FAQS

LHRTF Home About Us FAQs Brochures Fact Sheets Articles/Papers Legal Advice Contact Us

When it comes to HIV and AIDS, the laws in the Pacific are by no means perfect. There is a lot of work to be done to ensure a more supportive legal environment for people living with the virus. But all is not lost! There are some laws which can help you. But first, you may not be too familiar with how the legal system in your country operates. This section will attempt to answer some of the basic questions you might have.

• What is the law?

• What types of laws are there?

• Where does law come from?

• What is a Constitution?

• What is Legislation?

• What is Common Law?

• What is Customary Law?

• How is law enforced?

• What is a legal remedy?

• How does the law protect and support people who are HIV+?

• What are human rights?

• What is discrimination?

• Can human rights law prevent discrimination?

• Can I make a complaint against my doctor or against the hospital?

• What happens to my medical information after I receive an HIV test?

• What can I do if someone is spreading lies about me?

• Can I lose my job because I am HIV+?

• How do I enforce my rights?

• What is PIAF’s Legal Advice Service?

• How do I access the Legal Advice Service?

• Can PIAF lawyers go to court?

• Do I have to pay for legal advice provided by the LHRTF?

• What happens to the information I give to the Legal Advice Service?

  

What is the law?

When we refer to the “law” we are usually describing the rules of human behaviour that govern society. Living by a set of laws or rules provides order to our lives and helps us interact with one another in an orderly and just manner.

For example:

• Laws establish speed limits on certain roads so that we will know how fast we are permitted to drive. This helps keep others and ourselves safe from unnecessary accidents.

Different laws have different functions. Some laws establish rights and freedoms. Other laws establish duties or obligations.

 

What types of laws are there?

There are two main types of laws.

1. Criminal laws regulate our relationship with the State (our government). In order to keep the peace in society, the State, on our behalf, prohibits certain behaviour. For example, it is a criminal offence to commit rape, theft or murder. If you commit one of these crimes, you may be arrested and then charged with an offence. If you are found guilty in a court of law, you may also be fined or go to prison.

2. Civil laws regulate our relationship with each other. For example, civil laws regulate contracts, property, business, family matters and employment. If you break a civil law, the person who is affected by your behaviour may take you to court. If you are found guilty of an offence, you may be required to pay that person compensation.

 

Where does law come from?

In most Pacific Island countries, the law comes from several sources. Almost all countries in the region have:

• A Constitution

• Legislation

• Common Law

Many Pacific Island countries also have Customary law.

 

What is a Constitution?

A Constitution is the law that sets out the basic values and structure of a country as an independent nation. It establishes how government will be structured, how courts will be set up and how citizenship will be determined. The Constitution also outlines the rights and freedoms of all people. The Constitution does a lot of things!

The Constitution is created by the government. It is considered “the supreme law” which means that all other laws must comply with it. For more information on constitutions, see PIAF’s fact sheet called Understanding the Constitution.

 

What is Legislation?

Most laws in your country are called “legislation” or "statutes". This just means that they are laws that have been passed by the government. For example, most Pacific Island countries have employment legislation which regulates the relationship between employers and employees. Sometimes the legislation will give power to a Minister or government body (like a town council) to make laws. These laws are known as regulations or by-laws.

 

What is Common Law?

The common law is also known as judge-made law. When cases go to court, the role of the judge is to apply the law to the case in front of him or her. If the law doesn’t say exactly what should be done, the judge will look to past decisions to help him or her decide. Whatever the judge decides will then become part of the country’s “common law”. In this way, the law is constantly changing and developing.

 

What is Customary Law?

In most Pacific countries, the formal legal system is a product of colonial times and for this reason still bears some resemblance to the UK , French or in some cases, New Zealand legal systems. Custom or Customary law, on the other hand, is distinctly Pacific. It is the traditional or indigenous way of resolving disputes in Pacific Island communities. In some countries, the importance of customary law is constitutionally recognized and therefore is still a significant source of law in many regions of the Pacific.

Since many traditional island societies are patriarchal or male dominated, some people have expressed concern that customary law can be discriminatory, especially against women. In theory customary law is subject to the Constitution (which prohibits discrimination) but this may not happen in practice.

 

How is law enforced?

The law is enforced through the Police and through the Courts with the help of lawyers. The Police are responsible for maintaining law and order in society. They have special powers that allow them to protect people and their property and arrest those that break criminal laws.

The Courts enforce the law by deciding if there has been a breach of a relevant law and, if so, deciding what penalty, sentence or remedy is appropriate. A Court order is binding which means that you must do as you are told or else risk being arrested by the Police. Lawyers help you protect and enforce your rights.

 

What is a legal remedy?

If a person is successful in his or her complaint before a Court, the judge may order financial compensation for the loss. A judge can also issue a court order to force a person to carry out his or her duty properly and/or to stop the person from continuing to act in a certain way.

 

How does the law protect and support people who are HIV+?

Unfortunately there is still much that needs to be done in terms of creating a supportive legal framework for people living with HIV/AIDS in the Pacific. Most Pacific Island countries do not have specific human rights legislation or any specific organization that is in charge of monitoring and advocating against discriminatory behaviour. With the exception of Papua New Guinea, most, if not all, Pacific Island countries do not have comprehensive HIV/AIDS management legislation.

However, there are still some laws in the Pacific that can help protect and support people who are HIV+. For example, International law, Constitutional rights, defamation and employment laws can help you enforce and protect your rights. Please see PIAF's brochures, fact sheets and discussion papers for more information.

 

What are human rights?

Human rights are universal rights belonging to all people. Every person, including people who are HIV+, has the right to:

• Life

• Equality and to be Free from Discrimination

• Privacy and Confidentiality

• Adequate Health Care and Counselling

• Parenthood

• Education

These rights are recognised by International law. Most Pacific Constitutions also recognise the above rights. The Constitution states that all persons are entitled to equal protection of and equal treatment under the law. This means that all people, including PLWHA, are equal and should be treated the same as anyone else. For more information about human rights, see PIAF’s brochure called What are Human Rights?

 

What is Discrimination?

Treating someone differently for no good reason is called DISCRIMINATION. There is no good reason to refuse to touch, sit next to, care for, work with, or share a house with you just because you are HIV+. This is discrimination and it violates your Constitutional rights.

 

Can human rights law prevent discrimination?

While the law can and should be used to prevent discrimination in employment, health care and in the provision of other public services, it cannot do everything. Not all forms of discrimination can be remedied by a court of law. For example, the courts cannot make someone sit next to you on the bus, shake your hand, or be your friend. The law cannot change the attitudes and prejudices which cause some people to discriminate. Only education and awareness about HIV/AIDS can do that.

 

Can I make a complaint against my doctor or against the hospital?

Yes. In addition to applying to the courts for a remedy for violating your human rights, if you have been discriminated against by your doctor or other health care worker because you are HIV positive, you can probably make a complaint to the Manager of the Hospital or to the Minister in charge of health in your country. For more information, see PIAF’s brochure on Making a Complaint Against Your Doctor.

 

What happens to my medical information after I receive an HIV test?

Your medical information should remain confidential. This means that your doctor should not tell anyone about the results of your HIV test without your express permission. For more information, see PIAF’s brochure on What is Confidentiality or PIAF’s fact sheet on Your Right to Privacy. If your test results have not stayed confidential, you can consider making a complaint.

 

What can I do if someone is spreading lies about me?

If someone is spreading lies or rumours about you in public, this could be defamation and you may be entitled to a legal remedy. For more information, see PIAF’s brochure called What is Defamation or PIAF’s fact sheet on Using the Law of Defamation.

 

Can I lose my job because I am HIV+?

Yes and no. In many Pacific Island countries, so long as you receive adequate notice, all employees, whether HIV+ or HIV negative, can be sacked from their jobs for any reason and sometimes for no reason at all. However, if you are sacked from your job because you are HIV+, you have two options. You can apply to the courts for a remedy on the grounds that your employer has discriminated against you. Alternatively, you can apply to the courts for a remedy because you have been unlawfully dismissed. It is unlikely you will get your job back but you may be entitled to financial compensation.

So in others words, You can lose your job because you are HIV+ but it SHOULD NOT happen. This is discrimination. If this happens to you, you may be entitled to a legal remedy. For more information, see PIAF’s brochure called Understanding What Happens When You Lose Your Job or PIAF’s fact sheet on Understanding Termination of Employment.

 

How do I enforce my rights?

If you have a human rights complaint or other legal problem, you can contact PIAF’s Legal Advice Service and talk to a lawyer for free. PIAF can then put you in touch with a lawyer in your country who will help you bring your case to court. Since lawyers are expensive, some countries ( Vanuatu, Solomon Islands and Tuvalu ) also have an office of the Public Solicitor which provides free legal services to "needy" people who cannot afford a lawyer. There are certain rules about who counts as a "needy" person.

If you have a complaint against someone who works for the government, you can consider contacting the Ombudsman of your country. There is an Ombudsman in the Cook Islands, Fiji, Samoa, the Solomon Islands and in Vanuatu .

Fiji is the only country that has established an actual Human Rights Commission. If you live in Fiji, you can ask the Commission to investigate your complaint. Sometimes the Commission will take cases to Court on your behalf.

If you live in Vanuatu , you can also contact USP’s Community Legal Centre.

 

What is PIAF’s Legal Advice Service?

PIAF’s legal advice service is a service offered by qualified lawyers working with PIAF’s Legal and Human Rights Task Force (LHRTF) exclusively for people living with or affected by HIV/AIDS in the Pacific Islands region. We can help with all kinds of legal problems and can give you specific legal advice.

 

How do I access the Legal Advice Service?

You can contact the LHRTF at PIAF by telephone or by email. If you live in Vanuatu or the Cook Islands you may be able to meet with a LHRTF lawyer face to face.

 

Can PIAF lawyers go to court?

At this time, it is unlikely that LHRTF lawyers can go to court on your behalf. But, they can help you find a lawyer from your country if you:

• Require further assistance;

• Are considering going to court; or

• Are already going to court.

 

Do I have to pay for legal advice provided by the LHRTF?

No. The service provided by the LHRTF is free of charge.

  

What happens to the information I give to the Legal Advice Service?

The Legal and Human Rights Task Force has a duty to keep everything you tell us confidential.

 

 If you have any questions, please contact us.