Monday, June 18, 2018

THE ROLE OF CULTURE IN SOCIAL CHANGE OF DEVELOPING COUNTRIES

Social change may be described as the development of a backward society into a more modern one.  This means that the society will develop more differentiated institutions and a more egalitarian structure.  For social change to occur, some authors believe that socioeconomic development has to happen first.  This makes the topic of social change interesting to those studying developing countries.

This essay seeks to draw the link between culture and social change and to apply it to the case of the Philippines at the macro level.  This essay will use the term modernization to describe the social change that is going on.

This essay shows that the relationship between culture and social change is a very complicated one and that it will be foolish to make the simplistic conclusion of culture as either a hindrance of a facilitator of social change.  There will certainly be some cultures that are more receptive to social change and others that are less tolerant of change.  Social change may also occur from outside the “mainstream culture”—i.e. coming from subcultures and even from diaspora communities.  Social change may even be “planned” such as when government imposes a language policy.  The main lesson this essay would like to impress is that one should never disregard culture in modernization of society.  A culture may adopt well to a modernizing environment while another culture may hinder modernization from taking place, in which case, culture and modernization must be reconciled by looking for techniques or processes that make use of the existing elements of the culture of that society.

Culture and Society

Culture may be defined as a set of values, norms, traditions and language in social structure (Geertz, 1973).  Culture also has a set of sanctions (feelings like guilt or shame for example) that provides incentives for a society’s members to act according to what the culture prescribes.

A group of people that share a similar culture is called a society.  Members of society learn this culture and then pass it down from one generation to the next in what is known as socialization.  Socialization in turn is carried out in social structures known as institutions (Schaeffer, 2006).  In the Philippines, the major institutions that carry out socialization are the family, schools and religious institutions (Wurfel, 1988).  Thus one can say that institutions are the means through which culture is transmitted and society is formed.  In this case, social change is heavily dependent on social institutions.

For this essay, I will use the term “modernization” to describe social change.  Some authors would use modernization and social change synonymously, however, there is a normative connotation with the word modernization whereas social change refers to any change whether good or bad (Haferkamp & Smelser, 1992).  A modern society must thus be described as one in which institutions have become more differentiated and specialized; human behavior becomes more rational and; society generally becomes more secular.

Social change is seen in changes in social structure and social institutions. In a traditional society, social structure places emphasis on authority. As society modernizes, it increasingly places greater emphasis on bargaining relations:  meaning that a society will, over time, come to prefer democracy over authoritarianism; gender equality over gender bias; greater value of self-expression; etc. (Inglehart & Welzel, 2005).

Lastly, social change occurs together with socio-economic development. This means that an increase in productivity and income has to occur before specialization, differentiation and shift in social structure takes place (Inglehart & Welzel, 2005).  Thus, for a developing country, in order to have social change, it would have to uplift the lives of the majority of its people.

Culture and Modernization in a Developing Country:  Path Dependence?

Given the above relationship between culture and social change, in a developing country, we can arrive at the generalization:  “Cultural traditions are enduring”  In other words, there is such a thing as “path dependence” in social change.  In other words, a society’s culture three generations ago may still manifest itself in the present (Inglehart & Welzel, 2005).  This explains why countries with the same religion one-hundred years ago, seem to share the same development history (for example, the Islamic Middle East and Roman Catholic Latin America) and even though a country becomes secularized and religion no longer plays a significant role, its influence is still seen in the values that a society holds (For example, resistance to divorce and Abortion in predominantly Catholic European countries until recent times and the role of women in the Islamic Middle East).

Traditional cultures are generally wary of innovation and tend to protect the status quo.  Therefore, the inability of some societies to cope with pressures stemming from modernization may simply be due to “culture lag” or when the non-material aspects of culture have not yet adjusted to changes in technology or other influences (Shaefer, 2006).

Thus, culture in terms of a developing country can be conceptualized as a constraint to modernization.  The solution in this case would be to work around the problem, i.e. developing production processes that use local know-how and and available raw materials such as through the making of local crafts for export, and, as in the case of the Japanese Zaibatsu, utilize pre-existing social networks in order to make enterprise work.

While cultures and traditions may be enduring, they are also subject to change.  For example, the authoritarian values that the mainland Chinese held may erode as their culture modernizes.

Modernization in the Philippines

The Philippines has its own very specific experiences in relation to culture and modernization.  In this article, we look at Philippine Language policies and the role of diaspora communities in the propagation of a “modern society.”

Language

In the context of this macro-level analysis of Philippine culture, language policy is very significant.  Language acts as the vehicle through which culture is transmitted to other members of society.  Institutions will not function without some form of language.  The institution of education will be particularly affected by any language policy.

Language is one area in which social change may be stunted or facilitated.  Depending on the context, the institution of a national language may facilitate the modernization of society through the introduction of specialized technical vocabulary and the writing of scientific literature.  One can also see what values, norms and traditions a society values by studying the vocabulary the language of that society contains.  Languages also expand their vocabularies over time in response to new developments in science, production processes and ways of life—a society’s level of advancement may be measured in terms of the number of words its language contains relating to philosophical, scientific, technical or other abstract concepts as well as the size of its literary corpus.

Throughout history, states have often embarked on language policies in order to facilitate communication throughout its territory.  Notable examples are the French who almost completely wiped out non-Parisian French and instituted the Académie Française in 1634 in order to regulate the French language and to keep it pure.  Spain also embarked on a similar policy of establishing and propagating the Castillian dialect through the Real Academia Española (founded in 1713).  Castillian Spanish was also propagated throughout its colonies and regulated by the same academy.  These measures facilitated communication within their countries and also fostered a sense of nationalism and a sense of belonging to a society and culture.  In the Philippines, when Tagalog was chosen as the national language, the Surian ng Wikang Pambansa was established and this was expected to fill the same role as the language academies of France and Spain.

To be sure, the language situation in the Philippines is less homogenous as contemporary France and Spain.  From the beginning, there were many languages and dialects spoken in pre-hispanic times.  When the Spanish came, they learned these many languages and used them to spread the gospel, and never seriously attempted to impose Spanish on the natives.  Thus, the native dialects were preserved and formalized.

When the Philippines came under American rule, English was first used as a medium of instruction and communication.  It was taught to the masses of Filipinos during the American period.  During the Commonwealth, Tagalog was chosen as the “National Language” of the Philippines.  One of the reasons for its choosing was that Tagalog had the most well developed literature and vocabulary of other Philippine languages.1  At the time the Philippines was granted independence from America in 1946 and up to today, the Philippines has underwent many different language teaching policies.  This ranged from bilingual education at all levels to Tagalog/Filipino/Vernacular education at the early grades (Asuncion-Lande, 1971).

These language policies has been linked by educators to the poor performance of Filipino students relative to other countries.  Whereas students in other countries may learn in their native language, Filipinos have to learn in a foreign language, even in their formative years.  This stunts the ability of students to think properly and to use both the mother tongue and other foreign languages.  At the present, Philippine education recognizes the educational value of local dialects in promoting “mother tongue” education in the first grade.

Therefore, culture may also be subjected to government planning, at least to the institutional level of Education (more basal institutions such as the Family maybe somewhat more difficult to penetrate and manipulate).  The effects may not be optimal, but the point is that it may be manipulated by factors external to the culture itself.

Subcultures and Diaspora

One cannot assume that a society is homogenous.  There will be those members who belong to subcultures, there will also be those who exist outside of the traditional boundaries associated with a society or diaspora.  these two divisions in culture have roles to play in social change.

Subcultures are those groups that exist within a society which distinguish themselves from that society by having “different patterns of mores, folkways, and values that differs from the pattern of larger society” (Schaeffer, 2006: 44).  In the Philippines, Wurfel (1988) lists down two major subcultures, the Chinese and the Muslim.  in the case of the Chinese subculture, they exert n influence in society disproportionate to their population and distribution by virtue of their economic power and international connections.  the Muslim subculture on the other hand is marginalized, economically and politically compared to the rest of the Philippine society.  The existence of these two subcultures seems to challenge the dominant social norms:  Muslims dream of a “Bangsa Moro,” which opposes the very idea of being a “Filipino”; while the Chinese maintain economic and diplomatic ties to Chine while contributing to social change though their efforts in economic activities.

A culture’s diaspora can also serve as a source of social change.  These groups  of people who belong to the larger society while living living in a different culture would develop a unique way of looking at the world because of their exposure to different cultures.  This diaspora may have the ability to look at the society in which they belonged and compare it to the society which adopted them.  If this diaspora returns, they can bring with them new ideas.  This is the principle underlying John Lie’s (2001) claim that nationalist movements often originate from a diaspora.  This can also apply to the case of social change, a society may apply what is learned from one culture to their own, thus bringing about social change.  This happened to the Philippines in the 1880s-1890s when the Ilustrados in Spain dreamed up the idea of a “Philippines.”  It is also expected that the current diaspora, should they return to the Philippines, bring with them what they learned from abroad.

Conclusion

One can see that social change is a complicated process.  Culture is made up of the values, norms, language and sanctions of a society.  Social change will be dependent on the conservatism or openness of that society as well as the knowledge already contained within that society.  A developing country is disadvantaged in the sense that its indigenous culture may not be open to adopting modern economic and political processes that are known to work well in other countries.  This can be solved not by adopting the process wholesale, but to adopt it in such a fashion that it is compatible with the existing culture.  Alternatively, a country can embark on cultural policies aimed at developing culture although the track record shows that this contains many uncertainties and often fails.


References

Asuncion-Lande, N. (1971).  “Multilingualism, politics and “filipinism””.  Asian Survey.  11(7), 677-692

Geertz, C. (1973).  The interpretation of culture.  New York:  Basic Books

Haferkamp, H. & Smelser, N. (1992).  “Introduction.”  In Social change and modernity.  H. Haferkamp & N. Smelser (Eds.). University of California

Inglehart, R. & Welzel, C. (2005). Modernization, cultural change and democracy:  The human development sequence. Cambridge

Lie. J. (2001).  “Diasporic Nationalism.”  Cultural Studies, 1(3), 355-362

Schaefer, R. (2006). Sociology Matters 2nd ed. McGraw Hill

Wurfel, D. (1988).  Filipino politics:  Development and decay.  Cornell University Press

1The selection of Tagalog is interesting in the discussion because it was selected because it was supposedly well-developed or more “modern.” Social change may be seen as the object of the propagation of a more modern culture in this case.



Sunday, May 13, 2018

GREAT PACIFIC LIFE CORPORATION vs. COURT OF APPEALS

G.R. No. L-31845; April 30, 1979

FACTS:

On March 14, 1957, the private respondent Ngo Hing (Hing) filed an application with Great Pacific Life (Pacific Life) for a twenty year endowment policy on the life of his one-year old daughter. Hing gave the amount of the annual premium to the Branch Manager of Pacific Life, petitioner Mondragon. A binding deposit receipt was thereafter issued to Hing, likewise the Mondragon handwrote at the bottom of the page of his insurance application a strong recommendation for approval. Then on April 30, 1957, Mondragon received a letter from Pacific Life informing him of the disapproval of the application stating that the policy is not available to persons below 7 years old and instead recommended a different policy for the approval of Hing.

Mondragon did not communicate the disapproval to Hing and instead wrote back to Pacific Life strongly recommending the approval of the policy. It was then that Hing’s daughter died because of influenza. Hing tried to collect the proceeds of the insurance, which Pacific Life refused to pay.

The CFI ruled in favor of the suit for recovery of money filed by Hing and ordered the payment of the insurance proceeds.

ISSUES:

1. Whether or not the binding deposit receipt constituted a temporary contract of life insurance;

2. Whether or not Hing concealed the state of health and physical condition of his daughter.

HELD:

1. NO. The fine print at the back of the binding deposit receipt provides that it only constitutes a temporary contract only when the company is satisfied that the applicant is insurable according to the standard rates or upon offer and acceptance of a different policy. Said binding deposit receipt does not bind the company if the application was eventually rejected. It is merely conditional and does not insure outright. In this case, since Pacific Life eventually disapproved the application, the binding deposit receipt in question had never become in force at any time.

As held in earlier cases, “a contract of insurance, … must be assented to by both parties either in person or by their agents….”

2. YES. The facts show that when Hing supplied the data for the insurance application, he was fully aware that his one-year old daughter was a mongoloid child—a congenital defect which could not be hidden or disguised. Nevertheless, Hing withheld such material fact from the company, which he knows he had the responsibility to disclose. The contract of insurance is one of perfect good faith (uberrima fides) meaning good faith; absolute and perfect candor or openness and honesty; the absence of any concealment or deception however slight. Concealment is the neglect to communicate that which a party knows and ought to communicate. The concealment entitles the insurer to rescind the contract of insurance.

Wherefore, the Court held that no insurance contract was perfected between the parties.


ENRIQUEZ VS. SUN LIFE INSURANCE OF CANADA

G.R. No. L-15895; November 29, 1920

FACTS:

This is an action made by the adminstrator of the estate of Joaquin Herrer of P6,000.00 paid by the deceased for a life annuity on the ground that the contract for a life annuity had not been perfected.

Joaquin Herrer made an application with Sun Life for a life annuity. He paid the amount of P6,000.00 to the Manila manager who gave him a "provisional" receipt "subject to medical examination and approval of the Company's Central Office." The application was forwarded to the head office in Canada and the policy was issued on December 4, 1917 in Canada. Meanwhile, on December 18, 1917, Herrer's attorney wrote to the Manila Office stating that Herrer wanted to withdraw his application to which the office wrote a letter dated November 26, 1917 stating that the policy had already been issued. The letter was received by the attorney on December 21, 1917. Herrer had died a day earlier on December 20, 1920.

The trial court ruled that the contract had been perfected, hence this appeal.

ISSUES:

  1. Whether or not the policyholder had received notice of the acceptance of his policy;

  1. Whether or not the contract of life annuity was perfected.

HELD:

1. NO. The facts clearly show that Herrer was not informed of the acceptance of the policy before his death.

2. NO. The contract was not perfected. Art. 1262 provides that acceptance by letter does not bind the person making the offer except from the time it came to his knowledge. The pertinent fact is that according to the provisional receipt, the insurance company had to: 1) conduct a medical examination; 2) had to obtain the head office's approval; and 3) somehow communicate such approval. It is true that the letter notifying acceptance was deposited in the post office, but the fact of notification is a rebuttable presumption and the facts clearly show that Herrer never received the notice of the acceptance before his death.


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Monday, February 12, 2018

COULD THE DENGVAXIA TRAGEDY HAVE BEEN AVOIDED?:

What might have been had Noynoy Aquino been Impeached in 2015.


Back in 2015, nobody knew of the human drama and tragedy that was about to unfold involving some 800,000 school children and their families and of the waste of some 3.5 Billion pesos worth of taxpayer’s money.  I am of course, referring to the Dengvaxia controversy.

anti-dengue%20vaccine

(Source:  CNN Philippines)


Well documented are the meetings President Aquino and his Cabinet secretaries had with Sanofi, makers of the vaccine.  It is also clear as day that regardless of the merits of the Dengvaxia vaccine, its procurement was railroaded and implemented in record time.  The whole purchase reeks of irregularity and of an administration drunk with impunity.


The timeline for this purchase was around November 2014, when the first meeting between President Aquino and Sanofi executives took place in China. Within the year, Sanofi arranged to have the drug included in the Philippine National Formulary even if it had not undergone sufficient testing.  Then, in a blitz on December 2015, Aquino and DOH Secretary Janette Garin met with Sanofi official, submitted a proposal to the DBM for its purchase and licensed the drug as a Dengue Vaccine for “all types of Individuals from 9-45 years old living in high-risk areas.”


It is simply chilling and mind-boggling to learn that this tragedy was very nearly avoided.


We recall back in July of 2014, there was a move to impeach then President Noynoy Aquino over the Disbursement Allocation Plan (DAP) controversy.  Three complaints, one filed by Oliver Lozano, another filed by Buboy Syjuco and another filed by Neri Colmenares.  The impeachment complaint was unsurprisingly thrown out in September of that year by the highly sympathetic House of Representatives.  Had the impeachment succeeded in gaining traction, the impeachment may very well have prevented the tragedy that was to become Dengvaxia.  Worse may have been that the failure of the impeachment may have further emboldened Aquino, who, unsurprisingly, used the same DAP playbook in raising the funds for Dengvaxia.

(A news report from that time)

Some have argued that the same would have been a waste of time, as it was already the twilight of Benigno Aquino III’s administration.  We could weather whatever incompetence and “Noynoying” that was about to come right?  Political stability was the more important concern back then.


Let us mull the irony of this argument for a moment.


Of course, one shouldn’t impeach an official on the basis of preventing something he/she might do just as much as one shouldn’t withhold impeachment on the argument that his/her term is about to end.  We punish an official on the basis of what he/she has done and not on the basis of damage potential.


To Impeach or not to Impeach

The takeaway is this:  It is never too late in the day to impeach an official.  Once that person has committed an impeachable offense, it is time to let him go, regardless of the damage he might or might not do.



Wednesday, November 15, 2017

POSITIVE AFFIRMATION: MAHINDRA CARS RECEIVE PRAISE FROM DUTERTE

I have been outspoken in my defense and praise of Indian automobiles.  Several articles on this blog have praised the Indian companies Tata and Mahindra. I have claimed that Indian cars are a very good fit for Philippine roads.  Specifically, I wrote:

On toughness and durability, Indian roads are some of the worst in the world.  I bet their traffic is horrible, the roads are in disrepair.  Their cars have to face extremes of heat and cold, they have to be able to climb steep mountain passes and navigate a maze of urban slums.  An Indian car has to be tough to go through that and simple--you can fix it "with a brick and a piece of string" and a hammer.


x x x

Furthermore, China does not really use diesel engines in their cars (trucks like the Foton Blizzard and the JBC are exceptions), but the Indians love diesel…”


When a PNP acquisition of Mahindra Patrol Cars came under fire from Senator Grace Poe back in 2014 for supposedly being overpriced and anomalous, I immediately jumped to their defense saying:

[T]he major concern with people is that Mahindra is an untested brand.  It has no track record in the Philippines and that it is likely to cost longer in the long run.

There is fear that a Mahindra would not last in PNP service. I beg to differ. Mahindra has been making military vehicles for a long time. The Indians have been using Mahindras for the police … they should be ideal cars for our PNP.”


0429Mahindra2


So now, during this week’s ASEAN and related Summits, we finally have affirmation from the President himself.  Earlier this week, November 13, 2017, he met with the Indian Prime Minister Narendra Modi and he allegedly told him:

The (Philippine) National Police is using Mahindra. It's one that's being used and there are a lot of them. I think there are almost 1,000 new (vehicles) and it's good. It's being used now. They are outside, they are guarding this place”

President Duterte and Indian Prime Minister Narendra Modi (source:  Rappler)

So I now feel fully vindicated in my defense of this brand.  Not only are the PNP satisfied with the longevity of these vehicles, some of which have been continuously on the road since 2014, but whose reliability has caught the attention of the President himself and had done its job of guarding foreign dignitaries attending the ASEAN and related summits without incident.


So the question remains:  Will this finally cement the reputation of Mahindra as a reputable brand of tough and rugged vehicles? That remains to be seen.

Friday, June 16, 2017

TOWARDS A PROPER CHARACTERIZATION OF ALIBI: PHILIPPINE VERSUS AMERICAN EXPERIENCE

Introduction

In criminal law, the accused is armed with a vast array of defenses, both in substantive law, as well as in procedural law. In a criminal case, courts will consider all the facts, circumstances and the defenses raised by the accused and will only promulgate a judgement of conviction if it finds that an accused is guilty beyond reasonable doubt of the crime charged.[1] What if, however, the only defense an accused has available to him is Alibi, how must the court consider his defense? What are the procedural means which must be followed when making use of this defense?

Sadly, the law currently views alibi rather simplistically as the “weakest defense.”[2] Jurisprudence has been very consistent with this, as it has ruled in case after case that: “alibi is an inherently weak defense because it is easy to fabricate and highly unreliable.” [3]

In terms of procedure, no rules currently exist for its appreciation with the exception of the above pronouncements in case law.[4] In the Philippines, alibi is not considered a positive defense, neither is it considered rebuttal evidence. This characterization will have significant implications as to the appreciation of alibi during trial, and which may prejudice an otherwise innocent accused who chooses to raise this defense.

In contrast, alibi in the United States is appreciated very differently from the Philippines. There is a proper procedure for the raising of this specific defense. Furthermore, US courts characterize alibi as more or less a “complete defense.”

In this study, the author will look at the history of the alibi defense in the Philippines, and show the evolution of the defense, or lack thereof. This will be followed by a discussion of how the alibi defense is characterized in the Philippines and America. Lastly, he will discuss American procedure when raising the alibi defense and how juries are instructed to appreciate an alibi with a view to how the Supreme Court or the Legislature may be able to amend the rules on alibi in the future.

History of Alibi in the Philippines

According to the research of Bautista,[5] the first criminal case in which the alibi defense was ever raised in the Philippines was U.S. vs. Cardona,[6] however, in that case, the Supreme Court found that defense “unimportant” because the location of defendant on the date the crime allegedly occurred was not a “material ingredient” for the offense.[7] However, since this first case, the alibi in jurisprudence developed.

It was in U.S. vs. Mabanag[8] where the Supreme Court first explained the doctrine that alibi cannot prevail over positive testimony. Specifically, the Supreme Court said: “The evidence produced by the defendant to prove an alibi is not sufficient to overcome the positive testimony of two persons who identified him as the author of the assault in question.” A few months later, in U.S. vs. Santiago, the court expounded on the weakness of the alibi defense namely that: “having regard to the facility with which such a defense may be fabricated, we cannot attach to the evidence sufficient weight to bring into doubt the positive and in all respects satisfactory evidence of the prosecution connecting the defendants with the crime.”[9] Furthermore, as to evidentiary weight, the Court has also held that the defense of alibi should not be given credence if the corroboration comes from close relatives or friends of the accused and not from disinterested persons. In People v. Sumalinog, the court very specifically explained that kinship or closeness does not automatically discredit a witness, however “if that witness testifies to support the specific defense of alibi, courts view his testimony with skepticism.”[10] The Court explained very early on that this is due to the fact that alibi is very easily fabricated and that it is very easy for the accused to have close friends or relatives corroborate his story.[11] Since these early decisions, Philippine Courts have more or less appreciated the alibi the same way.

In 2010, the case of Lejano vs. People[12] was decided. This case was about the sensational Vizconde massacre wherein Hubert Webb, a “scion of a rich, influential, and politically powerful family,[13]” was accused of having committed the gruesome crime. Among other defenses, Webb raised the defense of alibi, claiming that he was in America at the time the massacre occurred. In support of this claim, he presented witness as well as object and documentary evidence such as his travel preparations, his despedida party, his immigration checks and he gave details of his sojourn and purchases made in the US.[14] In spite of this evidence, the lower courts held that the alibi defense is weak and would not prevail over the positive identification of the prosecution’s star witness, the police asset, Jessica Alfaro.[15] The Supreme Court however, thought differently and exonerated Webb based on the evidence he presented.

The success of the alibi defense in Lejano hinged on the fact that the witness who gave positive testimony of Hubert Webb as being one of the authors of the massacre was not credible because of her history as a police asset and as a “stool pigeon” who only came forward 4 years after the massacre,[16] as well as the strength of Webb’s documentary evidence to prove that he was out of the country. However, while Lejano threatened to buck the prevailing doctrine of the alibi defense, the result nevertheless seems disappointing because the court did not take the opportunity to “judicially legislate” procedural rules for alibi defenses, in spite of a good opportunity to do so. However, the court did take the opportunity to remind the lower courts to:

[N]ot all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the face of a witness positively swearing, “I saw him do it.”? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet?

There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, “He did it!” without blinking an eye.[17]

The Supreme Court further declared that the quantum of evidence required by the lower courts in order to prove the element of physical impossibility of being at the crime scene in the Lejano case is so high, such that the only acceptable alibi in the Philippines would be the passage of the accused “into the next life,” and because of this, the Court “must abandon this unjust and inhuman paradigm.”[18] However, several years after this pronouncement, meaningful change in the jurisprudence or procedure has yet to occur because the prevailing doctrine remains that alibi is the weakest defense.

How Alibi is Characterized in the Philippines

Although alibi is a very common defense in Philippine courts, it is confounding to note that no provision exists in our Rules of Court that deals with this defense, criteria is limited to jurisprudence,[19] and apparently, no doctrine is more jurisprudentially settled in the Philippines than that alibi is “the weakest defense,”[20] or variations of this theme, such as alibi being “inherently weak,” and which must be “brushed aside” when the prosecution has sufficiently and positively ascertained the identity of the accused.[21]

The author believes that part of the problem has to do with the fact that the prosecution and the Courts have no guidance with respect to procedure, as well as how to appreciate the defense. In the first case, alibi is considered a mere “negative defense.”[22] Compounding the problem, aside from being defined as a defense, alibi is also defined as a form of “evidence,”[23] and is thus also considered a factual issue with its own weight and sufficiency of proof.[24] In some early cases, the court held that it should be proven by probable evidence,[25] while in many later cases, it was held that it should be proven by positive, clear and convincing evidence.[26]

In making an alibi defense, an accused more or less admits that a crime has taken place, however, the accused was simply too far away from the scene of the crime that he could not have committed it.[27] The fact that an accused admits the act or omission charged, makes alibi partake of the characteristics of an affirmative defense. However, raising this defense does not have the effect of reversing trial as provided for in Section 11, Rule 119 which provides that the Prosecution shall be the first to present evidence to prove the charge, followed by the accused who shall present evidence on his defense, except when: “When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified.”[28]

As mentioned, instead of treating alibi as an affirmative defense, the courts instead treat it as a negative defense, that is, the accused is merely allowed to deny the State’s claim. A desirable side-effect of this characterization is that if an accused’s alibi defense does not convince the court of his innocence, the failure of the defense alone will not convict the accused.[29]

How Alibi is Characterized in the United States

In stark contrast to Philippine jurisprudential rules on alibi, American jurisprudence has been much more accommodating on accused interposing this defense. US courts have declared that alibi, “if established, constitutes a complete, legitimate, and effective defense and precludes the possibility of guilt.[30]

The question thus arises if whether or not alibi may be considered an affirmative defense in the US. In the United States, as in the Philippines, there is no definite pronouncement as to whether alibi is an affirmative defense or not as some American authorities consider alibi as merely a “rebuttal” defense while others consider it an affirmative defense which the accused has the burden of establishing.[31] Since it is neither an affirmative or rebuttal defense, alibi should simply be characterized as a “complete and direct denial of the state’s case,”[32] the distinction being that that an affirmative defense admits the act charged but seeks to justify the act or exempt or mitigate liability, while an alibi defense essentially denies that the accused committed the act charged.[33] In the U.S., evidence to prove an alibi is not regarded as an attempt to prove an independent, affirmative defense. The prosecution still has the burden of proving the accused’s presence beyond a reasonable doubt, and the accused may, by any legitimate evidence, rebut or disprove this essential factor in the case for the prosecution.[34]

Jury Instructions

In the U.S., criminal cases are tried before juries, hence Judges are tasked with giving instructions to juries as to the “burden of proof” required of the prosecution and of the accused as to their respective defenses. With regards to alibi however, Judges would often omit the phrase “burden of proof” as to the existence of an alibi.[35] And instead of focusing the attention of the jury on the question whether the alibi has been proved the Court instead regards evidence to prove an alibi in the same light as any other evidence tending to disprove guilt or to disprove the case for the prosecution, with the cumulative effect of producing reasonable doubt on the entire case, which may lead to an acquittal.[36] Indeed, it has been held that jury instructions which indicate or even suggest that the accused satisfy a higher degree of proof in establishing an alibi are improper,[37] as is an instruction where the jury may infer guilt from its disbelief of the accused’s alibi.[38] This is in stark contrast with the Philippine treatment of the defense which requires the defense to prove the alibi by clear and convincing evidence.[39]

Notice Requirement

Before an alibi defense reaches the trial stage however, some States, and Courts at the Federal level,[40] would require that the accused give notice to the prosecution of their intention to rely on an alibi defense and to specify the place where the accused claims to have been when the crime was committed and the witnesses on whose testimony they will rely on in establishing the defense.[41] Non-compliance with this requirement may bar the alibi.[42] The purpose of this notice, in view of the ease of fabricating an alibi, is to prevent last-minute surprises on the prosecution and to enable it to make a full and thorough investigation of the merits of the defense.[43]

Conclusion

The bias against the alibi defense in the Philippines is very strong. More than one hundred years of jurisprudence stating that alibi is the weakest defense, easy to fabricate and can never prevail against prevail against positive identification of the accused can potentially cause injustice against those falsely accused, but who chose to raise alibi as a defense. Part of the reason for this is the lack of procedural rules which Courts must follow when an accused raises an alibi, as well as an inherent bias and dependence on a presumption that alibi was raised for self-serving purposes. The Philippine Supreme Court and the Legislature should probably look to how their American counterparts treat the alibi defense. In contrast to Philippine rules, American jurisprudence has a much higher regard for this defense and provide proper procedural guidance for their prosecutors and their Courts both before and after a trial. Their requirement that an alibi defense must be raised at the earliest possible moment likewise confers credibility to the defense, as does the “relaxed” burden of proof requirement for proving an alibi which is more consistent with the idea that an alibi constitutes a complete, legitimate and effective defense.


[1] Rev. Rules on Evidence, Rule 133, sec. 2

[2] Modesto A. Ticman, Jr., Updates in Criminal Law, 4 (2016)

[3] People vs. Veloso, 690 SCRA 586 (2013); People vs. Banzuela, 712 SCRA 735 (2013);

[4] Rodolfo Pompeyo Cabrillas, Annotation, The Theory of Alibi, 54 SCRA 369 (1973).

[5] Melissa A. Bautista, Buying the Alibi: Challenging the Jurisprudential Doctrine that Alibi is the Weakest Defense, Unpublished Thesis, Ateneo de Manila Law School (2010)

[6] 1 Phil. 381 (1902)

[7] Ibid p. 383

[8] 1 Phil. 441 (1902), p. 442

[9] U.S. vs. Santiago, 1 Phil 545 (1902), p. 547

[10] People vs. Sumalinong, G.R. No. 128387, February 5, 2004, 422 SCRA 55 (2004)

[11] U.S. vs. De Jesus, 2 Phil. 514 (1902), p. 525

[12] 638 SCRA 104, G.R. No. 176389, December 14, 2010

[13] Ibid p. 248

[14] Ibid pp. 145-149

[15] Ibid p. 149

[16] Ibid p. 133

[17] Ibid p. 149-150

[18] Ibid p. 152

[19] Supra, Note 4.

[20] But see People vs. Sumalinong, Supra Note 10 p.63, where the Supreme Court stated that alibi is: “concededly the weakest defense.”

[21] People vs. Manigo, 714 SCRA 551; People vs. Las Piñas, 730 SCRA 571; People vs. Torres, G.R. No. 189850, September 22, 2014, 735 SCRA 687 (2014) ; People vs. Estonilo, G.R. No. 201565, October 13, 2014, 738 SCRA 204 (2014).

[22] Alicia Gonzales-Decano, Annotation, Denial and Alibi, 84 Phil Rep. Annot. 945, 951.

[23] Ibid p. 946

[24] People vs. Apa-ap, Jr. G.R. No. 110993, August 17, 1994, 235 SCRA 468 (1994); People vs. Sanchez, G.R. No. 121039-45, January 25, 1999, 302 SCRA 21

[25] U.S. vs. Oxiles 29 Phil. 587 (1915) 592 G.R. No. L-9999; February 23, 1915 , People vs. Cinco 67 Phil. 196 (1939) 199 G.R. No. L-46144; April 5, 1939, People vs. De Guzman 70 Phil. 23 (1940) 26 G.R. No. 47228; June 17, 1940,

[26] Supra Note 2 p. 5

[27] Supra Note 20 p.946

[28] 2000 Rev. Rules of Crim. Proc., Rule 119, sec. 11

[29] Supra Note 4 p.370

[30] 21 Am Jur 2d § 220

[31] 22A C.J.S. Criminal Law § 951

[32] Supra Note 30

[33] Ibid

[34] 29 ALR 1127

[35] Ibid

[36] Ibid

[37] 75A Am. Jur. 2d Trial § 1065

[38] Ibid

[39] Supra Note 2 at 5

[40] Federal Rules on Criminal Procedure, Rule 12.1(a)

[41] 21 Am Jur 2d § 223

[42] Ibid.

[43] 21 Am Jur § 224

Sunday, May 7, 2017

WILL DEMOCRACY LEAD TO DEVELOPMENT IN THE PHILIPPINES?

[Note: This is an essay I wrote for university around 2009 or 2010. This would explain the ancient sources. Nevertheless, I believe that the topic this deals with is timeless and that a resolution has not yet been achieved, and so, this is my take. I have edited this for clarity and grammar, and to address points which my professor wrote in the margins of the paper.]

The question of whether democracy leads to development or is it development that lead to democracy? Is a very contentious issue in development studies? Furthermore, given the direction of said causality. How will is this apply to Philippines government policy.

In order to better understand the whether democracy brings development or vice versa, I surveyed some studies and hoped to draw a definitive conclusion to the question of causality. However the results of this review of literature were inconclusive because of the great variation in the methods and results of development literature. It seems that the assertion that economic growth will lead to political development, and the reverse, that democratization will lead to economic growth are equally valid in light of empirical testing.

In recent years however, it seems tat the idea that democracy comes before development has become more dominant than the reverse especially now that the theory that authoritarianism is more conducive to democracy has been debunked.[1] However, I find it hard to ignore the Lipset Hypothesis—that Democratic countries can only exist at a certain level of development—because of its inherent “reasonableness,” and the fact that it is an empirical regularity.[2]

I believe, as former South Korean President Kim Dae-Jung suggests, that economic growth and democratization are “Two Wheels of a Cart,” referring to the fact that both mutually support each other, [3] and in the case of the Philippines, both development and democratization must be pursued together and not at the other’s expense.

Review of Literature

The first thing one needs to understand is what is meant by the words “democracy” and “development.” Democracy can be defined in the minimalist sense—by the mere presence of elections; or leaning towards a more liberal democratic type. In fact, Larry Diamond provides a list of the kinds of government according to the degree of democracy or freedom, namely in descending order of democratization: (1) Liberal-accountable; (2) Liberal-(partially) irresponsible; (3) Semi-liberal and; (5) Pseudodemocracies.[4] There is also the Gastill Index or more commonly known as the Index of Freedom from freedom house.[5] Development, on the other hand, would refer to economic development, as in a rise in income for members of society followed by a noticeable improvement in living standards. It could be argued, however, that the development that occurs should also be of a sustainable and holistic type.

Literature that focuses on the question of the causality between democracy and development usually takes the nature of Longitudinal and Cross-sectional analyses of countries. In other words, a set of countries is chosen and amongst themselves and try to quantitatively correlate the countries’ level of development (using development indices) with political system they have. The same system is used to test if development leads to democracy or vice versa.[6] Using the same type of studies, research yields differing results. Vanhanen surveyed several studies that seem to confirm the hypothesis that development promotes democracy. Alesina and Perotti seem to have come to the same conclusion with their survey of literature. In their survey, they have studies that seem to say that democracy more often than not has a positive effect on the economic development of a country although there are studies that show a negative correlation to growth.[7]

Gerring, Bond and Brandt criticized existing studies on the direction of the causality because existing literature “rests on a set of econometric findings in which democracy is treated as a more or less immediate cause.”[8] The problem with this is that current literature neglects the importance of a country’s history in the success or failure of its democracy in bringing development.[9] The finding of their study is that democracy has a positive relationship when taken as a stock variable and not as a contemporary variable. One implication of this study therefore is the fact that the relationship between democracy and economic growth is of a non-linear nature.

In the context of this essay these literature points to three things: First, one can now see that democracy and development are not nominal terms, they have nuances, the Philippines for example is considered by most people as democratic, however, according to Larry Diamond’s categorization, the Philippines is only in the “semi-liberal” scale; secondly, one can see that development does not promote democracy and democracy does not promote development; and third, that the relationship between democracy and development is non linear (and the reverse as well, by implication) and that the fairer methodology would be to conduct country case studies.

Which Comes First?

It is either that development is conducive to democratization because of the Lipset Hypothesis that states that when people have achieved a certain level of economic and physical security will they start participating in political activity; or that democratization is conducive to development since it promotes civil and economic liberties and “human development.”[10] Thus, once can see that democracy does not contribute to growth directly, rather, it targets the source of development which is the people. Ultimately, it is in seeking both democracy and development simultaneously that one gets both.

Another argument that democracy and development should go together is the fact that survival rates of democracies increase as national incomes rise, this has been empirically proven. For example, when per capita income (in Purchasing Power Parity or PPP) is at $1,000, the democracy is expected to last about eight years. Between $2,001and $3,000, life expectancy is 26 years. Above $6,000 democracy is “immortal.”[11] Distribution of income is also very important in a democracy for the equity of distribution will affect how fast the economy grows.[12] Definitely, a democracy would need to find ways to make money or redistribute wealth efficient and equitably if it is too survive.

This may lead one to the idea that democracy promotes development indirectly: Democracy promotes development by enhancing social participation and by promoting an environment of freedom. Democracy is a system that promotes social justice, as seen in the powerful assertion of Amartya Sen that famines do not occur in true democracies.[13] Thus, a democracy ideally should allow its citizens freedom to participate in the market, as well as freedom from want of basic goods and insecurity, all of which are conducive to growth.

There is also the theory that states that when a country changes its political system after a long period of authoritarianism, there will be growth that occurs thanks to wealth redistribution and a freer and less corrupt business environment that will likely promote foreign investment in the country.[14] To an extent, this is in line with the idea guiding the Asian Development Bank’s Doing Business Indicators which study government regulations that affect how business will work in a certain country.[15]

So it seems that democracy and development support each other mutually, or like the proverbial “two wheels of a cart.” In fact, democracy and development will become more sustainable theoretically, if policies promoting both are simultaneously pursued.[16]

Development and Democracy in the Philippines

It seems that what the Philippines lacks is democracy. More specifically, this would mean that the feature of a liberal democracy, “good governance” can be improved. What governance means, in this case, pertains no only to the government, but entails the bringing together of different sectors (government, civil society, business sector, etc.) in order to achieve certain goals or development in this context. It is in this context that improving governance would necessarily include improving Philippine standing on the democracy scales.

According to the 2005 Asian Development Bank (ADB) Report on the Philippines, good governance would entail improving on the (1) accountability of officials; (2) participation of other sectors; (3) Predictability especially in the implementation of laws and (4) transparency of government.[17] Improving accountability and transparency is believed to reduce corruption and thereby improving the investment climate.[18] Participation is said to mitigate the “agency problem” or the inability of governments to implement their policies.[19] Predictability applies more specifically to the consistent application of laws. This is said to lower risks for businessmen since it makes the business atmosphere more “calculable” which is a prerequisite to taking risks.[20] Currently, politics and business in the Philippines are characterized by a lack of these basic elements of good governance. There is not much accountability as seen in the rampant corruption in the Philippines, corruption so blatant and widespread, this needs no citation. Participation from other sectors of society also seems weak as there are not many constitutional means to affect public policy—that Filipinos would often take to the streets to be heard is hardly a desirable means of participation; the barriers of getting an elective position are also prohibitively high; and that appointment to public office depends more on who a person knows than what he knows. Transparency of government is not upheld to the level that it should, as the number of journalists “killed” attests to this. Far from being predictable in terms of the consistency of the law’s application, the general sentiment appears that laws are being applied arbitrarily in the Philippines—that the law will be applied according to the ability to pay. More importantly, this “arbitrariness” is not conducive to business, a sector which would much rather prefer a “calculable” legal environment, thus hurting the country’s ability to develop capital and productive capacity, ultimately hurting the country’s ability to develop economically.[21] There are many more defects of Philippine governance worth noting, however, these four areas should already make enough of a case to say that the government should try to go higher up in the freedom scales.

In order to develop Philippine governance, particularly in the area of “participation,” the Philippines would have to raise a lot of its people from poverty—these people would have to be given the necessary material security in order for the Lipset Hypothesis to take place, thus, at least in the area of mass participation in governance, will development necessarily have to precede democratization. This has to be done while at the same time promoting democratization in other areas of government.

Conclusion

What the Philippines needs is neither development nor democracy alone, but both together. Government has to do its part to uplift the lives of its citizens in order to get them to participate in governance. The country needs good governance in order to make the country more “democratic” and thus presenting a better atmosphere for business. However, in order to uplift the lives of its poorer citizens, what is needed is a liberal democratic government as it intrinsically cares about enhancing opportunities for its citizens.

Thus, one can see that both development and democracy are mutually supporting. The development outcomes would also be much more sustainable and equitable if both development and democratization programs are applied, or more concretely, pursue democratization with a focus on where is counts for the most, in the business sectors.


[1] Halperin, M., J. Siegle & Weinstein. The Democracy Advantage: How Democracies Promote Prosperity and Peace. (New York: Routledge, 2005), p. 9.

[2] Barro, R. Determinants of Democracy. (Harvard University). P. 21.

[3] Dae-Jung, K. “Democracy and the Market Economy: Two Wheels of a Cart.” Democracy, Market Economics and Development: An Asian Perspective (Washington DC: World Bank, 2001). P. 1.

[4] Diamond, L. “Moving up out of poverty: What Does Democracy Have to Do With It?World Bank Workshop (Washington DC: World Bank, 2003). P. 21-22.

[5] Supra Note 2 P. 1.

[6] Vanhanen, T. Prospects of Democracy. (Routledge, 1997). P. 4.

[7] Alesina, A. & Perotti, R. “The Political Economy of Growth: A Critical Survey of Recent Literature.” The World Bank Economic Review (September, 1994). P. 353.

[8] Gerring, J., P. Bond, & W. Brandt. Democracy and Economic Growth: A Historical Perspective. (Unpublished Research Paper, 2004). P. 4.

[9] Ibid. P. 2.

[10] Supra Note 7 P. 354

[11] Pei, M. “Political Institutions, Democracy and Development.” Democracy, Market Economics and Development: An Asian Perspective (Washington DC: World Bank, 2001). P. 27.

[12] Supra Note 7 P. 364

[13] Sen, A. “Democracy and Social Justice” Democracy, Market Economics and Development: An Asian Perspective (Washington DC: World Bank, 2001). P. 13.
In his argument, Sen cited the example of India as not having suffered a famine since it gained its independence.

[14] Supra note 2, Abstract

[15] World Bank. Doing Business 2008: Philippines (Washington DC: World Bank) P. 1.

[16] Supra note 3

[17] Asian Development Bank. ADB Country Governance Assessment: Philippines. (Asian Development Bank, 2005) p 2.

[18] Iqbal, F & J. Il-You. Democracy, Market Economics and Development: An Asian Perspective Ibid. p 35.

[19] Ibid P. XIII

[20] Hutchcroft, P. Booty Capitalis,: The Politics of Banking in the Philippines (Ithaca NY: Cornell University Press, 1988). P 32-33.

[21] Ibid. p. 35