Second Reading Speech by Senior Parliamentary Secretary Rahayu Mahzam on the Constitution (Amendment No. 2) Bill, and the Oaths, Declarations and Notarisations (Remote Methods) Bill
02 August 2023 Posted in Parliamentary speeches and responses
- Mr Speaker, on behalf of the Minister for Law, I beg to move, “That the Bill be now read a Second time”.
- Sir, this Constitution (Amendment) Bill is linked to the next Bill on the Order Paper, the Oaths, Declarations and Notarisations (Remote Methods) Bill.
- May I therefore propose, with your permission, that the substantive debate on both Bills takes place now.
- Members are welcome to raise questions or express their views on both Bills during the debate. We will still have the formal Second Reading of the Oaths, Declarations and Notarisations (Remote Methods) Bill to ensure that the procedural requirements are satisfied.
- Thank you, Sir.
- Sir, this Constitution (Amendment) Bill, and the Oaths, Declarations and Notarisations (Remote Methods) Bill, concern the way in which a statutory declaration, oath and affirmation, or notarial act is to be made or done in Singapore.
- Let me first briefly explain what a statutory declaration, oath and affirmation, and notarial act is, before I take Members through the key aspects of these Bills.
(a) In brief, a statutory declaration is a written statement that a person signs, and solemnly declares to be true.
- Making a false statutory declaration is a serious criminal offence. For example, producing a false statutory declaration to a Court can result in a jail term of up to 7 years.
- Apart from use in court proceedings, statutory declarations may also be taken for a myriad of commercial or regulatory purposes such as registering a ship, declaring that a company is solvent, transferring a bill of sale, or affirming that contractual obligations have been complied with.
- Some public agencies may also require certain applications to be supported by a statutory declaration.
For instance, applications to the Registrar of Titles for a replacement Certificate of Title must be accompanied by a statutory declaration setting out the circumstances leading to the loss of the original Certificate.
- Given the weight that can be placed on facts set out in a sworn statutory declaration, and the serious consequences associated with making a false statutory declaration, the law today requires a statutory declaration to be made in a specific form and manner.
- Therefore, a statutory declaration must take the form that is set out in the Oaths and Declarations Act.
- And it must also be made before an authorised person such as a Commissioner for Oaths, or CFO for short, who will check the identity of the declarant, and ensure that the declarant is aware of what he is doing; and aware of the consequences of making a false declaration.
(b) Next, an oath or affirmation is a solemn declaration by which a person swears or affirms that what he says is the truth, or that he will do as he has promised to do.
- There is a wide range of circumstances in which a person may be required to take an oath. But most oaths fall within two broad categories.
- First, a person – such as a witness – may be required to take an oath before giving evidence, for example, to a court or tribunal.
- Second, a person may also be required to take an oath if he or she is appointed to an office such as that of a Judge. For example, before assuming office, Supreme Court Judges are required under the Constitution to solemnly swear to faithfully discharge their judicial duties, and do right without fear or favour.
(c) Last, I come to notarial functions that are performed by a Notary Public in Singapore, or NP for short.
- From time to time, individuals or businesses may need to obtain a notarial act from a Notary Public. For example –
- An individual may need a certified true copy of an original document such as his identity card or academic certificate to apply to a foreign educational institution for further studies; or
- A business may need a Notary Public to witness the due execution of a document that is meant for use overseas.
- The process of obtaining a notarial act is a stringent one:
- Notaries must keep a full and accurate record of the whole procedure.
- Further, each notarial certificate issued by the Notary Public is serialised, and must be presented to the Singapore Academy of Law for authentication.
- This mitigates the risk of forgery, safeguards the integrity of the process, and provides foreign recipients with the assurance that they need in order to rely on documents that are notarised by a Notary Public in Singapore.
- As members will have gathered from the brief explanation that I have given, historically, and today, the process for –
- Making a statutory declaration;
- Taking an oath or affirmation; or
- Obtaining a notarial act,
is stringent and subject to several requirements, including the need to, generally, appear in-person before an authorised service provider such as a Commissioner for Oaths, or a Notary Public. Further, the process is often paper-based, involving the use of wet ink signatures. These requirements all help to ensure the integrity of the process – for the reasons I have outlined earlier.
- Technology has improved drastically, over the years. It is now possible with the touch of a button to see and hear, through video conferencing software, a person who is on the other end of Singapore – something unthinkable when these requirements were first formulated centuries ago. Society is also increasingly comfortable with relying on digital processes.
- Where possible, it is important that the law does not hinder but instead supports innovation and digitalisation of business processes, whilst ensuring that necessary safeguards are maintained or strengthened.
- These Bills therefore seek to put in place a framework that will –
(a) enable statutory declarations, oaths and affirmations, and notarisations to be done through electronic means,
(b) whilst ensuring the integrity of these processes, and maintaining a high degree of security against fraud.
- This is in line with the Government’s ongoing efforts to facilitate electronic transactions, by progressively reviewing and updating the relevant legal frameworks in place. Just to give a few recent examples, in 2021, this House enacted:
(a) The Courts (Civil and Criminal Justice) Reform Act which empowered the Courts to conduct hearings remotely;
(b) The Electronic Transactions (Amendment) Act, which enabled the creation and use of electronic bills of lading; and
(c) The Mental Capacity (Amendment) Act, which enabled the creation and registration of electronic lasting powers of attorney.
II. Key Aspects of the Bills
- Let me now highlight two key aspects of the framework for Members.
- The first aspect is that of electronic meetings with authorised service providers.
(a) Where a client is currently required by law and practice to appear before an authorised service provider to make a statutory declaration, take an oath, or obtain a notarial act,
(b) The framework under the Oaths, Declarations and Notarisations (Remote Methods) Bill will make it clear that the client and authorised service provider are allowed to meet using stipulated electronic means of communication.
(c) The Bill sets out certain minimum requirements relating to the quality of such electronic means of communication.
(d) And we also intend to prescribe further procedural requirements or safeguards that parties must comply with, in subsidiary legislation.
(e) The Board of Commissioners for Oaths and Notaries Public under the Singapore Academy of Law also intends to issue refreshed guidelines that will assist CFOs and NPs in carrying out their functions under this framework. We understand that these guidelines will include guidance on the circumstances in which it may be inappropriate for a CFO or NP to provide their services remotely.
(f) In some cases, such as oaths of office that are taken by officeholders under the Constitution or other Acts, the Bills will make clarificatory amendments so as to provide for greater legal certainty.
- The second aspect is that of electronic signing.
(a) For statutory declarations, the Oaths, Declarations and Notarisations (Remote Methods) Bill will provide clearly that these instruments can be signed using an electronic signature. There are various types of electronic signatures. As a safeguard for statutory declarations, it will be necessary to only use the type of electronic signature that will be prescribed in subsidiary legislation. In deciding the type of electronic signature to prescribe in subsidiary legislation, we will consider factors such as performance standards, security, reliability, and ease of access for Singaporeans.
(b) For notarial acts or oaths that must be subscribed with a signature – such as oaths administered in the course of judicial proceedings, or oaths taken by officeholders under the Constitution – the Constitution (Amendment) Bill, and the Oaths, Declarations and Notarisations (Remote Methods) Bill do not change the position in relation to how these should be signed.
Notarial acts or oaths arise in a variety of situations, with different needs and circumstances. We will therefore leave the precise signing requirements to be determined by the relevant sectorial agency.
III. Additional Points of Note
- Before I conclude, Mr Speaker, let me touch on a couple of points.
A. Framework is enabling and not prescriptive
- The first point is that the framework is enabling, and not prescriptive.
(a) It provides individuals, businesses, and service providers with an electronic option, for the various legal processes that I have spoken of.
(b) The framework does not require or mandate the use of such electronic options.
(c) This means that the public can continue with their existing in-person and/or paper-based processes, if they wish.
- It follows that the legislative framework does not oblige government agencies, a Commissioner for Oath, or a Notary Public to provide or adopt an electronic option.
- For example, public agencies administer or require the taking of statutory declarations or oaths in a wide variety of circumstances. There may be important, or simply practical, reasons, for physical processes to continue.
(a) It may be that certain oaths of office or other Constitutional oaths continue to be taken in person as a general rule, because of the gravity and solemnity associated with such oaths.
(b) In other cases, it may be that the agency in question has some specific policy or practical reason to require a person’s physical presence when taking a statutory declaration or oath.
B. Statutory declarations and notarial acts that involved remote witnessing before the legislative amendments take effect
- The second point relates to statutory declarations and notarial acts that have already been made in a process that involved remote witnessing. For example, this may have been done during the COVID-19 pandemic, when movement restrictions were in place.
- Given the lack of clarity in the current law on whether these processes can be conducted remotely, the Oaths, Declarations and Notarisations (Remote Methods) Bill will make it clear that no statutory declaration or notarial act made or carried out prior to these amendments will be invalidated solely because video conferencing was used. This should address concerns around the validity of statutory declarations or notarial acts made in a process involving remote witnessing before this Bill.
- The validation clauses under the Oaths, Declarations and Notarisations (Remote Methods) Bill apply only to those statutory declarations and notarial acts that were done using a live video or live television link. So, for example, a statutory declaration or notarial act that was done only by telephone will not be validated.
- The validation clauses also do not affect a person’s right to challenge the validity of a statutory declaration or notarial act on the basis that some other requirement, apart from the in-person witnessing requirement, was not met.
- The framework I have just outlined is crafted, to strike a balance between convenience and efficiency on the one hand, and safeguarding the integrity of the process on the other hand. The Bills have also been designed to be as technology-neutral as possible, with details devolved to subsidiary legislation, so that the framework and its associated safeguards can be updated from time to time to keep pace with technological developments.
- Mr Speaker Sir, I beg to move.
Last updated on 02 August 2023