COMMISSIONERS FOR OATHS MANUAL

Transcription

1 MANUAL For Non-Advocates and Solicitors, Court Interpreters and Employees of Designated Non-Profit Organisations This Manual is intended for the guidance of all commissioners for oaths. Questions may arise which are not covered by this Manual, in which event application may be made to the Board of Commissioners for Oaths and Notaries Public for a ruling. Copies of the Board s rulings will be circulated to all commissioners for oaths for their information and also for incorporation into section 5 of this Manual ( Questions and Answers ). Due to time constraints, such rulings may have application to future cases rather than the immediate case out of which the ruling has arisen.

2 TABLE OF CONTENTS 1. BACKGROUND AND HISTORY PAGE Background and Legal Framework Page Categories of Persons eligible for Appointment Page Revocation of Appointment Page 7 2. FUNCTIONS AND POWERS PAGE Language Page Register of Documents Page Fees Page Oaths and Declarations Act (Cap 211) Page Formality for the Taking of Oaths Page Commissioning via Video-Conferencing Page CHECKLIST OF RECOMMENDED STEPS PAGE CHECKLIST OF RECOMMENDED DON TS PAGE QUESTIONS & ANSWERS PAGE 18

3 1. BACKGROUND AND HISTORY 1.1 Background and Legal Framework "Commissioners for oaths" include the Registrar, the Deputy Registrar and the Assistant Registrars, and those other persons successfully applying for and appointed by the Senate of the Singapore Academy of Law. Such persons include advocates and solicitors, court interpreters, officers in the employment of government ministries, departments, statutory boards, government-linked companies and employees of designated non-profit organisations who are considered fit and proper persons to be appointed to administer oaths (including affirmations and declarations) within the Republic of Singapore as more particularly set out under section 68(2) of the Supreme Court of Judicature Act (Cap 322) ( SCJA ) subject to any limitations expressed in the Act or in their appointments. The Senate has delegated the power to appoint commissioners to the Board of Commissioners for Oaths & Notaries Public under the Singapore Academy of Law Rules. Under rule 4 of the Commissioners for Oaths Rules, commissioners for oaths (of all categories) shall be appointed for a period of one year, subject to their being entitled to apply for re-appointment for each subsequent year as the Senate may, in its discretion, decide. The Supreme Court of Judicature Act (Cap 322) Section 68(1) The Registrar, the Deputy Registrar, and the Assistant Registrars shall be ex-officio commissioners for oaths. Section 68(2) of the Supreme Court of Judicature Act (Cap. 322) provides that the Senate of the Singapore Academy of Law may appoint commissioners for oaths. Page 3 of 20

4 By virtue of rule 11(1) of the Singapore Academy of Law Rules, the Senate appointed a Board of Commissioners for Oaths and Notaries Public ("The Board") consisting of (a) (b) (c) (d) (e) a chairman who shall be a member of the Senate; one judicial officer nominated by the Chief Justice; one public officer nominated by the Minister for Law; one advocate and solicitor nominated by The Law Society; and a secretary. power By virtue of rule 11(2) of the Singapore Academy of Law Rules, the Board shall have the (a) (b) (c) (d) (e) to appoint and reappoint commissioners for oaths and notaries public and to revoke or suspend existing appointments; to inquire into complaints against persons alleged to have acted in breach of the conditions of their appointments as commissioners for oaths or notaries public and where appropriate to revoke or suspend their appointments; to review the fees payable to commissioners for oaths and notaries public and, if the Board thinks fit, make recommendations to the Senate for amendments to such fees; to make recommendations to the appropriate authority for the enactment of new legislation or the amendment of existing legislation in relation to all matters concerning commissioners for oaths and notaries public; and to carry out such other duties as may be assigned by the Senate. By virtue of rule 4(1) of the Commissioners for Oaths Rules, a commissioner for oaths shall be appointed for a period of one year. Page 4 of 20

5 with Acts and Rules affecting commissioners for oaths, which he should familiarise himself (a) the Supreme Court of Judicature Act (Cap 322); (b) the Singapore Academy of Law Rules; (c) the Commissioners for Oaths Rules and Commissioners for Oaths (Amendment) Rules; (d) the Oaths and Declarations Act (Cap 211). Page 5 of 20

6 1.2 Categories of persons eligible for appointment Pursuant to section 68(3) of the Supreme Court of Judicature Act (Cap 322), the Senate of the Singapore Academy of Law has enacted Rules known as The Commissioners for Oaths Rules. Under rule 3 of the Commissioners for Oaths Rules, the following categories are eligible for appointment (a) (b) (c) (d) An advocate and solicitor who has for an aggregate period of not less than 7 years been in active practice or been a legal officer; Officers in the employment of Government ministries, departments, statutory boards and Government-linked companies; Court interpreters; and Employees of designated non-profit organisations. Page 6 of 20

7 1.3 Revocation of Appointment Rule 13 of the Commissioners for Oaths Rules The appointment of a commissioner for oaths shall be deemed to be revoked (a) (b) (c) (d) (e) when he is adjudged a bankrupt; when he is convicted of an offence for which he is sentenced to a term of imprisonment (except where the imprisonment is imposed in default of payment of a fine); in the case of an officer in the employment of Government ministries, departments, statutory boards and Government-1inked companies or a court interpreter, when he is dismissed from service or reduced in rank or his employment is terminated; in the case of an advocate and solicitor, when he is suspended or struck off the roll of the Supreme Court of Singapore; or in the case of an employee of a non-profit organisation designated under rule 3(4), when (i) his employment is terminated; or (ii) the Senate withdraws the designation of the non-profit organisation under rule 3(5). Any commissioner for oaths whose appointment is automatically revoked in accordance with (a) to (e) shall return to the Secretary his certificate of appointment and commissioner s stamp. Page 7 of 20

8 2. FUNCTIONS AND POWERS Section 68(2) of the Supreme Court of Judicature Act (Cap 322) The Senate of The Singapore Academy of Law may appoint fit and proper persons to be commissioners for oaths (subject to any limitations expressed in their appointment) who may do all or any of the following things (a) receive acknowledgements of married women in all cases where such acknowledgements are required by law to be taken before a public officer; (b) receive acknowledgements of recognisance of bail and bail bonds; (c) administer oaths for (i) the justification for bail; (ii) taking any affidavit or affirmation; (iii) receiving and taking the answer, plea, demurrer, disclaimer, al1egation or examination of any party or parties to any action; (iv) the examination of any witnesses upon any interrogatories or de bene esse or in chief or on any other occasions; (v) swearing executors and administrators; and (vi) swearing persons in any cause or matter which is pending or about to be instituted in any court in any of its jurisdiction; (d) take and receive statutory declarations. Officers in the employment of Government ministries, departments, statutory boards and Government-linked companies can take and receive the documents specified in Schedule I of their applications and subject to such other limitations as the Senate may determine or as may be stated in the certificate of appointment. Generally they should handle documents relevant to their organisation. Court interpreters can administer oaths in accordance with Section 68 of the Supreme Court of Judicature Act (Cap 322), subject to such limitations as the Senate may determine or as may be stated in the certificate of appointment. Employees of designated non-profit organisations will have to abide by the restrictions found in their certificates of appointment. Page 8 of 20

9 2.1 Language Non-advocates and solicitors, court interpreters and employees of designated non-profit organisations who are commissioners for oaths are entitled, consistent within the confines of their authority, to proceed in terms of section 68(2) of the Supreme Court of Judicature Act (Cap 322) to administer and take oaths and statutory declarations in any other language, but it is advisable for court interpreters and any other commissioner taking any Affidavits signed by a deponent for Court proceedings to ensure that the attestation should be in one of the forms set out under Form 78 of the Rules of Court. However, all commissioners for oaths in respect to an Affidavit to be sworn or affirmed by an illiterate or blind person should ensure that the attestation should be in the form provided in the specified forms of attestation set out in Form 78 of the Rules of Court. Page 9 of 20

10 2.2 Register of Documents Rule 12 of the Commissioners for Oaths Rules Every commissioner for oaths shall (a) keep a register of documents administered in exercise of his appointment; (b) furnish such information as the Secretary may require; and (c) make the register available for inspection by the Secretary of the Senate upon request. REGISTER OF DOCUMENTS COMMISSIONER FOR OATHS (SPECIMEN ONLY) S/No. Date Name of Deponent Type of Document Executed Commissioner for Oath s Fee Disbursements, if any Remarks, if any NAME OF COMMISSIONER FOR OATHS : SIGNATURE : Page 10 of 20

11 2.3 Fees Non-advocates and solicitors and court interpreters wishing to charge fees must first check whether their organisations allow them to do so. They should also check the Instruction Manuals and/or Government circulars applicable to their organisations. The position may vary as between organisations: the Board is not able to offer advice in this respect. Page 11 of 20

12 2.4 Oaths and Declarations Act (Cap 211) By virtue of section 11 of this Act, the form of declaration to be given by the declarant before a commissioner for oaths shall be - "...I[here insert name, address and occupation of person making the declaration], do solemnly and sincerely declare [here insert matter declared to. Where the matter is long, add the words as follows and then set out the matter in numbered paragraphs]....and I make this solemn declaration by virtue of the provisions of the Oaths and Declarations Act (Cap. 211), and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular. [signature of person making the declaration] Declared at this day of Before me, [signature of person before whom the declaration is made] [here insert title of person before whom the declaration is made] It is also important to bear in mind that a deponent furnishing a false statement in a statutory declaration renders himself liable under section 14 of the Oaths and Declarations Act to imprisonment for a term which may extend up to seven years and shall also be liable to a fine if such statutory declaration were to be used in judicial proceedings, and in any other case for a term of imprisonment up to three years and shall also be liable to a fine. Page 12 of 20

13 In general, all that a commissioner for oaths is required to do when taking an affidavit is to satisfy himself (a) (b) (c) (d) (e) (f) (g) that he can communicate with the deponent in the language or dialect that the deponent can understand; as to the identity of the deponent by requesting to see his identity card, passport, driver s licence or other means of identification; that the deponent is competent to depose to the affidavit; where applicable, enquiring of the deponent if the contents of the document have been interpreted for him; enquiring of the deponent if he understands what he is about to swear to; that the deponent knows that he is about to be sworn to the truth of the statements in his affidavit; and that the exhibits (if any) are the documents referred to in the affidavit. If the answers to the commissioner s questions on the above points are satisfactory, he can proceed to administer the oath and call upon the deponent to sign the affidavit. The responsibility for the contents of the affidavit rests with the deponent and the solicitor who prepares it. A commissioner is not expected to acquaint himself with the contents of the affidavit, much less to double-check its correctness. Similarly, marking an exhibit does not mean that the commissioner has approved its correctness. The responsibility is that of the deponent and his solicitor. Of course, a commissioner who already has personal knowledge that the contents of an affidavit are false should not proceed to administer the oath. The oath must be taken whilst the deponent is present before the commissioner. This applies equally with regard to statutory declarations and other documents usually taken by a commissioner. An oath cannot be administered in absentia. Thus, for example, telephone calls from people who say that an affidavit duly signed by its deponent is being sent over to the commissioner are not acceptable. It is not common for minors to sign affidavits. As the oath or affirmation can be taken for minors who testify in court, it should also be possible for minors to sign affidavits. However, extra care should be taken to ensure that the minor fully understands what he is doing. Page 13 of 20

14 2.5 Formality for the Taking of Oaths In making an oath or affirmation, the commissioner for oaths should get the deponent to raise his right hand and repeat after the commissioner the following words as found in the Rules of Court: Form 217 of Rules of Court Form of Oath I swear by Almighty God that the contents of this affidavit are the truth, the whole truth and nothing but the truth. So help me God. OR Form 218 of Rules of Court Form of Affirmation I solemnly and sincerely declare and affirm that the contents of this affidavit are the truth, the whole truth and nothing but the truth. For non-english speaking deponents, the commissioner would assist the deponents by translating the above words into the language of the deponents. This formality is not applicable for deponents who are making statutory declarations. Page 14 of 20

15 2.6 Commissioning via Video-Conferencing A commissioner for oaths may administer oaths (for inter alia taking any affidavits or affirmation) or take and receive statutory declarations via video-conferencing link. The commissioner for oaths should follow the guidelines for such acts as if the deponent were appearing in person. The commissioner for oaths should be able to confirm that the person who signs the document is the person he claims to be and that the document he signs is the same document that the commissioner himself later signs. Without prejudice to the generality of the foregoing, the commissioner for oaths should (a) (b) (c) (d) be able to personally verify by visual inspection of a suitable identity document that the person whose image appears before him, is in fact the named deponent; maintain visual contact with the deponent throughout the commissioning, in particular, of the deponent executing the document; and have the means to, where necessary, read, interpret and explain the document (eg. by use of a visualiser); and be able to confirm that the document which the commissioner later signs is the same sworn or affirmed by the deponent. For instance, that the document executed is under the safe custody of the office of the commissioner. Lastly, commissioners are reminded that they should only take such documents as they are specifically authorised to do under rule 7 of the Commissioners for Oaths Rules. Page 15 of 20

16 3. CHECKLIST OF RECOMMENDED STEPS (a) Ensure that the deponent is present before you when you administer an oath to him or when you take and receive any document from him. (b) Enquire in the language or dialect of the deponent whether he understands what he is about to swear to, and whether he knows that he is about to be sworn by you as a commissioner for oaths to the truth of the statements in his document (including attached exhibits, if any). (c) Satisfy yourself that the deponent is apparently competent to depose to the affidavit. (d) Ensure that the document before you falls within the categories of documents you are empowered to deal with as a commissioner for oaths. (e) Ensure that the formalities for making an oath or affirmation have been carried out. (f) Check whether you will have to give an attestation in one of the forms provided in Form 78 of the Rules of Court. In this respect, check the provisions of Order 41 of the Rules of Court. (g) Ensure that the document is stamped with your valid expiry date stamp. (h) Keep a Register of all documents administered see rule 12 of the Commissioners for Oaths Rules. (i) Comply with the Commissioners for Oaths Rules. If you do not have a copy of the Rules, you can try contacting Singapore National Printers Corporation Ltd to find out where you can obtain them. Page 16 of 20

17 4. CHECKLIST OF RECOMMENDED DON TS (a) Do not administer oaths or take documents in the absence of the deponent. (b) Do not try to master the substantive contents of the document or to give the deponent instructive criticism about the contents of the document it is not part of your responsibility as a commissioner for oaths. (c) Do not act outside the scope of your powers as defined by section 68(2) of the SCJA and the existing Commissioner for Oaths Rules. For example, do not attempt to witness a will in your capacity as commissioner for oaths. Note also that you should not certify true copies of documents in your capacity as commissioner for oaths you can certify true copies in some other official capacity if this is permissible (for example, in your capacity as advocate and solicitor). (d) If it comes to your notice that the affidavit or declaration before you is incomplete (for example, because it contains blanks), do not deal with it until the blanks are filled in. (e) Do not deal with the document when the deponent is not rational or capable of affirming or swearing to the truth of its contents - for example, because he is drunk or of unsound mind. Whilst it is not always easy for a commissioner to decide whether a deponent is mentally rational and capable of understanding what he is about to affirm or swear to, a commissioner is entitled to take into account the deponent s behaviour before him. If you know that the deponent was a patient in a mental hospital, you should get a medical opinion as to whether he is fit and capable of making the affidavit or declaration. (f) It is not part of your responsibility as a commissioner to double-check the correctness of the contents of the document before you. However, if you already know that the document is false, do not proceed to administer the oath. (g) Do not continue to act as a commissioner for oaths when your appointment has expired or when it has been revoked or suspended. Page 17 of 20

18 5. QUESTIONS & ANSWERS 5.1 Functions of a Commissioner for Oaths Question. Can a non-advocate and solicitor who is appointed as a commissioner for oaths witness in his capacity as commissioner the signing of certain forms or documents? Answer. It is not part of the duties of a commissioner for oaths to act as a witness to the signing of any forms or documents. A non-advocate and solicitor who is appointed as a commissioner for oaths and who is called on to witness the signing of any forms or documents should do so in some other official capacity, rather than in his capacity as a commissioner for oaths Question. To what extent should the commissioner investigate to ascertain whether a deponent is of unsound mind? Answer. The commissioner can use his own judgment as to whether someone is of unsound mind. If the deponent appears to be of sound mind, the commissioner can proceed with commissioning. Page 18 of 20

19 5.1.3 Question. For a deaf and dumb deponent, must the commissioner be familiar with sign language? Answer. For a deaf and dumb person, the commissioner should be able to communicate directly with the deponent, whether in sign language or in writing; if the commissioner is not able to communicate directly with a deponent, a qualified and independent interpreter can be used. The interpreter should then make a statutory declaration that he had made an independent interpretation to the deponent Question. How long should the commissioner keep the register of documents under the Commissioner for Oaths Rules? Answer. For the register of documents required of commissioners, the retention period would depend on the guidelines of the commissioner s organisation Question. Can a minor swear an affidavit/statutory declaration? Answer. Minority, per se, is not a bar to a minor swearing/affirming an affidavit or making a statutory declaration. The commissioner ought to take precautions to ascertain that the minor understands the contents of the document and understands the implications of swearing/affirming an affidavit or making a statutory declaration. Page 19 of 20

20 5.1.6 Question. If the schedule in the application indicates that the commissioning of the subsidiary company's documents is included, can a public officer in a holding company commission documents for (a) staff of its wholly-owned subsidiary company; or (b) staff in a sole proprietorship wholly owned by its subsidiary company (also wholly owned)? Answer. As stated in the Certificate of Appointment for Commissioners for Oaths, the appointment of the said commissioner for oaths is subject to his remaining with the organisation. Generally, commissioners can only handle documents which pertain to their own organisations. Strictly speaking this would exclude the documents of subsidiaries. Page 20 of 20