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Rule of law reassures investors

Jan 29, 2010, 10:00 AM | Article By: Sainey M.K. Marenah

Says Queen's Counsel

Cherno S. Jallow, QC (a Queen's Counsel) and member of the Inner Bar of the Eastern Caribbean Supreme Court has said that the issue of democratic governance does not only mean that there must be periodic free and fair elections, but also that the government must be, and must be seen as, the first respecter of the laws of the country over which it governs.  This, he added, elicits confidence in the country, and is reassuring to investors.

Mr. Jallow made these observations yesterday at the Kairaba Beach Hotel while presenting a paper on the topic: "Legal Practices in The Gambia: Opportunities for Growth and Development" at the ongoing Bar Week conference organized by the Gambia Bar Association Bar on the theme: Legal Practice in the 21st Century.

Mr. Jallow also spoke of the importance of ?a robust and independent judiciary that upholds the law equal to all manner of persons, including the government."

"At the end of the day," he added, "serious investors (and might I add high net worth investors) want to be assured that in the unlikely event that they have to engage in litigation in any jurisdiction of their investment, they would receive fair treatment (which does not necessarily mean that their matter would be decided in their favour)," the learned lawyer told the gathering.

He also pointed out that the prosecution service must be independent, adding that if prosecutors are perceived to be under any inappropriate influences, this would be distraction for investors.

"The Bar has a critical role to play in that regard and it needs to work in partnership with the Government. The efforts of the Bar must not be viewed as self-serving, rather they should be received as a contribution to national development and growth," he stated.

Mr. Jallow added: "the way our judicial system and the dispensation of justice are perceived may impact on us positively or negatively, depending on the perception held, quoting the age-old adage of "justice delayed is justice denied." He said the time has probably come when the Office of the Director of Public Prosecutions should be completely divorced from any link with the Office of the Attorney General.

According to him foreign investors generally look to invest in jurisdictions with realistic and reliable tax policies, adding that a jurisdiction that regularly changes its tax policies and laws, especially when changes are not subjected to prior public consultation and debate risks shutting its doors to serious and high net worth investors.

"It is no wonder that the OECD countries are on the assault unfairly accusing offshore jurisdictions of unfair tax competition. When you over burden businesses with high taxes, you risk narrowing your tax base. In this regard, any proposal to widen the business base of this country must necessarily address the issue of taxation," he said.

"The Bar has a critical role to play in that regard and it needs to work in partnership with the Government. The efforts of the Bar must not be viewed as self serving, rather they should be received as a contribution to national development and growth," he stated.

"A few years from now," he added, "it is my hope that we will see the emergence of new business vehicles and structures which will bring about new opportunities for growth in the practice of law in this country.

"Ultimately, the Government would likely see an increase in its revenue earnings and the opportunities for employment will increase."

Accordingly, unless an appeal process is in trend or a judgment is stayed with respect to any decision against the government, the government must move with appropriate dispatch to fully observe the decision standing against it.

He revealed that it was Shakespeare in his view of justice in "Measure for Measure" who depicted the lawyer as "man, proud man, Drest in a little brief authority, Most ignorant of what he's most assured." He said this story can be true of lawyers only if we abdicate our sacred responsibility to uphold the rule of law as recognized and applied by all civilized democracies around the globe and speak to fairness."

Mr. Jallow said, "For only by recognizing these fundamental attributes can we meaningfully consider ourselves to be on the pedestal for meaningful development as a profession."

He said that the subject of growth and development in legal practice is a public-private sector partnership. He posited that as lawyers, they need the Government as much as the Government needs them, if they are to attain desired growth not only in their practice, ?but also in the development of our country."

"We need to come up with ideas (legal and otherwise) for formulating and steering growth in relevant sectors of our economy; at the same time we need a listening and participatory government that looks at those ideas constructively with the view to taking them forward through the formulation of appropriate policies and the enactment of relevant legislation and, of course, the creation of proper structures that are sufficiently independent and resourced to implement those policies and legislation."

He stated that every new area of growth in our economy will necessarily have a legal dimension and therein would lie the opportunities for development in our legal practice, adding that they already have in place structures for company formation and business registration.

But was quick to note that the question is: Are we keeping pace with current and emerging developments globally with respect to these subjects? Are we monitoring global trends and the standards being developed around these subjects in order to keep our country properly attuned to desired investment opportunities?

"The laws on company and business registration are constantly changing and if we lag behind in our reform system a piece of the pie we already have will be taken away by more progressive jurisdictions," he said.

In terms of new areas for growth, he said, the following should be considered:

"Trust business: which is more of a concept of the common law than of the civil law (and indeed people from civil law jurisdictions have some difficulty understanding the scope of the concept of trust law), is a growing area whereby individuals and families globally are increasingly looking to foreign jurisdictions to domicile their trust business."

He said concerning the insurance business, that while we do have a domestic insurance business, opportunities exist to explore engaging in the captive insurance business.

"Many jurisdictions have tried entry into offshore business and failed simply because they had taken on too much at the initial stages and failed to realize the enormity of the undertakings involved."

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