The Caribbean Court of Justice has made a ruling that homosexual Caricom nationals have a legal right to freedom of movement essentially on the same terms as any other Caricom national. The CCJ made the decision following an application to the court by a well-known Jamaica born homosexual, Maurice Tomlinson, naming the governments of Belize and Trinidad and Tobago as the respondents.
The CCJ however refused Tomlinson’s application because he was unable to show that he had ever been or would be in danger of being prejudiced by the existence of the challenged provisions of the Immigration Acts of Belize and Trinidad and Tobago. The Jamaican through his prominent lawyers argued that the immigration laws in those two states discriminated against homosexuals who are categorized as a class of prohibited immigrants. He argued that the mere existence of such a law prejudiced the exercise of his right to free movement as provided by Article 45 of the Treaty of Chaguaramas and the 2007 decision of the conference of the Heads of Government as elaborated by the CCJ in the well-known Shanique Myrie case.
The CCJ noted that both Trinidad and Tobago and Belize adhere to the freedom of movement laws, but nevertheless cautioned that member states should strive to ensure that national laws and administrative practices are consistent with the right of free movement of all Caricom nationals, and this is a necessary component of the rule of law which is the basic notion underlying the Caribbean Community. The court also emphasised that the continuing inconsistency between administrative practices and the apparent meaning of legislation is an undesirable situation as the rule of law requires clarity and certainty, particularly for nationals of the other member states who are guided by such legislation and practice.
Tomlinson, an attorney is a prominent member of the lesbian, gay, bi-sexual, trans and/or intersex community.
Ten prominent attorneys were engaged in the case. Lord Anthony Gifford QC was the lead counsel for Tomlinson while Seenath Jairam, SC headed a battery of lawyers for the twin island republic, and Nigel Hawke led the Belize team of lawyers.
Five judges headed by President of the CCJ, Sir Denis Byron, heard arguments.