Arriola v. Fernandez (A.M. MTJ-19-1921, February 13, 2019)
CASE DIGEST: [A.M. MTJ-19-1921, February 13, 2019]/ VILMA R. ARRIOLA, COMPLAINANT, V. HON. VICENTE S. FERNANDEZ, RESPONDENT.
This administrative matter stemmed from a Complaint-Affidavit for gross ignorance of the law, unauthorized notarization of public documents, and misconduct dated August 22, 2017 filed by Vilma R. Arriola against Judge Vicente S. Fernandez, Jr. in his capacity as the presiding judge of the Municipal Trial Court (MTC), San Felipe, Zambales.
The complainant alleged that Judge Fernandez had notarized two judicial affidavits separately executed by a certain Daisy R. Nery and Clifton Galarpe. Each document contained the following jurat:
Judge Fernandez claimed in his Comment that the subject documents were connected with the administrative proceedings for serious dishonesty filed against the complainant as Revenue Collection Clerk II of the municipality of San Felipe, Zambales; that in the course of the fact-finding proceedings, the Acting Municipal Accountant and Officer-in-Charge (OIC) of the Municipal Treasury requested him to administer oaths in relation to certain personnel; that he did not violate SC Circular No. 1-90 because he did not notarize the documents, but merely administered the oath of Nery and Garalpe as part of the general authority given to members of the Judiciary under Executive Order No. (EO) 292; and that while members of the Judiciary and notaries public alike are empowered to administer oaths, only notaries public are bound by the 2004 Rules on Notarial Practice in the exercise of this duty.
In its Memorandum dated July 9, 2018, the Office of the Court Administrator (OCA) opined that notarized documents include those that have been subscribed and sworn to under oath and those that contain a jurat; that in either case, Judge Fernandez had notarized a document and rendered notarial services; that Judge Fernandez was bound by the guidelines under SC Circular No. 1-90; that the subject judicial affidavits which Judge Fernandez acknowledged were not connected to the exercise of his official functions; that Judge Fernandez acted outside his authority as a notary public ex-officio; and that Judge Fernandez did not comply with the required certification that there were no available notary public within the territorial jurisdiction of his court. For violation of SC Circular 1-90, the OCA recommended that Judge Fernandez should be found guilty of a less serious offense under Rule 140 of the Rules of Court and be meted with a penalty of P2,000.00.
HELD: WHEREFORE, the Court RESOLVES to ADMONISH, respondent Judge Vicente S. Fernandez, Jr. for unauthorized notarization of private documents, in violation of SC Circular No. 1-90; and issues a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. The Supreme Court AGREED with the OCA's findings.
Generally, a judge is prohibited from engaging in the private practice of law, which includes performing acts as a notary public. However, by exception, Section 76 of R.A. No. 296 (The Judiciary Act of 1948) and Sections 242(c) of the Revised Administrative Code of 1987 allow the MTC and MCTC judges to perform the function of notaries public ex-officio. SC Circular No. 1-90 further provided MTC or MCTC judges with authority to notarize documents in their capacity as notary public ex-officio based on the following conditions, viz.: (1) the notarization is connected with the exercise of his official functions and duties; (2) all notarial fees collected shall be remitted to the municipal treasurer; and (3) in the notarized document, the judge must issue a certification attesting to the lack of any lawyer or notary public in such municipality or circuit.
The High Court found that Judge Fernandez failed to comply with the first and third requirements. Notable herein that the respondent himself admitted that he notarized the subject judicial affidavits upon the request of a municipal official in relation to an ongoing fact-finding investigation involving the municipal treasurer's office. Certainly, these affidavits were not connected with the exercise of his official functions and duties as solemnizing officer. Also, he notarized the judicial affidavits without certifying that lawyers or notaries public were lacking in his court's territorial jurisdiction.In his attempt to remove himself from the application of SC Circular No. 1-90, Judge Fernandez differentiated between notarizing documents and administering oaths - that notarized documents contain an "acknowledgment" that the notary public knows the parties and that the parties are executing the contract or deed by their volition, and that the phrase "subscribed and sworn to before me" in the jurat of the subject judicial affidavits connoted that he merely administered oaths to Nery and Galarpe. The Judge is wrong; regardless of the nomenclature that respondent would wish to use, the jurat in the subject judicial affidavits shows that the affiants took an oath as to these documents before Judge Fernandez in his capacity as a notary public ex-officio.
Section 6, Rule II of the 2004 Rules on Notarial Practice defines & jurat as follows:
SUGGESTED READINGS:
[1] "Power of the Municipal Trial Court Judges and Municipal Circuit Trial Court Judges to act as Notaries Public Ex Oficio" dated February 26, 1990.
[2] The OCA based its recommendation on Doughlas v. Judge Lopez (A.M. No. MTJ-96-1076, February 9, 2000, 325 SCRA 129) and Simon v. Judge Aragon (A.M. No. MTJ-05-1576, February 3, 2005, 450 SCRA 414) where MCTC judges were ordered to pay an amount of P1,000.00 for each document notarized in violation of SC Circular 1-90. In Doughlas v. Judge Lopez, the fine amounted to P 1,000.00 corresponding to one notarized document while in Simon v. Judge Aragon, the respondent judge was fined in the amount of P7,000.00 corresponding to seven notarized documents.
[3] Canon 5, Rule 5.07, Code of Judicial Conduct.
[4]Section 76 of the Judiciary Act of 1948 (Republic Act No. 296) provides for the miscellaneous powers of a Justice of the Peace, viz: "A justice of the peace shall have power anywhere within his territorial jurisdiction to solemnize marriages, authenticate merchant's books, administer oaths and take depositions and acknowledgment, and, in his capacity as ex-officio notary public, may perform any act within the competency of a notary public." On the other hand, Section 242(c) of the Revised Administrative Code of 1987 (Notarial Law) similarly allows Justices of the Peace to act as notaries public ex-offio "within the limits of the territory over which their jurisdiction as justices of the peace extends; but auxiliary justices of the peace and other officers who are by law vested with the office of justice of the peace ex-officio shall not, solely by reason of such authority, be also entitled to act in the capacity of notaries ex-officio."
[5] Tupal v. Rojo, A.M. No. MTJ-14-1842, February 24, 2014, 717 SCRA 236, 244.
The complainant alleged that Judge Fernandez had notarized two judicial affidavits separately executed by a certain Daisy R. Nery and Clifton Galarpe. Each document contained the following jurat:
SUBSCRIBED AND SWORN TO before me this 21st day of July 2017 at San Felipe, Zambales Affiant exhibited her valid Community Tax Certificate.
(signed)The complainant believed that Judge Fernandez' act of notarizing the judicial affidavits violated Supreme Court (SC) Circular No. 1-90. The said circular prohibits judges from acknowledging private documents which do not directly relate to the discharge of their official functions and only allows them to notarize documents provided that they certify as to the lack of notary public in the municipality where their court sits. According to the complainant, the judicial affidavits executed by Nery and Galarpe were not connected with Judge Fernandez' official functions and also did not contain the required certification. She further alleged that Judge Fernandez accepted Nery and Galarpe's Community Tax Certificates (CTCs) as proof of identity even if CTCs are not recognized as competent evidence of identity under the 2004 Rules on Notarial Practice.
Doc. No.__; Vicente S. Fernandez, Jr.
Page No.__; Presiding Judge
Book No.__; MTC - San Felipe,
Series of 2017 Zambales
Judge Fernandez claimed in his Comment that the subject documents were connected with the administrative proceedings for serious dishonesty filed against the complainant as Revenue Collection Clerk II of the municipality of San Felipe, Zambales; that in the course of the fact-finding proceedings, the Acting Municipal Accountant and Officer-in-Charge (OIC) of the Municipal Treasury requested him to administer oaths in relation to certain personnel; that he did not violate SC Circular No. 1-90 because he did not notarize the documents, but merely administered the oath of Nery and Garalpe as part of the general authority given to members of the Judiciary under Executive Order No. (EO) 292; and that while members of the Judiciary and notaries public alike are empowered to administer oaths, only notaries public are bound by the 2004 Rules on Notarial Practice in the exercise of this duty.
In its Memorandum dated July 9, 2018, the Office of the Court Administrator (OCA) opined that notarized documents include those that have been subscribed and sworn to under oath and those that contain a jurat; that in either case, Judge Fernandez had notarized a document and rendered notarial services; that Judge Fernandez was bound by the guidelines under SC Circular No. 1-90; that the subject judicial affidavits which Judge Fernandez acknowledged were not connected to the exercise of his official functions; that Judge Fernandez acted outside his authority as a notary public ex-officio; and that Judge Fernandez did not comply with the required certification that there were no available notary public within the territorial jurisdiction of his court. For violation of SC Circular 1-90, the OCA recommended that Judge Fernandez should be found guilty of a less serious offense under Rule 140 of the Rules of Court and be meted with a penalty of P2,000.00.
HELD: WHEREFORE, the Court RESOLVES to ADMONISH, respondent Judge Vicente S. Fernandez, Jr. for unauthorized notarization of private documents, in violation of SC Circular No. 1-90; and issues a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. The Supreme Court AGREED with the OCA's findings.
Generally, a judge is prohibited from engaging in the private practice of law, which includes performing acts as a notary public. However, by exception, Section 76 of R.A. No. 296 (The Judiciary Act of 1948) and Sections 242(c) of the Revised Administrative Code of 1987 allow the MTC and MCTC judges to perform the function of notaries public ex-officio. SC Circular No. 1-90 further provided MTC or MCTC judges with authority to notarize documents in their capacity as notary public ex-officio based on the following conditions, viz.: (1) the notarization is connected with the exercise of his official functions and duties; (2) all notarial fees collected shall be remitted to the municipal treasurer; and (3) in the notarized document, the judge must issue a certification attesting to the lack of any lawyer or notary public in such municipality or circuit.
The High Court found that Judge Fernandez failed to comply with the first and third requirements. Notable herein that the respondent himself admitted that he notarized the subject judicial affidavits upon the request of a municipal official in relation to an ongoing fact-finding investigation involving the municipal treasurer's office. Certainly, these affidavits were not connected with the exercise of his official functions and duties as solemnizing officer. Also, he notarized the judicial affidavits without certifying that lawyers or notaries public were lacking in his court's territorial jurisdiction.In his attempt to remove himself from the application of SC Circular No. 1-90, Judge Fernandez differentiated between notarizing documents and administering oaths - that notarized documents contain an "acknowledgment" that the notary public knows the parties and that the parties are executing the contract or deed by their volition, and that the phrase "subscribed and sworn to before me" in the jurat of the subject judicial affidavits connoted that he merely administered oaths to Nery and Galarpe. The Judge is wrong; regardless of the nomenclature that respondent would wish to use, the jurat in the subject judicial affidavits shows that the affiants took an oath as to these documents before Judge Fernandez in his capacity as a notary public ex-officio.
Section 6, Rule II of the 2004 Rules on Notarial Practice defines & jurat as follows:
SEC. 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:Considering that this was the respondent's first offense and that he was not motivated by pecuniary reasons in notarizing the subject documents, the Court only issued an admonition against Judge Fernandez to be more prudent in his actions but warn him that the Court will not be as forgiving should he commit a similar infraction.
(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 as defined by these Rules;
(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. (Emphasis Supplied)
SUGGESTED READINGS:
[1] "Power of the Municipal Trial Court Judges and Municipal Circuit Trial Court Judges to act as Notaries Public Ex Oficio" dated February 26, 1990.
[2] The OCA based its recommendation on Doughlas v. Judge Lopez (A.M. No. MTJ-96-1076, February 9, 2000, 325 SCRA 129) and Simon v. Judge Aragon (A.M. No. MTJ-05-1576, February 3, 2005, 450 SCRA 414) where MCTC judges were ordered to pay an amount of P1,000.00 for each document notarized in violation of SC Circular 1-90. In Doughlas v. Judge Lopez, the fine amounted to P 1,000.00 corresponding to one notarized document while in Simon v. Judge Aragon, the respondent judge was fined in the amount of P7,000.00 corresponding to seven notarized documents.
[3] Canon 5, Rule 5.07, Code of Judicial Conduct.
[4]Section 76 of the Judiciary Act of 1948 (Republic Act No. 296) provides for the miscellaneous powers of a Justice of the Peace, viz: "A justice of the peace shall have power anywhere within his territorial jurisdiction to solemnize marriages, authenticate merchant's books, administer oaths and take depositions and acknowledgment, and, in his capacity as ex-officio notary public, may perform any act within the competency of a notary public." On the other hand, Section 242(c) of the Revised Administrative Code of 1987 (Notarial Law) similarly allows Justices of the Peace to act as notaries public ex-offio "within the limits of the territory over which their jurisdiction as justices of the peace extends; but auxiliary justices of the peace and other officers who are by law vested with the office of justice of the peace ex-officio shall not, solely by reason of such authority, be also entitled to act in the capacity of notaries ex-officio."
[5] Tupal v. Rojo, A.M. No. MTJ-14-1842, February 24, 2014, 717 SCRA 236, 244.