By U Mya Thein B.A., B.L.
Notary Public is a very ancient institution in England originally ecclesiastic in nature, and the appointment of these Notaries in England is in the hands of Archbishop of Canterbury. Ordinarily, their functions are “ to attest deeds, contracts and other instruments that are to be used abroad and to give a certificate of the due execution of such documents, which certificate, if duly authenticated by his signature and official seal, is accepted in all countries where notarial acts are recognized as proof the acts done in his presence and attested by him. The force and legal effect of the notarial acts consist in the fact that they are in themselves presumtio veritatis et solemnitatis ; they are presumed to be true and regular until the contrary is established, and by law of nations the Notary has credit everywhere.
In olden days Notary Publics administer oaths or affirmation. This practice becomes unwritten law for long. In foreign countries they can do so. Even Notary Public can issue Certificate of Identity (C of I) in lieu of Passport especially to those who want to go to Taiwan in those days. Basically Notary Publics are lawyers so they can prepare or draw any document in accordance with law and shall have to take the responsibility of the legality. Any question of law involved, they have to answer.
S. 138 of the Negotiable Instrument Act deals with the appointment and removal of Notary Publics and S. 139 deals with making of rules.
From S. 99 to S. 108 of the Negotiable Instrument Act deals with noting and protest.
Noting and Protest.
S. 99. When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonour to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each.
Such note must be made within a reasonable time after dishonour, and much specify the date of dishonor, the reason, if any, assigned for such dishonor, or, if the instrument has not been expressly dishonoured, the reason why the holder treats it as dishonoured, and the notary’s charges.
As soon as a bill or note is dishonoured, the holder has an immediate right of recourse against the drawer and the indorsers on the instrument. When a bill is to be noted, the bill is taken to a Notary Public who represents it for acceptance or payment, as the case may be and if the drawee or acceptor still refuses to accept or pay the bill, the bill is noted, that is, a minute is prepared containing the particulars above stated.
S.100. When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonor to be noted and certified by a notary public. Such certificate is called a protest.
When the acceptor of a bill of exchange has become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being refused may, within a reasonable time, cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security.
The next step for the notary to take is to draw the protest, whish is a formal declaration, on production of the bill itself it can be obtained; otherwise, on a copy thereof, that it has been presented for payment, and the payment was refused and why, and that holder intends to recover all damages and expenses which he or his principle or any other party to the bill may sustain on account of its non-payment.
Other sections are Contents of protest, Notice of protest and so on.
Under the Evidence Act
In the Evidence Act we can find some relevant sections about Notary Public.
S. 56. No fact of which the Court will take judicial notice need be proved.
It means if a fact can be taken as judicial notice by the Court needs not be proved.
S. 57. The Court shall take judicial notice of the following facts:-
(6) all seals of which English Courts take judicial notice; the seal of all the Courts of Admiralty and Maritime Jurisdiction and of Notary Public, and all seals which any person is authorized to use by any Act of Parliament or other enactment in force in the Union of Myanmar;
It means the seal of Notary Public shall take judicial notice by the Court needs not to be proved.
S.78. The following public documents may be proved as follows:-
(6)public documents of any other class in a foreign country,-by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a British Counsul or diplomatic agent or the diplomatic agent of the Union, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
A copy of a public document for example an official appointment letter of a gazetted officer by the Ministry concerned certified by a Notary Public of Myanmar can be used in foreign countries as a good document as proof.
S.85. The Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, British Consul or Vice- Consul, or representative of His Majesty. Or the Union of Myanmar was so executed and authenticated.
Under the Registration Act.
S.32. Except in the cases mentioned in section 31 and section 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office –
(a) by some person executing or claiming under the same, or, in the case of a copy of decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c ) by the agent of such person, representative or assign, duly authorized by power of attorney executed and authenticated in manner hereinafter mentioned.
S.33 (1) For the purpose of section 32, the following powers of attorney shall alone be recognized, namely:-
( c ) if the principal at the time of aforesaid does not reside in the union of Myanmar, a power of attorney executed before and authenticated by a Notary Public, or any Court, Judge, British Consul or Vice-Consul or representative of His Britannic Majesty or of the Government:
Under Diplomatic Officers and Consular Officers (Oaths and Fees)
Diplomatic officers and consular officers of the Union of Myanmar, while they are acting their duties in any other place or in foreign countries may give oaths or affirmation and may act all the functions of Notary Public under section 3 of the Diplomatic Officers and Consular Officers (Oaths and Fees ) Act.(Act number 19 of 1954)
The court shall presume, if an oath or affirmation or any other document executed and authenticated before the diplomatic officer or consular officer, his designation, signature, seal shall be admissible in evidence without further proof.
Under the Stamp Act
If noting or protest under the Negotiable Instrument Act, it shall bear adhesive stamp of two hundred and fifty kyats as article 50 and other notarial acts need to be stamped as article 42 of the Stamp Act. The stamp fee is one thousand kyats.
As in practice, well experience and reputed senior Advocates are appointed as Notary Publics. They are dignified persons who observe the Bar Council rules and Code of Conduct of lawyers. Being lawyers are the officers of court, the honorable courts pay due respect to the Notary Public Lawyers.
Notary Publics are the public officers presumably bear good reputation and character, who pay due respect to the honorable courts in turn.
We may recognize the Notary Publics as internationally recognized lawyers. Good reputation is the key element for all lawyers. The embassies usually don’t recommend the name of the lawyers but they make a list of reputable Notary Publics yearly.
By U Mya Thein B.A., B.L.