VIP will not challenge NDP Members – Carvin Malone

Consultant with the Virgin Islands Party (VIP), Carvin Malone has confirmed to this publication that the VIP will not be mounting any challenge as it relates the eligibility of three National Democratic Party (NDP) members upon their swearing into the House of Assembly tomorrow, Thursday December 8.

“I am not aware that the VIP is going to challenge the eligibility of these people and as far as I am aware, the VIP did not seek any legal advice on the matter,” Malone told the ViStandPoint.
A legal opinion put together by Jamal Smith, Founder & Principal of Thornton Smith Law Firm provided its submission to the VIP advising them to challenge the eligibility of Minister for Communications and Works Hon. Mark Vanterpool, Minister for Education and Culture, Hon. Myron Walwyn and At Large Representative Hon. Archibald Christian.
In the legal opinion, which this newspaper has a copy of, the law firm pointed out that Section 65 of the Virgin Islands Constitution Order 2007 provides that a person shall be qualified to be elected as a member of the House of Assembly if he or she was so qualified immediately before the commencement of the 2007 Constitution and if a person is a Virgin Islander of the age of 21 years or upwards and is otherwise qualified as a voter.

As such, the law firm stated, “it is clear that three candidates for the 2011 general elections would not meet the latter part of this requirement, namely, Walwyn, Christian and Vanterpool, since they would not meet the constitutional definition of a Virgin Islander.”
The firm also stated that the question as to whether or not they were qualified immediately before the commencement of the 2007 Constitution is a question to be determined.
According to the opinion piece, the 2007 Constitution came into force on the day on which the Legislative Council of the Virgin Islands was dissolved.
The document explained that the 2007 Constitution was made on June 13, 2007 and the Legislative Council was dissolved on June 15, 2007 by Proclamation of the Governor dated June 29, 2007 and published in the Gazette on that same date.

As such, according to the document, “A person must have been qualified immediately before June 15, 2007 to be eligible to hold a seat in the House of Assembly."
"Therefore, immediately before June 15, 2007 who were the persons who held the necessary qualifications as opposed to persons merely entitled to hold those qualifications. This would include all the persons who were elected to the then Legislative Council which ceased to exist on 15 June 2007," the law firm explained.
Mark Vanterpool in the safe zone
Meanwhile, in the opinion piece, the law firm pointed out that what transpired on June 15, 2007 is that persons who were not entitled to be elected under the 2007 Constitution were allowed to pursue a seat in the House of Assembly if they had qualified for a seat in the House of Assembly and actually held such a seat immediately before June 15, 2007.
As such, the document explained that it is important to examine the members of the House of Assembly immediately prior to June 15 2007 and it would be observed that Mark Vanterpool was a member of the House of Assembly at that time.
“But following the dissolution of the Legislative Council he (Mark Vanterpool) announced his retirement from politics and did not seek to pursue a seat in the First House of Assembly," the document noted.
The firm said that the question, therefore, becomes that although he qualified immediately before 15 June 2007 does he remain so qualified at all times subsequently to 15 June 2007.
"It would appear that the answer must be in the affirmative, since there is no sunset clause or expiration date for the qualification provisions under the 2007 Constitution, and it was placed in the operational parts and not the transitional part of the 2007 Constitution, meaning that it was intended that Mark Vanterpool should be allowed to seek and hold a seat in the House of Assembly ad infinitum. This would not be true for the other two candidates, Myron Walwyn and Archibald Christian," the firm stated.

The law firm then advised that Walwyn and Christian were not duly elected to the Second House of Assembly since they lacked the necessary qualifications to stand for election.
The legal document stated that neither of them was qualified immediately before June 15, 2007 based on a functional interpretation of the 2007 Constitution.
The law firm concluded its legal opinion by advising the VIP to seek the assistance of the High Court.
“It is advised that the procedural requirement which is to be followed in this instant case is to obtain a determination from the High Court that Myron Walwyn and Archibald Christian were not duly elected in the 2007 general elections. For this purpose, it is considered necessary that three (3) copies of a petition be presented to the High Court within 21 days after the return was made by the returning officer of the territorial district, i.e. by Tuesday, 29 November 2011 since the return for the territorial district was made on 8 November 2011. It is advised that the two (2) VIP candidates who obtained the next highest number of votes in the election, Irene Penn-O'Neal and Zoe Walcott-McMillan, provide the election petition with a view to seeking that the court declare that in finding that Myron Walwyn and Archibald Christian were not duly elected that they be duly returned and elected to the Second House of Assembly and that a certificate of such determination be sent to the Governor.”