Saturday, June 24, 2017

vertigo

I still remember you whenever I see planes dotting the sky. Maybe because the anchor of regret still wrings my neck hostage, a chain to a locket of impossibility, or a scarlet letter. Scarlet for dried bleeding, not Catholic shame. You see, I've always fallen clueless for men already tied to another. I guess it's my fourth to count that I started to examine my skin one afternoon before shower. Maybe an epithelial cell could answer the misfortune. You were the first domino to fall and create the wave. I should have loathed you but I guess there's so much peace in quiet resignation. Airplanes. You. Incredible, right? I do not know either.

I was in a daze the night when you said you were already at the airport. I wore two left shoes. One yearned the final bid. The other, a safe distance. None of them were right. But an injured person owes himself a sense of justice, and heaps of pride. Until some memento mori scattered in the metropolis reminds him that the world was built on skewed encounters, illumined by asymmetrical smiles.

Tickets to freedom may be constructive, I guess. Constructive, and an afterthought. We belong to lands whose shores did not even kiss during Pangaea.

Friday, April 28, 2017

7 Things to Know about the Ongoing HIV Law Amendment

Some preliminary matters:
The Senate, through the Senate Health Committee, has already issued a committee report. It already filed Senate Bill (SB) 1390, which consolidated the bills of Sens. Hontiveros, Legarda, Trillanes IV, Angara, Poe and Binay. Before SB 1390, these six senators individually filed their versions of a substitute bill to 1998 HIV/AIDS Law. All six versions were tackled, resulting in SB 1390.

At the House of Representatives, the House Committee on Health has already consolidated the versions of each lawmaker into one House Bill. But as of this writing, that consolidated bill has not yet been filed. On May 10, 2017, the Committee will convene to discuss the consolidated bill for final amendments. It is expected that they will release a committee report with the final House Bill, akin to SB 1390.

What are inside the two separate bills:
1. The two chambers are at odds with the issue of PLHIVs as regards HMOs
Senate: SB 1390 expressly included HMOs as an institution which cannot deny or deprive a PLHIV for coverage without any qualification. That is provided under paragraph 2, Section 39 of SB 1390, reading:

"No person living with HIV shall be denied or deprived of private health insurance under a Health Maintenance Organization (HMO) and private life insurance coverage under a life insurance company on the basis of person's HIV status."

House: The lower chamber's version — also in paragraph 2, Section 39 — did not expressly write HMO. It provided that, "No person living with HIV shall be denied or deprived of private health and life insurance coverage on the basis of the person’s HIV status x x x." This sentence was qualified by a phrase, "following the company’s reasonable underwriting policies.

Interestingly, under Article VII, Section 46 (Discriminatory Acts and Practices), it is worthy to note an odd addendum to that phrase stated above. Paragraph (f) — "Exclusion from Credit and Insurance Services" — provided that it is a discriminatory act if a "loan or insurance (facility)" excluded a PLHIV despite having undergone the company's "reasonable underwriting processes and pricing policies." This animal of "and pricing policies" suddenly appeared. Again, no explicit mention of HMOs.

What's the implication to this?
1. Since the House bill did not expressly include HMO, the HMOs may claim that they can deny coverage to PLHIVs, on the ground that they are not insurance companies. At present, there are conflicting views as to HMOs not being insurance companies. Even the Supreme Court in Philippine Healthcare Providers, Inc. v. Commissioner of Internal Revenue (G.R. No. 167330) ruled that HMOs are not engaged in the insurance business. Suffice to say, it can be argued by the HMOs that they are totally a different animal compared to insurance companies, and that their exclusion in the law will permit them to deny PLHIVs access to health coverage.

2. In law, specifically in the interpretation of law (we call it "statutory construction"), when there are conflicting provisions, some rules on statutory construction will be relied upon. If this House version goes to court and the court has the opportunity to rule upon this difference, it may apply the "rule of later provision." What's that? Simply put, provision which comes later in the law is deemed to be the true intent of the lawmakers. Hence, in this scenario, we can presume that since "pricing policies" appears in Section 46 as against its absence in Section 39, it will be Section 46, which carries the second qualification of pricing policy, which will prevail. Meaning, a PLHIV is under the mercy of the underwriting policy of the insurance company and its pricing policy, which is we all know how they arrive to that is kept under the rug.

2. Both bills instruct redress mechanism to protect the human rights of PLHIVs
Senate and House: The SB 1390 and the unnumbered House bill carry a provision on "Protection of Human Rights." Worthy to note is the last sentence of paragraph 2 of Section 10.

Senate: The Senate Bill tasks DOJ as the lead implementing agency in crafting the redress mechanism, "to ensure that their (PLHIVs) civil, political, economic, and social rights are protected." Joining DOJ are the Philippine National AIDS Council (PNAC) and Commission on Human Rights (CHR) in crafting the mechanism.

House: The House Bills tasked DOH and CHR as the lead implementing agencies. It instructs PNAC to coordinate with DOH and CHR.

Our take as PLHIVs?
Add the Department of Labor and Employment (DOLE) in the picture. On pain of repetition, make explicit "labor rights" because time and again we are faced with discrimination as regards security of tenure and/or employment simply because of this condition. It is about time that we call for a law that asks DOLE to intervene for our labor rights.

Also, when it gets down to it, the DOJ has no oversight over labor arbiters. It only has oversight over prosecutors. Should a PLHIV file a labor case before the National Labor Relations Commission, it will be labor arbiters who will handle the case. And who is the big boss of labor arbiters? The DOLE. So put DOJ and DOLE side by side to create a redress mechanism that will be followed should a court case proceeds as regards discrimination against PLHIVs.

3. "Contact tracing" is changed to "partner notification"
The 1998 HIV/AIDS Law defined contract tracing as "the method of finding and counselling the sexual partner(s) of a person who has been diagnosed as having sexually transmitted disease."

Senate and House bill defines "partner notification as "the process by which the 'index client', 'source' or 'patient', who has a sexually transmitted infection (STI) including HIV, is given support in order to notify and advise the partners that have been exposed to infection. Support includes giving the index client a mechanism to encourage the client’s partner to attend counseling, testing and other prevention and treatment services. Confidentiality shall be observed in the entire process."

4. Private sectors also asked to create a grievance system as regards discrimination
Senate and House: Both chambers created a new provision, captioned as "Duty of employers, heads of government, heads of public and private schools or training institutions, and local chief instructive."

I quote in full:

SEC. 45. Duty of Employers, Heads of Government Offices, Heads of Public and Private Schools or Training Institutions, and Local Chief Executives. – It shall be the duty of private employers, heads of government offices, heads of public and private schools or training institutions, and local chief executives over all private establishments within their territorial jurisdiction to prevent or deter acts of discrimination against persons living with HIV, and to provide procedures for the resolution, settlement, or prosecution of acts of discrimination. Towards this end, the employer, head of office, or local chief executive shall:
(a) Promulgate rules and regulations prescribing the procedure for the investigation of discrimination cases and the administrative sanctions thereof; and
(b) Create a permanent committee on the investigation of discrimination cases. The committee shall conduct meetings to increase the members’ knowledge and understanding of HIV and AIDS, and to prevent incidents of discrimination. It shall also conduct the administrative investigation of alleged cases of discrimination. 

What's good in this provision?
Finally, the provision empowers, if not mandates, the private sectors to resolve, settle and prosecute acts of discrimination. The two qualifying enumerations — paragraphs (a) and (b) — give the private sector the capacity to investigate and to enforce penalties for any acts of discrimination.

A bit of law and procedure?
To my mind, this may become an "administrative remedy" which will be a condition sine qua non before filing a court case as regards discrimination. Simply put: If Person A files a case before the court without undergoing this administrative or investigative procedure, the court may validly dismiss the case for the meantime (let's call it, "without prejudice") and ask Person A to submit himself before this "permanent committee" and allow such permanent committee to rule first on his issue. Such that if no resolution was reached between Person A and the other party, that will only be the time when Person A can file a case and for the court to say that it has capacity to hear the case.

Our take?
This is a good step to get the participation of private sectors in helping address discrimination in the workplace and in school by placing a procedure as to how to lodge a complaint or grievance. While both public and private sectors are instructed to "provide procedures for the resolution, settlement, or prosecution of acts of discrimination," the PLHIV community should look forward to this because it clearly included "employers" without distinguishing if it is public or private.

5. Harm reduction provision is not in sync between the Senate and House versions
Senate: Section 23 of SB 1390 is captioned as "Harm Reduction Strategies"
House: The unnumbered HB is more narrowed in its Section 23, read as "Comprehensive Drug Intervention for People who Inject Drugs"

Takeaway?
There is a huge misconception that when one speaks of "harm reduction" in HIV, it only refers to use of injectible drugs--which is a mode of transmitting HIV. Harm reduction is more than that. It is more than syringe or needle and drug. Harm reduction should be broad enough to include reduction of the transmission of HIV and its harmful consequences. Yes, there is harm reduction policies and programs as to injectible drugs. But also, there could also be harm reduction strategies tailored fit for sex workers. The lawmakers, in their bicameral meeting, have to resolve which between the provisions to use. Then again, what is clear is, harm reduction is not simply drug use.

6. Two representations in PNAC
Senate and House: We will be having two representations before the PNAC.

Fast facts?
What is PNAC or the Philippine National AIDS Council, by the way? It is, among many others, the advisory, planning and policy-making body of the country as regards our address in fighting HIV and AIDS. PNAC is composed of government representatives, civil society organizations and PLHIV community. Back in the 1998 HIV/AIDS Law, out of the 26 members of PNAC, the PLHIV community is only represented by one person.

How we arrive to 2 seats?
During the Technical Working Group at the House of Representatives last March 13, 2017, the PLHIV community stood pat that we already have to have 2 representatives at the very least on board PNAC. This is because of the changing milieu of the virus. The community was met with opposition from PNAC itself, from Philippine Information Agency and from Rep. Sol Aragones of Laguna. Probably, we can call that confrontation as one of the fiercer debates during the TWG because while the PLHIV community has allies in the CSOs and in the National Youth Commission, it also has oppositors from other sectors. Rep. Joet Garcia of Bataan gave each voice their fare share of time to air their concern. The "seat contention" in the end was noted and will be deliberated upon. For the House to give the PLHIV community representatives before the PNAC, after the debate is their recognition of our importance in changing the landscape of HIV response.

7. Disclosure of HIV status to sexual partners
Myth: Keeping your HIV status a secret to your sexual partner carries jail time.
Fact: There has never been jail time as regards non-disclosure to partners — EVER!

Do not be of the illusion that Section 34 of RA 8504 carries a jail term. And I quote:

Section 34. Disclosure to sexual partners. – Any person with HIV is obliged to disclose his/her HIV status and health condition to his/her spouse or sexual partner at the earliest opportune time.

When you go down to Section 42 of the RA 8504, the penalty only applies to discriminatory acts under Article V. Section 34 is under Article IV. I have read tweets and comments stating that if a PLHIV does not disclose his status to his sexual partner, he will be placed behind bars. That is not true. It's a misreading of the law. Section 34 of RA 8504 is a "conscience clause." It does not carry a penal provision.

And that does not change in the Senate or House bills. Under RA 8504, the wording of the law is a PLHIV "is obliged" to disclose his status to his partner. In the two bills, the wording of the law is "is strongly encouraged." These two bills and even the 1998 HIV/AIDS Law do not impose a criminal offense to non-disclosure. Let's iron that one out.

What to expect from here?
1. Both Committees on Health in the Senate and House, acting on their own, will pass the final bill for transmittal to the plenary. (This will be the venue where the aye's and the naye's will be heard) All lawmakers will be copy furnished with the text of the bill.
2. The bill will be scheduled as an agenda during plenary hearings. Here we can lobby to support our authors: at the Senate, it is Sen Risa Hontiveros; at the House, it will likely be Rep Kaka Bag-ao of Dinagat Islands. Expect debates. Debates may be intense because of the sticky context that this bill may impress in the minds of conservative lawmakers.
3. The bill must pass three readings. If the House and the Senate, acting on their own, pass each of their version beyond the third reading, a bicameral meeting will be held to streamline the bills separately coming from the House and Senate.
3. After the bicameral convenes, it will create the final version of the bill, ready for signature at the Malacañang. Hopefully by then the President signs it into law.

Last fast facts: 
Who are the individual authors of HIV Amendment Law at the House? Here's a list:

  1. Rep. Kaka Bag-ao (Dinagat Islands, Lone District)
  2. Rep. Harry Roque (Party List - KABAYAN)
  3. Rep. Victor Yap (Tarlac, 2nd District)
  4. Rep. Pia Cayetano (Taguig City-Pateros, 2nd District)
  5. Rep. Teddy Brawner Baguilat, Jr. (Ifugao, Lone District)
  6. Rep. Sandra Eriguel, M.D. (La Union, 2nd District)
  7. Rep. Estrellita Suansing (Nueva Ecija, 1st District)
  8. Rep. Horacio Suansing, Jr. (Sultan Kudarat, 2nd District)
  9. Rep. Imelda Marcos (Ilocos Norte, 2nd District)
  10. Rep. Bellaflor Angara-Castillo (Aurora, Lone District)
  11. Rep. Angelina “Helen” Tan, M.D. (Quezon, 4th District)
  12. Rep. Gary Alejano (Party List - MAGDALO)
  13. Rep. Gus Tambunting (Parañaque City, 2nd District)
  14. Rep. Sharon Garin (Party List - AAMBIS-OWA)
  15. Rep. Tom Villarin (Party List - AKBAYAN)
  16. Rep. Ron Salo (Party List - KABAYAN)
  17. Rep. Raymond Democrito Mendoza (Party List - TUCP)

Tuesday, February 28, 2017

six years overdue

The streets are familiar. Even the quaint light from the sporadic convenient stores are familiar. "The convenient store! I know that one convenient store there." I was supposed to visit the place a year after 2011, but it took me only in 2017, and a chance encounter, to be there. There was no pain anymore. Chills, maybe. But I needed this. It was six years overdue.

Mike sent me an SMS and asked if he could get his book back. Of course, he can. I just loaned it from him and it's been a while since I kept on saying "yes" but wouldn't go. If it weren't for the seemingly irritated undertone in his messages, I would still be thick-skinned as to delay the return of the book.

Even during the first time I visited Mike's home, I was already acutely aware that somewhere around his neighborhood was the complex of dormitories. I tried to look for it last December when I went home on foot from Mike's with I Know Why the Caged Bird Sings clutched in my pit. But that time, I was not looking harder. I thought, if I'd see the house, I'd see it. If I don't, then I don't.

February. Mike texted. I was ambling down to his place on the back streets of Sampaloc, away from España Blvd. The familiar ruckus of people, the train tracks of PNR, and suddenly UST is coming to view. From the house, I took on Florentino St. to reach M. dela Fuente. The night wind allowed me to think through the 17 blocks of street: "I guess I'll try harder this time around."

Almost half an hour passed when I returned the book, thanked Mike, and saluted off. "I'll try harder this time around." I took a turn on Piy Margal, as if some metaphysical hand pushed me offtrack. Finally, the streets became familiar. The quaint lights from the sporadic convenient stores became recognizable like a dusty case folder taken from my mental cabinet. I could not be wrong about the convenient store. There is no mistaking about it.

I walked to a slow, hoping to make sense of the small block from my six-year-old memory. It felt like deliberately touching a scar at the back of my head wanting to recall how I figured in the accident and got the wound. It was both dangerous and liberating: to be at the place where I spent that one night that will redound to an error of a lifetime.

I saw the convenient store. I knew that back in February 2011, a boy named Jerome hissed from the other side of the street to signal me to enter into a complex of dormitory units. I should remember too well that store like a lifeline on the palm of my hand, some thing that's ought to be there. It was the store where I bought a Mountain Dew as I texted him where exactly his place is. From the right bank of the road I saw the sari-sari store. I saw my 22-year-old self crossed the street and entered into a gate. "Where the fuck is the gate?" I was already directly across the store when I reminded myself "I'll try harder this time around. This memory is overdue. I'll try harder and find it." I turned around and paced, redraw my steps. It's should be somewhere around here, I thought. There's a tree: Too insignificant. There's a salon: I don't recall. And then suddenly, like a sleeping prisoner in the dark jail, the green gate appeared. I stopped.

I stood there. For good 15 seconds I allowed my inner eye to resurrect what I should have not done in 2011. I saw myself entered the gate. It could only take a while when I and Jerome were already undressed, I thought. If only there was a way to stop me, I would. But memories are ghosts with bloodshot eyes. They stare at you without remorse, and only then you'd know if you have grown accustomed to bringing the Crucifix out into the streets.

I stood for a good time, allowed myself to immerse, to marinate into the thought of that night. From the gate, I saw the imposing old house. It looks haunted from the outside. I thought that should have been enough to scare me off already. But I was stupid then. From what happened, the orbit of my memory moved to Jerome. Is he still there? Or had moved to another dorm? Or if he's still alive and here on Earth in the first place. I remembered how he led me through the snaking stairways to his room. How he asked me to shush and to carry my feet so as not to rouse the others to wake. I remembered how we sat awkward, watching but not watching the TV. I remembered them all. Those were enough for a six-year overdue memory. I walked away.

I don't know how to make out of it now that six years passed and one too many bottles of ARVs went to the trash bin. If you'd ask if there was a sense of regret in me, there's nothing--not even a dint of it. I always believed in the concept of happy accidents. For an existentialist, how I love to blame my faulty wiring to fate. I and Jerome still got to talk after my diagnosis in May 2011. It was that time when he told me he's already suspected that he had it but was just afraid. If only killing was legal, I would have bloodied my hand of his crimson at that time. But wherever he is, I still want to thank him, I guess. If it weren't for my stupidity and what he caused me, I would have not been where I am. Cheesy I know, cliche even, but that's how we romanticize pain to legitimize where we are right now.

Ever since the family moved from Sta Mesa to Sampaloc, I already thought of revisiting that place again. You know, sometimes it's good to return to those old barns in your life just to find out if they scare you still. I guess that old barn of a dormitory, where angels cried during that fateful night, doesn't hurt now as much as I thought it will. Sure, there was that chill that crossed my spine. Sure, there was that utter disbelief that I'd get to see the place years after (I was secretly hoping that it was already razed to the ground and a new building stood erect there). Sure, there was the sudden confluence of memories flashing before my eyes. But I guess those were just but natural. After all, you do not look at a ghost and welcome him with unfolded hands.

I was flooded with what-if's and the could've-been's on my way back home. I was looking at the street and not looking at it at the same time. I just snapped out of the daze when this young man--probably around my age--walking towards my direction was giving me a sticky stare. And, as we came shoulder-to-shoulder, a bated "Hello." He passed by and I surreptitiously turned around. I saw him cross the street towards the dormitory.

I turned away, and didn't look back.

Thursday, February 2, 2017

HIV screening and the hiring process

Bestfriend called up a while ago to just ask about things and update me on his job search. He's in the restaurant management industry and aiming for higher position.

Throughout the conversation, he told me that this one classy cafe asked him to do an HIV test during the hiring process. I stopped him short and asked to repeat what he said. Apparently, even if he knows my condition, he doesn't know that what he underwent was illegal. So I told him to go in with how he went through the process. In sum, it went like this:

He was asked to do a medical test with HIV test in it. It was done outside (I'm not sure if it was the diagnostics laboratory affiliate of the cafe with its hiring process). The HIV counselor did the routine interrogation as regards his last sexual contact. My bestfriend answered. He was told that if the medical staff won't give him a text message the following day, it meant that he was non-reactive; that if he received a text, then that was it. Following day, no text received. Just to make sure, he called the laboratory and indeed the counselor, through phone, told him that it was non-reactive.

I could not but stress that what he went through was--under clear provisions of the law--illegal; that's clear under Sec. 35 of RA 8504. Bestfriend could not believe that it was illegal. I reassured him that it was unfair and illegal and I could not just imagine the emotional rollercoaster any applicant had to go through with that kind of policy. True enough, he was nerve-wracked during the testing because if the result comes out as reactive, he wouldn't know what to do and how to go on with the the employment process.

I told him different scenarios--to attack and to defend--the cafe's policy on HIV screening during the hiring process.

TO ATTACK
1. It's no brainer under the law that what is prohibited and set down in clear words should not be done directly or indirectly. RA 8504 has a prohibitive provision, which means "Bawal gawin" (the antonym is "positive provision").  And I quote, Sec. 35: "Discrimination in any form from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual IS PROHIBITED." (Emphasis supplied)

2. It does not matter if the result of the prospective employee is non-reactive. Even if the result turns out negative, it is not an argument that no law was violated. Ubi lex non distinguit, nec nos distinguere debemus. Where the law does not distinguish, we ought not to distinguish. Since there is nothing set down in the law which provides for distinction, we should not create arguments that since bestfriend was found negative, then no law was trespassed. The only thing that the law prohibits is when there is discrimination.

3. As regards, discrimination. One may argue that it is not the HIV testing during the hiring process that is prohibited. It is actually discrimination. Point taken. But that creates a confusion when the law is applied. Sec 3 of RA 8504 does not define what "discrimination" is, which makes things confusing. Because if, for example, X was found to be reactive after submitting himself to the medical test, and he was denied application to the job, since the law does not define what discrimination is in connection to HIV testing, it creates a legal loophole. The employer may reason out that the employee is not accepted because he fails in certain qualifications, when in truth and in fact, it was his status that was the basis of his non-acceptance. This is what we call in law as, "What cannot be legally done directly cannot be done indirectly."


TO DEFEND
1. The cafe is in the food and beverage industry. Perhaps the only reason they wanted to enforce such policy is not to discriminate but to actually enforce higher protection in food preparation. Since not all food requires exposure to fire which kills the virus (e.g. salad, drinks, etc) the cafe may have been only be well-meaning when it enforced HIV screening in its hiring process; this is to make sure that if a PLHIV will be employed, he will be given the best area to work on with lower risk of being wounded (i.e. knife cuts).

2. The cafe may also be providing higher premiums to its PLHIV employees. The only course though that they may know who is positive from who is not is by subjecting its applicants to a screening. This is highly a conjecture and supposition. So even if my bestfriend is not applying for a position in the kitchen (he is applying a managerial/supervisory position), still he is asked to undergo the screening.

The only reason that I can see where HIV testing in hiring procedure is defensible is when the HIV status imposes high risk on the job. The "rational connection" as the Labor Code provides. If there is higher risk of exposure to other people because of the job's nature, then HIV screening may be argued as to why it is needed. For example, when the job requires to deal with sharp instruments or food preparation or in healthcare or even in some industries, like bars or clubs or brothels, that is, the "entertainment" officers.


WHAT IF IT HAPPENS TO YOU?
Always remember that you have a choice to back out from the hiring process if it comes along with HIV testing. Once you submit to the testing knowing fully well that you are already positive and that the position you are applying for does not have any connection with HIV exposure, the employer may argue (if in case in the future you complain) that you WAIVED your right to privacy. Waiver of a right is a direct and voluntary loss of any future claims against someone. Ginusto mo eh. Bakit ka magrereklamo ngayon? So when it appears to you that you have higher risk of being detected as PLHIV, weigh your pros and cons. And when you believe that being undetected is more important than a job in that company, stop and discontinue the process. There may be loss of job opportunity on your part, but you still did exercise your right to privacy and confidentiality.


P.S. I was surprised and disappointed to know that that cafe is employing HIV screening in its hiring process. Okay pa naman doon.

Tuesday, January 3, 2017

abandonment to death

Yesterday, I read Kuya Drew’s blog (click here) where he recounted the death of a PLHIV who was abandoned by his family and taken care of by the hospital staff until his death. The first idea that struck me is how could people, (relatives for that matter, and relatives by blood to underscore) turn their back against their own? Obviously, it was distressing.

I guess part and parcel of my confusion is my own question. I was asking if there's a way, at least legally, for that to not happen again or at least for the people to be reminded that it’s a bad case of familial treachery.

There is nothing in Republic Act 8504 (HIV/AIDS Law) that speaks of penalties as regards abandonment. I turned to my Criminal Law books and remembered the crime of “abandonment,” which is Art. 275, par. 1 of the Revised Penal Code and which provides:

Any one who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.

To my appreciation, the case of M cannot be a simple case of abandonment. The elements of the crime do not fit the situation. If Art. 275 will be used, the prosecutors will look at Nurse Ann, because it was she who found M. But she rendered assistance--heroically, I must say--so that takes off Art. 275 from possible crimes that can be charged.

Also, a grand defense that may come to light is, “Is a hospital an ‘uninhabited’ place? How will we define ‘uninhabited’ place?” The wording of the law is clear. “Uninhabited” imports the idea that the place was not dwelled upon permanently or temporarily.

We scratch out Art. 275. How about murder?

This is where the situation becomes sticky because I assume there is no previous case of abandoning a PLHIV has been filed against those who abandoned the person. Meaning, there is no “test case.” There is no precedent. (At least that which I know).

Art. 248 of the RPC is murder. But before a person can file a case of murder, the prosecutor will first “assess” the situation to check if any of the six qualifying circumstances is present, to wit:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity;
2. In consideration of a price, reward, or promise;
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin;
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity;
5. With evident premeditation; or,
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

Any of these six qualifying circumstance must be attendant to the situation before murder can be charged against the person who left M.

Criminal law experts and opinion-makers will tell that “cruelty” is not attendant to the case. Cruelty involves unnecessary physical harm--injuries or wounds to be exact--inflicted against the person which led to his death.

I would say that if a person leaves a PLHIV in a hospital for the latter to die, the complainants can use either “with treachery” (par. 1) or “with evident premeditation” (par. 5). Depending on the situation, I’d see “evident premeditation” more fitting.

“Evident premeditation” has 3 elements which must be fulfilled before prosecutors can use that to qualify the death of a person and to file a murder case against the accused, to wit:
1. The time when the offender determined to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination; or
3. A sufficient lapse of time between the determination and execution (to allow him to reflect on its consequences).

One by one, let’s do this.
1.      First element: The offenders can be argued to have committed the crime at the time when the PLHIV patient was left in the hospital. For lack of any information about the case, it can be argued that at the moment M was admitted in the hospital, the persons have already known that M’s condition was a situation that the relatives cannot admit; hence, death by intentionally leaving M was the only way for the family. It is at the point when the persons who left M were determined to commit the crime.
2.      Second element: The offenders can be argued that they clung to their determination in leaving M to die (as harsh at that). We can look at hospital records or even have Nurse Ann file an affidavit to show if the hospital truly followed up the situation of M to his parents or relatives after they had him admitted in the hospital. If the relatives never bothered acting upon the hospital’s follow-up, it can signify that they want to abandon him. It is at this stage that the hospital will be instrumental in proving that there was "intention" on the part of those who abandoned to truly say that M was indeed "left to die" despite calls of attention from the medical staff.
3.      Third element: The offenders can be argued to have left M for a sufficient time. Case laws opine that three hours is enough to check if the offender indeed wanted to carry out intention to kill towards fruition. In this case, if hospital records will bear that there was time--sufficient and long enough--for prosecutors to opine that indeed those who abandoned M was acting on an impulse to leave him languishing in his death bed, then it follows that the intention to kill is present.

At present, my position is to use the fullest extent of law to give the death of a PLHIV a semblance of justice here on Earth; and that is to file a murder case against those who recklessly abandoned him. If a murder case will not prosper, the prosecutor can always use homicide as a resort. (Homicide and murder are cognate crimes.) I could be that cold-hearted as well.

One may ask, “Well, the relatives of M do not really want him to die. Why should we file a murder case?” The death of a person under the hands of those who abandoned him (even if there are people, like Nurse Ann, who helped along the way) disregards “intent to kill.” The law provides that only “by means of inundation, fire, poison… (Art. 248, par. 3)” must intent to kill be present. In other qualifying circumstances such as evident premeditation, the intent to kill may not even be an issue for the trial court to explore.

As for who should file the case, it can be argued that under the doctrine of parens patriae, the State (in the case, the People of the Philippines) can initiate the complaint in behalf of M. The parens patriae rule is used in rape cases and child abuse cases. It should be sufficient to argue that it must equally apply in murder cases, especially in the stunning case of M who was abandoned to death.

But the moral question here is will we allow an eye for eye to turn us all blind? For leaving M to die, in what sense do we want those who abandoned M to possibly languish behind bars? The law can be cold, especially criminal law which is frigid. But where do we draw the line between giving the death of the PLHIV justice and correcting the possible maleducation of those who abandoned which also needs equal attention. 

Then again, what really bothers me is (arguably, family dynamics, knowledge of HIV, and knowledge to access of healthcare considered) why do we still have to use the threat of law as a motivation to help? Shouldn't helping a person, who is already in the autumn of his life, a core of our humanity?

I slept at 11 p.m. yesterday partly because of the weight that clung to my chest. I woke up at 3 a.m. still figuring out an evasive answer.