"Not all lawyers are notaries."
"Not all lawyers are notaries."
Individuals who are in need of a notary public always have a lawyer in mind. They try to recall who among their neighbors, friends, officemates or former schoolmates are lawyers.
Unfortunately, not all lawyers are notaries. To be a notary, the lawyer must be commissioned by the Executive Judge of the area where he is to perform his notarial duties, and if so commissioned or authorized he can act as such for a period of two (2) years (Section 11, Rule III, 2004 Rules on Notarial Practice [RNP]).
To be eligible for commissioning as a notary public, the applicant must be: (a) a citizen of the Philippines; (b) over 21 years old; (c) resident of the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where he or she is commissioned; (d) a member of the Philippine bar in good standing; and (e) free from conviction of a crime involving moral turpitude (Section 1, Rule III, RNP).
The importance of the notarial act is sometimes underestimated if not completely ignored. The notary public shall not notarize a blank or incomplete instrument or document; nor an instrument or document without the appropriate notarial certification (Section 6, Rule IV, RNP). A notarial certification states the facts attested by the notary public in a particular notarization (Section 8, Rule II, RNP). If the notary public insists to notarize improper documents he may be held administratively liable.
The notary public, in addition to notarizing documents with acknowledgments and jurats, can also administer oaths and affirmations. A notarial act which is relatively unknown to most is the “copy certification” or notarial comparison. It is a process wherein the notary public compares an instrument or document – which is neither a vital record, public record, nor publicly recordable – with a copy and determines whether it is accurate and complete (Section 4, Rule II, RNP).
Another not so common notarial act is “signature witnessing.” It is when a person appears before the notary public and presents an instrument or document, signs it in the presence of the notary public after identifying the person with competent evidence (Section 14, Rule II, RNP). A notary public is also allowed to take depositions of persons in the Philippines (Section 10, Rule 23, Rules of Civil Procedure as amended).
The acts of the notary public is required to be recorded in the notarial register. It is a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public (Section 5, Rule II, RNP). The recording is based on the numbers appearing in the lower left portion of the notarial certificate that says “page, document, book, and series of 2021.” This is a sufficient guide to indicate the notarial register where the document and its year of notarization are recorded.
The notary public shall not perform a notarial act if the person involved as signatory to the instrument or document does not personally appear in his presence at the time of the notarization. This is a problem that usually arises if the notarization is to be facilitated by someone known to the notary public such as a relative or friend. The notary public cannot notarize an instrument or document of a person not known to him or not identified through competent evidence of identity (Section 2, Rule IV, RNP).
The notary public is disqualified from performing a notarial act if he is a party to the instrument or document to be notarized. He is also disqualified if he will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration aside from the notarial fees. He is disqualified to perform the notarial acts of his or her spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (Section 3, Rule IV, RNP).
If in the notary's judgment the signatory is not acting in his or her own free will, he or she must refuse to notarize. He must also refuse if there is good reason to believe that the notarial act is unlawful or immoral. He cannot and shall not execute a certificate containing information known or believed by him to be false (Sections 4 and 5, Rule IV, RNP).
For performing a notarial act, a notary public may charge the maximum fee as prescribed by the Supreme Court unless he waives the fee in whole or in part. He may also charge travel fees and expenses separate and apart from the notarial fees if the notary public and the person requesting the notarial act agree prior to travel. A notary public shall issue a receipt registered with the Bureau of Internal Revenue and keep a journal of notarial fees (Sections 1, 2, and 5, Rule V, RNP).
While there is a notion that documents or instruments may be notarized in any place, the 2004 Rules on Notarial Practice prohibits performing the notarial act outside the notary public’s regular place of work or business. However, on certain exceptional occasions, a notarial act may be performed at the request of the parties in public offices, convention halls, and similar places (Section 2, Rule IV, RNP).
Also on exceptional occasions and at the request of the parties, the notarial act can be performed in: (a) public function areas in hotels and similar places for the signing of instruments; (b) hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and (c) any place where a party to an instrument or document requiring notarization is under detention (Section 2, Rule IV, RNP).
However, the requirement of personal appearance before the notary public was affected by the COVID-19 pandemic, leading the Supreme Court to urgently respond by issuing the 2020 Interim Rules on Remote Notarization of Paper Documents (RON Rules). These Rules will only apply in cases where the notary public, or at least one of the principals resides, holds office, or is situated in a locality under community quarantine (Section 3, Rule I, RON Rules).
The performance of remote notarial acts will be through the use of videoconferencing facilities. When an instrument or document is acknowledged before a notary public, or requires a jurat, oath or affirmation, the principal shall cause its delivery by personal or courier service to the former. The instrument or document must be integrally complete, bear the handwritten signature of the principal, and be placed in a sealed envelope with his or her initials (Section 1 (a), Rule II, RON Rules).
The same envelope must contain two (2) copies of any competent evidence of identity of the principal (Section 1 (b), Rule II, RON Rules). The identification of an individual must be based on one current identification document issued by an official government agency bearing the photograph and signature of the individual, such as: passports, driver’s licenses, Professional Regulations Commission (PRC) IDs, Integrated Bar of the Philippines (IBP) IDs, NBI Clearances or voter’s IDs, among others (Section 6(b)(i), Rule I, RON Rules).
The principal must also submit to the notary public a video clip showing that he or she actually signed the instrument or document that is the subject of the notarial act. The USB or CD containing the video clip must be placed in the same sealed envelope or may be sent by email or any other means of video communication by the principal to the notary public (Section 1 (c), Rule II, RON Rules).
Upon receipt of the sealed envelope, the notary public must schedule a videoconference with the principal to require him or her to: (a) confirm his or her identity; and (b) confirm his location to the satisfaction of the notary public. Thereafter, the notary public will open the sealed envelope containing the instrument or document within full view of the principal and have him or her confirm it to be the same instrument or document delivered (Section 1 (d), Rule II, RON Rules).
During the entire duration of the video conference, the instrument or document must be in full view of the principal. The principal will be required to affix his or her signature in a blank piece of paper for comparison with the signature appearing in the delivered instrument or document. Confimation by the principal that the signature belongs to him or her and it was voluntarily affixed is also required. The notary public must review the video clip to verify that the principal signed the instrument or document as claimed (Section 1 (d), Rule II, RON Rules).
As aptly stated in the case of Nunga v. Atty. Viray “[N]otarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. It must be underscored that the notarization by a notary public converts a private document into a public document making that document admissible in evidence without further proof of the authenticity thereof. For this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties” (Adm. Case No. 4758, April 30, 1999).