Is Remote the Next Normal for Notarization?

April 18, 2022 by

The COVID-19 pandemic has rapidly reshaped Philippine society in the span of a few months, thanks to a combination of what has been reported as “the world’s longest lockdown,” ever-evolving travel and access restrictions from both the government and the private sector, and strong health and safety concerns from the public in general. These have forced various sectors to scramble for ways to go about their day-to-day dealings as approximately close to how they used to do so pre-COVID.

The legal services industry has been one of the sectors heavily affected. Notaries public have particularly been hindered, given the heavy reliance on face-to-face interactions with their signatories.

Notarization, in the Philippines, is generally not a pre-condition for the validity of legal documents. However, many essential transactions require notarization, such as real estate dealings and submissions to the BIR, LGUs, and many other government agencies. Further, even when notarization is not required, the Philippine public tends to rely on notarization as a source of legitimacy for their transactions. Commerce has thus suffered, with parties finding themselves ready to sign a contract or document but unable to proceed with the transaction for lack of access to a notary.

The Supreme Court has thankfully noticed. In July, the Court issued the Interim Rules on Remote Notarization to address these concerns. The Interim Rules do not completely overhaul the notarization system, but they depart from the traditionally “analog” Rules on Notarial Practice in some meaningful ways.

The biggest change comes from the introduction of videoconferencing. Under the previous notarial practice, parties were required to appear before notaries and confirm that they voluntarily affixed their signature on a document presented to the notary (in the case of a notarial acknowledgment), or sign and swear to a document before the notary (in case of an affidavit or jurat). The Interim Rules dispense with this personal appearance requirement, in favor of an online appearance by way of videoconference.

Under the Interim Rules, a signatory pre-signs the document and, together with their competent proof of identity (e.g., passport, driver’s license, etc.), couriers the signed document to their notary. Upon receipt, the notary schedules a videoconference with the signatory, during which the notary confirms the signatory’s identity, and requests the signatory to confirm that they voluntarily signed the document. The notary then affixes their notarial seal and certificate per usual practice, but with an annotation that notarization was done by videoconference.

An inherent difficulty with any online notarization process is that notarial commissions are necessarily geographical (a notary commissioned in Makati, for example, cannot notarize in Pasig). The Interim Rules have creatively addressed this problem by allowing signatories to present GPS location-enabled devices during the videoconference, in order to validate that they are located within their notary’s commission area. Interestingly, the Rules also allow location validation through landmarks. So if they happen to be in the right location, a signatory can put aside Waze or Google Maps, and instead show their notary the view outside the window.

Bowing to security considerations, the Rules include robust safeguards to ensure the integrity of the notarized document. At the outset, the pre-signed document must be sent to the notary in an envelope sealed with the signatory’s initials. The notary opens this sealed envelope only during the videoconference, and the document taken from the envelope must be kept in full view of the signatory throughout the videoconference.

The Rules also have redundant measures for the notary to verify the signature on the document: (1) the signatory must send the notary a video clip of themselves signing the document, (2) during the videoconference, they need to sign a blank piece of paper and show this to the notary for comparison with the signature on the document, and (3) the notary is even required to pose searching questions to satisfy themselves that the signatory freely and voluntarily signed the document.

If there is one criticism of the Rules, it would be that they can only be used to notarize documents signed with traditional handwritten or “wet” ink signatures. While other government agencies such as the DICT have made a strong push toward digital methods of signing documents, the restrictions on notarization will undoubtedly dampen the momentum of this shift.

As their name implies, the Interim Rules are only temporary. Applying only to areas placed under Community Quarantine, the Rules will eventually lapse once travel restrictions are completely lifted by the authorities. The Rules, however, are the first step in the right direction. And hopefully the legal community, through the leadership of the Supreme Court, will use the intervening period as an opportunity to take stock of our notarial system and find ways to move it further towards digitization by accommodating electronic and digital signatures on a more permanent basis.

April 18, 2022
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