CCJ hears an application by gay activist challenging immigration laws

Maurice Tomlinson & Tom Decker

The Caribbean Court of Justice today heard an application against the governments of Belize and Trinidad in which Maurice Tomlinson is challenging the immigration laws of both countries. The hearing was scheduled for two days, but it concluded today, shortly after noon. Tomlinson is Jamaica’s prominent supporter of the rights of lesbians, gays, bisexuals and transgenders. His challenge is premised on the notion that the existing legislations infringe on his right to free movement, dignity and equality within the region, as preserved in the Revised Treaty of Chaguaramas, signed in 2001.  The application for special leave to commence proceedings in the matter was held via teleconference inside the chamber of Justice Michelle Arana.  Tomlinson, the former husband of Acting Solicitor General of Belize, Michele Daly, who has left Belize, has visited the country on two occasions without any problems and has visited Trinidad and Tobago four times with no one aware of his homosexuality. He recently refused invitations by organizations to speak at their conferences and events because he discovered that the laws in both states appear to directly prohibit homosexuals from landing in each country. In Belize’s case he was to visit at the request of the United Belize Advocacy Movement (UNIBAM) last January for a training session. The fact that he wasn’t prohibited from entering Belize forms the basis of government’s argument that Tomlinson should not be granted leave by the appellate court to seek legal action.  Section Five of Belize’s Immigration Act forbids, among other listed groups, “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 behavior.” Tomlinson, since ending his relationship with Daly, has remarried Tom Decker, a Canadian pastor in New York.  Following today’s proceedings, Acting Solicitor General Nigel Hawke contended that the law in practice is not so narrowly interpreted and in any case Tomlinson has not come here to challenge the law. If he did, Hawke said, he would find that he was welcome here both in the ordinary sense and as a skilled national.

Nigel Hawke, Acting Solicitor General, Belize

Nigel Hawke

“Basically the court heard arguments from the applicant, heard arguments from Belize and Trinidad, remember this is an application for special leave.  We made our arguments basically saying that we have a certain interpretation of the Immigration Act, our Immigration Act.  Trinidad made their application and the court has reserved its ruling on the issue of application for special leave.  Our position is that the law is interpreted a certain way, our provision is interpreted a certain way.  It is in relation to persons who profit or earn from either prostitution or homosexuality.  That is our position.”

Reporter

“I notice that you said that that won’t change and our position has been when Mr. Tomlinson was here in Belize that he got free entry and exit into the country.”

Nigel Hawke

“That’s from the standpoint that he is saying that we are saying first that there was no actual prejudice and that is clear.  Nobody is disputing that.  The question here is whether there is a potential prejudice because he says the law there is an impediment to his free movement, in particular to Belize.  We are saying no.  We are saying, based on our interpretation, it is not.  So even if that particular provision remains there our submission, our formal submission is that it remains a provision that only applies to a particular situation.  That is basically it.”

Reporter

“Could you address the comment made in court that the laws that were made were promulgated in a time when society was more homophobic and also that in this day and age with the Caribbean Community Single Market and Economy that there are laws in countries such as Belize that need to be aligned with community laws?”

Nigel Hawke

“Bear in mind that that comment was made by Mr. Senior Counsel Jairam.  I think that is his understanding or opinion in respect of that law.  Yes, you concede see the fact that there are some laws in our book that are outdated but we maintain even with respect to this particular aspect of our law, it has been repeated in our Free Movement National Act and I think parliament must have meant something why they put it there.  This was a law to deal with the persons who come into Belize for employment purposes and we submit that that also gives some kind of clarity as to what meaning the legislation attaches to that particular provision in our Immigration Act.”

Reporter

“Sir, the attorney for the other side said that this particular case has no reference to that skilled labor so it shouldn’t be considered.”

Nigel Hawke

“That’s his submission; he has a right to make his submission.  That is his submission and we respect that but we’ve made our submission.”

The judges of the Caribbean Court of Justice have reserved judgment in the matter.