CCJ Dismisses Gay Activist case due to lack of evidence .

Well the long awaited judgement on the immigration action brought against the state of Belize and Trinidad has come to hand. I was not hopeful as it was clear to myself and others as we watched the proceedings via live stream at the time when the fundamentals were being pursued by the prosecuting attorney for Trinidad.

Questions were asked of the claimant Tomlinson as to whether he actually declared he was gay at the point of entry and if the immigration team refused him such at the time as he was attending an event to which he said no.

The Caribbean Court of Justice, CCJ has dismissed the case filed against Belize and Trinidad and Tobago by Jamaican Gay activist Maurice Tomlinson.

Mr. Tomlinson had brought a case regarding circumstances concerning his entry into both countries.

Tomlinson is an attorney at law.

He had alleged that he has been prejudiced in the enjoyment of his right as a CARICOM national to enter Belize and Trinidad and Tobago without hassle.

Tomlinson conceded that he was never refused entry into Belize or Trinidad and Tobago.

But he contended that the Immigration Acts in both countries, which purportedly include homosexuals as a class of persons prohibited from entering these territories – should be rejected by the CCJ.

Tomlinson argued that the mere existence of the statutory provisions prevented him from entering both countries since, in so doing, he would be breaking their domestic laws. Commendable in principle but to bring a case without definitive proof and expect to win on mere principle is not the way to go I contend.

He told the CCJ that his rights as a CARICOM national would be prejudiced in contravention of his right to free movement under Article 45 of the Revised Treaty of Chaguaramas.

The CCJ statement/release also read in part:

In the case of Belize, the Court, agreed with the State’s view that homosexuals (and others) are prohibited from entering the country only where they are seeking financial gain either by offering sexual services themselves or by profiting from those performed by others. As such, the provision would not be applicable to Mr. Tomlinson. 

Critically, the Court indicated, this interpretation is bolstered by the practice of the Immigration authorities of Belize who apply the legislation in a manner consistent with this interpretation. 

see the summary judgement HERE

The Court agreed with Trinidad & Tobago that their Immigration Act differs from the Belizean statute in that it appears to view “homosexuals”, as a category of prohibited persons, although the Court suggested that a more liberal interpretation of the Act was possible. It was shown, however, that Trinidad and Tobago’s Immigration Department does not apply this prohibition to homosexual CARICOM nationals. Therefore, the State argued, 

Mr Tomlinson should have no fear that he would be prejudiced in enjoying his right of entry. 

The Court agreed with this view, noting that Trinidad and Tobago’s practice of admitting homosexuals of other CARICOM Member States is not a matter of discretion (something they could choose to do or not to do) but a legal requirement based on Article 9 of the RTC. Similarly, Mr. Tomlinson, as a university graduate and Community national under Article 46 of the Revised Treaty of Chaguaramas, is entitled to a right to seek employment in, and thus to enter, CARICOM Member States and that these rights have been incorporated into the domestic laws of Trinidad and Tobago through the Caribbean Community Act, 2005 and the Immigration (Caribbean Community Skilled Nations) Act 1996. 

The Court concluded that (a) homosexual CARICOM nationals have a right to freedom of movement essentially on the same terms as any other CARICOM national and (b) the State practice of both Belize and Trinidad and Tobago is in keeping with that right. Nevertheless, the Court cautioned that Member States should strive to ensure that national laws and administrative practices are consistent with the right of free movement of all CARICOM nationals, and that this is a necessary component of the rule of law which is the basic notion underlying the Caribbean Community. The Court also emphasized that continuing inconsistency between administrative practices and the apparent meaning of legislation is an undesirable situation as the rule of law requires clarity and certainty, particularly for nationals of other Member States who are to be guided by such legislation and practice. 

The Court ultimately dismissed Mr. Tomlinson’s claims against Belize and Trinidad and Tobago and refused the requested remedies. 

Also see

CCJ Reserves Judgement In Maurice Tomlinson Immigration Case ....... No restrictions on Caricom gays, TT officials say

See the latest video of the actual proceedings HERE, HERE and HERE from the CCJ website.

Peace & tolerance

H

Independent candidate favours J’cans making decisions on Buggery & CCJ

PRESIDENT and founder of the United Independents’ Congress (UIC), Joseph Patterson says Jamaicans should be allowed to vote on major issues such as retaining the Privy Council as the final appellate court and repealing of the buggery law.

PATTERSON... we believe that when there are core fundamental issues that come before the people it should always be put to a vote.

“We believe that when there are core fundamental issues that come before the people it should always be put to a vote,” said Patterson who is seeking to represent the St Elizabeth North Eastern constituency as an independent candidate in the next general election. He was addressing reporters and editors at the Jamaica Observer weekly Monday Exchange at the newspaper’s head office in Kingston.

Speaking on the party’s national and foreign policies, he said Jamaica should not have a foreigner as a head of state and his party would be pushing for Jamaica to become a republic. He believed it was also unnecesary to have a head of state and a head of government.

“So we will be pushing for a combining of those two positions into one: having a democratically elected president who does not run under a party banner but runs independently and offers his or her views to the country and is elected on that basis,” Patterson said.

On the controversial call for the repeal of the buggery law by some groups, Patterson said it was the Jamaican citizens who needed to decide.

“As I have always said... it needs to be something that is put before the people. We need to have a good debate in the country whereby those who advocate for a certain lifestyle have a chance to clearly explain how they think that will benefit the country and those who are opposed to that lifestyle have a chance to clearly indicate why they oppose that position,” he explained.

Commenting on whether Jamaica should abandon the UK-based Privy Council as its final court of appeal, Patterson said the solution was “very simple. Once you get rid of The Queen as head of state and have a Jamaican head of state you would have dealt with that problem. We need to make sure that Jamaica is a sovereign nation,” he shared.

However, he questioned whether Jamaica could boast of being a sovereign state when it was currently operating under the dictates of the International Monetary Fund (IMF).

“After 53 years of being a so-called independent country, we now find ourselves where our policy makers, our legislators are actually acting on behalf of a foreign power in practically all the laws we have. Every new law that is introduced is one which is instigated, directed and required by a foreign power and my goodness we must not stand for that,” Patterson declared. “We need to say to ourselves enough is enough, we want our country back and we must understand what got us to where we are. A bad system of governance brought us here and we need a good system of governance to take us out of it.”

As it relates to Caricom, Patterson said he had always supported the position of National Hero and founder of the People’s National Party Norman Manley that there should be a Federation of Caribbean States.

“So if I had my way, I would be voting back then for a federation and I would vote now for federation. I believe the Caribbean people need to unite. We need to have one country, one set of resources, and become a powerful economic bloc in this area,” he said.

He noted, however, that Jamaica does not have the appetite for a federation now, hence the focus must be placed on uniting Jamaica. “If we unite as a country we can go out and help to unite the other countries and form a single, not just a market, but a nation of people because we are all related,” he said.

Patterson said he would definitely include Cuba and Guyana in that community because of the cultural connection, but pointed out that it would be up to individual countries to decide.

Guyana is already a member of Caricom.

“What I like about Cuba, while I despise communism, is they have stood the test of time against an aggressive power that has sought to prevent them from being who they wanted to be... I disagree with any international body or country trying to force another country to follow one path or another,” he said.

Patterson said his party intended to use various mediums to get his message out to the people, both those he is seeking to represent and the wider Jamaica. He noted that a core method of dissemination will be to connect with the people at the local level.

“As a result of that, from time to time we will be brought to the national fore like now,” he said, adding “In due time the message will be so powerful that we will hardly have to do anything. There will be people all over the place who want to share the message with others.”

Golding, Buggery And The CCJ

Source: Gleaner

It is a well-known truth that minority groups are often used as scapegoats when politicians need to leverage the support of the majority. After all, what better way to coerce action than to convince the privileged that a "vile, immoral and downright sinful" minority are a threat to their privilege?

That incessant need to suppress otherness is a central rallying cry; nothing binds us together like our shared prejudices. With all that known to me, I perhaps shouldn't, then, be surprised by Senator Mark Golding's vulgar political ploy regarding the CCJ, the Privy Council and buggery. And yet I am. For in seeking to play to irrational fears, the minister may have done harm to his own cause and, in the process, called into question a central plank of the Caribbean Court of Justice (CCJ).

Speaking at a forum on the regional court, the justice minister made comments warning those expressing a preference for the UK-based Privy Council to tread carefully. According to the minister, and I'm paraphrasing, there will come a time when the country's colonial-era buggery laws will be challenged in the Constitutional Court.

As Mr Golding sees it, the matter could end up before our final court, currently the Judicial Committee of the Privy Council. Golding goes on to forecast that such an eventuality would all but spell doom for the laws, because, according to him, the UK-based judges are more likely to apply contemporary British perspectives on same-sex relations, rather than any judicial rigour, in interpreting the validity or the laws. Granted. He may well be right.

But the argument becomes curious when the minister goes on to say that he would much rather a regional court that understands our regional realities, culture, history, etc. passing final judgment on the laws rather than an alien tribunal.

What are we to make of this argument? Is the minister suggesting that the Caribbean Court of Justice, far from being an independent arbiter of law, would apply "regional realities, culture and history" to judicial interpretation? For if he is, he is on very shaky ground, indeed.

It is my understanding that judges should interpret what is plainly before them, rather than seeking to create public policy, or satisfy the wishes of the majority. They should, as far as possible, resist the urge to make law. Those judges who breach their role by applying personal preferences should be seen as oddities.

What Mark Golding has done is dangerous. In his indecent haste to win over a majority of the Jamaican people, he has called into question the independence of the regional court. What's more, the minister may have even created unreasonable expectations in the minds of Jamaicans as to the functioning of the court.

It is not an exaggeration to suggest that the naked prejudice that informs attitudes to the buggery law may convince many Jamaicans to get firmly behind the CCJ - no pun intended.

Such an arrangement would force the court into a corner, and quite possibly cripple its hand as it relates to ruling on the law. The minister comes dangerously close to confirming a long-standing argument against the regional court, which is that it would not be immune to political pressure from Caribbean leaders.

Golding is guilty of indirectly applying pressure on the court. To be sure, we cannot know with any certainty how the CCJ would ultimately vote on the issue, but it is enough to be concerned about the effect of Golding's posture, and the reaction of our people to it.

Does this new posture from the minister suggest the CCJ may yet see the ballot? And if it does, what would happen if the people buy into Mr Golding's fearmongering, and the court decides to nullify the laws? Who would soothe the resentment and anger that would rip through this country? It would be something akin to betrayal of the Jamaican people.

Still, Golding is no fool. There is a strategy at play, vulgar though it is. He knows well the prevailing misconception that suggests there is an orchestrated plot by external forces to overthrow our cultural preferences on buggery.

What could be a greater threat than foreign judges, with gay sympathies, overruling our most cherished laws? For many Jamaicans, that idea invokes a strong phobia. The minister may be interpreted to be banking on that fear to bolster the position of his Government.

Finally, politicians must be careful that their actions may be seen as seeking to exploit bigotry and prejudice to achieve a political end. History is replete with tragedies that arose because of that very exploitation.

At the heart of the fearmongering are real people, who are hoping for a fair hearing on the extent of their liberties and freedoms. They deserve no less. If Jamaicans accept the Caribbean Court of Justice, let it be on the merits of that court, and there are many, and not out of fear and lies.

Those of us who accept the legitimacy of the CCJ believe the truth of its worth is enough to win the day. The minister should accept that, too.

Mark, let us not turn this debate into a naked conversation about buggery. The CCJ is worth more, and Jamaicans deserve better.

- Ricardo Brooks is chairman of the Jamaican Association for Debating and Empowerment.

also see a previous post: Justice Minister exploits homophobia to gain CCJ support on Gay Jamaica Watch and ....

JFLAG Tries to Clarify its Agenda 2014

J-Flag Says It Wants More Done For LGBT People

Health Minister Says Boldness Needed to Change Buggery Laws for HIV Prevention Work to be Effective

Foreign Affairs Minister says Govt should be cautious on gay rights issues in Jamaica

Holiness, hypocrisy and homosexuality …Pastors and the buggery law debate


CVM TV @ Sunrise on the Buggery review & JFLAG's 100 days hope for meeting with PM

Health Minister Ferguson on WAD '13 & FBOs fear of a Buggery repeal with future parachuted gay marriage

Promised Conscience Vote on Buggery in Jamaica was a fluke

PNP’s Bobby Pickersgill differs on Conscience Vote route to decide on Buggery Law 2013

Church defends Buggery Law ... 2013

Buggery Law challenges & overlooked judicial solutions 2013

PNP's Damion Crawford says it's highly unlikely buggery review will happen .....

PNP Wins ................Hope for LGBT People ??? 2011

"Outdated" Bail Laws to be changed but Buggery Laws remain ... how convenient Mr.Golding? 2010

an earlier podcast on the history of the law from 1533:

That Buggery Law (UK 1533), Grief & The Ill-informed (2nd Take) 21.10.15 

The CCJ: The Role of the electorate

In light of recent disturbing developments with regards to the politicization of the CCJ debate and the exploitation by the Justice Minister of homophobia to gain support for the debate and establishing the court as our final one I decided to post this entry here.

CCJ may unite church and state 

You can follow the more pressing matters on Gay Jamaica Watch HERE: Justice Minister exploits homophobia to gain CCJ support

Dr Paul Ashley, political analyst

The CCJ debate in the Senate is in full swing: lots of distractions,drama, and rhetoric but woefully devoid of substance.

We have expressed our discomfort with the decision of Jamaica’s final appellate resting solely on the vote of one Opposition Senator “exercising his conscience” and being anxious to be on “the right side of history”.

One of the key elements is the role of the citizens (not their elected representatives or their appointed agents) in the making of this decision. On strict Constitutional terms there is none.

The Constitutionalist:

The PNP Government has decided to replace the Privy Council with the CCJ as Jamaica’s final appellate court

The severing of ties with the Privy Council requires only a simple majority in both Houses. The government of the day has such a majority so that is a relatively simple exercise.

Both our Supreme Court and our local Court of Appeal are “entrenched”.

The UK- based Privy Council has stipulated that the replacement of the Privy Council (which was not entrenched in our Constitution) should enjoy the same level of protection (read entrenchment) as our Supreme Court and Court of Appeal.

The entrenchment of its replacement—the CCJ or our local final appellate court ----- requires the 2/3 majority in the case of the plainly “entrenched” plus a referendum for the “deeply entrenched” in addition to certain specified time periods.

The PNP Government is not into “deeply entrenchment” but mere “entrenchment” as stipulated by the UK- based Privy Council.

Should citizens have a say?

There is the view that to put such a “sensitive” matter to the public would expose the Judicial system to the vagaries ( and vulgarity ) of politics. Somehow this would “politicize” the matter—a somewhat dishonourable and ignoble exercise.

“We commit to a Constitution that is truly grounded in the will of the Jamaican people and pledge that, as soon as

possible after the General Election, we will seek consensus to pass the legislation required to achieve the main elements of constitutional reform that have so far been

agreed. 

 These include:

• A Jamaican Republic headed by a Jamaican

• Substitution of the Caribbean Court of Justice for the UK-based Privy Council and

• An updated Charter of Rights to reflect current thinking on human rights

Before taking effect, we will ensure that these constitutional changes are submitted to the Jamaican electorate for their approval.”

[Source: People’s National Party Manifesto 2007 Chapter 1; Constitutional Reform, p8] 

That commitment by the PNP represented a reversal of its position as highlighted by the Jamaica Observer in an article “Now PNP says it will put CCJ to referendum”, Friday, August 10, 2007

“The People's National Party (PNP) has made an about-turn in its position on the Caribbean Court of Justice (CCJ), promising to put the issue to a plebiscite within the next five years as part of other proposed changes to the Constitution.

The commitment is outlined in the ruling party's manifesto which it launched last night at The Courtleigh Auditorium in New Kingston.”

[their emphasis]

This commitment was given by a PNP government now headed by Party leader and Prime Minister, Portia Simpson-Miller and represents a departure from the stance taken by the PNP government under former Prime Minister PJ Patterson who, “had stoutly resisted calls by the Opposition Jamaica Labour Party (JLP) and rights groups for the CCJ to be put to a referendum.”[emphasis added]

It can be argued that the commitment was conditional on the PNP being elected to form the next government as the general elections were to be held on August 27, 2007. The PNP lost.

Some questions:

Did the PNP Government “politicize” the issue by reversing its position and including a commitment to involve the Jamaican electorate as soon as possible after the General Elections?

Was that a blatant vote catching exercise?

Was the substitution of the Caribbean Court of Justice for the UK-based Privy Council an agreed element of the constitutional reform?

What must be made of the fact that the PNP in its 2011 Manifesto seemed to revert to the original stance taken by PJ Patterson?

“We will also complete the long journey of de-linking from the Judicial Committee of the Privy Council as our final Court of Appeal and fully embracing the jurisdiction of the Caribbean Court of Justice.”

[Source: 2011 Manifesto of the People’s National Party p39]

No mention of:

1) the will of the Jamaican people;

2) seeking consensus of that which has been agreed;

3) submitting constitutional changes to the Jamaican electorate for their approval.

Is there any merit in the argument that the PNP, having "politicized" the issue in its 2007 Election Manifesto, sought to "de-politicize" the issue in its 2011 Election Manifesto?

Does any of this really matters as only a tiny portion of the electorate has read the Jamaican Constitution and/or any Election Manifesto?

ENDS

also see:
Lawyers' Christian Fellowship's hypocritical stance on CCJ but keep Buggery Law!

PM scolds gay-rights protesters in New York ........ challenges truthfulness of Homophobic Claim

Justice Minister reiterates his personal position on the Buggery Law, Anal Intercourse, Consent & Privacy

Portia Simpson - 'Uncouth behaviour of others to make me look less than polished'

When did anyone ask for gay marriage rights in Jamaica when we can't get basic tolerance ....

Opposition Leader sides with antigay groups on Referendum on The Buggery Law 2014

No Buggery Law Removal says Justice Minister, Gay Marriage parachuted in yet again May 2015

JFLAG Tries to Clarify its Agenda 2014

Vaz Says Constituents Stand Firm Against Homosexuality

also see: Holness Dithering On Homosexuality from 2011

"Outdated" Bail Laws to be changed but Buggery Laws remain ... how convenient Mr.Golding? 2010

Tolerance Ad case the Final Day – Tomlinson v TVJ, CVM and PBCJ

On the final day of the historic trial otherwise known as the tolerance ad trial a packed courtroom in downtown Kingston at the Justice Square grounds of the Supreme Court saw arguments from the lawyers representing CVM TV finalizing their submissions, the court indicated that a ruling will not be handed down before the end of this term by the end of July.

All parties accept that the claimant Maurice Tomlinson has a constitutional right to freedom of expression freedom to disseminate information that’s what the charter of rights provides where they differ is on whether that right prevails in this case Mr Tomlinson’s lawyer Lord Anthony Gifford has been arguing that his client should prevail given the power and reach of the free to air television station making them the only viable channel to reach a large chunk of the television audience but the media houses have been maintaining that Mr Tomlinson’s rights cannot trump their rights to control the materials they broadcast.

Solicitor General Nicole Foster Pusey (linked allegedly to the anti gay group Lawyers' Christian Fellowship, LCF) while acknowledging that there are competing rights on both sides said the court would have to carry out a balancing exercise in deciding whose right should prevail this is because the case against TVJ, Television Jamaica and CVM TV involves Mr Tomlinson a private individual suing two private entities that is the so called horizontal application of the charter of rights which the Solicitor General said the charter clearly allows.

PBCJ – Public Broadcasting Corporation of Jamaica is a government entity however its restriction of Mr Tomlninson’s rights by not carrying the ad has to meet the constitutional test of what is “demonstrably justifiable in a free and democratic society” it is clear the Solicitor General believes that the PBCJ has met that test since by law the station cannot carry paid ads such as that that has been offered by Mr Tomlinson, Mrs Foster Pusey said in light of this it is hard to see how the station could be said to have breached Mr Tomlinson’s rights.

Earlier today Javed Jaghai Education Officer of JFLAG spoke to platforms and constitutional challenges for minority groups on Nationwide radio's George Davis Live:

the ad in question

We wait as the learned judges Leighton Pusey, Brian Sykes go into deliberations to arrive at a decision.

Mr Tomlinson however being able to speak since the case has ended as comments are not allowed during a trial said "I can't say that I am hundred percent confident that the court will rule in my favour because they're such novel rights being contested and deliberated upon, I also think that the presentations were of such high quality on all sides that it would be impossible to say that one side will prevail based on what was presented and how the judges responded was such a well argued case.

Lawyers had argued that the station should not carry the ad as it may be against their editorial policy he responded:

"They have to get a special license that gives you a particular level of control over access to media it isn't granted to everybody those who have it have a particular level of power and as Justice Pusey commented with great power comes great responsibility." 

"They certainly have a right not to have that done to them" in response to anti gay voices opposing the airing of the ad "what is being portrayed if they were to actually see the ad has nothing of that calibre, it's an ad promoting respect and love for a particular Jamaican who just happens to be gay." 

Meanwhile reparative therapy advocate Reverend Al Miller (the driver in the cartoon above) who despite his own court battle of assisting a known criminal that being now imprisoned Christopher "Dudus" Coke and harbouring a fugitive who was found cross dressed in the Reverend's company to evade local authorities to a foreign state that being the US embassy and his dubious missing gun case the appeal of which he lost in February of this year  has jumped on the bashing bandwaggon claiming if the ad was aired then he and other pastors would strongly object. 

Strange that since the awful murders of four children in less than forty eight hours not a sound of remorse has come from these anti gay and homophobic voices but they are loud when it comes to rights and recognition towards same gender loving people. What moral authority does he have?

previous sentiments some months ago:

Rev Al Miller says gay lobby is using the guise of tolerance to get the nation to accept the “gay lifestyle”

Gleaner link: Reverend Al Miller has been found guilty of negligence resulting in the loss or theft of his licensed firearm.

Peace and tolerance

UPDATE JUNE 3, 2013 the lawyer is contemplating taking the another matter originating in Trinidad and their refusal to allow him entry recently to the Caribbean Court of Justice the CCJ:

H

BONUS: discussion on whether Jamaican media is homophobic

UPDATE June 5, 2013
Gleaner EDITORIAL - PBCJ In The Debate For Tolerance

and

Church Stands Resolute Against Buggery Backers says Al Miller ………… Love March Movement Lacks Moral Compass says LGBT voice 

UPDATE June: Another case to watch for June 25, 2013

See more click here