A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties, lest, the confidence of the public in the integrity of the document will be undermined.
A.M. No. 02-8-13-SC or the 2004 Rules on Notarial Practice (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.
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 to instruments required to present competent evidence of their identity to the notary in all instances?
In Cable Star Inc. v. Cable BOSS, 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., 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, 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. 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”.
Are parties to instruments no longer required to present their community tax certificates to the notary?
In Lee v. Atty. Tambago, the Supreme Court said:
“A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.”
Again, the Supreme Court emphasized that non-compliance with the Notarial Law invalidates the document supposedly notarized.
While in Williams v. Icao, the Supreme Court said:
“x x x The document does not bear the residence certificate number of Lucia Briones, one of the signatories. In notarizing it without recording Lucia’s residence certificate, respondent violated the Notarial Law then effective which required the notary public to certify that the party to the instrument which was acknowledged before him had presented the proper residence certificate (or exemption from the residence certificate) and to enter its number, place and date of issue as part of the certification. This formality is mandatory and cannot be neglected, failure to comply with which results in the revocation of a notary’s commission.”
But 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. It therefore appears that parties to instruments are no longer required to present their cedulas to notaries public.
And the Court, in Baylon v. Almo, categorically stated that the respondent:
“…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.”
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, 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. Agencies cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory.
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. 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 be safe than to be sorry.
By Atty. Jose Mari Benjamin F.U. Tirol