In the hotly discussed case of “Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court.”, En Banc, A.M. No. 10-10-4- SC, Oct. 19, 2010”, the Supreme Court ordered the following UP Diliman law professors, i.e., Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, to SHOW CAUSE why they should not be disciplined as members of the Bar for violation of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
Further, the Court directed "UP Diliman Law Dean Marvic M.V.F. Leonen ...to SHOW CAUSE, within ten (10) days from receipt of this Resolution, why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting, through his letter dated August 10, 2010, during the pendency of G.R. No. 162230, Vinuya v. Executive Secretary and of the investigation before the Committee on Ethics and Ethical Standards, for the consideration of the Court En Banc, a dummy which is not a true and faithful reproduction of the purported statement, entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court.”
The facts as narrated by the Court are as follows:
“ x x x.
Allegations of this intellectual offense were hurled by Atty. Harry L. Roque, Jr. and Atty. Romel R. Bagares against Justice Mariano C. Del Castillo for his ponencia in the case of Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010. In said case, the Court denied the petition for certiorari filed by Filipino comfort women to compel certain officers of the executive department to espouse their claims for reparation and demand apology from the Japanese government for the abuses committed against them by the Japanese soldiers during World War II. Attys. Roque and Bagares represent the comfort women in Vinuya v. Executive Secretary, which is presently the subject of a motion for reconsideration.
The authors and their purportedly plagiarized articles are: (1) Evan J. Criddle and Evan Fox-Decent from their article, “A Fiduciary Theory of Jus Cogens” published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, “Enforcing Erga Omnes Obligations in International Law” published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, “Breaking the Silence: On Rape as an International Crime” published in the Case Western Reserve Journal of International Law in 2006. The allegations of plagiarism centered on Justice Del Castillo’s discussion of the principles of jus cogens and erga omnes.
On August 9, 2010, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty of the University of the Philippines College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Court’s decision in Vinuya v. Executive Secretary. Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic M.V.F. Leonen, calls for the resignation of Justice
Mariano C. Del Castillo in the face of allegations of plagiarism in his work.
Notably, while the statement was meant to reflect the educators’ opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillo’s explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. The authors also not only assumed that Justice Del Castillo committed plagiarism, they went further by directly accusing the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in Vinuya v. Executive Secretary. They further attempt to educate this Court on how to go about the review of the case.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. Paragraph 9 of their published statement reads,
But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By doing so, the Supreme Court added insult to injury by failing to actually exercise its “power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies (sic) [betrays] a more alarming lack of concern for even the most basic values of decency and respect. (Emphasis supplied).
The publication of a statement by the faculty of the UP College of Law regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is the ongoing investigation precisely to determine the truth of such allegations. More importantly, the motion for reconsideration of the decision alleged to contain plagiarized materials is still pending before the Court. We made it clear in the case of In re Kelly that any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable.
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.”
The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice. Their actions likewise constitute violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
X x x.”
The admin case is still pending as of now. The Philippine media is covering the case with full attention.
I am reproducing below the two dissenting opinions of lady Justices Sereno and Carpio-Morales.
DISSENTING OPINION
SERENO, J.:
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 not be crucified for his public observation. It is true that the little boy in the present case 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. There may have been exaggeration in the UP Law Faculty's process of expression, but this tempest is nothing that the Supreme Court has not similarly weathered in the past and faced with equanimity. 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 this 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 esteem in the eyes of 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 reactionary forces.
Indirect contempt is committed in any of the acts enumerated in Section 3, Rule 71 of the Rules of Court. The majority Resolution, which is the written charge required by said rule, fails to cite which particular mode of committing indirect contempt appears to have been violated. It is axiomatic to due process that the accused be informed specifically of the charge against them. A proceeding for indirect contempt is criminal in nature; thus, adherence to due process is more stringently required of this Court.
From a reading of the majority Resolution, it can be inferred that the following constitute the portions of the text of the UP Law Faculty Statement that draw the charge of indirect contempt: (a) the accusation that “an extraordinary act of injustice has been committed against the brave Filipinas who suffered abuse during a time of war”; (b) the casting of the decision as “a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land”; (c) the further attempt to educate the Court on how to go about the review of the case; (d) imputations of deliberately delaying the resolution of the Vinuya case; (e) the dismissal of the petition on the basis of “polluted sources”; (f) alleged indifference to the cause of petitioners; (g) the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. The majority Resolution believes that the UP Law Faculty's comments have no purpose other than to “discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court's honesty, integrity and competence in addressing the motion for its reconsideration.” (Emphasis supplied.)
Despite the description of what it considers the allegedly offending language of the Faculty Statement, the majority Resolution must still identify the specific paragraph of Section 3, Rule 71 of which the UP Law Faculty appears guilty and must not leave it to the reader to infer the basis of the complaint for indirect contempt.
Beyond the majority Resolution's failure to satisfy the technical requirements of Section 3, Rule 71 is the failure to see the purpose for vesting the Court with contempt powers. Contempt powers are given to and inhere in the judicial function because these are indispensable to the administration of justice. Thus, such powers must be exercised only when there is a causal relationship between the act sought to be reproved and the positive effect such reproof would have on the administration of justice. Sans this causal relationship, the exercise may be viewed as tinged with vindictiveness. It must be kept in mind that Rule 71 under Section 3 (c) and (d) is concerned with the “processes and proceedings of a court” and the “administration of justice,” not with the personal convenience of a judge.
This Court, as complaining party, must state plainly how its ability to view the motion for reconsideration of the Vinuya decision can be affected in any way by the UP Law Faculty's statement. It must also state plainly how its ability to enforce its future orders would be eroded by the release of the UP Law Faculty Statement. The milieu in which the Vinuya decision was received by the public is well-known. It is not as if any outrage at the Vinuya decision was caused by the UP Law Faculty Statement alone. It is also incredible how the Court can claim that its honesty, integrity and competence could be eroded by an extraneous act of any person other than itself. Either one is honest, has integrity, or is competent – or he is not. No one can undermine those qualities other than the one in whom they inhere.
Even more important to keep in mind is the apparently redemptive intent of the UP Law Faculty when it issued its statement. The statement is headlined by the phrase “Restoring Integrity.” In the second paragraph, the Faculty says: “Given the Court's recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction, as this would only further erode faith and confidence in the judicial system.” In the next paragraph, it says: “The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its members, is beyond reproach.” In the same paragraph, it further says: “It is also a very crucial step in ensuring the position of the Supreme Court as the final arbiter of all controversies: a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.”
These statements indicate the Faculty’s passionate desire to see the torch of justice carried with honor and dignity by the highest court of the land, its steps unfaltering from moral or professional weakness. Instead of denigrating the Court, the Faculty wants the Court to remain the champion of justice, but the Court can only remain so if it demonstrates beyond question that it remains faithful to the ideals of truth and justice in every form, including in the honesty with which it makes use of its reference materials. The UP Law Faculty has in fact not only suggested ways by which the Court can uphold this role vis-à-vis the Vinuya decision, suggestions that this Court may ignore – it has fearlessly articulated a thought that is already so common in the minds of Philippine law practitioners: that sacrifice must accompany the act of atonement required of this Court for a breach of the standards of professional ethics.
Neither can I agree that Dean Marvic Leonen should be asked to show cause why he should not be punished for sending the Chief Justice mere dummies of the statement. In most cases, this Court merely gives the parties’ counsel the opportunity to satisfy the missing requirements. In any case, he has already submitted the signed original statement, so what is the Court fretting over? This use of a heavy hand on a small matter is profoundly disturbing.
The reason, I think, is that this Court has already prejudged the respondents. Reviewing the events, I realize that the language used in the majority Decision in the matter of the plagiarism charges, and the circumstances under which this “show cause” order is being issued, paint a chilling picture of the Court. When the UP Law Faculty statement was issued, the Court was taken aback, teetering a little from the blast of what they thought was the power of 81 signatures of the UP Law Faculty, including that of a retired justice. Then it found out that Dean Leonen, when ordered, was actually ready to transmit a statement with only 37 signatures. The Court recovered its composure and seethed that it could have been so destabilized.
This turn of events may account for the victorious tone used by the plagiarism majority Decision when it referred to the UP Law Faculty Statement as a statement that had “appeared like solid teeth in the dummy [but] turned out to be broken teeth in the original . . . [a]nd retired Justice V.V. Mendoza did not sign the statement, contrary to what the dummy represented.” It seems to have gloated over the realization that now the antagonist is more manageable, consisting only of these 37 law professors, sans any retired Supreme Court justice. With more reason should the Court evaluate its mental and emotional frame before issuing the “show cause” order. Is it ready to squarely face the fact that the moral consequences of the plagiarism majority Decision are too horrible to imagine?
The timing of the “show cause” order; the implication in the related Decision that the complainants in the plagiarism charge against Justice del Castillo are “hypocrites”; the needling over a small matter such as submission of a dummy vis-à-vis the original signed copies; and the apparent effect that the submission of the Statement had on the Court – all of these betray a Court that is bent on seeing itself redeemed not by hard and honest work, with the undertaking of proper remedial actions for when a member is in breach of ethics, but by showing who, in the land of lawyers, has power.
It is with sadness that I view the issuance of the “show cause” order embodied in the majority Resolution and dissent therefrom.
Xx x.”
DISSENTING OPINION
CARPIO MORALES, J.:
The Resolution directs certain members of the law faculty of the University of the Philippines (UP) to “SHOW CAUSE x x x why they should not be disciplined as members of the Bar for violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.”
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 the one that is “totally unnecessary, uncalled for and a rash act of misplaced vigilance.”
The road embarked by the Court as paved by the Resolution leads the Court into an autocratic pit with only an artificial twig of “independence of the judiciary” to hang on to somewhere in that precarious cliff where public esteem shall ultimately reckon what “dignity of the Court” means. I regret that I could not join in treading such crooked road.
The institution of a disciplinary action
smacks of injudiciousness
In instituting the proceedings against the UP law faculty, the Court appears to be lending only a semblance of due process by ordering them to answer the administrative charges. The Resolution is replete with conclusions that already adjudge them guilty of violating the canons of ethics. Aside from concluding that the publication of the statement of the UP law faculty was “totally unnecessary, uncalled for and a rash act of misplaced vigilance,” the Resolution classifies it as an “institutional attack” and an “insult to the members of the Court.” The Court has already determined that it “could hardly perceive any reasonable purpose for the faculty’s less than objective comments” that “fan the flames and invite resentment.” 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 even 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 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. Without the benefit of a hearing and extensively quoting cases involving contempt, the Resolution admonishes:
x x x We made it clear in the case of In re Kelly that any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable.
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The Court must “insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.”
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is “conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court to disrepute or disrespect.” On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil. Intent is a necessary element in criminal contempt, and no one can be punished for criminal contempt unless the evidence makes it clear that he intended to commit it.
It is highly injudicious to anchor a motu proprio disciplinary action on an irregularly concluded finding of indirect contempt.
The dignity of the Court will suffer none
by passing it in silence
No class of the community ought to be allowed freer scope in the expression or publication of opinion as to the capacity, impartiality or integrity of judges than members of the bar. For the most part of the existence of the judiciary, the legal academia has been an able partner in the administration of justice and a resource provider in various avenues of capacity building. Throughout these years, they have extended aid and offered proposals in countless ways with no other interest but to pursue the noblest intentions of improving the judicial system. A number of law professors/newspaper columnists have also “attempt[ed] to educate this Court on how to go about the review” of certain cases. The Court has taken them without losing equilibrium.
It is not unusual that unsolicited suggestions and unconstructive criticisms, oftentimes fashioned in an ardent manner, finds their way into the Court’s sensibilities and sensitivities. Most recently, various groups have once again turned to media to air their advocacies in support of or in opposition to the contentious issues involved in the Hacienda Luisita case. A few months ago, at the height of the “CJ Appointment Issue” and during the pendency of the motion for reconsideration, a number of hard manifestos and harsh articles saw print, which were no less intense than this plagiarism issue. The Court cannot close its eyes to the fact that certain quarters even pushed for the early resignation of Chief Justice Puno to save the Court from resolving the issue, and of the other Justices to save face. But the Court did not lift its finger. What is so special with the present case that disconcerts the Court, drawing it to institute this case against professors of a particular law school?
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 vivify the judiciary.
It has been insightfully explained and suggested that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that in every case where a judge decides for one party, he decides against another; and oftentimes both parties are beforehand equally confident and sanguine. The disappointment, therefore, is great, and it is not in human nature that there should be other than a bitter feeling, which often reaches to the judge as the cause of the supposed wrong. A judge, therefore, ought to be patient, and tolerate everything which appears as but the momentary outbreak of disappointment. A second thought will generally make a party ashamed of such outbreak, and the dignity of the court will suffer none by passing it in silence. (underscoring supplied)
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.
X x x.”
