A.M. No. MTJ-14-1842 - Tupal vs. Rojo

Case Summary (A.M. No. MTJ-14-1842)

Petitioner

Rex M. Tupal filed a complaint-affidavit with the Office of the Court Administrator (OCA) attaching nine affidavits of cohabitation, each notarized by Judge Rojo and bearing jurats indicating subscription and sworn statements before Hon. Remegio V. Rojo.

Respondent

Judge Remegio V. Rojo admitted notarizing the nine affidavits and solemnizing the marriages on the same days, but defended his actions on grounds that: (a) notarizing the affidavits was connected with his official duty as solemnizing officer; (b) the Guidelines on the Solemnization of Marriage by Members of the Judiciary do not expressly prohibit a judge from notarizing such affidavits; (c) as a judge he need not affix a notarial seal or require presentation of competent evidence of identity because he personally interviewed and thus personally knew the parties; and (d) other local judges engaged in the same practice.

Key Dates

Complaint-affidavit notarized: May 24, 2012 (annexes include nine affidavits notarized on the respective marriage dates).
OCA report: July 30, 2013.
Supreme Court resolution: decision date provided in the prompt falls after 1990; the 1987 Constitution is applicable as the constitutional framework.

Applicable Law and Authorities

1987 Philippine Constitution (general constitutional framework for judicial discipline).
Family Code, Art. 34 (exemption from marriage license upon five years’ cohabitation and requirement of affidavit of cohabitation sworn before a person authorized to administer oaths; solemnizing officer must state under oath that he ascertained qualifications and found no legal impediment).
Family Code, Art. 9 (marriage license issuance by local civil registrar).
Administrative Order No. 125-2007 (Guidelines on the Solemnization of Marriage by Members of the Judiciary), Sections 4 and 5 (duties of solemnizing officer and procedure for legal ratification of cohabitation).
Circular No. 1-90 (February 26, 1990) — limitation on MTC and MCTC judges acting as notaries public ex officio: they may notarize only documents connected with the exercise of their official functions and duties, and additional requirements when no lawyers/notaries exist in the territorial jurisdiction.
2004 Rules on Notarial Practice, Rule IV, Sec. 2(b) (prohibition on performing notarial acts when signatory is not personally known to the notary and is not identified by competent evidence of identity).
New Code of Judicial Conduct (A.M. No. 03-05-01-SC) — duties on integrity and regulation of extra-judicial activities.
Rules of Court, Rule 140 — sanctions for gross ignorance of the law.

Facts

The OCA record and annexes show nine affidavits of cohabitation notarized by Judge Rojo, with jurats stating: “SUBSCRIBED AND SWORN to before me this [date] at Bacolod City, Philippines. (sgd.) HON. REMEGIO V. ROJO Judge.” Each affidavit was notarized on the day the parties’ marriage was solemnized. Judge Rojo admitted notarizing the affidavits but contended he personally interviewed the parties and thus knew their identities and qualifications. He did not certify lack of lawyers or notaries in his jurisdiction nor indicate that the parties presented competent evidence of identity; he also did not affix a notarial seal as a judge.

Procedural History

The OCA investigated and issued a report finding violations of Circular No. 1-90 and recommended a fine of P9,000 (P1,000 per affidavit) and a stern warning. The matter was elevated to the Supreme Court for final disciplinary action, which reviewed the OCA findings, Judge Rojo’s comments, and applicable legal standards.

Issue Presented

Whether Judge Rojo violated the New Code of Judicial Conduct and committed gross ignorance of the law by notarizing affidavits of cohabitation of parties whose marriages he solemnized, without complying with Circular No. 1-90 and the 2004 Rules on Notarial Practice.

Legal Reasoning — Scope of Judges’ Ex Officio Notarial Power (Circular No. 1-90)

Circular No. 1-90 authorizes municipal and municipal circuit trial court judges to act as notaries public ex officio only in connection with the exercise of their official functions and duties. It expressly forbids undertaking preparation and acknowledgment of private documents, contracts, and other acts of conveyance that bear no direct relation to the performance of judicial functions. Where judges act as ex officio notaries because there are no lawyers or notaries public in the territorial jurisdiction, they must certify such lack in the notarized documents and any fees collected must be turned over to the municipal treasurer. Judge Rojo notarized affidavits of cohabitation without certifying a lack of lawyers or notaries, and the Court concluded that affidavits of cohabitation are documents not connected with a judge’s official function and duty to solemnize marriages. Notarizing those affidavits thus fell outside the ex officio notarial scope prescribed by Circular No. 1-90.

Legal Reasoning — Family Code and Guidelines on Solemnization: Incompatibility of Notarizing One’s Own Affidavit

Article 34 of the Family Code and Section 5 of Administrative Order No. 125-2007 require that, for legal ratification of cohabitation, the contracting parties present an affidavit sworn before a person authorized by law to administer oaths, and the solemnizing officer must personally interview the parties, examine the affidavit for facts of five years’ cohabitation and absence of legal impediment, and execute a sworn statement that he ascertained qualifications and found no impediment. The Court reasoned that these provisions presuppose two distinct actors: the person who administers the oath (notarizes the affidavit) and the solemnizing officer who objectively examines the affidavit and the parties’ qualifications. If the solemnizing officer himself notarizes the affidavit, he cannot objectively examine and later state under oath that he found no legal impediment, particularly if he has notarized and attested to the affidavit’s contents. Therefore, the act of notarizing the parties’ affidavit of cohabitation on the same day as solemnization is inconsistent with the judge’s duty to impartially examine and verify qualifications; it converts an essential, separate evidentiary step into one performed by the same individual who will solemnize the marriage, undermining objectivity. The Court held that affidavits of cohabitation are not “connected with” the judge’s official duty to solemnize marriages in a way that would permit ex officio notarization.

Legal Reasoning — 2004 Rules on Notarial Practice: Identity Requirement

Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice prohibits a notarial act where the signatory is not personally known to the notary unless identified by competent evidence of identity. In the nine affidavits, Judge Rojo’s jurats stated that the parties subscribed and swore before him but did not state that they were personally known to him nor that competent evidence of identity was presented. Judge Rojo contended that his personal interviews and in-court acquaintance with the parties established personal knowledge; the Court rejected this as insufficient because mere appearance and interview do not equate to being “personally known” in the notarial sense (i.e., prior acquaintance or recognition). Thus, Judge Rojo failed to comply with the identification requirements of the notarial rules.

Rejection of Other Defenses and Practices

Judge Rojo argued that: (a) affidavits of cohabitation are public in nature and therefore not private documents; (b) Circular No. 1-90’s purpose is limited to preventing judicial competition with private lawyers in conveyancing; and (c) other judges engaged in the same practice. The Court countered that an affidavit remains a private document until notarized and that Circular No. 1-90’s prohibition applies broadly to any document not connected with judicial functions, not merel

Case Syllabus (A.M. No. MTJ-14-1842)

Procedural Posture and Source

Decision rendered by the Supreme Court, Third Division, A.M. No. MTJ-14-1842 (Formerly OCA IPI No. 12-2491-MTJ), dated February 24, 2014.
Complaint filed by Rex M. Tupal with the Office of the Court Administrator (OCA) alleging violations of the Code of Judicial Conduct and gross ignorance of the law by Judge Remegio V. Rojo, Presiding Judge, Municipal Trial Court in Cities (Branch 5), Bacolod City, Negros Occidental.
OCA issued a report dated July 30, 2013 recommending that Judge Rojo be fined P9,000.00 (P1,000.00 per notarized affidavit) and sternly warned against repetition.
Supreme Court reviewed the OCA report, the parties’ pleadings and comments, and the record, and issued the present resolution imposing administrative sanction.

Factual Background

Complainant Rex M. Tupal annexed nine affidavits of cohabitation to his complaint-affidavit; each affidavit was notarized by Judge Rojo and all were notarized on the day the contracting parties’ marriages were solemnized.
The jurat appearing on the affidavits reads: "SUBSCRIBED AND SWORN to before me this [date] at Bacolod City, Philippines. (sgd.) HON. REMEGIO V. ROJO Judge."
The affidavits of cohabitation purportedly served as substitutes for a marriage license under Article 34 of the Family Code for couples who had lived together as husband and wife for at least five years and had no legal impediment to marry.
The practice of "package marriages"—notarization of affidavits of cohabitation by the judge who would solemnize the marriage—was alleged to be common in Bacolod City.
Judge Rojo admitted notarizing the affidavits on the same day he solemnized the marriages.

Issues Presented

Whether Judge Rojo violated Circular No. 1-90 (Power of Municipal Trial Court and Municipal Circuit Trial Court Judges to Act as Notaries Public Ex Officio) by notarizing affidavits of cohabitation of parties whose marriages he solemnized.
Whether Judge Rojo violated the 2004 Rules on Notarial Practice (specifically the prohibition against notarizing the instrument if the signatory is not personally known or otherwise identified by competent evidence of identity).
Whether Judge Rojo’s conduct constituted a violation of the New Code of Judicial Conduct and gross ignorance of the law, and if so, what sanction is appropriate.

Complainant’s Contentions (Rex M. Tupal)

Affidavits of cohabitation are not connected with a judge’s official functions and duties as a solemnizing officer; therefore, Judge Rojo lacked authority under Circular No. 1-90 to notarize them ex officio.
Judge Rojo notarized the affidavits without affixing his judicial seal and without requiring competent evidence of identity from the parties, contrary to the 2004 Rules on Notarial Practice.
The omissions and failures to follow notarial rules constitute gross ignorance of the law because those rules are "simple and elementary to ignore."

Respondent’s Contentions (Judge Remegio V. Rojo)

The complaint was motivated by harassment and an improper effort to delay a pending perjury case against Judge Rojo’s daughter (Frialyn Tupal), and thus the complaint was not meritorious.
Judge Rojo did not deny notarizing the affidavits but asserted that notarizing them was connected to his official functions and duties as a judge and solemnizing officer.
The Guidelines on the Solemnization of Marriage by the Members of the Judiciary (Administrative Order No. 125-2007) do not prohibit judges from notarizing affidavits of cohabitation of parties whose marriage they will solemnize.
As a judge (not a regular notary), he was not required to affix a notarial seal on the affidavits.
He personally interviewed the parties and thus personally knew their identities and therefore did not need to require presentation of competent evidence of identity.
Other judges in Bacolod City and Talisay City also engaged in similar practice; singling him out is unfair and he should not be made a "doormat, punching bag and chopping block."

Office of the Court Administrator (OCA) Findings

OCA found that affidavits of cohabitation are documents not connected with municipal trial court judges’ official functions and duties and therefore concluded Judge Rojo violated Circular No. 1-90.
OCA recommended a fine of P1,000.00 per affidavit notarized without authority, totaling P9,000.00 for the nine affidavits, and issued a stern warning against repetition.
OCA relied on Administrative Order No. 125-2007 (Guidelines on the Solemnization of Marriage by Members of the Judiciary) to conclude that a judge’s duty is to personally examine the allegations in the affidavit but that nothing in the Guidelines authorizes the judge to notarize such affidavits.

Legal Framework and Authorities Cited by the Court

Circular No. 1-90 (February 26, 1990): MTC and MCTC judges may act as notaries public ex officio only in notarizing documents connected with the exercise of their official functions and duties; they shall not undertake preparation or acknowledgment of private documents, contracts, and other conveyances bearing no direct relation to their functions as judges; when acting ex officio in municipalities lacking lawyers or notaries public, they may perform regular notarial acts only upon certification of such lack, with fees turned over to the municipal treasurer (citing Lapena, Jr. v. Marcos).
1989 Code of Judicial Conduct (Canon 5 and Rule 5.07): Judges must regulate extra-judicial activities and are prohibited from engaging in the private practice of law.
Administrative Order No. 125-2007, Sec. 4 and Sec. 5: Duties of solemnizing officer include personal examination of requisites (including marriage license) and, for legal ratification of cohabitation, personally interviewing the contracting parties, personally examining their affidavits as to cohabitation of at least five years and absence of legal impediment, and executing a sworn statement showing compliance and finding no impediment.
Family Code, Art. 34: No license necessary if parties lived together for at least five years and have no legal impediment; contracting parties shall state facts