FROM THE RT HON DAME JOAN A. SAWYER DBE

Dear Bishop Sykes:

(1)It appears that the learned Governor does not appreciate the fact that the Court of Appeal’s declaration as well as its judgment are under appeal to the Privy Council and that the rule of law is that one does not discuss matters affecting the possible outcome of such an appeal while it is pending – the subjudice rule. In fact, for the Legislative Assembly to even attempt to deal with the matter in the existing circumstances, were it not for the real restraint exercised by some members of the Legislative Assembly, could be seen as attempting to interfere with the pending appeal before the Privy Council.

(2) The declaration (which is not a declaration of right in any sense of that word) was arrived at without argument and is based on a false premise – that is that the ECtHR has ruled in favour of there being some kind of general human right to same sex marriage when in fact and indeed, it has not – see not only the cases mentioned in my opinion but also those referred to in the correspondence which Kattina forwarded recently .

(3) Perhaps the Governor is suggesting that he is following the Rule of Law as set out in the Declaration of Delhi, 1959 which, in turn , was based on the Universal Declaration of Human Rights, 1948. If so, he may want to refresh his memory as to what the rule of law really entails in circumstances such as at present exists in the Cayman Islands. Where the real issue is the validity of legislation intended to give to same sex couples the privileges and status of heterosexual couples, the latter of which is a right set out in section 14 of the Constitution. He is also ignoring the facts that the decision in Campbell v Hall (1774) 1 Cowp. 204 was to the effect that there is no prerogative power to legislate for a Colony with a representative assembly – such as the Cayman Islands have and the fact that he would be purporting to exercise a prerogative power to legislate for the Cayman Islands and on an issue that is expressly reserved to the Legislative Assembly – section 23 of the Constitution.

(4) It may appear to reasonable persons that the learned Governor made a decision based on his own interpretation of what transpired in Cayman Islands Legislative Assembly and, without considering the wider implications of his precipitate action decided that he would take the bull by the horns and force the people of the Cayman Islands to accept a statute that was not approved by their representatives in the Legislative Assembly and which, will, no matter what he contends, be at variance with section 14 of the Constitution as he is attempting to do indirectly that which cannot be done directly – Ladore v Bennett cited earlier.

(5) Has the Governor considered that even if he were to purport to enact the Domestic Partnership Bill, in a form which was not before the Legislative Assembly, it may well be open to any citizen of the Cayman Islands, or group of such citizens, to challenge the validity of the Bill so enacted in the Grand Court and to take such challenge all the way to the Privy Council.

I believe that God will triumph and not the Governor.

Joan