A.M. No. 10-7-17-SC − IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.
February 8, 2011
I dissent on two grounds. First, this Court has no jurisdiction to decide in an administrative case whether a sitting Justice of this Court has committed misconduct in office as this power belongs exclusively to Congress. Second, in writing judicial decisions a judge must comply with the Law on Copyright1 as the judge has no power to exempt himself from the mandatory requirements of the law.
I. Disciplining Authority of Impeachable Officers
Under the Constitution, the sole disciplining authority of all impeachable officers, including Justices of this Court, is Congress. Section 3(1), Article XI of the Constitution provides that, The House of Representatives shall have the exclusive power to initiate all cases of impeachment. Likewise, Section 3(6) of the same Article provides that, The Senate shall have the sole power to try and decide cases of impeachment. These provisions constitute Congress as the exclusive authority to discipline all impeachable officers for any impeachable offense, including betrayal of public trust, a catchall phrase2 to cover any misconduct involving breach of public trust by an impeachable officer.
While impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinary proceedings against impeachable officers. Impeachable officers are not subject to administrative disciplinary proceedings either by the Executive or Judicial branch, in the same manner that non-impeachable officers are subject. Thus, impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no other authority that can administratively discipline impeachable officers.3 Removal from office and disqualification to hold public office,4 which is the penalty for an impeachable offense,5 is also the most severe penalty that can be imposed in administrative disciplinary proceedings.
Impeachment is not a criminal proceeding because conviction in an impeachment complaint is not a bar to criminal prosecution for the same act.6 An impeachable offense, like betrayal of public trust, may not even constitute a criminal act. Like in an administrative proceeding, proof beyond reasonable doubt is not required for conviction in impeachment. If an impeachable officer is charged of a crime, as distinguished from an administrative charge, the proper court has jurisdiction to try such impeachable officer because the proceeding is criminal, not administrative. However, neither the conviction nor acquittal of such impeachable officer in the criminal case constitutes a bar to his subsequent impeachment by Congress. There is no double jeopardy because impeachment is not a criminal proceeding.7
Only Congress, as the exclusive disciplining authority of all impeachable officers, can decide in a non-criminal, non-civil proceeding8 whether a sitting Justice of this Court has committed plagiarism. Plagiarism is a betrayal of public trust because, as the majority puts it, to plagiarize is to steal and pass off as ones own the ideas of another.9 However, in writing judicial decisions a judge is liable for plagiarism only if the copying violates the moral rights of the author under the Law on Copyright.
This Court may conduct an investigation of an administrative complaint against a sitting Justice to determine if there is basis in recommending to the House of Representatives the initiation of an impeachment complaint against the sitting Justice. This Court may also conduct an investigation of an administrative complaint against a sitting Justice to determine if the complaint constitutes contempt of this Court. However, this Court has no power to decide on the guilt or innocence of a sitting Justice in the administrative complaint because such act is a usurpation of the exclusive disciplinary power of Congress over impeachable officers under the Constitution. Any decision by this Court in an administrative case clearing a sitting Justice of an impeachable offense is void for want of jurisdiction and for violation of an express provision of the Constitution.
Such a decision will put this Court on a collision course with Congress if subsequently an impeachment complaint for plagiarism is filed with Congress against the sitting Justice. Incidentally, an impeachment complaint has already been filed in the House of Representatives involving the same complaint subject of this administrative case. If the House of Representatives decides to take cognizance of the complaint and initiates an impeachment based on the same administrative complaint that this Court had already dismissed as baseless, then this Court would have created a constitutional crisis that could only weaken the publics faith in the primacy of the Constitution.
The Supreme Court cannot assume jurisdiction over an administrative complaint against a sitting Justice of this Court by invoking Section 6, Article VIII of the Constitution. This provision states that the Supreme Court shall have administrative supervision over all courts and the personnel thereof. This provision refers to the administrative supervision that the Department of Justice used to exercise over the courts and their personnel, as shown by the folowing exchange during the deliberations of the Constitutional Commission:
MR. GUINGONA: xxx.
The second question has reference to Section 9, about the administrative supervision over all courts to be retained in the Supreme Court. I was wondering if the Committee had taken into consideration the proposed resolution for the transfer of the administrative supervision from the Supreme Court to the Ministry of Justice. But as far as I know, none of the proponents had been invited to explain or defend the proposed resolution.
Also, I wonder if the Committee also took into consideration the fact that the UP Law Constitution Project in its Volume I, entitled: Annotated Provision had, in fact, made this an alternative proposal, the transfer of administrative supervision from the Supreme Court to the Ministry of Justice.
MR. CONCEPCION: May I refer the question to Commissioner Regalado?
THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is recognized.
MR. REGALADO: Thank you, Mr. Presiding Officer.
We did invite Minister Neptali Gonzales, who was the proponent for the transfer of supervision of the lower courts to the Ministry of Justice. I even personally called up and sent a letter or a short note inviting him, but the good Minister unfortunately was enmeshed in a lot of official commitments. We wanted to hear him because the Solicitor General of his office, Sedfrey Ordoez, appeared before us, and asked for the maintenance of the present arrangement wherein the supervision over lower courts is with the Supreme Court. But aside from that, although there were no resource persons, we did further studies on the feasibility of transferring the supervision over the lower courts to the Ministry of Justice. All those things were taken into consideration motu proprio.10
For sure, the disciplinary authority of the Supreme Court over judges is expressly govened by another provision, that is, Section 11, Article VIII of the Constitution. Section 11 provides:
Section 11. xxx The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis supplied)
Clearly, the disciplinary authority of the Supreme Court over judges is found in Section 11 of Article VIII. However, this disciplinary authority is expressly limited to lower court judges, and does not incude Supreme Court Justices, precisely because the Constitution expressly vests exclusively on Congress the power to discipline Supreme Court Justices. By excluding Supreme Court Justices, Section 11 withholds from the Supreme Court en banc the power to discipline its own members.
The Judicial Conduct and Disability Act of 1980 of the United States, which gives judicial councils composed of federal judges the power to discipline federal judges short of removal from office, does not apply to Justices of the United States Supreme Court who are subject to discipline only by the United States Congress. Morever, a similar law cannot be enacted in the Philippines bacause all lower court judges are subject to discipline by the Supreme Court en banc under Section 11, Article VIII of the Constitution. Thus, reference to the Judicial Conduct and Disability Act of 1980 is inappropriate in this jurisdiction.
I submit that this Court recall the Resolution of 12 October 2010 subject of the present motion for reconsideration for lack of jurisdiction to decide the administrative complaint against Justice Mariano C. Del Castillo.
II. The Judge Must Follow the Law on Copyright
a. Copying from Works of the Government
In writing judicial decisions, a judge should make the proper attribution in copying passages from any judicial decision, statute, regulation, or other Works of the Government. The Manual of Judicial Writing adopted11 by this Court provides how such attribution should be made.
However, the failure to make such attribution does not violate the Law on Copyright.12 The law expressly provides that Works of the Government are not subject to copyright.13 This means that there is neither a legal right by anyone to demand attribution, nor any legal obligation from anyone to make an attribution, when Works of the Government are copied. The failure to make the proper attribution of a Work of the Government is not actionable but is merely a case of sloppy writing. Clearly, there is no legal obligation, by a judge or by any person, to make an attribution when copying Works of the Government.
However, misquoting or twisting, with or without attribution, any judicial decision, statute, regulation or other Works of the Government in judicial writing, if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge should perform official duties honestly.14 Rule 3.0115 and Rule 3.0216 of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the applicable law.
The foregoing applies to any non-copyrightable work, and any work in the public domain, whether local or foreign.
b. Copying from Pleadings of Parties
In writing judicial decisions, the judge may copy passages from the pleadings of the parties with proper attribution to the author of the pleading. However, the failure to make the proper attribution is not actionable.
Pleadings are submitted to the court precisely so that the pleas, or the arguments written on the pleadings, are accepted by the judge. There is an implied offer by the pleader that the judge may make any use of the pleadings in resolving the case. If the judge accepts the pleaders arguments, he may copy such arguments to expedite the resolution of the case. In writing his decision, the judge does not claim as his own the arguments he adopts from the pleadings of the parties. Besides, the legal arguments in the pleadings are in most cases merely reiterations of judicial precedents, which are Works of the Government.
However, misquoting or twisting, with or without attribution, any passage from the pleadings of the parties, if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge should perform official duties honestly. Rule 3.01 and Rule 3.02 of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the applicable law.
c. Copying from Textbooks, Journals and other Non-Government Works
In writing judicial decisions, the judge may copy passages from textbooks, journals and other non-government works with proper attribution. However, whether the failure to make the proper attribution is actionable or not depends on the nature of the passages copied.
If the work copied without proper attribution is copyrighted, the failure to make such attribution violates Section 193 of the Intellectual Property Code, which provides:
Section 193. Scope of Moral Rights. The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:
193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;
x x x x
193.3 To object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would be prejudicial to his honor or reputation;
x x x x. (Emphasis supplied)
Section 184(k) of the Intellectual Property Code expressly allows, as a limitation on the copyright or economic rights of the author, any use made of a work for the purpose of any judicial proceedings x x x.17 Section 184(k) clearly authorizes a judge to copy copyrighted works for any use in judicial proceedings, which means the judge, in writing his decision, can copy passages beyond the quantitative limitations of fair-use under Section 184(b). This is the significance of Section 184(k), allowing the judge to copy lengthy passages of copyrighted work even beyond what is required by fair-use. Section 184(k) is silent on the obligation of the judge to make the proper attribution, unlike Section 184(b) on fair-use by the public which expressly requires a proper attribution.
However, Section 193 nevertheless requires anyone, including a judge writing a judicial decision, to make the proper attribution to show respect for the moral rights of the author. Thus, while the author has no right to demand economic compensation from the judge or the government for the unlimited and public use of his work in a judicial decision, the law requires that the authorship of the works be attributed to him x x x in connection with the public use of his work. In short, the judge is legally obligated to make the proper attribution because Section 193 protects the moral rights of the author.
The moral rights under Section 193 of the Intellectual Property Code arise only if the work of an author is copyrighted. If the work is not copyrighted, then there are no moral rights to the work. If the passages in a textbook, journal article, or other non-work of the government are merely quotations from Works of the Government, like sentences or paragraphs taken from judicial decisions, then such passages if copied by a judge do not require attribution because such passages, by themselves, are Works of the Government. The same is true for works in the public domain.
However, the arrangement or presentation of passages copied from Works of the Government may be subject to copyright,18 and a judge copying such arrangement or presentation, together with the passages, may have to make the proper attribution. If the passages are those of the author himself, and not copied from Works of the Government or from works in the public domain, then clearly there is a legal obligation on the part of the judge to make the proper attribution. Failure by the judge to make such attribution violates not only Section 193 of the Intellectual Property Code, but also Canon 3 of the Code of Judicial Conduct.
The moral rights of an author are independent of the authors economic rights to his work in the sense that even if the author assigns his work, the moral rights to the work remain with him, being inalienable.19 Any violation of an authors moral rights entitles him to the same remedies as a violation of the economic rights to the work,20 whether such economic rights are still with him or have been assigned to another party. Thus, while called moral rights, these rights are legally enforceable.
Two essential elements of an authors moral rights are the right to attribution and the right to integrity. The right to attribution or paternity21 is the right of the author to be recognized as the originator or father of his work, a right expressly recognized in Section 193.1 of the Intellectual Property Code. The right to integrity is the right of the author to prevent any distortion or misrepresentation of his work, a right expressly recognized in Section 193.3 of the Code. The Legislature incorporated the moral rights of an author in the Intellectual Property Code in compliance with the treaty obligations of the Philippines under the Berne Convention, which requires treaty states to enact legislation protecting the moral rights of authors.22
The rationale behind moral rights is explained in a local intellectual property textbook, citing American jurisprudence:
The term moral rights has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artists personality, as well as the integrity of the work, should therefore be protected and preserved. Because they are personal to the artist, moral rights exist independently of an artists copyright in his or her work. While the rubric of moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence: attribution and integrity. The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the authors work from being attributed to someone else, and to prevent the use of the authors name on works created by others, including distorted editions of the authors original work. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title of the work has been transferred. In some jurisdictions, the integrity right also protects artwork from destruction. Whether or not a work of art is protected from destruction represents a fundamentally different perception of the purpose of moral rights. If integrity is meant to stress the public interest in preserving a nations culture, destruction is prohibited; if the right is meant to emphasize the authors personality, destruction is seen as less harmful than the continued display of deformed or mutilated work that misrepresents the artist and destruction may proceed.23 (Emphasis supplied)
When a judge respects the right to attribution and integrity of an author, then the judge observes intellectual honesty in writing his decisions. Writing decisions is the most important official duty of a judge, more so of appellate court judges. Conversely, if a judge fails to respect an authors right to attribution and integrity, then the judge fails to observe intellectual honesty in the performance of his official duties, a violation of Canon 3 of the Code of Judicial Conduct.
The duty of a judge to respect the moral rights of an author is certainly not burdensome on the performance of his official duties. All the reference materials that a judge needs in writing judicial decisions are either Works of the Government or works in the public domain. A judge must base his decision on the facts and the law,24 and the facts and the law are all in the public domain. There is no need for a judge to refer to copyrighted works. When a judge ventures to refer to copyrighted works by copying passages from such works, he immediately knows he is treading on protected works, and should readily respect the rights of the authors of those works. The judge, whose most important function is to write judicial decisions, must be the first to respect the rights of writers whose lives and passions are dedicated to writing for the education of humankind.
Besides, Section 184(k) of the Intellectual Property Code already generously allows the judge unlimited copying of copyrighted works in writing his judicial decisions. The Code, however, does not exempt the judge from recognizing the moral rights of the author. The basic rule of human relations, as embodied in Article 19 of the Civil Code, requires that the judge should give to the author of the copyrighted work what is due him. Thus, Article 19 states: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
d. Difference from the Academe
Academic writing, such as writing dissertations or articles in academic journals, is governed by standards different from judicial decision writing. The failure to make the proper attribution for passages copied from Works of the Government is not actionable against a judge when writing a judicial decision. However, the same failure by a student or a faculty member may be deemed plagiarism in the academe, meriting a severe administrative penalty. Nevertheless, the Judiciary and the academe should have the same rule when it comes to copyrighted works. In every case, there is a legal duty to make the proper attribution when copying passages from copyrighted works because the law expressly requires such attribution without exception.
The academe requires that passages copied from Works of the Government, works in the public domain, and non-copyrighted works should be properly attributed in the same way as copyrighted works. The rationale is to separate the original work of the writer from the works of other authors in order to determine the original contribution of the writer to the development of a particular art or science. This rationale does not apply to the Judiciary, where adherence to jurisprudential precedence is the rule. However, if a judge writes an article for a law journal, he is bound by the same rules governing academic writing.25
ACCORDINGLY, I vote to RECALL the Resolution of 12 October 2010 subject of the present motion for reconsideration as this Courts jurisdiction extends only to a determination whether the administrative complaint against Justice Mariano C. Del Castillo constitutes contempt of this Court.
ANTONIO T. CARPIO
1 Part IV, Intellectual Property Decree (Republic Act No. 8293).
2Volume II, Records of the Constitutional Commission, p. 272. The following exchange took place during the deliberations of the Constitutional Commission:
MR. REGALADO: Thank you, Madam President.
First, this is with respect to Section 2, on the grounds for impeachment, and I quote:
. . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust.
Just for the record, what would the Committee envision as a betrayal of the public trust which is not otherwise covered by the other terms antecedent thereto?
MR. ROMULO: I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of a public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed that trust.
MR. REGALADO: Thank you.
MR. MONSOD: Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.
THE PRESIDENT: Commissioner de los Reyes is recognized.
MR. DE LOS REYES: The reason I proposed this amendment is that during the Regular Batasang Pambansa when there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President. Thank you.
MR. ROMULO: If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think, obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as a betrayal of the public trust. Thank you. (Emphasis supplied)
3 The 1993 Report of the National Commission on Judicial Discipline & Removal of the United States (http://judicial-discipline-reform.org/judicial_complaints/1993_Report_Removal.pdf, pp. 17-18) concluded that impeachment is the exclusive mode of removing federal judges from office, thus:
Nevertheless, the Commission concludes that Congress may not provide for removal as a criminal penalty. If removal may lawfully follow on conviction for a federal judge, then it may do so for the Vice President of the United States or perhaps even the President. But if the constitutional grant of a term of office to the Vice President and President prevails against any provision for removal in the criminal law, the same should be true of the tenure the Constitution grants to judges. The Constitution quite explicitly separates impeachment and removal from the ordinary criminal process. The Commission does not believe that Congress's power to punish crimes is an exception to judicial life tenure, or alternatively a way in which good behavior may be inquired into, in the way that the impeachment process clearly is.
x x x x
The Commission concludes that a statute providing for the removal from office of judges who serve on good behavior under Article III by means other than impeachment and conviction would be unconstitutional. (Emphasis supplied; citations omitted)
4Section 3(7), Article XI of the Constitution provides: Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.
5 There are those who, with good reason, believe that removal from office is the maximum penalty in impeachment and thus there can be lesser penalties like censure. See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale Law & Policy Review 53 (1999).
6 See note 4.
7Professor Laurence H. Tribe writes: The independence of the process of impeachment and criminal prosecution is highlighted by the case of Judge Alcee Hastings, who was acquitted of bribery by a federal jury in 1983, but was subsequently impeached by the House and convicted by the Senate for the same offense and for testifying falsely about it under oath at his federal criminal trial. Similarly, Judge Walter Nixon was impeached by the House and convicted by the Senate in 1989 for falsely testifying under oath before a federal grand jury investigating Judge Nixons improper discussions with a state prosecutor in a case involving a business acquaintances son, despite an earlier acquittal in a federal prosecution for bribery arising out of those very events. And, although this precise sequence is not addressed by Article I, Section 3, clause 7, it should also be possible for an official to be acquitted by the Senate in an impeachment trial but subsequently convicted of the same underlying acts in a federal court. The Senates acquittal, after all, could well represent a determination merely that the charged offenses were not impeachable, or that the nation would be harmed more than protected by pronouncing the official guilty. American Constitutional Law, Volume 1 (3rd edition), pp. 159-160.
8An author whose moral rights under the Law on Copyright are infringed by a judge in his judicial decision may file a civil case in court against such judge. See discussion on The Judge Must Follow the Law on Copyright, infra.
9 Quoting Blacks Law Dictionary.
10 Volume I, Records of the Constitutional Commission, pp. 456-457.
11 Approved by the En Banc on 15 November 2005.
12 Part IV of RA No. 8293, otherwise known as the Intellectual Property Code of the Philippines.
13Section 176 of RA No. 8293 provides: Works of the Government. No copyright shall subsist in any work of the Government of the Philippines. xxx.
14Canon 3 of the Code of Judicial Conduct provides: A judge should perform official duties honestly, and with impartiality and diligence.
15Rule 3.01 of the Code of Judicial Conduct provides: A judge shall be faithful to the law and maintain professional competence.
16Rule 3.02 of the Code of Judicial Conduct provides: In every case, a judge shall endeavour diligently to ascertain the facts and the applicable law, unswayed by partisan interests, public opinion or fear of criticism.
17Section 184 (k) of RA No. 8293 provides: Limitations on Copyright. 184.1. Notwithstanding the provisions of Chapter V [on copyright and economic rights], the following acts shall not constitute infringement of copyright:
(a) x x x x
x x x x
(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.
18 Section173.1 (b), Intellectual Property Code.
19Section 198.1 of the Intellectual Property Code provides that the [moral] rights of an author x x x shall not be assignable or subject to license.
20 Section 119, Intellectual Property Code.
21 Roger E. Schechter and John R. Thomas, Intellectual Property (2003), p. 19.
22 Vicente B. Amador, Copyright under the Intellectual Property Code (1998), p. 570.
23Id. p. 569, citing John Carter, John Swing and John Veronis v. Helmsley-Spear, Inc. and Associates, U.S. Court of Appeals for 2nd Circuit, 1 December 1995.
24 Article 8 of the Civil Code provides: Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.
25 In the Matter of Hon. Thomas E. Brennan, Jr., Judge, 55th District, Mason, Michigan, 433 Mich. 1204, 447 N.W.2d 712 (6 November 1989) . In this case, Judge Brennan, Jr. submitted an article to a law review for publication. The article failed to acknowledge several passages copied from law journal articles of two other authors. The Michigan Judicial Tenure Commission recommended to the Supreme Court of Michigan that Judge Brennan, Jr. be publicly censured for misconduct. Interestingly, Judge Brennan, Jr. (a state judge) admitted his misconduct and made the following manifestation:
Respondent Thomas E. Brennan, Jr., of the 55th District Court, Ingham County, Michigan, acknowledges notice and receipt of the Judicial Tenure Commission's Decision and Recommendation for Order of Discipline dated September 12, 1989, and stipulates to the Judicial Tenure Commission's findings as recited in paragraphs one (1) through six (6) thereof;
Respondent further affirmatively acknowledges the impropriety of his conduct as set forth in the Decision and Recommendation for Order of Discipline, and pursuant to MCR 9.221(C), consents to the Commission's recommendation that he be publicly censured.
Respondent further concurs in the request of the Judicial Tenure Commission that an order embodying the foregoing disciplinary action be entered immediately by the Michigan Supreme Court. (Emphasis supplied)