In Re del Castillo, A.M. No. 10-7-17-SC, October 12, 2010 Digest2.

FACTS: Justice Mariano del Castillo wrote the decision for the Court on the case of petitioners Isabelita. Vinuya and about 70 other elderly women all members of the Malaya Lolas Organization, filed with the Court, a special civil action for certiorari with application for preliminary mandatory injuction against the executive secretary, the Secretary of Forreign Affairs, the secretary of Justice, and the office of the Solicitor General. Their petition was denied. Petitioners filed a motion for reconsideration of the courts decision. More than 2 months later on counsel for petitioners, Atty. Roque Jr. announced in his online blog that his clients would file a supplemental petition detailing plagiarism committed by the Court. ISSUE: Whether or not Justice Del Castillo plagiarized published works of authors Tams, Criddle-Descent, and Elllis? Whether or not Del Castillo twisted the works of these authors to make it appear that such works supported the Courts position in the Vinuya decision? RULING: The Supreme Court ruled that del Castillo did not commit plagiarism because when his researcher cut research materials from a law website and pasted them on the decision once in manuscript, the attributions were accidentally deleted. The Supreme Court said the allegation is baseless because the lifted portions only provided background facts and that the change or twisting or misrepresentation against him is to say the least, unkind. To be more accurate, however, SC claimed the charge is reckless and obtuse.

DECISION PER CURIAM: I. THE FACTS In the landmark decision of Vinuya vs. Executive Secretary, G.R. No. 162230,promulgated last April 28, 2010, the Supreme Court DISMISSED the petition filed by a group of Filipino comfort women during the Japanese military occupation of the Philippines. The Court, speaking through Justice Mariano C. del Castillo, held that the petition seeking to compel the Executive Department to espouse the petitioners claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals has NO MERIT because: (1) the prerogative to determine whether to espouse petitioners claims against Japan belongs exclusively to the Executive Department; and (2) the Philippines is not under any international obligation to espouse the petitioners claims. Discontented with the foregoing decision, the petitioners in Vinuya filed a motion for reconsideration. Subsequently, they also filed a supplemental motion for reconsideration, this time

accusing the Justice del Castillo of plagiarizing (copying without attribution) and twisting passages from three foreign legal articles to support the Courts position in the Vinuya decision: (1) A Fiduciary Theory of Jus Cogens by Professors Evan J. Criddle (Associate Professor of Syracuse University College of Law) and Evan Fox-Descent (Assistant Professor of McGill University Faculty of Law) published in the Yale Journal of International Law in 2009; (2) Breaking the Silence: Rape as an International Crime by Mark Ellis (Executive Director of the International Bar Association), published in the Case Western Reserve Journal of International Law in 2006; and (3) Enforcing Erga Omnes Obligations in International Law by Professor Christian J. Tams (Chair of International Law of University of Glasgow School of Law), published in Cambridge University Press (2005). The Court then referred the charges against Justice Del Castillo to its Committee on Ethics and Ethical Standards, chaired by Chief Justice Renato Corona, for investigation and recommendation. After the proceedings before it, the Committee submitted its findings and recommendations to the Court en banc, which then treated and decided the controversy as an administrative matter.

II. THE ISSUES 1. Did Justice Del Castillo, in writing the opinion for the Court in the Vinuya case, plagiarize the published works of authors Tams, Criddle-Descent, and Ellis? 2. Did Justice Del Castillo twist the works of these authors to make it appear that such works supported the Courts position in the Vinuya decision?

III. THE RULING [By a 10-2 vote, with three Justices including Justice del Castillo taking no part, the Court DISMISSED the charges for lack of merit and held that Justice del Castillo was NOT GUILTY of plagiarizing and twisting the cited materials and hence did NOT commit gross negligence.] 1. NO, Justice Del Castillo, in writing the opinion for the Court in the Vinuya case, did NOT plagiarize the published works of authors Tams, Criddle-Descent, and Ellis. .

At its most basic, plagiarism means the theft of another persons 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 ones own. The passing off of the work of another as ones own is thus an indispensable element of plagiarism. As regards that one passage from Professor Tams, 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 Justices citations were imprecise, it would just be a case of bad footnot ing 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. As regards the passages from Ellis, the Court notes that the lengthy passages in Footnote 65 of Vinuya came almost verbatim from Ellis article but did not contain an acknowledgment or introduction that they are from that article. Moreover, as regards the passages from the work of Professors Criddle and Descent, it was also observed that the Vinuya decision lifted the portions, including their footnotes, from Criddle-Descents article, A Fiduciary Theory of Jus Cogens as footnotes in the Vinuya decision without any attributions made to the two authors. Unless amply explained, these unattributed lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. The explanation came from one of Justice Del Castillos researchers, a court-employed attorney. She 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 lawrelated materials to which the Court subscribes.The 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. It was notable that 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. 2. NO, Justice Del Castillo did NOT twist the works of authors Tams, Criddle-Descent, and Ellis to make it appear that such works supported the Courts position in the Vinuya decision. The decision [in Vinuya] did NOT twist the passages from Tams, Criddle-Descent, and Ellis. 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 anthems 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 Courts conclusion that the Philippines is not under any obligation in international law to espouse Vinuya et al.s claims.

RESOLUTION PER CURIAM: *T+he Courts decision in the present case does not set aside *the different norms assumed by educational institutions in treating plagiarism]. The decision makes this clear, thus: To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writers 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. xxx xxx xxx

There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are to stand by precedent and not to disturb settled

point. Once the Court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same. And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators. Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability. xxx xxx xxx

If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciarys more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism. This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the judges creativity. It is hereactually the substance of their decisionsthat their genius, originality, and honest labor can be found, of which they should be proud. In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. He identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the law relevant to their resolution. It was here that he drew materials from various sources, including

the three foreign authors cited in the charges against him. He compared the divergent views these present as they developed in history. He then explained why the Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was original. He had but done an honest work. xxx xxx xxx

True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law. Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The authors concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his own. xxx xxx xxx

ACCORDINGLY, the Court DENIES petitioners motion for reconsideration for lack of merit.

DISSENTING OPINION [I am posting here a digest of the rather lengthy Dissenting Opinion of Justice Maria Lourdes Sereno in A.M. No. 10-7-17-SC promulgated last October 12, 2010. Taken together with her subsequent Dissenting Opinion from the Per Curiam Resolution promulgated on February 8, 2011, this opinion will enable you, dear readers, to compare the reasoning of the majority and the minority in this administrative matter. It is hoped that in being able to do so, you will get a

glimpse of how the gods at Padre Faura can sometimes use sophism to justify a pre-ordained result in a controversy. To my mind, Justice Serenos dissent enunciates the correct analysis and conclusions on the issue of whether Justice del Castillo plagiarized (and twisted) the works of three foreign legal scholars in the Vinuya decision. I have read and analyzed (more than once) the conflicting opinions of the High Tribunal, and I am convinced beyond cavil that the majority erred in relying too much on the reason (accidental deletion of the attributions) given by the researcher of Justice del Castillo. Indeed, the explanation offered, which the majority readily swallowed hook, line, and sinker might have been plausible if the non-attribution occurred only once or twice. But as shown by the painstaking analysis of Justice Sereno given below, this is not so in this case. Do read on to determine for yourself what I am talking about.]

SERENO, J.: 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. xxx xxx xxx

*As regards the passage from Professor Tams, there was] [f]ailure to use quotation marks to indicate that the entire paragraph in the body of the decision on page 30 was not the ponentes original paragraph, but was lifted verbatim from Tamss 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 authors 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 Simmas observation was lifted directly from Tamss work; it only directs the reader to Tamss work should the reader wish to read further discussions on the matter. [As regards the passages from Professors Criddle and Descent that were used either in the body or in the discursive footnotes of the Vinuya decision, Justice Sereno noted and discussed on the seventeen (17) instances when Justice del Castillo failed to use quotation marks to indicate that the passages were not his but were lifted from Criddle & Fox-Decents work

published in Yale Law Journal of International Law. Some of the passages were absolutely without any attribution to the authors.] *As regards the passages from Ellis, there was] [f]ailure to use quotation marks and the right citations to indicate that half of the long discursive footnote 65 in the Vinuyadecision, 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. Elliss work in Case Western Law Reserve Journal of International Law. xxx xxx xxx

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. xxx xxx xxx

The suspect portions of the majority [sic] 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. xxx xxx xxx

Contrary to the view of my esteemed colleagues, the [narration and explanation found in the majority decision are] 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 *majoritys+ explanation regarding the lines quoted *from the work of Professor Tams] may touch upon what happened in [this particular incident of non-attribution], but it does not relate to what happened in [all the other 23 incidents of non-attribution], 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 Tamss work, no mention was made at all of the works of Criddle & FoxDecent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale. Fourth, the researchers 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 Words 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.