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o 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 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 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 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 posted on 12 november 2013 16 november 2013 author caiso sex and gender justice categories belize caribbean caricom courts human rights jamaica laws leave a comment on gay day at the ccj pt 2 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 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 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 it s 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 what s does the immigration law do and what is government s 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 ...