(Article published in the Aug 04,2004 issue of TODAY, Business Section)
Sunday, 01 August 2004, the 2004 Rules on Notarial Practice (the
“Rules”), approved by the Supreme Court en banc on 06 July 2004, took effect. Revising tenets and procedures, some of which date back to
the Notarial Law of Spain which was made applicable to the Philipppines by
royal decree of 15 February 1889, the Rules was intended to promote, serve
and protect public interest, to simplify, and modernize rules governing
notaries public, and to foster ethical conduct among notaries public. It repeals or modifies all rules, or part of rules, including
issuances of the Supreme Court, that are inconsistent with it.
current serious concern about the professional quality of notarial
practice in the Philippines is not without basis.
Recent administrative cases decided by the Supreme Court indicate
how with alarming frequency, notaries have been penalized for taking their
responsibilities lightly. Yet, “the function of a notary public as a public or
as a quasi-public officer has been recognized by the common law, the civil
law as well as by the law of nations.
He is recognized as a necessary official in nearly all the
civilized countries.” (John’s American Notaries, Sec. 1).
requirement of significance under the Rules is that the notary public
render his services from a fixed place.
Until recently, some notaries have been observed setting up shop in
open jeepneys parked on public streets in front of the City Hall or some
other government office. Some
were even seen as being parked on one side of the street in the morning
and on the other side in the afternoon, depending on where the shade is.
The sight had long become
an embarrassment to the legal profession; but since there was no law
against it (and there was demand for the vagrant notary’s services),
every one simply looked the other way.
The Rules now require that a notary must maintain a regular place of work or business in the city or province where the commission is issued (Item (4), Sec. 1, Rule III) and, except for just a few instances, refrain from performing a notarial act outside such regular place of work (Sec. 2, Rule IV). A “regular place of work” refers to “a stationary office” (Sec, 11, Rule II). So, hopefully, no more pathetic peripatetic notaries.
the old Notarial Law (Title IV, Chapter II, Revised Administrative Code),
a person who is not a lawyer,
in certain cases, may be appointed a notary.
For instance, one who has completed and passed in the studies of
law in a reputable university or law school, may be given a notary’s
commission. This was often
resorted to in places where there were no lawyers available.
Rules is now very explicit in the requirement that the applicant for a
notarial commission be “a member of the Philippine Bar in good standing
with clearances from the Office of the Bar Confidant of the Supreme Court
and [from] the Integrated Bar of the Philippines” (Item (4), Sec. 1,
Rule III). The possibility
that no lawyer is available in a certain locality has, it seems, become
very remote what with more than a couple of thousands passing the bar
every year, and not much of a concern due to the present ease in getting
some appropriate means of transportation to places where notaries abound.
hearing, albeit summary, is now required to be conducted by the Executive
Judge before he could grant the commission (Sec. 4, Rule III).
The hearing must be preceded by the publication of a notice
published in a newspaper of general circulation in the relevant
jurisdiction and posting in a conspicuous place in the offices of the
Executive Judge and of the Clerk of Court.
The notice must state the name of the lawyer seeking a commission,
the date, time and place of the hearing.
Persons who have reasons to object must do so in a verified written
opposition to be filed with the Executive Judge before the hearing (Sec.
5, Rule IV).
limited powers of notaries granted in the old Notarial Law (Sec. 241,
Title IV, Chapter II, Revised Administrative Code) were expanded by the
Rules in two ways: first, the practice of accepting a thumb mark in lieu
of signature was formally recognized; and second, the notary may now sign
on behalf of a person, under certain circumstances.
thumb or other mark may be used in lieu of a signature on a document if
(a) the thumb or other mark is affixed in the presence of the notary and
of two disinterested witnesses; (b) the two disinterested witnesses both
sign their names; and (c) the notary writes below the thumb or other mark
that the named person affixing his thumb or other mark did so in the
presence of the two witnesses and the notary himself, and the addresses of
the witnesses; and (d) the notary notarizes through an acknowledgement, a
jurat, or signature witnessing. An
“acknowledgement” is essentially a statement by a party to a document
that he executed the document freely; in a “jurat”, the person takes
an oath or affirmation as to the document; and in a “signature
witnessing” a notary simply acts as a witness to the person affixing his
signature or mark.
addition, the notary public may now sign for a person who is unable to
sign or affix his thumb or other mark. The notary, however, must be directed to do so by the
disabled person; the notary’s signature must be affixed in the presence
of two disinterested witnesses; both said witnesses must sign their names;
the foregoing facts are stated by the notary; and the notary notarizes his
signature by acknowledgment or jurat (Sec. 1, Rule IV).
personal presence of the principal or principals (i.e. the person or
persons whose act is the subject of the notarial action) is the foundation
of the value of notarized documents and the respect accorded by the law to
it. However, it is an open
secret that in not a few cases, the principals really do not appear before
the notary public.
Rules has a found a new and terribly inconvenient way of discouraging
absentee principals. It
requires that certain persons also sign what used to be an exclusive
domain of the notary, namely, his Notarial Register.
Section 3 of Rule VI requires that “at the time of the
notarization” the notarial register must be signed by (a) the principal;
and (b), if the principal did
not have at least one current identification document issued by an
official agency bearing his photograph and signature, by the credible
witness or witnesses affirming or swearing to the principal’s identity;
and (c), by the witnesses to the thumb or other mark or to the signing by
the notary public on behalf of the person unable to sign.