The 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC or the “Rules”) took effect on August 1, 2004. It was enacted (a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public (Rule I, Sec. 2).
Among other matters, the Rules require parties to instruments to present competent evidence of their identity to the notary public.
On February 19, 2008, the Supreme Court amended Rule II Sec. 12 (a) of the Rules and enumerated the acceptable competent evidence of identity:
“(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulation Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; x x x”
While the Rules require the presentation of competent evidence of identity, it does not mention community tax certificates or cedulas or residence certificates which, prior to the effectivity of the Rules, were the only documents that parties to instruments were required to present to notaries public.
Are parties required to present competent evidence
of their identity to the notary in all instances?
In Cable Star Inc. v. Cable BOSS (GR No. 181058, January 28, 2008), the Supreme Court denied petitioner’s motion for extension to file petition for review “for submitting an affidavit of service of the motion that fails to comply with the 2004 Rules on Notarial Practice re: competent evidence of affiant’s identity.”
In footnote 16 of Sigma v. Inter-Alia. (GR No. 177898, August 13, 2008), the Court explained that it denied the petitioner’s motion for extension of time to file petition for review, likewise for submitting an affidavit of service that does not comply with the requirement on competent evidence of identity.
And in de la Cruz v. Dimaano (AC No. 7781, September 18, 2008), the Court stated without qualification that “Rule II, Sec. 12 of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity”.
The foregoing pronouncements of the Court show that non-compliance with the Rules affect the notarial act itself, i.e. the document notarized is invalidated or will not be considered a public document.
These also imply that parties to instruments are required to present competent evidence of their identity every time they desire to avail of the services of notaries public. However, it is submitted that this should not be the case, since the notary is required to record in his notarial register the competent evidence of identity only if the signatory is not personally known to him (Rule VI Sec. 2 , Rules). This implies that no competent evidence of identity is required if the signatory is personally known to the notary. This view is consistent with an article in the Supreme Court’s website which states that “under the Rules, Notaries Public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities”. (Madeleine UVG Avanzado, “SC Enumerates Documents Considered as ‘Competent Evidence of Identity’” [http://sc.judiciary.gov.ph/publications/benchmark/2008/02/020819.php], accessed July 20, 2009).
In Amora v. COMELEC (GR No. 192280, January 25, 2011), the Supreme Court affirmed the validity of the petitioner’s certificate of candidacy even though he presented a cedula but not competent evidence of identity to the notary public who administered his oath, since he is personally known to the notary:
“Another red flag for the COMELEC to dismiss Olandria’s petition is the fact that Amora claims to personally know the notary public, Atty. Granada, before whom his COC was sworn. In this regard, the dissenting opinion of Commissioner Larrazabal aptly disposes of the core issue:
With all due respect to the well-written Ponencia, I respectfully voice my dissent. The primary issue herein is whether it is proper to disqualify a candidate who, in executing his Certificate of Candidacy (COC), merely presented to the Notary Public his Community Tax Certificate.
The majority opinion strictly construed the 2004 Rules on Notarial Practice (the “2004 Notarial Rules”) when it provided that valid and competent evidence of identification must be presented to render Sergio G. Amora, Jr.’s [petitioner’s] COC valid. The very wording of the 2004 Notarial Rules supports my view that the instant motion for reconsideration ought to be granted, to wit:
Section 2. Affirmation or Oath. – The term “Affirmation or Oath” refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or document.
As quoted supra, competent evidence of identity is not required in cases where the affiant is personally known to the Notary Public, which is the case herein. The records reveal that [petitioner] submitted to this Commission a sworn affidavit executed by Notary Public Oriculo A. Granada (Granada), who notarized [petitioner’s] COC, affirming in his affidavit that he personally knows [petitioner].
[Respondent], on the other hand, presented no evidence to counter Granada’s declarations. Hence, Granada[’s] affidavit, which narrates in detail his personal relation with [petitioner], should be deemed sufficient. The purpose of election laws is to give effect to, rather than frustrate, the will of the voters. The people of Candijay, Bohol has already exercised their right to suffrage on May 10, 2010 where [petitioner] was one of the candidates for municipal mayor.
To disqualify [petitioner] at this late stage simply due to an overly strict reading of the 2004 Notarial Rules will effectively deprive the people who voted for him their rights to vote.
x x x
Our ruling herein does not do away with the formal requirement that a COC be sworn. In fact, we emphasize that the filing of a COC is mandatory and must comply with the requirements set forth by law.
Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath refers:
x x x
In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the alleged defect in the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance. On the whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada and remained inflexible in the face of Amora’s victory and proclamation as Mayor of Candijay, Bohol.”
Amora v. COMELEC interprets the 2004 Rules on Notarial Practice provisions on competent evidence of identity and harmonizes it with related laws, specifically on the presentation of cedulas; the phrase “in this instance” does not mean that it is pro hac vice.
In sum, competent evidence of identity do not take the place of cedulas. The latter are not competent evidence of identity (footnote 19, Williams v. Icao, AC No. 6882, December 24, 2008; Baylon v. Almo, AC No. 6982, 555 SCRA 249, 253 ), which the affiant is required to present to the notary if he is not personally known to the him. In contrast, the affiant is required by law to present his cedula to the notary for each notarial act, regardless of whether or not he is known to the latter.
Are cedulas still relevant as far as the notarial act is concerned?
Some notaries public certify that they personally know the affiant and so they no longer demand the presentation of competent evidence of identity. But at the same time, they also do not demand the presentation of the affiant’s cedula because this is not required by the Rules. And so there are now jurats and acknowledgments that do not contain any information about the affiant’s cedula, as well as those that are silent about both his cedula and his competent evidence of identity.
In footnote 19 of Williams v. Icao, the Court also explained that under Section 13 of the Rules, a residence certificate is no longer considered a competent evidence of identity. And the Court, in Baylon v. Almo (AC No. 6962, June 25, 2008) categorically stated that the respondent notary public:
“…should not have relied on the Community Tax Certificate presented by the said impostor in view of the ease with which community tax certificates are obtained these days. As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized.”
It therefore appears that parties to instruments are no longer required to present their cedulas to notaries public.
While the Rules do not mention cedulas – in Baylon v. Almo, the Supreme Court even stated that it did not include cedulas in the list of competent evidence of identity, which seems to indicate the Court’s preference to do away with it altogether – it is submitted that these are still necessary for the proper execution of the notarial act. This is because their presentation is prescribed by various laws, such as:
1. Section 6 of Commonwealth Act No. 465 or the Residence Tax Act which states that:
“When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx”;
2. Section 249 of the Revised Administrative Act, which the Supreme Court quoted in its Decision in Williams v. Icao reproduced above;
3. Section 251 of the Revised Administrative Act:
“Requirement as to notation of payment of [cedula] residence tax. – Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.”
4. and Section 163 of the Local Government Code:
“(a) When an individual subject to the community tax acknowledges any document before a notary public, … it shall be the duty of any person, officer, corporation with whom such transaction is made… to require such individual to exhibit the community tax certificate.”
Are the Rules consistent with the laws requiring the presentation of the cedula to the notary public?
It appears that the laws requiring the presentation of the cedula have not been repealed by subsequent legislative enactments. And so these laws remain valid until the present (Article 7, Civil Code), notwithstanding the Rules’ silence insofar as cedulas are concerned.
To be valid, the Rules must conform to and be consistent with the provisions of the enabling statute; as such, it cannot amend the law either by abridging or expanding its scope (Perez v. PLDT GR No. 1502048, April 7, 2009). Agencies cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory (Conte v. Commission on Audit GR No. 116422, 264 SCRA 19, 30 ).
But is there really a conflict between the Rules and the laws requiring the presentation of the cedula? It is submitted that there is none. The requirement for the presentation of competent evidence of identity does not abridge or expand the scope of the laws affecting notarial practice since its purpose is to protect the integrity of the notarial act. Secondly, the Rules’ silence on the matter of cedulas should not be taken as proof that these are now unnecessary.
Clearly, the laws affecting notarial practice and the Rules can be applied simultaneously, and thus harmonized. In short, the presentation of a competent evidence of identity, if required, will not bar the presentation of the cedula, and vice-versa.
Hence it is only when the party or parties is/are not personally known to the notary that they must present competent evidence of their identity to him; or in the alternative, the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification (Rule II, Sec. 12 [b]). On the other hand, they must present their community tax certificates to the notary, whether or not they are personally known to him.
But to be sure, it is suggested that the notary require the presentation of competent evidence of the identity of all parties to instruments, whether or not they are personally known to him, as well as their community tax certificates. After all, it is better to err on the side of caution.
(This post is an expanded version of the author’s article that appeared in the September 30, 2009 issue of The Lawyer’s Review.)
Edit April 18, 2013:
The Supreme Court, in its April 10, 2013 Resolution in Jandoquile v. Atty. Revilla (AC No. 9514) underscored that a notary public does not need to require affiants to present proof of their identity if he knows them personally, but he must state this fact in his jurat:
“…If the notary public knows the affiants personally, he need not require them to show their valid identification cards. This rule is supported by the definition of ‘jurat’ under Section 6, Rule II of the 2004 Rules on Notarial Practice. A ‘jurat’ refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document. In this case, Heneraline Brosas is a sister of Atty. Revilla, Jr.’s wife; Herizalyn Brosas Pedrosa is his wife’s sister-in-law; and Elmer Alvarado is the live-in houseboy of the Brosas family. Atty. Revilla, Jr. knows the three affiants personally. Thus, he was justified in no longer requiring them to show valid identification cards. But Atty. Revilla, Jr. is not without fault for failing to indicate such fact in the ‘jurat’ of the complaint-affidavit. No statement was included therein that he knows the three affiants personally…”
Nevertheless, Atty. Revilla was reprimanded and disqualified from being commissioned as a notary public, or from performing any notarial act if he is presently commissioned as a notary public for a period of three months, because he violated the disqualification rule under Section 3(c), Rule IV of the 2004 Rules on Notarial Practice:
“SEC. 3. Disqualifications. – A notary public is disqualified from performing a notarial act if he:
x x x x
(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree.”
Edit December 4, 2013:
An updated version of this post will appear in the second (2014) edition of the author’s “Desk-Book for Philippine Notaries”, to be published by Central Bookstore.