Being a Commissioner for Oaths and a Notary Public

When I was young, I was greatly impressed by my father signing things.

There was a sense of importance and gravity to what he put his signature to. He always looked serious when he signed something. And I saw him sign a great many things: documents, forms of various colours, shapes and sizes, cheques, credit card slips (*sheck shack*), registers, all sorts.

After he signed something, something happened. I got a new computer, or new furniture arrives at the house, or there is a new car in the driveway, or someone comes to visit. People wanted his signature. He seemed quite important because his personal handwritten mark was required.

Back then to me, that whole signing thing was a kind of magic. There was power in his signature. As a child, I hoped one day I would get the opportunity to sign some things or have my signature important enough to be on a piece of paper. It’s funny how life works out.

I started signing things on a regular basis after I started working. Despite the delight and pleasure in signing off letters for the firm on my own, imprinting my unique signature on documents, the novelty wore off quickly. By then I had to sign letters, vouchers, court lists and slips, my own affidavits, and the like, for work. I’d have to sign things a few times a day.

I first got into heavy-duty signing when I was for a time the secretary of the Bar Council Legal Aid Centre (Kuala Lumpur) (‘LACKL’). Back then it was located at the now-demolished Wisma Kraftangan near the Masjid Jamek LRT station on Jalan Tun Perak. I was elected as a result of actively contributing at the LACKL at the time.

My first encounter with this was when one day in my first month as secretary I was led into a small room next to the head of the LACKL’s room. Inside was a table with two chairs. On the table were two neat thick stacks of papers. They looked intimidating. They seemed like twin pillars standing together in defiance against chaos. In front of the table were two chairs.

“What am I supposed to do?” I asked.

“These are the thank you letters to the LAC volunteers,” replied the staff or officer who drew me there.

“That’s a lot.”

“Yeah. We have a backlog. Thank you for signing them.”

I sat and signed for the next ten minutes or so. One letter after the other.

I signed them all earnestly. Making sure that it didn’t look casual or careless. I wanted the signature to impress not just upon the paper but upon the volunteer that its contents were deliberate, mindful, and above all, heartfelt from the LACKL to them. If you were a volunteer that received one of those letters and felt the back of it where my signature was you could trace the imprint of it – that’s the LACKL love I was trying to transmit right there.

But that is expecting a little too much from the volunteer recipient. One day I happened to ask myself, while signing, of course, what I would do if I received one of these letters. An image of me glancing at the letter and then binning it and filing it immediately came as a response. It was entirely true, of course. Both are the same to me because even though I file things, I may as well bin them because eventually, I don’t know where I put them.

With that realization, the ‘signing in earnest’ phase of my life drew to a close.

From then on, I was a signature machine. I could blaze through a pile of thank yous, how do you do’s and whatchacallits quicker and quicker until we cleared the backlog and were on top of our correspondence. If there were an international legal aid letter signing competition back then, I feel sure I would be in the top ten. Okaylah, top five. That’s how fast I thought I was.

When I was signing intensely, I had flow. After establishing a rhythm in the first few letters I merged with the moment and everything segued into a flurry of paper and movement of the hand. It was only after I finished the last piece that I felt the weariness in my right hand and wrist.

In a civilized society, we have to sign for stuff. The older I grew the more I had to sign professionally and personally. And regularly, too. If I wanted things done I had to sign something. If I didn’t want it done I had to sign something. If I wanted in, I had to sign. If I wanted out, I had to sign. I couldn’t get out of it even if I wanted to. I no longer had a choice in the matter.

But that is changing. In a way. PINs, passwords, patterns, facial IDs, fingerprints are now the most common ways we verify ourselves. We now use computers and phones more to transact than we do paper. I expect signatures to be extinct in the future. Another quirk of human behaviour ironed out by the relentless efficiency of assigned code.

As more legal transactions are done through computers and online, the less need there will be for a physical signature. There will be some digital token of verification (‘DTV’) that would be unique to us. There will no longer be any biological feature of us in that DTV. Once technologies that facilitate forgeries and fakery are low cost and prevalent (as I feel they are now) and biometric verification (or whatever technology) becomes cheap, accessible, and can practically substitute signatures, that would be the end of signatures.

That power I thought my father wielded when he signed something when I was a child now seemed more like a shackle instead of a spear. I was chained to signing for things. That shackle may now be digitized but it is no less real and insistent.

In my twelfth year of practice, I decided if I am signing all this stuff, I’d like to be paid for some of the things I signed and have a fancy title to go along with it. So like any Malaysian with such limited dreams and harboured such ambitions, I signed up to be a Commissioner for Oaths (CFO). The truth was I thought I’d just try it on for size. See what’s it like.

I filed my application with the CFO unit. It is managed by the Chief Registrar of the Federal Court’s Office. That was in 2011 or thereabouts. I went for an interview which felt like a formality. We were not tested on anything.

I received my appointment in 2012. Our appointments then were for a year. We had to renew it yearly. I renewed once but didn’t renew it again. I wasn’t that keen on it. It really is not worth a lawyer’s time to be a CFO at the present rates. It is too little money for too much time.

I remembered once in my first year as a CFO I spent half an hour with a lady who insisted I attest her signature on a blank piece of paper and certify true copy (‘CTC’) some documents of hers. She claimed some government official insisted on it. I politely declined. Regrettably, she insisted so strongly that I had to revoke her occupancy licence and threatened to take action against her for trespass before she left.

It was then I began to understand why the CFOs I often met were wary, dismissive, and grumpy. The job is perfunctory, the fee pittance. When the clientele is unreasonable or bizarre it can be off-putting, even if it happens once in a while.

Most of the trouble lies in the fact that few understand what the role of a CFO is. The public does not know what they can or cannot do. The same could be said for some CFOs too. A CFO’s work is primarily about attestation of signatures and swearing of oaths. Our signature is a consequence and a confirmation that the attestation process was complied with.

Another notable incident in my first year was when a well-known young Malay actor dropped into my father’s office to have an afidavit bujang (‘bachelor’s affidavit’) done. That is an affidavit to verify the deponent to be a bachelor. For Malaysian Muslims, we attest such an affidavit to support an application for consent to marry. I had no idea who that gent was. But the women in my father’s office were in a flutter. I heard the flutter through my door but dismissed it as some heated gossip that broke out every now and again.

After a short while, my door inched open. The receptionist’s head emerged eventually. She asked with extra and unusual politeness if I could go down now and attend to someone who needed CFO service.

As I headed downstairs I saw the ladies in the office look at me expectantly. It was eerie and weirded me out. I turned to them at the top of the stairs and said, ‘What’s wrong with all of you today? Is it something about the guy downstairs?’ They looked down sheepishly.

It was a pupil in a tudung labuh that said breathlessly, ‘Oh Encik Fahri, it’s [I forgot his name]. He acted in [so and so movie]. He is a famous actor. He’s very handsome! Oh my god! I can’t believe he is downstairs!’ And they all got wound up again.

I saw the actor on the ground floor. The receptionist sat him at my CFO table, which was situated behind my mother’s beautiful black lacquered vintage six-paneled Chinese screen embedded with jade and mother of pearl inlays. I introduced myself and he returned the gesture. It was difficult to ignore his good looks.

“So, I hear you are a famous actor?” I said.

“It would not seem so,” he replied.

“Oh, why is that?”

“Well, if you don’t know who I am, how can I be famous?”

We both laughed. Witty and handsome. Bastard.

“So what can I do for you today?”

“I need an afidavit bujang? They said I was supposed to see a CFO about it.”

“I see. Do you have the affidavit itself? Or do you need one drafted?”

“No. Can you draft it for me?”

“Sure.”

“Alright. Let’s do it.”

I took his identity card and went upstairs. When I got to the top the ladies were gathered to hear my report of him. “So what did you think of him, Encik Fahri?”

“Well, ladies. You are quite right. He is very handsome and humble. I am happy to report he is witty too.”

“Tu lah, we heard you laughing with him, sir!” exclaimed the tudung labuh pupil.

“Ha? Well, I am sorry to disappoint all of you ladies. He requested I prepare him an afidavit bujang. So if you will excuse me. I must not detain this man any longer than is necessary.”

The room fell into lamentation and sighs. I scurried to the safety of my room to prepare his affidavit.

Previously, statutory declarations and court affidavits were four ringgit per attestation for the original copy and two ringgit for each duplicate copy of an affidavit. If there are exhibits, it cost two ringgit per exhibit in the original affidavit and one ringgit per exhibit for each copy.

In my first two years as a CFO, I spent more on my chops, signage, name tag, and register than I collected from my CFO service. My takings were measly. I put that down to my insisting the deponents attend my office for it to be done. I did not and still do not entertain what I call attestation in absentia requests.

In 2018, the fee for attesting court affidavits was increased. It is now ten ringgit per attestation for the original copy and five ringgit for each duplicate copy. It’s five ringgit per exhibit for the original and two ringgit per exhibit for the copy.

These days, there is less of a need for duplicates because most documents are converted to PDF format. Copies can be made from that. At most many just have a duplicate done. The days of seven to nine copies of records of appeals and applications are over. Thank god for that.

I rarely attest court affidavits. The bulk of my attestations are statutory declarations (SDs), then and now. I estimate 90% of my work as a CFO is SD attestation. The fees for SDs are regulated by the Statutory Declarations (Fees) (Amendment) Order 1993. The fee of four ringgit for each SD. A duplicate SD is two ringgit. This has been the rate since 1993. About 28 years ago.

It needs to be updated to take into account inflation and the cost of living since then. Revising the rate is not difficult since it only requires a Ministerial notification by gazette.

Doing so, however, would impose a higher cost to private and public transactions. For large transactions, the increase has no impact whatsoever. It may have an impact on the man on the street. But even then, I contend it is a negligible one. It’s a one-off cost unless you are in the business of having to attest to a huge volume of affidavits on a regular basis. An increase in rates is not likely to have a prohibitive economic impact on doing business.

Allowing the rate to remain at four for the original and half that for the copy is not sustainable for anyone doing it full time and depending on it. The fee makes it at most a part-time thing or something that has to be supplemented by closely related work like will-writing, for example. I certainly don’t depend on it. I only take it when I am at liberty to.

Perhaps the answer is not revising the rate up but perhaps abolishing the need altogether for CFOs altogether. The need for it diminishes with the advancement of technology. But that is a topic for another day.

If I could go back in time, I would not have let my CFO appointment lapse. I know how ironic that sounds given my sentence before last, but it is what it is. I should have renewed my appointment. Because of that, I had to re-apply to be a CFO again.

In 2016, however, they changed the application process. It was made more onerous for those applying. It was the Chief Registrar’s Office’s attempt to raise the standards of those appointed as CFOs. The sentiments were laudable but the execution left room for improvement.

Instead of simply filling an application, we had to now sit for an exam and an interview. There was a number of questions. I forget how many, fifty, sixty, something like that all to be done in an hour and a half or so. What I do remember being told vividly was we could not get more than seven questions wrong; any more than that was a flunk. I wasn’t so worried about the law. The CFO Rules were straightforward and few in number.

It was the general section of the paper I was concerned about. They could ask us just about anything. And there were ten questions.

And they did ask us anything.

The question I remember most because I got it wrong was, what was the tallest building in Asia? I remember sitting in the exam hall thinking, what the heck has this question got to do with anything I have to do with being a CFO? And of course, I thought that because I didn’t know what the answer was. I guessed Shanghai Tower. Right after the exam, I checked. I was wrong. It’s the Burj Khalifa. If you didn’t know that, now you do. Congratulations.

All in all, I reckoned I got six questions wrong. My calculations were confirmed when the results were sent to us by email. I did, in fact, pass. They didn’t send us individual results but instead the list of results for all the lawyer candidates and all the public members’ candidates. I could not help but look.

It was brutal.

On the public members’ list, the pass rate was about ten percent. On the lawyers’ list, the pass rate was about thirty percent. I felt the pass rate for lawyers was disappointing since *cough* we are lawyers. We are supposed to be adept at the law. I think spending time understanding what the question asks of us pays dividends when we eventually get down to writing our answer. The questions were tricky but not difficult. As for the general questions, I have no idea how to prepare for them.

I thought the interviews were merely a formality like they were before. Not this time. We were asked questions that tested our knowledge of the rules. We had to justify why our appointment would be good for the area we operated in. Thankfully, that query was easy for me. There was no CFO where my firm was, Mutiara Damansara. The areas around us – Damansara Perdana, Kota Damansara, Bandar Utama and Taman Tun Dr Ismail had one but not ours.

I was appointed in October 2017 for a year. The hilarious part about the whole thing was I was invited to lead the oath-taking at our appointment ceremony. Always happy to play a role no matter how minuscule in the administration of justice, I agreed. I saved the program of that unusual occasion.

Since being appointed as CFO in 2017, I decided to continue as one.

Why am I still a CFO despite the fact I said the fee is not worth the time for a lawyer, that attestations by CFOs should be abolished, and signatures and by implication the CFO’s role to attest signatures becomes unnecessary?

One, because the law still requires it.

Two, there is a demand for it.

Three, I have been told directly and my clerks have confirmed for me that many find our location convenient for them to get to.

Four, we charge properly. The law is four ringgit. So it’s four ringgit. I have had people come in that were shocked when I told them our charges. Some tell me the last CFO they paid was anything from twenty to fifty ringgit per attestation. I often tell them if I could charge more I would. But I can’t. We tend to get those people’s friends and family after that. So what we lose out to in conning others, we make up with referrals.

I mean, let’s face it. If we wanted to cheat those who come to us by overcharging them, we could. I just do not feel comfortable earning money that way, and we are not supposed to. I have no interest in dealing with the consequences of such conduct. The best way to achieve that is to avoid such conduct altogether.

Fifthly, and most of all, even though it is an inconvenience to us and not a ‘profit making’ node, it is a service to the community for which we have been appointed to offer. It is a small thing but at times these things become utterly crucial and urgent for some people. When I hear from the clients and read satisfied feedback on Google Reviews, for example, I know offering this service is a benefit to others. That is a personal pleasure to me. A lil’ bit of the sense of service over self.

I am also a Notary Public (NP).

Only a lawyer with fifteen years in practice can apply to be one.

In 2015, after I surpassed fifteen years at the bar, and just after I decided not to renew my CFO appointment, I thought let’s try this NP role for a change. In for a penny, in for a pound. My first appointment was by Abdul Gani Patail in 2015. My second appointment was by Apandi Ali. My third appointment was with Tommy Thomas. My present one was by Idrus Azizan Harun.

An application to be a Notary Public is made to the Attorney General’s Chambers. The link is here along with the requirements. This is a far simpler process compared to a CFO application. There are no exams or interviews. Just submission of the required documents, an application fee of RM 1,000 for a 2-year appointment, and your patience as they go around collecting letters of no objections to your appointment. If all goes well, your application is approved and they will send you the hard copy of your certificate of appointment.

It is far, far, far, far more worthwhile being an NP than it is a CFO.

For one, there are far fewer duties placed on us as NP because we are already bound by our ethical conduct as lawyers. We are less regulated as to how we carry out our work.

Secondly, the fees for attestations are higher compared to what CFOs can charge, even with the latest revision in 2018. For example, NPs can charge twenty-five ringgit per attesation for the original and half that for the copy. CFOs can charge only ten ringgit per attestation. But that is limited to court affidavits.

Thirdly, we lawyers don’t have to spend on anything to reflect we are an NP except a change in the letterhead and perhaps the website.

CFOs, however, have to put up a signboard stating the fees a CFO is entitled to charge. We have to put up another signboard that states the CFO’s powers. CFOs have to display their instrument of appointment. AS a CFO we have to wear a name tag when we carry out our work. The only way I think I look cool with a name tag is if I had a cowboy hat on, were in full cowboy garb, sat on top of a large, powerful horse named ‘Daisy’ with the reins in my left hand and a loaded shotgun in my right.

Fourthly, and most importantly, I made my fee back in three months. And that was my first year. Since we have been around for a few years now, we get a steady stream of clients from referrals by satisfied past and regular clients.

NPs fees are regulated by the Notaries Public (Fees) (No. 1) Rules 1981 (published as PU(A) 198/81). The Rules were made by the Rules Committee. It came into force on 1 August 1981, more than 30 years ago. So here too, NP fees are in desperate need of revision too.

Fifthly, NP’s have the privilege of CTC’ing documents. The only other legally authorised person that can CTC a document they did not create is an advocate and solicitor (‘A&S’).

This is something CFOs cannot do. There is a grave and prevalent misconception that CFO’s can CTC documents. They cannot. They are not authorized to under the Rules. And yet, even government departments demand documents be CTC’ed by CFOs. When I used to complain about them to the CFO Unit and request they educate the relevant ignorant department nothing happens.

It is CTC’ing documents that make up the great majority of our NP work. To back me up, the moment my father joined us, I applied for him to be an NP. His application was allowed and he was appointed one too. Two pairs of eyes and hands are better than one when it comes to voluminous notarial work.

It is with the CTC’ing of documents as an NP where the heaviest amount of both attestation and signing happens. Some clients have us CTC each and every page of the copy of the passport or a lengthy agreement. Some have large amounts of documents to CTC at a go.

NP work can be lucrative but that’s in relation to CFO work. NP work is not something we can depend on to run the office with its lawyers and staff. Far from it. On a very good day, and those are uncommon, it can take care of the petty cash for the month. But that’s as far as it goes. At the end of the day, it earns far less than what we earn from our regular litigation and corporate work.

The reasons I gave for being a CFO despite the downsides are the same reasons for being an NP. It is to provide a service to the community nearby and adjacent that are in need of NP services. As someone who is a CFO, NP and A&S, I can advise those who come by what the difference is and which is most appropriate to a client’s purpose.

This can be summarized easily: CFOs are for domestic documents which require attestation. A&S can CTC domestic documents. NPs are for documents used internationally – affidavits and CTC’ed documents. Interestingly, Sabah and Sarawak lawyers prefer their signatories to sign before NPs instead of CFOs.

I’d like to think that our CFO/NP services have a tiny positive spillover effect on the other businesses particularly the restaurants nearby. Often while the clients wait for their appointment or after they finish their appointment, they stop by the mamak or one of the favoured restaurants nearby to eat and drink. The area has well-known joints like Nasi Kukus Ilham, Ana Patin House, Mimpi Muor, Salted, Al-Madina (the mamak), Mean Mince and Oh Mak! Peak hours are 1230 pm to 2 pm.

The other reason I enjoy providing that service is the people I get to meet sometimes. It’s a reminder that there is a multitude of people out there doing a variety of different things, and that I should be mindful that mine is but one view of the world. And I am like that to them – one of the multitudes. But that’s only if there’s time and opportunity. Most of the time it’s transactional.

Should you take it up? I would not recommend being a CFO unless you are looking for serendipity, experience, or are interested in providing a service to the community. There is little money to speak of, the service we perform is thoroughly and completely unappreciated, we conduct a function no one takes seriously, and we could be doing something more profitable with our time.

It is time to review the need for such a role.

Where NP is concerned, I think there is still a need for it because there is an international dimension and reliance placed by parties worldwide on the document certified. For Malaysian lawyers fifteen years and up, I encourage you to take it up. The more NPs there are, the easier it will be for the public to have access to such services. The need for NP services springs eternal.

I will conclude this essay with an incident I once had as an NP.

I was once asked to attest as a notary public certain declarations and affidavits for a family and certify a slew of family documents as true. There were not many attestations– maybe 4 for each member of the family. They were applying for permanent residency in a country in Europe. The wife and children came and executed the documents before me. I sorted them all out.

The husband however could not make it. He was overseas. He was African. Looking at his stern face in the photocopy of his passport, he looked like the type that was going to insist I did an attestation in absentia. He put a lot of pressure on the agent to have me sign off on the pre-signed forms he sent over.

I guessed he was the type to flaunt his wealth but not when it came to paying others, then oh woe is me, I just had to service my Bentley and it cost me so much! Poor me. From all I had heard, I reckoned him to be the rich-cheapo sort. His agent was caught between us so I decided to spare the poor fellow and resolve the deadlock by speaking to him directly.

“Mr Fahri. Why you make things so difficult? I sent you my whole family to do our documents notarizing with you. I paid a lot of money to have them with your signature. My family, they all vouch that I signed it. I am now in Europe. I am coming back only next week. Please just sign my documents. My agent needs to submit it soon.”

“I hear you Mr Difficult. I have clarified it with your agent. You have time when you get back. Don’t worry about it, we have time.”

“Come on, Mr Fahri. This is not good service. You are making it difficult for me. I signed the documents, I now tell you on the phone I signed it. It still is not good enough? This is ridiculous.”

“Mr Difficult, please. You misunderstand. It has nothing to do with me trusting you. My job is two things. Make sure you are who you say you are. Make sure you sign it voluntarily in front of me. Then I sign to confirm you did these two things. If I didn’t do these two things then I didn’t do my job. That’s all. Nothing to do with trusting you, Mr Difficult.”

“You do your job also if you take my word for it. Your job is to make sure it is me, I, Mr Difficult who signs it. That is your job. Now I tell you. That it’s me. I signed it. Are you saying you don’t trust me, Mr Fahri? You met my family. My wife, my children. My agent can verify me. I also paid your fees. I paid your fees. That is me. How is it you don’t trust me?”

Not bad, I thought. He could have done a little better with the argument.

“It’s not a lack of trust, Mr Difficult. Okay, like this lah. Since you are insistent, I am prepared to consider doing it for five thousand ringgit per signature.”

“WHAT?! This is ridiculous! You are unreasonable, Mr Fahri! Twenty thousand only for four signatures?! You are trying to rob me!”

“No, Mr Difficult. I am not. We charge twenty-five ringgit per attestation. But you have to do it at my office. I want you here in my office. I much prefer just the twenty-five. Let me make it clear: I don’t want your five thousand. I want you in front of me. That’s all. You are the one hassling me to breach my legal duty.”

He went quiet for a few moments.

“Fine. I will see you when I get back.”

He did. He signed his declarations and affidavits before me for the usual fee. We both went our own ways with our respective peace of mind intact.

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