Tomlinson v Belize & Trinidad & Tobago

Tomlinson v Belize & Trinidad & Tobago
CourtCaribbean Court of Justice
Full case name Maurice Tomlinson v the State of Belize and v the State of Trinidad and Tobago
Started31 May 2013 (2013-05-31)
Decided10 June 2016 (2016-06-10)
Citation[2016] CCJ 1 (OJ)
Case history
Prior actionNone
Subsequent actionNone
Court membership
Judges sittingDennis Byron, Rolston Nelson, Adrian Saunders, Jacob Wit, Winston Anderson
Case opinions
Case dismissed, but CARICOM free movement upheld, regardless of LGBTQ membership and local statutes to the contrary
Keywords

Tomlinson v Belize & Trinidad & Tobago[i] (2016) was a high-profile case regarding LGBTQ rights and free movement within CARICOM in the Caribbean Court of Justice in Port of Spain, Trinidad. Maurice Tomlinson (Jamaican LGBTQ rights activist) sought to strike down provisions in Belize's and Trinidad & Tobago's Immigration Acts which expressly prohibited entry to homosexuals. The Court ruled against Tomlinson, but further held that LGBTQ nationals of CARICOM states were entitled to the same free movement that non-LGBTQ nationals were, regardless of statutory language to the contrary.

Background

The Caribbean Court of Justice is vested with a unique double jurisdiction: appellate to replace the JCPC (for Belize), and original to adjudicate RTC matters (for Belize and Trinidad & Tobago).[1] Since its 2005 founding, the Court "has incrementally established doctrines of Community law that both resemble and deviate from those enunciated" by the ECJ for Union law.[2] In Myrie v Barbados,[ii] the Court found that CARICOM nationals had freedom of movement throughout member states, and could directly apply to the Court (without first exhausting local remedies) for enforcement of CARICOM rights.[3] The decision attracted LGBTQ activists "to test how far the CCJ would go in that subject area [enforcing the CARICOM rights of LGBTQ nationals]".[4]

Maurice Tomlinson, a UWI attorney-at-law and Jamaican LGBTQ rights activist,[5] applied to the Court for special leave to commence proceedings against Belize and Trinidad & Tobago on 31 May 2013,[6] seeking to strike down provisions in their Immigration Acts which prohibited homosexuals from entering said countries,[7] arguing these violated his CARICOM right to free movement.[8] The Court consolidated the claims on 17 July 2013,[9] and granted leave on 8 May 2014.[10] CariFLAGS (Jamaican LGBTQ charity) and CARICOM were granted leave to file submissions in 2014.[11] Oral arguments were heard on 17–18 March 2015.[9]

Facts

Tomlinson regularly travelled throughout the Caribbean for LGBTQ rights activism, including to Belize on two occasions, and Trinidad & Tobago on four.[12] On those occasions he experienced no hassle entering the countries, and was not asked about his sexual orientation by immigration officers, but nor did he disclose it.[12] As such, his complaint was not centred on any refusal of entry nor wrongful treatment by the defendants, but rather on the allegation that the explicit text of their Immigration Acts sufficed to prejudice the enjoyment of his CARICOM rights.[13]

Neither Belize nor Trinidad & Tobago challenged Tomlinson's Myrie-established right to free movement,[14] and both agreed that homosexuals could not be denied admission as "undesirable persons" per the 2007 Conference Decision,[15] and further asserted that in practice they had never prohibited CARICOM nationals from entering their jurisdictions on the basis of sexual orientation.[16] Belize further argued that they interpreted their Act as prohibiting only those profiting from sexual behaviour,[17] whereas Trinidad & Tobago admitted they read their Act as barring entry to homosexuals (and others, despite non-enforcement).[18]

The claimant argued he nonetheless faced "genuine legal uncertainty" as to what would happen if he attempted to enter either country, given the current text of the Immigration Acts.[19]

CariFLAGS supported the claimaint,[20] whilst CARICOM filed on behalf of the defendants.[21]

Judgment

On 10 June 2016, the Court found as follows.[22]

[T]he claims of Tomlinson against Belize and against Trinidad and Tobago fail. In consequence, the requested remedies must be refused. Both States accept Tomlinson's right of entry into their territories and a requested declaration in those terms hardly advances matters. The Court holds that Tomlinson has no valid reason to assume that his rights will not be respected by the States. The reasons for this conclusion are twofold. First, State practice in relation to section 5(1)(e)[iii] of the Belize Immigration Act and section 8(1)(e)[iv] of the Trinidad and Tobago Immigration Act does not suggest any incompatibility with the RTC[v] or the 2007 Conference Decision[vi]. Second, 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 9[vii] 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 a Member State, notwithstanding a real or apparent contradictory provision in the national Immigration Act.

The Court thus dismissed Tomlinson's claims, and ordered parties to bear their own costs.[23]

Reactions

Tomlinson deemed the case "a significant win", as now "member states were clearly prohibited from practising laws that conflict with the fundamental freedoms of CARICOM such as discrimination based on sexual orientation".[24] The Court "took pains to emphasise" that it was not "condoning the indefinite retention on the statute book of a national law which in appearance seems to conflict with obligations under Community law".[25]

The Court's decision has been described as "cautious" and an instance of "reluctance", "legal diplomacy", and "judicial restraint" for focussing on the application of law rather than statutory language.[26] This "restricted focus on actual practices as opposed to the existence of discriminatory laws" has been criticised as "questionable" and "regrettable",[27] given it seemingly contradicted existing jurisprudence of international human rights bodies (like the UNHRC in Toonen v Australia),[28] and did little to impart the clarity and certainty required for rule of law.[29] The strategy has nonetheless been deemed deliberate and necessary,[30] given "deep cleavages in Caribbean society with regard to [LGBTQ] rights and [the Court's] limited competence in the OJ [original jurisdiction]".[31] The Court's unusual delay (their lengthiest to 2018[6]) was also noted,[6] as was their novel blending of original and appellate jurisdiction in interpreting Belize's Act.[32]

Legacy

The case endorsed non-discrimination of the basis of sexual orientation, recognised free movement within CARICOM, and clarified the direct applicability of CARICOM law in the legal systems of member states.[33] It (along with Myrie) "cemented the autonomy and direct availability of supranational law in the Caribbean".[34] It was followed by McEwan & Ors v AG of Guyana,[viii] where the Court struck down anti-vagrancy laws which criminalised cross-dressing in Guyana, despite a constitutional savings clause.[35] These cases (along with Nervais & Severin v the Queen[ix]) "clearly improved human rights standards in the region".[36] They further "clearly influenced" the 2018 decriminalisation of homosexuality in Trinidad & Tobago via judicial review,[36] and a similar ruling by the IACHR against Jamaica in 2020.[37]

The case received "significant attention" in popular culture and scholarship, due to its relevance to LGBTQ rights.[1]

See also

Notes and references

Notes

  1. ^ Also Tomlinson v Trinidad & Tobago & Belize, Tomlinson v Belize, Tomlinson v the State of Belize, Tomlinson v Trinidad & Tobago, Tomlinson v the State of Trinidad & Tobago.
  2. ^ [2013] CCJ 3 (OJ).
  3. ^ Prohibiting the entry of "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" (Byr, no. 10).
  4. ^ Prohibiting the entry of "prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals, or persons reasonably suspected as coming to Trinidad and Tobago for these or any other immoral purposes" (Byr, no. 11).
  5. ^ Namely Articles 7, 45, and 46, which prohibit discrimination on the grounds of nationality, require member states to commit to free movement within CARICOM, and require member states to allow entry to and employment of skilled CARICOM nationals, respectively (Byr, no. 7; Caa, p. 533).
  6. ^ Providing "that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds" (Byr, no. 8).
  7. ^ "Member States shall take all appropriate measures, whether general or particular, to ensure the carrying out of obligations arising out of this Treaty" (Tis, p. 112; Caa, p. 539).
  8. ^ [2018] CCJ 30 (AJ).
  9. ^ [2018] CCJ 19 (AJ), where the Court struck down Barbados's mandatory death penalty, despite a constitutional savings clause (Cad, pp. 733–734).

References

  1. ^ a b Caa, p. 536.
  2. ^ Caa, pp. 536–537.
  3. ^ Cad, p. 737; Caa, pp. 537–538; But, pp. 68–70.
  4. ^ Cad, p. 737; Caa, p. 537.
  5. ^ Byr, nos. 2, 6.
  6. ^ a b c But, p. 70.
  7. ^ For Belize: section 5(1)(e) prohibiting the entry of "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" (Byr, no. 10; But, p. 73; Tis, p. 112; Caa, p. 535). For Trinidad & Tobago: section 8(1)(e) prohibiting the entry of "prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals, or persons reasonably suspected as coming to Trinidad and Tobago for these or any other immoral purposes" (Byr, no. 11; But, p. 73; Tis, p. 113).
  8. ^ Cad, p. 737; Cac, p. 765. These were the only CARICOM members whose Immigration Acts expressly prohibited the entry of homosexuals (Byr, no. 2).
  9. ^ a b Byr, preamble.
  10. ^ Caa, p. 539; Byr, no. 4. In [2014] CCJ 2 (OJ) (Caa, p. 539).
  11. ^ Byr, preamble, nos. 17–18.
  12. ^ a b Byr, no. 6.
  13. ^ Byr, no. 2–3, 12.
  14. ^ But, p. 71; Byr, no. 14.
  15. ^ But, p. 71; Byr, no. 14; Caa, p. 534. The Decision provided: "that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds" (Byr, no. 8; But, p. 68; Caa, pp. 533–534). The Court held said Decision to be immediately binding on CARICOM states in Myrie (But, p. 68).
  16. ^ But, p. 71; Byr, no. 15; Caa, p. 534.
  17. ^ But, pp. 72–73; Byr, no. 34; Tis, p. 112; Caa, p. 535.
  18. ^ But, pp. 73–74; Byr, no. 39; Caa, p. 535.
  19. ^ But, pp. 71–72; Byr, no. 16; Caa, p. 534.
  20. ^ Byr, no. 18.
  21. ^ Byr, no. 17.
  22. ^ Byr, no. 63. Emphasis in original.
  23. ^ Byr, no. 67.
  24. ^ Cad, p. 737.
  25. ^ But, p. 74; Byr, no. 56; Caa, p. 533.
  26. ^ Cad, pp. 737–738; Cac, p. 765; But, p. 76; Caa, p. 537.
  27. ^ Cac, p. 765; But, pp. 75, 84.
  28. ^ Cac, p. 765; But, p. 75; Caa, p. 539.
  29. ^ But, pp. 74–75.
  30. ^ Cac, p. 766. Comparable to that of "the ECJ in its infancy" (But, p. 76; Caa, p. 537).
  31. ^ Cad, p. 738; Cac, p. 766; But, p. 76.
  32. ^ But, p. 73; Caa, pp. 535, 539. The Court held that when it "pronounces on the meaning, interpretation or application of a provision of the national law of Belize that pronouncement is authoritative even when it sits in its original jurisdiction", given its concurrent role as Belize's final appellate court (But, p. 73; Byr, no. 37).
  33. ^ Caa, pp. 533–536, 539; Byr, nos. 21–22, 24, 29, 37, 39, 43–44.
  34. ^ Cad, p. 737; Cab, pp. 172, 181; But, pp. 68–70, 74–75; Caa, pp. 536, 539–540. But But note the cases established the supremacy of CARICOM law only at the regional level, not also at the national level (as, for instance, the ECJ has for EU law) (pp. 69–70, 75–76).
  35. ^ Cad, pp. 737–738; Cac, p. 766.
  36. ^ a b Cad, p. 738.
  37. ^ Cad, p. 738. Jamaica had yet to comply by 2024 (Cad, p. 738).

Sources

  1. Tomlinson v Belize & Trinidad & Tobago [2016] CariCJ 12
  2. Caserta S, Madsen MR (2016). "Tomlinson v. Belize; Tomlinson v. Trinidad and Tobago". American Journal of International Law. 110 (3): 533–540. doi:10.1017/S0002930000016948.
  3. "CCJ dismisses gay rights activist's case". CARICOM Today. 10 June 2016. Archived from the original on 18 June 2016.
  4. Scruggs G (29 September 2016). "Aruba, Belize signal potential sea change for gay rights in the Caribbean". NotiCen.
  5. Tisdale L (2018). "A Triumphant Victory for Gay Rights in Belize Lays the Foundation for a Domino Effect Throughout the Caribbean". Loyola of Los Angeles International and Comparative Law Review. 41 (1): 99–123.
  6. Butler P, Lein E, Salim R, eds. (2018). Integration and International Dispute Resolution in Small States. Cham, Switzerland: Springer. doi:10.1007/978-3-319-74573-2. ISBN 978-3-319-74573-2.
  7. Caserta S (2018). "The Contribution of the Caribbean Court of Justice to the Development of Human and Fundamental Rights". Human Rights Law Review. 18 (1): 170–184. doi:10.1093/hrlr/ngx039.
  8. Caserta S, Cebulak P (2021). "Resilience Techniques of International Courts in Times of Resistance to International Law". International & Comparative Law Quarterly. 70 (3): 737–768. doi:10.1017/S0020589321000154.
  9. Caserta S, Madsen MR (2024). "When the Sun, the Moon and the Stars Align: Litigating LGBTQIA+ Rights and the Death Penalty in East Africa and the Caribbean". European Journal of International Law. 35 (3): 727–750. doi:10.1093/ejil/chae040.
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