Fahie Claims Immunity; Willock Resigns; Wheatley Voted Leader; BVI Divided

Speaker of the BVI House of Assembly Julian Willock announced his resignation Tuesday afternoon, reportedly at the request of acting Premier Natalio Wheatley. It was unclear if the resignation was related to the arrest of Premier Andrew Fahie or the recently released study that recommended temporary suspension of locally elected governance to weed out potential corruption and mismanagement.

The ruling Virgin Islands Party voted Wheatley as their party leader over Fahie, a move that would normally elevate Wheatley to premier. However, Fahie must first resign.

In a Florida jail, Fahie may have good reason not to resign. He has asserted U.S. federal courts have no right to detain or prosecute him for alleged cocaine smuggling and money laundering because he is the British Virgin Islands’ head of state, according to a brief filed Monday. Fahie’s Ft. Lauderdale-based lawyers claimed such immunity is codified in international and domestic law and demanded his immediate release from detention. Legal experts reached Tuesday, however, said the assertion is on shaky footing.

Heads of state are generally given immunity as a diplomatic courtesy to avoid countries indicting each other’s leaders back and forth. But this area of international and domestic law is exceedingly complicated and filled with unique, often politically tinged precedents. Potential prosecutions of leaders or former leaders from Panama, Liberia, Haiti, Libya, Somalia, Venezuela, the Philippines, the Turks and Caicos, and elsewhere all take different turns because of their circumstances.

Michael Bachner, former prosecutor and current white-collar criminal defense lawyer in New York City, said any claim to immunity Fahie might assert could be quickly denied by the current BVI government.

“It can say, ‘We’re not asserting immunity.’ It’s the country’s to assert; it’s not the person’s or individual’s to assert. There’s clearly cases talking about that,” Bachner said.

“And in addition, there’s a serious question as to whether or not immunity applies ever to a person who is acting in his own personal interest as compared to the interest of the country. So, if a person is involved in drug trafficking for personal benefit, for personal money, there’s certainly a strong argument that can be made he should not be given head-of-state immunity because he was not acting as head of state for the benefit of the country,” said Bachner, the one-time deputy bureau chief in the Office of the Special Narcotics Prosecutor of the City of New York.

In the 1986 case against deposed Philippines President Ferdinand Marcos, U.S. prosecutors argued head-of-state immunity is a privilege, not a right, granted by the receiving state.

“The extent of the immunity is informed by the receiving country’s commitment to certain international compacts and by considerations of reciprocity. Head of state immunity has been afforded to foreign heads of state pursuant to a suggestion of immunity by the State Department. No independent judicial source for head of state immunity appears to exist,” according to the court records.

Fahie’s motion with the court was unusual because it didn’t cite any case law. These are already-decided rulings that help a judge understand a motion’s validity. There are a few that don’t help Fahie’s case.

In particular, the 1985 arrest and conviction of Turks and Caicos Prime Minister Norman Saunders for his role in cocaine trafficking charges may stick out. Saunders, the then-head of state of a British overseas territory like the BVI, was sentenced to 10 years for his involvement, although he was not convicted of actual drug smuggling.

Prosecutors in Florida had not responded to Fahie’s immunity claim as of Wednesday night.

Back in Tortola, angry Virgin Islanders crowded the BVI governor’s residence Monday morning to protest the report that called for at least two years of direct rule by Britain. Amanda Milling, the British minister for the overseas territory, arrived in Road Town Sunday to meet with government officials about the inquiry. The details of that meeting were not yet available, but reaction to the recent turmoil has the normally sedate territory roiling.