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Apostilles and Their Effect on Foreign Public Documents

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Apostilles and Their Effect on Foreign Public Documents

By Atty. Jonathan de Guzman

On 12 September 2018, the Philippines acceded to The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, otherwise known as the Apostille Convention, which took effect last 14 May 2019.

Before we discuss apostillation, it might be advantageous to ask….um…what exactly is an apostille? Well, essentially, it’s a certificate that verifies the authenticity and legitimacy of a public document.

Apostillized public documents can only be recognized by another state if all of the following conditions are met:

  1. The state in which the document was issued is a party to the Convention;
  2. The state in which the document is to be used is also party to the Convention;
  3. The law of the state in which the document was issued considers the document as a public instrument; and
  4. The state in which the document is to be used requires an apostille in order to recognize the document as a foreign public document.

At this point, it is crucial to note that apostille only applies if both states consider the document a public document, and the definition and classification of a public document may differ between states, as defined by the municipal law of each one.

 

Here in the Philippines, the following are treated as public documents, according to Section19, R ule 132 of the Rules of Court:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

Under the previous authentication process, documents issued abroad were required to be authenticated by the Philippine Embassy or Consulate General before they could be used here. Under the Apostille Convention, however, a public document can easily be authenticated or apostillized by the issuing authority, called the Competent Authority, of the state where the document was executed, allowing it to be used in other countries, provided, as previously mentioned, they are also a member of the Apostille Convention. Let’s say, for example, a certificate of birth originating in Japan is required to be presented to one of the government agencies here in the Philippines. Under the Apostille Convention, the certificate will be treated as a public document here once an apostille is issued by the Competent Authority in Japan.

Simply put, the purpose of an apostille is to authenticate the origin of public documents intended to be used abroad. Much like in the traditional method, an apostillized document certifies only the origin of the document; it certifies the document as authentic and the authority of the person who certified the document as a public document. The apostille does not certify the contents of the public document.

To ensure the authenticity of the apostille, the Competent Authority is required to have a register of all the apostilles it issues for verification should it be necessary. Now, what if the State in which the document is to be used is not a party to the convention, will the apostille have an effect? The answer is no. Such document will only be recognized as a public document by reverting back to the traditional mode of authenticating public documents.

The Hague Conference on Private International Law keeps records of the contracting State Parties to the international law and their corresponding Competent Authorities that issue apostilles in their respective states.

Here in the Philippines, the Department of Foreign Affairs – Office of Consular Affairs (DFA- OCA) is the registered Competent Authority that issues apostilles.

Atty. Jonathan de Guzman. August 20, 2019.
LINK: The Hague Apostille Covention
Picture by Andrew Stutesman @ Unsplash


Catcallers Beware!

Catcallers Beware

Catcallers Beware!

 

Recognizing the need to protect the dignity of every human being and guarantee full respect for human rights, Republic Act No. 11313, otherwise known as the “Safe Spaces Act”, was enacted.

The Safe Spaces Act, principally authored and sponsored by Senator Risa Hontiveros, seeks to complement the existing Anti-Sexual Harassment Law, and is described by her as “a big victory and a major push back against the growing ‘bastos culture’ in our streets and communities.” The new law expands the coverage of sexual harassment by not limiting the same to the workplace, and acknowledging that it can occur not just in superior-subordinate relationships. The crime of gender-based sexual harassment may also be committed, for example, between peers, by a subordinate to a superior officer, by a student to a teacher, or by a trainee to a trainer.

The new law punishes gender-based street and public spaces harassment such as wolf-whistling, catcalling, and online sexual harassment among others.

   

More specifically, it covers the following crimes:

a) Gender-Based Streets and Public Spaces Sexual Harassment

b) Gender-Based Online Sexual Harassment

c) Qualified Gender-Based Streets, Public Spaces and Online Sexual Harassment

d) Gender-Based Sexual Harassment in the Workplace, and

e) Gender Based Sexual Harassment in Educational and Training Institutions.

   

Below are some of the salient features of the law:

A. The crime of Gender-based Streets and Public Spaces Sexual Harassment are committed through any unwanted and uninvited sexual actions or remarks against any person regardless of the motive for committing such action or remarks.

 

Specific Acts and Penalties for Gender-based Streets and Public Spaces Sexual Harassment:

Degree of Offense

Penalty

First degree offenses:

  1. Cursing
  2. Catcalling
  3. Wolf-whistling
  4. Leering and intrusive gazing
  5. Taunting, unwanted invitations
  6. Misogynistic, transphobic, homophobic, and sexist slurs
  7. Persistent unwanted comments on one’s appearance
  8. Relentless requests for personal details such as name, contact, and social media details; or destination
  9. Use of words, gestures, or actions that ridicule on the basis of sex, gender, or sexual orientation; identity and/or expression including sexist, homophobic, transphobic statements and slurs
  10. Persistent telling of sexual jokes
  11. Use of sexual names, comments, and demands
  12. Any statement that has made an invasion on a person’s personal space or threatens the person’s sense of personal safety
  1. 1st offense: P1,000-fine and 12-hour community service with Gender Sensitivity Seminar
  2. 2nd offense: 6-10 days in prison/P3,000 fine
  3. 3rd offense: 11-30 days in prison and P10,000-fine
 

2nd degree offenses:

  1. Making offensive body gestures at someone
  2. Public masturbation
  3. Flashing of private parts
  4. Groping
  5. Similar lewd actions
  1. 1st offense: P10,000-fine and 12-hour community service with Gender Sensitivity Seminar
  2. 2nd offense: 11-30 days in prison/P15,000 fine
  3. 3rd offense: 1 month and 1 day to 6 months in prison and P20,000 fine

3rd degree offenses:

  1. Stalking
  2. Sexual advances, gestures, and statements mentioned previously with pinching or brushing against the body of the offended person
  3. Touching, pinching, or brushing against the genitalia, face, arms, anus, groin, breasts, inner thighs, face, buttocks, or any part of the victim’s body
  1. 1st offense: 11-30 days in prison/P30,000-fine with attendance to Gender Sensitivity Seminar
  2. 2nd offense: 1 month and 1 day to 6 months in prison and P50,000-fine
  3. 3rd offense: 4 months and 1 day to 6 months in prison/P100,000-fine
 
Section 4, Article 1, Republic Act No. 11313.
 

B. Gender-Based Online Sexual Harassment includes:

  1. Acts that use information and communications technology in terrorizing and intimidating victims through physical, psychological, and emotional threats; Unwanted sexual misogynistic, transphobic, homophobic, and sexist remarks
  2. and comments online whether publicly or through direct and private messages;
  3. Invasion of victim’s privacy through cyberstalking and incessant messaging;
  4. Uploading and sharing without the consent of the victims, any form of media that contains photos, voice, or video with sexual content;
  5. Unauthorized recording and sharing of any of the victim’s photos, videos, or any information online;
  6. Impersonating identities of victims online or posting lies about victims to harm their reputation;
  7. Filing false abuse reports to online platforms to silence victims.
 

Penalty 2 years, 4 months, and 1 day to 4 years and 2 months in prison or P100,000 to P500,000-fine, or both

 

C. Qualified Gender-Based Streets, Public Spaces and Online Sexual Harassment is committed in the following instances:

  1. If the act takes place in a common carrier or PUV, including, but not limited to, jeepneys, taxis, tricycles, or app-based transport network vehicle services, where the perpetrator is the driver of the vehicle and the offended party is a passenger;
  2. If the offended party is a minor, a senior citizen, or a person with disability (PWD), or a breastfeeding mother nursing her child;
  3. If the offended party is diagnosed with a mental problem tending to impair consent;
  4. If the perpetrator is a member of the uniformed services, such as the PNP and the Armed Forces of the Philippines (AFP), and the act was perpetrated while the perpetrator was in uniform; and
  5. If the act takes place in the premises of a government agency offering frontline services to the public and the perpetrator is a government employee.

Penalty The penalty next higher will apply.

 

D. Gender-Based Sexual Harassment in the Workplace includes:

  1. An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;
  2. A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems;
  3. A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient; Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee.
 

E. Gender-Based Sexual Harassment in Educational and Training Institutions

All schools whether public or private are tasked to ensure that the victims are provided with a gender-sensitive  environment that is both respectful to the victims’ needs and conducive to truth-telling.

There you have it. The bottom line of the law is respect. As the song goes, “R-E-S-P-E-C-T / Find out what it means to me / R-E-S-P-E-C-T”. Should there be any confusion as to its observance, let the Safe Spaces Act be your guide.

 

Atty. Jasmin Fiel-Samson. July 24, 2019

RA11313 The Safe Spaces Act

Five Things You Need To Know Before Starting A Crypto-Exchange Business In The Philippines

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Five Things You Need To Know Before Starting A Crypto-Exchange Business In The Philippines

  1. You must have the BSP’s approval before you can register your company with the SEC. For most companies, the usual requirement before legitimately operating a business is to simply secure a license with the Securities and Exchange Commission. However, the same route is not true for a crypto-exchange business, as it must first secure an endorsement from the Bangko Sentral ng Pilipinas.To get the BSP’s nod of approval (for SEC registration purposes), the company must pass the rigorous preliminary screening process for determining its eligibility for registration.At this point, the company must prepare, among others, a business plan detailing the company’s purpose, organizational structure, products/services to be offered, target market/network, operational workflow and capital requirements. The business plan must be clear enough to give BSP an idea of what you really intend to do. If your operations will include online transactions, you should also be ready to present your platform. If you pass the preliminary screening, a letter of no objection will be issued in your favor, and you can proceed with your SEC application for registration.
  2. You must secure a BSP license before operating your crypto-exchange business. Once you’re registered with the SEC, should you already start the crypto-exchange operations? Not yet.You must go back to BSP and comply with the second stage requirements, which are listed under the BSP Memorandum No. M-2017- 014. Basically, you will have to submit the SEC incorporation documents and business permit of the company. The company’s officers and directors must submit their personal data sheets and undertakings to comply with AML rules.
  3. You must meet the capitalization requirements. The capitalization requirement may range from less than PHP10 million for small-scale operators to at least PHP50 million for large-scale operators. If your business includes e-money issuance, the requirement is PHP100 million.
  4. You must build a secure IT infrastructure. The use of digital technology is faced with challenges, such as more sophisticated cyber-attack methods. Pursuant to BSP Circular No. 944, Series of 2017, a virtual currency exchange shall put in place adequate risk management and security control mechanisms to address, manage and mitigate technology risks associated with virtual currencies. An effective cyber security program should be established by a virtual currency exchange that provides wallet services. For simple virtual currency operations, installing up-to-date anti-malware solutions, conducting periodic back- ups and being aware of emerging risks and cyber-attacks may suffice.No matter the complexity of your operations, at the end of the day, the integrity and security of your platform must be maintained. Thus, you should seek competent IT professionals or service providers that will help in protecting your clients’ funds and data, and likewise your business.
  5. You must comply with anti-money laundering laws. A virtual currency exchange must register with the Anti-Money Laundering Council within 30 days from the actual date of commencement of operations. Its principal directors, officers, or responsible personnel should attend a seminar on anti-money laundering and terrorist financing, and training for staff should be provided to enable them to detect illegal transactions and/or prevent the exchange from being used for fraudulent purposes. Policies must be implemented to ensure compliance with anti- money laundering regulations. The board of directors should likewise appoint a Compliance Officer who shall be responsible for overseeing the implementation of relevant policies and reporting covered and suspicious transactions.
  And there you have it. If you are thinking of starting a crypto-exchange business in the Philippines, take careful note of the above. The world is changing fast, and it pays to keep abreast of all the latest rules and regulations. For consultation and assistance in setting up your business, email me at satible@mflegal.com.ph. Attorney Stephanie Anne V. Tible. July 11 2019 Photo by Clifford Photography @ Unsplash

The Speakeasy That Wasn’t

MFBR-Speakeasy-june

In true Prohibition-Era fashion, the second MFBR Lex Speakeasy most certainly did not take place at the end of last month. No clients and friends partook of an impressive list of single-malt and blended whiskies; nor did they enjoy tasty canapés expertly prepared by that good friend of the firm, Ms. Ingrid Connon.

Likewise, it goes without saying that no feverish game of poker (just for fun) occupied the tightly-packed inhabitants of our conference room. And if the talented JR duo sang hits both old and new to the delight of everyone not present, it was surely not in our offices.

That is why you will see no report of such goings on in social media. Not a jot. No pictures of one particular client, diligently working his way down the entire drinks menu while his business partner opined that it was the best party he had been to in his life. No Captain Of Industry happily ruining exquisite songs in various languages.

And no trainee barman who insisted on plonking slices of lemon and a dash of Coca Cola in everything from chocolate liqueur to red wine.

No sir. Never happened. And anyone who says it did will not be invited to the next one. Oops! 😉

 

MFBR Opens Speakeasy!

MFBR’s First Lex Speakeasy Gets Off to a Roaring Start!


Termination By Employer

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Whether you are an employer or employee, when it comes to termination of employment it’s important to know your rights and obligations under the law. Let’s take a close look.

 

The right to security of tenure of an employee is granted under the 1987 Philippine Constitution and the Labor Code of the Philippines (both of which you can find in the Resources section on our Homepage). An employer cannot terminate an employee except for what are termed ‘Just Causes’ or ‘Authorized Causes’.

Article 297 of the Labor Code of the Philippines enumerates the Just Causes for terminating an employee as follows:

  1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

  2. Gross and habitual neglect by the employee of his duties;

  3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

  4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

  5. Other causes analogous to the foregoing.

Article 298 of the Labor Code of the Philippines, meanwhile, enumerates the Authorized Causes for terminating an employee as follows:

  1. Installation of labor-saving devices;

  2. Redundancy;

  3. Retrenchment to prevent losses; and

  4. Closure or cessation of operation of the establishment.

An employer may also terminate an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees pursuant to Article 299 of the Labor Code of the Philippines.

Before terminating an employee, the employer must observe procedural due process. This varies depending on whether an employee is being terminated on the ground of just causes or on the ground of authorized causes.

The case of Unilever Philippines Inc. vs. Maria Ruby Rivera, G.R. No. 201701, 03 June 2013, provides the procedural due process to be observed before termination of an employee based on a just cause thus:

  1. First written notice to the employee containing the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.

  1. A hearing or conference during which the employee concerned, with the assistance of counsel if employee so desires, is given opportunity to respond to the charge, present his evidence or rebut evidence presented against him or her; and

  1. A written notice of termination served on the employee indicating upon due consideration of all circumstance, grounds has been established to justify his or her termination.

However, it must be noted that a hearing or conference is not mandatory so long as the employee has been given ample opportunity to be heard.  In the case of Felix B. Perez vs. Philippine Telegraph and Telephone Company, G.R. No. 152048, 07 April 2009, the Court held that, “A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and that the evidence should be taken into account in the adjudication of the controversy. “To be heard” does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. Therefore, while the phrase “ample opportunity to be heard” may in fact include an actual hearing, it is not limited to a formal hearing only. In other words, the existence of an actual, formal “trial-type” hearing, although preferred, is not absolutely necessary to satisfy the employee’s right to be heard.”

The procedural due process of terminating an employee based on authorized cause is provided in Article 298 of the Labor Code of the Philippines, to wit:

  1. Written Notice to the employee at least one (1) month before the intended date of termination; and

  2. Written Notice to the Department of Labor and Employment at least one (1) month before the intended date of termination;

An employee’s termination would be considered illegal if the employer did not observe the afore-stated due process.

I hope this information has been useful. Don’t forget, if you have a labor-related problem, we are here to help.

And we find solutions.

Atty. Cindy Climaco.  Sept. 12, 2018

LINK :  Labor Code of the Philippines


‘APPOINTING A DATA PROTECTION OFFICER.’ The first of Atty. Matthew Mortega’s articles on the Data Privacy Act of 2012.

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We live in a time when personal information can be freely transferred from one entity to another without any authorization whatsoever, causing consternation among many who use online services, particularly social media. Thus, in 2012, Republic Act No. 10173 or The Data Privacy Act of 2012 was passed, the purpose of which is “to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth.” (Sec. 2). This Act protects an individual’s personal data in information and communication systems in both the government and private sector.

In order to guide the public for compliance of the said provision, the National Privacy Commission (“NPC”), created five pillars of compliance and accountability to assist entities that are covered by the DPA. The first pillar is the appointment of Data Protection Officers.

 

Why Appoint a Data Protection Officer?

A Data Protection Officer (“DPO”), is a person assigned by the organization to ensure that the personal and sensitive information of the data subjects is protected and secured. As such, DPOs will be accountable for ensuring compliance by the Personal Information Controllers or Personal Information Processors with the DPA, its Implementing Rules and Regulations, related issuances of the NPC, and other applicable laws and regulations in relation to data privacy and security.

 

What are the General Qualifications to be a DPO?

The law does not expressly state the qualifications required to be a DPO; however for a smoother compliance, a DPO should possess specialized knowledge and demonstrate the reliability necessary for the performance of his or her duties and responsibilities. As such, they should have expertise in relevant privacy or data protection policies and practices. Likewise, they should have sufficient understanding of the processing operations being carried out by the controllers or processors.

 

Duties and Responsibilities of the DPO.

A DPO, among other things, shall monitor whether the collection of personal information or data subjects is in accordance with the DPA. For this purpose, he/she may:

  1. Monitor the controller, or processor’s compliance with the DPA, its IRR, issuances by the NPC and other applicable laws and policies. As such, they may:

  • Collect information to identify the processing, operations, activities, measures, projects, programs, or systems of the Personal Information Controllers PIC) or Personal Information Processors (PIP), and maintain record thereof;

  • Analyze and check the compliance of processing activities, including the issuance of security clearances and compliance by the third-party service providers;

  • Inform, advise, and issue recommendations to the PIC, or PIP;

  • Ascertain renewal of accreditations or certifications necessary to maintain the required standards on personal data processing; and

  • Advise the Personal Information Controllers or Personal Information Processors as regards the necessity of executing a Data Sharing Agreement with third parties, and ensure its compliance with the law;

  1. Ensure the conduct of Privacy Impact Assessments relative to activities, measures, projects, programs, or systems of the controllers, or processors;

  2. Advise the controller, or processors regarding complaints and/or the exercise by data subjects of their rights such as request for information, clarifications, rectifications or deletion of personal data;

  3. Ensure proper data breach and security incident management by the controllers or processors, including the latter’s preparation and submission to the NPC of reports and other documentation concerning security incidents or data breaches within prescribed period;

  4. Inform and cultivate awareness on privacy and data protection within the organization of the controller or processor, including all relevant laws, rules and regulations and issuances of the NPC;

  5. Advocate for development, review and/or revision of policies, guidelines, projects and or programs of the controllers, or processors, relating to privacy and data protection;

  6. Serve as the contract person of the controller, or processors vis-à-vis data subjects, the NPC and other authorities in all matters concerning data privacy or security issues;

  7. Perform other duties and tasks for the further interest of data privacy and security and uphold the rights of the data subjects.

Conclusion:

In sum, the first step to compliance is appointing a qualified Data Protection Officer for the furtherance of protection and security of all kinds of information of its data subjects, whether personal or sensitive. The primary function of a DPO is to protect and secure all private information; any DPO failing to do so shall be accountable before the National Privacy Commission.

The second pillar of compliance is Assessment of Risk: Conducting a Privacy Impact Assessment, which I’ll discuss in the next article.

Atty. Matthew Mortega. Sept. 12, 2018.

LINK :  RA10173 – The Data Privacy Act of 2012.


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