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Op-Ed

HIV is not inability

There are two possible conclusions that can be drawn based on legal and medical parlance, to wit: (1) HIV and AIDS as a physical impairment, and (2) HIV and AIDS as a psychosocial disability.

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Disability is not inability.”

Councilor Raissa Laurel Subijano of San Juan City once said this; she is a graduate of Law, elected into office, and then became a person with disability after the 2010 Bar exam bombing outside DLSU-Taft.

I intend to permeate wisdom from the lack or absence of knowledge of some individuals regarding disability, or it could possibly rectify the societies ignorance from the DISABILITY.

At the end of this entry, there are two possible conclusions based on legal and medical parlance, to wit: (1) HIV and AIDS as a physical impairment, and (2) HIV and AIDS as a psychosocial disability.

The discussion on PLHIVs as PWDs must clearly establish a parameter that nobody is allowed to neither look nor equate disability to INABILITY, INCOMPETENCE, and HELPLESSNESS. Persons with disability are not less than anyone; they are your fair equals.

Under Art. 5 of the Convention on the Rights of PWD, states that: “State parties recognize that all persons are equal before and under the law and are entitled without any discrimination.”

 In our Jurisdiction, Sec. 2(b) of R.A. 7277 or The Magna Carta for the Disabled persons, states that: “Disabled persons have the same rights as other people to take their proper place in society. They should be able to live freely and as independently as possible. xxx Disabled persons’ rights must never be perceived as welfare services by the Government.

It is a form of discrimination when someone says: “Instead of issuing PWD ID for PLHIV we look for ways to empower them.” It is as if having a PWD ID is not empowering. It is as if being PWD is disempowering. Discrimination of any kind based on disability is prohibited under existing laws.

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Under Art. 2 of the Convention on the Rights of PWD, It is considered as a DISCRIMINATION ON THE BASIS OF DISABILITYwhen any distinction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, xxx on an equal basis with others.

If you’re adamant in your principle that PLHIVs should not be considered PWDs because they are abled; It is as if PLHIVs being considered as PWDs is degrading or an insult to ones ability. Sorry to burst your bubble, that’s not a principle at all; but a form of DISCRIMINATION, much less, IGNORANCE.  Even persons with disability are still considered competent, capable, and productive, as they are other-abled.

There have been several opinions made on the link between disability and HIV; but none of those that disprove the link was intellectually substantiated. Most of the statements made were ranging from dense to shallow premises with no arguments at all. The most that they were able to come up with is the fact that not any existing law expressly mentions HIV and AIDS as a disability. In the same manner, that no existing law expressly LIMITS disability on visual, physical, nor mental impairment to the EXCLUSION of those not mentioned or HIV and AIDS Per se.

I) HIV AND AIDS as a Physical Impairment

Under Sec. 4(c), R.A. 7277 or the Magna Carta for PWD (as amended by R.A. 9442), Disability is defined as Physical Impairment that substantially limits one or more psychological, physiological or anatomical function of an individual. In the definition, Physical would mean anything relating to the body. Physical impairment necessarily follows that it is includes impairment in cells’ function.

Under Sec. 3 (n) of R.A. 1166 or the Philippine HIV and AIDS Policy Act, it defines HIV as a: “virus, which infects cells of human immune system, and destroys and impairs the cells.” Thus, a person infected with HIV has a physical impairment through infection of HIV. Unless, it is cured, the virus is a continuous threat.  The HIV and AIDS Policy Act recognizes that there’s no cure that can eliminate HIV from our system but what the antiretroviral drugs does is it only stops or suppresses viral replication, thereby slowing down the progression of infection.

While it is true that Anti-retroviral Therapy (ART) suppresses the virus; PLHIVs are vulnerable as compared to other individuals considering our condition being immune-compromised. PLHIVs regardless of medication are still at a higher risk of suffering from HIV-related medical conditions; because, our cells’ functions are impaired.

PLHIV also experience disability related to HIV. As it progresses, HIV disease can result in mental and physical conditions that impair ability. In addition, highly active antiretroviral therapy and other treatments, while saving and prolonging lives of PLHIV, can also cause side effects that can be disabling. [Elliot, R. (2009), Journal of the International AIDS Society.]

This is the other half of the truth, which some “advocates” fail to appreciate. Which leads me to this question: “Who do they really advocate?” Perhaps, it’s time that we also reflect upon the term that has long been abused – ADVOCATE. As I mentioned in my previous article: “Recognition: tug of war in HIV advocacy” (2017):

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Advocacy is not just about claiming to be an advocate. Advocacy is equivalent to progressive action rather than passive inaction. It can neither be said that a positive diagnosis for HIV/AIDS is an express ticket nor license to the advocacy. One becomes an advocate when he truly understands the cause by exemplifying affirmative actions engaged in the cause; which should preferably be multiple, continuous, and instantaneous; rather than single, isolated, and orchestrated. This is how we become advocates.

There are also some who have been working for the longest time in the advocacy, thanks to you and your efforts for our community; but are you really for us or against us? With your indulgence, how does an act of going against a privilege for the PLHIVs be beneficial for the Community? Perhaps, its time that you retract from self-infested principles at the expense of a larger population, that further over boards existing laws. The laws may not speak well of your belief, but these are the laws, it applies to all with no exception, let the welfare of the people be the supreme law of the (Salus populi est suprema lex.)

II) HIV and AIDS as a PSYCHOSOCIAL DISABILITY

At present, PLHIVs are being ISSUED PWD ID on the basis of Psychosocial Disability. Under the Implementing Rules and Regulations of R.A. 7277, the term Psychosocial is defined as inter-relationship of the psychological aspects pertaining to the thoughts, feelings, reactions, and behavior of a person with social aspects pertaining to the situation circumstances, events, relationships, other people which influence or affect the person sometimes to the point of causing distress. The HIV and AIDS Policy Act of the Philippines recognize discrimination against PLHIVs, a discrimination that causes Psychosocial Disability.

The UNAIDS made a statement in United Nations Commission on Human Rights: Sub-Commission on Prevention of Discrimination and Protection of Minorities, “HIV/AIDS and DISABILITY” (48 Session, August 1996):

The disabilities consequences of asymptomatic HIV is that often people living with HIV, as well as those suspected of being HIV Positive, are very often discriminated against because they are wrongly perceived as being unable to perform; they are wrongly perceived as being a threat to public health… Thus, if they are not actually disabled by HIV-related conditions, they are often disabled by the discriminatory treatment they perceived because of their HIV status… Definitions of disability should move beyond functional limitations to cover medical conditions such as HIV/AIDS.”

In our Jurisdiction, there are no Jurisprudence that may clearly include HIV and AIDS as a form of disability; but there are already existing laws, as such, outside our Jurisdiction. In Australia, The Commonwealth Disability Act of 1992 defines disability as: “broad language referring to disease or illness, such as the following: the presence in the body of organisms causing disease or illness; or the presence in the body of organisms capable of causing disease or illness.” The same definition is also applied in the countries: New Zealand and South Africa.

While the aforementioned law, of Australia, has no applicability in our Jurisdiction. American Jurisprudence may guide us, as the Americans influenced most of our penal laws. Our Revised Penal Code alone was legislated at the time when our country was a colony of America. The Magna Carta for PWD is both a social legislation and penal legislation by virtue of its penal clause; therefore, we can use as a guide the AMERICAN DISABILITY ACT ratified by the U.S. Congress in 1990, which was subsequently interpreted by the U.S. Supreme Court in 1998, Bragdon v. Abbott, that settled affirmatively the legal challenges whether or not HIV should, in and of itself, be considered a disability if the person remains symptom-free and otherwise unimpaired.

The US case involving Ms. Abott clearly establishes a rule that HIV should be considered as a disability for purposes of the American Disability Act in relation to the Convention on the Rights of PWD.

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The American Disability Act of the United States of America and the Magna Carta for Person with Disability draws it life from the same accepted general principle of international law, that is, the – Convention on the Rights of the Persons with Disability. I couldn’t see any reason why the same logic shouldn’t be applied in our Jurisdiction, if our law is anchored on the same International Law as that of the American Disability Act.

Now, it can be settled that infection from HIV and AIDS can be disabling but does not necessarily result to inability, regardless being called a person with disability; otherwise, such thought rightly falls under “Discrimination on the basis of disability.”

The application for issuance of an identification card as a person with disability is a matter of choice, which needs to be respected, when exercised or not. A PLHIV who secures a PWD ID should not be ridiculed as less than anyone. This exercise of privilege made by PLHIVs must not be seen as disempowering, as such, mentality is not only a reflection of legal impertinence but also an absence of intelligence.

Principles that deflect from those of PLHIVs, as persons with Disability articulated in a sophisticated language, do not merit any rebuttals from those who advocate PLHIVs as PWD. But don’t force the law to lean in your favor if it apparently does not support your principles, much less – ignorance.

When someone can come up with an argument, better than: “HIV and AIDS is not enumerated under the Magna Carta for PWD as a disability” feel free to send me a message. Otherwise; I’ll leave you with these: the law clearly implies consistent with the words expressly used that PLHIVs have physical disability on the basis of impaired cells, and PLHIVs are psychosocially disabled for being constantly exposed in a possible discriminatory act based on HIV status.

If there is one rule of construction for statutes and other documents, it is that you must not imply anything in them, which is inconsistent with the words expressly used. (Re: a Rebior [No. 335 of 1947][1948] 2 All E.R. 533, per Lord Green M.R.)

I am Posit Bo, I was diagnosed with AIDS and Major Depressive Disorder, which qualifies me as a person with psychosocial and mental disability, respectively. I am a person with disability; but I am not less than anyone because I am your worthy equal despite my disability. You are not to judge me based on my disability or exercise of a privilege granted by law, as I am not to judge you based on your refusal to acknowledge your disability or exercise of privilege. Let us embrace diversity without hatred but instead with respect.

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