'/%3E%3C/svg%3E "Youtube"){kind=small}
This investigation uncovers how fees are imposed by the Palestinian Bar Association upon legalisation of notary documents, despite the Palestinian Basic Law that prohibits imposing fees not stipulated by law.
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.