Dr Arif Bulkan teaches human rights law at the University of the West Indies in Barbados
The purpose of my diaspora column of Monday, September 6 was to highlight the current practice of Caricom Impacs, in which HIV screening is carried out at the recruitment stage of its employment process. Such screening is a violation of the human rights of potential employees and international best practices, as well as of the internal and recommended policy of Caricom, as outlined by Caricom Deputy Secretary-General (SG), Dr Edward Greene in his response to me in the letters column of yesterday’s Stabroek News (‘Diaspora column contained inaccuracies’).
The Deputy SG deflects attention from the critical question of Impacs’ testing of prospective employees by raising questions as to the accuracy of my information. Among other things, the Deputy SG laments my airing of Impacs’ laundry in public. He fails to mention my letter of December 12 ,2008 to him seeking clarification of the policy and action on the issue. My letter to the Deputy SG was not even acknowledged and where I received responses from others, they were at best perfunctory.
The lengthy response of the SG is revealing for what it acknowledges, but moreso for what it conspicuously omits. While Dr Greene offers many details regarding the specific case mentioned by me, his response misses (or evades) the only relevant question of whether Impacs requires HIV screening of prospective employees. Remarkably, and despite the fact that the Deputy SG is well placed to shed light on this issue, nowhere in the almost 900 words penned by him does he provide an answer to that question.
Instead, in the first half of his response the deputy SG outlines the position of the Caricom Secretariat on pre-employment screening, and points to the draft policies and legislation drafted by the Pan Caribbean Partnership Against HIV/AIDS (Pancap). But this is beside the point, for my column acknowledged up front that the Caricom Secretariat does not engage in HIV employment screening and also that Pancap has been engaged in drafting model legislation on discrimination. Rather, my column was devoted to the Implementation Agency for Crime and Security (Impacs), which was established in July, 2006 and has been tasked with developing and managing the Caricom Regional Action Agenda on Crime and Security issues. I raised the question of the hypocrisy of Caricom in drawing down millions of dollars to address discriminatory employment practices but simultaneously practising such discrimination in Impacs, one of its affiliated agencies. In other words, the question is whether Caricom Impacs carries out HIV employment screening, and it is that specific question which Dr Greene studiously avoids.
The second half of the deputy SG’s response is both evasive and contradictory. While I am entirely persuaded of my informant’s claim that an oral offer of employment was made to him, and indeed, employers typically do not spend money to conduct expensive polygraphs and medicals on persons who do not make the cut, it is entirely irrelevant whether or not the candidate was offered a position within Caricom Impacs. The only relevant issue here is whether prospective employees are made to undergo HIV testing.
The case mentioned by me does not appear to be an isolated one, and since my column last week two other candidates for jobs at the same organization have confirmed similar experiences. One involved a candidate flown from England and similarly required to undergo an HIV test, this time in Barbados. When he refused, he says he was informed that his application could no longer be processed.
Viewed against these facts, the deputy SG’s response is contradictory, or at least incongruous. Initially, he tells us that Pancap recognizes that HIV status is irrelevant to all stages of the employment cycle from recruitment to termination, and that this golden standard has been incorporated in draft models of policy and law formulated by them in June of this year. Yet in relation to the specific allegation levelled by me he does not clarify unequivocally that Caricom Impacs does not breach this policy, which would have been the most logical position for him to take. Instead, he evasively takes issue with this candidate’s claim that he was in fact offered a position within the agency, but which is really an irrelevant issue in light of Pancap’s own standards which recognize that HIV status should not be considered in the employment process.
Is HIV employment screening practised at Impacs? The deputy SG fails to answer this question, but there is overwhelming evidence that it does. So what the deputy SG ought to have explained in his response is Impacs’ exceptionalism and how it can be justified. In doing so, the deputy SG must reckon with the fact that current human rights law in the Commonwealth Caribbean stipulates an exacting standard for interference with guaranteed rights. In order to be justifiable, exceptions must be ‘reasonably required’ for a constitutionally accepted purpose, and reasonableness is judged by proportionality between a restraint and the stated goal. In layman’s terms, what this means is that if a fundamental right is to be breached, the breach must promote some rational goal, it must be capable of achieving that purpose, and it must not be excessive. A policy of HIV screening for employment would violate rights to equality, non-discrimination and privacy, but it cannot satisfy any of these requirements. As outlined by me in the previous column, the goal itself is irrational (for an HIV free workforce is not necessarily more productive nor is it a safer environment) and in any case, the means adopted cannot advance the presumed goal (for HIV testing cannot ensure an HIV free workforce). Thus this patently discriminatory policy by Impacs is unjustifiable and unconstitutional.
But perhaps the most concerning feature of the deputy SG’s response is what it reveals in the way of the unaccountability of Caricom and its affiliated institutions. At the domestic level in Trinidad and Tobago, prospective employers are expressly prohibited from discriminating on the ground of disability, which term includes HIV status. But quite possibly, as an intergovernmental agency Impacs may enjoy immunity from these laws, so that ethically an even greater standard of internal accountability is demanded. In other words, Dr Greene cannot be dismissive of these concerns or evasive in his response, but must tell us frankly whether he found out whether Impacs does in fact carry out a policy of HIV employment screening. If it does, then he must go on to justify the existence of such a blatantly discriminatory policy according to the strict test of reasonableness and rationality outlined above. But this is something that Dr Greene completely fails to do. Ultimately, it is not enough for Caricom and Pancap merely to ‘talk’, but they must also be held accountable to the very standards they hold up as evidence of their relevance and value. Anything less would rob Caricom and all its related agencies – Pancap and Impacs included – of any credibility and render them undeserving of the lavish amounts of money squandered to ensure their survival.
The publicity afforded to the issue has been valuable to the extent that it has finally afforded some response from Caricom on Impacs employment screening. To be sure, that answer has not been satisfactory, but hopefully that will come in due course.
