Delivering a judgment at the Caribbean Court of Justice (CCJ)’s headquarters at Henry Street, Port-of-Spain, yesterday, CCJ President Dennis Byron and four of his colleagues ruled that while attorney-at-law Maurice Tomlinson had raised a valid issue over the discriminatory nature of both countries’ laws, his case failed as he could not prove that he had been prejudiced by them.
In his lawsuit filed in 2014, Tomlinson had admitted to having visited both countries on several occasions in the past without being denied entry but said that he has refused invitations from Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) organisations to return after he learnt of the laws. Due to his firm stance on the issue Tomlinson, who lives in Canada, refused to come to Trinidad to attend hearings of the case and testified via video broadcasting.
“He further argues that the continued presence on the statute books of legislation declaring him a prohibited immigrant is an assault on his dignity as a human being as it subjects him to a derogatory categorisation and imposes a stigma on him because of his sexual orientation,” the judges stated as they said that he was not allowed to assume that his rights may be infringed.
Tomlinson had contended that his right to freedom of movement within Caricom member States, as guaranteed by Caricom treaties, was infringed as the laws barred him entry as an openly gay man.
Central to the court’s deliberations in the case were submissions by attorneys for both countries who stated that the laws were not enforced for Caricom nationals as neither country has an official policy for its immigration officers to enquire about the sexual orientation of visitors.
“Both States submit that whatever their immigration legislation may provide or be interpreted to mean, in practice they do not prohibit and never have prohibited Caricom nationals from entering their country on the basis of their sexual orientation,” the judgment said.
“It is noteworthy that there is no evidence nor has it been suggested that T&T has as official policy a homophobic approach to foreigners or anyone else, for that matter,” the judges said as they noted that both T&T’s Extradition (Commonwealth and Foreign Territories) Act and Data Protection Act afforded protection to persons based on their sexual orientation.
Even though Tomlinson lost his case, the court held that he should not have to pay T&T’s and Belize’s legal costs as “the case raised novel questions and has contributed to the clarification and development of community law.”
Tomlinson was represented by Douglas Mendes, SC, Westmin James and Imran Ali. Belize’s Solicitor General Anika Jackson led that country’s legal team. The T&T Government was represented by Seenath Jairam, SC, Wayne Sturge and Gerald Ramdeen.