Residents of La Hacienda, in the central department of La Paz in El Salvador, are holding pictures of the four American nuns murdered in 1980 by members of the National Guard, as they attend the commemorations held to mark 35 years of the crime, in December 2015, at the site where it was perpetrated. Credit: Edgardo Ayala/IPS

By Edgardo Ayala
SAN SALVADOR, Jul 23 2016 (IPS)

The ruling of the highest court to repeal the amnesty law places El Salvador in the dilemma of deciding whether the country should prosecute those who committed serious violations to human rights during the civil war.

It also evidences that, more than two decades after the end of the conflict in 1992, reconciliation is proving elusive in this Central American country with 6.3 million inhabitants.

At the heart of the matter is the pressing need to bring justice to the victims of war crimes while, on the other hand, it implies a huge as well as difficult task, since it will entail opening cases that are more than two decades old, involving evidence that has been tampered or lost, if at all available, and witnesses who have already died.“We do not want them to be jailed for a long period of time, we want perpetrators to tell us why they killed them, given that they knew they were civilians...And we want them to apologize, we want someone to be held accountable for these deaths”-- Engracia Echeverría.

Those who oppose opening such cases highlight the precarious condition of the judiciary, which has important inadequacies and is cluttered with a plethora of unsentenced cases.

“I believe Salvadorans as a whole, the population and the political forces are not in favour of this (initiating prosecution), they have turned the page”, pointed out left-wing analyst Salvador Samayoa, one of the signatory parties of the Peace Agreements that put an end to 12 years of civil war.

The 12 years of conflict left a toll of 70,000 casualties and more than 8,000 people missing.

Samayoa added that right now El Salvador has too many problems and should not waste its energy on problems pertaining to the past.

For human rights organizations, finding the truth, serving justice and providing redress prevail over the present circumstances and needs.

“Human rights violators can no longer hide behind the amnesty law, so they should be investigated once and for all”, said Miguel Montenegro, director of the El Salvador Commission of Human Rights, a non-governmental organization, told IPS.

The Supreme Court of Justice, in what is deemed to be a historical ruling, on 13 July ruled that the General Amnesty Act for the Consolidation of, passed in 1993, is unconstitutional, thus opening the door to prosecuting those accused of committing war crimes and crimes against humanity during the conflict.

In its ruling, the Court considered that Articles 2 and 144 of said amnesty law are unconstitutional on the grounds that they violate the rights of the victims of war crimes and crimes against humanity to resort to justice and seek redress.

It further ruled that said crimes are not subject to the statute of limitations and can be tried regardless of the date on which they were perpetrated.

“We have been waiting for this for many years; without this ruling no justice could have been done”, told IPS activist Engracia Echeverría, from the Madeleine Lagadec Center for the Promotion of Defence of Human Rights.

This organization is named after the French nun who was raped and murdered by government troops in April 1989, when they attacked a hospital belonging to the guerrilla group Farabundo Martí National Liberation Front (FMLN).

The activist stressed that, even though it is true that a lot of information relevant to the cases has been lost, some data can still be obtained by the investigators in the District Attorney’s General Office in charge of criminal prosecution, in case some people wish to instigate an investigation.

The law has been strongly criticized by human rights organizations within and outside the country, since its enactment in March 1993.

Its critics have claimed that it promoted impunity by protecting Army and guerrilla members who committed human rights crimes during the conflict.

However, its advocates have been both retired and active Army members, as well as right-wing politicians and businessmen in the country, since it precisely prevented justice being served to these officers –who are seen as responsible for frustrating the victory of the FMLN.

“All the crimes committed were motivated by an attack by the guerrilla”, claimed retired general Humberto Corado, former Defence Minister between 1993 and 1995.

The now repealed act was passed only five days after the Truth Commission, mandated by the United Nations to investigate human rights abuses during the civil war, had published its report with 32 specific cases, 20 of which were perpetrated by the Army and 12 by insurgents.

Among those cases were the murders of archbishop Oscar Arnulfo Romero in March 1980; four American nuns in December of the same year, and hundreds of peasants who were shot in several massacres, like those which took place in El Mozote in December 1981 and in Sumpul in May 1980.

Also, six Jesuit priests and a woman and her daughter were murdered in November 1989, a case already being investigated by a Spanish court.

The Truth Commission has also pointed to some FMLN commanders, holding them accountable for the death of several mayors who were targeted for being considered part of the government’s counter-insurgent strategy.

Some of those insurgents are now government officials, as is the case with director of Civil Protection Jorge Meléndez.

Before taking office in 2009, the FMLN, now turned into a political party, strongly criticized the amnesty law and advocated in favour of its repeal, on the grounds that it promoted impunity.

But, after winning the presidential elections that year with Mauricio Funes, it changed its stance and no longer favoured the repeal of the law. Since 2014, the country has been governed by former FMLN commander Salvador Sánchez Cerén.

In fact, the governing party has deemed the repeal as “reckless”, with the President stating on July 15 that Court magistrates “were not considering the effects it could have on the already fragile coexistence” and urging to take the ruling “with responsibility and maturity while taking into account the best interests of the country”.

After the law was ruled unconstitutional, the media were saturated with opinions and analyses on the subject, most of them pointing out the risk of the country being destabilized and on the verge of chaos due to the countless number of lawsuits that could pile up in the courts dealing with war cases.

“To those people who fiercely claim that magistrates have turned the country into a hell we must respond that hell is what the victims and their families have gone –and continue to go- through”, reads the release written on July 15 by the officials of the José Simeón Cañas Central American University, where the murdered Jesuits lived and worked in 1989.

Furthermore, the release states that most of the victims demand to be listened to, in order to find out the truth and be able to put a face on those they need to forgive.

In fact, at the heart of the debate lies the idea of restorative justice as a mechanism to find out the truth and heal the victims’ wounds, without necessarily implying taking perpetrators to jail.

“We do not want them to be jailed for a long period of time, we want perpetrators to tell us why they killed them, given that they knew they were civilians”, stressed Echeverría.

“And we want them to apologize, we want someone to be held accountable for these deaths”, she added.

In the case of Montenegro, himself a victim of illegal arrest and tortures in 1986, he said that it is necessary to investigate those who committed war crimes in order to find out the truth but, even more importantly, as a way for the country to find the most suitable mechanisms to forgive and provide redress”.

However, general Corado said that restorative justice was “hypocritical, its only aim being to seek revenge”.

A Ugandan marriage ceremony known as ‘kuhingira’ at which the groom pays a ‘bride price’. The country’s Supreme Court has now ruled that refunding them if the marriage breaks up is unconstitutional. Credit: Wambi Michael/IPS

By Wambi Michael
KAMPALA, Aug 7 2015 (IPS)

After years of a protracted battle against Uganda’s “bride price” practice, the country’s Supreme Court this week ruled that husbands can no longer demand that it be returned in the event of dissolution of a customary marriage but has stopped short of declaring the practice itself unconstitutional.

In a country in which most marriages are customary, women’s rights activists have hailed the decision as a step in the right direction for greater equality in the marriage relationship but had hoped that the court would rule the bride price – or dowry – itself unconstitutional.

In Uganda, the bride price is the gift that is given as a token of appreciation by grooms to the families of their brides. Traditionally, it takes the forms of cows or goats, besides money, and some tribes have recently been demanding articles such as sofas and refrigerators among others.

The legal battle over “bride prices” started back in 2007 when MIFUMI, a non-governmental women’s rights organisation based in Kampala, filed a petition to Uganda’s Constitutional Court, seeking to have them declared unconstitutional.“Refund of the bride price connotes that a woman is on loan and can be returned and money recovered. This compromises the dignity of a woman" – Uganda’s Chief Justice Bert Katureebe

MIFUMI, whose work revolves around the protection of women and children experiencing violence and other forms of abuse, argues that if women are empowered they can rise above many of the cultural traditions, such as bride price, that hold them back, blocking their potential contribution to development.

The MIFUMI petition argued that the demand for and payment of bride price by the groom to the parents of the bride, as practised by many communities in Uganda, gives rise to conditions of inequality during marriage contrary to the country’s constitutional provisions which guarantee that men and women be accorded equal rights in marriage and its dissolution.

In 2010, however, the Constitutional Court ruled that the bride price was constitutional, with just one judge, Amos Twinomujuni (who has since died) dissenting, arguing that the main issue at stake was women’s equality and that the bride price was a source of domestic violence.

Undeterred, MIFUMI decided to appeal to the country’s Supreme Court and finally, in a 6-1 decision, the judges have ruled that the act of refunding the bride price is contrary to the country’s constitution regarding equality in contracting marriage, during marriage and in its dissolution.

Lead Justice Jotham Tumwesigye observed that it was unfair for the parents of the woman to be asked to refund the bride price after years of marriage and that it in any case it was unlikely that the parents of the bride would have kept anything involved in the bride price on hand for refunding.

Justice Tumwesigye further argued that one effect of the bride’s parents no longer having bride price goods or cash to refund could force a married woman into a situation of marital abuse for fear that her parents would be in trouble owing to their inability to refund the bride price.

Uganda’s Chief Justice Bert Katureebe, one of the six judges, ruled that “refund of the bride price connotes that a woman is on loan and can be returned and money recovered. This compromises the dignity of a woman.”

The judges of the Supreme Court unanimously agreed that referring to bridal gifts as bride price reduces its significance to a mere market value.

Solomy Awiidi, a legal officer with MIFUMI told IPS after the judgment that she was happy that ruling had partly struck off some of the cultural practice that has held women hostage in abusive marriages.

She said much as MIFUMI had wanted the whole issue of bride price totally abolished, the fact that court had ruled against refund was something to celebrate after 15 years of struggle against the practice.

“There are fathers and brothers of brides facing civil suit because they failed to return the bride price, while thousand if not millions of women across the country who have been abused because of failure to refund the bride price. This ruling will liberate many of them,” said Awiidi.

Kampala-based human rights lawyer Ladislaus Rwakafuzi, who has been the principal lawyer for the MIFUMI petition, told IPS: “We have not got everything we wanted but at least we know that people will start being cautious paying too much when they know there is going to be no refund when there is failure of the marriage.”

Rita Achiro, Executive Director of the Uganda Women’s Network (UWONET), told IPS that the ruling has shown that women of Uganda can use courts of law to fight against laws that oppress them.

Achiro also challenged the Ugandan government and Parliament to come up with a law to enforce the court decision, saying that demand for refund of the bride price will continue if government and Parliament do not enact a law criminalising bride price refunds.

She said there were precedents in which Ugandan courts had nullified laws discriminating against women but Parliament and government had failed to enact the laws needed enforce the judgments.

Achiro cited the March 2004 Constitutional Court ruling that struck down ten sections of the Divorce Law on the grounds that they contravened a clause in the constitution that guaranteed women and men equal rights.

Uganda’s Divorce Law had previously allowed men to leave their wives in cases of adultery, while women were not granted the same right because they had to prove their husbands guilty not only of adultery but also of a range of crimes including bigamy, sodomy, rape and desertion.

A panel of five constitutional judges unanimously upheld the view that grounds for divorce must apply equally to all parties in a marriage.  Women activists had hailed the judgment as a landmark ruling that would bring equality of the sexes but, eleven year later, no law has yet been enacted to enforce the ruling.

Edited by Phil Harris    

The Supreme Court ruled today that a key part of federal legislation banning same-sex marriage is unconstitutional. Credit: Bigstock

By Cydney Hargis
WASHINGTON, Jun 27 2013 (IPS)

Large crowds cheered outside the U.S. Supreme Court here on Wednesday morning as the justices inside announced their majority decision that a key part of two-decade-old federal legislation banning same-sex marriage is unconstitutional.

Cheering supporters held signs reading, “The people united will never be defeated.” When the decision was read, they began chanting, “DOMA is dead,” referring to the so-called Defence of Marriage Act (DOMA), legislation that for 17 years has disallowed federal recognition of same-sex couples, even as state legislatures have begun to recognise such unions.

In a 5-4 decision, the Supreme Court struck down DOMA and simultaneously required the extension of federal benefits to legally married same-sex couples. In a separate decision, the court also dismissed Proposition 8, a state law in California, effectively allowing same-sex marriage in that state.

“Today’s decision not only gives federal recognition and respect to the many married same-sex couples in the U.S.,” Graeme Reid, the director of the lesbian, gay, bisexual and transgender (LGBT) Rights Program at Human Rights Watch, an international advocacy group, told IPS. “More fundamentally, it also affirms that LGBT people are deserving of fundamental rights and equal protection in all areas of the law.”

The decision will immediately extend benefits enjoyed by heterosexual couples, including social security, healthcare, pension and tax benefits, to legally recognised same-sex couples. Currently, around a dozen statess allow same-sex couples to marry."[Today's decision] affirms that LGBT people are deserving of fundamental rights and equal protection."
-- Graeme Reid

“Under DOMA, same-sex couples have their lives burdened, by reason of government decree, in visible and public ways,” Justice Anthony Kennedy wrote for the majority. “By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.”

President Bill Clinton originally signed DOMA into law in 1996, though he has since recanted his support of the legislation. Clinton’s view on the issue mirrors a broader cultural shift throughout the United States, with analysts suggesting that public opinion on same-sex marriage has changed faster than on almost any other issue in memory.

“The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts,” President Barack Obama stated in response to Wednesday’s rulings. “When all Americans are treated as equal, no matter who they are or whom they love, we are all more free.”

Obama himself is a good example of the shift in U.S. popular views on the subject, having announced his support for same-sex marriage only last year.

Still, Wednesday’s court decision was narrowly split, with several of the dissenters suggesting that the court didn’t have jurisdiction to hear the case in the first place, similar to the decision on Proposition 8. Justice Antonin Scalia even read his dissenting opinion from the bench, which is done in a small number of cases, typically when the opinion is very strong.

“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us.  The truth is more complicated,” Scalia wrote. “It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle.”  

Path towards equality

While the crowd waited Wednesday morning for the second decision, on California’s Proposition 8, a protestor put up a sign that read “Gay Mormon for Marriage Equality”.

“For those of you who don’t know, 10 years ago today a [judicial] decision came down in Lawrence v. Texas, allowing us to be gay,” he said. “And in 15 minutes, we’ll find out if we are considered equals.”

In a 6-3 ruling in 2003, the Supreme Court struck down the sodomy laws in Texas and invalidated these laws in 13 other states, making same-sex sexual activity legal in every state.

When it was announced, the Proposition 8 decision was also split 5-4, yet essentially the justices decided that they did not have the power to make a full ruling on the case. Proposition 8 banned same-sex marriage in California based on the results of a state-wide referendum in 2008.

In effect, however, the decision is a boon for supporters of same-sex marriage. It allows to stand a 2010 injunction made by a federal district court that sough to prevent the state of California from enforcing Proposition 8, stating that the law violated due process of law and equal protection.

“The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts,” Chief Justice John Roberts wrote for the majority on the Proposition 8 case. “But standing in federal court is a question of federal law, not state law.”

Despite the fact that the justices decided not to offer a full ruling on Proposition 8, critics of the law rejoiced.

“This is truly a day for the history books,” Roberta Kaplan, a lawyer who argued the case at the Supreme Court, said following the decision, “one that will be marked by future generations as a giant step forward along our nation’s continuing path towards equality.”

Though noisy opposition was noticeably absent from the rally at the Supreme Court, not everyone was pleased with Wednesday’s decisions.

“Kennedy’s decision is not law,” Maggie Gallagher, a fellow at the American Principle Project, a conservative advocacy group, said in a release. “It is Justice Kennedy’s moral values written into our Constitution, and interfering with our rights as Americans to pass laws that accord with our values on marriage.”

Tim Wildmon, president of the conservative American Family Association, similarly said he was deeply saddened by the decision in a country founded on “biblical principles”. “Our next line of defense is to vigorously protect our religious liberty.”

Meanwhile, others are already looking forward to using Wednesday’s rulings to help new plans to push state-level legislators to bolster support for same-sex marriage legislation.

“Now what needs to happen is [gay] Americans in the other 37 states need to have the same rights that all Americans get: To marry the person they love and have full, equal rights,” Neil Sroka, the communications director for Democracy for America, an advocacy group close to President Obama, told IPS.

“Our supporters and members are ready to hit the ground running.”

The Supreme Court of the United States. Credit: Mark Fischer/CC by 2.0

By Matthew Charles Cardinale
ATLANTA, Georgia, Jun 25 2013 (IPS)

The U.S. Supreme Court struck down a key provision, Section 4, of the Voting Rights Act (VRA) of 1965 in a five to four ruling today, halting enforcement of Section 5 of the act.

One of the key achievements of the Civil Rights Movement, the act was intended to address historical, entrenched racial discrimination in voting policies and practises.

Even though black people in the United States have ostensibly possessed the right to vote since 1870, under the 14th and 15th amendments to the U.S. Constitution, multiple federal civil rights acts were enacted in 1957, 1960, 1964 and 1965 to address discriminatory practises at state and local levels, including in elections.

Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito ruled to strike down the Section 4(b) of the 1965 act. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the act. It requires that the U.S. Department of Justice pre-clear any changes to “any standard, practice, or procedure with respect to voting”, including district maps, in any of the “covered jurisdictions”, which include all or part of 16 states in the United States, mainly in the South. Section 4 defines what areas Section 5 covers."Hubris is a fit word for today's demolition of the VRA."
-- Justice Ruth Bader Ginsburg

“Equal sovereignty”

The case, Shelby County, Alabama v. Attorney General Robert Holder, argued that, on its face, the 2006 Congressional reauthorisation of sections of the act was unconstitutional because it was based on historical data of racial discrimination in election practises that are no longer relevant.

A majority of the court agreed with Shelby County, arguing there is a “fundamental principle of equal sovereignty” between states that requires the federal government to treat states equally.

Section 5, the court wrote, “requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties)”.

The court also ruled the criteria defined in Section 4 – a history of discriminatory practises, along with a low level of voter turnout – were antiquated and no longer justified by current conditions, because of the very success of the act.

Voter turnout and registration rates in covered jurisdictions “now approach parity”, the court wrote, and minorities hold elected office “at unprecedented levels”. It added that discriminatory practises like literacy tests have disappeared and that blatant discrimination is rare.

Justice Ruth Bader Ginsburg blasted the majority opinion in her dissent, writing, “Hubris is a fit word for today’s demolition of the VRA.”

“In the Court’s view, the very success of [Section] 5 of the Voting Rights Act demands its dormancy… Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

“The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation,'” she wrote.

Ginsburg noted an current, ongoing problem of a second generation of tactics designed to dilute black voting strength, including redistricting practises and a move to change some elections to at-large voting.

Ginsburg wrote that the Congressional record showed that covered jurisdictions were more likely to be the subject of prevailing discrimination complaints and that there was a procedure for covered jurisdictions to apply to be bailed out of Section 5, and for non-covered jurisdictions to be bailed in, if necessary.

Further, she argued that because Shelby County, the actual plaintiff in the case, clearly qualified for Section 5 coverage, that the court had overreached. “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking.”

“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today,” she wrote.

Fury from civil rights advocates

Voting rights and civil rights advocates are infuriated at the ruling and are scrambling to take action.

Some activists are urging Congress to enact a new Section 4 based on modern-day criteria to identify which states and other jurisdictions should require preclearance for any election-related changes

The National Association for the Advancement of Colored People (NAACP) already has a petition on its website calling on Congress to act.

Justin Levitt, associate professor of law at Loyola Law School, Los Angeles, told IPS that such a move may be more complicated and politically challenging than it sounds.

“The court… certainly left the door open. If Congress chooses to return to ‘where’ question [where preclearance should be required], it would have to articulate a set of jurisdictions and the reason for including those and not others responsive to facts on the ground,” Levitt said. “That’s really hard to do.”

“It’s like asking Congress to try to figure out and come up with…current measures for places that are most sick even though they’re taking medicine. Now we’re taking the medicine away and now Congress needs to show it needs the medicine,” he said.

Possible new criteria that have been discussed so far include a history of other voting rights litigation under other provisions of the VRA, the degree to which an electorate is racially polarised or levels of prejudice, he said.

As for the court’s disregard for Congress’s renewal of the act in 2006, “there is not a tremendous amount of consistency in the amount of deference other branches of government get,” Levitt said.

Other activists are looking for a more radical and fundamental change. Rashad Robinson, executive director of ColorofChange.org, said his organisation is pushing for a constitutional amendment guaranteeing the right to vote.

“The right to vote is not enshrined in our Constitution. There’s a host of different requirements and laws, everything from registration to ballot access, in different states,” Robinson said.

“We can continue to be on the defensive, or we can sort of advance a new framework for how elections should be run in this country, and that’s what we’re doing here,” Robinson told IPS.

“We’ve got to be more aspirational,” he said. “We’ve got to think bigger.”

The Supreme Court overturned a mandate that certain organisations receiving HIV/AIDS funding state their opposition to prostitution. Credit: Bigstock

By Carey L. Biron
WASHINGTON, Jun 20 2013 (IPS)

The U.S. Supreme Court on Thursday overturned a decade-long practise under which the government linked global HIV/AIDS funding to a controversial requirement that organisations explicitly state their opposition to prostitution.

The court’s decision to overturn the mandate surprised many observers, with the 6-2 ruling now being lauded as a major victory by a broad coalition of global health, women’s rights and free speech advocacy groups.

“We are surprised but very happy to hear how the decision came down,” Crystal DeBoise, co-director of the Sex Workers Project at the Urban Justice Centre, a New York advocacy group, told IPS.

“This is a very good progression for the human rights of sex workers and will be a positive development for organisations that are best situated to meet the needs of sex workers and other people who have social and health risks,” DeBoise said.

“Hopefully this indicates that we’re moving in the direction of serving the most vulnerable members of our societies better and more efficiently.”

The anti-prostitution mandate has been part of U.S. policy since 2003, enacted as part of the President’s Emergency Plan for AIDS Relief (PEPFAR). That programme, focused particularly on Africa, offered the largest ever commitments to fight HIV and AIDS.

In the decade since it was enacted, PEPFAR has made available almost 46 billion dollars for HIV/AIDS programmes, according to official figures, directly providing antiretroviral medicines to more than five million people. For this and next year, President Barack Obama has requested another 13 billion dollars.

Yet from the start, Congress wrote the legislation in such a way that any organisation receiving PEPFAR funding would need to explicitly state its opposition to prostitution. Since then, experts from the health community have warned that such a policy runs counter to the aim of wiping out the HIV/AIDS epidemic.

“This policy didn’t emerge from within the public health field, but rather arose when some U.S. legislators saw an opportunity, through PEPFAR, to insert and enforce an ideological purity about sex work,” Serra Sippel, president of the Centre for Health and Gender Equity (CHANGE), a Washington advocacy group, told IPS.

“That was disturbing in part because it’s not a public health intervention to silence people or require organisations to adopt a specific viewpoint of some legislators.”

Building trust

The U.S. government has always explained the anti-prostitution oath by stating that stamping out sex work is a central component of the country’s broader anti-HIV policy. Civil society has also been split on this issue, with some groups – particularly anti-trafficking organisations – supporting the pledge in some way (several such groups contacted by IPS were unable to respond by deadline).

Still, many critics on the ground have for years warned that the oath stood in the way of the independent thinking necessary to find an end to the HIV epidemic. In particular, it distanced health workers from sex workers.

“It’s considered a best practise in public health to build trust among sex workers and to work to end the stigma and discrimination that fuel the epidemic,” Sippel said.

She noted that forcing an organisation like Pathfinder International – a sexual health advocacy and implementing group, and one of the lead plaintiffs in the Supreme Court case – to sign the pledge essentially pushed the organisation to adopt policy stating that it opposed the very people it was supposed to serve."We signed the pledge, knowing that we would wilfully ignore it."
-- Kevin Frost

“There’s no question that the programmatic goal of ending prostitution comes into conflict with the programmatic goal of trying to end HIV infection,” Kevin Frost, CEO of amfAR, the Foundation for AIDS Research, told IPS. “You end up making it exponentially more difficult to reach and built trust with the kind of individuals who are on the front lines of this issue.”

Such contortions led Frost’s organisation to sign the pledge and then continue to do what it thought best.

“Like many, our hand was forced into signing the prostitution pledge, even though we felt from the beginning that this was bad both policy-wise and programmatically and would have a negative impact on our ability to reach the population that needed the kind of services we offer the most – commercial sex workers,” Frost noted.

“So we signed the pledge, knowing that we would wilfully ignore it. We discussed the policy at the board level and signed on, but did so with objection.”

Still law

Thursday’s court decision hinges on a view of the anti-prostitution oath as infringing on free speech, as guaranteed by the U.S. Constitution’s first amendment.

“The [oath] requirement mandates that recipients of federal funds explicitly agree with the Government’s policy to oppose prostitution,” Chief Justice John Roberts wrote for the majority. “The First Amendment, however, ‘prohibits the government from telling people what they must say.'”

Given the polarised nature of sex work in the United States, the case before the court had been specifically tailored to deal solely with this free speech context. As such, the court did not weigh in on the merits of arguments or policies regarding sex work more generally.

Nor did the decision actually strike down the prostitution oath. Rather, it found that the oath infringed on the free speech of the organisations that were directly party to the court case.

More broadly, the case’s interpretation will affect only U.S., rather than international, groups receiving PEPFAR funding. Yet amfAR’s Frost noted that the majority of groups that receive PEPFAR funding are based in the United States and that the programme’s ability to enforce diktat for international organisations is limited.

Still, with the oath still on the books even after Thursday’s decision, the impetus will now come down to how President Obama’s administration proceeds. To date, administration officials have refused to discuss their view of the oath, given that it has been the subject of legal proceedings since Obama took office.

“This is not over – it’s an important milestone in defeating this policy, but the work needs to continue to make sure it’s not applied in a negative way to groups on the ground,” CHANGE’s Sippel said.

“This decision now gives us an opportunity to look at specific instances where U.S. funding can engage sex workers on a more critical agenda,” Sippel added. “Globally, we’re making a lot of progress on HIV/AIDS, particularly in looking at this from a public health and human rights perspective.

“This case now helps us continue to move the conversation in that direction.”

"Pay to delay" agreements may cost consumers in the United States up to 3.5 billion dollars per year. Credit: Bigstock

By Carey L. Biron
WASHINGTON, Jun 17 2013 (IPS)

The Supreme Court pushed back Monday against a longstanding practise in the U.S. pharmaceuticals industry under which large-scale companies pay producers of generic copies to hold off introducing those low-cost drugs into the marketplace.

The practise, known as “reverse payments”, maintains a company’s lucrative monopoly over a drug, often resulting in significant extra income. Yet critics, including the U.S. government, have for years warned that the practise was both anti-competitive and harmful for consumers, who are forced to pay more for drugs.

While the decision did not declare reverse payments to be outright illegal, as the government had hoped, it does now allow the Federal Trade Commission (FTC) to move forward with court cases against these arrangements, known colloquially as “pay to delay”. The decision also reversed previous rulings by lower courts.

“[T]he specific restraint at issue has the ‘potential for genuine adverse effects on competition,'” Justice Stephen Breyer wrote for the majority in the 5-3 ruling. “Payment for staying out of the market keeps prices at patentee-set levels and divides the benefit between the patentee and the challenger, while the consumer loses.”

According to advocates of the changes, competition from generics can often lower drugs prices by up to 90 percent. The FTC, meanwhile, has estimated that agreements to push off such competition cost consumers some 3.5 billion dollars per year in the United States alone. "Reverse payments are a win-win for both the brand-name and generic companies."
-- Laura Etherton

Beyond setting an important legal precedent, the ruling will likely have little immediate impact outside of the United States, as the patents in question likely do not extend overseas.

Brand-name drugs comprised just 18 percent of all U.S. prescriptions written in 2011, according to statistics from IMS Health, a research company. Yet they accounted for almost three quarters of revenue for the industry, worth some 320 billion dollars a year.

“The incentives to engage in research and development are already out there without these kinds of agreements,” Scott Nelson, an attorney with Public Citizen, a public interest watchdog, told IPS.

“Signing one of these agreements will mean you may have to fight the U.S. government. Hopefully, the impact will be that companies think twice before entering into these types of agreements, which are basically just arrangements to split up profits under which consumers lose out.”

Collusive agreements

The Supreme Court decision revolves around 1984 federal legislation, known as the Hatch-Waxman Act, that was meant specifically to push generic drugs onto the market more quickly. As Nelson noted, this law offers incentives for the development of new drugs such as decades-long patents.

But it also allowed generics manufacturers to challenge these patents for a variety of reasons. According to a study by the FTC, until the early 2000s, the generics companies prevailed in these challenges almost three quarters of the time.

Yet reverse payments arrangements offered a lucrative loophole in this process.

“Today, the court echoed what I, along with many other members of Congress, have repeatedly said:  the over-arching goal of Waxman-Hatch is to foster competition in the pharmaceutical industry,” Henry Waxman, a member of the House of Representatives and co-author on the 1984 bill, said Thursday.

“The type of collusive agreement at issue in this case represents a total perversion of the spirit of this law. This is a significant victory for consumers.”

Increasingly over the past decade, brand-name drugs manufacturers have moved to counter-sue generics companies following the filing of a challenge. Typically the companies would allege patent infringement and threaten a lengthy and costly court fight.

Thereafter, the two companies would arrive at a large cash settlement – the reverse payment – along with an agreement that the generics manufacturer would not introduce any related product into the marketplace for a set period of time.

The case before the court involved a type of synthetic testosterone, called AndroGel, used by cancer sufferers and others. The brand-name version of this drug cost around 379 dollars for a month’s supply.

While the introduction of a generic version could have knocked that price down to around 40 dollars, a deal between AndroGel’s manufacturer and a number of generics companies pushed off the introduction of a low-cost AndroGel until August 2015.

“These reverse payments are a win-win for both the brand-name and generic companies, as the latter essentially gets a share of the profits but the brand name gets to hold onto its monopoly for longer than,” Laura Etherton, a health policy analyst with U.S. PIRG, a consumer rights advocacy group, told IPS.

“The problem is these deals are lose-lose for consumers and taxpayers, as consumers end up paying billions more for these drugs, while taxpayers are forced to foot higher bills for [social safety-net programmes]. That’s the wrong way to go about making necessary medications available for the public.”

According to information provided by U.S. PIRG, such deals have delayed the introduction of generic drugs meant to fight AIDS, cancer and high blood pressure, among other diseases.

Legislative next step

Still, for advocates like Etherton, Monday’s decision did not go far enough.

“We are disappointed the court didn’t take the next step and outright outlaw this anti-competitive practice,” she said.

“But the silver lining in not taking that next step is that the case has really raised the profile of this issue. Our hope now is that Congress will give the issue the attention it deserves and end ‘pay for delay’ once and for all.”

Two pieces of legislation are currently pending in the U.S. Senate that would crack down further on reverse payments. One would seek to reduce the incentive for generic companies to enter into “pay for delay” agreements, by allowing a second generic company to circumvent such an arrangement and bring the drug to market.

A second proposal would outlaw such payments entirely. Federal auditors estimate that such a move would save the government some 11 billion dollars over a decade, in addition to consumer costs.

The Supreme Court has struck down requirements demanding proof of citizenship during voter registration. Credit: Korean Resource Centre/CC by 2.0

By Cydney Hargis
WASHINGTON, Jun 17 2013 (IPS)

In a landmark decision, the U.S. Supreme Court on Monday struck down voter application requirements demanding proof of citizenship, making it much easier for naturalised citizens to register to vote.

The decision looked at the National Voter Registration Act of 1993, which does not require proof of citizenship, as well as state-level legislation in the western state of Arizona. In a 7-2 decision, the nine Supreme Court justices ruled the state’s voting requirement, which has been in effect for two years, unconstitutional.

“The anti-immigration sentiment [in Arizona] is unconstitutional and people aren’t going to tolerate it,” Petra Falcon, executive director of Promise Arizona, an Arizona-based immigrant advocacy group, told IPS. “We need decision-makers that appreciate the diversity in our communities.”

The 1993 Voter Registration Act, known as the “Motor Voter” law, requires applicants to sign an oath, punishable as perjury, stating that they are U.S. citizens. But it does not require any proof.

“It’s extremely inadequate,” Arizona Attorney General Thomas Horne, who argued the case before the Supreme Court, said of the 1993 legislation in March. “It’s essentially an honour system. It does not do the job.”

Yet others have applauded the Motor Voter law, with civil liberties advocates suggesting that the legislation significantly eased voter registration by issuing a standard registration form nationwide.

Arizona went a step further, however, by requiring all first-time applicants to provide citizenship in the form of a birth certificate, a passport or naturalisation documents, without which the application would be rejected.

Several other states, including Alabama, Georgia, Kansas and Tennessee, have similar requirements, and Monday’s ruling will now directly affect those laws.

“This decision reaffirms the principle that states may not undermine this critical law’s effectiveness by adding burdens not required under federal law,” Laughlin McDonald, director emeritus of the American Civil Liberties Union (ACLU) Voting Rights Project, said Monday.

“The court has taken a vital step in ensuring the ballot remains free, fair and accessible for all citizens,” McDonald added.

Those opposed to Proposition 200, as Arizona’s law was called, highlighted the enormous problem it creates for naturalised citizens. Using a naturalisation document as proof of citizenship requires applicants to register in person as opposed to through the mail, because federal law prohibits the copying of naturalisation documents.

The ACLU estimates that about 13 million people in the United States lack documentation to prove their citizenship. It also estimates that 31,000 Arizona residents who attempted to register during the two years the law has been in effect were denied, 90 percent of them born in the United States. And in two years in a single Arizona county, community voter registration reportedly dropped by 44 percent.

Advocates say Thursday’s ruling offers the opportunity to start healing some of those wounds.

“Justice is on our side,” Falcon told IPS. “We are working towards rebuilding a united Arizona and one Arizona, rather than a divided Arizona.”

Attempts to tighten requirements

Justice Antonin Scalia, who wrote the majority opinion, emphasised that Arizona is allowed to ask the federal government to include the extra documents as a state-specific voter-registration requirement. He also noted that states can take the federal government to court if it refuses to do so.

State officials can also check other information on the voter registration form and refuse to register the applicant if it turns out they are not citizens.

Conservatives’ response to the ruling has already been fierce.

“This hole in federal statutory laws allows non-citizens to register and thereby encourages voter fraud,” Senator Ted Cruz, from Texas, said Monday. Cruz also announced that he would file an amendment to currently pending immigration legislation to allow states to require identification before registering voters.

Monday’s decision comes as voting rights activists eagerly await another race-based voting case before the Supreme Court. This case deals with a section of the Voting Rights Act of 1965 that requires states with a history of discrimination, including Arizona, to receive clearance from the Justice Department before they change their voting laws.

That decision is expected within days.

Arizona has been in the vanguard of a new spate of conservative-led state governments attempting to crack down on illegal immigration. Last year, the Supreme Court also decided that a number of laws in Arizona were unconstitutional.

Yet the most controversial one, a law requiring police officers to check the immigration status of anyone they suspect of being an illegal immigrant, was allowed to stand. Critics say the court’s decision greenlighted racial profiling.

“This is a country of immigrants but also of U.S. values,” said Falcon. “We want to embrace those values rather than run away from them and abuse them.”