Unveiling the review officer’s influence : a comprehensive study of Part IV(A) in Chapter 55 and its implications on the notarial practice

Abstract

The notarial practice comes with many implications, responsibilities, and obligations. These are not only towards the clients themselves but also towards third parties, such as authorities. This would mean that the notary has to fulfil the necessary obligations and formalities. This can be done through a rigorous set of procedures set out throughout the law itself. Additionally, this is also done by means of the role of the Review Officer. The main aim of this report will be to tackle what the role of the Review Officer is and why there is a need for a Review Officer. There are several procedures laid out in the law and it is within the Notary Public’s responsibility to adhere to them without skipping any steps. However, it is the Review Officer who checks the work of the said Notaries and implements any disciplinary actions if there are cases which if required to do so. It is first important to look into the role and obligations of the Notary Public set out under the law itself since the main role of the Review Officer is to overview and make sure that the said Notary abides by such obligations required by law. Regarding such obligations, responsibilities, and liabilities, one may find various reports, theses, and articles analysing the role. However, it is important to start from the basic source, that being the law itself, mainly, Chapter 55 of the Laws of Malta, the Notarial Profession and Notarial Archives Act. In fact, Artiticle 2(1) of the abovementioned legislation goes on to define the office of the notary, stating that “Notaries are public officers. They are charged to receive acts inter vivos and wills, and to attribute public faith thereto; they shall be responsible for their custody and shall give out copies and extracts of or from such acts or wills.” . Article 2(2) of the same Chapter goes on to identify the powers and functions of a Notary Public, some of which are, for instance, to authenticate signatures upon private writings, to sign any necessary documents, applications on matters which are recognisable within the court of voluntary jurisdiction, provide a certificate which attests the accuracy and the faithful transaction of certain documents and applications, amongst many other responsibilities. Before looking into the role of the Review Officer, it is important to outline the role of the Notary Public and the importance of his role. Therefore, what is a Notary Public? As a public servant, the Notary is tasked with impartially receiving acts inter vivos and wills, attesting to the public's faith in them, and keeping them under watch. The President of Malta appoints the Notary for life by a notice issued in the Government Gazette, and they are free to practise their profession wherever in Malta and Gozo. Once the deed is read and explained by the notary himself to all the parties concerned, the Notary alone is personally competent and qualified to ascertain whether the act itself is following all of the parties’ will. Moreover, if the parties are not able to appear in their name, it is within the notary’s discretion to ask the attorney appearing in the party’s name, after verifying their identity, whether the act conforms with the will of such party. The identity of every individual is identified through their official identification documents such as an identity card, passport, or other comparable document. If such documents cannot be produced, the identity of the subject will be determined by the evidence of two witnesses who are personally known to the notary and who may also be witnesses on the deed. 3 Chapter 55 of the Laws of Malta outlines the role of the Review Officer and the implications it has on the Notarial Practice. Certain circumstances fall beyond the Notary’s control, in such cases, would the Review Officer consider such matters? What does the law say regarding such situations? This is the aim of this report, to highlight the importance and implications that such a role brings with it. Therefore, throughout this report, the duties and obligations of the Review Officer, how the Review Officer is appointed, the preparation that the notary must follow for the compilation of all their deeds, what happens when a notary fails to comply with the legislation set out, and various issues. Some of these issues are incapacitation, rehabilitation, and other various situations that would constitute difficulties and complications falling beyond the Notary’s control. Therefore, how is the role of the review officer defined? Under Chapter 55, mainly Article 94A(1) and (4), “The Council shall appoint as review officers the persons so approved for such periods of time, which may not be less than one year, and under such conditions as the Council shall determine” . In notarial practice, a legal expert or authority tasked with examining and confirming 4 notarial acts or documents is referred to as a Review Officer. Their job is to make sure notarial acts, like document authentication, transaction authentication, and signature authentication, adhere to legal norms and regulations. Therefore, the review officer looks into the verification of notarial acts, quality control, compliance with regulations, handling disputes of issues, training, and oversight. Article 94A(5) outlines the qualifications required for an individual to be appointed as a Review Officer, while other provisions go into the duties and powers of such role. The main aim of this report is to identify and clarify the role of the Review Officer, highlight its importance, discuss any difficulty the notary might face throughout his/her profession which might impact the review officer, any advantages and disadvantages of the role, and lastly any personal observation made throughout this research. This author intends to provide further insight into the procedures involved, the formalities required, and the importance of various roles throughout the whole process. This is done to facilitate all the procedural requirements from both the Review Officer’s point of view as well as the point of view of the Notary Public.