Check back later for our blog on more details on today’s hearing of the CARICOM treaty challenges to the immigration laws of Belize and Trinidad and Tobago held at the Caribbean Court of Justice all day today. Three witnesses, the applicant Maurice Tomlinson and the acting immigration directors of both countries were cross-examined. Then Tomlinson’s lawyer, Trinidad & Tobago Senior Counsel Douglas Mendes, was grilled by the judges for almost three hours. Belize solicitor general Nigel Hawke concluded his statement and the court adjourned to tomorrow at 9am T&T time, when Trinidad & Tobago will present their case and CARICOM will also make arguments.
Three specific recommendations for constitutional change were submitted
jointly to the Trinidad & Tobago Constitution Reform Commission by
Richie Maitland, Staff Attorney, CAISO • Lynette Seebaran Suite, Board Chair, ASPIRE • J Carolyn Gomes, Executive Director, CVC • Dona Da Costa Martinez, Executive Director, Family Planning Association • Luke Sinnette, Executive Member, Friends for Life • Jeremy Edwards, Director, Silver Lining Foundation • Stephanie Leitch, Founder, Womantra • Sharon Mottley, Director, Women’s Caucus of Trinidad & Tobago
in response to the Absence of Human Rights Recommendations in the
27 December 2013 Report on the National Consultation on Constitutional Reform
26 February 2014
“Several of our groups’ stakeholders and others in our communities participated in and contributed to the national consultations throughout 2013, where we noted the dominance of two concerns we share deeply:
a) the weakness or ineffectiveness of mechanisms for government and institutional accountability; and
b) that particular groups advantage members of their own unfairly, and respect for human dignity is selective and not universal.
Chapter 1 of the Consultation Report opens with observations about the vulnerabilities of citizens in small states to majoritarian democracies; that in Trinidad & Tobago “the state has emerged as a an agent of victimization”; and cites the need for more rapid development of a “a culture of scrutiny of public officials by dedicated institutions that are expected to play an enquiring role” (paras. 21-22, p. 6). These are fundamentally issues of human rights, an area in which the Commission Report, unfortunately, proposes no amendments to the Constitution (p. 13), and a dimension in particular need of strengthening in our national “political culture”, the concern with which the Report concludes.
We urge the following:
- Enshrinement within the Constitution of an independent National Human Rights Institution compliant with the “Paris Principles”, which would create an effective structural mechanism (unlike the Office of the Ombudsman, described as “ineffective”) to monitor, protect and promote human rights in Trinidad and Tobago, and entrench a national and institutional culture of respect for human rights, grounded in the Constitution
- Elimination altogether of the Savings Law Clause, Section 6, which the Report, without any discussion or explanation, recommends ((c), p. 13) continue to immunise from constitutional challenge any law in force prior to 1 August 1976 that violates fundamental human rights and freedoms
- Addition of “sexual orientation” and “gender” as prohibited axes of discrimination in the Bill of Rights, Section 4 – issues to which the Report affords significant importance and more attention than any other human rights consideration (p. 2; para. 14, p. 4; paras. 56-62, p. 12; p. 13).
Today the Caribbean Court of Justice, sitting in its original jurisdiction, heard arguments via teleconference by legal representatives of Maurice Tomlinson, the state of Belize and the state of Trinidad and Tobago. Lord Gifford, QC, representing Tomlinson, petitioned the court to allow Tomlinson leave to bring a case before the court, seeking redress for violations of his free movement rights guaranteed under the Revised Treaty of Chaguaramas to nationals of CARICOM member states. He alleges that sections of the immigration laws of Belize and Trinidad and Tobago 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.
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.
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.
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
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 do not support any ban on any individual on these grounds”, and the central government issued John a waiver to enter and perform at the Tobago Jazz Festival. But no bill has been introduced to amend the law, which continues to be an international embarrassment and to stigmatize LGBTI and other people, and 8(1)(e) could potentially be invoked by any zealous immigration officer.
[*] This is not the first time a CARICOM national has petitioned the CCJ for redress for violation of Treaty rights. The Court recently ordered Barbados to pay Jamaican national Shanique Myrie BDS$77,240 as compensation for violation of her right to free movement when Barbados immigration authorities detained her upon entry, subjected her to taunts and cavity searches, kept her overnight and deported her to Jamaica the following day. All CARICOM nationals share these rights within the region under the Treaty.
We’re always talking about young people taking the lead on issues of sexual orientation and gender identity, and politicians acknowledging that the LGBT community needs protection against discrimination in Trinidad & Tobago. Just this week, we might’ve got both. At a People’s National Movement rally in St. Barb’s, Laventille, youth speaker Joshua Hamlet went on the podium to say that LGBT people need the Equal Opportunity Act, and that “we cannot make it about people (individuals), it needs to about the issues of the everyday person”.
Not only does this mean that people – especially young people – are taking stands in their own ways to speak out against discrimination on the basis on sexual orientation, but that politicians (at least within the PNM) can’t ignore that this is a real issue in our country. Remember in 2009 when their then Gender Minister and current Chief Whip, Marlene McDonald, said that they were “quite categorically” against dealing with our issues? Now these same issues are coming back on their own platform in a completely different way. CAISO has its own fair share of young members, and I speak not only as one of those youth but as someone who knows Mr. Hamlet personally. As a student, and activist and a friend, Joshua has always been the kind of guy that I thought our country needed on gender and sexual orientation issues, because of his insight and willingness to put himself out there for a cause no matter the arena, much like he has done here.
CAISO believes that every political party here in Trinidad & Tobago should be focusing on the issues of every single member of its society, and that the human rights of those members should not be ignored. And that is why it feels so good that a young man would stand from within a party of his own accord and say what he said. With the country approaching its 50th birthday, we should be talking about ways our country and democracy truly include every single person regardless to creed, race or sexual orientation. And it may very well be happening, in some small way, now.
We at CAISO salute you, Mr. Hamlet, for the courage to speak up on these issues in one of the places it matters the most. We truly hope that people in the PNM, and in fact every politician, is listening.
The job is to build hope and capacity for making change in our communities, to help forge alliances with others, and to manage training, meetings and advocacy campaigns, actions and communication.
You’ll have to coordinate logistics, coach and inspire community advocates, travel, build your political knowledge and analysis, be savvy about computer and communications technology, keep up with administrative tasks, and work flexible hours. That means thinking ahead, having people and team skills, and being self-starting and adaptive.
Candidates should have done organising and mobilisation work in T&T or elsewhere in the Caribbean, understand political processes, know how to get around our communities, and have a depth of knowledge and comfort working with GLBT issues. The strongest candidates will have managed volunteers, have existing ties to issue and political work, be competent at facilitation and training, and bring new skills and diversity to the CAISO team.
Email us a resume and at least two references who can speak to your ability to meet the criteria above. Feel free to call us to chat about your interest: 758-7676.
In the coming weeks our community will either make a difference in our own lives, or we will lose an opportunity of a lifetime. Parliament will come the closest ever in history to outlawing discrimination based on sexual orientation. They’ve made it clear this can happen BUT ONLY if you speak up for yourself. People with HIV and five old people have.
One letter can make a change.
Send the letter below or at this link to the Prime Minister’s Office. FILL IN YOUR NAME AND THE AREA OR CONSTITUENCY YOU LIVE OR VOTE IN.
Get people who love you to do the same. Or you can speak up in other ways of your choosing. Please forward and repost this. One letter can make a change. Watch this video.
Office of the Prime Minister
13-15 St. Clair Avenue
Port of Spain
Dear Madam Prime Minister and Members of Parliament:
At the June 2011 opening of Parliament, our President said, “Our policies and practices must reflect a determination to ensure equal opportunity for all of our citizens, regardless of political affiliation or any other subjective consideration.”
What’s your position? Should legal protection from discrimination in employment, education, housing, health care and services be denied to any citizen of Trinidad and Tobago, based on whether they’re young, elderly or middle-aged, HIV-negative or not, heterosexual or not? Very shortly you will have a bipartisan opportunity to take an important and overdue step to advance Government protection of human rights in Trinidad & Tobago and bring our 49-year-old developing nation further into the 21st century. When the Equal Opportunity Act (EOA) comes before Parliament for amendment in the coming weeks, you can help add age, HIV status and sexual orientation to statuses it protects from unfair discrimination in employment, education and the provision of accommodation, goods and services.
Please don’t pick and choose which one(s) to add: Add all three. Discrimination is a cancer. Tolerating it against any group means politicians get to decide which minorities have rights and which do not, which human beings are worth less than others. All three statuses are used daily as grounds for unfair discrimination that offends the principles of equality on which our nation was founded. Such discrimination, when tolerated or excused by the State, robs people of their human dignity and citizenship in profound ways. You will have the opportunity to vote and show Trinidad & Tobago’s position on these matters to the world right around the time that we undergo our first comprehensive human rights review by the United Nations Human Rights Council.
The Prime Minister, the Leader of the Opposition and each member of Parliament can work and can engage others to ensure all three statuses are included in the Equal Opportunity amendment bill that Parliament passes. You will have the gratitude and support of thousands of citizens like me and the people in my life I love who are living with HIV, who are young, who are gay, and who are old, many of whom are afraid if they sign this letter they might lose their job, family support or public respect. The risk for discrimination is quite high for those the Equal Opportunity Act would protect if you add these three statuses. Yet, adding all three statuses to the bill together is hardly risky for a modern Parliament to do as an act of human rights leadership. It’s time we joined other great nations and set ourselves apart from the shameful ones that deny human rights and freedom of expression to their citizens, or that use the law to impose the rules of a particular faith on everyone.
Newspaper editorials, university researchers, legal and human rights professionals, leading civil society groups and Parliamentarians themselves have all spoken out against discrimination based on these three statuses and urged their inclusion in the EOA. I am adding my voice to theirs.