Following the death of former president Benigno Simeon Aquino III, a video started circulating on social media where Atty. Lorenzo Gadon imputed that Noynoy had HIV. Various organizations surfaced, claiming that this is “a clear violation of the Philippine HIV and AIDS Policy Act or R.A. 11166,” as stated – for one – by the Network to Stop AIDS Philippines (NSAP), a national network of civil society organizations engaged in HIV and AIDS response in the Philippines.
Contributing writer Posit Bo argues that while the lawyer can be made liable for his remarks, those complaining should ask if it’s really under R.A. 11166.
“BOBO!” – Atty. Lorenzo Gadon, 2018
We all know what was said and done by Mr. Gadon in a radio program on 24 June 2021. It can be summarized by the four letter remarks he made in Baguio City in 2018. However, can we make him liable for his recent remarks? Definitely, yes. The question is: under what law?
There are legislations made with so much ambiguity. When faced with it, we are left with no choice but to leave it to the courts to interpret these laws. The case before us today is not one of those which could be interpreted by the court when challenged in court.
There were several advocacy groups that have anchored their position on this on Section 44 (b) of R.A. 11166 against Mr. Gadon’s remark made on a radio program.
But what does Section 44 (b) of R.A. 11166 entail?
Let us start.
Paragraph (1) of Section 44 basically provides a list of INDIVIDUALS who are afforded privacy under R.A. 11166, to wit:
(a) person who has been tested for HIV;
(b) person exposed to HIV;
(c) person infected with HIV and AIDS-related illness; or
(d) person treated for HIV-related illness.
The enumeration is clear. Persons who were neither tested, exposed, infected, nor treated for HIV and AIDS-related disease are not covered by the confidentiality clause of this law. Where a Statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. Clearly, there is no clear showing that the person subject of Mr. Gadon’s remark was neither subjected to HIV testing, nor inflicted with HIV, nor exposed with HIV.
Even for the sake of argument that there was testing and exposure, it would necessarily require an evidence to prove such allegation. We are, however, faced with the dilemma of presenting an inadmissible evidence as to such allegations because a written consent can no longer be acquired from the person subject of the issue.
On to the next issue: Mr. Gadon would fairly fall within the parameters stated under Section 44 (b) of R.A. 11166, if only, there were no limitations provided on Paragraph 1 of the same provision. This provision seems to be silent as to the liability of a guest who appears on a particular radio or television program, if and when, the same remarks is made as that of Mr. Gadon. They are only made liable under the law if the material is posted on the social media accounts of such programs. However, if the material was not posted online, no liability attaches to the guest under this particular provision. Mr. Gadon is deemed as a guest anchor. Thus, he would have been liable under this provision absent the qualifiers mentioned under the first paragraph.
Lastly, there are statements which have heavily relied on the phrase “actual, perceived, or suspected HIV status.” This particular phrase was merely introduced on Article VII of R.A. 11166. This phrase needs to be separated from those under Article VI of R.A. 11166. There is no showing under any provision that it intended to incorporate the said phrase in the entirety of the said law. The phrase was merely limited to apply in cases of discrimination as enumerated from Section 49 (a) to (j).
Can Mr. Gadon be prosecuted for violation of any of this provision? Mr. Gadon cannot be successfully prosecuted for discriminatory acts. The circumstance is wanting from any form of discrimination in relation to: workplace, learning institution, travel and habitation, etc based on “actual, perceive, or suspected HIV status.”
Some may argue, that his remarks amounted to discrimination falling under other similar or analogous discriminatory acts. What are these other similar or analogous discriminatory acts?
Let us now refer to the Implementing Rules and Regulations (IRR) of R.A. 11166. Under Rule 9, Section 49 (J), it is was worded exactly the same as the law. There was no attempt to specify what would constitute other similar or analogous discriminatory act.
This now brings me to my final point.
On several occasions, the Philippine National Aids Council (PNAC), in coordination with several non-government organizations (NGOs), conducted workshops with the end goal of coming up with suggestions as to the IRR of R.A. 11166. But it came to my attention that some were merely interested in the composition of the “Council”; it’s not too hard to guess their reasons why they were too interested with membership in it rather than concentrating on what could been improved in the law through the IRR.
At the very least, Mr. Gadon violated Section 22 of R.A. 11166. He mentioned “may HIV kasi… kaya mahirap gumaling.” This is a clear misinformation as to HIV and AIDS information. An HIV diagnosis does not necessarily make one person become too vulnerable. He revived an archaic idea that a positive diagnosis for HIV and AIDS is a death sentence. He may also be held liable for violation the law on libel punishable under the Revised Penal Code.
Some advocates have previously argued that being diagnosed with HIV and AIDS is not dishonorable. However, filing a criminal action for libel is not tantamount to HIV diagnosis as being dishonorable. Stating that one is HIV positive is libelous because of its public and malicious imputation of a condition, status, tending to dishonor or to blacken the memory of the dead. It is not the diagnosis that causes dishonor but the malicious imputation with intent to cause dishonor or blacken the memory of the dead.
Ultimately, Mr. Gadon is not new in receiving a complaint filed at the Office of the Bar Confidant (OBC). He was previously suspended by the Supreme Court, and this might just be the cause for his second suspension. But who got the balls to file a complaint before the OBC?
This is not intended to discredit those who came before us. Your work and devotion for the community is beyond compare. But it wouldn’t hurt to listen, at times when listening is most needed. For that matter, listen and understand. We don’t stop at listening since we have to understand. There are days when we need to draw a line between advocacy and legality. If it has become apparent that it is irreconcilable, the existing law prevails over our advocacies.
Now, that we are faced with our first test case for R.A. 11166, may we all be able reach a collective realization that we cannot purely settle on what’s served before us, when we deserve more by doing what we still can. Let this be a reminder that legislative work should become more proactive.
Lastly, taking a stand is different from being stubborn, but we get to choose what better defines us.