POLICY REVIEW OF HIV AND AIDS LAW OF THE PHILIPPINES

Current Epidemiological Profile

A total of 49,733 HIV and AIDS cases has been reported from January 1984 to November
2017.The HIV and AIDS Registry1 shows that 44,791 or 86 percent were asymptomatic and 4,942
were AIDS cases. Of the total reported cases, 2,397 cases had already resulted in death at the time
of the reporting.

The average number of newly diagnosed with HIV per day for 2017 is 31. In terms of age,
the proportion of cases became younger. In November 2017 alone, 32% or 288 cases were among
youth aged 15-24 years. 283 cases were infected through sexual contact, and four cases were
infected through sharing of injected needles.

The current epidemiological picture shows a slow and fast increase level of HIV prevalence
in the Philippines, the evidence of high-risk situations and practices indicate that an AIDS
epidemic may be hidden and growing.

Prevention, Treatment, Care and Support

Republic Act 8504 as well as the proposed bill have provided provisions that would ensure
a nationwide HIV educational and information campaign, promotion of prevention measures in
workplaces and schools, as well as, mandating key government agencies formulate policies in
support of a comprehensive response to halt the HIV and AIDS prevalence in the country.

The Civil Service Commission also issued an Announcement2 requiring all government
agencies to submit a report to the Philippine National AIDS Council on their respective efforts to
implement workplace policy and education programmes on HIV. This issuance paved way for the
following policies to be formulated by the major government agencies:

 Department of Interior and Local Government Memorandum Circular3 enjoining

all Local Government Units (LGUs) to implement HIV and AIDS Education in
Communities and create Local AIDS Councils that are mandated to ensure that
local response to HIV and AIDS are allotted with budget.
 The Department of Labor and Employment have also issued a Department Order4
that aims to strengthen the workplace response in implementing occupational safety
and health policy and program of the establishment.

1
Department of Health. HIV and AIDS Registry. November 2017
2
Civil Service Commission Announcement No. 21, series of 2010: Guidelines in the Implementation of Workplace
and Education Program on HIV and AIDS
3
DILG Memorandum Circular No. 2013-29
4
DOLE Department Order No. 102-10, Series of 2010: Guidelines for the Implementation of HIV and AIDS
Prevention and Control in the Workplace Program
  The Department of Education issued an Order5 mandating the Health and Nutrition
Center to conduct the training workshops on HIV and AIDS education among the
teaching and non-teaching personnel.

Moreover, the Department of Health, mandated to be the lead agency to implement RA

No. 8504, continuously conduct several consultations with various stakeholders, including
international and development organizations to provide evidence-based plans for the
implementation of HIV prevention, care and treatment. The DOH, through its Epidemiology
Bureau, have been very keen in mapping out the key affected population by utilizing the HIV and
AIDS Surveillance system.6 The system is being used to improve service delivery, intensifying
outreach activities, as well as ensuring that HIV services reached the identified KAPS. The
information released by the Department of Health serves as one of the basis to formulate policies
to increase HIV testing.

On testing, the bill amending the law retained the principles of voluntary HIV testing but
further included the principle of the evolving capacities of the child. 7 This provision emanated
from the Convention of the Rights of the Child stating in its General Comment on HIV that
children have the right to access adequate information related to HIV prevention. The Committee
on the Rights of the Child emphasized that:

“Effective HIV and AIDS prevention required States to refrain from

censoring, withholding , or intentionally misrepresenting health-related
information, including sexual education and information, and that,
consistent with their obligations to ensure the right to life, survival and
development of the child (art.6). States parties must ensure that children
have the ability to acquire the knowledge and skills to protect themselves
and others as they begin to express their sexuality.”

In 2015, the application of the minimum age to access HIV services has been debated.
However, advocates of the principle showed that the said principle is reflected in the 1987
Constitution of the Philippines:

 Article II, Section 12 recognizes the role of the parents to rear children and youth
for civic efficiency and the development of moral character. This implies that the
parent’s role is to provide direction and guidance and prepare their children for
civic engagement.
 Article II, Section 13 recognizes the importance of the youth in nation-building and
that they should be involved in public and civic affairs. 10 This implies that children
and youth acquire competencies to engage in civil and political life and that it is
important to prepare them for this.
 Article XV, Section 3(2) recognizes the need of children to be protected from abuse,
exploitation, violence and other circumstances which may affect their

5
Department of Education 47, series of 21012: - Implementation of the School-Based HIV and AIDS Education
Program (SBHAEP) of the Department Of Education
6
PNAC (2014). AIDS Medium Term Plan: Midterm Review.
7
Section 27, House Bill 6617
 development.11 This implies that there are certain circumstances that the State must
intervene in order to promote the development and well-being of children and
youth.

Likewise, some national laws defines ages by which children and youth are recognized to
have acquired certain competencies. These are as follows:

Age Circumstance Legal Provision

10 years Consent to domestic adoption, whether
as the adoptee or the legitimate and
adopted child of the adopter and
adoptee, and illegitimate child of the
adopter if living with the adopter and
the latter’s spouse, if any
12 years Consent to sexual relations with a
partner
15 years Be a member of the Katipunan ng
Kabataan
15 years Be elected as Sangguniang Kabataan
15 years Working age
Above 15 years Minimum age if criminal liability
Article, III, Section 9, Republic
Act No. 8552 or the Domestic
Adoption Act
Article 266-A (1), Republic Act
No.8353 or the Anti-Rape Law
of 1997
Section 424, Local Government
Code
Section 428, Local Government
Code
Section 12, Republic Act
No.7610 as amended by
Republic Act No.7658
Section 6, Republic Act No.
9344

Article 266-A(1) or the Anti-Rape Law enumerates the circumstances when rape can be
committed. This includes the act of having sexual intercourse with a person below 12 years old,
even in the absence of force, threat, intimidation, fraud, abuse of authority, etc. This implies that
a person who is 12 years of age and above can give consent to having sexual intercourse.

Accordingly, the application of the principle of evolving capacities of the child in

Philippine AIDS law necessitates an understanding of the Filipino child’s life experiences in the
context of health and sexual behaviour, which can become the basis of determining their
competency to make decisions about their sexual and reproductive health, including access to
voluntary counselling and testing for HIV.

Under the current law, contract tracing is allowed8. According to Salvana, contact tracing
was regarded as the most effective means to prevent a contagion is to trace the source, as well as
those who may have been or most likely to be infected. It is a time-tested strategy that to disallow

8
Section 29, RA8504
it in cases of HIV AIDS is not only imprudent, but a disservice, if not an abnegation of the sworn
duty to protect the Filipino people.9

In the proposed amendment of the law, contact tracing has been expressly removed; and
replaced it with provisions that would encourage people to voluntary disclose their HIV status
anchored on the principles of confidentiality and informed consent to their partners, and attending
physician 10. Likewise, UNAIDS and WHO, strongly encourage voluntary disclosure of HIV status
to subsequently encourage key affected population to adhere to HIV counseling, testing, and
treatment.11

Political and Social Environment

The Philippine National AIDS Council, as the central advisory, planning and policy-
making body for the comprehensive and integrated HIV AIDS prevention and control program in
the Philippines, which is currently composed of twenty-six (26) high-level government and non-
government officials and representatives, has been supportive of the proposed revision of the
current law which seeks to restructure the existing legal framework by adopting evidence-informed
strategies and approaches on the prevention, treatment, care and support of the people living with
HIV. Paramount in the proposed revised strategies is the protection and promotion of the rights
and freedoms of those afflicted with the disease, as well as the desire to improve and uplift their
living conditions.

The PNAC position paper released on 03 April 2017, clearly expressed that alongside the
protection and promotion of the rights and freedoms of PLHIV , however, should be the protection
and promotion of the rights and freedoms of those who are not afflicted. The Council understands
that this is raison d’être of the proposed revisions – to ensure that this disease afflicting a small
segment of our population is immediately contained, and is prevented from further spreading, but
without sacrificing the basic human rights and freedoms of those who are afflicted.

Considering that the effectiveness and appropriateness of a strategy depends on

multifarious factors, which may or may not be known at a certain time, the Council is convinced
that it may be more prudent to focus legislation on the policy, rather than on the strategy, of
preventing the spread of HIV AIDS. Effective strategies now may not be that effective in the
coming days, particularly with the revolutionary advances in knowledge, medicine, science and
technology. The prudence in not legislating strategy is amplified by the reality that it takes years
to pass a law, as well as to amend or abrogate one. At this very crucial time when the country is
faced with the prospects of dealing with HIV and AIDS epidemic, the implementers need the
requisite flexibility and creativity in immediately addressing this dreaded disease.

9
Salvana, E. (N.D). HIV in the Philippines: A Prime Target for Elimination through Test-and-Treat. Institute of
Molecular Biology and Biotechnology, National Institute of Health. University of the Philippines - Manila. Retrieved
at http://actamedicaphilippina.com.ph/sites/default/files/HIV-Elimination.pdf on 01 February 2018
10
Section 43 and 44. House Bill 6617
11
UNAIDS/WHO (2000). Opening Up the HIV/AIDS Epidemic: Guidance on Encouraging Beneficial Disclosure,
Ethical Partner Counselling and Appropritae Use of HIV Case-Reporting. Retrieved at
http://www.who.int/ethics/topics/opening_up_ethics_and_disclosure_en_2000.pdf on 01 February 2018.
 It is also good to note that that the House Bill 6617 retained the membership of the Leagues
of Provinces and the League of Cities in the Council. Though the high number of HIV cases
recorded are in the key cities of the country, many people in the neighboring metropolitan cities
want to avail HIV services. The participation of the provinces and the cities, and even of the
municipalities – collectively through the different Leagues of the Philippines – in the Council will
allow not only more meaningful and broad participation of local government units in the
development of national policies and programs on HIV and AIDS, advocate for the
implementation of the same in their respective constituencies, but also ventilate, articulate and
crystallize issues affecting provincial, city and municipal government administrations, peculiar to
each and every level.

Human Rights, Stigma and Discrimination

Section 10 of House Bill 6617 mandated the PNAC members, civil society organizations,
Department of Justice, and the Commission on Human Rights to provide mechanisms in the course
of the implementation of the law anchored on the principles of human rights and human dignity.
Likewise

As can be gleaned from its provisions, the proposed bills amending the law attempts to
prevent further spread of HIV and AIDS in the country, to manage the already recorded cases of
people living with HIV and to protect the rights of the people living with HIV and the general
public from acquiring HIV through malice or recklessness of people in the healthcare sector.
Accordingly, the State has deemed it appropriate to make use of criminal law, incorporating in the
current law as well as the proposed bill some penal provisions. The first of these penal provisions
is Section 47 (g) which provided the penalty of imprisonment and monetary fine against those who
performed discriminatory acts and practices in the workplace, learning institutions, shelter, public
services, as well as the exclusion of PLHIV from availing insurances and other financial services.12

Through this provision the State discourages further worsening of the HIV/AIDS related
stigma and discrimination against people living with HIV through spread of misinformation about
HIV/AIDS in the mass media as well as to deter those who would try to profit from the already
distressed members of the people living with HIV through selling products claiming to be an
effective HIV prevention or cure.

It also good to note that the proposed bill have incorporated provisions that would provide
major updates on existing provisions to (1) improve workplace non-discrimination with
occupational health framework – medical surveillance of hospital personnel and third-party
providers, (2) workplace policies and local responses provisions to establish obligation of officials,
employers and public services on non-discrimination, (3) reconciliation of the law to the Sanitation
Code on handling and disposition of cadavers – recognize Manual on Safe Practices and
Procedures for Embalmers, and (4) refences available for Civil Service regulations on grievance
and redress of discriminatory acts of public servants, services.

Furthermore, a new provision describing Redress Mechanism on HIV/AIDS and Human

Rights and the application of the Civil Code to establish “civil liability” has been strongly crafted
12
Article VII, Section 46, House Bill 6617
in the bill. It also good to highlight that provisions that would give importance to People with
Disabilities Act on reasonable accommodation has been incorporated. The proposed bill have also
incorporated provisions to apply the Anti-Bullying Law on reporting, monitoring, as well as, define
acts of violence as extreme form of discrimination and aggravating condition in spread of HIV.

Punitive laws

A review of the Revised Penal Code revealed that the mention of HIV in one of its articles
is a result of R.A. No. 8353 which made HIV transmission, after the act of rape, as one of the
aggravating/qualifying circumstances for that particular crime. From an initial scan of the Revised
Penal Code, it appeared that no provision may be used to prosecute intentional HIV transmission
through sexual intercourse. Nevertheless, according to the GNP+ in its Global Criminalisation
Scan website13 intentional HIV transmission may be prosecuted and convicted under Articles 263
and 264 of the Revised Penal Code.14

Article 264 of the Revised Penal Code states that:

Article 264. Administering injurious substance or beverages – The penalties

established by the next preceding article shall be applicable in the respective
case to any person who, without intent to kill, shall inflict upon another any
serious physical injury, by knowingly administering to him any injurious
substances or beverages or by taking advantage of his weakness of mind or
credulity.

The above quoted article of the Revised Penal Code referred to the next preceding article
of Article 263: Serious Physical Injuries. The crime of Serious Physical injuries is commonly
committed through means of a person wounding, beating and assaulting15 another person. Article
264 effectively added administering of injurious substance among the means for its commission.

Under the theory that the bodily fluids of a person living with HIV, for the fact that it
contains HIV, is an injurious substance, intentional HIV transmission through sexual intercourse
may then be prosecuted and convicted under this article. After all, once HIV enters the body, HIV
reproduce through destroying CD4 cells, a phenomenon that effectively makes a person’s immune
system impotent that may lead to AIDS.

However, it must be noted that Serious Physical Injuries is a crime of result. Article 263
provided the enumerations of the produced injuries that will give the injured person’s cause of
action against the malefactor.

1. The injured person becomes insane, imbecile, impotent or blind as consequence of the
physical injuries;16

13 Global Criminalisation Scan website. Retrieved at https://www.criminalisation.gnpplus.net on 01 February 2018.

14 Philippines, Global Criminalisation Scan. Retrieved at
https://www.criminalisation.gnpplus.net/country/Philippines on 31 January 2018
15
Article 263, Revised Penal Code
16
Id. art. 263(1).
 2. The injured person lost the use of speech, or the power to hear or to smell;17
3. The injured person lost an eye, a hand, a foot, an arm, or a leg18 which are known as
principal member of the body;19
4. The injured person loses the use of an eye, a hand, a foot, an arm or a leg20
5. The injured person becomes incapacitated for the work which he was habitually
engaged;21
6. The injured person loses any part of his body22 which are not principal member of his
body;
7. The injured person becomes ill or temporarily incapacitated for a period of beyond
thirty days,23 or ninety days;24 or
8. The injured person becomes deformed.25

Acquiring HIV does not produce any of the above enumerated. The mention of ill or illness
has been interpreted as referring to the ability of the injured party to work. A person living with
HIV is not ill in this sense. In fact with properly subscription to ART, a person living with HIV
can live normally and engaged in whatever work or labor he/she is habitually engaged with.
Acquiring HIV does not incapacitate a person from engaging in a work in which he is habitually
involved with. Wherefore, intentional HIV transmission through sexual intercourse cannot be
made subject to punitive sanction under these articles of the Revised Penal Code.

Another penal provision of R.A. No. 8504 is section 14 which states:

Any person who knowingly or negligently causes another to get infected
with HIV in the course of the practice of his/her profession through unsafe
and unsanitary practice or procedure is liable to suffer a penalty of
imprisonment for six (6) years to twelve (12) years, without prejudice to
the imposition of administrative sanctions such as, but not limited to, fines
and suspension or revocation of the license to practice his/her profession.
The permit or license of any business entity and the accreditation of
hospitals, laboratory, or clinics may be cancelled or withdrawn if said
establishments fail to maintain such safe practices and procedures as may
be required by the guidelines to be formulated in compliance with Sec. 13
of this Act.

This provision has been retained in the proposed amendment of the law. This penal
provision is actually the only provision of R.A. No. 8504 and the proposed bill which clearly
penalizes HIV transmission. However, this is limited to and directed at doctors, nurses, dentists
and tattoo artists who, by the nature of their profession or work, are placed in the direct contact
with bodily fluids that may contain HIV and in the performance of acts that constitute high risk of
17
Id. art. 263(2).
18
Id.
19
U.S. vs. Punsalan, G.R. No. L-7539, November 5, 1912
20
REVISED PENAL CODE art. 263(2).
21
Id. art. 263 (2).
22
Id. art. 263 (3).
23
Id. art. 263 (4).
24
Id. art.263 (3).
25
Id.
HIV transmission, such as use of injection and needles. Furthermore, the means by which HIV is
transmitted under this section is through unsafe and unsanitary practice and procedure such as not
using a fresh and clean needle or syringe on their clients. In addition, the act of HIV transmission
is through unsafe and unsanitary practice is punishable regardless if there was intent to transmit
the virus.

This leads to the debate if intentional HIV transmission through sexual intercourse makes
a person living with HIV criminally liable? The answer is no. The current law only punishes HIV
transmission by medical professionals and other professions similarly situated through the use of
unsafe and unsanitary procedures and practices. The law does not penalize HIV transmission
through sexual intercourse.

Other laws mentioning HIV also did not punish the intentional HIV transmission through
intercourse. Rather, it takes the HIV transmission through sexual intercourse as an
aggravating/qualifying circumstance for rape and human trafficking. Revised Penal Code does not
have any article punishing intentional HIV transmission either. Although its Article 264 has a
potential to be applied to punish intentional HIV transmission through sexual intercourse,
prevailing jurisprudence hinders such application.

From the foregoing analysis of the Philippine law, it is concluded that intentional HIV
transmission is an act not directly punishable in the Philippines. The subject act is not punished
under the sole HIV-specific law of the Philippines. In addition, apparent from the result of the
scoping of the laws which mention HIV, HIV transmission is treated only as an aggravating or
qualifying circumstance. Under these laws, the act itself is not punished directly and the act subject
to punitive sanction is the act which the law expressly prohibits i.e. Rape and Human Trafficking.
Furthermore, nowhere in the Revised Penal Code may the subject act be clearly convicted under.
Article 264 therein has a potential to serve as the article to prosecute and convict person living
with HIV who commits intentional HIV transmission through sexual intercourse or otherwise,
however, the manner by which the article is currently worded and the prevailing jurisprudence
related thereto pose significant hindrance to such application.

What can make a person living with HIV criminally liable is his act of HIV non-disclosure.
HIV non-disclosure prior to sexual intercourse gives rise to the criminal liability of rape. Section
34 of RA 8504 imposes upon people living with HIV the obligation to disclose their HIV positive
status to their spouse or sexual partners prior to any act of sexual intercourse. This provision of the
law makes the HIV positive status a material fact in connection to the giving of a valid consent of
the HIV negative sexual partner. Non-disclosure then, either through silence or misrepresentation,
is an act of employing fraud. Such fraud invalidates the consent. Hence, the supposedly consensual
sexual intercourse between the parties may turn into Rape should there be a claim of the party to
whom fraud was employed to that consent to sexual intercourse would have not been given if the
HIV status of the person living with HIV was made known prior to the engagement thereto. HIV
transmission in this case is immaterial.

However, criminalization of HIV non-disclosure using the provision of rape has its
limitations, as only a man may commit rape where there is a risk of HIV transmission.
Furthermore, it offers a solution that leads to miscarriage of justice, promotion of HIV-related
stigma and discrimination and negative impact on the HIV prevention efforts

Sensitization of law makers and law enforcement agents

Section 38 of House Bill 6617 stated the provision on the Immunity from Suit for HIV
Educators, Licenses Social Workers, Health Workers and Other HIV and AIDS Service Providers.
In our current Rules of Court, granting of immunity has limitations. Whether the delivery of basic
services was in relation to the legitimate exercise of protective custody and whether there was a
legitimate exercise of protective custody in the first place are conclusions of law that cannot be
arrived at without some form of judicial proceeding. To grant immunity to HIV educators, licensed
workers and other service providers and to prevent the conduct of investigation and/or proceeding
could work an injustice, especially, in cases where there is actually no legitimate exercise of
function or of protective custody.

In 2003, the Dangerous Drug Board issued Board (DDB) issued Regulation No 3, 2003 or
the “Comprehensive Guidelines on Importation, Distribution, Manufacture, Prescription,
Dispensing and Sale of, and Other Lawful Acts in connection with any Dangerous Drugs,
Controlled Precursors and Essential Chemicals and Other Analogous Substances.” as well as DDB
Resolution 298, 2014, also known as “Approving the Proposed Operations Research on
Community-Based Comprehensive Services for People Who Inject Drugs (PWID) in Barangay
Kamagayan, Cebu City” to addressed the growing prevalence of HIV among People Who Inject
Drugs. In 2015, the proposed provision with regard to the prohibition of the used and unused
prophylactics and injecting equipment as basis for raids and similar police operations in site and
venues of HIV prevention interventions26 have been viewed by Senator Sotto to run in contrary to
the provision enacted under the

The actual provisions of the Comprehensive Dangerous Drugs Act or RA No. 9165 are
perceived as legal barriers:

 Section 12. Possession of Equipment, Instrument, Apparatus and Other

Paraphernalia for Dangerous Drugs.
 Section 14. Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings.

Accordingly, the proposed provision in the bill amending RA8504 emasculates law
enforcement agencies and is inconsistent with the latter law which penalizes the possession of
equipment, instrument, apparatus and other paraphernalia for dangerous drug, which would
include sterile injecting equipment. While it may appear that the above-mentioned Sections of RA
9165 prohibits possession of syringes, note that the Dangerous Drugs Board is also mandated to
craft the implementing rules and regulations for the operationalization of the provisions of the law.
In view of this, there must be a clear provision stating the amendment and/or modification of the
relevant provisions of RA No. 9165.

26
Section 23, House Bill 6617
Updates on the Amendment of the RA No. 8504

The results of the preceding consultations were utilized in crafting the provisions for the
HIV and AIDS Law Amendments. On December 2017, the House of Representative approved
House Bill 6617 and was transmitted to the Senate of the Philippines for approval. According to
the Philippine National AIDS Council, Senate Bill No. 1390 jointly prepared by Senators
Hontiveros, Legarda, Trillanes, Angara, Poe and Binay is being utilized for the passage of the
amendment.

The proposed measure overhauls the current law, makes it evidence-based and improves
its capacity to enable and deliver interventions for concentrated and generalized epidemics. It
focuses on the following areas - governance; programs; prevention, treatment, care and support;
human rights; and resources.

Salient Points

AREAS HIGHLIGHTS
Governance  The Philippine National AIDS Council and its Secretariat is
strengthened.
 Civil Society Organizations are well represented in the Council
allocating eight (8) seats.
Program  Six-year multisectoral National Plan
 Contains strategies, targets & programmatic interventions for PTCS
 To be operationalized and costed
 With parallel costed and operationalized Local Plans.
Prevention,  HIV testing is confidential and community-friendly.
Treatment, Care and  Testing is more accessible for minors (15years of age)
Support  Prevention program anticipates concentrated and generalized
epidemics
 Treatment, care, & support services are more comprehensive
Human Rights  Comprehensive anti-discrimination provisions
 CHR, DOJ to develop redress and preventive mechanisms
 Non-discrimination in healthcare and in insurance
Resources  Clear national allocation from the General Appropriations Act
based on the National Plan
 Local sources identified such as Gender and Development