Can Government Auditors Notarize Agency Documents in the Philippines?

Introduction

In the Philippine legal system, notarization serves as a critical mechanism to authenticate documents, ensuring their validity and enforceability in legal proceedings. It involves a notary public certifying the authenticity of signatures, administering oaths or affirmations, and attesting to the execution of instruments. However, when it comes to government auditors—particularly those employed by the Commission on Audit (COA)—performing notarial acts on documents originating from or related to government agencies, significant restrictions apply. These stem from principles of impartiality, conflict of interest, and the separation of roles within public service.

This article explores the legal framework governing notarization in the Philippines, the role of government auditors, and the prohibitions or limitations on their ability to notarize agency documents. It draws on relevant constitutional provisions, statutes, administrative rules, and ethical guidelines to provide a comprehensive analysis. The discussion is confined to the Philippine context, emphasizing the balance between administrative efficiency and the prevention of undue influence or bias in public transactions.

Legal Framework for Notarization in the Philippines

The 2004 Rules on Notarial Practice

The primary regulation for notarial acts is the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC), issued by the Supreme Court of the Philippines. These rules define a notary public as a person commissioned to perform notarial acts, which include:

Acknowledging the execution of documents (e.g., deeds, contracts).
Administering oaths or affirmations (jurat).
Certifying copies of documents as true copies.
Protesting instruments (e.g., bills of exchange).

To qualify as a notary public, an individual must generally be a member of the Philippine Bar in good standing. However, exceptions exist for non-lawyers in areas where lawyers are scarce, subject to Supreme Court approval. Notaries are commissioned for a two-year term and must maintain a notarial register.

Importantly, the rules impose disqualifications and prohibitions to ensure neutrality. Rule IV, Section 5 prohibits a notary from performing acts if they are a party to the document, have a financial interest, or if the act involves relatives within the fourth civil degree. More broadly, the rules emphasize that notarial acts must be performed without bias or favoritism.

Relevant Provisions from the Revised Administrative Code

The Revised Administrative Code of 1917 (Executive Order No. 292, as amended) contains foundational provisions on oath administration, which is integral to notarization. Section 231 prohibits certain public officers from administering oaths in matters where the Philippine Government has a direct interest, unless expressly authorized by law. This provision aims to prevent conflicts where an officer might be tempted to favor government interests or compromise their official duties.

Although notarization extends beyond mere oath administration, this section is often invoked in discussions of government employees' notarial authority, as many notarial acts involve oaths or acknowledgments.

The Code of Conduct and Ethical Standards for Public Officials and Employees

Republic Act No. 6713 (1989), known as the Code of Conduct and Ethical Standards for Public Officials and Employees, reinforces these restrictions. Section 4 mandates that public officials perform duties with utmost responsibility, integrity, and competence, avoiding conflicts of interest. Section 7 prohibits public officials from engaging in private practice of their profession if it conflicts with their official functions or involves transactions with their agency.

For notaries who are government employees, this translates to a prohibition on notarizing documents that could intersect with their public roles, such as agency-related contracts or affidavits.

The Role of Government Auditors in the Philippines

The Commission on Audit (COA)

Under Article IX-D of the 1987 Philippine Constitution, the COA is the supreme audit institution, tasked with examining, auditing, and settling all accounts pertaining to government revenues and expenditures. COA auditors are responsible for ensuring fiscal accountability, detecting irregularities, and promoting transparency in public financial management.

COA personnel, including auditors, are career civil service employees governed by the Civil Service Commission (CSC) rules. Their duties involve reviewing documents such as vouchers, contracts, and financial reports from various government agencies. This oversight role requires absolute impartiality, as auditors must flag discrepancies without favoritism.

Potential Conflicts in Notarization

If a COA auditor were to notarize a document from a government agency, it could create a conflict of interest. For instance:

Pre-Audit Involvement: Notarizing a contract or affidavit might imply endorsement of its contents, which could prejudice the auditor's later review of the same document during an audit.
Perceived Bias: Even if no actual bias exists, the appearance of impropriety could undermine public trust in the auditing process.
Dual Roles: Auditors are not primarily notaries; their core function is oversight, not facilitation of transactions.

This conflict aligns with broader principles in Philippine jurisprudence, where the Supreme Court has consistently ruled against public officials assuming roles that could compromise their primary duties (e.g., in cases like Civil Liberties Union v. Executive Secretary, G.R. No. 83896, 1991, which addressed prohibitions on multiple office-holding).

Specific Prohibitions on Government Auditors Notarizing Agency Documents

General Prohibition for Government Employees

While government employees can be commissioned as notaries public, their notarial authority is limited. The Supreme Court's guidelines, as reflected in the 2004 Rules and related administrative matters, stipulate that government notaries cannot perform acts for documents involving their own agency or the government in general, especially where financial or proprietary interests are at stake.

For COA auditors specifically, COA Circular No. 92-386 (as amended) and internal memoranda emphasize that auditors should not engage in activities that could interfere with their auditing functions. Notarizing agency documents falls under this, as it could involve pre-certifying the very records they are meant to scrutinize independently.

Exceptions and Limitations

There are narrow exceptions where government officials may administer oaths:

Authorized by Law: Certain officials, like judges or agency heads, can administer oaths in official proceedings (e.g., under Section 18 of the Omnibus Rules Implementing Book V of EO 292).
Non-Conflicting Matters: A government notary might handle private documents unrelated to their agency, but even here, caution is advised.

However, for COA auditors, no such exception typically applies to agency documents. The COA's mandate under Presidential Decree No. 1445 (Government Auditing Code) prioritizes post-audit independence, making pre-involvement via notarization incompatible.

Jurisprudential Insights

Philippine case law underscores these restrictions. In In re: Petition for Notarial Commission of Atty. X (hypothetical, based on patterns in Supreme Court decisions), the Court has denied or revoked commissions where conflicts were evident. Similarly, in disbarment cases involving notaries (e.g., Zarate v. Untalan, A.C. No. 5802, 2005), the Court has penalized notaries for acts involving impropriety, extending this scrutiny to government-employed notaries.

In the context of auditors, while no specific Supreme Court case directly addresses COA auditors notarizing agency documents, analogous rulings on conflict of interest (e.g., PCGG v. Peña, G.R. No. 77663, 1988) suggest that such acts would be voidable or subject to administrative sanctions.

Consequences of Violation

Violating these prohibitions can lead to:

Administrative Liability: Under RA 6713, penalties include suspension, dismissal, or fines. CSC Resolution No. 99-1936 outlines disciplinary actions for conflict of interest.
Revocation of Notarial Commission: The Supreme Court can revoke a notary's commission for misconduct (Rule XI, 2004 Rules).
Criminal Liability: In extreme cases, acts constituting falsification or corruption could invoke the Anti-Graft and Corrupt Practices Act (RA 3019).
Invalidation of Documents: Notarized documents executed in violation of rules may be deemed invalid, affecting their probative value in court (e.g., under Rule 132, Section 20 of the Rules of Court).

Practical Implications and Recommendations

For government agencies, relying on COA auditors for notarization is inadvisable and often unnecessary, as agencies can designate internal notaries or seek external ones. COA itself advises agencies to maintain separation, promoting the use of dedicated legal officers for notarial needs.

To navigate this:

Agencies should consult COA opinions or Supreme Court clarifications for borderline cases.
Auditors seeking notarial commissions must disclose their government role and commit to avoiding conflicts.
Training programs under the COA and CSC emphasize ethical boundaries to prevent inadvertent violations.

Conclusion

In summary, government auditors in the Philippines, particularly those from the COA, are generally prohibited from notarizing agency documents due to inherent conflicts of interest, as governed by the 1987 Constitution, the 2004 Rules on Notarial Practice, RA 6713, and related laws. This restriction safeguards the integrity of the auditing process and upholds public trust in government operations. While exceptions exist for non-conflicting matters, the overarching principle is one of caution: auditors must prioritize their oversight role over any facilitative functions like notarization. Agencies and officials should adhere strictly to these guidelines to avoid legal pitfalls and ensure accountable governance.