from AHRC Network
to attylaserna@gmail.com
date Fri, Oct 22, 2010 at 12:11 PM
subject PHILIPPINES: Ongoing institutional persecution of a law school faculty
mailed-by www.humanrights.asia
FOR PUBLICATION
AHRC-ETC-034-2010
October 22, 2010
An article by Professor Diane Desierto of the University of the
Philippines published by the Asian Human Rights Commission
PHILIPPINES: Ongoing institutional persecution of a law school
faculty
Dear friends and fellow legal scholars,
I apologize for this long note, but I thought I should set the record
straight on the maelstrom of ongoing institutional persecution against
the UP Law Faculty, where I serve as a faculty member. Several hours
ago, a majority at the Philippine Supreme Court issued an
unprecedented contempt order for the "Statement of the Faculty of the
UP College of Law", naming 37 out of 81 faculty members (including
five present and former deans, a retired Justice of the Supreme Court
now back in the faculty, among other senior academics and junior
faculty members) whose physical signatures appeared in the Statement.
Many faculty members support this Statement, but, as is customary, did
not need to physically sign the Statement so long as we signified our
support over email. For this reason, many of us understand the
contempt order to eventually extend to all 81 members of the UP
College of Law. All our bar licenses, without which we cannot teach,
work, or practice as lawyers, are now at stake.
Let me narrate the brief factual background of this case:
1. On April 28, 2010, the Philippine Supreme Court issued its
decision in Isabelita Vinuya et al. v. Executive Secretary et al.
(full text of this decision available at:
http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm
). This case involved a certiorari petition of most remaining
Filipina survivors of the "comfort women system" during World War II,
asking the Court to compel the Executive Branch to exercise its
constitutional duties and international obligations, in order to
ensure these Filipina survivors' their rights to redress. I wrote this
petition as a law student of UP Law in 2004 along with UP Law
Professor Harry Roque, theorizing then that our broadly universalist
1987 Philippine Constitution imposed unique constitutional duties on
the Philippine President to observe our international legal
obligations, including the right to redress for war crimes, mass
rapes, and sexual slavery. Professor Roque and I published our
analysis and theory of the petition in 2006, in the Journal of
International Law of Peace and Armed Conflict. (full text of this
available at:
http://www.ruhr-uni-bochum.de/ifhv/documents/huvi/huv_2006/3_2006.pdf
Relevant pages are pp. 91-98).
2. The Vinuya decision denied the petition. Professor Roque filed an
initial Motion for Reconsideration, subject to the submission of a
more extended Supplemental Motion for Reconsideration (Supplemental
MR) under the Philippine Rules of Court. Professor Roque and his
colleague, Attorney Romel Bagares, closely coordinated with me in the
preparation of the Supplemental MR . After we discussed the legal
arguments, I requested Attorney Bagares to recheck all sources cited
in the Vinuya decision, as is customary for us in preparing appellate
pleadings. Several days later, Attorney Bagares and Professor Roque
discovered that many significant portions of the Vinuya decision
appeared to have been lifted without attribution from the works of
International Law authors (Professor Evan Criddle and Professor Evan
Fox-descent’s 2009 Article in the Yale Journal of International Law,
titled "A Fiduciary Theory of Jus Cogens"; the book of Dr. Christian
Tams, titled Enforcing Erga Omnes Obligations in International Law,
published by Cambridge University Press; and an article by Mark Ellis,
Executive Director of the International Bar Association, in the 2006
volume of Case Western Journal of International Law, entitled
"Breaking the Silence: On Rape as an International Crime"). What was
worse than the lifting without attribution of these sources was that
the Vinuya Decision completely twisted what the authors said in their
works. Professor Roque and Attorney Bagares decided to file the
Supplemental MR inviting the Philippine Supreme Court’s attention to
this grave matter, showing that the misrepresentation of these works
erroneously laid the foundation for the Court’s decision to deny the
petition. The Supplemental MR also included the rest of the arguments
of the petition. The full text of the Supplemental MR can be found
here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
3. All International Law professors/authors came forward with their
separate complaints to the Philippine Supreme Court regarding the
misuse of their works. Unfortunately, FB doesn't have an attachment
function yet, so I will repost in a separate note the letters of Dr.
Christian Tams, Mark Ellis to the Philippine Supreme Court. Professor
Evan Criddle posted his complaint on Opinio Juris at this link:
http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/
a) Professor Criddle told Opinio Juris: "Speaking for myself, the
most troubling aspect of the court's jus cogens discussion is that it
implies that the prohibitions against crimes against humanity, sexual
slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite."
b) Dr. Tams' letter said: "The relevant passage of the judgment is to
be found on p. 30 of your Court's Judgment, in the section addressing
the concept of obligations erga omnes. As the table annexed to this
letter shows, the relevant sentences were taken almost word by word
from the introductory chapter of my book Enforcing Obligations Erga
Omnes in International Law (Cambridge University Press 2005). I note
that there is a generic reference to my work in footnote 69 of the
Judgment, but as this is in relation to a citation from another author
(Bruno Simma) rather than with respect to the substantive passages
reproduced in the Judgment, I do not think it can be considered an
appropriate form of referencing. I am particularly concerned that my
work should have been used to support the Judgment’s cautious
approach to the erga omnes concept. In fact, a most cursory reading
shows that my book’s central thesis is precisely the opposite:
namely that the erga omnes concept has been widely accepted and has a
firm place in contemporary international law....With due respect to
your Honourable Court, I am at a loss to see how my work should have
been cited to support -- as it seemingly has -- the opposite approach.
More generally, I am concerned at the way in which your Honourable
Court’s judgment has drawn on scholarly work without properly
acknowledging it."
c) Mr. Ellis' letter said: "My attention was called to the Judgment
and the issue of possible plagiarism by the Philippine Chapter of the
Southeast Asia Media Legal Defence Initiative (SEAMLDI), an affiliate
of the London based Media Legal Defence Initiative (MLDI) where I sit
as a trustee. In particular, I am concerned about a large part of the
extensive discussion in footnote 65, pp. 27-28, of the Judgment of
your esteemed Court. I am also concerned that your esteemed Court may
have misread the arguments I made in the article and employed them for
cross purposes. This would be ironic since the article was written
precisely to argue for the appropriate legal remedy for victims of war
crimes, genocide, and crimes against humanity."
4. When Philippine national media carried these complaints, the
Philippine Supreme Court did not appear disposed to take them
seriously. The Court Spokesperson/Court Administrator, Midas Marquez,
stated that the "You can't expect all justices of the Supreme Court to
be familiar with these law journals.
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100721-282283/High-court-not-probing-plagiarism
5. In light of the apparent plagiarism and twisting of the works in
the text of the Vinuya Decision and the Court’s predispositions, the
UP Law Faculty issued a Statement asking the Court to take
responsibility and to provide guidance to the Philippine bench and
bar. The UP Law Faculty, headed by the present Dean Marvic M.V.F.
Leonen and other law deans, expressed alarm at how the works were
misused to deny a key petition of comfort women survivors, and asked
the ponente of the Vinuya Decision, Justice Mariano del Castillo to
voluntarily resign from the Court. The full text of the UP Law Faculty
Statement can be found here:
http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/
6. On Friday, October 15, 2010, a majority of ten members of the
Philippine Supreme Court issued a resolution denying that Justice del
Castillo had committed plagiarism and misuse of plagiarized works,
holding that Justice del Castillo’s clerk/court researcher
accidentally deleted the attributions, which could not have been
detected since "the Microsoft word program does not have a function
that raises an alarm when original materials are cut up or pruned."
The full text of the decision can be found here:
http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.htm
7. The newest member of the Court, Justice Lourdes Aranal-Sereno,
strongly dissented along with (Justice Conchita Carpio-Morales) from
the Court’s findings and showed why plagiarism and misrepresentation
was committed not just through deletions of attributions, but due to
the deliberate inclusion of phrases that tried to convey the opposite
of what the authors' works said. Saying that the court will be
remembered for saying Del Castillo did not commit plagiarism because
there was "no malicious intent" to pass off someone else's works as
his own, Justice Sereno added that the ruling of the court's majority
has caused "unimaginable problems" for the Philippine academe. She
explained decisions on future cases of plagiarism committed by
students will be based on the court's ruling that malicious intent
must be present to constitute plagiarism. "Unless reconsidered, this
Court would unfortunately be remembered as the Court that made
'malicious intent' an indispensable element of plagiarism and that
made computer-keying errors an exculpatory fact in charges of
plagiarism, without clarifying whether its ruling applies only to
situations of judicial decision-making or to other written
intellectual activity," said Sereno. "It will also weaken this
Court’s disciplinary authority -- the essence of which proceeds from
its moral authority -- over the bench and bar. In a real sense, this
Court has rendered tenuous its ability to positively educate and
influence the future of intellectual and academic discourse," she
added. The full text of the Sereno dissent can be found here:
http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm
8. On Monday, October 18, 2010, various Philippine national media
carried the news that the Philippine Supreme Court had deliberated and
decided to hold the UP Law Faculty in contempt for its Statement. See
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20101020-298693/UP-Law-faces-sanction-over-SC-plagiarism-case
and
http://www.gmanews.tv/story/203873/up-law-risks-sanctions-for-statements-on-plagiarism-mess
, among others.
9. Copies of the Court’s seven-page Order were finally seen several
hours ago. As will be seen from the full text of the Order and the
dissenting opinions (I will repost this file in a separate note), the
Court majority made the unprecedented move of holding the UP Law
Faculty in contempt, until they can show why they do not merit
contempt. Three justices of the Court noted this prejudgment in their
dissents:
CARPIO-MORALES, j., dissenting:
"The Resolution demonstrates nothing but an abrasive flexing of the
judicial muscle that could hardly be characterized as judicious. This
knee-jerk response from the Court stares back at its own face, since
this judicial act is one that is "totally unnecessary, uncalled for
and a rash act of misplaced vigilance.
xxx
The adverse declarations describing the written work of the UP law
faculty operate to their prejudice since that would render any
subsequent proceeding illusory, because the Court, which would
ultimately decide the administrative case, has already made up its
mind before hearing the parties.
Worse, the Resolution is not what it purports to be. Ostensibly, the
Resolution is a show cause order that initiates what would merely
become a newly docketed regular administrative matter. There is more
than meets the eye, however. When stripped of its apparent complexion,
the Resolution shows its true colors and presents itself as a
pronouncement of guilt of indirect contempt, without proper recourse
left to the parties.
xxx
Unless the Court intends to busy itself into consistently engaging in
a judicial witch hunt against its detractors, it is more in keeping
with the Court's dignity not to dignify each and every write-up that
is taken to vilify it, and console itself with the number of
testimonials, written or living that vilify the judiciary.
Although as a human being, a person naturally gets pissed off by
hurtful words, it would not hurt the Court as an institution and the
law as a profession if it passes off the statement of the UP law
faculty at this time."
SERENO, j., dissenting.
"Ordering the 37 respondent members of the UP law faculty to "show
cause" in this indirect contempt case is like ordering the little boy
who exclaimed that "the emperor has no clothes" to explain why he
should be crucified for his public observation. It is true that the
little boy may have aggravated the situation by adding that the
unclothed emperor did not present a flattering figure in his natural
state, but the analogy remains true -- that the subject UP law faculty
members have been prematurely adjudged guilty and asked to explain why
such prejudgment should be reversed simply for expressing what they
believed was the truth.
xxx
What is so grievous about this whole contempt proceeding is that it
comes in the wake of the gross injury that the Court has inflicted
upon the virtue of honesty in learned discourses by labeling
plagiarism as not plagiarism in the related case involving one of its
members.
With all due respect to my colleagues, it is not the place of the
Court to seek revenge against those who, in their wish to see reform
in the judiciary, have the courage to say what is wrong with it. The
Court finds its legitimacy in demonstrating its moral vein case after
case, not in flaunting its judicial brawn. There is nothing to be
gained for the administration of justice in not letting his one
instance pass just because feelings have been hurt and the urge to
retaliate must be satisfied.
If the 37 members of the UP law faculty are wrong, there will be
recompense in their loss of esteem among the academic community and
the legal profession. But if they are right, then the Court will have
made martyrs out of those who -- in their temporary passion -- may
have acted recklessly, but truthfully and sincerely. Indeed, should
they be proven right they may even rise in the esteem in the eyes of
the international academic and legal circles, for being the object of
prosecution by one's Supreme Court for bold but intelligent reformist
language can be deemed a badge of honor similar to that bequeathed by
history to the great thinkers who were persecuted by society's
forces."
In view of the blatant institutional persecution now being committed
against the UP Law Faculty -- who discharged their duties in good
faith as public servants, law professors, and officers of the Court in
asking the Court to take responsibility for the apparent plagiarism
and misrepresentation that tainted the Vinuya decision -- I urgently
plead for the help of fellow legal scholars and academics to write --
either public statements, or letters to their embassies in Manila
regarding this matter. As the dissenting Justices have disclosed, the
Supreme Court majority has already prejudged this matter, and that
same majority will prevail in imposing sanctions (from disbarment, to
suspension of bar licenses, fines, imprisonment) on the UP Law
Faculty. We cannot realistically expect a fair hearing anymore when
the majority acts as both the supposed “injured” party and our
judge at the same time. We acted in good faith, conscious of our
duties as lawyers and legal scholars, to ensure the preservation of
integrity in our jurisprudence -- we could not anticipate then, nor
would we have accepted now as law professors and members of the
Philippine legal academia, the Supreme Court majority’s defense that
Microsoft Word was responsible for failing to detect the plagiarism
and misrepresentation. The objective fact of plagiarism and
misrepresentation are glaring from the text of Vinuya, as confirmed by
the international law professors whose works were used, and as
confirmed by the extensive dissent of Justice Sereno. Most
importantly, we acted from our sense of justice and duty as lawyers to
promote the rule of law, on behalf of those comfort women survivors
whose petition was denied through a decision-making process that
apparently relied on plagiarized and misrepresented works of
international law authors.
Our only hope now is for reason from the rest of the world to prevail
against this institutional persecution -- the glaring and ongoing
threats to our constitutional and international rights to freedom of
expression and academic freedom. While it appears that only 37 of the
81 faculty members signed the UP Law Faculty Statement, the Court
majority overlooked all the names sent in the original list by Dean
Marvic Leonen. It has been our practice to signify support for
statements electronically through email or discussions in our faculty
egroup, and for many of us abroad it was not necessary to physically
sign so long as we expressed our support for the statement to the
faculty egroup. We expect, therefore, that it will only be a matter of
time before the contempt order is extended to all of us. We will not
shirk from our part in having supported the UP Law Faculty Statement.
We fervently hope for your help in this fight against institutional
persecution. We have no recourse left.
Very truly yours,
Professor Diane A. Desierto
.............
The views shared in this article do not necessarily reflect those of
the AHRC, and the AHRC takes no responsibility for them.
# # #
About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984.
