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CCJ grants Jamaican homosexual leave to challenge legislation in T&T and Belize

Thursday, May 08, 2014 | 3:03 PM    

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PORT OF SPAIN, Trinidad (CMC) — The Caribbean Court of Justice (CCJ) has granted Jamaican Maurice Tomlinson special leave to commence proceedings against Trinidad and Tobago and Belize after he claimed that their existing legislations impinged upon his right to free movement.

In a ruling handed down on Thursday, the CCJ, the region’s highest court, said “that there is an arguable case that the mere existence of the legislative provisions in question amounts to prejudice, as demonstrated by the jurisprudence of the European Court of Human Rights and the UN Human Rights Committee”.

The CCJ also held that the interest of justice requires “that leave be granted because the issues raised in the proceedings involve significant aspects of Community law namely, the relationship between domestic law and the obligations under the Revised Treaty of Chaguaramas (RTC), which merit further examination.

Tomlinson, a homosexual, had filed an application seeking special leave to commence proceedings in the Court under Article 222 of the Revised Treaty of Chaguaramas that governs the regional integration movement, CARICOM.

The application centers on the provisions of the Immigration Acts of Belize and Trinidad and Tobago, which according to Tomlinson, prohibit the entry of homosexual persons into the jurisdiction.

Section Five of Belize’s Immigration Act forbids, among other listed groups, “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.”

Tomlinson, an activist for the lesbian, gay, bisexual, and transgender (LGBT) Community, has refused to travel to the two CARICOM countries lest he run afoul of the prohibitions contained in their Immigration Acts.

He told the CCJ that the existence of these provisions violates his right to free movement under the RTC.

The CCJ noted that the parties all agree that Tomlinson had demonstrated some of the requirements under Article 222.

“There is no dispute that Mr Tomlinson is a CARICOM national, that the right to free movement enures for his benefit directly and the State of Jamaica has refused to espouse the claim on his behalf given his previous unimpeded travel to and from both States.

“The main point of contention is whether Mr Tomlinson has satisfied the requirement to show an arguable case of prejudice. Mr Tomlinson contends that the mere existence of the impugned provisions amount to prejudice.”

The States had argued that they were bound by the decision of the CCJ in the case involving the Jamaican national Shanique Myrie against the Barbados government and that “a homosexual does not fall with the categories of persons to whom entry can be denied under the Myrie exceptions”.

The CCJ in granting special leave to Tomlinson to commence proceedings said he must file his originating application within seven days.

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