Legal updates and commentary
Attorney-at-law and gay rights advocate Maurice Tomlinson has applied to the Caribbean Court of Justice, for special leave to take legal action against Belize and Trinidad and Tobago.
Tomlinson has already sued TV stations TVJ, CVM and PBCJ in Jamaica for refusing to air an ad promoting tolerance towards homosexuals. You can read about those court proceedings in my posts here, here, here and here.
His application to the CCJ is in relation to his wish to challenge the immigration laws of Belize and Trinidad and Tobago which prohibit entry to homosexuals.
Individuals or private companies (as opposed to States) can appear before the court if granted special leave, by virtue of Article 222 of the Revised Treaty of Chaguaramas where:
“(a) the Court has determined in any particular case that this Treaty intended that a right or benefit conferred by or under this Treaty on a Contracting Party shall enure to the benefit of such persons directly; and
(b) the persons concerned have established that such persons have been prejudiced in respect of the enjoyment of the right or benefit mentioned in paragraph (a) of this Article; and
(c) the Contracting Party entitled to espouse the claim in proceedings before the Court has:
(i) omitted or declined to espouse the claim, or
(ii) expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled; and
(d) the Court has found that the interest of justice requires that the persons be allowed to espouse the claim.”
Court documents filed by Tomlinson reference the revised Treaty of Chaguaramas, which provides that “member states should commit themselves to the goal of free movement of their nationals within the Community.”
They also reference CARICOM’s Charter of Civil Society which speaks about fundamental rights and freedoms
including the right to free movement within CARICOM, and which requires states to respect and protect human dignity.
Tomlinson is asserting that his right to freedom of movement has been violated, and that it is an affront to his dignity to limit his movement through CARICOM because of his sexual orientation.
He says the Government of Jamaica has declined to agree to allow him to espouse the claim, stating that “there is no adequate basis” on which to do so.
In his affidavit attached to the application, Tomlinson states that:
“I am aware that…the act provides that the Minister may exempt any person. I am not prepared to apply for an exemption. If I applied for and was granted an exemption, I would be acquiescing in this unjust and discriminatory law. It would be offensive to me to be subject to questioning by State officials about the details of my sexual orientation and private life simply for purposes of determining whether I should be permitted to enter the country. I do not wish to visit Belize until all persons cast as “prohibited” by reason of their sexual orientation are free to visit the country.”