A.M. No. 10-7-17-SC – IN THE MATTER OF THE CHARGES
OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C.
Promulgated:
October
15, 2010
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DISSENTING OPINION
SERENO, J.:
What is
black can be called “white” but it cannot turn white by the mere calling. The unfortunate ruling of the majority
Decision that no plagiarism was committed stems from its failure to distinguish
between the determination of the objective, factual existence of plagiarism in
the Vinuya decision[1]
and the determination of the liability that results from a finding of
plagiarism. Specifically, it made “malicious intent”, which heretofore had not been
relevant to a finding of plagiarism, an essential element.
The majority Decision will thus stand against
the overwhelming conventions on what constitutes plagiarism. In doing so, the
Decision has created unimaginable problems for Philippine academia, which will
from now on have to find a disciplinary response to plagiarism committed by
students and researchers on the justification of the majority Decision.
It has
also undermined the protection of copyrighted work by making available to
plagiarists “lack of malicious intent” as a defense to a charge of violation of
copy or economic rights of the copyright owner committed through lack of
attribution. Under Section 184 of R.A. 8293 (“An Act Describing the
Intellectual Property Code and Establishing the Intellectual Property Office,
Providing for Its Powers and Functions, and for Other Purposes”), or the
Intellectual Property Code of the Philippines, there is no infringement of
copyright in the use of another's work in:
(b) the making of
quotations from a published work if they are compatible with fair use and only
to the extent justified for the purpose, including quotations from newspaper
articles and periodicals in the form of press summaries: Provided that the
source and the name of the author, if appearing on the work, are mentioned.
(Emphasis supplied)
Because the majority
Decision has excused the lack of attribution to the complaining authors in the Vinuya
decision to editorial errors and lack of malicious intent to appropriate
─ and that therefore there was no plagiarism ─ lack of intent to
infringe copyright in the case of lack of attribution may now also become a
defense, rendering the above legal provision meaningless.[2]
The tables of comparison below were first drawn
based on the tables made by petitioners in their Supplemental Motion for
Reconsideration. This was then compared with Annex "A" of Justice
Mariano del Castillo's letter, which is his tabular explanation for some of the
copied excerpts.[3]
The alleged plagiarism of the cited excerpts were then independently verified
and re-presented below, with the necessary revisions accurately reflecting the
alleged plagiarized works and the pertinent portions of the decision. A few
excerpts in the table of petitioners are not included, as they merely refer to
in-text citations.
TABLE A:
Comparison of Christian J. Tams’s book, entitled Enforcing Erga Omnes Obligations in International Law (2005),
hereinafter called “Tams’s work” and the Supreme Court’s
|
|
Christian J. Tams, Enforcing Erga Omnes Obligations
in International Law (2005). |
Vinuya, et. al. v. Executive Secretary,
G.R. No. 162230, |
|
1. |
xxx The Latin
phrase ‘erga omnes’ thus has become
one of the rallying cries of those sharing a belief in the emergence of a
value-based international public order based on law. xxx As often, the
reality is neither so clear nor so bright. One problem is readily admitted by
commentators: whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be
realised in practice. xxx Bruno Simma’s much-quoted observation encapsulates
this feeling of disappointment: ‘Viewed realistically, the world of
obligations erga omnes is still the
world of the ‘‘ought’’ rather than of the ‘‘is’’. (pp. 3-4 of
the Christian Tams’s book) |
*The Latin
phrase, ‘erga omnes,’ has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public
order. However, as is so often the case, the reality is neither so clear nor
so bright. Whatever the relevance of obligations erga omnes as a legal
concept, its full potential remains to be realized in practice.[FN69] (p. 30, Body of the 28 April 2010 Decision) [FN69]
Bruno Simma’s much-quoted observation encapsulates this feeling of
disappointment: ‘Viewed realistically, the world of obligations erga omnes is
still the world of the “ought” rather than of the “is”’ The Charter of the United Nations: A Commentary
125 (Simma, ed. 1995). See Tams,
Enforcing Obligations Erga omnes in
International Law (2005). *The decision
mentioned Christian Tams’s book in footnote 69. |
TABLE B: Comparison of
Evan J. Criddle & Evan Fox-Decent’s article in the Yale Journal of
International Law, entitled A Fiduciary
Theory of Jus Cogens (2009), hereinafter called “Criddle’s &
Fox-Decent’s work” and the Supreme Court’s
|
|
Evan
J. Criddle & Evan Fox-Decent, A Fiduciary
Theory of Jus Cogens, 34 Yale J.
Int'l L. 331 (2009). |
Vinuya,
et. al. v. Executive Secretary, G.R. No. 162230, |
|
1. |
In
international law, the term “jus cogens” (literally, “compelling law”) refers
to norms that command peremptory authority, superseding conflicting treaties
and custom. xxx 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.[FN2] [FN2] See
(pp. 331-332
of the Yale Law Journal of Int’l Law) |
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.[FN70] (pp. 30-31, Body of the [FN70]
See |
|
2. |
Peremptory
norms began to attract greater scholarly attention with the publication of
Alfred von Verdross's influential 1937 article, Forbidden Treaties in
International Law.[FN10] [FN10]
For example, in the 1934 Oscar Chinn Case, Judge Schücking's influential
dissent stated that neither an interna-tional court nor an arbitral tribunal
should apply a treaty provision in contradiction to bonos mores. Oscar Chinn
Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J.,
dissenting). (p. 334 of the
Yale Law Journal of Int’l Law) |
xxx 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. [FN72]
(p. 31, Body of the 28 April 2010 Decision) [FN72]
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”). |
|
3. |
Classical
publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew
upon the Roman law distinction between jus dispositivum (voluntary law) and
jus scriptum (obligatory law) to differentiate consensual agreements between
states from the “necessary” principles of international law that bind all
states as a point of conscience regardless of consent.[FN6] [FN6]
See Hugonis Grotii, De Jure Belli et Pacis [On the Law of War and Peace]
(William Whewell ed. & trans., John W. Parker, London 2009) (1625); Emer
de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle [The Law of
Nations or Principles of Natural Law] §§ 9, 27 (1758) (distinguishing “le
Droit des Gens Naturel, ou Nécessaire” from “le Droit Volontaire”); Christian
Wolff, Jus Gentium Methodo Scientifica Pertractorum [A Scientific Method for
Understanding the Law of Nations] ¶ 5 (James Brown Scott ed., Joseph H. Drake
trans., Clarendon Press 1934) (1764). (p. 334 of the
Yale Law Journal of Int’l Law) |
[FN71]
Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian
Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements
between states from the “necessary” principles of international law that bind
all states as a point of conscience regardless of consent. (p. 31,
Footnote 71 of the 28 April 2010 Decision) |
|
4. |
Early
twentieth-century publicists such as Lassa Oppenheim and William Hall
asserted confidently that states could not abrogate certain “universally
recognized principles” by mutual agreement.[FN9] Outside the
academy, judges on the Permanent Court of International Justice affirmed the
existence of peremptory norms in international law by referencing treaties
contra bonos mores (contrary to public policy) in a series of individual
concurring and dissenting opinions.[FN10] xxx [FN9]
William Hall, A Treatise on International Law 382-83 (8th ed. 1924)
(asserting that “fundamental principles of international law” may “invalidate
[], or at least render voidable,” conflicting international agreements); 1
Lassa Oppen-heim, International Law 528 (1905). [FN10]
For example, in the 1934 Oscar Chinn Case, Judge Schücking's influential
dissent stated that neither an interna-tional court nor an arbitral tribunal
should apply a treaty provision in contradiction to bonos mores. Oscar Chinn
Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting). (pp. 334-5 of
the Yale Law Journal of Int’l Law) |
[FN71]
xxx Early twentieth-century publicists such as Lassa Oppenheim and William
Hall asserted that states could not abrogate certain “universally recognized
principles” by mutual agreement. xxx Judges on the Permanent Court of
International Justice affirmed the existence of peremptory norms in
international law by referencing treaties contra bonos mores (contrary to
public policy) in a series of individual concurring and dissenting opinions. xxx
(p. 31,
Footnote 71 of the 28 April 2010 Decision) |
|
5. |
[FN9]
William Hall, A Treatise on International Law 382-83 (8th ed. 1924)
(asserting that “fundamental principles of international law” may “invalidate
[], or at least render voidable,” conflicting international agreements) xxx (Footnote 9 of
the Yale Law Journal of Int’l Law) |
[FN71]
xxx (William Hall, A Treatise on International Law 382-83
(8th ed. 1924) (asserting that “fundamental principles of international law”
may “invalidate [], or at least render voidable,” conflicting international
agreements) xxx (p. 31,
Footnote 71 of the 28 April 2010 Decision) |
|
6. |
[FN10] For example, in the 1934 Oscar Chinn Case, Judge
Schücking's influential dissent stated that neither an international court
nor an arbitral tribunal should apply a treaty provision in contradiction to
bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50
(Dec. 12) (Schücking, J., dissenting). (Footnote 9 of
the Yale Law Journal of Int’l Law) |
[FN71] xxx (For
example, in the 1934 Oscar Chinn Case, Judge Schücking's influential dissent
stated that neither an international court nor an arbitral tribunal should
apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case,
1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J.,
dissenting). (p.
31, Footnote 71 of the 28 April 2010 Decision) |
|
7. |
Verdross
argued that certain discrete rules of international custom had come to be
recognized as having a compulsory character notwithstanding contrary state
agreements.[FN12] [FN12]
[Von Verdross, supra note 5.] (pp. 335 of
the Yale Law Journal of Int’l Law) |
[FN72] Verdross argued that certain discrete rules of
international custom had come to be recognized as having a compulsory
character notwithstanding contrary state agreements. xxx (p.
31, Footnote 72 of the 28 April 2010 Decision) |
|
8. |
At
first, Verdross's vision of international jus cogens encountered skepticism
within the legal academy. xxx 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. (pp. 335-6 of
the Yale Law Journal of Int’l Law) |
[FN72] xxx 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. xxx (p.
31, Footnote 72 of the 28 April 2010 Decision) |
|
9. |
[FN18]
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”). (Footnote 18
of the Yale Law Journal of Int’l Law) |
[FN72] xxx (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”). (p.
31, Footnote 72 of the 28 April 2010 Decision) |
|
10. |
xxx
the 1950s and 1960s with the United Nations International Law Commission's
(ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT).[FN20] [FN20] VCLT, supra note 2. (p. 336 of the
Yale Law Journal of Int’l Law) |
xxx the 1950s
and 1960s with the ILC’s preparation of the Vienna Convention on the Law of
Treaties (VCLT).[FN73] (p. 31, Body
of the 28 April 2010 Decision) [FN73] In
March 1953, the ILC's Special Rapporteur, Sir Hersch Lauterpacht, submitted
for the ILC's consideration a partial draft convention on treaties which
stated that “[a] treaty, or any of its provisions, is void if its performance
involves an act which is illegal under international law and if it is
declared so to be by the International Court of Justice.” Hersch Lauterpacht,
Law of Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n
90, 93, U.N. Doc. A/CN.4/63. |
|
11. |
In
March 1953, Lauterpacht submitted for the ILC's consideration a partial draft
convention on treaties which stated that “[a] treaty, or any of its
provisions, is void if its performance involves an act which is illegal under
international law and if it is declared so to be by the International Court
of Justice.”[FN21] [FN21] Hersch Lauterpacht, Law of Treaties: Report by Special
Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n 90, 93, U.N. Doc. A/CN.4/63. (p. 336 of the
Yale Law Journal of Int’l Law) |
[FN73] In
March 1953, the ILC's Special Rapporteur, Sir Hersch Lauterpacht, submitted
for the ILC's consideration a partial draft convention on treaties which
stated that “[a] treaty, or any of its provisions, is void if its performance
involves an act which is illegal under international law and if it is declared
so to be by the International Court of Justice.” Hersch Lauterpacht, Law of
Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n 90, 93,
U.N. Doc. A/CN.4/63. (p.
31, Footnote 73 of the 28 April 2010 Decision) |
|
12. |
Lauterpacht's
colleagues on the ILC generally accepted his assessment that certain
international norms had attained the status of jus cogens. [FN23]
Yet despite general agreement over the existence of international jus cogens,
the ILC was unable to reach a consensus regarding either the theoretical
basis for peremptory norms' legal authority or the proper criteria for
identifying peremptory norms. [FN23]
See Hannikainen, supra note 18, at 160-61 (noting that none of the twenty
five members of the ILC in 1963 denied the existence of jus cogens or
contested the inclusion of an article on jus cogens in the VCLT); see, e.g.,
Summary Records of the 877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227,
230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens
banning aggressive war as an international crime” was evidence that
international law contains “minimum requirement[s] for safeguarding the
existence of the international community”). (p. 336 of the
Yale Law Journal of Int’l Law) |
Though there
was a consensus that certain international norms had attained the status of jus cogens, [FN74] the ILC
was unable to reach a consensus on the proper criteria for identifying
peremptory norms. (p. 31, Body
of the 28 April 2010 Decision) [FN74]
See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227,
230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus
cogens banning aggressive war as an international crime” was evidence that
international law contains “minimum requirement[s] for safeguarding the
existence of the international community”). |
|
13. |
[FN23] xxx see, e.g., Summary Records of the 877th Meeting, [1966] 1
Y.B. Int'l L. Comm'n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the
“emergence of a rule of jus cogens banning aggressive war as an international
crime” was evidence that international law contains “minimum requirement[s]
for safeguarding the existence of the international community”). (Footnote 23
of the Yale Law Journal of Int’l Law) |
[FN74] See
Summary Records of the 877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227,
230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus
cogens banning aggressive war as an international crime” was evidence
that international law contains “minimum requirement[s] for safeguarding the
existence of the international community”). (p.
31, Footnote 74 of the 28 April 2010 Decision) |
|
14. |
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.”[FN27] xxx In commentary accompanying
the draft convention, the ILC indicated that “the prudent course seems to be
to . . . leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals.”[FN29]
xxx [FN27] Second Report on the Law of Treaties, [1963] 2 Y.B. Int'l L.
Comm'n 1, 52, U.N. Doc. A/CN.4/156. [FN29] Second Report on the Law of Treaties, supra note 27, at 53. (p. 337-8 of
the Yale Law Journal of Int’l Law) |
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.”[FN75] 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.”[FN76]
xxx (p. 32, Body
of the 28 April 2010 Decision) [FN75] Second
Report on the Law of Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc.
A/CN.4/156. [76] |
|
15. |
In
some municipal cases, courts have declined to recognize international norms
as peremptory while expressing doubt about the proper criteria for
identifying jus cogens.[FN72] [FN72]
See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 (7th
Cir. 2001) (expressing concern that jus cogens should be invoked “[o]nly as a
last resort”). (p. 346 of the
Yale Law Journal of Int’l Law) |
[FN77] xxx
In some municipal cases, courts have declined to recognize international
norms as peremptory while expressing doubt about the proper criteria for
identifying jus cogens. (See, e.g., Sampson v. Federal Republic of Germany,
250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should
be invoked “[o]nly as a last resort”)). xxx (p.
32, Footnote 77 of the 28 April 2010 Decision) |
|
16. |
In other
cases, national courts have accepted international norms as peremptory, but
have hesitated to enforce these norms for fear that they might thereby
compromise state sovereignty.[FN73] xxx In Congo
v. [FN73]
See, e.g., Bouzari v. [FN74]
See Armed Activities on the Territory of the (pp. 346-7 of
the Yale Law Journal of Int’l Law) |
[FN77] xxx
In other cases, national courts have accepted international norms as
peremptory, but have hesitated to enforce these norms for fear that they
might thereby compromise state sovereignty. (See, e.g., Bouzari v. In Congo
v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ
had refrained from invoking the jus cogens concept in several previous
cases where peremptory norms manifestly clashed with other principles of
general international law. (See Armed Activities on the Territory of the Similarly,
the European Court of Human Rights has addressed jus cogens only once,
in Al-Adsani v. United Kingdom, when it famously rejected the argument
that jus cogens violations would deprive a state of sovereign
immunity. Al-Adsani v. (p. 32,
Footnote 77 of the 28 April 2010 Decision) |
TABLE
C:
Comparison of Mark Ellis’s article in the Case Western Reserve Journal of
International Law, entitled Breaking the
Silence: Rape as an International Crime (2006-7), hereafter called “Ellis’s
work” and the Supreme Court’s
|
|
Mark
Ellis, Breaking the Silence: Rape as an
International Crime, 38 Case W.
Res. J. Int'l L. 225 (2006-2007). |
Vinuya, et. al. v. Executive Secretary,
G.R. No. 162230, |
|
1. |
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.[FN7]
The 1863 Lieber Instructions, which codified customary inter-national law of
land warfare, classified rape as a crime of “troop discipline.”[FN8]
It specified rape as a capital crime punishable by the death penalty.[FN9]
The 1907 Hague Convention protected women by requiring the protection of
their “honour.”[FN10] But modern-day sensitivity to the crime of
rape did not emerge until after World War II. [FN7]
For example, the Treaty of Amity and Commerce [FN8] David 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. [FN9] [FN10] “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, (p. 227 of the
Case Western Law Reserve Journal of Int’l Law) |
[FN65] 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. xxx (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 (p.
27, Footnote 65 of the 28
April 2010 Decision) |
|
2. |
After
World War II, when the Allies established 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.[FN11] [FN11] See generally, Agreement for the Prosecution and Punishment of
the Major War Criminals of the Euro-pean Axis, Aug. 8, 1945, 59 Stat. 1544,
82 U.N.T.S. 279. (p. 227 of the
Case Western Law Reserve Journal of Int’l Law) |
[FN65] xxx
In the (p.
27, Footnote 65 of the 28
April 2010 Decision)
|
|
3. |
The
Nuremberg Judgment did not make any reference to rape and rape was not
prosecuted.[FN13] xxx. It
was different for the Charter of the International Military Tribunal for the
Far East.[FN15] xxx The Tribunal prosecuted rape crimes, even
though its Statute did not explicitly criminalize rape.[FN17] 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.[FN18] [FN13]
Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and
Punishment in the International Arena, 7 ILSA J. INT'L COMP L. 667, at 676. [FN15]
See Charter of the International Tribunal for the [FN17]
See McDonald, supra note 13, at 676. [FN18]
THE (p. 228 of the
Case Western Law Reserve Journal of Int’l Law) |
[FN65] xxx
The Nuremberg Judgment did not make any reference to rape and rape was not
prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal
Tribunals Crime and Punishment in the International Arena,7 ILSA J. Int’l.
Comp. L. 667, 676.) However, International
Military Tribunal for the (p.
27, Footnote 65 of the 28
April 2010 Decision) |
|
4. |
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.[FN22] Law No. 10,
adopted by the four occupying powers in [FN22]
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), available at
http://www1.umn.edu/humanrts/instree/ccno10.htm (last visited Nov. 20, 2003).
This law set forth a uniform legal basis in (pp. 228-9 of
the Case Western Law Reserve Journal of Int’l Law) |
[FN65] xxx
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 (p.
27, Footnote 65 of the 28
April 2010 Decision) |
|
5. |
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.[FN23] However, the most important development in
breaking the silence of rape as an international crime has come through the
jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda
(ICTR). Both of these Tribunals have significantly advanced the crime of rape
by enabling it to be prosecuted as genocide, a war crime, and a crime against
humanity. xxx. [FN23] Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, (p. 229 of the
Case Western Law Reserve Journal of Int’l Law) |
[FN65] xxx
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, (p.
27, Footnote 65 of the 28
April 2010 Decision) |
Forms of Plagiarism
There are many ways by which
plagiarism can be committed.[4] For the purpose of this analysis, we used the
standard reference book prescribed for
Even if
there has been a prior citation, succeeding appropriations of an idea to make
it appear as your own is plagiarism, because the “[previous] citation in [an
earlier] passage is a deception.” Mode (c) is committed when “you … borrowed
several distinctive phrases verbatim, without quotation marks…” Mode (d) is committed when, though the words
and details are original, “(y)ou have, however, taken the structural framework
or outline directly from the source passage … even though, again, your language
differs from your source and your invented examples are original.”[12]
These
forms of plagiarism can exist simultaneously in one and the same passage. There may be a complete failure to use
quotation marks in one part of the sentence or paragraph while combining that
part with phrases employing an uncited structure or organizing strategy. There
may be patchwork plagiarizing committed by collating different works or excerpts
from the same work without proper attribution.[13]
These
acts of plagiarism can also be committed in footnotes in the same way and at
the same degree of unacceptability as plagiarized passages in the body. This is especially frowned upon in footnotes
that are discursive or “content” footnotes or endnotes.
Violations of Rules against
Plagiarism in the Vinuya
Decision
Below are violations of the existing
rules against plagiarism that can be found in the Vinuya decision. The
alphanumeric tags correspond to the table letter and row numbers in the tables
provided above.
A.1 Failure to use quotation marks to indicate
that the entire paragraph in the body of the decision on page 30 was not the ponente’s original paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is wholly
insufficient because without the quotation marks, there is nothing to alert the
reader that the paragraph was lifted verbatim from Tams. The footnote leaves the
reader with the impression that the said paragraph is the author’s own analysis
of erga omnes.
The “See Tams, Enforcing Obligations Erga
omnes in International Law (2005)” line in footnote 69 of the Vinuya
decision does not clearly indicate that the statement on Simma’s observation
was lifted directly from Tams’s work; it only directs the reader to Tams’s work
should the reader wish to read further discussions on the matter.
B.1 Failure to use quotation marks to indicate
that the two sentences were not the ponente’s, but were lifted verbatim from two
non-adjoining sentences found on pages 331 and 332 of the Yale Law Journal of International Law article of Criddle & Fox-Decent and with absolutely no attribution to
the latter.
B.2 Failure to use quotation marks to indicate
that the sentence fragment on peremptory norms was not the ponente’s original writing, but was lifted verbatim from page 334
of the Yale Law Journal of International
Law article of Criddle &
Fox-Decent with absolutely no attribution to the authors.
B.3 Failure to use quotation marks to indicate
that the first sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted verbatim from Criddle & Fox-Decent’s work
at page 334.
B.4 Failure to use quotation marks to indicate
that the third sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted from
Criddle & Fox-Decent’s work at 334-335.
B.5 Failure to indicate that one footnote source
in discursive footnote 71 was lifted verbatim from discursive footnote 9 of
Tams; thus, even the idea being propounded in this discursive part of footnote
71 was presented as the ponente’s,
instead of Criddle’s & Fox-Decent’s.
B.6 Failure to indicate that the last discursive
sentence in footnote 71 and the citations thereof were not the ponente’s, but were lifted verbatim from footnote 9 of Criddle &
Fox-Decent’s work.
B.7 Failure to indicate that the first
discursive sentence of footnote 72 was not the ponente’s, but was lifted
verbatim from page 335 of Criddle & Fox-Decent’s work.
B.8 Failure to indicate that the second
discursive sentence of footnote 72 was not the ponente’s, but was lifted
verbatim from pages 335-336 of Criddle and Fox-Decent’s work.
B.9 Failure to indicate that the citation and
the discursive passage thereon in the last sentence of footnote 72 was not the ponente’s, but was lifted verbatim from discursive footnote 18 of Criddle
& Fox-Decent’s work.
B.10 Failure to use quotation marks to indicate
that a phrase in the body of the decision on page 31 was not the ponente’s, but was lifted verbatim from page 336 of Criddle &
Fox-Decent’s work.
B.11 Failure to indicate that the entirety of
discursive footnote 73 was not the ponente’s, but was lifted verbatim from page 336
of Criddle & Fox-Decent’s work.
B.12 Failure to indicate that the idea of lack of
“consensus on whether certain international norms had attained the status of jus cogens” was a paraphrase of a
sentence combined with a verbatim lifting of a phrase that appears on page 336
of Criddle & Fox-Decent’s work and was not the ponente’s own conclusion.
This is an example of patchwork plagiarism.
B.13 Failure to indicate that the entirety of
discursive footnote 74 on page 31 of the Decision was not the ponente’s comment on the source cited,
but was lifted verbatim from footnote 23 of Criddle & Fox-Decent’s work.
B.14 Failure to indicate through quotation marks
and with the proper attribution to Criddle that the first two sentences of page
32 were not the ponente’s, but were
lifted verbatim from two non-adjoining sentences on pages 337-338 of Criddle
& Fox-Decent’s work.
B.15 Failure to indicate through quotation marks
and the right citation that the discursive sentence in the second paragraph of
footnote 77, and the citation therein, were not the ponente’s, but were
lifted verbatim from page 346 of the body of Criddle & Fox-Decent’s work in
the instance of the discursive sentence, and from footnote 72 of Criddle &
Fox-Decent’s work in the instance of the case cited and the description
thereof.
B.16 Failure to indicate that the choice of citation
and the discursive thereon statement in the second sentence of the second
paragraph of discursive footnote 77 was not the ponente’s, but was lifted
verbatim from footnote 72 of Criddle & Fox-Decent’s work.
B.17 Failure to indicate through quotation marks
and the right citations that the entirety of the discursive third to fifth
paragraphs of footnote 77 were not the product of the ponente’s own analysis and choice of sources, but were lifted
verbatim from footnotes 73 and 77 on pages 346-347 of Criddle &
Fox-Decent’s work.
C.1 to
C.6 Failure to use quotation marks and
the right citations to indicate that half of the long discursive footnote 65,
including the sources cited therein, was actually comprised of the
rearrangement, and in some parts, rephrasing of 18 sentences found on pages
227-228 of Mr. Ellis’s work in Case Western
Law Reserve Journal of International Law.
This
painstaking part-by-part analysis of the Vinuya
decision is prompted by the fact that so many, including international academicians,
await the Court’s action on this plagiarism charge ─ whether it will in
all candor acknowledge that there is a set of conventions by which all
intellectual work is to be judged and thus fulfill its role as an honest court;
or blind itself to the unhappy work of its member.
The text
of the Decision itself reveals the evidence of plagiarism. The tearful apology
of the legal researcher to the family of the ponente and her
acknowledgment of the gravity of the act of omitting attributions is an
admission that something wrong was committed. Her admission that the correct
attributions went missing in the process of her work is an admission of
plagiarism. The evidence in the text of the Vinuya Decision and the
acknowledgment by the legal researcher are sufficient for the determination of
plagiarism.
The Place of the Plagiarized
Portions in the Vinuya Decision
The suspect portions of the majority
decision start from the discursive footnotes of the first full paragraph of
page 27. In that paragraph, the idea
sought to be developed was that while rape and sexual slavery may be morally
reprehensible and impermissible by international legal norms, petitioners have
failed to make the logical leap to conclude that the Philippines is thus under
international legal duty to prosecute Japan for the said crime. The plagiarized work found in discursive
footnote 65 largely consists of the exposition by Mr. Ellis of the development
of the concept of rape as an international crime. The impression obtained by
any reader is that the ponente has
much to say about how this crime evolved in international law, and that he is
an expert on this matter.
There
are two intervening paragraphs before the next suspect portion of the
decision. The latter starts from the
second paragraph on page 30 and continues all the way up to the first paragraph
of page 32. The discussion on the erga
omnes obligation of states almost cannot exist, or at the very least cannot
be sustained, without the plagiarized works of Messrs. Tams, Criddle and Decent-Fox. There is basis to say that the plagiarism of
this portion is significant.
How the Majority Decision
Treated the Specific Allegations
of Plagiarism
The majority Decision narrates and
explains:
“The researcher demonstrated by Power Point presentation
how the attribution of the lifted passages to the writings of Criddle-Descent
and Ellis, found in the beginning drafts of her report to Justice Del Castillo,
were unintentionally deleted. She
tearfully expressed remorse at her “grievous mistake” and grief for having
“caused an enormous amount of suffering for Justice Del Castillo and his
family.”
On the other hand, addressing the Committee in
reaction to the researcher’s explanation, counsel for petitioners insisted that
lack of intent is not a defense in plagiarism since all that is required is for
a writer to acknowledge that certain words or language in his work were taken
from another’s work. Counsel invoked the
Court’s ruling in University of the
Philippines Board of Regents v. Court of Appeals and Arokiaswamy William
Margaret Celine, arguing that standards on plagiarism in the academe should
apply with more force to the judiciary.
x x x x x x x x x
“… although Tams himself may have believed that the
footnoting in his case was not “an appropriate form of referencing,” he and
petitioners cannot deny that the decision did attribute the source or sources
of such passages. Justice Del Castillo
did not pass off Tam’s work as his own.
The Justice primarily attributed the ideas embodied in the passages to
Bruno Simma, whom Tam himself credited for them. Still, Footnote 69 mentioned, apart from
Simma, Tam’s article as another source of those ideas.
The Court believes that whether or not the footnote is
sufficiently detailed, so as to satisfy the footnoting standards of counsel for
petitioners is not an ethical matter but one concerning clarity of writing. The
statement “See Tams, Enforcing
Obligations Erga Omnes in
International Law (2005)” in the Vinuya
decision is an attribution no matter if Tams thought that it gave him somewhat
less credit than he deserved. Such
attribution altogether negates the idea that Justice Del Castillo passed off
the challenged passages as his own.
That it would have been better had Justice Del
Castillo used the introductory phrase “cited
in” rather than the phrase “See”
would make a case of mere inadvertent slip in attribution rather than a case of
“manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it
would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of
abuse for every editorial error, for every mistake in citing pagination, and
for every technical detail of form.”
x x x
“Footnote 65 appears down the bottom of the page. Since the lengthily passages in that footnote
came almost verbatim from Ellis’ article, such passages ought to have been
introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking
the Silence: Rape as an International
Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis
said.) x x x
“But, as it happened, the acknowledgment above or a
similar introduction was missing from Footnote 65.
x x x
“Admittedly, the Vinuya
decision lifted the above, including their footnotes, from
Criddle-Descent’s article, A Fiduciary
Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no
attributions were made to the two authors in those footnotes.
“Unless amply explained, the above lifting from the
works of Ellis and Criddle-Descent could be construed as plagiarism. But one of
Justice Del Castillo’s researchers, a court-employed attorney, explained how
she accidentally deleted the attributions, originally planted in the beginning
drafts of her report to him, which report eventually became the working draft
of the decision. She said that, for most
parts, she did her research electronically.
For international materials, she sourced these mainly from Westlaw, an
online research service for legal and law-related materials to which the Court
subscribes.
x
x x
“With the advent of computers, however as Justice Del
Castillo’s researcher also explained, most legal references, including the
collection of decisions of the Court, are found in electronic diskettes or in
internet websites that offer virtual libraries of books and articles. Here, as
the researcher found items that were relevant to her assignment, she downloaded
or copied them into her “main manuscript,” a smorgasbord plate of materials
that she thought she might need. The researcher’s technique in this case is not
too far different from that employed by a carpenter. The carpenter first gets
the pieces of lumber he would need, choosing the kinds and sizes suitable to
the object he has in mind, say a table.
When ready, he would measure out the portions he needs, cut them out of
the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.
“Here, Justice Del Castillo’s researcher did just
that. She electronically “cut” relevant materials from books and journals in
the Westlaw website and “pasted” these to a “main manuscript” in her computer
that contained the Microsoft Word program.
Later, after she decided on the general shape that her report would
take, she began pruning from that manuscript those materials that did not fit,
changing the positions in the general scheme of those that remained, and adding
and deleting paragraphs, sentences, and words as her continuing discussions
with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme
that computer-literate court researchers use everyday in their work.
“Justice Del Castillo’s researcher showed the
Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the
separate articles of Criddle-Descent and of Ellis with proper attributions to
these authors. But, as it happened, in
the course of editing and cleaning up her draft, the researcher accidentally
deleted the attributions.
“The Court adopts the Committee’s finding that the
researcher’s explanation regarding the accidental removal of proper
attributions to the three authors is credible. Given the operational properties
of the Microsoft program in use by the Court, the accidental decapitation of
attributions to sources of research materials is not remote.”
Contrary to the view of my esteemed
colleagues, the above is not a fair presentation of what happens in
electronically generated writings aided by electronic research.
First, for a decision to make full
attribution for lifted passages, one starts with block quote formatting or the
“keying-in” of quotation marks at the beginning and at the end of the lifted
passages. These keyed-in computer commands are not easily accidentally
deleted, but should be deliberately
inputted where there is an intention to quote and attribute.
Second, a beginning acknowledgment or
similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be
deliberately placed.
Third, the above explanation regarding the
lines quoted in A.1 in the majority Decision may touch upon what happened in
incident A.1, but it does not relate to what happened in incidents B.1 to C.6
of the Tables of Comparison, which are wholesale lifting of excerpts from both
the body and the footnotes of the referenced works, without any attribution,
specifically to the works of Criddle & Fox-Decent and of Ellis. While mention
was made of Tams’s work, no mention was made at all of the works of Criddle
& Fox-Decent and of Ellis even though the discussions and analyses in their
discursive footnotes were used wholesale.
Fourth, the researcher’s explanation
regarding the accidental deletion of 2 footnotes out of 119 does not plausibly
account for the extensive amount of text used with little to no modifications
from the works of Criddle & Fox-Decent and Ellis. As was presented in
Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of
the Vinuya decision. All these instances of non-attribution cannot be
remedied by the reinstatement of 2 footnotes.
Fifth, the mention of Tams in “See
Tams, Enforcing Obligations Erga omnes in International Law (2005)” in footnote
69 of the Vinuya decision was not a mere insufficiency in “clarity of
writing,” but a case of plagiarism under the rule prohibiting the use of
misleading citations.
Sixth, the analogy that was chosen ─
that of a carpenter who discards materials that do not fit into his carpentry
work ─ is completely inappropriate. In the scheme of “cutting and
pasting” that the researcher did during her work, it is standard practice for
the original sources of the downloaded and copied materials to be regarded as
integral parts of the excerpts, not extraneous or ill-fitting. A
computer-generated document can accommodate as many quotation marks,
explanatory notes, citations and attributions as the writer desires and in
multiple places. The limits of most
desktop computer drives, even those used in the Supreme Court, are in
magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400
books per gigabyte (with each book just consuming roughly 3 to 5 megabytes).
The addition of a footnote to the amount of file space taken up by an
electronic document is practically negligible. It is not as if the researcher
lacked any electronic space; there was simply no attribution.
Seventh, contrary to what is implied in the
statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the
decretal portion of the majority Decision, no software exists that will
automatically type in quotation marks at the beginning and end of a passage
that was lifted verbatim; these attribution marks must be made with deliberate
effort by the human researcher. Nor can a software program generate the
necessary citations without input from the human researcher. Neither is there a
built-in software alarm that sounds every time attribution marks or citations
are deleted. The best guarantee for works of high intellectual integrity is
consistent, ethical practice in the writing habits of court researchers and
judges. All lawyers are supposed to be knowledgeable on the standard of ethical
practice, if they took their legal research courses in law school and their
undergraduate research courses seriously.
This knowledge can be easily picked up and updated by browsing many free
online sources on the subject of writing standards. In addition, available on the market are
software programs that can detect some, but not all, similarities in the
phraseology of a work-in-progress with those in selected published materials;
however, these programs cannot supply the citations on their own. Technology
can help diminish instances of plagiarism by allowing supervisors of
researchers to make partial audits of their work, but it is still the human
writer who must decide to give the proper attribution and act on this decision.
Plagiarism and
Judicial Plagiarism
Plagiarism is an act that does not depend merely on the
nature of the object, i.e. what is
plagiarized, but also hinges on the process, i.e. what has been done to the object. The elements of this process
are the act of copying the plagiarized work and the subsequent omission
in failing to attribute the work to its author.[15] Plagiarism thus does not consist solely of
using the work of others in one's own work, but of the former in conjunction
with the failure to attribute said work to its rightful owner and thereby,
as in the case of written work, misrepresenting the work of another as one's
own. As the work is another's and used without attribution, the plagiarist
derives the benefit of use from the plagiarized work without expending the
requisite effort for the same ─ at a cost (as in the concept of
“opportunity cost”) to its author who could otherwise have gained credit for
the work and whatever compensation for its use is deemed appropriate and
necessary.
If the question of plagiarism, then, turns on a failure of
attribution, judicial plagiarism in the case at bar “arises when judges author
opinions that employ materials from copyrighted sources such as law journals or
books, but neglect to give credit to the author.”[16] Doing so effectively implies the staking of a claim on the
copied work as the judge's own.[17]
Note that there is no requirement of extent of copying or a minimum number of
instances of unattributed usage for an act to be considered a plagiarist act,
nor is the intent to deceive or to copy without attribution a prerequisite of
plagiarism. In Dursht's exhaustive analysis of judicial plagiarism she cites
the case of Newman v. Burgin[18]
wherein the court said that plagiarism may be done “through negligence or
recklessness without intent to deceive.”[19]
Dursht in addition notes that intent may also be taken as the intent to
claim authorship of the copied work, whether or not there was intent to
deceive, citing Napolitano v. Trustees of Princeton Univ.[20]
George describes the following among the types of judicial
plagiarism:
Borrowed Text: When quoting a legal periodical, law review, treatise or other such
source, the judicial writer must surround the borrowed text with quotation
marks or use a block quote. . . . Additionally, the source should be referenced
in the text . . .
Using another's language verbatim without using
quotation marks or a block quote is intentional, as opposed to unintentional,
plagiarism.
Reference errors: The judge may fail to put quotation marks around a
clause, phrase or paragraph that is a direct quote from another's writing even
though he cites the author correctly. This is plagiarism even though it may be
inadvertent.[21]
While indeed the notion of having
committed judicial plagiarism may be unsettling to contemplate, as it may raise
in the mind of a judge the question of his or her own culpability[22],
it is a grievous mistake to overlook the possibility of the commission of
judicial plagiarism or the fact that judicial plagiarism is categorized by its
very definition as a subset of plagiarism. That a judge, in lifting words from
a source and failing to attribute said words to said source in the writing of a
decision, committed specifically judicial plagiarism does not derogate
from the nature of the act as a plagiarist act. Nor does any claim of
inadvertence or lack of intent in the commission of a plagiarist act change the
characterization of the act as plagiarism.
Penalties
for Plagiarism and
Judicial
Plagiarism
In
the academe, plagiarism is generally dealt with severely when found out; many
universities have policies on plagiarism detailing the sanctions that may be
imposed on students who are found to have plagiarized in their coursework and
other academic requirements. These run the gamut from an automatic failing
grade in the course for which the offending work was submitted, or in more
egregious cases, outright expulsion from the university. Sanctions for
plagiarism in the academe operate through “the denial of certification or
recognition of achievement”[23]
to the extent of rescinding or denying degrees. In the case of law students who
do manage to obtain their degrees, their admission to the bar may be hindered
due to questions about their “character or fitness to practice law.”[24]
Indeed, plagiarism, due to the severity of the penalties it may incur, is often
identified with the punishment of “academic death.”[25] The academe justifies the harshness of the
sanctions it imposes with the seriousness of the offense: plagiarism is seen
not only to undermine the credibility and importance of scholarship, but also
to deprive the rightful author of what is often one of the most valuable
currencies in the academe: credit for intellectual achievement ─ an act
of debasing the coinage, as it were. Thus the rules of many academic
institutions sanctioning plagiarism as a violation of academic ethics and a
serious offense often classed under the broader heading of “academic
dishonesty.”
The imposition of sanctions for acts of judicial
plagiarism, however, is not as clear-cut. While George recognizes the lack of
attribution as the fundamental mark of judicial plagiarism, she notes in the
same breath that the act is “without legal sanction.”[26]
Past instances of censure notwithstanding (as in examples of condemnation of
plagiarism cited by Lebovits et al[27],
most particularly the censure of the actions of the judge who plagiarized a
law-review article in Brennan[28];
the admonition issued by the Canadian Federal Court of Appeal in the case of Apotex[29])
there is still no strictly prevailing consensus regarding the need or
obligation to impose sanctions on judges who have committed acts of judicial
plagiarism. This may be due in a large part to the absence of expectations of
originality in the decisions penned by judges, as courts are required to
“consider and usually . . . follow precedent.”[30]
In so fulfilling her obligations, it may become imperative for the judge to use
"the legal reasoning and language [of others e.g. a supervising
court or a law review article] for resolution of the dispute."[31]
Although these obligations of the judicial writer must be acknowledged,
care should be taken to consider that said obligations do not negate the need
for attribution so as to avoid the commission of judicial plagiarism. Nor do
said obligations diminish the fact that judicial plagiarism “detracts directly
from the legitimacy of the judge's ruling and indirectly from the judiciary's
legitimacy”[32] or
that it falls far short of the high ethical standards to which judges must
adhere[33].
The lack of definitiveness in sanctions for judicial plagiarism may also be due
to the reluctance of judges themselves to confront the issue of plagiarism in
the context of judicial writing; the apprehension caused by “feelings of guilt”
being due to “the possibility that plagiarism has unknowingly or intentionally
been committed” and a “traditional” hesitance to consider plagiarism as “being
applicable to judicial writings.”[34]
Findings of judicial plagiarism do not necessarily
carry with them the imposition of sanctions, nor do they present unequivocal demands
for rehearing or the reversal of rulings. In Liggett Group, Inc., et al v
Harold M. Engle, M.D. et al[35],
a
On
Guilt and Hypocrisy
It is not hypocrisy, contrary to what
is implied in a statement in the majority Decision, to make a finding of
plagiarism when plagiarism exists. To conclude thus is to condemn wholesale all
the academic thesis committees, student disciplinary tribunals and editorial
boards who have made it their business to ensure that no plagiarism is
tolerated in their institutions and industry. In accepting those review and
quality control responsibilities, they are not making themselves out to be
error-free, but rather, they are exerting themselves to improve the level of
honesty in the original works generated in their institution so that the
coinage and currency of intellectual life – originality and the attribution of
originality – is maintained. The incentive system of intellectual creation is
made to work so that the whole society benefits from the encouraged output.
In the case of judicial plagiarism,
it is entirely possible for judges to have violated the rules against
plagiarism out of ignorance or from the sheer fact that in order to cope with
their caseloads, they have to rely on researchers for part of the work. That
would have been a very interesting argument to consider. But ignorance is not
pleaded here, nor is the inability to supervise a legal researcher pleaded to
escape liability on the part of the ponente. Rather, the defense was
that no plagiarism existed. This conclusion however is unacceptable for the
reasons stated above.
As noted above, writers have ventured
to say that the reluctance to address judicial plagiarism may stem from fear,
nay, guilt.[40] Fear
that the judge who says plagiarism was committed by another is himself guilty
of plagiarism. But that is neither here nor there. We must apply the
conventions against judicial plagiarism because we must, having taken on that
obligation when the Court took cognizance of the plagiarism complaint, not
because any one of us is error-free. In fact, the statement on hypocrisy in the
majority Decision betrays prejudgment of the complainants as hypocrites, and a
complaint against a sitting judge for plagiarism would appear impossible to
win.
In a certain sense, there should have
been less incentive to plagiarize law review articles because the currency of
judges is stare decisis. One wonders how the issue should have been
treated had what was plagiarized been a court ruling, but that is not at issue
here. The analysis in this opinion is therefore confined to the peculiar
situation of a judge who issues a decision that plagiarizes law review
articles, not to his copying of precedents or parts of the pleadings of the
parties to a case.
As earlier said, a determination of
the existence of plagiarism in
decision-making is not conclusive on the disciplinary measure to be imposed.
Different jurisdictions have different treatments. At the very least however,
the process of rectification must start from an acknowledgment and apology for
the offense. After such have been done, then consideration of the circumstances
that mitigate the offense are weighed. But not before then.
The Unfortunate Result of
the Majority Decision
Unless reconsidered, this Court would
unfortunately be remembered as the Court that made “malicious intent” an
indispensable element of plagiarism and that made computer-keying errors an
exculpatory fact in charges of plagiarism, without clarifying whether its
ruling applies only to situations of judicial decision-making or to other
written intellectual activity. It will
also weaken this Court’s disciplinary authority ─ the essence of which
proceeds from its moral authority ─ over the bench and bar. In a real sense, this Court has rendered
tenuous its ability to positively educate and influence the future of
intellectual and academic discourse.
The Way Forward
Assuming
that the Court had found that judicial plagiarism had indeed been committed in
the Vinuya decision, the Court could
then have moved to the next logical question: what then is the legal
responsibility of the ponente of the Vinuya decision for having passed on to
the Court en banc a ponencia that contains plagiarized
parts?
There
would have been at that point two possible choices for the Court vis-à-vis the ponente ─ to
subject him to disciplinary measures or
to excuse him. In order to determine
whether the acts committed would have warranted discipline, the Court should
have laid down the standard of diligence and responsibility that a judge has
over his actions, as well as the disciplinary measures that are available and
appropriate.
The Court could also have chosen to attribute liability to
the researcher who had admitted to have caused the plagiarism. In In re Hinden, disciplinary measures were imposed on an attorney who
plagiarized law review articles.[41]
Response to the Decretal
Portion of the Majority Decision
In view of the above, it is my opinion:
1. That Justice Mariano C. del Castillo
and his unnamed researcher have committed plagiarism in the drafting and
passing on of the ponencia in the Vinuya decision;
2. That this Court should request
Justice del Castillo to acknowledge the plagiarism and apologize to the
complaining authors for his mistake;
3. That this Court should cause the
issuance of a corrected version of the Vinuya
decision in the form of a “Corrigendum”;
4. That court attorneys should be
provided with the appropriate manuals on writing and legal citation, and should
be informed that the excerpts complained of and described in Tables A, B, and C
of this opinion are acts of plagiarism and not mere editing errors or
computer-generated mistakes;
5. That the refusal of the majority to
pronounce that plagiarism was committed by Justice del Castillo means that any
judicial opinion on his liability or that of his researcher would be academic
and speculative, a ruling which this Dissenting Opinion will not venture to
make a pronouncement on; and
6. That a copy of this Dissenting
Opinion should be circulated by the Public Information Office in the same
manner as the Majority Decision to the complaining authors Christian J. Tams,
Mark Ellis, Evan Criddle and Evan Fox-Decent.
MARIA
Associate
Justice
[1] Isabelita C. Vinuya, et al. v. The Honorable
Executive Secretary, et al., G.R. No. 1622309,
[2] Judges cannot be liable for copyright infringement in their judicial work (Section 184.1(k), R.A. 8293).
[3] Justice
Mariano del Castillo’s letter addressed to Chief Justice Renato C. Corona and
Colleagues, dated
[4] Gordon Harvey, Writing with Sources: A Guide for Harvard Students (Hackett Publishing Company, 2nd ed. [c] 2008).
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15] Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Observations on the Use of Criminal Sanctions
in Enforcing Intellectual Property Rights, 54
[16] Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253, at 1.
[17] Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook, <http://books.google.com.ph/books?id=7jBZ4yjmgXUC&pg=PR1&hl=en&lpg=PR1#v=onepage&q&f=false>
(accessed on
[18] Newman v Burgin, 930 F.2d 955 (1st Cir.) as cited in Dursht, supra at 4 and note 60.
[19] Newman v. Burgin, id. at 962 as cited in Dursht, id. at 4 and note 61.
[20] 453 A.2d 279 (N.J. Super. Ct. Ch. Div. 1982) as cited in Dursht, supra at 1 and note 6.
[21] George, supra at 715.
[22]
[23] Dursht, supra note 16 at 5.
[24] In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865, as cited in Dursht, id. at 5 and note 92.
[25] Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 College English 7 (Nov., 1995), at
788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403
(accessed on
[26] George, supra note 17 at 715.
[27] Klinge v.
[28] See In re Brennan, 447 N.W.2d 712, 713-14 (
[29] Apotex Inc. v. Janssen-Ortho Inc., 2009, as cited in Emir Aly Crowne-Mohammed, 22 No. 4 Intell. Prop. & Tech. L.J. 15, 1.
[30] Richard A. Posner, The Little Book of Plagiarism, 22 (2007), and Terri LeClercq, Failure to Teach: Due Process and Law School Plagiarism, 49 J. Legal Educ., 240 (1999), as cited in Carol M. Bast and Linda B. Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Cath. U.L. Rev. 777, note 85.
[31] George, supra note 17 at 708.
[32] Lebovits, supra at 265.
[33] See generally Dursht; supra note 16; and Lebovits, supra.
[34] George, supra note 17 at 707
[35] Liggett Group, Inc. v. Engle, 853 So. 2d
434 (
[36]
[37] Counihan v. Allstate Ins. Co., 194 F.3d at 363, as cited in Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the Trends, 32 Hofstra Law Rev. 1135, note 154.
[38] Anderson v. City
of Bessemer, 470
[39] United States v. El Paso Natural Gas Co., p. 656, and United States v. Marine Bancorporation, p. 615, as cited in George, supra note 17 at 719.
[40] See Stuart P. Green, Plagiarism, Norms, and the Limits of Theft
Law: Observations on the Use of Criminal
Sanctions in Enforcing Intellectual Property Rights, 54
[41] In re Hinden, 654 A.2d 864
(1995) (