In August, a friend of mine with kidney failure delegated me to take his car and represent him before the official authorities at the Palestinian Ministry of Transport and insurance companies, to complete the usual licensing procedures. His health condition and commitment to hospital dialysis sessions three times a week meant he could not do this himself.
First, though, we had to get a Power of Attorney from the Notary Public in Ramallah. After presenting our identity cards, the employee asked us to have the Power of Attorney certified by the Bar Association and pay the fees through a practicing lawyer.
The Notary Public Department was crowded with applicants. Some wanted to issue limited or periodic Powers of Attorney; some started the process of registering a company; and others wanted to issue a mortgage deed to buy a car through the bank. These were some of many transactions, most of which fall under the category of "notarised deeds", and all of which must be certified by the Bar Association for specific fees, depending on the transaction in question.
At the peak of the process, I spoke to an employee at the Notary Office about the Bar Association fees. He explained to me that his instructions allow him to certify notary documents that bear the seal of the Bar Association. Additionally, around 60 Dinars have to be paid for a limited Power of Attorney and 2,010 Dinars for a public shareholding company. I asked him for a written clarification explaining the reasons for refusing to certify my limited Power of Attorney, but he refused and informed me that the Head of the Court of First Instance is responsible for the notary offices in courts, and he can be addressed through a formal application.
At that moment, I stood baffled amid the surprised looks of the lawyers and applicants in the department. What should I do? The Palestinian Basic Law prohibits the imposition of fees not stipulated by law.
Charges in the form of lawyer fees do not just have to be paid for notarised deeds, but also apply to company registrations. The registration fee for a regular company is 510 Dinars, a private joint stock company costs 710 Dinars, and a public shareholding company can be up to 2,010 Dinars.
My sick friend is too weak to remain standing for long, and is wary of the coronavirus in such a crowded place. I asked him to leave and go to the hospital for his dialysis appointment at the Palestine Medical Complex in Ramallah. As for me, I proceeded to write an application to the Head of the Court of First Instance, explaining the details of the incident. I requested the certification of the Power of Attorney under Notary Law No. 11 of 1952 that remains in force.
How was it imposed?
In its decision to impose fees, the Palestinian Bar Association relied on Regulation No. 1 of 2009, regarding the organisation of notarised documents. The regulation states that it was issued within the framework of organising the legal profession and in the interest of lawyers. This is in violation of Article 88 of the Palestinian Basic Law, and experts believe that the text supersedes regulations.
The article states: "Imposing public taxes and fees, their amendment and cancellation shall only be done by a law. No individual is exempt from paying all or some of them, except in the cases specified by the law."
The 1999 law organising the legal profession does not stipulate the imposition of these fees. Moreover, the Notary Public Law does not give the Bar Association the right to collect any fees from citizens upon issuing notarised documents, for organising a contract or registering a company.
It would not have been possible to impose fees on citizens without the assistance of the High Judicial Council, especially since its issuance of instructions on 5 December 2010 to its Notary Public Departments not to complete any transaction without the association's approval. Since then, successive judicial councils have issued strict instructions calling for the application of the notary system. In 2017, the council's instructions took into account the conditions of limited income groups and excluded 17 cases from paying the association's fees. These groups include the judicial declarations of the Commission of Detainees' Affairs, the Ministry of Social Development, the Powers of Attorney related to the Foundation of Martyrs' Families and those related to people with special needs, students and passport renewals.
According to Dr Anis Qasim, an 81-year-old legal expert, the Bar Association's fees are illegal, regardless of the name given to them. "The imposition of taxes cannot be allowed by the Bar Association or by any other association except by law, regardless of what these are called," he told Arab Reporters for Investigative Journalism (ARIJ). "Otherwise, taxes can be called by anything in order to impose them on people."
Imposing Bar Association fees in the name of lawyer's fees is a circumvention of the law and negates the text of the Basic Law.
"An association cannot be allowed to impose such fees or taxes without legal authorisation from the state and the Legislative Council. The council authorises the Bar Association to charge its members with fees not exceeding a set amount, or through membership fees. Taxes cannot be imposed on people except by law, otherwise, it becomes a 'royalty' imposed by force, and this is not permissible," Qasim added.
The same opinion was expressed by Dr Nafeh Al-Hassan, the Dean of the Faculty of Law at the Palestine Ahliya University in Bethlehem. He emphasised that the law supersedes regulations, and added, "If a legal text is found, then that nullifies what was stated in the bylaws because the law always prevails."
On the issue of fees and taxes, Al-Hassan told ARIJ that they fall within the jurisdiction of the legislative authority; fees can never be imposed by the executive authority or by any of its branches.
"Any fees or taxes imposed by the executive authority or one of its branches are invalid," he explained. "Fees incurred by citizens should stem from the powers of the legislative authority in the country and not through any other party, whether it be the Bar Association, a labour union, a cabinet or a president. It is not within the power of any of these entities to impose any form of taxes or fees."
Judicial Councils do not legislate
Qasim, a legal expert living in Jordan, confirmed the unlawfulness of and the need to challenge the decisions issued by successive Judicial Councils obligating the Notary Public not to certify any transaction without the Bar Association's seal. "The Judicial Council does not have legislative authority, and the legislative authority is the Legislative Council only, otherwise, there would be an unjustified intersection of powers. The Judicial Council cannot legislate, as it would legislate and impose requirements on the Bar Association when it does not have the power to do that. The entity that has this right is the legislative body. Since the Legislative Council, or Parliament, has been suspended in the Palestinian territories since 2007, it behoves the Palestinian President to issue decrees or decisions by a law in order for the Bar Association fees to gain legitimacy."
Nevertheless, he warned that these decrees were appealed against after the president dissolved the Legislative Council towards the end of 2018. New elections were not held, so "imposing taxes of this kind may amount to severe arbitrariness. The president may not issue decrees unless it is for some great national interest because even these decrees have been issued without authorisation."
In his response to the notion that these fees came within the framework of organising the legal profession, Dr Qasim denied the existence of a relationship between the fees and what he called "the prevailing chaos." He believes that, "The cause of the chaos is not the lack of taxes, but rather the lack of control and monitoring of Bar Association members."
Dr Al-Hassan also stressed that labelling fees by other names does not grant them legitimacy. "The fees may be called different names in order to justify the error, but when we go back to the point of origin, we find that they are levies that are being collected from people. Any financial burdens imposed on citizens from entities other than the legislative authority are null. The law must be issued in a correct manner; the power of the law is not only in its text, but in the way it is issued by the concerned party that is entitled to issue that law."
Three other legal experts, speaking on the condition of anonymity for fear of a backlash from the Bar Association, emphasised the unconstitutional nature of its fees for the same reasons mentioned by Qasim and Al-Hassan. Such a backlash from the association might entangle them in procedures that could amount to withdrawing their memberships and their licences to practice the profession.
The Bar Association: fees provide citizens with guarantees
Article No. 12 of the bylaw states: "The lawyer is not responsible for what is contained in the notary documents, in companies' contracts and regulations, or in any documents attached to them. The person concerned submits them to the Notary Public or to other specialists in their capacity as legally responsible for its accuracy."
Through its Secretary, the Bar Association asserts that having its seal on notary documents and the fees paid to the lawyer constitute a guarantee for citizens that the lawyer is responsible for what is contained in them. "The aim of this system is for the lawyer to be responsible for every legal document that he seals. He is responsible for any defect in the document, as he is also responsible for its validity," the ARIJ was told.
Legal fees were set by the Notary Public Law
There is only one entity to which the citizen must pay fees in exchange for issuing Powers of Attorney and legal declarations, and registering companies. According to the Notary Public Law of 1952, this body is the Public Treasury. Article 33 states, "The Notary Public collects the fees shown in the table attached to this law, and the fees are considered Treasury revenue."
Additionally, Law No. 1 of 2012 regarding fees collected for Powers of Attorney and legal declarations specifies accurately the fees for each transaction in the second item. It does not mention the obligation to pay fees to any entity other than the Public Treasury. Rather, Article 3 stresses that everything that contradicts with the provisions of this decision can be annulled by a law.
Successive Judicial Councils are in cahoots
Now, back to my visit to the Notary Office. The employee refused to certify my Power of Attorney even after almost 20 minutes of discussion. I filed an application addressed to the Head of the Court of First Instance, and asked to have my transaction certified without paying the Bar Association fee of 70 Dinars. The response came the next day, when certification was refused.
The Head of the Court, Judge Wisam Al-Salaymeh, justified the handwritten refusal by saying that he had instructions issued by the High Judicial Council. These apparently call for the enforcement of the system of notarised deeds as per Regulation No. (1) of 2009 issued by the Bar Association. "I decide to reject the request," he added.
At this point, I had to address the transitional High Judicial Council, appointed in July 2019, to ask about the reason for passing the imposition of fees on notarised deeds and not cancelling such charges, despite their illegality.
The Head of the High Judicial Council, Issa Abu Sharar, responded thus: "The Notary Public Office follows the Head of the Court of First Instance. Since the Head of the Court of First Instance gave his opinion on this matter, we are satisfied with what he stated in his response to you."
In brief, the current transitional council has neither issued instructions to the Notary Public offices regarding notarised deeds, nor cancelled the system.
Citizens burdened by fees
Muhammad Ma'ali is a young man in his mid-thirties. His face showed clear signs of anger after leaving the Notary Office in Ramallah. He works in the field of land surveying and trade. He believes that lawyers do not deserve the sums charged for a service that only takes 10 minutes to complete.
"When a lawyer prepares a Power of Attorney for the purpose of sales, he asks me for 140 Dinars and does not waive the fee," he told ARIJ. "What are these fees based on? It is just a paper he wrote for me, and he accompanied me and the buyer to the court for 10 minutes. I know that the fees go to the lawyer; the Bar Association charges only 10-12 per cent, and the rest goes to the lawyer. Moreover, he makes you feel like he did you a favour."
Illegal fees collected from Palestinian pockets make it obvious that public deeds and Powers of Attorney are the geese that lay golden eggs for lawyers in the occupied Palestinian territories. It is a system that is, surely, long overdue for change so that the Basic Law takes precedence at all times.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.