (Ikatan Advocad Indonesia), PERADIN (Persatuan Advocad Seluruh Indonesia) AAI (Asosiasi Advocad Indonesia) and PBHI (Persatuan Bantuan Hukum Indonesia); law enforcement apparatus such as the police force, judges and prosecutors; the Attorney General; higher education institutions and universities; the media & journalists; political parties and politicians; professional health organizations such as IDI (Ikatan Dokter Indonesia) and IAKMI (Ikatan Alumni Kesehatan Masyarakat Indonesia) and professional psychologists bodies; non-government organizations; the NAC; and committed individuals, community leaders and/or religious figures.Participants emphasized the media’s capacity to shape public perceptions and abilityto play a valuable role in socializing issues related to HIV. Media engagement onHIV-related issues also allows for dissemination of evidence of human rightsviolations. Awareness raising and socialization of these ideas may support advocacyefforts.Planning for the Pilot Project – What steps should be taken to develop a pilotproject for HIV-related legal services?Participants determined that: a needs assessment should be conducted (prior to determining the eligible institutions to contribute to the pilot project); priorities for the pilot project should be areas with operating legal aid networks and areas with high HIV infection rates; the community should be involved in designing and implementing the pilot project; there should be clear and transparent decision making processes and coordination within the pilot project implementing agency. the pilot project implementing agency should have existing strong internal and external networks and should have approximately three year’s experience in HIV issues; the pilot project implementing agency should have access to an adequate number of lawyers and paralegals; the pilot project implementing agency should have internal monitoring and evaluation systems in place, should keep financial records and should undergo regular audits. 10
  11. 11. 4. Recommendations for a Pilot Project on HIV-related Legal ServicesParticipants at the Stakeholder Meeting made the following recommendations to theNAC and IDLO (respectively): the NAC’s National Strategy for 2010 – 2014 should clearly set out the role of legal services in HIV prevention and management; and IDLO should establish a pilot project in Jakarta to provide HIV-related legal services for Key Populations and people living with HIV. The pilot project should utilise existing community legal aid resources, counseling and information services, to support persons navigating the formal justice system. 11
  12. 12. Annex 1: Activities Implemented by ParticipantsNo Name/Organization Activities Implemented 1 Sudiro Husodo - Advocacy activities for the police force (starting with East Java Regional Police and moving to the sub-district (Kecamatan) police stations), specifically campaigning for harm reduction programs such as the provision of sterile syringes. - Workshop training and socialization of the harm reduction approach (for stakeholders and police force). - Supporting arrested IDUs. - Legal support for the staff of PERWAKOS (Surabaya Transvestite Union - Persatuan Waria Kota Surabaya) who died as a result of arrest; support was provided until the case was before PROPAM. - Delivery of a workshop for critiquing Regional Regulation Number 9 of 1999 regarding Security and Order. 2 Rudi Sinyo - Legal aid for IDUs in East Java. East Java Action (EJA) - Documentation of human rights violations against IDUs in East Java. 3 Agung Nugraha - Providing legal aid in handling children including teenagers suspected of using/distributing Surabaya Children Crisis narcotics, psychotropics and addictive substances (NAPZA). Centre (SCCC) / - Conducting education and legal training for IDU (PENASUN) community. LBH Anak Surabaya - Cooperating with EJA for legal support for IDU community. 4 Denny Septiviant, SH / - Providing legal aid for IDUs in Central Java. PBHI Central Java - Documentation of human rights violations against IDUs in Central Java. 5 Yvonne Sibuea / - Providing 24 hour legal consultation hotline service. PERFORMA - Legal support both litigation and non-litigation. - Paralegal training - Case investigation training. - Documentation of human rights violations in five cities in Central Java. - Researching the negative impact of imprisonment and the rehabilitation needs amongst IDUs. 6 Eusebius Purwadi - Conducting social analysis training. PKNI and LBH Makasar - Collecting and compiling data related to people living with HIV. - Socialization of relevant ideas to NGO groups. 7 Heni Astuti Suparman - Coordinating with Reproductive Health Centre and AIDS working groups to discuss issues facing Lawyer / KPA Merauke HIV positive sex workers active in the prostitution district of Merauke. 8 Sefnat Lobwaer - Advocacy related to Regional Regulation Draft for Health Development in Papua. - Advocacy related to the policy of the Merauke District Regional General Hospital regarding the treatment of HIV positive women during labor. 9 Ricky Gunawan/ LBH - Public empowerment and legal aid (both litigation and non-litigation services) especially for IDU Masyarakat communities. - Support and information for IDU communities allowing them to gain an understanding of relevant law and advocate for themselves and their community. 12
  13. 13. - Legal empowerment through law and human rights education for communities. - The development and training of paralegals to provide legal service functions and provide ‘legal first aid’ for cases; training facilitates paralegals to become the ‘eyes and ears’ of LBH Masyarakat in their respective communities.10 Humpry Jhony Wacanno - Providing legal aid in the form of case support for accused IDUs who are sentenced to rehabilitation by the Court. - Paralegal training.11 Heru Widarsah - Advocacy against policies which violate the rights of HIV positive people. JOTHI – Lampung - Building critical thinking amongst people living with HIV regarding policies in place and those about to be passed into law.12 Aslam - Advocacy for the awareness of IDUs’ rights. Kalimantan Timur - Socialization of the idea that IDU are victims not criminals.13 Elvina Harahap - Compiling and documenting human rights violation data in all JOTHI coordination areas. - Assembling a Regional Regulations Composition Guidebook. - Assisting the formation of Regional Regulations. - Documenting the availability of ARVs for advocacy for the right to health. - Providing legal advice services.14 Rido Triawan - Drug policy reform activities. - Lobbying to Republic of Indonesia People’s Representatives Council (Dewan Perwakilan Rakyat RI – DPR RI) and hearing with DPR-RI members. - Participatory discussions with Legal Aid groups. - Participatory discussions with NAPZA users/victims regarding Narcotics Draft Bill. - Paralegal training for NAPZA communities. - Negotiation and training on public speaking.15 Patri Handojo/ - Building a legal support network for users of narcotics and dangerous substances in Java and HCPI Bali.16 Siradj Okta - Providing legal aid for people living with HIV. - Documentation of human rights violations against people living with HIV. - People living with HIV empowerment training.17 Asmin Fransiska / - Preparing a draft Bill for alternative narcotics. ICDPR - Composing an academic paper regarding narcotics policies. - Implementing training for human rights, the right to health and the criminal code/ the court system in Indonesia. 13