SC dismisses Citizen X Rights petition for failing to disclose his HIV status

By S.S.Selvanayagam

 The Supreme Court dismissed the Fundamental Rights petition filed by Citizen X who kept his HIV status undisclosed to the public.

 Justice Sisira J De Abrew with Justices Priyantha Jayawardena and Nalin Perera concurring in his judgment held that the Sri Lankan Airlines Ltd and its Group Medical Officer Dr Anoma Jayasinghe had not violated the fundamental rights of the petitioner Citizen X.

Citizen X, a person living with the Human Immunodeficiency Virus (HIV) filed his fundamental rights petition through Attorney-At-Law Kamani Madhya Jinadasa.

He cited Sri Lankan Airlines, its Group Medical Officer Dr Anoma Jayasinghe, Transport & Civil Aviation Ministry Secretary Nihal Somaweera, National STD/AIDS Control Program Director Dr Sisira Liyanage and the Attorney General as Respondents.

Senany Dayaratne with T. Weragoda appeared for the Petitioner.

S. A. Parathalingam PC with Nishkan Parathalingam instructed by Srimal Weerakody appeared for Sri Lankan Airlines, its Group Medical Officer Dr Anoma Jayasinghe.

Additional Solicitor General Sanjay Rajaratnam appeared for Secretary of the Ministry of Transport & Civil Aviation and the Attorney General.

The Supreme Court held the petitioner failed to prove the allegation that Sri Lankan Airlines did not offer him employment on the basis that he was a HIV-positive person.

The petition was filed seeking an order directing Sri Lankan Airlines to re-instate Citizen X as a cabin crew member at the Airlines since his employment was terminated after the company found he was HIV-positive.

Court held that Sri Lankan Airlines cannot be found fault with when it withdrew the victim’s contract of employment on the basis that the victim petitioner had provided false information and dismissed the petition.

The Supreme Court observed that the petitioner in his petition admits that he became aware that he is a HIV positive person in 2013. Therefore, when he declared on October 10, 2016 in the medical form to Sri Lankan Airlines, that he did not have any sexual transmitted disease, his declaration was false.

Court noted that Citizen X in 2013 knew that he was a HIV-positive person but did not disclose it in 2016 at least in a confidential manner that he is a HIV-positive person.

 Court observed that when the Sri Lankan Airlines Ltd after medical test discovered that Citizen X is a HIV-positive person, Citizen X wanted protection provided in ‘National Policy of HIV and AIDS in the World of Work in Sri Lanka’.

Justice Sisira J De Abrew was of the view that Citizen X is blowing hot and cold. Such a person is not entitled to get relief from court, Justice Abrew held.

The petitioner stated that in 2010 he made an application to Mihin Lanka and joined the in-flight cabin staff as a steward and continued to serve in the said airline, receiving appreciations for his services and as at August 2016, he was a confirmed employee of Mihin Lanka.

During his employment with Mihin Lanka he was diagnosed as being HIV positive at a voluntary testing done in 2013.

The petitioner stated since Mihin Lanka did not require disclosure of HIV status and since he was under no obligation to disclose his HIV status to Mihin Lanka, his HIV status was not disclosed.

He said that in June 2016, it was announced by the government that Mihin Lanka would cease operations and would be amalgamated with SriLankan Airlines.

He stated that the staff of Mihin Lanka was advised that operations of Mihin Lanka would be wound up by 30 December 2016, and were advised to seek alternative employment including in the Sri Lankan Airlines Ltd.

He stated that to the best of his knowledge, the entire staff of Mihin Lanka was given the opportunity to apply for employment with Sri Lankan Airlines.

He stated that on 27 September 2016, he was called for an interview for the post of cabin crew member with Sri Lankan Airlines Ltd. He stated that was selected and thereafter was required report to the medical centre of Sri Lankan Airlines for basic assessment including height, weight, and eyesight.

He stated that during the said basic medical assessment, he was required to fill a standard form which required him to disclose inter alia whether the applicant is carrier of any sexually transmitted infection.

He stated he was well aware that the National Policy on HIV and AIDS in the World of Work in Sri Lanka contained policies which inter alia declared that HIV screening is not required for purposes of employment and confidentiality of his HIV status made it non-obligatory to disclose his HIV status in the said health form.

In 2016, he was notified by a person attached to the Human Resource Department of Sri Lankan Airlines of his selection as a cabin crew member. Thereafter he was further requested to collect his uniforms and suitcases from the Sri Lankan Airlines and also to give measurements for his jackets.

He stated that on 19 October 2016, he was required to present himself at Nawaloka Hospital for certain tests including HIV screening and that in October 2016, he reported to the Human Resource Department of Sri Lankan Airlines and signed the contract of employment and was issued a with a staff identity card and the in flight-bar cabinet access keys and name tags.

He said the second respondent Dr Anoma Jayasinghe contacted him via telephone and requested him to meet her at the Hilton Hotel, Colombo to discuss his HIV status.

He also said the second respondent had thereafter requested him to hand over the appointment letter and the staff ID issued by Sri Lankan Airlines for safe keeping until the matter was resolved.

The decision of Sri Lankan Airlines to subject him for an HIV screening, the subsequent constructive withdrawal of the appointment letter, and termination thereof on account of his HIV status and such other grounds upon his HIV status being made aware to the second respondent is wrongful, he contended. He said he was informed that his services had been terminated as he failed his medical test.