Maurice Tomlinson, attorney at AIDS Free World, and a Jamaican homosexual married to a Canadian pastor, has asked the Caribbean Court of Justice (CCJ) to strike down a clause in Belize’s Immigration Act which he alleges makes it an offense for homosexuals to visit Belize. Tomlinson is jointly challenging the Immigration Act of Trinidad and Tobago, on the same basis – that the law bars him, as a homosexual, from visiting the country.
As a citizen of the Caribbean Community, Tomlinson claims rights of free movement in member states, such as Belize. Tomlinson makes this claim on the basis of the Revised Treaty of Chaguaramas – the legally-binding instrument which is the foundation for the Caribbean Single Market and Economy (CSME).
Tomlinson’s attorney, international human rights attorney, Anthony Gifford, QC, a British baron, told the Caribbean Court of Justice on Tuesday morning, that in his reading of the Belize and Trinidad statutes, the laws require his client to seek a special permit from local authorities to visit their country.
In 2007, the famous singer Elton John, who is openly homosexual, had to get a special permit to visit Trinidad for a concert. However, evidence presented to the CCJ today showed that in the case of both Belize and Trinidad, Tomlinson had visited on multiple occasions without the need for a special permit and without any interference.
Up until last month, Tomlinson, the former husband of recently departed Acting Solicitor General Michele Daley, had a son in Belize, and Tomlinson, by his own admission to the court, had visited Belize on two occasions. He had likewise visited Trinidad four times.
He told the court, though, that he had since learned of the provision in the Belize law, and had, consequently, turned down an invitation from UNIBAM (The United Belize Advocacy Movement), because he does not want to break Belize’s law.
Before the matter can go to hearing, Tomlinson must obtain special leave from the CCJ. Today’s proceedings provided the CCJ’s 5-member panel—Justices Dennis Byron (president), Rolston Nelson, Adrian Saunders, Jacob Wit and Winston Anderson—with information they need to determine whether Tomlinson has an arguable case. If the CCJ thinks he does, the case will proceed to full hearing.
Gifford, Tomlinson’s attorney, told the CCJ that they are seeking special leave because of the violation of rights assured to Tomlinson under the Revised Treaty of Chaguaramas – that is, the right to freedom of movement.
He told the court that the facts on which he relies are not contested: Tomlinson is a Jamaica national, a homosexual, and he claims to “have been attracted to males” as far as he can remember.
Gifford noted that Tomlinson is married under the laws of Ontario, Canada, to Tom Decker.
Tomlinson’s work has taken him to many countries in the Caribbean, said Gifford. However, Gifford told the court that under the laws of Belize and Trinidad, Gifford belongs to a prohibited category, and he cannot enter those countries without breaking their domestic laws, and so he had no lawful option but to refuse speaking invitations to visit Belize and Trinidad as part of his advocacy work with AIDS Free World.
“That is the prejudice he has suffered,” Gifford told the court. “There is an impediment to his lawful travel to both states, an impediment which we say only this court can remove.”
Despite Belize’s assertions that the Immigration Act only bars homosexuals who derive financial gain from homosexual activities, Gifford told the court that the meaning of Belize’s law is plain: it prohibits first any prostitute, second any homosexual, third any person who may be living on the proceeds of prostitution or homosexual behaviour.
Gifford commented that “this is one of the saddest situations that arise when you have a law of this kind… that people may be subject to penalties which are an affront to dignity.”
He told the court that their only way out of the dilemma was to come to court to insist that Belize’s law should change.
However, a CCJ judge noted that if the law is struck down by the court, it would lift the restriction on citizens other than CARICOM citizens – which is outside the purview of the CCJ. The court noted that what the applicant is claiming – to have the Belize law struck down – goes well beyond what is appropriate for the claimant’s case.
Gifford responded by saying that any remedy by the CCJ could be fashioned accordingly.
As for the Trinidad law, Gifford said that Section 8 of their Immigration Act prohibits the entry of prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals or persons suspected of coming to Trinidad for these and other immoral purposes.
“Our suggestion is that that is equally clear and unambiguous,” said Gifford, claiming that there is no room for exemption in the Trinidad law.
However, a judge of the CCJ, which sits in Port of Spain, Trinidad, cited a section of the law under which exemptions are possible, noting specifically the case of Elton John’s admission under a special permit.
Gifford contended, though, that having to seek a permit is an affront to his client’s dignity, and it creates a hassle or impediment to his freedom of movement.
“No other CARICOM national has to seek a permit,” Gifford claimed.
The court again disputed Gifford’s contention, indicating that there are other categories of CARICOM nationals who are required, in some instances, to seek entry permits.
The recent decision issued by the CCJ in the case brought against Barbados by Jamaican Shanique Myrie, who was awarded damages for her ejection from that country, was highlighted as an example where the court has signalled the precedence of Caribbean Community law over domestic law. Gifford pointed to the declaration that CARICOM countries need to give effect to the treaty in their domestic laws so that nationals can enjoy their rights.
Gifford said that Tomlinson faces a dilemma: either he breaks the law of respondent states by entering, or he respects their law and stays away.
“The very existence of the law infringes on his right under the treaty to freedom of movement,” Gifford insisted.
Gifford concluded saying that the case raised before the court concerns a real problem: “It is certainly not frivolous…. Since there is no indication that the respondents will change the legislation themselves, it is only through this court that relief can be granted.”
Belize was represented at the CCJ hearing, held via video conference, by Acting Solicitor General Nigel Hawke, appearing in Belize with Crown Counsels Iliana Swift and Herbert Panton.
In explaining the case to the Belize press, Hawke said that the facts of the case are not disputed, but the question is whether there is potential prejudice against Tomlinson.
In defending the Trinidad law, Seenath Jairam, SC, told the court that the Belize and Trinidad laws were promulgated in the 1950s and 1960s – in an era when society was “homophobic.” Jairam said that he gathers the position has changed. He also spoke of antiquated local laws within CARICOM which need to be reviewed.
In addressing that comment, Hawke said that this is Jairam’s understanding or opinion.
“Yes, we concede the fact that there are some laws on our books that are sort of outdated, but we maintain that even with respect to this particular aspect of our law that is repeated in our Free Movement of Skilled Nationals Act [of 1999] [also barring prostitutes and homosexuals who earn financial gains from their sexual activities]…. I think Parliament must have meant something why they put it there,” Hawke told us.
Hawke said that the Immigration provision strictly deals with persons who come into Belize for employment purposes. He said that the Skilled Nationals Act also gives some clarity as to what meaning the legislation attaches to the Immigration provision which Tomlinson is disputing before the CCJ.
Although the Belize team is contending that the matter should not go to hearing, Hawke accepted that the court can grant Tomlinson special leave as long as they establish that he has put forward an arguable case.
“In his own affidavit, [Tomlinson] admitted that he has been to Belize twice and he has never been denied entry. What he has said is that after that he subsequently discovered that there is a provision in our Immigration Act that basically he is saying is an impediment to him, and so since the matter is sub judice, we wait to see what the courts have to say…,” said Hawke.
In laying out Trinidad’s position, Jairam said that it is the application of the law by Trinidad which matters, and there is no stronger evidence than that presented by Tomlinson himself that he has visited Trinidad four times without hindrance or impediment.
Jairam told the court that Tomlinson’s case is based entirely on speculation and that the case itself is merely an academic exercise for which actual evidence to support the allegation of violation to his right to free movement had not been presented to the CCJ.
The court asked Jairam, “Are you saying that Trinidad and Tobago will allow a homosexual to visit?”
Jairam noted the case of a Belizean transgender individual, Mia Quetzal of Orange Walk, who claimed to have faced ridicule when he showed up at Immigration in Trinidad, femininely attired. He was questioned by Immigration on why the passport indicated he is of the male gender, yet he appeared to be a female.
Jairam told the CCJ that the problem in this instance was an identity issue; it was not a homosexual issue. He said that the situation was clarified and Quetzal was allowed to enter Trinidad.
Jairam said the Trinidad Government does not require a CARICOM national to obtain a special permit to enter – as was the case with Elton John, who is not a CARICOM national.
He told the court that there is no need for the CCJ to issue any declaration on the matter, since Tomlinson has not suffered any prejudice in traveling to Trinidad.
Jairam insists that Trinidad’s practice in relation to Immigration procedures puts the country in compliance with the Revised Treaty of Chaguaramas.
Likewise, Belize asserted that it has not violated Tomlinson’s right to free movement, and Hawke told the court that there is no need for the court to venture into giving declaratory relief in the case.
The CCJ will issue its ruling on Tomlinson’s application after deliberating on today’s proceedings.
Of note is that while the Belize law addresses financial gains from homosexuality in the Immigration legislation, it does not touch on the gamut of sexual orientations and identities now dubbed LGBTTIQQ2SA in Canada – Lesbian, Gay, Bisexual, Transsexual, Transgendered, Intersexual, Queer, Questioning, 2-Spirited and Allies or otherwise now known as LGBTQQIAAP: Lesbian, Gay, Bisexual, Transgendered, Queer, Questioning, Intersex, Asexual, Allies and Pansexual.
Also, under a new practice which Belizean officials have adopted, prostitutes are now called “sex workers” and homosexual males: “men who have sex with men.”