Tomlinson v The State of Belize; Tomlinson v The State of Trinidad and Tobago

• Jurisdiction: Caribbean States
• Judge: Byron, P.
• Judgment Date: 18 April 2016
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application No. OA 1 of 2013; CCJ Application No. OA 2 of 2013
• Date: 18 April 2016

Caribbean Court of Justice

Byron, P. CCJ.; Nelson, J. CCJ.; Saunders, J. CCJ.; Wit, J. CCJ.; Anderson, J. CCJ.

CCJ Application No. OA 1 of 2013; CCJ Application No. OA 2 of 2013

Tomlinson

and

The State of Belize

Tomlinson

and

The State of Trinidad and Tobago

Appearances:

- the claimant, by Mr. Douglas Mendes SC, appearing with Mr. Westmin R.A. James and Mr. Imran Ali, Attorneys-at-Law;

- the State of Belize, by Ms. Anika Jackson, Solicitor General, Mr. Nigel Hawke, appearing with Ms. Samantha Matute, Attorneys-at-Law;

- the State of Trinidad and Tobago, by Mr. Seenath Jairam SC, appearing with Mr. Wayne D Sturge, Mr. Gerald Ramdeen, Mr. Kashka Hemans, Ms. Deowattee Dilraj-Batoosingh and Ms. Lesley Almarales, Attorneys-at-Law; and

- the Caribbean Community, by Dr Chantal Ononaiwu and Ms. Gladys Young, Attorneys-at-Law

Immigration - Freedom of movement — Enjoyment of Community rights of free movement — Homosexual — Right not the be discriminated against on ground of nationality — Prohibited class of persons — Whether the mere existence of the immigration provisions prevented the Claimant from entering both States as he would be breaking their domestic laws as he was a homosexual and considered as a prohibited person — Binding obligation to allow CARICOM nationals hassle free entry and an automatic stay of six months upon arrival — Whether homosexuals present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society — Ultimate responsibility of international tribunal to determine meaning of municipal law — Consideration of Elettronica Sicula S.p.A (ELSI) ( United States of America v. Italy) ICJ Reports [1989] 5 — Burden of proving legislation is in breach of the State's obligations lies upon the Claimant — Consideration of United States — Carbon Steel (India) — Whether CARICOM homosexual immigrants were discriminated against on the basis of nationality alone but there is a legitimate distinction that can be drawn between nationals and non — nationals — General principle of international law that nationals cannot be refused entry by their own State whereas the State can refuse entry to non-nationals — Originating applications dismissed — Costs borne by both parties — Articles 7, 45, 46 and 211 of the Revised Treaty of Chaguaramas — Section 4 and 12 of the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts.

Statute - Statutory Interpretation – Whether section 5(1)(e) of the Immigration Act meant that homosexuals were prohibited class where the State meant that the persons were prohibited as they sought financial gain by offering sexual services or profiting from those who performed them – Construction of a legislative provision reasonably possible – Sections 64 and 65 of the Interpretation Act of Belize – Statutory provisions should if at all possible be interpreted as compliant with State's treaty obligations rather than in breach of those obligations – Liberal interpretation – Whether the wording of section 8(1)(e) of the Immigration Act of Trinidad of Tobago prohibited the Claimant as a homosexual having considered that there were distinct prohibited classes – prostitutes or homosexuals or persons profiting off of such, but the Act was interpreted liberally and the Constitution of Trinidad and Tobago was considered – Finding that Belize meant the persons were prohibited as the persons sought financial gain by offering sexual services – Finding that the case against Trinidad and Tobago failed.

and after considering the written submissions, the testimony at the trial and the oral submissions made on behalf of:

SUMMARY

1 The claimant, Mr. Maurice Tomlinson, a Jamaican national, is a homosexual and noted LGBTI rights activist. He is also an attorney-at-law and a graduate of the University of the West Indies (UWI) who, in his role as an activist, routinely travels throughout the Caribbean region. Mr. Tomlinson alleges that he has been prejudiced in the enjoyment of his right as a CARICOM national to enter the States of Belize and Trinidad and Tobago without hassle, due to the respective Immigration Acts of Belize (section 5) and Trinidad and Tobago (section 8) which purportedly include homosexuals as a class of persons prohibited from entering these territories. While conceding that he has never actually been refused entry on any occasion by either State, Mr. Tomlinson nonetheless argues that the mere existence of these statutory provisions prevent him from entering both States since, in so doing, he would be breaking their domestic laws. Accordingly, his rights as a CARICOM national would be prejudiced in contravention of his right to free movement under Article 45 of the Revised Treaty of Chaguaramas (RTC) and the 2007 Decision of the Conference of Heads of Government of CARICOM, as well as his right to not be discriminated against on the basis of nationality only (Article 7 of the RTC). Additionally, being a UWI graduate and thus a Skilled CARICOM National, his rights under Article 46 RTC would be prejudiced.

2 Mr. Tomlinson sought several declaratory orders from the Court to the effect that he has a right to enter these States and that the provisions of the respective Immigration Acts prohibit his lawful entry thereby violating his rights to freedom of movement and not to be discriminated on the basis of nationality only. Additionally, he sought an order that the defendant States amend their Immigration Acts so as to remove homosexuals from any class of prohibited immigrants.

3 Belize and Trinidad and Tobago maintain that Mr. Tomlinson is entitled to enter their respective territories without hassle and to remain there for up to six months; and also that, as a homosexual, Mr. Tomlinson does not constitute a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” so that he is not an “undesirable person” as envisioned under the 2007 Conference Decision. Further to this, the States highlight the fact that Mr. Tomlinson has entered both territories in the past without hindrance and that the existence of the legislation has not caused him to suffer prejudice of which he complains.

4 The Court, fully endorsing its decision in the earlier Shanique Myrie case, observed that the 2007 Conference Decision created a binding obligation on the Member States to allow all CARICOM nationals hassle free entry and stay of six months upon arrival into their respective territories, subject to two exceptions: the right of Member States to refuse entry to “undesirable persons” and their right to prevent persons from becoming a charge on public funds. The Court agreed with the States that homosexuals, as such, cannot be categorised as ‘undesirable persons’ and concluded that homosexual CARICOM nationals have a right to freedom of movement on the same terms as any other CARICOM national. The primary issue to be determined was whether the States’ obligation has been breached by the mere existence of the statutory provisions being challenged by Mr. Tomlinson.

5 Referencing the jurisprudence of international tribunals, the Court noted that the proper construction of a domestic statute in the context of an international dispute was ultimately an exercise in ascertaining evidence of state practice. Although considerable deference was to be given to the view of the State itself as to the meaning of its own law, the Court would not be bound by this view in its assessment of whether the application of the statute was consistent with the State's international obligation. Ultimately, the Court determined that Mr. Tomlinson was not in danger of being prejudiced by the existence of the Immigration Acts of Belize and Trinidad and Tobago. This determination was based on the following reasons.

6 The Court agreed with Belize's interpretation of section 5(1)(e) of its Immigration Act. The wording and the context of this provision indicate that homosexuals are prohibited from entering the country only where they are seeking financial gain either by offering sexual services themselves or by profiting from those performed by others.. Further, section 5(1)(e) is to be considered in the context of Belize's CARICOM treaty responsibilities. Section 64(1) of Belize's Interpretation Act, to which section 3(2) of the Caribbean Community Act, 2004 of Belize specifically refers, prescribes that when ascertaining the meaning of any provision of an Act consideration should be given to “any provision of the Caribbean Community Treaty and any Community instrument issued under the Treaty, where relevant.” Critically, the interpretation advanced by Belize is bolstered by the practice of the administrative and executive arms of the State of Belize which apply the legislation in a manner that is consistent with this interpretation.

7 With regard to Trinidad and Tobago, the Court noted that the wording of section 8(1)(e) of its Immigration Act differs from the Belizean statute as it regards “homosexuals” separate and apart from those “persons who live on the proceeds of homosexuals”. Homosexuals, as such, therefore are seen as a category of prohibited persons. This was also the view of Trinidad and Tobago. Consequently, Mr. Tomlinson would appear to be prohibited from entry by the above mentioned provision, although the Court envisioned the possibility of a more liberal interpretation of the law. In this regard, mention was made of the Preamble of the 1976 Constitution of Trinidad and Tobago, as well as section 4 which recognizes the right of the individual to equality before the law and protection of the law, and the right of the individual to respect for his private and family life. Reference was also made to relevant state practice, particularly the 2004 amendment to the Extradition (Commonwealth and Foreign Territories) Act, 1985, which introduced a...