A.M. No. 10-10-4-SC – RE: LETTER OF THE UP LAW FACULTY ENTITLED “RESTORING INTEGRITY: A STATEMENT BY THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT.”

 

Promulgated:

March 8, 2011

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DISSENTING OPINION

 

CARPIO, J.:

 

 

I find the Compliance of the 37 legal scholars1 satisfactory and therefore see no need to admonish or warn them2 for supposed use of disrespectful language in their statement3 commenting on a public issue involving the official conduct of a member of this Court. The majority’s action impermissibly expands the Court’s administrative powers4 and, more importantly, abridges constitutionally protected speech on public conduct guaranteed to all, including members of the bar.

 

First. The matter of Justice Mariano del Castillo’s reported misuse and non-attribution of sources in his ponencia in Vinuya v. Executive Secretary5 is an issue of public concern. A day before the Vinuya petitioners’ counsels filed their supplemental motion for reconsideration on 19 July 2010 raising these allegations, a national TV network carried a parallel story online.6 On the day the pleading was filed, another national TV network7 and an online news magazine,8 carried the same story. Soon, one of the authors allegedly plagiarized commented that the work he and a co-author wrote was misrepresented in Vinuya.9 Justice del Castillo himself widened the scope of publicity by submitting his official response to the allegations to a national daily which published his comment in full.10 Justice del Castillo’s defenses of good faith and non-liability11 echoed an earlier statement made by the Chief of the Court’s Public Information Office.12 These unfolding events generated an all-important public issue affecting no less than the integrity of this Court’s decision-making – its core constitutional function – thus inexorably inviting public comment.

 

Along with other sectors, the law faculty of the University of the Philippines (UP), which counts among its ranks some of this country’s legal experts,13 responded by issuing a statement,14 bewailing what the professors see as the Court’s indifference to the perceived dishonesty in the crafting of the Vinuya ponencia and its aggravating effect on the Vinuya petitioners’ cause, refuting Justice del Castillo’s defenses, underscoring the seriousness of the issue, and calling for the adoption of individual and institutional remedial measures.15 This is prime political speech critical of conduct of public officials and institution, delivered in public forum. Under the scheme of our constitutional values, this species of speech enjoys the highest protection,16 rooted on the deeply-held notion that “the interest of society and the maintenance of good government demand a full discussion of public affairs.”17 Indeed, preceding western jurisprudence by nearly five decades, this Court, in the first score of the last century, identified the specific right to criticize official conduct as protected speech, branding attempts by courts to muzzle criticism as “tyranny of the basest sort.”18

Second. In testing whether speech critical of judges and judicial processes falls outside the ambit of constitutionally protected expression, spilling into the territory of sanctionable utterances, this Court adheres to the “clear and present danger” test.19 Under this analytical framework, an utterance is constitutionally protected unless “the evil consequence of the comment or utterance [is] ‘extremely serious and the degree of imminence extremely high.’”20

 

It appears that the evil consequences the UP law faculty statement will supposedly spawn are (1) the slurring of this Court’s dignity and (2) the impairment of its judicial independence vis-à-vis the resolution of the plagiarism complaint in Vinuya. Both are absent here. On the matter of institutional degradation, the 12-paragraph, 1,553-word statement of the UP law faculty, taken as a whole, does not exhibit that “irrational obsession to demean, ridicule, degrade and even destroy the courts and their members” typical of unprotected judicial criticism.21 On the contrary, the statement, taken as a whole, seeks to uphold the bedrock democratic value of keeping judicial processes free of any taint of dishonesty or misrepresentation. Thus, the UP law faculty statement is far removed from speech the Court has rightly sanctioned for proffering no useful social value, solely crafted to vilify its members and threaten its very existence.22

 

On the alleged danger of impairment of this Court’s judicial independence in resolving the plagiarism charge in Vinuya, this too, did not come to pass. In the Resolution of 8 February 2011 in A.M. No. 10-17-17-SC,23 the Court denied reconsideration to its earlier ruling finding no merit in the Vinuya petitioners’ claim of plagiarism. Not a single word in the 8 February 2011 Resolution hints that the UP law faculty statement pressured, much less threatened, this Court to decide the motion for reconsideration for the Vinuya petitioners. Thus, the 8 February 2011 Resolution gives the lie to the conclusion that the UP law faculty statement posed any danger, much less one that is “extremely serious,” to the Court’s independence.

 

Third. The conclusion that the UP law faculty statement disrespects the Court and its members is valid only if the statement is taken apart, its dismembered parts separately scrutinized to isolate and highlight perceived offensive phrases and words. This approach defies common sense and departs from this Court’s established practice in scrutinizing speech critical of the judiciary. People v. Godoy24 instructs that speech critical of judges must be “read with contextual care,” making sure that disparaging statements are not “taken out of context.”25 Using this approach, and applying the clear and present danger test, the Court in Godoy cleared a columnist and a publisher of liability despite the presence in the assailed news article of derogatory yet isolated statements about a judge. We can do no less to the statement of the members of the UP law faculty, who, after all, were impelled by nothing but their sense of professional obligation to “speak out on a matter of public concern and one that is of vital interest to them.”26

 

On the supposed unpleasant tone of the statement, critical speech, by its nature, is caustic and biting. It is for this same reason, however, that it enjoys special constitutional protection. “The constitution does not apply only to sober, carefully reasoned discussion. There may be at least some value in permitting cranky, obstreperous, defiant conduct by lawyers on the ground that it encourages a public culture of skepticism, anti-authoritarianism, pluralism, and openness. It is important to remember that the social function of lawyers is not only to preserve order, but also to permit challenges to the status quo.”27

 

Supreme Court Justices, as public officials, and the Supreme Court, as an institution, are entitled to no greater immunity from criticism than other public officials and institutions.28 The members of this Court are sustained by the people’s resources and our actions are always subject to their accounting.29 Thus, instead of shielding ourselves with a virtual lese-majeste rule, wholly incompatible with the Constitution’s vision of public office as a “public trust,”30 we should heed our own near century-old counsel: a clear conscience, not muzzled critics, is the balm for wounds caused by a “hostile and unjust accusation” on official conduct.31

 

Fourth. The academic bar, which the UP law faculty represents, is the judiciary’s partner in a perpetual intellectual conversation to promote the rule of law and build democratic institutions. It serves the interest of sustaining this vital relationship for the Court to constructively respond to the academics’ criticism. Instead of heeding the UP law faculty’s call for the Court to “ensur[e] that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question,” the majority dismisses their suggestion as useless calumny and brands their constitutionally protected speech as “unbecoming of lawyers and law professors.” The Constitution, logic, common sense and a humble awareness of this Court’s role in the larger project of dispensing justice in a democracy revolt against such response.

 

Accordingly, I vote to consider respondents’ explanation in their common and individual Compliance as satisfactory and to consider this matter closed and terminated.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

 

 

 

1All belonging to the faculty of the University of the Philippines College of Law including the incumbent dean, four former deans, members of the regular faculty and instructors. Professor Owen Lynch, a visiting professor and a member of the Minnesota bar, filed a manifestation joining causes with the respondents.

2The majority excludes from their finding Atty. Raul T. Vasquez whose Compliance they find satisfactory.

3“Restoring Integrity: A Statement By The University Of The Philippines College Of Law On The Allegations Of Plagiarism And Misrepresentation In The Supreme Court.”

4In the Resolution of 19 October 2010, 37 professors were required to show cause why no disciplinary sanction should be imposed on them for violating the following provisions of the Code of Professional Responsibility:

Canon 1 – A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.

Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

Canon 11 – A lawyer shall observe and maintain respect due to the courts and to judicial officers and should insist on similar conduct by others.

Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only.

Canon 13 – A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

Today’s Resolution admonishes the incumbent dean, Marvic MV.F. Leonen, and warns 35 other professors for “speech and conduct unbecoming of lawyers and law professors.”

Significantly, the 37 academics did not counsel or abet activities of any sort and none of them is counsel to any of the parties in Vinuya v. Executive Secretary, thus Rule 1.02 and Canon 13 are irrelevant. Rule 11.05 is similarly inapplicable because none of the professors authored any of the materials used in Vinuya hence, their grievance to the purported plagiarism and misrepresentation is not specific and personal to cloak them with legal personality to institute a complaint against Justice Mariano del Castillo. On the other hand, Canon 1 and Canon 11, accommodate and do not trump the constitutional guarantee of free speech.

5G.R. No. 162230, 28 April 2010.

6The news article “SC justice plagiarized parts of ruling on comfort women” by Aries C. Rufo and Purple S. Romero appeared in the website of ABS-CBN on 18 July 2010 (see http://www.abs-cbnnews.com/nation/07/18/10/sc-justice-plagiarized-parts-ruling-comfort-women).

7GMA-7 (see http://www.gmanews.tv/story/196407/sc-justice-plagiarized-parts-of-ruling-on-comfort-women)

8Newsbreak (see http://newsbreak.com.ph/index.php?option=com_ content&task=view&id=7981&Itemid=88889005.)

9Commenting on a blog entry on the news stories ABS-CBN, GMA-7 and Newsbreak carried, Professor Evan Criddle, co-author of the article A Fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L. 331 (2009), stated: “Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite.” (see http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/). The two other authors, Christian J. Tams and Mark Ellis, whose works were reportedly misused in the Court’s ruling in Vinuya, had since filed formal complaints with the Court.

10Justice del Castillo’s comment appeared in The Philippine Star’s “Letters to the Editor” section on 30 July 2010 captioned “The Del Castillo Ponencia in Vinuya By Mariano C. Del Castillo, Associate Justice” (see http://www.philstar.com/Article.aspx?articleId=598044&publicationSubCategoryId=135).

11Justice del Castillo wrote:

It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own. x x x x

x x x x

Incidentally, it was stated in the Newsbreak article posted by Aries C. Rufo and Purple S. Romero on July 19, 2010 that “x x x there is no rule or provision in the judiciary against copying from other’s work and passing these off as original material.” Dean Pacifico Agabin concurred with this observation when he “pointed out, ‘It is not prohibited under the Code of Judicial Ethics, or any statutes. It is just a matter of delicadeza… It bears on the honesty of the judge to give credit where credit is due.”

Finally, Section 184(k) of Republic Act No. 8293 (Intellectual Property Code of the Philippines) provides that “any use made of a work for the purpose of any judicial proceedings x x x” shall not constitute infringement of copyright.

12Who informed the public: “You can’t expect all justices in the Supreme Court to be familiar with all these journals.” (see http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100721-282283/High-court-not-probing-plagiarism).

13Dean Pacifico Agabin, an alumnus of Yale Law School, is an authority in constitutional law, author of numerous scholarly publications and active appellate litigator who frequently appeared before the Court to argue landmark public law cases. Dean Merlin Magallona is a recognized expert in international law, a published scholar and former Undersecretary of Foreign Affairs. Professor Tristan Catindig, a Harvard Law School alumnus, is a commercial law expert and author of numerous publications on the subject.

14The respondents claim that they spoke in their capacity as lawyers, law professors and citizens (Common Compliance, pp. 2, 16).

15Summed in the penultimate paragraph of their statement:

(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;

(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;

(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;(5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.

16Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 538, Carpio, J., concurring.

17United States v. Bustos, 37 Phil. 731, 740 (1918). Jurisprudence privileges this right by requiring the very high quantum of proof of actual malice to establish liability for libelous comment on public conduct (Vasquez v. Court of Appeals, 373 Phil. 238 (1999); Flor v. People, G.R. No. 139987, 31 March 2005, 454 SCRA 440).

18The relevant passage reads:

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. x x x x (United States v. Bustos, 37 Phil. 731, 741 (1918)).

It was only in 1964 that the United States Supreme Court enunciated a comparable doctrine, with refinements (see New York Times v. Sullivan, 376 U.S. 254 [1964]).

19Cabansag v. Fernandez, 102 Phil. 152 (1957); People v. Godoy, 312 Phil. 977 (1995); In re Almacen, No. L-27654, 18 February 1970, 31 SCRA 562.

20Cabansag v. Fernandez, 102 Phil. 152, 161 (1957).

21See e.g. Column of Ramon Tulfo in the Philippine Daily Inquirer Issues of 13 and 16 October 1989, A.M. No. 90-4-1545-0, 17 April 1990 (Resolution).

22In re Sotto, 82 Phil. 595 (1949). See also Column of Ramon Tulfo in the Philippine Daily Inquirer Issues of 13 and 16 October 1989, id.

23In the Matter of the Charges of Plagiarism etc., Against Associate Justice Mariano C. Del Castillo.

24People v. Godoy, 312 Phil. 977 (1995).

25We held:

On the issue of whether the specified statements complained of are contumacious in nature, we are inclined, based on an overall perusal and objective analysis of the subject article, to hold in the negative. We have read and reread the article in its entirety and we are fully convinced that what is involved here is a situation wherein the alleged disparaging statements have been taken out of context. If the statements claimed to be contum[acious] had been read with contextual care, there would have been no reason for this contempt proceeding. Id. at 994 (emphasis supplied).

26Common Compliance, p. 2.

27W. Bradley Wendel, Free Speech For Lawyers, 28 Hastings Const. L.Q. 305, 440 (2001).

28In the Matter of the Allegations Contained in the Columns of Mr. Amado A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, 8 August 2008, 561 SCRA 395, 489, Carpio, J., dissenting.

29The Constitution provides that “[P]ublic officers and employees must, at all times, be accountable to the people x x x x” (Article XI, Section 1).

30Constitution, Article XI, Section 1.

31United States v. Bustos, 37 Phil. 731, 741 (1918).