Blog is all LGBT Belizean experiences about homophobia, violence and general discrimination.
Report on Hearings of Belize and TnT Immigration Law Challenge
Reposted 12th, November, 2013
Day One Report of Hearings into Belize and TnT Immigration Law Challenge:
Today, 12th November,
the Caribbean Court of Justice heard arguments via teleconference by
legal representatives of Maurice Tomlinson, the state of Belize and the
state of Trinidad and Tobago. Lord Gifford, representing Tomlinson,
petitioned the court to allow Tomlinson leave to bring a case before the
court, seeking redress for violations of his free movement rights
guaranteed under the Revised Treaty of Chaguaramas to nationals of
CARICOM member states. He alleges that sections of the immigration laws
of Belize and Trinidad and Tobago which prohibit the entry of homosexual
persons into those countries, violate his rights. The hearing today was
simply to determine whether Tomlinson, a homosexual, can bring the case
which, if granted permission, he will bring in the near future.
Gifford presented his case that leave should be granted, to which
Belize and Trinidad and Tobago responded. Gifford was then allowed to
respond to the states’ arguments. Both Belize and Trinidad and Tobago
argued that Tomlinson should not be granted leave to bring the case.
Belize, by its lawyer, Nigel Hawke, argued that the term ‘homosexual’
as used in the Belize Immigration Act referred to a homosexual
prostitute and not just a homosexual, although the Act prohibits
‘homosexuals’ on a plain reading of it. Hawke argued that his
interpretation reflected the Belize government’s position and referred
to the written testimony submitted on behalf of the Belize government,
saying that Belize Immigration Authorities do not prevent homosexuals
from entering Belize. He referred to the fact that Tomlinson himself
had entered Belize four times.
Tomlinson says in his written
testimony that he had been to both Belize and Trinidad and Tobago on
multiple occasions, prior to knowing of the laws. He says that since he
came to know of them, he has had to refuse invitations to visit both
countries. Gifford Q.C, relied on cases to show that even if the
government claimed they didn’t enforce a law, it could still operate to
restrict people’s rights. The essence of the argument runs that the law
makes de facto criminals of homosexuals who enter, forcing some people
to alter their behaviour. In Maurice’s case the behaviour which was
altered (travelling to Belize and to Trinidad and Tobago) was a
behaviour he was entitled to by right as a national of a CARICOM member
The court seemed unsatisfied by the Belize government’s
written evidence that they didn’t prohibit homosexuals, questioning
Hawke as to whether they should require further evidence. Justice Nelson
even asked Hawke what was the relevance of state practice, inviting him
to respond to Gifford’s arguments that the law in and of itself
restricted Tomlinson’s rights, irrespective of whether the state
enforced it or not. Hawke contended that Belize’s practice of not
prohibiting homosexuals evidences the Belize government’s interpretation
of the law as argued by Hawke.
When asked whether the court
should issue a declaration that the allegedly offending section of the
law referred to homosexual prostitutes only as argued by Hawke, Hawke
responded that that wasn’t necessary because the Belize government
already understood it to mean that.
Trinidad through its
lawyer, Seenath Jairam, appearing with Wayne Sturge and a host of other
attorneys, argued that what is relevant in determining whether a treaty
had been violated was the impeached state’s practice. He argued that
Trinidad and Tobago had a policy of non enforcement of the law, which he
interpreted to refer to homosexuals and not homosexual prostitutes as
Belize argued. The allegedly offending provisions in both laws
(primarily s. 5(1)(e) of the Belize Immigration Act and 8(1) (e)of the
Trinidad and Tobago Act) are almost identical. Jairam supported his
arguments with such cases as the recent Shanique Myrie decision (http://www.caribbeancourtofjustice.org/wp-content/uploads/2013/10/2013-CCJ-3-OJ.pdf
Jairam argued that because Trinidad and Tobago’s state practice was
such that it didn’t prevent homosexuals from entering and that because
Tomlinson was not prevented from entering before, the application was
“an academic exercise”. He drew a comparison to hanging, saying that
Trinidad and Tobago had laws on its books which allowed hanging but that
they nonetheless did not hang. When asked by the court whether that
meant that hanging was illegal, he responded that that was a matter for
the constitutional court. He alluded to the fact that governments had
financial constraints and that there were costs involved in repealing
laws. Incidentally that has not prevented Trinidad and Tobago from
repealing other laws it wished to repeal.
Jairam argued further
that Tomlinson could have applied for a special permit from the
Minister responsible for immigration as Sir Elton John did back in 2007.
Gifford had earlier pointed the court to the section of the Trinidad
and Tobago Immigration Act which permitted the Minister responsible for
Immigration to grant the special permit, spoken of by Jairam, to a
specific group of prohibited persons only. This group did not include
homosexuals, a fact it seems that was overlooked by Trinidad and Tobago
authorities in 2007 when Sir Elton John was granted a special permit to
Justice Nelson expressed concern over whether a policy
was sufficient protection of the rights guaranteed to nationals of
CARICOM countries, asking rhetorically, “what happens when government
changes?” He also asked Jairam non rhetorically whether the court should
strike out the allegedly offending sections since they weren’t
enforced. Jairam responded, to the bemusement of many in the court, that
the court should not strike out the sections because that might allow
terrorists to enter the country.
Lord Gifford Gifford responded
to the State’s arguments by reiterating that a policy was just a policy
and was subject to change with any given government. He also reiterated
that the mere existence of the laws, whether they were enforced or not,
was sufficient to restrict a person’s rights.
The court reserved its judgment which we expect will be delivered tomorrow.
On September 21st, Belize was placed in a room of power at the United Nations General Assembly side event meeting. An event organized by the U.N. L.G.B.T Core Group,
which includes more than 20 countries and European Union.
U.N. Secretary-General Ban Ki-moon, Chilean President Michelle
Bachelet, Norwegian Prime Minister Erna Solberg and Dutch Foreign
Minister Bert Koenders spoke at the meeting alongside Biden.
I had two cool parts to the event, the first was meeting Dutch Foreign
Minister Bert Koender and discovering the down to earth nature of the
man while waiting for Vice President Biden at the door to the hall. Koender made me feel me l so at ease while waiting for Vice-President Biden that I was comfortable enough to speak to Biden sister for a few seconds. I learned latter, the Dutch Foreign Minsiter had passed or near through Belize
once, years ago.
The highlight of the event for me was meeting Vice President Biden, I had asked Outright Inter…
The current section 53 case seeks in its simplest terms to amend the law so that it does not apply to consenting adults. Its not about gay marriage. It not about targeting children. In fact, the case retains criminalization of sexual intercourse with minors. It also retains criminalization of having sex with animals. The following FAQ outlines in more detail the focus of the case. Believe it or not the requested amendment is about 4 words." with any person or" is the big offending language to the churches.
When Belizean L.G.B.T.I colleagues hear The Equal Rights Coalition (E.R.C.) mechanism, immediately, it generates questions about its value to Belize's national L.G.B.T.I concerns. When we consider 2,343 trans persons murdered around the world alone in 9 years, according to the T.M.M. 2017 Press Release; 202 murders of L.G.B.T.I people that occurred in Mexico alone between 2014-2016; 445 occurring in Brazil in 2017 and the 54 murders & attempted murders and suspicious cases (14) adding up to 68. The E.R.C. means nothing to the dead victims.
While states in the E.R.C. may have many human rights issues impacting their citizenry, governance structures like the judiciary, opposition parties, constitutional frameworks have not devolve to exclude L.G.B.T.I citizenry from seeking redress or deny that fundamental rights does not apply to them. It is under this context the E.R.C exists as an imperfect political human rights mechanism on L.G.B.T.I issues. Though i…