Losing to win at Caribbean Court of Justice

By Maurice Tomlinson

Maurice Tomlinson is a Jamaican attorney at law and senior policy analyst with the Canadian HIV/AIDS Legal Network.  He works with local partners to combat homophobia and HIV across the Caribbean. This column was previously published on June 15 as a blog post for the organization  http://www.aidslaw.ca/site/

20140106diasporaEditor’s Note: In a moving letter of tribute to those gunned down in Orlando (Stabroek News, June 15th), Vidyaratha Kissoon named the specific violence that led a killer to target Pulse, an LGBT club that provided a safe and joyous space for queer life and queer love. Kissoon’s important letter also drew attention to what he rightly referred to as the “discriminatory laws and norms which enable the rage against lesbian, gay, bisexual and transgender citizens.” One of the more shocking responses from the region to the massacre was the Jamaican Attorney-General Marlene Malahoo-Forte, who took it upon herself to tweet that while she deeply regretted the loss of life in Orlando, the flying of the Pride Rainbow Flag on the premises of the US embassy constituted an act of disrespect for Jamaican law. Apart from being on non-existent legal ground here (for an Attorney-General!), such a statement, coming as it did at a time of immense grief on the part of family and friends scattered across the United States and Caribbean (most of those fallen were of Latin American and Spanish Caribbean heritage), was callous and cruel. It also underlined the precarious situation that LGBT people face in Jamaica, and right across the Caribbean. This week’s column addresses one aspect of that legal violence, and a courageous attempt to challenge it at the level of the Caribbean Court of Justice.

On June 10, 2016, the Caribbean Court of Justice (CCJ) delivered a landmark, but decidedly mixed, decision on the rights of LGBTI people.

Three years ago, as a gay Jamaican citizen, and with the support of AIDS-Free World, I launched a challenge to the laws of both Belize and Trinidad & Tobago that clearly and explicitly ban the entry of “homosexuals.”  I argued that Jamaica was in breach of the regional Caribbean Community (CARICOM) treaty that guarantees hassle-free movement by CARICOM nationals between the member countries of this regional bloc. In its judgment, the Court engaged in some illogical contortions in an (unpersuasive) attempt to avoid the obvious conclusion; i.e., that there is a conflict between the CARICOM treaty’s guarantee of free movement and the two countries’ laws that are patently discriminatory on their face in denying entry to homosexuals. In the end, the Court denied my application for a declaration that the statutes violate my right to free movement as a CARICOM national, choosing instead a convoluted approach of interpreting away the conflict.

While it’s not the straightforward, clear finding that should have been made, it’s important to underscore that, on the substance of my claim, the Court ultimately was supportive – and in this way, the decision is an important, if incremental, step forward. Some elements of the judgment offer a basis on which to build future legal advances.

On the positive side, the Court ruled that Belize and Trinidad & Tobago could not deny entry to me or to other homosexual citizens of CARICOM countries. The Court also urged both countries to repeal these laws, which create confusion for travel between CARICOM member states by nationals of those countries.

Also important is that the Court specifically cited, with approval, the well-settled point in international law that discrimination based on sexual orientation contravenes at least the International Covenant on Civil and Political Rights (ICCPR) and, in particular, the ground-breaking ruling of the UN Human Rights Committee in the 1994 case challenging a Victorian-era sodomy law, Toonen v. Australia (1994). (This observation by the CCJ is particularly noteworthy since I am also challenging, with the support of the Canadian HIV/AIDS Legal Network, Jamaica’s laws that criminalize “buggery” and “indecent” acts between men.)  And in the same paragraph, as part of making this point about discrimination based on sexual orientation, the Court also notes that both the Universal Declaration on Human Rights and the American Declaration of the Rights and Duties of Man (the leading declaration that applies to all countries in the Americas) are “among the important international instruments that recognize the human dignity of every person.”  With these statements, the Court has sent an important signal for the region that discrimination based on sexual orientation is contrary to international human rights law.

This case is very important because, among other things, it sets important legal precedent that the existence of laws which discriminate against LGBTI people across the Caribbean must be very narrowly interpreted. This is important because the region still has the last remaining laws banning same-gender intimacy in the western hemisphere.  In fact, when the court granted me leave to bring this matter on my own (after my home state of Jamaica refused to argue my case), it declared that the mere existence of these legislative travel bans create a prima facie case of unfair discrimination.

Such discrimination in law is not only a violation of human rights, it’s also bad for public health.  According to UNAIDS and other national and international agencies involved in the HIV response, such laws contribute to the region having the second-highest HIV prevalence rate in the world, after sub-Saharan Africa. This is because gay men and other men who have sex with men (GMSM) are driven underground, away from effective HIV prevention, treatment, care and support interventions. In Jamaica — where the Inter-American Commission on Human Rights found that anti-sodomy laws, first imposed by British during the colonial period but now paradoxically defended by some legislators and religious leaders as reflecting “Jamaican values,” contribute to horrific homophobic violence — the HIV prevalence rate among GMSM is 33 percent, which is the highest in this population in the western hemisphere, if not the world.

There were some puzzling conclusions reached by the court in arriving at its decision. For example, the judges found that my right to free movement had not been denied because, among other things, both countries have declared that they will not enforce this ban. This declaration is problematic, as a state can say it won’t enforce a law, but as long as it remains on the books, it may be deployed at a later date — although the CCJ’s judgment implies that doing so would violate the CARICOM treaty.  And with the rising tide of homophobia globally, fuelled by powerful right-wing extremist that are very active in the Caribbean, there is no guarantee, in the absence of a repeal, that these statutes will never be enforced against CARICOM nationals, or other persons for that matter.

The court also found that since I was never denied entry at the border, my right to free movement was not violated. By this logic, before I can make a claim for a violation of my rights, I must first undertake the expense of visiting either of these states and be turned back. The claim that my right to free movement was not violated flies in the face of the principle of free movement across the region because I will never book travel to Belize or Trinidad & Tobago without the lingering thought that I can be denied entry simply because of who I am, depending on the whims of a particular immigration officer.

As a result of the novel nature of the case and the very important issues it addressed, the court denied Belize’s application for me to pay their legal costs. There is no possibility of appealing the judgment and so it is now time for both Belize and Trinidad & Tobago to act to repeal these discriminatory provisions.

In fact, broader reforms are needed to the immigration laws of both Belize and Trinidad & Tobago to also remove other unjustifiable, discriminatory barriers to entry. For example, the very same provision banning the entry of “homosexuals” also bans the entry of “prostitutes” and of “any person who may be living on or receiving…the proceeds of prostitution or homosexual behaviour.” And other provisions in the same section similarly limit unjustifiably the entry of people with disabilities, in stigmatizing language: Belize’s statute refers to “any idiot or any person who is insane or mentally deficient or any person who is deaf and dumb or deaf and blind, or dumb and blind,” while the statute of Trinidad & Tobago refers to “persons who are idiots, imbeciles, feeble-minded persons, persons suffering from dementia and insane persons” as well as “persons who are dumb, blind or otherwise physically defective, or physically handicapped.” And Trinidad & Tobago also bars the entry of “persons afflicted with any infectious or dangerous infectious disease,” an overly-broad provision that could be used to deny entry to people living with HIV (among others).

Despite the Court’s refusal to issue the declaration I sought, for the reasons laid out above, this case is an important milestone in the LGBTI liberation movement in the Caribbean. The region is incrementally moving towards full recognition of the rights and dignity of all people as is forcefully outlined in the Charter of Civil Society for the Caribbean Community. We will hopefully realize the Caribbean dream of full inclusion, one day.

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