Tupal vs. Rojo

A municipal trial court judge may not notarize ex officio the affidavit of cohabitation of contracting parties whose marriage the judge will solemnize; such affidavit is not connected with the judge’s official functions and duties as solemnizing officer, and notarizing it violates Circular No. 1‑90 and constitutes gross ignorance of the law.

Rex M. Tupal filed an administrative complaint against Judge Remegio V. Rojo, Presiding Judge of the Municipal Trial Court in Cities, Branch 5, Bacolod City, Negros Occidental. The complaint alleged that Judge Rojo solemnized marriages without the required marriage license by instead notarizing affidavits of cohabitation and issuing them to the parties on the day of the marriage — a “package marriage” scheme reportedly common in Bacolod City. Tupal annexed nine affidavits of cohabitation, all notarized by Judge Rojo on the same dates as the marriages he performed.

• Nature of the Complaint: Rex M. Tupal charged Judge Remegio V. Rojo, Presiding Judge of MTCC Branch 5, Bacolod City, with violating the Code of Judicial Conduct and gross ignorance of the law. Tupal asserted that Judge Rojo performed “package marriages” by notarizing affidavits of cohabitation on the same day he solemnized the marriages, thereby circumventing the marriage license requirement.

• The Nine Affidavits of Cohabitation: Tupal attached to his complaint-affidavit nine affidavits of cohabitation, all notarized by Judge Rojo. Each affidavit contained a jurat reading “SUBSCRIBED AND SWORN to before me this [date] at Bacolod City, Philippines. (sgd.) HON. REMEGIO V. ROJO Judge.” The dates of notarization coincided with the dates of the respective marriages.

• Judge Rojo’s Defense: Judge Rojo did not deny notarizing the affidavits. He argued that the complaint was a harassment tactic connected to a pending perjury case against Tupal’s daughter, whose affidavit of cohabitation was one of those notarized. He claimed that notarizing affidavits of cohabitation was connected with his official functions as a judge because the Guidelines on the Solemnization of Marriage did not expressly prohibit it. He further asserted that, as a judge acting ex officio, he was not required to affix a notarial seal, and that the parties’ identities were unquestionable because he personally interviewed them. He pointed out that other judges in Bacolod City and Talisay City also notarized affidavits of cohabitation.

• OCA Report: The Office of the Court Administrator found that Judge Rojo violated Circular No. 1‑90 because affidavits of cohabitation are not connected with a municipal trial court judge’s official functions. The OCA recommended a fine of ₱1,000.00 for each of the nine affidavits, totaling ₱9,000.00, and a stern warning against repetition.

• Violation of Circular No. 1‑90: Petitioner argued that affidavits of cohabitation are not connected with a judge’s official functions and duties as a solemnizing officer; thus, Judge Rojo could not notarize them ex officio without violating the Circular, which confines notarial acts to documents related to official functions.

• Violation of the 2004 Rules on Notarial Practice: Petitioner maintained that Judge Rojo failed to affix his judicial seal on the affidavits and did not require the contracting parties to present competent evidence of identity, omissions that constituted gross ignorance of elementary notarial rules.

• Gross Ignorance of the Law: Petitioner submitted that the notarial rules are simple and basic, and a judge’s failure to observe them amounted to gross ignorance of the law.

• Connection to Official Functions: Judge Rojo argued that notarizing affidavits of cohabitation was connected with his official functions and duties because the Guidelines on the Solemnization of Marriage do not prohibit a judge from doing so, and because the affidavit serves as a substitute for a marriage license.

• No Express Prohibition: Judge Rojo contended that since the Guidelines are silent on the matter, he could not be sanctioned for an act that no rule expressly forbids.

• Notarial Seal Not Required: Judge Rojo maintained that because he acted as a judge ex officio and not as a regular notary public, he was not required to affix a notarial seal on the affidavits.

• Personal Knowledge of Parties: Judge Rojo asserted that he personally interviewed the contracting parties regarding the contents of their affidavits, making them personally known to him; therefore, requiring competent evidence of identity was unnecessary.

• Practice of Other Judges: Judge Rojo alleged that other judges in Bacolod City and Talisay City also notarized affidavits of cohabitation, and he pleaded not to be made a “doormat” as a lone example.

• Good Faith: Judge Rojo invoked good faith, citing Santos v. Judge How, and argued that his actions were not tainted by malice or corrupt motives.

• Notarization of Affidavit of Cohabitation under Circular No. 1‑90: Whether Judge Rojo’s notarization of affidavits of cohabitation of parties whose marriage he solemnized violated Circular No. 1‑90, which limits ex officio notarization to documents connected with a judge’s official functions and duties.

• Compliance with the 2004 Rules on Notarial Practice: Whether Judge Rojo violated the 2004 Rules on Notarial Practice by failing to state that the parties were personally known to him or to require competent evidence of identity.

• Gross Ignorance of the Law: Whether Judge Rojo’s acts constituted gross ignorance of the law warranting administrative sanction under the New Code of Judicial Conduct and Rule 140 of the Rules of Court.

• Notarization of Affidavit of Cohabitation under Circular No. 1‑90: The affidavits of cohabitation were not connected with the judge’s official function and duty to solemnize marriages. Article 34 of the Family Code and the Guidelines on the Solemnization of Marriage require the solemnizing officer to examine the affidavit and execute a sworn statement, not to notarize it. Notarizing and thereafter examining the same document renders the examination redundant and prevents objective review; a judge cannot be expected to detect or admit irregularities in a document he himself notarized. Because an affidavit of cohabitation is a private document until notarized, its notarization is not a public function incidental to the solemnization of marriage. Judge Rojo’s notarization of nine affidavits of cohabitation without certifying that lawyers or notaries public were lacking in his territorial jurisdiction violated Circular No. 1‑90. The fact that other judges engaged in the same practice did not legalize it.

• Compliance with the 2004 Rules on Notarial Practice: All nine affidavits only stated that the parties subscribed and swore before Judge Rojo; they did not indicate that the parties were personally known to him or that they presented competent evidence of identity. Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice prohibits a notarial act if the signatory is not personally known or otherwise identified through competent evidence of identity. That Judge Rojo interviewed the parties did not make them personally known — personal knowledge demands at least acquaintanceship. Thus, the notarial rules were violated.

• Gross Ignorance of the Law: The requirements of Circular No. 1‑90 and the 2004 Rules on Notarial Practice are basic legal principles. Violating them nine times could not be excused by good faith; good faith is available only within the parameters of tolerable judgment and does not apply where the issues are simple and the applicable principles evident and basic. The repeated violations demonstrated a lack of integrity under Canon 2 of the New Code of Judicial Conduct and constituted gross ignorance of the law, a serious charge under Rule 140, Section 8(9). Taking into account the misleading practice of other judges, the appropriate sanction was suspension from office without salary and other benefits for six months.

• Prohibition on notarizing an affidavit of cohabitation by the solemnizing judge — Under Article 34 of the Family Code and the Guidelines on the Solemnization of Marriage (A.O. No. 125‑2007), the person authorized to administer oaths who notarizes the affidavit of cohabitation and the solemnizing officer who performs the marriage are assumed to be two different persons. A judge cannot notarize the affidavit of cohabitation of parties whose marriage he will solemnize because the duty to examine the affidavit objectively is inconsistent with having notarized it. Notarizing the affidavit is not connected with the judge’s official function and duty to solemnize marriages.

• Affidavit of cohabitation as a private document before notarization — An affidavit of cohabitation remains a private document until notarized; notarization converts it into a public document. Its notarization by a judge ex officio is therefore the notarization of a private document, which Circular No. 1‑90 permits only when connected with official functions.

• Requirement of certification of lack of notaries public — Under Circular No. 1‑90, municipal trial court judges acting as notaries public ex officio must certify in the notarized document that there are no lawyers or notaries public in the municipality or circuit. Failure to do so is a violation of the Circular.

• Personal knowledge under the Notarial Rules — For purposes of Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice, personal knowledge of the signatory requires at least acquaintanceship; a mere interview of the contracting parties does not make them personally known to the notary public.

• Good faith defense in administrative cases for gross ignorance — Good faith and absence of malice are not defenses where the legal principles involved are basic and elementary, and the violations are repeated. In such cases, ignorance constitutes lack of integrity under Canon 2 of the New Code of Judicial Conduct.

• “Municipal trial court judges cannot notarize affidavits of cohabitation of parties whose marriage they will solemnize.” — This opening line encapsulates the ratio decidendi.

• “If the solemnizing officer notarized the affidavit of cohabitation, he cannot objectively examine and review the affidavit’s statements before performing the marriage ceremony. Should there be any irregularity or false statements in the affidavit of cohabitation he notarized, he cannot be expected to admit that he solemnized the marriage despite the irregularity or false allegation.” — The core reasoning why the acts are incompatible.

• “Good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment x x x. It does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error.” — The standard that defeated Judge Rojo’s good faith defense.

• Borre v. Judge Moya, 188 Phil. 362 (1980) — Distinguished. The statement that judges should not compete with private lawyers in conveyancing business was made in the context of a judge notarizing a deed of sale; Circular No. 1‑90 is not limited to conveyancing documents.

• Mayor Quiñones v. Judge Lopez, Jr., 449 Phil. 1 (2003) — Followed. A judge was fined for notarizing a certificate of candidacy, a document not connected with his official functions, illustrating that Circular No. 1‑90 applies beyond conveyancing.

• Ellert v. Judge Galapon, Jr., 391 Phil. 456 (2000) — Followed. A judge was fined for notarizing the verification page of an answer filed with the DARAB, reinforcing that the Circular covers any document unrelated to judicial duties.

• Santos v. Judge How, 542 Phil. 22 (2007) — Applied. The ruling that good faith does not excuse violation of basic legal principles was used to reject Judge Rojo’s defense.

• Tigno v. Sps. Aquino, 486 Phil. 254 (2004) — Cited for the principle that notarization converts a private document into a public one, supporting the classification of the un-notarized affidavit as a private document.

• Simon v. Judge Aragon, 491 Phil. 9 (2005) — Cited by the OCA as basis for the recommended fine; used by the Court as precedent for violation of the certification requirement under Circular No. 1‑90.

• Circular No. 1‑90 (26 February 1990) — Governs the power of MTC and MCTC judges to act as notaries public ex officio. It limits notarization to documents connected with official functions and duties, requires certification of lack of lawyers or notaries public in the territorial jurisdiction, and prohibits engagement in private practice. Applied to hold that notarizing affidavits of cohabitation is outside a judge’s official functions.

• Article 34, Family Code of the Philippines — Exempts from the marriage license requirement parties who have cohabited as husband and wife for at least five years without legal impediment, provided they state the facts in an affidavit before any person authorized to administer oaths and the solemnizing officer states under oath that he ascertained their qualifications. Interpreted to require that the notarizing officer and solemnizing officer be different persons.

• Section 5, Guidelines on the Solemnization of Marriage by the Members of the Judiciary (A.O. No. 125‑2007) — Enumerates the duties of the solemnizing officer in legal ratification of cohabitation: personally interview the parties, personally examine the affidavit, and execute a sworn statement. Construed as not authorizing the judge to notarize the affidavit of cohabitation.

• Rule IV, Section 2(b), 2004 Rules on Notarial Practice — Prohibits a notarial act if the signatory is not personally known to the notary public or otherwise identified through competent evidence of identity. Applied to Judge Rojo’s failure to state personal knowledge or require competent evidence.

• Rule 140, Sections 8(9) and 11(A), Rules of Court — Classifies gross ignorance of the law or procedure as a serious charge and enumerates sanctions: dismissal, suspension of more than three to six months, or a fine exceeding ₱20,000.00 up to ₱40,000.00. The Court imposed the medium penalty of six months suspension.

• Canon 2, Section 1, New Code of Judicial Conduct (A.M. No. 03‑05‑01‑SC) — Requires judges to ensure their conduct is above reproach and perceived to be so; violation of basic legal principles constitutes lack of integrity.

Presbitero J. Velasco, Jr. (Chairperson), Diosdado M. Peralta, Lucas P. Bersamin (Acting Member), Jose Catral Mendoza.