Republic of the Philippines BERSAMIN, J.
:
SUPREME COURT
Manila
EN BANC
G.R. No. 162230 August 13, 2014
ISABELITA C. VINUY A, VICTORIA C. DELA PENA, HERMINIHILDA
MANIMBO, LEONOR H. SUMA WANG, CANDELARIA L. SOLIMAN,
MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,
LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA
MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PENA, EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M.
HERNANDEZ, FERMIN B. DELA PENA, MARIA DELA PAZ B.
CULALA,ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA
M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A.
CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C.
DELA PENA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO,
PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA 0.
DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL,
MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID,
EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILERMA S.
BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO,
CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B.
TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et
al. in their capacityand as members of the "Malaya Lolas
Organizations," Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO,
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA
DOMINGOALBERT, THE HONORABLE SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, Respondents.
RESOLUTIO N
Petitioners filed a Motion for Reconsideration1 and a Supplemental
Motion for Reconsideration, 2 praying that the Court reverse its decision of
April 28, 2010, and grant their petition for certiorari.
In their Motion for Reconsideration, petitioners argue that our
constitutional and jurisprudential histories have rejected the Court’s ruling
that the foreign policy prerogatives ofthe Executive Branch are unlimited;
that under the relevant jurisprudence and constitutional provisions, such
prerogatives are proscribed by international human rights and
international conventions of which the Philippines is a party; that the
Court, in holding that the Chief Executive has the prerogative whether to
bring petitioners’ claims against Japan, has read the foreign policy
powers of the Office of the President in isolation from the rest of the
constitutional protections that expressly textualize international human
rights; that the foreign policy prerogatives are subject to obligations to
promote international humanitarian law as incorporated intothe laws of
the land through the Incorporation Clause; that the Court must re-visit its
decisions in Yamashita v. Styer3 and Kuroda v. Jalandoni 4 which have
been noted for their prescient articulation of the import of laws of
humanity; that in said decision, the Court ruled that the State was bound
to observe the laws of war and humanity; that in Yamashita, the Court
expressly recognized rape as an international crime under international
humanitarian law, and in Jalandoni, the Court declared that even if the
Philippines had not acceded or signed the Hague Convention on Rules
and Regulations covering Land Warfare, the Rules and Regulations
formed part of the law of the nation by virtue of the Incorporation Clause;
that such commitment to the laws ofwar and humanity has been
enshrined in Section 2, Article II of the 1987 Constitution, which provides
"that the Philippines…adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation, and amity with all
nations."
The petitioners added that the statusand applicability of the generally
accepted principles of international law within the Philippine jurisdiction
would be uncertain without the Incorporation Clause, and that the clause
implied that the general international law forms part of Philippine law only
insofar as they are expressly adopted; that in its rulings in The Holy See,
v. Rosario, Jr.5 and U.S. v. Guinto6 the Court has said that international
law is deemed part of the Philippine law as a consequence of Statehood;
that in Agustin v. Edu,7 the Court has declared that a treaty, though not
yet ratified by the Philippines, was part of the law of the land through the
Incorporation Clause; that by virtue of the Incorporation Clause, the
Philippines is bound to abide by the erga omnesobligations arising from
the jus cogensnorms embodied in the laws of war and humanity that
include the principle of the imprescriptibility of war crimes; that the crimes
committed against petitioners are proscribed under international human
rights law as there were undeniable violations of jus cogensnorms; that
the need to punish crimes against the laws of humanity has long become
jus cogensnorms, and that international legal obligations prevail over
national legal norms; that the Court’s invocation of the political doctrine in
the instant case is misplaced; and that the Chief Executive has the
constitutional duty to afford redress and to give justice to the victims ofthe
comfort women system in the Philippines. 8
Petitioners further argue that the Court has confused diplomatic
protection with the broader responsibility of states to protect the human
rights of their citizens, especially where the rights asserted are subject of
erga omnesobligations and pertain to jus cogensnorms; that the claims
raised by petitioners are not simple private claims that are the usual
subject of diplomatic protection; that the crimes committed against
petitioners are shocking to the conscience of humanity; and that the
atrocities committed by the Japanese soldiers against petitionersare not
subject to the statute of limitations under international law. 9
Petitioners pray that the Court reconsider its April 28, 2010 decision, and
declare: (1) that the rapes, sexual slavery, torture and other forms of
sexual violence committed against the Filipina comfort women are crimes
against humanity and war crimes under customary international law; (2)
that the Philippines is not bound by the Treaty of Peace with Japan,
insofar as the waiver of the claims of the Filipina comfort women against
Japan is concerned; (3) that the Secretary of Foreign Affairs and the
Executive Secretary committed grave abuse of discretion in refusing to
espouse the claims of Filipina comfort women; and (4) that petitioners are
entitled to the issuance of a writ of preliminary injunction against the
respondents.
Petitioners also pray that the Court order the Secretary of Foreign Affairs
and the Executive Secretary to espouse the claims of Filipina comfort
women for an official apology,legal compensation and other forms of
reparation from Japan.10
In their Supplemental Motion for Reconsideration, petitioners stress that it
was highly improper for the April 28, 2010 decision to lift commentaries
from at least three sources without proper attribution – an article
published in 2009 in the Yale Law Journal of International Law; a book
published by the Cambridge University Press in 2005; and an article
published in 2006 in the Western ReserveJournal of International Law –
and make it appear that such commentaries supported its arguments for
dismissing the petition, when in truth the plagiarized sources even made
a strong case in favour of petitioners’ claims. 11
In their Comment,12 respondents disagree withpetitioners, maintaining
that aside from the statements on plagiarism, the arguments raised by
petitioners merely rehashed those made in their June 7, 2005
Memorandum; that they already refuted such arguments in their
Memorandumof June 6, 2005 that the Court resolved through itsApril 28,
2010 decision, specifically as follows:
1. The contentions pertaining tothe alleged plagiarism were then
already lodged withthe Committee on Ethics and Ethical
Standards of the Court; hence, the matter of alleged plagiarism
should not be discussed or resolved herein. 13
2. A writ of certioraridid not lie in the absence of grave abuse of
discretion amounting to lack or excess of jurisdiction. Hence, in
view of the failureof petitioners to show any arbitrary or despotic
act on the part of respondents,the relief of the writ of certiorariwas
not warranted.14
3. Respondents hold that the Waiver Clause in the Treaty of
Peace with Japan, being valid, bound the Republic of the
Philippines pursuant to the international law principle of pacta
sunt servanda.The validity of the Treaty of Peace was the result
of the ratification by two mutually consenting parties.
Consequently, the obligations embodied in the Treaty of Peace
must be carried out in accordance with the common and real
intention of the parties at the time the treaty was concluded. 15
4. Respondents assert that individuals did not have direct
international remedies against any State that violated their human
rights except where such remedies are provided by an
international agreement. Herein, neither of the Treaty of Peace
and the Reparations Agreement,the relevant agreements
affecting herein petitioners, provided for the reparation of
petitioners’ claims. Respondents aver that the formal apology by
the Government of Japan and the reparation the Government of
Japan has provided through the Asian Women’s Fund (AWF) are
sufficient to recompense petitioners on their claims, specifically:
 a. About 700 million yen would be paid from the national treasury
over the next 10 years as welfare and medical services;
b. Instead of paying the money directly to the former comfort
women, the services would be provided through organizations
delegated by governmental bodies in the recipient countries (i.e.,
the Philippines, the Republic of Korea,and Taiwan); and
c. Compensation would consist of assistance for nursing services
(like home helpers), housing, environmental development,
medical expenses, and medical goods. 16
Ruling
The Court DENIESthe Motion for Reconsiderationand Supplemental
Motion for Reconsideration for being devoid of merit.
1. Petitioners did not show that their resort was timely under the Rules of
Court.
Petitioners did not show that their bringing ofthe special civil action for
certiorariwas timely, i.e., within the 60-day period provided in Section 4,
Rule 65 of the Rules of Court, to wit:
Section 4. When and where position filed. – The petition shall be filed not
later than sixty (60) daysfrom notice of judgment, order or resolution. In
case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall be counted from
notice of the denial of said motion.
As the rule indicates, the 60-day period starts to run from the date
petitioner receives the assailed judgment, final order or resolution, or the
denial of the motion for reconsideration or new trial timely filed, whether
such motion is required or not. To establish the timeliness of the petition
for certiorari, the date of receipt of the assailed judgment, final order or
resolution or the denial of the motion for reconsideration or new trial must
be stated in the petition;otherwise, the petition for certiorarimust be
dismissed. The importance of the dates cannot be understated, for such
dates determine the timeliness of the filing of the petition for certiorari. As
the Court has emphasized in Tambong v. R. Jorge Development
Corporation:17
There are three essential dates that must be stated in a petition for
certiorari brought under Rule 65. First, the date when notice of the
judgment or final order or resolution was received; second, when a
motion for new trial or reconsideration was filed; and third, when notice of
the denial thereof was received. Failure of petitioner to comply with this
requirement shall be sufficient ground for the dismissal of the petition.
Substantial compliance will not suffice in a matter involving strict
observance with the Rules. (Emphasis supplied)
The Court has further said in Santos v. Court of Appeals: 18
The requirement of setting forth the three (3) dates in a petition for
certiorari under Rule 65 is for the purpose of determining its timeliness.
Such a petition is required to be filed not later than sixty (60) days from
notice of the judgment, order or Resolution sought to be assailed.
Therefore, that the petition for certiorariwas filed forty-one (41) days from
receipt of the denial of the motion for reconsideration is hardly relevant.
The Court of Appeals was notin any position to determine when this
period commenced to run and whether the motion for reconsideration
itself was filed on time since the material dates were not stated. It should
not be assumed that in no event would the motion be filed later than
fifteen (15) days. Technical rules of procedure are not designed to
frustrate the ends of justice. These are provided to effect the proper and
orderly disposition of cases and thus effectively prevent the clogging of
court dockets. Utter disregard of the Rules cannot justly be rationalized
by harking on the policy ofliberal construction. 19
The petition for certioraricontains the following averments, viz:
82. Since 1998, petitioners and other victims of the "comfort
women system," approached the Executive Department through
the Department of Justice in order to request for assistance to file
a claim against the Japanese officials and military officers who
ordered the establishment of the "comfort women" stations in the
Philippines;
83. Officials of the Executive Department ignored their request
and refused to file a claim against the said Japanese officials and
military officers;
84. Undaunted, the Petitioners in turnapproached the Department
of Foreign Affairs, Department of Justice and Office of the of the
Solicitor General to file their claim against the responsible
 Japanese officials and military officers, but their efforts were
similarly and carelessly disregarded; 20
The petition thus mentions the year 1998 only as the time when
petitioners approached the Department ofJustice for assistance, but does
not specifically state when they received the denial of their request for
assistance by the Executive Department of the Government. This alone
warranted the outright dismissal of the petition.
Even assuming that petitioners received the notice of the denial of their
request for assistance in 1998, their filing of the petition only on March 8,
2004 was still way beyond the 60-day period. Only the most compelling
reasons could justify the Court’s acts of disregarding and lifting the
strictures of the rule on the period. As we pointed out inMTM Garment
Mfg. Inc. v. Court of Appeals: 21
All these do not mean, however, that procedural rules are to be ignored
or disdained at will to suit the convenience of a party. Procedural law has
its own rationale in the orderly administration of justice, namely: to ensure
the effective enforcement of substantive rights by providing for a system
that obviates arbitrariness, caprice, despotism, or whimsicality in the
settlement of disputes. Hence, it is a mistake to suppose that substantive
law and procedural law are contradictory to each other, or as often
suggested, that enforcement of procedural rules should never be
permitted if it would result in prejudice to the substantive rights of the
litigants.
As we have repeatedly stressed, the right to file a special civil action of
certiorariis neither a natural right noran essential element of due process;
a writ of certiorariis a prerogative writ, never demandable as a matter of
right, and never issued except in the exercise of judicial discretion.
Hence, he who seeks a writ of certiorarimust apply for it only in the
manner and strictly in accordance with the provisions of the law and the
Rules.
Herein petitioners have not shown any compelling reason for us to relax
the rule and the requirements under current jurisprudence. x x x.
(Emphasis supplied)
2. Petitioners did not show that the assailed act was either judicial or
quasi-judicial on the part of respondents.
Petitioners were required to show in their petition for certiorarithat the
assailed act was either judicial or quasi-judicial in character. Section 1,
Rule 65 of the Rules of Courtrequires such showing, to wit:
Section 1. Petition for certiorari.—When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the
judgment, order, or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of
nonforum shopping as provided in the third paragraph of Section 3, Rule
46. However, petitioners did notmake such a showing.
3. Petitioners were not entitled to the injunction.
The Court cannot grant petitioners’ prayer for the writ of preliminary
mandatory injunction. Preliminary injunction is merely a provisional
remedy that is adjunct to the main case, and is subject to the latter’s
outcome. It is not a cause of action itself. 22 It is provisional because it
constitutes a temporary measure availed of during the pendency of the
action; and it is ancillary because it is a mere incident in and is
dependent upon the result of the main action. 23Following the dismissal of
the petition for certiorari, there is no more legal basis to issue the writ of
injunction sought. As an auxiliary remedy, the writ of preliminary
mandatory injunction cannot be issued independently of the principal
action.24
In any event, a mandatory injunction requires the performance of a
particular act. Hence, it is an extreme remedy, 25to be granted only if the
1âwphi1
following requisites are attendant, namely:
(a) The applicant has a clear and unmistakable right, that is, a
right in esse;
(b) There is a material and substantial invasion of such right; and
 (c) There is an urgent need for the writ to prevent irreparable
injury to the applicant; and no other ordinary, speedy, and
adequate remedy exists to prevent the infliction of irreparable
injury.26

In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br.

58, Lucena City,27 we expounded as follows:

It is basic that the issuance of a writ of preliminary injunction is addressed

to the sound discretion of the trial court, conditioned on the existence of a
clear and positive right of the applicant which should be protected. It is an
extraordinary, peremptory remedy available only on the grounds
expressly provided by law, specifically Section 3, Rule 58 of the Rules of
Court. Moreover, extreme caution must be observed in the exercise of
such discretion. It should be granted only when the court is fully satisfied
that the law permits it and the emergency demands it. The very
foundation of the jurisdiction to issue a writ of injunction rests in the
existence of a cause of action and in the probability of irreparable injury,
inadequacy of pecuniary compensation, and the prevention of multiplicity
of suits. Where facts are not shown to bring the case within these
conditions, the relief of injunction should be refused. 28

Here, the Constitution has entrusted to the Executive Department the

conduct of foreign relations for the Philippines. Whether or not to
espouse petitioners' claim against the Government of Japan is left to the
exclusive determination and judgment of the Executive Department. The
Court cannot interfere with or question the wisdom of the conduct of
foreign relations by the Executive Department. Accordingly, we cannot
direct the Executive Department, either by writ of certiorari or injunction,
to conduct our foreign relations with Japan in a certain manner.

WHEREFORE, the Court DENIES the Motion for Reconsideration and

Supplemental Motion for Reconsideration for their lack of merit.

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-7-17-SC February 8, 2011
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC.,
AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.
RESOLUTIO N
PER CURIAM:
Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas
Organization, seek reconsideration of the decision of the Court dated
October 12, 2010 that dismissed their charges of plagiarism, twisting of
cited materials, and gross neglect against Justice Mariano Del Castillo in
connection with the decision he wrote for the Court in G.R. No. 162230,
entitled Vinuya v. Romulo. 1
Mainly, petitioners claim that the Court has by its decision legalized or
approved of the commission of plagiarism in the Philippines. This claim is
absurd. The Court, like everyone else, condemns plagiarism as the world
in general understands and uses the term.
Plagiarism, a term not defined by statute, has a popular or common
definition. To plagiarize, says Webster, is "to steal and pass off as one’s
own" the ideas or words of another. Stealing implies malicious taking.
Black’s Law Dictionary, the world’s leading English law dictionary quoted
by the Court in its decision, defines plagiarism as the "deliberate and
knowing presentation of another person's original ideas or creative
expressions as one’s own."2 The presentation of another person’s ideas
as one’s own must be deliberate or premeditated—a taking with ill intent.
There is no commonly-used dictionary in the world that embraces in the
meaning of plagiarism errors in attribution by mere accident or in good
faith.
Certain educational institutions of course assume different norms in its
application. For instance, the Loyola Schools Code of Academic Integrity
ordains that "plagiarism is identified not through intent but through the act
itself. The objective act of falsely attributing to one’s self what is not one’s
work, whether intentional or out of neglect, is sufficient to conclude that
plagiarism has occurred. Students who plead ignorance or appeal to lack
of malice are not excused."3
But the Court’s decision in the present case does not set aside such
norm. The decision makes this clear, thus:
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. 4
Original scholarship is highly valued in the academe and rightly so. A
college thesis, for instance, should contain dissertations embodying
results of original research, substantiating a specific view.5 This must be
so since the writing is intended to earn for the student an academic
degree, honor, or distinction. He earns no credit nor deserves it who
takes the research of others, copies their dissertations, and proclaims
these as his own. There should be no question that a cheat deserves
neither reward nor sympathy.
But the policy adopted by schools of disregarding the element of
malicious intent found in dictionaries is evidently more in the nature of
establishing what evidence is sufficient to prove the commission of such
dishonest conduct than in rewriting the meaning of plagiarism. Since it
would be easy enough for a student to plead ignorance or lack of malice
even as he has copied the work of others, certain schools have adopted
the policy of treating the mere presence of such copied work in his paper
sufficient objective evidence of plagiarism. Surely, however, if on its face
the student’s work shows as a whole that he has but committed an
obvious mistake or a clerical error in one of hundreds of citations in his
thesis, the school will not be so unreasonable as to cancel his diploma.
In contrast, decisions of courts are not written to earn merit, accolade, or
prize as an original piece of work or art. Deciding disputes is a service
rendered by the government for the public good. Judges issue decisions
to resolve everyday conflicts involving people of flesh and blood who
ache for speedy justice or juridical beings which have rights and
obligations in law that need to be protected. The interest of society in
written decisions is not that they are originally crafted but that they are
fair and correct in the context of the particular disputes involved. Justice,
not originality, form, and style, is the object of every decision of a court of
law.
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."6
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. Thus:
The tendency to copy in law is readily explicable. In law accuracy of
words is everything. Legal disputes often centre round the way in which
obligations have been expressed in legal documents and how the facts of
the real world fit the meaning of the words in which the obligation is
contained. This, in conjunction with the risk-aversion of lawyers means
that refuge will often be sought in articulations that have been tried and
tested. In a sense therefore the community of lawyers have together
contributed to this body of knowledge, language, and expression which is
common property and may be utilized, developed and bettered by
anyone.7
The implicit right of judges to use legal materials regarded as belonging
to the public domain is not unique to the Philippines. As Joyce C.
George, whom Justice Maria Lourdes Sereno cites in her dissenting
opinion, observed in her Judicial Opinion Writing Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is
exempted from a charge of plagiarism even if ideas, words or phrases
from a law review article, novel thoughts published in a legal periodical or
language from a party’s brief are used without giving attribution. Thus
judges are free to use whatever sources they deem appropriate to
resolve the matter before them, without fear of reprisal. This exemption
applies to judicial writings intended to decide cases for two reasons: the
judge is not writing a literary work and, more importantly, the purpose of
the writing is to resolve a dispute. As a result, judges adjudicating cases
are not subject to a claim of legal plagiarism. 8
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 judiciary’s 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 here—actually the substance of their
decisions—that 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.
The Court will not, therefore, consistent with established practice in the
Philippines and elsewhere, dare permit the filing of actions to annul the
decisions promulgated by its judges or expose them to charges of
plagiarism for honest work done.
This rule should apply to practicing lawyers as well. Counsels for the
petitioners, like all lawyers handling cases before courts and
administrative tribunals, cannot object to this. Although as a rule they
receive compensation for every pleading or paper they file in court or for
every opinion they render to clients, lawyers also need to strive for
technical accuracy in their writings. They should not be exposed to
charges of plagiarism in what they write so long as they do not depart, as
officers of the court, from the objective of assisting the Court in the
administration of justice.
As Duncan Webb said:
In presenting legal argument most lawyers will have recourse to either
previous decisions of the courts, frequently lifting whole sections of a
judge’s words to lend weight to a particular point either with or without
attribution. The words of scholars are also sometimes given weight,
depending on reputation. Some encyclopaedic works are given particular
authority. In England this place is given to Halsbury’s Laws of England
which is widely considered authoritative. A lawyer can do little better than
to frame an argument or claim to fit with the articulation of the law in
Halsbury’s. While in many cases the very purpose of the citation is to
claim the authority of the author, this is not always the case. Frequently
commentary or dicta of lesser standing will be adopted by legal authors,
largely without attribution.
xxxx
The converse point is that originality in the law is viewed with skepticism.
It is only the arrogant fool or the truly gifted who will depart entirely from
the established template and reformulate an existing idea in the belief
that in doing so they will improve it. While over time incremental changes
occur, the wholesale abandonment of established expression is generally
considered foolhardy.9
The Court probably should not have entertained at all the charges of
plagiarism against Justice Del Castillo, coming fro m the losing party. But
it is a case of first impression and petitioners, joined by some faculty
members of the University of the Philippines school of law, have unfairly
maligned him with the charges of plagiarism, twisting of cited materials,
and gross neglect for failing to attribute lifted passages from three foreign
authors. These charges as already stated are false, applying the
meaning of plagiarism as the world in general knows it.
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. 1awph i1
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.
With our ruling, the Court need not dwell long on petitioners’ allegations
that Justice Del Castillo had also committed plagiarism in writing for the
Court his decision in another case, Ang Ladlad v. Commission on
Elections.10 Petitioners are nit-picking. Upon close examination and as
Justice Del Castillo amply demonstrated in his comment to the motion for
reconsideration, he in fact made attributions to passages in such decision
that he borrowed from his sources although they at times suffered in
formatting lapses.
Considering its above ruling, the Court sees no point in further passing
upon the motion of the Integrated Bar of the Philippines for leave to file
and admit motion for reconsideration-in-intervention dated January 5,
2011 and Dr. Peter Payoyo’s claim of other instances of alleged
plagiarism in the Vinuya decision.
ACCORDINGLY, the Court DENIES petitioners’ motion for
reconsideration for lack of merit.
SO ORDERED.
DISSENTING OPINION
CARPIO, J.:
I dissent on two grounds. First, this Court has no jurisdiction to decide in
an administrative case whether a sitting Justice of this Court has
committed misconduct in office as this power belongs exclusively to
Congress. Second, in writing judicial decisions a judge must comply with
the Law on Copyright1 as the judge has no power to exempt himself from
the mandatory requirements of the law.
I. Disciplining Authority of Impeachable Officers
Under the Constitution, the sole disciplining authority of all impeachable
officers, including Justices of this Court, is Congress. Section 3(1), Article
XI of the Constitution provides that, "The House of Representatives shall
have the exclusive power to initiate all cases of impeachment."
Likewise, Section 3(6) of the same Article provides that, "The Senate
shall have the sole power to try and decide cases of impeachment."
These provisions constitute Congress as the exclusive authority to
discipline all impeachable officers for any impeachable offense,
including "betrayal of public trust," a "catchall phrase"2 to cover any
misconduct involving breach of public trust by an impeachable officer.
While impeachment is often described as a political process, it also
functions as the equivalent of administrative disciplinary proceedings
against impeachable officers. Impeachable officers are not subject to
administrative disciplinary proceedings either by the Executive or Judicial
branch, in the same manner that non-impeachable officers are subject.
Thus, impeachment by Congress takes the place of administrative
disciplinary proceedings against impeachable officers as there is no
other authority that can administratively discipline impeachable
officers.3 Removal from office and disqualification to hold public
office,4 which is the penalty for an impeachable offense,5 is also the most
severe penalty that can be imposed in administrative disciplinary
proceedings.
Impeachment is not a criminal proceeding because conviction in an
impeachment complaint is not a bar to criminal prosecution for the same
act.6 An impeachable offense, like betrayal of public trust, may not even
constitute a criminal act. Like in an administrative proceeding, proof
beyond reasonable doubt is not required for conviction in impeachment. If
an impeachable officer is charged of a crime, as distinguished from an
administrative charge, the proper court has jurisdiction to try such
impeachable officer because the proceeding is criminal, not
administrative. However, neither the conviction nor acquittal of such
impeachable officer in the criminal case constitutes a bar to his
subsequent impeachment by Congress. There is no double jeopardy
because impeachment is not a criminal proceeding. 7
Only Congress, as the exclusive disciplining authority of all
impeachable officers, can decide in a non-criminal, non-civil
proceeding8 whether a sitting Justice of this Court has committed
plagiarism. Plagiarism is a betrayal of public trust because, as the
majority puts it, to plagiarize is "‘to steal and pass off as one’s own’ the
ideas of another."9 However, in writing judicial decisions a judge is
liable for plagiarism only if the copying violates the moral rights of the
author under the Law on Copyright.
This Court may conduct an investigation of an administrative complaint
against a sitting Justice to determine if there is basis
in recommending to the House of Representatives the initiation of an
impeachment complaint against the sitting Justice. This Court may also
conduct an investigation of an administrative complaint against a sitting
Justice to determine if the complaint constitutes contempt of this
Court. However, this Court has no power to decide on the guilt or
innocence of a sitting Justice in the administrative complaint
because such act is a usurpation of the exclusive disciplinary power
of Congress over impeachable officers under the Constitution. Any
decision by this Court in an administrative case clearing a sitting Justice
of an impeachable offense is void for want of jurisdiction and for violation
of an express provision of the Constitution.
Such a decision will put this Court on a collision course with Congress if
subsequently an impeachment complaint for plagiarism is filed with
Congress against the sitting Justice. Incidentally, an impeachment
complaint has already been filed in the House of Representatives
involving the same complaint subject of this administrative case. If the
House of Representatives decides to take cognizance of the complaint
and initiates an impeachment based on the same administrative
complaint that this Court had already dismissed as baseless, then this
Court would have created a constitutional crisis that could only weaken
the public’s faith in the primacy of the Constitution.
The Supreme Court cannot assume jurisdiction over an administrative
complaint against a sitting Justice of this Court by invoking Section 6,
Article VIII of the Constitution. This provision states that the "Supreme
Court shall have administrative supervision over all courts and the
personnel thereof." This provision refers to the administrative supervision
that the Department of Justice used to exercise over the courts and their
personnel, as shown by the folowing exchange during the deliberations of
the Constitutional Commission:
MR. GUINGONA: xxx.
The second question has reference to Section 9, about the administrative
supervision over all courts to be retained in the Supreme Court. I was
wondering if the Committee had taken into consideration the proposed
resolution for the transfer of the administrative supervision from the
Supreme Court to the Ministry of Justice. But as far as I know, none of
the proponents had been invited to explain or defend the proposed
resolution.
Also, I wonder if the Committee also took into consideration the fact that
the UP Law Constitution Project in its Volume I, entitled: Annotated
Provision had, in fact, made this an alternative proposal, the transfer of
administrative supervision from the Supreme Court to the Ministry of
Justice.
Thank you.
MR. CONCEPCION: May I refer the question to Commissioner
Regalado?
THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is
recognized.
MR. REGALADO: Thank you, Mr. Presiding Officer.
We did invite Minister Neptali Gonzales, who was the proponent for the
transfer of supervision of the lower courts to the Ministry of Justice. I even
personally called up and sent a letter or a short note inviting him, but the
good Minister unfortunately was enmeshed in a lot of official
commitments. We wanted to hear him because the Solicitor General of
his office, Sedfrey Ordoñez, appeared before us, and asked for the
maintenance of the present arrangement wherein the supervision over
lower courts is with the Supreme Court. But aside from that, although
there were no resource persons, we did further studies on the feasibility
of transferring the supervision over the lower courts to the Ministry of
Justice. All those things were taken into consideration motu proprio. 10
For sure, the disciplinary authority of the Supreme Court over
judges is expressly govened by another provision, that is, Section 11,
Article VIII of the Constitution. Section 11 provides:
Section 11. xxx The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal by a vote of a
majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon. (Emphasis supplied)
Clearly, the disciplinary authority of the Supreme Court over judges is
found in Section 11 of Article VIII. However, this disciplinary authority is
expressly limited to lower court judges, and does not incude Supreme
Court Justices, precisely because the Constitution expressly vests
exclusively on Congress the power to discipline Supreme Court Justices.
By excluding Supreme Court Justices, Section 11 withholds from the
Supreme Court en banc the power to discipline its own members.
The Judicial Conduct and Disability Act of 1980 of the United States,
which gives judicial councils composed of federal judges the power to
discipline federal judges short of removal from office, does not apply to
Justices of the United States Supreme Court who are subject to discipline
only by the United States Congress. Morever, a similar law cannot be
enacted in the Philippines bacause all lower court judges are subject to
discipline by the Supreme Court en banc under Section 11, Article VIII of
the Constitution. Thus, reference to the Judicial Conduct and Disability
Act of 1980 is inappropriate in this jurisdiction.
I submit that this Court recall the Resolution of 12 October 2010 subject
of the present motion for reconsideration for lack of jurisdiction to decide
the administrative complaint against Justice Mariano C. Del Castillo.
II. The Judge Must Follow the Law on Copyright
a. Copying from Works of the Government
In writing judicial decisions, a judge should make the proper attribution in
copying passages from any judicial decision, statute, regulation, or
other Works of the Government. The Manual of Judicial
Writing adopted11 by this Court provides how such attribution should be
made.
However, the failure to make such attribution does not violate the Law on
Copyright.12 The law expressly provides that Works of the Government
are not subject to copyright.13 This means that there is neither a legal
right by anyone to demand attribution, nor any legal obligation from
anyone to make an attribution, when Works of the Government are
copied. The failure to make the proper attribution of a Work of the
Government is not actionable but is merely a case of sloppy writing.
Clearly, there is no legal obligation, by a judge or by any person, to make
an attribution when copying Works of the Government.
However, misquoting or twisting, with or without attribution, any judicial
decision, statute, regulation or other Works of the Government in judicial
writing, if done to mislead the parties or the public, is actionable.
Under Canon 3 of the Code of Judicial Conduct, a judge "should
perform official duties honestly."14 Rule 3.01]15 and Rule 3.0216 of the
Code provide that a judge must be faithful to the law, maintain
professional competence, and strive diligently to ascertain the facts and
the applicable law.
The foregoing applies to any non-copyrightable work, and any work in the
public domain, whether local or foreign.
b. Copying from Pleadings of Parties
In writing judicial decisions, the judge may copy passages from the
pleadings of the parties with proper attribution to the author of the
pleading. However, the failure to make the proper attribution is not
actionable.
Pleadings are submitted to the court precisely so that the pleas, or the
arguments written on the pleadings, are accepted by the judge. There is
an implied offer by the pleader that the judge may make any use of
the pleadings in resolving the case. If the judge accepts the pleader’s
arguments, he may copy such arguments to expedite the resolution of
the case. In writing his decision, the judge does not claim as his own the
arguments he adopts from the pleadings of the parties. Besides, the legal
arguments in the pleadings are in most cases merely reiterations of
judicial precedents, which are Works of the Government.
However, misquoting or twisting, with or without attribution, any passage
from the pleadings of the parties, if done to mislead the parties or the
public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a
judge "should perform official duties honestly." Rule 3.01 and Rule 3.02
of the Code provide that a judge must be faithful to the law, maintain
professional competence, and strive diligently to ascertain the facts and
the applicable law.
c. Copying from Textbooks, Journals and other Non-Government
Works
In writing judicial decisions, the judge may copy passages from
textbooks, journals and other non-government works with proper
attribution. However, whether the failure to make the proper attribution is
actionable or not depends on the nature of the passages copied.
If the work copied without proper attribution is copyrighted, the failure to
make such attribution violates Section 193 of the Intellectual Property
Code, which provides:
Section 193. Scope of Moral Rights. The author of a work shall,
independently of the economic rights in Section 177 or the grant of an
assignment or license with respect to such right, have the right:
193.1. To require that the authorship of the works be attributed to
him, in particular, the right that his name, as far as practicable, be
indicated in a prominent way on the copies, and in connection with the
public use of his work;
xxxx
193.3 To object to any distortion, mutilation or other modification of, or
other derogatory action in relation to his work which would be
prejudicial to his honor or reputation;
x x x x. (Emphasis supplied)
Section 184(k) of the Intellectual Property Code expressly allows, as a
limitation on the copyright or economic rights of the author, "any
use made of a work for the purpose of any judicial proceedings x x
x."17 Section 184(k) clearly authorizes a judge to copy copyrighted works
for "any use" in judicial proceedings, which means the judge, in writing
his decision, can copy passages beyond the quantitative limitations of
"fair-use" under Section 184(b). This is the significance of Section
184(k), allowing the judge to copy lengthy passages of copyrighted work
even beyond what is required by fair-use. Section 184(k) is silent on the
obligation of the judge to make the proper attribution, unlike Section
184(b) on fair-use by the public which expressly requires a proper
attribution.
However, Section 193 nevertheless requires anyone, including a judge
writing a judicial decision, to make the proper attribution to show respect
for the moral rights of the author. Thus, while the author has no right to
demand economic compensation from the judge or the government for
the unlimited and public use of his work in a judicial decision, the law
requires that "the authorship of the works be attributed to him x x x
in connection with the public use of his work." In short, the judge is
legally obligated to make the proper attribution because Section 193
protects the moral rights of the author.
The moral rights under Section 193 of the Intellectual Property Code
arise only if the work of an author is copyrighted. If the work is not
copyrighted, then there are no moral rights to the work. If the passages in
a textbook, journal article, or other non-work of the government are
merely quotations from Works of the Government, like sentences or
paragraphs taken from judicial decisions, then such passages if copied
by a judge do not require attribution because such passages, by
themselves, are Works of the Government. The same is true for works in
the public domain.
However, the arrangement or presentation of passages copied from
Works of the Government may be subject to copyright, 18 and a judge
copying such arrangement or presentation, together with the passages,
may have to make the proper attribution. If the passages are those of the
author himself, and not copied from Works of the Government or from
works in the public domain, then clearly there is a legal obligation on the
part of the judge to make the proper attribution. Failure by the judge to
make such attribution violates not only Section 193 of the Intellectual
Property Code, but also Canon 3 of the Code of Judicial Conduct.
The moral rights of an author are independent of the author’s economic
rights to his work in the sense that even if the author assigns his work,
the moral rights to the work remain with him, being inalienable. 19 Any
violation of an author’s moral rights entitles him to the same remedies as
a violation of the economic rights to the work, 20 whether such economic
rights are still with him or have been assigned to another party. Thus,
while called "moral rights," these rights are legally enforceable.
Two essential elements of an author’s moral rights are the right to
attribution and the right to integrity. The right to attribution or paternity 21 is
the right of the author to be recognized as the originator or father of his
work, a right expressly recognized in Section 193.1 of the Intellectual
Property Code. The right to integrity is the right of the author to prevent
any distortion or misrepresentation of his work, a right expressly
recognized in Section 193.3 of the Code. The Legislature incorporated
the moral rights of an author in the Intellectual Property Code in
compliance with the treaty obligations of the Philippines under the Berne
Convention, which requires treaty states to enact legislation protecting
the moral rights of authors. 22
The rationale behind moral rights is explained in a local intellectual
property textbook, citing American jurisprudence:
The term moral rights has its origins in the civil law and is a translation of
the French le droit moral, which is meant to capture those rights of a
spiritual, non-economic and personal nature. The rights spring from a
belief that an artist in the process of creation injects his spirit into the
work and that the artist’s personality, as well as the integrity of the work,
should therefore be protected and preserved. Because they are personal
to the artist, moral rights exist independently of an artist’s copyright in his
or her work. While the rubric of moral rights encompasses many
varieties of rights, two are protected in nearly every jurisdiction
recognizing their existence: attribution and integrity. The right of
attribution generally consists of the right of an artist to be
recognized by name as the author of his work or to publish
anonymously or pseudonymously, the right to prevent the author’s
work from being attributed to someone else, and to prevent the use
of the author’s name on works created by others, including
distorted editions of the author’s original work. The right of integrity
allows the author to prevent any deforming or mutilating changes to
his work, even after title of the work has been transferred. In some
jurisdictions, the integrity right also protects artwork from destruction.
Whether or not a work of art is protected from destruction represents a
fundamentally different perception of the purpose of moral rights. If
integrity is meant to stress the public interest in preserving a nation’s
culture, destruction is prohibited; if the right is meant to emphasize the
author’s personality, destruction is seen as less harmful than the
continued display of deformed or mutilated work that misrepresents the
artist and destruction may proceed. 23 (Emphasis supplied)
When a judge respects the right to attribution and integrity of an author,
then the judge observes intellectual honesty in writing his decisions.
Writing decisions is the most important official duty of a judge, more so of
appellate court judges. Conversely, if a judge fails to respect an author’s
right to attribution and integrity, then the judge fails to observe intellectual
honesty in the performance of his official duties, a violation of Canon 3 of
the Code of Judicial Conduct.
The duty of a judge to respect the moral rights of an author is certainly
not burdensome on the performance of his official duties. All the
reference materials that a judge needs in writing judicial decisions are
either Works of the Government or works in the public domain. A judge
must base his decision on the facts and the law, 24 and the facts and
the law are all in the public domain. There is no need for a judge to
refer to copyrighted works. When a judge ventures to refer to
copyrighted works by copying passages from such works, he immediately
knows he is treading on protected works, and should readily respect the
rights of the authors of those works. The judge, whose most important
function is to write judicial decisions, must be the first to respect the rights
of writers whose lives and passions are dedicated to writing for the
education of humankind.
Besides, Section 184(k) of the Intellectual Property Code already
generously allows the judge unlimited copying of copyrighted works in
writing his judicial decisions. The Code, however, does not exempt the
judge from recognizing the moral rights of the author. The basic rule of
human relations, as embodied in Article 19 of the Civil Code, requires
that the judge should give to the author of the copyrighted work what is
due him. Thus, Article 19 states: "Every person must, in the exercise of
his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith."
d. Difference from the Academe
Academic writing, such as writing dissertations or articles in academic
journals, is governed by standards different from judicial decision writing.
The failure to make the proper attribution for passages copied from
Works of the Government is not actionable against a judge when writing
a judicial decision. However, the same failure by a student or a faculty
member may be deemed plagiarism in the academe, meriting a
severe administrative penalty. Nevertheless, the Judiciary and the
academe should have the same rule when it comes to copyrighted
works. In every case, there is a legal duty to make the proper
attribution when copying passages from copyrighted works
because the law expressly requires such attribution without
exception.
The academe requires that passages copied from Works of the
Government, works in the public domain, and non-copyrighted works
should be properly attributed in the same way as copyrighted works. The
rationale is to separate the original work of the writer from the works of
other authors in order to determine the original contribution of the writer
to the development of a particular art or science. This rationale does not
apply to the Judiciary, where adherence to jurisprudential precedence is
the rule. However, if a judge writes an article for a law journal, he is
bound by the same rules governing academic writing. 25
ACCORDINGLY, I vote to RECALL the Resolution of 12 October 2010
subject of the present motion for reconsideration as this Court’s
jurisdiction extends only to a determination whether the administrative
complaint against Justice Mariano C. Del Castillo constitutes contempt of
this Court.
ANTONIO T. CARPIO
Associate Justice
 DISSENTING OPINION
SERENO, J.:
Judges need not strain themselves to meet inapplicable standards of
research and attribution of sources in their judicial opinions, nor seek to
achieve the scholarly rigidity or thoroughness observed in academic
work. They need to answer to only two standards – diligence and
honesty. By honesty here is meant that good faith attempt to attribute to
the author his original words and analysis.
Even if a judge has to rely in large part on the drafts of his legal
researchers, the work of a diligent and honest judge will never display the
severe plagiarism evident in the Vinuya Decision published under the
name of Justice Mariano C. del Castillo. A judge will only find himself in
the same predicament as Justice del Castillo if two situations coincide:
(1) the judge wittingly or unwittingly entrusts a legal researcher with the
task of drafting his judicial opinion, and the legal researcher decides to
commit severe plagiarism; and (2) the judge: (a) does not read and study
the draft decision himself; (b) even if he does read and study the same,
the "red flags" that are self-evident in the draft decision completely
escape him; or (c) despite having seen the red flags, he ignores them.
We use the words "severe plagiarism" here deliberately because not only
were three (3) works of the four (4) complaining authors 1 plagiarized
in Vinuya, text from the following copyrighted works was copied without
attribution as well: essays contributed by Robert McCorquodale and
Phoebe Okowa to the book International Law, edited by Malcolm Evans;
an article written by Mariana Salazar Albornoz, entitled Legal Nature and
Legal Consequences of Diplomatic Protection: Contemporary
Challenges; an article written by Elizabeth Prochaska, entitled Testing
the Limits of Diplomatic Protection: Khadr v. The Prime Minister of
Canada; a report by Larry Niksch, entitled Japanese Military’s Comfort
Women; and an article by James Ladino, entitled Ianfu: No Comfort Yet
for Korean Comfort Women and the Impact of House Resolution 121. In
addition, incorporated into Vinuya were excerpts from a decision of an
international tribunal without any signal given to the reader that the words
were not those of Justice del Castillo of the Philippine Supreme Court but
the words of another tribunal. While there are views that a judge cannot
be guilty of plagiarism for failure to recognize foreign decisions as source
materials in one’s judicial writing – as when Justice Antonio C. Carpio
opines that a judge cannot be guilty on this score alone – it is beyond
debate that there is a duty of care to attribute to these foreign and
international judicial decisions properly, and that one should never
present these materials as if they are one’s own.
An estimate of the extent of the plagiarism in the Vinuya Decision has
been made by my office. The best approximation available to us, using
the "word count" feature of Microsoft Word, reveals that 52.9% of the
words used in the Vinuya Decision’s discussion on international law,
which begins in page 24 and continues to the end (2,869 out of 5,419
words), are copied without attribution from other works.
The Vinuya Decision, therefore, because of the severity of the plagiarism
attending it, is the worst possible context for the Majority to draw, in its
Decision dated 12 October 2010 and in its Resolution denying the Motion
for Reconsideration, the following conclusions:
1. that plagiarism requires the element of "malicious intent";
2. that – calibrating its ruling in response to the outcry of the
academic community after the Majority Decision was issued – the
rules against plagiarism applicable to the academic community do
not apply to judicial decisions;
3. that the standard of attribution applicable to judicial decisions is
effectively, no standard at all – a judge cannot be guilty of
plagiarism as understood by the academic world, and neither is
he liable for copying without attribution, even from copyrighted
materials;
4. that this lack of liability extends as well to benefit lawyers in the
submission of their pleadings before courts; and
5. that on the whole, the Vinuya Decision is the product of hard,
honest, original work.
In the course of the resolution of the Motion for Reconsideration, I have
found myself counter-accused of having copied the works of others
without attribution. I have debunked each of these claims and lay them
bare in this Dissent. I have even proven that it was one of my co-
authored works that was copied without attribution being given to me and
to my co-authors. The theory propounded against me is that I cannot
conclude that the Vinuya Decision is partly a product of plagiarism unless
I am willing to call myself a plagiarist as well. I emphasize, however, my
original thesis – that a diligent and honest judge or researcher will never
find himself to have plagiarized, even unwittingly, to the same extent that
plagiarism occurred in the Vinuya Decision. Herein lies the safety of a
researcher – a habit of trying to give recognition where recognition is due.
Should any of my works, wherein I failed to make proper attribution,
surface, I will do what I have recommended that the author of
the Vinuya Decision do: acknowledge the wrong, apologize to the
wronged, and correct the work. See pages 58 to 75 herein for a
discussion on the counter-accusations leveled against me.
Irrespective of the outcome of my analysis, let it be stated that this
Dissent does not make any pronouncement regarding the jurisdiction of
this Court over the complaint for plagiarism against Justice del Castillo.
My esteemed colleague Justice Carpio is convinced that Congress is the
sole disciplining authority of all impeachable officers, including Justices of
the Supreme Court. He characterizes plagiarism as a betrayal of public
trust, and thus, "impeachment by Congress takes the place of
administrative disciplinary proceedings against impeachable officers as
there is no other power that can administratively discipline impeachable
officers."2
I. The Flow of the Analysis in This Dissent
A. Parameters
To allay any concern from members of the judiciary, I have been very
careful to underscore the limitations of my analysis of
the Vinuya Decision. My Dissent of 12 October 2010 is very clear:
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.3
To be categorical, a judge or legal researcher cannot be guilty for using
doctrines that have been incorporated into the mainstream and are
standard terms of trade. Neither is a judge required to use quotation
marks or blockquotes every time there is a reference to allegations in the
pleadings of parties, or when he is discussing legal arguments using
already accepted legal doctrines. It is when he ventures into using the
original words of others, especially those of legal scholars, that he must
be particularly careful. He cannot write to pass off the words of others,
especially those of others’ pioneering works, as his own. To do so is
dishonest. It has also been suggested that Justice del Castillo cannot be
guilty of plagiarism as he never read the work of Mariana Salazar
Albornoz. That argument is neither here nor there. At the very least, the
words he copied were those of another in an important original analysis
of the state of international law on rape.
B. Structure of the Technical Analysis in This Dissent
The structure and rigidity of the Technical Analysis in this Dissent is
necessary to fulfill two purposes: (1) to enable the reader to examine
whether I have scientific and objective basis to conclude that severe
plagiarism characterizes the Vinuya Decision; and (2) to examine
whether I am willing to subject my work to the same standards to which I
have subjected the Vinuya Decision.
One interesting note. My professional record had been vetted by the
Judicial and Bar Council prior to my appointment to this Court. My
previous works – those of an academic and those of a pleader – are
presently being, and, I expect will continue to be, thoroughly scrutinized.
While those previous works form part of the basis of my appointment,
inasmuch as they are proof of my competence and expertise, they cannot
serve as a basis to determine whether I am now performing my duties as
a judge satisfactorily. One can view the scrutiny as an unwarranted
collateral attack on my record. This did not happen until my Dissent of 12
October 2010.
The first part of the Technical Analysis consists of new tables of
comparison presenting more instances of plagiarism as they occur in
the Vinuya Decision. Two of these tables deal with copied works that
previously appeared in my earlier Dissent: A Fiduciary Theory of Jus
Cogens, by Evan J. Criddle and Evan Fox-Decent, and Breaking the
Silence: Rape as an International Crime by Mark Ellis; however, the
entries for these tables present instances of plagiarism not discussed or
presented in my Dissent of 12 October 2010. Following the tables are
lists of violations of rules against plagiarism, each list item corresponding
to one table entry.
Following the presentation of the tables, the process whereby plagiarism
could have been committed in Vinuya is examined. The severe extent of
plagiarism, which is already evident in the tables, is discussed further,
followed by an analysis of the systematic commission of plagiarism researcher in the Vinuya Decision. The middle column refers to the
in Vinuya. This analysis consists of the detailed dissection of specific pertinent passage in the Vinuya Decision that makes unattributed use of
parts of the Vinuya decision: the text of the body in pages 31-32, and the the copied work. According to the Majority Resolution, these citations
first paragraph of footnote 65. The research process purportedly used by made to original sources (e.g. to the international law cases being
the legal researcher of Vinuya is then broken down into separate steps referenced to support a certain point) in the Vinuya Decision are sufficient
that illustrate the decision points at which an honest and diligent to refute the charges of non-attribution. To address this claim, I have
researcher would have ensured that proper attribution to sources be chosen to add a third column to present the text of the source referred to
given. This is then followed by a closer examination of the deletion of in the nearest (location-wise and/or context-wise) citation or attribution
existing citations and the features of Microsoft Word relevant to the made in the Vinuya Decision. This will allow us to determine whether the
deletion of footnotes. analysis, reference and/or collation of original sources were those of the
allegedly plagiarized authors or are Vinuya originals. In addition, this
II. Technical Analysis of Plagiarism in Vinuya three-column presentation will also allow us to examine the claim being
made by Justice del Castillo that at least two of the authors whose works
A. More Plagiarism are allegedly plagiarized in the Vinuya Decision themselves violated
academic scholarship rules against plagiarism.
Below are new tables of comparison – excluding materials in tables
already discussed in my earlier Dissent to the majority Decision in AM 10- TABLE A: Comparison of Evan J. Criddle & Evan Fox-Decent’s article in
7-17-SC – of excerpts from the Decision in Vinuya vis-a-vis text from one the Yale Journal of International Law, entitled A Fiduciary Theory of Jus
(1) book on international law, five (5) foreign law journal articles, and a Cogens (2009) and the Supreme Court’s 28 April 2010 Decision in
copyrighted report of the United States Congressional Research Service. Vinuya v. Executive Secretary.
While the degree of seriousness of the offense of unattributed copying
varies with the kind of material copied, the extent of the copying conveys The Allegedly International
the level of honesty or dishonesty of the work done with respect to the The Decision
Plagiarized Work Source
Vinuya Decision. The extent of copying enumerated in these tables also
Evan J. Criddle & Evan Vinuya v. Executive Being
renders incredible the claim of mechanical failure, as well as the alleged
Fox-Decent, A Fiduciary Secretary, G.R. No. Analyzed by
lack of intent on the part of the researcher to not give proper attribution.
Theory of Jus Cogens, 34 162230, 28 April 2010. Criddle and
Yale J. Int'l L. 331 (2009). Fox-Decent
The materials for comparison were first identified in the Motion for
Reconsideration and in the letter of Dr. Peter B. Payoyo, a Filipino legal 1 ...judges on the ...Judges on the ...It is an
scholar residing in the Netherlands, addressed to the Chief Justice dated . Permanent Court of Permanent Court of essential
28 October 2010. These excerpts were independently verified, and International Justice International Justice principle of
compared with the corresponding portions from the original works. In the affirmed the existence of affirmed the existence of any court,
course of independent verification, we came across three more peremptory norms in peremptory norms in whether
unattributed copied works. international law by international law by national or
referencing treaties referencing treaties contra international,
TABLES OF COMPARISON contra bonos mores bonos mores (contrary to that the
(contrary to public policy) public policy) in a series of judges may
To aid an objective analysis of the extent and manner of the plagiarism in a series of individual individual concurring and only
committed in the Vinuya Decision, below are tables of comparison that concurring and dissenting dissenting opinions. (For recognize
will compare three written works: (1) the plagiarized work; (2) opinions.[10] example, in the 1934 legal rules
the Vinuya Decision; and (3) the purported "original" source analyzed or Oscar Chinn Case, Judge which they
cited by the concerned authors and by the Vinuya Decision. The left [10] For example, in the Schücking's influential hold to be
column pertains to the literary works allegedly plagiarized by the legal 1934 Oscar Chinn Case, dissent stated that neither valid. There
Judge Schücking's an international court nor is nothing to origin. The
influential dissent stated an arbitral tribunal should show that it attitude of
that neither an apply a treaty provision in was intended the tribunal
international court nor an contradiction to bonos to disregard should, in my
arbitral tribunal should mores. Oscar Chinn Case, that legal opinion, be
apply a treaty provision in 1934 P.C.I.J. (ser. A/B) principle governed in
contradiction to bonos No. 63, at 149-50 (Dec. when this such a case
mores. Oscar Chinn 12) (Schücking, J., Court was by
Case, 1934 P.C.I.J. (ser. dissenting). instituted, or consideratio
A/B) No. 63, at 149-50 that it was to ns of
(Dec. 12) (Schücking, J., (p. 31, footnote 71 of be obliged to international
dissenting). Vinuya) found its public policy,
decisions on even when
(p. 335 of Criddle and the ideas of jurisdiction is
Fox-Decent) the parties– conferred on
which may the Court by
be entirely virtue of a
wrong–as to Special
the law to be Agreement.
applied in a
given Source:
case…. The
Court would The Oscar
never, for Chinn Case
instance, (U.K. v.
apply a Belg.), 1934
convention P.C.I.J. (ser.
the terms of A/B) No. 63,
which were at 149-50
contrary to (Dec. 12)
public (separate
morality. But, opinion of
in my view, a Judge
tribunal finds Schücking).
itself in the
same 2 While the ICJ recently While the ICJ recently [64]....The
position if a . endorsed the jus cogens endorsed the jus cogens Court
convention concept for the first time concept for the first time in observes,
adduced by in its 2006 Judgment on its 2006 Judgment on however, as
the parties is Preliminary Objections in Preliminary Objections in it has
in reality null Armed Activities on the Armed Activities on the already had
and void, Territory of the Congo territory of the Congo occasion to
owing to a (Congo v. Rwanda), it (Congo v. Rwanda), it emphasize,
flaw in its declined to clarify jus declined to clarify jus that
cogens's legal status or to cogens’s legal status or to "the erga a dispute
specify any criteria for specify any criteria for omnes chara relates to
identifying peremptory identifying peremptory cter of a compliance
norms.[67] norms. (Armed Activities norm and the with a norm
on the Territory of the rule of having such
[67] Armed Activities on Congo, Jurisdiction of the consent to a character,
the Territory of the Court and Admissibility of jurisdiction which is
Congo, Jurisdiction of the the Application (Dem. are two assuredly
Court and Admissibility of Rep. Congo v. Rwanda) different the case with
the Application (Dem. (Judgment of February 3, things"..., regard to the
Rep. Congo v. Rwanda) 2006), at 31-32, available and that the prohibition of
(Judgment of Feb. 3, at http://www.icj- mere fact genocide,
2006), at 31-32, available cij.org/docket/files/126/10 that rights cannot of
at http://www.icj- 435.pdf. and itself provide
cij.org/docket/files/126/10 obligations e a basis for
435.pdf (last visited Mar. (p. 32, footnote 77 of rga the
31, 2009). Vinuya) omnes may jurisdiction of
be at issue in the Court to
(p. 346, footnote 67 of a dispute entertain that
Criddle and Fox-Decent) would not dispute.
give the Under the
Court Court’s
jurisdiction to Statute that
entertain that jurisdiction is
dispute. always
based on the
The same consent of
applies to the parties.
the
relationship Source:
between
peremptory Armed
norms of Activities on
general the Territory
international of the Congo
law (jus (Dem. Rep.
cogens) and Congo v.
the Rwanda),
establishmen 2006 I.C.J.
t of the 6, 31-32
Court’s (Feb. 3).
jurisdiction:
the fact that 3 Similarly, the European [77] Similarly, the [61] While
. Court of Human Rights European Court of Human the Court
has addressed jus Rights has addressed jus accepts, on materials
cogens only once, in Al- cogens only once, in Al- the basis of before it any
Adsani v. United Adsani v. United Kingdom, these firm basis for
Kingdom, when it when it famously rejected authorities, concluding
famously rejected the the argument that jus that the that, as a
argument that jus cogens cogens violations would prohibition of matter of
violations would deprive a deprive a state of torture has international
state of sovereign sovereign immunity. Al- achieved the law, a State
immunity.[75] Adsani v. United Kingdom, status of a no longer
2001-XI Eur. Ct. H.R. 79, peremptory enjoys
[75] Shelton, supra note ¶ 61) norm in immunity
3, at 309 (discussing Al- international from civil suit
Adsani v. United (p. 32, footnote 77 of law, it in the courts
Kingdom, 2001-XI Eur. Vinuya) observes of another
Ct. H.R. 79, ¶ 61). that the State where
present case acts of
(p. 347 of Criddle and concerns… torture are
Fox-Decent) the immunity alleged….
of a State in
a civil suit for Source:
damages in
respect of Al-Adsani v
acts of United
torture within Kingdom,
the territory App. No.
of that State. 35763/97, 34
Notwithstand Eur. H.R.
ing the Rep. 11, par.
special 61 (2002)(21
character of Nov. 2001).
the
prohibition of
torture in TABLE B: Comparison of Mark Ellis’s article entitled Breaking the
international Silence: Rape as an International Crime (2006-2007) and the Supreme
law, the Court’s 28 April 2010 Decision in Vinuya v. Executive Secretary.
Court is
unable to The Allegedly
discern in The Decision
Copied Work
the
Mark Ellis’s article Vinuya v. International
international
instruments, entitled Breaking Executive Source Being
judicial the Silence: Rape Secretary, G.R. Analyzed by Ellis
authorities or as an International No. 162230, 28
other Crime 38 Case W. April 2010.
 Res. J. Int’l. L. 3(1)(c), 75 Convention (III)
225(2006-2007). U.N.T.S. 85; Relative to the
Geneva Treatment of
[65] …A major step
1. A major step in this [Article 50/51/147]
Convention Prisoners of War,
legal development in this legal
Relative to the 75 U.N.T.S. 973;
came in 1949, development came Grave breaches to Treatment of Geneva
when rape and in 1949, when rape which the Prisoners of War, Convention (IV)
sexual assault and sexual assault preceding Article art. 3(1)(c), 75 Relative to the
were included in were included in relates shall be U.N.T.S. 973; Protection of
the Geneva the Geneva those involving any Fourth Geneva Civilian Persons in
Conventions.... Conventions. Rape of the following Convention, supra Time of War, 75
Rape is included inis included in the acts, if committed note 23, art. U.N.T.S. 287.
the following acts following acts against persons… 3(1)(c).
committed against committed against protected by the
persons protected persons protected Convention: willful
by the 1949 by the 1949 (p. 28, footnote 65
killing, torture or
Geneva Geneva of Vinuya)
inhuman treatment,
Conventions: Conventions: including biological 2. Rape as a violation [65] …Rape as a Article 3
"wilful killing, "willful killing, experiments, of the laws or violation of the
torture or inhuman torture or inhuman wilfully causing customs of war laws or customs of …
treatment, treatment, great suffering or generally consists war generally
including biological
including biological serious injury to of violations of consists of (a) violence to life
experiments; experiments; body or health…. Article 3 of the violations of Article and person, in
wilfully causing willfully causing 1949 Geneva 3 of the 1949 particular murder
great suffering or great suffering or Source: Conventions, Geneva of all kinds,
serious injury to serious injury to which, in part, Conventions, mutilation, cruel
body or health." body or health."… prohibits "violence which, in part,
Geneva treatment and
(See Geneva to life and person, prohibits "violence
Convention (I) for torture;
[65] Fourth Geneva Convention for the the Amelioration of in particular to life and person,
Convention, supra Amelioration of the the Condition of mutilation, cruel in particular
Condition of the (b) taking of
note 23, art. 147. the Wounded and treatment and mutilation, cruel
Wounded and Sick hostages;
Sick in Armed torture; outrages treatment and
(p. 236 of Ellis) in Armed Forces in upon personal torture; outrages
Forces in the Field, (c) outrages upon
the Field, art. dignity, in particular
upon personal
75 U.N.T.S. 31; personal dignity, in
3(1)(c), 75 humiliating and dignity, in particular
Geneva particular
U.N.T.S. 31; degrading humiliating and
Convention (II) for humiliating and
Geneva treatment."[66] degrading
the Amelioration of degrading
Convention for the treatment."
the Condition of treatment; …
Amelioration of the 66 See Geneva (See Geneva
Wounded, Sick
Condition of Convention for the Convention for the
and Shipwrecked
Wounded, Sick Amelioration of the Amelioration of the Source:
Members of Armed
and Shipwrecked Condition of the Condition of the
Forces at Sea, 75
Members of Armed Wounded and Sick Wounded and Sick Geneva
U.N.T.S. 85;
Forces at Sea, art. in Armed Forces in in Armed Forces in Convention (I) for
Geneva
 the Field, art. the Field, art. the Amelioration of form of indecent form of indecent Geneva
3(1)(c), 75 3(1)(c), 75 the Condition of assault."[67] assault." Convention (IV)
U.N.T.S. 31; U.N.T.S. 31; the Wounded and Relative to the
Geneva Geneva Sick in Armed [67] Fourth Geneva (p. 28, footnote 65 Protection of
Convention for the Convention for the Forces in the Field, Convention, supra of Vinuya) Civilian Persons in
Amelioration of the Amelioration of the 75 U.N.T.S. 31; note 23, art. 27. Time of War, 75
Condition of Condition of Geneva U.N.T.S. 287.
Wounded, Sick Wounded, Sick Convention (II) for (pp. 236 of Ellis)
and Shipwrecked and Shipwrecked the Amelioration of
Members of Armed Members of Armed the Condition of 4. Protocol I of the [65] …Protocol I of Article 76.-
Forces at Sea, art. Forces at Sea, art. Wounded, Sick Geneva the Geneva Protection of
3(1)(c), 75 3(1)(c), 75 and Shipwrecked Conventions Conventions women
U.N.T.S. 85; U.N.T.S. 85; Members of Armed continues to continues to
Geneva Geneva Forces at Sea, 75 expand the expand the 1. Women shall be
Convention Convention U.N.T.S. 85; protected rights by protected rights by the object of
Relative to the Relative to the Geneva providing that providing that special respect and
Treatment of Treatment of Convention (III) "women shall be "women shall be shall be protected
Prisoners of War, Prisoners of War, Relative to the the object of the object of in particular
art. 3(1)(c), 75 art. 3(1)(c), 75 Treatment of special respect and special respect and against rape,
U.N.T.S. 973; U.N.T.S. 973; Prisoners of War, shall be protected shall be protected forced prostitution
Fourth Geneva Fourth Geneva 75 U.N.T.S. 973; in particular in particular and any other form
Convention, supra Convention, supra Geneva against rape, against rape, of indecent assault.
note 23, art. note 23, art. Convention (IV) forced prostitution forced prostitution
3(1)(c).... 3(1)(c). Relative to the and any form of and any form of Source:
Protection of indecent indecent assault."
(p. 236 of Ellis) (p. 28, footnote 65 Civilian Persons in assault."[68] (Protocol
Protocol Additional
of Vinuya) Time of War, 75 Additional to the
to the Geneva
U.N.T.S. 287. [68] Protocol Geneva
Conventions of 12
Additional to the Conventions of
3. Article 27 of the [65] …Article 27 of Article 27 August 1949, and
Geneva August 12, 1949,
Fourth Geneva the Fourth Geneva relating to the
Conventions of 12 and Relating to the
Convention, Convention, Women shall be Protection of
August 1949, and Protection of
directed at directed at especially Victims of
Relating to the Victims of
protecting civilians protecting civilians protected against International
Protection of International
during time of war, during time of war, any attack on their Armed Conflicts
Victims of Armed Conflicts
states that "women states that "women honour, in (Protocol I), 1125
International (Protocol I), Article
shall be especially shall be especially particular against U.N.T.S. 3.
Armed Conflicts 76(1), 1125
protected against protected against rape, enforced U.N.T.S. 4).
(Protocol I), Article
any attack on their any attack on their prostitution, or any 76(1), 1125
honour, in honour, in form of indecent U.N.T.S. 4. (p. 28, footnote 65
particular against particular against assault. of Vinuya)
rape, enforced rape, enforced
prostitution, or any prostitution, or any (pp. 236-237 of
Source: Ellis)
TABLE C: Comparison of Robert McCorquodale’s work, entitled The s footnote 14, four
Individual and the International Legal System, 4and Phoebe Okowa’s sentences before
work, entitled Issues of Admissibility and the Law on International the passage copied
Responsibility,5 both of which were published in Malcolm Evans’s book by Vinuya, and is
(International Law), and the Supreme Court’s Decision in Vinuya v. made following the
Executive Secretary, G.R. No. 162230, 28 April 2010. quote, ‘it is scarcely
necessary to point
The Allegedly International out that the
The Decision capacity to possess
Copied Work Source Being
civil rights does not
Essays published in Vinuya v. Executive Analyzed and
necessarily imply
Malcolm Evans, Secretary, G.R. No. Used by
McCorquodale / the capacity to
International Law (ed., 162230, 28 April 2010. exercise those
2006). Okowa
rights oneself’.
1 Traditionally, the only …traditionally, the only Note:
. means available for means available for In McCorquodale,
individuals to bring a individuals to bring a Page 231 of the the citation
claim within the claim within the Appeal from a following the
international legal international legal Judgment of the discussion on how
system has been system has been when Hungaro- "it is not the
when the individual is the individual is able toCzechoslovak individual’s
able to persuade a persuade a Mixed Arbitral international rights
government to bring a government to bring a Tribunal case – the that are being
claim on the claim on the citation nearest in asserted but the
individual’s behalf. individual’s behalf.[55] location and in State’s own rights"
Even then, it is not the context to the is written thus in
individual’s Even then, it is not the passage – does not footnote 16:
international rights individual’s rights that contain a [16] Panevezeys-
that are being are being asserted, but discussion on Saldutiskis
asserted but the rather, the state’s own "persuad[ing] a Railway, Judgment,
State’s own rights…. rights. government to PCIJ, Ser A/B, No
bring a claim on the 76, p 4. Cf LaGrand
(p. 315-16 of Evans’s [55] …Appeal from a individual’s behalf." (Germany v United
International Law Judgment of the States of America),
book, essay written Hungaro/Czeochoslova The reference to Merits, Judgment,
by McCorquodale) k Mixed Arbitral Appeal from a ICJ Reports 2001,
Tribunal, Judgment, Judgment of the p 466, para 42.
1933, PCIJ, Ser. A/B Hungaro- 2 The conceptual [55] The conceptual Again, it is scarcely
No. 61, p. 208 at 231. Czechoslovak . understanding that understanding that necessary to point
Mixed Arbitral individuals have rights individuals have rights out that the
(p. 24, Body of Vinuya) Tribunal case and responsibilities in and responsibilities in capacity to possess
occurs the international legal the international arena civil rights does not
in McCorquodale a system does not does not automatically necessarily imply
 automatically mean mean that they have the capacity to of diplomatic (p. 26, footnote 63 protection. Thus,
that they have the the ability to bring exercise those protection.[17] of Vinuya) for the pertinent
ability to bring international claims to rights oneself. No passages
international claims to assert their rights. argument against [17] Kaunda and of Kaunda please
assert their rights or Thus, the Permanent the University's others v President of see entry 5 of this
are able to claim an Court of International personality in law the Republic of South table.
immunity to prevent Justice declared that "it can therefore be Africa and others,
their responsibilities is scarcely necessary deduced from the Case CCCT23/04. In
being enforced to point out that the fact that it did not the Hess
(Hohfeld, above). capacity to possess enjoy the free Decision BverfGE, 55,
Thus the PCIJ civil rights does not disposal of the 349, 90 ILR 386, the
declared that ‘it is necessarily imply the property in German Federal
scarcely necessary to capacity to exercise question.... Constitutional Court
point out that the those rights oneself." upheld the existence
capacity to possess Appeal from a Source: of a federal
civil rights does not Judgment of the constitutional right to
necessarily imply the Hungaro/Czeochoslova Appeal from a diplomatic protection
capacity to exercise k Mixed Arbitral Judgment of the but denied that it was
those rights Tribunal, Judgment, Hungaro- required by customary
oneself’.[14] 1933, PCIJ, Ser. A/B Czechoslovak international law. See
No. 61, p. 208 at 231. Mixed Arbitral also Abbasi v Sec of
[14] Appeal from a Tribunal (Peter Foreign and
Judgment of the (p. 24, footnote 55 of Pázmány Commonwealth
Hungaro/Czechoslova Vinuya) University v. Affairs and Sec of
k Mixed Arbitral Czechoslovakia), Home Office [2002]
Tribunal, Judgment, 1933 P.C.I.J. 208, EWCA Civ 1598, 6
1933, PCIJ, Ser A/B, (ser. A/B) No. 61, November 2002.
No 61, p 208 at p 231 at 231 (Dec. 15).
(p. 484 of
(p. 315 of Evans’s Evans’s International
International Law Law book, essay
book, essay written written by Okowa)
by McCorquodale)
4 This position was [63] …has been 1. Feroz Ali Abbasi,
3 The decisions of Even decisions of Note: . been challenged in challenged in the UK in the first claimant, is
. national courts on national courts support the UK in a case a case arising from the a British national....
these constitutional the thesis that general In Okowa’s essay, arising from the unlawful detention by They seek, by
provisions international law as it this statement clearly internationally the US of prisoners in judicial review, to
nevertheless support stands does not follows a paragraph unlawful detention by Guantanamo Bay from compel the Foreign
the thesis that general mandate an in which she the US of prisoners in the time of the Office to make
international law as it enforceable legal duty discusses Kaunda i Guantanamo Bay Afghanistan conflict in representations on
stands does not of diplomatic n the context of from the time of the 2001. In Abbasi v his behalf to the
mandate an protection. discretionary Afghanistan conflict in Secretary of State for United States
enforceable legal duty diplomatic 2001. In Abassi v Foreign and Government or to
 Secretary of State for Commonwealth Affairs take other Republic of South the Republic of South equality and the
Foreign and ([2002] EWCA Civ appropriate action Africa and others[16] Africa and advancement of
Commonwealth 1316, 19 September or at least to give recognized the others (Case human rights and
Affairs[19] the 2002) the applicant (a an explanation as constitutional basis of CCCT23/04) freedoms….
applicant (a British British national) sought to why this has not the right of diplomatic recognized the
national) sought judicial review of the been done. protection as constitutional basis of …
judicial review of the adequacy of the enshrined in the the right of diplomatic
adequacy of the diplomatic actions of ... South African protection as enshrined [69] There may
diplomatic actions of the British government constitution, but went in the South African thus be a duty on
the British with the US 107. ...On no view on to hold that the Constitution, but went government,
government with the government…. would it be nature and extent of on to hold that the consistent with its
US government…. appropriate to order his obligation was an nature and extent of obligations under
(p. 26, footnote 63 of the Secretary of aspect of foreign this obligation was an international law, to
(p. 316 of Evans’s Vinuya) State to make any policy within the aspect of foreign policy take action to
International Law specific discretion of the within the discretion of protect one of its
book, essay written representations to executive. the executive. citizens against a
by McCorquodale) the United States, gross abuse of
even in the face of [16] Kaunda and (p. 27, footnote 63 of international human
what appears to be others v. President of Vinuya) rights norms....
a clear breach of a the Republic of South
fundamental Africa and others, …
human right, as it is Case CCCT23/04.
obvious that this [73] A court cannot
would have an (p. 484 of Evans’s tell the government
impact on the International Law how to make
conduct of foreign book, essay written by diplomatic
policy…. Okowa) interventions for the
protection of its
Source: nationals….

Abbasi v. Secretary …
of State for Foreign
and [77] A decision as
Commonwealth to whether, and if
Affairs, 42 I.L.M. so, what protection
358, 359-383 should be given, is
(2003)(Nov. an aspect of foreign
6)(U.K.). policy which is
5 The South African [63] …The South [65] The founding essentially the
. Constitutional Court in African Constitutional values of our function of the
Kaunda and others v Court in Kaunda and Constitution include executive. The
President of the others v. President of human dignity, timing of
representations if
 they are to be Internacional 377
made, the (2006)
language in which
1. Nowhere is this Nowhere is this By taking up the
they should be
position more position more case of one of its
couched, and the
clearly reflected clearly reflected subjects and by
sanctions (if any)
than in the dictum than in the dictum resorting to
which should follow
of the Permanent of the Permanent diplomatic action
if such
Court of Court of or international
representations are
International International judicial
rejected are
Justice (PCIJ) in Justice (PCIJ) in proceedings on his
matters with which
the 1924 the 1924 behalf, a State is
courts are ill
Mavrommatis Mavrommatis in reality asserting
equipped to deal….
Palestine Palestine its own right to
Concessions Case: Concessions Case: ensure, in the
Source: person of its
By taking up the By taking up the subjects, respect
Kaunda v. case of one of its case of one of its for the rules of
President of the subjects and by subjects and by international law.
Republic of South resorting to resorting to
Africa, 44 I.L.M. diplomatic action or diplomatic action or The question,
173, pars. 65-77 international international therefore, whether
(2005) (C. Ct. S. judicial judicial the present
Afr.). proceedings on his proceedings on his dispute originates
behalf, a State is in behalf, a State is in in an injury to a
TABLE D: Comparison of Mariana Salazar Albornoz’s article, Legal reality asserting its reality asserting its private interest,
Nature and Legal Consequences of Diplomatic Protection: Contemporary own right to own right to which in point of
Challenges, and the Supreme Court’s Decision in Vinuya et. al. v. ensure, in the ensure, in the fact, is the case in
Executive Secretary, G.R. No. 162230, 28 April 2010. person of its person of its many international
subjects, respect subjects, respect disputes, is
for the rules of for the rules of irrelevant from this
The Allegedly international law. international law. standpoint. Once a
The Decision
Copied Work The question, The question, State has taken up
Mariana Salazar Vinuya v. Executive therefore, whether therefore, whether a case on behalf
Albornoz, Legal Secretary, G.R. No. The Purported the present dispute the present dispute of one of its
Nature and Legal 162230, 28 April "Original" Source originates in an originates in an subjects before an
Consequences of 2010. Cited by the injury to a private injury to a private international
Diplomatic Concerned interest, which in interest, which in tribunal, in the
Protection: Authors and in the point of fact, is the point of fact, is the eyes of the latter
Contemporary Vinuya Decision case in many case in many the State is sole
Challenges, 6 international international claimant. The fact
Anuario Mexicano disputes, is disputes, is that Great Britain
de Derecho irrelevant from this irrelevant from this and Greece are
standpoint. Once a standpoint. Once a the opposing
State has taken up State has taken up Parties to the Advisory Opinion: (second phase)
a case on behalf of a case on behalf of dispute arising out ICJ Reports 1949, Judgment of April
one of its subjects one of its subjects of the p. 174; the 6th, 1955: ICJ
before an before an Mavrommatis Nottebohm Case Reports 1955, p. 4
international international concessions is (second phase) at p. 24; the
tribunal, in the eyes tribunal, in the eyes sufficient to make Judgment of April Interhandel Case
of the latter the of the latter the it a dispute 6th, 1955: ICJ (Judgment of
State is sole State is sole between two Reports 1955, p. 4 March 21st, 1959:
claimant.[85] claimant.[56] States within the at p. 24; the ICJ Reports 1959,
meaning of Article Interhandel Case p. 6 at p. 27) and
[85] Mavrommatis [56] PCIJ, Ser. A, 26 of the Palestine (Judgment of the Barcelona
Palestine No. 2, p. 11, at 16. Mandate. March 21st, 1959: Traction Light and
Concessions case, This traditional ICJ Reports 1959, Power Company,
supra note 9, p. 12. view was repeated Source: p. 6 at p. 27) and Limited case,
The emphasis is by the PCIJ in the the Barcelona (Belg. V. Spain),
ours. This Panevezys- Mavrommatis Traction Light and 1970 I.C.J. 3, 32
traditional view was Saldutiskis Railway Palestine Power Company, (Feb. 5).
repeated by the Case, the Case Concessions Limited case, supra
PCIJ in the Concerning the (Greece v. Gr. note 6, at p. 32 par. (p. 24 Body of
Panevezys- Payment of Various Brit.), 1924 P.C.I.J. 33. It has also been Vinuya)
Saldutiskis Railway Serbian Loans (ser. A) No. 2, at recognized by
Case, the Case issued in France, 12 (Aug. 30). other international
Concerning the Judgment of July tribunals: see, for
Payment of Various 12, 1929, PCIJ example,
Serbian Loans Reports, Series A Administrative
issued in France, No. 20; and in the Decision No. V of
Judgment of July Case Concerning the US-German
12, 1929, PCIJ the Factory at Claims
Reports, Series A Chorzow, Commission.
No. 20; and in the Judgment of
Case Concerning September 13, (p. 397 of
the Factory at 1928, Merits, PCIJ Albornoz)
Chorzow, Reports, Series A
2. Under this view, [57] See Borchard, …The citizen
Judgment of No. 17. The ICJ
the considerations E., Diplomatic abroad has no
September 13, has adopted it in
underlying the Protection of legal right to
1928, Merits, PCIJ the Reparation for
decision to Citizens Abroad at require the
Reports, Series A injuries suffered in
exercise or not VI (1915). Under diplomatic
No. 17. The ICJ the service of the
diplomatic this view, the protection of his
has adopted it in United Nations
protection may vary considerations national
the Reparation for Advisory Opinion:
depending on each underlying the government.
injuries suffered in ICJ Reports 1949,
case and may rely decision to Resort to this
the service of the p. 174; the
entirely on policy exercise or not remedy of
United Nations Nottebohm Case
considerations diplomatic diplomatic
 regardless of the protection may vary protection is solely expressly state that diplomatic are reproduced
interests of the depending on each a right of the "the right of protection belongs below.
directly-injured case and may rely government, the diplomatic to or vests in the
individual, and the entirely on policy justification and protection belongs State,"[59] (ii) …
State is not considerations expediency of its to or vests in the affirm its
required to provide regardless of the employment being State", a statement discretionary Article 2 stresses
justification for its interests of the a matter for the which "gives nature by clarifying that the right of
decision.[90] directly-injured government’s recognition to the that diplomatic diplomatic
individual, and the unrestricted Vattelian notion protection is a protection belongs
[90] See in this State is not discretion. This that an injury to a "sovereign to or vests in the
sense, Borchard required to provide protection is national is an prerogative" of the State. It gives
E., Diplomatic justification for its subject in its grant indirect injury to the State;[60] and (iii) recognition to the
Protection of decision. to such rules of State";[96] (ii) they stress that the state Vattelian notion
Citizens Abroad, municipal affirm its "has the right to that an injury to a
New York, The (p. 25, footnote 57 administrative law discretionary exercise diplomatic national is an
Banks Law of Vinuya) as the state may nature by clarifying protection on indirect injury to
Publishing Co., adopt, and in its that diplomatic behalf of a national. the State.[25]…
1915, at VI. Also: exercise protection is a It is under no duty
G. Berlia, op. cit. internationally to "sovereign or obligation to do
...
(note 86), pp. 63 y certain rules which prerogative" of the so."[61]
64. custom has State;[97] and
recognized. stressing that the A State has the
[59] ILC First
state "has the right right to exercise
(p. 398 of Reading Draft
to exercise diplomatic
Albornoz) Source: Articles on
diplomatic protection on
Diplomatic
protection on behalf of a
Edwin M. Protection, U.N.
behalf of a national. national. It is
Borchard, The Doc. A/CN.4/484,
It is under no duty under no duty or
Diplomatic ILC Report,
or obligation to do obligation to do so.
Protection of A/53/10 (F), par.
so."[98] The internal law of
Citizens Abroad or 60, Commentary to
a State may oblige
the Law of Draft Article 2, par.
a State to extend
International [96] ILC First (1); see also,
diplomatic
Claims, vi (1914). Reading Draft Commentary to
protection to a
Articles on Draft Article 1, par.
3. The ILC’s First The International 60. The texts of national,[29] but
Diplomatic (3), and text of
Reading Draft Law Commission’s the draft articles international law
Protection, supra Draft Article 2.
Articles on (ILC’s) Draft on diplomatic imposes no such
note 13, par. 60,
diplomatic Articles on protection with obligation....
Commentary to [60] Report of the
protection have Diplomatic commentaries Draft Article 2, par. International Law
fully attached to the Protection fully thereto adopted on (1); see also, Source:
Commission on the
traditional view on support this first reading by the Commentary to work of its 50th
the legal nature of traditional view. Commission at its Draft Article 1, par. Text of the Draft
such institution. In They (i) state that fifty-sixth session, Articles on
this sense, (i) they "the right of Diplomatic
 (3), and text of session, supra note Protection international tribunal. The State of his/her
Draft Article 2. 60, par. 77. Adopted by the tribunal.[116 proposed article nationality has a
Commission on reads as follows: legal duty to
[97] Report of the [61] ILC First First Reading, [116] The proposed exercise
International Law Reading Draft Rep. of the Int'l. article read as Article [4] 1. Unless diplomatic
Commission on the Articles on Law Comm'n, 56th follows: "Article [4] the injured person protection on
work of its 50th Diplomatic Sess., 3 May-4 1. Unless the is able to bring a behalf of the
session, supra note Protection, supra June and 5 July-6 injured person is claim for such injured person
13, par. 77. note 60, August 2004, U.N. able to bring a injury before a upon request, if
commentary to Doc. A/59/10 at claim for such competent the injury results
[98] ILC First Draft Article 2, par. 22-28, par. 60; injury before a international court from a grave
Reading Draft (2). GAOR, 59th competent or tribunal, the breach of a jus
Articles on Sess., Supp. 10 international court State of his/her cogens norm
Diplomatic (p. 25-26 Body of (2004). or tribunal, the nationality has a attributable to
Protection, supra Vinuya) State of his/her legal duty to another State.
note 2, nationality has a exercise diplomatic
commentary to legal duty to protection on 2. The State of
Draft Article 2, par. exercise diplomatic behalf of the nationality is
(2). protection on injured person relieved of this
behalf of the upon request, if the obligation if:
(p. 400 of injured person injury results from a
Albornoz) upon request, if the grave breach of a (a) The exercise of
injury results from a jus cogens norm diplomatic
4. …Special [62] …Special 74. The grave breach of a attributable to protection would
Rapporteur Dugard Rapporteur Dugard discretionary jus cogens norm another State. 2. seriously
proposed that the proposed that the power of the State attributable to The state of endanger the
ILC adopt in its ILC adopt in its to intervene on another State. 2. nationality is overriding
Draft Articles a Draft Articles a behalf of its The state of relieved of this interests of the
provision under provision under national is nationality is obligation if: (a) State and/or its
which States would which States would considered in the relieved of this The exercise of people;
be internationally be internationally commentary on obligation if: (a) diplomatic
obliged to exercise obliged to exercise article 4. The exercise of protection would (b) Another State
diplomatic diplomatic diplomatic seriously endanger exercises
protection in favour protection in favor Article 4 protection would the overriding diplomatic
of their nationals of their nationals seriously endanger interests of the protection on
injured abroad by injured abroad by 1. Unless the the overriding State and/or its behalf of the
grave breaches to grave breaches to injured person is interests of the people ; (b) injured person;
their jus cogens jus cogens norms, able to bring a State and/or its Another State
norms, if the if the national so claim for such people ; (b) exercises
national so requested and if (c) The injured
injury before a Another State diplomatic
requested and if he/she was not person does not
competent exercises protection on
he/she was not afforded direct have the effective
international court diplomatic behalf of the
afforded direct access to an and dominant
or tribunal, the protection on injured person; (c)
access to an international
 behalf of the The injured person nationality of the [120] Official General Assembly: Committee and of
injured person; (c) does not have the State. Records of the 55th session, ILA; it even formed
The injured person effective and Supplement No. part of some
does not have the dominant 3. States are General Assembly: 10, Doc. A/55/10 constitutions. It
effective and nationality of the obliged to provide 55th session, (2000), Report of was thus an
dominant State. States are in their municipal Supplement No. the ILC on the work exercise in the
nationality of the obliged to provide law for the 10, Doc. A/55/10 of its 52nd session, progressive
State. States are in their municipal enforcement of (2000), Report of p. 131. development of
obliged to provide law for the this right before a the ILC on the work international
in their municipal enforcement of this competent of its 52nd session, (p.26, footnote 62
law for the right before a domestic court or p. 131. of Vinuya) law. But the
enforcement of this competent other independent general view was
right before a domestic court or national authority. (p. 405 of that the issue was
competent other independent Albornoz) not yet ripe for the
domestic court or national authority." Source: attention of the
other independent Special Rapporteur Commission and
national authority." John Dugard, that there was a
Special
Dugard, J. First appointed in 1999, need for more
Rapporteur on
report on First Report on State practice and,
Diplomatic
diplomatic Diplomatic particularly, more
Protection, First
protection, supra Protection, par. 74 opinio juris before
Rep. on
note 13, par. 74. (UN Doc it could be
Diplomatic
A/CN.4/506 (March considered.
Protection, Int’l.
(p. 404 of 7, 2000) and Corr.
Law Comm’n, UN
Albornoz) 1 (June 7, 2000) Note:
Doc. A/CN.4/506,
and Add. 1 (April
at 27, par. 74 (7
20, 2000).
March 2000) (by p. 131 of the
John R. Dugard). Report does not
(p. 26, footnote 62 refer to the topic of
of Vinuya) diplomatic
5. …the proposal was [62] …the proposal 456. The Special protection. Rather,
not accepted by the was not accepted Rapporteur the heading of the
ILC, as "the by the ILC, as "the recognized that he page reads "Other
question was still question was still had introduced Decisions and
not ripe for not ripe for article 4 de lege Conclusions of the
treatment" because treatment" because ferenda. As Commission."
"the State practice "the State practice already indicated,
and their opinio and their opinio the proposal Source:
juris still hadn’t juris still hadn’t enjoyed the
evolved in such evolved in such support of certain Rep. of the Int’l.
direction."[120] direction." Official writers, as well as Law Comm’n,
Records of the of some members 52nd Sess., 1 May
of the Sixth - 9 June and 10
 July - 18 August Kazakhstan, Lao First Report on Viet Nam and
2000, U.N. Doc. People’s diplomatic Yugoslavia….
A/55/10 at 78-79, Democratic protection, supra
par. 456; GAOR, Republic, Latvia, note 13, par. 80.) Source:
55th Sess., Supp. Lithuania, Poland,
10 (2000). Portugal, Republic (p. 26, footnote 62 Special
of Korea, Romania, of Vinuya) Rapporteur on
6. ...some States [62] …some States 80.
Russian Diplomatic
have, indeed, have, indeed, …Constitutional
Federation, Spain, Protection, First
incorporated in incorporated in provisions in a
the former Rep. on
their municipal law their municipal law number of
Yugoslav Republic Diplomatic
a duty to exercise a duty to exercise States…
of Macedonia, Protection, Int’l.
diplomatic diplomatic recognize the right
Turkey, Ukraine, Law Comm’n, UN
protection in favor protection in favor of the individual to
Viet Nam and Doc. A/CN.4/506,
of their nationals…. of their nationals. receive diplomatic
Yugoslavia, albeit at 30, par. 80 (7
Various other (Dugard identifies protection for
with different March 2000) (by
States have also this "obligation to injuries suffered
reaches. J. Dugard, John R. Dugard).
included such a exist in the abroad. These
First Report on
"duty to exercise Constitutions of include: Albania,
diplomatic
diplomatic Albania, Belarus, Belarus, Bosnia
protection, supra
protection" under Bosnia and and Herzegovina,
note 13, par. 80.
their domestic Herzegovina, Bulgaria,
laws,[130 ]but their Bulgaria, Cambodia, China,
enforceability is Cambodia, China, (p. 406 of
also, to say the Croatia, Estonia, Albornoz)
Croatia, Estonia,
least, questionable Georgia, Guyana, Georgia, Guyana, 7. …but their [62] ..., but their (2) A State has the
(in many cases Hungary, Italy, Hungary, Italy, enforceability is enforceability is right to exercise
there are not even Kazakhstan, Lao Kazakhstan, Lao also, to say the also, to say the diplomatic
courts competent People’s People’s least, questionable least, questionable protection on
to review the Democratic (in many cases (in many cases behalf of a
decision). Republic, Latvia, Democratic there are not even there are not even national. It is
Lithuania, Poland, Republic, Latvia, courts competent courts competent under no duty or
[130] Dugard Portugal, Republic Lithuania, Poland, to review the to review the obligation to do so.
identifies this of Korea, Romania, Portugal, Republic decision). decision). The internal law of
"obligation to exist Russian of Korea, Moreover, their Moreover, their a State may oblige
in the Constitutions Federation, Spain, existence in no way existence in no way a State to extend
of Albania, Belarus, the former Romania, Russian implies that implies that diplomatic
Bosnia and Yugoslav Republic international law international law protection to a
Federation, Spain,
Herzegovina, of Macedonia, imposes such an imposes such an national,[29] but
the former
Bulgaria, Turkey, Ukraine, obligation,[131] obligation, simply international law
Yugoslav Republic
Cambodia, China, Viet Nam and of Macedonia, simply suggesting suggesting "that imposes no such
Croatia, Estonia, Yugoslavia, albeit "that certain States certain States obligation. The
Turkey, Ukraine,
Georgia, Guyana, with different consider diplomatic consider diplomatic position was
Hungary, Italy, reaches. J. Dugard, protection for their protection for their clearly stated by
nationals abroad to nationals abroad to the International TABLE E: Comparison of Elizabeth Prochaska’s article, Testing the
be desirable."[132 be desirable" (ILC Court of Justice in Limits of Diplomatic Protection: Khadr v. The Prime Minister of
First Reading Draft the Barcelona Canada,6 and the Supreme Court’s Decision in Vinuya v. Executive
Articles on Traction case: Secretary, G.R. No. 162230, 28 April 2010.
[131] ILC First
Reading Draft Diplomatic
Articles on Protection, supra … The Allegedly
note 2, The Decision
Diplomatic Copied Work
Protection, supra Commentary to A proposal that a
Draft Article 2, par Elizabeth Vinuya v. Executive
note 2, limited duty of International
(2)). Prochaska, Testing Secretary, G.R. No.
Commentary to protection be Source Being
the Limits of 162230, 28 April
Draft Article 2, par imposed on the Analyzed By
Diplomatic 2010.
(2). This was (p. 26, footnote 62 State of nationality Prochaska
Protection: Khadr
recognized of Vinuya) was rejected by v. The Prime
expressly in the the Commission Minister of Canada
Barcelona Traction as going beyond (2009).
case, supra note 6. the permissible
limits of Instead, Draft [62] …Official Note:
[132] Dugard, J. progressive Article 19, entitled Records of the
First report on development of ‘Recommended General Assembly: The Report of the
diplomatic the law.[31] Practice,’ suggests 55th session, International Law
protection, supra that states should Supplement No. Commission on
note 13, par. 81…. Source: be encouraged to 10, Doc. A/55/10 the Work of its
exercise diplomatic (2000), Report of Fifty-Second
(p. 406-407 of Commentary to protection the ILC on the work Session, and the
Albornoz) the Text of the ‘especially when of its 52nd session, Special
Draft Articles on significant injury p. 131. Instead, Rapporteur’s First
Diplomatic occurred to the Draft Article 19, on Diplomatic
Protection national. Drafted in entitled Protection, which
Adopted by the soft language, the ‘Recommended are the nearest in
Commission on Article does not Practice,' suggests location and in
First Reading, purport to create that states should context to the
Rep. of the Int'l. any binding be encouraged to passage, does not
Law Comm’n, 56th obligations on the exercise diplomatic contain a
Sess., 3 May-4 state. protection discussion on
June and 5 July-6 ‘especially when Draft Article 19.
August 2004, U.N. (p. 397 of significant injury See pp. 72-85 and
Doc. A/59/10 at Prochaska) occurred to the 27-34 respectively.
28, par. 60; national. Drafted in
GAOR, 59th soft language, the
Sess., Supp. 10 Article does not
(2004). purport to create
any binding
 obligations on the women, and (3) a letter http://web.archive.org/web/20060
state. paying 2.5-3 of apology 301213211/http://www.awf.or.jp/e
million yen from the nglish/project_atonement.html
(Footnote 62 of ($25,000- Japanese
Vinuya) $30,000) for Prime Minister
each former to each
comfort woman.
TABLE F: Comparison of Larry Niksch’s Report, Japanese Military’s woman; and
Comfort Women, 10 April 2006, 7 and the Supreme Court’s Decision in (3) a letter of (p. 17, Body of
Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010. apology from Vinuya)
the Japanese
The Allegedly Prime Minister
The Decision to each
Copied Work
recipient
Larry Niksch, Vinuya v. woman.[8]
Japanese Executive Source Being Used By Niksch
Military’s Secretary,
[FN8]. From
Comfort G.R. No.
the Asian
Women, 10 162230, 28
Women’s
April 2006. April 2010.
Fund website,
1. The Asian The AWF The projects of atonement March 16,
Women’s announced involved providing former comfort 2006.
Fund three women with 2 million yen per
announced programs for person as atonement money (paragraph 11
three former comfort donated by Japanese citizens, of Niksch)
programs for women who delivering a letter of apology from
former comfort applied for the Japanese Prime Minister, 2. ...As of March ...As of March In order to fulfill its moral
women who assistance: (1) and offering goods and services 2006, the 2006, the responsibility in all sincerity, the
applied for an atonement under medical and welfare Asian AWF provided Japanese government decided to
assistance: (1) fund paying ¥2 support projects financed by the Women’s ¥700 million disburse about 700 million yen
an atonement million Japanese government. Fund provided yen over a five-year period for
fund that paid (approximately 700 million (approximately medical and welfare support
two million yen $20,000) to yen $7 million) for projects aiding former comfort
Note:
(approximately each woman; (approximately these women in the Philippines, the
$20,000) to (2) medical $7 million) for programs in Republic of Korea and Taiwan.
The passage in Vinuya does not these South Korea,
each former and welfare contain a footnote. The following
comfort support programs in Taiwan, and ...
source is the nearest citation that South Korea, the
woman; (2) programs, may reasonably be taken as
medical and paying ¥2.5-3 Taiwan, and Philippines; Note:
within the context of the the ¥380 million
welfare million discussion in Vinuya.
support ($25,000- Philippines; yen
The passage in Vinuya does not
programs for $30,000) for 380 million (approximately
contain a footnote. The following
former comfort each woman; yen $3.8 million) in
source is the nearest citation that
(approximately Indonesia; and
 $3.8 million) in ¥242 million may reasonably be taken as TABLE G: Comparison of James Ladino’s article, Ianfu: No Comfort Yet
Indonesia; and yen within the context of the for Korean Comfort Women and the Impact of House Resolution 121 and
242 million (approximately discussion in Vinuya. the Supreme Court’s Decision in Vinuya v. Executive Secretary, G.R. No.
yen $2.4 million) in 162230, 28 April 2010.
(approximately the http://web.archive.org/web/20060
$2.4 million) in Netherlands. 301213211/http://www.awf.or.jp/e The Allegedly
the The Decision
nglish/project_atonement.html Copied Work
Netherlands. (p. 17, Body
[9] James Ladino, Ianfu: Vinuya v. Executive
of Vinuya)
No Comfort Yet for Secretary, G.R. No. Source Being
Korean Comfort 162230, 28 April Analyzed and/or Used
(paragraph 12
Women and the 2010. by Ladino
of Niksch)
Impact of House
3. On January On January The government of the Resolution 121, 15
15, 1997 the 15, 1997 the Philippines and the Asian Cardozo J.L. &
Asian AWF and the Women’s Fund signed a Gender 333 (2009).
Women’s Philippine Memorandum of Understanding
1 In 1992, the Korean In 1992, the Korean ...In her report to the
Fund and the government on January 15, 1997….
. Council for the Council for the U.N. Human Rights
Philippine signed a
Women Drafted for Women Drafted for Commission, Radhika
government Memorandum The Philippine government’s Military Sexual Military Sexual Coomaraswamy, the
signed a of Department of Social Welfare Slavery by Japan Slavery by Japan U.N. special
Memorandum Understanding and Development implemented ("KCWS"), submitted (KCWS), submitted a investigator into
of for medical the projects over a period of five a petition to the petition to the UN violence against
understanding and welfare years…. United Nations Human Rights women, concluded
for medical support
Human Rights Commission that Japan must admit
and welfare programs for Note: Commission (UNHRC), asking for its legal
support former comfort
("UNHRC"), asking assistance in responsibility....
programs for women. Over
The passage in Vinuya does not for their assistance in investigating crimes
former comfort the next five
contain a footnote. The following investigating crimes committed by Japan ...
women. Over years, these
source is the nearest citation that committed by Japan against Korean
the next five were
may reasonably be taken as against Korean women and seeking ...Lee Hyo-chae, as a
years, these implemented
within the context of the women and reparations for former co-chair of the KCWS
were by the
discussion in Vinuya. pressuring Japan to comfort women.[29] submitted a petition to
implemented Department of
pay reparations to the The UNHRC placed the U.N. Human
by the Social Welfare
http://web.archive.org/web/20060 women who had filed the issue on its Rights Commission,
Philippine and
301213211/http://www.awf.or.jp/e lawsuits.[96] The agenda and
government’s Development. dated March 4, 1992,
nglish/project_atonement.html UNHRC formally appointed Radhika requesting that the
Department of
placed the issue on Coomaraswamy as Commission
Social Welfare (p. 17, Body of its agenda and the issue's special investigate Japanese
and Vinuya) appointed Radhika investigator. In 1996, atrocities committed
Development.
Coomaraswamy as Coomaraswamy against Korean
the issue’s special issued a Report women during World
(paragraph 19 investigator.[97] reaffirming Japan's
of Niksch) War Two, and help
 Issued in 1996, the responsibility in pressure the WIWCT aimed to the enslavement of activity in the Asia
UNHRC’s report forcing Korean Japanese government "adjudicate Japan's comfort women, to Pacific region in the
reaffirmed Japan’s women to act as sex to pay reparations to military sexual bring those 1930s and 1940s.
guilt in forcing Korean slaves for the imperial individual women who violence, in particular responsible for it to
women to act as sex army, and made the have filed suit. The the enslavement of justice, and to end ...
slaves for the imperial following recommen UNHRC responded by comfort women, to the ongoing cycle of
army.[98] dations: placing the issue on bring those impunity for wartime …The tribunal arose
the official agenda for responsible for it to sexual violence out of the work of
[96] Soh, supra note [29] Soh, The its August 1992 justice, and to end against women." various women's
7 [Chunghee Sarah Comfort Women meeting in Geneva…. the ongoing cycle of nongovernmental
Soh, The Korean Project, San impunity for wartime [31] Chinkin, organizations (NGOs)
"Comfort Women": Francisco State Source: sexual violence Women’s across Asia….
Movement for University (1997- against women." International Tribunal
Redress, 36 Asian 2001), Chunghee Sarah Soh, on Japanese Sexual Source:
Survey 1226,], at http://online.sfsu.edu/ The Korean "Comfort [101] Christine M. Slavery, 95 Am. J.
1234-35. ~soh/comf Women": Movement Chinkin, Women’s Int’l. L. 335 (2001).
Chinkin, Women’s
ortwomen.html, at for Redress, 36 Asian International Tribunal
International Tribunal
[97] Id. at 1226. 1234-35. Survey 1226, 1234-35 on Japanese Sexual (p. 12, Body of on Japanese Sexual
(1996). Slavery, 95 Am. J. Vinuya) Slavery, 95 Am. J.
[98] Id. (p. 9-10, Body Int’l. L. 335 (2001)
Int’l. L. 335 (2001).
of Vinuya)
(p. 344 of Ladino) [102] Violence
Against Women in
2 The Women's The Women's From December 8 to War-Network Japan,
. International War International War 12, 2000, a peoples' What is the Women’s
Crimes Tribunal Crimes Tribunal tribunal, the Women's Tribunal?
(WIWCT) was a (WIWCT) was a International War http.//www1.jca.apc.o
"people's tribunal" "people's tribunal" Crimes Tribunal 2000, rg/vaww-net -
established by a established by a sat in Tokyo, Japan. It japan/English/women
number of Asian number of Asian was established to stribunal200
women, human rights women and human consider the criminal 0/whatstribunal.html
organizations, and rights organizations, liability of leading (last visited Oct. 16,
supported by an supported by an high-ranking 2008).
international coalition international coalition Japanese military and
of non-governmental of non-governmental political officials and (p. 345 of Ladino)
organizations organizations.[31] the separate
("NGOs").[101] First First proposed in responsibility of the 3 A large amount of [32] A large amount …Prosecution teams
proposed in 1998, the 1998, the WIWCT state of Japan for . evidence was of evidence was from ten countries
WIWCT convened in convened in Tokyo in rape and sexual presented to the presented to the presented
Tokyo in 2000 to 2000 in order to slavery as crimes tribunal for tribunal for indictments.[6] North
discuss the issue of "adjudicate Japan's against humanity examination. Sixty- examination. Sixty- and South Korea,
comfort women.[102] military sexual arising out of four former comfort four former comfort China, Japan, the
Specifically, the violence, in particular Japanese military women from Korea women from Korea Philippines,
and other and other Indonesia, Taiwan,
surrounding territories surrounding territories Malaysia, East Timor, The preliminary
in the Asia-Pacific in the Asia-Pacific and the judgment indicated
region testified before region testified before Netherlands…. Two that the judges had
the court.[104] the court. Testimony lead prosecutors found Emperor
Testimony was also was also presented (Patricia Viseur Hirohito guilty of the
presented by by historical scholars, Sellers[7] and Ustinia After examining the charges on the basis
historical scholars, international law Dolgopol[8]) joined evidence for more of command
international law scholars, and two the separate-country than a year, the After examining the responsibility, that he
scholars, and two former Japanese prosecutors and tribunal issued its evidence for more knew or should have
former Japanese soldiers. Additional presented a common final verdict on than a year, the known of the
soldiers.[105] evidence was indictment. December 4, 2001, "tribunal" issued its offenses…. The
finding the former verdict on December
Additional evidence submitted by the judges also indicated
was submitted by the prosecution teams of Source: Emperor Hirohito and 4, 2001, finding the that they had
prosecution teams of ten different the State of Japan former Emperor determined Japan to
ten different countries, including: guilty of crimes Hirohito and the State be responsible under
Chinkin, Women’s
countries, including: North and South International Tribunal against humanity for of Japan guilty of international law
North and South Korea, China, Japan, the rape and sexual crimes against applicable at the time
on Japanese Sexual humanity for the rape
Korea, China, Japan, the Philippines, Slavery, 95 Am. J. slavery of of the events for
the Philippines, Indonesia, Taiwan, women.[107] and sexual slavery of violation of its treaty
Int’l. L. 335, 336 women.[32] It bears
Indonesia, Taiwan, Malaysia, East Timor, (2001). obligations and
stressing, however,
Malaysia, East Timor, and the Netherlands. … principles of
and the Id. [Chinkin] at 336. that although the customary
Netherlands.[106] tribunal included international law
Although the tribunal prosecutors,
(p. 12, footnote 32 of included prosecutors, witnesses, and relating to slavery,
[104] Id. [Violence Vinuya) witnesses, and trafficking, forced
judges, its judgment labor, and rape,
Against Women in judges, its judgment was not legally
War-Network Japan, was not legally amounting to crimes
binding since the against humanity….
What is the Women's binding since the tribunal itself was
Tribunal?, tribunal itself was organized by private
http://www1.jca.apc.o organized by private citizens. What was the value of
rg/vaww-net - citizens…. this exercise? Lacking
japan/english/women legal authority, was
[32] …Id. [Chinkin] at
stribunal200 [107] Violence the tribunal no more
0/whatstribunal.html 336. than a mock trial of
Against Women in
(last visited Oct. 16, War-Network Japan, little concern to
2008).] (p. 12, Body of serious international
supra note 102.
Vinuya) lawyers?
[105] Id. (p. 345 of Ladino)
Source:
[106] Chinkin, supra
note 101, at 336. Chinkin, Women’s
International Tribunal
(p. 345 of Ladino) on Japanese Sexual
 Slavery, 95 Am. J. Apologize for World
Int’l. L. 335 (2001). War II Exploitation of
"Comfort Women," 31
4 On January 31, 2007, On January 31, 2007, Today,
Jan. 2007, available
. United States US Representative Representative
at
Representative Michael Honda of Michael M. Honda
http://www.house.gov/
Michael Honda of California, along with (CA – 15) introduced
list/
California, along with six co-sponsor a bipartisan resolution
press/ca15_honda/
six co-sponsor representatives, before the U.S. House
COMFORTWOMEN.h
representatives, introduced House of Representatives
tml
introduced House Resolution 121 which calling on the
Resolution 121. The called for Japanese government of Japan 5 …The resolution also The Resolution was Resolved, That it is
resolution called for action in light of the to formally and . makes four distinct formally passed on the sense of the
Japanese action in ongoing struggle for unambiguously demands: July 30, 2007,[33] House of
light of the ongoing closure by former apologize for and and made four Representatives that
struggle for closure comfort women. The acknowledge the [I]t is the sense of the distinct demands: the Government of
by former comfort Resolution was tragedy that comfort House of Japan—
women. The House formally passed on women endured at the Representatives that [I]t is the sense of the
of Representatives July 30, 2007,[33] hands of its Imperial the Government of House of (1) should formally
formally passed the and made four Army during World Japan (1) should Representatives that acknowledge,
resolution on July 30, distinct demands: War II…. formally the Government of apologize, and accept
2007.[110] The acknowledge, Japan (1) should historical
resolution also makes [33] Press Release, … apologize, and accept formally responsibility in a
four distinct Congressman Mike historical acknowledge, clear and unequivocal
demands: Honda, Rep. Honda The resolution is responsibility in a apologize, and manner for its Imperial
Calls on Japan to cosponsored by: clear and unequivocal accept historical Armed Force’s
[110] Press Release, Apologize for World Representatives manner for its responsibility in a coercion of young
Congressman Mike War II Exploitation of Edward R. Royce (CA Imperial Armed clear and women into sexual
Honda, Rep. Honda "Comfort Women" – 40), Christopher H. Forces' coercion of unequivocal manner slavery, known to the
Calls on Japan to (January 31, 2007). Smith (NJ - 4), Diane young women into for its Imperial Armed world as "comfort
Apologize for World E. Watson (CA - 33), sexual slavery, Forces' coercion of women", during its
War II Exploitation of (p. 12, Body of David Wu ()R - 1), known to the world as young women into colonial and wartime
"Comfort Women" Vinuya) Phil Hare (IL - 17), "comfort women", sexual slavery, occupation of Asia
(Jan. 31, 2007), and Delegate during its colonial and known to the world as and the Pacific
available at Madaleine Bordallo wartime occupation of "comfort women", Islands from the
http://www.house.gov (GU). Asia and the Pacific during its colonial and 1930s through the
/list/ Islands from the wartime occupation of duration of World War
press/ca15_honda/ Source: 1930s through the Asia and the Pacific II;
COMFORTWOMEN. duration of World War Islands from the
html. II; (2) would help to 1930s through the (2) should have this
Press Release of
resolve recurring duration of World War official apology given
Congressman Mike
(p. 346 of Ladino) questions about the II; (2) would help to as a public statement
Honda, Rep. Honda
sincerity and status of resolve recurring presented by the
Calls on Japan to
prior statements if the questions about the Prime Minister of
 Prime Minister of sincerity and status of Japan in his official … Entitled, "Justice Entitled, "Justice for apply for
Japan were to make prior statements if the capacity; for Comfort Women," Comfort Women," the compensation and
such an apology as a Prime Minister of the resolution resolution demanded: measures to educate
public statement in Japan were to make (3) should clearly and demanded: (1) a (1) a formal people about these
his official capacity; such an apology as a publicly refute any formal acknowledgment of historical events.
(3) should clearly and public statement in claims that the sexual acknowledgment of responsibility by the
publicly refute any his official capacity; enslavement and responsibility by the Japanese …
claims that the sexual (3) should clearly and trafficking of the Japanese government; (2) a
enslavement and publicly refute any "comfort women" for government; (2) a removal of the legal Call for formal
trafficking of the claims that the sexual the Japanese Imperial removal of the legal obstacles preventing acknowledgment of
"comfort women" for enslavement and Armed Forces never obstacles preventing compensation; and responsibility by
the Japanese trafficking of the occurred; and compensation; and (3) unabridged government
Imperial Army never "comfort women" for (3) unabridged education of the past.
occurred; and (4) the Japanese education of the The resolution also
(4) should educate …
should educate Imperial Army never current and future past.[132] The stressed the urgency
current and future occurred; and (4) generations about this resolution also with which Japan
generations about should educate stresses the urgency should act on these Legal obstacles to
horrible crime while compensation must
this horrible crime current and future following the with which Japan issues, stating: "the
while following the generations about should act on these right of individuals to be removed
recommendations of
recommendations of this horrible crime the international issues, stating: "the claim reparations
the international while following the right of individuals to against the …
community with
community with recommendations of respect to the claim reparations government should
respect to the the international "comfort women". against the be expressly Education about the
"comfort community with government should recognized in past
women."[111 respect to the be expressly national law, and
Source cited:
"comfort women."[34 recognized in national cases for reparations …
111] H.R. Res. 121, law, and cases for for the survivors of
H.R. Res. 121, 110th reparations for the sexual slavery, as a
110th Cong. (2007) 34] H.R. Res. 121, Source cited:
Cong. (2007) survivors of sexual crime under
(enacted). 110th Cong. (2007)
(enacted), available at slavery, as a crime international law,
(enacted). European Parliament,
http://www.gpo.gov/fd under international should be prioritized,
(p. 346 of Ladino) sys/pkg/ BILLS- Human rights: Chad,
(p. 12, Body of law, should be taking into account
Women's Rights in
110hres121ih/pdf/BIL prioritized, taking into the age of the
Vinuya) LS- 110hres121ih.pdf Saudi Arabia, Japan's
account the age of survivors." Wartime Sex Slaves,
(U.S.) the survivors."[133]…
(17 Dec. 2007)
6 In December 2007, In December 2007, A resolution on the [35] European available at
. the European the European 'comfort women' (sex [130] European Parliament, Human http://www.europarl.e
Parliament, the Parliament, the slaves) used by Japan Parliament, Human rights: Chad, uropa.eu/
governing body of the governing body of the in World War II calls rights: Chad, Women's Rights in sides/getDoc.do?lang
European Union, European Union, for a change of official Women's Rights in Saudi Arabia, Japan's uage= EN&type=IM-
drafted a resolution drafted a resolution attitudes in modern- Saudi Arabia, Japan's Wartime Sex Slaves, PRESS&reference=
similar to House similar to House day Japan, a right for Wartime Sex Slaves, Dec. 17, 2007, 20071210BRI14639&
Resolution 121.[130] Resolution 121.[35] survivors or families to Dec. 17, 2007, http://www.europarl.e
 http://www.europarl.e uropa.eu/ secondRef= ITEM- Secretary Yohei Secretary Yohei
uropa.eu/ sides/getDoc.do?lang 008-EN Kono.[135] Kono.
sides/getDoc.do?lang uage=EN& type=IM-
uage=EN& type=IM- PRESS&reference= [134] The Comfort [36] The Comfort
PRESS&reference= 20071210BRI14639& Women--A History of Women--A History of
20071210BRI14639& secondRef= ITEM- Trauma, Trauma,
secondRef= ITEM- 008-EN.
008-EN. http://taiwan.yam.org. http://
(p. 13, Body of tw/ taiwan.yam.org.tw/
[132] Id. Vinuya) womenweb/conf_wo womenweb/conf_wo
men/ index_e.html. men/ index_e.html.
[133] Id. (last visited Mar. 26,
2009). (p. 13, Body of
(p. 360 of Ladino) Vinuya)
[134] Id.
7 The Canadian and The Canadian and Note:
. Dutch parliaments Dutch parliaments
have each followed have each followed (p. 360 of Ladino)
On the issue of
suit in drafting suit in drafting comfort women, the
resolutions against resolutions against website only refers to Violations of Rules Against Plagiarism in the Vinuya Decision
Japan. Canada's Japan. Canada's the attitude and
resolution demands resolution demands reaction of the Below are violations of existing rules against plagiarism as can be found
the Japanese the Japanese following in the Vinuya Decision, in addition to violations earlier enumerated in my
government to issue government to issue governments: Taiwan, Dissent:
a formal apology, to a formal apology, to South Korea, North
admit that its Imperial admit that its Imperial Korea, Philippines, A.1 A passage from the article of Criddle and Fox-Decent was copied
Military coerced or Military coerced or China, Indonesia, verbatim, including the footnote. There are no quotation marks to indicate
forced hundreds of forced hundreds of Malaysia, and Japan. that this important conclusion from the article and the example to
thousands of women thousands of women illustrate it, which were discussed in the corresponding footnote, are not
into sexual slavery, into sexual slavery, Source cited: the ponente’s own. No attribution to Criddle and Fox-Decent was made.
and to restore and to restore
references in references in
Japanese textbooks Japanese textbooks
http://taiwan.yam.org.t A.2 Similar to A.1, Criddle and Fox-Decent’s conclusion was copied word
w/womenwe for word, including the corresponding footnote, which was enclosed by
to its war crimes.[134] to its war crimes.[36]
b/conf_women/index_ parentheses and placed immediately after the sentence to which it
The Dutch The Dutch
e.html corresponds. No attribution to Criddle and Fox-Decent was made.
parliament's parliament's
resolution simply calls resolution calls for the
for the Japanese Japanese A.3 Similar to A.1 and A.2, this sentence from the article was copied
government to uphold government to uphold verbatim, including its corresponding footnote. No attribution to Criddle
the 1993 declaration the 1993 declaration and Fox-Decent was made.
of remorse made by of remorse made by
Chief Cabinet Chief Cabinet B.1 Save for a few words which were intentionally rearranged, the entire
paragraph was lifted verbatim from Ellis’s discussion on rape as an
international crime. Two citations of cases from Ellis were omitted. No
attribution to Ellis was made.
B.2 Ellis’s identification of Article 3 of the 1949 Geneva Conventions as a
general authority on rape as a violation of the laws of war, and his
summation thereof, was lifted word for word. His footnote was also
copied, including the intratext reference "supra note 23," enclosed in
parentheses and inserted after the corresponding text. No attribution to
Ellis was made.
B.3 Ellis’s summary and analysis of Article 27 of the Fourth Geneva
Convention was lifted word for word. No attribution to Ellis was made.
B.4 Ellis’s conclusion regarding Protocol I of the Geneva Convention was
appropriated, without any attribution to Ellis. Ellis’s footnote was again
copied. No attribution to Ellis was made.
C.1 McCorquodale’s analysis of individual claims within the international
legal system was copied word for word and inserted after the introductory
clause "In the international sphere" in Vinuya. The footnote
McCorquodale appended to his analysis of individual claims (i.e. the
sentences copied in C.1.) is not present. No attribution to McCorquodale
was made.
C.2 This item refers to the footnote attached to the copied sentence in
C.1. It is composed of two instances of copying stitched together: two
sentences of McCorquodale, taken from the paragraph directly preceding
his analysis of individual claims in the international legal system, and the
footnote corresponding to the PCIJ Decision quoted in the second of the
said two sentences. No attribution to McCorquodale was made.
C.3 The conclusion Okowa reached was copied in footnote 63 of Vinuya,
but Okowa’s reference to the cases she cited in her analysis was omitted
and the context of her conclusion (on the current standing of general
international law with regard an enforceable legal duty of diplomatic
protection) was removed. No attribution to Okowa was made.
C.4 McCorquodale’s discussion of the case Abassi v. Secretary of State
was copied without any citation of his essay or the international law book
in which it was published. No attribution to McCorquodale was made.
C.5 The order of sentences were reversed, but the conclusion in Okowa’s
essay was copied, and as well as her discussion of the case Kaunda v.
President of the Republic of South Africa. No attribution to Okowa was
made.
D.1 Albornoz’s summary and analysis was copied word for word in the
body of the Decision on page 24. No indication was given that this was
not the ponente’s original analysis, and no attribution to Albornoz was
made.
D.2 The elucidation of Albornoz regarding what she calls the traditional
view on the discretion of states in the exercise of diplomatic protection
was copied into footnote 57 of the Vinuya Decision. Albornoz’s citation of
Borchard was used as a reference in the same footnote, but Albornoz
was bypassed completely.
D.3 Albornoz’s summation of the ILC’s First Reading Draft Articles on
diplomatic protection was copied with some modifications: the second
half of the first sentence from Albornoz was removed and instead
replaced with "fully support this traditional view" in an apparent effort to
link this summary to the previous instance of copying (table entry D.2.).
Minor edits were made to Albornoz’s summary to streamline the flow of
the second copied sentence. No attribution to Albornoz was made.
D.4 Albornoz’s summation of Dugard’s proposal was lifted word for word
and used in footnote 62 of Vinuya. The footnote Albornoz attached to this
summation, a quotation of Albornoz’s cited source, was inserted directly
after the copied summation. No attribution to Albornoz was made.
D.5 The conclusion reached by Albornoz regarding the rejection of
Dugard’s proposal was copied exactly, even with regard to the portions of
the Official Records of the General Assembly that Albornoz quoted. No
attribution to Albornoz was made.
D.6 The major part of a sentence from Albornoz was copied and attached
to the transition phrase "In addition" to continue the pastiche of copied
sentences in footnote 62 of Vinuya. The footnote of Albornoz regarding
Dugard was inserted immediately after and enclosed in parentheses.
Note that the inline text citation, "supra note 13, par. 80" in Albornoz’s
footnote 130 was copied as well. No attribution to Albornoz was made.
D.7 Continuing from the instance of copying in D.6., the second half of a
sentence in Albornoz was used as what is apparently an incomplete
sentence (beginning with: ", but their enforceability...") in footnote 62
of Vinuya. The next sentence was also copied, and its corresponding
footnote enclosed in parentheses and inserted immediately after it. While
the Decision cites one of the same sources Albornoz cited (ILC First
Reading Draft Articles on Diplomatic Protection), no attribution is made to
Albornoz for the excerpt, or to Dugard, whom Albornoz cited for the
quoted portion.
E.1 An excerpt from the third paragraph of Prochaska is reproduced
verbatim in footnote 62 of page 26 of the Decision. There were no
quotation marks or attribution to Prochaska to indicate that such was not
the ponente’s analysis, but Prochaska’s.
F.1 A sentence from paragraph 11 of Niksch was reproduced verbatim
without quotation marks in page 17 of the body of the Decision. No
attribution to Niksch was made.
F.2 An excerpt from paragraph 12 of Niksch was reproduced verbatim
without quotation marks in page 17 of the body of the Decision. No
attribution to Niksch was made.
F.3 An excerpt from paragraph 19 of Niksch was reproduced verbatim
without quotation marks in page 17 of the body of the Decision. No
attribution to Niksch was made.
G.1 An excerpt from page 344 of Ladino was reproduced without
quotation marks in pages 9 to 10 of the body of the Decision. The phrase
"women who had filed" was changed to "comfort women."
G.2 An excerpt from page 345 of Ladino was reproduced without
quotation marks in page 12 of the body of the Decision. The two
sentences in the footnote from Ladino were combined, but the words
were reproduced verbatim.
G.3 An excerpt from page 345 of Ladino is reproduced verbatim in page
12 of the body of the Decision. Part of Ladino’s discussion was
reproduced verbatim in footnote 32 of the Vinuya Decision, with no
attribution to Ladino.
G.4 The first part of the paragraph in page 345 of Ladino was reproduced
verbatim. However, the latter part of Ladino’s explanation, (stating that
while the judgment against Japan was not legally binding, it still "cast
Japan in the shadow of moral reproach") was omitted. There was no
attribution to Ladino.
G.5 An excerpt from page 346 of Ladino, along with two footnotes, was
reproduced verbatim in page 12 of the Decision. No attribution to Ladino
was made.
G.6 Ladino’s discussion in page 350 and the corresponding footnotes
were reproduced verbatim in page 13 of the Decision. No attribution to
Ladino was made.
B. The Process of the Commission of Plagiarism in the Vinuya Decision
A careful reading of the Vinuya Decision reveals that it is unlike other
decisions issued by this Court, except perhaps for the case of Ang
Ladlad LGBT Party v. Commission on Elections, which Justice del
Castillo likewise penned. The footnotes in Vinuya read like those found in
theses of international law scholars, where one discursive footnote can
be so extensive as to occupy three-fourths of a page (see footnotes 62,
63, and 65). An honest researcher for a Philippine judge, after
painstakingly developing a perspective on an international legal issue by
reading the works of scholars who have documented the debate, would
deliberately refer to the works of such scholars, and not transform their
works into his own.
Justice del Castillo’s researcher not only contends that accidental
deletion is the sole reason for the missing footnotes, but also that their
office subsequently went over the Decision "sentence by sentence" and
concluded that no plagiarism was committed at all. However, the
rearrangement of the sentences lifted from the original work, the
mimicking of the original work’s use of footnotes, the subsequent back
and forth copying and pasting of such footnotes – these acts belie mere
negligence. The following analysis shows objective plagiarism viewed
through three lenses: extent, deliberateness, and effect.
The massiveness and frequency with which instances of unattributed
copying occur in Vinuya highlight the extent of the plagiarism. Clever
transpositions of excerpts to make them flow according to the
researcher’s transition phrases are clearly devices of a practiced
plagiarist, which betray the deliberateness of every single act. The
plagiarism in Vinuya will also be scrutinized on the basis of its effect,
especially in light of its commission in a judicial decision. The rationale for
such a thematic presentation will then be discussed in a succeeding
section, which deals with evaluating plagiarism.
1. The extent of unattributed copying belies inadvertence.
In the tables outlined above, as well as in the analysis in my Dissent
dated 12 October 2010, it can be seen that the researcher of Justice del
Castillo failed to make the necessary attribution twenty-three (23) times in
the body of the Vinuya Decision; the works whose texts were used
without attribution include several copyrighted journal articles, essays
from a book on international law, and one congressional report of the
United States. There were thirty-six (36) missing citations in the
footnotes, including twelve (12) citations missing from footnote 65 alone.
This adds up to a total of fifty-nine (59) missing citations. The sheer
number of missing citations is related to the length and volume of the
footnotes and discussions, some of which Justice del Castillo himself
admitted to be unnecessary.
The quantity of text copied without attribution is most concentrated in
pages 12 to 13, which deal with actions taken in the pursuit of justice for
the comfort women, and in pages 24 to 32, which appear under the
section heading The Philippines is not under any international
obligation to espouse petitioners’ claims. In the latter section, the
discussion and analysis appearing on pages 24 (insofar as the section
after the start of the international law discussion is concerned), 28 and 31
in particular would be significantly impaired were the unattributed portions
of texts to be removed: there would be no words left in the instance of
page 24; the entirety of the discursive footnote on page 28 would be
reduced to one sentence and its attendant citations; three sentence
fragments, and no footnotes, would remain on page 31.
In pages 24 to 32, out of a total of thirteen (13) discursive footnotes,
eleven (11) of these are comprised wholly of material copied without
attribution, and yet another one – footnote 69 – contains text that was
copied without attribution as well. The writer of the Vinuya Decision
displayed meticulous attention to detail in reproducing the citations to
international judicial decisions, publications, and other such references in
these footnotes – citations that originally appeared in the copied works –
but completely bypassed the copied works themselves, thereby
appropriating the analysis, processing, and synthesizing of information,
as well as the words, of the writers whose works were copied.
On its face, the sheer volume of portions copied, added to the frequency
with which citations to the plagiarized works were omitted while care was
taken to retain citations to the sources cited by the plagiarized works,
reveal that the plagiarism committed cannot logically be anything other
than deliberate.
2. Systematic commission of plagiarism demonstrates deliberateness.
In pages twelve (12) to thirteen (13) of Vinuya, sentences from the body
of Ladino’s article were interspersed with Ladino’s footnotes, without a
single attribution to Ladino (please refer to Table G). Sentences from
Ladino’s article were copied into footnote 32 of Vinuya, while the
immediately succeeding sentence was again copied to form part of the
body of Vinuya. The cutting of sentences from Ladino’s work and the
patching together of these pieces to form a mishmash of sentences
negate the defense of inadvertence, and give the reader the impression
that the freshly crafted argument was an original creation.
The work of Criddle and Fox-Decent was subjected to a similar process.
This process is dissected in the following list of instances ordered
according to how they appear in pages 31 to 32 of the body of the
Decision:
a. Detailed analysis of ‘patchwork plagiarism’ in the body of Vinuya,
pp. 31-32:
1. Page 31, par. 2: Early strains of the jus cogens doctrine have existed
since the 1700s,[71] 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.[72]
[72] Verdross argued that certain discrete rules of international custom
had come to be recognized as having a compulsory character
notwithstanding contrary state agreements. At first, Verdross's vision of
international jus cogens encountered skepticism within the legal
academy. These voices of resistance soon found themselves in the
minority, however, as the jus cogens concept gained enhanced
recognition and credibility following the Second World War. (See Lauri
Hannikainen, Peremptory Norms (Jus cogens) in International Law:
Historical Development, Criteria, Present Status 150 (1988) (surveying
legal scholarship during the period 1945-69 and reporting that "about
eighty per cent [of scholars] held the opinion that there are peremptory
norms existing in international law").
This sentence, together with footnote 72 in Vinuya, is part of one
continuous discussion by Criddle and Fox Decent, and copied verbatim.
The two authors rightfully attributed the historical data to Lauri
Hannikainen, but the conclusion on established jus cogens principles is
wholly their own.
2. Page 31, par. 2: 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).[73] Though there was a
consensus that certain international norms had attained the status of jus
cogens…[74]
The first sentence and its subsequent clause are lifted verbatim from the
article. Footnotes 73 and 74 are Criddle and Fox-Decent’s analysis of
how international "minimum requirements" form evidence of jus cogens.
The paragraph was broken down, then rearranged in Vinuya.
3. Page 31, par. 2: Though there was a consensus that certain
international norms had attained the status of jus cogens,[74] the ILC
was unable to reach a consensus on the proper criteria for identifying
peremptory norms.
Aside from copying the first clause in the sentence, which forms part of
the premise, the conclusion of Criddle and Fox-Decent was likewise
copied.
4. Page 32, par. 1: 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."[75]
After copying the sentence and footnote in No. 4 above, three sentences
were omitted from the article, then this sentence in No. 5 was also
copied. In the body of the work, the two sentences immediately following
this statement pertaining to the conclusion of the International Law
Commission were again omitted.
5. Page 32, par. 1: 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."[76]
This sentence was conjoined with the sentence above; footnotes 75 and
76 were also copied. The net effect is that this paragraph was spliced
together, sentence by sentence, from Criddle and Fox-Decent’s work.
A similar method of splicing was used extensively in the footnotes of the
Decision as well. It is most evident in footnote 65, the longest discursive
footnote in Vinuya. This portion copied heavily from the article of Dr. Mark
Ellis entitled "Breaking the Silence: Rape as an International Crime." To
illustrate, the first paragraph of footnote 65 is broken down and
scrutinized by sentence, following the original sequence in the Decision.
b. Detailed analysis of ‘patchwork plagiarism’ in paragraph 1,
footnote 65 of Vinuya:
1. Sentences 1 and 2: 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.
These are the opening sentences from the second paragraph on page
227 of the journal article. Ellis cites the treaty between the United States
and Prussia as his own example, in a footnote. In Vinuya, this particular
citation is copied, enclosed in parentheses, and became the sixth and
seventh sentences of footnote 65.
2. Sentence 3: But modern-day sensitivity to the crime of rape did not
emerge until after World War II.
This is the sixth sentence in the same paragraph in Ellis’ article as
discussed above. It is transposed verbatim, and became the second
sentence in Vinuya.
3. Sentences 4 and 5: 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.
The clauses "After World War II, when the Allies established the
Nuremberg Charter…" was deleted. This particular sentence is Ellis’ own
conclusion regarding the "Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis," but there
was no attribution to Ellis, only a citation of the agreement, along with
Ellis’s other footnotes, at the end of the paragraph.
4. Sentences 6 and 7: (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.
This is the citation originally corresponding to the first and second
sentences on page 227 of Ellis’s article. This portion was copied in
Vinuya, this time placed at the end of the paragraph and enclosed in
parentheses.
5. Sentence 8: The 1863 Lieber Instructions classified rape as a crime of
"troop discipline."
Originally the second sentence in Ellis’s paragraph, this was transposed
to the eighth. Its corresponding footnote in Ellis was lifted verbatim,
enclosed in parentheses, then inserted into the paragraph in Vinuya, as
the ninth sentence: "(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)."
6. Sentence 10: It specified rape as a capital crime punishable by the
death penalty.
Originally the fourth sentence in Ellis’ article, this was transposed, and its
corresponding footnote was copied: "(Id. at 236)."
7. Sentence 11: The 1907 Hague Convention protected women by
requiring the protection of their "honour."
The sentence was copied, and its corresponding footnote was lifted
verbatim, enclosed in parentheses, and placed at the end of the
paragraph. Ellis’s attribution to the Yale Law website where the pertinent
law may be found was omitted, leaving only the following: ("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".
8. Sentence 13: 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.
This is originally Ellis’s citation, used to support his observation that there
was no express mention of "rape" in the Nuremberg Charter. It was
enclosed in parentheses and relegated to the end of the paragraph in
Vinuya.
9. Sentence 14: 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.
This was lifted from page 227 of Ellis’s work. Pages 227 to 228 of the
said work, pertaining to the discussion on rape were substantially copied.
Insertions were made for Ellis’s own footnotes.
The conscious thought required for the act of cutting and pasting the
original author’s footnotes onto the precise spot where the copied
sentences ended contradicts the account of inadvertence. There is
consistent correspondence between the sentences copied to the footnote
copied. In the example above, the act of encapsulating Ellis’ footnotes in
parentheses show further that in Vinuya there was a conscious
appropriation of Ellis’s sources in a usage that is substantially similar to
what appears in his article. This allegedly inadvertent copying of Ellis’s
footnotes occurred no less than twelve (12) times in footnote 65 alone.
3. Research steps purportedly followed in the drafting
of Vinuya cast doubt on inadvertence.
The following is a recreation of the step-by-step research procedure
followed by many offices in the research and crafting of judicial decisions.
It is based on the account given by the researcher of the Vinuya Decision
of her own experiences while working on the case. This detailed
breakdown is made in order to show the exact number of actions which
must be made in order to input a citation, if indeed it was intentionally
inputted. A recreation of the steps necessary to delete a citation is also
made to show that the aggregate number of actions needed to erase
each and every citation missing in Vinuya is so high that the underlying
cause could not have been mere inadvertence.
Step 1:
 a. First, using an internet-based search engine, which could be a
free search service like Google’s, or a paid service like
Westlaw’s, the researcher would have typed in key phrases like
"erga omnes," "sexual slavery," or other such terms relevant to
the subject matter.
b. For some researchers, this is just a preliminary step, as they
would then pick and choose which articles to read and which to
discard. The researcher in Vinuya, however, claimed that she
purposely read all the materials available through this search. 8
Step 2:
a. The search engine would have generated a list of documents
containing the search terms and topics relevant to the subject
matter. The search engine would also have linked the items on
this list to the corresponding online locations where these
documents may be accessed.
b. In Vinuya, the researcher used the Westlaw legal research
service (which is made available to offices of all the Justices), and
perused the generated list. 9 A possible item on this list would be
the article entitled "Breaking the Silence: Rape as an International
Crime," by one of the complaining authors, Dr. Mark Ellis.
Step 3:
The researcher would read articles from the generated list and identify
the portions she planned to incorporate into the draft. For this example,
she would have scrolled through the work of Mark Ellis and found the
selection she wanted. The level of scrutiny invested into each of the
chosen articles would vary; some researchers make cursory readings
and incorporate as many portions from different works and authors as
they can.
Step 4:
a. The researcher can either save the articles in their entirety, or
save the selections in one document. The researcher
in Vinuya claimed that she did the latter and used the Microsoft
Word program for this purpose.
b. If the researcher chose to save only pertinent selections, then
ideally the attributions would have to be made at his point.
Now, this step is critical. I know of no software in the world, especially not
Microsoft Word, that will generate the citation to the work of Ellis on its
own, without the appropriate action of the user. An honest researcher
would immediately copy and paste the citation references of Ellis into the
copied portions, or type a reference or label in, even if it were only a short
form placeholder of the proper citation. If she did neither, she may be
sloppy, incompetent or downright dishonest.
During the deliberations of the Ethics Committee, the researcher
explained this crucial step: "So I would cut and paste relevant portions, at
least portions which I find relevant into what turns out to be a large
manuscript which I can then whittle and edit and edit further." 10 Adhering
to this account, there would be an additional step in the process:
Step 5
If an existing draft or "manuscript" has already been created, the next
step would be to incorporate the selections from the articles into the draft.
This is a second opportunity to ensure that the proper attributions are
made. If the researcher is diligent, she would already have tried to follow
the correct form as prescribed by the Manual of Judicial Writing. 11
If a "manuscript" or outline has already been formulated, then
incorporating the selections would require her to be conscious that these
ideas and arguments are not her own. The process ideally alerts any
researcher that extraneous sources are being added. It allows her to
make the following considerations: Does this portion sufficiently discuss
the historical context of a particular conclusion? Do I need this literature
as support for my arguments? Am I including it to support my arguments,
or merely to mimic the author’s? Corollarily, the researcher would initially
assess if such argument made by the author is adequately supported as
well. She would check the author’s footnotes. In Vinuya, the copying of
the footnotes was so extensive, such that it practically used the uncited
works as blueprint for the Decision’s footnotes.
4. The frequency of instances of missing citations and actions required
for deletion betray deliberateness.
To purposefully input citations would require many key strokes and
movements of the computer’s "mouse." If the attributions had indeed
been made already, then the deletions of such attributions would not
simply happen without a specific sequence of key strokes and mouse
movements. The researcher testified that the necessary attributions were
made in the earlier drafts, but that in the process of cutting and pasting
the various paragraphs, they were accidentally dropped. She makes it
sound as if something like a long reference citation can just easily fall by
the wayside. Not so.
The reference required under the Manual of Judicial Writing for the work
of Ellis reads like this: "Mark Ellis, Breaking the Silence: Rape as an
International Crime, 38 Case W. Res. J. Int'l L. 225 (2006-2007)."
The researcher in Vinuya explained that footnotes were deleted along
with headings of certain portions, and with the deletion of the note
reference mark in the body of the text, the citations in the document’s
footers disappeared also. For this scenario to happen with the same
frequency as the number of missing citations, the following steps must
have been followed:
1. First movement: Using hand and eye coordination,
consciously move cursor to the location of target footnote and/or
heading, using either the mouse or arrow keys.
2. Second movement: Select the "note reference mark" by
highlighting the target footnote number. Note that unlike in normal
characters or texts wherein a single press of the "delete" or
"backspace" button would suffice, a footnote number must be
highlighted before it can be deleted. This means that either the
particular footnote and/or heading must have been "double-
clicked" or it must have been specifically highlighted by a precise
horizontal motion of the cursor while pressing on a mouse button
– both of which require two movements (either two "clicks", or a
"click" and a "swipe").
3. Third movement: Press "delete" or "backspace" key.
Note that in the case wherein the note reference mark was not
highlighted by a mouse movement, the "delete" or "backspace" key must
have been pressed twice, as pressing it only once will merely highlight
the note reference mark without deleting the same.
Hence, even accommodating the explanation given by the researcher, at
least four movements must have been accomplished to delete one
footnote or reference. Multiply this with the number of references that
were "dropped" or "missing," and you have a situation wherein the
researcher accomplished no less than two hundred thirty-six (236)
deliberate steps to be able to drop the fifty-nine (59) citations that are
missing in Vinuya. If by some chance the cursor happened to be at the
precise location of the citations, and the citations were subsequently
deleted by an accidental click of the mouse, this would still have
necessitated a total of one hundred seventy seven (177) clicks. It is
understandable if a researcher accidentally deleted one, two or even five
footnotes. That a total of 59 footnotes were erased by mere accident is
inconceivable.
To make a conservative estimate, we can deduct the number of times
that a footnote number in the body of the Decision could simply have
been deleted inadvertently. Our analysis indicates that this could have
happened a third of the time, or an estimate of twenty times, when short
footnotes containing "supra" or "id." could have been easily forgotten or
omitted. This would still have yielded sixty deliberate steps or
movements, and would alert the researcher either that: 1) too much of
the body comprises ideas which are not his own, or 2) too many of the
sources in his "main manuscript" were getting lost. Subsequently, if more
than half of the attributions in the International Law discussion went
missing, the simple recourse would have been either to review his or her
first draft, or simply delete his lengthy discursive footnotes precisely
because he cannot remember which articles he might have lifted them
from.
On Microsoft Word features that alert the user to discrepancies in
footnote deletions
The researcher took pains to deliberately cut and paste the original
sources of the author, thereby making it appear that she was the one
who collated and processed this material. What she should have done
was simply to cite the author from whom she took the analysis and
summarization of the said sources in the first place. The latter would have
been the simple, straightforward, not to mention honest path. Instead, the
effect is that the Vinuya Decision also appropriated the author’s analysis.
Actually, it would have been easier to cite the author’s copied work
considering the availability of short citation forms commonly used as
reference tools in legal articles such as "supra" or "id."
Microsoft Word may not have an automatic alarm each time a footnote or
citation is deleted, but it does contain built-in features to help raise "red
flags" to signal that a particular passage was copied, or is attached to a
particular citation – if indeed such citation exists. For example, the
researcher in Vinuya, in describing her own process of drafting the
Decision, stated that portions containing footnotes from the first Vinuya
draft were lifted and transformed into the contents of a separate footnote.
In short, during revisions of the draft, substantial footnoted portions which
used to be in the body were relegated to footnotes. This does not result,
however, in the automatic erasure of the original footnotes within the new
footnote. A simple recreation of this process reveals that this "footnote
within a footnote" retains a number symbol in superscript, albeit one
altered due to the redundancy in the functionality of "footnotes within
footnotes." Any reasonably prudent researcher would thus be alerted to
the fact that something was amiss with the citations in that particular
selection because the footnote would have abnormal numeric
superscripts. This glaring abnormality in itself is a warning.
Another notable feature is that when a cursor, as seen on the screen in
an open document, is placed over a footnote reference mark, Microsoft
Word automatically supplies that footnote’s citation in a popup text box.
The popup box hovers over the numerical superscript, unmistakably
indicating the source.12 In addition, no single action can cause a footnote
to be deleted; once the cursor is beside it, either the "delete" or
"backspace" key must be pressed twice, or it must be deliberately
highlighted and then erased with a stroke of either the "delete" or the
"backspace" key. This functionality of footnote deletion in Microsoft Word
thus decreases the likelihood of footnotes being deleted without the
knowledge or intention of the researcher.
As to the claim of the researcher that the footnotes in the headings were
accidentally deleted, there was a failure on the part of the Ethics
Committee to thoroughly investigate the matter when they relied on a
presentation of what, according to the researcher, happened during her
research for and drafting of the Vinuya Decision. Instead of asking her to
re-create the various situations of "inadvertent dropping," the Ethics
Committee satisfied itself with a "before" and "after" Microsoft PowerPoint
presentation which could not, by any stretch of the imagination, have
recreated the whole process of researching and drafting that happened
in Vinuya unless every step were to be frozen through screenshots using
the "Print Screen" command in tandem with a common image
management program. To simply present the "before" and "after"
scenario through PowerPoint has no bearing on the reality of what
happened. Had the Ethics Committee required that the presentation
made before them be through recreation of the drafting process using
Microsoft Word alone, without "priming the audience" through a "before"
and "after" PowerPoint presentation, they would have seen the footnotes
themselves behaving strangely, alerting the researcher that something
was seriously wrong. The Committee would then have found incredible
the claim that the accidental deletion of a footnote mark attached to a
heading – and the subsequent transposition of text under that heading to
another footnote – could have occurred without the researcher being
reminded that the text itself came from another source. Proof of
deliberate action is found in the Vinuya Decision itself – the care with
which the researcher included citations of the sources to which the
authors of the copied works referred, while conveniently neglecting
attribution to the copied works themselves.
It is therefore impossible to conclude that such gross plagiarism,
consisting of failure to attribute to nine (9) copyrighted works, could have
been the result of anything other than failure to observe the requirements
of the standard of conduct demanded of a legal researcher. There is also
no basis to conclude that there was no failure on the part of Justice del
Castillo to meet the standard of supervision over his law clerk required of
incumbent judges.
III. On Evaluating Plagiarism
A. Posner’s Standards for Evaluating the Characterization of
Incidents of Plagiarism
To be generous to my colleagues in this part of my analysis, I have
referred to one of the scholars who hold the most liberal views on
plagiarism, Judge Richard A. Posner. The three guideposts by which I
structured my technical analysis of the instances of plagiarism in
the Vinuya Decision come from his breakdown of certain key issues in his
work, The Little Book of Plagiarism. In his "cook’s tour" of the key issues
surrounding plagiarism, wherein he is more liberal than most academics
in speaking of the sanctions the act may merit – he is against the
criminalization of plagiarism, for instance, and believes it an act more
suited to informal sanctions 13 – Judge Posner characterizes plagiarism
thus:
Plagiarism is a species of intellectual fraud. It consists of unauthorized
copying that the copier claims (whether explicitly or implicitly, and
whether deliberately or carelessly) is original with him and the claim
causes the copier's audience to behave otherwise than it would if it knew
the truth. This change in behavior, as when it takes the form of readers'
buying the copier's book under the misapprehension that it is original, can
harm both the person who is copied and the competitors of the copier.
But there can be plagiarism without publication, as in the case of student
plagiarism. The fraud is directed in the first instance at the teacher
(assuming that the student bought rather than stole the paper that he
copied). But its principal victims are the plagiarist's student competitors,
who are analogous to authors who compete with a plagiarist. 14
Posner then goes on to neatly sum up, in the form of three "keys," major
considerations that need to be taken into account when evaluating an
occurrence of plagiarism. His book’s last paragraph reads:
In the course of my cook’s tour of the principal issues that have to be
addressed in order to form a thoughtful response to plagiarism in modern
America, I have challenged its definition as "literary theft" and in its place
emphasized reliance, detectability, and the extent of the market for
expressive works as keys to defining plagiarism and calibrating the
different types of plagiarism by their gravity. I have emphasized the
variety of plagiarisms, argued for the adequacy of the existing, informal
sanctions, pointed out that the "fair use" doctrine of copyright law should
not protect a plagiarist, noted the analogy between plagiarism and
trademark infringement (a clue to the entwinement of the modern concept
of plagiarism with market values)–and warned would-be plagiarists that
the continuing advance of digitization may soon trip them up. (Emphasis
supplied.)
It is in this spirit that the three questions – of extent, an analogue of
reliance, as extensive plagiarism correlates to the reliance of the text on
the copied work; deliberateness; and effect, an analogue of what Posner
called "extent of the market for expressive works", used here in the
context of the effect of plagiarism in the Vinuya Decision – were put to
the text being scrutinized. The first two questions have been discussed in
preceding sections. To examine the effect, one must first make the
distinction between the effect of copying a copyrighted work without
attribution, and between the effect of copying without attribution a work in
the public domain. Using these three guideposts, we can them come to a
conclusion whether the plagiarism is relatively harmless and light or
something severe and harmful. In the case of the Vinuya Decision, we
have come to conclude that the plagiarism is severe; and because
judicial decisions are valuable to the Philippine legal system, that the
plagiarism harms this institution as well.
1. The distinction between the effect of appropriating copyrighted
works and works in the public domain
The infringement of copyright necessitates a framework for characterizing
the expression of ideas as property. It thus turns on a question of
whether there exists resultant harm in a form which is economically
quantifiable. Plagiarism, on the other hand, covers a much wider range of
acts. In defining copyright infringement, Laurie Stearns points out how it
is an offense independent from plagiarism, so that an action for violation
of copyright – which may take on either a criminal and a civil aspect, or
even both – does not sufficiently remedy the broader injury inherent in
plagiarism.
Plagiarism is not necessarily copyright infringement, nor is copyright
infringement necessarily plagiarism…In some ways the concept of
plagiarism is broader than infringement, in that it can include the copying
of ideas, or of expression not protected by copyright, that would not
constitute infringement, and it can include the copying of small amounts
of material that copyright law would disregard. 15
Plagiarism, with its lack of attribution, severs the connection between the
original author's name and the work. A plagiarist, by falsely claiming
authorship of someone else's material, directly assaults the author's
interest in receiving credit. In contrast, attribution is largely irrelevant to a
claim of copyright infringement…infringement can occur even when a
work is properly attributed if the copying is not authorized–for example, a
pirated edition of a book produced by someone who does not own the
publication rights.16
The recognition of plagiarism as an offense that can stand independently
of copyright infringement allows a recognition that acts of plagiarism are
subject to reproof irrespective of whether the work is copyrighted or not.
In any case, the scenario presented before the Court is an administrative
matter and deals with plagiarism, not infringement of copyright.
2. On judicial plagiarism and the sanctions therefor
The majority Resolution quotes from the Judicial Opinion Writing
Handbook written by Joyce George – which I cited in my earlier Dissent –
thusly:
The implicit right of judges to use legal materials regarded as belonging
to the public domain is not unique to the Philippines. As Joyce C.
George, whom Justice Maria Lourdes Sereno cites in her dissenting
opinion, observed in her Judicial Opinion Writing Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is
exempted from a charge of plagiarism even if ideas, words or
phrases from a law review article, novel thoughts published in a
legal periodical or language from a party’s brief are used without
giving attribution. Thus judges are free to use whatever sources
they deem appropriate to resolve the matter before them, without
fear or reprisal. This exemption applies to judicial writings intended
to decide cases for two reasons: the judge is not writing a literary
work and, more importantly, the purpose of the writing is to resolve
a dispute. As a result, judges adjudicating cases are not subject to a
claim of legal plagiarism.
The use of this excerpt to justify the wholesale lifting of others’ words
without attribution as an "implicit right" is a serious misinterpretation of
the discussion from which the excerpt was taken. George wrote the
above-quoted passage in the context of a nuanced analysis of
possible sanctions for judicial plagiarism, not in the context of
the existence of plagiarism in judicial opinions. (I had candidly disclosed
the existence of this liberal view even in my 12 October 2010 Dissent.)
The sections preceding the text from which this passage was taken are,
in fact, discussions of the following: ethical issues involving plagiarism in
judicial writing, with regard to both the act of copying the work of another
and the implications of plagiarism on the act of adjudication; types of
judicial plagiarism, the means by which they may be committed, and the
venues in and through which they can occur; and recent cases of judicial
plagiarism.
In no wise does George imply that the judicial function confers upon
judges the implicit right to use the writing of others without
attribution. Neither does George conflate the possible lack of
sanctions for plagiarism with the issue of whether a determination
of judicial plagiarism can be made. Rather, George is careful to make
the distinction between the issue of whether judicial plagiarism was
committed and the issue of whether a sanction can be imposed for an act
of judicial plagiarism. In George’s terminology, the latter issue may also
be framed as a question of whether judicial plagiarism is "subject to a
claim of legal [that is, actionable] plagiarism", and it has no bearing
whatsoever on the former issue. Thus, George writes:
1avvphi1
The intentional representation of another person’s words, thoughts, or
ideas as one’s own without giving attribution is plagiarism. "Judicial
plagiarism" is the copying of words or ideas first written down by another
judge, advocate, legal writer or commentator without giving credit to the
originator of that work. It can include such things as a judge’s copying of
another’s judges opinion, the adoption verbatim of an advocate’s findings
of fact and conclusions of law, the wholesale adoption of an advocate’s
brief, or the copying of a portion of a law review article and representing it
as the judge’s own thoughts. The lack of attribution makes this activity
"judicial plagiarism," but without legal sanctions. 17
Indeed, my previous Dissent stated that inasmuch as sanctions for
judicial plagiarism are concerned, "there is no strictly prevailing
consensus regarding the need or obligation to impose sanctions on
judges who have committed judicial plagiarism." Yet the absence of a
definite answer to the question of liability does not grant judges carte
blanche to use the work of others without attribution, willy-nilly, in their
judicial opinions. As George puts it, "the judge is ethically bound to give
proper credit to law review articles, novel thoughts published in legal
periodicals, newly handed down decisions, or even a persuasive case
from another jurisdiction."18 Plainly, George is of the opinion that though a
judge may not be held liable for an act of judicial plagiarism, he should
still attribute.
A note about "intentional representation." A careful reading of George’s
writing on judicial plagiarism will make it clear that she does not consider
"inadvertent" or "unintentional" plagiarism not plagiarism; indeed, she
makes the distinction between "intentional" and "unintentional" plagiarism
several times, treating both as types of plagiarism:
Using another’s language verbatim without using quotation marks or a
block quote is intentional, as opposed to unintentional, plagiarism. 19
...
The lack of proper attribution may be unintentional and due to sloppy
note taking, either by the law clerk or the judge. 20
...
Judicial plagiarism may also arise from the use of law clerks performing
research and writing of draft decisions and who may not accurately
reflect the source. The plagiarized material may be included within the
draft resulting from the law clerk’s poor research skills. 21
...
The commission of unintended judicial plagiarism is unethical, but it is not
sanctionable.22
The intentional representation of which George speaks, then, may be
considered as the intent to represent a work as one’s own – already
embodied in claiming a work by, for instance, affixing one’s name or
byline to it – in which case the inadvertence, or lack thereof, by which an
act of plagiarism was committed is irrelevant to a finding of plagiarism.
While George is perhaps not as exacting in her valuation of the penalties
for plagiarism as others may be, she still emphasizes that her view on the
exemption of judicial plagiarism from sanctions – among which she
evidently counts social stigma, censure, and ostracism – does not negate
the judge’s ethical obligation to attribute. She writes:
In conclusion, this author believes that a judicial writer cannot commit
legal plagiarism because the purpose of his writing is not to create a
literary work but to dispose of a dispute between parties. Even so, a
judge is ethically bound to give proper credit to law review articles, novel
thoughts published in legal periodicals, newly handed down decisions, or
even a persuasive case from another jurisdiction. While the judge may
unwittingly use the language of a source without attribution, it is not
proper even though he may be relieved of the stigma of plagiarism. 23
As I wrote in my previous Dissent:
In his Concurring Opinion in A.M. No. 10-7-17-SC, Justice Abad alleged
that I myself have "lifted from works of others without proper attribution,"
having written "them as an academician bound by the high standards"
that I espouse.
Regarding this allegation, let us recall my Dissent promulgated on 12
October 2010. I stated:
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 form 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.26
Allow me to analyze the allegations of Justice Robert C. Abad point by
point using the same standard I propounded in my 12 October 2010
Dissent.
1. The alleged non-attribution to the Asian Development Bank’s Country
Governance Assessment Report for the Philippines (2005).

In so fulfilling her obligations, it may become imperative for the judge to TABLE H: Comparison of Justice Abad’s allegations, the 2001 and 2007
use "the legal reasoning and language [of others e.g. a supervising court versions of the article co-authored with Drs. De Dios and Capuno, and
or a law review article] for resolution of the dispute." Although these the ADB Country Governance Assessment of 2005.
obligations of the judicial writer must be acknowledged, care should be
taken to consider that said obligations do not negate the need for
Excerpt from the Excerpt from the
attribution so as to avoid the commission of judicial plagiarism. Nor do
Article Co- ADB Country
said obligations diminish the fact that judicial plagiarism "detracts directly
Authored with Governance
from the legitimacy of the judge's ruling and indirectly from the judiciary's
Drs. De Dios and Assessment:
legitimacy" or that it falls far short of the high ethical standards to which
Capuno: Philippines
judges must adhere.24 Reproduction of
J. Abad’s
Justice and the Asian
It must not be forgotten, however, that George’s view tends toward the Allegations
Cost of Doing Development
very liberal. There are other writings, and actual instances of the
Business: The Bank Country
imposition of sanctions, that reveal a more exacting view of the penalties
Philippines, report Governance
merited by judicial plagiarism. 25
submitted to the Assessment:
World Bank, 2001. Philippines, 2005.
B. On the Countercharges Made by Justice Abad
1. Cost refers to both Costs, on the other Cost refers to both Costs, on the other
monetary and hand, refer to both monetary and hand, refer to both
nonmonetary the monetary and nonmonetary the monetary and
opportunities that a nonmonetary opportunities that nonmonetary
litigant has to opportunities that a litigant has to opportunities that
forego in pursuing business people forego in pursuing business people
a case. Direct cost forego as a result a case. Direct cost forego as a result
refers not only to of making use of refers not only to of making use of
fees paid to the the judicial system fees paid to the the judicial system
courts but also to itself. Direct costs courts but also to itself. Direct costs
out-of-pocket costs refer not only to the out-of-pocket refer not only to the
arising from fees paid the courts costs arising from fees paid the courts
litigation itself (e.g., but also to out-of- litigation itself but also to out-of-
lawyers’ fees and pocket costs (e.g., lawyer’s fees pocket costs
compensation, arising from and arising from
transcript fees for litigation itself (e.g., compensation, litigation itself (e.g.,
stenographic notes, lawyers’ fees and transcript fees for lawyers’ fees and
etc.). Indirect costs documentation). stenographic documentation).
refer to lost Indirect costs also notes, etc.). Indirect costs also
opportunities inevitably arise, of Indirect costs refer inevitably arise, of
arising from delays which the most to lost which the most
in the resolution of important are those opportunities important are those
cases and the time arising from delays arising from delays arising from delays
spent by a litigant in the resolution of in the resolution of in the resolution of
attending and cases, and the cases and the time cases, and the
following up a failure to come up spent by a litigant failure to come up
case. with timely attending and with timely
decisions. following up a decisions.
[Asian case.
Excerpt from the
Development Bank Article Co- Justice Abad accuses Dr. Emmanuel S. De Dios, Dr. Joseph J. Capuno,
Country Authored with and me of copying, without attribution, three sentences from the Asian
Governance Drs. De Dios and Development Bank’s 2005 Outlook Report for the Philippines, and
Assessment Capuno: incorporating them into our 2007 paper entitled "Justice and the Cost of
(Philippines) 2005, Doing Business." 27
page 103]
Justice and the
Cost of Doing I thank Justice Abad for alerting me to this particular ADB publication;
Business: The otherwise I would not have noticed ADB’s failure to attribute the same
Philippines, UP to my co-authored work produced in 2001. Were it not for his charges,
School of I would not have learned of such inadvertent error from the ADB. I have
Economics thus called the attention of my co-authors, Drs. De Dios and Capuno, to
Discussion Paper this matter. Below is a reproduction of the contents of my letter to Drs. De
0711, October Dios and Capuno:
2007.
 Hon. Maria Lourdes P.A. Sereno
Associate Justice
Supreme Court of the Philippines
February 4, 2011
Dr. Emmanuel C. De Dios
Dr. Joseph D. Capuno
School of Economics
University of the Philippines
Dear Drs. De Dios and Capuno
Greetings!
I have been recently alerted to a possible plagiarism that we are
suspected to have committed with respect to the 2005 Asian
Development Bank Outlook Report, specifically three sentences in page
103 that reads:
... Cost refers to both monetary and nonmonetary opportunities that a
litigant has to forego in pursuing a case. Direct cost refers not only to
fees paid to the courts but also to out-of-pocket costs arising from
litigation itself (e.g. lawyer’s fees and compensation, transcript fees for
stenographic notes, etc.) Indirect costs refer to lost opportunities arising
from delays in the resolution of cases and the time spent by a litigant
attending and following up a case.
On examination, I discovered that it is the ADB that failed to attribute
those sentences to the report we submitted in August 2001 to the World
Bank entitled "Justice and the Cost of Doing Business: The Philippines,"
specifically found in the third paragraph of our 2001 report. May I suggest
that perhaps you could alert our friends at the ADB regarding the
oversight. It would be nice if our small study, and the World Bank support
that made it possible, were appropriately recognized in this ADB
publication.
Warmest regards always.
Sincerely,
Maria Lourdes P.A. Sereno
A proper reading of the ADB publication will immediately convey the fact
that the ADB considers one of my writings as a resource on the topic of
Philippine judicial reform. My name is quoted four (4) times in the text. A
reading of the references listed one of my 2001 papers, which I wrote
singly as the source. Note the following references to my writing:
... It is incumbent upon the courts to harmonize these laws, and often
they would find the absence of constitutional standards to guide them
(Sereno 2001). at page 98
...
... Critics pointed out that the Supreme Court should not have made
factual declarations on whether a property belongs to the national
patrimony in the absence of an operative law by which a factual
determination can be made (Sereno 2001). at page 99
... As Sereno pointed out, if this tension between the three branches is
not resolved satisfactorily, it will create a climate of unpredictability as a
result of the following: at page 99
...
(iii) a court that will continually have to defend the exercise of its own
powers against the criticism of the principal stakeholders in the process
of economic policy formulation: the executive and legislative branches
and the constituencies consulted on the particular economic issues at
hand (Sereno 2001).
Had Justice Abad or his researcher taken the time to go through the ADB
material, it would have been immediately apparent to either of them that
ADB was merely collating the thoughts of several authors on the subject
of Philippine judicial reform, and that I was one of those considered as a
resource person. He would not then have presumed that I copied those
sentences; rather, it might have struck him that more likely than not, it
was the ADB echoing the thoughts of one or some of the authors in the
reference list when it used those quoted sentences, and that the pool of
authors being echoed by ADB includes me. The reference list of the ADB
report with the relevant reference is quoted herein:
REFERENCES
...
Sereno, Ma. Lourdes. 2001. The Power of Judicial Review and
Economic Policies: Achieving Constitutional Objectives. PHILJA-AGILE-
USAID Project on Law and Economics." at page 158.
What is more unfortunate is that I was immediately accused of having
copied my sentences from ADB when a simple turn of the page after the
cover page of our 2007 paper would reveal that the 2007 paper is but
a re-posting of our 2001 work. The notice on page 2 of the paper that is
found in the asterisked footnote of the title reads:
This paper was originally submitted in August 2001 as project report
to the World Bank. During and since the time this report was written, the
Supreme Court was engaged in various projects in judicial reform. The
authors are grateful to J. Edgardo Campos and Robert Sherwood for
stimulating ideas and encouragement but take responsibility for
remaining errors and omissions. The Asian Institute of Journalism and
Communication provided excellent support to the study in the actual
administration of the survey questionnaire and conduct of focus group
discussions.
This charge is made even more aggravating by the fact that the Supreme
Court itself, through the Project Management Office, has a copy of my
2001 paper. In July 2003, a "Project Appraisal Document on a Proposed
Loan in the Amount of US$21.9 Million to the Republic of the Philippines
for a Judicial Reform Support Project" was officially filed by the World
Bank as Report No. 25504. 28 The applicant Supreme Court’s
representative is named as Chief Justice Hilario Davide. The project
leader is named as Evelyn Dumdum. The Report lists the technical
papers that form the basis for the reform program. Among the papers
listed is our 2001 paper.
What is worse, from the point of view of research protocols, is that a
simple internet search would have revealed that this 2001 co-authored
paper of mine has been internationally referred to at least four (4) times –
in three (3) English language publications and one (1) Japanese- or
Chinese-language publication; two of these are prior to the year 2005
when the relevant ADB Outlook Report came out. The authors of the
English-language works are all scholars on judicial reform, and they cite
our work as one of the pioneering ones in terms of measuring the
relationship between dysfunctions in the judicial system and the cost to
doing business of such dysfunctions. It would have then struck any
researcher that in all probability, the alleged plagiarized sentences
originated from my co-authors and me.
The references to my 2001 paper appear in the following international
publications:
a) Sherwood, Robert. Judicial Performance: Its Economic Impact
in Seven Countries; at page 20.
(http://www.molaah.com/Economic%20Realities/Judicial%20Perf
ormance.pdf)
b) Messick, Richard. Judicial Reform and Economic Growth:
What a Decade of Experience Teaches; at pages 2 and 16.
(2004).
http://www.cato.org/events/russianconf2004/papers/messick2.pdf
c) Herro, Alvaro and Henderson, Keith. Inter-American
Development Bank. The Cost of Resolving Small-Business
Conflicts in Sustainable Development Department Best Practices
Series; at page 46. (2004)
http://www.ifes.org/~/media/Files/Publications/White%20PaperRe
port/2003/258/SME_Peru_Report_final_EN.pdf
d) World Development Report 2005 (Japanese language); at
page 235 (2005) ("url" in Japanese characters)
2. The purported non-attribution of the "Understanding on the Rules and
Procedures Governing the Settlement of Disputes, Annex 2 to the
General Agreement on Tariffs and Trade 1994."29
I will spare the reader the tedium of reading twenty pages of treaty rules
and working procedures, and thus omit the three-column table I have
used in other sections of this Dissent. The rules and procedures may be
accessed online at the following locations:
1. Marrakesh Declaration of 15 April 1994
<http://www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.p
df> (Last accessed on 16 February 2011)
2. Understanding on Rules and Procedures Governing the
Settlement of Disputes
<http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf> (Last
accessed on 16 February 2011)
 3. Working Procedures for Appellate Review then used quotation marks every time reference to the law is made.
<http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm#20> Nothing can be more awkward than requiring such a tedious way of
(Last accessed on 16 February 2011) explaining the Rules of Court requirements. I have made no such
comparable charge of violation against Justice del Castillo in the Dissent
Justice Abad himself provides evidence of the attribution I made when he to the main Decision and I am not making any such claim of violation in
says: my Dissent to the Resolution denying the Motion for Reconsideration,
because that would be a meaningless point.
Justice Sereno said that ‘this section is drawn from Article XX and XXII of
the GATT 1994, Understanding on Dispute Settlement and Working Regarding the phrase allegedly coming from Professor Oppenheim on
Procedures. good offices and mediation, this is a trite, common, standard statement –
with nothing original at all about it – that can be found in any international
I think the problem lies in the fact that neither Justice Abad nor his dispute settlement reference book, including those that discuss WTO
researcher is aware that the phrase "Understanding on Dispute dispute settlement systems. The phrase is a necessary, cut-and-dried
Settlement" is the short title for the "Understanding on the Rules and statement on the use of good offices and mediation, which take place
Procedures Governing the Settlement of Disputes", which is formally alongside the formal dispute settlement system in major international
known also as Annex 2 of the Marakkesh Agreement Establishing the dispute settlement systems. The system is provided for expressly in
World Trade Organization (short form of treaty name: WTO Treaty). A Article 5.5 and 5.6 of the DSU. A quick view of the WTO website makes
quick visit to the WTO website will show that the WTO itself uses any of this point very apparent.31
the terms "DSU," "Dispute Settlement Understanding" or "Understanding
on Dispute Settlement" (UDS) as short forms for the said Annex. The 3. The supposed non-attribution of a phrase from Baker v. Carr.
WTO webpage30 shows that "Understanding on Dispute Settlement" is
the first short way they call the long set of rules covered by Annex 2 of TABLE I: Comparison of Justice Abad’s allegations, the legal
the WTO Treaty. memorandum in Province of North Cotabato v. Peace Panel, and the
decision of the U.S. Supreme Court in Baker v. Carr, cited in the legal
More importantly, the WTO documents that were cited here are public memorandum.
international documents and rules governing the relations of states. In
page 6 of my article, "Toward the Formulation of a Philippine Position in Excerpt from the
Resolving Trade and Investment Dispute in APEC," I explain the modes Legal
of resolving trade and investment disputes by APEC countries, and one Memorandum
of these modes is the WTO dispute settlement mechanism governed by Prepared by J. Excerpt from the
the WTO rules themselves. Sereno: Source Cited by
Reproduction of J. Sereno:
This is therefore a meaningless charge. J. Abad’s
Allegations Petitioners-
Intervenors’ Baker v. Carr, 369
Assuming that Justice Abad knows that the above treaty titles are Memorandum, U.S. 186 (1962).
interchangeable, then his charge is akin to complaining of my supposed Province of North
failure for having simply written thus: "The following are the requirements Cotabato v. Peace
for filing a complaint under the Rules of Court" and then for having Panel
immediately discussed the requirements under the Rules of Court without
quotation marks in reference to each specific rule and section. If this is Prominent on the 3.4 The power to Prominent on the
the case, then it appears that in Justice Abad’s view I should have surface of any case determine whether surface of any
written: "the following are the requirements provided for under the 1997 held to involve a or not a case held to
Rules of Civil Procedure (Bar Matter No. 803) for filing a complaint" and political question is governmental act is involve a political
found a textually a political question, question is found a power to negotiate
demonstrable is solely vested in textually with the MILF….
constitutional this Court, and not demonstrable
commitment of the with the constitutional …
issue to a Respondents. This commitment of the
coordinate politicalHonorable Court issue to a 3.13 Second, there
department; or had firmly ruled coordinate political is no lack of a
a lack of judiciallythat Article VIII, department; or a judicially
discoverable and Section 1 of the lack of judicially discoverable and
manageable Constitution, as discoverable and manageable
standards for rejected the manageable standard for
resolving it; or theprudential standards for resolving the
impossibility of approach taken by resolving it; or the question, nor
deciding without an courts as described impossibility of impossibility of
initial policy in Baker v. Carr. deciding without deciding the
determination of a Indeed, it is a duty, an initial policy question without an
kind clearly for non-
not discretion, of determination of a initial policy
judicial discretion x
the Supreme Court, kind clearly for determination of a
xx to take cognizance non-judicial kind clearly for non-
of a case and discretion…. judicial discretion.
[Baker v. Carr, 169 exercise the power On the contrary,
U.S. 186] of judicial review Source cited: the negotiating
whenever a grave history with Muslim
abuse of discretion Baker v. Carr secessionist
has been prima groups easily
facie established, contradict any
as in this instance. pretense that this
Court cannot set
3.5 In this case, down the standards
Respondents for what the
cannot hide under government cannot
the political do in this case.
question doctrine,
for two compelling (pp. 47-50 of the
reasons. Memorandum)

3.6 First, there is

no resolute textual A simple upward glance nine paragraphs above the phrase that Justice
commitment in the Abad quoted from my post-hearing Memorandum in the GRP-MILF MOA-
Constitution that AD case would show that Baker v. Carr was aptly cited. For quick
accords the reference, I have reproduced the pertinent parts of my legal
President the memorandum in the middle column of the above table.
Baker v. Carr was discussed in the context of my argument that Marcos Currently, there Organization and replaced among member
v. Manglapus has adopted a more liberal approach to the political are 145 official GATT as an international countries.
question jurisdictional defense, and has rejected the prudential approach member organization. It was signed by Currently, there
taken in Baker v. Carr. The offending paragraph that Justice Abad quoted countries. The ministers from most of the 123 are 145 official
was meant to demonstrate to the Court then hearing the GRP-MILF United States and participating governments at a member
MOA-AD case that even if we apply Baker v. Carr, the Petition has other countries meeting in Marrakesh, countries. The
demonstrated satisfaction of its requirement: the presence of a judicially- participating in Morocco on April 15, 1994…. United States and
discoverable standard for resolving the legal question before the Court. the Uruguay other countries
Justice Abad’s charge bears no similarity to the violations of the rules Round of The World Trade Organization participating in
against plagiarism that I enumerated in pages 16 to 19 of my Dissent Multilateral Trade the Uruguay
(WTO) was established on
dated 12 October 2010. I have made no similar complaint against the Negotiations Round of
January 1, 1995. It is a
work in Vinuya. (1986-1994) multilateral institution charged Multilateral Trade
called for the with administering rules for Negotiations
4. The alleged plagiarism of the internet-based World Trade Organization formation of the trade among member (1986-1994)
factsheet. WTO to embody countries. The WTO functions called for the
the new trade as the principal international formation of the
TABLE J: Comparison of Justice Abad’s allegations, the article, entitled disciplines body concerned with WTO to embody
Uncertainties Beyond the Horizon: The Metamorphosis of the WTO adopted during multilateral negotiations on the the new trade
Investment Framework in the Philippine Setting, and the WTO those reduction of trade barriers and disciplines
Factsheet cited in the article. negotiations. other measures that distort adopted during
competition. The WTO also those
The WTO serves as a platform for negotiations.
Excerpt from the Work of J.
Excerpt from the functions as the countries to raise their
Sereno:
Source Cited by principal concerns regarding the trade The WTO
J. Sereno: international body policies of their trading functions as the
Reproduction of Sereno, Uncertainties Beyond
J. Abad’s concerned with partners. The basic aim of the principal
the Horizon: The
Allegations http://www.fas.us multilateral WTO is to liberalize world trade international body
Metamorphosis of the WTO
da.gov/ negotiations on and place it on a secure basis, concerned with
Investment Framework in the
info/factsheets/wt the reduction of thereby contributing to multilateral
Philippine Setting, 52 U.S.T. L.
o.html trade barriers and economic growth and negotiations on
Rev. 259 (2007-2008)
other measures development. http://www.fas.us the reduction of
The World Trade This reticence, to link Source cited: that distort da.gov/info/ trade barriers and
Organization investment regulation with the competition. The other measures
(WTO), legal disciplines in the WTO, The World Trade WTO also serves factsheets/wto.html (last that distort
established on compared to the eagerness Organization as a platform for accessed February 13, competition. The
January 1, 1995, with which other issues are (WTO), countries to raise 2008). (Emphasis supplied.) WTO also serves
is a multilateral linked to trade rules, was established on their concerns as a platform for
institution evident even in the precursor January 1, 1995, regarding the (p. 260-261, footnote 2 of J. countries to raise
charged with to the Marakkesh is a multilateral trade policies of Sereno’s work) their concerns
administering Agreement.[2] institution their trading regarding the
rules for trade charged with partners. The trade policies of
among member [2] Marakkesh Agreement administering basic aim of the their trading
countries. established the World Trade rules for trade WTO is to partners. The
 liberalize world basic aim of the Excerpt from
trade and place it WTO is to the
Excerpt from the Work
on a secure liberalize world Source Cited by
of J. Sereno:
basis, thereby trade and place it J. Sereno:
Reproduction of
contributing to on a secure
economic growth basis, thereby J. Abad’s Sereno, Lawyers’
Allegations Richard A.
and development. contributing to Behavior and Judicial
Posner,
economic growth Decision-Making, 70(4)
Economic
and development. Phil. L. J. 476 (1996).
[WTO Analysis of Law,
FACTSHEET (2nd ed. 1977).
http://www.fas.us Source cited:
...We could deal with this As with any
da.gov/
problem later. What I contract, a
info/factsheets/wt http://www.fas.us would propose to necessary (and
o.html, last da.gov/ evaluate at this point is usually—why not
accessed info/factsheets/wt the preconditions always?—
February 13, o.html that Judge Richard sufficient)
2008.]
Posner theorizes as conditions for
dictating the likelihood of negotiations to
Justice Abad has likewise pointed out that I made it appear that the litigating... succeed is that
description of the WTO in my article entitled "Uncertainties Beyond the [S]ettlement
negotiations will fail there be a price
Horizon: The Metamorphosis of the WTO Investment Framework in the … at which both
Philippine Setting" was my own original analysis. Again, a cursory and litigation
ensue, only if the parties would
reading of the article will show that the paragraph in question was feel that
actually the second footnote in page 2 of the article. The footnote was minimum price that Posner’s model is but a
the plaintiff is simple mathematical agreement
made as a background reference to the Marrakesh Agreement, which, as
I explained earlier in the article, established the WTO. The footnote thus willing to accept in illustration or validation of would increase
their welfare.
further provided background information on the WTO. Contrary, however, compromise of his what we as laymen have
claim is greater always believed to be Hence
to Justice Abad’s allegation, I clearly attributed the source of the settlement
information at the end of the footnote by providing the website source of than the maximum true, although how to
price the defendant prove it to be true has negotiations
this information and the date I accessed the information. Thus, should always remained a should fail, and
one decide to follow the website that I cited, one would immediately see is willing to pay in
satisfaction of the problem to us. We have litigation ensue,
the information contained in the article was lifted from this direct source. always known that the only if the
claim.
decision on whether to minimum price
5. The purported non-attribution to Judge Richard A. Posner’s settle or not is dictated by that the plaintiff
seminal work in his book Economic Analysis of Law. [Posner, p. 434] is willing to
the size of the stakes in
the eyes of the parties, accept in
TABLE K: Comparison of Justice Abad’s allegations, the article entitled the costs of litigation and compromise of
Lawyers’ Behavior and Judicial Decision-Making, and Judge Richard A. the probability which each his claim is
Posner’s book Economic Analysis of Law, cited in the article. side gives to his winning greater than the
or losing. But until now, maximum price
we have only been that the
intuitively dealing with a defendant is
formula for arriving at an willing to pay in
 estimation of the satisfaction of from deciding a have rules designed to both monetary
"settlement range" or its that claim; …. particular case one minimize the possibilities
and
existence in any given way or the other of a judge maximizing hisnonmonetary
controversy. Simply, the Source cited: and to minimize the financial interest by elements (the
settlement range is that influence of receiving a bribe from a latter including
range of prices in which Richard A. politically effective litigant of from accedingleisure, prestige,
both parties would be Posner, interest group in his to a politically powerfuland power). As
willing to settle because it Economic decisions. interest group by making noted earlier,
would increase their Analysis of Law, the rules work in such a however, the
welfare. Settlement 435 (2nd ed. [Posner, 415] manner as to create rules of the
negotiations will fail, and 1977). disincentives for the judge
judicial process
litigation will ensue, if the It is often argued, ruling in such a manner. have been
minimum price that for example, that carefully
plaintiff is willing to accept the judge who The second, proceeding designed both to
in compromise of his owns land will from the first is that the prevent the
claim is greater than the decide in favor of judge maximizes the judge from
maximum price that the landowners, the interest of the group to receiving a
defendant is willing to pay judge who walks to which he belongs. If he monetary payoff
in satisfaction of that work will be in belongs to the from deciding a
claim. favour of landowning class, he will particular case
pedestrians. generally favor one way or the
(pp. 481-483 of Lawyers’ landowners, and if he other and to
Behavior and Judicial walks to work, he will minimize the
[Posner, 415]
Decision-Making) generally favor influence of
pedestrians. politically
Presumably judges, What the Judge §19.7 WHAT DO A somewhat more effective interest
like the rest of us, Maximizes JUDGES plausible case can
seek to maximize a MAXIMIZE? be made that The third is that the judge groups on his
decisions. To be
utility function that
In understanding judicial judges might slant maximizes the prospects sure, the
includes both their decisions in of his promotion to a
behavior, we have to …This section effectiveness of
monetary and assume, that judges, like attempts to favour of powerful higher office by slanting these insulating
nonmonetary interest groups in his decisions in favor of
all economic actors sketch a theory
elements. order to powerful interest groups. rules is
maximize a utility of judicial sometimes
function. This function in incentives that increase the questioned. It is
[Posner, p. 415] all probability includes will reconcile prospects of The last is that judges
often argued, for
material as well as non- these promotion to higher maximize their influence example, that
material factors. In assumptions. office, judicial or on society by imposing
[T]he rules of the the judge who
American literature, they otherwise. their values, tastes and
judicial process owns land will
preferences thereon.
have been carefully have come up with Presumably decide in favor
designed both to several theories on what judges, like the [Posner, p. 416] of landowners,
the prevent the judges maximize. rest of us, seek Depending on one’s the judge who
judge from to maximize a [J]udges seek to impressions and walks to work in
receiving a The first is that the utility function impose their experiences (since there favor of
monetary payoff American judicial system that includes preferences, tastes, is no empirical data on pedestrians, the
values, etc. on which a more scientific judge who used consistent with
society. conclusion can be to be a corporate the ordinary
reached on which of the lawyer in favor of assumptions of
[Posner, 416] above four theories are corporations.... economic
correct), we can see the analysis, is that
relation of this utility- A somewhat judges seek to
maximizing behavior on more plausible impose their
both our probability case can be preferences,
estimate function made that tastes, values
and Posner’s precondition judges might etc. on society....
inequality for litigation. slant their
Although more research decisions in Source:
is required in this area, if favor of powerful
we interest groups Richard A.
believe Posner’s function in order to Posner,
to be true…. increase the Economic
prospects of Analysis of Law,
(Emphasis supplied.) promotion to 415-16 (2nd ed.
higher office, 1977).
(pp. 489 of Lawyers’ judicial or
Behavior and Judicial otherwise....
May I invite the reader to read my entire article entitled "Lawyers’
Decision-Making)
Behavior and Judicial Decision-Making," accessible online at
It would seem,
<http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20vol
therefore, that
ume%2070%20number%204%20-02-
the explanation
%20Ma.%20Lourdes%20A.%20Sereno%20-
for judicial
%20Lawyers%20Behavior.pdf>, so that the alleged copying of words can
behavior must lie
be taken in the proper context.
elsewhere than
in pecuniary or
political factors. It must first be emphasized that the whole article was largely a
That most presentation and discussion of Judge Posner’s economic models of
judges are litigation and settlement, applying what he had written to the context of
leisure the Philippines. An examination of the article will show that Posner’s work
maximizers is an was referred to no less than fourteen (14) times throughout the article,
assumption that excluding the use of pronouns that also refer to Posner, such as "he" and
will not survive "him." A diligent reading of the full text of the article will reveal that I have
even casual intentionally and heavily used Posner’s opinions, analyses, models, and
observation of conclusions while crediting him with the same.
judicial behavior.
A more attractive Furthermore, the passages cited in the table of counter-charges use what
possibility, yet one may call the "terms of the trade" in the field of law and economics, or
still one indeed in the field of economics itself. The maximization of an individual’s
thoroughly utility is one of the core principles on which the study of an individual’s
choices and actions are based. The condition for the success/failure of
settlement bargaining is practically a definition, as it is also a fundamental
principle in the study of bargaining and negotiation that the minimum
price of one of the parties must not exceed the maximum price the other
party is willing to pay; that particular passage, indeed, may be regarded
as a re-statement, in words instead of numbers, of a fundamental
mathematical condition as it appears in Posner’s model and in many
similar models.
To allow industry professionals to have their say on the matter, I have
written a letter to Dr. Arsenio M. Balisacan, the Dean of the University of
the Philippines School of Economics, requesting that my paper, Lawyers’
Behavior and Judicial Decision-Making, be examined by experts in the
field to determine whether the allegations of plagiarism leveled against
me have basis. I am reproducing the contents of the letter below.
Hon. Maria Lourdes P.A. Sereno
Associate Justice
Supreme Court of the Philippines
February 11, 2011
Dr. Arsenio M. Balisacan
Dean
School of Economics
University of the Philippines
Dear Dr. Balisacan:
Greetings! I hope this letter finds you in the best of health.
I write because I have a request to make of your highly-respected
institution. I have been recently accused of plagiarizing the work of Judge
Richard Posner in one of the articles on law and economics that I have
written and that was published in the Philippine Law Journal entitled
"Lawyers’ Behavior and Judicial Decision-Making", 70 Phil L. J. 475-492
(June 1996). The work of Posner that I am accused of having plagiarized
is the second edition of the book entitled "Economic Analysis of Law",
published in 1977 by Little, Brown and Company.
May I ask you for help in this respect – I wish to submit my work to the
evaluation of your esteemed professors in the UP School of Economics.
My work as an academic has been attacked and I would wish very much
for a statement from a panel of your choosing to give its word on my
work.
I am attaching a table showing which part of Posner’s work I am alleged
to have plagiarized in my Philippine Law Journal article.
Thank you very much. I will be much obliged for this kind favor.
Very truly yours,
Maria Lourdes P.A. Sereno
The problem with the majority approach is that it refuses to face the scale
of the plagiarism in the Vinuya Decision. If only that were the starting
point for the analysis of the majority, then some of my colleagues would
not have formed the impression that I was castigating or moralizing the
majority. No court can lightly regard a ponencia, as in Vinuya, where
around 53% of the words used for an important section were plagiarized
from sources of original scholarship. Judges and their legal researchers
are not being asked to be academics; only to be diligent and honest.
IV. The Role of the Judiciary in Society
On more than one occasion, this Court has referred to one of its functions
as the symbolic or educative function, the competence to formulate
guiding principles that may enlighten the bench and the bar, and the
public in general.32 It cannot now backpedal from the high standards
inherent in the judicial role, or from the standards it has set for itself.
The need to cement ethical standards for judges and justices is
intertwined with the democratic process. As Lebovits explained:
The judiciary's power comes from its words alone–judges command no
army and control no purse. In a democracy, judges have legitimacy only
when their words deserve respect, and their words deserve respect only
when those who utter them are ethical. Opinion writing is public writing of
the highest order; people are affected not only by judicial opinions but
also by how they are written. Therefore, judges and the opinions they
write–opinions scrutinized by litigants, attorneys, other judges, and the
public–are held, and must be held, to high ethical standards. Ethics must
constrain every aspect of the judicial opinion. 33
Justice George Rose Smith once pointed to the democratic process as a
reason to write opinions: "Above all else to expose the court's decision to
public scrutiny, to nail it up on the wall for all to see. In no other way can
it be known whether the law needs revision, whether the court is doing its
job, whether a particular judge is competent." Justice Smith recognized
that judges are not untouchable beings. Judges serve their audience.
With this service comes the need for judges to be trusted. Writing
opinions makes obtaining trust easier; it allows an often opaque judicial
institution to become transparent. 34
Judges cannot evade the provisions in the Code of Judicial Conduct.35
A judge should participate in establishing, maintaining and enforcing high
standards of conduct, and shall personally observe those standards so
that the integrity and independence of the judiciary will be preserved. The
drafters of the Model Code were aware that to be effective, the judiciary
must maintain legitimacy –and to maintain legitimacy, judges must live up
to the Model Code's moral standards when writing opinions. If the public
is able to witness or infer from judges' writing that judges resolve disputes
morally, the public will likewise be confident of judges' ability to resolve
disputes fairly and justly.36 (Citations omitted)
Canon 1 of the Code of Judicial Conduct states that a judge should
uphold the integrity and independence of the judiciary. Rule 1.01 in
particular states that a judge should be the embodiment of competence,
integrity, and independence.
Canon 3 then focuses on the duty of honesty in the performance of
official duties, as well as on the supervision of court personnel:
Rule 3.09. A judge should organize and supervise the court personnel to
ensure the prompt and efficient dispatch of business, and require at all
times the observance of high standards of public service and fidelity.
Rule 3.10. A judge should take or initiate appropriate disciplinary
measures against lawyers or court personnel for unprofessional conduct
of which the judge may have become aware.
Paragraph 17 of the Code of Judicial Ethics 37 focuses on the writing of
judicial opinions:
In disposing of controversial cases, judges should indicate the reasons
for their action in opinions showing that they have not disregarded or
overlooked serious arguments of counsel. They should show their full
understanding of the case, avoid the suspicion of arbitrary
conclusion, promote confidence in their intellectual integrity and
contribute useful precedents to the growth of the law. (Emphasis
supplied)
Paragraph 31, "a summary of judicial obligations," contains a more
general statement regarding the behavioral norms required of judges and
justices alike, stating:
A judge’s conduct should be above reproach and in the discharge of his
judicial duties, he should be conscientious, studious, thorough,
courteous, patient, punctual, just, impartial, fearless of public clamor, and
regardless of private influence should administer justice according to law
and should deal with the patronage of the position as a public trust; and
he should not allow outside matters or his private interests to interfere
with the prompt and proper performance of his office.
That judges and justices alike are subject to higher standards by virtue of
their office has been repeatedly pronounced by the Supreme Court:
Concerned with safeguarding the integrity of the judiciary, this Court has
come down hard and wielded the rod of discipline against members of
the judiciary who have fallen short of the exacting standards of judicial
conduct. This is because a judge is the visible representation of the law
and of justice. He must comport himself in a manner that his conduct
must be free of a whiff of impropriety, not only with respect to the
performance of his official duties but also as to his behavior outside his
sala and as a private individual. His character must be able to withstand
the most searching public scrutiny because the ethical principles and
sense of propriety of a judge are essential to the preservation of the
people’s faith in the judicial system. 38
Thus, being the subject of constant public scrutiny, a judge should freely
and willingly accept restrictions on conduct that might be viewed as
burdensome by the ordinary citizen. 39 A judge should personify integrity
and exemplify honest public service. The personal behavior of a judge,
both in the performance of his official duties and in private life should be
above suspicion.40 Concerned with safeguarding the integrity of the
judiciary, this Court has come down hard on erring judges and imposed
the concomitant punishment. 41
As held by the Court in Teban Hardware and Auto Supply Co. v.
Tapucar:42
The personal and official actuations of every member of the Bench must
be beyond reproach and above suspicion. The faith and confidence of
the public in the administration of justice cannot be maintained if a Judge
who dispenses it is not equipped with the cardinal judicial virtue of moral
integrity, and if he obtusely continues to commit an affront to public
decency. In fact, moral integrity is more than a virtue; it is a necessity in
the Judiciary.
The inherent value of judicial decisions goes beyond the resolution of
dispute between two parties. From the perspective of the judge, he has
fulfilled his minimum burden when he has disposed of the case. Yet from
the perspective of the public, it is only through publicized decisions that
the public experiences the nearest approximation of a democratic
experience from the third branch of Government.
Decisions and opinions of a court are of course matters of public concern
or interest for these are the authorized expositions and interpretations of
the laws, binding upon all citizens, of which every citizen is charged with
knowledge. Justice thus requires that all should have free access to the
opinions of judges and justices, and it would be against sound public
policy to prevent, suppress or keep the earliest knowledge of these from
the public.43
The clearest manifestation of adherence to these standards is through a
Justice’s written opinions. In the democratic framework, it is the only way
by which the public can check the performance of such public officer’s
obligations. Plagiarism in judicial opinions detracts directly from the
legitimacy of the judge's ruling and indirectly from the judiciary's
legitimacy.44 It is objectionable not only because of its inherent capacity to
harm, but the overarching damage it wreaks on the dignity of the Court
as a whole.
The Court’s Educative Function
The Court’s first Decision in this case hinged on the difference between
the academic publishing model on the one hand, and the judicial system
on the other. It proceeded to conclude that courts are encouraged to cite
"historical legal data, precedents, and related studies" in their decisions,
so that "the judge is not expected to produce original scholarship in every
respect."
This argument presents a narrower view of the role of the courts than
what this country’s history consistently reveals: the judiciary plays a more
creative role than just traditional scholarship. No matter how hesitantly it
assumes this duty and burden, the courts have become moral guideposts
in the eyes of the public.
Easily the most daunting task which confronts a newly appointed judge is
how to write decisions. It is truly a formidable challenge considering the
impact of a court’s judgment reverberates throughout the community in
which it is rendered, affecting issues of life, liberty, and property in ways
that are more pervasive and penetrating than what usually appears on
the surface – or under it.45
The impact of judicial decisions has even been codified in paragraph 2 of
the Canon of Judicial Ethics: "Every judge should at all times be alert in
his rulings and in the conduct of the business of his court, so far as he
can, to make it useful to litigants and to the community."
The error in the contention of the majority that judicial writing does not put
a premium on originality is evident. In the words of Daniel Farber, stare
decisis has become an oft-repeated catchphrase to justify an unfounded
predisposition to repeating maxims and doctrines devoid of renewed
evaluation.
In reviewing the Court's work, we saw a fixation on verbal formulas;
likewise, race scholarship frequently seems to suffer from a similar
fixation on stylized rhetoric. Yet Holmes' adage defines the problem a bit
too narrowly–suggesting that we mostly need less abstraction and more
concreteness. This deficiency actually is part of the problem; we could
surely benefit from more empirical research and sensitivity to concrete
factual situations. Yet, the problem goes beyond that. 46
The consistent resort to stare decisis fails to take into account that in the
exercise of the Court’s self-proclaimed symbolic function, its first
accountability is to its audience: the public. Its duty of guiding the bench
and the bar comes a close second.
Consider first the judge. A key weakness of current Supreme Court
opinions seems to be that judges have sometimes lost track of whom
they are addressing or what they are trying to accomplish. Of course,
they have no literal clients, but they seek to advance a set of values and
perspectives that might serve as the basis for identifying metaphorical
clients…The purpose, then, is to help the system work as well as
possible according to its own norms and goals…
Often, the purpose is to guide other courts to advance the client's
interests in their own decisions. In this respect, the important part of the
opinion is that portion speaking to future cases–though as we have seen,
judges sometimes fail to focus their energies there. Additionally, the
opinion, if it is to elicit more than the most grudging obedience, must
appeal to the values and goals of those judges as well as to the
author's.47
The Court seemingly views the issuance of opinions to be an end in itself,
as if the text of the opinion had some autonomous value unrelated to its
ability to communicate to an audience. At a deeper level, the intellectual
flaw in the statutory-interpretation opinions is similar. The Court often
treats statutes as free-standing texts, with little attention to their historical
and social contexts or what their drafters were trying to achieve. 48
Thus, the value of ethical judicial writing vis-à-vis the role that courts are
called upon to play cannot be underestimated.
Worrying about the ethical status of judicial opinions seems pointless at
first. Complaints about decisions and the opinions that explain them have
been around as long as judges have been judging. As technology has
lowered the cost of research, and of cutting and pasting earlier work,
opinions often seem to be formal exercises that do not suggest deep
judicial engagement. Other opinions do show the hand of a deeply
engaged judge, though these can be worse than the cut-and-pasted kind.
What then is to be gained by trying to make an ethical issue of judicial
writing? … Professor Llewellyn said it is in part because the judicial office
acts as "a subduer of self and self-will, as an engine to promote
openness to listen and to understand, to quicken evenhandedness,
patience, sustained effort to see and judge for All-of-Us." 49
The lessons taught our country by its singular experience in history has
given rise to a more defined place for our courts. With the constitutional
mandate that the Supreme Court alone can exercise judicial review, or
promulgate rules and guidelines for the bench and the bar, or act as the
arbiter between the two branches of government, it is all the more evident
that standards for judicial behavior must be formulated. After all, "the
most significant aspect of the court's work may lie in just this method and
process of decision: by avoiding absolutes, by testing general maxims
against concrete particulars, by deciding only in the context of specific
controversies, by finding accommodations between polar principles, by
holding itself open to the reconsideration of dogma, the court at its best,
provides a symbol of reconciliation."50
According to Paul Freund, the great fundamental guarantees of our
Constitution are in fact, moral standards wrapped in legal commands. It is
only fitting that the Court, in taking on the role of a public conscience,
accept the fact that the people expect nothing less from it than the best of
faith and effort in adhering to high ethical standards.
I affirm my response to the dispositive portion of the majority Decision in
this case as stated in my Dissent of 12 October 2010, with the
modification that more work of more authors must be appropriately
acknowledged, apologies must be extended, and a more extensively
corrected Corrigendum must be issued. Again, I make no pronouncement
on liability, not only because the process was erroneously cut short by
the majority when it refused to proceed to the next step of determining
the duty of diligence that a judge has in supervising the work of his legal
research, and whether, in this instance, Justice del Castillo discharged
such duty, but also because of the view expressed by Justice Carpio that
this Court had best leave the matter of clearing Justice del Castillo to
Congress, the body designated by the Constitution for such matters. It
seems now that the process of determining the degree of care required in
this case may never be undertaken by this Court. One thing is certain,
however: we cannot allow a heavily plagiarized Decision to remain in our
casebooks – it must be corrected. The issues are very clear to the
general public. A wrong must be righted, and this Court must move
forward in the right direction.
MARIA LOURDES P. A. SERENO
Associate Justice
 SEPARATE DISSENTING OPINION
CARPIO MORALES, J.:
I join Justice Antonio T. Carpio’s thesis in his Dissenting Opinion on the
commission of plagiarism or violation of intellectual property rights in the
Vinuya decision. I join him too on his other thesis that this Court has no
jurisdiction to decide an administrative case where a sitting Justice of this
Court has committed misconduct in office, with qualification.
I submit that the Court may wield its administrative power against its
incumbent members on grounds other than culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust, AND provided the offense or misbehavior does
not carry with it a penalty, the service of which would amount to removal
from office either on a permanent or temporary basis such as
suspension.
The President, the Vice President, the members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law,
but not by impeachment.1 (underscoring supplied)
In 1988, the Court dismissed the complaint for disbarment against Justice
Marcelo Fernan for lack of merit. Aside from finding the accusations
totally baseless, the Court, by per curiam Resolution,2 also stated that to
grant a complaint for disbarment of a member of the Court during the
member’s incumbency would in effect be to circumvent and hence to run
afoul of the constitutional mandate that members of the Court may be
removed from office only by impeachment.
In the subsequent case of In Re Raul M. Gonzales, 3 this principle of
constitutional law was succinctly formulated in the following terms which
lay down a bar to the institution of certain actions against an impeachable
officer during his or her incumbency.
x x x A public officer who under the Constitution is required to be a
Member of the Philippine Bar as a qualification for the office held by him
and who may be removed from office only by impeachment, cannot be
charged with disbarment during the incumbency of such public officer.
Further, such public officer, during his incumbency, cannot be charged
criminally before the Sandiganbayan or any other court with any offense
which carries with it the penalty of removal from office, or any penalty
service of which would amount to removal from office.4 (emphasis
and underscoring supplied; italics in the original)
The Court clarified, however, that it is not saying that its members are
entitled to immunity from liability for possible criminal acts or for alleged
violations of the canons of judicial ethics or codes of judicial conduct. It
stressed that there is a fundamental procedural requirement that must be
observed before such liability may be determined and enforced.
x x x A Member of the Supreme Court must first be removed from office
via the constitutional route of impeachment under Sections 2 and 3 of
Article XI of the 1987 Constitution. Should the tenure of the Supreme
Court Justice be thus terminated by impeachment, he may then be held
to answer either criminally or administratively (by disbarment
proceedings) for any wrong or misbehaviour that may be proven against
him in appropriate proceedings.5(underscoring supplied)
The Court declared the same principle in Jarque v. Desierto 6 by
Resolution of December 5, 1995.
The rule that an impeachable officer cannot be criminally prosecuted for
the same offenses which constitute grounds for
impeachment presupposes his continuance in office. Hence, the moment
he is no longer in office because of his removal, resignation, or
permanent disability, there can be no bar to his criminal prosecution in
the courts.
Nor does retirement bar an administrative investigation from
proceeding against the private respondent, given that, as pointed out by
the petitioner, the former’s retirement benefits have been placed on hold
in view of the provisions of Sections 12 and 13 of the Anti-Graft and
Corrupt Practices Act.7 (underscoring supplied)
The immediately-quoted pronouncement implies that
the administrative investigation must be initiated during the incumbency
of the respondent.
That the Supreme Court has overall administrative power over its
members and over all members of the judiciary has been
recognized.8 Moreover, the Internal Rules of the Supreme Court
(2010)9 expressly included, for the first time, "cases involving the
discipline of a Member of the Court"10 as among those en banc matters
and cases. Elucidating on the procedure, Section 13, Rule 2 of the
Court’s Internal Rules provides:
SEC. 13. Ethics Committee. – In addition to the above, a
permanent Committee on Ethics and Ethical Standards shall be
established and chaired by the Chief Justice, with following membership:
a) a working Vice-Chair appointed by the Chief Justice;
b) three (3) members chosen among themselves by the en
banc by secret vote; and
c) a retired Supreme Court Justice chosen by the Chief Justice as
a non-voting observer-consultant.
The Vice-Chair, the Members and the Retired Supreme Court Justice
shall serve for a term of one (1) year, with the election in the case of
elected Members to be held at the call of the Chief Justice.
The Committee shall have the task of preliminarily investigating all
complaints involving graft and corruption and violations of ethical
standards, including anonymous complaints, filed against Members of the
Court, and of submitting findings and recommendations to the en
banc. All proceedings shall be completely confidential. The Committee
shall also monitor and report to the Court the progress of the
investigation of similar complaints against Supreme Court officials and
employees, and handle the annual update of the Court’s ethical rules and
standards for submission to the en banc. (emphasis and underscoring
supplied)
The Court acknowledged its power to take cognizance of complaints
against its incumbent Members. It is circumscribed, however, by the
abovementioned principle of constitutional law 11 in terms of grounds and
penalties.
In at least two recent instances, the Court had conducted administrative
proceedings against its incumbent Members.
In the controversy surrounding the 1999 Bar Examinations, the Court, by
Resolution of March 22, 2000 in Bar Matter No. 979, censured then
incumbent Justice Fidel Purisima for his failure to disclose on time his
relationship to an examinee and for breach of duty and confidence, and
declared forfeited 50% of the fees due him as chairperson of the 1999
Bar Examinations Committee. The impositions did not, however, douse
the clamor for stiffer penalties on Justice Purisima in case he were found
liable after a full, thorough and formal investigation by an independent
and impartial committee, which some quarters urged the Court to form.
Meanwhile, Justice Purisima retired from the Court on October 28, 2000.
By Resolution of November 28, 2000, the Court ruled that "[h]is
retirement makes it untenable for this Court to further impose
administrative sanctions on him as he is no longer a member of the
Court" and referred the bar matter to the Special Study Group on Bar
Examination Reforms for report and recommendation.
The implication that the Court could have imposed further administrative
sanctions on Justice Purisima had he not retired is a recognition that the
Court may discipline one of its sitting members.
Further, the Court did not explain why the "further" imposition of
administrative sanctions was untenable except for the fact that Justice
Purisima was no longer a member of the Court. Could it be that the
earlier imposed penalties (i.e., censure and partial forfeiture of fees) were
already considered sufficient? Could it be that the proper administrative
case (arising from the earlier bar matter) was not instituted before Justice
Purisima retired? Or could it be that Justice Purisima’s retirement benefits
were already released to him, leaving the Court with nothing more to go
after to or impose (except, perhaps, disqualification to hold any
government office)?
I thus submit that the failure to initiate an administrative proceeding
prior to Justice Purisima’s retirement made it untenable for the
Court to further impose administrative sanctions on him. What was
confirmed by the Purisima case, nonetheless, for purposes of pertinent
discussion, is that the Court has jurisdiction to take cognizance of a
complaint against an incumbent Justice.
Then there was the case In re: Undated Letter of Mr. Louis
Biraogo12 where Justice Ruben Reyes was, inter alia, "held liable
for GRAVE MISCONDUCT for leaking a confidential internal document of
the Court" for which he was "FINED ₱500,000.00, to be charged against
his retirement benefits, and disqualified to hold any office or employment
in any branch or instrumentality of the government including government-
owned or controlled corporations."13 The question in Biraogo was not so
much on the Court’s jurisdiction over the case but on the effect of Justice
Reyes’ subsequent retirement during the pendency of the case.
Unlike the present case, however, impeachment proceedings against
Justices Purisima and Reyes did not see the light of day as they
eventually retired, which mandatory retirement either foreclosed the
initiation of further administrative proceedings or directed the imposable
sanctions to the retirement benefits.
In view of the impeachment complaint filed with the House of
Representatives involving the same subject matter of the case, which
denotes that a co-equal branch of government found the same act or
omission grievous as to present a ground for impeachment and opted to
exercise its constitutional function, I submit that the Court cannot proceed
with the administrative complaint against Justice Del Castillo for it will
either (i) take cognizance of an impeachable offense which it has no
jurisdiction to determine, or (ii) downplay the questioned conduct and
preempt the impeachment proceedings.
I thus join the call of Justice Carpio to recall the Court’s October 15, 2010
Resolution, but only insofar as Justice Del Castillo is concerned. All
related administrative concerns and issues involving non-impeachable
officers therein should still be considered effectual.
In Biraogo, the unauthorized release of the unpromulgated ponencia of
Justice Reyes in the consolidated Limkaichong cases spawned an
investigation to determine who were responsible for the leakage of the
confidential internal document of the Court. The investigation led to
the disciplining of not just Justice Reyes but also two members of his
staff, who were named without hesitation by the Court, viz., Atty.
Rosendo B. Evangelista and Armando Del Rosario, and who were held
liable for SIMPLE NEGLECT OF DUTY and ordered to pay FINE in the
amount of ₱10,000.00 and ₱5,000.00, respectively.14
Why, in the present case, the legal researcher who is hiding behind her
credentials appears to be held a sacred cow, I cannot fathom. Hers is a
new (or better) specie of initialed personification (e.g., "xxx") under the
likes of Cabalquinto15which should apply only to cases involving violence
against women and children. 16
The unjustified non-disclosure of her identity is unfair to Atty. Evangelista
who, aside from having his own credentials to protect, had to be
mentioned as a matter of course in the committee report adopted by the
Court in In re: Undated Letter of Mr. Louis Biraogo, after similarly
cooperating with and explaining his side before the investigating
committee.
Atty. Evangelista was eventually found by the Court to be wanting in care
and diligence in securing the integrity and confidentiality of a document.
In the present case, the Court’s October 15, 2010 per curiam Decision
cleared the name of the unnamed legal researcher.
While what was at stake in Biraogo was the "physical integrity" of
a ponencia, what is at stake in the present case is the "intellectual
integrity" of a ponencia. The Court is committing a disservice to its judicial
function if it values the physical form of a decision more than what a
decision substantially contains.
Moreover, the liability of Justice Reyes did not save the day for Atty.
Evangelista who, as the judicial staff head, was tasked to secure and
protect the copies of the Limkaichong Decision. Similarly in the present
case, independently of Justice Del Castillo’s "shortcomings," the legal
researcher, who was the lone drafter, proofreader and citechecker, was
tasked like any other Court Attorney to secure and ensure the substance
and legal reasoning of the Vinuya Decision. Like Justice Reyes, Justice
Del Castillo can only do so much in claiming responsibility and full control
of his office processes and shielding the staff under the mantle of his
impeachable wings.
Notably, Rule 10.2 of Canon 10 of the Code of Professional
Responsibility states that lawyers shall "not knowingly misquote or
misrepresent the contents of a paper, the language or the argument of
opposing counsel, or the text of a decision or authority, or knowingly cite
as law a provision already rendered inoperative by repeal or amendment,
or assert as a fact that which has not been proved." While the provision
presupposes knowledge or willful intent, it does not mean that negligent
acts or omissions of the same nature by lawyers serving the government
go scot-free.
Simple neglect of duty is defined as the failure to give proper attention to
a task expected of an employee resulting from either carelessness or
indifference.17
I submit that the legal researcher was remiss in her duties of re-studying
the sources or authorities invoked in the Vinuya Decision and checking
the therein citations or, at the very least, those whose authors’ rights to
attribution and integrity are protected under Intellectual Property Law.
While it is incumbent upon her to devise ways and means of legal
research, her admitted method or process as shown in the Vinuya case
reflects a disregard of a duty resulting from carelessness or indifference.
She failed to exercise the required degree of care to a task expected of a
lawyer-employee of the Supreme Court.
While the Court recognizes that there were indeed lapses in the editorial
work in the drafting of the Vinuya Decision, it easily attributed them to
"accidental deletions." It conveniently assigned such human errors to the
realm of accidents, without explaining whether it could not have been
foreseen or avoided.
I, therefore, posit that the legal researcher, who must hitherto be named,
is liable for Simple Neglect of Duty and must be ordered to pay a Fine in
the amount of, following Biraogo, ₱10,000.00, with warning of more
severe sanctions for future similar conduct.
Whether liability attaches to what the October 15, 2010 per
curiam Decision finds to be deletion or omission of citation
"unquestionably due to inadvertence or pure oversight," the fact remains,
nonetheless, that there is a need for a textual correction of
the Vinuya Decision. This Court should cause the issuance of a corrected
version in the form of, what Justice Ma. Lourdes P. A. Sereno suggests
as, a "corrigendum."
The matter of making corrections in judicial issuances is neither novel nor
something beneath the Court. As early as February 22, 2000, the Court
already accepted the reality of human error. In A.M. No. 00-2-05-SC, "In
the Matter of Correction of Typographical Errors in Decisions and Signed
Resolutions," the Court provided a simple procedure in making proper
corrections:
Inadvertent typographical errors in decisions and signed resolutions of
the Court may occur every now and then. As these decisions and signed
resolutions are published and preserved for posterity in the Philippine
Reports, the Supreme Court Reports Annotated, and other publications
as well as in the Supreme Court website, the need for making them free
of typographical errors cannot be overemphasized. Care should,
therefore, be taken in proofreading them before they are submitted for
promulgation and/or publication.
Nevertheless, should typographical errors be discovered after the
promulgation and/or publication of decisions and resolutions, the
following procedure should be observed to the end that unauthorized
corrections, alterations, or intercalations in what are public and official
documents are not made.
1. In case of decisions and signed resolutions with the author[’s]
names indicated, the Reporter and the Chief of the Management
Information Systems Office of the Supreme Court should secure
the authority of the author concerned to make the necessary
correction of typographical errors. In case of per curiam decisions
and unsigned resolutions, authority to make corrections should be
secured from the Chief Justice.
2. The correction of typographical errors shall be made by
crossing out the incorrect word and inserting by hand the
appropriate correction immediately above the cancelled word.
Such correction shall be authenticated by the author by signing
his initials immediately below the correction. In per
curiam decisions and unsigned resolutions, and in cases where
the author is no longer a member of the Court, the authentication
shall be made by the Chief Justice.
3. The Reporter and the Chief of the Management Information
Systems Office shall submit to the Court, through the Clerk of
Court, a quarterly report of decisions and resolutions in which
corrections have been made. The Clerk of Court must thereafter
include the report in the agenda of the Court en banc.
This resolution takes effect immediately.
Despite the avowals of "slip in attribution," "bad footnoting," and "editorial
error" in the Court’s October 15, 2010 per curiam Decision, to date no
effort has been made to correct the Vinuya Decision in conformity with
A.M. No. 00-2-05-SC, which only implies that the lapses are not
typographical in nature. The corrections of the Vinuya Decision cannot
simply be made by crossing out the incorrect word and inserting by hand
the appropriate correction immediately above the cancelled word, with
authentication by the ponente or writer.
CONCHITA CARPIO MORALES
Associate Justice
 SEPARATE CONCURRING OPINION
BRION, J.:
Background Facts
The present administrative disciplinary case against Supreme Court
Associate Justice Mariano C. del Castillo stemmed from the decision he
penned for the Court in G.R. No. 162230, entitled Isabelita C. Vinuya, et
al. v. Executive Secretary. The Vinuya Decision was promulgated on April
28, 2010 with 13 justices of this Court concurring with the ruling to
dismiss the case.
On July 19, 2010, Attys. Harry Roque and Rommel Bagares, counsels for
petitioners Vinuya, et al., filed a Supplemental Motion for Reconsideration
raising, among others, the plagiarism allegedly committed by Justice del
Castillo for using the works of three foreign legal authors in his ponencia.
They alleged that the use was without proper attribution and that Justice
del Castillo twisted the foreign authors’ works to support the Decision.
They considered it "highly improper for x x x the Court x x x to wholly lift,
without proper attribution, from at least three sources – an article
published in 2009 in the Yale Law Journal of International Law, 1 a book
published by the Cambridge University Press in 2005,2 and an article
published in the Case Western Reserve Journal of International Law 3 –
and to make it appear that these sources support the assailed
Judgment’s arguments for dismissing [their] petition[,] when in truth, the
plagiarized sources even make a strong case for the Petition’s claims[.]" 4
In reply to the accusation, Justice del Castillo wrote and circulated a letter
dated July 22, 2010 to the members of this Court. On July 27, 2010, the
Court decided to refer the letter to the Ethics and Ethical Standards
Committee (the "Ethics Committee" or "committee") which docketed it as
an administrative matter. The committee required Attys. Roque and
Bagares to comment on Justice del Castillo’s letter, after which it heard
the parties. After the parties’ memoranda, the committee submitted its
findings and recommendations to the Court.
The Court’s Decision on the Plagiarism Charge against Justice del
Castillo
In a Decision dated October 12, 2010, the Court resolved to dismiss the
plagiarism charges against Justice del Castillo. It recognized that indeed
certain passages of the foreign legal article were lifted and used in the
Vinuya Decision and that "no attributions were made to the x x x authors
in [its] footnotes."5 However, the Court concluded that the failure to
attribute did not amount to plagiarism because no malicious intent
attended the failure; the attributions (present in Justice del Castillo’s
original drafts) were simply accidentally deleted in the course of the
drafting process. Malicious intent was deemed an essential element, as
"plagiarism is essentially a form of fraud where intent to deceive is
inherent." Citing Black’s Law Dictionary’s definition of plagiarism – the
deliberate and knowing presentation of another person’s original ideas or
creative expressions as one’s own – the Court declared that "plagiarism
presupposes intent and a deliberate, conscious effort to steal another’s
work and pass it off as one’s own." In fact, the Court found that by citing
the foreign author’s original sources, Justice del Castillo never created
the impression that he was the original author of the passages claimed to
have been lifted from the foreign law articles:
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.
As to the charge that Justice del Castillo twisted the meaning of the
works of the foreign authors, the Court ruled that it was impossible for
him to have done so because:
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.
The Court, thus, declared that "only errors [of judges] tainted with fraud,
corruption, or malice are subject of disciplinary action" and these were
not present in Justice del Castillo’s case; the failure was not attended by
any malicious intent not to attribute the lifted passages to the foreign
authors.
Justice Maria Lourdes P. A. Sereno dissented from the Court’s October
12, 2010 Decision based mainly on her disagreement with the majority’s
declaration that malicious intent is required for a charge of plagiarism to
prosper.
On November 15, 2010, Attys. Roque and Bagares filed a motion for
reconsideration of the Court’s October 12, 2010 Decision. This motion
was the subject of the Report/Resolution submitted to the Court for
consideration. Incidentally, the same counsels filed an impeachment
complaint for betrayal of public trust against Justice del Castillo with the
House of Representatives on December 14, 2010.
The Court’s Action on the
Motion for Reconsideration
The Court referred the motion for reconsideration to the Ethics
Committee and its Report recommended the dismissal of the motion for
reconsideration. The Report differentiated academic writing from judicial
writing, declaring that originality of ideas is not required of a judge writing
decisions and resolving conflicts because he is bound by the doctrine of
stare decisis – the legal principle of determining points in litigation
according to precedents.
The Report likewise declared that the foreign authors, whose works were
claimed to have been plagiarized, were not themselves the originators of
the ideas cited in the Vinuya Decision. While the Vinuya Decision did not
mention their names, it did attribute the passages to the original authors
from whom these foreign authors borrowed the ideas. There was, thus,
no intent on the part of Justice del Castillo to appropriate the ideas or to
claim that these ideas originated from him; in short, he did not pass them
off as his own.
Justice Antonio T. Carpio dissented from the Report, based on two
grounds:
a. the Court has no jurisdiction over the administrative case as it involves
a sitting Supreme Court Justice, for alleged misconduct committed in
office; and
b. the judge, when writing judicial decisions, must comply with the law on
copyright and respect the moral right of the author to have the work
copied attributed to him.
My Position
I fully support the conclusions of the Ethics Committee. I likewise take
exception to Justice Carpio’s Dissenting Opinion, specifically on his
position that the Court has no jurisdiction to discipline its Members as the
only means to discipline them is through impeachment proceedings that
the Congress has the sole prerogative to undertake. Impeachment, he
declares, functions as the equivalent of administrative disciplinary
proceedings. Since the Congress is given the exclusive power to
initiate,6 try, and decide7 all cases of impeachment, Justice Carpio posits
that the Congress serves as the exclusive disciplining authority over all
impeachable officers. He warns that for the Supreme Court to hear the
present administrative disciplinary case would be to usurp this exclusive
power of Congress.
Jurisdiction of the Supreme Court to Discipline its Members
A given in the discipline of Members of the Supreme Court is that they
can only be "removed from office" through impeachment, as provided
under Article XI of the Constitution, on the specified grounds of culpable
violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of the public trust. The purpose of impeachment
and the constitutional interest sought is to protect the people and the
State from official delinquencies and other malfeasances. 8 The
Constitution, however, is not a single-purpose document that focuses on
one interest alone to the exclusion of related interests; impeachment was
never intended by the Constitution to be the totality of the administrative
actions or remedies that the public or the Court may take against an
erring Justice of the Court. Other related constitutional interests exist
touching on other facets of the Judiciary and public accountability. They
are, by themselves, equally compelling and demanding of recognition.
Among the compelling interests that the Constitution zealously guards is
judicial independence because it is basic to the meaning and purposes of
the Judiciary. This interest permeates the provisions of Article VIII of the
Constitution.9
Another interest to consider is the need for judicial integrity – a term not
expressly mentioned in the Article on the Judiciary (Article VIII), but is a
basic concept found in Article XI (on Accountability of Public Officers) of
the Constitution. It is important as this constitutional interest underlies the
independent and responsible Judiciary that Article VIII establishes and
protects. To be exact, it complements judicial independence as integrity
and independence affect and support one another; only a Judiciary with
integrity can be a truly independent Judiciary. Judicial integrity, too,
directly relates to public trust and accountability that the Constitution
seeks in the strongest terms. The same Article XI contains the
impeachment provisions that provide for the removal of Justices of the
Supreme Court. Notably, a common thread that runs through all the
grounds for impeachment is the lack of integrity of the official impeached
on these grounds.
Still another unavoidable consideration on impeachment and its limited
grounds is that it cannot, by itself, suffice to protect the people and foster
the public accountability that the Constitution speaks of. While it is a
powerful weapon in the arsenal of public accountability and integrity, it is
not a complete weapon that can address and fully achieve its protective
purposes. As discussed more fully below, not all complaints and
grievances can be subsumed under the defined constitutional grounds for
impeachment. Members of the Court can commit other offenses not
covered by the impeachable offenses, for which other offenses they
should equally be held accountable. These other offenses must of course
be administratively addressed elsewhere if they cannot be similarly
addressed through impeachment; the people will not accept an
interpretation that these are offenses that fell through the constitutional
cracks and can no longer be administratively addressed.
These considerations, taken together, dictate against the position of
Justice Carpio that the Congress alone, through impeachment and to the
exclusion of this Court, can proceed against the Members of the Court.
Protection of Judicial Integrity
For the purpose of preserving judicial integrity, the Supreme Court has as
much (and in fact, should have more) interest as the public or as any
other branch of the government in overseeing the conduct of members of
the Judiciary, including its own Members. This is precisely the reason for
the Judiciary’s Code of Judicial Conduct and the lawyers’ Code of
Professional Responsibility. Judicial integrity is not only a necessary
element in the orderly and efficient administration of justice; it is almost
literally the lifeblood of the Judiciary. A Judiciary, dissociated from
integrity and the public trust that integrity brings, loses its rightful place in
the constitutional democratic scheme that puts a premium on a reliable
and respected third branch of government that would balance the powers
of the other two branches.
To ensure the maintenance and enhancement of judicial integrity, the
Constitution has given the Judiciary, mainly through the Supreme Court,
a variety of powers. These powers necessarily begin with the power to
admit and to discipline members of the bar 10 who are officers of the
courts and who have the broadest frontline interaction with the courts and
with the public. Courts in general have the power to cite for
contempt11 that proceeds, not only from the need to maintain orderly
procedures, but also from the need to protect judicial integrity in the
course of the courts’ exercise of judicial power. The Supreme Court has
the power to discipline and remove judges of lower courts. 12 In this role,
the Court hears administrative disciplinary cases against lower court
judges for purposes of redress against erring judges and, more
importantly, to "[preserve] the integrity of the judicial system and public
confidence in the system and x x x [to safeguard] the bench and the
public from those who are unfit."13
As concrete legal basis, the Supreme Court is expressly granted the
general power of administrative supervision over all courts and the
personnel thereof.14 By its plain terms, the power extends not only to the
authority to supervise and discipline lower court judges but to exercise
the same powers over the Members of the Court itself. This is the
unavoidable meaning of this grant of authority if its main rationale – i.e.,
to preserve judicial integrity – is to be given full effect. The Supreme
Court must ensure that the integrity of the whole Judiciary, its own
Members included, is maintained as any taint on any part of the Judiciary
necessarily taints the whole. To state the obvious, a taint in or
misconduct by any Member of the Supreme Court – even if only
whispered about for lack of concrete evidence and patriotic
whistleblowers – carries greater adverse impact than a similar event
elsewhere in the Judiciary.
Independent of the grant of supervisory authority and at a more basic
level, the Supreme Court cannot be expected to play its role in the
constitutional democratic scheme solely on the basis of the Constitution’s
express grant of powers. Implied in these grants are the inherent powers
that every entity endowed with life (even artificial life) and burdened with
responsibilities can and must exercise if it is to survive. The Court cannot
but have the right to defend itself to ensure that its integrity and that of
the Judiciary it oversees are kept intact. This is particularly true when its
integrity is attacked or placed at risk by its very own Members – a
situation that is not unknown in the history of the Court. To be sure,
judicial integrity cannot be achieved if the Court can police the ranks of
the lower court judges but not its own ranks. From this perspective view,
it is unthinkable that the Supreme Court can only watch helplessly – for
the reason that the power to act is granted only to Congress under the
terms of the Constitution – as its own Members prostitute its integrity as
an institution.
Impeachment Grounds are Limited
That an impeachment partakes of the nature of an administrative
disciplinary proceeding confined to the defined and limited grounds of
"culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, and betrayal of public trust"15 cannot be
disputed. However, it cannot likewise be disputed that these grounds, as
defined, refer only to those serious "offenses that strike at the very heart
of the life of the nation."16 Thus, for "betrayal of public trust" to be a
ground for impeachment, the "manner of commission must be of the
same severity as ‘treason’ and ‘bribery.’"17 With respect to members of
the High Court, impeachment is considered "as a response to serious
misuse of judicial power"18 no less equivalent to treason or bribery.
Directly implied from these established impeachment principles is that
"removal from office (the imposable penalty upon impeachment and
conviction) is not the price exacted for every incident of judicial
misconduct."19 Otherwise stated, that impeachment administratively
addresses only serious offenses committed by impeachable officers
cannot imply that the Constitution condones misdemeanors and
misconduct that are not of equal gravity.
For, side by side with the constitutional provision on impeachment is the
constitutional policy that "public office is a public trust" and that "public
officers and employees must, at all times, be accountable to the
people."20 Even impeachable officials, despite the nature and level of their
positions, must be administratively accountable for misconduct and
misdemeanors that are of lesser gravity than the defined impeachable
offenses. Only this approach and reconciled reading with the provision on
impeachment can give full effect to the constitutional policy of
accountability. If this were not the case, then the public would be left with
no effective administrative recourse against Supreme Court Justices
committing less than grave misconduct. One American writer, Brent D.
Ward, writes on this point that:
It would be a serious weakness in our system to place systematic judicial
misconduct beyond the reach of any remedy save impeachment. There
are limits beyond which no person – even a federal judge – should be
allowed to go with impunity. The courts themselves have the power and
the duty to curtail the effect of repeated contrary and erratic actions of a
judge that occur too frequently to permit effective appellate supervision in
the run of cases.
xxxx
[The] Constitution does x x x shield [judges] from corrective action by
other judges designed to ensure that the law is effectively administered.
The appellate courts have the power to prevent action so obviously
improper as to place it beyond established rules of law. 21
Adverse Effects of Expansive View of Impeachment Grounds
If impeachment were to be the only administrative proceeding to hold
Justices of this Court accountable, then the grounds for impeachment
may arguably carry a definition beyond the traditionally grave or serious
character these offenses have always carried. An expanded definition,
however, is no different from the remedy of burning a house to kill a rat.
While such definition in the long run may kill more rats or assuredly do
away with a particularly obnoxious rat, it will at the same time threaten
and adversely affect a more valuable constitutional interest – the
independence of the Judiciary that allows magistrates to conscientiously
undertake their duties, guided only by the dictates of the Constitution and
the rule of law.
It needs no elaborate demonstration to show that the threat of
impeachment for every perceived misconduct or misdemeanor would
open Justices of the Court to harrassment. A naughty effect – if
administrative redress can only be secured from Congress to the
exclusion of this Court under an expanded definition of impeachment
grounds – is to encourage every litigant with a perceived grievance
against a Justice of this Court to run to his congressman for the filing of
an impeachment complaint.
Undoubtedly, this kind of scenario will be a continuing threat to judges
and justices, with consequential adverse effects on the Judiciary, on
inter-branch relationship, and on the respect the public may give the
Judiciary, the Legislature, and even of the government itself. Worse, this
kind of scenario may ultimately trivialize the impeachment process and is
thus best avoided.
An expansive interpretation of the grounds for impeachment must also
affect Congress which acts on impeachment complaints but whose main
task under our structure of government is to legislate, not to police the
Supreme Court and other impeachable officers. To say the least, a
deluge of impeachment complaints may prove to be impractical for
Congress because impeachment is both an arduous and a time
consumming process that will surely divert congressional time and other
resources from the principal function of lawmaking.
The US Practice
In the United States (US) federal courts, "the impeachment process has
not been the only check on federal judges [who are removable through
impeachment] who may have abused their independence, or the only
assurance of their accountability."22 The US National Commission on
Judicial Discipline and Removal has posited that there must be "a power
in the judiciary to deal with certain kinds of misconduct [as this will
further] both the smooth functioning of the judicial branch and the broad
goal judicial independence."
Along this line, the US Congress created a system enforcing an internal
judicial self-discipline through the judicial councils under their Judicial
Councils Reform and Judicial Conduct and Disability Act of 1980 (the US
1980 Act). The judicial council (composed of the federal judges within a
specific judicial circuit) is considered as a "formal and credible
supplement to the impeachment process for resolving complaint of
misconduct or disability against federal judges."23The judicial council of a
federal circuit, through the chief judge, is authorized to receive and to act
on complaints about the conduct of judges who are removable only
through impeachment. If there is merit to a complaint, the judicial council
can "take appropriate action, which may include censure, reprimand,
temporary suspension, and transfer of cases, but not removal from office.
If the judicial council believes that it has uncovered grounds for
impeachment, the council is empowered to report its findings to the
Judicial Conference of the United States, which after an investigation,
may report its findings to the House of Representatives."24
Arguably, the existence of a judicial council as an additional or
supplemental check on US federal judges is statutory and no equivalent
statute has been enacted in our jurisdiction specifically establishing in our
Supreme Court a system of internal judicial self-discipline. This argument,
however, loses sight of the constitutional authority of our Supreme Court
to govern the conduct of its members under its power of general
administrative supervision over all courts – a power that the Philippine
Constitution expressly grants to our Supreme Court to the exclusion of
remedies outside of the Judiciary except only for impeachment.
Interestingly, even in the US, the view has been taken that the enactment
of a statute conferring disciplinary power to the Court over its own
members may be unnecessary as the Supreme Court itself may assume
this power. This is implied from the following recommendation of the US
National Commission on Judicial Discipline and Removal which states:
[I]t may be in the [US Supreme] Court’s best interest, as contributing to
the public’s perception of accountability, to devise and adopt some type
of formal procedure for the receipt and disposition of conduct and
disability complaints.
The Commission recommends that the Supreme Court may wish to
consider the adoption of policies and procedures for the filing and
disposition fo complaints alleging misconduct against Justices of the
Supreme Court.25
Note should be taken in these regards that the Philippine Supreme Court
has already put in place various Codes governing ethical rules for the bar
and for the Judiciary. The Code of Judicial Conduct applies to all
members of the Judiciary, including the Members of the Supreme Court.
The Code of Professional Responsibility applies to all lawyers, thus,
necessarily to Members of the Court for whom membership in the bar is
an essential qualification. The Court as well has codified the Internal
Rules of the Supreme Court. A Rule on Whistleblowing is presently under
consideration by the Court en banc.
What is crucial in the establishment of the judicial council system in the
US is the implication that no inherent incompatibility exists between the
existence of Congress’ power to impeach and the Supreme Court’s
power to discipline its own members; the two powers can co-exist and, in
fact, even supplement each other. The constitutionality of recognizing
disciplinary power in the courts over their own impeachable members (as
provided in the US 1980 Act), vis-à-vis the Congress’ power to remove
the same officials by impeachment, has been addressed before the US
Court of Appeals in the case of McBryde v. Commission to Review Circuit
Council Conduct and Disability Orders of the Judicial Conference of the
US26:
Judge McBryde frames his separation of powers claim as whether the
Constitution "allocates the power to discipline federal judges and, if so, to
which branches of government." Finding that it allocates the power to
Congress in the form of impeachment, he concludes that it excludes all
other forms of discipline. But Judge McBryde's attempt to fudge the
distinction between impeachment and discipline doesn't work. The
Constitution limits judgments for impeachment to removal from office and
disqualification to hold office. It makes no mention of discipline generally.
The Supreme Court recently observed that it accepted the proposition
that "[w]hen a statute limits a thing to be done in a particular mode, it
includes a negative of any other mode." But application of the maxim
depends on the "thing to be done." Here the thing to be done by
impeachment is removal and disqualification, not "discipline" of any sort.
Thus, when the conduct of a member of the Supreme Court is improper
but is not of such gravity to be considered as an impeachable offense,
the Court – to protect its integrity – may address the misconduct through
an administrative disciplinary case against the erring member.
Conclusion: Court can hear the case against Justice del Castillo as an
Administrative Matter
What the impeachment provisions of the Constitution guarantee is simply
the right to be removed from office only through the process of
impeachment and not by any other means; it does not preclude the
imposition of disciplinary sanctions short of removal on the impeachable
official. Impeachment is the sole means of removal, but it is certainly not
the sole means of disciplining Members of the Supreme Court or, for that
matter, public officials removable by impeachment.
Accordingly, I believe that the Court has the authority to hear the present
administrative disciplinary case against Associate Justice Mariano del
Castillo; in case of a finding of misconduct, it can impose penalties that
are not the functional equivalent of removal or dismissal from service. If,
in the exercise of its prerogative as interpreter of the Constitution, it
determines that an act complained of falls within the defined grounds for
impeachment, then the Court should say so and forthwith forward its
recommendations to Congress as the body constitutionally mandated to
act in impeachment cases.
Court’s Interpretation of Plagiarism - limited to its Concept as an Ethical
violation of Members of the Judiciary.
The dissatisfaction with the Court’s October 12, 2010 Decision (resolving
the plagiarism charge against Justice del Castillo or the "plagiarism
Decision") primarily lies with the Court’s declaration that malicious intent
is a necessary element in committing plagiarism. In the plagiarism
Decision, the Court said:
[P]lagiarism presupposes intent and a deliberate, conscious effort to steal
another’s work and pass it off as one’s own.
Why we deemed malicious intent as a necessary element for judicial
plagiarism can be explained by our repeated pronouncement that:
not every error or mistake committed by judges in the performance of
their official duties renders them administratively liable. In the absence of
fraud, dishonesty or deliberate intent to do an injustice, acts done in their
official capacity, even though erroneous, do not always constitute
misconduct.
Only errors that are tainted with fraud, corruption or malice may be the
subject of disciplinary action. For administrative liability to attach,
respondent must be shown to have been moved by bad faith, dishonesty,
hatred or some other motive. Indeed, judges may not be held
administratively liable for any of their official acts, no matter how
erroneous, as long as they acted in good faith. 27
The term plagiarism does not have a precise statutory definition as it is
not a matter covered by present Philippine statutes.28 What the
Intellectual Property Code (Republic Act 8283) 29 defines and punishes is
"copyright infringement." However, these terms are not legally
interchangeable. Laurie Stearns, copyright lawyer and author of the
article "Copy Wrong: Plagiarism, Process, Property, and the Law" aptly
observes the distinctions between the two in this wise:
Plagiarism is not necessarily copyright infringement, nor is copyright
infringement necessarily plagiarism. The two concepts diverge with
respect to three main aspects of the offense: copying, attribution and
intent. In some ways the concept of plagiarism broader than infringement,
in that it can include the copying of ideas or of expression not protected
by copyright, that would not constitute infringement and it can include
copying of small amounts of material that would be disregarded under
copyright law. In other ways the concept of infringement is broader, in
that it can include both properly attributed copying and unintentional
copying that would be excused from being called plagiarism.
The divergence between plagiarism’s popular definition and copyright’s
statutory framework suggests an essential contradiction between what is
at stake in plagiarism – the creative process – and what is at stake in
copyright infringement – the creative result.30
Separately from these distinctions, the matter before the Court is Justice
del Castillo’s alleged plagiarism or failure to make attributions as an
ethical violation, not a copyright violation under the Intellectual Property
Code. Given these distinctions, I see no reason to quibble over the
definition of plagiarism – a term that, in the absence of any statutory
limitation, the Court can define and interpret for purposes of its
administrative authority over all courts and the personnel thereof.
From the point of view of ethical rules, what are important are the intent
in undertaking an act and the concepts of integrity, propriety, honesty and
impartiality for purposes of dispensing justice by an independent
Judiciary. It is in this sense, and in light of the nature of the present case
as an administrative disciplinary charge against a Member of this Court,
that the pronouncement of this Court on plagiarism and on the merits of
the ethical charge should be understood.
In this light, I find it misplaced for Justice Sereno to describe the Court’s
Decision as:
[creating] 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.
xxxx
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.31
When the Supreme Court acts on complaints against judges under its
supervision and control, it acts as an administrator imposing discipline
and not as a court passing upon justiciable controversies. 32 It is precisely
for this reason that disciplinary cases are docketed as "Administrative
Matters" or "A.M."33 Hence, any interpretation by the Court of "plagiarism"
is limited to this context and cannot be held to bind the academe in
undertaking its educational functions, particularly its own power to define
plagiarism in the educational context. It likewise cannot bind Congress in
its role as the sole authority to determine what constitutes an
impeachable offense, subject to what I stated above on the established
scope of impeachable offenses and the power of the Court to act in grave
abuse of discretion situations under the Constitution. Specifically, a
finding by this Court that plagiarism was or was not committed cannot
preclude Congress from determining whether the failure or omission to
make an attribution, intentionally or unintentionally, amounts to a
"betrayal of public trust."
For these reasons, I support the conclusion of the Ethics and Ethical
Standards Committee that Justice Mariano C. del Castillo’s attribution
lapses did not involve any ethical violation. I vote for the approval of the
Committee’s Report and for the denial of the petitioners’ Motion for
Reconsideration.
ARTURO D. BRION
Associate Justice
 SEPARATE CONCURRING OPINION
BRION, J.:
Background Facts
The present administrative disciplinary case against Supreme Court
Associate Justice Mariano C. del Castillo stemmed from the decision he
penned for the Court in G.R. No. 162230, entitled Isabelita C. Vinuya, et
al. v. Executive Secretary. The Vinuya Decision was promulgated on April
28, 2010 with 13 justices of this Court concurring with the ruling to
dismiss the case.
On July 19, 2010, Attys. Harry Roque and Rommel Bagares, counsels for
petitioners Vinuya, et al., filed a Supplemental Motion for Reconsideration
raising, among others, the plagiarism allegedly committed by Justice del
Castillo for using the works of three foreign legal authors in his ponencia.
They alleged that the use was without proper attribution and that Justice
del Castillo twisted the foreign authors’ works to support the Decision.
They considered it "highly improper for x x x the Court x x x to wholly lift,
without proper attribution, from at least three sources – an article
published in 2009 in the Yale Law Journal of International Law,1 a book
published by the Cambridge University Press in 2005,2 and an article
published in the Case Western Reserve Journal of International Law 3 –
and to make it appear that these sources support the assailed
Judgment’s arguments for dismissing [their] petition[,] when in truth, the
plagiarized sources even make a strong case for the Petition’s claims[.]" 4
In reply to the accusation, Justice del Castillo wrote and circulated a letter
dated July 22, 2010 to the members of this Court. On July 27, 2010, the
Court decided to refer the letter to the Ethics and Ethical Standards
Committee (the "Ethics Committee" or "committee") which docketed it as
an administrative matter. The committee required Attys. Roque and
Bagares to comment on Justice del Castillo’s letter, after which it heard
the parties. After the parties’ memoranda, the committee submitted its
findings and recommendations to the Court.
The Court’s Decision on the Plagiarism Charge against Justice del
Castillo
In a Decision dated October 12, 2010, the Court resolved to dismiss the
plagiarism charges against Justice del Castillo. It recognized that indeed
certain passages of the foreign legal article were lifted and used in the
Vinuya Decision and that "no attributions were made to the x x x authors
in [its] footnotes."5 However, the Court concluded that the failure to
attribute did not amount to plagiarism because no malicious intent
attended the failure; the attributions (present in Justice del Castillo’s
original drafts) were simply accidentally deleted in the course of the
drafting process. Malicious intent was deemed an essential element, as
"plagiarism is essentially a form of fraud where intent to deceive is
inherent." Citing Black’s Law Dictionary’s definition of plagiarism – the
deliberate and knowing presentation of another person’s original ideas or
creative expressions as one’s own – the Court declared that "plagiarism
presupposes intent and a deliberate, conscious effort to steal another’s
work and pass it off as one’s own." In fact, the Court found that by citing
the foreign author’s original sources, Justice del Castillo never created
the impression that he was the original author of the passages claimed to
have been lifted from the foreign law articles:
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.
As to the charge that Justice del Castillo twisted the meaning of the
works of the foreign authors, the Court ruled that it was impossible for
him to have done so because:
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.
The Court, thus, declared that "only errors [of judges] tainted with fraud,
corruption, or malice are subject of disciplinary action" and these were
not present in Justice del Castillo’s case; the failure was not attended by
any malicious intent not to attribute the lifted passages to the foreign
authors.
Justice Maria Lourdes P. A. Sereno dissented from the Court’s October
12, 2010 Decision based mainly on her disagreement with the majority’s
declaration that malicious intent is required for a charge of plagiarism to
prosper.
On November 15, 2010, Attys. Roque and Bagares filed a motion for
reconsideration of the Court’s October 12, 2010 Decision. This motion
was the subject of the Report/Resolution submitted to the Court for
consideration. Incidentally, the same counsels filed an impeachment
complaint for betrayal of public trust against Justice del Castillo with the
House of Representatives on December 14, 2010.
The Court’s Action on the
Motion for Reconsideration
The Court referred the motion for reconsideration to the Ethics
Committee and its Report recommended the dismissal of the motion for
reconsideration. The Report differentiated academic writing from judicial
writing, declaring that originality of ideas is not required of a judge writing
decisions and resolving conflicts because he is bound by the doctrine of
stare decisis – the legal principle of determining points in litigation
according to precedents.
The Report likewise declared that the foreign authors, whose works were
claimed to have been plagiarized, were not themselves the originators of
the ideas cited in the Vinuya Decision. While the Vinuya Decision did not
mention their names, it did attribute the passages to the original authors
from whom these foreign authors borrowed the ideas. There was, thus,
no intent on the part of Justice del Castillo to appropriate the ideas or to
claim that these ideas originated from him; in short, he did not pass them
off as his own.
Justice Antonio T. Carpio dissented from the Report, based on two
grounds:
a. the Court has no jurisdiction over the administrative case as it involves
a sitting Supreme Court Justice, for alleged misconduct committed in
office; and
b. the judge, when writing judicial decisions, must comply with the law on
copyright and respect the moral right of the author to have the work
copied attributed to him.
My Position
I fully support the conclusions of the Ethics Committee. I likewise take
exception to Justice Carpio’s Dissenting Opinion, specifically on his
position that the Court has no jurisdiction to discipline its Members as the
only means to discipline them is through impeachment proceedings that
the Congress has the sole prerogative to undertake. Impeachment, he
declares, functions as the equivalent of administrative disciplinary
proceedings. Since the Congress is given the exclusive power to
initiate,6 try, and decide7 all cases of impeachment, Justice Carpio posits
that the Congress serves as the exclusive disciplining authority over all
impeachable officers. He warns that for the Supreme Court to hear the
present administrative disciplinary case would be to usurp this exclusive
power of Congress.
Jurisdiction of the Supreme Court to Discipline its Members
A given in the discipline of Members of the Supreme Court is that they
can only be "removed from office" through impeachment, as provided
under Article XI of the Constitution, on the specified grounds of culpable
violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of the public trust. The purpose of impeachment
and the constitutional interest sought is to protect the people and the
State from official delinquencies and other malfeasances. 8 The
Constitution, however, is not a single-purpose document that focuses on
one interest alone to the exclusion of related interests; impeachment was
never intended by the Constitution to be the totality of the administrative
actions or remedies that the public or the Court may take against an
erring Justice of the Court. Other related constitutional interests exist
touching on other facets of the Judiciary and public accountability. They
are, by themselves, equally compelling and demanding of recognition.
Among the compelling interests that the Constitution zealously guards is
judicial independence because it is basic to the meaning and purposes of
the Judiciary. This interest permeates the provisions of Article VIII of the
Constitution.9
Another interest to consider is the need for judicial integrity – a term not
expressly mentioned in the Article on the Judiciary (Article VIII), but is a
basic concept found in Article XI (on Accountability of Public Officers) of
the Constitution. It is important as this constitutional interest underlies the
independent and responsible Judiciary that Article VIII establishes and
protects. To be exact, it complements judicial independence as integrity
and independence affect and support one another; only a Judiciary with
integrity can be a truly independent Judiciary. Judicial integrity, too,
directly relates to public trust and accountability that the Constitution
seeks in the strongest terms. The same Article XI contains the
impeachment provisions that provide for the removal of Justices of the
Supreme Court. Notably, a common thread that runs through all the
grounds for impeachment is the lack of integrity of the official impeached
on these grounds.
Still another unavoidable consideration on impeachment and its limited
grounds is that it cannot, by itself, suffice to protect the people and foster
the public accountability that the Constitution speaks of. While it is a
powerful weapon in the arsenal of public accountability and integrity, it is
not a complete weapon that can address and fully achieve its protective
purposes. As discussed more fully below, not all complaints and
grievances can be subsumed under the defined constitutional grounds for
impeachment. Members of the Court can commit other offenses not
covered by the impeachable offenses, for which other offenses they
should equally be held accountable. These other offenses must of course
be administratively addressed elsewhere if they cannot be similarly
addressed through impeachment; the people will not accept an
interpretation that these are offenses that fell through the constitutional
cracks and can no longer be administratively addressed.
These considerations, taken together, dictate against the position of
Justice Carpio that the Congress alone, through impeachment and to the
exclusion of this Court, can proceed against the Members of the Court.
Protection of Judicial Integrity
For the purpose of preserving judicial integrity, the Supreme Court has as
much (and in fact, should have more) interest as the public or as any
other branch of the government in overseeing the conduct of members of
the Judiciary, including its own Members. This is precisely the reason for
the Judiciary’s Code of Judicial Conduct and the lawyers’ Code of
Professional Responsibility. Judicial integrity is not only a necessary
element in the orderly and efficient administration of justice; it is almost
literally the lifeblood of the Judiciary. A Judiciary, dissociated from
integrity and the public trust that integrity brings, loses its rightful place in
the constitutional democratic scheme that puts a premium on a reliable
and respected third branch of government that would balance the powers
of the other two branches.
To ensure the maintenance and enhancement of judicial integrity, the
Constitution has given the Judiciary, mainly through the Supreme Court,
a variety of powers. These powers necessarily begin with the power to
admit and to discipline members of the bar 10 who are officers of the
courts and who have the broadest frontline interaction with the courts and
with the public. Courts in general have the power to cite for
contempt11 that proceeds, not only from the need to maintain orderly
procedures, but also from the need to protect judicial integrity in the
course of the courts’ exercise of judicial power. The Supreme Court has
the power to discipline and remove judges of lower courts. 12 In this role,
the Court hears administrative disciplinary cases against lower court
judges for purposes of redress against erring judges and, more
importantly, to "[preserve] the integrity of the judicial system and public
confidence in the system and x x x [to safeguard] the bench and the
public from those who are unfit."13
As concrete legal basis, the Supreme Court is expressly granted the
general power of administrative supervision over all courts and the
personnel thereof.14 By its plain terms, the power extends not only to the
authority to supervise and discipline lower court judges but to exercise
the same powers over the Members of the Court itself. This is the
unavoidable meaning of this grant of authority if its main rationale – i.e.,
to preserve judicial integrity – is to be given full effect. The Supreme
Court must ensure that the integrity of the whole Judiciary, its own
Members included, is maintained as any taint on any part of the Judiciary
necessarily taints the whole. To state the obvious, a taint in or
misconduct by any Member of the Supreme Court – even if only
whispered about for lack of concrete evidence and patriotic
whistleblowers – carries greater adverse impact than a similar event
elsewhere in the Judiciary.
Independent of the grant of supervisory authority and at a more basic
level, the Supreme Court cannot be expected to play its role in the
constitutional democratic scheme solely on the basis of the Constitution’s
express grant of powers. Implied in these grants are the inherent powers
that every entity endowed with life (even artificial life) and burdened with
responsibilities can and must exercise if it is to survive. The Court cannot
but have the right to defend itself to ensure that its integrity and that of
the Judiciary it oversees are kept intact. This is particularly true when its
integrity is attacked or placed at risk by its very own Members – a
situation that is not unknown in the history of the Court. To be sure,
judicial integrity cannot be achieved if the Court can police the ranks of
the lower court judges but not its own ranks. From this perspective view,
it is unthinkable that the Supreme Court can only watch helplessly – for
the reason that the power to act is granted only to Congress under the
terms of the Constitution – as its own Members prostitute its integrity as
an institution.
Impeachment Grounds are Limited
That an impeachment partakes of the nature of an administrative
disciplinary proceeding confined to the defined and limited grounds of
"culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, and betrayal of public trust" 15 cannot be
disputed. However, it cannot likewise be disputed that these grounds, as
defined, refer only to those serious "offenses that strike at the very heart
of the life of the nation."16 Thus, for "betrayal of public trust" to be a
ground for impeachment, the "manner of commission must be of the
same severity as ‘treason’ and ‘bribery.’"17 With respect to members of
the High Court, impeachment is considered "as a response to serious
misuse of judicial power"18 no less equivalent to treason or bribery.
Directly implied from these established impeachment principles is that
"removal from office (the imposable penalty upon impeachment and
conviction) is not the price exacted for every incident of judicial
misconduct."19 Otherwise stated, that impeachment administratively
addresses only serious offenses committed by impeachable officers
cannot imply that the Constitution condones misdemeanors and
misconduct that are not of equal gravity.
For, side by side with the constitutional provision on impeachment is the
constitutional policy that "public office is a public trust" and that "public
officers and employees must, at all times, be accountable to the
people."20 Even impeachable officials, despite the nature and level of their
positions, must be administratively accountable for misconduct and
misdemeanors that are of lesser gravity than the defined impeachable
offenses. Only this approach and reconciled reading with the provision on
impeachment can give full effect to the constitutional policy of
accountability. If this were not the case, then the public would be left with
no effective administrative recourse against Supreme Court Justices
committing less than grave misconduct. One American writer, Brent D.
Ward, writes on this point that:
It would be a serious weakness in our system to place systematic judicial
misconduct beyond the reach of any remedy save impeachment. There
are limits beyond which no person – even a federal judge – should be
allowed to go with impunity. The courts themselves have the power and
the duty to curtail the effect of repeated contrary and erratic actions of a
judge that occur too frequently to permit effective appellate supervision in
the run of cases.
xxxx
[The] Constitution does x x x shield [judges] from corrective action by
other judges designed to ensure that the law is effectively administered.
The appellate courts have the power to prevent action so obviously
improper as to place it beyond established rules of law. 21
Adverse Effects of Expansive View of Impeachment Grounds
If impeachment were to be the only administrative proceeding to hold
Justices of this Court accountable, then the grounds for impeachment
may arguably carry a definition beyond the traditionally grave or serious
character these offenses have always carried. An expanded definition,
however, is no different from the remedy of burning a house to kill a rat.
While such definition in the long run may kill more rats or assuredly do
away with a particularly obnoxious rat, it will at the same time threaten
and adversely affect a more valuable constitutional interest – the
independence of the Judiciary that allows magistrates to conscientiously
undertake their duties, guided only by the dictates of the Constitution and
the rule of law.
It needs no elaborate demonstration to show that the threat of
impeachment for every perceived misconduct or misdemeanor would
open Justices of the Court to harrassment. A naughty effect – if
administrative redress can only be secured from Congress to the
exclusion of this Court under an expanded definition of impeachment
grounds – is to encourage every litigant with a perceived grievance
against a Justice of this Court to run to his congressman for the filing of
an impeachment complaint.
Undoubtedly, this kind of scenario will be a continuing threat to judges
and justices, with consequential adverse effects on the Judiciary, on
inter-branch relationship, and on the respect the public may give the
Judiciary, the Legislature, and even of the government itself. Worse, this
kind of scenario may ultimately trivialize the impeachment process and is
thus best avoided.
An expansive interpretation of the grounds for impeachment must also
affect Congress which acts on impeachment complaints but whose main
task under our structure of government is to legislate, not to police the
Supreme Court and other impeachable officers. To say the least, a
deluge of impeachment complaints may prove to be impractical for
Congress because impeachment is both an arduous and a time
consumming process that will surely divert congressional time and other
resources from the principal function of lawmaking.
The US Practice
In the United States (US) federal courts, "the impeachment process has
not been the only check on federal judges [who are removable through
impeachment] who may have abused their independence, or the only
assurance of their accountability."22 The US National Commission on
Judicial Discipline and Removal has posited that there must be "a power
in the judiciary to deal with certain kinds of misconduct [as this will
further] both the smooth functioning of the judicial branch and the broad
goal judicial independence."
Along this line, the US Congress created a system enforcing an internal
judicial self-discipline through the judicial councils under their Judicial
Councils Reform and Judicial Conduct and Disability Act of 1980 (the US
1980 Act). The judicial council (composed of the federal judges within a
specific judicial circuit) is considered as a "formal and credible
supplement to the impeachment process for resolving complaint of
misconduct or disability against federal judges."23The judicial council of a
federal circuit, through the chief judge, is authorized to receive and to act
on complaints about the conduct of judges who are removable only
through impeachment. If there is merit to a complaint, the judicial council
can "take appropriate action, which may include censure, reprimand,
temporary suspension, and transfer of cases, but not removal from office.
If the judicial council believes that it has uncovered grounds for
impeachment, the council is empowered to report its findings to the
Judicial Conference of the United States, which after an investigation,
may report its findings to the House of Representatives."24
Arguably, the existence of a judicial council as an additional or
supplemental check on US federal judges is statutory and no equivalent
statute has been enacted in our jurisdiction specifically establishing in our
Supreme Court a system of internal judicial self-discipline. This argument,
however, loses sight of the constitutional authority of our Supreme Court
to govern the conduct of its members under its power of general
administrative supervision over all courts – a power that the Philippine
Constitution expressly grants to our Supreme Court to the exclusion of
remedies outside of the Judiciary except only for impeachment.
Interestingly, even in the US, the view has been taken that the enactment
of a statute conferring disciplinary power to the Court over its own
members may be unnecessary as the Supreme Court itself may assume
this power. This is implied from the following recommendation of the US
National Commission on Judicial Discipline and Removal which states:
[I]t may be in the [US Supreme] Court’s best interest, as contributing to
the public’s perception of accountability, to devise and adopt some type
of formal procedure for the receipt and disposition of conduct and
disability complaints.
The Commission recommends that the Supreme Court may wish to
consider the adoption of policies and procedures for the filing and
disposition fo complaints alleging misconduct against Justices of the
Supreme Court.25
Note should be taken in these regards that the Philippine Supreme Court
has already put in place various Codes governing ethical rules for the bar
and for the Judiciary. The Code of Judicial Conduct applies to all
members of the Judiciary, including the Members of the Supreme Court.
The Code of Professional Responsibility applies to all lawyers, thus,
necessarily to Members of the Court for whom membership in the bar is
an essential qualification. The Court as well has codified the Internal
Rules of the Supreme Court. A Rule on Whistleblowing is presently under
consideration by the Court en banc.
What is crucial in the establishment of the judicial council system in the
US is the implication that no inherent incompatibility exists between the
existence of Congress’ power to impeach and the Supreme Court’s
power to discipline its own members; the two powers can co-exist and, in
fact, even supplement each other. The constitutionality of recognizing
disciplinary power in the courts over their own impeachable members (as
provided in the US 1980 Act), vis-à-vis the Congress’ power to remove
the same officials by impeachment, has been addressed before the US
Court of Appeals in the case of McBryde v. Commission to Review Circuit
Council Conduct and Disability Orders of the Judicial Conference of the
US26:
Judge McBryde frames his separation of powers claim as whether the
Constitution "allocates the power to discipline federal judges and, if so, to
which branches of government." Finding that it allocates the power to
Congress in the form of impeachment, he concludes that it excludes all
other forms of discipline. But Judge McBryde's attempt to fudge the
distinction between impeachment and discipline doesn't work. The
Constitution limits judgments for impeachment to removal from office and
disqualification to hold office. It makes no mention of discipline generally.
The Supreme Court recently observed that it accepted the proposition
that "[w]hen a statute limits a thing to be done in a particular mode, it
includes a negative of any other mode." But application of the maxim
depends on the "thing to be done." Here the thing to be done by
impeachment is removal and disqualification, not "discipline" of any sort.
Thus, when the conduct of a member of the Supreme Court is improper
but is not of such gravity to be considered as an impeachable offense,
the Court – to protect its integrity – may address the misconduct through
an administrative disciplinary case against the erring member.
Conclusion: Court can hear the case against Justice del Castillo as an
Administrative Matter
What the impeachment provisions of the Constitution guarantee is simply
the right to be removed from office only through the process of
impeachment and not by any other means; it does not preclude the
imposition of disciplinary sanctions short of removal on the impeachable
official. Impeachment is the sole means of removal, but it is certainly not
the sole means of disciplining Members of the Supreme Court or, for that
matter, public officials removable by impeachment.
Accordingly, I believe that the Court has the authority to hear the present
administrative disciplinary case against Associate Justice Mariano del
Castillo; in case of a finding of misconduct, it can impose penalties that
are not the functional equivalent of removal or dismissal from service. If,
in the exercise of its prerogative as interpreter of the Constitution, it
determines that an act complained of falls within the defined grounds for
impeachment, then the Court should say so and forthwith forward its
recommendations to Congress as the body constitutionally mandated to
act in impeachment cases.
Court’s Interpretation of Plagiarism - limited to its Concept as an Ethical
violation of Members of the Judiciary.
The dissatisfaction with the Court’s October 12, 2010 Decision (resolving
the plagiarism charge against Justice del Castillo or the "plagiarism
Decision") primarily lies with the Court’s declaration that malicious intent
is a necessary element in committing plagiarism. In the plagiarism
Decision, the Court said:
[P]lagiarism presupposes intent and a deliberate, conscious effort to steal
another’s work and pass it off as one’s own.
Why we deemed malicious intent as a necessary element for judicial
plagiarism can be explained by our repeated pronouncement that:
not every error or mistake committed by judges in the performance of
their official duties renders them administratively liable. In the absence of
fraud, dishonesty or deliberate intent to do an injustice, acts done in their
official capacity, even though erroneous, do not always constitute
misconduct.
Only errors that are tainted with fraud, corruption or malice may be the
subject of disciplinary action. For administrative liability to attach,
respondent must be shown to have been moved by bad faith, dishonesty,
hatred or some other motive. Indeed, judges may not be held
administratively liable for any of their official acts, no matter how
erroneous, as long as they acted in good faith. 27
The term plagiarism does not have a precise statutory definition as it is
not a matter covered by present Philippine statutes.28 What the
Intellectual Property Code (Republic Act 8283) 29 defines and punishes is
"copyright infringement." However, these terms are not legally
interchangeable. Laurie Stearns, copyright lawyer and author of the
article "Copy Wrong: Plagiarism, Process, Property, and the Law" aptly
observes the distinctions between the two in this wise:
Plagiarism is not necessarily copyright infringement, nor is copyright
infringement necessarily plagiarism. The two concepts diverge with
respect to three main aspects of the offense: copying, attribution and
intent. In some ways the concept of plagiarism broader than infringement,
in that it can include the copying of ideas or of expression not protected
by copyright, that would not constitute infringement and it can include
copying of small amounts of material that would be disregarded under
copyright law. In other ways the concept of infringement is broader, in
that it can include both properly attributed copying and unintentional
copying that would be excused from being called plagiarism.
The divergence between plagiarism’s popular definition and copyright’s
statutory framework suggests an essential contradiction between what is
at stake in plagiarism – the creative process – and what is at stake in
copyright infringement – the creative result.30
Separately from these distinctions, the matter before the Court is Justice
del Castillo’s alleged plagiarism or failure to make attributions as an
ethical violation, not a copyright violation under the Intellectual Property
Code. Given these distinctions, I see no reason to quibble over the
definition of plagiarism – a term that, in the absence of any statutory
limitation, the Court can define and interpret for purposes of its
administrative authority over all courts and the personnel thereof.
From the point of view of ethical rules, what are important are the intent
in undertaking an act and the concepts of integrity, propriety, honesty and
impartiality for purposes of dispensing justice by an independent
Judiciary. It is in this sense, and in light of the nature of the present case
as an administrative disciplinary charge against a Member of this Court,
that the pronouncement of this Court on plagiarism and on the merits of
the ethical charge should be understood.
In this light, I find it misplaced for Justice Sereno to describe the Court’s
Decision as:
[creating] 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.
xxxx
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.31
When the Supreme Court acts on complaints against judges under its
supervision and control, it acts as an administrator imposing discipline
and not as a court passing upon justiciable controversies. 32 It is precisely
for this reason that disciplinary cases are docketed as "Administrative
Matters" or "A.M."33 Hence, any interpretation by the Court of "plagiarism"
is limited to this context and cannot be held to bind the academe in
undertaking its educational functions, particularly its own power to define
plagiarism in the educational context. It likewise cannot bind Congress in
its role as the sole authority to determine what constitutes an
impeachable offense, subject to what I stated above on the established
scope of impeachable offenses and the power of the Court to act in grave
abuse of discretion situations under the Constitution. Specifically, a
finding by this Court that plagiarism was or was not committed cannot
preclude Congress from determining whether the failure or omission to
make an attribution, intentionally or unintentionally, amounts to a
"betrayal of public trust."
For these reasons, I support the conclusion of the Ethics and Ethical
Standards Committee that Justice Mariano C. del Castillo’s attribution
lapses did not involve any ethical violation. I vote for the approval of the
Committee’s Report and for the denial of the petitioners’ Motion for
Reconsideration.
ARTURO D. BRION
Associate Justice
 EN BANC special civil action of certiorari with application for preliminary mandatory
injunction against the Executive Secretary, the Secretary of Foreign Affairs,
IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC the Secretary of Justice, and the Office of the Solicitor General.
OF PLAGIARISM, ETC., AGAINST
ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO. Present: Petitioners claimed that in destroying villages in the Philippines during World
CORONA, C.J.,
War II, the Japanese army systematically raped them and a number of other
CARPIO,
CARPIO MORALES, women, seizing them and holding them in houses or cells where soldiers
VELASCO, JR., repeatedly ravished and abused them.
NACHURA,
LEONARDO-DE CASTRO,
BRION, Petitioners alleged that they have since 1998 been approaching the Executive
PERALTA,
BERSAMIN, Department, represented by the respondent public officials, requesting
DEL CASTILLO, assistance in filing claims against the Japanese military officers who
ABAD,
established the comfort women stations. But that Department declined, saying
VILLARAMA, JR.,
PEREZ, that petitioners individual claims had already been fully satisfied under the
MENDOZA, and Peace Treaty between the Philippines and Japan.
SERENO, JJ.
Promulgated:
Petitioners wanted the Court to render judgment, compelling the
October 12, 2010
x --------------------------------------------------------------------------------------- x Executive Department to espouse their claims for official apology and other
forms of reparations against Japan before the International Court of Justice and
DECISION
other international tribunals.
PER CURIAM:
On April 28, 2010, the Court rendered judgment dismissing petitioners
action. Justice Mariano C. del Castillo wrote the decision for the Court. The
This case is concerned with charges that, in preparing a decision for the Court,
Court essentially gave two reasons for its decision: it cannot grant the petition
a designated member plagiarized the works of certain authors and twisted their
because, first, the Executive Department has the exclusive prerogative under
meanings to support the decision.
the Constitution and the law to determine whether to espouse petitioners claim
The Background Facts
against Japan; and, second, the Philippines is not under any obligation in
international law to espouse their claims.
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
 On June 9, 2010, petitioners filed a motion for reconsideration of the
Courts 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 courts erroneous
conclusions that the Filipino comfort women of World War Two have no
further legal remedies. The media gave publicity to Atty. Roques
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[1] 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. [2] 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).
Petitioners claim that the integrity of the Courts deliberations in the
case has been put into question by Justice Del Castillos fraud. The Court
should thus address and disclose to the public the truth about the manifest
intellectual theft and outright plagiarism[3] that resulted in gross prejudice to
the petitioners.
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
anothers 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.
xxxx
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. [4]
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.
 On August 2, 2010, the Committee directed petitioners to comment on
Justice Del Castillos verified letter. When this was done, it set the matter for
hearing.
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 Criddles
concern, after reading the supplemental motion for reconsideration, was the
Courts conclusion that prohibitions against sexual slavery are not jus cogensor
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 Courts decision amounted
to an act of intellectual fraud by copying works in order to mislead and
deceive.[5]
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C.
Corona that, although relevant sentences in the Courts 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.
On August 26, 2010, the Committee heard the parties submissions in the
summary manner of administrative investigations. Counsels from both sides
were given ample time to address the Committee and submit their
evidence. The Committee queried them on these.
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 Courts 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 Justices 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. [6]
 On the other hand, addressing the Committee in reaction to the
researchers 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
anothers work. Counsel invoked the Courts ruling in University of the
Philippines Board of Regents v. Court of Appeals and Arokiaswamy William
[7]
Margaret Celine, arguing that standards on plagiarism in the academe should
apply with more force to the judiciary.
After the hearing, the Committee gave the parties ten days to file their
respective memoranda. They filed their memoranda in due
course. Subsequently after deliberation, the Committee submitted its
unanimous findings and recommendations to the Court.
The Issues
This case presents two issues:
1. Whether or not, in writing the opinion for the Court in the Vinuya case,
Justice Del Castillo plagiarized the published works of authors Tams, Criddle-
Descent, and Ellis.
2. Whether or not Justice Del Castillo twisted the works of these authors to
make it appear that such works supported the Courts position in
the Vinuya decision.
The Courts Rulings
Because of the pending motion for reconsideration in the Vinuya case, the
Court like its Committee on Ethics and Ethical Standards will purposely avoid
touching the merits of the Courts decision in that case or the soundness or lack
of soundness of the position it has so far taken in the same. The Court will
deal, not with the essential merit or persuasiveness of the foreign authors
works, but how the decision that Justice Del Castillo wrote for the Court
appropriated parts of those works and for what purpose the decision employed
the same.
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. [8] The passing off of the work of another as ones 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,[9] 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 Justices 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 Courts 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,[10] 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. INTL. 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 Nrnberg 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.
INTL. 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 cogensnorms 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 ILCs preparation of
the Vienna Convention on the Law of Treaties
(VCLT).74Though 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-Descents article, A Fiduciary Theory of Jus
Cogens.[11] Criddle-Descents footnotes were carried into the Vinuya decisions
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
Castillos 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 Castillos
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 researchers 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 Castillos 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.[12] 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 Castillos 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 Committees finding that the researchers
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 Xs manuscript. Thus, if the preceding
footnote in the manuscript when the passage from Tolentino was pasted on it
is 23, Tolentinos 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 Castillos 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 tagswith disastrous effect.
 To understand this, in Tolentinos example, the equivalent would be Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly
researcher Xs removal during cleanup of the tag, The inalienable character of perjured himself and sought to whitewash the case.[13]
juridical personality.23, by a simple delete operation, and the unintended
removal as well of the accompanying footnote (#23). The erasure of the But nothing in the July 22 letter supports the charge of false testimony.
footnote eliminates the link between the lifted passage and its source, Justice Del Castillo merely explained that there was every intention to attribute
Tolentinos book. Only the following would remain in the manuscript: all sources whenever due and that there was never any malicious intent to
appropriate anothers work as our own, which as it turns out is a true
xxx Both juridical capacity and capacity to act are
not rights, but qualities of persons; hence, they cannot be statement. He recalled how the Court deliberated upon the case more than
alienated or renounced.43 once, prompting major revisions in the draft of the decision. In the process,
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291. (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
researchers inadvertent error.
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
And it is understandable that Justice Del Castillo did not initially
that remain simply blend in with the rest of the manuscript, adjusting the
disclose his researchers error. He wrote the decision for the Court and was
footnote number and removing any clue that what should stick together had
expected to take full responsibility for any lapse arising from its
just been severed.
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
This was what happened in the attributions to Ellis and Criddle-
matter without the attendance of the other parties.
Descent. The researcher deleted the subject tags and, accidentally, their
accompanying footnotes that served as reminder of the sources of the lifted
Notably, neither Justice Del Castillo nor his researcher had a motive
passages. With 119 sources cited in the decision, the loss of the 2 of them was
or reason for omitting attribution for the lifted passages to Criddle-Descent or
not easily detectable.
to Ellis. The latter authors are highly respected professors of international
law. The law journals that published their works have exceptional
Petitioners point out, however, that Justice Del Castillos verified letter
reputations. It did not make sense to intentionally omit attribution to these
of July 22, 2010 is inconsistent with his researchers claim that the omissions
authors when the decision cites an abundance of other sources. Citing these
were mere errors in attribution. They cite the fact that the Justice did not
authors as the sources of the lifted passages would enhance rather than
disclose his researchers error in that letter despite the latters confession
diminish their informative value. Both Justice Del Castillo and his researcher
regarding her mistake even before the Justice sent his letter to the Chief
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
[14]
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
[15]
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 Blacks Law Dictionary defines plagiarism as
the deliberate and knowing presentation of another person's original ideas or
creative expressions as one's own. [16] Thus, plagiarism presupposes intent and
a deliberate, conscious effort to steal anothers work and pass it off as ones
own.
Besides, the Court said nothing in U.P. Board of Regents that would
indicate that an intent to pass off anothers work as ones own is not required in
plagiarism. The Court merely affirmed the academic freedom of a university
to withdraw a masters 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 Committees 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 passages 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,[17] 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.
[18]
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.
Third Finding
Petitioners allege that the decision twisted the passages from Tams,
Criddle-Descent, and Ellis. The Court adopts the Committees 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
[19]
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 Vinuyadecision 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.
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. [20] This is not the case here. Justice Del
Castillos acts or omissions were not shown to have been impelled by any of
such disreputable motives.[21] 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. [22]
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. [23]
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.[24] 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 researchers shoulder as she cleaned up her draft report
to ensure that she hit the right computer keys. The Justices 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 schools Law Journal, and placed fourth in the bar examinations when she
took it. She earned a masters 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
[25]
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.
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 bancs consideration
in relation to the separate pending matter concerning that supposed Faculty
statement.
SO ORDERED.

WHEREFORE, in view of all of the above, the Court:

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

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY
OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS
OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME
COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37
respondent law professors 1 in response to the Resolution dated October
19, 2010 (the Show Cause Resolution), directing them to show cause
why they should not be disciplined as members of the Bar for violation of
specific provisions of the Code of Professional Responsibility enumerated
therein.
At the outset, it must be stressed that the Show Cause Resolution clearly
dockets this as an administrative matter, not a special civil action for
indirect contempt under Rule 71 of the Rules of Court, contrary to the
dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno
(Justice Sereno) to the said October 19, 2010 Show Cause Resolution.
Neither is this a disciplinary proceeding grounded on an allegedly
irregularly concluded finding of indirect contempt as intimated by
Associate Justice Conchita Carpio Morales (Justice Morales) in her
dissenting opinions to both the October 19, 2010 Show Cause Resolution
and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly
in mind, the Court finds that with the exception of one respondent whose
compliance was adequate and another who manifested he was not a
member of the Philippine Bar, the submitted explanations, being mere
denials and/or tangential to the issues at hand, are decidedly
unsatisfactory. The proffered defenses even more urgently behoove this
Court to call the attention of respondent law professors, who are
members of the Bar, to the relationship of their duties as such under the
Code of Professional Responsibility to their civil rights as citizens and
academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this
case are as follows:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of the
land and promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities
aimed at defiance of the law or at lessening confidence in
the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor
consent to the doing of any in court; nor shall he mislead,
or allow the Court to be misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or
misrepresent the contents of paper, the language or the
argument of opposing counsel, or the text of a decision or
authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert
as a fact that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of
procedure and shall not misuse them to defeat the ends
of justice.
CANON 11 — A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by
others.
RULE 11.05 A lawyer shall submit grievances against a
Judge to the proper authorities only.
CANON 13 — A lawyer shall rely upon the merits of his cause and refrain
from any impropriety which tends to influence, or gives the appearance of
influencing the court.
Established jurisprudence will undeniably support our view that when
lawyers speak their minds, they must ever be mindful of their sworn oath
to observe ethical standards of their profession, and in particular, avoid
foul and abusive language to condemn the Supreme Court, or any court
for that matter, for a decision it has rendered, especially during the
pendency of a motion for such decision’s reconsideration. The accusation
of plagiarism against a member of this Court is not the real issue here but
rather this plagiarism issue has been used to deflect everyone’s attention
from the actual concern of this Court to determine by respondents’
explanations whether or not respondent members of the Bar have
crossed the line of decency and acceptable professional conduct and
speech and violated the Rules of Court through improper intervention or
interference as third parties to a pending case. Preliminarily, it should be
stressed that it was respondents themselves who called upon the
Supreme Court to act on their Statement, 2 which they formally submitted,
through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court’s
proper disposition. Considering the defenses of freedom of speech and
academic freedom invoked by the respondents, it is worth discussing
here that the legal reasoning used in the past by this Court to rule that
freedom of expression is not a defense in administrative cases against
lawyers for using intemperate speech in open court or in court
submissions can similarly be applied to respondents’ invocation of
academic freedom. Indeed, it is precisely because respondents are not
merely lawyers but lawyers who teach law and mould the minds of young
aspiring attorneys that respondents’ own non-observance of the Code of
Professional Responsibility, even if purportedly motivated by the purest of
intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents’ actuations, it
is apropos to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo
(Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No.
162230) was promulgated. On May 31, 2010, the counsel3 for Vinuya, et
al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya
decision, raising solely the following grounds:
I. Our own constitutional and jurisprudential histories reject this
Honorable Courts’ (sic) assertion that the Executive’s foreign
policy prerogatives are virtually unlimited; precisely, under the
relevant jurisprudence and constitutional provisions, such
prerogatives are proscribed by international human rights and
humanitarian standards, including those provided for in the
relevant international conventions of which the Philippines is a
party.4
II. This Honorable Court has confused diplomatic protection with
the broader, if fundamental, responsibility of states to protect the
human rights of its citizens – especially where the rights asserted
are subject of erga omnes obligations and pertain to jus cogens
norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L.
Roque, Jr. (Atty. Roque) and Romel Regalado Bagares (Atty. Bagares),
filed a Supplemental Motion for Reconsideration in G.R. No. 162230,
where they posited for the first time their charge of plagiarism as one of
the grounds for reconsideration of the Vinuya decision. Among other
arguments, Attys. Roque and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS
HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO
PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE
PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF
INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE
UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006
IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT
THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT
PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN
MAKE A STRONG CASE FOR THE PETITION’S CLAIMS. 7
They also claimed that "[i]n this controversy, the evidence bears out the
fact not only of extensive plagiarism but of (sic) also of twisting the true
intents of the plagiarized sources by the ponencia to suit the arguments
of the assailed Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized
in the Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-
Decent’s article "A Fiduciary Theory of Jus Cogens;"9 (2) Christian J.
Tams’ book Enforcing Erga Omnes Obligations in International
Law;10 and (3) Mark Ellis’ article "Breaking the Silence: On Rape as an
International Crime."11
On the same day as the filing of the Supplemental Motion for
Reconsideration on July 19, 2010, journalists Aries C. Rufo and Purple S.
Romero posted an article, entitled "SC justice plagiarized parts of ruling
on comfort women," on the Newsbreak website. 12 The same article
appeared on the GMA News TV website also on July 19, 2010. 13
On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and
Twisted," appeared in the Manila Standard Today. 14 In the said column,
Atty. Roque claimed that Prof. Evan Criddle, one of the authors
purportedly not properly acknowledged in the Vinuya decision, confirmed
that his work, co-authored with Prof. Evan Fox-Decent, had been
plagiarized. Atty. Roque quoted Prof. Criddle’s response to the post by
Julian Ku regarding the news report 15 on the alleged plagiarism in the
international law blog, Opinio Juris. Prof. Criddle responded to Ku’s blog
entry in this wise:
The newspaper’s 16 [plagiarism] claims are based on a motion for
reconsideration filed yesterday with the Philippine Supreme Court
yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-
plagiarism-in-the-supreme-court/
The motion suggests that the Court’s decision contains thirty-four
sentences and citations that are identical to sentences and citations in
my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-
Decent and I were unaware of the petitioners’ [plagiarism] allegations
until after the motion was filed today.
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. The Supreme Court’s decision
is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm1
7
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues
on the Court in reply to the charge of plagiarism contained in the
Supplemental Motion for Reconsideration. 18
In a letter dated July 23, 2010, another purportedly plagiarized author in
the Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in
the last few days.
Much as I regret to raise this matter before your esteemed Court, I am
compelled, as a question of the integrity of my work as an academic and
as an advocate of human rights and humanitarian law, to take exception
to the possible unauthorized use of my law review article on rape as an
international crime in your esteemed Court’s Judgment in the case of
Vinuya et al. v. Executive Secretary et al. (G.R. No. 162230, Judgment of
28 April 2010).
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), 19 an affiliate of the London-based Media
Legal Defence Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive
discussion in footnote 65, pp. 27-28, of the said 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.
I believe a full copy of my article as published in the Case Western
Reserve Journal of International Law in 2006 has been made available to
your esteemed Court. I trust that your esteemed Court will take the time
to carefully study the arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to
the issues raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis 20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court
formed the Committee on Ethics and Ethical Standards (the Ethics
Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the
Supreme Court. In an En Banc Resolution also dated July 27, 2010, the
Court referred the July 22, 2010 letter of Justice Del Castillo to the Ethics
Committee. The matter was subsequently docketed as A.M. No. 10-7-17-
SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and
Bagares to comment on the letter of Justice Del Castillo. 21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines
College of Law on the Allegations of Plagiarism and Misrepresentation in
the Supreme Court" (the Statement), was posted in Newsbreak’s
website22 and on Atty. Roque’s blog. 23 A report regarding the statement
also appeared on various on-line news sites, such as the GMA News
TV24 and the Sun Star25 sites, on the same date. The statement was
likewise posted at the University of the Philippines College of Law’s
bulletin board allegedly on August 10, 201026 and at said college’s
website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of
the University of the Philippines College of Law Faculty (UP Law faculty)
to the Court, through Chief Justice Renato C. Corona (Chief Justice
Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed
by thirty[-]eight (38)28members of the faculty of the UP College of Law.
We hope that its points could be considered by the Supreme Court en
banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not
contain the actual signatures of the alleged signatories but only stated
the names of 37 UP Law professors with the notation (SGD.) appearing
beside each name. For convenient reference, the text of the UP Law
faculty Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND
MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the
brave Filipinas who had suffered abuse during a time of war. After they
courageously came out with their very personal stories of abuse and
suffering as "comfort women", waited for almost two decades for any
meaningful relief from their own government as well as from the
government of Japan, got their hopes up for a semblance of judicial
recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230
(28 April 2010), they only had these hopes crushed by a singularly
reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land.
It is within this frame that the Faculty of the University of the Philippines
College of Law views the charge that an Associate Justice of the
Supreme Court committed plagiarism and misrepresentation in Vinuya v.
Executive Secretary. The plagiarism and misrepresentation are not only
affronts to the individual scholars whose work have been appropriated
without correct attribution, but also a serious threat to the integrity and
credibility of the Philippine Judicial System.
In common parlance, ‘plagiarism’ is the appropriation and
misrepresentation of another person’s work as one’s own. In the field of
writing, it is cheating at best, and stealing at worst. It constitutes a taking
of someone else’s ideas and expressions, including all t he effort and
creativity that went into committing such ideas and expressions into
writing, and then making it appear that such ideas and expressions were
originally created by the taker. It is dishonesty, pure and simple. A judicial
system that allows plagiarism in any form is one that allows dishonesty.
Since all judicial decisions form part of the law of the land, to allow
plagiarism in the Supreme Court is to allow the production of laws by
dishonest means. Evidently, this is a complete perversion and
falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material
shows that the ponente merely copied select portions of other legal
writers’ works and interspersed them into the decision as if they were his
own, original work. Under the circumstances, however, because the
Decision has been promulgated by the Court, the Decision now becomes
the Court’s and no longer just the ponente’s. Thus the Court also bears
the responsibility for the Decision. In the absence of any mention of the
original writers’ names and the publications from which they came, the
thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this
case and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the
original articles is a reference to the ‘primary’ sources relied upon. This
cursory explanation is not acceptable, because the original authors’
writings and the effort they put into finding and summarizing those
primary sources are precisely the subject of plagiarism. The inclusion of
the footnotes together with portions of their writings in fact aggravates,
instead of mitigates, the plagiarism since it provides additional evidence
of a deliberate intention to appropriate the original authors’ work of
organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be
familiar with all legal and scholarly journals. This is also not acceptable,
because personal unfamiliarity with sources all the more demands correct
and careful attribution and citation of the material relied upon. It is a
matter of diligence and competence expected of all Magistrates of the
Highest Court of the Land.
But a far more serious matter is the objection of the original writers,
Professors Evan Criddle and Evan Fox-Descent, that the High Court
actually misrepresents the conclusions of their work entitled "A Fiduciary
Theory of Jus Cogens," the main source of the plagiarized text. In this
article they argue that the classification of the crimes of rape, torture, and
sexual slavery as crimes against humanity have attained the status of jus
cogens, making it obligatory upon the State to seek remedies on behalf
of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same
article to arrive at the contrary conclusion. This exacerbates the
intellectual dishonesty of copying works without attribution
by transforming it into an act of intellectual fraud by copying works in
order to mislead and deceive.
The case is a potential landmark decision in International Law, because it
deals with State liability and responsibility for personal injury and damage
suffered in a time of war, and the role of the injured parties’ home States
in the pursuit of remedies against such injury or damage. National courts
rarely have such opportunities to make an international impact. That the
petitioners were Filipino "comfort women" who suffered from horrific
abuse during the Second World War made it incumbent on the Court of
last resort to afford them every solicitude. But instead of acting with
urgency on this case, the Court delayed its resolution for almost seven
years, oblivious to the deaths of many of the petitioners seeking justice
from the Court. When it dismissed the Vinuya petition based on
misrepresented and plagiarized materials, the Court decided this case
based on polluted sources. By so doing, the Supreme Court added insult
to injury by failing to actually exercise its "power to urge and exhort the
Executive Department to take up the claims of the Vinuya petitioners. Its
callous disposition, coupled with false sympathy and nonchalance, belies
a more alarming lack of concern for even the most basic values of
decency and respect. The reputation of the Philippine Supreme Court
and the standing of the Philippine legal profession before other
Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its
decisions and cannot accept excuses for failure to attain the highest
standards of conduct imposed upon all members of the Bench and Bar
because these undermine the very foundation of its authority and power
in a democratic society. Given the Court’s recent history and the
controversy that surrounded it, it cannot allow the charges of such clear
and obvious plagiarism to pass without sanction as this would only further
erode faith and confidence in the judicial system. And in light of the
significance of this decision to the quest for justice not only of Filipino
women, but of women elsewhere in the world who have suffered the
horrors of sexual abuse and exploitation in times of war, the Court cannot (4) In light of the extremely serious and far-reaching
coldly deny relief and justice to the petitioners on the basis of pilfered and nature of the dishonesty and to save the honor and
misinterpreted texts. dignity of the Supreme Court as an institution, it is
necessary for the ponente of Vinuya v. Executive
The Court cannot regain its credibility and maintain its moral authority Secretary to resign his position, without prejudice to any
without ensuring that its own conduct, whether collectively or through its other sanctions that the Court may consider appropriate;
Members, is beyond reproach. This necessarily includes ensuring that
not only the content, but also the processes of preparing and writing its (5) The Supreme Court must take this opportunity to
own decisions, are credible and beyond question. The Vinuya Decision review the manner by which it conducts research,
must be conscientiously reviewed and not casually cast aside, if not for prepares drafts, reaches and finalizes decisions in order
the purpose of sanction, then at least for the purpose of reflection and to prevent a recurrence of similar acts, and to provide
guidance. It is an absolutely essential step toward the establishment of a clear and concise guidance to the Bench and Bar to
higher standard of professional care and practical scholarship in the ensure only the highest quality of legal research and
Bench and Bar, which are critical to improving the system of writing in pleadings, practice, and adjudication.
administration of justice in the Philippines. It is also a very crucial step in
ensuring the position of the Supreme Court as the Final Arbiter of all Malcolm Hall, University of the Philippines College of Law, Quezon City,
controversies: a position that requires competence and integrity 27 July 2010.
completely above any and all reproach, in accordance with the exacting
demands of judicial and professional ethics. (SGD.) MARVIC M.V.F. LEONEN
Dean and Professor of Law
With these considerations, and bearing in mind the solemn duties and
trust reposed upon them as teachers in the profession of Law, it is the
opinion of the Faculty of the University of the Philippine College of Law (SGD.) FROILAN M. (SGD.) PACIFICO A.
that: BACUNGAN AGABIN
Dean (1978-1983) Dean (1989-1995)
(1) The plagiarism committed in the case of Vinuya v.
Executive Secretary is unacceptable, unethical and in (SGD.) SALVADOR T.
(SGD.) MERLIN M.
breach of the high standards of moral conduct and judicial CARLOTA
MAGALLONA
and professional competence expected of the Supreme Dean (2005-2008) and
Dean (1995-1999)
Court; Professor of Law

(2) Such a fundamental breach endangers the integrity REGULAR FACULTY

and credibility of the entire Supreme Court and
undermines the foundations of the Philippine judicial
system by allowing implicitly the decision of cases and the (SGD.) JAY L.
(SGD.) CARMELO V. SISON
establishment of legal precedents through dubious BATONGBACAL
Professor
means; Assistant Professor

(3) The same breach and consequent disposition of (SGD.) PATRICIA R.P.
(SGD.) EVELYN (LEO) D.
the Vinuya case does violence to the primordial function SALVADOR DAWAY
BATTAD
of the Supreme Court as the ultimate dispenser of justice Associate Dean and
Assistant Professor
to all those who have been left without legal or equitable Associate Professor
recourse, such as the petitioners therein;
 Hon. Renato C. Corona, Chief Justice
(SGD.) DANTE B.
(SGD.) GWEN G. DE VERA
GATMAYTAN
Assistant Professor Your Excellency,
Associate Professor

(SGD.) SOLOMON F. My name is Christian J. Tams, and I am a professor of international law

(SGD.) THEODORE O. TE at the University of Glasgow. I am writing to you in relation to the use of
LUMBA
Assistant Professor one of my publications in the above-mentioned judgment of your
Assistant Professor
Honourable Court.
(SGD.) FLORIN T. HILBAY (SGD.) ROMMEL J. CASIS
Assistant Professor Assistant Professor 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
LECTURERS sentences were taken almost word by word from the introductory chapter
of my book Enforcing Obligations Erga Omnes in International Law
(SGD.) JOSE GERARDO A. (Cambridge University Press 2005). I note that there is a generic
(SGD.) JOSE C. LAURETA
ALAMPAY reference to my work in footnote 69 of the Judgment, but as this is in
(SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO relation to a citation from another author (Bruno Simma) rather than with
respect to the substantive passages reproduced in the Judgment, I do
(SGD.) ROSA MARIA J.
(SGD.) OWEN J. LYNCH not think it can be considered an appropriate form of referencing.
BAUTISTA
(SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS
I am particularly concerned that my work should have been used to
(SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA support the Judgment’s cautious approach to the erga omnes concept. In
(SGD.) RODOLFO NOEL S. fact, a most cursory reading shows that my book’s central thesis is
(SGD.) TRISTAN A. CATINDIG
QUIMBO precisely the opposite: namely that the erga omnes concept has been
(SGD.) SANDRA MARIE O. (SGD.) GMELEEN FAYE B. widely accepted and has a firm place in contemporary international law.
CORONEL TOMBOC Hence the introductory chapter notes that "[t]he present study attempts to
demystify aspects of the ‘very mysterious’ concept and thereby to
(SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY
facilitate its implementation" (p. 5). In the same vein, the concluding
(SGD.) CONCEPCION L. section notes that "the preceding chapters show that the concept is now
(SGD.) EVALYN G. URSUA
JARDELEZA a part of the reality of international law, established in the jurisprudence
(SGD.) ANTONIO G.M. LA VIÑA (SGD.) RAUL T. VASQUEZ of courts and the practice of States" (p. 309).
(SGD.) SUSAN D. VILLANUEVA29
(SGD.) CARINA C. LAFORTEZA With due respect to your Honourable Court, I am at a loss to see how my
(Underscoring supplied.)
work should have been cited to support – as it seemingly has – the
opposite approach. More generally, I am concerned at the way in which
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams
your Honourable Court’s Judgment has drawn on scholarly work without
made known his sentiments on the alleged plagiarism issue to the
properly acknowledging it.
Court.30 We quote Prof. Tams’ letter here:
On both aspects, I would appreciate a prompt response from your
Glasgow, 18 August 2010
Honourable Court.
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
I remain
Sincerely yours
(Sgd.)
Christian J. Tams 31
In the course of the submission of Atty. Roque and Atty. Bagares’
exhibits during the August 26, 2010 hearing in the ethics case against
Justice Del Castillo, the Ethics Committee noted that Exhibit "J" (a copy
of the Restoring Integrity Statement) was not signed but merely reflected
the names of certain faculty members with the letters (SGD.) beside the
names. Thus, the Ethics Committee directed Atty. Roque to present the
signed copy of the said Statement within three days from the August 26
hearing.32
It was upon compliance with this directive that the Ethics Committee was
given a copy of the signed UP Law Faculty Statement that showed on the
signature pages the names of the full roster of the UP Law Faculty, 81
faculty members in all. Indubitable from the actual signed copy of the
Statement was that only 37 of the 81 faculty members appeared to have
signed the same. However, the 37 actual signatories to the Statement did
not include former Supreme Court Associate Justice Vicente V. Mendoza
(Justice Mendoza) as represented in the previous copies of the
Statement submitted by Dean Leonen and Atty. Roque. It also appeared
that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement although
his name was not included among the signatories in the previous copies
submitted to the Court. Thus, the total number of ostensible signatories to
the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the
same Statement, having been formally submitted by Dean Leonen on
August 11, 2010, was already under consideration by the Court. 33
In a Resolution dated October 19, 2010, the Court en banc made the
following observations regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators’ opinion
on the allegations of plagiarism against Justice Del Castillo, they treated
such allegation not only as an established fact, but a truth. In particular,
they expressed dissatisfaction over Justice Del Castillo’s explanation on
how he cited the primary sources of the quoted portions and yet arrived
at a contrary conclusion to those of the authors of the articles supposedly
plagiarized.
Beyond this, however, the statement bore certain remarks which raise
concern for the Court. The opening sentence alone is a grim preamble to
the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the
brave Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya
v. Executive Secretary as a reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the
basis of "polluted sources," the Court’s alleged indifference to the cause
of petitioners [in the Vinuya case], as well as the supposed alarming lack
of concern of the members of the Court for even the most basic values of
decency and respect.34 x x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to
maintaining a free and democratic society, there is also a general
consensus that healthy criticism only goes so far. Many types of criticism
leveled at the judiciary cross the line to become harmful and irresponsible
attacks. These potentially devastating attacks and unjust criticism can
threaten the independence of the judiciary. The court must "insist on
being permitted to proceed to the disposition of its business in an orderly
manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s
less than objective comments except to discredit the April 28, 2010
Decision in the Vinuya case and undermine the Court’s honesty, integrity
and competence in addressing the motion for its reconsideration. As if
the case on the comfort women’s claims is not controversial enough, the
UP Law faculty would fan the flames and invite resentment against a
resolution that would not reverse the said decision. This runs contrary to
their obligation as law professors and officers of the Court to be the first
to uphold the dignity and authority of this Court, to which they owe fidelity
according to the oath they have taken as attorneys, and not to promote
distrust in the administration of justice. 35 x x x. (Citations omitted;
emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M.
Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota,
Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan,
Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D.
Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose
Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J.
Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra
Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio
G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch,
Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D.
Villanueva and Dina D. Lucenario to show cause, within ten (10) days
from receipt of the copy of the Resolution, why they should not be
disciplined as members of the Bar for violation of Canons 1, 36 11 and 13
and Rules 1.02 and 11.05 of the Code of Professional Responsibility. 37
Dean Leonen was likewise directed to show cause within the same
period why he should not be disciplinarily dealt with for violation of Canon
10, Rules 10.01, 10.02 and 10.03 for submitting through his letter dated
August 10, 2010, during the pendency of G.R. No. 162230 and of the
investigation before the Ethics Committee, for the consideration of the
Court en banc, a dummy which is not a true and faithful reproduction of
the UP Law Faculty Statement. 38
In the same Resolution, the present controversy was docketed as a
regular administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the
October 19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the
Court, respondents filed the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of
the 37 respondents, excluding Prof. Owen Lynch and Prof. Raul
T. Vasquez, in relation to the charge of violation of Canons 1, 11
and 13 and Rules 1.02 and 11.05 of the Code of Professional
Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by
Prof. Rosa Maria T. Juan-Bautista in relation to the same charge
in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof.
Raul T. Vasquez in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean
Leonen, in relation to the charge of violation of Canon 10, Rules
10.01, 10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof.
Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch
and Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November
19, 2010 a common compliance which was signed by their respective
counsels (the Common Compliance). In the "Preface" of said Common
Compliance, respondents stressed that "[they] issued the Restoring
Integrity Statement in the discharge of the ‘solemn duties and trust
reposed upon them as teachers in the profession of law,’ and as
members of the Bar to speak out on a matter of public concern and one
that is of vital interest to them."39 They likewise alleged that "they acted
with the purest of intentions" and pointed out that "none of them was
involved either as party or counsel"40 in the Vinuya case. Further,
respondents "note with concern" that the Show Cause Resolution’s
findings and conclusions were "a prejudgment – that respondents indeed
are in contempt, have breached their obligations as law professors and
officers of the Court, and have violated ‘Canons [1], 11 and 13 and Rules
1.02 and 11.05 of the Code of Professional Responsibility." 41
By way of explanation, the respondents emphasized the following points:
(a) Respondents’ alleged noble intentions
In response to the charges of failure to observe due respect to
legal processes 42 and the courts 43 and of tending to influence, or
giving the appearance of influencing the Court 44 in the issuance of
their Statement, respondents assert that their intention was not to
malign the Court but rather to defend its integrity and credibility
and to ensure continued confidence in the legal system. Their
noble motive was purportedly evidenced by the portion of their
Statement "focusing on constructive action."45 Respondents’ call
in the Statement for the Court "to provide clear and concise
guidance to the Bench and Bar to ensure only the highest quality
of legal research and writing in adjudication," was reputedly "in
keeping with strictures enjoining lawyers to ‘participate in the
development of the legal system by initiating or supporting efforts
in law reform and in the improvement of the administration of
justice’" (under Canon 4 of the Code of Professional
Responsibility) and to "promote respect for the law and legal
processes" (under Canon 1, id.). 46 Furthermore, as academics,
they allegedly have a "special interest and duty to vigilantly guard
against plagiarism and misrepresentation because these
unwelcome occurrences have a profound impact in the academe,
especially in our law schools."47
Respondents further "[called] on this Court not to misconstrue the
Restoring Integrity Statement as an ‘institutional attack’ x x x on
the basis of its first and ninth paragraphs."48 They further clarified
that at the time the Statement was allegedly drafted and agreed
upon, it appeared to them the Court "was not going to take any
action on the grave and startling allegations of plagiarism and
misrepresentation."49 According to respondents, the bases for
their belief were (i) the news article published on July 21, 2010 in
the Philippine Daily Inquirer wherein Court Administrator Jose
Midas P. Marquez was reported to have said that Chief Justice
Corona would not order an inquiry into the matter; 50 and (ii) the
July 22, 2010 letter of Justice Del Castillo which they claimed "did
nothing but to downplay the gravity of the plagiarism and
misrepresentation charges."51 Respondents claimed that it was
their perception of the Court’s indifference to the dangers posed
by the plagiarism allegations against Justice Del Castillo that
impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents’ position that Justice Del
Castillo committed plagiarism and should be held accountable in
accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a
discussion of the merits of respondents’ charge of plagiarism
against Justice Del Castillo. Relying on University of the
Philippines Board of Regents v. Court of Appeals 52 and foreign
materials and jurisprudence, respondents essentially argue that
their position regarding the plagiarism charge against Justice Del
Castillo is the correct view and that they are therefore justified in
issuing their Restoring Integrity Statement. Attachments to the
Common Compliance included, among others: (i) the letter dated
October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D., 53 sent to Chief
Justice Corona through Justice Sereno, alleging that the Vinuya
decision likewise lifted without proper attribution the text from a
legal article by Mariana Salazar Albornoz that appeared in the
Anuario Mexicano De Derecho Internacional and from an
International Court of Justice decision; and (ii) a 2008 Human
Rights Law Review Article entitled "Sexual Orientation, Gender
Identity and International Human Rights Law" by Michael
O’Flaherty and John Fisher, in support of their charge that Justice
Del Castillo also lifted passages from said article without proper
attribution, but this time, in his ponencia in Ang Ladlad LGBT
Party v. Commission on Elections.54
(c) Respondents’ belief that they are being "singled out" by the
Court when others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that
"the plagiarism and misrepresentation allegations are legitimate
public issues."55 They identified various published reports and
opinions, in agreement with and in opposition to the stance of
respondents, on the issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and
Purple Romero;56
(ii) Column of Ramon Tulfo which appeared in the
Philippine Daily Inquirer on July 24, 2010; 57
(iii) Editorial of the Philippine Daily Inquirer published on
July 25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo
published in the Philippine Star on July 30, 2010; 59
(v) Column of Former Intellectual Property Office Director
General Adrian Cristobal, Jr. published in the Business
Mirror on August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban
published in the Philippine Daily Inquirer on August 8,
2010;61
(vii) News report regarding Senator Francis Pangilinan’s
call for the resignation of Justice Del Castillo published in
 the Daily Tribune and the Manila Standard Today on July
31, 2010;62
(viii) News reports regarding the statement of Dean Cesar
Villanueva of the Ateneo de Manila University School of
Law on the calls for the resignation of Justice Del Castillo
published in The Manila Bulletin, the Philippine Star and
the Business Mirror on August 11, 2010;63
(ix) News report on expressions of support for Justice Del
Castillo from a former dean of the Pamantasan ng
Lungsod ng Maynila, the Philippine Constitutional
Association, the Judges Association of Bulacan and the
Integrated Bar of the Philippines – Bulacan Chapter
published in the Philippine Star on August 16, 2010; 64 and
(x) Letter of the Dean of the Liceo de Cagayan University
College of Law published in the Philippine Daily Inquirer
on August 10, 2010.65
In view of the foregoing, respondents alleged that this Court has
singled them out for sanctions and the charge in the Show Cause
Resolution dated October 19, 2010 that they may have violated
specific canons of the Code of Professional Responsibility is
unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents
briefly discussed their position that in issuing their Statement,
"they should be seen as not only to be performing their duties as
members of the Bar, officers of the court, and teachers of law, but
also as citizens of a democracy who are constitutionally protected
in the exercise of free speech."66 In support of this contention,
they cited United States v. Bustos, 67In re: Atty. Vicente Raul
Almacen, 68 and In the Matter of Petition for Declaratory Relief
Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections. 69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents
asserted that their Statement was also issued in the exercise of their
academic freedom as teachers in an institution of higher learning. They
relied on Section 5 of the University of the Philippines Charter of 2008
which provided that "[t]he national university has the right and
responsibility to exercise academic freedom." They likewise adverted to
Garcia v. The Faculty Admission Committee, Loyola School of
Theology 70 which they claimed recognized the extent and breadth of such
freedom as to encourage a free and healthy discussion and
communication of a faculty member’s field of study without fear of
reprisal. It is respondents’ view that had they remained silent on the
plagiarism issue in the Vinuya decision they would have "compromised
[their] integrity and credibility as teachers; [their silence] would have
created a culture and generation of students, professionals, even
lawyers, who would lack the competence and discipline for research and
pleading; or, worse, [that] their silence would have communicated to the
public that plagiarism and misrepresentation are inconsequential matters
and that intellectual integrity has no bearing or relevance to one’s
conduct."71
In closing, respondents’ Common Compliance exhorted this Court to
consider the following portion of the dissenting opinion of Justice George
A. Malcolm in Salcedo v. Hernandez, 72 to wit:
Respect for the courts can better be obtained by following a calm and
impartial course from the bench than by an attempt to compel respect for
the judiciary by chastising a lawyer for a too vigorous or injudicious
exposition of his side of a case. The Philippines needs lawyers of
independent thought and courageous bearing, jealous of the interests of
their clients and unafraid of any court, high or low, and the courts will do
well tolerantly to overlook occasional intemperate language soon to be
regretted by the lawyer which affects in no way the outcome of a case.73
On the matter of the reliefs to which respondents believe they are
entitled, the Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law,
members of the Bar and officers of the Court, respectfully pray
that:
1. the foregoing be noted; and
 2. the Court reconsider and reverse its adverse findings in
the Show Cause Resolution, including its conclusions that
respondents have: [a] breached their "obligation as law
professors and officers of the Court to be the first to
uphold the dignity and authority of this Court, … and not
to promote distrust in the administration of justice;" and [b]
committed "violations of Canons 10, 11, and 13 and Rules
1.02 and 11.05 of the Code of Professional
Responsibility."
B. In the event the Honorable Court declines to grant the
foregoing prayer, respondents respectfully pray, in the alternative,
and in assertion of their due process rights, that before final
judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to
refute and/or address the findings and conclusions of fact
in the Show Cause Resolution (including especially the
finding and conclusion of a lack of malicious intent), and
in that connection, that appropriate procedures and
schedules for hearing be adopted and defined that will
allow them the full and fair opportunity to require the
production of and to present testimonial, documentary,
and object evidence bearing on the plagiarism and
misrepresentation issues in Vinuya v. Executive Secretary
(G.R. No. 162230, April 28, 2010) and In the Matter of the
Charges of Plagiarism, etc. Against Associate Justice
Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
3. respondents be given fair and full access to the
transcripts, records, drafts, reports and submissions in or
relating to, and accorded the opportunity to cross-
examine the witnesses who were or could have been
called in In The Matter of the Charges of Plagiarism, etc.
Against Associate Justice Mariano C. Del Castillo (A.M.
No. 10-7-17-SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria
T. Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and
Reservation (the Bautista Compliance), wherein she adopted the
allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly
entitled her to challenge the findings and conclusions in the Show Cause
Resolution. Furthermore, "[i]f the Restoring Integrity Statement can be
considered indirect contempt, under Section 3 of Rule 71 of the Rules of
Court, such may be punished only after charge and hearing." 75
Prof. Juan-Bautista stressed that respondents signed the Statement "in
good faith and with the best intentions to protect the Supreme Court by
asking one member to resign."76 For her part, Prof. Juan-Bautista
intimated that her deep disappointment and sadness for the plight of the
Malaya Lolas were what motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited
jurisprudence77 which in her view highlighted that academic freedom is
constitutionally guaranteed to institutions of higher learning such that
schools have the freedom to determine for themselves who may teach,
what may be taught, how lessons shall be taught and who may be
admitted to study and that courts have no authority to interfere in the
schools’ exercise of discretion in these matters in the absence of grave
abuse of discretion. She claims the Court has encroached on the
academic freedom of the University of the Philippines and other
universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise
of respondents’ constitutional right to freedom of expression that can only
be curtailed when there is grave and imminent danger to public safety,
public morale, public health or other legitimate public interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a
separate Compliance by registered mail (the Vasquez Compliance). In
said Compliance, Prof. Vasquez narrated the circumstances surrounding
his signing of the Statement. He alleged that the Vinuya decision was a
topic of conversation among the UP Law faculty early in the first semester
(of academic year 2010-11) because it reportedly contained citations not
properly attributed to the sources; that he was shown a copy of the
Statement by a clerk of the Office of the Dean on his way to his class;
and that, agreeing in principle with the main theme advanced by the
Statement, he signed the same in utmost good faith. 79
In response to the directive from this Court to explain why he should not
be disciplined as a member of the Bar under the Show Cause Resolution,
Prof. Vasquez also took the position that a lawyer has the right, like all
citizens in a democratic society, to comment on acts of public officers. He
invited the attention of the Court to the following authorities: (a) In re:
Vicente Sotto;80 (b) In re: Atty. Vicente Raul Almacen; 81 and (c) a
discussion appearing in American Jurisprudence (AmJur) 2d. 82 He claims
that he "never had any intention to unduly influence, nor entertained any
illusion that he could or should influence, [the Court] in its disposition of
the Vinuya case"83 and that "attacking the integrity of [the Court] was the
farthest thing on respondent’s mind when he signed the
Statement."84 Unlike his colleagues, who wish to impress upon this Court
the purported homogeneity of the views on what constitutes plagiarism,
Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October
2010, some espoused the view that willful and deliberate intent to commit
plagiarism is an essential element of the same. Others, like respondent,
were of the opinion that plagiarism is committed regardless of the intent
of the perpetrator, the way it has always been viewed in the academe.
This uncertainty made the issue a fair topic for academic discussion in
the College. Now, this Honorable Court has ruled that plagiarism
presupposes deliberate intent to steal another’s work and to pass it off as
one’s own.85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede
that he "might have been remiss in correctly assessing the effects of such
language [in the Statement] and could have been more careful." 86 He
ends his discussion with a respectful submission that with his
explanation, he has faithfully complied with the Show Cause Resolution
and that the Court will rule that he had not in any manner violated his
oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation
of Canon 10 in relation to his submission of a "dummy" of the UP Law
Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that there were three
drafts/versions of the UP Law Faculty Statement, which he described as
follows:
• "Restoring Integrity I" which bears the entire roster of the
faculty of the UP College of Law in its signing pages, and the
actual signatures of the thirty-seven (37) faculty members subject
of the Show Cause Resolution. A copy was filed with the
Honorable Court by Roque and Butuyan on 31 August 2010 in
A.M. No. 10-7-17-SC.
• "Restoring Integrity II" which does not bear any actual physical
signature, but which reflects as signatories the names of thirty-
seven (37) members of the faculty with the notation "(SGD.)". A
copy of Restoring Integrity II was publicly and physically posted in
the UP College of Law on 10 August 2010. Another copy of
Restoring Integrity II was also officially received by the Honorable
Court from the Dean of the UP College of Law on 11 August
2010, almost three weeks before the filing of Restoring Integrity I.
• "Restoring Integrity III" which is a reprinting of Restoring
Integrity II, and which presently serves as the official file copy of
the Dean’s Office in the UP College of Law that may be signed by
other faculty members who still wish to. It bears the actual
signatures of the thirty- seven original signatories to Restoring
Integrity I above their printed names and the notation "(SGD.")
and, in addition, the actual signatures of eight (8) other members
of the faculty above their handwritten or typewritten names. 87
For purposes of this discussion, only Restoring Integrity I and Restoring
Integrity II are relevant since what Dean Leonen has been directed to
explain are the discrepancies in the signature pages of these two
documents. Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and
came about, Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad
agreement in the faculty on a draft statement, Dean Leonen
instructed his staff to print the draft and circulate it among the
faculty members so that those who wished to may sign. For this
purpose, the staff encoded the law faculty roster to serve as the
printed draft’s signing pages. Thus did the first printed draft of the
Restoring Integrity Statement, Restoring Integrity I, come into
being.
2.3. As of 27 July 2010, the date of the Restoring Integrity
Statement, Dean Leonen was unaware that a Motion for
Reconsideration of the Honorable Court’s Decision in Vinuya vs.
 Executive Secretary (G.R. No. 162230, 28 April 2010) had
already been filed, or that the Honorable Court was in the process
of convening its Committee on Ethics and Ethical Standards in
A.M. No. 10-7-17-SC.
2.4. Dean Leonen’s staff then circulated Restoring Integrity I
among the members of the faculty. Some faculty members visited
the Dean’s Office to sign the document or had it brought to their
classrooms in the College of Law, or to their offices or
residences. Still other faculty members who, for one reason or
another, were unable to sign Restoring Integrity I at that time,
nevertheless conveyed to Dean Leonen their assurances that
they would sign as soon as they could manage.
2.5. Sometime in the second week of August, judging that
Restoring Integrity I had been circulated long enough, Dean
Leonen instructed his staff to reproduce the statement in a style
and manner appropriate for posting in the College of Law.
Following his own established practice in relation to significant
public issuances, he directed them to reformat the signing pages
so that only the names of those who signed the first printed draft
would appear, together with the corresponding "(SGD.)" note
following each name. Restoring Integrity II thus came into being. 88
According to Dean Leonen, the "practice of eliminating blanks opposite or
above the names of non-signatories in the final draft of significant public
issuances, is meant not so much for aesthetic considerations as to
secure the integrity of such documents."89 He likewise claimed that
"[p]osting statements with blanks would be an open invitation to vandals
and pranksters."90
With respect to the inclusion of Justice Mendoza’s name as among the
signatories in Restoring Integrity II when in fact he did not sign Restoring
Integrity I, Dean Leonen attributed the mistake to a miscommunication
involving his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II
with the reformatted signing pages, Dean Leonen noticed the
inclusion of the name of Justice Mendoza among the "(SGD.)"
signatories. As Justice Mendoza was not among those who had
physically signed Restoring Integrity I when it was previously
circulated, Dean Leonen called the attention of his staff to the
inclusion of the Justice’s name among the "(SGD.)" signatories in
Restoring Integrity II.
2.8. Dean Leonen was told by his administrative officer that she
had spoken to Justice Mendoza over the phone on Friday, 06
August 2010. According to her, Justice Mendoza had authorized
the dean to sign the Restoring Integrity Statement for him as he
agreed fundamentally with its contents. Also according to her,
Justice Mendoza was unable at that time to sign the Restoring
Integrity Statement himself as he was leaving for the United
States the following week. It would later turn out that this account
was not entirely accurate.91(Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative
officer, however, and so placed full reliance on her account"92 as "[t]here
were indeed other faculty members who had also authorized the Dean to
indicate that they were signatories, even though they were at that time
unable to affix their signatures physically to the document." 93
However, after receiving the Show Cause Resolution, Dean Leonen and
his staff reviewed the circumstances surrounding their effort to secure
Justice Mendoza’s signature. It would turn out that this was what actually
transpired:
2.22.1. On Friday, 06 August 2010, when the dean’s staff talked
to Justice Mendoza on the phone, he [Justice Mendoza] indeed
initially agreed to sign the Restoring Integrity Statement as he
fundamentally agreed with its contents. However, Justice
Mendoza did not exactly say that he authorized the dean to sign
the Restoring Integrity Statement. Rather, he inquired if he could
authorize the dean to sign it for him as he was about to leave for
the United States. The dean’s staff informed him that they would,
at any rate, still try to bring the Restoring Integrity Statement to
him.
2.22.2. Due to some administrative difficulties, Justice Mendoza
was unable to sign the Restoring Integrity Statement before he
left for the U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice
Mendoza when he went to the College to teach on 24 September
2010, a day after his arrival from the U.S. This time, Justice
Mendoza declined to sign. 94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of
the call he received from Justice Mendoza in late September. Indeed,
Justice Mendoza confirmed that by the time the hard copy of the
Restoring Integrity Statement was brought to him shortly after his arrival
from the U.S., he declined to sign it because it had already become
controversial. At that time, he predicted that the Court would take some
form of action against the faculty. By then, and under those
circumstances, he wanted to show due deference to the Honorable
Court, being a former Associate Justice and not wishing to unduly
aggravate the situation by signing the Statement. 95 (Emphases supplied.)
With respect to the omission of Atty. Armovit’s name in the signature
page of Restoring Integrity II when he was one of the signatories of
Restoring Integrity I and the erroneous description in Dean Leonen’s
August 10, 2010 letter that the version of the Statement submitted to the
Court was signed by 38 members of the UP Law Faculty, it was
explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I
when it was circulated to him. However, his name was inadvertently left
out by Dean Leonen’s staff in the reformatting of the signing pages in
Restoring Integrity II. The dean assumed that his name was still included
in the reformatted signing pages, and so mentioned in his cover note to
Chief Justice Corona that 38 members of the law faculty signed (the
original 37 plus Justice Mendoza.) 96
Dean Leonen argues that he should not be deemed to have submitted a
dummy of the Statement that was not a true and faithful reproduction of
the same. He emphasized that the main body of the Statement was
unchanged in all its three versions and only the signature pages were not
the same. This purportedly is merely "reflective of [the Statement’s]
essential nature as a ‘live’ public manifesto meant to continuously draw
adherents to its message, its signatory portion is necessarily evolving
and dynamic x x x many other printings of [the Statement] may be made
in the future, each one reflecting the same text but with more and more
signatories."97 Adverting to criminal law by analogy, Dean Leonen claims
that "this is not an instance where it has been made to appear in a
document that a person has participated in an act when the latter did not
in fact so participate"98 for he "did not misrepresent which members of the
faculty of the UP College of Law had agreed with the Restoring Integrity
Statement proper and/or had expressed their desire to be signatories
thereto."99
In this regard, Dean Leonen believes that he had not committed any
violation of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor
misrepresent to the Court the contents of the Statement or the identities
of the UP Law faculty members who agreed with, or expressed their
desire to be signatories to, the Statement. He also asserts that he did not
commit any violation of Rule 10.03 as he "coursed [the Statement]
through the appropriate channels by transmitting the same to Honorable
Chief Justice Corona for the latter’s information and proper disposition
with the hope that its points would be duly considered by the Honorable
Court en banc."100 Citing Rudecon Management Corporation v.
Camacho,101 Dean Leonen posits that the required quantum of proof has
not been met in this case and that no dubious character or motivation for
the act complained of existed to warrant an administrative sanction for
violation of the standard of honesty provided for by the Code of
Professional Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly
identical reliefs as the Common Compliance, including the prayers for a
hearing and for access to the records, evidence and witnesses allegedly
relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical
investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that
he is not a member of the Philippine bar; but he is a member of the bar of
the State of Minnesota. He alleges that he first taught as a visiting
professor at the UP College of Law in 1981 to 1988 and returned in the
same capacity in 2010. He further alleges that "[h]e subscribes to the
principle, espoused by this Court and the Supreme Court of the United
States, that ‘…[d]ebate on public issues should be uninhibited, robust
and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials."103 In signing the Statement, he believes that "the right to speak
means the right to speak effectively."104 Citing the dissenting opinions in
Manila Public School Teachers Association v. Laguio, Jr., 105 Prof. Lynch
argued that "[f]or speech to be effective, it must be forceful enough to
make the intended recipients listen"106 and "[t]he quality of education
would deteriorate in an atmosphere of repression, when the very
teachers who are supposed to provide an example of courage and self-
assertiveness to their pupils can speak only in timorous
whispers."107 Relying on the doctrine in In the Matter of Petition for
Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections, 108Prof. Lynch believed that the Statement did
not pose any danger, clear or present, of any substantive evil so as to
remove it from the protective mantle of the Bill of Rights (i.e., referring to
the constitutional guarantee on free speech). 109 He also stated that he
"has read the Compliance of the other respondents to the Show Cause
Resolution" and that "he signed the Restoring Integrity Statement for the
same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions
of respondents, the material issues to be resolved in this case are as
follows:
1.) Does the Show Cause Resolution deny respondents their
freedom of expression?
2.) Does the Show Cause Resolution violate respondents’
academic freedom as law professors?
3.) Do the submissions of respondents satisfactorily explain why
they should not be disciplined as Members of the Bar under
Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily
explain why he should not be disciplined as a Member of the Bar
under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution
set for hearing and in relation to such hearing, are respondents
entitled to require the production or presentation of evidence
bearing on the plagiarism and misrepresentation issues in the
Vinuya case (G.R. No. 162230) and the ethics case against
Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to
the records and transcripts of, and the witnesses and evidence
presented, or could have been presented, in the ethics case
against Justice Del Castillo (A.M. No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of
expression.
It is respondents’ collective claim that the Court, with the issuance of the
Show Cause Resolution, has interfered with respondents’ constitutionally
mandated right to free speech and expression. It appears that the
underlying assumption behind respondents’ assertion is the
misconception that this Court is denying them the right to criticize the
Court’s decisions and actions, and that this Court seeks to "silence"
respondent law professors’ dissenting view on what they characterize as
a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will
plainly show that it was neither the fact that respondents had criticized a
decision of the Court nor that they had charged one of its members of
plagiarism that motivated the said Resolution. It was the manner of the
criticism and the contumacious language by which respondents, who are
not parties nor counsels in the Vinuya case, have expressed their opinion
in favor of the petitioners in the said pending case for the "proper
disposition" and consideration of the Court that gave rise to said
Resolution. The Show Cause Resolution painstakingly enumerated the
statements that the Court considered excessive and uncalled for under
the circumstances surrounding the issuance, publication, and later
submission to this Court of the UP Law faculty’s Restoring Integrity
Statement.
To reiterate, it was not the circumstance that respondents expressed a
belief that Justice Del Castillo was guilty of plagiarism but rather their
expression of that belief as "not only as an established fact, but a
truth"111 when it was "[o]f public knowledge [that there was] an ongoing
investigation precisely to determine the truth of such allegations." 112 It
was also pointed out in the Show Cause Resolution that there was a
pending motion for reconsideration of the Vinuya decision. 113 The Show
Cause Resolution made no objections to the portions of the Restoring
Integrity Statement that respondents claimed to be "constructive" but only
asked respondents to explain those portions of the said Statement that
by no stretch of the imagination could be considered as fair or
constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise
concern for the Court. The opening sentence alone is a grim preamble to
the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the
brave Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya
v. Executive Secretary as a reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the
basis of "polluted sources," the Court’s alleged indifference to the cause
of petitioners [in the Vinuya case], as well as the supposed alarming lack
of concern of the members of the Court for even the most basic values of
decency and respect.114 x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents’
freedom of expression when it stated that:
While most agree that the right to criticize the judiciary is critical to
maintaining a free and democratic society, there is also a general
consensus that healthy criticism only goes so far. Many types of criticism
leveled at the judiciary cross the line to become harmful and irresponsible
attacks. These potentially devastating attacks and unjust criticism can
threaten the independence of the judiciary. The court must "insist on
being permitted to proceed to the disposition of its business in an orderly
manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s
less than objective comments except to discredit the April 28, 2010
Decision in the Vinuya case and undermine the Court’s honesty, integrity
and competence in addressing the motion for its reconsideration. As if
the case on the comfort women’s claims is not controversial enough, the
UP Law faculty would fan the flames and invite resentment against a
resolution that would not reverse the said decision. This runs contrary to
their obligation as law professors and officers of the Court to be the first
to uphold the dignity and authority of this Court, to which they owe fidelity
according to the oath they have taken as attorneys, and not to promote
distrust in the administration of justice. 115 x x x. (Citations omitted;
emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents’
submissions, this Court has held that the right to criticize the courts and
judicial officers must be balanced against the equally primordial concern
that the independence of the Judiciary be protected from due influence or
interference. In cases where the critics are not only citizens but members
of the Bar, jurisprudence has repeatedly affirmed the authority of this
Court to discipline lawyers whose statements regarding the courts and
fellow lawyers, whether judicial or extrajudicial, have exceeded the limits
of fair comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez, 116 the Court found
Atty. Vicente J. Francisco both guilty of contempt and liable
administratively for the following paragraph in his second motion for
reconsideration:
We should like frankly and respectfully to make it of record that the
resolution of this court, denying our motion for reconsideration, is
absolutely erroneous and constitutes an outrage to the rights of the
petitioner Felipe Salcedo and a mockery of the popular will expressed at
the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all
the means within our power in order that this error may be corrected by
the very court which has committed it, because we should not want that
some citizen, particularly some voter of the municipality of Tiaong,
Tayabas, resort to the press publicly to denounce, as he has a right to
do, the judicial outrage of which the herein petitioner has been the victim,
and because it is our utmost desire to safeguard the prestige of this
honorable court and of each and every member thereof in the eyes of the
public. But, at the same time we wish to state sincerely that erroneous
decisions like these, which the affected party and his thousands of voters
will necessarily consider unjust, increase the proselytes of 'sakdalism'
and make the public lose confidence in the administration of
justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified
nor necessary and further held that:
[I]n order to call the attention of the court in a special way to the essential
points relied upon in his argument and to emphasize the force thereof,
the many reasons stated in his said motion were sufficient and the
phrases in question were superfluous. In order to appeal to reason and
justice, it is highly improper and amiss to make trouble and resort to
threats, as Attorney Vicente J. Francisco has done, because both means
are annoying and good practice can never sanction them by reason of
their natural tendency to disturb and hinder the free exercise of a serene
and impartial judgment, particularly in judicial matters, in the
consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J.
Francisco's motion contains a more or less veiled threat to the court
because it is insinuated therein, after the author shows the course which
the voters of Tiaong should follow in case he fails in his attempt, that they
will resort to the press for the purpose of denouncing, what he claims to
be a judicial outrage of which his client has been the victim; and because
he states in a threatening manner with the intention of predisposing the
mind of the reader against the court, thus creating an atmosphere of
prejudices against it in order to make it odious in the public eye, that
decisions of the nature of that referred to in his motion promote distrust in
the administration of justice and increase the proselytes of sakdalism, a
movement with seditious and revolutionary tendencies the activities of
which, as is of public knowledge, occurred in this country a few days ago.
This cannot mean otherwise than contempt of the dignity of the court and
disrespect of the authority thereof on the part of Attorney Vicente J.
Francisco, because he presumes that the court is so devoid of the sense
of justice that, if he did not resort to intimidation, it would maintain its error
notwithstanding the fact that it may be proven, with good reasons, that it
has acted erroneously.118 (Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their
quote from the minority view of Justice Malcolm. Moreover, Salcedo
concerned statements made in a pleading filed by a counsel in a case,
unlike the respondents here, who are neither parties nor counsels in
the Vinuya case and therefore, do not have any standing at all to interfere
in the Vinuya case. Instead of supporting respondents’ theory, Salcedo is
authority for the following principle:
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco, as any attorney, is in duty bound to uphold its dignity and
authority and to defend its integrity, not only because it has conferred
upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and
160), of being what he now is: a priest of justice (In re Thatcher, 80
Ohio St. Rep., 492, 669), but also because in so doing, he neither
creates nor promotes distrust in the administration of justice, and
prevents anybody from harboring and encouraging discontent which, in
many cases, is the source of disorder, thus undermining the foundation
upon which rests that bulwark called judicial power to which those who
are aggrieved turn for protection and relief. 119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his
injudicious statements in his pleading, by accusing the Court of
"erroneous ruling." Here, the respondents’ Statement goes way beyond
merely ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to
their position. In re: Atty. Vicente Raul Almacen, 120 cited in the Common
Compliance and the Vasquez Compliance, was an instance where the
Court indefinitely suspended a member of the Bar for filing and
releasing to the press a "Petition to Surrender Lawyer’s Certificate of
Title" in protest of what he claimed was a great injustice to his client
committed by the Supreme Court. In the decision, the petition was
described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men
who are calloused to our pleas for justice, who ignore without reasons
their own applicable decisions and commit culpable violations of the
Constitution with impunity." His client's he continues, who was deeply
aggrieved by this Court's "unjust judgment," has become "one of the
sacrificial victims before the altar of hypocrisy." In the same breath that
he alludes to the classic symbol of justice, he ridicules the members of
this Court, saying "that justice as administered by the present members
of the Supreme Court is not only blind, but also deaf and dumb." He then
vows to argue the cause of his client "in the people's forum," so that "the
people may know of the silent injustices committed by this Court," and
that "whatever mistakes, wrongs and injustices that were committed must
never be repeated." He ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the
certificate of the undersigned attorney and counsellor-at-law IN TRUST
with reservation that at any time in the future and in the event we regain
our faith and confidence, we may retrieve our title to assume the practice
of the noblest profession."121
It is true that in Almacen the Court extensively discussed foreign
jurisprudence on the principle that a lawyer, just like any citizen, has the
right to criticize and comment upon actuations of public officers, including
judicial authority. However, the real doctrine in Almacen is that such
criticism of the courts, whether done in court or outside of it, must
conform to standards of fairness and propriety. This case engaged in an
even more extensive discussion of the legal authorities sustaining this
view. To quote from that decision:
1awphi1
But it is the cardinal condition of all such criticism that it shall be bona
fide, and shall not spill over the walls of decency and propriety. A wide
chasm exists between fair criticism, on the one hand, and abuse and
slander of courts and the judges thereof, on the other. Intemperate and
unfair criticism is a gross violation of the duty of respect to courts. It is
such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and
duties which are not mere flux and ferment. His investiture into the legal
profession places upon his shoulders no burden more basic, more
exacting and more imperative than that of respectful behavior toward the
courts. He vows solemnly to conduct himself "with all good fidelity x x x to
the courts;" and the Rules of Court constantly remind him "to observe and
maintain the respect due to courts of justice and judicial officers." The
first canon of legal ethics enjoins him "to maintain towards the courts a
respectful attitude, not for the sake of the temporary incumbent of the
judicial office, but for the maintenance of its supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by
express declaration take upon themselves, when they are admitted to the
Bar, is not merely to be obedient to the Constitution and laws, but to
maintain at all times the respect due to courts of justice and judicial
officers. This obligation is not discharged by merely observing the rules of
courteous demeanor in open court, but includes abstaining out of court
from all insulting language and offensive conduct toward judges
personally for their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647,
652)
The lawyer's duty to render respectful subordination to the courts is
essential to the orderly administration of justice. Hence, in the assertion
of their clients' rights, lawyers — even those gifted with superior intellect
— are enjoined to rein up their tempers.
"The counsel in any case may or may not be an abler or more learned
lawyer than the judge, and it may tax his patience and temper to submit
to rulings which he regards as incorrect, but discipline and self-respect
are as necessary to the orderly administration of justice as they are to the
effectiveness of an army. The decisions of the judge must be obeyed,
because he is the tribunal appointed to decide, and the bar should at all
times be the foremost in rendering respectful submission." (In Re
Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so
as to be an attorney at one time and a mere citizen at another. Thus,
statements made by an attorney in private conversations or
communications or in the course of a political campaign, if couched in
insulting language as to bring into scorn and disrepute the administration
of justice, may subject the attorney to disciplinary action.122 (Emphases
and underscoring supplied.)
In a similar vein, In re: Vicente Sotto, 123 cited in the Vasquez Compliance,
observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior,
tending to obstruct the administration of justice, and subjects such
persons to contempt proceedings. Parties have a constitutional right to
have their causes tried fairly in court, by an impartial tribunal,
uninfluenced by publications or public clamor. Every citizen has a
profound personal interest in the enforcement of the fundamental right to
have justice administered by the courts, under the protection and forms
of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness
or unsoundness of the decision of the court in a pending case made in
good faith may be tolerated; because if well founded it may enlighten the
court and contribute to the correction of an error if committed; but if it is
not well taken and obviously erroneous, it should, in no way, influence
the court in reversing or modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years
committing deliberately "so many blunders and injustices," that is to say,
that it has been deciding in favor of one party knowing that the law and
justice is on the part of the adverse party and not on the one in whose
favor the decision was rendered, in many cases decided during the last
years, would tend necessarily to undermine the confidence of the people
in the honesty and integrity of the members of this Court, and
consequently to lower or degrade the administration of justice by this
Court. The Supreme Court of the Philippines is, under the Constitution,
the last bulwark to which the Filipino people may repair to obtain relief for
their grievances or protection of their rights when these are trampled
upon, and if the people lose their confidence in the honesty and integrity
of the members of this Court and believe that they cannot expect justice
therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos might be the result. As a member of the bar
and an officer of the courts Atty. Vicente Sotto, like any other, is in duty
bound to uphold the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney, and not to
promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation. 124 (Emphases and
underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law
can be easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer,
through the imposition of a fine, for making malicious and unfounded
criticisms of a judge in the guise of an administrative complaint and held,
thus:
As an officer of the court and its indispensable partner in the sacred task
of administering justice, graver responsibility is imposed upon a lawyer
than any other to uphold the integrity of the courts and to show respect to
its officers. This does not mean, however, that a lawyer cannot criticize a
judge. As we stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the
court, he cannot criticize the courts. That is his right as a citizen, and it is
even his duty as an officer of the court to avail of such right. Thus, in In
Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly
declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not
only to exercise the right, but also to consider it his duty to avail of such
right. No law may abridge this right. Nor is he "professionally answerable
to a scrutiny into the official conduct of the judges, which would not
expose him to legal animadversion as a citizen." (Case of Austin, 28 Am
Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in
Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticism, on the one hand, and abuse and slander of
courts and the judges thereof, on the other. Intemperate and unfair
criticism is a gross violation of the duty of respect to courts. It is such a
misconduct, that subjects a lawyer to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom
of speech and of expression in the Bill of Rights of the Constitution, must
be exercised responsibly, for every right carries with it a corresponding
obligation. Freedom is not freedom from responsibility, but freedom with
responsibility. x x x.
xxxx
Proscribed then are, inter alia, the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily to undermine the
confidence of people in the integrity of the members of this Court and to
degrade the administration of justice by this Court (In re: Sotto, 82 Phil.
595 [1949]); or of offensive and abusive language (In re: Rafael Climaco,
55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs.
Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive,
manifestly baseless, and malicious statements in pleadings or in a letter
addressed to the judge (Baja vs. Macandog, 158 SCRA [1988], citing the
resolution of 19 January 1988 in Phil. Public Schools Teachers
Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian,
130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for
remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87
[1989]).
Any criticism against a judge made in the guise of an administrative
complaint which is clearly unfounded and impelled by ulterior motive will
not excuse the lawyer responsible therefor under his duty of fidelity to his
client. x x x.126 (Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty
of simple misconduct for using intemperate language in his pleadings and
imposed a fine upon him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and
candor toward his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to
the courts and to judicial officers and should insist on similar
conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted
members of the bar to use strong language in pursuit of their duty to
advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor
and courage, such enthusiasm does not justify the use of offensive
and abusive language. Language abounds with countless
possibilities for one to be emphatic but respectful, convincing but
not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to
abstain from all offensive personality and to advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged. In keeping
with the dignity of the legal profession, a lawyer’s language even in his
pleadings must be dignified. 128
Verily, the accusatory and vilifying nature of certain portions of the
Statement exceeded the limits of fair comment and cannot be deemed as
protected free speech. Even In the Matter of Petition for Declaratory
Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections,129 relied upon by respondents in the Common
Compliance, held that:
From the language of the specific constitutional provision, it would appear
that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a
complex society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all
times and under all circumstances it should remain unfettered and
unrestrained. There are other societal values that press for recognition. x
x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is
the threat to judicial independence and the orderly administration of
justice that immoderate, reckless and unfair attacks on judicial decisions
and institutions pose. This Court held as much in Zaldivar v.
Sandiganbayan and Gonzales, 131 where we indefinitely suspended a
lawyer from the practice of law for issuing to the media statements
grossly disrespectful towards the Court in relation to a pending case, to
wit:
Respondent Gonzales is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of
expression, like all constitutional freedoms, is not absolute and that
freedom of expression needs on occasion to be adjusted to and
accommodated with the requirements of equally important public interest.
One of these fundamental public interests is the maintenance of the
integrity and orderly functioning of the administration of justice. There is
no antinomy between free expression and the integrity of the system of
administering justice. For the protection and maintenance of freedom of
expression itself can be secured only within the context of a functioning
and orderly system of dispensing justice, within the context, in other
words, of viable independent institutions for delivery of justice which are
accepted by the general community. x x x. 132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some
respondents 133 that the Statement presents no grave or imminent danger
to a legitimate public interest.
The Show Cause Resolution does not interfere with respondents’
academic freedom.
It is not contested that respondents herein are, by law and jurisprudence,
guaranteed academic freedom and undisputably, they are free to
determine what they will teach their students and how they will teach. We
must point out that there is nothing in the Show Cause Resolution that
dictates upon respondents the subject matter they can teach and the
manner of their instruction. Moreover, it is not inconsistent with the
principle of academic freedom for this Court to subject lawyers who teach
law to disciplinary action for contumacious conduct and speech, coupled
with undue intervention in favor of a party in a pending case, without
observing proper procedure, even if purportedly done in their capacity as
teachers.
A novel issue involved in the present controversy, for it has not been
passed upon in any previous case before this Court, is the question of
whether lawyers who are also law professors can invoke academic
freedom as a defense in an administrative proceeding for intemperate
statements tending to pressure the Court or influence the outcome of a
case or degrade the courts.
Applying by analogy the Court’s past treatment of the "free speech"
defense in other bar discipline cases, academic freedom cannot be
successfully invoked by respondents in this case. The implicit ruling in the
jurisprudence discussed above is that the constitutional right to freedom
of expression of members of the Bar may be circumscribed by their
ethical duties as lawyers to give due respect to the courts and to uphold
the public’s faith in the legal profession and the justice system. To our
mind, the reason that freedom of expression may be so delimited in the
case of lawyers applies with greater force to the academic freedom of law
professors.
It would do well for the Court to remind respondents that, in view of the
broad definition in Cayetano v. Monsod, 134lawyers when they teach law
are considered engaged in the practice of law. Unlike professors in other
disciplines and more than lawyers who do not teach law, respondents are
bound by their oath to uphold the ethical standards of the legal
profession. Thus, their actions as law professors must be measured
against the same canons of professional responsibility applicable to acts
of members of the Bar as the fact of their being law professors is
inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents’ proposition in the
Common Compliance that their issuance of the Statement was in keeping
with their duty to "participate in the development of the legal system by
initiating or supporting efforts in law reform and in the improvement of the
administration of justice" under Canon 4 of the Code of Professional
Responsibility, we cannot agree that they have fulfilled that same duty in
keeping with the demands of Canons 1, 11 and 13 to give due respect to
legal processes and the courts, and to avoid conduct that tends to
influence the courts. Members of the Bar cannot be selective regarding
which canons to abide by given particular situations. With more reason
that law professors are not allowed this indulgence, since they are
expected to provide their students exemplars of the Code of Professional
Responsibility as a whole and not just their preferred portions thereof.
The Court’s rulings on the submissions regarding the charge of violation
of Canons 1, 11 and 13.
Having disposed of respondents’ main arguments of freedom of
expression and academic freedom, the Court considers here the other
averments in their submissions.
With respect to good faith, respondents’ allegations presented two main
ideas: (a) the validity of their position regarding the plagiarism charge
against Justice Del Castillo, and (b) their pure motive to spur this Court to
take the correct action on said issue.
The Court has already clarified that it is not the expression of
respondents’ staunch belief that Justice Del Castillo has committed a
misconduct that the majority of this Court has found so unbecoming in
the Show Cause Resolution. No matter how firm a lawyer’s conviction in
the righteousness of his cause there is simply no excuse for denigrating
the courts and engaging in public behavior that tends to put the courts
and the legal profession into disrepute. This doctrine, which we have
repeatedly upheld in such cases as Salcedo, In re Almacen and
Saberong, should be applied in this case with more reason, as the
respondents, not parties to the Vinuya case, denounced the Court and
urged it to change its decision therein, in a public statement using
contumacious language, which with temerity they subsequently submitted
to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor
of the Malaya Lolas was one of the objectives of the Statement could be
seen in the following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not
only of Filipino women, but of women elsewhere in the world who have
suffered the horrors of sexual abuse and exploitation in times of war, the
Court cannot coldly deny relief and justice to the petitioners on the basis
of pilfered and misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case
does violence to the primordial function of the Supreme Court as the
ultimate dispenser of justice to all those who have been left without legal
or equitable recourse, such as the petitioners therein. 135 (Emphases and
underscoring supplied.)
Whether or not respondents’ views regarding the plagiarism issue in
the Vinuya case had valid basis was wholly immaterial to their liability for
contumacious speech and conduct. These are two separate matters to
be properly threshed out in separate proceedings. The Court considers it
highly inappropriate, if not tantamount to dissembling, the discussion
devoted in one of the compliances arguing the guilt of Justice Del
Castillo. In the Common Compliance, respondents even go so far as to
attach documentary evidence to support the plagiarism charges against
Justice Del Castillo in the present controversy. The ethics case of Justice
Del Castillo (A.M. No. 10-7-17-SC), with the filing of a motion for
reconsideration, was still pending at the time of the filing of respondents’
submissions in this administrative case. As respondents themselves
admit, they are neither parties nor counsels in the ethics case against
Justice Del Castillo. Notwithstanding their professed overriding interest in
said ethics case, it is not proper procedure for respondents to bring up
their plagiarism arguments here especially when it has no bearing on
their own administrative case.
Still on motive, it is also proposed that the choice of language in the
Statement was intended for effective speech; that speech must be
"forceful enough to make the intended recipients listen." 136 One wonders
what sort of effect respondents were hoping for in branding this Court as,
among others, callous, dishonest and lacking in concern for the basic
values of decency and respect. The Court fails to see how it can ennoble
the profession if we allow respondents to send a signal to their students
that the only way to effectively plead their cases and persuade others to
their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were
deliberately quoted in full in the narration of background facts to illustrate
the sharp contrast between the civil tenor of these letters and the
antagonistic irreverence of the Statement. In truth, these foreign authors
are the ones who would expectedly be affected by any perception of
misuse of their works. Notwithstanding that they are beyond the
disciplinary reach of this Court, they still obviously took pains to convey
their objections in a deferential and scholarly manner. It is unfathomable
to the Court why respondents could not do the same. These foreign
authors’ letters underscore the universality of the tenet that legal
professionals must deal with each other in good faith and due respect.
The mark of the true intellectual is one who can express his opinions
logically and soberly without resort to exaggerated rhetoric and
unproductive recriminations.
As for the claim that the respondents’ noble intention is to spur the Court
to take "constructive action" on the plagiarism issue, the Court has some
doubts as to its veracity. For if the Statement was primarily meant for this
Court’s consideration, why was the same published and reported in the
media first before it was submitted to this Court? It is more plausible that
the Statement was prepared for consumption by the general public and
designed to capture media attention as part of the effort to generate
interest in the most controversial ground in the Supplemental Motion for
Reconsideration filed in the Vinuya case by Atty. Roque, who is
respondents’ colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance
of fidelity and due respect to the Court, particularly when respondents
knew fully well that the matter of plagiarism in the Vinuya decision and
the merits of the Vinuya decision itself, at the time of the Statement’s
issuance, were still both sub judice or pending final disposition of the
Court. These facts have been widely publicized. On this point,
respondents allege that at the time the Statement was first drafted on
July 27, 2010, they did not know of the constitution of the Ethics
Committee and they had issued the Statement under the belief that this
Court intended to take no action on the ethics charge against Justice Del
Castillo. Still, there was a significant lapse of time from the drafting and
printing of the Statement on July 27, 2010 and its publication and
submission to this Court in early August when the Ethics Committee had
already been convened. If it is true that the respondents’ outrage was
fueled by their perception of indifference on the part of the Court then,
when it became known that the Court did intend to take action, there was
nothing to prevent respondents from recalibrating the Statement to take
this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no
merit in the respondents’ reliance on various news reports and
commentaries in the print media and the internet as proof that they are
being unfairly "singled out." On the contrary, these same annexes to the
Common Compliance show that it is not enough for one to criticize the
Court to warrant the institution of disciplinary 137 or contempt138 action. This
Court takes into account the nature of the criticism and weighs the
possible repercussions of the same on the Judiciary. When the criticism
comes from persons outside the profession who may not have a full
grasp of legal issues or from individuals whose personal or other
interests in making the criticism are obvious, the Court may perhaps
tolerate or ignore them. However, when law professors are the ones who
appear to have lost sight of the boundaries of fair commentary and
worse, would justify the same as an exercise of civil liberties, this Court
cannot remain silent for such silence would have a grave implication on
legal education in our country.
With respect to the 35 respondents named in the Common Compliance,
considering that this appears to be the first time these respondents have
been involved in disciplinary proceedings of this sort, the Court is willing
to give them the benefit of the doubt that they were for the most part well-
intentioned in the issuance of the Statement. However, it is established in
jurisprudence that where the excessive and contumacious language used
is plain and undeniable, then good intent can only be mitigating. As this
Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his
intention to offend the court or to be recreant to the respect thereto but,
unfortunately, there are his phrases which need no further comment.
Furthermore, it is a well settled rule in all places where the same
conditions and practice as those in this jurisdiction obtain, that want of
intention is no excuse from liability (13 C. J., 45). Neither is the fact that
the phrases employed are justified by the facts a valid defense:
"Where the matter is abusive or insulting, evidence that the language
used was justified by the facts is not admissible as a defense. Respect
for the judicial office should always be observed and enforced." (In re
Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention
constitutes at most an extenuation of liability in this case, taking into
consideration Attorney Vicente J. Francisco's state of mind, according to
him when he prepared said motion. This court is disposed to make such
concession. However, in order to avoid a recurrence thereof and to
prevent others, by following the bad example, from taking the same
course, this court considers it imperative to treat the case of said attorney
with the justice it deserves. 139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should,
notwithstanding their claim of good faith, be reminded of their lawyerly
duty, under Canons 1, 11 and 13, to give due respect to the courts and to
refrain from intemperate and offensive language tending to influence the
Court on pending matters or to denigrate the courts and the
administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences
in his Compliance compared to his colleagues. In our view, he was the
only one among the respondents who showed true candor and sincere
deference to the Court. He was able to give a straightforward account of
how he came to sign the Statement. He was candid enough to state that
his agreement to the Statement was in principle and that the reason
plagiarism was a "fair topic of discussion" among the UP Law faculty prior
to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-
17-SC was the uncertainty brought about by a division of opinion on
whether or not willful or deliberate intent was an element of plagiarism.
He was likewise willing to acknowledge that he may have been remiss in
failing to assess the effect of the language of the Statement and could
have used more care. He did all this without having to retract his position
on the plagiarism issue, without demands for undeserved reliefs (as will
be discussed below) and without baseless insinuations of deprivation of
due process or of prejudgment. This is all that this Court expected from
respondents, not for them to sacrifice their principles but only that they
recognize that they themselves may have committed some ethical lapse
in this affair. We commend Prof. Vaquez for showing that at least one of
the respondents can grasp the true import of the Show Cause Resolution
involving them. For these reasons, the Court finds Prof. Vasquez’s
Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the
Bar of the State of Minnesota and, therefore, not under the disciplinary
authority of this Court, he should be excused from these proceedings.
However, he should be reminded that while he is engaged as a professor
in a Philippine law school he should strive to be a model of responsible
and professional conduct to his students even without the threat of
sanction from this Court. For even if one is not bound by the Code of
Professional Responsibility for members of the Philippine Bar, civility and
respect among legal professionals of any nationality should be aspired
for under universal standards of decency and fairness.
The Court’s ruling on Dean Leonen’s Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show
cause why he should not be disciplinary dealt with for violation of Canon
10, Rules 10.01, 10.02 and 10.03 and for submitting a "dummy" that was
not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring
Integrity II was not a true and faithful reproduction of the actual signed
copy, Restoring Integrity I, because looking at the text or the body,
there were no differences between the two. He attempts to downplay the
discrepancies in the signature pages of the two versions of the Statement
(i.e., Restoring Integrity I and Restoring Integrity II) by claiming that it
is but expected in "live" public manifestos with dynamic and evolving
pages as more and more signatories add their imprimatur thereto. He
likewise stresses that he is not administratively liable because he did not
misrepresent the members of the UP Law faculty who "had agreed with
the Restoring Integrity Statement proper and/or who had expressed their
desire to be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonen’s implied view
that the signatures in the Statement are not as significant as its contents.
Live public manifesto or not, the Statement was formally submitted to this
Court at a specific point in time and it should reflect accurately its
signatories at that point. The value of the Statement as a UP Law Faculty
Statement lies precisely in the identities of the persons who have signed
it, since the Statement’s persuasive authority mainly depends on the
reputation and stature of the persons who have endorsed the same.
Indeed, it is apparent from respondents’ explanations that their own belief
in the "importance" of their positions as UP law professors prompted
them to publicly speak out on the matter of the plagiarism issue in the
Vinuya case.
Further, in our assessment, the true cause of Dean Leonen’s
predicament is the fact that he did not from the beginning submit the
signed copy, Restoring Integrity I, to this Court on August 11, 2010 and,
instead, submitted Restoring Integrity II with its retyped or "reformatted"
signature pages. It would turn out, according to Dean Leonen’s account,
that there were errors in the retyping of the signature pages due to lapses
of his unnamed staff. First, an unnamed administrative officer in the
dean’s office gave the dean inaccurate information that led him to allow
the inclusion of Justice Mendoza as among the signatories of Restoring
Integrity II. Second, an unnamed staff also failed to type the name of Atty.
Armovit when encoding the signature pages of Restoring Integrity II when
in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin
board or a website a signed document may have to be reformatted and
signatures may be indicated by the notation (SGD). This is not unusual.
We are willing to accept that the reformatting of documents meant for
posting to eliminate blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this
Court, of a signed document for the Court’s consideration that did not
contain the actual signatures of its authors. In most cases, it is
the original signed document that is transmitted to the Court or at the
very least a photocopy of the actual signed document. Dean Leonen has
not offered any explanation why he deviated from this practice with his
submission to the Court of Restoring Integrity II on August 11, 2010.
There was nothing to prevent the dean from submitting Restoring
Integrity I to this Court even with its blanks and unsigned portions. Dean
Leonen cannot claim fears of vandalism with respect to court
submissions for court employees are accountable for the care of
documents and records that may come into their custody. Yet, Dean
Leonen deliberately chose to submit to this Court the facsimile that did
not contain the actual signatures and his silence on the reason therefor is
in itself a display of lack of candor.
Still, a careful reading of Dean Leonen’s explanations yield the answer. In
the course of his explanation of his willingness to accept his
administrative officer’s claim that Justice Mendoza agreed to be indicated
as a signatory, Dean Leonen admits in a footnote that other professors
had likewise only authorized him to indicate them as signatories and had
not in fact signed the Statement. Thus, at around the time Restoring
Integrity II was printed, posted and submitted to this Court, at least one
purported signatory thereto had not actually signed the same. Contrary to
Dean Leonen’s proposition, that is precisely tantamount to making it
appear to this Court that a person or persons participated in an act when
such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for
perfection and stringent standards of intellectual honesty, could proffer
the explanation that there was no misrepresentation when he allowed at
least one person to be indicated as having actually signed the Statement
when all he had was a verbal communication of an intent to sign. In the
case of Justice Mendoza, what he had was only hearsay information that
the former intended to sign the Statement. If Dean Leonen was truly
determined to observe candor and truthfulness in his dealings with the
Court, we see no reason why he could not have waited until all the
professors who indicated their desire to sign the Statement had in fact
signed before transmitting the Statement to the Court as a duly signed
document. If it was truly impossible to secure some signatures, such as
that of Justice Mendoza who had to leave for abroad, then Dean Leonen
should have just resigned himself to the signatures that he was able to
secure.
We cannot imagine what urgent concern there was that he could not wait
for actual signatures before submission of the Statement to this Court. As
respondents all asserted, they were neither parties to nor counsels in the
Vinuya case and the ethics case against Justice Del Castillo. The
Statement was neither a pleading with a deadline nor a required
submission to the Court; rather, it was a voluntary submission that Dean
Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen’s Compliance
unsatisfactory. However, the Court is willing to ascribe these isolated
lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his
objectives. In due consideration of Dean Leonen’s professed good
intentions, the Court deems it sufficient to admonish Dean Leonen for
failing to observe full candor and honesty in his dealings with the Court
as required under Canon 10.
Respondents’ requests for a hearing, for production/presentation of
evidence bearing on the plagiarism and misrepresentation issues in G.R.
No. 162230 and A.M. No. 10-7-17-SC, and for access to the records of
A.M. No. 10-7-17-SC are unmeritorious.
In the Common Compliance, respondents named therein asked for
alternative reliefs should the Court find their Compliance unsatisfactory,
that is, that the Show Cause Resolution be set for hearing and for that
purpose, they be allowed to require the production or presentation of
witnesses and evidence bearing on the plagiarism and misrepresentation
issues in the Vinuya case (G.R. No. 162230) and the plagiarism case
against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to
the records of, and evidence that were presented or may be presented in
the ethics case against Justice Del Castillo. The prayer for a hearing and
for access to the records of A.M. No. 10-7-17-SC was substantially
echoed in Dean Leonen’s separate Compliance. In Prof. Juan-Bautista’s
Compliance, she similarly expressed the sentiment that "[i]f the Restoring
Integrity Statement can be considered indirect contempt, under Section 3
of Rule 71 of the Rules of Court, such may be punished only after charge
and hearing."141 It is this group of respondents’ premise that these reliefs
are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing
in this case springs largely from its characterization as a special civil
action for indirect contempt in the Dissenting Opinion of Justice Sereno
(to the October 19, 2010 Show Cause Resolution) and her reliance
therein on the majority’s purported failure to follow the procedure in Rule
71 of the Rules of Court as her main ground for opposition to the Show
Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect
contempt proceeding and Rule 71 (which requires a hearing) has no
application to this case. As explicitly ordered in the Show Cause
Resolution this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on
disciplinary proceedings initiated motu proprio by the Supreme Court, to
wit:
SEC. 13. Supreme Court Investigators.—In proceedings initiated motu
proprio by the Supreme Court or in other proceedings when the interest
of justice so requires, the Supreme Court may refer the case for
investigation to the Solicitor General or to any officer of the Supreme
Court or judge of a lower court, in which case the investigation shall
proceed in the same manner provided in sections 6 to 11 hereof, save
that the review of the report of investigation shall be conducted directly by
the Supreme Court. (Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal
investigation, through a referral to the specified officers, is merely
discretionary, not mandatory on the Court. Furthermore, it is only if the
Court deems such an investigation necessary that the procedure in
Sections 6 to 11 of Rule 139-A will be followed.
As respondents are fully aware, in general, administrative proceedings do
not require a trial type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as
applied to administrative proceedings, an opportunity to explain one's
side or an opportunity to seek a reconsideration of the action or ruling
complained of. What the law prohibits is absolute absence of the
opportunity to be heard, hence, a party cannot feign denial of due
process where he had been afforded the opportunity to present his side.
A formal or trial type hearing is not at all times and in all instances
essential to due process, the requirements of which are satisfied where
the parties are afforded fair and reasonable opportunity to explain their
side of the controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had the occasion to rule in
Pena v. Aparicio143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely
civil nor purely criminal, they do not involve a trial of an action or a suit,
but is rather an investigation by the Court into the conduct of one of its
officers. Not being intended to inflict punishment, it is in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. It may be initiated by the Court motu proprio. Public
interest is its primary objective, and the real question for determination is
whether or not the attorney is still a fit person to be allowed the privileges
as such. Hence, in the exercise of its disciplinary powers, the Court
merely calls upon a member of the Bar to account for his actuations as
an officer of the Court with the end in view of preserving the purity of the
legal profession and the proper and honest administration of justice by
purging the profession of members who by their misconduct have proved
themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture,
there can thus be no occasion to speak of a complainant or a
prosecutor.144 (Emphases supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81,
Romblon – On the Prohibition from Engaging in the Private Practice of
Law,145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further
inquiry or resort to any formal investigation where the facts on record
sufficiently provided the basis for the determination of their administrative
liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need
of any further investigation after considering his actions based on records
showing his unethical misconduct; the misconduct not only cast dishonor
on the image of both the Bench and the Bar, but was also inimical to
public interest and welfare. In this regard, the Court took judicial notice of
several cases handled by the errant lawyer and his cohorts that revealed
their modus operandi in circumventing the payment of the proper judicial
fees for the astronomical sums they claimed in their cases. The Court
held that those cases sufficiently provided the basis for the determination
of respondents' administrative liability, without need for further inquiry into
the matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no
evidentiary hearing is required before the respondent may be disciplined
for professional misconduct already established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against
and/or formal investigation of an errant lawyer do not preclude the Court
from immediately exercising its disciplining authority, as long as the
errant lawyer or judge has been given the opportunity to be heard. As we
stated earlier, Atty. Buffe has been afforded the opportunity to be heard
on the present matter through her letter-query and Manifestation filed
before this Court.146(Emphases supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a
hearing and their reservation of a right they do not have has no effect on
these proceedings. Neither have they shown in their pleadings any
justification for this Court to call for a hearing in this instance. They have
not specifically stated what relevant evidence, documentary or
testimonial, they intend to present in their defense that will necessitate a
formal hearing.
Instead, it would appear that they intend to present records, evidence,
and witnesses bearing on the plagiarism and misrepresentation issues in
the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the
findings of this Court which were the bases of the Show Cause
Resolution were made in A.M. No. 10-7-17-SC, or were related to the
conclusions of the Court in the Decision in that case. This is the primary
reason for their request for access to the records and evidence presented
in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate,
the only incident in A.M. No. 10-7-17-SC that is relevant to the case at
bar is the fact that the submission of the actual signed copy of the
Statement (or Restoring Integrity I, as Dean Leonen referred to it)
happened there. Apart from that fact, it bears repeating that the
proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del
Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause
Resolution that the respondents issued a Statement with language that
the Court deems objectionable during the pendency of the Vinuya case
and the ethics case against Justice Del Castillo, respondents need to go
no further than the four corners of the Statement itself, its various
versions, news reports/columns (many of which respondents themselves
supplied to this Court in their Common Compliance) and internet sources
that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the
language of the Statement and the circumstances surrounding the
drafting, printing, signing, dissemination, etc., of its various versions, the
Court does not see how any witness or evidence in the ethics case of
Justice Del Castillo could possibly shed light on these facts. To be sure,
these facts are within the knowledge of respondents and if there is any
evidence on these matters the same would be in their possession.
We find it significant that in Dean Leonen’s Compliance he narrated how
as early as September 2010, i.e., before the Decision of this Court in the
ethics case of Justice Del Castillo on October 12, 2010 and before the
October 19, 2010 Show Cause Resolution, retired Supreme Court Justice
Vicente V. Mendoza, after being shown a copy of the Statement upon his
return from abroad, predicted that the Court would take some form of
action on the Statement. By simply reading a hard copy of the Statement,
a reasonable person, even one who "fundamentally agreed" with the
Statement’s principles, could foresee the possibility of court action on the
same on an implicit recognition that the Statement, as worded, is not a
matter this Court should simply let pass. This belies respondents’ claim
that it is necessary for them to refer to any record or evidence in A.M. No.
10-7-17-SC in order to divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in
their respective compliances or chosen not to make a full defense at this
time, because they were counting on being granted a hearing, that is
respondents’ own look-out. Indeed, law professors of their stature are
supposed to be aware of the above jurisprudential doctrines regarding
the non-necessity of a hearing in disciplinary cases. They should bear the
consequence of the risk they have taken.
Thus, respondents’ requests for a hearing and for access to the records
of, and evidence presented in, A.M. No. 10-7-17-SC should be denied for
lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to
have monolithic views on any subject, be it a legal, political or social
issue. Even as lawyers passionately and vigorously propound their points
of view they are bound by certain rules of conduct for the legal
profession. This Court is certainly not claiming that it should be shielded
from criticism. All the Court demands is the same respect and courtesy
that one lawyer owes to another under established ethical standards. All
lawyers, whether they are judges, court employees, professors or private
practitioners, are officers of the Court and have voluntarily taken an oath,
as an indispensable qualification for admission to the Bar, to conduct
themselves with good fidelity towards the courts. There is no exemption
from this sworn duty for law professors, regardless of their status in the
academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his
submission, the Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys.
Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin,
Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison,
Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O.
Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad,
Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose
Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa
Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A.
Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion
L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C.
Laureta, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D.
Villanueva and Dina D. Lucenario, is found UNSATISFACTORY.
These 35 respondent law professors are reminded of their
lawyerly duty, under Canons 1, 11 and 13 of the Code of
Professional Responsibility, to give due respect to the Court and
to refrain from intemperate and offensive language tending to
influence the Court on pending matters or to denigrate the Court
and the administration of justice and warned that the same or
similar act in the future shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen
regarding the charge of violation of Canon 10 is found
UNSATISFACTORY. He is further ADMONISHED to be more
mindful of his duty, as a member of the Bar, an officer of the
Court, and a Dean and professor of law, to observe full candor
 and honesty in his dealings with the Court and warned that the
same or similar act in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is
excused from these proceedings. However, he is reminded that
while he is engaged as a professor in a Philippine law school he
should strive to be a model of responsible and professional
conduct to his students even without the threat of sanction from
this Court.
(5) Finally, respondents’ requests for a hearing and for access to
the records of A.M. No. 10-7-17-SC are denied for lack of merit.
SO ORDERED.
DISSENTING OPINION
CARPIO, J.:
I find the Compliance of the 37 legal scholars 1 satisfactory and therefore
see no need to admonish or warn them2for supposed use of disrespectful
language in their statement 3 commenting on a public issue involving the
official conduct of a member of this Court. The majority’s action
impermissibly expands the Court’s administrative powers4and, more
importantly, abridges constitutionally protected speech on public conduct
guaranteed to all, including members of the bar.
First. The matter of Justice Mariano del Castillo’s reported misuse and
non-attribution of sources in his ponencia in Vinuya v. Executive
Secretary 5 is an issue of public concern. A day before
the Vinuya petitioners’ counsels filed their supplemental motion for
reconsideration on 19 July 2010 raising these allegations, a national TV
network carried a parallel story online. 6 On the day the pleading was filed,
another national TV network7 and an online news magazine, 8 carried the
same story. Soon, one of the authors allegedly plagiarized commented
that the work he and a co-author wrote was misrepresented
in Vinuya.9 Justice del Castillo himself widened the scope of publicity by
submitting his official response to the allegations to a national daily which
published his comment in full. 10 Justice del Castillo’s defenses of good
faith and non-liability11 echoed an earlier statement made by the Chief of
the Court’s Public Information Office. 12 These unfolding events generated
an all-important public issue affecting no less than the integrity of this
Court’s decision-making – its core constitutional function – thus
inexorably inviting public comment.
Along with other sectors, the law faculty of the University of the
Philippines (UP), which counts among its ranks some of this country’s
legal experts,13 responded by issuing a statement, 14 bewailing what the
professors see as the Court’s indifference to the perceived dishonesty in
the crafting of the Vinuya ponencia and its aggravating effect on
the Vinuya petitioners’ cause, refuting Justice del Castillo’s defenses,
underscoring the seriousness of the issue, and calling for the adoption of
individual and institutional remedial measures. 15 This is prime political
speech critical of conduct of public officials and institution, delivered in
public forum. Under the scheme of our constitutional values, this species
of speech enjoys the highest protection, 16 rooted on the deeply-held
notion that "the interest of society and the maintenance of good
government demand a full discussion of public affairs." 17 Indeed,
preceding western jurisprudence by nearly five decades, this Court, in the
first score of the last century, identified the specific right to criticize official
conduct as protected speech, branding attempts by courts to muzzle
criticism as "tyranny of the basest sort."18
Second. In testing whether speech critical of judges and judicial
processes falls outside the ambit of constitutionally protected expression,
spilling into the territory of sanctionable utterances, this Court adheres to
the "clear and present danger" test. 19 Under this analytical framework, an
utterance is constitutionally protected unless "the evil consequence of the
comment or utterance [is] ‘extremely serious and the degree of
imminence extremely high.’"20
It appears that the evil consequences the UP law faculty statement will
supposedly spawn are (1) the slurring of this Court’s dignity and (2) the
impairment of its judicial independence vis-à-vis the resolution of the
plagiarism complaint in Vinuya. Both are absent here. On the matter of
institutional degradation, the 12-paragraph, 1,553-word statement of the
UP law faculty, taken as a whole, does not exhibit that "irrational
obsession to demean, ridicule, degrade and even destroy the courts and
their members" typical of unprotected judicial criticism. 21 On the contrary,
the statement, taken as a whole, seeks to uphold the bedrock democratic
value of keeping judicial processes free of any taint of dishonesty or
misrepresentation. Thus, the UP law faculty statement is far removed
from speech the Court has rightly sanctioned for proffering no useful
social value, solely crafted to vilify its members and threaten its very
existence.22
On the alleged danger of impairment of this Court’s judicial independe nce
in resolving the plagiarism charge in Vinuya, this too, did not come to
pass. In the Resolution of 8 February 2011 in A.M. No. 10-17-17-
SC,23 the Court denied reconsideration to its earlier ruling finding no merit
in the Vinuya petitioners’ claim of plagiarism. Not a single word in the 8
February 2011 Resolution hints that the UP law faculty statement
pressured, much less threatened, this Court to decide the motion for
reconsideration for the Vinuya petitioners. Thus, the 8 February 2011
Resolution gives the lie to the conclusion that the UP law faculty
statement posed any danger, much less one that is "extremely serious,"
to the Court’s independence.
Third. The conclusion that the UP law faculty statement disrespects the
Court and its members is valid only if the statement is taken apart, its
dismembered parts separately scrutinized to isolate and highlight
perceived offensive phrases and words. This approach defies common
sense and departs from this Court’s established practice in scrutinizing
speech critical of the judiciary. People v. Godoy 24 instructs that speech
critical of judges must be "read with contextual care," making sure that
disparaging statements are not "taken out of context."25 Using this
approach, and applying the clear and present danger test, the Court
in Godoy cleared a columnist and a publisher of liability despite the
presence in the assailed news article of derogatory yet isolated
statements about a judge. We can do no less to the statement of the
members of the UP law faculty, who, after all, were impelled by nothing
but their sense of professional obligation to "speak out on a matter of
public concern and one that is of vital interest to them."26
On the supposed unpleasant tone of the statement, critical speech, by its
nature, is caustic and biting. It is for this same reason, however, that it
enjoys special constitutional protection. "The constitution does not apply
only to sober, carefully reasoned discussion. There may be at least some
value in permitting cranky, obstreperous, defiant conduct by lawyers on
the ground that it encourages a public culture of skepticism, anti-
authoritarianism, pluralism, and openness. It is important to remember
that the social function of lawyers is not only to preserve order, but also
to permit challenges to the status quo."27
Supreme Court Justices, as public officials, and the Supreme Court, as
an institution, are entitled to no greater immunity from criticism than other
public officials and institutions. 28 The members of this Court are sustained
by the people’s resources and our actions are always subject to their
accounting.29 Thus, instead of shielding ourselves with a virtual lese-
majeste rule, wholly incompatible with the Constitution’s vision of public
office as a "public trust,"30we should heed our own near century-old
counsel: a clear conscience, not muzzled critics, is the balm for wounds
caused by a "hostile and unjust accusation" on official conduct. 31
Fourth. The academic bar, which the UP law faculty represents, is the
judiciary’s partner in a perpetual intellectual conversation to promote the
rule of law and build democratic institutions. It serves the interest of
sustaining this vital relationship for the Court to constructively respond to
the academics’ criticism. Instead of heeding the UP law faculty’s call for
the Court to "ensur[e] that not only the content, but also the processes of
preparing and writing its own decisions, are credible and beyond
question," the majority dismisses their suggestion as useless calumny
and brands their constitutionally protected speech as "unbecoming of
lawyers and law professors." The Constitution, logic, common sense and
a humble awareness of this Court’s role in the larger project of
dispensing justice in a democracy revolt against such response.
Accordingly, I vote to consider respondents’ explanation in their common
and individual Compliance as satisfactory and to consider this matter
closed and terminated.
ANTONIO T. CARPIO
Associate Justice
DISSENTING OPINION
CARPIO MORALES, J.:
Consistent with my dissent from the Court’s October 19, 2010
Resolution, I maintain my position that, in the first place, there was no
reasonable ground to motu proprio initiate the administrative case, in
view of (1) the therein discussed injudiciousness attending the
Resolution, anchored on an irregularly concluded finding of indirect
contempt with adverse declarations prematurely describing the subject
Statement of the UP Law Faculty that could taint the disciplinary action,
and (2) the Court’s conventionally permissive attitude toward the
"expression of belief" or "manner of criticism" coming from legal
academics, lawyer-columnists, and civic circles, in a number of high-
profile cases, most notably at the height of the "CJ Appointment Issue"
during which time the motion for reconsideration of the Court’s decision
was similarly pending.
CONCHITA CARPIO MORALES
Associate Justice
DISSENTING OPINION
SERENO, J.:
The history of the Supreme Court shows that the times when it emerged
with strength from tempests of public criticism were those times when it
valued constitutional democracy and its own institutional integrity. Indeed,
dangers from pressure and threat presented by what is usually
constitutionally deemed as free speech can arise only when the Court
allows itself to be so threatened. It is unfortunate when a tribunal admits
that its core of independence can be shaken by a twelve-paragraph, two-
page commentary from academia. By issuing the Show Cause Order,
and affirming it in the current Decision, the Court puts itself in the
precarious position of shackling free speech and expression. The Court,
which has the greater duty of restraint and sobriety, but which appears to
the public to have failed to transcend its instinct for self-preservation and
to rise above its own hurt, gains nothing by punishing those who, to its
mind, also lacked such restraint.
I join the dissents of Justices Antonio T. Carpio, Conchita Carpio
Morales, and Martin S. Villarama. To be taken together with this Opinion
is my earlier Dissenting Opinion dated 19 October 2010. The effect and
intent of the "Restoring Integrity" Statement must be examined in the
context of what this Court has done to contribute to the controversy as
well as the reception by the public of the pronouncements of this Court
on the plagiarism charges in connection with the Decision in G.R. No.
162230, Vinuya, et al v. Executive Secretary, promulgated on 28 April
2010.
A few days after the Malaya Lolas (petitioners in G.R. No. 162230) filed a
Supplemental Motion for Reconsideration of the Vinuya Decision, the
Acting Chief of the Court’s Public Information Office informed the media
that the Chief Justice had no plans of inquiring into the plagiarism
charges against Justice Mariano C. del Castillo raised in said motion. He
stated further that: "You can’t expect all justices in the Supreme Court to
be familiar with all these journal articles."1 Justice del Castillo defended
himself by submitting his official statement to the Philippine Star, which
published it on 30 July 2010. In the meantime, Dr. Mark Ellis, one of
several authors whose works was allegedly plagiarized, sent a letter
dated 23 July 2010 to the Court, expressing concern about the alleged
plagiarism of his work and the misreading of the arguments therein "for
cross purposes."
On 31 July 2010, the Daily Tribune, the Manila Standard, and other
newspapers of national circulation reported that Senator Francis
Pangilinan, a member of the bar, demanded the resignation of Justice
Del Castillo in order to "spare the judiciary from embarrassment and
harm." On 25 July 2010, the Philippine Daily Inquirer discussed the
plagiarism issue in their editorial entitled "Supreme Theft." On 5 August
2010, another member of the bar wrote about plagiarism in his column
entitled "What’s in a Name?" published in the Business Mirror. 2 On 8
August 2010, the Philippine Daily Inquirer published former Chief Justice
Artemio Panganiban’s opinion, to the effect that the issue "seeps to the
very integrity of the Court." That same opinion also raised the question of
whether the justices who concurred in the Vinuya ponencia were qualified
to sit as members of the Ethics Committee.
Dean Marvic M.V. F. Leonen of the University of the Philippines College
of Law transmitted to the Court a statement entitled "Restoring Integrity:
A Statement By The Faculty Of The University Of The Philippines College
Of Law On The Allegations Of Plagiarism And Misrepresentation In The
Supreme Court," the cover letter of which was dated 11 August 2010.
Shortly thereafter, several schools published their own declarations on
the matter.
A week after the UP Law Faculty’s statement was transmitted to the
Court, Professor Christian Tams expressed his own views. In a letter
addressed to the Chief Justice 3, Professor Tams said: "…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." Other authors soon followed suit,
articulating their own dismay at the use of their original works, through
internet blogs, comments and other public fora.4
Thus, the negative public exposure caused by such acts of plagiarism
cannot be attributed solely to the UP Law Faculty. That the Court was put
in the spotlight and garnered unwanted attention was caused by a myriad
of factors, not the least of which was Justice Del Castillo’s own published
defense entitled "The Del Castillo ponencia in Vinuya" pending the
resolution of the complaint against him by the Ethics Committee, and the
categorical statement made by the Acting Chief of the Court’s Public
Information Office to the media that the Chief Justice had no plans of
investigating the plagiarism charges. These twin acts attracted negative
reaction, much of which came from the legal profession and the
academe. The issue itself – alleged plagiarism in a judicial decision,
including the alleged use of plagiarized materials to achieve a result
opposite to the theses of the said materials – resonated in the public’s
consciousness and stirred a natural desire in the citizenry to raise calls to
save an important public institution, namely, the judiciary. The responses
published by different sectors constituted nothing more than an exercise
of free speech – critical commentary calling a public official to task in the
exercise of his functions.
The respondents herein, who were not parties to any pending case at the
time, forwarded the "Restoring Integrity" Statement as a public
expression of the faculty’s stand regarding the plagiarism issue. Such an
open communication of ideas from the citizenry is an everyday
occurrence – as evidenced by dozens of letters of appeals for justice
received regularly by this Court from a myriad of people, and the placards
displayed along Padre Faura Street every Tuesday. The commentators
and participants in the public discussions on the Vinuya Decision, both on
the Internet and in traditional media, included legal experts and other
members of the bar, with even a former Chief Justice of the Supreme
Court numbered among them. Yet only members of the UP Law Faculty
were deemed to be the cause for the majority’s trepidation that the
Court’s honesty, integrity, and competence was being undermined. The
Show Cause Order went so far as to hold the respondent faculty
members responsible for threatening the independence of the judiciary.
Despite the assertion that the present case is merely an exercise of the
Court’s disciplinary authority over members of the bar, a closer look
reveals the true nature of the proceeding as one for indirect contempt,
the due process requirements of which are strictly provided for under
Rule 71 of the Rules of Court. The majority attempts to skirt the issue
regarding the non-observance of due process by insisting that the
present case is not an exercise of the Court’s contempt powers, but
rather is anchored on the Court’s disciplinary powers. Whatever
designation the majority may find convenient to formally characterize this
proceeding, however, the pretext is negated by the disposition in the
Resolution of 19 October 2010 itself and its supporting rationale.
The majority directed respondents to SHOW CAUSE, within ten (10) days
from receipt of a copy of the Resolution, why they should not be
disciplined as members of the Bar. Yet the substance therein
demonstrates that the present proceeding is one for indirect contempt,
particularly in the following portions:
We made it clear in the case of In re Kelly that any publication, pending a
suit, reflecting upon the court, the jury, the parties, the officers of the
court, the counsel with reference to the suit, or tending to influence the
decision of the controversy, is contempt of court and is punishable.5
xxx xxx xxx
Many types of criticism leveled at the judiciary cross the line to become
harmful and irresponsible attacks. These potentially devastating attacks
and unjust criticism can threaten the independence of the judiciary. 6
xxx xxx xxx
The Court could hardly perceive any reasonable purpose for the faculty’s
less than objective comments except to discredit the April 28, 2010
Decision in the Vinuya case and undermine the Court’s honesty, integrity
and competence in addressing the motion for
reconsideration.7 (Emphasis supplied)
The jurisprudence adverted to by the majority dwell on contempt,
foremost of which is In re Kelly, one of the first and leading cases
discussing contempt. Citing Ex Parte Terry, the Supreme Court in that
case held that acts punishable as contempt are those "…tending to
obstruct or degrade the administration of justice, as inherent in courts as
essential to the execution of their powers and to the maintenance of their
authority."8 Significantly, before he was cited for contempt, Respondent
Amzi B. Kelly was first given the opportunity to appear before the Court,
submit a written Answer, and present his oral argument.
The footnote citation in Footnote 4 of the 19 October 2010 Resolution,
A.M. No. 07-09-13-SC, refers to "In the Matter of the Allegations
Contained in the Columns of Mr. Amado P. Macasaet Published in
Malaya Dated September 18, 19, 20 and 21, 2007," a case for indirect
contempt lodged against the publisher of a national daily.
In this case, the Court not only gave respondent a chance to explain
himself, but also created an Investigating Committee regarding the
subject matter of the alleged contemptible act:
From October 30, 2007 to March 10, 2008, the Investigating Committee
held hearings and gathered affidavits and testimonies from the parties
concerned.
The Committee invited respondent Macasaet, Dañguilan-Vitug, Delis,
and ACA Marquez to a preliminary meeting, in which they were
requested to submit their respective affidavits which served as their
testimonies on direct examination. They were then later cross-examined
on various dates: respondent Macasaet on January 10, 2008, Dañguilan-
Vitug on January 17, 2008, Delis on January 24, 2008, and ACA
Marquez on January 28, 2008. The Chief of the Security Services and
the Cashier of the High Court likewise testified on January 22 and 24,
2008, respectively.9
This approach of using jurisprudence on contempt to justify adverse
findings against herein respondents is continued in the current Decision.
The majority cites the 1935 case Salcedo v. Hernandez10 which identified
the proceedings specifically as contempt, even though the respondent
was a member of the bar. The 1949 case of In Re Vicente Sotto 11, from
which the majority quotes heavily – and which the majority states is "still
good law" – is explicitly identified as a proceeding for contempt of court.
In Zaldivar v. Sandiganbayan and Gonzales, the Court issued a
Resolution "to require respondent Gonzalez to explain in writing within
ten (10) days from notice hereof, why he should not be punished for
contempt of court and/or subjected to administrative sanctions…" 12 only
after a Motion to Cite in Contempt was filed by the petitioner. Even as the
Court discussed its exercise of both its contempt powers and disciplinary
powers over the respondent attorney in the said case, it still gave him
ample time and opportunity to defend himself by allowing him to file an
Omnibus Motion for Extension and Inhibition, a Manifestation with
Supplemental Motion to Inhibit, a Motion to Transfer Administrative
Proceedings to the Integrated Bar of the Philippines, and an Urgent
Motion for Additional Extension of Time to File Explanation Ex Abundante
Cautelam.
The case of In Re Almacen13, also cited in the current Decision, was in
the nature of a contempt proceeding even as it adverted to duties of
members of the bar, as can be gleaned from the following:
So that, in line with the doctrinal rule that the protective mantle of
contempt may ordinarily be invoked only against scurrilous remarks or
malicious innuendoes while a court mulls over a pending case and not
after the conclusion thereof, Atty. Almacen would now seek to sidestep
the thrust of a contempt charge by his studied emphasis that the remarks
for which he is now called upon to account were made only after this
Court had written finis to his appeal.
Atty. Almacen filed with the Court a "Petition to Surrender Lawyer’s
Certificate of Title," after his clients had lost the right to file an appeal
before the Court due to his own inadvertence. And yet, the Court still
gave him the "ampliest [sic] latitude" for his defense, giving him an
opportunity to file a written explanation and to be heard in oral argument.
All of the above negate the claim that this is not a contempt proceeding
but purely an administrative one.
The central argumentation in the Show Cause Order is evidence of the
original intent of the proceeding. The allegation and conclusion that the
faculty members purportedly "undermine the Court’s honesty, integrity,
and competence," make it clear that the true nature of the action is one
for indirect contempt. The discussion in the Resolution of 19 October
2010 hinged on the tribunal’s need for self-preservation and
independence, in view of the "institutional attacks" and "outside
interference" with its functions – charges which more appropriately fall
under its contempt authority, rather than the authority to determine fitness
of entering and maintaining membership in the bar.
The Show Cause Order failed to specify which particular mode of
contempt was committed by the respondents (as required in the Rules of
Court). Its language and tenor also explicitly demonstrated that the guilt
of respondents had already been prejudged. Page three (3) of the Order
states: "The opening sentence alone is a grim preamble to the
institutional attack that lay ahead." Page four (4) makes the conclusion
that: "The publication of a statement…was totally unnecessary, uncalled
for, and a rash act of misplaced vigilance."
The Order also violated respondents’ right to due process because it
never afforded them the categorical requirements of notice and hearing.
The requirements for Indirect Contempt as laid out in Rule 71 of the
Rules of Court demand strict compliance: 1) a complaint in writing which
may either be a motion for contempt filed by a party or an order issued by
the court requiring a person to appear and explain his conduct, and 2) an
opportunity for the person charged to appear and explain his conduct. 14
The essence of a court’s contempt powers stems from a much-needed
remedy for the violation of lawful court orders and for maintaining
decorum during proceedings, as an essential auxiliary to the due
administration of justice. 15 It is not an all-encompassing tool to silence
criticism. Courts must exercise the power of contempt for purposes that
are impersonal because that power is intended as a safeguard not for the
judges but for the functions they fulfill. 16 It must be wielded on the
preservative, rather than on the vindictive, principle. 17 So careful is the
approach ordinarily taken by the Court in cases of contempt that it places
a premium on the conduct of a hearing, to such a point that it
administratively sanctioned a lower court judge for issuing a Show Cause
Order sua sponte and finding the respondent guilty of criminal contempt
without the benefit of a hearing. In the case of Castaños v. Judge
Escaño, Jr.,18 the Court held:
It is an oft-repeated rule that the power to punish for contempt is inherent
in all courts so as to preserve order in judicial proceedings and to uphold
the due administration of justice. Judges, however, should exercise their
contempt powers judiciously and sparingly, with utmost restraint, and with
the end in view of utilizing their contempt powers for correction and
preservation, not for retaliation or vindication.
It is true that, in the case at bench, respondent judge, after having
received a copy of Agapito's affidavit in connection with the petitioner's
administrative charges against him, directed Agapito to show cause
within three days from notice why he should not be held in contempt of
court…but, without the benefit of hearing required in Rule 71, Section 3
of the Rules of Court, respondent judge, in an Order, dated February 22,
1993, sentenced Agapito guilty for contempt of court on account of the
allegations he made in his affidavit, dated November 18, 1992. Such
failure to afford Agapito the opportunity to be heard as a matter of due
process of law deserves administrative sanction.
In finding Judge Escaño, Jr. guilty of grave abuse of judicial authority, the
Court stated:
When the inefficiency springs from a failure to consider so basic and
elemental a rule, a law or a principle in the discharge of his duties, a
judge is either too incompetent and undeserving of the position and title
he holds or he is too vicious that the oversight or omission was
deliberately done in bad faith and in grave abuse of judicial authority. In
both instances, the judge's dismissal is in order. After all, faith in the
administration of justice exists only if every party-litigant is assured that
occupants of the bench cannot justly be accused of deficiency in their
grasp of legal principles. Moreover, witnesses against erring judges
cannot come out in the open to help the Judiciary in disrobing its inept
members if we allow judges to abuse their judicial discretion, more
particularly with respect to the exercise of their contempt powers.
As Justice Carpio Morales finds in her Dissenting Opinion to the
Resolution of 19 October 2010, this action of the Court is tainted with
injudiciousness precisely because:
"…the Resolution is not what it purports to be. Ostensibly, the Resolution
is a show cause order that initiates what would become a newly docketed
regular administrative matter. There is more than meets the eye,
however. When stripped of its apparent complexion, the Resolution
shows its true colors and presents itself as a pronouncement of guilt of
indirect contempt without proper recourse left to the parties." 19
Thus, Justice Carpio Morales reiterates in her Dissenting Opinion to the
current Decision her belief that this proceeding is in essence one for
indirect contempt:
"Consistent with my dissent from the Court’s October 19, 2010
Resolution, I maintain my position that there was no reasonable ground
to motu proprio initiate the administrative case, in view of (i) the therein
discussed injudiciousness attending the Resolution, which was anchored
on an irregularly concluded finding of indirect contempt with adverse
declarations prematurely describing the subject Statement, that could
taint the disciplinary action."
The power to cite for contempt, as well as the power to discipline, are
mechanisms to be exercised solely towards the orderly administration of
justice. Such powers must be weighed carefully against the substantive
rights of the public to free expression and academic freedom. In this
critical balancing act, the tribunal must therefore utilize, to the fullest
extent, soundness and clarity of reasoning, and must not appear to have
been swayed by momentary fits of temper.
Instead of regarding criticism as perpetually adversarial, the judiciary
would do well to respect it, both as an important tool for public
accountability, and as the only soothing balm for vindication of felt
injustice. Judicial legitimacy established through demonstrated
intellectual integrity in decision-making rightly generates public
acceptance of such decisions, which makes them truly binding. William
Howard Taft, who served as a federal appellate judge before becoming
the President of the United States, understood the weight of public
evaluation in this wise: "If the law is but the essence of common sense,
the protest of many average men may evidence a defect in a judicial
conclusion though based on the nicest reasoning and profoundest
learning."20
We who occupy this august chamber are right not because our word is
accorded legal finality on matters that are before us. We are right only
when we have been proven right. There must always reside, in the
recesses of our minds, the clear distinction between what is merely legal
and what is legitimate. Legitimacy is a "tenuous commodity, particularly
for unelected judges,"21 and it can only be maintained by a sustained
perception of fairness, as well as by the retention of the moral authority of
individual judges. This required characteristic of the Court is diminished
when its members do not act through the rational strength of their
decisions, but are instead perceived to have done so in the
misunderstanding of the Court’s disciplinary powers.
"To maintain not only its stature, but also, more importantly, its
independence, the judiciary must adhere to the discipline of judicial
decision-making, firmly rooting rulings in the language of the documents
in issue, precedent and logic. That is, the strength of the judiciary's
independence depends not only on the constitutional framework, but also
on the extent to which the judiciary acknowledges its responsibility to
decide ‘according to law’…"22
Furthermore, as one American Federal Supreme Court decision said:
"Secrecy of judicial action can only breed ignorance and distrust of courts
and suspicion concerning the competence and impartiality of judges; free
and robust reporting, criticism, and debate can contribute to public
understanding of the rule of law and to comprehension of the functioning
of the entire criminal justice system, as well as improve the quality of that
system by subjecting it to the cleansing effects of exposure and public
accountability."23
The Code of Judicial Conduct prescribes the standards for a judicial
response to free speech which, highly-charged though it may be, is
necessarily protected. Rule 3.04 in particular states that: "A judge should
be patient, attentive and courteous to all lawyers, especially the
inexperienced, to litigants, witnesses, and others appearing before the
court. A judge should avoid unconsciously falling into the attitude of mind
that the litigants are made for the courts instead of the courts for the
litigants." The Supreme Court has itself, on occasion, demanded of lower
court judges that they be "dignified in demeanor and refined in speech,
[and] exhibit that temperament of utmost sobriety and self-restraint…"24
Nothing can be gained from the Court’s exercise of a heavy hand in a
matter which has originated from the Court itself. On the contrary, there is
much to lose in imposing penalties on the outspoken merely because the
outspoken have earned the ire of the Court’s members.
They who seek to judge must first themselves be judged. By occupying
an exalted seat in the judiciary, judges in effect undertake to embrace a
profession and lead lives that demand stringent ethical norms. 25 In his
dealings with the public, a judge must exhibit great self-restraint; he
should be the last person to be perceived as a tyrant holding imperious
sway over his domain,26 and must demonstrate to the public that in the
discharge of his judicial role, he "possess[es] the virtue of gravitas. He
should be…dignified in demeanor, refined in speech and virtuous in
character…[H]e must exhibit that hallmark judicial temperament of utmost
sobriety and self-restraint… a judge should always keep his passion
guarded. He can never allow it to run loose and overcome his reason."27
In my view of a constitutional democracy, the judiciary is required to
demonstrate moral authority and legitimacy, not only legality, at all times.
It has often been said that the rule of law requires an independent
judiciary that fairly, impartially and promptly applies the law to cases
before it. The rule of law requires a judiciary that is not beholden to any
political power or private interests, whose only loyalty is to the people and
to the Constitution that the people have ordained as their fundamental
governing precept. It requires integrity, independence and probity of each
individual judge. To be independent, the judiciary must always remember
that it will lose public support and in a certain sense, its legitimacy, if it
does not demonstrate its integrity in its judicial decisions. It must show a
keen nose for the fundamental importance of upholding right over wrong.
To maintain a life of intellectual integrity, those of us in the judiciary must
be buffeted by the winds of healthful criticism. Direct and informed
criticism of judicial decisions strengthens accountability. As Taft is noted
for writing: "[n]othing tends more to render judges careful in their
decisions and anxiously solicitous to do exact justice than the
consciousness that every act of theirs is to be subject to the intelligent
scrutiny of their fellow men, and to their candid criticism .... In the case of
judges having a life tenure, indeed, their very independence makes the
right freely to comment on their decisions of greater importance, because
it is the only practical and available instrument in the hands of a free
people to keep such judges alive to the reasonable demands of those
they serve."28
This is where academic freedom, when exercised in appropriate
measure, is most helpful. Milton encapsulates free speech as simply the
right to "argue freely according to conscience."29 The value of academic
freedom, as a necessary constitutional component of the right to freedom
of expression, lies in the ability of the common man, aided by the
expertise available in the academe, to hold a magistrate accountable in
the exercise of his official functions, foremost of which is the issuance of
written decisions. Paragraph 23 of the United Nations Basic Principles on
the Role of Lawyers30 states:
Lawyers like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take
part in public discussion of matters concerning the law, the administration
of justice and the promotion and protection of human rights and to join or
form local, national or international organizations and attend their
meetings, without suffering professional restrictions by reason of their
lawful action or their membership in a lawful organization…
The Basic Principles on the Role of Lawyers "have been formulated to
assist Member States in their task of promoting and ensuring the proper
role of lawyers," and these "should be respected and taken into account
by Governments within the framework of their national legislation and
practice and should be brought to the attention of lawyers as well as
other persons, such as judges, prosecutors, members of the executive
and legislature, and the public in general." Thus, faced with the duty of
balancing lawyers’ fundamental right to free speech which has now been
expressly recognized in the international arena, against this Court’s
desire to preserve its exalted role in society by disciplining for offensive
language, this Court must examine whether it has already encroached
into constitutionally-prohibited interference with the basic rights of
individuals. The realm of public opinion is where the academe, especially
our schools and universities, plays a most crucial role in ensuring judicial
legitimacy. Not by blindly legitimizing its acts, but by constantly reminding
the judiciary of its presence as a helpful but critical ally. The academe is
not to be an applause machine for the judiciary; it is to help guide the
judiciary by illuminating new paths for the judiciary to take, by alerting the
judiciary to its inconsistent decisions, and by identifying gaps in law and
jurisprudence.
In this regard, the law school has a special place. Phoebe Haddon writes:
"[t]he value and preservation of academic freedom depend on an
academic environment that nurtures, not silences, diverse views. The law
school faculty has a special responsibility to maintain a nurturing
environment for diverse views because of the importance of the
marketplace of ideas in our teaching and the value we theoretically place
on the role of persuasive discourse in the quest for knowledge. Faculty
autonomy takes on significance because it can protect freedom of
inquiry."31 In a certain sense, therefore, because the law faculty can
discharge a most meaningful role in keeping the judiciary honest, there
must be recognition given to the special role of the law faculty in
upholding judicial independence.
The testing ground for integrity in judicial decision-making is provided in
large measure by the legal academe, when it probes, tests and measures
whether judicial decisions rise up to the definition of just and well-
reasoned decisions as they have been defined by centuries-old norms of
legal reasoning and legal scholarship. If we have a legal academe that is
slothful, that is not self-disciplined, that covets the closeness to the
powers-that-be which an unprofessional relationship with the judicial
leadership can bring, then this refining role of the legal academe is lost.
The legal academe is the preserver of the noble standards of legal
reasoning and legal scholarship. It must itself demonstrate strength and
independence and not be punished when doing so.
Those who occupy the most powerful positions in this country must
always be ready to hold themselves accountable to the people. I believe
that the tradition of deference to the judiciary has limits to its usefulness
and these times do not call for the unbroken observance of such
deference as much as they call for a public demonstration of honesty in
all its forms.
I dissent from the Majority Decision admonishing Dean Marvic M. V. F.
Leonen and issuing a warning to the thirty-five faculty members in
connection with the "Restoring Integrity" Statement. I find the Common
Compliance of the thirty-five faculty members, dated 18 November 2010,
as well as the Compliance submitted by Professor Rosa Maria T. Juan
Bautista on 18 November 2010 and by Professor Raul Vasquez on 19
November 2010, to be satisfactory. I also find the separate Compliance
of Dean Leonen dated 18 November 2010 and of Professor Owen J.
Lynch dated 19 November 2010 similarly satisfactory, and vote to
consider this matter closed and terminated.
MARIA LOURDES P.A. SERENO
Associate Justice
SEPARATE OPINION
VILLARAMA, JR., J.:
This treats of respondents’ compliance with the Court’s Resolution dated
October 19, 2010, which required respondents, who are professors of the
University of the Philippines College of Law, to show cause why they
should not be disciplined as members of the bar for having published a
Statement entitled, "Restoring Integrity: A Statement by the Faculty of the
University of the Philippines College of Law on the Allegations of
Plagiarism and Misrepresentation in the Supreme Court" which appeared
to contain statements that were disrespectful to the Court. The Court’s
directive reads as follows:
WHEREFORE, in light of the foregoing, Attys. Marvic M.V.F. Leonen,
Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador
T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B.
Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn
(Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J.
Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea,
Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A.
Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L.
Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta,
Owen J. Lynch, Rodolfo Noel S Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V.
Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the
faculty of the University of the Philippines College of Law, are directed
to SHOW CAUSE, within ten (10) days from receipt of a copy of this
Resolution, why they should not be disciplined as members of the Bar for
violation of Canons 1 1, 11, and 13 and Rules 1.02 and 11.05 of the Code
of Professional Responsibility.
Further, Dean Marvic M.V.F. Leonen is directed to SHOW CAUSE, within
ten (10) days from receipt of this Resolution, why he should not be
disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and
10.03 for submitting, through his letter dated August 10, 2010, during the
pendency of G.R. No. 162330, Vinuya v. Executive Secretary and of the
investigation before the Committee on Ethics and Ethical Standards, for
the consideration of the Court En Banc, a dummy which is not a true and
faithful reproduction of the purported statement, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines
College of Law on the Allegations of Plagiarism and Misrepresentation in
the Supreme Court." x x x
In their Compliance, 35 of the respondents, excluding Professors Owen
J. Lynch and Raul V. Vasquez, take common defense that the
statements contained in Restoring Integrity were mere expressions of
their opinion, dispensed in accordance with their duties as members of
the bar and as professors of law. They aver that they acted with the
purest intentions, guided by their duty of candor, fairness and good faith
to the Court, and deny that it was their intention to malign the Court as an
institution for its decision in Vinuya v. Executive Secretary.2 They claim
that any reference to Vinuya in their statement was made only to
establish and accent the grave consequences of the allegations of
plagiarism and misrepresentation allegedly committed by one of the
Court’s members. Indeed, they claim that the Statement was intended "to
defend the integrity and credibility of the entire Supreme Court" and
ensure continued confidence in the legal system and the Judiciary by
calling on the Court to take constructive action in the face of the
damaging allegations. They also add that the Statement was meant to
address what they perceived as indifference on the part of the Court
owing to certain statements reportedly made by Supreme Court
Administrator and spokesperson, Atty. Jose Midas P. Marquez (that Chief
Justice Renato C. Corona would not take any action on the charges) and
their reading of Justice Mariano C. Del Castillo’s letter replying to the
allegations.
Respondents affirm their loyalty and respect for the Court and claim that
as professors of law, they have a special interest in guarding against
plagiarism and misrepresentation to ensure intellectual honesty among
their students. They allegedly released the Statement in support of
"efforts to achieve high standards in law schools as well as in the
practical training of law students and assist in disseminating information
regarding law and jurisprudence." Citing similar commentaries on the
issue, they likewise invoke freedom of speech and academic freedom to
justify the publication of their stand on the matter.
Finally, respondents argue that the Resolution amounted to a
prejudgment of their liability for contempt and breach of Canons 1, 11, 13
and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
Thus, they invoke their right to due process and plead for an opportunity
to present evidence relative to the proceedings in A.M. No. 10-7-17-SC
entitled In the Matter of the Charges of Plagiarism, etc. Against Associate
Justice Mariano C. Del Castillo.
Prof. Rosa Maria T. Juan-Bautista, in her separate Compliance and
Reservation, reiterates the above reservation of her right to due process
and request for hearing. She likewise supplements the above
submissions with additional arguments in support of her assertion that
she signed the Statement in the exercise of her freedom of expression.
As to Prof. Owen J. Lynch, Prof. Lynch filed a Manifestation invoking
freedom of expression and asserting that the statement did not pose a
clear and present danger of a substantive evil that the State has a right to
prevent. He also manifests that he is not a member of the Philippine Bar
as he is an American citizen who is a member of the bar of the State of
Minnesota.
Prof. Raul V. Vasquez, for his part, likewise submits that he never had
any intention of maligning the Court and alleges that he signed the
Statement as he was fundamentally in agreement with its contents. He
further states that he might have been remiss in correctly assessing the
effects of the language employed in the Statement and says that he
could have been more careful.
As regards the charge of violating Canon 10 and Rules 10.01, 10.02 and
10.03 for submitting to the Court a copy of the Restoring Integrity
Statement that was not a true and faithful reproduction thereof, Dean
Marvic M.V.F. Leonen submitted the following explanations.
Dean Leonen denies misrepresenting the contents of the Statement or
which faculty members signed and/or signified their intention to sign the
same. He avers that there are actually three versions of the Statement,
all with the same contents, but with different signature pages. Two
versions were submitted to the Court: one with the signature pages
containing the full roster of faculty members and the actual signatures of
the signatories (which version he calls Restoring Integrity I) and the other
with the retyped signature page containing just the names of the
members who signed, with the notation "(SGD.)" beside their names.
This second version he referred to as Restoring Integrity II. According to
him, these two copies arose because after the original version containing
the full roster of faculty members was circulated for signature, he had the
signature pages re-typed to eliminate the blanks prior to posting in the
bulletin board. (He alleges that the practice of re-typing the signature
pages was meant to ensure the integrity of the public issuance as posting
the Statement with blanks would open it to vandalism.)
When the re-typed signature page was presented to him by his staff, he
noticed that the name of retired Justice Vicente V. Mendoza was
indicated as a signatory even though the latter did not sign the
Statement. He asked his administrative staff about the inclusion and the
latter claimed that she spoke to Justice Mendoza on the phone before the
latter flew for the United States. According to his staff, Justice Mendoza
allegedly authorized him to sign on behalf of Justice Mendoza since the
latter agrees with the contents of the Statement but was just unable to
personally affix his signature because he was leaving for the United
States the following week. Dean Leonen claims that he did not have any
reason to disbelieve his staff because there were indeed other faculty
members who authorized him to sign the Statement for them. Thus, he
placed full faith and confidence in his staff’s claim and allowed the
inclusion of Justice Mendoza’s name as one of the signatories in
Restoring Integrity II which he later submitted to the Court. Because of
this information, also, he believed that the total number of signatories to
the Statement was already 38.
Dean Leonen adds that in September 2010, he received a call from
Justice Mendoza, who said that he will no longer sign the statement
"considering that it had already become controversial and that he did not
wish to unduly aggravate the situation." On October 21, 2010, after
receiving a copy of this Court’s Show Cause Resolution, he met with his
staff and reviewed what had transpired in connection with their efforts to
secure Justice Mendoza’s signature. It was then that he learned that
while Justice Mendoza initially agreed to sign the statement, Justice
Mendoza did not exactly authorize him to sign for the latter. Rather,
Justice Mendoza merely inquired "if he could authorize the dean to sign it
for him as he was leaving for the United States." He then realized the full
import of the call he received from Justice Mendoza in September.
As regards the omission of the name of Atty. Miguel R. Armovit in the re-
typed signature pages of Restoring Integrity II, Dean Leonen explains
that the omission was due simply to inadvertence.
After a careful study of the respondents’ submissions, I respectfully
submit that the above submissions are SATISFACTORY in view of
respondents’ claim of good faith and the fact that a re-examination of the
Statement indeed admits of such claim. Consistent with respondents’
claims, the tenor of the Statement was to call the Court’s attention to the Similarly, there is no cogent reason to hold him liable for violation of Rule
grave allegations and its effects on the integrity and credibility of the 10.03 as it likewise does not appear that Dean Leonen violated any rule
Court and the Judiciary. Indeed, the general wording of the Statement of procedure or misused any procedural rule to defeat the ends of justice.
and its ending paragraphs lend support to respondents’ averments that The submission of the Statement to the Court, it should be noted, was ad
the Statement was prompted by the sincere and honest desire to protect hoc.
the integrity and credibility of the Judiciary, especially the Supreme Court.
Given such submissions, I am willing to afford respondents the benefit of I therefore vote to NOTE and CONSIDER the explanations submitted by
the doubt as to their intentions concerning the forceful language respondents in their Compliance/s SATISFACTORY with
employed in certain portions of the Restoring Integrity Statement. This is a REMINDER that they be more circumspect in their future statements
especially so considering that the subject statements present no clear considering that the Court also has its own sensibilities.
and present danger of a substantive evil that the State has a right to
prevent as to take it out of the protective mantle of the freedom of speech I also vote to consider this administrative matter CLOSED and
and expression under the Bill of Rights. A reading of the Statement, with TERMINATED.
particular focus on its final paragraphs, will not leave the reader with
feelings of contempt for the Court but only a feeling that the Court must
MARTIN S. VILLARAMA, JR.
champion the cause of integrity. Furthermore, it should be noted that our
Associate Justice
society has developed to the point where critical analysis of information is
not in short supply. The public is nowadays not only more well informed,
but it has access to information with which citizens could make their own
independent assessment of pending issues of public concern, including
the fitness and integrity of the members of this Court to render fair and
impartial judgment on the cases before them. However, given the fact
that some isolated portions of the statement were arguably disrespectful,
respondents should be reminded to be more circumspect in their future
statements.

As regards Dean Leonen, I likewise submit that his explanation is

sufficient to exonerate him from the charge of violation of Canon 10 and
Rules 10.01, 10.02 and 10.03, all of the Code of Professional
Responsibility. While it appears that Dean Leonen mistakenly relied on
hearsay information that Justice Mendoza had authorized him to indicate
Justice Mendoza as a signatory to the Statement, still, Dean Leonen’s
lapses appear more the result of overzealousness rather than bad faith or
a deliberate intent to do falsehood or to mislead the Court. Indeed, under
the circumstances as they appeared to him, and considering that there
were other professors who had authorized him to indicate them as
signatories,3 it was not all too remiss on his part to indicate Justice
Mendoza as a signatory to the Statement upon the information given to
him by his administrative staff. That he acted upon the wrong information
given to him, though telling of some degree of carelessness on his part,
is not gross negligence that is tantamount to bad faith. Hence, there
being no intent or inexcusable negligence, there is no ground to find him
liable under Canon 10 and Rules 10.01 and 10.02 of the Code of
Professional Responsibility.