Caribbean Court of Justice (CCJ) has dismissed an application in its original jurisdiction by homosexual Jamaican attorney Maurice Tomlinson against the immigration laws of Belize and Trinidad and Tobago. Tomlinson alleged that the existence of laws purporting to deny homosexuals and prostitutes entry into both nations discriminated against his right to free movement under the Revised Treaty of Chaguaramas; however the court found that he had no valid reason to assume his rights would not be respected under either state’s law, since he had provided no evidence of same. Here is how Justice Rolston Nelson explained it via video from the CCJ:
Justice Rolston Nelson, CCJ COURTS: The court holds that Tomlinson has no valid reason to assume that his rights will not be respected by these states. The reasons for this conclusion are twofold: first, state practice in relation to Section 51E of the Belize Immigration Act and Section 81E of the Trinidad & Tobago Immigration Act does not suggest any incompatibility with the RTC or the 2007 conference decision. Secondly, the practice or policy of admitting homosexual nationals from other CARICOM states not falling under the two exceptions mentioned in the 2007 conference decision is not a matter of discretion but is legally required based on Article Nine of the RTC, as this is an appropriate measure within the meaning of that provision. Given the transformation of this treaty provision into domestic law, this legal requirement equally exists within the domestic legal order of the members states, notwithstanding a real or apparent contradictory provision in the national immigration act.
Each party pays its own costs. Speaking after the ruling, Deputy Solicitor General Nigel Hawke claimed vindication for Belize but allowed that there are still questions to be answered for which he would read the judgment further.
Nigel Hawke, Deputy Solicitor General: Mr. Tomlinson application has been dismissed based on what the court said. We have to read the judgement fully in order to give you a proper understanding but based on what the court said we know the application is dismissed based on state practice and the fact that Mr. Tomlinson did not ever come to Belize. in fact what the court was saying he basically was trying to preempt the states of Trinidad and Tobago and Belize. So on that bases the court dismiss the application. So, we vindicated that all position all along was that our state practice was fundamentally different.
Reporter: Is the state of Belize served by this particular judgment sir?
Nigel Hawke, Deputy Solicitor General: Well, I don’t really say we was served. When we read the judgement the reality is we are part of CARICOM and I guess we have to look at the judgment know and take steps to see what we need to do in relation to our laws, but clearly the court mentioned article 9 which they in any event supersedes the domestic provisions in our laws.
Reporter: Is there any discussion on whether or not this issue can become live as is alleged by Ms. Maurice Tomlinson?
Nigel Hawke, Deputy Solicitor General: I have to read the judgement. We have to wait and see but from where I stand all I can say is this. The issue in relation to community law is evolving, so every now and then you might have cases coming up but based on this one, what the CCJ has clearly said in this original jurisdiction is that based on our state practice Mr. Tomlinson could not succeed
Senior Counsel Lisa Shoman, who acted for Caleb Orozco in his 2013 challenge to the Section 53 Criminal Code provision against “unnatural crime” addressed where the matter goes from here:
Sen. Lisa Shoman, Attorney- Senior Counil: In terms of, because you realize it applies to foreign nationals coming into Belize and in terms of Mister Tomlinson, he’s argument was the revised treaty of Chagoramas which assures freedom of movement for CARICOM nationals as long as they’re not ‘Undesirable’. As the judge pointed out, the issue of clarification and skill really has little to do with it this is guarantee that all governments gave to citizens and so I believe that it would be open to Mr. Tomlinson or any other CARICOM foreign national that comes in and is denied entry on the basis of homosexuality for that person to then apply again at the CCJ. In my view this was just a ruling that really goes to a technical basis which is that there was no actual denial of his rights and therefore he didn’t make out what he applied for, that’s why the application was dismissed . My sense however, is that had Maurice Tomlinson come to Belize and had he actually been denied entry on the basis of being a homosexual then there would have been a live issue in terms of the Revised Treaty of Chaguaramas. And my belief is that the decision in Myrie would actually dictate that Belize’s domestic law cannot stand up in terms of CARICOM nationals if it is refusing CARICOM nationals entry on the basis of being a homosexual. So that will remain to be seen. Knowing Mr. Tomlinson I am sure he is not going to be content to simply leave this as is. It is a novel point of law however as it is interesting and important. I remind all of us that we still have the Caleb Orozco matter outstanding for decision in Belize, that’s been some three years now and we’re seriously hoping that we’re going to get a decision very soon in that matter because these are the things that help to develop the jurisprudence in the Caribbean
While Maurice Tomlinson’s case is over for now, the Belize Supreme Court matter involving Caleb Orozco for which judgment was reserved in May 2013, has not had a decision as of three years later.