Jabinal vs. Overall Deputy Ombudsman

A public official or employee who engages in notarial work without a valid notarial commission and without prior written permission from the head of the agency may be held criminally liable under Section 7(b)(2) of R.A. 6713; the existence of probable cause for such charge does not require proof of habituality or a succession of acts, and the Ombudsman’s determination of probable cause will not be disturbed absent grave abuse of discretion.

Petitioner Atty. Parina R. Jabinal served as Division Manager in the Legal Services Department of the National Housing Authority, and previously as Legal Staff at the Office of the General Manager. From 2004 to 2010, she intermittently held commissions as a notary public for Quezon City. In 2008, while employed at NHA, she notarized two documents connected to NHA transactions—a Deed of Sale and a Deed of Assignment—receiving P30,000. The Field Investigation Office of the Ombudsman subsequently filed a criminal complaint alleging that the notarizations constituted unauthorized private practice of law under R.A. 6713.

• Nature of the Complaint: The Field Investigation Office of the Ombudsman charged petitioner, a Division Manager of the NHA Legal Services Department, with violating Section 7(b)(2) of R.A. 6713 for engaging in the private practice of law without prior authorization. The complaint was based on petitioner’s notarization of two documents in 2008 while employed as a legal officer of the NHA.

• The Notarizations in 2008: Petitioner notarized a Deed of Sale dated August 20, 2008 between the NHA and Milagros Daez, Rosauro D. Villaluz, and K-Bon Construction Corporation, and a Deed of Assignment dated September 30, 2008 between Milagros Daez and Rosauro D. Villaluz (First Party), K-Bon Construction Corporation (Second Party), and Alex Uson and Ernesto Yao (Third Party). She entered these documents in her notarial register and received P30,000 for her services.

• Absence of Notarial Commission and Agency Authorization: The Branch Clerk of Court of the Regional Trial Court of Quezon City certified that petitioner was not a commissioned notary public for Quezon City in 2008. The Ombudsman found that her February 9, 2008 petition for a notarial commission was stamped received by the Office of the Clerk of Court only on February 10, 2009, and the petition bore IBP and PTR numbers dated January 2009, indicating that no petition was pending when the documents were notarized in August and September 2008. There was also no written authority from the NHA head permitting petitioner to engage in notarial practice in 2008.

• Petitioner’s Defense: Petitioner claimed that she believed in good faith she was a commissioned notary public for 2008; that she had held notarial commissions from 2004 to 2010 and had been notarizing NHA documents as part of her duties; that her failure to obtain a commission for 2008 was an inadvertent oversight; and that the isolated notarizations did not amount to the habitual private practice of law contemplated by R.A. 6713.

• Lack of Habitual Private Practice: Petitioner contended that under prevailing jurisprudential pronouncements, the “private practice” prohibited by Section 7(b)(2) of R.A. 6713 contemplates a succession of acts of the same nature habitually or customarily holding one’s self out to the public as a lawyer and demanding payment for such services. She argued that her two notarial acts did not satisfy this standard.

• Good Faith and Inadvertence: Petitioner maintained that she notarized the documents in the honest belief that her notarial commission for 2008 had been processed, and that her failure to secure a timely commission was an inadvertent mistake made in good faith, consistent with her notarial practice in previous and subsequent years.

• Notarization as Part of Official Duties: Petitioner asserted that notarizing documents involving the NHA formed part of her responsibilities as a legal officer, and thus it was a mistaken factual conclusion to deem such notarial practice ipso facto as engaging in the private practice of law.

The decision does not set out separate arguments filed by the Office of the Ombudsman in the certiorari proceedings; the Ombudsman’s position is reflected in the assailed Resolution and Joint Order, which relied on the following:

• Prohibited Conduct under R.A. 6713: The notarization of the two documents constituted the private practice of law. Petitioner lacked the required written permission from the NHA head and, in fact, was not a commissioned notary public in 2008, making her acts clearly violative of Section 7(b)(2) of R.A. 6713 in relation to Memorandum Circular No. 17.

• Sufficiency of Probable Cause: The evidence—the notarized documents, the absence of a notarial commission for 2008, and the absence of NHA authorization—sufficiently established probable cause that the offense charged had been committed.

• Grave Abuse of Discretion: Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding probable cause to indict petitioner for two counts of violation of Section 7(b)(2) of R.A. 6713.

• Grave Abuse of Discretion: The Ombudsman did not commit grave abuse of discretion. Probable cause, for purposes of filing a criminal information, requires only such facts as engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof; it does not demand proof beyond reasonable doubt. The undisputed evidence showed that petitioner, a government legal officer, notarized two documents in 2008, was paid for those services, had no valid notarial commission for that year, and possessed no written authority from the NHA head to engage in notarial practice. These facts were sufficient to support the finding of probable cause. Petitioner’s claims of good faith and the non-habitual character of her acts are matters of defense properly ventilated in a full trial, not at the preliminary investigation stage. The Ombudsman’s wide latitude to investigate and determine probable cause must be accorded deference absent a clear showing of arbitrary, capricious, or despotic exercise of power, which petitioner failed to establish.

• Probable Cause in Preliminary Investigation — Probable cause is defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. It does not require actual or positive cause, absolute certainty, or evidence sufficient to secure a conviction. The prosecutor’s role is merely to determine whether there is enough basis to hold the accused for trial; the full and exhaustive display of the parties’ evidence is reserved for trial on the merits.

• Non-Interference with Ombudsman’s Probable Cause Determination — Generally, the Supreme Court will not interfere with the Ombudsman’s finding of probable cause, as the Ombudsman is in a better position to assess the strengths or weaknesses of the evidence. Only a clear showing of grave abuse of discretion—an arbitrary, capricious, whimsical, or despotic exercise of power amounting to an evasion of positive duty—will warrant the reversal of the Ombudsman’s determination.

• Private Practice of Law under Section 7(b)(2) of R.A. 6713 — Notarial acts fall within the ambit of the “practice of law.” Public officials and employees who engage in such practice without prior authorization from the head of the agency, as required by Memorandum Circular No. 17 of the Executive Department, violate Section 7(b)(2) of R.A. 6713. The prohibition does not require habituality or a succession of acts; the unauthorized notarization of documents alone may constitute the offense.

• “Probable cause does not mean ‘actual or positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief. It does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.” — This passage encapsulates the standard for the Ombudsman’s finding of probable cause, affirming the low evidentiary threshold required to proceed to trial.

• “Petitioner claims good faith in notarizing the two documents as she believed in all honesty that she was a commissioned notary public for that year; and that her acts do not constitute habituality. Such claim is evidentiary in nature and a matter of defense, the truth of which can be best passed upon after a full-blown trial on the merits.” — This excerpt underscores the principle that defenses such as good faith and lack of habituality are not appropriate grounds to quash a finding of probable cause; they must be raised and proven at trial.

• Abella v. Atty. Cruzabra, 606 Phil. 200 (2009) — Followed. The Court applied Abella to hold that a government official who notarizes documents without written authority from the department head violates Section 7(b)(2) of R.A. 6713 and Memorandum Circular No. 17. The case served as controlling precedent on the requirement of prior agency authorization for notarial practice.

• Yumol, Jr. v. Atty. Ferrer Sr., 496 Phil. 363 (2005) — Cited for the proposition that notarial acts are within the ambit of the term “practice of law,” thus falling under the prohibition in R.A. 6713.

• Villarosa v. The Honorable Ombudsman, G.R. No. 221418, January 23, 2019 — Cited for the general rule of non-interference by the Court in the Ombudsman’s probable cause determination, grounded on the Ombudsman’s constitutional and statutory mandate.

• Section 7(b)(2), Republic Act No. 6713 — Prohibits public officials and employees from engaging in the private practice of their profession during their incumbency unless authorized by the Constitution or law, provided such practice does not conflict with their official functions. The provision was applied to petitioner’s notarial acts, which the Court classified as the practice of law, and which were performed without the requisite written permission from the NHA head.

• Section 11, Republic Act No. 6713 — Provides the penalty for violations of Section 7, 8, or 9: imprisonment not exceeding five years, or a fine not exceeding P5,000, or both, and disqualification to hold public office at the discretion of the court. The Informations filed against petitioner charged her under this penal clause.

• Memorandum Circular No. 17, Office of the President — Requires any government official or employee who wishes to engage directly in any private profession to secure a written permission from the head of the department or agency. The Ombudsman relied on this circular to determine that petitioner’s failure to present a written authority from the NHA head constituted a violation.

• Article XI, Section 12, 1987 Constitution; Republic Act No. 6770 (The Ombudsman Act of 1989) — These provisions grant the Ombudsman wide latitude to investigate and act on criminal complaints against public officials and employees. The Court invoked these provisions to justify its deferential review of the Ombudsman’s probable cause determination.

Leonen, A. Reyes, Jr., Hernando, and Inting, JJ., concurred.