Hon. Michael Kirby Calls for Decriminalization of Homosexuality in Asia Pacific

Retired Australian High Court judge Michael Kirby has called on Asian and Pacific nations to decriminalise homosexuality.

Mr Kirby told Radio Australia’s Asia Pacific program that in 41 of 54 Commonwealth nations, laws against homosexuals are still “steadfastly in force… They [the laws] isolate people, stigmatise them, and make them second-class citizens,” he said.

Mr Kirby made the comments from Oslo, where he is attending a meeting of the Global Commission of HIV and the Law – a body set up by the United Nations Development Program. Mr Kirby said laws criminalising homosexuality were “counter-productive”, particularly when it comes to HIV prevention programs.

“In respect of sex workers, it’s necessary to empower them so that they have power over their bodies, in relation to their clients. And you can’t do that if you’re criminalising them by locking them up… Some very strong measures are necessary and strong political leadership is necessary.”

Mr Kirby said some countries, like Fiji, have already taken those steps. The interim government has indicated that laws against homosexuality will not be enforced and the country’s courts have said such laws are against the constitution. “So, strangely enough at the moment, Fiji is a leader in that respect.”

Mr Kirby remains optimistic countries in the region can overcome entrenched homophobia, in the same way Australia has. “When people are taught to understand a certain proportion of people are gay, then punishing them is the same as punishing a person because a person is a woman, or because the person is of a different colour of skin.”
Interview with Mt Kirby on the legal barriers obstruct progress on AIDS in Asia Pacific

KIRBY: Well, it’s not only the Pacific island countries, but the Pacific island countries that were members of the British empire, have inherited, as we did in Australia, the laws against homosexuals. These laws were made by the colonial administrators and although they had been abolished in countries like Australia and Britain, they remain steadfastly in force in forty-one of the fifty-four countries of the Commonwealth of nations. And they isolate people, stigmatize them, and make them second-class citizens and put them out of the range of the messages that are necessary to ensure that they protect themselves and thereby protect others. So, this is the problem and it’s a problem for the Commonwealth as a whole, but a problem for the Commonwealth members in Asia and the Pacific, more specifically.

LAM: So are we then, asking some of these countries to change their cultural mores, to embrace more liberal attitudes to sex, particularly, sex-workers or homosexuality, in order to have more effective HIV prevention programmes?

KIRBY: It’s not a question of asking them to change their sexual mores, that’s a very big ask and difficult to achieve, but it’s a question of asking them to change the criminal laws which they impose, because they are counter-productive in a very critical respect. In respect of sex-workers, prostitutes, it’s also necessary to empower them, so that they have power over their bodies, in relation to their clients. And you can’t do that, if you’re criminalizing them, and locking them up. So this is something where some very strong measures are necessary and strong political leadership is necessary.

LAM: You mentioned the British colonial laws which some countries inherited, yet there has been some promising news on that front. Can you tell us about the experience of Fiji?

KIRBY: Yes, at the recent UN ESCAP meeting in Bangkok, the president of Fiji, indicated that Fiji had taken very strong measures to ensure that the laws on homosexuals were not enforced and indeed, a court in Fiji has held that those laws are contrary to the constitution of Fiji, and a military decree in Fiji, under its current government has reaffirmed that the principles laid down in that case. So, strangely enough at the moment, Fiji is a leader in this respect, and the President of Fiji, who was at the conference said that it’s necessary to talk very clearly to the religious leaders and explain to them that the right to life and protecting people’s lives is an essential prerequisite of every society and he said that progress has been made in this respect in Fiji, and I hope it will provide the model for other countries in the Pacific region.

LAM: The Pacific islands’ chiefs of police also recently made HIV and human rights a central consideration in their professional conduct. How is that working out?

KIRBY: Well, I’m not an expert in police conduct, but I know in many societies, police conduct is part of the problem. For example, at regional meetings in Asia, the stories of police conduct in India, Bangladesh and other parts of the region, have indicated that they often reflect general community views, and they’re ignorant views. But it’s reassuring to hear that leadership is now being given by police commissioners in the Pacific region and that’s definitely a good step.

LAM: It may look good on paper, but how does that translate, in reality? I imagine you’ll have to shift entrenched attitudes and indeed, homophobia, which can be difficult to shift?

KIRBY: Yes, but it can be done. I mean, I grew up in Australia with a great deal of homophobia and Australia was no better than the worst in that respect, in the bad old days. But with proper political leadership and also with a scientific attitude. When people are taught and understand that a certain proportion of people are gay, then punishing them is the same as punishing a person because a person is a woman, or because the person is of a different color skin.

LAM: And Michael Kirby, what about drug use? What about countries like Malaysia, which have highly punitive drug laws? How would we expect them to reconcile that, with the need to encourage addicts to access treatment?

KIRBY: Well, Malaysia is actually turning a corner in this respect, as I understood from the UN ESCAP meeting in Bangkok. The old idea of locking people up in Malaysia and dealing with them punitively is now being revised and this is what happened in Australia. We were in the middle of the so-called War on Drugs, but at that time, because of HIV, we and New Zealand took very strong action, including, for example, needle exchange, so that people who use injecting equipment, would have access to sterile equipment, and thereby not spread the virus. The result of this is that today, Australia and New Zealand have some of the lowest rates of HIV amongst the drug-injecting population in the whole world – one and two percent. Many countries, like the United States have infections of thirty-three percent in that community.

LAM: And finally, Michael Kirby, is the Australian government doing enough to spread the message in the region? To encourage some of its members (regional nations) to implement perhaps more humane, and indeed, more practical and workable AIDS policies?

KIRBY: Well, I have to pay tribute to the Australian government. One doesn’t always do that because not everything works well in a democracy, but ever since HIV came along in the middle of the 1980s, under Labor and coalition governments, we have stayed the course. We have continued to provide assistance through AusAid. We have continued, respectfully, to try and give good examples and present experts, and give assistance. We understand that people have different cultures and they’re at different stages on the journey, but I think it’s fair to say that the Australian government under successive political stripes, has been very good in this respect. And AusAid has continued to give leadership and assistance.

And Australia is one of the few countries which has continued to make its contributions to Global Fund, to fight HIV and other conditions, because some of the other countries, wealthier countries have started to reduce their contributions. And if you reduce your contributions to the Global Fund, then there’s not going to be enough money to give the anti-retrovirals to the people in the developing world, who’re dependent on them for having a decent life. So this is a very urgent moment in human history. We’ve just got to all put our shoulder to the wheel and take examples from the countries that have been successful, and Australia happily is one of those.

Source – MSM-Asia Newgroup (msm-asia@googlegroups.com)