IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC
OF PLAGIARISM, ETC., AGAINST
ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO. Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO,
JJ.
Promulgated:
October 12, 2010
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PER CURIAM:
This case is concerned with charges that, in preparing a
decision for the Court, a designated member plagiarized the works of certain
authors and twisted their meanings to support the decision.
The Background Facts
Petitioners
Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya
Lolas Organization, filed with the Court in G.R. No. 162230 a special civil
action of certiorari with application for preliminary mandatory
injunction against the Executive Secretary, the Secretary of Foreign Affairs,
the Secretary of Justice, and the Office of the Solicitor General.
Petitioners
claimed that in destroying villages in the Philippines during World War II, the
Japanese army systematically raped them and a number of other women, seizing
them and holding them in houses or cells where soldiers repeatedly ravished and
abused them.
Petitioners
alleged that they have since 1998 been approaching the Executive Department,
represented by the respondent public officials, requesting assistance in filing
claims against the Japanese military officers who established the comfort women
stations. But that Department declined,
saying that petitioners individual claims had already been fully satisfied
under the Peace Treaty between the Philippines and Japan.
Petitioners wanted the Court to
render judgment, compelling the Executive Department to espouse their claims
for official apology and other forms of reparations against Japan before the
International Court of Justice and other international tribunals.
On
April 28, 2010, the Court rendered judgment dismissing petitioners
action. Justice Mariano C. del Castillo
wrote the decision for the Court. The
Court essentially gave two reasons for its decision: it cannot grant the
petition because, first, the
Executive Department has the exclusive prerogative under the Constitution and
the law to determine whether to espouse petitioners claim against Japan; and, second, the Philippines is not
under any obligation in international law to espouse their claims.
On June 9, 2010, petitioners filed a
motion for reconsideration of the 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.
x x x x
As regards the claim of the petitioners
that the concepts as contained in the above foreign materials were twisted,
the same remains their opinion which we do not necessarily share.[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 cogens
or internationally binding norms that treaties cannot diminish.
On July 23,
2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his
work, the Court may have misread the argument [he] made in the article and
employed them for cross purposes. Dr.
Ellis said that he wrote the article precisely to argue for appropriate legal
remedy for victims of war crimes.
On August 8, 2010, after the referral
of the matter to the Committee for investigation, the Dean of the University of
the Philippines (U.P.) College of Law publicized a Statement from his faculty,
claiming that the Vinuya decision was an
extraordinary act of injustice and a singularly reprehensible act of
dishonesty and misrepresentation by the Highest Court of the land. The
statement said that Justice Del Castillo had a deliberate intention to
appropriate the original authors work, and that the 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 Margaret Celine,[7]
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 cogens norms are considered
peremptory in the sense that they are mandatory, do not admit derogation, and
can be modified only by general international norms of equivalent authority.71
Early
strains of the jus cogens doctrine
have existed since the 1700s,72 but
peremptory norms began to attract greater scholarly attention with the
publication of Alfred von Verdross's influential 1937 article, Forbidden
Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the
ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).74
Though there was a consensus that certain international norms had
attained the status of jus cogens,75 the ILC was unable to reach a consensus on
the proper criteria for identifying peremptory norms.
After an extended debate over these
and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by
which to identify a general rule of international law as having the character
of jus cogens.76
In a commentary accompanying the draft convention, the ILC indicated
that the prudent course seems to be to x x x leave the full content of this
rule to be worked out in State practice and in the jurisprudence of
international tribunals.77
Thus, while the existence of jus
cogens in international law is undisputed, no consensus exists on its
substance,77
beyond a tiny core of principles and rules.78
Admittedly,
the Vinuya decision lifted the above,
including their footnotes, from Criddle-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 researcher Xs removal during cleanup of the tag, The inalienable character of juridical
personality.23, by a simple
delete operation, and the unintended removal as well of the accompanying
footnote (#23). The erasure of the footnote eliminates the
link between the lifted passage and its source, Tolentinos book. Only the following would remain in the
manuscript:
xxx Both juridical
capacity and capacity to act are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program does not
have a function that raises an alarm when original materials are cut up or
pruned. The portions that remain simply
blend in with the rest of the manuscript, adjusting the footnote number and
removing any clue that what should stick together had just been severed.
This was what happened in the attributions to Ellis
and Criddle-Descent. The researcher
deleted the subject tags and, accidentally, their accompanying footnotes that
served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, the
loss of the 2 of them was not easily detectable.
Petitioners point out, however, that
Justice Del Castillos verified letter of July 22, 2010 is inconsistent with his
researchers claim that the omissions were mere errors in attribution. They
cite the fact that the Justice did not disclose his researchers error in that
letter despite the latters confession regarding her mistake even before the
Justice sent his letter to the Chief Justice.
By denying plagiarism in his letter, Justice Del Castillo allegedly
perjured himself and sought to whitewash the case.[13]
But nothing in the July 22 letter supports the charge of false
testimony. Justice Del Castillo merely explained that there was every intention to attribute
all sources whenever due and that there was never any malicious intent to
appropriate anothers work as our own, which as it turns out is a true
statement. He recalled how the Court
deliberated upon the case more than once, prompting major revisions in the
draft of the decision. In the process,
(s)ources were re-studied, discussions modified, passages added or
deleted. Nothing in the letter suggests
a cover-up. Indeed, it did not preclude
a researchers inadvertent error.
And it is understandable that Justice
Del Castillo did not initially disclose his researchers error. He wrote the decision for the Court and was
expected to take full responsibility for any lapse arising from its preparation. What is more, the process of drafting a
particular decision for the Court is confidential, which explained his initial
request to be heard on the matter without the attendance of the other parties.
Notably, neither Justice Del Castillo nor his
researcher had a motive or reason for omitting attribution for the lifted
passages to Criddle-Descent or to Ellis.
The latter authors are highly respected professors of international
law. The law journals that published
their works have exceptional reputations.
It did not make sense to intentionally omit attribution to these authors
when the decision cites an abundance of other sources. Citing these authors as the sources of the
lifted passages would enhance rather than diminish their informative
value. Both Justice Del Castillo and his
researcher gain nothing from the omission.
Thus, the failure to mention the works of Criddle-Decent and Ellis was
unquestionably due to inadvertence or pure oversight.
Petitioners of course insist that
intent is not material in committing plagiarism since all that a writer has to
do, to avoid the charge, is to enclose lifted portions with quotation marks and
acknowledge the sources from which these were taken.[14] Petitioners point out that the Court should
apply to this case the ruling in
University of the Philippines Board of Regents v. Court of Appeals and
Arokiaswamy William Margaret Celine.[15] 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.
To paraphrase Bast and Samuels,[18] 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 of.[19] For example, if one lifts the lyrics of the
National Anthem, uses it in his work, and declares that Jose Palma who wrote it
did not love his country, then there is twisting or misrepresentation of
what the anthems lyrics said. Here,
nothing in the Vinuya decision said or implied that, based on the lifted
passages, authors Tams, Criddle-Descent, and Ellis supported the Courts
conclusion that the
Philippines is not under any obligation in international law to espouse Vinuya et
al.s claims.
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 August
26 hearing.[25] 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.
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 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.
RENATO C. CORONA
Chief Justice
ANTONIO T.
CARPIO CONCHITA
CARPIO MORALES
Associate
Justice Associate Justice
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
Associate
Justice Associate Justice
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice
MARIANO C. DEL CASTILLO ROBERTO A.
ABAD
Associate Justice
Associate Justice
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice
JOSE CATRAL MENDOZA MARIA LOURDES P. A. SERENO
Associate Justice Associate Justice
[1] Supplemental
Motion for Reconsideration, petitioners Exhibit A, p. 5.
[2] Id. at 3.
[3] Supplemental
Motion for Reconsideration, supra note 1, at 5.
[4] Justice Del
Castillos Verified Letter, p. 3, Exhibit G of the petitioners.
[5] Statement of the University of the Philippines
College of Law Faculty dated July 27, 2010, Exhibit J of the
petitioners.
[6] Transcript of
Stenographic Notes taken on August 26, 2010, p. 31.
[7] G.R. No.
134625, August 31, 1999, 313 SCRA 404.
[8] Websters New
World College Dictionary, Third Edition, Macmillan USA, p. 1031.
[9] Exhibit I for the petitioners.
[10] Breaking the Silence of Rape
as an International Crime, 38 Case W. Res. J. Intl.
L. 225 (2006).
[11] 34 Yale J. Intl. L. 331
(2009).
[12] Memorandum for
Justice Del Castillo, paragraphs 25-35.
[13] Petitioners
Memorandum, pp. 26-27.
[14] Supra note 6,
at 41.
[15] Supra note 7.
[16] Black's Law Dictionary (8th ed.
2004).
[17] Stopping by
the Woods on a Snowy Evening (1923).
[18] Bast and Samuels, Plagiarism
and Legal Scholarship in the Age of Information Sharing: The Need for
Intellectual Honesty, 57 CATH. U.
L. REV 777, 800 (2008).
[19] Websters
New World College Dictionary, 3rd Edition, p. 1445.
[20] Atty. Alberto P. Quinto v.
Judge Gregorio S. Vios, Municipal Trial Court, Kapatagan, Lanao del Norte, A.M. No. MTJ-04-1551, May
21, 2004, 429 SCRA 1; Tolentino v. Camano, Jr., A.M. No. RTJ 10-1522, January 20, 2000, 322 SCRA 559.
[21] Daracan v. Natividad, A.M. No. RTC-99-1447,
September 27, 2000, 341 SCRA 161.
[22] Guerrero v.
Villamor, A.M. No. RTJ-90-483, September 25, 1998, 296
SCRA 88; Tan v. Adre, A.M. No. RTJ-05-1898, January 31, 2005, 450 SCRA 145.
[23] Supra note 13,
at 25.
[24] Supra note 6,
at 27-30.
[25] Order dated
August 26, 2010, Committee Records, pp. 382-383.