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.

Yes and No Support on Buggery Issue in Antigua …………..

Antigua St John’s – The newly appointed Roman Catholic bishop’s call for the decriminalization of buggery is not finding favour with other church leaders.

Since Bishop Kenneth Richards’ statement on radio last Friday, at least one church leader, Rev Carlwin Greenaway, superintendent of the Methodist Church, has distanced himself from the suggestion.

Now, chairman of the Provincial Elders Conference of the Eastern West Indies Province of the Moravian Church, Rev Dr Cortroy Jarvis, also wants to disagree.

“I am surprised that we seem to be re-introducing things that I thought we had settled long ago,” he said. “I totally disagree with the call to decriminalize buggery, for I feel that once that happens, it would open up the door to a lot of other things.”

Rev Jarvis added that should buggery be removed as a criminal act, this would open the door for homosexuality to “raise its head” in the open with boldness.

“You cannot control what happens in a person’s bedroom, but there has to be a moral compass for our society,” he said. “People should know what acceptable behaviour is and what is not.”

The PEC chairman noted that the Bible is very clear on the issue of homosexuality. “In Leviticus 20 verse 13 it states: ‘If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall be put to death: their blood shall be upon them.’ While I think the second part of the passage is harsh in today’s context, it shows the seriousness with which the subject is treated from a biblical perspective,” Rev Jarvis explained.

He added that the “real picture,” as stated in the Bible, is for a man and a woman, and not man and man. He does not see any justification for repealing the laws.

“I don’t see any open discrimination against homosexuals in the society,” the reverend said. “We have been living with them amongst us for a long time. Because adultery was illegal at one time and now it is not, is not a strong enough justification in my view.”

According to Rev Jarvis, if the laws against buggery were lifted, this would strike a “serious blow” against morality. “We have enough serious problems to contend with in the country than to consider things such as lifting the laws against buggery,”  he said.

However just some days before another Bishop said he supported the repeal on the island:

The newly installed Roman Catholic bishop for St John’s-Basseterre, Kenneth Richards, said he would support any effort that will de-criminalise buggery.

Speaking on Observer Radio on Friday, Bishop Richards said while de-criminalization does not make the act right, it should be used as a tool for non-discrimination.

“The argument to de-criminalise can be justified to the extent that adultery and this is the argument that I use in time past was on the books as a criminal offense, and it has been decriminalized,” the bishop explained. “It is on this basis that buggery can also be de-criminalised. However, this does not make adultery right, nor does it make buggery right.”

Richards added that de-criminalising the act would allow anyone to feel welcome to attend his church. He said he does not place labels on anyone, as the doors are open to all.

His stance is likely to be at odds with other church leaders who have maintained a hardline stance against buggery and homosexuality.

Superintendent of the Methodist Church Rev Carlwin Greenaway said while the clergy has not issued a specific statement on the matter, the church operates on the principle that any act of sex outside of marriage between a man and a woman is against the teachings of God.

“However, we recognise that there are other sexual sins. Who is to say that one is greater than the other?” he asked.

He agreed that the fact that buggery is still a criminal offense, yet other sins are not, has to be considered. “Should we make extra-marital sex a crime?” he asked. “We know that that is unrealistic to expect.”

also see: ACC Wants to Keep Anti-Buggery Laws and Antigua’s Buggery Law Unlikely To Change

The debate(s) continue across the Caribbean

Peace and tolerance

H

The UNIBAM Case Has Its First Day In Court …….. leader confronted

Source: 7 News Belize

UNIBAM’s (United Belize Advocacy Movement) challenge to the constitutionality of section 53 of the criminal code has set off Belize’s first culture war – with the Church on one side and Caleb Orozco and his supporters on the other.

They’re trying to have Belize’s buggery laws taken off the books – while the Churches are fighting to uphold God’s law.

And while there has been passionate public debate and protest, the battle hasn’t even really started. The case went to court today for the very first time – and as might have been expected, the power of prayer was brought to harness.

But while that happened outside, inside the courtroom of Justice Michelle Arana, the attorneys for the Churches, Michel Chebat, Rodwell Williams and Jackie Marshalleck – as interested parties – argued that UNIBAM had no standing to bring the case, because as an organization it has no constitutionally guaranteed rights. Additionally, they argued that their experts had not been properly brought before the courts.

For its part, the UNIBAM attorney Lisa Shoman and Simeon Sampson argued that the Churches – as only an interested party – had taken over the right of the real respondents in the case which is the Government of Belize. A point which was later contradicted by the Attorney General’s Ministry represented by Nigel Hawke.

Arguments took all day to be heard – but the monochrome hearing of all these technical preliminary matters was coloured by the Christian observers who – though few in number – had a strong presence.

Here’s our report:..

Pastor Scott Stirm, Jubilee Ministries, Belmopan
“So Lord we receive your strength today; we receive your legal strength. Lord we pray for Michel Chebat. We pray for Rodwell Williams. We pray for Jackie Marshalleck, Lord God.”

Jules Vasquez reporting
There was powerful prayer this morning in the open air and the shadow of the Supreme Court building.

A circle formed which seemed to marry prayer and protest, or prayerful protest and singing as well as they processed past the courthouse.

From there the prayer circle moved in front of the courtroom where an intense small circle gathered.

And on the other side of the courthouse, patriotism, prayer and protest mingled in a chorus of voices; here they read bibles not lawbooks.

Upstairs near the courtroom they also had a prayerful presence, while the lawyers and activists milled about, eventually leaving for an early adjournment due to blackout.

But arguments resumed in the afternoon, and went on until 4:40 pm – with the judge reserving judgment until a later date. It’s only a preliminary skirmish but both sides would only express only measured optimism.

Jules Vasquez
“You think UINBAM will survive as an applicant withstanding?”

Lisa Shoman, SC Co-counsel, UNIBAM
“It really matters not whether UNIBAM survives as an applicant. This case will go on. I rather suspect that it at this point almost doesn’t matter how the judge rules. There may very well be an appeal in either case. Suffice it to say that the claimants really want to get the case heard, and it is no part on the intention of the claimants to have the matter drag on and on. He’d like to get the matter before the courts. There are several options that we have open, and we will look at them when that arises because – as you can appreciate – there is no way to tell, and I don’t like guessing as to how the judge will rule.”

Jules Vasquez
“However, do you expect that eventually your experts will be accepted?”

Lisa Shoman
“I expect so, one way or another, yes.”

Jules Vasquez
“What is the prospect for an early hearing of this matter?”

Lisa Shoman
“I would hope very good. It really will depend on the court, and they’ve had quite a bit of argument and material placed before them. But I know that the courts are quite aware that this is an issue which needs to hear with some rectitude, so I am not concerned about that. I am sure it will be heard as quickly as possible.”

Jules Vasquez
“Simeon, you’ve been at this court for years. I don’t think you’ve even attended a court hearing where there has been singing and praying in and around the courtroom.”

Simeon Sampson, SC, Co-Counsel Churches
“Well I know that you assume that, but you are only associated with criminal matters. This is an intellectual exercise; it’s a human rights issue. I’ve been involved with human rights issues in Belize for 20 or so years. When I get involved I always try to ensure success. It only just began; we have a long way to go.”

Rodwell Williams, SC Co-counsel, Churches
“Our application was that that organization had no standing and we believe we have made reasonable arguments to support that request that it be struck, and that certain affidavits that are effective were given. And contrary to the rules without the leave of the court, and so on, and that those also should be struck. And I feel reasonably confident about the applications and the prospect of success. Of course, litigation has it risks, but we believe that as interested parties we have standing to bring that application – as you would readily appreciate. Interested parties have appealed decisions of this court all the way up to the Privy Council. There is no good reason to say that interested party because you are so call interested party you can make substantive application.”

Jules Vasquez
“Are you all trying to have this matter thrown out on preliminary technical matters?”

Rodwell Williams
“The application is only against UNIBAM. So if UNIBAM goes the matter is still extant.”

Jules Vasquez
“Do you think it’s a matter from your experience that will be heard expeditiously or will it be sometime before we get to the actual substance of the case?”

Rodwell Williams
“What matter will be heard?”

Jules Vasquez
“The substantive matter of the constitutionality?”

Rodwell Williams
“I suspect that that is some date in the future. How? I don’t know. You’ve heard the judge said that she will return a ruling as soon as she has one and then we go from there.”

As we noted in the story, Justice Michelle Arana has reserved Judgment which will be delivered at a date to be announced.

UPDATE Feb 12, 2011

Caleb Orozco, 38, the leader of the UNIBAM, the movement which has brought a constitutional challenge in the Supreme Court to decriminalize unnatural sex acts under Belizean law, was attacked on Wednesday evening, February 8.

according to the Belize Reporter

Orozco said an unidentified assailant threw a brown beer bottle at his face, while he was on Prince Street between George and West Streets between 4:30-5:50 p.m.

He told The Reporter he had walked from Basra Street towards St Ignatius School and turned onto Euphrates Avenue when he heard someone behind him say: “tell dem bally no walk pahn my street.”

He then turned right into Dean Street when he observed two men stalking him from a distance as he walked toward the Dean Street Police substation at the corner with West Street.

He said he had turned into Prince Street and had turned to see if he was still being followed when the bottle hit him on his right jaw. The bottle did not break on impact but shattered when it hit the ground, so Caleb said he could not say for sure what brand of beer it was.

He was stunned but did not fall to the ground and continued walking away from his assailants who did not pursue him further.

He consulted with his attorney, Lisa Shoman, who is representing UNIBAM in the Supreme Court, but she counselled him that reporting the assault to the police might prove a waste of time.

When Love TV’s Patrick Jones interviewed him, Orozco said he pointed out his assailant to Jones, who convinced him to make a report so the attack could be on record. Caleb said he went to the Dean St. substation and informed the officer on duty that he had been attacked and that his assailant was still just up the street, but the officer refused to leave his post to investigate, but took down his statement

Orozco was treated  for his injury at the Karl Heusner Memorial Hospital by Dr. Gonzalez, who certified his injury on the medico-legal form provided by the police. He said he left the hospital around 9:30 p.m. and went home to recover.

Orozco said the attack was but a small incident in the growing tide of homo-phobic violence which is sweeping the country, and he cited a litany of murders of men who had openly expressed their sexual orientation or who were believed to be homosexuals, and the numbers are indeed alarming

Foreign aid for African countries with anti-gay rights records to be slashed, pledges David Cameron

By DANIEL MARTIN of the Daily Mail

David Cameron has pledged to slash aid to African countries with poor records on homosexual rights.

The Prime Minister will tell struggling nations they will receive funding ‘fines’ if persecution of gays continues.

The Government has already cut aid to Malawi by £19million after two gay men were sentenced to 14 years hard labour. The southern African nation also plans to bring in tough anti-lesbian laws.

Malawi has received £200million from Britain over the past three years.

International Development Secretary Andrew Mitchell could also reduce aid to Uganda and Ghana unless they drop laws against gays.

Uganda, which is due to receive £70million in 2011, plans to punish homosexuality with the death penalty

The president of Ghana, which gets £36million a year, has promised to bring in measures to ‘check the menace of homosexuality’.

However, no mention has been made of cutting aid to Zimbabwe, which got £69million last year. Gays there still face persecution from security forces.

Jailed: Steven Monjeza and Tiwonge Chimbalanga were convicted of unnatural acts and gross indecency, and sentenced to 14 years hard labour

Jailed: Steven Monjeza and Tiwonge Chimbalanga were convicted of unnatural acts and gross indecency, and sentenced to 14 years hard labour

In May, Malawi’s first openly gay couple, Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, were jailed for 14 years. They had been arrested after holding an engagement ceremony in December.

Just days ago, Mr Cameron told the Conservative Party conference that it was right to legalise gay marriage.

A spokesman for Mr Mitchell said: ‘The Government is committed to combating violence and discrimination against lesbian, gay, bisexual and transgender people in all circumstances, in this country and abroad. We take action where we have concerns.

‘We only provide aid directly to governments when we are satisfied that they share our commitments to reduce poverty and respect human rights.’
Read more: http://www.dailymail.co.uk/news/article-2047254/David-Cameron-Foreign-aid-cut-anti-gay-countries.html#ixzz1aO4ZCu2E

ENDS

My two cents

But what will that do though in the long run if most states and including Jamaica outside of the region mentioned in the article have a strong beliefs or perception that homosexuality is an import and that actions such as this are forcing the hand of countries with “christian principles” and “high moral values” to capitulate to the powerful gay lobby from first world nations yet The Prime Minister David Cameron is not gay but could be viewed as a puppet in the scheme of this with the pressure coming and positions from the European Union side of things and other bodies such as the United Nations on sexual orientation.

Is forcing countries to comply the way to go?

Or hitting them economically?

I don’t think so, certainly other diplomatic methods can be employed but what about the notion that anti gay forces in the United States are in effect exporting homophobia and funding anti gay and religious fanaticism especially in parts of Africa in recent times. What does Mr. Cameron et al have to say or do about that?, these powerful backers behind such moves are said to be numerous and are some of the biggest companies and individuals allegedly. Will the UK also criticize those backers and demand they stop this kind of clandestine support or be made to stop? Can or will the UK Prime Minister stand up to the police man of the world and call it for what it is? Are we going to solve the issue of tolerance this way folks? I don’t think so, the hitting of the economic prosperity of these non compliant states as it were may only serve to bring more harm to the voices and populations on the ground who are made to pay the price as involuntary martyrs for this kind of pressure.

While I can understand the need for rights and recognition to be extended to the common man this incessant push to seemingly impose it on the rest of the problematic states is unjustified for now, I say more dialogue bearing in mind also other countries who may have similar anti gay positions and laws with dire societal consequences are watching this and may feel justified in tacitly supporting homophobic acts even more so whilst becoming hardlined on budging from their no ease on buggery positions. We saw the recent comments but the Antiguan and Barbudan Attorney General on the law there on the strength of a legal challenge mounted by a group in Belize named UNIBAM

This debate has no end soon so let us see.

Peace and tolerance

H