Maurice Tomlinson & Anthony Gifford QC “stand” at Kingston’s Emancipation Park, Sept. 2010
Today the Caribbean Court of Justice, sitting in its original jurisdiction, heard arguments via teleconference by legal representatives of Maurice Tomlinson, the state of Belize and the state of Trinidad and Tobago. Lord Gifford, QC, representing Tomlinson, petitioned the court to allow Tomlinson leave to bring a case before the court, seeking redress for violations of his free movement rights guaranteed under the Revised Treaty of Chaguaramas to nationals of CARICOM member states. He alleges that sections of the immigration laws of Belize and Trinidad and Tobago which prohibit the entry of homosexual persons into those countries, violate his rights. The hearing today was simply to determine whether Tomlinson, a homosexual, can bring the case which, if granted permission, he will bring in the near future.
Gifford presented his case that leave should be granted, to which Belize and Trinidad and Tobago responded. Gifford was then allowed to respond to the states’ arguments. Both Belize and Trinidad and Tobago argued that Tomlinson should not be granted leave to bring the case. The Solicitor General of Jamaica also submitted a brief in the case which makes the case that Tomlinson is not eligible for leave.
Belize, by its lawyer, Ag Solicitor General Nigel Hawke, argued that the term ‘homosexual’ as used in the Belize Immigration Act referred to a homosexual prostitute and not just a homosexual, although the Act prohibits ‘homosexuals’ on a plain reading of it, naming as 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 behaviour” (5(1)(e)). This prompted Justice Nelson to press Gifford whether the law must indeed be read that way, whether homosexual behaviour is a sort of occupation, something you can live off of. Hawke argued that his interpretation reflected the Belize government’s position and referred to the written testimony submitted on behalf of the Belize government, saying that Belize Immigration Authorities do not prevent homosexuals from entering Belize. He referred to the fact that Tomlinson himself had entered Belize four times.
Appearing for Belize Nigel Hawke
Tomlinson says in his written testimony that he had been to both Belize and Trinidad and Tobago on multiple occasions, prior to knowing of the laws. He says that since he came to know of them, he has had to refuse invitations to visit both countries. Gifford relied on cases to show that even if the government claimed they didn’t enforce a law, it could still operate to restrict people’s rights. The essence of the argument runs that the law makes de facto criminals of homosexuals who enter, forcing some people to alter their behaviour. In Maurice’s case the behaviour which was altered (travelling to Belize and to Trinidad and Tobago) was a behaviour he was entitled to by right as a national of a CARICOM member state.
Gifford also cited the little-known CARICOM Civil Society Charter and its equality and dignity provisions, but the Justices questioned its binding nature on the states.
The court seemed unsatisfied by the Belize government’s written evidence that they didn’t prohibit homosexuals, questioning Hawke as to whether they should require further evidence. Justice Nelson even asked Hawke what was the relevance of state practice, inviting him to respond to Gifford’s arguments that the law in and of itself restricted Tomlinson’s rights, irrespective of whether the state enforced it or not. Hawke contended that Belize’s practice of not prohibiting homosexuals evidences the Belize government’s interpretation of the law as argued by Hawke.
When asked whether the court should issue a declaration that the allegedly offending section of the law referred to homosexual prostitutes only as argued by Hawke, Hawke responded that that wasn’t necessary because the Belize government already understood it to mean that.
Also on the legal team for Belize were Crown Counsels Iliana Swift and Herbert Panton, and for Tomlinson Anika Gray.
Appearing for Trinidad & Tobago Seenath Jairam SC
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.
The court reserved its judgment which
we expect will be delivered tomorrow we have learned may come down any time over the next three months.
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)
Listen for yourself – though the audio’s really bad in parts:
CCJ Application No. OA 001/002 of 2013 Maurice Arnold Tomlinson v. The State of Belize & v. The State of Trinidad and Tobago