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12 November, 2013

Gay Day at the CCJ: Pt. 2

Filed under: Belize,Caribbean,CARICOM,courts,human rights,Jamaica,laws — caiso @ 23:39
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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.

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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.

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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.

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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

MORNING SESSION

AFTERNOON SESSION

 

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Gay Day at the CCJ: Pt. 1

Quite a bit of sensation and misreporting has been generated in the local, regional and international media about a proposed legal challenge to the immigration law of Trinidad & Tobago. A local television station reported that “An AIDS group in New York is suing the Government of Trinidad and Tobago for prohibiting the entry of homosexuals to the country…so offensive is the law that AIDS Free World has filed suit in the Caribbean Court of Justice…demanding that the discriminatory provision be expunged…The group says the government…does not have a leg to stand on and it is confident of…possibly changing the laws of this country”. Here are some clarifications of what’s actually taking place.

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What is this case about; and who is bringing it? There are in fact two cases. They are being heard jointly. A Jamaican national (who is also a gay activist and lawyer and works for an international organization, AIDS Free World, which is supporting his challenge and has been closely associated with the case in the media) is using the provisions of CARICOM’s Revised Treaty of Chaguaramus to make two similar claims with regard to the states of Belize and Trinidad & Tobago. Maurice A Tomlinson is arguing that the immigration laws of each nation which make homosexuals prohibited immigrants violate the freedom of movement provisions he ought to enjoy as a national of Jamaica under the Treaty, as well as his right to not be discriminated against based on his nationality by either state. Under the Treaty, disputes concerning its provisions and related rights are heard by the Caribbean Court of Justice (CCJ) sitting in its “original jurisdiction”. (The CCJ has also been given appellate jurisdiction as the final court for some Caribbean nations, including Belize; but it is not acting in that capacity here.) When an individual CARICOM national like Tomlinson seeks to bring a claim that their rights under the treaty have been negatively affected and that person’s state has either failed to bring the claim to the court on their behalf (something Jamaica did with Shanique Myrie[*]) or has agreed that the national should do so herself, the CCJ holds a hearing to listen to both sides and make a determination if these conditions have been met and if it is in the interest of justice for the national to bring the case directly to the Court. If it finds so, the Court can grant the applicant leave to do so. A decision is expected to be rendered at the conclusion of Wednesday’s proceedings.

The case is an innovative use of the CARICOM treaty to advance LGBTI equality and challenge some of the domestic laws that make LGBTI persons unequal citizens which exist in all CARICOM states. Because the provisions of the immigration laws being challenged target people who are not citizens of the respective countries, the non-nationals the laws affect are the people in a position to challenge them, and the Chaguaramas treaty provides such an opening for CARICOM nationals.

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Courts also allow parties other than a complainant to play a role in matters before the Court when they have a substantial legal interest that may be affected by the Court’s decision. Free movement of lesbian, gay and bisexual persons between CARICOM member countries, including to Trinidad & Tobago, where its secretariat is located, is critical to the mission of the 16-year-old Caribbean Forum for Liberation and Acceptance of Genders and Sexualities, a regional LGBTI advocacy network involved with such travel multiple times each year. CariFLAGS plans to become a party in the case, with the Court’s permission. CariFLAGS and CAISO will play an active role in educating the public about the case and the law. On Monday November 25 at 6:00 pm, a public forum will take place (tentatively at NALIS at Abercromby & Hart Streets in Port of Spain) with this goal. For updated information visit: www.facebook.com/caiso/events.

What is the suit seeking? Can the CCJ change our laws if its not our court of appeal? If the CCJ finds that Tomlinson’s rights have been infringed, as it did recently in the case of Shanique Myrie*, it is empowered under the Treaty to award damages as compensation and to make a declaration that the domestic immigration laws violate community rights. Because CARICOM countries have agreed, in signing the Treaty, to be bound by decisions of the CCJ in its original jurisdiction, Trinidad & Tobago and Belize could be subject to sanctions from CARICOM if they leave the laws unchanged after such a Court ruling. However, acting in its original jurisdiction, the CCJ cannot alter or strike down national laws the way an appellate court could.

images 10.17 PMWhats does the immigration law do, and what is Governments position on it? Trinidad & Tobago’s immigration laws, whose history dates back to before Independence, retain several antiquated provisions that reflect a historic preoccupation of many immigration codes around the world with keeping out disease, deformity, dependency, deviance, depravity and the darker-skinned. US immigration law, e.g., until 1990 had similar provisions excluding homosexuals, and still maintains references to “moral turpitude”. Our laws deem as “prohibited immigrants” homosexuals, as well as those who live off their earnings and those reasonably suspected of coming or attempting to bring others into the country for homosexual purposes. Each of these provisions is applied in the same stroke to “prostitutes” (Subsection 8 (1) and paragraph (e) of the Immigration Act of 1969). The laws also provide for the deportation of persons who practise, assist in the practice, or share in the avails of homosexualism (Subsection 9 (4) and paragraph (a)). Other groups deemed prohibited immigrants in the law are “persons who are idiots, imbeciles, feebleminded…suffering from dementia and insane…who are likely to be a charge on public funds…dumb, blind or otherwise physically defective” (Subsection 8 (1), paragraphs (a), (c) and (h)).

Ministry of National Security officials have stated that a committee reviewed the immigration law in 2010 and recommended legislative removal of the homosexual provisions; and an Immigration Division spokesperson has told the media that entrants are not questioned about their sexual orientation. When the Patrick Manning administration was pressed by Pastors Winston Cuffie, Terrance Baynes (later appointed a People’s Partnership senator), Archdeacon Phillip Isaac and other Tobago clergymen to enforce the law against Elton John in 2007, Trinidad & Tobago was lampooned by US television comedians, Chief Secretary Orville London declared “we in the Tobago House of Assembly are very clear that we do not support any ban on any individual on these grounds”, and the central government issued John a waiver to enter and perform at the Tobago Jazz Festival. But no bill has been introduced to amend the law, which continues to be an international embarrassment and to stigmatize LGBTI and other people, and 8(1)(e) could potentially be invoked by any zealous immigration officer.

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[*] This is not the first time a CARICOM national has petitioned the CCJ for redress for violation of Treaty rights. The Court recently ordered Barbados to pay Jamaican national Shanique Myrie BDS$77,240 as compensation for violation of her right to free movement when Barbados immigration authorities detained her upon entry, subjected her to taunts and cavity searches, kept her overnight and deported her to Jamaica the following day. All CARICOM nationals share these rights within the region under the Treaty.

7 February, 2011

Another step in the region towards bodily freedom, in Belize

Why do modern independent Caribbean states, where people have fought for centuries to free our bodies from enslavement, indentureship, control by our husbands, exploitation of our labour, colonial subjection, sexual harassment and prohibtions on dancing still defend laws that say that adults cannot use our bodies in mutually consenting ways with each other sexually in private? Why are only certain forms of sex between consenting adults against the law? Why aren’t other forms of sex, which are just as “unusual”? Or others that are unlikely to produce children, simply pleasure? Why are eating pork and beef and wearing headcoverings and extramarital sex not the subject of our secular laws, but homosexuality is?

Why would anyone committed to liberty deny someone of maturity control over her or his body and sexuality?

Although in many jurisdictions our laws against private sex are only occasionally enforced, they remain on the books and serve to legitimate violence, discrimination and stigma against gay men and lesbians whom they render “unapprehended felons”, as a South African jurist quoted in a judgment overturning that country’s sodomy laws. And their enforcement is technically just one election, or even one enterprising police officer, away.

The first constitutional challenge to the region’s colonially derived laws against sexual activity between consenting adults has been filed, in Belize, targeting a law against “carnal intercourse against the order of nature”, which in common law means anal sex.

Many of our regional Independence constitutions, through “savings clauses”, hold immune from constitutional challenge any of these archaic laws (like others which PNM MP Colm Imbert mocked recently in Parliament that address wounding pigeons, bathing in the Maraval River and hanging clothes out to dry in the front of a shop) that were  put in force in colonial times; these savings clauses in effect say the colonizers knew best. Belize’s constitution limited that period of immunity to five years. Trinidad & Tobago preserved our savings clause through our 1976 Republican constitution, and in a number of more recent proposals for constitutional “reform”.

We wish our Belizean GLBT counterparts, the community organizers there, and their visionary legal advocates the best success with this landmark lawsuit; and we hope their bravery and jurisprudence will benefit the region as a whole.

Statutory penalties in the Caribbean for consensual sexual activity between two adult human beings; and the most recent date of the law’s enactment
Antigua & Barbuda 1995 15 years sexual intercourse per anum by a male person with a male person or by a male person with a female person
5 years an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire (unless committed in private between a husband and his wife; or a male person and a female person)
Bahamas 1991 20 years any adult male who has sexual intercourse, in a public place
20 years any female adult who has sexual intercourse, in a public place
Barbados 2002 life buggery
10 years an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire, on or towards another or inciting another to commit that act with the person or with another person
Belize 2000 10 years carnal intercourse against the order of nature with any person
Dominica 1998 10 years; psychiatric hospitalization for treatment at the discretion of the Court sexual intercourse per anum by a male person with a male person or by a male person with a female person
4 years; psychiatric hospitalization for treatment at the discretion of the Court attempt to commit sexual intercourse per anum by a male person with a male person or by a male person with a female person
5 years an act other than sexual intercourse (whether natural or unnatural) by a person involving the use of genital organs for the purpose of arousing or gratifying sexual desire (unless committed in private between an adult male person and an adult female person)
Grenada 1958 10 years unnatural connexion
Guyana 1893 life buggery with a human being
10 years attempts to commit buggery
2 years any male person, who in public or private, commits, or is a party to the commission, or procures or attempts to procure the commission, by any male person, of an act of gross indecency with any other male person
Jamaica 1864 up to 10 years hard labour the abominable crime of buggery with mankind
up to 7 years, with or without hard labour attempt to commit the said abominable crime
up to 2 years, with or without hard labour any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person
St. Kitts-Nevis 1990 up to 10 years, with or without hard labour the abominable crime of buggery
up to 4 years, with or without hard labour attempt to commit the said abominable crime
St. Lucia 2005 5 years; psychiatric hospitalization for treatment at the discretion of the Court attempt to commit sexual intercourse per anus by a male person with a male or by a male person with a female person
10 years (5 years on summary conviction) an act other than sexual intercourse (whether natural or unnatural) by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire (unless committed in private between an adult male person and an adult female person)
St. Vincent & the Grenadines 1990 10 years commit buggery with any other person; permit any person to commit buggery with him or her
5 years commit an act of gross indecency, in public or private, with another person of the same sex, or procure or attempt to procure another person of the same sex to commit an act of gross indecency with him or her
Trinidad & Tobago 1986 25 years sexual intercourse per anum by a male person with a male person or by a male person with a female person
5 years an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire (unless in private between a husband and his wife; or a male person and a female person)