Who is right on Sec 67 of the VI Constitution? Does MP need permission?
The Speaker of the then Legislative Council was Keith L. Flax. At one of the Council Sittings, Leader of the Opposition Maduro brought a motion to the body under Section 67 of the Constitution which speaks to any current member doing business directly with Government having permission from the body to do such.
What does Sec 67 say?
The section states "a member should vacate his or her seat if they become a party to any contract with the Government of the Virgin Islands for or on account of the public service, or if any firm in which he or she is a partner or any company of which he or she is a director or manager becomes a partner in a firm or a director or manager of a company which is a party to any such contract."
The then Speaker of the Legislative Council Keith L. Flax was doing business with the BVI Tourist Board, a statutory body, in terms of renting them office space in a building owned by him. It was reported that at the time he did not have permission to engage in doing business with Government, so the Opposition Leader brought the motion against the Speaker, claiming that he was in violation of Section 67.
According to Mr Maduro, "there was no vote on the motion as the government side had a majority and my side would have lost." However, then Attorney General Ms R. Dancia Penn QC, OBE, according to Mr Maduro, made clear that the Opposition Leader was correct in his interpretation of the constitution- Sec 67 (7)- as Mr Flax had a contract with the Government.
In other words, Mr Flax would have had to seek permission from his colleagues in Parliament as a member of the body and failing to do that, needed to step down.
Therefore, Mr Flax was forced to step down from his role as Speaker of the Legislative Council.
It depends on your interpretation
Today, some 15 years later with no change to Sec 67 3(e) of the constitution, a different Attorney General has a different interpretation of the same section.
It was in 2015 when three Opposition Members brought a motion against the current Minister for Education and Culture Hon Myron V. Walwyn (AL), claiming that he was in breach of Section 67 3(e) of the Constitution, having engaged in business by catering for the House of Assembly (HoA).
The services of two of Mr Walwyn's companies, MVW International and The Pub (2012) Ltd, were done via government purchase orders, which many see as a form of contract for providing food to the House of Assembly, a central government agency.
It was also discovered that Mr Walwyn’s law firm Orion before the merger had engaged with Government statutory bodies directly and indirectly. The current Speaker of the HoA, Hon Ingrid A. Moses, is also a partner in the same firm.
However, current Attorney General Baba Aziz has a different interpretation of Section 67, and in a written opinion said that a Purchase Order given by government as a commitment for services is not a contract therefore Mr Walwyn did not become a party to any contract with the Government of the Virgin Islands.
In other words, according to the Attorney General's view, any Elected Member can do business directly and indirectly with the Government or any statutory body, even a Government Department under a sitting Minister, once they do not have a contract. This, many believe, can open a new 'can of worms' for conflict of interest and insider trading.
Good for some & not for others
However, other elected members have come to the HoA to seek permission even without a contract. For example former Legislators Vernon E. Malone, and Dr Vincent G. Scatliffe got permission to engage government for their legal and medical services. In addition, so did Premier Smith, Dr the Hon Kedrick D. Pickering (R7) and Hon Marlon A. Penn (R8).
Drs Smith and Pickering got clearance from the HoA to bill government for medical services in their private practice and Hon Penn to work at the Financial Services Commission, a statutory body while a member of the HoA.
The only way this matter can be fully settled, according to a local attorney, is "if someone takes it to the Court of Appeal for an interpretation." Until then "it will be dependent on who the Attorney General is at the time and whose interest they are trying to protect," the lawyer articulated.
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43 Responses to “Who is right on Sec 67 of the VI Constitution? Does MP need permission?”
Similarly, the two persons mentioned in this article businesses are a conflict of interest.
Mr. Attorney General, your interpretation of the constitution is laughable. I always wonder about your perception of the law, as you interpret the law to suit your goals.
it is acknowledgement that a service is paid for. this all goes hand in hand with divulging interests and conflicts to
the legislative body to register. But no one takes that seriously either. No wonder the NDP is so inbred. One hand washes the other.
Danica Penn, former attorney general, is right on her conclusion that it is a conflict. Baba Arizona, current attorney general, is wrong on his conclusion that it is not a conflict of interest. He is giving cover/license to elected 0fficials to compromise/violate one of the basic tenets of good governance. It passes the duck test, i.e., if looks like a duck, waddles like a duck, quacks like a duck, swims like a duck.......etc, it is a DUCK.
Furthermore, Baba Aziz is also wrong in his conclusion that statutory bodies are not government. This opinion also give elected officials cover to violate a basic tenet of good governance----conflict of interest. Does not department heads of statutory bodies report directly to ministers of governments? Does not government provide funding for statutory bodies, i.e., BVIHSA, Tourist Board, HL Stout Community College......etc? To whom does statutory body boards report to?
Moreover, I'm highly confident that jurists at the next level, i.e., Appeals Court, or Privy Council will conclude that elected officials doing business with government without authorization is a conflict of interest and that statutory bodies are government agencies.
Finally, what makes up a contract? A contract comprises of two basic elements:
1. There must be offer by one party and acceptance by another ; and
2. Something of value must be exchanged (cash, services, ....etc) for something else.
Do elected officials doing business with government meet this basic test? Yes!
Moreover, all across the globe a purchase order is treated as a contract document. Also across the globe, except in Banana Republics, elected officials doing business with government with which they are part of is viewed as a conflict of interest. Conflict of interest is a cancer that destroys good governance. Conflict of interest is not keeping faith with the electorate, for it places personal self interest ahead of the electorate interest and the national interest. It causes the electorate to lose confidence in their elected members.
Further, former Attorney General, D-8 Rep, and Dep Governor, Danica Penn, was correct in her interpretation of the constitution that elected officials need permission from the House of Assembly to conduct business with government. On the other hand, current Attorney General, Baba Aziz, differing view and interpretation is not consistent with the constitution. Additionally, the Attorney General decision that statutory bodies is not part of the central governmnet is flawed. It is either that the attorney general truly believes they are not government or he is self serving in his interpretation. Are statutory bodies totally independent of the central government?
Furthermore, politicians know that doing business with government without HOA permission is a conflict of interest. They need to stop the pretension that it is not. They need to stop the self serving behaviour. The Attorney General must enforce the constitution.
Hon Andrew if he is serious will push the issue. Baba Aziz (behaving like a baubau), the Attorney General, is playing politics and is ill-serving the territory.This issue needs to be settled by an independent judiciary. The Attorney General should have sought such an opinion. Instead, he chose to play politics. He needs to do the people of the territory a favour and seek employment elsewhere, perhaps in some Banana Republic. He is embarrassing the legal profession. Let's say it all in unison, BY!
You have to start with what is written and so Literal but the objective is to determine what was intended and then seek to cure the mischief that was provided for under the statute/constitution.
The intention of Sec 67 was to prevent conflicts of interest and to protect the revenue from connected party abuse.
The case that Baba named in his written ruling was fact specific and was improperly extended to cover things that he did not opine on.