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 notarized deeds, but also apply to company registrations. The registration fees of a regular company are 510 Dinars, a private joint stock company costs 710 Dinars, and a public shareholding company can reach up to 2,010 Dinars.
My sick friend is too weak to remain standing for so long, and is weary of the coronavirus amid a crowd of applicants. I asked him to leave and to go to the hospital for his 1PM dialysis appointment at the Palestine Medical Complex in Ramallah. As for me, I resorted to the second option and 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 is in force.
In its decision to impose fees, the Palestinian Bar Association relied on Regulation No. 1 of 2009, regarding the organization of notarized documents. The regulation states that it was issued within the framework of organizing 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 that “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 organizing 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 notarized documents, for organizing 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 5/12/2010 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 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.
Dr. Anis Qasim, an 81-year-old legal expert, stresses that the Bar Association’s fees are illegal, regardless of the name.
“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. Otherwise, taxes can be called by anything in order to impose them on people,” he told ARIJ.
Imposing Association fees in the name of lawyer fees is a circumvention of the law and defeats the text of the Basic Law.
“An association cannot be allowed to impose such fees or taxes without legal authorization from the state and the Legislative Council. The Council authorizes the 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 was expressed by Dr. Nafeh Al-Hassan, the Dean of the Faculty of Law at the Palestine Ahliya University in Bethlehem. He emphasizes that the law supersedes regulations, and adds, “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. 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 labor 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,” he added.
Qasim, a legal expert living in Amman, 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 Council cannot legislate, as it would legislate and impose requirements on the 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 behooves the Palestinian President to issue decrees or decisions by a law in order for the Bar Association fees to gain legitimacy,” he told the ARIJ reporter.
Nevertheless, Qasim warns that these decrees were appealed 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 authorization.”
In his response to the notion that these fees came within the framework of organizing the legal profession, Qasim denies 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 Association members.”
Legal Expert Nafeh Al-Hassan, also stresses that labeling 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 issuing that law,” he said.
Three other legal experts, speaking on the condition of anonymity for fear of backlash by the Bar Association, emphasized the unconstitutional nature of Bar Association fees for the same reasons mentioned by experts Anis Qasim and Nafeh Al-Hassan. Backlash from the Bar Association might entangle them in procedures that could amount to withdrawing their memberships and their licenses to practice the profession.
According to Muhammad Jarrar, the Association’s Secretary, an average amount of 7-8 million Dinars enters the Association’s treasury annually, for notarized deeds alone. This amount goes to the Bar’s fund, and at the end of each month, the Association transfers 90% of the money paid for each deed to the account of the lawyer who sealed it. The remaining 10% goes to the benefit of the Association Fund as expenses for running the notary documents file.
Over 6,000 lawyers practice in the West Bank, and every practicing lawyer has the right to seal eight documents per month. However, the Bar Council authorized the Head and the Treasurer of the Association to grant special permission to allow lawyers to approve more than eight notarized deeds, provided that the total number of monthly deeds does not exceed 16.
Jarrar refuses to describe what exactly citizens pay for when his Association imposes fees on the certification of legal documents by his Association, and adds that the law regulating the legal profession grants his association the right to set the fees it decides according to the regulations issued by the Association’s General Commission.
“The law grants the General Commission the right to issue the Association’s regulations without presenting these to any other party. These regulations are binding to the lawyers but do not bind citizens. However, I obligated citizens to pay the minimum fees for the lawyer for the transactions he approves, and any regulations issued by the Association should be applied,” he told ARIJ.
Article No. 12 of the bylaw states that “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 Association asserts that the Bar Association's 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 Secretary told ARIJ.
In order to issue a Power of Attorney or other legal documents, a citizen must first have the transaction sealed by a practicing lawyer and should accompany him to the Bar Association fund, normally located in the courts, to pay the fees. He should then go to the Notary Public for a certification process that takes 10-20 minutes, depending on how crowded the notary offices are.
Put simply, the role of the lawyer is to seal the transaction and accompany the citizen to pay the fees.
There is only one entity to which the citizen must pay fees in exchange for issuing Powers of Attorney, 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 accurately specifies the fees for each transaction in the second item. It does not mention the obligation to pay fees to any other entity than the Public Treasury. Rather, Article 3 stresses that everything that contradicts with the provisions of this decision can be annulled by a law.
Now, back to my trip 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 requested to have my transaction certified without paying the Bar Association fee of 70 Dinars. The response came the next day, when he refused certification.
The Head of the Court, Judge Wisam Al-Salaymeh, stopped at justifying the handwritten refusal by saying that he had instructions issued by the High Judicial Council. This calls for the enforcement of the system of notarized deeds as per Regulation No. (1) of 2009 issued by the Bar Association. He had added, “I decide to reject the request.”
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 notarized deeds and not canceling them, despite their illegality.
Head of the Council, Issa Abu Sharar, responded that, “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 not issued instructions to the Notary Public offices regarding notarized deeds, but it has not cancelled the system either.
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. Muhammad works in the field of land surveying and trade. He believes that lawyers do not deserve the charged sums 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. 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 Association charges only 10-12%, and the rest goes to the lawyer. Moreover, he makes you feel like he did you a favor!” he told the ARIJ reporter.
As I visited the Notary Public Office in the Ramallah Court Complex for two weeks, I met a group of applicants among whom was Masoud Hammouri. He has been working in real estate for 20 years and pays sums of up to 2,000 Dinars per month to obtain limited and periodic Powers of Attorney. He sees the Bar Association fees as exorbitant and illegal, and blames the Judicial Council for passing the imposition of the fees. “How can the Judicial Council accept to charge citizens such huge sums to seal a limited or periodic Power of Attorney? Citizens should not pay any fees except by law. We checked… there is no such law in place. There is an understanding and instructions between the Bar Association and the Judicial Council about it,” he said. Although he knows that these fees are illegal, Hammouri, who is 44 years old and from Ramallah, is forced to pay them. “If I don’t pay the lawyer and the Bar Association, the Notary Public will refuse to certify my periodic Power of Attorney. If I want to carry on with my business, I have to pay, and this is burdensome to everyone,” he added.
A 69-year-old, speaking on the condition of anonymity, complained that the fees are exorbitant. He believes that the Bar Association wants to employ the largest possible number of its members at the expense of the people by imposing the fees.
As for me, I have the limited Power of Attorney for my friend’s car, but without approval. Practically, it is not worth the ink that is on it since it is invalid because I refused to pay the Bar Association fees. My friend urged that we pay the fees because he cannot spend time following up on license and insurance renewal as he awaits a kidney transplant. But once it became clear that the fees were illegal, I decided not to go through with the procedures of certifying the Power of Attorney. The case is pending a court challenge on the fees included in the regulations of the Bar Association, but success feels slim in light of reluctance from lawyers to take on a case against their own Association.