The Policy and Legal Environments Related to HIV Services in Malaysia REVIEW AND CONSULTATION HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM) Proposed citation: UN (2014). Review and Consultation on the Policy and Legal Environments Related to HIV Services in Malaysia. Kuala Lumpur, UN. Published by the United Nations Country Team, Malaysia © UN 2014. All rights reserved. United Nations Wisma UN, Block C, Kompleks Pejabat Damansara Jalan Dungun, Damansara Heights 50490 Kuala Lumpur, Malaysia www.un.org.my The contents may be freely reproduced for non-commercial purposes with attribution to the copyright holders. The Policy and Legal Environments Related to HIV Services in Malaysia REVIEW AND CONSULTATION HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM) Acknowledgements he main objective of the report on the Review and Consultation on the Policy and Legal Environments Related to HIV Services in Malaysia is to identify the current status of policy Tand legal environment in Malaysia that safeguard the universal human rights of the key affected populations with regard to the HIV prevention, care and treatment. The review and consultation establishes a baseline on the current enabling environment (policies and laws) in relation to safeguarding the human rights of the key populations and second, and it provides a set of recommendations to input into any reforms to promote an enabling environment where the human rights of the key populations are protected. The United Nations HIV and AIDS Theme Group in Malaysia would like to express our gratitude to the Human Rights Commission of Malaysia (SUHAKAM) for their support and collaboration. We would like to thank the Project Technical Steering Committee especially Datuk Dr Khaw Lake Tee, Datuk Raj Abdul Karim, Datuk Dr. Christopher Lee, Professor Dr Adeeba Kamarulzaman, Fifa Rahman, Zaki Arzmi, Fatimah Abdullah, Raymond Tai, Francis Oliver P. Sison and Chang Kai Peng for their invaluable insights and guidance throughout the preparation of this Report. We would also like to thank individuals who provided their inputs: Chitrah Rajendran, Zainor Rashid Hassin, Roswati Abdul Ghani and Hisham Husin. In order to ensure accuracy and clarity, the Report was reviewed by external reviewer – Professor Teh Yik Koon and Genevieve Tan. The Review and Consultation of the Policy and Legal Environments Related to HIV Services held in Kuala Lumpur on 28-29 October significantly contributed to development of the Report by soliciting inputs from key stakeholders including over 37 representatives from key populations. We would like to thank those who participated in the Consultation. We would like to thank Susan Chong for her commitment in writing this Report. This report on the ‘Review and Consultation on the Policy and Legal Environments Related to HIV Services’ in Malaysia was an initiative undertaken by the United Nations Country Team in Malaysia. This initiative was supported by UNDP Asia-Pacific Regional Centre under the ISEAN-Hivos Regional Project (ME1-011-G01-H) funded by the Global Fund to Fight AIDS, Tuberculosis and Malaria. Special thanks to UNDP Bangkok Regional Hub, UNAIDS Regional Support Team and the United Nations Economic and Social Commission for Asia and the Pacific (UN ESCAP) for their contribution and review during development of this Report. 2 Review and Consultation on the Policy and Legal Environments Related to HIV Services in Malaysia Foreword he law can have a profound impact on the lives of people – especially those who are vulnerable and marginalized. The true test of an inclusive and caring society is reflected in its commitment Tto protect the rights of minorities. In Malaysia, the HIV epidemic continues to be concentrated among key populations, who often represent highly ostracized and stigmatized segments within all societies. Members of these communities are not only rejected socially, but further marginalized through legal frameworks that cast them as criminals. Criminal laws and discriminatory practices based on moral judgment, superstition, ancient beliefs, fear and misinformation, punish instead of protect. They drive at-risk communities underground, preventing them from accessing lifesaving treatment and prevention information and services, heightening their risk for HIV. The Global Commission on HIV and the Law (2010-2012), a high-level initiative launched in 2010 by UNDP Administrator, Helen Clark, examined how law and practices can transform the global AIDS response. The Commission’s findings and recommendations reveal that evidence-based laws and practices firmly grounded in human rights are powerful instruments for challenging discrimination, promoting public health, and protecting human rights. The benefits are felt beyond HIV responses to encompass health and development outcomes more broadly. Furthermore, United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) Resolutions 66/10 and 67/9 recommended that punitive laws and policies targeting key populations be abolished to reduce levels of social stigma, discrimination, violence and broader human rights violations. Now, more than ever, it is time for the country to ensure a policy and legal environment that can support an effective national AIDS response to mitigate the impact of HIV and promote and protect the human rights of people living with HIV and AIDS and those most vulnerable to HIV. I welcome the Review and Consultation on the Policy and Legal Environments Related to HIV Services in Malaysia. This review of HIV-related laws and policies identifies legal barriers to accessing health and HIV services for key populations and presents a set of recommendations that can save lives, save money and help end the AIDS epidemic in Malaysia. I hope that individuals and civil society organizations will use this resource to claim their rights, and also that policy and lawmakers, officials responsible for criminal justice, law enforcement officers, national AIDS programme officials, and donors will use it to inform the development and implementation of an enabling legal environment for effective HIV and heath responses. Ms. Michelle Gyles-McDonnough, UN Resident Coordinator, Malaysia The United Nations Country Team, Malaysia 3 Table of Contents List of Abbreviations/Acronyms 6 PART ONE Introduction and overview 7 Methodology 8 Outline of report 8 PART TWO Literature review and analysis 9 Malaysia –HIV, laws, regulations and policies 10 Status of the epidemic 10 Law and regulations 10 Most-at-risk populations or key affected populations 11 PART THREE Consultation on Policy & Legal Environments Related to HIV and AIDS Services in Malaysia 28 Day One 28 Day Two 29 PART FOUR Propositions and recommendations 30 Recommendations 31 Limitations to the Review 35 Conclusion 36 REFERENCES 37 APPENDIX ONE Review and Consultation of the Policy and Legal Environments Related to HIV Services in Malaysia (28-29 October 2013) 40 List of Participants 42 4 Review and Consultation on the Policy and Legal Environments Related to HIV Services in Malaysia APPENDIX TWO Review and Consultation of the Policy and Legal Environments Related to HIV Services in Malaysia (28-29 October 2013) 43 Civil Society’s Consensus Statement of the Policy and Legal Environments Related to HIV & AIDS Services in Malaysia 44 APPENDIX THREE Review and Consultation of the Policy and Legal Environments Related to HIV Services in Malaysia (28-29 October 2013) 45 Group presentations I. Group One – harm reduction (specific to IDUs) 45 II. Group Two – key affected populations 46 III. Group Three - testing, treatment, care and support 48 APPENDIX FOUR Consultation on policy and legal environment related to HIV/AIDS services in Malaysia 49 APPENDIX FIVE List of Project Technical Steering Committee Members 53 APPENDIX SIX Terms of Reference for Project Technical Steering Committee 54 3 Review and Consultation on Legal and Policy Environments Related to HIV Services 55 3.1 Country-level Review Stage 56 3.2 Consultation Stage 56 3.3 Steering Committee 56 The United Nations Country Team, Malaysia 5 List of Abbreviations/Acronyms AIDS Acquired Immunodeficiency Syndrome ARV Antiretroviral therapy ASEAN Association of Southeast Asian Nations CBOs Community based organisations CEDAW Committee on the Elimination of Discrimination against Women CRC Convention on the Rights of the Child CSOs Civil Society Organisations EPF Employees Provident Fund ESCAP Economic and Social Commission for Asia and the Pacific EU FTA European Union Free Trade Agreement HIV Human Immunodeficiency Virus ISEAN-HIVOS Insular Southeast Asian Network on MSM, TG, and HIV - Humanist Institute for Co-operation with Developing Countries JAWI Federal Territory Islamic Affairs Department MDG Millennium Development Goal MITI Ministry of International Trade and Industry MMT Methadone Maintenance Treatment MDTCA Ministry of Domestic Trade and Consumer Affairs MSM Men who have sex with men NGOs Non-government Organisations NSEP Needle and Syringe Exchange Program PTF PT Foundation PTSC Project Technical Steering Committee PUSPENs Narcotics Addiction Rehabilitation Centres PWUD Persons who use drugs SOCSO Social Security Organisation SRH Sexual Reproductive Health STI Sexually Transmitted Infections SUHAKAM Human Rights Commission Malaysian TPPA Trans-Pacific Partnership Agreement TRIPs Trade-Related Intellectual Property Rights UN United Nations VCT Voluntary Counselling and Testing 6 Review and Consultation on the Policy and Legal Environments Related to HIV Services in Malaysia PART ONE Introduction