Hearings conclude over homosexual travel ban in Caribbean

LGBTI rights activist Maurice Tomlinson provides this report on the final day of hearings at the Caribbean Court of Justice in connection with his case challenging the ban against gays entering Belize and Trinidad & Tobago.

Wednesday, March 18, was the final day of the case before the Caribbean Court of Justice (CCJ) challenging the laws that ban gays from entering Belize and Trinidad & Tobago. On the previous day, my lawyer presented my case, which in sum is that these laws, among other things, violate my rights to dignity, freedom of movement, and non-discrimination in the Caribbean Community (CARICOM).

The government of Belize then made their submissions, which principally were that the law was largely unenforced, there was an unofficial policy of ignoring it, and I should pay costs for bringing this action.  Wednesday was the turn for the government of Trinidad and Tobago, as well as the CARICOM Secretariat.

During his presentation, the experienced Senior Counsel for Trinidad and Tobago made several important and often startling statements:

• On the face of it, the immigration law appears to offend my right as a CARICOM national to free movement. (Lawyer-speak for: “We know that have a problem on our hands”)
• They have no issue with my request for a declaration that I have a right to enter Trinidad. (Translation: “This is what we are prepared to offer.”)
• Trinidad and Tobago had acted with “alacrity” (within a matter of months) to implement the CARICOM Skilled Nationals regime via legislation a mere months after it was enshrined in the Treaty. (So, one wonders why they are so reluctant to simply delete the word “homosexual” from the class of prohibited persons found in the Immigration Act)
• He would personally speak with the Attorney General and recommend that the Immigration Act be amended within the next two years in order to remove the offensive provisions.
• I jumped the gun with my case and I should have gone to Trinidad and been turned away before bringing this claim. (For reasons stated before, I would prefer not to spend all that money and go through all that trouble just to test whether the country will recognize my rights).
• The result of the legislation which seeks to enshrine the CARICOM Skilled Nationals regime is that all decisions of the CARICOM organs would become immediately binding on the state of Trinidad. (If true, this would have very far-reaching implications, as the Parliament of Trinidad would have effectively divested itself of its Constitutional duty to make laws for the country).
• With the threat of terrorism, we need to be careful about persons who present themselves at immigration in a different gender than that indicated in their passports. (So, Trans* persons should expect long and intrusive examinations when they travel into Trinidad and Tobago).
• I was xenophobic in not first going to Trinidad to see if I would be turned away. (Justice Anderson quite rightly pointed out that xenophobia was clearly not relevant to this discussion – after all, I had visited the country before – and I was simply desirous of legal certainty before I spent money booking a ticket to Trinidad only to face the possibility of being turned back at the airport).
• I clearly have an agenda in bringing this claim. (I unreservedly admit that my “agenda” is to have all peoples of CARICOM treated equally, especially with regard to characteristics that they cannot control and/or which harms no one).
• Trinidad is a small resource-challenged state so we can’t expect them to amend archaic laws quickly. (This is ironic, considering that Trinidad is an oil-rich Caribbean state that “acted with alacrity” to implement a very complicated regime for free movement of skilled nationals a mere months after the treaty obligations were imposed. It is also incredibly disingenuous to argue that removing one word: “homosexuals” from an Act, which the state admits they have no intention to enforce, would put a significant strain on the financial and technical resources of the state, when the same state was willing to field a large legal team – twice the size of any other party – for two full hearings and submit reams of legal arguments and authorities, again in defense of a law that they claim they don’t plan to enforce!)
• The country’s unique culture (I suspect this means intolerance towards homosexuality) means that it should not be expected to adopt inclusive policies. (This is ironic as a recent UNAIDS poll showed that an overwhelming majority of Trinidadians (nearly 2/3) felt that the ban on gays entering the country should be repealed)

The lawyers for the Caribbean Community made the following principal submissions:

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• Freedom of movement is a right in CARICOM and so it has to be protected by enforceable legal obligations. An unwritten policy of an immigration department would not provide the requisite certainty.  The practice of not enforcing the ban shows an intention to allow gays entry but cannot be an enforceable right in any tribunal.
• The right to freedom of movement of spouses of CARICOM nationals must also be protected. (This would present an interesting scenario if any CARICOM member state eventually recognizes marriage-equality.  This would mean that the same-gender spouses of nationals from that state would be guaranteed the right to follow their partners anywhere in CARICOM. So, hypothetically, if Jamaica eventually recognized marriage-equality, then my Canadian husband could accompany me to work anywhere in the Caribbean without needing a work-permit).
• I am not a Skilled National under the treaty because I have not secured the requisite certificate. (This may actually work in my favor, as Trinidad’s Caribbean Community Skilled Nationals Act appears to supersede the immigration ban for gays who hold such a certificate.  However, the 2007 Conference Decision provides freedom of movement for all CARICOM nationals without the Certificate, yet we would still be barred from entering Trinidad by the wording of their Immigration Act).
• There is a Community Complaints Procedure that could have resolved this issue. (However, it is very new, not well known – the CARICOM Secretariat has never received any actual complaints under this system – and it is not mandatory so I still have the right to bring this claim to the CCJ).

I am exceedingly fortunate to have preeminent CARIOCM constitutional lawyer and lecturer, Douglas Mendes, SC, as my lead counsel, and the court took full advantage of his knowledge and experience.

So, while he was making his reply, the judges grilled him on some of the constitutional points raised by the attorney for Trinidad.  For example, the court wanted to know if in fact regional treaty body decisions would automatically become law in Trinidad.  This happens in the United Kingdom with regard to the decisions of the EU.  However, Mr. Mendes reminded the court that because the Trinidadian constitution vests the exclusive authority to make laws in Parliament, any decision of the CARICOM treaty bodies would first have to be brought to, and decided by Parliament.  In the UK there is no constitution that makes this requirement.  The impact is that, although CARICOM may have granted freedom of movement to all nationals of the region, and although Trinidad appears to have included this by reference in an overarching law, the government of Trinidad and Tobago (as well as Belize) would still have to take the step of actually repealing the section of the law that bars homosexuals.

As was expected, this case raised many novel points of law and the court has reserved its judgment.  It is expected that they will deliver their decision in the next three months.

Related articles:

• Caribbean Court Hears Suit Against 2 Nations’ Anti-Gay Laws (abcnews.go.com)
• Landmark gay rights case will challenge homophobic laws in Trinidad & Tobago and Belize (independent.co.uk)
• ‘My selfish reasons for fighting Jamaican homophobia’ (76crimes.com)
• CCJ reserves judgement in Maurice Tomlinson immigration case (jamaica-gleaner.com)
• Hearings begin over LGBT rights to travel in Caribbean (76crimes.com)