Research Directorate, Immigration and Refugee Board of Canada

1. Overview

Sources report that there are two types of affidavits in Bangladesh (Lawyer 2022-12-12; Notarybd.com n.d.a; international law firm 2022-12-19). Notarybd.com, an online electronic notarization company staffed by notaries public certified by the Bangladeshi government (Notarybd.com n.d.b), adds that these include judicial affidavits and non-judicial affidavits (n.d.a).

Notarybd.com notes that affidavits cannot be prepared on "plain paper" (n.d.a). In correspondence with the Research Directorate, a Bangladesh-based full service international law firm stated that affidavits can be drafted in either Bengali or English (International law firm 2022-12-19).

The international law firm indicated that affidavits can be sworn outside of Bangladesh before officials of a Bangladesh mission (2022-12-19).

A blank template sample of an affidavit for the adoption of a child is available on the website of the Security Services Division of Bangladesh's Ministry of Home Affairs (Bangladesh n.d.a, 5).

2. Non-Judicial Affidavits

Notarybd.com states that non-judicial affidavits are used "'fundamentally for commercial or administrative'" purposes (n.d.a). In correspondence with the Research Directorate, a Dhaka-based lawyer, whose practice areas include family law, noted that non-judicial affidavits are used for many purposes and are often sworn before a notary public, and occasionally before a magistrate (Lawyer 2022-12-12). The international law firm stated that non-judicial affidavits are "administered/executed" before a notary public (2022-12-19).

Notarybd.com provides affidavit service for contexts including the following:

• a change of name, address, place of birth, or the passport number of a minor;
• a correction to one's name, age, date of birth, place of birth, or address on documents including a birth certificate, a National Identification Card (NIC), a passport, or an examination certificate or "[m]ark [s]heet";
• the attestation of a person's correct age, date of birth, or place of birth;
• "[r]egarding late [b]irth [r]egistration and [c]laimed [b]iological [r]elationship declared by" a father, mother, sister, brother, uncle, aunt, or other relative;
• attestations of financial sponsorship for travel abroad;
• the addition of an additional name or short form of a name;
• the change of a person's signature;
• the attestation of lost documents or items including an academic certificate, a "[m]ark [s]heet," a marriage certificate, "NIKAHNAMA [1]," a birth certificate, a death certificate, a passport, "[m]edical [d]ocuments, [p]roperty [d]ocuments," a driver's license, an ATM card, vehicle documents, a bank cheque, or a mobile phone;
• attestations of an existing marriage, a future marriage, or a Hindu, Buddhist, or Christian person's change of their religion for the purposes of an intended marriage to a Muslim partner;
• attestations of a "[b]ona-[f]ide" or "[l]egitimate" marriage, or an "[u]nmarried [c]ertificate [d]eclared by [f]ather / [m]other," for the purposes of obtaining a foreign visa or for immigration;
• attestations of a divorce or separation (Notarybd.com n.d.a).

2.1 Laws and Regulations

In follow-up correspondence with the Research Directorate, the international law firm noted that there is no individual statute which stipulates the law governing affidavits, and that the requirements and procedures related to affidavits for various purposes are prescribed through several different laws including the Code of Civil Procedure, the Code of Criminal Procedure, the Supreme Court Rules, and the Naturalization Act (2022-12-22).

2.2 Requirements and Procedures to Obtain

The lawyer noted that the deponent of a non-judicial affidavit must be at least 18 years of age (2022-12-12).

According to the lawyer, the procedure for obtaining a non-judicial affidavit involves either the deponent or the notary public preparing the affidavit, followed by the deponent appearing before a notary public or a magistrate "for swearing" (2022-12-12). The international law firm stated that after "having adequately described" themselves, the individual swearing an affidavit "makes a solemn declaration as to a fact before a notary public" (2022-12-19). The same source added that the individual then signs the affidavit, after which the person affirming the affidavit inspects the document and provides their signature and official seal on it (International law firm 2022-12-19).

The international law firm noted that on some occasions, "affidavits sworn before a notary public can be countersigned by a Magistrate," which "only shows that the document is genuine" but does not have a "bearing on the truth" of its contents (2022-12-19).

2.2.1 Notaries

The Notaries Ordinance, 1961 provides the following:

Power to appoint notaries

3. The Government, for the whole or any part of [Bangladesh], may appoint as notaries any legal practitioners or other persons who possess such qualifications as may be prescribed.

Registers

4. (1) The Government shall maintain, in such form as may be prescribed, a Register of the notaries appointed by [the] Government and entitled to practise as such under this Ordinance.

(2) Every such Register shall include the following particulars about the notary whose name is entered therein, namely:-

1. his full name, date of birth, residential and professional address;
2. the date on which his name is entered in the Register;
3. his qualification; and
4. any other particulars which may be prescribed.

Entry of names in the Register and issue or renewal of certificates of practice

5. (1) Every notary who intends to practise as such shall, on payment to the Government of the prescribed fee, if any, be entitled-

1. to have his name entered in the Register maintained by [the] Government under section 4, and
2. to a certificate authorising him to practise for a period of three years from the date on which the certificate is issued to him.

(2) Every such notary who wishes to continue to practise after the expiry of the period for which his certificate of practice has been issued under this section shall, on application made to the Government and payment of the prescribed fee, if any, be entitled to have his certificate of practice renewed for three years at a time.

…

Seal of notaries

7. Every notary shall have and use, as occasion may arise, a seal of such form and design as may be prescribed.

Functions of notaries

8. (1) A notary may do all or any of the following acts by virtue of his office, namely:-

1. verify, authenticate, certify or attest the execution of any instrument;
2. present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
3. note or protest the dishonour by non-acceptance or non- payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest;
4. note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters;
5. administer oath to, or take affidavit from, any person;
6. prepare bottomry and respondantia bonds, charter parties and other mercantile documents;
7. prepare, attest or authenticate any instrument intended to take effect in any country or place outside Bangladesh in such form and language as may conform to the law of the place where such deed is intended to operate;
8. translate, and verify the translation of, any document from one language into another;
9. any other act which may be prescribed.

(2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal.

Bar of practice without certificate

9. (1) Subject to the provisions of this section, no person shall practise as a notary or do any notarial act under the official seal of a notary unless he holds a certificate of practice in force issued to him under section 5:

Provided that nothing in this sub-section shall apply to the presentation of any promissory note, hundi or bill of exchange for acceptance or payment by the clerk of a notary acting on behalf of such notary.

…

Removal of names from Register

10. The Government may, by order, remove from the Register maintained by it under section 4 the name of the notary if he-

1. makes a request to that effect; or
2. has not paid any prescribed fee required to be paid by him; or
3. is an undischarged insolvent; or
4. has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practise as a notary.

…

Penalty for falsely representing to be a notary, etc.

12. Any person who-

1. falsely represents that he is a notary without being appointed as such, or
2. practises as a notary or does any notarial act in contravention of section 9, shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both. (Bangladesh 1961, footnotes omitted, bold and square brackets in original)

According to sources, prevailing rules stipulate that a lawyer with at least seven years of practice, or a person with at least five years of experience working in the judicial sector or involved in drafting governmental legislation, can qualify as a notary public (The Daily Star 2016-12-31; The Daily Observer 2020-02-08). A copy of Bangladesh's notarial rules could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. Sources report that notaries are required to maintain an office of their own (The Daily Star 2016-12-31; The Daily Observer 2020-02-08).

The register of notaries is maintained by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs, and is available on their website (Bangladesh n.d.b). According to information available on the website of the law firm M. R. I. Chowdhury, whose founder M. Rafiqul Islam Chowdhury is a notary public and lawyer who also founded Notarybd.com, a notary public is tasked with functions including authenticating signatures or documents, and witnessing affidavits or statements made under oath (M. R. I. Chowdhury & Associates n.d.).

The Daily Star, a newspaper in Bangladesh, reports that notaries public are used for attesting documents including the following: "land registration documents, promisory notes, bills of exchange, bottomry and respondantia bonds, translated documents or I[D]s, buying of cars, issuing of divorce letters, character certificate, certificates of academic qualification, death certificates, birth certificates, application for [foreign] citizenship" (2016-12-31).

2.3 Cost

The lawyer indicated that the cost of a non-judicial affidavit can range from 1,000 to 10,000 Bangladeshi taka (BDT) [C$13–131], which can cover the affidavit's drafting, the non-judicial stamp paper and plain cartridge paper, the printing or typing of the document, and the notary public's fee (2022-12-12). According to the international law firm, all types of affidavits carry an approximate minimum cost of 500 BDT [C$6.39] (2022-12-22). Sources indicate that government mandates require notaries to charge 10 BDT [C$0.13] for attestations and 25 BDT [C$0.32] for stamped affidavits or contractual agreements (The Daily Observer 2020-02-08; The Daily Star 2016-12-31). The Daily Observer, a Bangladesh daily newspaper, also notes that despite the government mandated rates for attestations and stamped affidavits, some legitimate notaries public charge higher rates (2020-02-08). The same source adds that "brokers" or "fake" notaries public charge as much as 150 BDT [C$1.92] to 500 BDT as "notary fees" at locations including "Dainik Bangla, [the] National Press Club and [the] Judge Court areas" (The Daily Observer 2020-02-08).

2.4 Appearance and Security Features

According to sources, non-judicial affidavits are prepared on "non-judicial" stamp paper (Notarybd.com n.d.a; lawyer 2022-12-12). The lawyer also noted that "plain cartridge papers are added" for any necessary additional pages, and that both types of paper have a "yellowish" colour (2022-12-12). The same source further indicated that non-judicial stamp paper contains, at the top of each page, a "printed mark" with its corresponding monetary value (Lawyer 2022-12-12). The lawyer added that the content of non-judicial affidavits can be written, printed, or typed (2022-12-12).

The lawyer indicated that "[c]ommon contents" of non-judicial affidavits include: "name, age, profession, photo, national ID/birth registration/passport number and signature of the deponent, names of parents, spouse, the declarations made by the deponent, seal and signature of notary public/magistrate or of both, name and signature of an identifier of the deponent," who can be an advocate, or the notary public or magistrate themselves (2022-12-12).

According to an article by the New Nation, an online and print newspaper in Bangladesh (The New Nation n.d.), which cites information provided by Chowdhury regarding the online notarization of documents including affidavits, documents notarized online will bear an electronic or digital signature and electronic notary seals (2021-08-01). Sources report that Bangladesh's Information and Communication Technology Act, 2006 permits a digital signature as a legal means of authenticating a digital document (Saliheen 2022-05-06; Notarybd.com n.d.c), and Notarybd.com adds that the Act also provides for the legality of digital stamps (n.d.c).

According to the lawyer, non-judicial affidavits are "almost uniform," but one may encounter "slight or minor variations" from one to another (2022-12-12). The international law firm noted that both types of Bangladeshi affidavit do not follow a prescribed format, but the form is "more or less similar" nationwide (2022-12-19).

Information on the security features of an affidavit could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Judicial Affidavits

Information specific to judicial affidavits was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

According to Notarybd.com, judicial affidavits are used "in cases filed in courts," and are required in circumstances including, but not limited to, providing proof or support of an application (n.d.a). The lawyer stated that judicial affidavits are used in court proceedings in support of circumstances including "plaint, written statements, applications/petitions, objections, [or] replies," and are sworn before an affidavit commissioner of a concerned court or tribunal (2022-12-12). The international law firm indicated that [judicial affidavits] are "administered/executed" before court officials including the "Commissioner of Affidavits or 1st Class Magistrates" (2022-12-19).

A sample of an affidavit administered/executed before a 1st Class Magistrate for a change of personal information, sent to the Research Directorate by the international law firm, is attached to this Response.

3.1 Appearance and Security Features

Notarybd.com indicates that judicial affidavits are prepared on "legal paper with appropriate court charges and stamps appended" (n.d.a).

4. Prevalence of Fraudulent Affidavits

When asked if fraudulent affidavits were prevalent in Bangladesh, sources indicated that they were not (Lawyer 2022-12-12; international law firm 2022-12-19), and the international law firm added that fraudulent or forged affidavits are not common because of how "easily" authentic affidavits can be procured (2022-12-19). The same source added, however, that because it is "not uncommon for individuals to make false statements in an affidavit," even affidavits procured legitimately "carry little evidentiary value" in the country (International law firm 2022-12-19). The international law firm also noted that in Bangladesh "people are rarely prosecuted for making false statements on an affidavit" (2022-12-19).

The Daily Observer reports that there have been cases of unlicensed or illegitimate notaries public issuing documents, including some people who have issued falsely notarized documents under the name and seal of a deceased legitimate notary public (2020-02-08). The same source quotes the Senior Assistant Secretary of the Law Ministry who stated that they are aware of allegations of "fake notary public attestations by means of forgery" (The Daily Observer 2020-02-08).

The Daily Star notes that "fake documents" prepared through a notary public sometimes contain "personal seals or seal mohar of deceased" persons (2016-12-31).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] A nikahnama [nikah-nama, nikah nama] is a marriage contract used in some Muslim marriages in Bangladesh, which must appear in a standardized form according to the Muslim Marriages and Divorces (Registration) Rules, 2009 (The Daily Star 2021-11-06).

References

Bangladesh. 1961. The Notaries Ordinance, 1961 (Ordinance No. XIX of 1961). [Accessed 2022-12-14]

Bangladesh. N.d.a. Ministry of Home Affairs, Security Services Division. No Objection Certificate (NOC) for Adoption, Issuing Passport and Travel for Aboard. [Accessed 2022-12-13]

Bangladesh. N.d.b. Ministry of Law, Justice and Parliamentary Affairs, Law and Justice Division. "Register of Notaries." [Accessed 2022-12-15]

The Daily Observer. 2020-02-08. Nazmul Ahsan Raju. "Fake Notary Public, Brokers Galore." [Accessed 2022-12-23]

The Daily Star. 2021-11-06. Md. Mahmudul Islam Shakil. "Wife's Right to Dower in Case of Divorce Initiated by Wife." [Accessed 2022-12-23]

The Daily Star. 2016-12-31. Adib Shamsuddin. "All About Notary Public." [Accessed 2022-12-23]

International law firm, Dhaka. 2022-12-22. Correspondence with the Research Directorate.

International law firm, Dhaka. 2022-12-19. Correspondence with the Research Directorate.

Lawyer, Dhaka. 2022-12-12. Correspondence with the Research Directorate.

M. R. I. Chowdhury & Associates. N.d. " Office of the Notary Public." [Accessed 2022-11-30]

The New Nation. 2021-08-01. "E-Notarization Tools to Prevent Identity Fraud, Tempering." [Accessed 2023-01-05]

The New Nation. N.d. "About New Nation." [Accessed 2023-01-06]

Notarybd.com. N.d.a. "Affidavit Drafting and Execution." [Accessed 2022-11-30]

Notarybd.com. N.d.b. "Frequently Asked Questions (FAQs)." [Accessed 2022-11-30]

Notarybd.com. N.d.c. "How to Execute an Affidavit Online." [Accessed 2022-11-30]

Saliheen, Nazmus. 2022-05-06. "Why It Is Important to Formalise Digital Signatures in Electronic Communication." The Business Standard. [Accessed 2023-01-06]

Additional Sources Consulted

Oral sources: Bangladesh Bar Council; law firms in Bangladesh (11).

Internet sites, including: Bangladesh – Judicial Administration Training Institute; Daily Sun; laws firms in Bangladesh (14); UK – Home Office; UN – Department of Economic and Social Affairs; US – Embassy in Dhaka.

Attachment

International law firm, Dhaka. 2020. Sample of an affidavit for a change of personal information. Sent to the Research Directorate by the international law firm, 2022-12-19.