Manny Pacquiao’s tactless and potentially dangerous remark on homosexuality has sparked another round of discussions in the country regarding LGBT rights. Social media has been afired with backlashes against the boxer’s distorted view on LGBTs, as well as with the usual bigotry defending his stance. As we can all agree, one good thing that has come out from the whole issue is that a spotlight has been placed on LGBT rights. Now, it is being discussed in both politics and media. Moreover, we can see that presently the LGBT community is impassioned to stand up against discrimination, oppression and violence. Gone are the dark days when nobody would bat an eye on LGBTs being attacked in whatever form.
When the social media trend on Pacquiao’s anti-LGBT statements was slowly dying down, another anti-LGBT sentiment was creeping in. We saw how some people started saying that we should stop talking about the Pacquiao issue because “there are other more important things to think or talk about”. Yet again, this form of suppression, a sweeping-the-dust-under-the-rug statement, is something that is equally spiteful and insensitive. Those who share this way of thinking do not realize that other issues can be brought up without dismissing the issue on LGBT rights. Those who express this notion are not considerate of the fact that the rights of the LGBT community have been ignored and violated for so many years, and that our collective voice has been raised only recently, which is a very good sign for the advocacy.
As a stern advocate of LGBT rights, running into terrible comments about what we stand for is inevitable. I’ve shared a lot of my thoughts against the “LGBTs are worse than animals” statement in social media. I’ve also been vocal about people expressing their trivializing distaste of the whole Pacquiao vs. LGBT issue, that is – people who are tired of seeing social media posts about the repercussions of Pacquiao’s words. It is important to inform them that the existence of other issues does not make LGBT rights any less important. Their said distaste is just a reflection of the non-importance of LGBT rights in their own lives.
However, telling other people that we have the right to be heard can rub them the wrong way. Ignorance sometimes begets anger, and such ignorance still runs deep and wide. Aside from hateful Bible-thumpers, at times we also sadly encounter anti-LGBT sentiments within the community and from people whom we thought cared about us (e.g. family, friends, colleagues, self-proclaimed LGBT supporters). Besides the common religious disapproval of LGBT issues, here are the other comments I’ve encountered from, unfortunately, a lesbian and supposedly a supporter of LGBTs. After telling them that it is wrong to be dismissive of Pacquiao’s stance on LGBT issues, the reactions are the following:
Apparently, there is also work to do in educating allies and those within the community about our advocacy. Otherwise, such internal ignorance may only sabotage our fight for equality.
In dealing with these kinds of blows – whether it be religious bigotry or otherwise – it is best to stick to the topic or issue at hand and not answer back with irrelevant insults. We have to show them that, despite all the hate thrown our way, our dignity remains intact. No amount of below-the-belt punches would make us cower down on our knees and become worse than animals in our words, deeds and thoughts.
Let us all continue to clamor for change until this society is free from twisted beliefs and ideas about the LGBT community.
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.
“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.
Under Art. 2 of the Convention on the Rights of PWD, It is considered as a “DISCRIMINATION ON THE BASIS OF DISABILITY” when 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
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):
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.
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] 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.
Diversity and the Bible
In many “Christian” countries like the US and the Philippines, the Bible has been used to legislate sin, to criminalize dissent, and legitimize tyranny. It has also been used to birth solidarity, resistance, and revolution.
There are 66 books in the Protestant Bible. 73 in the Catholic Bible. The 39 books of the Protestant Old Testament is a Christian appropriation of the Hebrew Bible’s 24. There are now over 5,700 Greek manuscripts of the New Testament. No two of which are exactly alike. (There were 5,360 when I was in Graduate School.)
There are over 2,000 English translations of the Bible. Two of the most widely circulated are the King James Version and the New International Version.
Most of us know this already: the Bible is not a book. It’s actually a library. And since it’s a library, it offers theologies. Plural. Different. Diverse.
Read and compare 2 Samuel 24.1 and 1 Chronicles 21.1 and you’ll understand what I’m pointing out. Paul’s and James’s understanding of faith is a study in contrast. Compare the three versions of the Parable of the Sower in the Synoptics.
When one reads the Resurrection accounts in the Canonical Gospels, one discovers that there were three women at the tomb in Mark, two in Matthew, an undisclosed number of women in Luke, and only Mary Magdalene in John. The herald of the resurrection was a young man in Mark, an angel in Matthew, two men in Luke, and Jesus himself in John.
The Bible is a wellspring of diversity. Dictators and despots have used it to perpetuate their regimes. Liberation movements have used it to ground their causes. Churches have used it to dis-empower, dehumanize, and demonize people of color, women, indigenous peoples, LGBTQi, people living with HIV and AIDS, PWDs, and many more. The dis-empowered, dehumanized, and demonized have used it to rise above their oppression. And most, actually, don’t read it. It is the world’s number one bestselling book. But buying one and reading it are two different things.
In many “Christian” countries like the US and the Philippines, the Bible has been used to legislate sin, to criminalize dissent, and legitimize tyranny. It has also been used to birth solidarity, resistance, and revolution.
Diversity is a gift.
But diversity in a world led by the likes of Trump and Duterte and dominated by systems and structures of injustice, greed, power, and privilege is tokenism. Thus, those of us who confess to follow Jesus preach good news to the poor, not simply good news. We follow the One who proclaimed blessings to the poor and declared woes to the rich.
We always take sides. Like Jesus did. Because God does. ALWAYS!
Revelation Enriquez Velunta is the Associate Professor of New Testament and Cultural Studies at Union Theological Seminary. He is also the Coordinator of its Master of Theology Program and its Union Theological Open Seminary (UTOS) Programs. He studied at UTS, Princeton Theological Seminary, and Vanderbilt University. He is the author of “Reading the Parables of Jesus inside the Jeepney” (available from Amazon).
R.A 11166: Anong wala sa iyo na sana meron kami?
With the IRR of the new RA 11166 being drafted, Posit Bo recommends developing an implementing policy that will actually benefit the PLHIV community instead of just pretending to do so.
#HIVPOLICYBATASNA, but it does not end there.
Babala, asawa ni…: The views in this entry are those of the author and do not necessarily reflect the views and opinions of the publisher, or any affiliated organizations. Samakatuwid, ikinakaila ng lahat ang author! Chos!
On January 9, 2019, the President signed the “Philippine HIV and AIDS Policy act (HIV POLICY).” Like all other laws passed by Congress and signed by the President, the HIV policy must have an Implementing Rules and Regulations (IRR).
Under Sec. 54 of R.A. 11166, it states that PNAC (the council from R.A. 8504 by holdover capacity) SHALL promulgate the necessary IRR within 90 days from effectivity of the law.
Under this provision, the law makes a directive to create an IRR within 90 days but not mandatorily within that period. Note that the manner of the legislators crafting the provision lacked a mandatory term like “SHOULD” before the phrase “WITHIN 90 DAYS.”
Ano daw? Kung di naintindihan, pabayaan na. Next!
I personally don’t see the need to rush in creating an IRR that’s half-baked due to time constraints. This is a crucial and integral part of the HIV policy.
The IRR of our laws must consists of detailed necessary guidelines not found in the principal law. In essence, therefore, an IRR must indicate requirements, qualifications, periods, and clarificatory provisions of ambiguously worded provisions of the law. If certain guidelines are not reflected on the principal law nor IRR, it becomes vulnerable to a question of law, which may only be judicially resolved. This is what an IRR seeks to prevent.
Department Orders (DO), Manual of Procedures (MOP), and other documents of the same nature do not have the same force and effect as the principal law nor IRR. Prudence would dictate that between now and the time of release of the IRR of the HIV policy, stakeholders must cautiously plan what and what not to include in the IRR. Otherwise, we’ll encounter a number of deadlocks not curable by mere issuance of DO or MOP, as legislation is within the jurisdiction of the legislative and questions of law is within the jurisdiction of the judiciary.
So, beshies, kalma, huwag madaliin. As my former professor would often say: “Basahin. Intindihin. Ulitin.” Eh ‘yun inulit ko nga subject ko sa kaniya.
I) ON THE DEFINITION OF TERMS:
#HIVPOLICYBATASNA but what more can be done?
Oo, madami akong issues sa buhay, kasi may kakulangan sa pakahulugan.
Sec. 3(d) of R.A. 11166 defines Civil Society Organization (CSO). Unfortunately, the definition is not clearly in consonance to the Corporation Code that is the governing law for CSOs, as non-stock non-profit corporations. CSOs under the Corporation Code are not merely considered as organizations but a corporation.
Sec. 19 of Corporation Code provides that: a corporation (CSO) acquires legal capacity to act as such only upon the issuance of certificate of incorporation by the Securities and Exchange Commission (SEC). In the case of Cagayan Fishing Dev’t v. Sandiko (65 PHIL 233), the Court held that Cagayan Fishing Dev’t. Corporation was not a legal entity nor did it posses juridical capacity to act absent the issuance of certificate of incorporation by SEC.
Five minutes break. Tissue muna, beshie. . .Okay, ano daw? So eto na nga…
In the absence of a clear qualification of CSOs under R.A. 11166, the IRR must distinctly provide the criterion for CSOs applying for PNAC Membership under Sec. 6, par 13 – 21, of R.A. 11166 must comply in accordance with the Corporation Code; otherwise, non-compliant CSOs must be denied application for membership n PNAC absent juridical capacity to act.
Sa madaling sabi, mainam talaga na para magkaroon ng kahulugan, lagyan ng LABEL YAN! Bago mapakanta ng “best thing I never had.”
II) #HIVPOLICYBATASNA but PNAC should say ‘not even a whiff of corruption’:
ON REPRESENTATIVES OF CSO PNAC MEMBERS
“Hi! Do you remember me? I’m the senator who died, but I came back to life.” –Senator Miriam Defensor Santiago
Under Sec. 6 of R.A. 11166, CSO PNAC Members are entitled to have representatives in the Council, as sitting member. However, the law is silent as to the qualifications of the CSO representatives being a sitting member of PNAC, a government corporation created by special law.
I am strongly advocating that a minimum requirement for representatives of CSO PNAC as sitting members of a government corporation must come with qualifications that should be provided on the IRR. Absences of qualification will raise a valid question of law grounded on their legal capacity or competence to act for and on behalf of the CSO they duly represent. Unless, the legislation is intended to keep this open for more clientele in the legal profession. Panalo ang mga abogado!
A minimum requirement would set the tone that these representatives are not capable of being involved in any criminal offenses in relation to their office and that of PNAC, to wit:
- Malversation of Public Funds Art. 217 of the Revised Penal Code;
- Violation of R.A. 3019 or the Anti-Graft and Corrupt Practices Act;
- Violation of the provisions of HIV Law or any other law realted thereto.
If only the legislation of HIV policy was precisely worded, I would not question: “who are qualified representatives of the CSO PNAC members?” The hope to determine this matter depends upon the stakeholders and legal consultants drafting the IRR.
Absence of a minimum requirement that clearly establishes LEGAL CAPACITY COMPETENCE free from whiff of corruption must be meted out on the IRR; otherwise, it’s a missed opportunity to clear an ambiguity on the HIV policy.
I was once asked: “what could be the measure of integrity or character” as a prerequisite to becoming a representative of CSOs PNAC member, the law provides for the measure but it must be appropriately appreciated; otherwise, failure to appropriately apply it on HIV policy, PNAC becomes a sitting duck.
If I were to put a measure of integrity on the IRR, it could be stipulated in this manner:
“A representative of CSO PNAC members must not have been convicted, in the past # years for the following crimes or offenses:
Malversation of Public Funds with an attached penalty of Civil Interdiction as defined under Art. 34 of the Revised Penal Code in relation to Art. 38 of the New Civil Code;
Violation of the Anti-Graft and Corrupt Practices Act;
Violation of the HIV Policy and related laws thereto.
And during their term of office as representative for CSO PNAC Member must not be charged of the crimes as above-mentioned, in addition thereto:
Estafa or Swindling under ART. 315 of the RPC; Bribery under Art. 210 of the RPC; Violation of BP 22; and Violation of Anti-Money Laundering Law.”
All of the abovementioned crimes are in relation to monetary transactions. Considering that PNAC as a government corporation under the new law has its own SEPARATE BUDGET under GAA.
Yes, mga besh, ang tamang attitude: “A whiff of corruption makes me sick.” Sa isip, puso, gawa, at di lang puro SALITA, di ba TATAY DIGS?
I would not want a sitting member previously convicted of any of those crimes become a member of PNAC as it would be a mockery of the legality pertaining to my OWN community. In the words of the late Senator Miriam Defensor Santiago: “We should have ‘moral’ excellence. Dapat ibinoboto natin, walang bahid sa kaniyang record.” #NotAWhiffOfCorruption
Mga mumsch, dun na tayo sa moral excellence, mahirap na, balikan niyo prefaratory ko. Baka mabuhay ang patay. Kayo rin?
III) #HIVPOLICYBATASNA but who are the members of PNAC?:
ON LIST OF PNAC MEMBERSHIP
Paramihan interpretasyon, ang maubusan, uwi na lang luhaan!
Under Sec. 6 of R.A. 11166, it provides that: “The following agencies and CSOs shall be represented in the PNAC xxx” or “Ang mga sumusunod na sangay at CSOs ay magkakaroon ng katawan sa PNAC”
HIV policy failed to clearly state under this provision it’s intent to specify with exclusivity that this is the list PNAC membership. I would have rather stated it as: “THE PNAC shall only be composed of the following agencies and CSOs as members.” Specific. Exclusive. Direct
(Note. The term ‘composed’ and ‘represented’ are two different terms, as used. Please see above statements of the law and suggestion.)
Assuming arguendo,that this provision provides the composition of PNAC membership regardless of how it was stated, it is still ambiguous as to exclusivity of enumeration. The law uses the term “shall” without any exclusionary term being added. In Auction In Malinta INC. v. Warren Embes Luyaben, GR NO. 173979, the Court held that: “It must be shown that the stipulation is EXCLUSIVE. In the absence of qualifying or restrictive words such as ‘EXCLUSIVELY xxx SHALL ONLY xxx the stipulation is deemed merely an agreement xxx not as a limit.”
AMP! Sobra na, indefinite break…Balik kung kailan niyo gusto….
While it is true that ‘shall’ connotes mandatory character of a statute; this, however, is not an absolute rule in statutory construction of laws. In Gachon & Guevarra v. Hon. Devera, etc., et al., G.R. No. 116695, the Court held that: “The import of the word ultimately depends upon the consideration of the entire provision, its nature, object, and consequences that would follow from construing it one way or another.”
Thus, the interpretation of the HIV policy is wanting of a clear stipulation as to PNAC membership under Sec. 6 but what it provides are those agencies who have definite representation in PNAC but not necessarily members of PNAC. (Note: The term ‘composed’ and ‘represented’ are two different terms)
Again, there’s today until the release of the IRR to cure the ambiguities in the principal law.
It’s not you, it’s me; kasi, umuwi akong sugatan, duguan, at yun na nga luhaan. Di naman naubusan, di lang nagka-unawaan.
IV) #HIVPOLICYBATASNA echoing human rights in the absence of CHR Representation in PNAC:
ON PNAC AND HUMAN RIGHTS PROVISION
Tara! Laro tayo! Taguan…taguan ng kinatawan! Hindi ako anti-CHR nor Presidential fan/follower pero beshties, napa hashtag talaga akong #NasaanKaCHR.
Under Sec. 2 par. 3 of R.A. 11166, the law proudly introduces human rights as an integral part of the HIV Policy, as it states: “The state shall respect, protect, and PROMOTE HUMAN RIGHTS as the cornerstones of an effective response to the country’s HIV and AIDS situation.”
In Art. 8 of the United Nations Declaration of Human Rights, it provides the right to an effective remedy by competent ‘NATIONAL TRIBUNAL’ for acts violating fundamental rights granted by the Constitution or Law.
Eh anong pakialam niyo sa United Nations Avenue, Malate, Manila?
This generally accepted principle of international law is applicable in our country by virtue of the Doctrine of Incorporation under Sec. 2, Art. II of the 1987 Constitution.
AHHH Parte siya ng Pilipinas. Oh eh ano naman kung parte siya ng Pilipinas?
The importance of the provision fleshed out on the United Nations Declaration of human Rights is highlighted by the term “NATIONAL TRIBUNAL’, through R.A. 11166 a law reconstituting the PNAC could act not as a tribunal but rather the KEY ORGANIZATION to provide immediate and necessary legal action and aid concerning HUMAN RIGHTS in relation to HIV and AIDS through appropriate representation of legal consultants from the Commission on Human Rights with guidance of representatives of CSO PNAC Members as to advocacy aspect.
While it is also true that under Sec. 10 of R.A. 11166, it mentions protection of human rights through PNAC’s COLLABORATION with DOJ and CHR. Collaboration as a term for purposes of advancing human rights in implementation of HIV policy is not the most sustainable action in respecting, protecting, and PROMOTING HUMAN RIGHTS.
Ahh! Kailangan ng specific address kasi di madedeliver ang deliverables pag wala un specific number ng street?
A mere collaboration without a clear mandate imposed against DOJ and CHR in their participation through ‘representation’ in PNAC is ‘weaker than weak.’
I understand that DOJ was a member of PNAC under the old HIV Law of 1998 (R.A. 8504), it might have few occasions of missing the PNAC meetings; but, our government being as it is, remains – complacent.
Eliminating DOJ’s ‘representation’ in PNAC does not necessarily resolve the problem at hand but it further causes a problem. Collaboration is a discretionary function of DOJ AND CHR under the HIV policy, therefore, there may or maybe no collaboration.
What do we do now in the absence or failure of collaboration between DOJ, CHR, and PNAC? The HIV POLICY says. . . *birds chirping*
If they fail to comply to their mandate perhaps in the IRR, a mechanism to sanction negligence of agencies with representation in PNAC must be included; but this cannot be done with the status quo, if collaboration is retained without them being included in the representation in PNAC, as there’s no clear accountability for refusal or failure under the HIV policy. Collaboration denotes discretion, absent compelling term for it to qualify as mandatory in order to raise a legal cause of action that falls within the ambit of jurisdiction of the courts.
It is important to note DOJ’s collaboration with PNAC being discretionary in nature on the argument that they may be compelled to act upon such collaboration. Applying the doctrine of qualified political agency, DOJ as an executive organization is an agent of the Chief Executive. Therefore, they may not be compelled to perform discretionary function through judicial action. In the case of Pimentel v. Executive Secretary, G.R. NO. 158088, the Court held that: “The court has no jurisdiction to enjoin the President in the performance of his official or discretionary duties.”
While, CHR’s exclusion to a representation in PNAC exemplifies an echo of silence. Art. XIII, Sec. 18 (3) of the 1987 Constitution indicates the function of CHR to provide appropriate legal measures for the promotion of human rights. While it is true that CHR, on its own may act upon human rights violation in relation to HIV Policy, PNAC could have included in its functions a recommendatory power to CHR representation in PNAC (should they be included) Again, PNAC in accordance to UDHR could have establish in the principal law or possibly in the IRR to act as a KEY ORGANIZATION in assisting the PLHIV Community with regards to legal matter affecting their human rights in relation to HIV POLICY.
But there’s still hope until the IRR. Perhaps, if stakeholders and legal consultants would consider the inclusion of either or both DOJ and CHR as agencies that shall be represented in PNAC considering that the ‘representation’ under Sec. 6 of R.A. 11166 does not provide exclusivity as earlier discussed. So as to avoid, #NasaanKaCHR?
Nagsimula ang batasan ng laruan kung tawagin ay taguan ng kinatawan, #NASAANSILA? Sumagot si Gloc-9: “walang natira, nag-abroad sila”
V) #HIVPOLICIYBATASNA and its misinformation:
ON MISINFORMATION AS A PROHIBITED ACT
Ignorantia legis non excusat, pero yong batas mismo inignore ka, SEENZONE, BESHIE!
Under the Sec. 22 of R.A. 11166 entitled “MISINFORMATION ON HIV AND AIDS” the provision includes: misleading advertising and claims in any form of media xxx of the promotional marketing of drugs, xxx without approval from DOH and FDA xxx claiming to be a cure or fail-safe prophylactic for HIV infection shall be prohibited.
“BESHIE ANYARE. Misinformation on HIV and AIDS wer na u, dito na me.”
The law prohibits advertising of cure without DOH and FDA approval. In short “besht, bawal ka na magbenta ng pinakulong talbos ng kamote na gamot sa HIV without DOH and FDA approval.”
The law neither sanctions the misleading information on HIV transmission nor prohibits purveyors sharing information of HIV transmissions through the following: watermelon to human transmission, coke to human transmission, at ang iba pang makakamandag na transmissions.
Tuloy ang ligaya ng kamag-anakan natin na nagpapakalat ng mga makakamandag na information drive campaign sa Facebook na may itinusok na HIV+ na dugo sa pakwan, mag-ingat, nakakamatay.
Under Sec. 3 (n)(x) of R.A. 11166, the law made it known to the public by legislative notice on what is HIV and how it is transmitted.
The HIV policy is heading towards an HIV-educated and informed society but is it?
Under our Criminal Law, there is the long standing rule of IGNORANTIA LEGIS NON EXCUSAT or ignorance of the law excuses no one from compliance. Furthermore, it recognizes Nullum crimen nulla poena sine lege or THERE IS NO CRIME WHEN THERE IS NO LAW THAT DEFINES OR PUNISHES IT.
In Dunlao Sr. v. CA, (G.R. No. 111342) the court held that: Crimes mala prohibita are acts that are made evil because there is a law prohibiting the same.
While it is true that ignorance of HIV and HIV transmission excuses no one from compliance, saying: “Hala kinain mo yong mansanas na may dugo ng HIV+ mahahawaan ka” will continue to horrify us in the PLHIV community. Though violation or mere ignorance of what’s in the HIV policy is a crime mala prohibita, ignorance or the misinformation of HIV AND HIV TRANSMISSION was not included in the HIV policy. Crimes mala prohibita under our criminal law need not be willful or with intent of wrong being done, mere violation of a prohibited act could be penalized as long as the law penalizes it.
HIV policy could have been the pioneer law in penalizing purveyors of FALSE OR MISINFORMATION; but it couldn’t because the law is more inclined in securing DOH AND FDA approval of cure or prophylactic.
HIV policy missed to specify a deterrent against the very “misinformation on HIV and AIDS” considering the multifarious provision on INFORMATION, EDUCATION, and COMMUNICATION. The misinformation on HIV and AIDS suddenly went missing in the prohibited acts.
As a member of the community, I’m disheartened to read misleading advertisement of drugs without DOH and FDA approval. Naamoy ko yong negosyo ng kapitbahay na inihaw na isaw without DOH approval. #BentaKaKulongKa
I also listed several issues on provisions of Confidentiality under Sec. 44 to 48 of R.A. 11166 and provisions on Discrimination under the Sec. 49 of R.A. 11166 but I’m deciding to keep it confidential as it is not an exception for me not to be discriminated by my own community, where discrimination of ideas is a norm.
Loopholes? Maybe or maybe not.
Too technical? BESHIES, batas ang pinag-uusapan natin hindi lang kemerlot sa kanto. Ganyan talaga yan.
Advocacy over legality? It can be reconciled only if there’s willingness; otherwise, yeah, just shake your heads and say: “huwag na” without hearing what is there to be said. If no reconciliation is met, just leave it to the lawyers who are paid by our government to do their job and let’s just wait for what we deserve.
I welcome the HIV and AIDS Policy Act but we could have made it better. Like all other laws, there’s an imperfection as this was drafted also by humans, just like us. But we can still do better. Not perfect, BUT BETTER. The choice is yours: “Willing ba kayo mga besh?”
I fervently hope that the IRR will be able to tighten the HIV policy and seal its loopholes. Our best opportunity to clearly provide an IRR of the HIV policy is not when the circumstances so demands, but TODAY!
We address the legalities; an airtight HIV policy and IRR is what everyone from the community desires.
As a member of the PLHIV community, I hope that we can build bridges in between gaps of ideologies to resolve a legally sound IRR that reflects both the wisdom of LEGALITY and ADVOCACY. Let us not be constrained by our personal advocacies as this are purely intended as a framework for our laws and the IRR.
Lastly, I appeal to the legal consultants sanctioned to create an IRR that genuinely reflects the sentiments of the community within the legal bounds set by existing laws. Create an IRR of the HIV policy with compassion for the PLHIV community and perhaps not just because you are paid to make the draft.
(Author’s note: I wrote this entry for purposes of self-satisfaction without any intent to belittle the efforts already made and that demanded taxing years from those in the advocacy and in the Congress. I recognized my apparent lack of authority for the time being but in God’s perfect time, I’m willing to share more than what I could for the PLHIV community as an individual but not as a part of any organization nor constrained by my personal convictions and advocacies. Mabuhay ang PLHIV Community! a luta continua vitória é certa!)
Worsening #ARVshortage in the Phl?
On Jan. 9, the Philippines gained a new HIV and AIDS law that is supposed to better the lives of Filipinos living with HIV. But many in the HIV community mark this day with distress, largely because of the worsening ARV shortage.
In September 2018, Xander (not his real name; anonymity requested), a Filipino living with HIV, claimed that he was told by the person working in the pharmacy of his hub to “consume already-expired medicines (the three-in-one tablet of Lamivudine/Tenofovir/Efavirenz)”, and that “it is “still good for three months after the expiration date.”
Since dealing with ARV-related issue is not new to him (it happened to him in the last quarter of 2013), he complained and was given newer meds. Noticeably, “those who didn’t complain – like I did – ended up using the expired meds,” he said.
Xander can only recall how he earlier lamented – again in 2013 – that the ARV shortage will happen again, particularly considering the continuing denial of the Department of Health (DOH) about this issue.
The 9th of January is supposed to be a happy day particularly for Filipinos living with HIV and their advocates. On that day, the newly-signed Republic Act 11166 or the Philippine HIV and AIDS Policy Act was released after it was signed into law by Pres. Rodrigo Roa Duterte. By replacing the 20-year-old Republic Act 8504 or the Philippine National AIDS and Control Act of 1998, this new law is supposed to boost the government’s response to HIV and AIDS by making health services for HIV and AIDS more accessible to Filipinos.
But many in the HIV community mark this day with distress, largely because of the worsening ARV shortage, which is not helped by the denial of the issue by various heads of offices – including government officials, as well as those helming treatment hubs/facilities and even select non-government organizations (NGOs).
In an unsigned statement (as if so that no one can be “chased” to be held accountable for the same statement), the DOH seemed to belittle the issue by outright claiming that there’s an ‘alleged’ shortage of ARVs; even as it also stated that they take the issue of HIV infection in the country seriously. Part of this is to take “great steps to ensure that access for HIV treatments are available for those who are diagnosed with HIV.”
The DOH statement added:
“As of October 2018, we have enrolled 32,224 persons living with HIV for treatment with ARV such as Nevirapine, Lamivudine/Tenofovir. The DOH has been providing free ARV to Filipinos living with HIV through our HIV treatment hubs.
“Based on our records, there are 3,200 registered PLHIV who are on Nevirapine and 1,791 PLHIV on Lamivudine/Tenofovir, as of December last year.
That just about half of the total PLHIVs in the Philippines use ARVs is worth noting, even if it’s another issue altogether.
But the mention of these two meds/cocktails is important because the complaints reaching – among others – Outrage Magazine, Bahaghari Center for SOGIE Research, Education and Advocacy, Inc. (Bahaghari Center) other and HIV-related community-based organizations/non-government organizations particularly currently mention these.
In Quezon City, for instance, at least eight PLHIVs alleged that they have been given incomplete medications – i.e. they were supplied with either Lamivudine/Tenofovir or Lamivudine/Zidovudine, but they have not been receiving Nevirapine because this is not available. These people are, therefore, taking incomplete meds.
Pinoy Plus’s hotline, PRC, has received similar allegations of non-delivery of Nevirapine.
In Cavite (Imus, Bacoor and Dasmariñas), at least three clients surfaced to allege about the same issue. PLHIVs are now “borrowing” each others’ Nevirapine supply just so they don’t miss their required dosage because their hub does not have supplies from the DOH.
There are similar allegations in Cagayan de Oro City, Davao City and Zamboanga City.
And in Alabang, the pharmacy of a treatment hub even posted on January 8, 2019 an announcement that “due to the shortage and delay of the deliveries at DOH, only one bottle will be dispensed of the following medicines: Nevirapine (200mg tablet); Lamivudine (150mg)/Zidovudine (300mg tablet); and Lamivudine (300mg)/Tenofovir (300mg tablet).” The same hub is telling its clients to “wait for further announcement on stock availability.”
Note that the RITM-AIDS Research Group’s pharmacy is putting the blame on the DOH.
The same DOH statement stressed that “the latest data, as of January 4, confirms that Nevirapine has already been delivered to the 16 treatment hubs to meet the requirements for February-April 2019. For Lamivudine/Tenofovir, a month’s supply has also been delivered to Regions X, VI and I. The rest of the regions will expect deliveries within this week.”
Noticeably, the DOH statement responds to issues only this January, even if this concern has been circulating in the PLHIV community since 2018, and only peaked now.
There are fewer ARV refills now. If, in the past, the usual practice is for hubs to give PLHIVs three bottles of ARV to last them for three months, a growing number are now complaining about the supply being cut to one month in numerous hubs – e.g. there’s that post in RITM’s pharmacy. Some allege that they are even supplied ARVs just for a week or even just for three days.
Due to the ARV shortage that the DOH is not outright confronting, expired medicines are allegedly being given to PLHIVs – as in the case of Xander.
Also due to the ARV shortage, the medication of a number of PLHIVs are allegedly being changed not because it’s medically sound, but because their usual medicines are not readily available. In Mandaluyong City, there are PLHIVs who claimed to have been told to use Lamivudine/Tenofovir/Efavirenz because it’s the only available ARV. If they refuse to do so, then they will have to stop taking their usual medications until such time when the delivery of supplies are normalized again.
To allow the DOH to respond to these claims, Outrage Magazine repeatedly reached out to the government body. Upon calling the media relations unit (at +63 2 651-7800 loc. 1126), we were turned over to the office of Dr. Gerard Belimac (+63 2 651-7800 locs. 2355, 2352, 2354). Five attempts were made to speak with Belimac or any other authority in his office, but he has been unavailable at those five times; and even after leaving requests for a statement from him on the ARV shortage, as of press time, the publication has not heard back.
As this is a continuing story, coordination will continue to – eventually hopefully – extensively hear from the DOH on this issue.
The DOH statement also stated that it is “working closely with our suppliers to ensure that there are no gaps in our supply chain. In fact, we are waiting for deliveries of an additional 12,375 bottles of Nevirapine good for another three months and 7,024 bottles of Lamivudine/Tenofovir good for another two months.”
The DOH also claimed that it is continuing to explore “for more partners in providing excellent support for Filipinos living with HIV-AIDS and in ending the deadly disease.”
As if wanting to pacify the complaining PLHIVs, the DOH statement transferred to responsibility to “HIV doctors to explore possible options”, or visit Facebook page (PLHIV Response Center) or email firstname.lastname@example.org. Note the use of a gmail account for a body with millions in budget.
No investigations on where the errors in the supply chain is happening so that these can be fixed is forthcoming. No one being held accountable here.
THE NEED TO GO BEYOND LIP SERVICE
Incidentally, Article V, Sec. 33 of the newly signed HIV law states: “The DOH shall establish a program that will provide free and accessible ART and medication for opportunistic infections to all PLHIVs who are enrolled in the program… A manual of procedures for management of PLHIV shall be developed by the DOH.”
The IRR is not even there yet, but this mandate to provide life-saving meds is now already cast in doubt.
Xander – who only had a refill of his ARVs – said that many like him who posted about this issue online were told to stop doing so “because we are supposedly creating panic among PLHIVs.”
He now says that people who cover up this issue are “as worse as those paid to work on this issue. Because if you go to the HIV community, we’ve long lived with worrying that our meds may not be given us at any moment. If some people think complaining about this is wrong, then they shouldn’t be in HIV advocacy, but work as PR people of those failing to do their jobs.”
In the end, “this needs to be resolved fast. Enough with discussing semantics on what we’re having is a shortage or a stockout; the fact remains that there are PLHIVs not getting their supplies. Lives are at stake. So supply the ARVs; now.”
Work doesn’t stop for the rainbow warriors
The Rainbow Collective launched a daily journal called “I Want the World to Know”, which aims to educate LGBTQIA persons and the general public about issues facing the community, and what they can do to promote acceptance.
By Sandy Miguel
More pressure should fall on the Senate to expedite the passage of the SOGIE (Sexual Orientation and Gender Identity or Expression) Equality Bill, but even sans this (or perhaps exactly because this is not getting traction), new LGBTQIA-centered organizations are coming to the forefront to clamor for more visibility and acceptance for the community.
One of these new organizations, The Rainbow Collective (TRC), launched a daily journal called I Want the World to Know, which aims to educate LGBTQIA persons and the general public about issues facing the community, and what they can do to promote acceptance.
“There’s (still) this mindset that you’re a lesser person just because you are LGBT,” TRC founder Lady Allyson Dulnuan said. “It may be a long road to acceptance, but it is possible by properly educating people and correcting their misconceptions and biases about the community.”
Acceptance, obviously, continues to be an elusive concept in society for LGBTQIA individuals.
The Philippines was hailed as one the most “tolerant” in Asia-Pacific region towards the LGBTQIA community based on a 2013 Pew Research Center report that found over 70% of Filipinos believe that homosexuality “should be accepted by society,” the Huffington Post reported in 2015.
But this preceded by the brutal murder of transwoman Jennifer Laude in her Olongapo hometown by a US marine. Just as sadly, two more deaths believed to also be LGBTQIA-related hate crimes followed just weeks after Laude was killed.
These hate crimes bring attention to the reality that LGBTQIA discrimination is still an epidemic in the country.
Elsewhere in the Philippines, discrimination happens to LGBTQIA individuals on a day-to-day basis; from extreme bullying to hearing “light-hearted,” passive-aggressive jokes, LGBTQ persons experience some form of prejudice daily at their place of work, in public or even at home. Lesbians, for instance, can most likely cite an incidence when they were teased to get themselves a man to “correct” their gender identity. Many, if not all, of these incidences of gender biases go unreported.
Incidences also occur because of the lack of anti-discriminatory policies in various jurisdictions. In 2018, for instance, comedian Jervi Li, also known as Kaladkaren Davila, was barred from entering H&J Sports Bar in Makati. The club bouncer said they don’t let gay people in, and that it was a policy created by the management. The interaction was recorded in a video, which Li posted on her Facebook page.
TRC’s planner, I Want the World to Know, contains resources on sexual and gender differences, LGBTQIA adoption and family life, as well as facts on homophobia and how they would benefit from having the SOGIE Equality Bill passed. It also arms individuals with information on how to identify LGBT issues and how they can effectively cope up in the society. The planner similarly has works and art from a handful of artists and writers who support the LGBTQIA community.
But work doesn’t stop – not for TRC, nor should it for everyone.
TRC is now in front of the planning board for its next project, Project Halipan, which zeroes in on domestic abuse and rehabilitating abusers in an LGBTQIA relationships.
The Rainbow Collective’s LGBT Planner 2019 is still available at https://bit.ly/TRC2019LGBTPlanner for P699.00. Message TRC’s Facebook page to order. Proceeds from the planner’s sales will go to Project Halipan.
Hear ye, hear ye! Pageant ‘pundits’ against trans people
Your gay identity or your “I love my LGBT friends” proclamation mean absolutely nothing to the struggles of trans folks when you follow it with transphobic statements.
Way back when I came out to my mom, I remember assuring her that I would not be dating boyish, manly, butch girls. In my ignorant mind at that time, I regarded non-feminine lesbians as a “disgrace” to the lesbian identity. I did not want to be associated with that image of a woman.
WhenI started dating, I had my concerns about being in a relationship with a bisexual woman. My unfounded fears involved thoughts like, “What if she cheats on me with a guy? That would look pretty bad on me as a lesbian.”, “What if we break up and her next relationship would be with a guy? Would people think that she grew sick of me just because I’m not?”, “If she wants kids, then I might not be the most viable partner for her.” or “Would she ever miss dick or having sex with a guy in the long-run?”. I’ve never actually heard of a research or an actual experience that a bisexual woman would always choose a guy over a girl eventually. I also did not receive any warnings about the added emotional and future risks of dating a bisexual. But due to this ever-heteronormative society-and I’m sure a lot of lesbians bear the same feelings- I just felt like the chance that a bisexual would end up with a straight relationship is much higher since it has widespread acceptance, thus, less struggles. The thought of being one-upped by heteronormativity, again, can be an unappetizing thought.
Fortunately, after learning more about the human spectrum that is SOGIE, I’ve done away with those insecurities and misconceptions. In light of recent altercations among viewers about Ms. Spain’s participation in the Miss Universe pageant, it is obvious that a lot of people are also in need of much enlightenment.
But, alas, I am not about to educate people on SOGIE. I believe if they are truly open to understanding the complexity that is gender and sexuality, they would go find information on their own. But there is one thing that terribly needs to be pointed out. I’ve been seeing a lot of opinions thrown about regarding theUniverse pageantry’s welcoming of Ms. Spain; and I would just like to clarify that below opening remarks do not give credence to anti-trans statements:
- I am gay…
- I am part of the LGBTQ community…
- I love / respect the LGBT community…
- I have gay friends…
Your gay identity or your “I love my LGBT friends” proclamation mean absolutely nothing to the struggles of trans folks when you follow it with transphobic statements. Please, before identifying yourself as a member of the LGBTQ community or claiming that you respect said community, make sure that you’ve thoroughly educated yourself what that community stands for, as well as what each of those letters is actually fighting for.
Otherwise, you’re just a gay person concerned only about your own gay rights, as opposed to wholeheartedly being part of the LGBTQ community. As for those “I-respect-the-LGBT-but..”people, I hope one day you’ll get off your privileged high horse and see how the status quo stymies the human dignity and rights of the community you supposedly respect.