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