Requirements for Authenticating an Affidavit in the Philippines

Introduction

In the Philippine legal system, an affidavit serves as a vital instrument for presenting sworn statements of fact outside of court proceedings. It is commonly used in various contexts, such as supporting applications for government services, substantiating claims in administrative processes, or providing evidence in civil and criminal matters. However, for an affidavit to hold legal weight and be admissible as evidence, it must be properly authenticated. Authentication primarily involves notarization, which confirms the identity of the affiant (the person making the statement) and verifies that the oath or affirmation was duly administered.

Under Philippine law, particularly the 2004 Rules on Notarial Practice (as amended) and relevant provisions of the Civil Code and Rules of Court, authentication ensures the document's integrity and prevents fraud. This article comprehensively explores the requirements, procedures, legal framework, and related considerations for authenticating an affidavit in the Philippines, drawing from established jurisprudence and statutory mandates.

Legal Framework Governing Affidavit Authentication

The authentication of affidavits is governed by several key laws and regulations:

• 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC): This is the primary rulebook for notaries public, outlining the procedures for notarizing jurats (for affidavits) and acknowledgments (for other documents). Affidavits typically require a jurat, which certifies that the affiant subscribed and swore to the document before the notary.

• Civil Code of the Philippines (Republic Act No. 386): Articles 1356 to 1358 emphasize the need for public documents to be authenticated for enforceability in certain transactions.

• Rules of Court (Rule 132, Sections 19-33): These address the admissibility of authenticated documents as evidence, requiring affidavits to be properly executed to avoid challenges on authenticity.

• Notarial Law (Act No. 2711, as amended): Establishes the qualifications and duties of notaries public.

• Supreme Court Jurisprudence: Cases like Gonzales v. Court of Appeals (G.R. No. 106028, 1997) and Heirs of Pedro Laurora v. Sterling Technopark III (G.R. No. 146815, 2003) underscore that improper notarization can render an affidavit void or inadmissible.

Additionally, for affidavits intended for international use, the Hague Apostille Convention (to which the Philippines acceded in 2019) simplifies authentication through apostilles issued by the Department of Foreign Affairs (DFA).

Types of Affidavits and Their Authentication Needs

Affidavits vary by purpose, but the authentication requirements remain largely consistent. Common types include:

• Affidavit of Loss: Used for replacing lost documents like IDs or titles.
• Affidavit of Support: Required for immigration or visa applications.
• Affidavit of Desistance: In criminal cases, to withdraw complaints.
• Judicial Affidavit: Under the Judicial Affidavit Rule (A.M. No. 12-8-8-SC), used in lieu of direct testimony in court, with specific formatting and authentication mandates.

Regardless of type, all affidavits must be authenticated via notarization unless executed before a court or authorized public officer (e.g., a judge or fiscal during preliminary investigations).

Core Requirements for Authentication

To authenticate an affidavit, the following elements must be satisfied:

1. Personal Appearance of the Affiant

• The affiant must physically appear before the notary public. Remote or virtual notarization is not generally permitted under current rules, except in limited pilot programs or emergencies (e.g., during the COVID-19 period via Supreme Court circulars).
• This ensures the notary can verify the affiant's identity and willingness to swear to the contents.

2. Competent Evidence of Identity

• The affiant must present at least one current government-issued identification document bearing a photograph and signature. Acceptable IDs include:
  • Passport
  • Driver's license
  • Professional Regulation Commission (PRC) ID
  • Voter's ID
  • Senior Citizen ID
  • Unified Multi-Purpose ID (UMID)
• If the affiant is known to the notary (e.g., through community oath or witness identification), alternative proofs may suffice, but this is discouraged to avoid bias.
• For foreigners, a valid passport or alien certificate of registration is required.

3. Written Form and Content

• The affidavit must be in writing, clearly stating facts within the affiant's personal knowledge.
• It should include:
  • A title (e.g., "Affidavit of [Purpose]")
  • The affiant's personal details (name, age, address, civil status)
  • The sworn statements
  • A clause attesting to the truthfulness (e.g., "I am executing this affidavit to attest to the truth of the foregoing...")
  • Signature of the affiant
• Language: Preferably in English or Filipino, but local dialects are allowed if translated.

4. Administration of Oath or Affirmation

• The notary must administer an oath (religious) or affirmation (secular) to the affiant.
• The affiant raises their right hand and swears/affirms that the contents are true to the best of their knowledge.
• Perjury warnings apply under Article 183 of the Revised Penal Code, making false statements punishable by imprisonment.

5. Notarial Certificate (Jurat)

• The notary attaches a jurat at the end, certifying:
  • The affiant's appearance and identity
  • The oath/affirmation administered
  • The date and place of notarization
  • The notary's signature, seal, and commission details (PTR No., O.R. No., etc.)
• The document must be entered into the notary's notarial register.

6. Payment of Fees

• Notarial fees are regulated by the Supreme Court (e.g., P50-P200 per document, depending on type). Overcharging can lead to notary suspension.

Procedure for Authentication

1. Draft the Affidavit: Prepare the document, ensuring it is complete and accurate.

2. Visit a Notary Public: Locate a commissioned notary (attorneys or authorized non-lawyers) within the notary's territorial jurisdiction (usually the province or city of commission).

3. Present ID and Sign: Show identification, sign the affidavit in the notary's presence if not pre-signed (pre-signing is allowed but must be acknowledged).

4. Swear/Affirm: Undergo the oath/affirmation.

5. Notarization: The notary completes the jurat and stamps the document.

6. Copies and Registration: Obtain certified true copies if needed; the original is registered in the notary's book.

For judicial affidavits, additional steps include attaching exhibits and serving copies to parties, with notarization occurring before filing in court.

Special Considerations

• Minors or Incapacitated Persons: Guardians or legal representatives may execute on their behalf, with additional proofs of authority.

• Affidavits Executed Abroad: For use in the Philippines, these require consular authentication by a Philippine embassy/consulate or an apostille if from a Hague Convention country.

• Electronic Notarization: While the Electronic Commerce Act (RA 8792) allows e-signatures, full e-notarization for affidavits is not yet standard, pending full implementation of the Remote Online Notarization rules.

• Multiple Affiants: Each must appear and swear individually.

• Corrections: Any alterations must be initialed by the affiant and noted by the notary.

Consequences of Improper Authentication

• Inadmissibility: Unauthenticated affidavits may be excluded as hearsay or unreliable evidence (Rule 130, Rules of Court).

• Nullity: Defective notarization can void the document, as in Dalion v. Court of Appeals (G.R. No. 78903, 1991).

• Penalties for Notaries: Violations (e.g., notarizing without appearance) can result in disbarment, fines, or criminal charges under the Notarial Law.

• Perjury: False affidavits expose the affiant to criminal liability.

Authentication for International Use

If the affidavit is for foreign use:

• Apostille: Since 2019, the DFA issues apostilles for public documents, replacing the previous "red ribbon" certification. Requirements include submitting the notarized affidavit to the DFA, paying fees (P100-P300), and waiting 3-5 days.

• Chain Authentication: For non-Hague countries, additional steps involve certification by the Regional Trial Court, DFA, and the foreign embassy.

Best Practices and Common Pitfalls

• Avoid Templates Blindly: Customize affidavits to avoid generic errors.
• Verify Notary's Commission: Check if the notary's commission is active via the Supreme Court website or IBP chapter.
• Preserve Originals: Keep authenticated originals secure.
• Common Errors: Notarizing incomplete documents, failing to register, or using expired IDs.

In summary, authenticating an affidavit in the Philippines is a straightforward yet rigorous process designed to uphold truth and prevent abuse. Adherence to these requirements ensures the document's legal efficacy across various applications. For complex cases, consulting a lawyer is advisable to navigate nuances.