LGBTI rights activist Maurice Tomlinson provides this report on the first day of hearings at the Caribbean Court of Justice in connection with his case challenging the ban against gays entering Belize and Trinidad & Tobago.
The case started with me giving evidence based on my witness statement. As expected, the lawyer for Trinidad and Tobago (who had previously said that the ban on gays was necessary to keep out “terrorists”) tried to undermine my credibility. So he:
1) Questioned if I was really a homosexual because I had been married and have a son (clearly he has no concept of the distinction between sexual BEHAVIOR and sexual PRACTICE).
2) Questioned my statement that Hijra is a universal belief and/or practice of the Hindu faith, including in the Hindu communities of Trinidad, Suriname, and Guyana;
3) Questioned how, as a lawyer, I was not able to say, on the witness stand, if a later law directly repealed an earlier one (I had not reviewed the later law so I seriously could not offer any opinion).
4) Questioned if the Belizean Trans* person, Mia, who had been stopped and interrogated for several hours by a Trinidadian immigration officer was detained because of her sexual orientation or her gender expression.
The Acting Director of Immigration for Belize then gave her testimony and said that the country has no intention of actually enforcing the law against gays entering, but admitted that this is an unwritten policy.
The Acting Chief Immigration Officer for Trinidad and Tobago similarly said that the country has no intention of enforcing the law, but again, there is no written policy to this effect. Justice Witt put the point to him that the later law, which the government of Trinidad spoke about as having repealed the immigration ban, would only apply to persons who have a CARICOM Skilled National Certificate. I do not have such a Certificate, so, I am not covered by this exemption. It would therefore mean that my entry into Trinidad would be illegal.
One question that my attorney put to both heads of the respective immigration departments is: What would prevent the government, or an immigration officer, from unilaterally enforcing the law in future? They repeatedly said that since it was not enforced, then it would never BE enforced(!)
My lawyer then presented my case, which included the fact that, at the very least, the absence of a clear documented policy NOT to prosecute homosexuals created uncertainty, and was therefore a breach of the Revised Treaty of Chaguaramas, as well as the 2007 Conference Decision. Both of these documents require that CARICOM nationals be guaranteed uninhibited travel throughout the region.
We are relying on decisions from the European Court of Justice that say that mere practice does not satisfy the legal certainty required to guarantee treaty compliance. The court questioned if there was any harm as I have not been turned away from Trinidad or Belize.
My personal preferences is not to force a prosecution or deportation in order to bring a claim. As my lawyer said repeatedly, all that the governments have to do is get rid of the offending sections, since they claim to have have no intention of enforcing them.
The lawyer for Belize then presented the state’s case and again reiterated that because the law was not regularly enforced there was no breach of the treaty. He also declared that there was no potential for a breach. Most alarmingly, he wants me to pay costs to Belize for bringing the claim, even though he indicated that there were important questions for the court to answer with regard to how state compliance with treaty obligations are to be measured.
[Today] is the final day of hearings, and the lawyer for Trinidad and Tobago will make the country’s submissions. He will then be followed by counsel for CARICOM.
by Maurice Tomlinson
Source – Earsing 76 Crimes