Written by Adrian V. Bancoro, 1 March 2007
Consistently reminding members of the Philippine Bar of the foregoing proscription, the Supreme Court, in several occasions, had imposed various administrative sanctions against lawyers for violations of the notarial law.
Legal and economic significance of Notarial Act
Notarised documents carry the presumption of regularity. Thus, significant business transactions are normally captured by these types of documents to evidence material contracts and ensure ease and transparency in their dealings with one another. To contradict such presumed regularity, clear and convincing evidence must be presented; hence, mere preponderance of evidence is not sufficient. Moreover, the notarisation converts a private document into a public one, i.e., it becomes admissible as evidence in court even without proof of authenticity. (Sec. 30, Rule 132, Revised Rules of Court)
Thus, notaries public – being not only lawyers but also public officers – are enjoined to carry out their duties with utmost care and respect considering the legal significance of the notarial act.
Sadly however, there are still numerous reports of notaries public, who, knowingly or unknowingly, continue to commit breach of the provisions of the notarial law.
The most common violation is the notarisation of a document in the absence of the person who signed the same. The notarial law requires that the person who executed the document must personally appear before the notary public so he can attest to the contents and truth of what are stated therein. (Section 2, Rule 4, 2004 Rules on Notarial Practice) Thus, a notary public who notarised a joint affidavit in the absence of one of the affiants was held by the Supreme Court to have violated the lawyer’s oath, the notarial law and the Code of Professional Responsibility. The erring lawyer was suspended from the practice of law for one year and his commission as a notary public was revoked.
Performing a notarial act without a commission (or with an expired one) is also a usual infraction. In Buensuceso v. Barera, 216 SCRA 309, a lawyer was suspended by the Supreme Court for one year when he notarised five documents after his commission as a notary public had expired. In another case, the Supreme Court imposed two years suspension from the practice of law when the lawyer notarised a total of 14 documents without the requisite notarial commission.
Such act, according to the Supreme Court is "reprehensible, constituting as it does not only malpractice but also . . . the crime of falsification of public documents." (SLU-LHS Faculty and Staff vs. Dela Cruz, A.C. No. 6010, August 28, 2006)
Public beware
Those who need to have their documents notarised should similarly recognise the legal significance of the notarial act as this is not a meaningless or routine undertaking. Though a notarised document is generally considered as a public document, the Supreme Court clarified in DECS vs. Del Rosario, G.R. No. 146586, January 26, 2005, that only acknowledged instruments which are recorded in the notarial register are considered as public documents. The Court further ruled that if the instrument is not recorded in the notarial register and there is no copy in the notarial records, the presumption arises that the document was not notarised and that it is not a public document. This may have serious implications especially in court cases where the authenticity of a particular document is a crucial issue.
Members of the Bar should likewise note that a number of petitions filed with the Supreme Court have been denied on the ground that the jurat in the verification and certification of non-forum shopping and in the corporate secretary’s certificate (on the authorisation of a specific person to sign the verification/certification) does not indicate competent evidence of affiant’s identity as required by the 2004 Rules on Notarial Practice. Though the ground for the denial of the petition is a mere technicality, this development is expected to bring about improved compliance with the requirements of the notarial law for the benefit of all litigants, lawyers and the public in general.
Public interest
Indeed, the notarial practice is invested with substantive public interest. This interest will be better served if the duly commissioned notaries public dutifully observe with the requirements of the notarial law and if they perform their duties with utmost respect and care. The protection of this public interest will also require preventing those who are not qualified or authorised to act as notaries public from imposing themselves upon the public. Thus, in Lingan vs. Calubaquib, A.C. No. 5377, June 15, 2006, the Supreme Court aptly ruled, to wit:
“Only those who are qualified or authorised to do so may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorised to act must be prevented from inflicting themselves upon the public, the courts and the administrative offices in general.”
It bears stressing that notarisation is not a senseless act as it converts a private document into a public one. The notarial act therefore invariably strengthens the reliance placed by the courts, government offices and the public at large upon an instrument otherwise considered as a mere private document and provides a high comfort level to the integrity and protection of business transactions.
To further improve such reliance, the latest Notarial Rules have required those persons who wish to have their documents notarised to appear personally before the notary public when attesting to the contents of the instrument and to present identification cards bearing their photos as well as signatures in addition to the community tax certificate to said notary public.
On hindsight, this may appear to be a source of red tape and an additional transaction cost but certainly, sending your documents to – but without appearing before – the notary public dilutes the public interest character of the notarial act.
