The Philippine judicial system has been transformed by the Judicial Affidavit Rule (JAR), promulgated by the Supreme Court through A.M. No. 12-8-8-SC and effective January 1, 2013. The JAR was instituted to alleviate court congestion and expedite the trial process by substituting lengthy direct examinations in open court with pre-submitted sworn affidavits. It applies to civil and criminal cases before Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts, as well as to certain quasi-judicial proceedings.

Under Section 2 of the JAR, every judicial affidavit must be prepared in the prescribed format and “subscribed and sworn to before a notary public or any person authorized by law to administer oaths.” This requirement ensures that the witness attests under oath to the truthfulness of the statements, exposing the affiant to liability for perjury under Article 183 of the Revised Penal Code should any material falsehood be proven. Sections 3 to 6 of the JAR further prescribe the mandatory contents: the affiant’s personal circumstances; a declaration that the facts are based on personal knowledge or authentic documents; consecutively numbered paragraphs stating the facts; and attachments of documentary or object evidence. Failure to comply with these formalities, including proper notarization or oath administration, may result in the affidavit being disallowed as direct evidence under Section 6, forcing the witness to testify orally or resulting in waiver of testimony under Rule 11.

Notarization of the judicial affidavit is governed primarily by the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC). A notary public performs an official public function by verifying the identity of the affiant, confirming personal appearance before him or her, and executing a jurat. The jurat must state the date and place of execution, describe the competent evidence of identity presented (such as a passport, driver’s license, or other government-issued identification bearing a photograph and signature), and bear the notary’s official signature, seal, and commission details. The affiant is required to appear physically; the notary must explain the contents if necessary and record the act in the notarial register as mandated by Rule VI, Section 12. These formalities guarantee the document’s authenticity and public character.

Private counsel—lawyers engaged in private practice and representing a party—may lawfully hold a notarial commission issued by the Executive Judge of the appropriate Regional Trial Court. Such commissions are valid for two years and renewable, authorizing the lawyer to perform notarial acts within the specified territorial jurisdiction. The JAR itself contains no provision barring the handling counsel from notarizing the affidavit of a witness he or she intends to sponsor. Likewise, the 2004 Rules on Notarial Practice do not impose an absolute prohibition.

Rule IV of the 2004 Rules enumerates the specific disqualifications of a notary public. A notary is prohibited from performing a notarial act only if: (a) the notary is a party to the instrument; (b) the notary is the spouse, common-law partner, or a relative within the fourth civil degree of the person whose signature is to be notarized; or (c) the notary has a direct financial or beneficial interest in the document or transaction that is the subject of the notarial act. In the case of a judicial affidavit, the private counsel is not a party to the affidavit, is not related to the witness in the prohibited degrees, and does not possess a “direct” interest in the affidavit itself. The lawyer’s professional stake in the overall litigation outcome is considered indirect and does not fall within the disqualification. Consequently, under a strict reading of the applicable rules, a duly commissioned private counsel may notarize the judicial affidavit of his or her own witness, provided all notarial formalities—personal appearance, competent identification, and proper jurat—are strictly observed.

Despite the absence of an explicit legal bar, significant ethical and practical considerations arise. The Code of Professional Responsibility requires lawyers to uphold the integrity of the profession and avoid any conduct that gives the appearance of impropriety. When counsel notarizes the affidavit of the witness he or she is presenting, the act may create a perception of bias or undue influence. The lawyer typically drafts or reviews the affidavit and has a clear professional and financial incentive tied to the favorable outcome of the case. Opposing counsel may therefore object during trial, arguing that the notarization lacks the neutrality expected of a public officer and that the witness’s credibility is compromised.

An additional layer of risk stems from the advocate-witness rule. If the notarization is challenged—whether on the ground that the affiant did not personally appear, that the contents were not properly explained, or that identification was inadequate—the handling counsel may be compelled to testify about the circumstances of execution. A lawyer is generally prohibited from acting as witness in a case he or she is handling, except on purely formal or uncontested matters. This conflict could necessitate withdrawal as counsel or expose the lawyer to ethical sanctions.

In everyday practice, particularly among solo practitioners and small law firms, it is common for the handling counsel to notarize the judicial affidavits of his or her witnesses. This is done for reasons of convenience, speed, and cost, especially in areas where independent notaries are limited. Trial courts routinely admit such affidavits into evidence and allow the witness to be cross-examined. The presumption of regularity that attaches to a notarized document often shields the affidavit from initial scrutiny. In criminal cases, defense counsel similarly notarize their witnesses’ affidavits without automatic rejection.

Nonetheless, the practice is not risk-free. An opposing party may move to strike the affidavit or question its weight, citing lack of impartiality. Should procedural lapses be proven—such as notarization without personal appearance or without competent evidence of identity—the lawyer-notary faces administrative liability. Under Rule XII of the 2004 Rules on Notarial Practice, penalties range from fines and reprimands to suspension or revocation of the notarial commission for up to two years. Grave misconduct may also trigger Integrated Bar of the Philippines proceedings and possible disciplinary action by the Supreme Court, including suspension or disbarment.

Public attorneys, such as those from the Public Attorney’s Office or prosecutors, operate under additional institutional constraints but face analogous ethical scrutiny. In family-law cases or other sensitive matters involving heightened emotions, courts may apply even stricter examination of affidavits notarized by the sponsoring counsel.

Given these considerations, prudent practice strongly favors separation of roles. The safest and most advisable course is to engage an independent notary public unaffiliated with the case. Other equally effective alternatives include:

Assigning the notarization to a co-counsel or associate lawyer within the firm who is not the handling counsel and has no direct involvement in the litigation;
Having the affidavit sworn before the clerk of court or the presiding judge of the court where the case is pending, as expressly permitted by the JAR and by general laws empowering court officers to administer oaths; or
Utilizing the services of any other commissioned notary public in the locality.

These options eliminate any appearance of bias, preserve the full evidentiary weight of the affidavit, and shield the lawyer from potential disciplinary exposure while still complying fully with the JAR.

In summary, Philippine law permits a private counsel who holds a valid notarial commission to notarize the judicial affidavit of his or her own witness. No provision in the Judicial Affidavit Rule or the 2004 Rules on Notarial Practice expressly prohibits the act, and the disqualifications enumerated therein do not squarely apply. Nevertheless, the practice carries material ethical risks, potential challenges to credibility, and exposure to administrative sanctions. The better and more professional approach is to entrust notarization to an independent notary public or authorized court officer. By maintaining clear separation between the roles of advocate and notary, counsel not only safeguards the integrity of the proceedings but also upholds the highest standards of the legal profession and ensures the unimpeded and credible presentation of evidence before the courts.