Public consultation on remote witnessing and e signing of statutory declarations: Allen & Gledhill

30 July 2024

The Ministry of Law (“MinLaw”) has launched a public consultation to seek feedback on a proposed framework for remote witnessing and electronic signing of statutory declarations. The public consultation runs from 5 July 2024 to 2 August 2024.

Introduction

A statutory declaration is a written statement that a person signs and solemnly declares to be true. The current position is that it has to be made before an authorised service provider such as a Commissioner for Oaths (“CFO”) and is therefore an in-person, paper-based process involving the use of wet-ink signatures.

On 2 August 2023, Parliament passed the Oaths, Declarations and Notarisations (Remote Methods) Act 2023 (“ODN Act”) which was then gazetted on 4 September 2023. The ODN Act amends the Oaths and Declarations Act 2000 (“ODA”). On 1 December 2023, the new section 15(2A) of the ODA came into force.

Once the remaining provisions of the ODN Act relating to remote witnessing and electronic signing of statutory declarations come into force, it will provide individuals, businesses, and service providers (such as CFOs) who are executing statutory declarations with the option of remote witnessing in place of an in-person meeting, and electronic signing in place of wet-ink signing, as long as both the declarant and service provider are physically present in Singapore. This will afford greater convenience and efficiency for individuals and businesses in Singapore.

The prescribed requirements will be reflected in subsidiary legislation.

Key principle

In developing the specific requirements for each of the processes, MinLaw has adopted the following key principle:

The statutory requirements and guidelines must strike the appropriate balance between (a) providing convenience and efficiency for the public, and (b) having adequate safeguards to preserve the integrity of the process.

MinLaw invites views and comments on the key principle mentioned above.

Remote witnessing requirements

Framework under ODN Act

Under the ODN Act, a person who needs to make a statutory declaration (“declarant”) may appear before an authorised service provider (such as a CFO) through live video link or live television link, as long as both the declarant and service provider are physically present in Singapore.

The ODN Act does not specify the platform that declarants and service providers must use. Therefore, any video conferencing may be used, as long as the platform allows the service provider to:

Communicate with the declarant, and any interpreter present, throughout the process;
Confirm the identity of the declarant and any interpreter present; and
Verify by inspection the document to be sworn and signed by the declarant.

Examples of video conferencing platforms that may be used include Zoom, Microsoft Teams, and Webex.

The ODN Act allows for the imposition of additional requirements that must be complied with, as part of the remote witnessing process.

Proposed additional statutory requirements on remote witnessing

MinLaw proposes to enact the following additional requirements into law (via subsidiary legislation):

The service provider (e.g. the CFO) must be satisfied that the document which he or she later signs is the same document that he or she had earlier witnessed the declarant signing.
The statutory declaration must include a statement to the effect that the service provider and the declarant were both physically present in Singapore at the time the statutory declaration is sworn and signed.
The statutory declaration must also include a statement which:
- states that the service provider and the declarant communicated through a live video link or live television link; and
- identifies the electronic platform that was used.

MinLaw invites views and comments on the above proposed requirements which will be enacted into law (via subsidiary legislation).

Electronic signing requirements

Framework under ODN Act

Statutory declarations must be signed by both the declarant, and the authorised service provider. The framework established under the ODN Act provides that:

The declarant and service provider may sign the statutory declaration using an electronic signature that is prescribed in subsidiary legislation; and
Different types of electronic signatures may be prescribed in respect of declarants and service providers.

Electronic signature(s) to be prescribed in subsidiary legislation

Electronic signatures may take different forms. A brief explanation of the different types of electronic signatures is set out in Annex B of the MinLaw consultation paper.

In deciding the type of electronic signature(s) that should be used to sign an electronic statutory declaration, MinLaw considered three possible approaches as set out in the table below.

No	Description	Comments
1.	Accept any electronic signature
1.	The declarant and service provider may sign the statutory declaration using any electronic signature, including an ordinary electronic signature or a secure electronic signature.	This approach has a high degree of flexibility, allowing both declarant and service provider to use an electronic signature that they are comfortable with, and that is convenient in the circumstances. The potential for improper or fraudulent conduct is however higher, when compared against the other two options below, e.g. a statutory declaration that a declarant has signed with an electronic image of his handwritten signature, can be subsequently modified without significant difficulty.
2.	Sign with Singpass only
2.	Both the declarant and service provider must sign the statutory declaration using Sign with Singpass.	Users can generate digital signatures with Sign with Singpass by using the Singpass app. Digital signatures generated using Sign with Singpass are uniquely linked to the signer. The risk of identity fraud is lower compared to using non-secure electronic signatures: There is more assurance that a person who signs a document with his Singpass is who he says he is. This is however, not fool-proof. If an individual shares his Singpass credentials with someone else, that other person could assume the individual’s identity when signing documents. MinLaw reminds members of the public to avoid sharing their Singpass credentials with others. Documents that are digitally signed with Sign with Singpass are tamper-evident: If an electronic document is modified after it has been signed with Sign with Singpass, there will be a prompt that the signature is invalid. (Annex C of the MinLaw consultation paper) Documents signed using Sign with Singpass will also have a time stamp, which can be useful in helping the service provider satisfy himself that the document that he or she signs is the same document signed by the declarant. The Sign with Singpass approach will, however, accord less flexibility to users, who may prefer to use another electronic signing solution. Persons who do not have the Singpass app will also be unable to benefit from the electronic statutory declaration framework.
3.	Proposed hybrid approach
3.	Declarants may sign the statutory declaration using any electronic signature, including an ordinary electronic signature or a secure electronic signature. They will, however, be encouraged to use Sign with Singpass. The service provider administering the statutory declaration must use Sign with Singpass.	This accords flexibility to declarants, while mitigating the risk of fraud as there will be an indication if the statutory declaration is altered after it has been signed by the service provider. Nonetheless, some potential for fraud will remain under this approach. For instance: There will be a window of opportunity for a person to make unauthorised alterations to the statutory declaration. For instance, if the declarant applies an ordinary electronic signature to the draft statutory declaration, it is possible for a malicious third party to make unauthorised alterations to the document before the CFO applies a signature generated using Sign with Singpass. If the declarant applies an ordinary electronic signature, there will be a higher risk of identity fraud going undetected. It may also be more difficult for the service provider to confirm that the document he or she signs is the same document that was earlier signed by the declarant. Thus, where an ordinary electronic signature is used by the declarant, and this is remotely witnessed, the service provider may have to take additional steps to satisfy himself that the document is the same.

(Source: MinLaw website www.mlaw.gov.sg)

Having assessed the various possibilities, MinLaw considers the hybrid approach to strike the best balance between convenience for members of the public on the one hand, and ensuring process integrity and reduced risks of fraud on the other hand.

MinLaw invites views and comments on the proposed hybrid approach which allows declarants to use any electronic signature that they wish, but requires the administering person to use Sign with Singpass.

Reference materials

The following materials can be found on the MinLaw website www.mlaw.gov.sg: