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While Attorney General, Hon. Baba Aziz argued that Mr. Mark Vanterpool could not resign as he was not yet a Member of the House of Assembly (HoA), and could not resign from a post which he does not hold, Speaker of the House, Hon. Julian Willock’s Lawyer, Senior Counsel Anand Ramlogan’s position was contrasting.
During the hearing of Vanterpool’s application for the court to declare that he had not vacated the District Four seat, Ramlogan said that when Vanterpool was elected by the people and the election writ declared him the elected member, he automatically became a member of the House.
Further he claimed that taking the oath is a process intended to allow Members to participate in the proceedings of the sittings of the House of Assembly.
To back up his position, he pointed to section 64 of the Constitution. This section falls under the heading, “Elected members” and reads, “The elected members of the House of Assembly shall be persons qualified for election in accordance with this Constitution and, subject to this Constitution, shall be elected in the manner provided by or under any law for the time being in force in the Virgin Islands.”
According to Attorney Ramlogan, the section identifies someone successful at the elections as an “elected member.”
He further pointed to Section 69(3), which reads, “The Speaker shall be elected from among the elected members of the House of Assembly or from persons qualified to be elected members of the House, other than Ministers…”
He posited that according to the Constitution, the Speaker must be elected from among elected members, highlighting that the Speaker must be in place in order for elected members to be sworn in. Therefore, he interpreted that section as saying once elected, representatives automatically become members of the House.
He also posited that the lack of a Speaker could not prevent a member from resigning from the House of Assembly—despite the Constitution saying that the letter ought to be addressed to the Speaker.
“You can’t take everything literally and out of context,” Mr. Ramlogan stated.
He questioned whether this means that one cannot resign unless a Speaker is in place. “Is that what the law intended? What does the Speaker have to do with your right to resign?” he probed.
According to Ramlogan’s sentiments, he is of the view that Mr. Vanterpool has over two decades of experience in the House of Assembly and did the only thing he could do in the absence of a Speaker—address the letter to the Clerk.
According to the Speaker’s Attorney, “If no Speaker is in place, the law will not be so absurd as to compel you to perform the impossible and address it to someone who does not exist.”
Whether or not this argument was successful will be revealed on Thursday, April 18, when Justice Ann Marie Smith returns her ruling.
Previous Article Published April 14: AG’s Submissions In Court Support Vanterpool’s Application
Attorney General, Hon. Baba Aziz yesterday, April 13, made submissions which supported Mark Vanterpool’s application to have the court declare that he did not vacate the District Four seat, and as a result should be sworn in.
Following the dismissal of the application for a judicial review of Speaker, Hon. Julian Willock's acceptance of what Vanterpool said is an invalid resignation letter, and the Speaker’s subsequent refusal to swear him in as the Fourth District Representative, the hearing continued with both sides making submissions on the application for the High Court’s declaration on the matter.
The Attorney General stuck to his position which he gave several weeks ago when the matter was taken to him for advice. Hon. Aziz—who is the Government’s Attorney— had maintained that the resignation was invalid and there was no need for a by-election.
However, Willock had challenged his advice of the matter, and insisted that it be brought before the court, later sending the AG notice that he would not require his service for the hearing.
Yesterday, the Attorney General in his submissions argued that during the time that Mr. Vanterpool submitted the resignation letter to the Clerk of the House of Assembly, the House had been dissolved, and new members had not yet been sworn in, therefore there was no functional HoA.
Further, he stated that the letter was not addressed to the Speaker, as stipulated by the Constitution.
While some may argue that there was no Speaker at the time, so the letter should have been sent to the next in the line of authority, the AG argued that no such provision is made in the Constitution. He however pointed to two contrasting sections of the Constitution, which speak to resignations in the House of Assembly.
Firstly, section 67:3 (a), which states, “An elected member of the House of Assembly shall also vacate his or her seat in the House— (a) if he or she resigns it by writing under his or her hand addressed to the Speake,” and section 69:6 (b) which looks at the resignation process for the Speaker.
That section reads, “A person shall vacate the office of Speaker or Deputy Speaker…if he or she announces the resignation of his or her office to the House of Assembly or if by writing under his or her hand addressed to the House and received by the Clerk of the House.”
He highlighted that the distinction in who the letters should be addressed to and the specification of who it should be received by is of significance.
The AG went on to speak in support of the submission made by Vanterpool’s Attorney, Senior Counsel Edward Fitzgerald, QC, which posited that Vanterpool could not resign from a seat that he did not hold.
“An elected member of the House of Assembly” being referred to in the Constitution, he stated, must be interpreted within context. He said the tenure of a member begins when they are sworn in.
Hon. Aziz explained that section 67 falls under the heading, “Tenure of seats of members of House of Assembly,” and the heading shall be considered in ascertaining the meaning of an enactment.
The tenure, he said, begins when the House convenes.
For a resignation to be valid, the AG posited a new letter would have had to be tendered to the Speaker. He added that he is doubtful whether the Speaker can “unilaterally determine that vacancy exists.”
Justice Ann Marie Smith is expected to deliver her ruling on Thursday, April 18.
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Destiny'S ChildSo wait tell me something, is Ramlogan making inference that no one in the BVI can interpret our Constitution like him? He is way out on a limb away from everyone else. Me son let us get this man back on the first plane that leaves here. How dare he come to insult we.
Lady SmurfWhen, where and how did he insult us? Our constitution does not have a specific law in reference to the matter at hand, therefore, "Common Law" must be invoke...and when common law is quote in this reference it refers to judicial...hense judicially he was an elected mamber...It is simple maths..#SMH
Paulha aha common law my a** ! please have a seat with this gibberish you come on here quoting!
Thoughful SailorIn most countries, the official does not take office until the swearing in ceremony. After a US election, the winner is the President-elect, or Senator-elect, but does not hold the office until sworn in. In fact, Congress does meet before this, with the outgoing members still in office. It is called a "lame duck" congress. The members-elect are just still just that. In fact, seniority is determined by the order in which they are sworn in.
In a parliamentary system, such as the UK's, on which ours is based, the Prime Minister does not become that until appointed by the monarch. I don't know if the old one serves until that moment, so I can't speculate, but there will be a common understanding of this.
Lady Smurf@Thoughful Sailor...I do hope you realize that you have addressed your own statement. Before a new election is called, Parliament is resolved... base on the new election, the member elect (MV) is now in interim, however, he has withdrawn his interest in serving such position....you see my point? there's no specific law (s) that is applicable to the unique situation, hence the reason that "Common Law" must take precedence...Even if the judgement were to go in MV favor, why would the people of district 4 sit back and welcome MV after he has shown his selfishness and "don't care" attidude to them after they went out and voted for him?? He has shown that if he doesn't get his candy of choice he will throw a childish tantrum and forget that the candy flavor is not what is best for him, but is what is best for the voters who put him there..#SMH #DEMANDBETTER #MVMUSTGO
Lady SmurfThe speaker lawyer is in many ways is correct. Mark vanterpool at the tme of resignation was an elected member. He resigned from such post and in so doing rejected the votes of the people of district 4.
Many may say he was not sworn in, however, swearing would have just highlited his duties.
When someone goes for a job interview, and they have been considered for the job and was told to start work on a following date, once he shows up, he will be handed his duties, if he/she decides to write the employer letting him/her know that he have no more interest in the offered position, it means he/she does not want the role anymore...#by-election should be a must!!
Willoughby LewisIf the constitution speaks to a successful candidate from a district as an elected member, then swearing in is just a formality and must be carried out for all duly elected.
Me Again@ willoughby Lewis Was the swearing in ceremony NOT held / performed ? Where was Mark ?
No Floodgates Of FollyThe AG needs to accept that the constitution falls short in this type of scenario which was not envisioned when the law was drafted. You cannot apply the literal meaning of the law when the circumstances are completely different so you must look to the spirit of the law generally and the principles of anticipatory repudiation (and actual repudiation) and acceptance.
It has looong been established that anticipatory repudiation of an agreement can be communicated to the intended party either directly, through observation or even through a third party. Once that repudiation has been ACCEPTED by the intended party, then there is no going back. If MV wanted to change his mind, he must have done so before the Speaker accepted the resignation.
Even if we apply the literal meaning of the constitution, the ONUS is on the elected member, and not on the Speaker to follow protocol. The elected member should be well familiar with the Constitution. Now, if he had to be sworn in as a member in order to resign, why did he not respect the constitution enough to attend the swearing in? Again, the onus was on MV. He by all means intended to and indeed vacated his seat,vacated his district, exercised complete disregard for the Constitution. At this stage, if we are sooo hung on this literal wording of the constitution, his swearing in should only be procedural so that he can thereafter formally resign and nothing else.
The seat is vacant. It is a done deal. Either award the position to the 2nd runner up or call a bi-election. Set a precedence in this place or else you all opening yourself up to floodgates of folly.