Historically, the concept of making an oath in judicial proceeding is rooted in the ancient concept divine judgement.
At common law, with the advent of a less superstitious age, statutes were subsequently enacted to promote the concept of affirmation or formal declaration, that the deponent recognises and will uphold his obligations to tell the truth.
In Malaysia, like many other common law countries, there are Commissioners for Oaths (‘CFO’) appointed with the general power to administer oaths or affirmation. This is due to the requirement that most oral and written evidence in any court’s proceedings must be sworn evidence, albeit there are some exceptions to it.
In the context of affidavits or statutory declarations, they usually need to be sworn or affirmed before a CFO as to its truthfulness before they can be admissible as evidence in the court of law.
How does CFO get appointed?
In Malaysia, a person becomes a CFO by virtue of the appointment of the Chief Justice pursuant to Section 11 of the Court of Judicature Act 1964 (revised 1972) and with the power to do such things as prescribed therein. The Chief Justice may also make rules for the appointment, conduct, fees to be charged by and for all things appertaining to CFO, which are covered under the Commissioners for Oaths Rules 2018.
Appointed Commissioners are issued with an instrument of appointment which indicates the appointment period, identification number, address of service, and operating hours.
Who may apply to be CFO?
According to the Commissioners for Oaths Rules 2018, any qualified Malaysian under the following categories of professions may apply to be appointed as Commissioners for Oaths: –
(a) an advocate and solicitor with at least 7 years of practice;
(b) a public officer;
(c) an officer of a statutory body; and
(d) a person from his past experience, as public officer or otherwise, qualifies to be appointed.
What do CFO do?
Generally, CFO are granted with the powers to administer oaths, take affidavits and statutory declarations, pursuant to Section 11 of the Court of Judicature Act 1964 (revised 1972).
As particularly provided in the Commissioners for Oaths Rules 2018, the CFO appointed from the category of advocate and solicitor has the powers to do the following: –
(a) receive acknowledgements of a married woman as required by the law;
(b) receive acknowledgements of recognizances of bail or bail bonds;
(c) administer oaths for: –
(i) justification for bail;
(ii) affidavit or affirmation;
(iii) receiving and taking the answer, plea, demurrer, disclaimer, allegation or examination of any party to any action;
(iv) the examination of witnesses;
(v) swearing executors and administrators (in probate and administration proceedings); and
(vi) any persons in any action, matter or proceeding which is pending or about to be instituted in any court; and
(d) taking and receiving statutory declarations.
Whereas, for CFO appointed from the other categories, they do not have the powers to do (a), (b), (c)(iii), and (c)(iv) as stated above.
What other related services of CFO?
There are other statutory powers granted to a CFO, for example, under the Power of Attorney Act 1949, a Commissioner for Oaths can authenticate the execution of a Power of Attorney before it shall be deposited in the Power of Attorney Registry of the High Court in order for it to be a valid power of attorney.
A Power of Attorney is a legal document that lets a person (the ‘Donor’) appoint one or more people (known as ‘Attorneys’) to help him or her make decisions or on behalf. An irrevocable power of attorney given for consideration has a lasting effect even after the Donor passed away.
What are the limitations of CFO in exercising their powers?
Like any other professionals, the appointment of Commissioner for Oaths is not without limitations.
For instance, certification of a document as a true copy of the original (a.k.a. CTC of documents) is not within the prescribed powers of the CFO. In fact, the same can be done by a practising lawyer instead.
Fundamentally, CFO must ensure that the deponent or the maker of the document understand the language as well as the contents of the document, before the CFO certify that he has done so in the jurat.
And, in exercising the powers, CFO must refuse his service when he has credible cause to suspect that any person before him is engaged in deception, fraud, duress, or any other illegal conduct;
A CFO should also refuse his service where there is, or it could be perceived that there is, a conflict of interest.
About the Author:
This article is written by Chia Swee Yik, Partner of this Firm who is also the firm’s Commissioner for Oath. Contact us if you have the need of service for Commissioners for Oaths.