The Abuse of Public Notary Services in the Philippines
Philippines Notary appointments are restricted to members of the Philippine Bar with the following exceptions:
Section 233. Qualifications for Appointment. � To be eligible for appointment as notary public, a person must be a citizen of the Philippines (or of the United States) and over twenty-one years of age. He must, furthermore, be a person who has been admitted to the practice of law or who has completed and passed in the studies of law in a reputable university or school of law, or has passed the examination for the office of the peace or clerk or deputy clerk of court, or be a person who had qualified for the office of notary public under the Spanish sovereignty.
In the chartered cities and in the capitals of the provinces, where there are two or more lawyers appointed as notaries public, no person other than a lawyer or a person who had qualified to hold the office of notary public under the Spanish sovereignty shall hold said office.
In municipalities or municipal districts where no person resides having the qualifications herein before specified or having them, refuses to hold such office, judges of first instance may appoint other persons temporarily to exercise the office of notary public who have the requisite qualifications or fitness and morality.
This allows for the legal profession to abuse the simply proces of notarization. the courts stated in 2007 that as "early as Panganiban v. Borromeo, we held that notaries public must inform themselves of the facts which they intend to certify and to take no part in illegal transactions. They must guard against any illegal or immoral arrangements. It cannot be overemphasized that notarization of documents is not an empty, meaningless or routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. It is through the act of notarization that a private document is converted into a public one, making it admissible in evidence without need of preliminary proof of authenticity and due execution. Indeed, a notarial document is by law entitled to full faith and credit upon its face, and for this reason, notaries public must observe utmost care in complying with the elementary formalities in the performance of their duties. Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined.
Canon 1 of the Code of Professional Responsibility requires every lawyer to uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes. Moreover, the Notarial Law and the 2004 Rules on Notarial Practice require a duly commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or act which constitutes good cause for the revocation of commission or imposition of administrative sanction. Unfortunately, respondent failed in both respects. — Agagon vs. Bustamante, A.C. No. 5510, December 20, 2007"
While this clearly places more responsibility upon a notary for the review of documents to assure that they are not participating in or asiting in illegal acts it is not more onerous than those requirements for a notorial appointment in the U.S. or other countries. A notorization is a validation of signature to insure that the parties signing are those presenting themselves to the notary. This notorial seal does not validate the legality of the document nor does it guarantee their enforcement as legal contracts per the terms of the document. It simply validates the signatories.
While the law states that :
Sec. 12. Notaries. -- No notary public shall charge or receive for any service rendered by him any fee, remuneration or compensation in excess of those expressly prescribed in the following schedule:
(a) For protests of drafts, bills of exchange, or promissory notes for non-acceptance or non-payment, and for notice thereof, ONE HUNDRED (P100.00) PESOS
(b) For the registration of such protest and filing or safekeeping of the same, ONE HUNDRED (P100.00) PESOS;
(c) For authenticating powers of attorney, ONE HUNDRED (P100.00) PESOS;
(d) For sworn statement concerning correctness of any account or other document, ONE HUNDRED (P100.00) PESOS;
(e) For each oath of affirmation, ONE HUNDRED (P100.00) PESOS;
(f) For receiving evidence of indebtedness to be sent outside, ONE HUNDRED (P100.00) PESOS;
(g) For issuing a certified copy of all or part of his notarial register or notarial records, for each page, ONE HUNDRED (P100.00) PESOS;
(h) For taking depositions, for each page, ONE HUNDRED (P100.00) PESOS; and
(i) For acknowledging other documents not enumerated in this section, ONE HUNDRED (P100.00) PESOS. (11a)
The practice however being observced commonly in the Philippines is to charge based upon the type of document at the rate schedules published by the courts for the maximum amount to be charged for actual drafting and legal fees for the documents. For example, when recently presenting a previously drafted Last Will and Testament to a attorney in Toledo Cebu the rate quoted by the "notary" to perform the notorial service in Cebu was P3500 for a simple 2 page standard Last Will and Testament. This same service within the U.S. would be free at your local bank or at most a few dollars at many local shipping outlets or other places of business. We have seen fees presented as a percentage of a real estate transaction cost and other abusive rates.
This rate of P3500 is actually the maximum rate that a attorney is to charge for the actuall drafting of said document. Attorneys are perpetrating a tremendous fraud on the public in this area and abusing their knowlege and exculsive appointments to extract unduye fees from teh public.
The requirements for becoming a Notary Public are the reason for this abuse. They are as follows:
SECTION 1. Qualifications. - A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with these Rules.
To be eligible for commissioning as notary public, the petitioner:
(1) must be a citizen of the Philippines;
(2) must be over twenty-one (21) years of age;
(3) must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued;
(4) must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and
(5) must not have been convicted in the first instance of any crime involving moral turpitude.
SEC. 2. Form of the Petition and Supporting Documents. - Every petition for a notarial commission shall be in writing, verified, and shall include the following:
(a) a statement containing the petitioner's personal qualifications, including the petitioner's date of birth, residence, telephone number, professional tax receipt, roll of attorney's number and IBP membership number; ,
(b) certification of good moral character of the petitioner by at least two (2) executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission;
(c) proof of payment for the filing of the petition as required by these Rules; and
(d) three (3) passport-size color photographs with light background taken within thirty (30) days of the application. The photograph should not be retouched. The petitioner shall sign his name at the bottom part of the photographs.
SEC. 3. Application Fee. - Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court.
SEC. 4. Summary Hearing on the Petition. - The Executive Judge shall conduct a summary hearing on the petition and shall grant the same if:
(a) the petition is sufficient in form and substance;
(b) the petitioner proves the allegations contained in the petition; and
(c) the petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood these Rules.
The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner.
SEC. 5. Notice of Summary Hearing. - (a) The notice of summary hearing shall be published in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. The cost of the publication shall be borne by the petitioner. The notice may include more than one petitioner.
(b) The notice shall be substantially in the following form;
NOTICE OF HEARING
Notice is hereby given that a summary hearing on the petition for notarial commission of (name of petitioner) shall be held on (date) at (place) at (time). Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto, received by the undersigned before the date of the summary hearing.
SEC. 6. Opposition to Petition. - Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto. The opposition must be received by the Executive Judge before the date of the summary hearing.
SEC. 7. Form of Notarial Commission. - The commissioning of a notary public shall be in a formal order signed by the Executive Judge substantially in the following form:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF ______________
This is to certify that (name of notary public) of (regular place of work or business) in (city or province) was on this (date) day of (month) two thousand and (year) commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending the thirty-first day of December (year)
SEC. 8. Period Of Validity of Certificate of Authorization to Purchase a Notarial Seal. - The Certificate of Authorization to Purchase a Notarial Seal shall be valid for a period of three (3) months from date of issue, unless extended by the Executive Judge.
A mark, image or impression of the seal that may be purchased by the notary public pursuant to the Certificate shall be presented to the Executive Judge for approval prior to use.
SEC. 9. Form of Certificate of Authorization to Purchase a Notarial Seal. -The Certificate of Authorization to Purchase a Notarial Seal shall substantially be in the following form:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF_____________
CERTIFICATE OF AUTHORIZATION TO PURCHASE A NOTARIAL SEAL
This is to authorize (name of notary public) of (city or province) who was commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending, the thirty-first of December (year) to purchase a notarial seal.
Issued this (day) of (month) (year).
SEC. 10. Official Seal of Notary Public. - Every person commissioned as notary public shall have only one official seal of office in accordance with these Rules.
SEC. 11. Jurisdiction and Term. - A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court.
SEC. 12. Register of Notaries Public. - The Executive Judge shall keep and maintain a Register of Notaries Public in his jurisdiction which shall contain, among others, the dates of issuance or revocation or suspension of notarial commissions, and the resignation or death of notaries public. The Executive Judge shall furnish the Office of the Court Administrator information and data recorded in the register of notaries public. The Office of the Court Administrator shall keep a permanent, complete and updated database of such records.
SEC. 13. Renewal of Commission. - A notary public may file a written application with the Executive Judge for the renewal of his commission within forty-five (45) days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached to the application.
Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public.
The notary public thus removed from the Register of Notaries Public may only be reinstated therein after he is issued a new commission in accordance with these Rules.
SEC. 14. Action on Application for Renewal of Commission. - The Executive Judge shall, upon payment of the application fee mentioned in Section 3 above of this Rule, act on an application for the renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefor.