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Unreasonable PCC ‘dawn raid’ request

/ 04:02 AM January 14, 2020

With the view to effectively accomplish its antitrust mandate, the Philippine Competition Commission (PCC) wants Congress to allow it to conduct dawn raids without prior court authorization. Dawn raids are unannounced or surprise inspections of business premises to look for proof of commission of acts that violate fair competition or antitrust laws. They’re described as such because in Europe where that practice originated from, they are usually done in the early morning or when least expected.

The action involves the inspection or seizure of corporate records, internal communications, computer files and other pieces of evidence that may establish such violation.

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This cloak and dagger type of operation is aimed at preventing the target companies from concealing, tampering with or destroying evidence of wrongdoing.

Under existing regulations, the PCC can conduct dawn raids only on the strength of or upon an order issued by special commercial courts in the cities of Quezon, Manila, Makati, Pasig, Cebu, Iloilo, Davao and Cagayan de Oro.

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These highly urbanized cities are the usual sites of the principal offices of businesses that, on account of the size of their operations, are prone to come under the PCC’s regulatory supervision.

Once any of those courts gives the go signal to the PCC to conduct a dawn raid, the order can be enforced anywhere in the Philippines.

The nationwide coverage is an exception to the general rule that orders of regular trial courts can be enforced only within their respective territorial jurisdictions.

In a media statement, the PCC said it wanted prior court approval of dawn raids removed. Taking a leaf from antitrust offices in some countries, it wants to conduct them unilaterally or without any court intervention.

With that authority, the PCC would supposedly be able to act quickly or more effectively in preventing, curbing or punishing anticompetitive behavior by the businesses concerned.

Laudable the PCC’s objective may be, its request runs counter to the constitutional provision on the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.”

To ensure respect for that right, the Constitution states that no search warrant shall be issued except upon the personal determination by a judge that, based on the evidence presented, the issuance of such order is in order.

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The involvement of His or Her Honor in the process is aimed at making sure the objective of the search is not capricious and is conducted in accordance with established procedures.

That second look or opinion at the circumstances behind the request for a search warrant is an integral element of due process.

The PCC has no reason to feel uncomfortable with a court’s involvement in a planned dawn raid considering that its application for that purpose is required to be acted upon within 24 hours from filing.

If the judge unreasonably fails to act on the application, the PCC can file administrative and criminal charges against him or her.

This arrangement addresses the PCC’s need for quick action in gathering evidence of antitrust law violation and at the same time respect the right of the affected party to the privacy of its person and papers. It’s a win-win situation for the parties concerned.

A request to inspect business premises is no different from an application for a search warrant filed by a law enforcement officer in connection with a crime investigation.

In the PCC’s desire to accomplish its mandate, it should bear in mind that, like all other government offices, it cannot engage in acts that may violate rights enshrined in the Constitution.

The ends do not justify the means. INQ

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TAGS: Business, Philippine Competition Commission (PCC)
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