The questions surrounding the proposed appointment of Bevis Sylvester as Chairman of the BVI Health Services Authority Board are not going away.

If anything, they have become more specific.

Some have attempted to justify the appointment by arguing that Mr. Sylvester’s previous criminal record was expunged and that, therefore, he effectively has no record.

But that argument does not answer the question that has been raised.

It may answer a question about the status or treatment of a criminal record.

It does not, by itself, answer what the BVI Health Services Authority Act says about a person who has been convicted.

That distinction matters.

Section 5(7) of the BVI Health Services Authority Act states that a person is disqualified from appointment as a member of the Board if that person has been convicted of an indictable offence or an offence involving dishonesty.

The wording highlighted in the Act does not appear to say that the disqualification disappears because a record is subsequently expunged.

Nor does the provision cited identify a five-year period, a ten-year period, or any other period after which the disqualification automatically expires.

It speaks in terms of a person having been convicted.

That is the question Government now needs to answer.

Not whether Mr. Sylvester has paid his debt to society.

Not whether he has subsequently built a successful career.

Not whether a conviction from more than two decades ago should define the rest of a person’s life.

Those are separate questions.

The statutory question is whether the Legislature intended the disqualification contained in section 5(7) to continue to apply in circumstances such as these, and whether an expungement changes that legal position.

If Government’s position is that an expunged conviction no longer triggers the statutory disqualification, then the public deserves to know the legal basis for that interpretation.

Where in the Act does it say that?

Where does it say that the disqualification expires after a particular period?

Where does it say that an expungement removes the statutory consequence of the previous conviction?

And, importantly, was that legal question actually considered before Cabinet approved the appointment?

These are not unreasonable questions.

They are precisely the sort of questions that should be answered before the House of Assembly is asked to approve a statutory board appointment.

The Premier Wasn’t There

There is another development that deserves attention.

Premier Dr. Natalio Wheatley has confirmed that he was not in Cabinet when the decision to approve Mr. Sylvester’s appointment was made.

Cabinet met on September 9, with Governor Daniel Pruce chairing the meeting. The official Cabinet statement records that the Premier and Minister of Finance was overseas on official business. 

When the issue was subsequently raised with the Premier, he said that, given the statutory provision brought to his attention, the Government could undertake further due diligence to ensure that the appointments were compliant with the law. 

That response is significant.

Because if further compliance checks are now necessary, the obvious question is:

What checks were done before Cabinet approved the appointment?

The Cabinet decision itself states that the appointment was made on the recommendation of the Minister for Health and Social Development and that it remains subject to approval by the House of Assembly.

The appointment therefore is not simply a completed administrative matter.

There is still a legislative step to come.

And Then There Is the House of Assembly

That brings us to perhaps the most interesting part of this entire matter.

The House of Assembly is expected to consider the appointment.

And it is doing so on the eve of a general election.

The question is not what individual politicians should decide.

The public can judge that for themselves.

But it would be entirely reasonable for the Territory to expect the elected members of the House to explain the legal and governance basis for whatever position they take.

Will the House receive a legal opinion?

Will members be told whether the previous conviction was considered before Cabinet made its decision?

Will they be told whether the alleged expungement has any effect on the statutory disqualification?

Will the Government explain whether the phrase “has been convicted” is being interpreted as referring only to a conviction that remains on a person’s criminal record?

And if that is the interpretation, what provision of law supports it?

Those are questions that should be answered before, rather than after, the House votes.

The COI History Should Not Be Forgotten

There is also an uncomfortable piece of history that should not be lost in this discussion.

The last time Mr. Sylvester was before the public spotlight in a major governance matter, it was in connection with the Commission of Inquiry.

Mr. Sylvester appeared before the COI in May 2021 and was questioned about his career, his previous conviction, government contracts and his role as Chairman of the BVI Airports Authority.

The Commission had initially requested information from him. According to reporting by the BVI Beacon, he did not respond to the Commission’s April 6 request until May 10, after he had received a summons to appear before the Commission on May 13. 

That is the documented history.

It is worth remembering because the COI was established precisely to examine questions of governance, accountability and the exercise of public authority.

Mr. Sylvester’s previous conviction was also discussed during those proceedings. He had pleaded guilty and was sentenced in 2004 to six months in prison in connection with obtaining a pecuniary advantage by deception and neglect of duty relating to a government telecommunications contract associated with the development of the Terrance B. Lettsome International Airport. 

None of that necessarily answers the present legal question.

But neither should it be erased from the conversation.

The Question Has Changed

The first question was:

Can Bevis Sylvester legally serve on the BVIHSA Board?

The follow-up question is now:

If Government says he can, what is the legal basis for that conclusion?

And if the answer is that his record was expunged, the next question is:

Where does the BVIHSA Act say that an expunged conviction no longer attracts the statutory disqualification?

That is the part that remains unanswered.

People can believe in rehabilitation.

People can believe that a person should not be permanently defined by a mistake made decades ago.

People can also believe that someone who has served a sentence should be allowed to rebuild his life.

All of those are legitimate positions.

But when Parliament has written a specific qualification or disqualification into legislation, the starting point has to be the words of the legislation.

And in this case, the words identified so far refer to a person who has been convicted.

That deserves a clear legal answer.

Not a political answer.

Not a character assessment.

Not an argument about whether Mr. Sylvester is a good person today.

A legal answer.

And with the appointment heading toward the House of Assembly, the people of the Virgin Islands should get that answer before their representatives are asked to approve it.