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Who is right on Sec 67 of the VI Constitution? Does MP need permission?

- Two Attorney Generals, two interpretations of the Constitution
Former Attorney General R. Dancia Penn (left) and current Attorney General Baba Aziz (right) have different interpretations of Section 67 of the VI Constitution. Photo: GIS/File
Speaker of the then Legislative Council Keith L. Flax (left) was forced to step down after then Leader of the Opposition Conrad A. Maduro (right) 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. Photo: VINO/File
Speaker of the then Legislative Council Keith L. Flax (left) was forced to step down after then Leader of the Opposition Conrad A. Maduro (right) 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. Photo: VINO/File
ROAD TOWN, Tortola, VI- It was in the late nineties in the Virgin Islands when Hon Ralph T. O'Neal OBE was the Chief Minister and former legislator Conrad A. Maduro was the Leader of the Opposition.

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.

43 Responses to “Who is right on Sec 67 of the VI Constitution? Does MP need permission?”

  • Xxx (30/12/2016, 18:01) Like (13) Dislike (0) Reply
    Conflict of interest big time
    • qc (30/12/2016, 19:46) Like (3) Dislike (0) Reply
      If the AG really has given this opinion, the it is as defective as the one given by a previous AG to the effect that it is a criminal offense for a BVI company to own shares in a company that engages in the business of gambling.
  • Really? (30/12/2016, 18:40) Like (21) Dislike (0) Reply
    Everywhere else in the world this is the law where government officials are concern. Why do you think that the US congress, the senate and sensible people are calling on Trump to divest his business interest. It is a conflict of interest, and he could be susceptible to bribery and do things that could benefit his company as oppose to the interest of the country.
    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.
    • pat (31/12/2016, 10:43) Like (2) Dislike (0) Reply
      even a hand shake is some form of contract. it is an agreement. a commitment for services is indeed a contract.
      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.
  • BVI lawyer (30/12/2016, 18:57) Like (26) Dislike (16) Reply
    Dancia is right and we all know this
  • Iatolaha (30/12/2016, 19:23) Like (21) Dislike (1) Reply
    The present attorney general has no choice if he wishes to retain his job and give a different interpretation of the law. If it was good for Keith Flax who had only accepted a deposit from Financial Services to hold the space for them when the building was completed and that was considered a contract and confirmed by the then attorney general Danica Penn. It's so wrong for all those who have come since and violently did much worse than Keith flax and got away Scott free. There is a day of reckoning and we must all realize that. Mr attorney general BABA AZIZ please do your job and do not try to twist the law. Are you afraid to be sent back to Africa because you don't do their bidding? Get real man
    • @ latolaha (31/12/2016, 07:29) Like (12) Dislike (0) Reply
      Indeed just like they got rid of dr c malcome when he called them out...
  • Mama child (30/12/2016, 19:36) Like (8) Dislike (0) Reply
    When the motion came to the house on behalf of Vernon Malone. Dr Smith and Dr Scatliffe they wer already engaged in work for Government for quite some tim confirmed in writing but that was OK. There was nothing in writing between Keith Flax and Financial Services but Danica Penn said that constituted a contract and now Baba Aziz is saying the complete opposite. He need to get real. This country is so corrupt it's not even funny anymore
  • pat (30/12/2016, 19:55) Like (13) Dislike (1) Reply
    Poor keith while myron and ingrid go scot free
  • LAW (30/12/2016, 20:03) Like (10) Dislike (0) Reply
    The Attorney General needs to seek the interpretation from the court of Appeal.
  • The law is clear (30/12/2016, 20:19) Like (19) Dislike (1) Reply
    The law is very clear and Ms Penn said it best when she agreed with the then leader of opposition, Mr Maduro. Why are we now so lawless that we want to put an interpretation to fit our bidding. My goodness!
  • LOL (30/12/2016, 20:23) Like (12) Dislike (0) Reply
    Wrong is wrong. What another snap election? Smh.. MVW cut out the $hit man or step down.
  • Bohannon (30/12/2016, 20:43) Like (8) Dislike (3) Reply
    They are ALL corrupt.
  • Political Observer (PO) (30/12/2016, 21:04) Like (21) Dislike (0) Reply
    An elected member doing business with (contracting) government, a body that one is a part of, without authorization from the HOA is a clear conflict of interest. Furthermore, it is a text book case of a conflict of interest. It meets neither the spirit or intent of good governance. It is like a fox scooping the the chicken coop.

    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!
    • Hmmm (31/12/2016, 10:14) Like (5) Dislike (0) Reply
      To Political Observer... your post is excellent!! You hit the nail on the head in all points. Who exactly is the AG protecting? Why doesn't Cabibet seek to obtain an interpretation from the Courts through the AG? Isn't this an issue the U.K. Is watching? Do not forget what happened in the other OT's with Gov't ministers. Take heed and do the right thing Mr AG and HOA.
      • Eagle and Buffalo (31/12/2016, 13:40) Like (4) Dislike (0) Reply
        Myron, are a lawyer and knows or should know better. You know it is a conflict of interest. The non lawyers, i.e. Marlon Penn ( kudos to Penn) know it was a conflict of interest. How did you get in this mess when Keith Flax case was a live and recent precedent, was it not? The non contract argument provided by Baba is as strong a wet noodle. Even a first semester law student would conclude it was a conflict of interest. It ain't looking good. Those who know better should do better. Greed is a cancer and a monster. Let's soar as eagles and careen off the cliff like buffaloes.
        • Many Happy Returns (01/01/2017, 10:43) Like (1) Dislike (0) Reply
          @Eagle and Buffalo, Happy New Year and God's blessings to you! I missed your regular contributions on these blogs. I look forward this year to reading your usual insightful comments.
  • Observer (30/12/2016, 21:50) Like (7) Dislike (0) Reply
    This Government should resign. There are too many questions about how affairs are being handled and it would be the manly thing for the Premier to go and ask the Governor and as for dissolution of the HOA. Can't we take a page out of other country's example? We are too passive but people power works but mobilization seems Tibet our problem
  • voter (30/12/2016, 22:02) Like (9) Dislike (0) Reply
    Myron should have step down long time
  • Diaspora (30/12/2016, 22:37) Like (16) Dislike (0) Reply
    Elements of a legally binding contract include 1) offer, 2) consideration , and 3) acceptance. A purchase order includes all of these elements and therefore it is a contract. For example, if a member of the offer to supply food to the HOA when it is in session for a specified sum (consideration) and the HOA staff accepts the offer is this not a contract.

    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.

  • Sandra (30/12/2016, 22:42) Like (7) Dislike (2) Reply
    yea that is also the case with letty. they. let go some and lock her up .they taking advantage of the system .what is good for all is good for her too. but they so hate her that the 5 of them conspire to jail her. he is the main one.
    • Quiet Storm (31/12/2016, 07:33) Like (3) Dislike (1) Reply
      @Sandra, Lettie had due process and her day in court and was convicted by a jury of her peers. Lettie hasn't the option of appealing to the Court of Appeal and the Privy Council. The others that were supposedly let go also had their day in court. They are also marooned to the territorial limits of the BVI.
      • Collins (31/12/2016, 11:41) Like (1) Dislike (4) Reply
        curious. can you tell me why Letty has no appeal options.thanks
        • Quiet Storm (31/12/2016, 13:25) Like (5) Dislike (2) Reply
          @Collins, it is an inadvertent typo. The sentence:"Lettie hasn't the option of appealing to the Cour of Appeal and Privy Council" should have had read:" Lettie has the option of appealing to the Court of Appeal and Privy Council."
  • dog (30/12/2016, 22:44) Like (6) Dislike (1) Reply
    Vino you are the best i love your variety of stories
  • enough is enough (31/12/2016, 02:13) Like (20) Dislike (0) Reply
    The Speaker told Andrew Fahie not to go there because she is guilty of the same. We need to amend that so they can't do business with Government period.
    • Reply (31/12/2016, 08:32) Like (12) Dislike (0) Reply
      she should have removed herself for that debate as she also has a direct interest it the matter going away
      • Politico Observer (PO) (02/01/2017, 07:36) Like (4) Dislike (0) Reply
        @Reply, no doubt the Speaker of the HOA, Ingrid Moses-Scatliffe, should have done the honorable thing and recuse herself from the discussion. The Hon Delores Christopher, Deputy Speaker, should have sat in the Speaker's chair during the discussion. The Speaker may hope and believe that members conducting business with governmnet (yes, statutory bodies are part of government) without permission is a settled issue. But it is not. The Speaker is a lawyer and knows the definition of a contract so she needs to stop the nonsense. Further, she knows members conducting business with government without permission is a conflict of interest. As Keith Flax violated the rules and paid the price ( had to resign the Speskership), so too should others who violated the rules. Their colleague and caucus member Marlon Penn knows it was conflict of interest and did the right thing. He didnot just do things right; he did the right thing. That is exemplary leadership. The Speaker of the HOA should be an independent thinker and be independent of political party(s) or at least ensure that procedures are followed fairly. He/she definitely should not be a political hack.

        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!
  • Newbie (31/12/2016, 08:32) Like (9) Dislike (2) Reply
    well have they can get away with it why not keep doing it????
  • african (31/12/2016, 09:00) Like (15) Dislike (0) Reply
    baba i am so disappointed in you, come on baba, be a man, be firm, you know that statutory bodies are government agencies, you know that those are contracts, come on man, how do you sleep at night, stop embarrassing yourself baba, i know they give you the job, but come on man, have some dignity.
  • Justice Baldhead (31/12/2016, 10:13) Like (5) Dislike (0) Reply
    The law is clear, there is NO ambiguity here and the interpretation given by then AG Dancia Penn QC indeed correct and Aziz is wrong. He has given a twisted interpretation to appease the wrong committed by Walwyn and his partnering Speaker. They both ought to step down. Lets see if the Supreme Court have any balls in giving the true and proper interpretation of s.67. Set a wicked ppl in government. GOD is good, they will be dealt with one way or the other.
  • BVIslander teaching law (31/12/2016, 11:47) Like (6) Dislike (0) Reply
    No reasonable lawyer will agree with Baba as the first rule of statutory interpretation is not the literal rule. It is the mischief rule.

    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.
    • VG (01/01/2017, 16:19) Like (5) Dislike (0) Reply
      Whats the debate about? Both myrun and the att general well know they are dead wrong!!
  • now (31/12/2016, 12:03) Like (2) Dislike (0) Reply
    We can understand why some African countries are so screwed up. Puppets are put in place to manipulate the system by the power players who pull their strings.
  • John (31/12/2016, 14:01) Like (3) Dislike (0) Reply
    A commitment is a contract for it is a binding obligation. The AG is just trying to use technicalities to avoid doing his job. Maybe he is worried about being removed. This is why the judicial and the executive should be independent of each other. The AG should not feel threatened.
  • Corruption (01/01/2017, 14:53) Like (5) Dislike (0) Reply
    Governor do something this is your role now.
  • justice (02/01/2017, 06:21) Like (3) Dislike (0) Reply
    The Speaker is given too much power when she is allowed to shut up the members when they seek justice. She is a major part of the corruption. Our youth cannot do better when they witness what is going on to the House of Assembly. This Government has killed every decency, any good governance. We have no one in the public sphere to look up to. This is very very sad.
  • Cheap (02/01/2017, 18:25) Like (5) Dislike (0) Reply
    When Ingrid Moses observed that line of questioning was bordering on the subject of a contract between the law firm of which she is a part along with Myron Walwyn she should could have excused should have excused herself from the chair instead of shutting up the member and allow justice to prevail. The house needs disollution by the Governor. Can he really sit and see all this wrongdoing and do nothing about it?
  • Waitup!! (03/01/2017, 11:39) Like (0) Dislike (2) Reply
    Moorings is cooking food each day. The House of Assembly went to purchase their food....and paid after. What contract did Myron enter into? So each time you buy food from Rite Way, you and them in a contract, nuh? The food offered at moorings is an invitation to treat written on a menu. Each time the HOA buys food from Moorings, Walwyn should say to the HOA, Members, on January 16th, 2017, on that date, the HOA came to trust food from me. I have not been paid for it yet. I gave it to them till they can pay. When they pay, I will advise you that they paid and you can treat it as you like. Allyo want thing to talk, go and wheel again. Stop frgging up our people them. Go watch them woodslaves who have friends in Government doing more piss.
  • Africawins (03/01/2017, 11:55) Like (0) Dislike (5) Reply
    I agree with the current AG. I believe the word "contract" under the constitution means a written contract. A purchase order is not the type of contract we believe was in the mind of the drafters when they drafted Section 67 of the Constitution. The word contract should be defined. Unless it is properly defined, then each person's interpretation stands. Take it to the Court of Appeal and let them interpret it. Even then, they must ask themselves, what was in the minds of the drafters of that Constitutional Provision. Let them get that clarified under the planned Constitutional Review. In the meantime, stop harrassing our people.


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