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Notaries, take note.

(Article published in the Aug 04,2004 issue of TODAY, Business Section)

Last 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.

The 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).

A new 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.         

Under 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.

The 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.

A 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).

The 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. 

A 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.

In 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).

The 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. 

The 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.

I would not be surprised if the initial years of the 2004 Rules of Notarial Practice are not characterized by confusion confounded: notaries unaware of the new rules going about their old ways thereby putting at risk the comfort that notarized documents give to principals; principals, unsympathetic to the objectives of the Rules, grumbling with hostility against the new requirements of the Rules.  But there is method in that madness.  If the sheer frustration over the new Rules makes people limit the notarization of documents to the very few instances where it is needed for enforceability, validity or registrability of the transaction or document (as in the sale or encumbrance of registered land or execution of a notarial will), then the notarial act would most likely regain the reverence it once commanded and the services of the notary be seen as respectable as the other services of an attorney-at-law.