Upholding Notarial Integrity: Personal Appearance Is Mandatory for Notaries

The Supreme Court has long held that notarization is not a mere mechanical act but a public service imbued with public interest. In Bernaldez v. Atty. Anquilo-Garcia (A.C. No. 8698, August 31, 2016), the Court reminded lawyers commissioned as notaries public that their functions should never be trivialized. The case underscores a fundamental rule: a notary must require the personal appearance of every affiant before performing a notarial act. Failure to do so carries serious administrative consequences, including suspension from the practice of law.

The Facts of the Case

The case arose from a complaint filed by Manuel B. Bernaldez against Atty. Wilma Donna C. Anquilo-Garcia. The complainant alleged that during the 2010 National and Local Elections, the respondent coerced and threatened registered voters in Biri, Northern Samar to sign blank and ready-made affidavits. These affidavits stated that the voters were illiterate or disabled and needed assistors in voting, when in fact they were not. The complainant claimed this scheme was employed to ensure the victory of the respondent's husband, who was running for mayor.

The complainant further averred that the affiants never appeared before the respondent. It was allegedly impossible for her to travel to Catarman, Northern Samar—50 kilometers away by land and sea—to execute the affidavits on election day itself.

The Issue Before the Court

The central issue was whether Atty. Anquilo-Garcia should be held administratively liable for gross misconduct, deceit, violation of the Lawyer's Oath, and abuse of authority as notary public. Two procedural questions also arose: whether the administrative case should await the resolution of a related election protest, and whether the complainant's withdrawal of the complaint should abate the proceedings.

The Ruling: Personal Appearance Is Non-Negotiable

The Supreme Court resolved the procedural issues first. It held that administrative proceedings against lawyers are sui generis—they belong to a class of their own. They are neither civil nor criminal actions but investigations by the Court into the conduct of its officers. The disbarment case was therefore distinct from and could proceed independently of the election protest. There was no need to await the final resolution of the election case.

Likewise, the complainant's withdrawal of the complaint did not matter. Citing Ventura v. Atty. Samson, the Court reiterated that an affidavit of desistance cannot abate administrative proceedings because of the public service character of the practice of law and the nature of disbarment proceedings as a matter of public interest.

On the substantive charge of coercion, the Court found that the complainant failed to prove by clear preponderant evidence that the respondent coerced voters. The affidavits presented pointed to other persons responsible for any force, intimidation, or threats.

However, on the charge of abuse of authority as notary public, the Court ruled against the respondent. The evidence clearly established that she notarized the subject affidavits without the affiants personally appearing before her. The Court found no merit in her defense that the headings of the affidavits indicating different places of execution were mere clerical or typographical errors. A cursory perusal of the affidavits showed they were handed to voters at polling precincts on election day, already bearing the respondent's signature and notarial seal.

The Governing Rule

The Court cited Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice, which explicitly prohibits a person from performing a notarial act if the signatory to the document is not in the notary's presence personally at the time of notarization, and is not personally known to the notary or otherwise identified through competent evidence of identity.

The Court emphasized that lawyers commissioned as notaries public must discharge their powers and duties with accuracy and fidelity. They must inform themselves of the facts they certify to and should not allow themselves to be part of illegal transactions. The respondent's failure to perform her duty undermined the integrity of notarization and degraded its function.

The Penalty Imposed

The Court noted that in prior cases such as Gonzales v. Atty. Ramos and Agbulos v. Atty. Viray, the penalty for notarizing without the affiant's presence was suspension from the practice of law for one year and disqualification from reappointment as notary public for two years.

Considering the absence of bad faith and that this was the respondent's first infraction after long years of membership in the Bar, the Court imposed the less severe penalties of suspension from the practice of law for six (6) months and disqualification from reappointment as notary public for one (1) year. The Court also revoked her notarial commission and warned that a repetition of the same or similar acts would be dealt with more severely.

Practical Takeaways

• Personal appearance is mandatory. A notary public must require the affiant to appear personally before them at the time of notarization. This requirement cannot be waived or dispensed with for convenience.
• Notarization is a public trust. Lawyers who trivialize their notarial functions undermine the integrity of the notarial office and risk administrative sanctions.
• Desistance does not end disciplinary cases. A complainant's withdrawal of a complaint will not automatically terminate administrative proceedings against a lawyer.
• Administrative cases proceed independently. Disciplinary cases against lawyers can proceed even while related civil or criminal cases are pending.
• Penalties can be severe. Even a first offense of notarizing without personal appearance can result in suspension from law practice and loss of the notarial commission.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.