COMMENTS BY DAME JOAN SAWYER, FORMER PRESIDENT OF THE COURT OF APPEAL OF THE BAHAMAS
I
have now read the draft Bill – from its very detailed “Objects and
Reasons” to its equally detailed provisions comparing the proposed
provisions for domestic partnerships with similar provisions from other
countries. It also makes provision for amending the existing marriage
laws in certain aspects – see clauses 46 – 49 and Schedules 1 and 2.
In my view, from the very words of the Bill, it is clear that it is
intended to confer on persons entering into such “partnerships” the
“security and benefits” of a marriage while not actually calling it
marriage – in other words it intends to accord to persons of the same
sex, all the “rights and privileges” accorded to married persons under
the Marriage Laws of the Cayman Islands.
If that is correct, then, the central difficulty the Legislative
Assembly has would be to constitutionally enact those provisions in the
face of the provision in the Constitution that marriage is to be
between a male and female.
As was said in the case of Ladore v Bennett
[1939] AC 468, 482, “Parliament cannot evade a constitutional
restriction by a colourable device”.
See also Hinds v The Queen [1976]
2 WLR 366, 383.
Or as Shakespeare said: “A rose by any other name
would smell as sweet”.