gspottt•t&t's triggersite for sogi passion & advocacy

12 November, 2013

Gay Day at the CCJ: Pt. 2

Filed under: Belize,Caribbean,CARICOM,courts,human rights,Jamaica,laws — caiso @ 23:39
Lord+Gifford+Stand+with+Jalna+Broderick+JASL+Maurice+Tomlinson+AFW+Susan+Goffe+JFJ

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.

20090421nigel-206x300

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.

5-1A_SEENATH_JAIRAM-SC

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.

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)

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

 

Advertisements

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.

Screen Shot 2013-10-24 at 12.19 AM 1

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.

CARIBBEAN-COURT-OF-JUSTICE

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.

HomePic7


[*] 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.

16 April, 2011

Mia Mottley, Champion for Change

“I wonder if you know how good that was”, the Chair of the Barbados National AIDS Commission asked the former Barbados Deputy Prime Minister, Attorney General and Leader of the Opposition as she had just concluded another of the inspiring and visionary addresses she is well-known at home for delivering completely unscripted. But it wasn’t just any other Mia Mottley speech. The hard-hitting and truth-telling early morning address, which she began by playing in its entirety the 2006 anthem, Do You Still Care, for which Jamaican mouldbreaking songstress Tanya Stephens is best known in GLBT communities, by its end had riveted listeners to a standing ovation with its call to clarify our values and its framing of a set of questions that Mottley has repeatedly challenged us to answer as Caribbean people:

What kind of society do we want to build? What kind of children do we want to raise? And what do we have to show for having had control of our nations for two generations since Independence?

Click on Mia Mottley’s image to listen to her full speech

Reminding her audience at Port of Spain’s Hyatt Regency hotel that as a region the Caribbean has always “punched above our weight”, the Member of Parliament for St. Michael North East since 1994 admonished that “leadership is more than being a head of government”, but “about recognizing where we want to take our people, why we must take them there” and “sometimes that means being ahead of your population”. “We have a credible voice that must be heard as a guiding principle to the rest of the world”, she urged, on “building tolerant societies”. “Name me one other region that has been forged in the modern exploitative era…that carries every race that has populated this world within this small basin that have been forced to live together, that have been forced to forge an accommodation with each other. We have a story to tell to the rest of the world. And we have a credibility in telling that story, and our voice therefore must be heard, because it costs nothing to speak.”

At the same time, she drew laughs of recognition as she lamented the cancer of “implementation deficit disorder” that currently plagues the region, with “systems of parliament that are rooted in excessive partisanship that is a battle between political institutions, rather than being a fight to carry forward development and people” and “systems in our public service and other aspects of our governance that are so complex and Byzantine, that not even the Romans would recognize them if they returned today to be responsible for global governance.”

The March 24 plenary address was intended to set the tone at a United Nations consultation on universal access to HIV prevention, treatment, care and support, intended to prepare the Caribbean region for participation in the June High Level Meeting of UN member states on AIDS. The meeting drew government ministers and senior officials from Dominica, the Dominican Republic, Grenada, St. Kitts-Nevis, St. Lucia, St. Vincent & the Grenadines, Suriname and Trinidad & Tobago. Most listeners would agree Mottley’s speech was one of the most powerful and cogent things to happen at any of the series of regional meetings that have become well-known as of the key ways we spend HIV money in the Caribbean. In it she called for the creation of a Caribbean Human Rights Charter and for tolerance education to be part of the Caribbean Examinations Council curriculum. And three weeks later she was back at another UN HIV meeting this week in Port of Spain, spurring human rights lawyers and activists in the region to found a Caribbean Coalition for Social Justice, and taking steps towards the creation of a Caribbean Law Reform Commission.

Mottley’s countryman Henrik Ellis wasn’t the only one who thought the speech was breathtaking. I-95.5FM Radio’s Dale Enoch broadcast it in its entirety the following day; and responding to meeting participants’ advocacy, UNAIDS’s Caribbean team has graciously posted both the video of the speech and a transcript prominently on their website. These words, perhaps more than any others were the ones that reached home:

The battle against the abolition of the slave trade took, like, decades. And the battle against the slavery institution also took decades. And the battle for independence took decades. We have already started with a few decades in the battle for a common gold standard of regional human rights. But the time has come upon us to up the ante, and to call on the region to protect your own. You cannot accuse those who governed you through colonial exploitative regimes of perpetrating crimes against you, or taking away from you your dignity and your ability for controlling your destiny – and then when you have control of your own societies for two generations of independence, you are not prepared to secure the rights of every individual irrespective of whatever differences that may occupy the human race. It is unacceptable. And the time has come for it.

1 January, 2011

Happy New Year!

Standing up for human rights

Published: Saturday | January 1, 2011

The Editor, Sir;

As CARICOM citizens, we are proud that a majority of Caribbean nations stood up in the United Nations General Assembly on December 22 and voted together, in the words of the Rwanda delegation, to “recognise that … people (of different sexual orientation) continue to be the target of murder in many of our societies, and they are more at risk than many … other groups”.

Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, the Dominican Republic, Grenada and St Kitts-Nevis joined 85 other nations in voting specifically to mention sexual orientation, in a biennial UN resolution, as one ground of vulnerability for being murdered or executed unlawfully for who you are.

All but one of our Caribbean governments had supported an effort in committee by a bloc of Arab, African and Islamic nations, several of which execute gays and lesbians or would like to, to remove the reference. We appreciate their responsiveness, with the notable exception of Trinidad and Tobago, to our reasoned appeals. We salute the foreign ministries of Belize and Jamaica who communicated with gay and lesbian voters about their December vote, a welcome measure of accountability and transparency in our foreign policy.

Non-discrimination

On the other hand, the St Lucia delegation seems not to have listened to their prime minister’s pledge in Parliament this April to “stand against stigma and discrimination in all its forms” and “guarantee non-discrimination against persons on the basis of sexual orientation”. St Lucia stood apart from CARICOM in voting no.

We, in the Caribbean, have lived largely free of the levels of violence experienced by postcolonial nations like Rwanda . But we continue to harbour a colonial mentality that some groups are more worthy than others; and homophobic killings are a reality several places in the region. We hope that, without the need for atrocity to teach us this lesson, our governments will mature in their understanding that everyone has an essential right to equality and protection because they are human.

The vote is a hopeful sign that in 2011 Caribbean governments may get serious about their commitments to these rights at home.

I am, etc.,

MAURICE TOMLINSON

Montego Bay, Jamaica

on behalf of

Dr Marcus Day & Kenita Placide, St Lucia

Ashily Dior & Brendon O’Brien, Trinidad and Tobago

Vidyaratha Kissoon, Guyana

Nigel Mathlin, Grenada

Caleb Orozco, Belize

Daryl Phillip, Dominica

Victor Rollins, Bahamas

 


 

LETTER: CARICOM citizens congratulated for vote at UN Assembly,
Dominica News Online, 31 December 2010

UN vote a hopeful sign
Stabroek News, Guyana, 2 January 2011

Proud Caribbean voted together at UN
Guyana Chronicle, 3 January 2011

Recognising gays and lesbians
Royal Gazette, Bermuda, 3 January 2011

Everyone has an essential right to equality and protection
Kaieteur News, Guyana, 4 January 2011

Region making progress
Barbados Advocate, 5 January 2011

Stand up for human rights
Voice, St. Lucia, 6 January 2011

Everyone has a right to equality and protection
Nassau Guardian, 12 January 2011

4 July, 2010

J-FLAG stands up to CARICOM

Earlier today, the Jamaica Forum for Lesbians, All-sexuals and Gays (J-FLAG) mounted a “Stand Up to CARICOM” across from the entrance to the Hilton Rose Hall Resort, Montego Bay, site of the 31st CARICOM Heads of Government meeting, “because of the continued presence of anti-buggery laws in 11 of the 14 member states in CARICOM which contribute to discrimination, marginalization and other serious human rights violations of CARICOM citizens”. Members of the group bore placards calling for the immediate repeal of such laws and the full integration of LGBTI citizens into the CARICOM family”. The peaceful protest lasted 17 minutes before police professionallly asked the group to relocate due to security concerns.