Safeguarding the Constitution
By RENATO C. CORONA, Supreme Court Chief Justice
October 23, 2010, 9:59pm
PHILCONSA Governors and officers led by the Chairman of the Board of Governors, Conrado Estrella, President Manuel Lazaro, distinguished guests, ladies and gentlemen, a pleasant good evening to you all.
I would like to thank the Philippine Constitution Association (Philconsa) for the honor and privilege of celebrating our 49th Anniversary with you. The membership of Philconsa, as everybody in this hall will agree, is a different and elite kind of crowd. Your guests of honor, for one, are limited only to those – and I quote the Philconsa creed – who make “freedom and justice prevail in our country forever.” I therefore consider it a distinct recognition to have met your standards not just once but twice this year – first, on Independence Day which celebrates our freedom and second, today, on Philconsa’s 49th Anniversary which marks almost half a century of unwavering commitment to the rule of law. I am particularly elated by the fact that these two occasions underscore the twin values so powerfully expressed in the Philconsa creed: freedom and justice.
I usually do not give much thought to coincidences but these two values happen to be my own public mission in life. I am reminded by what Holocaust survivor, Austrian neurologist Viktor Frankl, once wrote: “Every one must carry a concrete assignment that demands fulfillment.”
The Philconsa has been at the forefront of constitutionalism and, for almost 50 years today, we have assumed the sacred duty if upholding and defending the Constitution.
There is probably no document more telling of our country’s soul and more revealing of our nation’s collective sentiments than the Constitution.
Our country has had three Constitutions in its relatively short history as a democracy. Each one was a result of a common ideal for a social contract between the government and the people, reflecting not only contemporary affairs but also the concerns of the future.
The 1935 Constitution starts with the words “The Filipino people.” The 1973 and 1987 Charters, on the other hand, begin with “We. The sovereign Filipino people.” The introductory words to the preamble may have changed but one things remains: It is the Filipino people who ordained and promulgated the Constitution. It is the people who willed that ours be a representative government, one that is “of the people, by the people, and for the people.”
The Constitution serves as a continuing reminder to our country’s leaders that sovereign power belongs not to them but to the people who elected them. “Sovereignty resides in the people and all government authority emanates from them.”
Our government is a government of laws and the foundation of all laws is the Constitution. No government official, functionary, or branch is so high and mighty as to be above the Constitution and the laws.
The Constitution is meant not only to guarantee certain rights but also to protect the minority against the overzealousness of the majority. It is meant to grant equality to the marginalized, the weak, and the downtrodden, sectors whose rights are easily and all too often trampled upon.
The Bill of Right provides for safeguards against the exercise by the State of its inherent powers: Police power, the power of taxation, and the power of eminent domain. Our people can take comfort in the thought that there exists a document, this social contract, that will always provide refuge for the helpless and oppressed.
The fundamental law of the land will neither yield nor sway to the wishes of those who think they are above it. As the embodiment of the aspirations of a nation, it is single document that defines what and how our government should be in relation to the people.
Constitutionalism, the essential belief that the Constitution as the fundamental law should at all times be upheld to ensure our democracy, is therefore everyone’s business, yours and mine. It is the sacred document which I pledged to obey and defend at all times, even at the cost of my own life, when I took oath as Chief Justice of the Supreme Court.
But while the Constitution is a creation of popular will, its interpretation is never determined by popular choice. Its correctness is ascertained by what is right, not by what people in general think is right. Even the rule of the majority is a rule of tyranny. Rather it is the triumph of the general will as expressed by the citizenry which embraces, as its own, what is good for society as a whole.
The Constitution and the rule of law will never bend to the ever-shifting political winds and passions of the moment because it is the anchor that keeps the ship of state from being tossed aimlessly about or even tipped over by the waves of passing political and social events. Obeying the Constitution is observing the rule of law, not of men.
Leading modern accounts generally emphasize five elements that define constitutionalism and the rule of law.
* The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs.
People must be able to understand the law and comply with it.
* The second element is efficacy. The law should actually guide people.
* The third element is stability. The law should be reasonably stable in order to facilitate planning and coordinated action over time.
* The fourth element is the supremacy of legal authority. The law should rule officials, including judges, as well as ordinary citizens.
* The fifth and final element involves instrumentalities or impartial justice. Courts should be available to enforce the law and should employ fair procedures.
It is clear from the foregoing that the judiciary, meaning the Supreme Court and all inferior courts, serves as the vanguard of constitutionalism and the rule of law in our system of government.
The Constitution itself clearly identifies the agency which bears the primary responsibility for defending the Charter and the rule of law and it is no other than the Supreme Court of the Philippines.
Of the three great co-equal branches of government, the judiciary is the most benign and the least powerful. Alexander Hamilton in The Federalist No. 78, wrote that the judiciary has no access to either the sword (as wielded by the executive department) or the purse (as the controlled by the Congress.) However, legal scholars are also one in saying that, while it is true that the Supreme Court has no power of the sword nor of the purse, it wields the power of the pen or the authority to interpret the Constitution and the laws.
The 1987 Constitution expanded the powers of the Supreme Court so as to vest the Court with the power of judicial review whose one and only purpose is to check transgressions on the Constitution.
The power of judicial review has practically given a lighter complexion to the political question doctrine which was invoked with so much vigor and regularity before 1987.
When the Supreme Court invokes its power of judicial review, it does not assert its moral or constitutional ascendancy over the other two co-equal branches of government. It only, reminds all and sundry of the non-negotiable supremacy of the Constitution.
Neither is it an encroachment on the powers of its co-equal branches but a mere reiteration of the sovereign will of the people to have an effective system of checks and balances. Judicial review does not violate the principle of separation of powers and in fact reinforces, guarantees even, the maintenance of political equilibrium among the three co-equal branches of government.
The power of judicial review is not an exercise of dominance or interference in the exclusive affairs of another department.
It is in fact the means established by the Constitution itself to preserve the peace and stability of our political system so that the possibility of a constitutional crisis or a clash of powers may precisely be avoided. This is constitutionalism. This is the rule of law.
Which brings me to my next point. The rule of law is what governs modern society. Our people allow the rule of law to dictate how they go about enforcing their rights and seeking redress for their grievances only because of the trust and confidence they have in the legal system. It is this trust and confidence in the rule of law that prevents anarchy and mob-rule from holding sway.
We in the judiciary are burdened with the heavy responsibility to preserve and enhance the people’s trust and confidence in constitutionalism and the rule of law. It is thus of utmost importance that our decisions be handed down with justice and fairness, without fear or favor, and with no reward or expectation other than the honest desire to preserve and strengthen our democratic way of life.
In this light, judicial independence serves as the heart and soul of constitutionalism and the rule of law. Without it, the judiciary would be unable to impart fair and impartial justice to those who seek it and those who yearn for a redress of their grievances.
Judicial independence has been tested and attacked over and over again in many ways. Ever since I can remember, all sorts of accusations have at one time or another been heaped on it, from the truth to the downright malicious. The judiciary is easy to attack because it does not have the means to defend itself. It has no sword. It has no purse. Other than the decisions it writes and its limited power of contempt, there is really nothing much it can do to fight a propaganda war. That is not its business anyway. But right is right and wrong is wrong. Let justice be done though the heavens fall. When everything is said and done, there is no better defense than the balm of a good conscience. Beyond this, an upright and God-fearing magistrate can do no more. But the attacks and criticisms in truth matter very little, if at all, because it is the magistrate’s integrity that keeps the balance and equilibrium of the scales of justice on an even keel. And as long as that scale tilts neither to one side nor the other, that is the assurance that our democracy is alive and our system of justice deserves the people’s trust.
Thank you and a pleasant evening to you all.
see:
http://www.mb.com.ph/articles/283877/safeguarding-constitution
Tuesday, October 26, 2010
Court saves its own
What is now beyond dispute about Del Castillo’s actions? Whole paragraphs and arguments—from across all three sources—were found verbatim in a decision he penned, without attributions. More than 20 passages were confirmed written not by Del Castillo’s hand. His excuse? That his legal researcher accidentally erased two citations in the footnotes. - INQUIRER.
Editorial
Open season
Philippine Daily Inquirer
First Posted 00:58:00 10/23/2010
MANILA, Philippines—Let’s say someone, for whatever reason, takes someone else’s child and spirits him away to another place without notifying the parents. When the child is finally found, the offender is charged with kidnapping. He loudly contests the charge. Not guilty, he says. He merely wanted to show the child the Ferris wheel. Let him ride the swing. Walk on the beach. He had no malicious intent when he took the child.
How do you react to such a defense? You drag the kidnapper to jail. And, for good measure, make sure he rots there. When he took possession of the child without the parents’ consent, whatever motive he had—and however laudatory he might think it was—would have no bearing on the criminal nature of the act itself. Malicious intent? In an open-and-shut kidnapping case, the concept would not even merit mention.
Now, how about kidnapping words and ideas? Like using someone else’s written work and passing it off as one’s own, totally without attribution? Not a teeny line or one innocuous phrase, but whole paragraphs—and from not one, but three different, separate sources? What if the offending party defends his larcenous action as completely aboveboard because it lacks “malicious intent” or is not “tainted with fraud, corruption or malice”?
The Supreme Court of the Philippines introduced that phraseology into the straightforward case of Associate Justice Mariano C. del Castillo who was accused of plagiarism for having copied verbatim, from undisclosed sources, extensive portions of the majority decision he wrote in the case of Vinuya v. Executive Secretary.
Parts of the ruling were found to have been a compendium of passages lifted from three sources: “A Fiduciary Theory of Jus Cogens” by Evan Criddle and Evan Fox-Descent, “Breaking the Silence: Rape as an International Crime” by Mark Ellis, and “Enforcing Erga Omnes Obligations in International Law” by Christian Tams.
Relating this sorry incident to the moral and legal quandaries presented by the crime of actual kidnapping is not as farfetched as it may sound. “Plagiarism,” after all, comes from the Latin word that literally means “kidnapping”—“plagiarius.” To plagiarize another person’s thoughts, expressions, ideas or creative work and pass it off as one’s own is, in effect, kidnapping in a different guise. And where the proof lies in the simple act of comparing the two works in question side by side—word for word and line by line—and concluding from there that one had indeed copied from the other, “malicious intent,” whatever it is in this case, would not even be a question.
What is now beyond dispute about Del Castillo’s actions? Whole paragraphs and arguments—from across all three sources—were found verbatim in a decision he penned, without attributions. More than 20 passages were confirmed written not by Del Castillo’s hand. His excuse? That his legal researcher accidentally erased two citations in the footnotes.
This defense, so laughable in its crudeness yet so contemptible in its presumption that sensible people would easily see through it, was amazingly accepted by 10 of the eminent justices of the Supreme Court. They absolved Del Castillo of wrongdoing, attributed the scandalous incident to the clumsiness of an underling it conveniently refused to name or punish, and then—the icing on the cake—tacked on the supposed lack of “malicious intent” on Del Castillo’s part as the definitive proof of his innocence.
Students into cheating must now be cheering the Supreme Court’s dazzling wisdom. Anytime they are caught plagiarizing, they have recourse to a brand-new and sturdy defense: they merely forgot a footnote or two. See, no malicious intent. Hey, it worked for a justice of the Supreme Court. Why not for them?
In a blistering dissenting opinion, Associate Justice Lourdes Sereno decried the majority decision as having “created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers...”
The ruling, in effect, enshrines kidnapping—“plagiarius”—as henceforth permissible when it comes to intellectual property. It declares nothing less than an open season on the work of every thinking, writing, creating person in the world.
see:
http://opinion.inquirer.net/inquireropinion/editorial/view/20101023-299224/Open-season
Editorial
Open season
Philippine Daily Inquirer
First Posted 00:58:00 10/23/2010
MANILA, Philippines—Let’s say someone, for whatever reason, takes someone else’s child and spirits him away to another place without notifying the parents. When the child is finally found, the offender is charged with kidnapping. He loudly contests the charge. Not guilty, he says. He merely wanted to show the child the Ferris wheel. Let him ride the swing. Walk on the beach. He had no malicious intent when he took the child.
How do you react to such a defense? You drag the kidnapper to jail. And, for good measure, make sure he rots there. When he took possession of the child without the parents’ consent, whatever motive he had—and however laudatory he might think it was—would have no bearing on the criminal nature of the act itself. Malicious intent? In an open-and-shut kidnapping case, the concept would not even merit mention.
Now, how about kidnapping words and ideas? Like using someone else’s written work and passing it off as one’s own, totally without attribution? Not a teeny line or one innocuous phrase, but whole paragraphs—and from not one, but three different, separate sources? What if the offending party defends his larcenous action as completely aboveboard because it lacks “malicious intent” or is not “tainted with fraud, corruption or malice”?
The Supreme Court of the Philippines introduced that phraseology into the straightforward case of Associate Justice Mariano C. del Castillo who was accused of plagiarism for having copied verbatim, from undisclosed sources, extensive portions of the majority decision he wrote in the case of Vinuya v. Executive Secretary.
Parts of the ruling were found to have been a compendium of passages lifted from three sources: “A Fiduciary Theory of Jus Cogens” by Evan Criddle and Evan Fox-Descent, “Breaking the Silence: Rape as an International Crime” by Mark Ellis, and “Enforcing Erga Omnes Obligations in International Law” by Christian Tams.
Relating this sorry incident to the moral and legal quandaries presented by the crime of actual kidnapping is not as farfetched as it may sound. “Plagiarism,” after all, comes from the Latin word that literally means “kidnapping”—“plagiarius.” To plagiarize another person’s thoughts, expressions, ideas or creative work and pass it off as one’s own is, in effect, kidnapping in a different guise. And where the proof lies in the simple act of comparing the two works in question side by side—word for word and line by line—and concluding from there that one had indeed copied from the other, “malicious intent,” whatever it is in this case, would not even be a question.
What is now beyond dispute about Del Castillo’s actions? Whole paragraphs and arguments—from across all three sources—were found verbatim in a decision he penned, without attributions. More than 20 passages were confirmed written not by Del Castillo’s hand. His excuse? That his legal researcher accidentally erased two citations in the footnotes.
This defense, so laughable in its crudeness yet so contemptible in its presumption that sensible people would easily see through it, was amazingly accepted by 10 of the eminent justices of the Supreme Court. They absolved Del Castillo of wrongdoing, attributed the scandalous incident to the clumsiness of an underling it conveniently refused to name or punish, and then—the icing on the cake—tacked on the supposed lack of “malicious intent” on Del Castillo’s part as the definitive proof of his innocence.
Students into cheating must now be cheering the Supreme Court’s dazzling wisdom. Anytime they are caught plagiarizing, they have recourse to a brand-new and sturdy defense: they merely forgot a footnote or two. See, no malicious intent. Hey, it worked for a justice of the Supreme Court. Why not for them?
In a blistering dissenting opinion, Associate Justice Lourdes Sereno decried the majority decision as having “created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers...”
The ruling, in effect, enshrines kidnapping—“plagiarius”—as henceforth permissible when it comes to intellectual property. It declares nothing less than an open season on the work of every thinking, writing, creating person in the world.
see:
http://opinion.inquirer.net/inquireropinion/editorial/view/20101023-299224/Open-season
Court vs. academic freedom?
On the plagiarism scandal in the Philippine Supreme Court...
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.
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.
Monday, October 18, 2010
Plagiarism in the Court: ponente absolved.
The recent case of “IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., GAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO”, En Banc/Per Curiam, A.M. No. 10-7-17-SC, October 15, 2010, is concerned with charges that, in preparing a decision for the Court, a designated member plagiarized the works of certain authors and twisted their meanings to support the decision.
The facts of the case, as summarized by the Court, are as follows:
x x x.
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General.
Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army systematically raped them and a number of other women, seizing them and holding them in houses or cells where soldiers repeatedly ravished and abused them.
Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by the respondent public officials, requesting assistance in filing claims against the Japanese military officers who established the comfort women stations. But that Department declined, saying that petitioners’ individual claims had already been fully satisfied under the Peace Treaty between the Philippines and Japan.
Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals.
On April 28, 2010, the Court rendered judgment dismissing petitioners’ action. Justice Mariano C. del Castillo wrote the decision for the Court. The Court essentially gave two reasons for its decision: it cannot grant the petition because, first, the Executive Department has the exclusive prerogative under the Constitution and the law to determine whether to espouse petitioners’ claim against Japan; and, second, the Philippines is not under any obligation in international law to espouse their claims.
On June 9, 2010, petitioners filed a motion for reconsideration of the Court’s decision. More than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a supplemental petition “detailing plagiarism committed by the court” under the second reason it gave for dismissing the petition and that “these stolen passages were also twisted to support the court’s erroneous conclusions that the Filipino comfort women of World War Two have no further legal remedies.” The media gave publicity to Atty. Roque’s announcement.
On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused Justice Del Castillo of “manifest intellectual theft and outright plagiarism” when he wrote the decision for the Court and of “twisting the true intents of the plagiarized sources … to suit the arguments of the assailed Judgment.” They charged Justice Del Castillo of copying without acknowledgement certain passages from three foreign articles:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute all sources used in it. He said in the pertinent part:
It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own. We recall that this ponencia was thrice included in the Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78 footnotes.
x x x x
As regards the claim of the petitioners that the concepts as contained in the above foreign materials were “twisted,” the same remains their opinion which we do not necessarily share.
On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief Justice, for investigation and recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddle’s concern, after reading the supplemental motion for reconsideration, was the Court’s conclusion that prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court “may have misread the argument [he] made in the article and employed them for cross purposes.” Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was “an extraordinary act of injustice” and a “singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.” The statement said that Justice Del Castillo had a “deliberate intention to appropriate the original authors’ work,” and that the Court’s decision amounted to “an act of intellectual fraud by copying works in order to mislead and deceive.”
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the Court’s decision were taken from his work, he was given generic reference only in the footnote and in connection with a citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is not consistent with what he advocated.
Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so they could make submissions that their client regarded as sensitive and confidential, involving the drafting process that went into the making of the Court’s decision in the Vinuya case. Petitioners’ counsels vigorously objected and the Committee sustained the objection. After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justice’s court researcher, whose name need not be mentioned here, explain the research work that went into the making of the decision in the Vinuya case. The Committee granted the request.
The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her “grievous mistake” and grief for having “caused an enormous amount of suffering for Justice Del Castillo and his family.”
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary.
x x x.
In fine, the Court held, as follows:
“1. DISMISSES for lack of merit petitioner Vinuya, et al.’s charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo;
2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses;
3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and reporting with copies of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing computer program especially when the volume of citations and footnoting is substantial; and
4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent future lapses in citations and attributions.
Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of petitioners’ Exhibit J, entitled “Restoring Integrity,” a statement by the Faculty of the University of the Philippines College of Law for the en banc’s consideration in relation to the separate pending matter concerning that supposed Faculty statement.”
The ratiocination of the Court is extensively quoted below, thus:
X x x.
At its most basic, plagiarism means the theft of another person’s language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is “to take (ideas, writings, etc.) from (another) and pass them off as one’s own.” The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.
The Passages from Tams
Petitioners point out that the Vinuya decision lifted passages from Tams’ book, Enforcing Erga Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the author thought was a mere generic reference. But, although Tams himself may have believed that the footnoting in this case was not “an appropriate form of referencing,” he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tams’ work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams’ article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement “See Tams, Enforcing Obligations Erga Omnes in International Law (2005)” in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase “cited in” rather than the phrase “See” would make a case of mere inadvertent slip in attribution rather than a case of “manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.
The Passages from Ellis
and Criddle-Descent
Petitioners also attack the Court’s decision for lifting and using as footnotes, without attribution to the author, passages from the published work of Ellis. The Court made the following statement on page 27 of its decision, marked with Footnote 65 at the end:
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law. 65 xxx
Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came almost verbatim from Ellis’ article, such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of “troop discipline.” (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224). It specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection of their “honour.” (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, “Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal”; General Assembly document A/64/Add.1 of 1946; See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INT’L. COMP. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.
But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
Next, petitioners also point out that the following eight sentences and their accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:
xxx In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.71
Early strains of the jus cogens doctrine have existed since the 1700s,72 but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain international norms had attained the status of jus cogens,75 the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”76 In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”77 Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78
Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no attributions were made to the two authors in those footnotes.
The Explanation
Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.
In the old days, the common practice was that after a Justice would have assigned a case for study and report, the researcher would source his materials mostly from available law books and published articles on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up. He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a manual typewriter. This occasion would give him a clear opportunity to attribute the materials used to their authors or sources.
With the advent of computers, however, as Justice Del Castillo’s researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her “main manuscript,” a smorgasbord plate of materials that she thought she might need. The researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.
Here, Justice Del Castillo’s researcher did just that. She electronically “cut” relevant materials from books and journals in the Westlaw website and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.
Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.
First Finding
The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.
For most senior lawyers and judges who are not computer literate, a familiar example similar to the circumstances of the present case would probably help illustrate the likelihood of such an accident happening. If researcher X, for example, happens to be interested in “the inalienable character of juridical personality” in connection with an assignment and if the book of the learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X would probably show interest in the following passage from that book:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that Tolentino did not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign authors.
When researcher X copies and pastes the above passage and its footnote into a manuscript-in-the-making in his computer, the footnote number would, given the computer program in use, automatically change and adjust to the footnoting sequence of researcher X’s manuscript. Thus, if the preceding footnote in the manuscript when the passage from Tolentino was pasted on it is 23, Tolentino’s footnote would automatically change from the original Footnote 15 to Footnote 24.
But then, to be of use in his materials-gathering scheme, researcher X would have to tag the Tolentino passage with a short description of its subject for easy reference. A suitable subject description would be: “The inalienable character of juridical personality.23” The footnote mark, 23 From Tolentino, which researcher X attaches to the subject tag, serves as reminder to him to attribute the passage in its final form to Tolentino. After the passage has been tagged, it would now appear like this:
The inalienable character of juridical personality.23
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
The tag is of course temporary and would later have to go. It serves but a marker to help researcher X maneuver the passage into the right spot in his final manuscript.
The mistake of Justice Del Castillo’s researcher is that, after the Justice had decided what texts, passages, and citations were to be retained including those from Criddle-Descent and Ellis, and when she was already cleaning up her work and deleting all subject tags, she unintentionally deleted the footnotes that went with such tags—with disastrous effect.
To understand this, in Tolentino’s example, the equivalent would be researcher X’s removal during cleanup of the tag, “The inalienable character of juridical personality.23,” by a simple “delete” operation, and the unintended removal as well of the accompanying footnote (#23). The erasure of the footnote eliminates the link between the lifted passage and its source, Tolentino’s book. Only the following would remain in the manuscript:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed.
This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted the subject tags and, accidentally, their accompanying footnotes that served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them was not easily detectable.
Petitioners point out, however, that Justice Del Castillo’s verified letter of July 22, 2010 is inconsistent with his researcher’s claim that the omissions were mere errors in attribution. They cite the fact that the Justice did not disclose his researcher’s error in that letter despite the latter’s confession regarding her mistake even before the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and sought to whitewash the case.
But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely explained “that there was every intention to attribute all sources whenever due” and that there was never “any malicious intent to appropriate another’s work as our own,” which as it turns out is a true statement. He recalled how the Court deliberated upon the case more than once, prompting major revisions in the draft of the decision. In the process, “(s)ources were re-studied, discussions modified, passages added or deleted.” Nothing in the letter suggests a cover-up. Indeed, it did not preclude a researcher’s inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose his researcher’s error. He wrote the decision for the Court and was expected to take full responsibility for any lapse arising from its preparation. What is more, the process of drafting a particular decision for the Court is confidential, which explained his initial request to be heard on the matter without the attendance of the other parties.
Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly respected professors of international law. The law journals that published their works have exceptional reputations. It did not make sense to intentionally omit attribution to these authors when the decision cites an abundance of other sources. Citing these authors as the sources of the lifted passages would enhance rather than diminish their informative value. Both Justice Del Castillo and his researcher gain nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure oversight.
Petitioners of course insist that intent is not material in committing plagiarism since all that a writer has to do, to avoid the charge, is to enclose lifted portions with quotation marks and acknowledge the sources from which these were taken. Petitioners point out that the Court should apply to this case the ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine. They argue that standards on plagiarism in the academe should apply with more force to the judiciary.
But petitioners’ theory ignores the fact that plagiarism is essentially a form of fraud where intent to deceive is inherent. Their theory provides no room for errors in research, an unrealistic position considering that there is hardly any substantial written work in any field of discipline that is free of any mistake. The theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical explanations.
Indeed, the 8th edition of Black’s Law Dictionary defines plagiarism as the “deliberate and knowing presentation of another person's original ideas or creative expressions as one's own.” Thus, plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.
Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass off another’s work as one’s own is not required in plagiarism. The Court merely affirmed the academic freedom of a university to withdraw a master’s degree that a student obtained based on evidence that she misappropriated the work of others, passing them off as her own. This is not the case here since, as already stated, Justice Del Castillo actually imputed the borrowed passages to others.
Second Finding
The Court also adopts the Committee’s finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place.
This is best illustrated in the familiar example above. After the deletion of the subject tag and, accidentally, its footnote which connects to the source, the lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Although the unintended deletion severed the passage’s link to Tolentino, the passage remains to be attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its footnote reference cancel out any impression that the passage is a creation of researcher X. It is the same with the passages from Criddle-Descent and Ellis. Because such passages remained attributed by the footnotes to the authors’ original sources, the omission of attributions to Criddle-Descent and Ellis gave no impression that the passages were the creations of Justice Del Castillo. This wholly negates the idea that he was passing them off as his own thoughts.
True the subject passages in this case were reproduced in the Vinuya decision without placing them in quotation marks. But such passages are much unlike the creative line from Robert Frost, “The woods are lovely, dark, and deep, but I have promises to keep, and miles to go before I sleep, and miles to go before I sleep.” The passages here consisted of common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm.
To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer’s thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.
Third Finding
Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The Court adopts the Committee’s finding that this is not so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the Court. To twist means “to distort or pervert the meaning of.” For example, if one lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose Palma who wrote it “did not love his country,” then there is “twisting” or misrepresentation of what the anthem’s lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors Tams, Criddle-Descent, and Ellis supported the Court’s conclusion that the Philippines is not under any obligation in international law to espouse Vinuya et al.’s claims.
The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo “twisted” their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens.
Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of “twisting” or misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action. This is not the case here. Justice Del Castillo’s acts or omissions were not shown to have been impelled by any of such disreputable motives. If the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record.
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over his researcher and should not have surrendered the writing of the decision to the latter.
But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his researcher, which is contrary to the evidence adduced during the hearing. As his researcher testified, the Justice set the direction that the research and study were to take by discussing the issues with her, setting forth his position on those issues, and reviewing and commenting on the study that she was putting together until he was completely satisfied with it. In every sense, Justice Del Castillo was in control of the writing of the report to the Court, which report eventually became the basis for the decision, and determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent of a “law clerk” in the United States Supreme Court, is standard practice in the high courts of all nations. This is dictated by necessity. With about 80 to 100 cases assigned to a Justice in our Court each month, it would be truly senseless for him to do all the studies and research, going to the library, searching the internet, checking footnotes, and watching the punctuations. If he does all these by himself, he would have to allocate at least one to two weeks of work for each case that has been submitted for decision. The wheels of justice in the Supreme Court will grind to a halt under such a proposition.
What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in the Vinuya case without, however, having to look over his researcher’s shoulder as she cleaned up her draft report to ensure that she hit the right computer keys. The Justice’s researcher was after all competent in the field of assignment given her. She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her school’s Law Journal, and placed fourth in the bar examinations when she took it. She earned a master’s degree in International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program, which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world. Justice Del Castillo did not exercise bad judgment in assigning the research work in the Vinuya case to her.
Can errors in preparing decisions be prevented? Not until computers cease to be operated by human beings who are vulnerable to human errors. They are hypocrites who believe that the courts should be as error-free as they themselves are.
Incidentally, in the course of the submission of petitioners’ exhibits, the Committee noted that petitioners’ Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the allegations of plagiarism and misinterpretation, was a mere dummy. The whole of the statement was reproduced but the signatures portion below merely listed the names of 38 faculty members, in solid rows, with the letters “Sgd” or “signed” printed beside the names without exception. These included the name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.
Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to present the signed copy within three days of the August 26 hearing. He complied. As it turned out, the original statement was signed by only a minority of the faculty members on the list. The set of signatories that appeared like solid teeth in the dummy turned out to be broken teeth in the original. Since only 37 out of the 81 on the list signed the document, it does not appear to be a statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did not sign the statement, contrary to what the dummy represented. The Committee wondered why the Dean submitted a dummy of the signed document when U.P. has an abundance of copying machines.
Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration in relation to that matter.
X x x.
JUSTICE MA. LOURDES SERENO dissented. In her dissent, she stated the belief:
"1. That Justice Mariano C. del Castillo and his unnamed researcher have committed plagiarism in the drafting and passing on of the ponencia in the Vinuya decision;
2. That this Court should request Justice del Castillo to acknowledge the plagiarism and apologize to the complaining authors for his mistake;
3. That this Court should cause the issuance of a corrected version of the Vinuya decision in the form of a “Corrigendum”;
4. That court attorneys should be provided with the appropriate manuals on writing and legal citation, and should be informed that the excerpts complained of and described in Tables A, B, and C of this opinion are acts of plagiarism and not mere editing errors or computer-generated mistakes;
5. That the refusal of the majority to pronounce that plagiarism was committed by Justice del Castillo means that any judicial opinion on his liability or that of his researcher would be academic and speculative, a ruling which this Dissenting Opinion will not venture to make a pronouncement on; and
6. That a copy of this Dissenting Opinion should be circulated by the Public Information Office in the same manner as the Majority Decision to the complaining authors Christian J. Tams, Mark Ellis, Evan Criddle and Evan Fox-Decent."
The text of her dissent is extensively quoted hereinbelow, thus:
X x x.
What is black can be called “white” but it cannot turn white by the mere calling. The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision and the determination of the liability that results from a finding of plagiarism. Specifically, it made “malicious intent”, which heretofore had not been relevant to a finding of plagiarism, an essential element.
The majority Decision will thus stand against the overwhelming conventions on what constitutes plagiarism. In doing so, the Decision has created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists “lack of malicious intent” as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. Under Section 184 of R.A. 8293 (“An Act Describing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Powers and Functions, and for Other Purposes”), or the Intellectual Property Code of the Philippines, there is no infringement of copyright in the use of another's work in:
(b) the making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided that the source and the name of the author, if appearing on the work, are mentioned. (Emphasis supplied)
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate ─ and that therefore there was no plagiarism ─ lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.
x x x.
Forms of Plagiarism
There are many ways by which plagiarism can be committed. For the purpose of this analysis, we used the standard reference book prescribed for Harvard University students, “Writing with Sources” by Gordon Harvey.
Harvey identifies four forms of plagiarism: (a) uncited data or information; (b) an uncited idea, whether a specific claim or general concept; (c) an unquoted but verbatim phrase or passage; and (d) an uncited structure or organizing strategy. He then explains how each form or mode of plagiarism is committed. Plagiarism is committed in mode (a) by “plagiarizing information that is not common knowledge.” Mode (b) is committed when “distinctive ideas are plagiarized,” “even though you present them in a different order and in different words, because they are uncited.”
Even if there has been a prior citation, succeeding appropriations of an idea to make it appear as your own is plagiarism, because the “[previous] citation in [an earlier] passage is a deception.” Mode (c) is committed when “you … borrowed several distinctive phrases verbatim, without quotation marks…” Mode (d) is committed when, though the words and details are original, “(y)ou have, however, taken the structural framework or outline directly from the source passage … even though, again, your language differs from your source and your invented examples are original.”
These forms of plagiarism can exist simultaneously in one and the same passage. There may be a complete failure to use quotation marks in one part of the sentence or paragraph while combining that part with phrases employing an uncited structure or organizing strategy. There may be patchwork plagiarizing committed by collating different works or excerpts from the same work without proper attribution.
These acts of plagiarism can also be committed in footnotes in the same way and at the same degree of unacceptability as plagiarized passages in the body. This is especially frowned upon in footnotes that are discursive or “content” footnotes or endnotes. Harvey explains that a discursive footnote or endnote is “a note that includes comments, not just publication information . . . when you want to tell your reader something extra to the strict development of your argument, or incorporate extra information about sources.”
Violations of Rules against
Plagiarism in the Vinuya Decision
Below are violations of the existing rules against plagiarism that can be found in the Vinuya decision. The alphanumeric tags correspond to the table letter and row numbers in the tables provided above.
A.1 Failure to use quotation marks to indicate that the entire paragraph in the body of the decision on page 30 was not the ponente’s original paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is wholly insufficient because without the quotation marks, there is nothing to alert the reader that the paragraph was lifted verbatim from Tams. The footnote leaves the reader with the impression that the said paragraph is the author’s own analysis of erga omnes.
The “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” line in footnote 69 of the Vinuya decision does not clearly indicate that the statement on Simma’s observation was lifted directly from Tams’s work; it only directs the reader to Tams’s work should the reader wish to read further discussions on the matter.
B.1 Failure to use quotation marks to indicate that the two sentences were not the ponente’s, but were lifted verbatim from two non-adjoining sentences found on pages 331 and 332 of the Yale Law Journal of International Law article of Criddle & Fox-Decent and with absolutely no attribution to the latter.
B.2 Failure to use quotation marks to indicate that the sentence fragment on peremptory norms was not the ponente’s original writing, but was lifted verbatim from page 334 of the Yale Law Journal of International Law article of Criddle & Fox-Decent with absolutely no attribution to the authors.
B.3 Failure to use quotation marks to indicate that the first sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted verbatim from Criddle & Fox-Decent’s work at page 334.
B.4 Failure to use quotation marks to indicate that the third sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted from Criddle & Fox-Decent’s work at 334-335.
B.5 Failure to indicate that one footnote source in discursive footnote 71 was lifted verbatim from discursive footnote 9 of Tams; thus, even the idea being propounded in this discursive part of footnote 71 was presented as the ponente’s, instead of Criddle’s & Fox-Decent’s.
B.6 Failure to indicate that the last discursive sentence in footnote 71 and the citations thereof were not the ponente’s, but were lifted verbatim from footnote 9 of Criddle & Fox-Decent’s work.
B.7 Failure to indicate that the first discursive sentence of footnote 72 was not the ponente’s, but was lifted verbatim from page 335 of Criddle & Fox-Decent’s work.
B.8 Failure to indicate that the second discursive sentence of footnote 72 was not the ponente’s, but was lifted verbatim from pages 335-336 of Criddle and Fox-Decent’s work.
B.9 Failure to indicate that the citation and the discursive passage thereon in the last sentence of footnote 72 was not the ponente’s, but was lifted verbatim from discursive footnote 18 of Criddle & Fox-Decent’s work.
B.10 Failure to use quotation marks to indicate that a phrase in the body of the decision on page 31 was not the ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.11 Failure to indicate that the entirety of discursive footnote 73 was not the ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.12 Failure to indicate that the idea of lack of “consensus on whether certain international norms had attained the status of jus cogens” was a paraphrase of a sentence combined with a verbatim lifting of a phrase that appears on page 336 of Criddle & Fox-Decent’s work and was not the ponente’s own conclusion. This is an example of patchwork plagiarism.
B.13 Failure to indicate that the entirety of discursive footnote 74 on page 31 of the Decision was not the ponente’s comment on the source cited, but was lifted verbatim from footnote 23 of Criddle & Fox-Decent’s work.
B.14 Failure to indicate through quotation marks and with the proper attribution to Criddle that the first two sentences of page 32 were not the ponente’s, but were lifted verbatim from two non-adjoining sentences on pages 337-338 of Criddle & Fox-Decent’s work.
B.15 Failure to indicate through quotation marks and the right citation that the discursive sentence in the second paragraph of footnote 77, and the citation therein, were not the ponente’s, but were lifted verbatim from page 346 of the body of Criddle & Fox-Decent’s work in the instance of the discursive sentence, and from footnote 72 of Criddle & Fox-Decent’s work in the instance of the case cited and the description thereof.
B.16 Failure to indicate that the choice of citation and the discursive thereon statement in the second sentence of the second paragraph of discursive footnote 77 was not the ponente’s, but was lifted verbatim from footnote 72 of Criddle & Fox-Decent’s work.
B.17 Failure to indicate through quotation marks and the right citations that the entirety of the discursive third to fifth paragraphs of footnote 77 were not the product of the ponente’s own analysis and choice of sources, but were lifted verbatim from footnotes 73 and 77 on pages 346-347 of Criddle & Fox-Decent’s work.
C.1 to C.6 Failure to use quotation marks and the right citations to indicate that half of the long discursive footnote 65, including the sources cited therein, was actually comprised of the rearrangement, and in some parts, rephrasing of 18 sentences found on pages 227-228 of Mr. Ellis’s work in Case Western Law Reserve Journal of International Law.
This painstaking part-by-part analysis of the Vinuya decision is prompted by the fact that so many, including international academicians, await the Court’s action on this plagiarism charge ─ whether it will in all candor acknowledge that there is a set of conventions by which all intellectual work is to be judged and thus fulfill its role as an honest court; or blind itself to the unhappy work of its member.
The text of the Decision itself reveals the evidence of plagiarism. The tearful apology of the legal researcher to the family of the ponente and her acknowledgment of the gravity of the act of omitting attributions is an admission that something wrong was committed. Her admission that the correct attributions went missing in the process of her work is an admission of plagiarism. The evidence in the text of the Vinuya Decision and the acknowledgment by the legal researcher are sufficient for the determination of plagiarism.
The Place of the Plagiarized
Portions in the Vinuya Decision
The suspect portions of the majority decision start from the discursive footnotes of the first full paragraph of page 27. In that paragraph, the idea sought to be developed was that while rape and sexual slavery may be morally reprehensible and impermissible by international legal norms, petitioners have failed to make the logical leap to conclude that the Philippines is thus under international legal duty to prosecute Japan for the said crime. The plagiarized work found in discursive footnote 65 largely consists of the exposition by Mr. Ellis of the development of the concept of rape as an international crime. The impression obtained by any reader is that the ponente has much to say about how this crime evolved in international law, and that he is an expert on this matter.
There are two intervening paragraphs before the next suspect portion of the decision. The latter starts from the second paragraph on page 30 and continues all the way up to the first paragraph of page 32. The discussion on the erga omnes obligation of states almost cannot exist, or at the very least cannot be sustained, without the plagiarized works of Messrs. Tams, Criddle and Decent-Fox. There is basis to say that the plagiarism of this portion is significant.
How the Majority Decision
Treated the Specific Allegations
of Plagiarism
The majority Decision narrates and explains:
“The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her “grievous mistake” and grief for having “caused an enormous amount of suffering for Justice Del Castillo and his family.”
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary.
x x x x x x x x x
“… although Tams himself may have believed that the footnoting in his case was not “an appropriate form of referencing,” he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tam’s work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tam himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tam’s article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement “See Tams, Enforcing Obligations Erga Omnes in International Law (2005)” in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase “cited in” rather than the phrase “See” would make a case of mere inadvertent slip in attribution rather than a case of “manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.”
x x x
“Footnote 65 appears down the bottom of the page. Since the lengthily passages in that footnote came almost verbatim from Ellis’ article, such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said.) x x x
“But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
x x x
“Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no attributions were made to the two authors in those footnotes.
“Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.
x x x
“With the advent of computers, however as Justice Del Castillo’s researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her “main manuscript,” a smorgasbord plate of materials that she thought she might need. The researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.
“Here, Justice Del Castillo’s researcher did just that. She electronically “cut” relevant materials from books and journals in the Westlaw website and “pasted” these to a “main manuscript” in her computer that contained the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.
“Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.
“The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.”
Contrary to the view of my esteemed colleagues, the above is not a fair presentation of what happens in electronically generated writings aided by electronic research.
First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the “keying-in” of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.
Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.
Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale.
Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.
Fifth, the mention of Tams in “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” in footnote 69 of the Vinuya decision was not a mere insufficiency in “clarity of writing,” but a case of plagiarism under the rule prohibiting the use of misleading citations.
Sixth, the analogy that was chosen ─ that of a carpenter who discards materials that do not fit into his carpentry work ─ is completely inappropriate. In the scheme of “cutting and pasting” that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution.
Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, if they took their legal research courses in law school and their undergraduate research courses seriously. This knowledge can be easily picked up and updated by browsing many free online sources on the subject of writing standards. In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.
Plagiarism and Judicial Plagiarism
Plagiarism is an act that does not depend merely on the nature of the object, i.e. what is plagiarized, but also hinges on the process, i.e. what has been done to the object. The elements of this process are the act of copying the plagiarized work and the subsequent omission in failing to attribute the work to its author. Plagiarism thus does not consist solely of using the work of others in one's own work, but of the former in conjunction with the failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as one's own. As the work is another's and used without attribution, the plagiarist derives the benefit of use from the plagiarized work without expending the requisite effort for the same ─ at a cost (as in the concept of “opportunity cost”) to its author who could otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.
If the question of plagiarism, then, turns on a failure of attribution, judicial plagiarism in the case at bar “arises when judges author opinions that employ materials from copyrighted sources such as law journals or books, but neglect to give credit to the author.” Doing so effectively implies the staking of a claim on the copied work as the judge's own. Note that there is no requirement of extent of copying or a minimum number of instances of unattributed usage for an act to be considered a plagiarist act, nor is the intent to deceive or to copy without attribution a prerequisite of plagiarism. In Dursht's exhaustive analysis of judicial plagiarism she cites the case of Newman v. Burgin wherein the court said that plagiarism may be done “through negligence or recklessness without intent to deceive.” Dursht in addition notes that intent may also be taken as the intent to claim authorship of the copied work, whether or not there was intent to deceive, citing Napolitano v. Trustees of Princeton Univ.
George describes the following among the types of judicial plagiarism:
Borrowed Text: When quoting a legal periodical, law review, treatise or other such source, the judicial writer must surround the borrowed text with quotation marks or use a block quote. . . . Additionally, the source should be referenced in the text . . .
Using another's language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.
Reference errors: The judge may fail to put quotation marks around a clause, phrase or paragraph that is a direct quote from another's writing even though he cites the author correctly. This is plagiarism even though it may be inadvertent.
While indeed the notion of having committed judicial plagiarism may be unsettling to contemplate, as it may raise in the mind of a judge the question of his or her own culpability, it is a grievous mistake to overlook the possibility of the commission of judicial plagiarism or the fact that judicial plagiarism is categorized by its very definition as a subset of plagiarism. That a judge, in lifting words from a source and failing to attribute said words to said source in the writing of a decision, committed specifically judicial plagiarism does not derogate from the nature of the act as a plagiarist act. Nor does any claim of inadvertence or lack of intent in the commission of a plagiarist act change the characterization of the act as plagiarism.
Penalties for Plagiarism and
Judicial Plagiarism
In the academe, plagiarism is generally dealt with severely when found out; many universities have policies on plagiarism detailing the sanctions that may be imposed on students who are found to have plagiarized in their coursework and other academic requirements. These run the gamut from an automatic failing grade in the course for which the offending work was submitted, or in more egregious cases, outright expulsion from the university. Sanctions for plagiarism in the academe operate through “the denial of certification or recognition of achievement” to the extent of rescinding or denying degrees. In the case of law students who do manage to obtain their degrees, their admission to the bar may be hindered due to questions about their “character or fitness to practice law.” Indeed, plagiarism, due to the severity of the penalties it may incur, is often identified with the punishment of “academic death.” The academe justifies the harshness of the sanctions it imposes with the seriousness of the offense: plagiarism is seen not only to undermine the credibility and importance of scholarship, but also to deprive the rightful author of what is often one of the most valuable currencies in the academe: credit for intellectual achievement ─ an act of debasing the coinage, as it were. Thus the rules of many academic institutions sanctioning plagiarism as a violation of academic ethics and a serious offense often classed under the broader heading of “academic dishonesty.”
The imposition of sanctions for acts of judicial plagiarism, however, is not as clear-cut. While George recognizes the lack of attribution as the fundamental mark of judicial plagiarism, she notes in the same breath that the act is “without legal sanction.” Past instances of censure notwithstanding (as in examples of condemnation of plagiarism cited by Lebovits et al, most particularly the censure of the actions of the judge who plagiarized a law-review article in Brennan; the admonition issued by the Canadian Federal Court of Appeal in the case of Apotex) there is still no strictly prevailing consensus regarding the need or obligation to impose sanctions on judges who have committed acts of judicial plagiarism. This may be due in a large part to the absence of expectations of originality in the decisions penned by judges, as courts are required to “consider and usually . . . follow precedent.” In so fulfilling her obligations, it may become imperative for the judge to use "the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute." Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism “detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy” or that it falls far short of the high ethical standards to which judges must adhere. The lack of definitiveness in sanctions for judicial plagiarism may also be due to the reluctance of judges themselves to confront the issue of plagiarism in the context of judicial writing; the apprehension caused by “feelings of guilt” being due to “the possibility that plagiarism has unknowingly or intentionally been committed” and a “traditional” hesitance to consider plagiarism as “being applicable to judicial writings.”
Findings of judicial plagiarism do not necessarily carry with them the imposition of sanctions, nor do they present unequivocal demands for rehearing or the reversal of rulings. In Liggett Group, Inc., et al v Harold M. Engle, M.D. et al, a U.S. tobacco class action suit, “[the] plaintiffs' counsel filed a motion for rehearing alleging that the appellate opinion copied large portions of the defendants' briefs. . . . without attribution.” The result of this, the plaintiffs claimed, was the creation of the “appearance of impropriety,” the abdication of judicative duties, the relinquishing of independence to defendants, the failure to maintain impartiality, and therefore, as an act of judicial plagiarism, was “a misrepresentation of the facts found by the trial court and denied plaintiffs due process of law.” The three-judge panel denied the motion. In addition, “courts generally have been reluctant to reverse for the verbatim adoption of prepared findings.” In Anderson v. City of Bessemer City, North Carolina it was held that even though the trial judge's findings of fact may have been adopted verbatim from the prevailing party, the findings “may be reversed only if clearly erroneous.”
On Guilt and Hypocrisy
It is not hypocrisy, contrary to what is implied in a statement in the majority Decision, to make a finding of plagiarism when plagiarism exists. To conclude thus is to condemn wholesale all the academic thesis committees, student disciplinary tribunals and editorial boards who have made it their business to ensure that no plagiarism is tolerated in their institutions and industry. In accepting those review and quality control responsibilities, they are not making themselves out to be error-free, but rather, they are exerting themselves to improve the level of honesty in the original works generated in their institution so that the coinage and currency of intellectual life – originality and the attribution of originality – is maintained. The incentive system of intellectual creation is made to work so that the whole society benefits from the encouraged output.
In the case of judicial plagiarism, it is entirely possible for judges to have violated the rules against plagiarism out of ignorance or from the sheer fact that in order to cope with their caseloads, they have to rely on researchers for part of the work. That would have been a very interesting argument to consider. But ignorance is not pleaded here, nor is the inability to supervise a legal researcher pleaded to escape liability on the part of the ponente. Rather, the defense was that no plagiarism existed. This conclusion however is unacceptable for the reasons stated above.
As noted above, writers have ventured to say that the reluctance to address judicial plagiarism may stem from fear, nay, guilt. Fear that the judge who says plagiarism was committed by another is himself guilty of plagiarism. But that is neither here nor there. We must apply the conventions against judicial plagiarism because we must, having taken on that obligation when the Court took cognizance of the plagiarism complaint, not because any one of us is error-free. In fact, the statement on hypocrisy in the majority Decision betrays prejudgment of the complainants as hypocrites, and a complaint against a sitting judge for plagiarism would appear impossible to win.
In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.
As earlier said, a determination of the existence of plagiarism in
decision-making is not conclusive on the disciplinary measure to be imposed. Different jurisdictions have different treatments. At the very least however, the process of rectification must start from an acknowledgment and apology for the offense. After such have been done, then consideration of the circumstances that mitigate the offense are weighed. But not before then.
The Unfortunate Result of
the Majority Decision
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. 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.
The Way Forward
Assuming that the Court had found that judicial plagiarism had indeed been committed in the Vinuya decision, the Court could then have moved to the next logical question: what then is the legal responsibility of the ponente of the Vinuya decision for having passed on to the Court en banc a ponencia that contains plagiarized parts?
There would have been at that point two possible choices for the Court vis-Ã -vis the ponente ─ to subject him to disciplinary measures or to excuse him. In order to determine whether the acts committed would have warranted discipline, the Court should have laid down the standard of diligence and responsibility that a judge has over his actions, as well as the disciplinary measures that are available and appropriate.
The Court could also have chosen to attribute liability to the researcher who had admitted to have caused the plagiarism. In In re Hinden, disciplinary measures were imposed on an attorney who plagiarized law review articles.
x x x.
The facts of the case, as summarized by the Court, are as follows:
x x x.
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General.
Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army systematically raped them and a number of other women, seizing them and holding them in houses or cells where soldiers repeatedly ravished and abused them.
Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by the respondent public officials, requesting assistance in filing claims against the Japanese military officers who established the comfort women stations. But that Department declined, saying that petitioners’ individual claims had already been fully satisfied under the Peace Treaty between the Philippines and Japan.
Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals.
On April 28, 2010, the Court rendered judgment dismissing petitioners’ action. Justice Mariano C. del Castillo wrote the decision for the Court. The Court essentially gave two reasons for its decision: it cannot grant the petition because, first, the Executive Department has the exclusive prerogative under the Constitution and the law to determine whether to espouse petitioners’ claim against Japan; and, second, the Philippines is not under any obligation in international law to espouse their claims.
On June 9, 2010, petitioners filed a motion for reconsideration of the Court’s decision. More than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a supplemental petition “detailing plagiarism committed by the court” under the second reason it gave for dismissing the petition and that “these stolen passages were also twisted to support the court’s erroneous conclusions that the Filipino comfort women of World War Two have no further legal remedies.” The media gave publicity to Atty. Roque’s announcement.
On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused Justice Del Castillo of “manifest intellectual theft and outright plagiarism” when he wrote the decision for the Court and of “twisting the true intents of the plagiarized sources … to suit the arguments of the assailed Judgment.” They charged Justice Del Castillo of copying without acknowledgement certain passages from three foreign articles:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute all sources used in it. He said in the pertinent part:
It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own. We recall that this ponencia was thrice included in the Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78 footnotes.
x x x x
As regards the claim of the petitioners that the concepts as contained in the above foreign materials were “twisted,” the same remains their opinion which we do not necessarily share.
On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief Justice, for investigation and recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddle’s concern, after reading the supplemental motion for reconsideration, was the Court’s conclusion that prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court “may have misread the argument [he] made in the article and employed them for cross purposes.” Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was “an extraordinary act of injustice” and a “singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.” The statement said that Justice Del Castillo had a “deliberate intention to appropriate the original authors’ work,” and that the Court’s decision amounted to “an act of intellectual fraud by copying works in order to mislead and deceive.”
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the Court’s decision were taken from his work, he was given generic reference only in the footnote and in connection with a citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is not consistent with what he advocated.
Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so they could make submissions that their client regarded as sensitive and confidential, involving the drafting process that went into the making of the Court’s decision in the Vinuya case. Petitioners’ counsels vigorously objected and the Committee sustained the objection. After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justice’s court researcher, whose name need not be mentioned here, explain the research work that went into the making of the decision in the Vinuya case. The Committee granted the request.
The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her “grievous mistake” and grief for having “caused an enormous amount of suffering for Justice Del Castillo and his family.”
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary.
x x x.
In fine, the Court held, as follows:
“1. DISMISSES for lack of merit petitioner Vinuya, et al.’s charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo;
2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses;
3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and reporting with copies of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing computer program especially when the volume of citations and footnoting is substantial; and
4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent future lapses in citations and attributions.
Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of petitioners’ Exhibit J, entitled “Restoring Integrity,” a statement by the Faculty of the University of the Philippines College of Law for the en banc’s consideration in relation to the separate pending matter concerning that supposed Faculty statement.”
The ratiocination of the Court is extensively quoted below, thus:
X x x.
At its most basic, plagiarism means the theft of another person’s language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is “to take (ideas, writings, etc.) from (another) and pass them off as one’s own.” The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.
The Passages from Tams
Petitioners point out that the Vinuya decision lifted passages from Tams’ book, Enforcing Erga Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the author thought was a mere generic reference. But, although Tams himself may have believed that the footnoting in this case was not “an appropriate form of referencing,” he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tams’ work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams’ article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement “See Tams, Enforcing Obligations Erga Omnes in International Law (2005)” in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase “cited in” rather than the phrase “See” would make a case of mere inadvertent slip in attribution rather than a case of “manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.
The Passages from Ellis
and Criddle-Descent
Petitioners also attack the Court’s decision for lifting and using as footnotes, without attribution to the author, passages from the published work of Ellis. The Court made the following statement on page 27 of its decision, marked with Footnote 65 at the end:
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law. 65 xxx
Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came almost verbatim from Ellis’ article, such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of “troop discipline.” (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224). It specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection of their “honour.” (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, “Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal”; General Assembly document A/64/Add.1 of 1946; See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INT’L. COMP. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.
But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
Next, petitioners also point out that the following eight sentences and their accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:
xxx In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.71
Early strains of the jus cogens doctrine have existed since the 1700s,72 but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain international norms had attained the status of jus cogens,75 the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”76 In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”77 Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78
Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no attributions were made to the two authors in those footnotes.
The Explanation
Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.
In the old days, the common practice was that after a Justice would have assigned a case for study and report, the researcher would source his materials mostly from available law books and published articles on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up. He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a manual typewriter. This occasion would give him a clear opportunity to attribute the materials used to their authors or sources.
With the advent of computers, however, as Justice Del Castillo’s researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her “main manuscript,” a smorgasbord plate of materials that she thought she might need. The researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.
Here, Justice Del Castillo’s researcher did just that. She electronically “cut” relevant materials from books and journals in the Westlaw website and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.
Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.
First Finding
The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.
For most senior lawyers and judges who are not computer literate, a familiar example similar to the circumstances of the present case would probably help illustrate the likelihood of such an accident happening. If researcher X, for example, happens to be interested in “the inalienable character of juridical personality” in connection with an assignment and if the book of the learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X would probably show interest in the following passage from that book:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that Tolentino did not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign authors.
When researcher X copies and pastes the above passage and its footnote into a manuscript-in-the-making in his computer, the footnote number would, given the computer program in use, automatically change and adjust to the footnoting sequence of researcher X’s manuscript. Thus, if the preceding footnote in the manuscript when the passage from Tolentino was pasted on it is 23, Tolentino’s footnote would automatically change from the original Footnote 15 to Footnote 24.
But then, to be of use in his materials-gathering scheme, researcher X would have to tag the Tolentino passage with a short description of its subject for easy reference. A suitable subject description would be: “The inalienable character of juridical personality.23” The footnote mark, 23 From Tolentino, which researcher X attaches to the subject tag, serves as reminder to him to attribute the passage in its final form to Tolentino. After the passage has been tagged, it would now appear like this:
The inalienable character of juridical personality.23
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
The tag is of course temporary and would later have to go. It serves but a marker to help researcher X maneuver the passage into the right spot in his final manuscript.
The mistake of Justice Del Castillo’s researcher is that, after the Justice had decided what texts, passages, and citations were to be retained including those from Criddle-Descent and Ellis, and when she was already cleaning up her work and deleting all subject tags, she unintentionally deleted the footnotes that went with such tags—with disastrous effect.
To understand this, in Tolentino’s example, the equivalent would be researcher X’s removal during cleanup of the tag, “The inalienable character of juridical personality.23,” by a simple “delete” operation, and the unintended removal as well of the accompanying footnote (#23). The erasure of the footnote eliminates the link between the lifted passage and its source, Tolentino’s book. Only the following would remain in the manuscript:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed.
This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted the subject tags and, accidentally, their accompanying footnotes that served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them was not easily detectable.
Petitioners point out, however, that Justice Del Castillo’s verified letter of July 22, 2010 is inconsistent with his researcher’s claim that the omissions were mere errors in attribution. They cite the fact that the Justice did not disclose his researcher’s error in that letter despite the latter’s confession regarding her mistake even before the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and sought to whitewash the case.
But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely explained “that there was every intention to attribute all sources whenever due” and that there was never “any malicious intent to appropriate another’s work as our own,” which as it turns out is a true statement. He recalled how the Court deliberated upon the case more than once, prompting major revisions in the draft of the decision. In the process, “(s)ources were re-studied, discussions modified, passages added or deleted.” Nothing in the letter suggests a cover-up. Indeed, it did not preclude a researcher’s inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose his researcher’s error. He wrote the decision for the Court and was expected to take full responsibility for any lapse arising from its preparation. What is more, the process of drafting a particular decision for the Court is confidential, which explained his initial request to be heard on the matter without the attendance of the other parties.
Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly respected professors of international law. The law journals that published their works have exceptional reputations. It did not make sense to intentionally omit attribution to these authors when the decision cites an abundance of other sources. Citing these authors as the sources of the lifted passages would enhance rather than diminish their informative value. Both Justice Del Castillo and his researcher gain nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure oversight.
Petitioners of course insist that intent is not material in committing plagiarism since all that a writer has to do, to avoid the charge, is to enclose lifted portions with quotation marks and acknowledge the sources from which these were taken. Petitioners point out that the Court should apply to this case the ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine. They argue that standards on plagiarism in the academe should apply with more force to the judiciary.
But petitioners’ theory ignores the fact that plagiarism is essentially a form of fraud where intent to deceive is inherent. Their theory provides no room for errors in research, an unrealistic position considering that there is hardly any substantial written work in any field of discipline that is free of any mistake. The theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical explanations.
Indeed, the 8th edition of Black’s Law Dictionary defines plagiarism as the “deliberate and knowing presentation of another person's original ideas or creative expressions as one's own.” Thus, plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.
Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass off another’s work as one’s own is not required in plagiarism. The Court merely affirmed the academic freedom of a university to withdraw a master’s degree that a student obtained based on evidence that she misappropriated the work of others, passing them off as her own. This is not the case here since, as already stated, Justice Del Castillo actually imputed the borrowed passages to others.
Second Finding
The Court also adopts the Committee’s finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place.
This is best illustrated in the familiar example above. After the deletion of the subject tag and, accidentally, its footnote which connects to the source, the lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Although the unintended deletion severed the passage’s link to Tolentino, the passage remains to be attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its footnote reference cancel out any impression that the passage is a creation of researcher X. It is the same with the passages from Criddle-Descent and Ellis. Because such passages remained attributed by the footnotes to the authors’ original sources, the omission of attributions to Criddle-Descent and Ellis gave no impression that the passages were the creations of Justice Del Castillo. This wholly negates the idea that he was passing them off as his own thoughts.
True the subject passages in this case were reproduced in the Vinuya decision without placing them in quotation marks. But such passages are much unlike the creative line from Robert Frost, “The woods are lovely, dark, and deep, but I have promises to keep, and miles to go before I sleep, and miles to go before I sleep.” The passages here consisted of common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm.
To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer’s thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.
Third Finding
Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The Court adopts the Committee’s finding that this is not so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the Court. To twist means “to distort or pervert the meaning of.” For example, if one lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose Palma who wrote it “did not love his country,” then there is “twisting” or misrepresentation of what the anthem’s lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors Tams, Criddle-Descent, and Ellis supported the Court’s conclusion that the Philippines is not under any obligation in international law to espouse Vinuya et al.’s claims.
The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo “twisted” their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens.
Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of “twisting” or misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action. This is not the case here. Justice Del Castillo’s acts or omissions were not shown to have been impelled by any of such disreputable motives. If the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record.
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over his researcher and should not have surrendered the writing of the decision to the latter.
But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his researcher, which is contrary to the evidence adduced during the hearing. As his researcher testified, the Justice set the direction that the research and study were to take by discussing the issues with her, setting forth his position on those issues, and reviewing and commenting on the study that she was putting together until he was completely satisfied with it. In every sense, Justice Del Castillo was in control of the writing of the report to the Court, which report eventually became the basis for the decision, and determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent of a “law clerk” in the United States Supreme Court, is standard practice in the high courts of all nations. This is dictated by necessity. With about 80 to 100 cases assigned to a Justice in our Court each month, it would be truly senseless for him to do all the studies and research, going to the library, searching the internet, checking footnotes, and watching the punctuations. If he does all these by himself, he would have to allocate at least one to two weeks of work for each case that has been submitted for decision. The wheels of justice in the Supreme Court will grind to a halt under such a proposition.
What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in the Vinuya case without, however, having to look over his researcher’s shoulder as she cleaned up her draft report to ensure that she hit the right computer keys. The Justice’s researcher was after all competent in the field of assignment given her. She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her school’s Law Journal, and placed fourth in the bar examinations when she took it. She earned a master’s degree in International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program, which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world. Justice Del Castillo did not exercise bad judgment in assigning the research work in the Vinuya case to her.
Can errors in preparing decisions be prevented? Not until computers cease to be operated by human beings who are vulnerable to human errors. They are hypocrites who believe that the courts should be as error-free as they themselves are.
Incidentally, in the course of the submission of petitioners’ exhibits, the Committee noted that petitioners’ Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the allegations of plagiarism and misinterpretation, was a mere dummy. The whole of the statement was reproduced but the signatures portion below merely listed the names of 38 faculty members, in solid rows, with the letters “Sgd” or “signed” printed beside the names without exception. These included the name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.
Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to present the signed copy within three days of the August 26 hearing. He complied. As it turned out, the original statement was signed by only a minority of the faculty members on the list. The set of signatories that appeared like solid teeth in the dummy turned out to be broken teeth in the original. Since only 37 out of the 81 on the list signed the document, it does not appear to be a statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did not sign the statement, contrary to what the dummy represented. The Committee wondered why the Dean submitted a dummy of the signed document when U.P. has an abundance of copying machines.
Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration in relation to that matter.
X x x.
JUSTICE MA. LOURDES SERENO dissented. In her dissent, she stated the belief:
"1. That Justice Mariano C. del Castillo and his unnamed researcher have committed plagiarism in the drafting and passing on of the ponencia in the Vinuya decision;
2. That this Court should request Justice del Castillo to acknowledge the plagiarism and apologize to the complaining authors for his mistake;
3. That this Court should cause the issuance of a corrected version of the Vinuya decision in the form of a “Corrigendum”;
4. That court attorneys should be provided with the appropriate manuals on writing and legal citation, and should be informed that the excerpts complained of and described in Tables A, B, and C of this opinion are acts of plagiarism and not mere editing errors or computer-generated mistakes;
5. That the refusal of the majority to pronounce that plagiarism was committed by Justice del Castillo means that any judicial opinion on his liability or that of his researcher would be academic and speculative, a ruling which this Dissenting Opinion will not venture to make a pronouncement on; and
6. That a copy of this Dissenting Opinion should be circulated by the Public Information Office in the same manner as the Majority Decision to the complaining authors Christian J. Tams, Mark Ellis, Evan Criddle and Evan Fox-Decent."
The text of her dissent is extensively quoted hereinbelow, thus:
X x x.
What is black can be called “white” but it cannot turn white by the mere calling. The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision and the determination of the liability that results from a finding of plagiarism. Specifically, it made “malicious intent”, which heretofore had not been relevant to a finding of plagiarism, an essential element.
The majority Decision will thus stand against the overwhelming conventions on what constitutes plagiarism. In doing so, the Decision has created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists “lack of malicious intent” as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. Under Section 184 of R.A. 8293 (“An Act Describing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Powers and Functions, and for Other Purposes”), or the Intellectual Property Code of the Philippines, there is no infringement of copyright in the use of another's work in:
(b) the making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided that the source and the name of the author, if appearing on the work, are mentioned. (Emphasis supplied)
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate ─ and that therefore there was no plagiarism ─ lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.
x x x.
Forms of Plagiarism
There are many ways by which plagiarism can be committed. For the purpose of this analysis, we used the standard reference book prescribed for Harvard University students, “Writing with Sources” by Gordon Harvey.
Harvey identifies four forms of plagiarism: (a) uncited data or information; (b) an uncited idea, whether a specific claim or general concept; (c) an unquoted but verbatim phrase or passage; and (d) an uncited structure or organizing strategy. He then explains how each form or mode of plagiarism is committed. Plagiarism is committed in mode (a) by “plagiarizing information that is not common knowledge.” Mode (b) is committed when “distinctive ideas are plagiarized,” “even though you present them in a different order and in different words, because they are uncited.”
Even if there has been a prior citation, succeeding appropriations of an idea to make it appear as your own is plagiarism, because the “[previous] citation in [an earlier] passage is a deception.” Mode (c) is committed when “you … borrowed several distinctive phrases verbatim, without quotation marks…” Mode (d) is committed when, though the words and details are original, “(y)ou have, however, taken the structural framework or outline directly from the source passage … even though, again, your language differs from your source and your invented examples are original.”
These forms of plagiarism can exist simultaneously in one and the same passage. There may be a complete failure to use quotation marks in one part of the sentence or paragraph while combining that part with phrases employing an uncited structure or organizing strategy. There may be patchwork plagiarizing committed by collating different works or excerpts from the same work without proper attribution.
These acts of plagiarism can also be committed in footnotes in the same way and at the same degree of unacceptability as plagiarized passages in the body. This is especially frowned upon in footnotes that are discursive or “content” footnotes or endnotes. Harvey explains that a discursive footnote or endnote is “a note that includes comments, not just publication information . . . when you want to tell your reader something extra to the strict development of your argument, or incorporate extra information about sources.”
Violations of Rules against
Plagiarism in the Vinuya Decision
Below are violations of the existing rules against plagiarism that can be found in the Vinuya decision. The alphanumeric tags correspond to the table letter and row numbers in the tables provided above.
A.1 Failure to use quotation marks to indicate that the entire paragraph in the body of the decision on page 30 was not the ponente’s original paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is wholly insufficient because without the quotation marks, there is nothing to alert the reader that the paragraph was lifted verbatim from Tams. The footnote leaves the reader with the impression that the said paragraph is the author’s own analysis of erga omnes.
The “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” line in footnote 69 of the Vinuya decision does not clearly indicate that the statement on Simma’s observation was lifted directly from Tams’s work; it only directs the reader to Tams’s work should the reader wish to read further discussions on the matter.
B.1 Failure to use quotation marks to indicate that the two sentences were not the ponente’s, but were lifted verbatim from two non-adjoining sentences found on pages 331 and 332 of the Yale Law Journal of International Law article of Criddle & Fox-Decent and with absolutely no attribution to the latter.
B.2 Failure to use quotation marks to indicate that the sentence fragment on peremptory norms was not the ponente’s original writing, but was lifted verbatim from page 334 of the Yale Law Journal of International Law article of Criddle & Fox-Decent with absolutely no attribution to the authors.
B.3 Failure to use quotation marks to indicate that the first sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted verbatim from Criddle & Fox-Decent’s work at page 334.
B.4 Failure to use quotation marks to indicate that the third sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted from Criddle & Fox-Decent’s work at 334-335.
B.5 Failure to indicate that one footnote source in discursive footnote 71 was lifted verbatim from discursive footnote 9 of Tams; thus, even the idea being propounded in this discursive part of footnote 71 was presented as the ponente’s, instead of Criddle’s & Fox-Decent’s.
B.6 Failure to indicate that the last discursive sentence in footnote 71 and the citations thereof were not the ponente’s, but were lifted verbatim from footnote 9 of Criddle & Fox-Decent’s work.
B.7 Failure to indicate that the first discursive sentence of footnote 72 was not the ponente’s, but was lifted verbatim from page 335 of Criddle & Fox-Decent’s work.
B.8 Failure to indicate that the second discursive sentence of footnote 72 was not the ponente’s, but was lifted verbatim from pages 335-336 of Criddle and Fox-Decent’s work.
B.9 Failure to indicate that the citation and the discursive passage thereon in the last sentence of footnote 72 was not the ponente’s, but was lifted verbatim from discursive footnote 18 of Criddle & Fox-Decent’s work.
B.10 Failure to use quotation marks to indicate that a phrase in the body of the decision on page 31 was not the ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.11 Failure to indicate that the entirety of discursive footnote 73 was not the ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.12 Failure to indicate that the idea of lack of “consensus on whether certain international norms had attained the status of jus cogens” was a paraphrase of a sentence combined with a verbatim lifting of a phrase that appears on page 336 of Criddle & Fox-Decent’s work and was not the ponente’s own conclusion. This is an example of patchwork plagiarism.
B.13 Failure to indicate that the entirety of discursive footnote 74 on page 31 of the Decision was not the ponente’s comment on the source cited, but was lifted verbatim from footnote 23 of Criddle & Fox-Decent’s work.
B.14 Failure to indicate through quotation marks and with the proper attribution to Criddle that the first two sentences of page 32 were not the ponente’s, but were lifted verbatim from two non-adjoining sentences on pages 337-338 of Criddle & Fox-Decent’s work.
B.15 Failure to indicate through quotation marks and the right citation that the discursive sentence in the second paragraph of footnote 77, and the citation therein, were not the ponente’s, but were lifted verbatim from page 346 of the body of Criddle & Fox-Decent’s work in the instance of the discursive sentence, and from footnote 72 of Criddle & Fox-Decent’s work in the instance of the case cited and the description thereof.
B.16 Failure to indicate that the choice of citation and the discursive thereon statement in the second sentence of the second paragraph of discursive footnote 77 was not the ponente’s, but was lifted verbatim from footnote 72 of Criddle & Fox-Decent’s work.
B.17 Failure to indicate through quotation marks and the right citations that the entirety of the discursive third to fifth paragraphs of footnote 77 were not the product of the ponente’s own analysis and choice of sources, but were lifted verbatim from footnotes 73 and 77 on pages 346-347 of Criddle & Fox-Decent’s work.
C.1 to C.6 Failure to use quotation marks and the right citations to indicate that half of the long discursive footnote 65, including the sources cited therein, was actually comprised of the rearrangement, and in some parts, rephrasing of 18 sentences found on pages 227-228 of Mr. Ellis’s work in Case Western Law Reserve Journal of International Law.
This painstaking part-by-part analysis of the Vinuya decision is prompted by the fact that so many, including international academicians, await the Court’s action on this plagiarism charge ─ whether it will in all candor acknowledge that there is a set of conventions by which all intellectual work is to be judged and thus fulfill its role as an honest court; or blind itself to the unhappy work of its member.
The text of the Decision itself reveals the evidence of plagiarism. The tearful apology of the legal researcher to the family of the ponente and her acknowledgment of the gravity of the act of omitting attributions is an admission that something wrong was committed. Her admission that the correct attributions went missing in the process of her work is an admission of plagiarism. The evidence in the text of the Vinuya Decision and the acknowledgment by the legal researcher are sufficient for the determination of plagiarism.
The Place of the Plagiarized
Portions in the Vinuya Decision
The suspect portions of the majority decision start from the discursive footnotes of the first full paragraph of page 27. In that paragraph, the idea sought to be developed was that while rape and sexual slavery may be morally reprehensible and impermissible by international legal norms, petitioners have failed to make the logical leap to conclude that the Philippines is thus under international legal duty to prosecute Japan for the said crime. The plagiarized work found in discursive footnote 65 largely consists of the exposition by Mr. Ellis of the development of the concept of rape as an international crime. The impression obtained by any reader is that the ponente has much to say about how this crime evolved in international law, and that he is an expert on this matter.
There are two intervening paragraphs before the next suspect portion of the decision. The latter starts from the second paragraph on page 30 and continues all the way up to the first paragraph of page 32. The discussion on the erga omnes obligation of states almost cannot exist, or at the very least cannot be sustained, without the plagiarized works of Messrs. Tams, Criddle and Decent-Fox. There is basis to say that the plagiarism of this portion is significant.
How the Majority Decision
Treated the Specific Allegations
of Plagiarism
The majority Decision narrates and explains:
“The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her “grievous mistake” and grief for having “caused an enormous amount of suffering for Justice Del Castillo and his family.”
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary.
x x x x x x x x x
“… although Tams himself may have believed that the footnoting in his case was not “an appropriate form of referencing,” he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tam’s work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tam himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tam’s article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement “See Tams, Enforcing Obligations Erga Omnes in International Law (2005)” in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase “cited in” rather than the phrase “See” would make a case of mere inadvertent slip in attribution rather than a case of “manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.”
x x x
“Footnote 65 appears down the bottom of the page. Since the lengthily passages in that footnote came almost verbatim from Ellis’ article, such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said.) x x x
“But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
x x x
“Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no attributions were made to the two authors in those footnotes.
“Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.
x x x
“With the advent of computers, however as Justice Del Castillo’s researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her “main manuscript,” a smorgasbord plate of materials that she thought she might need. The researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.
“Here, Justice Del Castillo’s researcher did just that. She electronically “cut” relevant materials from books and journals in the Westlaw website and “pasted” these to a “main manuscript” in her computer that contained the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.
“Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.
“The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.”
Contrary to the view of my esteemed colleagues, the above is not a fair presentation of what happens in electronically generated writings aided by electronic research.
First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the “keying-in” of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.
Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.
Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale.
Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.
Fifth, the mention of Tams in “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” in footnote 69 of the Vinuya decision was not a mere insufficiency in “clarity of writing,” but a case of plagiarism under the rule prohibiting the use of misleading citations.
Sixth, the analogy that was chosen ─ that of a carpenter who discards materials that do not fit into his carpentry work ─ is completely inappropriate. In the scheme of “cutting and pasting” that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution.
Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, if they took their legal research courses in law school and their undergraduate research courses seriously. This knowledge can be easily picked up and updated by browsing many free online sources on the subject of writing standards. In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.
Plagiarism and Judicial Plagiarism
Plagiarism is an act that does not depend merely on the nature of the object, i.e. what is plagiarized, but also hinges on the process, i.e. what has been done to the object. The elements of this process are the act of copying the plagiarized work and the subsequent omission in failing to attribute the work to its author. Plagiarism thus does not consist solely of using the work of others in one's own work, but of the former in conjunction with the failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as one's own. As the work is another's and used without attribution, the plagiarist derives the benefit of use from the plagiarized work without expending the requisite effort for the same ─ at a cost (as in the concept of “opportunity cost”) to its author who could otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.
If the question of plagiarism, then, turns on a failure of attribution, judicial plagiarism in the case at bar “arises when judges author opinions that employ materials from copyrighted sources such as law journals or books, but neglect to give credit to the author.” Doing so effectively implies the staking of a claim on the copied work as the judge's own. Note that there is no requirement of extent of copying or a minimum number of instances of unattributed usage for an act to be considered a plagiarist act, nor is the intent to deceive or to copy without attribution a prerequisite of plagiarism. In Dursht's exhaustive analysis of judicial plagiarism she cites the case of Newman v. Burgin wherein the court said that plagiarism may be done “through negligence or recklessness without intent to deceive.” Dursht in addition notes that intent may also be taken as the intent to claim authorship of the copied work, whether or not there was intent to deceive, citing Napolitano v. Trustees of Princeton Univ.
George describes the following among the types of judicial plagiarism:
Borrowed Text: When quoting a legal periodical, law review, treatise or other such source, the judicial writer must surround the borrowed text with quotation marks or use a block quote. . . . Additionally, the source should be referenced in the text . . .
Using another's language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.
Reference errors: The judge may fail to put quotation marks around a clause, phrase or paragraph that is a direct quote from another's writing even though he cites the author correctly. This is plagiarism even though it may be inadvertent.
While indeed the notion of having committed judicial plagiarism may be unsettling to contemplate, as it may raise in the mind of a judge the question of his or her own culpability, it is a grievous mistake to overlook the possibility of the commission of judicial plagiarism or the fact that judicial plagiarism is categorized by its very definition as a subset of plagiarism. That a judge, in lifting words from a source and failing to attribute said words to said source in the writing of a decision, committed specifically judicial plagiarism does not derogate from the nature of the act as a plagiarist act. Nor does any claim of inadvertence or lack of intent in the commission of a plagiarist act change the characterization of the act as plagiarism.
Penalties for Plagiarism and
Judicial Plagiarism
In the academe, plagiarism is generally dealt with severely when found out; many universities have policies on plagiarism detailing the sanctions that may be imposed on students who are found to have plagiarized in their coursework and other academic requirements. These run the gamut from an automatic failing grade in the course for which the offending work was submitted, or in more egregious cases, outright expulsion from the university. Sanctions for plagiarism in the academe operate through “the denial of certification or recognition of achievement” to the extent of rescinding or denying degrees. In the case of law students who do manage to obtain their degrees, their admission to the bar may be hindered due to questions about their “character or fitness to practice law.” Indeed, plagiarism, due to the severity of the penalties it may incur, is often identified with the punishment of “academic death.” The academe justifies the harshness of the sanctions it imposes with the seriousness of the offense: plagiarism is seen not only to undermine the credibility and importance of scholarship, but also to deprive the rightful author of what is often one of the most valuable currencies in the academe: credit for intellectual achievement ─ an act of debasing the coinage, as it were. Thus the rules of many academic institutions sanctioning plagiarism as a violation of academic ethics and a serious offense often classed under the broader heading of “academic dishonesty.”
The imposition of sanctions for acts of judicial plagiarism, however, is not as clear-cut. While George recognizes the lack of attribution as the fundamental mark of judicial plagiarism, she notes in the same breath that the act is “without legal sanction.” Past instances of censure notwithstanding (as in examples of condemnation of plagiarism cited by Lebovits et al, most particularly the censure of the actions of the judge who plagiarized a law-review article in Brennan; the admonition issued by the Canadian Federal Court of Appeal in the case of Apotex) there is still no strictly prevailing consensus regarding the need or obligation to impose sanctions on judges who have committed acts of judicial plagiarism. This may be due in a large part to the absence of expectations of originality in the decisions penned by judges, as courts are required to “consider and usually . . . follow precedent.” In so fulfilling her obligations, it may become imperative for the judge to use "the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute." Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism “detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy” or that it falls far short of the high ethical standards to which judges must adhere. The lack of definitiveness in sanctions for judicial plagiarism may also be due to the reluctance of judges themselves to confront the issue of plagiarism in the context of judicial writing; the apprehension caused by “feelings of guilt” being due to “the possibility that plagiarism has unknowingly or intentionally been committed” and a “traditional” hesitance to consider plagiarism as “being applicable to judicial writings.”
Findings of judicial plagiarism do not necessarily carry with them the imposition of sanctions, nor do they present unequivocal demands for rehearing or the reversal of rulings. In Liggett Group, Inc., et al v Harold M. Engle, M.D. et al, a U.S. tobacco class action suit, “[the] plaintiffs' counsel filed a motion for rehearing alleging that the appellate opinion copied large portions of the defendants' briefs. . . . without attribution.” The result of this, the plaintiffs claimed, was the creation of the “appearance of impropriety,” the abdication of judicative duties, the relinquishing of independence to defendants, the failure to maintain impartiality, and therefore, as an act of judicial plagiarism, was “a misrepresentation of the facts found by the trial court and denied plaintiffs due process of law.” The three-judge panel denied the motion. In addition, “courts generally have been reluctant to reverse for the verbatim adoption of prepared findings.” In Anderson v. City of Bessemer City, North Carolina it was held that even though the trial judge's findings of fact may have been adopted verbatim from the prevailing party, the findings “may be reversed only if clearly erroneous.”
On Guilt and Hypocrisy
It is not hypocrisy, contrary to what is implied in a statement in the majority Decision, to make a finding of plagiarism when plagiarism exists. To conclude thus is to condemn wholesale all the academic thesis committees, student disciplinary tribunals and editorial boards who have made it their business to ensure that no plagiarism is tolerated in their institutions and industry. In accepting those review and quality control responsibilities, they are not making themselves out to be error-free, but rather, they are exerting themselves to improve the level of honesty in the original works generated in their institution so that the coinage and currency of intellectual life – originality and the attribution of originality – is maintained. The incentive system of intellectual creation is made to work so that the whole society benefits from the encouraged output.
In the case of judicial plagiarism, it is entirely possible for judges to have violated the rules against plagiarism out of ignorance or from the sheer fact that in order to cope with their caseloads, they have to rely on researchers for part of the work. That would have been a very interesting argument to consider. But ignorance is not pleaded here, nor is the inability to supervise a legal researcher pleaded to escape liability on the part of the ponente. Rather, the defense was that no plagiarism existed. This conclusion however is unacceptable for the reasons stated above.
As noted above, writers have ventured to say that the reluctance to address judicial plagiarism may stem from fear, nay, guilt. Fear that the judge who says plagiarism was committed by another is himself guilty of plagiarism. But that is neither here nor there. We must apply the conventions against judicial plagiarism because we must, having taken on that obligation when the Court took cognizance of the plagiarism complaint, not because any one of us is error-free. In fact, the statement on hypocrisy in the majority Decision betrays prejudgment of the complainants as hypocrites, and a complaint against a sitting judge for plagiarism would appear impossible to win.
In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.
As earlier said, a determination of the existence of plagiarism in
decision-making is not conclusive on the disciplinary measure to be imposed. Different jurisdictions have different treatments. At the very least however, the process of rectification must start from an acknowledgment and apology for the offense. After such have been done, then consideration of the circumstances that mitigate the offense are weighed. But not before then.
The Unfortunate Result of
the Majority Decision
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. 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.
The Way Forward
Assuming that the Court had found that judicial plagiarism had indeed been committed in the Vinuya decision, the Court could then have moved to the next logical question: what then is the legal responsibility of the ponente of the Vinuya decision for having passed on to the Court en banc a ponencia that contains plagiarized parts?
There would have been at that point two possible choices for the Court vis-Ã -vis the ponente ─ to subject him to disciplinary measures or to excuse him. In order to determine whether the acts committed would have warranted discipline, the Court should have laid down the standard of diligence and responsibility that a judge has over his actions, as well as the disciplinary measures that are available and appropriate.
The Court could also have chosen to attribute liability to the researcher who had admitted to have caused the plagiarism. In In re Hinden, disciplinary measures were imposed on an attorney who plagiarized law review articles.
x x x.
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