British Virgin Islands

Friday, Dec 03, 2021

Ambiguity enshrouds HOA debate in Neville Smith’s exemption

Ambiguity enshrouds HOA debate in Neville Smith’s exemption

A stirring debate about a section of law that allows a House of Assembly (HOA) member exemption from vacating his seat was a major point of contention during parliamentary proceedings on Thursday, July 29.

A motion/resolution to have government legislator, Neville Smith exempted, were brought before the House after his company entered into two contracts with the government.

Though one of those contracts was signed more than eight months ago, Premier Andrew Fahie yesterday argued that, based on the law, Smith had done nothing wrong in having the resolution brought belatedly before the House of Assembly.

What the law says


The segment of law in question — Section 67(7) of the Virgin Islands Constitution Order — says that, “if in the circumstances it appears just to do so“, the House may exempt an elected member from vacating his/her seat if he/she tells the HOA the nature of the contract his company is involved with and does so, “before, or as soon as practicable after becoming interested in a contract with the government”.

According to the Premier, anybody would know that the word “practicable” is very ambiguous as used in that context.

Fahie said while persons may dispute the meaning of the term “practicable”, there was no consensus that made it illegal for an exemption resolution to be brought before the HOA past a certain time.

He suggested the word needed to be properly defined and said this might be best done through a constitutional review. He suggested that the law be changed for persons seeking exemption do so within a three-month time frame, where possible.

He then went on to say some of the BVI’s systems are broken and needed urgent attention.

Gov’t had ample opportunities to raise exemption issue


Meanwhile, Opposition Leader Marlon Penn said a clear legal opinion on the matter was needed, and publicly sought the view of the attorney general yesterday.

He pointed out that there were ample opportunities to resolve the issue since there were at least five separate sessions of the House where the government could have sought the exemption for Smith.

Penn said while he agreed with the Premier on the need for a constitutional review, it was important to set the right precedent now; especially in light of the current scrutiny on the territory with the ongoing Commission of Inquiry.

No formal or forensic interpretation needed


In the meantime, Jo-Ann Roberts, sitting in for Attorney General Dawn Smith, offered that the terms under contention — “as soon as practicable” and “if the circumstances appear just to do so” — did not require any formal or forensic interpretation.

According to Roberts, a resolution of the matter simply required House members to look at the circumstances surrounding the particular motion/resolution and the information surrounding the debate.

Roberts said each legislator — using the literal definition of the word ‘just’ as noted in the section of law — should determine whether they felt it was right to exempt Smith under the circumstances.

Ultimately, the resolutions to have Smith exempted from vacating his seat successfully passed in the House.

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