EDITORIAL - A matter of application

Readers may recall that in Shanique Myrie v Barbados (2013), the Caribbean Court of Justice, then sitting in its original jurisdiction as the exclusive authority on the interpretation of the Revised Treaty of Chaguaramas, the constituent document of the Caribbean Community and of its attempt to create a single market and economy, decided that every CARICOM national was entitled to a right of entry into the territory of a Member State and the right to remain there for a period up to six months, unless the national is an undesirable person with in the restricted meaning of that term and subject to certain other procedural guarantees identified in the decision. 

 

It may also be recalled that this decision has not been greeted with universal acclaim in the region and that since then, there have been various credible allegations of less than hospitable treatment of some CARICOM nationals, mostly Jamaican, by one member state in particular – that of Trinidad & Tobago. One senses that the innate urge of some regional jurisdictions to manifest their absolute sovereignty over their borders and who may enter therein tallies hardly with a judicial construct that would subject that claim of sovereignty to the rule of law as expressed by an extra-national court to boot. 

 

In the recent case of Maurice Tomlinson v Belize and Trinidad & Tobago, the Court was again entreated to establish Community law on freedom of movement in its analysis of an expressly stipulated prohibition on the entry of homosexuals in the local Immigration Acts of both defendant jurisdictions, for its compliance with the near untrammelled right of entry guaranteed to CARICOM nationals. This matter arose in an unusual way.

 

Mr Tomlinson, a Jamaican attorney-at-law, an avowed homosexual and a regional LGBTI activist, claimed that both Belize and Trinidad & Tobago prejudiced the full enjoyment if his rights of movement as a CARICOM citizen by the clauses in their respective Immigration Acts that homosexuals, such as he claims to be, are expressly prohibited as immigrants. We have often wondered at precisely how such a provision would be enforced by an immigration officer, but its tenor is nevertheless consistent with the generally adverse legislative and cultural attitudes in the region to those, especially males, of other than heterosexual orientation, as manifested in the dissuasive criminal laws against the male homosexual act, the absence of any express protection against discrimination on the basis of sexual orientation and, in at least one jurisdiction, a frequently violent antipathy to males merely suspected to be of homosexual orientation. 

 

In the event, Mr Tomlinson’s argument did not find favour with the court in either claim, mainly on the basis that in spite of the presence of the clause, neither jurisdiction had ever sought or had had any intention of seeking, to enforce the provision, even though President Byron, who gave the judgment of the Court remarked that it was not to be taken “as condoning the indefinite retention on the statute book of a national law which in appearance seems to conflict with an obligation under Community law”.

 

While the reasoning of the Court as to an unlikely incidence of application is accepted, there may be many Barbadian readers who will query the absence of the identical reasoning by the Inter-American Court of Human Rights when it had the opportunity to assess the compliance of our laws regarding the death penalty with the intendment of the American Convention on Human Rights.

 

After all, that ultimate penalty is likewise of rare application here, no matter what the relevant statute may say.