Litigation Authorizations: The Association’s Obstacle for Lawyers and Litigators

Published November 9th, 2020 - 02:03 GMT
The Cassation Court Makes No Distinctions and Prior Permissions Conquer Judiciary Fortresses
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Highlights
The Cassation Court Makes No Distinctions and Prior Permissions Conquer Judiciary Fortresses

By Ohood Mohsen

Fifty-year-old Abdullah was defrauded by a lawyer who abused the Power of Attorney granted to him by his client, and sold his land for 5 million Jordanian Dinars ($7 million). When Abdullah sought to regain his rights, the land and his money, his new lawyer was unable to obtain authorization from the Bar Association to sue his opponent. On top of that, Abdullah was imprisoned for a bad check. After being stripped of his freedom, land and money, Abdullah turned to a second lawyer, George Hazboun, in January 2019, hoping to recover what is rightfully his. However, the veteran lawyer was unable to plead his case because the President of the Bar refused to grant him the authorization to conduct litigation against another lawyer.

Eventually, Abdullah’s family caved in to a financial settlement in order to bail him out of prison a month after his arrest.

 

According to Article 62 of the 1972 law regulating the legal profession and people working in it, the Bar Association requires that all its members obtain “litigation authorization” in the event of dispute against a colleague. Despite the issuance of five decisions by the Cassation Court between 2011 and 2019 denying the impact of litigation authorizations on trial procedures, the Association continues to withhold permits.

Article 62 of the Bar Association Law states: “A lawyer shall not accept to represent a lawsuit against a colleague or against the Bar Council before obtaining authorization from the President of the Association.”

But the Association refuses to grant authorizations without explanation and without even documenting litigation requests. Rather, as this investigation has found, it is content with verbal responses attributed to the President of the Association. In the meantime, complaints become outdated and litigators lose their rights, in violation of criminal and civil procedures and penalties, especially after the legal deadlines for litigation expire.

Legal periods for appeals are deadlines or periods during which the legislator allows the aggrieved party to challenge the rulings issued by the court. The duration of the appeal varies by the court’s degree. Most are 30 days, with the exception of the Magistrates’ courts, which set the duration at 10 days from the date of the decision, according to the lawyers the investigator met.

Ahmad Tbaishat is a legal expert, former president of the Association and a former Constitutional Court judge. He says that Abdullah’s case and the Association’s efforts to block litigations based on the president’s discretionary powers show an infringement on guarantees of fair trials and a breach of Constitutional texts.

“Blocking the granting of litigation authorisations arbitrarily [for nearly 10 years] is inconsistent with the Jordanian Constitution, which guarantees basic rules of equality among Jordanians on the one hand and fair trial guarantees on the other hand,” he told ARIJ.

He added that the act also constitutes “a flagrant violation of human rights and international legislation.”

Lawyer Mazen Al-Tawil also describes the act of blocking litigation permits as an “arbitrary” application of texts and a violation of the Constitution.

Lawyer Nour Al-Imam sees that relying on Article 62 “is neither sufficient nor legally valid to completely stop granting litigation authorisations and to do so without giving reasons.”

Al-Imam quickly follows this up with an explanation that the issuance of decisions by the Cassation Court in this regard does not exempt violators of the Association’s order from facing disciplinary penalties that could go as extreme as suspension from work.

Constitutional expert Dr. Mohammad Al-Hammouri explains that the Cassation Court’s decisions do not cancel the Association’s law. Rather, it considers blocking litigation permits an internal behavioural matter that is not supposed to impact the trajectory or outcome of trial procedures.

Dr. Mustafa Yaghi, a lawyer and member of the Parliament's Legal Committee, confirms that the Association’s law “does not hinder or block the right to litigation. Instead, it is a restrictive clause that is not absolute and must be applied within the given conditions of each case.”

In Yaghi's opinion, the Association Law grants the President discretionary powers in criminal cases. This is part of the norm and etiquette of the legal profession stipulated by law and similar to the permission to litigate ministers as per the Jordanian Constitution.

The President of the Association Blocks Permissions

Mazen Irsheidat is currently in the second term of his presidency that started in 2017, and he disagrees with Tbaishat’s opinion. He wonders how “the issuance of the Law of the Bar Association in 1972 could contradict with the Constitution.” Irsheidat, who headed the Association in the first term between 2011 and 2013 disagrees with his predecessor, and says, “Based on this point of view, the Association law itself is unconstitutional then. Until this law changes, we will continue to abide by its provisions.”

Despite repeated efforts, the Association refuses to mention the number of requests and/or rejection cases of “litigation permissions”, and they were not registered or archived in the minutes of the Bar Association sessions, hence the difficulty of following up on them or knowing their fate.

According to lawyers and based on the investigator’s examination, there is also no approved form for submitting authorizations in writing to the President on the website.

Cheating the Law

In 2017, lawyer Mohammad Hamza Al-Azizi requested litigation authorization from the Bar Association in order to prosecute a colleague on charges of forging his client’s documents.

The lawyer refused to photocopy the documents since doing so would violate his client’s privacy, but when the investigator reviewed them, they revealed that the opposing lawyer forged a Bill of Exchange (BOE) and Power of Attorney in his name in collusion with partners in the country of the complainant. They then sold the West Amman apartment she owned.

The lawyer was able to forge the Bill since he had Power of Attorney from his client who is Arab, but not Jordanian. He was not challenged on the presale procedures when he filed a lawsuit against her with the help of his partners, after which she was blocked from entering Jordan due to her failure to pay the Bill.

The lawyer then agreed to put the apartment up for sale in a public auction through the Judicial Execution Department. This was part of a decision to prosecute her for her inability to be present and fulfill the value of the Bills, in addition to flagging her name at Interpol.

Interpol is an acronym for The International Criminal Police Organization, which was established in 1923 in Lyon, France as an umbrella for police services in 194 countries. The investigator was unable to cross-check this document information with the concerned lawyer since the lady in question explained that she was afraid of his reaction.

Irsheidat, the Association’s President, refused to elaborate further, but instead said that the law limits the authority to respond to the requests of lawyers “to the person of the President.”

“There is no obligation for me to respond to them or to explain anything to them, and this is in line with the enforced law,” he said.

The rapporteur of the Association’s Committee on Public Freedoms and Human Rights, Walid Al-Adwan, supports the President’s opinion. Al-Adwan confirms the issuance of decisions rejecting litigation authorizations while he also understates their impact on citizens’ judicial rights.

“In the event of their occurrence, the damages resulting from the President's decision are limited to a specific category of citizens. They are employed because they need someone to follow up on these cases,” he said.

He justifies the President’s adherence to the position of defending the lawyers through Article 62 of the Association law to prevent blackmail and slander.

He said that “90% of these cases are malicious,” but did not explain how he reached this conclusion, nor did he specify the number of requests that reach the Association or the number of those that are rejected.

 

Debate with the Association

Lawyers Walid Abdel-Hadi, George Hazboun, Hazim Shakhatreh and Ahmad Tbaishat disagree with Al-Adwan. They confirm that the President’s authority is discretionary, and that there is no justification to absolutely stop the granting of litigation permissions.

These lawyers refuse the exploitation of “litigation authorizations” to be used as a “pending punishment” in the face of those seeking judicial rights by granting immunity to those who do not deserve it, and without restrictions.

They also explain that the legislator’s intention of requesting “the President’s permission” was to preserve the reputation of the profession; it was intended to maintain respect for those who practice through controls for dealings among lawyers and to maintain bonds of affection, respect and collegiality.

 

Jordan is the Exception

Limiting the authority of granting permissions to the President of the Association in Jordan differs from neighboring countries where this power is entrusted to the Association’s Council.

Lawyer Associations in Palestine and Syria regulate mechanisms for dealing with complaints and granting permissions against their affiliates. They also set deadlines for responding to complaints and referring them to the judiciary if they are valid.

In Egypt, the legislative system sets instructions for the Public Prosecution to deal with complaints against lawyers and to investigate them.

In contrast with the dynamic nature of legislation in these three countries, Article 62 of the Jordanian Bar Association Law has not changed since it was issued half a century ago, and 23 years after its foundation in 1950. The five amendments in 1973, 1976, 1985, 2014 and 2019 that were introduced to the Association’s Law, did not include this law.

 

Estimates Due to the Absence of Data

The cases that the investigator followed over a period of six months showed attorney practices that contradict with the provisions of the Penal Code in place since 1961.

In the absence of data from the Association and its refusal to specify the number of submitted applications and granted permissions, the investigator conducted an electronic survey to study the opinions of lawyers affiliated with Facebook and WhatsApp groups. Only 15 lawyers with varying experiences of up to 20 years answered the investigator’s questions.

Two out of every three lawyers, or 10 of the respondents, confirmed that they submitted between one to three requests for permission to litigate, all of which were rejected by the Bar Association without response or explanation.

 

Fallout with the Association

The investigator reviewed 20 cases that required litigation authorizations.

One of those cases is related to the Bar Association’s failure in 2019 to fulfill a contractual agreement with lawyer Wael Al-Shaloudi. When he set out to sue the Association, it rejected 13 requests to grant him permission to dispute. He complains that this led to him losing his right to recover his dues.

In 2017, Al-Shaloudi agreed with the Association to represent it in order to collect its financial dues in the form of fines owed by companies that did not commit to appointing a legal advisor under Article 43 of the Association law. This is in addition to compensation for holidays and damage resulting from the delay in payment.

After accomplishing his mission through amicable settlements, he explains that “the Association refused to pay my fees for two years, and the President refused to grant me permission to dispute to proceed with the legal procedures and collect them. This cost me huge financial losses.”

After the repeated refusals of President Irsheidat, Al-Shaloudi resorted to filing a personal lawsuit before the Public Prosecution Office to circumvent the law. Al-Shaloudi complained that Irsheidat “abused” the application of Article 62 and dealt with “my requests as part of the incoming mail and not as a separate and classified application.”

He also criticised the “ambiguity of the mechanism of dealing with this request from a legal and administrative point of view while I was waiting for a response to it.”

After arguing with the President, Al-Shaloudi requested a written response. However, the President refused to give him one, refused to explain the rejection, and refused to respond to Al-Shaloudi's inquiries.

The lawyer expressed surprise at the President being given absolute power without any restrictions or mandates to ensure transparency and integrity in making decisions.

 

Noor Al-Imam, also a lawyer, highlights the lack of documentation of requests to obtain “permissions” in private records within the Association, leading to the President responding.

She believes that the Association law was appropriate five decades ago but does not align with the increase in the number of lawyers, which has reached around 13,711.

The Cassation Court Makes No Distinctions

In his comment on the Association’s stance, Tbaishat sees that dealing with such issues must be consistent with public interest and the laws in force. This would ensure the integrity of lawyers, and would preserve rights.

Former president of the Association, Abdel-Hadi, supports Tbaishat’s ideas.

Tbaishat confirms that he granted litigation permissions in cases that were filed against the Association’s Council when he assumed the position of President. The investigation documents a judicial decision of those filed against the Council.

“If this article had been presented to me while I was a member of the Constitutional Court (2012-2018), I would have recommended its cancellation without reference to the Association in order to preserve rights,” Tbaishat said.

Tbaishat was President of the Bar Association from March 14, 2009 until may 20, 2011

Abdel-Hadi was President of the Bar Association from March 3, 1989 until March 14, 1991

The ARIJ reporter reviewed five judicial decisions issued between 2011 and 2019 by the Cassation Court, the highest judicial authority in the country.

All five confirm that the lawyer’s failure to obtain litigation permission “does not annul the lawsuit and does not affect the validity of the litigation, as nullification cannot take place except with a text.”

The Court of Cassation limited the effect of a lawyer’s failure to obtain prior authorisation by deeming it a behavioural violation governed by the law of the Association. It has no effect on the validity of the litigation in the case or on its procedures.

The Court of Cassation is the highest judicial body in the Kingdom. It is specialised in hearing appeal cases submitted in Appeal Courts. Due to the nature of the position, the head of the Cassation Court is the head of the Jordanian Judicial Council.

A Complex Legal Loophole

When a lawyer fails to obtain a litigation authorisation, the complainant has a legal exit before registering the case directly in his/her name and then authorizing a lawyer at a later stage. However, lawyers assert that this exit is complicated and entails disciplinary consequences against them. This is because the Association considers assigning a lawyer to defend cases that were registered personally as violating the law, as explained by lawyer and rights activist Hazim Al-Shakhatrah.

According to Al-Shakhatra, normal procedures “require obtaining permission. In the event that this is not obtained, the lawyer would be subjected to the Association’s penalties that reach the point of suspending the lawyer from work.”

Al-Adwan, the rapporteur of the Association’s Committee on Public Freedoms and Human Rights, confirms this complaint and insists that “it is necessary for lawyers to abide by the Association’s law.”

He declined to cite examples of lawyers who were punished.

The Ministry of Justice

A senior source in the Ministry of Justice who requested anonymity believes that Article 62 “obstructs access to the right to litigation.” He stresses that “courts are open to everyone” according to the Constitution, especially in light of the emergence of new crimes that require assigning lawyers.

The same source added that litigation permissions are “a restriction and immunity of a special kind. It is not permissible to extend the granting of such immunities, and granting this power to the President of the Association in accordance with the text of the article violates the Constitution and the laws that regulate immunities established under these laws.”

The source insists that “the judiciary system is the protector of rights and freedoms, and it is not permissible to grant immunity to those who do not deserve it.”

He also called for the text’s amendment through legislative methods stipulated by law. This could be done by submitting a parliamentary bill of amendment, through the Prime Ministry or the Bar Association. The purpose would be to set controls on granting and blocking permissions while stating the reasons for the rejection, its legality, and to what extent it preserves the rights of lawyers and individuals.

Mustafa Yaghi, the rapporteur of the Legal Affairs Committee in the Lower House of Parliament, explains that the law’s amendment requires “the submission of a government bill to amend the law, or that 10 or more deputies submit a proposal to amend the provisions of the law or propose a new law.”

Compound Offenses

Lawyer Faris Al-Asha encountered Article 62 in 2018 when the President refused to grant him permission to litigate in a case led by a trainee lawyer.

Al-Asha complains that withholding the litigation permission “weakened the case and made it lose its essence. It resulted in a meager financial settlement that did not exceed a quarter of the real claim value.”

He added that “the perpetrator escaped impunity and was granted immunity to proceed in the path of deceit, and this is an insult to the lawyers and an infringement of the Constitution.”

The facts of the case show that the trained lawyer had violated Article 33 of the law of the Bar Association regarding trainee lawyers.

A trainee lawyer is not entitled to use the description of “lawyer” without appending it to the word “trainee,” or to take up an office, or to have his name displayed on a sign. Violators of this law would have their training extended for a period of no less than one year. If the case gets transferred to law professors, the violator shall be subject to one of the penalties stipulated in Article 63 of this law.

Grievances and confiscated rights are a result of cases placed in the hands of those in charge of an impenetrable judiciary system. This renders many people hostage to the conscience of lawyers who have mastered the act of bending laws to suit their interests. Many cases have turned into suspended pages that are gathering dust on the shelves of the Bar Association, under the mercy of a legal article designed to regulate the ethics of the profession and the behavior of its members.

 

This investigation was carried out with the support of Arab Reporters for Investigative Journalism (ARIJ).

The views expressed in this article do not necessarily reflect those of Al Bawaba News.


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