A reserved judgment was handed down today via teleconference in the case of gay activist Maurice Tomlinson. The Caribbean Court of Justice which is the highest judicial institution for three CARICOM member states: Barbados, Guyana and Belize, has granted special leave for openly gay, LGBT activist Tomlinson to proceed with challenging the immigration acts of Belize and Trinidad & Tobago. The case goes back to July, 2013 and the decision was delivered by CCJ President Justice Dennis Byron from its seat in Trinidad and Tobago. According to Tomlinson, who is currently married to a Canadian pastor, the existing laws prohibit the entry of homosexual persons into both jurisdictions. Because of the exclusions contained within the immigration acts of both Belize and Trinidad, the Jamaican national has refused to travel to either country for fear of running afoul of the law. Furthermore, Tomlinson claims that the existence of these conditions infringes upon his right to free movement under the Revised Treaty of Chaguaramas. The thrust of the argument is whether Tomlinson, the ex-husband of former Acting Solicitor General Michele Daly, has satisfied the requirement to show an arguable case of prejudice. Here’s an excerpt of the judgment.
Justice Dennis Byron, President, Caribbean Court of Justice
“The parties all agree that Mr. Tomlinson has 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 emphasise that they are bound by the decision of the Court in Myrie v Barbados[1] and a homosexual does not fall with the categories of persons to whom entry can be denied under the Myrie exceptions. They also marshall State practice and policy to demonstrate that homosexuals are not treated as a prohibited class for entry. The Court holds 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. It also concludes that the interest of justice require 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 RTC, which merit further examination. Mr. Tomlinson is granted special leave to commence proceedings and must file his originating application within seven days as prescribed by Rule 10.4(7) of the Caribbean Court of Justice (Original Jurisdiction) Rules 2006, as amended.”
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