Caribbean Court of Justice reserves judgement on Maurice Tomlinson case on barred entry due to sexual orientation

judges_of_the_caribbean_court
Justices on the leave hearing panel were back row, left Jacob Wit (Netherlands Antilles) and Winston Anderson (Jamaica) and front row: Rolston Nelson (Trinidad & Tobago), CJ Sir Dennis Byron (St. Kitts & Nevis) and Winston Saunders (St. Vincent & the Grenadines)

HEAR THE AUDIO OF THE SESSION HERE and HERE

Welcome to the Caribbean Court of Justice

MAURICE TOMLINSON & TOM DECKER

The Caribbean Court of Justice heard on November 12th an application against the governments of Belize and Trinidad in which Maurice Tomlinson is challenging the immigration laws of both countries. The hearing was scheduled for two days, but it concluded today, shortly after noon. Tomlinson is Jamaica’s prominent supporter of the rights of lesbians, gays, bisexuals and transgenders. His challenge is premised on the notion that the existing legislations infringe on his right to free movement, dignity and equality within the region, as preserved in the Revised Treaty of Chaguaramas, signed in 2001.  The application for special leave to commence proceedings in the matter was held via teleconference inside the chamber of Justice Michelle Arana.  Tomlinson, the former husband of Acting Solicitor General of Belize, Michele Daly, who has left Belize, has visited the country on two occasions without any problems and has visited Trinidad and Tobago four times with no one aware of his homosexuality. He recently refused invitations by organizations to speak at their conferences and events because he discovered that the laws in both states appear to directly prohibit homosexuals from landing in each country. In Belize’s case he was to visit at the request of the United Belize Advocacy Movement (UNIBAM) last January for a training session.

The fact that he wasn’t prohibited from entering Belize forms the basis of government’s argument that Tomlinson should not be granted leave by the appellate court to seek legal action.  Section Five of Belize’s Immigration Act forbids, among other listed groups, “any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behavior.” Tomlinson, since ending his relationship with Daly, has remarried Tom Decker, a Canadian pastor in New York.  Following today’s proceedings, Acting Solicitor General Nigel Hawke contended that the law in practice is not so narrowly interpreted and in any case Tomlinson has not come here to challenge the law. If he did, Hawke said, he would find that he was welcome here both in the ordinary sense and as a skilled national.

Section 5 of Belize’s Immigration Act – Chapter 156 of the Laws of Belize – lists among the categories of prohibited immigrants “any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behavior…”

Tomlinson’s case was featured in a press release last December from AIDS Free World, an organization of which he is a leading member. That organization called Section 5 of Belize’s Immigration Act “offensive and overbroad.”

It furthermore said that, “Only two countries in the Western Hemisphere, Belize and the Republic of Trinidad and Tobago, arbitrarily ban the entry of homosexuals as a ‘prohibited class’.”

Belize contends, though, that the law is not a blanket prohibition against homosexuals – but there is a clear commercial dimension to it, where the prohibition is directed at the earning of proceeds from such activities – as would be the case for prostitution and commercial sexual exploitation.

Tomlinson said that the United Belize Advocacy Movement (UNIBAM) had invited him to Belize to conduct training and sensitization sessions in January 2013, and after having learned of the provisions of the Immigration Act, he declined the invitation because he is unwilling to break the law to conduct these sessions.

Nigel Hawke, Acting Solicitor General, Belize

NIGEL HAWKE

“Basically the court heard arguments from the applicant, heard arguments from Belize and Trinidad, remember this is an application for special leave.  We made our arguments basically saying that we have a certain interpretation of the Immigration Act, our Immigration Act.  Trinidad made their application and the court has reserved its ruling on the issue of application for special leave.  Our position is that the law is interpreted a certain way, our provision is interpreted a certain way.  It is in relation to persons who profit or earn from either prostitution or homosexuality.  That is our position.”

Reporter

“I notice that you said that that won’t change and our position has been when Mr. Tomlinson was here in Belize that he got free entry and exit into the country.”

Nigel Hawke

“That’s from the standpoint that he is saying that we are saying first that there was no actual prejudice and that is clear.  Nobody is disputing that.  The question here is whether there is a potential prejudice because he says the law there is an impediment to his free movement, in particular to Belize.  We are saying no.  We are saying, based on our interpretation, it is not.  So even if that particular provision remains there our submission, our formal submission is that it remains a provision that only applies to a particular situation.  That is basically it.”

Reporter

“Could you address the comment made in court that the laws that were made were promulgated in a time when society was more homophobic and also that in this day and age with the Caribbean Community Single Market and Economy that there are laws in countries such as Belize that need to be aligned with community laws?”

Nigel Hawke

“Bear in mind that that comment was made by Mr. Senior Counsel Jairam.  I think that is his understanding or opinion in respect of that law.  Yes, you concede see the fact that there are some laws in our book that are outdated but we maintain even with respect to this particular aspect of our law, it has been repeated in our Free Movement National Act and I think parliament must have meant something why they put it there.  This was a law to deal with the persons who come into Belize for employment purposes and we submit that that also gives some kind of clarity as to what meaning the legislation attaches to that particular provision in our Immigration Act.”

Reporter

“Sir, the attorney for the other side said that this particular case has no reference to that skilled labor so it shouldn’t be considered.”

Nigel Hawke

“That’s his submission; he has a right to make his submission.  That is his submission and we respect that but we’ve made our submission.”

The judges of the Caribbean Court of Justice have reserved judgment in the matter. See more HERE  and HERE

Trinidad & Tobago through its lawyer, Law Association President Seenath Jairam, SC, appearing with Wayne Sturge and three other attorneys, argued that what is relevant in determining whether a treaty had been violated was the impeached state’s practice. He argued that Trinidad and Tobago had a policy of non enforcement of the law, which he interpreted to refer to homosexuals and not homosexual prostitutes as Belize argued. The allegedly offending provisions in both laws (primarily sections 5(1)(e) of the Belize Immigration Act and 8(1) (e)of the Trinidad and Tobago Act) are almost identical. Jairam supported his arguments with such cases as the recent Shanique Myrie decision, which was repeatedly referenced in the proceedings.

Jairam argued that because Trinidad and Tobago’s state practice was such that it didn’t prevent homosexuals from entering and that because Tomlinson was not prevented from entering before, the application was “an academic exercise”. Tomlinson will not ever be denied entry simply by virtue of being a homosexual, he declared. He drew a comparison to hanging, saying that Trinidad and Tobago had laws on its books which allowed hanging but that they nonetheless did not hang. When asked by the court whether that meant that hanging was illegal, he responded that that was a matter for the constitutional court. He alluded to the fact that governments had financial constraints and that there were costs involved in repealing laws. (Incidentally that has not prevented Trinidad and Tobago from repealing other laws it wished to repeal.)

Jairam argued further that Tomlinson could have applied for a special permit from the Minister responsible for immigration as Sir Elton John did back in 2007. Gifford had earlier stated there is no waiver available to homosexuals of the prohibition in the law, and pointed the court to the section of the Trinidad and Tobago Immigration Act which permits the Minister responsible for Immigration to grant such a  permit. While Gifford argued the permit is limited to two classes of prohibited immigrants specifically mentioned in a subsection of the law, who not include homosexuals, Jairam stated the law confers broader powers and the subsection merely qualifies entry conditions for those two classes.

Justice Nelson expressed concern over whether a policy was sufficient protection of the rights guaranteed to nationals of CARICOM countries, asking rhetorically, “what happens when government changes?” He also asked Jairam non rhetorically whether the court should strike out the allegedly offending sections since they weren’t enforced. Jairam responded, to the bemusement of many in the court, that the court should not strike out the sections because that might allow terrorists to enter the country. In back and forth questioning with the justices, he conceded that both the Belize and Trinidad and Tobago laws were likely enacted “when people were  homophobic”, and that has changed.

The Justices asked all parties whether there was case law on the homosexual provisions of the immigration laws, but none had any to offer. Both states argued that their statutes on freedom of movement for skilled nationals allow their entry notwithstanding other laws, such as the homosexual prohibition, and Tomlinson as a lawyer could have availed himself of such a provision for entry. But the Court was clear that the case was not about entry of a skilled national and that such entry was in the specific context of employment and skill certification. This prompted a series of questions as to whether a prostitute could enter to deliver a lecture instead of to acquire earnings through his/her trade.

Both Belize and Trinidad and Tobago argue that Tomlinson’s rights have not been breached as he has not been denied entry and that is the Treaty has therefore not been engaged. Gifford  responded to the State’s arguments by reiterating that a policy was just a policy and was subject to change with any given government. He also reiterated that the mere existence of the laws, whether they were enforced or not, was sufficient to restrict a person’s rights. It’s like putting up a sign that says “No homosexuals”, regardless to what your actual practice is.

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