In the absence of agreement on the recommendation of a Leader of the Opposition from amongst the Members of Her Majesty’s loyal Opposition who were recently elected to the House of Assembly of the Virgin Islands, I have been asked as Governor to appoint a Member to this post in accordance with section 70 (2) (b) by exercising the Governor’s powers of discretion under the Virgin Islands Constitution.
Since receiving this communication and following consultations, both with the Members concerned and with other interested parties, as well as a detailed consideration of the legal position, I have decided that it would not be appropriate at this moment in time to appoint the Leader of Opposition to the House of Assembly under the powers granted to me under the Constitution.
It is my decision that the appointment of Leader of the Opposition will be deferred for one month and one day to allow for further consultations between the Members of the Opposition and as they deem appropriate, with other interested parties. I am satisfied that this brief delay will not adversely impair the conduct of business in the House of Assembly or Government.
At the expiry of this time period I expect the Members of the Opposition to make a recommendation as envisaged under section 70 (2) (a). If this is not the case, I will make an independent decision as envisaged under the discretionary powers granted to the Governor under the Constitution.
The position of Leader of the Opposition is both a constitutional and political role. In considering this question, I have therefore taken account of whether the constitutional requirements can be met and the criteria that would allow a judgement to be made on the balance of argument.
It is my considered view, having taken expert advice, that the constitutional requirements set out in section 70 cannot currently be met since neither of the Members of the Opposition can “command support”.
The Constitution does not envisage a situation where members of a single party are unable to reach agreement. I have therefore taken further legal advice and considered the case law on the use of the Governors’ powers, including views expressed by the Privy Council of the United Kingdom.
At the present time none of the criteria suggested to me by various parties, namely precedent in the BVI, the experience of the two candidates, or the expectations of political parties prior to an election, provide a conclusive solution.
As I have stated on a number of occasions, it is the responsibility of all persons elected or appointed to public office (including the Governor) to give the highest priority to the interests of the Territory above all else. In this context I have during my tenure drawn on the Governor’s discretionary powers to decide matters in the interests of the Territory. I am prepared to do so in this matter.
However, I consider it would be a retrograde step in the development of democracy in the Virgin Islands for the Governor to be required to impose a solution in this matter without allowing the people of the Virgin Islands and their elected representatives a further window of reflection to agree a solution.