Sworn Statements Commissioner for Oaths Notary Public

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Sworn Statements

            A sworn statement can be described as an oral or written assertion of fact made under oath. Such statements commonly take the form of affidavits, statutory declarations and oral testimonies.

A sworn statement, in contrast to a regular statement, if proven to be untrue, constitutes an offence which the person may be prosecuted.

Sworn Statements – Affidavits

            An affidavit is a written statement from an individual which is sworn to be true. Affidavits are commonly used where a civil matter began by way of originating summons or petition, where affidavits are a requirement. Affidavits are also used for summary judgement, winding-up petition, admiralty matters, matrimonial petition etc. Such uses of affidavits are exceptions to the general rule that evidence in trial must be oral and direct.

For an affidavit to be valid, it must comply with Order 41 of the Rules of Court 2012. Furthermore, an affidavit must also be affirmed before, inter alia, a Commissioner for Oaths, a consular officer (where the affidavit is sworn overseas[1]) and a notary public (for the purpose of being used in any court or place outside Malaysia[2]).

If an individual makes a false affidavit, he may be guilty of an offence under Section 199 of the Penal Code.

Commissioner for Oaths

            A commissioner for oaths is any person appointed by the Chief Justice under Section 11 of the Court of Judicature Act 1964. The main role of a commissioner for oaths is to certify sworn statements.

The powers of a commissioner for oaths are laid down in Rule 9 of the Commissioners for Oaths Rules 2018 (hereinafter CoO Rules) (Rule 10 CoO Rules for commissioner for oaths who are not advocates and solicitors), reflecting those powers in Section 11 of the Court of Judicature Act 1964. Most commonly, they affirm affidavits[3] and statutory declarations.[4]

Notary Public

            A notary public is any person appointed by the Attorney General pursuant to Section 3(1) of the Notaries Public Act 1959.

            The powers of a notary public are defined under Section 4 of the Notaries Public Act 1959. Under Section 4(1), a notary public may exercise all powers and functions ordinarily exercised by notaries public in England[5]. These functions include, but are not limited to, translate documents from English into a foreign language and vice versa, authenticate and verify examined copies of documents etc.[6]

            Furthermore, in addition to the powers conferred under Section 4(1), a notary public may also exercise any powers under Section 4(2). Powers under Section 4(2) include, inter alia, administering any oath or affirmation in connection with any affidavit or statutory declaration for the purpose of being used in any court or place outside Malaysia and attesting to the same.

Differences between Commissioner for Oaths and Notary Public

  Although both Commissioner for Oaths and notaries public have similar roles, they have some differences.

The first difference, which is arguably the largest difference, is that a Commissioner for Oaths certify documents which is intended to be executed in Malaysia and on the contrary, a notary public administers oaths and affirmations for sworn statements for the purpose to be used outside of Malaysia. A notary public does not have the powers to administer an affidavit or a statutory declaration which is executed for the purpose of being used in Malaysia, or take or attest any such affidavit or statutory declaration.[7]

Furthermore, the fee structure of a notary public and a commissioner for oaths is largely different. The fee structure of a notary public is governed by Section 17 and the Second Schedule of the CoO Rules 2018. On the other hand, a notary public’s fee structure is defined in the Notaries Public (Fees) (No.1) Rules 1981(PU(A) 198/81).

Conclusion

            In conclusion, sworn statements carry great weight and hence as a natural result, the consequences of an untrue sworn statement are equally great. Commissioner for Oaths’ and notaries public play a pivotal role in maintaining the integrity of sworn statements through the strict regulations surrounding their conduct.

Bibliography


[1] Order 41, Rule 12 of the Rules of Court 2012

[2] Section 4(2)(a)(iii) of the Notaries Public Act 1959

[3] Rule 9(1)(c)(ii) CoO Rules 2018; Rule 10(1)(a)(ii) CoO Rules 2018

[4] Rule 9(1)(d) CoO Rules 2018; Rule 10(1)(b) CoO Rules 2018

[5] Section 4(1) Notaries Public Act 1959

[6] Vol. 31, Halsbury’s Statutes of England and Wales (4th Edition), Butterworth & Co. (1987)

[7] Section 4(1) Notaries Public Act 1959

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