Governments Regulating Morality

It seems that the Government of Jakarta has decided the best way to break the chain of HIV infections plaguing the capital is to regulate the morality of its citizens and to pass the burden of testing and screening onto businesses. Sometimes you have to worry about the policy wonks and drafters sitting in City Hall and their inability in putting together a coherent policy and a workable law.

What follows might be too analytical for some. However, it is worth pondering some of the points raised.

It might be argued that this Regulation has been a long time in the making and an equally long time in the coming. The Regulation, No. 5 of 2008, seeks to break the chain of HIV infections that, at least, statistically have seen a rapid spike in the upwards direction. HIV/AIDS is a serious problem in the capital and there is no doubt that the government needs to be more proactive in the fight against the virus.

The basic premise of the Regulation is to break the chain of infections. Furthermore, the Regulation is designed to ensure that the quality of life of HIV / AIDS suffers and intra-venous drug users improve. However, the responses that the government proposes to this end are interesting for many reasons. In many ways the provisions of the Regulation seem to be more suggestion in nature than enforceable as the provisions seem to be aimed at regulating moral behaviour and criminalizing poor moral judgment.

The rest of the Regulation deals with matters that provide a loose framework for ensuring that people living with HIV / AIDS have access to adequate medical treatment and are not discriminated against once their HIV status is known either to an employer or the community at large. It is not explicitly clear from the construction of the Regulation but it appears that generally this provision would make it an offence to discriminate against and vilify a person with HIV.

Furthermore, the Regulation requires businesses that are considered to be high risk and potentially sources and spreaders of the virus to be more pro-active in screening their staff for HIV infection. Through to June 2008 there are 3,123 cases of HIV reported in the capital which on a percentage basis is small considering the size of the population.

There are five components to the Regulation:
1. general provisions;
2. promotion;
3. prevention;
4. medicine; and
5. treatment and support.

In general the Regulation targets those individuals that are considered high risk or work in high risk businesses. These businesses are identified in the Elucidation to Article 15(g) as, among others, employees of massage parlors, spas, discotheques, and karaoke joints. However, the Regulation also makes special mention of ensuring that pregnant women and nursing mothers have access to suitable and continuing services to ensure the health of any children born to a HIV positive mother.

Promotion is a matter of communication, information, and education. The promotion role is to be filled by the community, the Central Government, and the Government of Jakarta as required. However, it is expected that there is to be a degree of synergy developed among these promoters to ensure efficiency and effectiveness of any promotions undertaken.

It is expected that the promotion activities will focus on two core elements, namely: changing lifestyle patterns and reducing the stigma attached to being HIV positive.

The educational aspect of the promotional program is to include both internal and external (extracurricular) elements within schools. This means that schools are required to develop a personal development or sex education program that includes materials on HIV / AIDS. Interestingly, the Regulation uses the word “schools” and the Elucidation to the relevant article does not provide any assistance to how schools must be defined. So it is therefore reasonable to assume that the word schools can conceivably include from the primary level through to the senior secondary level.

Nevertheless, the likely target will be senior high school. Yet, if statistics were to bear out that increasingly larger numbers of junior high school students were engaging in high risk behaviours then it would seem to make sense to start the education program at the junior high level.

In a more general sense the promotion elements of the HIV / AIDS program are aimed at promoting the idea that a harmonious and loving family is one that does not tolerate high risk behaviours.

The prevention strategy on face value is a good one. Unfortunately, neither the Regulation nor the Elucidations provide enough detail about how the prevention strategy is going to be implemented in full. There is considerable scope for further regulations in order to “fill” out the regulatory framework.

The prevention strategy includes, among others, the following:
1. abstinence for unmarried people;
2. sexual relations only with those who are your legal partner;
3. use of preventive aids (presumably condoms although nothing is mentioned) by people of known HIV status;
4. programs to reduce the negative impacts of intra-venous drug use;
5. standard operating procedures for organ transplants and blood transfusions;
6. programs to ensure that pregnant women of a known HIV status have prioritized access to antiretroviral drugs to lessen the risk of transmission to their unborn child;
7. programs that require high risk business to routinely screen for HIV infections in their employees;
8. universal precaution for health workers who are at risk of contact with HIV; and
9. family counseling.

The above strategy gives rise to a number of questions. These questions will need to be answered going forward either in a legislative manner or in terms of a commitment to allowing certain strategies to take shape. There is also considerable scope for public / private partnerships to develop in such areas as needle exchange programs and injecting rooms as a means of reducing the negative impacts of intra-venous drug use and abuse. Other possibilities include the development of community health programs that promote the use of condoms and make them readily available to the masses.

Furthermore, the compulsory nature of the obligation on employers to test employees who work in high risk businesses is an interesting one on a number of different levels. For example, the costs of the testing are to be borne by the businesses themselves. However, the Regulation is unclear as to whether the government is going to appoint an accredited screener for the process or are the businesses free to choose a screener of their own? The Regulation is also unclear as to what the employer is to do with an employee who is HIV positive once they are uncovered through the screening process.

Another interesting question not properly addressed in the Regulation is how are bars and pubs to be tested and screened in this process. Admittedly, the Regulation would cover employees of bars but it would not conceivably cover freelance female and male sex workers who might inhabit such establishments. It would appear that there would also be a need to screen these people as well. However, if they are not employees then who does that responsibility fall to? And isn’t the screening of high risk individuals one of the pillars of this piece of legislation?

In a perversely funny kind of a way, the Regulation seems to suggest that certain entertainment venues are places of prostitution. It is clear that prostitution is illegal in Indonesia so if the government of Jakarta is making such an admission then would the more common sense approach be to close these venues down and reduce the level of prostitution in the city.

The reality is that the Regulation is far from being as comprehensive as it might have been. Considering the intent of the Regulation is to break the chain of HIV infection, then to leave large numbers of high risk individuals to voluntary testing would seem to undermine the good intentions of the provisions as they currently stand.

In terms of medicines the Regulation is much more scant on provisions and states that further regulations are to be issued to clarify this matter.

The Regulation creates both Provincial and District / City AIDS Prevention Commissions which in a cynical sense serves to create another level of bureaucracy in the system. However, if the Commissions were able to be developed in a manner that allowed for consolidation of the current diaspora then this may be a positive development.

Interestingly, the Regulation sets out a role for community participation but simultaneously obligates the members of the community to treat people living with HIV / AIDS in a just and humane manner. Combined with the earlier noted provisions, this appears to bring into play the possibility of people being charged and prosecuted for vilifying HIV positive individuals.

The community’s role also seems to include a moral policing aspect as the Regulation is specific in stating that the community must ensure that the is an increase in religiousness of the community and that the existing family units are maintained. The Regulation then goes on to state that the community must create an environment that is conducive for the, presumably, wider acceptance of the fact that there are HIV positive people and drug users living within their midst.

The Regulation also includes a Chapter on investigation and explicitly states that investigators can either be police investigators or appointed civil service investigators. The provisions in Article 27 set out what the investigators are authorized to do but what the Regulation is lacking is specifically what the investigators are to investigate. It is therefore presumed that the matters that would be subject to investigation are those relating to compliance and the specific provisions noted in the Chapter on sanctions.

Yet, it is worth noting that investigators have extensive powers to fingerprint, photograph, and seize property and documents. What is unclear from the Regulation is whether this power is as unfettered as it seems to be.

The provisions require businesses to test staff members at least every three months. Presumably, this means that investigators would be able to demand documents that would prove compliance. The sanctions provisions only note the following offences:

1. failure to keep HIV status data confidential;
2. failure to follow standard operating procedures with regards to transplants and transfusions;
3. non-discrimination against HIV positive people in the provision of medical services; and
4. compulsory HIV screening for high risk employees.

The administrative sanctions would include written warnings to businesses that have failed to comply with screening procedures. Ongoing compliance failures would then allow the government to shut down the business.

The criminal sanctions provide for terms of detention up to three months or fines of up to IDR 50 million. The deliberate spread of HIV is not subject to a specific penalty under this Regulation but rather the Regulation states that the criminal penalty will be whatever is applicable under the prevailing laws and regulations.

The Regulation was issued on 22 July 2008 and came into force on 24 July 2008.