As the stigma towards foreigners as an AIDS threat becomes institutionalized, the net is cast wider and the testing becomes more frequent. What began as a one-time test for only E-2 visa holders has become a repeat test for all foreign teachers, even those with permanent residency.

The Seoul Metropolitan Office of Education has decided to retest all of its 1,120 foreign English teachers for AIDS and drugs -- regardless of visa type -- and plans to continue retesting them on a yearly basis. Other provincial education offices are instituting similar plans.

There are 59 countries that have some form of HIV-related restrictions, but with this new retesting scheme Korea has become one of only six countries with the most restrictive forms in place. UNAIDS reports that "countries (which) implement HIV controls on a regular basis for foreigners already in the country (and) require an HIV test to be taken annually, or whenever the work or residence permits need to get extended include Belarus, Cuba, Malaysia, the Republic of Moldova, Mongolia, and the Turks and Caicos Islands."



And now the Republic of Korea.

With a Constitutional Court case against E-2 visa AIDS and drug tests in play and plans announced to lift the HIV travel ban, the Korea Immigration Service has wisely decided to steer clear of the Seoul Metropolitan Office of Education retesting program. The Korea Immigration Service has explained that they will not be requiring E-2 visa holders to provide additional AIDS and drug test results when renewing visas with current employers.

"Please note that in this case," the KIS announced in July, "if you have already submitted relevant documents, then you do not need to submit them (again) when you extend your sojourn period." The SMOE, however, has told teachers that the "HIV and drug test" is "a yearly requirement" and further warned that the test results are "an inspectable item at our office by the Korean government auditors and failure to turn it in will have an impact on your employment with SMOE."

So while the KIS doesn`t require these retests, the SMOE and some other provincial education offices certainly do.



Disregarding legal procedure



The government`s failure to coordinate such a delicate issue between ministries makes the Inter-Ministerial Committee on Policies Regarding Foreigners in Korea look more like window dressing than a functional committee. The committee was created under the Act on the Treatment of Foreigners.

Moreover, it makes a pledge made in the same Act -- to "safeguard the human rights of foreigners in Korea" -- sound like an empty promise when officials can`t even be bothered to ensure the proper legal means are in place to accomplish their plans for foreign residents.

In the rush to retest foreign teachers for drugs and AIDS, government education offices have been indifferent to whether the necessary laws exist to do so. The Immigration Act, which was cited for the first tests, is unavailable since the KIS announced it won`t be requiring retests. Various amendments to Education Acts introduced by Rep. Choi Young-hee this summer could be helpful in finding authority for the drug tests at least (AIDS tests weren`t included in the bills), but these have yet to become law.

The situation is even more awkward when one considers the Constitutional Court ruling that -- even in the case of "narcotic offender" prisoners -- the government is required to provide a legal basis for requiring drug tests (2005 Hun Ma 277). The Court explained that even if tests are "conducted pursuant to the test subject`s voluntary cooperation" a "urine test constitutes de facto exercise of power and therefore constitutes a state act," which means that "in the absence of any legal basis or obligation, it presents the issues of infringement on the general freedom of action (the right not to do an undesired thing, i.e. collecting and submitting urine; and the right not to open to others one`s bodily conditions and information) guaranteed by the Constitution Article 10`s personal dignity and worth and the right to pursuit of happiness, and the infringement of the bodily freedom guaranteed by Article 12 of the Constitution."

In the case of the "narcotic offender" prisoners, the government was able to cite the Penal Administration Act, Article 17-2 (Bodily Inspection), since "urine sampling and narcotic testing can be considered part of the bodily inspection." One wonders why foreign teachers, when their bodies are inspected for drugs, aren`t entitled to the same consideration of their personal dignity as these "(n)arcotic offenders," who the government explains must be repeatedly tested because they are "by their nature addicts or habitual offenders."



Disregarding public health



Since teaching doesn`t transmit the virus, the mandatory -- and wholly symbolic -- AIDS testing of teachers does little more than amp-up the already staggering amount of stigma surrounding the disease in Korea. This stigma, say Korean health experts, stands in the way of stopping the spread of AIDS in Korea and attending to the needs of an estimated 13,000 infected Koreans, many of whom are undiagnosed and some of whom are aware of their status, but live in hiding afraid even to seek treatment.

Strong family bonds are very important in Korea, but the fear and stigma of AIDS here is even more powerful, with rejection of infected family members being its most extreme form. One survey showed that only 49.9 percent of Koreans were willing to care for an infected family member at home. Other surveys found that 67 percent of Koreans would refuse to have a meal with someone with AIDS; 44 percent of Korean parents would keep their kids out of a school where a child with AIDS attended; and 36 percent of Koreans thought people living with HIV/AIDS should just be quarantined away from society.

It`s no wonder then that Koreans living with HIV/AIDS suffer such severe depression that 56 percent of them contemplate suicide, and so many go through with it that the suicide rate is ten times higher than the normal level, which is already extremely high.

Never mind that today one can be diagnosed with HIV and still have a normal life expectancy and lead a healthy and productive life: Who wants to live HIV positive in a society with so much stigma? As the saying goes: "HIV is treatable, it`s the stigma that`s fatal."

The mandatory in-country HIV testing of foreign teachers -- and now repeat testing -- is one of the forces ratcheting up this cycle of stigma in Korea.

It was stigma that put the discriminatory tests in place, and now these tests continue to legitimate and perpetuate the same stigma. Noncitizens with resident visas are now subject to the same HIV tests and retests as foreign teachers on E-2 visas, foreign entertainers on E-6 visas and migrant workers on E-9 visas. As the stigma of "foreigner as AIDS threat" becomes institutionalized, the net is cast wider and the testing becomes more frequent.



The opinions expressed here do not necessarily represent those of The Korea Herald. To comment on this story, e-mail mattlamers@heraldm.com; to contact the author, e-mail khu.lawschool@gmail.com -- Ed.









By Ben Wagner