Bills to facilitate electronic statutory declarations, oaths and affirmations, and notarisations passed

14 August 2023

On 2 August 2023, the Oaths, Declarations and Notarisations (Remote Methods) Bill and the Constitution of the Republic of Singapore (Amendment No. 2) Bill (collectively, “Bills”) were passed in Parliament. The Bills seek to amend the Oaths and Declarations Act 2000, the Notaries Public Act 1959, the Constitution of the Republic of Singapore (“Constitution of Singapore”) and other relevant legislation to introduce a framework that will enable statutory declarations, oaths and affirmations, and notarisations to be done through electronic means while ensuring the integrity of these processes and maintaining a high degree of security against fraud. The provisions will come into operation on a date to be appointed by notification in the Gazette.

Overview

Based on existing legislation, statutory declarations and oaths and affirmations have to be made, and documents notarised, before authorised service providers such as a commissioner for oaths or notary public. An in-person meeting between the client and authorised service provider is generally required. The process is often paper-based, involving the use of wet ink signatures.

In her speech at the second reading of the Bills, Senior Parliamentary Secretary Rahayu Mahzam explained that the framework introduced by the Bills is in line with the Government’s ongoing efforts to facilitate electronic transactions by progressively reviewing and updating the relevant legal frameworks in place. The Bills aim 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 legislative framework and its associated safeguards can be updated from time to time to keep pace with technological developments.

The following is an overview of the salient features of the legislative framework introduced by the Bills.

Key amendments

The legislative framework comprises two key features: electronic meetings and electronic signing.

Electronic meetings with authorised service providers

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, 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. Certain minimum requirements relating to the quality of such electronic means of communication are also provided for. Further procedural requirements and safeguards that parties must comply with will be prescribed in subsidiary legislation.

The Board of Commissioners for Oaths and Notaries Public under the Singapore Academy of Law also intends to issue refreshed guidelines that will assist commissioners for oaths and notaries public in carrying out their functions under this framework. These guidelines will include guidance on the circumstances in which it may be inappropriate for a commissioner for oaths or notary public to provide their services remotely.

In some cases, such as oaths of office that are taken by officeholders under the Constitution of Singapore or other Acts, the Bills will make clarificatory amendments to provide for greater legal certainty.

Electronic signing

The Oaths, Declarations and Notarisations (Remote Methods) Bill will provide clearly that statutory declarations can be signed using an electronic signature. 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, factors such as performance standards, security, reliability and ease of access for Singaporeans will be considered.

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 of Singapore, the Bills do not change the position in relation to how these should be signed.

Clarifications

Legislative framework is enabling, not prescriptive

The legislative framework is enabling, and not prescriptive. Thus, the public can continue with their existing in-person and paper-based processes if they wish. In addition, the legislative framework does not oblige government agencies, commissioners for oaths or notaries public to provide or adopt electronic options.

For example, certain oaths of office or other oaths under the Constitution of Singapore may continue to be taken in person as a general rule because of the gravity and solemnity associated with such oaths. In other cases, a public agency may have some specific policy or practical reason to require a person’s physical presence when a statutory declaration or oath is taken.

Effect of statutory declarations and notarial acts that involved remote witnessing before legislative framework takes effect

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 (such as those done during the Covid-19 pandemic when movement restrictions were in place) will be invalidated solely because video conferencing was used.

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. Thus, 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.

Reference materials

The following materials are available on the Parliament website www.parliament.gov.sg and the Ministry of Law (“MinLaw”) website www.mlaw.gov.sg: