Counter-Affidavit Notarization Requirements in the Philippines

Below is a comprehensive discussion on the notarization requirements of a Counter-Affidavit in the Philippines. This article covers the nature and purpose of a Counter-Affidavit, the legal framework governing affidavits (including Counter-Affidavits), the general procedure for notarization, the role of notaries public, and relevant rules and best practices. While it focuses on criminal proceedings (where Counter-Affidavits are most common), much of this information applies generally to affidavits in other contexts as well.

I. What Is a Counter-Affidavit?

  1. Definition and Purpose

    • A Counter-Affidavit is a written, sworn statement filed in response to a complaint-affidavit—commonly in criminal proceedings but can also appear in certain administrative or civil contexts.
    • It allows the respondent (the accused or person under investigation) to answer or refute allegations made by a complainant.
    • In Philippine criminal procedure, the filing of a Counter-Affidavit usually occurs during the preliminary investigation stage before the prosecutor’s office. The Counter-Affidavit lays out defenses and evidence from the respondent’s perspective.

  2. Legal Basis

    • Rules of Court: The relevant provisions on affidavits can be found in the Rules of Court, particularly the provisions on criminal procedure and evidence.
    • Department of Justice (DOJ) Circulars: DOJ issuances often outline the guidelines for filing Counter-Affidavits in preliminary investigations (e.g., time to file, supporting documents, etc.).
    • Revised Rules on Criminal Procedure: Sets out the requirements for preliminary investigation, including the need to submit a Counter-Affidavit in response to the complaint-affidavit.

  3. Importance

    • The Counter-Affidavit is crucial for the defense because it forms part of the basis upon which the prosecutor decides whether there is probable cause to charge an individual in court.
    • Failing to file a properly executed (notarized) Counter-Affidavit can weaken or waive one’s defense at this early, critical stage.

II. General Requirements for Affidavits in the Philippines

A Counter-Affidavit, like any affidavit, is governed by the same basic rules regarding form and substance. Under Philippine law:

  1. Written Statement

    • The affidavit must be in writing. It should contain a clear narration of facts within the affiant’s personal knowledge and any defenses or arguments the affiant wishes to raise.

  2. Signature of the Affiant

    • The affiant (the one making the sworn statement) must sign the affidavit. For a Counter-Affidavit, the affiant is typically the respondent in the criminal complaint.

  3. Jurat (or Acknowledgment) Before a Notary Public

    • Affidavits in the Philippines typically require a jurat, which is the part of the document indicating that the affiant personally appeared before the notary public (or other person authorized to administer oaths), was identified by the notary, and swore/affirmed to the truth of the contents of the affidavit.
    • If it is not accompanied by a valid jurat (or an acknowledgment in some contexts), it may not be recognized as having probative value.

  4. Competent Evidence of Identity

    • The notary public must verify the identity of the person executing the affidavit.
    • Valid IDs (government-issued IDs with photo and signature) are typically required.

III. Notarization Framework: 2004 Rules on Notarial Practice

In the Philippines, notarial acts are primarily governed by the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC). Key points to remember:

  1. Authority to Notarize

    • Only a duly commissioned notary public can notarize an affidavit.
    • Lawyers who are not commissioned as notaries public in a particular jurisdiction cannot notarize documents there.

  2. Personal Appearance

    • The affiant must personally appear before the notary public. This is non-negotiable. Remote notarization is generally not allowed (except under certain limited e-notarization pilot rules, but these are not yet widely implemented).

  3. Competent Evidence of Identity

    • The affiant must present at least one current, government-issued ID bearing a photograph and signature, or the notary must personally know the affiant.

  4. Jurat vs. Acknowledgment

    • Jurat: Used for affidavits and other documents requiring the affiant to swear to the truth of statements.
    • Acknowledgment: Used when a person acknowledges that a document is his/her free act (commonly used in deeds, contracts, and other instruments of conveyance).

  5. Notarial Register

    • The notary is required to record the details of the notarial act in his or her notarial register (also called a notarial logbook):
      • Date and time of notarization
      • Name of the affiant(s)
      • Type of document notarized
      • Signature of the affiant(s)
      • Competent evidence of identity presented
      • Other essential details required by the rules

  6. Notarial Certificate

    • After verifying and administering the oath, the notary will complete the jurat at the bottom of the affidavit, stating that the affiant swore to or affirmed the contents.

  7. Fees

    • The 2004 Rules on Notarial Practice and local Integrated Bar of the Philippines (IBP) chapters typically set guidelines or recommended schedules for notarial fees.
    • Lawyers or notaries public may charge a reasonable fee for their services, but exploitation or overpricing may be reported to the proper authorities.

IV. Specific Steps to Notarize a Counter-Affidavit

  1. Drafting the Counter-Affidavit

    • Lay out a heading or caption (especially if it’s part of a criminal case, it will bear the case title and docket number from the prosecutor’s office or court).
    • Write the body that refutes the allegations in the complaint-affidavit.
    • List any supporting documents or attachments (exhibits).
    • Provide a concluding statement that the affiant is executing the Counter-Affidavit for the purpose of responding to the complaint and that everything stated is true based on personal knowledge or authentic records.

  2. Ensure Correct Form

    • Generally, the last paragraph will say something to the effect of:

      “Affiant further says nothing more and swears under oath that all the foregoing statements are true and correct to the best of his/her knowledge.”

    • Leave enough space for the signature of the affiant and the jurat to be placed below.

  3. Personal Appearance Before a Notary Public

    • The affiant must bring the final form of the Counter-Affidavit (with all exhibits, if any) to a notary public.
    • Present valid identification documents.

  4. Oath or Affirmation

    • The notary will ask the affiant to swear or affirm that the statements in the affidavit are true, under penalty of law.

  5. Signing and Notarial Certificate

    • The affiant signs (or re-signs, if needed) in the presence of the notary.
    • The notary then completes the jurat portion with the notarial details, such as:
      • Date and place of notarization
      • Notarial commission details (commission number, expiry date, etc.)
      • Signature and official seal of the notary public
    • The notary records the transaction in the notarial register.

  6. Retention and Submission

    • Once notarized, the original Counter-Affidavit is typically submitted to the investigating prosecutor’s office (or the appropriate forum).
    • The affiant should keep at least one stamped/received copy or photocopy as proof of filing.

V. Consequences of Improper or Lack of Notarization

  1. Inadmissibility or Reduced Evidentiary Weight

    • Courts or prosecutors may disregard an unnotarized affidavit or treat it as a mere “scrap of paper” lacking probative value in formal proceedings.

  2. Non-Compliance with Procedural Rules

    • In a preliminary investigation, not filing a properly executed (notarized) Counter-Affidavit within the given period can lead to adverse consequences, such as a resolution based solely on the complaint-affidavit.

  3. Possible Disciplinary Action Against the Notary

    • If a notary public notarizes a document without strict compliance (e.g., failing to ensure the affiant’s personal appearance), they risk suspension or revocation of their notarial commission.

  4. Potential Perjury Issues

    • By notarizing a Counter-Affidavit, the affiant is declaring that the facts are true under oath. Any false statement can expose the affiant to perjury charges.

VI. Best Practices and Tips

  1. Review the Contents Thoroughly

    • Ensure that the affidavit’s statements are based on personal knowledge or authentic records.
    • Attach pertinent documents that support the affiant’s claims or defenses.

  2. Seek Legal Counsel

    • While not strictly mandatory to have a lawyer prepare a Counter-Affidavit, doing so is advisable, especially in criminal matters. Legal counsel can frame arguments more effectively and ensure compliance with procedural requirements.

  3. File Within the Prescribed Period

    • The Prosecutor’s Office or relevant agency typically gives a set period (often a fixed number of days) to file a Counter-Affidavit. Missing the deadline can severely disadvantage the respondent.

  4. Verify the Notary Public’s Commission

    • Ensure the notary public is duly commissioned in the place where the notarization is performed. The notary must have a valid commission from the Regional Trial Court in that jurisdiction.

  5. Keep Copies

    • Always keep certified or received copies of your notarized Counter-Affidavit for your records. Confirm that the receiving office (e.g., prosecutor’s office) acknowledges receipt.

VII. Related Considerations

  1. Electronic or Remote Notarization

    • The Philippines does not generally allow online or remote notarization, except in pilot programs or exceptional cases (such as certain COVID-related rules that were experimental or limited in application). Always confirm current rules before proceeding.

  2. Additional Jurat Requirements

    • Some jurisdictions or offices require the affiant to place their signature on every page of the affidavit or require special format. Check local rules where the case is pending.

  3. Translations

    • If the Counter-Affidavit is written in a local language or requires translation, ensure it is accurate. A translator’s affidavit may also need to be notarized.

  4. Verification vs. Jurat

    • Some agencies require an additional verification clause. Verification typically states that the allegations in the affidavit are based on personal knowledge or authentic documents. This is separate from the jurat, but they often appear together in the same affidavit.

VIII. Conclusion

A Counter-Affidavit is an essential defensive document in Philippine legal proceedings, especially in criminal preliminary investigations. For it to be valid and have proper evidentiary weight, it must comply with the notarization requirements under Philippine law—particularly the 2004 Rules on Notarial Practice. Properly drafting the affidavit, ensuring personal appearance before a notary public, and adhering to all procedural deadlines are critical steps. Failure to follow the notarization rules can result in the document’s invalidation or diminished probative value, putting the respondent’s defense at risk.

When in doubt, always consult a qualified attorney for advice on drafting, filing, and notarizing your Counter-Affidavit to safeguard your rights and ensure procedural compliance.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

Privacy Policy

Terms of Use

Lawyer Login

 
 
Privacy Policy         Terms of Use         Lawyer Login