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THIRD DIVISION

[A.C. No. 6252. October 5, 2004.]


JONAR SANTIAGO, complainant, vs.
Atty. EDISON V. RAFANAN, respondent.
DECISION

PANGANIBAN, J :
p

Notaries public are expected to exert utmost care in the


performance of their duties, which are impressed with
public interest. They are enjoined to comply faithfully with
the solemnities and requirements of the Notarial Law.
This Court will not hesitate to mete out appropriate
sanctions to those who violate it or neglect observance
thereof.
The Case and the Facts
Before us is a verified Complaint 1 filed by Jonar
Santiago, an employee of the Bureau of Jail
Management and Penology (BJMP), for the disbarment
of Atty. Edison V. Rafanan. The Complaint was filed with
the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) on January 16,
2001. It charged Atty. Rafanan with deceit; malpractice or
other gross misconduct in office under Section 27 of Rule
138 2 of the Rules of Court; and violation of Canons 1.01,
1.02 and 1.03 3 , Canon 5 4 , and Canons 12.07 5 and
12.08 of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R.


Villadolid Jr. summarized the allegations of the
complainant in this wise:
". . . In his Letter-Complaint, Complainant
alleged, among others, that Respondent in
notarizing several documents on different
dates failed and/or refused to: a) make the
proper notation regarding the cedula or
community tax certificate of the affiants; b)
enter the details of the notarized documents
in the notarial register; and c) make and
execute the certification and enter his PTR
and IBP numbers in the documents he had
notarized, all in violation of the notarial
provisions of the Revised Administrative
Code.
IaHSCc

"Complainant
likewise
alleged
that
Respondent executed an Affidavit in favor of
his client and offered the same as evidence
in the case wherein he was actively
representing his client. Finally, Complainant
alleges that on a certain date, Respondent
accompanied by several persons waited for
Complainant after the hearing and after
confronting the latter disarmed him of his
sidearm and thereafter uttered insulting
words and veiled threats." 6

On March 23, 2001, pursuant to the January 19, 2001


Order of the CBD, 7 Atty. Rafanan filed his verified
Answer. 8 He admitted having administered the oath to
the affiants whose Affidavits were attached to the verified
Complaint. He believed, however, that the non-notation

of their Residence Certificates in the Affidavits and the


Counter-affidavits was allowed.
He opined that the notation of residence certificates
applied only to documents acknowledged by a notary
public and was not mandatory for affidavits related to
cases pending before courts and other government
offices. He pointed out that in the latter, the affidavits,
which were sworn to before government prosecutors, did
not have to indicate the residence certificates of the
affiants. Neither did other notaries public in Nueva Ecija
some of whom were older practitioners indicate the
affiants' residence certificates on the documents they
notarized, or have entries in their notarial register for
these documents.
As to his alleged failure to comply with the certification
required by Section 3 of Rule 112 9 of the Rules of
Criminal Procedure, respondent explained that as
counsel of the affiants, he had the option to comply or not
with the certification. To nullify the Affidavits, it was
complainant who was duty-bound to bring the said
noncompliance to the attention of the prosecutor
conducting the preliminary investigation.
As to his alleged violation of Rule 12.08 of the CPR,
respondent argued that lawyers could testify on behalf of
their clients "on substantial matters, in cases where
[their] testimony is essential to the ends of justice."
Complainant charged respondent's clients with attempted
murder. Respondent averred that since they were in his
house when the alleged crime occurred, "his testimony is
very essential to the ends of justice."

Respondent alleged that it was complainant who had


threatened and harassed his clients after the hearing of
their case by the provincial prosecutor on January 4,
2001. Respondent requested the assistance of the
Cabanatuan City Police the following day, January 5,
2001, which was the next scheduled hearing, to avoid a
repetition of the incident and to allay the fears of his
clients. In support of his allegations, he submitted
Certifications 10 from the Cabanatuan City Police and the
Joint Affidavit 11 of the two police officers who had
assisted them.
DaEATc

Lastly, he contended that the case had been initiated for


no other purpose than to harass him, because he was
the counsel of Barangay Captain Ernesto Ramos in the
cases filed by the latter before the ombudsman and the
BJMP against complainant.
After receipt of respondent's Answer, the CBD, through
Commissioner Tyrone R. Cimafranca, set the case for
hearing on June 5, 2001, at two o'clock in the afternoon.
Notices 12 of the hearing were sent to the parties by
registered mail. On the scheduled date and time of the
hearing, only complainant appeared. Respondent was
unable to do so, apparently because he had received the
Notice only on June 8, 2001. 13 The hearing was reset to
July 3, 2001 at two o'clock in the afternoon.
On the same day, June 5, 2001, complainant filed his
Reply 14 to the verified Answer of respondent. The latter's
Rejoinder was received by the CBD on July 13, 2001. 15
It also received complainant's Letter-Request 16 to
dispense with the hearings. Accordingly, it granted that
request in its Order 17 dated July 24, 2001, issued

through Commissioner Cimafranca. It thereby directed


the parties to submit their respective memoranda within
fifteen days from receipt of the Order, after which the
case was to be deemed submitted for resolution.
The CBD received complainant's Memorandum
September 26, 2001. Respondent did not file any.

18

on

The IBP's Recommendation


On September 27, 2003, the IBP Board of Governors
issued Resolution No. XVI-2003-172 19 approving and
adopting the Investigating Commissioner's Report that
respondent had violated specific requirements of the
Notarial Law on the execution of a certification, the entry
of such certification in the notarial register, and the
indication of the affiant's residence certificate. The IBP
Board of Governors found his excuse for the violations
unacceptable. It modified, however, the recommendation
20 of the investigating commissioner by increasing the
fine to "P3,000 with a warning that any repetition of the
violation will be dealt with a heavier penalty."
The other charges violation of Section 27 of Rule 138
of the Rules of Court; and Canons 1.01 to 1.03, 12.07
and 12.08 of the CPR were dismissed for insufficiency
of evidence.
The Court's Ruling
We agree with the Resolution of the IBP Board of
Governors.
Respondent's Administrative Liability
Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties


of notaries public. They are required to certify that the
party to every document acknowledged before them has
presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of
issue and date as part of such certification. 21 They are
also required to maintain and keep a notarial register; to
enter therein all instruments notarized by them; and to
"give to each instrument executed, sworn to, or
acknowledged before [them] a number corresponding to
the one in [their] register [and to state therein] the page
or pages of [their] register, on which the same is
recorded." 22 Failure to perform these duties would result
in the revocation of their commission as notaries public.
23

These formalities are mandatory and cannot be simply


neglected, considering the degree of importance and
evidentiary weight attached to notarized documents.
Notaries public entering into their commissions are
presumed to be aware of these elementary requirements.
SEIcAD

In Vda. de Rosales v. Ramos, 24 the Court explained the


value and meaning of notarization as follows:
"The importance attached to the act of
notarization cannot be overemphasized.
Notarization is not an empty, meaningless,
routinary act. It is invested with substantive
public interest, such that only those who are
qualified or authorized may act as notaries
public. Notarization converts a private
document into a public document thus
making that document admissible in evidence

without further proof of its authenticity. A


notarial document is by law entitled to full
faith and credit upon its face. Courts,
administrative agencies and the public at
large must be able to rely upon the
acknowledgment executed by a notary public
and appended to a private instrument."

For this reason, notaries public should not take for


granted the solemn duties pertaining to their office.
Slipshod methods in their performance of the notarial act
are never to be countenanced. They are expected to
exert utmost care in the performance of their duties, 25
which are dictated by public policy and are impressed
with public interest.
It is clear from the pleadings before us and
respondent has readily admitted that he violated the
Notarial Law by failing to enter in the documents
notations of the residence certificate, as well as the entry
number and the pages of the notarial registry.
Respondent believes, however, that noncompliance with
those requirements is not mandatory for affidavits relative
to cases pending before the courts and government
agencies. He points to similar practices of older notaries
in Nueva Ecija.
We cannot give credence to, much less honor, his claim.
His belief that the requirements do not apply to affidavits
is patently irrelevant. No law dispenses with these
formalities. Au contraire, the Notarial Law makes no
qualification or exception. It is appalling and inexcusable
that he did away with the basics of notarial procedure
allegedly because others were doing so. Being swayed

by the bad example of others is not an acceptable


justification for breaking the law.

We note further that the documents attached to the


verified Complaint are the Joint Counter-Affidavit of
respondent's clients Ernesto Ramos and Rey Geronimo,
as well as their witnesses' Affidavits relative to Criminal
Case No. 69-2000 for attempted murder, filed by
complainant's brother against the aforementioned clients.
These documents became the basis of the present
Complaint.
As correctly pointed out by the investigating
commissioner, Section 3 of Rule 112 of the Rules of
Criminal Procedure expressly requires respondent as
notary in the absence of any fiscal, state prosecutor or
government official authorized to administer the oath
to "certify that he has personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits." Respondent failed to do so
with respect to the subject Affidavits and CounterAffidavits in the belief that as counsel for the affiants
he was not required to comply with the certification
requirement.
CaAcSE

It must be emphasized that the primary duty of lawyers is


to obey the laws of the land and promote respect for the
law and legal processes. 26 They are expected to be in
the forefront in the observance and maintenance of the
rule of law. This duty carries with it the obligation to be
well-informed of the existing laws and to keep abreast
with legal developments, recent enactments and

jurisprudence. 27 It is imperative that they be conversant


with basic legal principles. Unless they faithfully comply
with such duty, they may not be able to discharge
competently and diligently their obligations as members
of the bar. Worse, they may become susceptible to
committing mistakes.
Where notaries public are lawyers, a graver responsibility
is placed upon them by reason of their solemn oath to
obey the laws. 28 No custom or age-old practice provides
sufficient excuse or justification for their failure to adhere
to the provisions of the law. In this case, the excuse
given by respondent exhibited his clear ignorance of the
Notarial Law, the Rules of Criminal Procedure, and the
importance of his office as a notary public.
Nonetheless, we do not agree with complainant's plea to
disbar respondent from the practice of law. The power to
disbar must be exercised with great caution. 29
Disbarment will be imposed as a penalty only in a clear
case of misconduct that seriously affects the standing
and the character of the lawyer as an officer of the court
and a member of the bar. Where any lesser penalty can
accomplish the end desired, disbarment should not be
decreed. 30 Considering the nature of the infraction and
the absence of deceit on the part of respondent, we
believe that the penalty recommended by the IBP Board
of Governors is a sufficient disciplinary measure in this
case.
Lawyer as Witness for Client
Complainant further faults respondent for executing
before Prosecutor Leonardo Padolina an affidavit
corroborating the defense of alibi proffered by

respondent's clients, allegedly in violation of Rule 12.08


of the CPR: "A lawyer shall avoid testifying in behalf of
his client."
Rule 12.08 of Canon 12 of the CPR states:
"Rule 12.08 A lawyer shall avoid testifying
in behalf of his client, except:
a) on formal matters, such as the mailing,
authentication or custody of an instrument
and the like;
b) on substantial matters, in cases where his
testimony is essential to the ends of justice,
in which event he must, during his testimony,
entrust the trial of the case to another
counsel."

Parenthetically, under the law, a lawyer is not disqualified


from being a witness, 31 except only in certain cases
pertaining to privileged communication arising from an
attorney-client relationship. 32
The reason behind such rule is the difficulty posed upon
lawyers by the task of dissociating their relation to their
clients as witnesses from that as advocates. Witnesses
are expected to tell the facts as they recall them. In
contradistinction, advocates are partisans those who
actively plead and defend the cause of others. It is
difficult to distinguish the fairness and impartiality of a
disinterested witness from the zeal of an advocate. The
question is one of propriety rather than of competency of
the lawyers who testify for their clients.
TIcAaH

"Acting or appearing to act in the double

capacity of lawyer and witness for the client


will provoke unkind criticism and leave many
people to suspect the truthfulness of the
lawyer because they cannot believe the
lawyer as disinterested. The people will have
a plausible reason for thinking, and if their
sympathies are against the lawyer's client,
they will have an opportunity, not likely to be
neglected, for charging, that as a witness he
fortified it with his own testimony. The
testimony of the lawyer becomes doubted
and is looked upon as partial and untruthful."
33

Thus, although the law does not forbid lawyers from


being witnesses and at the same time counsels for a
cause, the preference is for them to refrain from testifying
as witnesses, unless they absolutely have to; and should
they do so, to withdraw from active management of the
case. 34
Notwithstanding this guideline and the existence of the
Affidavit executed by Atty. Rafanan in favor of his clients,
we cannot hastily make him administratively liable for the
following reasons:
First, we consider it the duty of a lawyer to assert every
remedy and defense that is authorized by law for the
benefit of the client, especially in a criminal action in
which the latter's life and liberty are at stake. 35 It is the
fundamental right of the accused to be afforded full
opportunity to rebut the charges against them. They are
entitled to suggest all those reasonable doubts that may
arise from the evidence as to their guilt; and to ensure
that if they are convicted, such conviction is according to

law.
Having undertaken the defense of the accused,
respondent, as defense counsel, was thus expected to
spare no effort to save his clients from a wrong
conviction. He had the duty to present by all fair and
honorable means every defense and mitigating
circumstance that the law permitted, to the end that his
clients would not be deprived of life, liberty or property,
except by due process of law. 36
The Affidavit executed by Atty. Rafanan was clearly
necessary for the defense of his clients, since it pointed
out the fact that on the alleged date and time of the
incident, his clients were at his residence and could not
have possibly committed the crime charged against
them. Notably, in his Affidavit, complainant does not
dispute the statements of respondent or suggest the
falsity of its contents.
Second, paragraph (b) of Rule 12.08 contemplates a
situation in which lawyers give their testimonies during
the trial. In this instance, the Affidavit was submitted
during the preliminary investigation which, as such, was
merely inquisitorial. 37 Not being a trial of the case on the
merits, a preliminary investigation has the oft-repeated
purposes of securing innocent persons against hasty,
malicious and oppressive prosecutions; protecting them
from open and public accusations of crime and from the
trouble as well as expense and anxiety of a public trial;
and protecting the State from useless and expensive
prosecutions. 38 The investigation is advisedly called
preliminary, as it is yet to be followed by the trial proper.
aDATHC

Nonetheless, we deem it important to stress and remind


respondent to refrain from accepting employment in any
matter in which he knows or has reason to believe that
he may be an essential witness for the prospective client.
Furthermore, in future cases in which his testimony may
become essential to serve the "ends of justice," the
canons of the profession require him to withdraw from
the active prosecution of these cases.
No Proof of Harassment
The charge that respondent harassed complainant and
uttered insulting words and veiled threats is not
supported by evidence. Allegation is never equivalent to
proof, and a bare charge cannot be equated with liability.
39 It is not the self-serving claim of complainant but the
version of respondent that is more credible, considering
that the latter's allegations are corroborated by the
Affidavits of the police officers and the Certifications of
the Cabanatuan City Police.
WHEREFORE, Atty. Edison V. Rafanan is found guilty of
violating the Notarial Law and Canon 5 of the Code of
Professional Responsibility and is hereby FINED P3,000
with a warning that similar infractions in the future will be
dealt with more severely.
SO ORDERED.
Sandoval-Gutierrez and Corona, JJ ., concur.
Carpio Morales, J ., is on leave.
Footnotes

1. Records, pp. 14.


2. "Sec. 27. Attorney removed or suspended by Supreme
Court on what grounds. A member of the bar may
be removed or suspended from his office as
attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for
any violation of the oath which he is required to take
before admission to practice, or for a willful
disobedience of any lawful order of a superior court,
or for corruptly or willfully appearing as an attorney
for a party to a case without authority to do so. The
practice of soliciting cases at law for the purpose of
gain, either personally or through paid agents or
brokers, constitutes malpractice."
3. "CANON 1 . . .
Rule 1.01 A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 1.02 A lawyer shall not counsel or abet activities
aimed at defiance of the law or at lessening
confidence in the legal system.
Rule 1.03 A lawyer shall not, for any corrupt motive or
interest, encourage any suit or proceeding or delay
any man's cause."
4. "CANON 5 A lawyer shall keep abreast of legal
developments, participate in continuing legal
education programs, support efforts to achieve high
standards in law schools as well as in the practical
training of law students and assist in disseminating
information regarding the law and jurisprudence."

5. "CANON 12 . . .
Rule 12.07 A lawyer shall not abuse, browbeat or
harass a witness nor needlessly inconvenience
him."
6. Annex A, Notice of Resolution of the IBP Board of
Governors; Report, pp. 12.
7. Records, p. 13.
8. Id., pp. 1418.
9. "Sec. 3. Procedure. . . .
"(a) . . . The affidavits shall be sworn to before any
prosecutor or government official authorized to
administer oath, or, in their absence or
unavailability, before a notary public, each of whom
must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed
and understood their affidavits.
xxx xxx xxx
"(c) . . . . Within ten (10) days from receipt of the subpoena
with the complaint and supporting affidavits and
documents, the respondent shall submit his counteraffidavit and that of his witnesses and other
supporting documents relied upon for his defense.
The counter-affidavits shall be subscribed and
sworn to and certified as provided in paragraph (a)
of this section . . . ."
10. Records, pp. 5455.
11. Joint Affidavit of PO3 Ronaldo S. Gamboa and PO2

Nicasio A. Yambot; records, p. 68.


12. Records, p. 57.
13. See Registry Return Receipt attached to Notice of
Hearing.
14. Records, pp. 5963.
15. Id., pp. 6567.
16. Id., p. 74.
17. Id., p. 88.
18. Id., pp. 92100.
19. See Notice of Resolution; records, p. 103.
20. The investigating commissioner recommended that
"respondent be reprimanded and fined P1,500.00
for violating Canon 5 of the Code of Professional
Responsibility."
21. Section 251 of the Revised Administrative Code.
22. Section 246 of the Revised Administrative Code.
23. Section 249 of the Revised Administrative Code;
Protacio v. Mendoza, 395 SCRA 10, 17, January 13,
2003.
24. 383 SCRA 498, 504, July 2, 2002, per Bellosillo, J.
25. Vda. de Bernardo v. Restauro, 404 SCRA 599, 603,
June 25, 2003; Maligsa v. Cabanting, 272 SCRA
408, 414, May 14, 1997; Arrieta v. Llosa, 282 SCRA
248, 253, November 28, 1997.
26. Canon 1 of the CPR.

27. Canon 5 of the CPR.


28. Alitagtag v. Garcia, 403 SCRA 335, 341, June 10,
2003.
29. Ibid.
30. Vda. de Rosales v. Ramos, supra.
31. Per Section 20 of the Rules of Court.
32. Per Section 24 of the Rules of Court.
33. Vicente J. Francisco, Legal Ethics (1949), p. 203 (citing
Williams, Legal Ethics, p. 53; and Warvelle, Legal
Ethics, p. 119).
34. Philippine National Bank v. Uy Teng Piao, 57 Phil. 337,
October 21, 1932.
35. Canon 5 of the Canons of Professional Ethics; Section
20 (i) of Rule 138, Rules of Court.
36. Lames v. Lascieras, 89 SCRA 186, 189, March 30,
1979.
37. Manuel R. Pamaran, Rules on Criminal Procedure
Annotated (1998), p. 161 (citing Tandoc v. Resultan,
175 SCRA 37, July 5, 1989).
38. Ibid.
39. Manubay v. Garcia, 386 Phil. 440, 443, April 12, 2000.

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