LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 1

ETHICAL CONSIDERATION IN LEGAL

RESEARCH

CPR, CANON 10 - A LAWYER OWES

CANDOR, FAIRNESS AND GOOD FAITH TO
THE COURT.

Rule 10.02 - A lawyer shall not knowingly

misquote or misrepresent the contents of a
paper, the language or the argument of
opposing counsel, or the text of a decision or
authority, or knowingly cite as law a provision
already rendered inoperative by repeal or
amendment, or assert as a fact that which has
not been proved.

CODE OF JUDICIAL CONDUCT: CANON 3: A

JUDGE SHOULD PERFORM OFFICIAL
DUTIES HONESTLY, AND WITH
IMPARTIALITY AND DILIGENCE

ADJUDICATIVE RESPONSIBILITIES

RULE 3.01 - A judge shall be faithful to the law

and maintain professional competence.

RULE 3.02 - In every case, a judge shall

endeavor diligently to ascertain the facts
and the applicable law unswayed by partisan
interests, public opinion or fear of criticism.

CONSTITUTION, ART VIII SECTION 14. No

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

and adequate remedy exists to prevent

the infliction of irreparable injury.26

In Marquez v. The Presiding Judge (Hon. Ismael

B. Sanchez), RTC Br. 58, Lucena City,27 we
expounded as follows:

It is basic that the issuance of a writ of

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

Here, the Constitution has entrusted to the

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

WHEREFORE, the Court DENIES the Motion

for Reconsideration and Supplemental Motion
for Reconsideration for their lack of merit.

SO ORDERED.

A.M. No. 10-7-17-SC October 15, 2010
IN THE MATTER OF THE CHARGES OF
PLAGIARISM, ETC., AGAINST ASSOCIATE
JUSTICE MARIANO C. DEL CASTILLO.
DECISION
PER CURIAM:
This case is concerned with charges that, in
preparing a decision for the Court, a designated
member plagiarized the works of certain authors
and twisted their meanings to support the
decision.
The Background Facts
Petitioners Isabelita C. Vinuya and about 70
other elderly women, all members of the Malaya
Lolas Organization, filed with the Court in G.R.
No. 162230 a special civil action
of certiorari with application for preliminary
mandatory injunction against the Executive
Secretary, the Secretary of Foreign Affairs, the
Secretary of Justice, and the Office of the
Solicitor General.
Petitioners claimed that in destroying villages in
the Philippines during World War II, the
Japanese army systematically raped them and
a number of other women, seizing them and
holding them in houses or cells where soldiers
repeatedly ravished and abused them.
Petitioners alleged that they have since 1998
been approaching the Executive Department,
represented by the respondent public officials,
requesting assistance in filing claims against the
Japanese military officers who established the
comfort women stations. But that Department
declined, saying that petitioners’ individual
claims had already been fully satisfied under the
Peace Treaty between the Philippines and
Japan.
Petitioners wanted the Court to render
judgment, compelling the Executive Department
to espouse their claims for official apology and
other forms of reparations against Japan before
LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 8
the International Court of Justice and other
international tribunals.
On April 28, 2010, the Court rendered judgment
dismissing petitioners’ action. Justice Mariano
C. del Castillo wrote the decision for the Court.
The Court essentially gave two reasons for its
decision: it cannot grant the petition
because, first, the Executive Department has
the exclusive prerogative under the Constitution
and the law to determine whether to espouse
petitioners’ claim against Japan; and, second,
the Philippines is not under any obligation in
international law to espouse their claims.
On June 9, 2010, petitioners filed a motion for
reconsideration of the Court’s decision. More
than a month later on July 18, 2010, counsel for
petitioners, Atty. Herminio Harry Roque, Jr.,
announced in his online blog that his clients
would file a supplemental petition "detailing
plagiarism committed by the court" under the
second reason it gave for dismissing the petition
and that "these stolen passages were also
twisted to support the court’s erroneous
conclusions that the Filipino comfort women of
World War Two have no further legal remedies."
The media gave publicity to Atty. Roque’s
announcement.
On July 19, 2010, petitioners filed the
supplemental motion for reconsideration that
Atty. Roque announced. It accused Justice Del
Castillo of "manifest intellectual theft and
outright plagiarism"1 when he wrote the decision
for the Court and of "twisting the true intents of
the plagiarized sources … to suit the arguments
of the assailed Judgment."2 They charged
Justice Del Castillo of copying without
acknowledgement certain passages from three
foreign articles:
a. A Fiduciary Theory of Jus Cogens by Evan J.
Criddle and Evan Fox-Descent, Yale Journal of
International Law (2009);
b. Breaking the Silence: Rape as an
International Crime by Mark Ellis, Case Western
Reserve Journal of International Law (2006);
and

c. Enforcing Erga Omnes Obligations by
Christian J. Tams, Cambridge University Press
(2005).
Petitioners claim that the integrity of the Court’s
deliberations in the case has been put into
question by Justice Del Castillo’s fraud. The
Court should thus "address and disclose to the
public the truth about the manifest intellectual
theft and outright plagiarism"3 that resulted in
gross prejudice to the petitioners.
Because of the publicity that the supplemental
motion for reconsideration generated, Justice
Del Castillo circulated a letter to his colleagues,
subsequently verified, stating that when he
wrote the decision for the Court he had the intent
to attribute all sources used in it. He said in the
pertinent part:
It must be emphasized that there was every
intention to attribute all sources, whenever due.
At no point was there ever any malicious intent
to appropriate another’s work as our own. We
recall that this ponencia was thrice included in
the Agenda of the Court en banc. It was
deliberated upon during the Baguio session on
April 13, 2010, April 20, 2010 and in Manila on
April 27, 2010. Each time, suggestions were
made which necessitated major revisions in the
draft. Sources were re-studied, discussions
modified, passages added or deleted. The
resulting decision comprises 34 pages with 78
footnotes.
xxxx
As regards the claim of the petitioners that the
concepts as contained in the above foreign
materials were "twisted," the same remains their
opinion which we do not necessarily share.4
On July 27, 2010, the Court En Banc referred
the charges against Justice Del Castillo to its
Committee on Ethics and Ethical Standards,
chaired by the Chief Justice, for investigation
and recommendation. The Chief Justice
designated retired Justice Jose C. Vitug to serve
as consultant of the Committee. He graciously
accepted.
LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 9
On August 2, 2010, the Committee directed
petitioners to comment on Justice Del Castillo’s
verified letter. When this was done, it set the
matter for hearing.
In the meantime, on July 19, 2010, Evan Criddle
wrote on his blog that he and his co-author Evan
Fox-Descent (referred to jointly as Criddle-
Descent) learned of alleged plagiarism involving
their work but Criddle’s concern, after reading
the supplemental motion for reconsideration,
was the Court’s conclusion that prohibitions
against sexual slavery are not jus cogens or
internationally binding norms that treaties
cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court
expressing concern that in mentioning his work,
the Court "may have misread the argument [he]
made in the article and employed them for cross
purposes." Dr. Ellis said that he wrote the article
precisely to argue for appropriate legal remedy
for victims of war crimes.
On August 8, 2010, after the referral of the
matter to the Committee for investigation, the
Dean of the University of the Philippines (U.P.)
College of Law publicized a Statement from his
faculty, claiming that the Vinuya decision was
"an extraordinary act of injustice" and a
"singularly reprehensible act of dishonesty and
misrepresentation by the Highest Court of the
land." The statement said that Justice Del
Castillo had a "deliberate intention to
appropriate the original authors’ work," and that
the Court’s decision amounted to "an act of
intellectual fraud by copying works in order to
mislead and deceive."5
On August 18, 2010 Mr. Christian J. Tams wrote
Chief Justice Renato C. Corona that, although
relevant sentences in the Court’s decision were
taken from his work, he was given generic
reference only in the footnote and in connection
with a citation from another author (Bruno
Simma) rather than with respect to the
passages taken from his work. He thought that
the form of referencing was inappropriate. Mr.
Tams was also concerned that the decision may
have used his work to support an approach to
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 10
erga omnes concept (obligations owed by
individual States to the community of nations)
that is not consistent with what he advocated.
On August 26, 2010, the Committee heard the
parties’ submissions in the summary manner of
administrative investigations. Counsels from
both sides were given ample time to address the
Committee and submit their evidence. The
Committee queried them on these.
Counsels for Justice Del Castillo later asked to
be heard with the other parties not in attendance
so they could make submissions that their client
regarded as sensitive and confidential, involving
the drafting process that went into the making of
the Court’s decision in the Vinuya case.
Petitioners’ counsels vigorously objected and
the Committee sustained the objection. After
consulting Justice Del Castillo, his counsels
requested the Committee to hear the Justice’s
court researcher, whose name need not be
mentioned here, explain the research work that
went into the making of the decision in
the Vinuya case. The Committee granted the
request.
The researcher demonstrated by Power Point
presentation how the attribution of the lifted
passages to the writings of Criddle-Descent and
Ellis, found in the beginning drafts of her report
to Justice Del Castillo, were unintentionally
deleted. She tearfully expressed remorse at her
"grievous mistake" and grief for having "caused
an enormous amount of suffering for Justice Del
Castillo and his family."6
On the other hand, addressing the Committee in
reaction to the 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,7arguing
that standards on plagiarism in the academe
should apply with more force to the judiciary.
After the hearing, the Committee gave the
parties ten days to file their respective
memoranda. They filed their memoranda in due
course. Subsequently after deliberation, the
Committee submitted its unanimous findings
and recommendations to the Court.
The Issues
This case presents two issues:
1. Whether or not, in writing the opinion for the
Court in the Vinuya case, Justice Del Castillo
plagiarized the published works of authors
Tams, Criddle-Descent, and Ellis.
2. Whether or not Justice Del Castillo twisted the
works of these authors to make it appear that
such works supported the Court’s position in the
Vinuya decision.
The Court’s Rulings
Because of the pending motion for
reconsideration in the Vinuya case, the Court
like its Committee on Ethics and Ethical
Standards will purposely avoid touching the
merits of the Court’s decision in that case or the
soundness or lack of soundness of the position
it has so far taken in the same. The Court will
deal, not with the essential merit or
persuasiveness of the foreign author’s works,
but how the decision that Justice Del Castillo
wrote for the Court appropriated parts of those
works and for what purpose the decision
employed the same.
At its most basic, plagiarism means the theft of
another person’s language, thoughts, or ideas.
To plagiarize, as it is commonly understood
according to Webster, is "to take (ideas,
writings, etc.) from (another) and pass them off
as one’s own."8 The passing off of the work of
another as one’s own is thus an indispensable
element of plagiarism.
The Passages from Tams
Petitioners point out that the Vinuya decision
lifted passages from Tams’ book, Enforcing
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 11
Erga Omnes Obligations in International Law
(2006) and used them in Footnote 69 with what
the author thought was a mere generic
reference. But, although Tams himself may
have believed that the footnoting in this case
was not "an appropriate form of
9
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 Tams’ work as his own. The
Justice primarily attributed the ideas embodied
in the passages to Bruno Simma, whom Tams
himself credited for them. Still, Footnote 69
mentioned, apart from Simma, Tams’ article as
another source of those ideas.
The Court believes that whether or not the
footnote is sufficiently detailed, so as to satisfy
the footnoting standards of counsel for
petitioners is not an ethical matter but one
concerning clarity of writing. The statement
"See Tams, Enforcing Obligations Erga Omnes
in International Law (2005)" in the Vinuya
decision is an attribution no matter if Tams
thought that it gave him somewhat less credit
than he deserved. Such attribution altogether
negates the idea that Justice Del Castillo
passed off the challenged passages as his own.
That it would have been better had Justice Del
Castillo used the introductory phrase "cited in"
rather than the phrase "See" would make a case
of mere inadvertent slip in attribution rather than
a case of "manifest intellectual theft and outright
plagiarism." If the 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.
The Passages from Ellis
and Criddle-Descent
Petitioners also attack the Court’s decision for
lifting and using as footnotes, without attribution
to the author, passages from the published work
of Ellis. The Court made the following statement
on page 27 of its decision, marked with Footnote
65 at the end:
We fully agree that rape, sexual slavery, torture,
and sexual violence are morally reprehensible
as well as legally prohibited under contemporary
international law. 65 xxx
Footnote 65 appears down the bottom of the
page. Since the lengthy passages in that
footnote came almost verbatim from Ellis’
article,10 such passages ought to have been
introduced by an acknowledgement that they
are from that article. The footnote could very
well have read:
65 In an article, Breaking the Silence: Rape as
an International Crime, Case Western Reserve
Journal of International Law (2006), Mark Ellis
said: The concept of rape as an international
crime is relatively new. This is not to say that
rape has never been historically prohibited,
particularly in war. But modern-day sensitivity to
the crime of rape did not emerge until after
World War II. In the Nuremberg Charter, the
word rape was not mentioned. The article on
crimes against humanity explicitly set forth
prohibited acts, but rape was not mentioned by
name. (For example, the Treaty of Amity and
Commerce between Prussia and the United
States provides that in time of war all women
and children "shall not be molested in their
persons." The Treaty of Amity and Commerce,
Between his Majesty the King of Prussia and the
United States of America, art. 23, Sept. 10,
1785, U.S.-Pruss., 8 Treaties & Other Int'l
Agreements Of The U.S. 78, 85. The 1863
Lieber Instructions classified rape as a crime of
"troop discipline." (Mitchell, The Prohibition of
Rape in International Humanitarian Law as a
Norm of Jus cogens: Clarifying the Doctrine, 15
Duke J. Comp. Int’l. L. 219, 224). It specified
rape as a capital crime punishable by the death
penalty (Id. at 236). The 1907 Hague
Convention protected women by requiring the
protection of their "honour." ("Family honour and
rights, the lives of persons, and private property,
as well as religious convictions and practice,
must be respected." Convention (IV)
Respecting the Laws & Customs of War on
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 12
Land, art. 46, Oct. 18, 1907. General Assembly
resolution 95 (I) of December 11, 1946 entitled,
"Affirmation of the Principles of International
Law recognized by the Charter of the Nürnberg
Tribunal"; General Assembly document
A/64/Add.1 of 1946; See Agreement for the
Prosecution and Punishment of the Major War
Criminals of the European Axis, Aug. 8, 1945,
59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of
the Charter established crimes against
humanity as the following:
CRIMES AGAINST HUMANITY: namely,
murder, extermination, enslavement,
deportation, and other inhumane acts
committed against any civilian population,
before or during the war, or persecutions on
political, racial or religious grounds in execution
of or in connection with any crime within the
Jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country
where perpetrated.
The Nuremberg Judgment did not make any
reference to rape and rape was not prosecuted.
(Judge Gabrielle Kirk McDonald,
The International Criminal Tribunals Crime and
Punishment in the International Arena,7 ILSA J.
Int’l. Comp. L. 667, 676.) However, International
Military Tribunal for the Far East prosecuted
rape crimes, even though its Statute did not
explicitly criminalize rape. The Far East Tribunal
held General Iwane Matsui, Commander
Shunroku Hata and Foreign Minister Hirota
criminally responsible for a series of crimes,
including rape, committed by persons under
their authority. (The Tokyo Judgment: Judgment
Of The International Military Tribunal For The
Far East 445-54 (1977).
The first mention of rape as a specific crime
came in December 1945 when Control Council
Law No. 10 included the term rape in the
definition of crimes against humanity. Law No.
10, adopted by the four occupying powers in
Germany, was devised to establish a uniform
basis for prosecuting war criminals in German
courts. (Control Council for Germany, Law No.
10: Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and Against
Humanity, Dec. 20, 1945, 3 Official Gazette
Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the
Treatment of Prisoners of War was the first
modern-day international instrument to
establish protections against rape for women.
Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949,
art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry
into force Oct. 20, 1950) [hereinafter Fourth
Geneva Convention].Furthermore, the ICC, the
ICTY, and the International Criminal Tribunal for
Rwanda (ICTR) have significantly advanced the
crime of rape by enabling it to be prosecuted as
genocide, a war crime, and a crime against
humanity.
But, as it happened, the acknowledgment above
or a similar introduction was missing from
Footnote 65.
Next, petitioners also point out that the following
eight sentences and their accompanying
footnotes appear in text on pages 30-32 of the
Vinuya decision:
xxx In international law, the term "jus cogens"
(literally, "compelling law") refers to norms that
command peremptory authority, superseding
conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense
that they are mandatory, do not admit
derogation, and can be modified only by general
international norms of equivalent
authority.711avvphi1
Early strains of the jus cogens doctrine have
existed since the 1700s,72 but peremptory
norms began to attract greater scholarly
attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden
Treaties in International Law.73 The recognition
of jus cogens gained even more force in the
1950s and 1960s with the ILC’s preparation of
the Vienna Convention on the Law of Treaties
(VCLT).74 Though there was a consensus that
certain international norms had attained the
status of jus cogens,75 the ILC was unable to
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 13
reach a consensus on the proper criteria for
identifying peremptory norms.
After an extended debate over these and other
theories of jus cogens, the ILC concluded
ruefully in 1963 that "there is not as yet any
generally accepted criterion by which to identify
a general rule of international law as having the
character of jus cogens."76 In a commentary
accompanying the draft convention, the ILC
indicated that "the prudent course seems to be
to x x x leave the full content of this rule to be
worked out in State practice and in the
jurisprudence of international tribunals."77
Thus, while the existence of jus cogens in
international law is undisputed, no consensus
exists on its substance,77 beyond a tiny core of
principles and rules.78
Admittedly, the Vinuya decision lifted the above,
including their footnotes, from Criddle-
Descent’s article, A Fiduciary Theory of Jus
Cogens.11 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.
The Explanation
Unless amply explained, the above lifting from
the works of Ellis and Criddle-Descent could be
construed as plagiarism. But one of Justice Del
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.
In the old days, the common practice was that
after a Justice would have assigned a case for
study and report, the researcher would source
his materials mostly from available law books
and published articles on print. When he found
a relevant item in a book, whether for one side
of the issue or for the other, he would place a
strip of paper marker on the appropriate page,
pencil mark the item, and place the book on his
desk where other relevant books would have
piled up. He would later paraphrase or copy the
marked out passages from some of these books
as he typed his manuscript on a manual
typewriter. This occasion would give him a clear
opportunity to attribute the materials used to
their authors or sources.
With the advent of computers, however, as
Justice Del 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 issues for
discussion in her proposed report to the Justice.
She used the Microsoft Word program.12 Later,
after she decided on the general shape that her
report would take, she began pruning from that
manuscript those materials that did not fit,
changing the positions in the general scheme of
those that remained, and adding and deleting
paragraphs, sentences, and words as her
continuing discussions with Justice Del Castillo,
her chief editor, demanded. Parenthetically, this
is the standard scheme that computer-literate
court researchers use everyday in their work.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 14
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.
First Finding
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.
For most senior lawyers and judges who are not
computer literate, a familiar example similar to
the circumstances of the present case would
probably help illustrate the likelihood of such an
accident happening. If researcher X, for
example, happens to be interested in "the
inalienable character of juridical personality" in
connection with an assignment and if the book
of the learned Civilist, Arturo M. Tolentino,
happens to have been published in a website,
researcher X would probably show interest in
the following passage from that book:
xxx Both juridical capacity and capacity to act
are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark
(#15) that attributes the idea to other sources, it
is evident that Tolentino did not originate it. The
idea is not a product of his intellect. He merely
lifted it from Von Tuhr and Valverde, two
reputable foreign authors.
When researcher X copies and pastes the
above passage and its footnote into a
manuscript-in-the-making in his computer, the
footnote number would, given the computer
program in use, automatically change and
adjust to the footnoting sequence of researcher
X’s manuscript. Thus, if the preceding footnote
in the manuscript when the passage from
Tolentino was pasted on it is 23, Tolentino’s
footnote would automatically change from the
original Footnote 15 to Footnote 24.
But then, to be of use in his materials-gathering
scheme, researcher X would have to tag the
Tolentino passage with a short description of its
subject for easy reference. A suitable subject
description would be: "The inalienable character
of juridical personality.23" The footnote mark,
23 From Tolentino, which researcher X attaches
to the subject tag, serves as reminder to him to
attribute the passage in its final form to
Tolentino. After the passage has been tagged,
it would now appear like this:
The inalienable character of juridical
personality.23
xxx Both juridical capacity and capacity to act
are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
The tag is of course temporary and would later
have to go. It serves but a marker to help
researcher X maneuver the passage into the
right spot in his final manuscript.
The mistake of Justice Del Castillo’s researcher
is that, after the Justice had decided what texts,
passages, and citations were to be retained
including those from Criddle-Descent and Ellis,
and when she was already cleaning up her work
and deleting all subject tags, she unintentionally
deleted the footnotes that went with such tags—
with disastrous effect.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 15
To understand this, in Tolentino’s example, the
equivalent would be researcher X’s removal
during cleanup of the tag, "The inalienable
character of juridical personality.23," by a
simple "delete" operation, and the unintended
removal as well of the accompanying footnote
(#23). The erasure of the footnote eliminates the
link between the lifted passage and its source,
Tolentino’s book. Only the following would
remain in the manuscript:
xxx Both juridical capacity and capacity to act
are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program
does not have a function that raises an alarm
when original materials are cut up or pruned.
The portions that remain simply blend in with the
rest of the manuscript, adjusting the footnote
number and removing any clue that what should
stick together had just been severed.
This was what happened in the attributions to
Ellis and Criddle-Descent. The researcher
deleted the subject tags and, accidentally, their
accompanying footnotes that served as
reminder of the sources of the lifted passages.
With 119 sources cited in the decision, the loss
of the 2 of them was not easily detectable.
Petitioners point out, however, that Justice Del
Castillo’s verified letter of July 22, 2010 is
inconsistent with his researcher’s claim that the
omissions were mere errors in attribution. They
cite the fact that the Justice did not disclose his
researcher’s error in that letter despite the
latter’s confession regarding her mistake even
before the Justice sent his letter to the Chief
Justice. By denying plagiarism in his letter,
Justice Del Castillo allegedly perjured himself
and sought to whitewash the case.13
But nothing in the July 22 letter supports the
charge of false testimony. Justice Del Castillo
merely explained "that there was every intention
to attribute all sources whenever due" and that
there was never "any malicious intent to
appropriate another’s work as our own," which
as it turns out is a true statement. He recalled
how the Court deliberated upon the case more
than once, prompting major revisions in the draft
of the decision. In the process, "(s)ources were
re-studied, discussions modified, passages
added or deleted." Nothing in the letter suggests
a cover-up. Indeed, it did not preclude a
researcher’s inadvertent error.
And it is understandable that Justice Del Castillo
did not initially disclose his researcher’s error.
He wrote the decision for the Court and was
expected to take full responsibility for any lapse
arising from its preparation. What is more, the
process of drafting a particular decision for the
Court is confidential, which explained his initial
request to be heard on the matter without the
attendance of the other parties.
Notably, neither Justice Del Castillo nor his
researcher had a motive or reason for omitting
attribution for the lifted passages to Criddle-
Descent or to Ellis. The latter authors are highly
respected professors of international law. The
law journals that published their works have
exceptional reputations. It did not make sense
to intentionally omit attribution to these authors
when the decision cites an abundance of other
sources. Citing these authors as the sources of
the lifted passages would enhance rather than
diminish their informative value. Both Justice
Del Castillo and his researcher gain nothing
from the omission. Thus, the failure to mention
the works of Criddle-Decent and Ellis was
unquestionably due to inadvertence or pure
oversight.
Petitioners of course insist that intent is not
material in committing plagiarism since all that a
writer has to do, to avoid the charge, is to
enclose lifted portions with quotation marks and
acknowledge the sources from which these
were taken.14 Petitioners point out that the Court
should apply to this case the ruling in University
of the Philippines Board of Regents v. Court of
Appeals and Arokiaswamy William Margaret
Celine.15 They argue that standards on
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 16
plagiarism in the academe should apply with
more force to the judiciary.
But petitioners’ theory ignores the fact that
plagiarism is essentially a form of fraud where
intent to deceive is inherent. Their theory
provides no room for errors in research, an
unrealistic position considering that there is
hardly any substantial written work in any field
of discipline that is free of any mistake. The
theory places an automatic universal curse even
on errors that, as in this case, have reasonable
and logical explanations.
Indeed, the 8th edition of Black’s Law Dictionary
defines plagiarism as the "deliberate and
knowing presentation of another person's
original ideas or creative expressions as one's
own."16 Thus, plagiarism presupposes intent
and a deliberate, conscious effort to steal
another’s work and pass it off as one’s own.
Besides, the Court said nothing in U.P. Board of
Regents that would indicate that an intent to
pass off another’s work as one’s own is not
required in plagiarism. The Court merely
affirmed the academic freedom of a university to
withdraw a master’s degree that a student
obtained based on evidence that she
misappropriated the work of others, passing
them off as her own. This is not the case here
since, as already stated, Justice Del Castillo
actually imputed the borrowed passages to
others.
Second Finding
The Court also adopts the Committee’s finding
that the omission of attributions to Criddle-
Descent and Ellis did not bring about an
impression that Justice Del Castillo himself
created the passages that he lifted from their
published articles. That he merely got those
passages from others remains self-evident,
despite the accidental deletion. The fact is that
he still imputed the passages to the sources
from which Criddle-Descent and Ellis borrowed
them in the first place.
This is best illustrated in the familiar example
above. After the deletion of the subject tag and,
accidentally, its footnote which connects to the
source, the lifted passage would appear like
this:
xxx Both juridical capacity and capacity to act
are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Although the unintended deletion severed the
passage’s link to Tolentino, the passage
remains to be attributed to Von Tuhr and
Valverde, the original sources that Tolentino
himself cites. The text and its footnote reference
cancel out any impression that the passage is a
creation of researcher X. It is the same with the
passages from Criddle-Descent and Ellis.
Because such passages remained attributed by
the footnotes to the authors’ original sources,
the omission of attributions to Criddle-Descent
and Ellis gave no impression that the passages
were the creations of Justice Del Castillo. This
wholly negates the idea that he was passing
them off as his own thoughts.
True the subject passages in this case were
reproduced in the Vinuya decision without
placing them in quotation marks. But such
passages are much unlike the creative line from
Robert Frost,17 "The woods are lovely, dark, and
deep, but I have promises to keep, and miles to
go before I sleep, and miles to go before I
sleep." The passages here consisted of
common definitions and terms, abridged history
of certain principles of law, and similar
frequently repeated phrases that, in the world of
legal literature, already belong to the public
realm.
To paraphrase Bast and Samuels,18 while the
academic publishing model is based on the
originality of the writer’s thesis, the judicial
system is based on the doctrine of stare decisis,
which encourages courts to cite historical legal
data, precedents, and related studies in their
decisions. The judge is not expected to produce
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 17
original scholarship in every respect. The
strength of a decision lies in the soundness and
general acceptance of the precedents and long
held legal opinions it draws from.
Third Finding
Petitioners allege that the decision twisted the
passages from Tams, Criddle-Descent, and
Ellis. The Court adopts the Committee’s finding
that this is not so. Indeed, this allegation of
twisting or misrepresentation remains a mystery
to the Court. To twist means "to distort or pervert
the meaning of."19 For example, if one lifts the
lyrics of the National Anthem, uses it in his work,
and declares that Jose Palma who wrote it "did
not love his country," then there is "twisting" or
misrepresentation of what the anthem’s lyrics
said. Here, nothing in the Vinuya decision said
or implied that, based on the lifted passages,
authors Tams, Criddle-Descent, and Ellis
supported the Court’s conclusion that the
Philippines is not under any obligation in
international law to espouse Vinuya et
al.’s claims.
The fact is that, first, since the attributions to
Criddle-Descent and Ellis were accidentally
deleted, it is impossible for any person reading
the decision to connect the same to the works
of those authors as to conclude that in writing
the decision Justice Del Castillo "twisted" their
intended messages. And, second, the lifted
passages provided mere background facts that
established the state of international law at
various stages of its development. These are
neutral data that could support conflicting
theories regarding whether or not the judiciary
has the power today to order the Executive
Department to sue another country or whether
the duty to prosecute violators of international
crimes has attained the status of jus cogens.
Considering how it was impossible for Justice
Del Castillo to have twisted the meaning of the
passages he lifted from the works of Tams,
Criddle-Descent, and Ellis, the charge of
"twisting" or misrepresentation against him is to
say the least, unkind. To be more accurate,
however, the charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have
mistakenly cited the wrong sources, failed to
use quotation marks, inadvertently omitted
necessary information from footnotes or
endnotes. But these do not, in every case,
amount to misconduct. Only errors that are
tainted with fraud, corruption, or malice are
subject of disciplinary action.20 This is not the
case here. Justice Del Castillo’s acts or
omissions were not shown to have been
impelled by any of such disreputable
motives.21 If the rule were otherwise, no judge
or justice, however competent, honest, or
dedicated he may be, can ever hope to retire
from the judiciary with an unblemished record.22
No Inexcusable Negligence
Finally, petitioners assert that, even if they were
to concede that the omission was the result of
plain error, Justice Del Castillo is nonetheless
guilty of gross inexcusable negligence. They
point out that he has full control and supervision
over his researcher and should not have
surrendered the writing of the decision to the
latter.23
But this assumes that Justice Del Castillo
abdicated the writing of the Vinuya decision to
his researcher, which is contrary to the evidence
adduced during the hearing. As his researcher
testified, the Justice set the direction that the
research and study were to take by discussing
the issues with her, setting forth his position on
those issues, and reviewing and commenting on
the study that she was putting together until he
was completely satisfied with it.24 In every
sense, Justice Del Castillo was in control of the
writing of the report to the Court, which report
eventually became the basis for the decision,
and determined its final outcome.
Assigning cases for study and research to a
court attorney, the equivalent of a "law clerk" in
the United States Supreme Court, is standard
practice in the high courts of all nations. This is
dictated by necessity. With about 80 to 100
cases assigned to a Justice in our Court each
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 18
month, it would be truly senseless for him to do
all the studies and research, going to the library,
searching the internet, checking footnotes, and
watching the punctuations. If he does all these
by himself, he would have to allocate at least
one to two weeks of work for each case that has
been submitted for decision. The wheels of
justice in the Supreme Court will grind to a halt
under such a proposition.
What is important is that, in this case, Justice
Del Castillo retained control over the writing of
the decision in the Vinuya case without,
however, having to look over his researcher’s
shoulder as she cleaned up her draft report to
ensure that she hit the right computer keys. The
Justice’s researcher was after all competent in
the field of assignment given her. She finished
law from a leading law school, graduated third
in her class, served as Editor-in Chief of her
school’s Law Journal, and placed fourth in the
bar examinations when she took it. She earned
a master’s degree in International Law and
Human Rights from a prestigious university in
the United States under the Global-Hauser
program, which counsel for petitioners
concedes to be one of the top post graduate
programs on International Law in the world.
Justice Del Castillo did not exercise bad
judgment in assigning the research work in the
Vinuya case to her.
Can errors in preparing decisions be prevented?
Not until computers cease to be operated by
human beings who are vulnerable to human
errors. They are hypocrites who believe that the
courts should be as error-free as they
themselves are.
Incidentally, in the course of the submission of
petitioners’ exhibits, the Committee noted that
petitioners’ Exhibit J, the accusing statement of
the Faculty of the U.P. College of Law on the
allegations of plagiarism and misinterpretation,
was a mere dummy. The whole of the statement
was reproduced but the signatures portion
below merely listed the names of 38 faculty
members, in solid rows, with the letters "Sgd" or
"signed" printed beside the names without
exception. These included the name of retired
Supreme Court Justice Vicente V. Mendoza, a
U.P. professor.
Because the Committee declined to admit a
mere dummy of Exhibit J, it directed Atty. Roque
to present the signed copy within three days of
the August 26 hearing.25 He complied. As it
turned out, the original statement was signed by
only a minority of the faculty members on the
list. The set of signatories that appeared like
solid teeth in the dummy turned out to be broken
teeth in the original. Since only 37 out of the 81
on the list signed the document, it does not
appear to be a statement of the Faculty but of
just some of its members. And retired Justice V.
V. Mendoza did not sign the statement, contrary
to what the dummy represented. The
Committee wondered why the Dean submitted
a dummy of the signed document when U.P.
has an abundance of copying machines.
Since the above circumstances appear to be
related to separate en banc matter concerning
the supposed Faculty statement, there is a need
for the Committee to turn over the signed copy
of the same to the en banc for its consideration
in relation to that matter.
WHEREFORE, in view of all of the above, the
Court:
1. DISMISSES for lack of merit petitioner
Vinuya, et al.’s charges of plagiarism, twisting of
cited materials, and gross neglect against
Justice Mariano C. del Castillo;
2. DIRECTS the Public Information Office to
send copies of this decision to Professors Evan
J. Criddle and Evan Fox-Descent, Dr. Mark Ellis,
and Professor Christian J. Tams at their known
addresses;
3. DIRECTS the Clerk of Court to provide all
court attorneys involved in legal research and
reporting with copies of this decision and to
enjoin them to avoid editing errors committed in
the Vinuya case while using the existing
computer program especially when the volume
of citations and footnoting is substantial; and
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 19

4. Finally, DIRECTS the Clerk of Court to

acquire the necessary software for use by the
Court that can prevent future lapses in citations
and attributions.

Further, the Court DIRECTS the Committee on

Ethics and Ethical Standards to turn over to the
en banc the dummy as well as the signed copy
of petitioners’ Exhibit J, entitled "Restoring
Integrity," a statement by the Faculty of the
University of the Philippines College of Law for
the en banc’s consideration in relation to the
separate pending matter concerning that
supposed Faculty statement.

SO ORDERED.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 20

DISSENTING OPINION the Vinuya decision to editorial errors and lack

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 decision1 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.
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
TABLES OF COMPARISON
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.

It has also undermined the protection of TABLE A: Comparison of Christian J. Tams’s

copyrighted work by making available to book, entitled Enforcing Erga Omnes
plagiarists "lack of malicious intent" as a Obligations in International Law (2005),
defense to a charge of violation of copy or hereinafter called "Tams’s work" and the
economic rights of the copyright owner Supreme Court’s 28 April 2010 Decision in
committed through lack of attribution. Under Vinuya, et. al. v. Executive Secretary.
Section 184 of R.A. 8293 ("An Act Describing
the Intellectual Property Code and Establishing Christian J. Tams, Vinuya, et. al. v.
the Intellectual Property Office, Providing for Its Enforcing Erga Executive Secretary,
Powers and Functions, and for Other Omnes Obligations in G.R. No. 162230, 28
Purposes"), or the Intellectual Property Code of International Law April 2010.
the Philippines, there is no infringement of (2005).
1. xxx The Latin phrase *The Latin phrase,
copyright in the use of another's work in:
‘erga omnes’ thus ‘erga omnes,’ has
has become one of since become one of
(b) the making of quotations from a published the rallying cries of the rallying cries of
work if they are compatible with fair use and only those sharing a belief those sharing a belief
to the extent justified for the purpose, including in the emergence of a in the emergence of a
quotations from newspaper articles and value-based value-based
periodicals in the form of press international public international public
summaries: Provided that the source and the order based on law. order. However, as is
name of the author, if appearing on the work, xxx so often the case, the
are mentioned. (Emphasis supplied) reality is neither so
As often, the reality is clear nor so bright.
Because the majority Decision has excused the neither so clear nor Whatever the
so bright. One relevance of
lack of attribution to the complaining authors in
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 21

problem is readily obligations erga that command refers to norms that

admitted by omnes as a legal peremptory authority, command
commentators: concept, its full superseding peremptory
whatever the potential remains to conflicting treaties authority,
relevance of be realized in and custom. xxx Jus superseding
obligations erga practice.[FN69] (p. 30, cogens norms are conflicting treaties
omnes as a legal Body of the 28 April considered and custom. Jus
concept, its full 2010 Decision) peremptory in the cogens norms are
potential remains to sense that they are considered
be realised in Bruno Simma’s
[FN69] mandatory, do not peremptory in the
practice. xxx Bruno much-quoted admit derogation, and sense that they are
Simma’s much- observation can be modified only mandatory, do not
quoted observation encapsulates this by general admit derogation,
encapsulates thisfeeling of international norms of and can be modified
feeling of
disappointment: equivalent only by general
disappointment: ‘Viewed realistically, authority.[FN2] international norms
‘Viewed realistically, the world of of equivalent
the world of
obligations erga [FN2]
See Vienna authority.[FN70] (pp.
obligations erga omnes is still the Convention on the 30-31, Body of the
omnes is still the world of the "ought" Law of Treaties art. 28 April 2010
world of the ‘‘ought’’ rather than of the "is"’ 53, opened for Decision)
rather than of the ‘‘is’’.
The Charter of the signature May 23,
United Nations: A 1969, 1155 U.N.T.S. [FN70] See Vienna
(pp. 3-4 of the Commentary 125 331, 8 I.L.M. 679 Convention on the
Christian Tams’s (Simma, ed. 1995). [hereinafter VCLT]. Law of Treaties art.
book) See Tams, Enforcing 53, opened for
Obligations Erga (pp. 331-332 of the signature May 23,
omnes in Yale Law Journal of 1969, 1155
International Law Int’l Law) U.N.T.S. 331, 8
(2005). I.L.M. 679
[hereinafter VCLT].
*The decision 2. Peremptory norms xxx but peremptory
mentioned Christian began to attract norms began to
Tams’s book in greater scholarly attract greater
footnote 69. attention with the scholarly attention
publication of Alfred with the publication
TABLE B: Comparison of Evan J. Criddle & von Verdross's of Alfred von
Evan Fox-Decent’s article in the Yale Journal of influential 1937 Verdross's
article, Forbidden influential 1937
International Law, entitled A Fiduciary Theory of
Treaties in article, Forbidden
Jus Cogens (2009), hereinafter called "Criddle’s International Law.[FN10] Treaties in
& Fox-Decent’s work" and the Supreme Court’s International
28 April 2010 Decision in Vinuya, et al. v. [FN10] For example, Law. [FN72] (p. 31,
Executive Secretary. in the 1934 Oscar Body of the 28 April
Chinn Case, Judge 2010 Decision)
Evan J. Criddle & Vinuya, et. al. v. Schücking's influential
Evan Fox-Decent, A Executive dissent stated that [FN72] Verdross
Fiduciary Theory of Secretary, G.R. No. neither an interna- argued that certain
Jus Cogens, 34 Yale 162230, 28 April tional court nor an discrete rules of
J. Int'l L. 331 (2009). 2010 arbitral tribunal should international
1. In international law, In international law, apply a treaty custom had come to
the term "jus cogens" the term "jus provision in be recognized as
(literally, "compelling cogens" (literally, contradiction to bonos having a
law") refers to norms "compelling law") mores. Oscar Chinn compulsory
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 22

Case, 1934 P.C.I.J. character states from the consensual

(ser. A/B) No. 63, at notwithstanding "necessary" principles agreements
149-50 (Dec. 12) contrary state of international law between states
(Schücking, J., agreements. At that bind all states as from the
dissenting). first, Verdross's a point of conscience "necessary"
vision of regardless of principles of
(p. 334 of the Yale international jus consent.[FN6] international law
Law Journal of Int’l cogens that bind all states
Law) encountered [FN6] See Hugonis as a point of
skepticism within Grotii, De Jure Belli et conscience
the legal academy. Pacis [On the Law of regardless of
These voices of War and Peace] consent.
resistance soon (William Whewell ed.
found themselves in & trans., John W. (p. 31, Footnote 71
the minority, Parker, London 2009) of the 28 April 2010
however, as the jus (1625); Emer de Decision)
cogens concept Vattel, Le Droit des
gained enhanced Gens ou Principes de
recognition and la Loi Naturelle [The
credibility following Law of Nations or
the Second World Principles of Natural
War. (See Lauri Law] §§ 9, 27 (1758)
Hannikainen, (distinguishing "le
Peremptory Norms Droit des Gens
(Jus cogens) in Naturel, ou
International Law: Nécessaire" from "le
Historical Droit Volontaire");
Development, Christian Wolff, Jus
Criteria, Present Gentium Methodo
Status 150 (1988) Scientifica
(surveying legal Pertractorum [A
scholarship during Scientific Method for
the period 1945-69 Understanding the
and reporting that Law of Nations] ¶ 5
"about eighty per (James Brown Scott
cent [of scholars] ed., Joseph H. Drake
held the opinion that trans., Clarendon
there are Press 1934) (1764).
peremptory norms
existing in (p. 334 of the Yale
international law"). Law Journal of Int’l
[FN71]
3. Classical publicists Classical Law)
such as Hugo Grotius, publicists such as 4. Early twentieth- [FN71]
xxx Early
Emer de Vattel, and Hugo Grotius, Emer century publicists twentieth-century
Christian Wolff drew de Vattel, and such as Lassa publicists such as
upon the Roman law Christian Wolff Oppenheim and Lassa Oppenheim
distinction between drew upon the William Hall asserted and William Hall
jus dispositivum Roman law confidently that states asserted that states
(voluntary law) and distinction between could not abrogate could not abrogate
jus scriptum jus dispositivum certain "universally certain "universally
(obligatory law) to (voluntary law) and recognized principles" recognized
differentiate jus scriptum by mutual principles" by
consensual (obligatory law) to agreement.[FN9]Outsid mutual agreement.
agreements between differentiate e the academy, xxx Judges on the
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 23

judges on the Permanent Court of International Law 382- International Law

Permanent Court of International 83 (8th ed. 1924) 382-83 (8th ed.
International Justice Justice affirmed the (asserting that 1924) (asserting
affirmed the existence existence of "fundamental that "fundamental
of peremptory norms peremptory norms principles of principles of
in international law by in international law international law" may international law"
referencing treaties by referencing "invalidate [], or at may "invalidate [],
contra bonos mores treaties contra least render or at least render
(contrary to public bonos mores voidable," conflicting voidable,"
policy) in a series of (contrary to public international conflicting
individual concurring policy) in a series of agreements) xxx international
and dissenting individual agreements) xxx
opinions.[FN10]xxx concurring and (Footnote 9 of the
dissenting opinions. Yale Law Journal of (p. 31, Footnote 71
[FN9]
William Hall, A xxx Int’l Law) of the 28 April 2010
Treatise on Decision)
[FN10]
International Law 382- (p. 31, Footnote 71 6. For example, in [FN71] xxx (For
83 (8th ed. 1924) of the 28 April 2010 the 1934 Oscar Chinn example, in the
(asserting that Decision) Case, Judge 1934 Oscar Chinn
"fundamental Schücking's influential Case, Judge
principles of dissent stated that Schücking's
international law" may neither an influential dissent
"invalidate [], or at international court nor stated that neither
least render an arbitral tribunal an international
voidable," conflicting should apply a treaty court nor an arbitral
international provision in tribunal should
agreements); 1 Lassa contradiction to bonos apply a treaty
Oppen-heim, mores. Oscar Chinn provision in
International Law 528 Case, 1934 P.C.I.J. contradiction to
(1905). (ser. A/B) No. 63, at bonos mores.
149-50 (Dec. 12) Oscar Chinn Case,
[FN10] (Schücking, J., 1934 P.C.I.J. (ser.
For example, in
the 1934 Oscar Chinn dissenting). A/B) No. 63, at 149-
Case, Judge 50 (Dec. 12)
Schücking's influential (Footnote 9 of the (Schücking, J.,
dissent stated that Yale Law Journal of dissenting).
neither an interna- Int’l Law)
tional court nor an (p. 31, Footnote 71
arbitral tribunal should of the 28 April 2010
apply a treaty Decision)
provision in 7. Verdross argued that [FN72] Verdross
contradiction to bonos certain discrete rules argued that certain
mores. Oscar Chinn of international discrete rules of
Case, 1934 P.C.I.J. custom had come to international
(ser. A/B) No. 63, at be recognized as custom had come to
149-50 (Dec. 12) having a compulsory be recognized as
(Schücking, J., character having a
dissenting). notwithstanding compulsory
contrary state character
(pp. 334-5 of the Yale agreements.[FN12] notwithstanding
Law Journal of Int’l contrary state
Law) [FN12]
[Von Verdross, agreements. xxx
[FN9]
5. William Hall, A [FN71] xxx (William supra note 5.]
Treatise on Hall, A Treatise on
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 24

(pp. 335 of the Yale (p. 31, Footnote 72 Convention on the Treaties
Law Journal of Int’l of the 28 April 2010 Law of Treaties (VCLT).[FN73]
[FN20]
Law) Decision) (VCLT).
[FN72]
8. At first, Verdross's xxx At first, (p. 31, Body of the
vision of international Verdross's vision of [FN20] VCLT, supra 28 April 2010
jus cogens international jus note 2. Decision)
encountered cogens encountere
skepticism within the d skepticism within (p. 336 of the Yale [FN73] In March 1953,
legal academy. xxx the legal academy. Law Journal of Int’l the ILC's Special
These voices of These voices of Law) Rapporteur, Sir
resistance soon found resistance soon Hersch
themselves in the found themselves in Lauterpacht,
minority, however, as the minority, submitted for the
the jus cogens however, as the jus ILC's consideration
concept gained cogens concept a partial draft
enhanced recognition gained enhanced convention on
and credibility recognition and treaties which
following the Second credibility following stated that "[a]
World War. the Second World treaty, or any of its
War. xxx provisions, is void if
(pp. 335-6 of the Yale its performance
Law Journal of Int’l (p. 31, Footnote 72 involves an act
Law) of the 28 April 2010 which is illegal
Decision) under international
[FN18]
9. See Lauri [FN72] xxx (See Lauri law and if it is
Hannikainen, Hannikainen, declared so to be by
Peremptory Norms Peremptory Norms the International
(Jus Cogens) in (Jus cogens) in Court of Justice."
International Law: International Law: Hersch
Historical Historical Lauterpacht, Law of
Development, Development, Treaties: Report by
Criteria, Present Criteria, Present Special Rapporteur,
Status 150 (1988) Status 150 (1988) [1953] 2 Y.B. Int'l L.
(surveying legal (surveying legal Comm'n 90, 93,
scholarship during the scholarship during U.N. Doc.
period 1945-69 and the period 1945-69 A/CN.4/63.
reporting that "about and reporting that 11 In March 1953, [FN73] In March 1953,
eighty per cent [of "about eighty per . Lauterpacht the ILC's Special
scholars] held the cent [of scholars] submitted for the ILC's Rapporteur, Sir
opinion that there are held the opinion that consideration a partial Hersch
peremptory norms there are draft convention on Lauterpacht,
existing in peremptory norms treaties which stated submitted for the
international law"). existing in that "[a] treaty, or any ILC's consideration
international law"). of its provisions, is a partial draft
(Footnote 18 of the void if its performance convention on
Yale Law Journal of (p. 31, Footnote 72 involves an act which treaties which
Int’l Law) of the 28 April 2010 is illegal under stated that "[a]
Decision) international law and if treaty, or any of its
10 xxx the 1950s and xxx the 1950s and it is declared so to be provisions, is void if
. 1960s with the United 1960s with the ILC’s by the International its performance
Nations International preparation of the Court of Justice."[FN21] involves an act
Law Commission's Vienna Convention which is illegal
(ILC) preparation of on the Law of [FN21] Hersch under international
the Vienna Lauterpacht, Law of law and if it is
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 25

Treaties: Report by declared so to be by A/CN.4/188 (noting

Special Rapporteur, the International that the "emergence
[1953] 2 Y.B. Int'l L.
Court of Justice." of a rule of jus cogens
Comm'n 90, 93, U.N. Hersch banning aggressive
Doc. A/CN.4/63. Lauterpacht, Law of war as an
Treaties: Report by international crime"
(p. 336 of the Yale Special Rapporteur, was evidence that
Law Journal of Int’l [1953] 2 Y.B. Int'l L. international law
Law) Comm'n 90, 93, contains "minimum
U.N. Doc. requirement[s] for
A/CN.4/63. safeguarding the
existence of the
(p. 31, Footnote 73 international
of the 28 April 2010 community").
Decision)
12 Lauterpacht's Though there was a (p. 336 of the Yale
. colleagues on the ILC consensus that Law Journal of Int’l
generally accepted certain international Law)
[FN23] [FN74]
his assessment that norms had attained 13 xxx see, e.g., See Summary
certain international the status of jus . Summary Records of Records of the
norms had attained cogens, [FN74] the the 877th Meeting, 877th Meeting,
the status of jus ILC was unable to [1966] 1 Y.B. Int'l L. [1966] 1 Y.B. Int'l L.
cogens. [FN23] Yet reach a consensus Comm'n 227, 230- Comm'n 227, 230-
despite general on the proper 231, U.N. Doc.
231, U.N. Doc.
agreement over the criteria for A/CN.4/188 (noting
A/CN.4/188 (noting
existence of identifying that the "emergence that the
international jus peremptory norms. of a rule of jus cogens "emergence of a
cogens, the ILC was banning aggressive rule of jus
unable to reach a (p. 31, Body of the war as an
cogensbanning
consensus regarding 28 April 2010 international crime"
aggressive war as
either the theoretical Decision) was evidence that an international
basis for peremptory international law
crime" was
norms' legal authority [FN74]
See Summary contains "minimum evidence that
or the proper criteria Records of the requirement[s] for
international law
for identifying 877th Meeting, safeguarding the
contains "minimum
peremptory norms. [1966] 1 Y.B. Int'l L. existence of the
requirement[s] for
Comm'n 227, 230- international safeguarding the
[FN23]
See 231, U.N. Doc. community"). existence of the
Hannikainen, supra A/CN.4/188 (noting international
note 18, at 160-61 that the (Footnote 23 of the community").
(noting that none of "emergence of a Yale Law Journal of
the twenty five rule of jus cogens Int’l Law) (p. 31, Footnote 74
members of the ILC in banning aggressive of the 28 April 2010
1963 denied the war as an Decision)
existence of jus international crime" 14 After an extended After an extended
cogens or contested was evidence that . debate over these and debate over these
the inclusion of an international law other theories of jus and other theories
article on jus cogens contains "minimum cogens, the ILC of jus cogens, the
in the VCLT); see, requirement[s] for concluded ruefully in ILC concluded
e.g., Summary safeguarding the 1963 that "there is not ruefully in 1963 that
Records of the 877th existence of the as yet any generally "there is not as yet
Meeting, [1966] 1 Y.B. international accepted criterion by any generally
Int'l L. Comm'n 227, community"). which to identify a accepted criterion
230-231, U.N. Doc. general rule of by which to identify
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 26

international law as a general rule of (p. 346 of the Yale (p. 32, Footnote 77
having the character international law as Law Journal of Int’l of the 28 April 2010
of jus having the Law) Decision)
[FN27] [FN77]
cogens." xxx In character of jus 16 In other cases, xxx In other
commentary cogens."[FN75] In a . national courts have cases, national
accompanying the commentary accepted international courts have
draft convention, the accompanying the norms as peremptory, accepted
ILC indicated that "the draft convention, but have hesitated to international norms
prudent course seems the ILC indicated enforce these norms as peremptory, but
to be to . . . leave the that "the prudent for fear that they might have hesitated to
full content of this rule course seems to be thereby compromise enforce these
to be worked out in to x x x leave the full state norms for fear that
State practice and in content of this rule sovereignty.[FN73] xxx they might thereby
the jurisprudence of to be worked out in In Congo v. Rwanda, compromise state
international State practice and for example, Judge ad sovereignty. (See,
tribunals."[FN29] xxx in the jurisprudence hoc John Dugard e.g., Bouzari v. Iran,
of international observed that the ICJ [2004] 71 O.R.3d
[FN27]
Second Report tribunals."[FN76] xxx had refrained from 675 (Can.) (holding
on the Law of invoking the jus that the prohibition
Treaties, [1963] 2 Y.B. (p. 32, Body of the cogens concept in against torture does
Int'l L. Comm'n 1, 52, 28 April 2010 several previous not entail a right to a
U.N. Doc. Decision) cases where civil remedy
A/CN.4/156. peremptory norms enforceable in a
[FN75]
Second Report manifestly clashed foreign court)).
[FN29]
Second Report on the Law of with other principles of
on the Law of Treaties, [1963] 2 general international In Congo v.
Treaties, supra note Y.B. Int'l L. Comm'n law.[FN74] Similarly, the Rwanda, for
27, at 53. 1, 52, U.N. Doc. European Court of example, Judge ad
A/CN.4/156. Human Rights has hoc John Dugard
(p. 337-8 of the Yale addressed jus cogens observed that the
Law Journal of Int’l [76] Id. at 53. only once, in Al- ICJ had refrained
Law) Adsani v. United from invoking
15 In some municipal [FN77] xxx In some Kingdom, when it the jus
. cases, courts have municipal cases, famously rejected the cogensconcept in
declined to recognize courts have argument that jus several previous
international norms as declined to cogens violations cases where
peremptory while recognize would deprive a state peremptory norms
expressing doubt international norms of sovereign manifestly clashed
about the proper as peremptory immunity. with other principles
criteria for identifying while expressing of general
[FN73]
jus cogens.[FN72] doubt about the See, e.g., international law.
proper criteria for Bouzari v. Iran, [2004] (See Armed
[FN72]
See, e.g., identifying jus 71 O.R.3d 675 (Can.) Activities on the
Sampson v. Federal cogens. (See, e.g., (holding that the Territory of the
Republic of Germany, Sampson v. prohibition against Congo (Dem. Rep.
250 F.3d 1145, 1149 Federal Republic of torture does not entail Congo v. Rwanda)
(7th Cir. 2001) Germany, 250 F.3d a right to a civil (Judgment of
(expressing concern 1145, 1149 (7th Cir. remedy enforceable in February 3, 2006),
that jus cogens should 2001) (expressing a foreign court). at 2 (Dissenting
be invoked "[o]nly as a concern that jus Opinion of Judge
last resort"). cogens should be [FN74]
See Armed Dugard))
invoked "[o]nly as a Activities on the
last resort")). xxx Territory of the Congo Similarly, the
(Dem. Rep. Congo v. European Court of
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 27

Rwanda) (Judgment Human Rights has their "honour."[FN10] But between Prussia
of Feb. 3, 2006), at 2 addressed jus modern-day sensitivity to and the United
(dissenting opinion of cogens only once, the crime of rape did not States provides
Judge Dugard) xxx. in Al-Adsani v. emerge until after World that in time of war
United Kingdom, War II. all women and
(pp. 346-7 of the Yale when it famously children "shall
Law Journal of Int’l rejected the [FN7]
For example, the not be molested
Law) argument that jus Treaty of Amity and in their persons."
cogens violations Commerce Prussia and The Treaty of
would deprive a the United States provides Amity and
state of sovereign that in time of war all Commerce,
immunity. Al- women and children "shall Between his
Adsani v. United not be molested in their Majesty the King
Kingdom, 2001-XI persons." The Treaty of of Prussia and
Eur. Ct. H.R. 79, Amity and Commerce, the United States
61). Between his Majesty the of America, art.
King of Prussia and the 23, Sept. 10,
(p. 32, Footnote 77 United States of America, 1785, U.S.-
of the 28 April 2010 art. 23, Sept. 10, 1785, Pruss., 8
Decision) U.S.-Pruss., 8 TREATIES Treaties & Other
& OTHER INT'L Int'l Agreements
TABLE C: Comparison of Mark Ellis’s article in AGREEMENTS OF THE Of The U.S. 78,
the Case Western Reserve Journal of U.S. 78, 85, available at 85[)]. The 1863
xxx. Lieber
International Law, entitled Breaking the Silence:
Instructions
Rape as an International Crime (2006-7), [FN8] classified rape as
David Mitchell, The
hereafter called "Ellis’s work" and the Supreme a crime of "troop
Prohibition of Rape in
Court’s 28 April 2010 Decision in Vinuya, et al. International Humanitarian discipline."
v. Executive Secretary. Law as a Norm of Jus (Mitchell, The
Cogens: Clarifying the Prohibition of
Mark Ellis, Breaking the Vinuya, et. al. v. Doctrine, 15 DUKE J. Rape in
Silence: Rape as an Executive COMP. INT'L L. 219, 224. International
International Crime, 38 Secretary, G.R. Humanitarian
Case W. Res. J. Int'l L. 225 No. 162230, 28 [FN9]
Id. at 236. Law as a Norm of
(2006-2007). April 2010. Jus cogens:
[FN65] Clarifying the
1 The concept of rape as an The concept [FN10]
"Family honour and
. international crime is of rape as an rights, the lives of persons, Doctrine, 15
relatively new. This is not international and private property, as DUKE J. COMP.
to say that rape has never crime is relatively well as religious INT’L. L. 219,
been historically new. This is not convictions and practice, 224). It specified
prohibited, particularly in to say that rape must be respected." rape as a capital
war.[FN7] The 1863 Lieber has never been Convention (IV) crime punishable
Instructions, which historically Respecting the Laws & by the death
codified customary inter- prohibited, Customs of War on Land, penalty (Id. at
national law of land particularly in art. 46, Oct. 18, 1907, 236). The 1907
warfare, classified rape as war. But modern- available at Hague
a crime of "troop day sensitivity to http://www.yale Convention
discipline."[FN8] It specified the crime of rape .edu/lawweb/avalon/lawof protected women
rape as a capital crime did not emerge war/hague04.htm #art46. by requiring the
punishable by the death until after World protection of their
penalty.[FN9] The 1907 War II. xxx (For "honour."
(p. 227 of the Case
Hague Convention example, the ("Family honour
Western Law Reserve
protected women by Treaty of Amity and rights, the
Journal of Int’l Law)
requiring the protection of and Commerce lives of persons,
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 28

and private crimes, even though its Criminal

property, as well Statute did not explicitly Tribunals Crime
as religious criminalize rape.[FN17] The and Punishment
convictions and Far East Tribunal held in the
practice, must be General Iwane Matsui, International
respected." Commander Shunroku Arena,7 ILSA J.
Convention (IV) Hata and Foreign Minister Int’l. Comp. L.
Respecting the Hirota criminally 667,
Laws & Customs responsible for a series of 676.) However,
of War on Land, crimes, including rape, International
art. 46, Oct. 18, committed by persons Military Tribunal
1907[)]. xxx. under their authority.[FN18] for the Far East
prosecuted rape
(p. 27, Footnote [FN13]
Judge Gabrielle Kirk crimes, even
65 of the 28 April McDonald, The though its Statute
2010 Decision) International Criminal did not explicitly
2 After World War II, when [FN65]
xxx In the Tribunals Crime and criminalize rape.
. the Allies established the Nuremberg Punishment in the The Far East
Nuremberg Charter, the Charter, the word International Arena, 7 Tribunal held
word rape was not rape was not ILSA J. INT'L COMP L. General Iwane
mentioned. The article on mentioned. The 667, at 676. Matsui,
crimes against humanity article on crimes Commander
explicitly set forth against humanity [FN15]
See Charter of the Shunroku Hata
prohibited acts, but rape explicitly set forth International Tribunal for and Foreign
was not mentioned by prohibited acts, the Far East, Jan. 19, Minister Hirota
name.[FN11] but rape was not 1946, T.I.A.S. 1589. criminally
mentioned by responsible for a
[FN11]
See generally, name. [FN17]
See McDonald, supra series of crimes,
Agreement for the xxx See Agreem note 13, at 676. including rape,
Prosecution and ent for the committed by
Punishment of the Major Prosecution and [FN18]
THE TOKYO persons under
War Criminals of the Euro- Punishment of JUDGMENT: JUDGMENT their authority.
pean Axis, Aug. 8, 1945, the Major War OF THE (The Tokyo
59 Stat. 1544, 82 U.N.T.S. Criminals of the INTERNATIONAL Judgment:
279. European Axis, MILITARY TRIBUNAL Judgment Of The
Aug. 8, 1945, 59 FOR THE FAR EAST 445- International
(p. 227 of the Case Stat. 1544, 82 54 (B.V.A. Roling and C.F. Military Tribunal
Western Law Reserve U.N.T.S. 279. Ruter eds., 1977). For The Far East
Journal of Int’l Law) xxx. 445-54 (1977).
xxx
(p. 228 of the Case
(p. 27, Footnote Western Law Reserve
65 of the 28 April Journal of Int’l Law) (p. 27, Footnote
2010 Decision) 65 of the 28 April
3 The Nuremberg Judgment [FN65]
xxx The 2010 Decision)
. did not make any Nuremberg 4 The first mention of rape [FN65] xxx The first
reference to rape and rape Judgment did not . as a specific crime came in mention of rape
was not make any December 1945 when as a specific
prosecuted. [FN13]
xxx. reference to rape Control Council Law No. crime came in
and rape was not 10 included the term rape December 1945
It was different for the prosecuted. in the definition of crimes when Control
Charter of the International (Judge Gabrielle against Council Law No.
Military Tribunal for the Far Kirk humanity.[FN22] Law No. 10 included the
East.[FN15] xxx The McDonald, The I 10, adopted by the four term rape in the
Tribunal prosecuted rape nternational occupying powers in definition of
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 29

Germany, was devised to crimes against and a crime against U.N.T.S. 287
establish a uniform basis humanity. Law humanity. xxx. (entry into force
for prosecuting war No. 10, adopted Oct. 20, 1950)
criminals in German by the four [FN23]
Geneva Convention [hereinafter
courts. occupying Relative to the Protection Fourth Geneva
powers in of Civilian Persons in Time Convention].
[FN22]
Control Council for Germany, was of War, Aug. 12, 1949, art. Furthermore, the
Germany, Law No. 10: devised to 27, 6 U.S.T. 3316, 75 ICC, the ICTY,
Punishment of Persons establish a U.N.T.S. 287 (entry into and the
Guilty of War Crimes, uniform basis for force Oct. 20, 1950) International
Crimes Against Peace and prosecuting war [hereinafter Fourth Criminal Tribunal
Against Humanity, Dec. criminals in Geneva Convention]. for Rwanda
20, 1945, 3 Official German courts. (ICTR) have
Gazette Control Council (Control Council (p. 229 of the Case significantly
for Germany 50, 53 for Germany, Western Law Reserve advanced the
(1946), available at Law No. 10: Journal of Int’l Law) crime of rape by
http://www1.umn.edu/hum Punishment of enabling it to be
anrts Persons Guilty of prosecuted as
/instree/ccno10.htm (last War Crimes, genocide, a war
visited Nov. 20, 2003). Crimes Against crime, and a
This law set forth a uniform Peace and crime against
legal basis in Germany for Against humanity. xxx.
the prosecution of war Humanity, Dec.
criminals and similar 20, 1945, 3 (p. 27, Footnote
offenders, other than Official Gazette 65 of the 28 April
those dealt with under the Control Council 2010 Decision)
International Military for Germany 50,
Tribunal. See id. at 50. 53 (1946)) xxx Forms of Plagiarism
(pp. 228-9 of the Case (p. 27, Footnote There are many ways by which plagiarism can
Western Law Reserve 65 of the 28 April
be committed.4 For the purpose of this analysis,
Journal of Int’l Law) 2010 Decision)
[FN65] we used the standard reference book
5 The 1949 Geneva xxx The
. Convention Relative to the 1949 Geneva
prescribed for Harvard University students,
Treatment of Prisoners of Convention "Writing with Sources" by Gordon Harvey.
War was the first modern- Relative to the
day international Treatment of Harvey identifies four forms of plagiarism5: (a)
instrument to establish Prisoners of War uncited data or information;6 (b) an uncited idea,
protections against rape was the first whether a specific claim or general concept;7 (c)
for women.[FN23] However, modern-day an unquoted but verbatim phrase or
the most important international passage;8 and (d) an uncited structure or
development in breaking instrument to organizing strategy.9 He then explains how
the silence of rape as an establish each form or mode of plagiarism is committed.
international crime has protections
Plagiarism is committed in mode (a) by
come through the against rape for
jurisprudence of the ICTY women. Geneva
"plagiarizing information that is not common
and the International Convention knowledge."10 Mode (b) is committed when
Criminal Tribunal for Relative to the "distinctive ideas are plagiarized," "even though
Rwanda (ICTR). Both of Protection of you present them in a different order and in
these Tribunals have Civilian Persons different words, because they are uncited."11
significantly advanced the in Time of War,
crime of rape by enabling it Aug. 12, 1949, Even if there has been a prior citation,
to be prosecuted as art. 27, 6 U.S.T. succeeding appropriations of an idea to make it
genocide, a war crime, 3316, 75 appear as your own is plagiarism, because the
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 30
"[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. Harvey
explains that a discursive footnote or endnote is
"a note that includes comments, not just
publication information . . . when you want to tell
your reader something extra to the strict
development of your argument, or incorporate
extra information about sources."14
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 Vinuyadecision 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.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 31
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.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 32
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.
xxx xxx xxx
"… 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
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 33
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."
xxx
"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.
xxx
"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.
xxx
"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.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 34
"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
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 35
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.
Burgin18 wherein the court said that plagiarism
may be done "through negligence or
recklessness without intent to
19
deceive." 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
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 36
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 culpability22,
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"23to 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."24Indeed, 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
al27, most particularly the censure of the actions
of the judge who plagiarized a law-review article
in Brennan28; the admonition issued by the
Canadian Federal Court of Appeal in the case
of Apotex29) 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
adhere33. 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
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 37
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 al35,
a U.S. tobacco class action suit, "[the] plaintiffs'
counsel filed a motion for rehearing alleging that
the appellate opinion copied large portions of
the defendants' briefs. . . . without attribution."
The result of this, the plaintiffs claimed, was the
creation of the "appearance of impropriety," the
abdication of judicative duties, the relinquishing
of independence to defendants, the failure to
maintain impartiality, and therefore, as an act of
judicial plagiarism, was "a misrepresentation of
the facts found by the trial court and denied
plaintiffs due process of law."36 The three-judge
panel denied the motion. In addition, "courts
generally have been reluctant to reverse for the
verbatim adoption of prepared
findings."37 In Anderson v. City of Bessemer
City, North Carolina38 it was held that even
though the trial judge's findings of fact may have
been adopted verbatim from the prevailing
party, the findings "may be reversed only if
clearly erroneous."39
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
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 38
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.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 39
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY
ENTITLED "RESTORING INTEGRITY: A
STATEMENT BY THE FACULTY OF THE
UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW ON THE ALLEGATIONS
OF PLAGIARISM AND
MISREPRESENTATION IN THE SUPREME
COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various
submissions of the 37 respondent law
professors1 in response to the Resolution dated
October 19, 2010 (the Show Cause Resolution),
directing them to show cause why they should
not be disciplined as members of the Bar for
violation of specific provisions of the Code of
Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show
Cause Resolution clearly dockets this as an
administrative matter, not a special civil action
for indirect contempt under Rule 71 of the Rules
of Court, contrary to the dissenting opinion of
Associate Justice Maria Lourdes P. A. Sereno
(Justice Sereno) to the said October 19, 2010
Show Cause Resolution. Neither is this a
disciplinary proceeding grounded on an
allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice
Conchita Carpio Morales (Justice Morales) in
her dissenting opinions to both the October 19,
2010 Show Cause Resolution and the present
decision.
With the nature of this case as purely a bar
disciplinary proceeding firmly in mind, the Court
finds that with the exception of one respondent
whose compliance was adequate and another
who manifested he was not a member of the
Philippine Bar, the submitted explanations,
being mere denials and/or tangential to the
issues at hand, are decidedly unsatisfactory.
The proffered defenses even more urgently
behoove this Court to call the attention of
respondent law professors, who are members of
the Bar, to the relationship of their duties as
such under the Code of Professional
Responsibility to their civil rights as citizens and
academics in our free and democratic republic.
The provisions of the Code of Professional
Responsibility involved in this case are as
follows:
CANON 1 — A lawyer shall uphold the
constitution, obey the laws of the land and
promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet
activities aimed at defiance of the law or at
lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness
and good faith to the court.
Rule 10.01 - A lawyer shall not do any
falsehood, nor consent to the doing of any in
court; nor shall he mislead, or allow the Court to
be misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly
misquote or misrepresent the contents of paper,
the language or the argument of opposing
counsel, or the text of a decision or authority, or
knowingly cite as law a provision already
rendered inoperative by repeal or amendment,
or assert as a fact that which has not been
proved.
Rule 10.03 - A lawyer shall observe the rules of
procedure and shall not misuse them to defeat
the ends of justice.
CANON 11 — A lawyer shall observe and
maintain the respect due to the courts and to
judicial officers and should insist on similar
conduct by others.
RULE 11.05 A lawyer shall submit grievances
against a Judge to the proper authorities only.
CANON 13 — A lawyer shall rely upon the
merits of his cause and refrain from any
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 40
impropriety which tends to influence, or gives
the appearance of influencing the court.
Established jurisprudence will undeniably
support our view that when lawyers speak their
minds, they must ever be mindful of their sworn
oath to observe ethical standards of their
profession, and in particular, avoid foul and
abusive language to condemn the Supreme
Court, or any court for that matter, for a decision
it has rendered, especially during the pendency
of a motion for such decision’s reconsideration.
The accusation of plagiarism against a member
of this Court is not the real issue here but rather
this plagiarism issue has been used to deflect
everyone’s attention from the actual concern of
this Court to determine by respondents’
explanations whether or not respondent
members of the Bar have crossed the line of
decency and acceptable professional conduct
and speech and violated the Rules of Court
through improper intervention or interference as
third parties to a pending case. Preliminarily, it
should be stressed that it was respondents
themselves who called upon the Supreme Court
to act on their Statement,2 which they formally
submitted, through Dean Marvic M.V.F. Leonen
(Dean Leonen), for the Court’s proper
disposition. Considering the defenses of
freedom of speech and academic freedom
invoked by the respondents, it is worth
discussing here that the legal reasoning used in
the past by this Court to rule that freedom of
expression is not a defense in administrative
cases against lawyers for using intemperate
speech in open court or in court submissions
can similarly be applied to respondents’
invocation of academic freedom. Indeed, it is
precisely because respondents are not merely
lawyers but lawyers who teach law and mould
the minds of young aspiring attorneys that
respondents’ own non-observance of the Code
of Professional Responsibility, even if
purportedly motivated by the purest of
intentions, cannot be ignored nor glossed over
by this Court.
To fully appreciate the grave repercussions of
respondents’ actuations, it is apropos to revisit
the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate
Justice Mariano del Castillo (Justice Del
Castillo) in Vinuya, et al. v. Executive Secretary
(G.R. No. 162230) was promulgated. On May
31, 2010, the counsel3 for Vinuya, et al. (the
"Malaya Lolas"), filed a Motion for
Reconsideration of the Vinuya decision, raising
solely the following grounds:
I. Our own constitutional and jurisprudential
histories reject this Honorable Courts’ (sic)
assertion that the Executive’s foreign policy
prerogatives are virtually unlimited; precisely,
under the relevant jurisprudence and
constitutional provisions, such prerogatives are
proscribed by international human rights and
humanitarian standards, including those
provided for in the relevant international
conventions of which the Philippines is a party.4
II. This Honorable Court has confused
diplomatic protection with the broader, if
fundamental, responsibility of states to protect
the human rights of its citizens – especially
where the rights asserted are subject of erga
omnes obligations and pertain to jus cogens
norms.5
On July 19, 2010,6 counsel for the Malaya
Lolas, Attys. H. Harry L. Roque, Jr. (Atty.
Roque) and Romel Regalado Bagares (Atty.
Bagares), filed a Supplemental Motion for
Reconsideration in G.R. No. 162230, where
they posited for the first time their charge of
plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among
other arguments, Attys. Roque and Bagares
asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY
IMPROPER FOR THIS HONORABLE
COURT’S JUDGMENT OF APRIL 28, 2010 TO
PLAGIARIZE AT LEAST THREE SOURCES –
AN ARTICLE PUBLISHED IN 2009 IN THE
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 41
YALE LAW JOURNAL OF INTERNATIONAL
LAW, A BOOK PUBLISHED BY THE
CAMBRIDGE UNIVERSITY PRESS IN 2005
AND AN ARTICLE PUBLISHED IN 2006 IN
THE CASE WESTERN RESERVE JOURNAL
OF INTERNATIONAL LAW – AND MAKE IT
APPEAR THAT THESE SOURCES SUPPORT
THE JUDGMENT’S ARGUMENTS FOR
DISMISSING THE INSTANT PETITION WHEN
IN TRUTH, THE PLAGIARIZED SOURCES
EVEN MAKE A STRONG CASE FOR THE
PETITION’S CLAIMS.7
They also claimed that "[i]n this controversy, the
evidence bears out the fact not only of extensive
plagiarism but of (sic) also of twisting the true
intents of the plagiarized sources by the
ponencia to suit the arguments of the assailed
Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the
works allegedly plagiarized in the Vinuya
decision were namely: (1) Evan J. Criddle and
Evan Fox-Decent’s article "A Fiduciary Theory
of Jus Cogens;"9 (2) Christian J. Tams’ book
Enforcing Erga Omnes Obligations in
International Law;10 and (3) Mark Ellis’ article
"Breaking the Silence: On Rape as an
International Crime."11
On the same day as the filing of the
Supplemental Motion for Reconsideration on
July 19, 2010, journalists Aries C. Rufo and
Purple S. Romero posted an article, entitled "SC
justice plagiarized parts of ruling on comfort
women," on the Newsbreak website.12 The
same article appeared on the GMA News TV
website also on July 19, 2010.13
On July 22, 2010, Atty. Roque’s column, entitled
"Plagiarized and Twisted," appeared in the
Manila Standard Today.14 In the said column,
Atty. Roque claimed that Prof. Evan Criddle,
one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed
that his work, co-authored with Prof. Evan Fox-
Decent, had been plagiarized. Atty. Roque
quoted Prof. Criddle’s response to the post by
Julian Ku regarding the news report15 on the
alleged plagiarism in the international law blog,
Opinio Juris. Prof. Criddle responded to Ku’s
blog entry in this wise:
The newspaper’s16 [plagiarism] claims are
based on a motion for reconsideration filed
yesterday with the Philippine Supreme Court
yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplementa
l-motion-alleging-plagiarism-in-the-supreme-
court/
The motion suggests that the Court’s decision
contains thirty-four sentences and citations that
are identical to sentences and citations in my
2009 YJIL article (co-authored with Evan Fox-
Decent). Professor Fox-Decent and I were
unaware of the petitioners’ [plagiarism]
allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect
of the court’s jus cogens discussion is that it
implies that the prohibitions against crimes
against humanity, sexual slavery, and torture
are not jus cogens norms. Our article
emphatically asserts the opposite. The
Supreme Court’s decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/20
10/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo
wrote to his colleagues on the Court in reply to
the charge of plagiarism contained in the
Supplemental Motion for Reconsideration.18
In a letter dated July 23, 2010, another
purportedly plagiarized author in the Vinuya
decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has
come to my attention in the last few days.
Much as I regret to raise this matter before your
esteemed Court, I am compelled, as a question
of the integrity of my work as an academic and
as an advocate of human rights and
humanitarian law, to take exception to the
possible unauthorized use of my law review
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 42
article on rape as an international crime in your
esteemed Court’s Judgment in the case of
Vinuya et al. v. Executive Secretary et al. (G.R.
No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the
issue of possible plagiarism by the Philippine
chapter of the Southeast Asia Media Legal
Defence Initiative (SEAMLDI),19 an affiliate of
the London-based Media Legal Defence
Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part
of the extensive discussion in footnote 65, pp.
27-28, of the said Judgment of your esteemed
Court. I am also concerned that your esteemed
Court may have misread the arguments I made
in the article and employed them for cross
purposes. This would be ironic since the article
was written precisely to argue for the
appropriate legal remedy for victims of war
crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in
the Case Western Reserve Journal of
International Law in 2006 has been made
available to your esteemed Court. I trust that
your esteemed Court will take the time to
carefully study the arguments I made in the
article.
I would appreciate receiving a response from
your esteemed Court as to the issues raised by
this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on
July 27, 2010, the Court formed the Committee
on Ethics and Ethical Standards (the Ethics
Committee) pursuant to Section 13, Rule 2 of
the Internal Rules of the Supreme Court. In an
En Banc Resolution also dated July 27, 2010,
the Court referred the July 22, 2010 letter of
Justice Del Castillo to the Ethics Committee.
The matter was subsequently docketed as A.M.
No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee
required Attys. Roque and Bagares to comment
on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27,
2010, entitled "Restoring Integrity: A Statement
by the Faculty of the University of the
Philippines College of Law on the Allegations of
Plagiarism and Misrepresentation in the
Supreme Court" (the Statement), was posted in
Newsbreak’s website22 and on Atty. Roque’s
blog.23 A report regarding the statement also
appeared on various on-line news sites, such as
the GMA News TV24 and the Sun Star25 sites,
on the same date. The statement was likewise
posted at the University of the Philippines
College of Law’s bulletin board allegedly on
August 10, 201026 and at said college’s
website.27
On August 11, 2010, Dean Leonen submitted a
copy of the Statement of the University of the
Philippines College of Law Faculty (UP Law
faculty) to the Court, through Chief Justice
Renato C. Corona (Chief Justice Corona). The
cover letter dated August 10, 2010 of Dean
Leonen read:
The Honorable
Supreme Court of the Republic of the
Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the
case of
Vinuya v Executive
Secretary
Your Honors:
We attach for your information and proper
disposition a statement signed by thirty[-]eight
(38)28members of the faculty of the UP College
of Law. We hope that its points could be
considered by the Supreme Court en banc.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 43
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the
above-quoted letter did not contain the actual
signatures of the alleged signatories but only
stated the names of 37 UP Law professors with
the notation (SGD.) appearing beside each
name. For convenient reference, the text of the
UP Law faculty Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM
AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been
committed against the brave Filipinas who had
suffered abuse during a time of war. After they
courageously came out with their very personal
stories of abuse and suffering as "comfort
women", waited for almost two decades for any
meaningful relief from their own government as
well as from the government of Japan, got their
hopes up for a semblance of judicial recourse in
the case of Vinuya v. Executive Secretary, G.R.
No. 162230 (28 April 2010), they only had
these hopes crushed by a singularly
reprehensible act of dishonesty and
misrepresentation by the Highest Court of the
land.
It is within this frame that the Faculty of the
University of the Philippines College of Law
views the charge that an Associate Justice of
the Supreme Court committed plagiarism and
misrepresentation in Vinuya v. Executive
Secretary. The plagiarism and
misrepresentation are not only affronts to the
individual scholars whose work have been
appropriated without correct attribution, but also
a serious threat to the integrity and credibility of
the Philippine Judicial System.
In common parlance, ‘plagiarism’ is the
appropriation and misrepresentation of another
person’s work as one’s own. In the field of
writing, it is cheating at best, and stealing at
worst. It constitutes a taking of someone else’s
ideas and expressions, including all the effort
and creativity that went into committing such
ideas and expressions into writing, and then
making it appear that such ideas and
expressions were originally created by the taker.
It is dishonesty, pure and simple. A judicial
system that allows plagiarism in any form is one
that allows dishonesty. Since all judicial
decisions form part of the law of the land, to
allow plagiarism in the Supreme Court is to
allow the production of laws by dishonest
means. Evidently, this is a complete perversion
and falsification of the ends of justice.
A comparison of the Vinuya decision and the
original source material shows that the ponente
merely copied select portions of other legal
writers’ works and interspersed them into the
decision as if they were his own, original work.
Under the circumstances, however, because
the Decision has been promulgated by the
Court, the Decision now becomes the Court’s
and no longer just the ponente’s. Thus the Court
also bears the responsibility for the Decision. In
the absence of any mention of the original
writers’ names and the publications from which
they came, the thing speaks for itself.
So far there have been unsatisfactory
responses from the ponente of this case and the
spokesman of the Court.
It is argued, for example, that the inclusion of the
footnotes from the original articles is a reference
to the ‘primary’ sources relied upon. This
cursory explanation is not acceptable, because
the original authors’ writings and the effort they
put into finding and summarizing those primary
sources are precisely the subject of plagiarism.
The inclusion of the footnotes together with
portions of their writings in fact aggravates,
instead of mitigates, the plagiarism since it
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 44
provides additional evidence of a deliberate
intention to appropriate the original authors’
work of organizing and analyzing those primary
sources.
It is also argued that the Members of the Court
cannot be expected to be familiar with all legal
and scholarly journals. This is also not
acceptable, because personal unfamiliarity with
sources all the more demands correct and
careful attribution and citation of the material
relied upon. It is a matter of diligence and
competence expected of all Magistrates of the
Highest Court of the Land.
But a far more serious matter is the objection of
the original writers, Professors Evan Criddle and
Evan Fox-Descent, that the High Court actually
misrepresents the conclusions of their
work entitled "A Fiduciary Theory of Jus
Cogens," the main source of the plagiarized
text. In this article they argue that the
classification of the crimes of rape, torture, and
sexual slavery as crimes against humanity have
attained the status of jus cogens, making it
obligatory upon the State to seek remedies on
behalf of its aggrieved citizens. Yet, the Vinuya
decision uses parts of the same article to arrive
at the contrary conclusion. This exacerbates the
intellectual dishonesty of copying works without
attribution by transforming it into an act of
intellectual fraud by copying works in order to
mislead and deceive.
The case is a potential landmark decision in
International Law, because it deals with State
liability and responsibility for personal injury and
damage suffered in a time of war, and the role
of the injured parties’ home States in the pursuit
of remedies against such injury or damage.
National courts rarely have such opportunities to
make an international impact. That the
petitioners were Filipino "comfort women" who
suffered from horrific abuse during the Second
World War made it incumbent on the Court of
last resort to afford them every solicitude. But
instead of acting with urgency on this case, the
Court delayed its resolution for almost seven
years, oblivious to the deaths of many of the
petitioners seeking justice from the Court. When
it dismissed the Vinuya petition based on
misrepresented and plagiarized materials, the
Court decided this case based on polluted
sources. By so doing, the Supreme Court added
insult to injury by failing to actually exercise its
"power to urge and exhort the Executive
Department to take up the claims of
the Vinuya petitioners. Its callous disposition,
coupled with false sympathy and nonchalance,
belies a more alarming lack of concern for even
the most basic values of decency and
respect. The reputation of the Philippine
Supreme Court and the standing of the
Philippine legal profession before other
Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than
absolute honesty in its decisions and cannot
accept excuses for failure to attain the highest
standards of conduct imposed upon all
members of the Bench and Bar because these
undermine the very foundation of its authority
and power in a democratic society. Given the
Court’s recent history and the controversy that
surrounded it, it cannot allow the charges of
such clear and obvious plagiarism to pass
without sanction as this would only further erode
faith and confidence in the judicial system. And
in light of the significance of this decision to the
quest for justice not only of Filipino women, but
of women elsewhere in the world who have
suffered the horrors of sexual abuse and
exploitation in times of war, the Court cannot
coldly deny relief and justice to the petitioners
on the basis of pilfered and misinterpreted texts.
The Court cannot regain its credibility and
maintain its moral authority without ensuring
that its own conduct, whether collectively or
through its Members, is beyond reproach. This
necessarily includes ensuring that not only the
content, but also the processes of preparing and
writing its own decisions, are credible and
beyond question. The Vinuya Decision must be
conscientiously reviewed and not casually cast
aside, if not for the purpose of sanction, then at
least for the purpose of reflection and guidance.
It is an absolutely essential step toward the
establishment of a higher standard of
professional care and practical scholarship in
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 45

the Bench and Bar, which are critical to recurrence of similar acts, and to provide clear
improving the system of administration of justice and concise guidance to the Bench and Bar to
in the Philippines. It is also a very crucial step in ensure only the highest quality of legal research
ensuring the position of the Supreme Court as and writing in pleadings, practice, and
the Final Arbiter of all controversies: a position adjudication.
that requires competence and integrity
completely above any and all reproach, in Malcolm Hall, University of the Philippines
accordance with the exacting demands of College of Law, Quezon City, 27 July 2010.
judicial and professional ethics.
(SGD.) MARVIC M.V.F. LEONEN
With these considerations, and bearing in mind Dean and Professor of Law
the solemn duties and trust reposed upon them
as teachers in the profession of Law, it is the
opinion of the Faculty of the University of the (SGD.)
(SGD.) FROILAN
Philippine College of Law that: PACIFICO A.
M. BACUNGAN
AGABIN
Dean (1978-
(1) The plagiarism committed in the case Dean (1989-
1983)
of Vinuya v. Executive Secretary is 1995)
unacceptable, unethical and in breach of the
high standards of moral conduct and judicial and (SGD.)
professional competence expected of the (SGD.) MERLIN SALVADOR T.
Supreme Court; M. MAGALLONA CARLOTA
Dean (1995- Dean (2005-
(2) Such a fundamental breach endangers the 1999) 2008) and
integrity and credibility of the entire Supreme Professor of Law
Court and undermines the foundations of the
Philippine judicial system by allowing implicitly
REGULAR FACULTY
the decision of cases and the establishment of
legal precedents through dubious means;
(SGD.) (SGD.) JAY L.
(3) The same breach and consequent CARMELO V. BATONGBACAL
disposition of the Vinuya case does violence to SISON Assistant
the primordial function of the Supreme Court as Professor Professor
the ultimate dispenser of justice to all those who
have been left without legal or equitable (SGD.)
recourse, such as the petitioners therein; PATRICIA R.P. (SGD.) EVELYN
SALVADOR (LEO) D.
(4) In light of the extremely serious and far- DAWAY BATTAD
reaching nature of the dishonesty and to save Associate Dean Assistant
the honor and dignity of the Supreme Court as and Associate Professor
an institution, it is necessary for the ponente of Professor
Vinuya v. Executive Secretary to resign his
position, without prejudice to any other
(SGD.) DANTE B. (SGD.) GWEN G.
sanctions that the Court may consider
GATMAYTAN DE VERA
appropriate;
Associate Assistant
Professor Professor
(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
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 46

Vinuya, et al. v. Executive Secretary et al. (G.R.

(SGD.) (SGD.) No. 162230)
THEODORE O. SOLOMON F.
TE LUMBA Hon. Renato C. Corona, Chief Justice
Assistant Assistant
Professor Professor Your Excellency,

(SGD.) FLORIN (SGD.) ROMMEL My name is Christian J. Tams, and I am a

T. HILBAY J. CASIS professor of international law at the University of
Assistant Assistant Glasgow. I am writing to you in relation to the
Professor Professor use of one of my publications in the above-
mentioned judgment of your Honourable Court.
LECTURERS
The relevant passage of the judgment is to be
found on p. 30 of your Court’s Judgment, in the
(SGD.) JOSE section addressing the concept of obligations
(SGD.) JOSE C.
GERARDO A. erga omnes. As the table annexed to this letter
LAURETA
ALAMPAY shows, the relevant sentences were taken
(SGD.) ARTHUR P. (SGD.) DINA D. almost word by word from the introductory
AUTEA LUCENARIO chapter of my book Enforcing Obligations Erga
(SGD.) ROSA MARIA (SGD.) OWEN J. Omnes in International Law (Cambridge
J. BAUTISTA LYNCH University Press 2005). I note that there is a
(SGD.) MARK R. (SGD.) ANTONIO M. generic reference to my work in footnote 69 of
BOCOBO SANTOS the Judgment, but as this is in relation to a
citation from another author (Bruno Simma)
(SGD.) DAN P. (SGD.) VICENTE V.
rather than with respect to the substantive
CALICA MENDOZA
passages reproduced in the Judgment, I do not
(SGD.) TRISTAN A. (SGD.) RODOLFO think it can be considered an appropriate form
CATINDIG NOEL S. QUIMBO of referencing.
(SGD.) SANDRA (SGD.) GMELEEN
MARIE O. CORONEL FAYE B. TOMBOC I am particularly concerned that my work should
(SGD.) ROSARIO O. (SGD.) NICHOLAS have been used to support the Judgment’s
GALLO FELIX L. TY cautious approach to the erga omnes concept.
(SGD.) CONCEPCION (SGD.) EVALYN G. In fact, a most cursory reading shows that my
L. JARDELEZA URSUA book’s central thesis is precisely the opposite:
namely that the erga omnes concept has been
(SGD.) ANTONIO (SGD.) RAUL T.
widely accepted and has a firm place in
G.M. LA VIÑA VASQUEZ
contemporary international law. Hence the
(SGD.) SUSAN D. introductory chapter notes that "[t]he present
(SGD.) CARINA C. VILLANUEVA29 study attempts to demystify aspects of the ‘very
LAFORTEZA (Underscoring mysterious’ concept and thereby to facilitate its
supplied.) implementation" (p. 5). In the same vein, the
concluding section notes that "the preceding
Meanwhile, in a letter dated August 18, 2010, chapters show that the concept is now a part of
Prof. Christian J. Tams made known his the reality of international law, established in the
sentiments on the alleged plagiarism issue to jurisprudence of courts and the practice of
the Court.30 We quote Prof. Tams’ letter here: States" (p. 309).

Glasgow, 18 August 2010 With due respect to your Honourable Court, I am

at a loss to see how my work should have been
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 47
cited to support – as it seemingly has – the
opposite approach. More generally, I am
concerned at the way in which your Honourable
Court’s Judgment has drawn on scholarly work
without properly acknowledging it.
On both aspects, I would appreciate a prompt
response from your Honourable Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque
and Atty. Bagares’ exhibits during the August
26, 2010 hearing in the ethics case against
Justice Del Castillo, the Ethics Committee noted
that Exhibit "J" (a copy of the Restoring Integrity
Statement) was not signed but merely reflected
the names of certain faculty members with the
letters (SGD.) beside the names. Thus, the
Ethics Committee directed Atty. Roque to
present the signed copy of the said Statement
within three days from the August 26 hearing.32
It was upon compliance with this directive that
the Ethics Committee was given a copy of the
signed UP Law Faculty Statement that showed
on the signature pages the names of the full
roster of the UP Law Faculty, 81 faculty
members in all. Indubitable from the actual
signed copy of the Statement was that only 37
of the 81 faculty members appeared to have
signed the same. However, the 37 actual
signatories to the Statement did not include
former Supreme Court Associate Justice
Vicente V. Mendoza (Justice Mendoza) as
represented in the previous copies of the
Statement submitted by Dean Leonen and Atty.
Roque. It also appeared that Atty. Miguel R.
Armovit (Atty. Armovit) signed the Statement
although his name was not included among the
signatories in the previous copies submitted to
the Court. Thus, the total number of ostensible
signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the
Court en banc since the same Statement,
having been formally submitted by Dean
Leonen on August 11, 2010, was already under
consideration by the Court.33
In a Resolution dated October 19, 2010, the
Court en banc made the following observations
regarding the UP Law Faculty Statement:
Notably, while the statement was meant to
reflect the educators’ opinion on the allegations
of plagiarism against Justice Del Castillo, they
treated such allegation not only as an
established fact, but a truth. In particular, they
expressed dissatisfaction over Justice Del
Castillo’s explanation on how he cited the
primary sources of the quoted portions and yet
arrived at a contrary conclusion to those of the
authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore
certain remarks which raise concern for the
Court. The opening sentence alone is a grim
preamble to the institutional attack that lay
ahead. It reads:
An extraordinary act of injustice has again been
committed against the brave Filipinas who had
suffered abuse during a time of war.
The first paragraph concludes with a reference
to the decision in Vinuya v. Executive Secretary
as a reprehensible act of dishonesty and
misrepresentation by the Highest Court of the
land. x x x.
The insult to the members of the Court
was aggravated by imputations of deliberately
delaying the resolution of the said case,
its dismissal on the basis of "polluted sources,"
the Court’s alleged indifference to the cause of
petitioners [in the Vinuya case], as well as
the supposed alarming lack of concern of the
members of the Court for even the most basic
values of decency and respect.34 x x x.
(Underscoring ours.)
In the same Resolution, the Court went on to
state that:
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 48
While most agree that the right to criticize the
judiciary is critical to maintaining a free and
democratic society, there is also a general
consensus that healthy criticism only goes so
far. Many types of criticism leveled at the
judiciary cross the line to become harmful and
irresponsible attacks. These potentially
devastating attacks and unjust criticism can
threaten the independence of the judiciary. The
court must "insist on being permitted to proceed
to the disposition of its business in an orderly
manner, free from outside interference
obstructive of its functions and tending to
embarrass the administration of justice."
The Court could hardly perceive any reasonable
purpose for the faculty’s less than objective
comments except to discredit the April 28, 2010
Decision in the Vinuya case and undermine the
Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As
if the case on the comfort women’s claims is not
controversial enough, the UP Law faculty would
fan the flames and invite resentment against a
resolution that would not reverse the said
decision. This runs contrary to their obligation
as law professors and officers of the Court to be
the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the
oath they have taken as attorneys, and not to
promote distrust in the administration of
justice.35 x x x. (Citations omitted; emphases
and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F.
Leonen, Froilan M. Bacungan, Pacifico A.
Agabin, Merlin M. Magallona, Salvador T.
Carlota, Carmelo V. Sison, Patricia R.P.
Salvador Daway, Dante B. Gatmaytan,
Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G.
De Vera, Solomon F. Lumba, Rommel J. Casis,
Jose Gerardo A. Alampay, Miguel R. Armovit,
Arthur P. Autea, Rosa Maria J. Bautista, Mark
R. Bocobo, Dan P. Calica, Tristan A. Catindig,
Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Viña,
Carina C. Laforteza, Jose C. Laureta, Owen J.
Lynch, Rodolfo Noel S. Quimbo, Antonio M.
Santos, Gmeleen Faye B. Tomboc, Nicholas
Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez,
Susan D. Villanueva and Dina D. Lucenario to
show cause, within ten (10) days from receipt of
the copy of the Resolution, why they should not
be disciplined as members of the Bar for
violation of Canons 1,36 11 and 13 and Rules
1.02 and 11.05 of the Code of Professional
Responsibility.37
Dean Leonen was likewise directed to show
cause within the same period why he should not
be disciplinarily dealt with for violation of Canon
10, Rules 10.01, 10.02 and 10.03 for submitting
through his letter dated August 10, 2010, during
the pendency of G.R. No. 162230 and of the
investigation before the Ethics Committee, for
the consideration of the Court en banc, a
dummy which is not a true and faithful
reproduction of the UP Law Faculty
Statement.38
In the same Resolution, the present controversy
was docketed as a regular administrative
matter.
Summaries of the Pleadings Filed by
Respondents in Response to the October 19,
2010 Show Cause Resolution
On November 19, 2010, within the extension for
filing granted by the Court, respondents filed the
following pleadings:
(1) Compliance dated November 18, 2010 by
counsels for 35 of the 37 respondents,
excluding Prof. Owen Lynch and Prof. Raul T.
Vasquez, in relation to the charge of violation of
Canons 1, 11 and 13 and Rules 1.02 and 11.05
of the Code of Professional Responsibility;
(2) Compliance and Reservation dated
November 18, 2010 by Prof. Rosa Maria T.
Juan-Bautista in relation to the same charge in
par. (1);
(3) Compliance dated November 19, 2010 by
counsel for Prof. Raul T. Vasquez in relation to
the same charge in par. (1);
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 49
(4) Compliance dated November 19, 2010 by
counsels for Dean Leonen, in relation to the
charge of violation of Canon 10, Rules 10.01,
10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by
counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents
(Excluding Prof. Owen Lynch and Prof. Raul
Vasquez)
Thirty-five (35) of the respondent UP Law
professors filed on November 19, 2010 a
common compliance which was signed by their
respective counsels (the Common
Compliance). In the "Preface" of said Common
Compliance, respondents stressed that "[they]
issued the Restoring Integrity Statement in the
discharge of the ‘solemn duties and trust
reposed upon them as teachers in the
profession of law,’ and as members of the Bar
to speak out on a matter of public concern and
one that is of vital interest to them."39 They
likewise alleged that "they acted with the purest
of intentions" and pointed out that "none of them
was involved either as party or counsel"40 in the
Vinuya case. Further, respondents "note with
concern" that the Show Cause Resolution’s
findings and conclusions were "a prejudgment –
that respondents indeed are in contempt, have
breached their obligations as law professors
and officers of the Court, and have violated
‘Canons [1], 11 and 13 and Rules 1.02 and
11.05 of the Code of Professional
Responsibility."41
By way of explanation, the respondents
emphasized the following points:
(a) Respondents’ alleged noble intentions
In response to the charges of failure to observe
due respect to legal processes42 and the
courts43 and of tending to influence, or giving the
appearance of influencing the Court44 in the
issuance of their Statement, respondents assert
that their intention was not to malign the Court
but rather to defend its integrity and credibility
and to ensure continued confidence in the legal
system. Their noble motive was purportedly
evidenced by the portion of their Statement
"focusing on constructive
action." Respondents’ call in the Statement for
45
the Court "to provide clear and concise
guidance to the Bench and Bar to ensure only
the highest quality of legal research and writing
in adjudication," was reputedly "in keeping with
strictures enjoining lawyers to ‘participate in the
development of the legal system by initiating or
supporting efforts in law reform and in the
improvement of the administration of justice’"
(under Canon 4 of the Code of Professional
Responsibility) and to "promote respect for the
law and legal processes" (under Canon 1,
id.).46 Furthermore, as academics, they
allegedly have a "special interest and duty to
vigilantly guard against plagiarism and
misrepresentation because these unwelcome
occurrences have a profound impact in the
academe, especially in our law schools."47
Respondents further "[called] on this Court not
to misconstrue the Restoring Integrity
Statement as an ‘institutional attack’ x x x on the
basis of its first and ninth paragraphs."48 They
further clarified that at the time the Statement
was allegedly drafted and agreed upon, it
appeared to them the Court "was not going to
take any action on the grave and startling
allegations of plagiarism and
misrepresentation."49 According to
respondents, the bases for their belief were (i)
the news article published on July 21, 2010 in
the Philippine Daily Inquirer wherein Court
Administrator Jose Midas P. Marquez was
reported to have said that Chief Justice Corona
would not order an inquiry into the matter;50 and
(ii) the July 22, 2010 letter of Justice Del Castillo
which they claimed "did nothing but to downplay
the gravity of the plagiarism and
misrepresentation 51
charges." Respondents
claimed that it was their perception of the
Court’s indifference to the dangers posed by the
plagiarism allegations against Justice Del
Castillo that impelled them to urgently take a
public stand on the issue.
(b) The "correctness" of respondents’ position
that Justice Del Castillo committed plagiarism
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 50
and should be held accountable in accordance
with the standards of academic writing
A significant portion of the Common Compliance
is devoted to a discussion of the merits of
respondents’ charge of plagiarism against
Justice Del Castillo. Relying on University of the
Philippines Board of Regents v. Court of
Appeals52 and foreign materials and
jurisprudence, respondents essentially argue
that their position regarding the plagiarism
charge against Justice Del Castillo is the correct
view and that they are therefore justified in
issuing their Restoring Integrity Statement.
Attachments to the Common Compliance
included, among others: (i) the letter dated
October 28, 2010 of Peter B. Payoyo, LL.M,
Ph.D.,53 sent to Chief Justice Corona through
Justice Sereno, alleging that the Vinuya
decision likewise lifted without proper attribution
the text from a legal article by Mariana Salazar
Albornoz that appeared in the Anuario Mexicano
De Derecho Internacional and from an
International Court of Justice decision; and (ii) a
2008 Human Rights Law Review Article entitled
"Sexual Orientation, Gender Identity and
International Human Rights Law" by Michael
O’Flaherty and John Fisher, in support of their
charge that Justice Del Castillo also lifted
passages from said article without proper
attribution, but this time, in his ponencia in Ang
Ladlad LGBT Party v. Commission on
Elections.54
(c) Respondents’ belief that they are being
"singled out" by the Court when others have
likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents
likewise asserted that "the plagiarism and
misrepresentation allegations are legitimate
public issues."55 They identified various
published reports and opinions, in agreement
with and in opposition to the stance of
respondents, on the issue of plagiarism,
specifically:
(i) Newsbreak report on July 19, 2010 by Aries
Rufo and Purple Romero;56
(ii) Column of Ramon Tulfo which appeared in
the Philippine Daily Inquirer on July 24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer
published on July 25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del
Castillo published in the Philippine Star on July
30, 2010;59
(v) Column of Former Intellectual Property
Office Director General Adrian Cristobal, Jr.
published in the Business Mirror on August 5,
2010;60
(vi) Column of Former Chief Justice Artemio
Panganiban published in the Philippine Daily
Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis
Pangilinan’s call for the resignation of Justice
Del Castillo published in the Daily Tribune and
the Manila Standard Today on July 31, 2010;62
(viii) News reports regarding the statement of
Dean Cesar Villanueva of the Ateneo de Manila
University School of Law on the calls for the
resignation of Justice Del Castillo published in
The Manila Bulletin, the Philippine Star and the
Business Mirror on August 11, 2010;63
(ix) News report on expressions of support for
Justice Del Castillo from a former dean of the
Pamantasan ng Lungsod ng Maynila, the
Philippine Constitutional Association, the
Judges Association of Bulacan and the
Integrated Bar of the Philippines – Bulacan
Chapter published in the Philippine Star on
August 16, 2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan
University College of Law published in the
Philippine Daily Inquirer on August 10, 2010.65
In view of the foregoing, respondents alleged
that this Court has singled them out for
sanctions and the charge in the Show Cause
Resolution dated October 19, 2010 that they
may have violated specific canons of the Code
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 51
of Professional Responsibility is unfair and
without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common
Compliance, respondents briefly discussed their
position that in issuing their Statement, "they
should be seen as not only to be performing
their duties as members of the Bar, officers of
the court, and teachers of law, but also as
citizens of a democracy who are constitutionally
protected in the exercise of free speech."66 In
support of this contention, they cited United
States v. Bustos,67In re: Atty. Vicente Raul
Almacen, 68 and In the Matter of Petition for
Declaratory Relief Re: Constitutionality of
Republic Act 4880, Gonzales v. Commission on
Elections.69
(e) Academic freedom
In paragraphs 31 to 34 of the Common
Compliance, respondents asserted that their
Statement was also issued in the exercise of
their academic freedom as teachers in an
institution of higher learning. They relied on
Section 5 of the University of the Philippines
Charter of 2008 which provided that "[t]he
national university has the right and
responsibility to exercise academic freedom."
They likewise adverted to Garcia v. The Faculty
Admission Committee, Loyola School of
Theology70 which they claimed recognized the
extent and breadth of such freedom as to
encourage a free and healthy discussion and
communication of a faculty member’s field of
study without fear of reprisal. It is respondents’
view that had they remained silent on the
plagiarism issue in the Vinuya decision they
would have "compromised [their] integrity and
credibility as teachers; [their silence] would have
created a culture and generation of students,
professionals, even lawyers, who would lack the
competence and discipline for research and
pleading; or, worse, [that] their silence would
have communicated to the public that plagiarism
and misrepresentation are inconsequential
matters and that intellectual integrity has no
bearing or relevance to one’s conduct."71
In closing, respondents’ Common Compliance
exhorted this Court to consider the following
portion of the dissenting opinion of Justice
George A. Malcolm in Salcedo v.
Hernandez,72 to wit:
Respect for the courts can better be obtained by
following a calm and impartial course from the
bench than by an attempt to compel respect for
the judiciary by chastising a lawyer for a too
vigorous or injudicious exposition of his side of
a case. The Philippines needs lawyers of
independent thought and courageous bearing,
jealous of the interests of their clients and
unafraid of any court, high or low, and the courts
will do well tolerantly to overlook occasional
intemperate language soon to be regretted by
the lawyer which affects in no way the outcome
of a case.73
On the matter of the reliefs to which
respondents believe they are entitled, the
Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy,
professors of law, members of the Bar and
officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse
findings in the Show Cause Resolution,
including its conclusions that respondents have:
[a] breached their "obligation as law professors
and officers of the Court to be the first to uphold
the dignity and authority of this Court, … and not
to promote distrust in the administration of
justice;" and [b] committed "violations of Canons
10, 11, and 13 and Rules 1.02 and 11.05 of the
Code of Professional Responsibility."
B. In the event the Honorable Court declines to
grant the foregoing prayer, respondents
respectfully pray, in the alternative, and in
assertion of their due process rights, that before
final judgment be rendered:
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 52
1. the Show Cause Resolution be set for
hearing;
2. respondents be given a fair and full
opportunity to refute and/or address the findings
and conclusions of fact in the Show Cause
Resolution (including especially the finding and
conclusion of a lack of malicious intent), and in
that connection, that appropriate procedures
and schedules for hearing be adopted and
defined that will allow them the full and fair
opportunity to require the production of and to
present testimonial, documentary, and object
evidence bearing on the plagiarism and
misrepresentation issues in Vinuya v. Executive
Secretary (G.R. No. 162230, April 28, 2010) and
In the Matter of the Charges of Plagiarism, etc.
Against Associate Justice Mariano C. Del
Castillo (A.M. No. 10-7-17-SC); and
3. respondents be given fair and full access to
the transcripts, records, drafts, reports and
submissions in or relating to, and accorded the
opportunity to cross-examine the witnesses who
were or could have been called in In The Matter
of the Charges of Plagiarism, etc. Against
Associate Justice Mariano C. Del Castillo (A.M.
No. 10-7-17-SC).74
Compliance and Reservation of Prof. Rosa
Maria T. Juan-Bautista
Although already included in the Common
Compliance, Prof. Rosa Maria T. Juan-Bautista
(Prof. Juan-Bautista) filed a separate
Compliance and Reservation (the Bautista
Compliance), wherein she adopted the
allegations in the Common Compliance with
some additional averments.
Prof. Juan-Bautista reiterated that her due
process rights allegedly entitled her to challenge
the findings and conclusions in the Show Cause
Resolution. Furthermore, "[i]f the Restoring
Integrity Statement can be considered indirect
contempt, under Section 3 of Rule 71 of the
Rules of Court, such may be punished only after
charge and hearing."75
Prof. Juan-Bautista stressed that respondents
signed the Statement "in good faith and with the
best intentions to protect the Supreme Court by
asking one member to resign."76 For her part,
Prof. Juan-Bautista intimated that her deep
disappointment and sadness for the plight of the
Malaya Lolas were what motivated her to sign
the Statement.
On the point of academic freedom, Prof. Juan-
Bautista cited jurisprudence77 which in her view
highlighted that academic freedom is
constitutionally guaranteed to institutions of
higher learning such that schools have the
freedom to determine for themselves who may
teach, what may be taught, how lessons shall
be taught and who may be admitted to study
and that courts have no authority to interfere in
the schools’ exercise of discretion in these
matters in the absence of grave abuse of
discretion. She claims the Court has
encroached on the academic freedom of the
University of the Philippines and other
universities on their right to determine how
lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the
Statement was an exercise of respondents’
constitutional right to freedom of expression that
can only be curtailed when there is grave and
imminent danger to public safety, public morale,
public health or other legitimate public interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez
(Prof. Vasquez) filed a separate Compliance by
registered mail (the Vasquez Compliance). In
said Compliance, Prof. Vasquez narrated the
circumstances surrounding his signing of the
Statement. He alleged that the Vinuya decision
was a topic of conversation among the UP Law
faculty early in the first semester (of academic
year 2010-11) because it reportedly contained
citations not properly attributed to the sources;
that he was shown a copy of the Statement by a
clerk of the Office of the Dean on his way to his
class; and that, agreeing in principle with the
main theme advanced by the Statement, he
signed the same in utmost good faith.79
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 53
In response to the directive from this Court to
explain why he should not be disciplined as a
member of the Bar under the Show Cause
Resolution, Prof. Vasquez also took the position
that a lawyer has the right, like all citizens in a
democratic society, to comment on acts of
public officers. He invited the attention of the
Court to the following authorities: (a) In re:
Vicente Sotto;80 (b) In re: Atty. Vicente Raul
Almacen;81 and (c) a discussion appearing in
American Jurisprudence (AmJur) 2d.82 He
claims that he "never had any intention to unduly
influence, nor entertained any illusion that he
could or should influence, [the Court] in its
disposition of the Vinuya case"83 and that
"attacking the integrity of [the Court] was the
farthest thing on respondent’s mind when he
signed the Statement."84Unlike his colleagues,
who wish to impress upon this Court the
purported homogeneity of the views on what
constitutes plagiarism, Prof. Vasquez stated in
his Compliance that:
13. Before this Honorable Court rendered its
Decision dated 12 October 2010, some
espoused the view that willful and deliberate
intent to commit plagiarism is an essential
element of the same. Others, like respondent,
were of the opinion that plagiarism is committed
regardless of the intent of the perpetrator, the
way it has always been viewed in the academe.
This uncertainty made the issue a fair topic for
academic discussion in the College. Now, this
Honorable Court has ruled that plagiarism
presupposes deliberate intent to steal another’s
work and to pass it off as one’s
own.85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez
was willing to concede that he "might have been
remiss in correctly assessing the effects of such
language [in the Statement] and could have
been more careful."86 He ends his discussion
with a respectful submission that with his
explanation, he has faithfully complied with the
Show Cause Resolution and that the Court will
rule that he had not in any manner violated his
oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen
regarding the charge of violation of Canon 10 in
relation to his submission of a "dummy" of the
UP Law Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that
there were three drafts/versions of the UP Law
Faculty Statement, which he described as
follows:
"Restoring Integrity I" which bears the entire
roster of the faculty of the UP College of Law in
its signing pages, and the actual signatures of
the thirty-seven (37) faculty members subject of
the Show Cause Resolution. A copy was filed
with the Honorable Court by Roque and
Butuyan on 31 August 2010 in A.M. No. 10-7-
17-SC.
"Restoring Integrity II" which does not bear
any actual physical signature, but which reflects
as signatories the names of thirty-seven (37)
members of the faculty with the notation
"(SGD.)". A copy of Restoring Integrity II was
publicly and physically posted in the UP College
of Law on 10 August 2010. Another copy of
Restoring Integrity II was also officially received
by the Honorable Court from the Dean of the UP
College of Law on 11 August 2010, almost three
weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting
of Restoring Integrity II, and which presently
serves as the official file copy of the Dean’s
Office in the UP College of Law that may be
signed by other faculty members who still wish
to. It bears the actual signatures of the thirty-
seven original signatories to Restoring Integrity
I above their printed names and the notation
"(SGD.") and, in addition, the actual signatures
of eight (8) other members of the faculty above
their handwritten or typewritten names.87
For purposes of this discussion, only Restoring
Integrity I and Restoring Integrity II are relevant
since what Dean Leonen has been directed to
explain are the discrepancies in the signature
pages of these two documents. Restoring
Integrity III was never submitted to this Court.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 54
On how Restoring Integrity I and Restoring
Integrity II were prepared and came about,
Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of
a relatively broad agreement in the faculty on a
draft statement, Dean Leonen instructed his
staff to print the draft and circulate it among the
faculty members so that those who wished to
may sign. For this purpose, the staff encoded
the law faculty roster to serve as the printed
draft’s signing pages. Thus did the first printed
draft of the Restoring Integrity Statement,
Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring
Integrity Statement, Dean Leonen was unaware
that a Motion for Reconsideration of the
Honorable Court’s Decision in Vinuya vs.
Executive Secretary (G.R. No. 162230, 28 April
2010) had already been filed, or that the
Honorable Court was in the process of
convening its Committee on Ethics and Ethical
Standards in A.M. No. 10-7-17-SC.
2.4. Dean Leonen’s staff then circulated
Restoring Integrity I among the members of the
faculty. Some faculty members visited the
Dean’s Office to sign the document or had it
brought to their classrooms in the College of
Law, or to their offices or residences. Still other
faculty members who, for one reason or
another, were unable to sign Restoring Integrity
I at that time, nevertheless conveyed to Dean
Leonen their assurances that they would sign as
soon as they could manage.
2.5. Sometime in the second week of August,
judging that Restoring Integrity I had been
circulated long enough, Dean Leonen instructed
his staff to reproduce the statement in a style
and manner appropriate for posting in the
College of Law. Following his own established
practice in relation to significant public
issuances, he directed them to reformat the
signing pages so that only the names of those
who signed the first printed draft would appear,
together with the corresponding "(SGD.)" note
following each name. Restoring Integrity II thus
came into being.88
According to Dean Leonen, the "practice of
eliminating blanks opposite or above the names
of non-signatories in the final draft of significant
public issuances, is meant not so much for
aesthetic considerations as to secure the
integrity of such documents."89 He likewise
claimed that "[p]osting statements with blanks
would be an open invitation to vandals and
pranksters."90
With respect to the inclusion of Justice
Mendoza’s name as among the signatories in
Restoring Integrity II when in fact he did not sign
Restoring Integrity I, Dean Leonen attributed the
mistake to a miscommunication involving his
administrative officer. In his Compliance, he
narrated that:
2.7. Upon being presented with a draft of
Restoring Integrity II with the reformatted
signing pages, Dean Leonen noticed the
inclusion of the name of Justice Mendoza
among the "(SGD.)" signatories. As Justice
Mendoza was not among those who had
physically signed Restoring Integrity I when it
was previously circulated, Dean Leonen called
the attention of his staff to the inclusion of the
Justice’s name among the "(SGD.)" signatories
in Restoring Integrity II.
2.8. Dean Leonen was told by his administrative
officer that she had spoken to Justice Mendoza
over the phone on Friday, 06 August 2010.
According to her, Justice Mendoza had
authorized the dean to sign the Restoring
Integrity Statement for him as he agreed
fundamentally with its contents. Also according
to her, Justice Mendoza was unable at that time
to sign the Restoring Integrity Statement himself
as he was leaving for the United States the
following week. It would later turn out that this
account was not entirely
accurate.91(Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to
doubt his administrative officer, however, and so
placed full reliance on her account"92 as "[t]here
were indeed other faculty members who had
also authorized the Dean to indicate that they
were signatories, even though they were at that
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 55
time unable to affix their signatures physically to
the document."93
However, after receiving the Show Cause
Resolution, Dean Leonen and his staff reviewed
the circumstances surrounding their effort to
secure Justice Mendoza’s signature. It would
turn out that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the
dean’s staff talked to Justice Mendoza on the
phone, he [Justice Mendoza] indeed initially
agreed to sign the Restoring Integrity Statement
as he fundamentally agreed with its contents.
However, Justice Mendoza did not exactly say
that he authorized the dean to sign the
Restoring Integrity Statement. Rather, he
inquired if he could authorize the dean to sign it
for him as he was about to leave for the United
States. The dean’s staff informed him that they
would, at any rate, still try to bring the Restoring
Integrity Statement to him.
2.22.2. Due to some administrative difficulties,
Justice Mendoza was unable to sign the
Restoring Integrity Statement before he left for
the U.S. the following week.
2.22.3. The staff was able to bring Restoring
Integrity III to Justice Mendoza when he went to
the College to teach on 24 September 2010, a
day after his arrival from the U.S. This time,
Justice Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen
realized the true import of the call he received
from Justice Mendoza in late September.
Indeed, Justice Mendoza confirmed that by the
time the hard copy of the Restoring Integrity
Statement was brought to him shortly after his
arrival from the U.S., he declined to sign it
because it had already become controversial. At
that time, he predicted that the Court would take
some form of action against the faculty. By then,
and under those circumstances, he wanted to
show due deference to the Honorable Court,
being a former Associate Justice and not
wishing to unduly aggravate the situation by
signing the Statement.95 (Emphases supplied.)
With respect to the omission of Atty. Armovit’s
name in the signature page of Restoring
Integrity II when he was one of the signatories
of Restoring Integrity I and the erroneous
description in Dean Leonen’s August 10, 2010
letter that the version of the Statement
submitted to the Court was signed by 38
members of the UP Law Faculty, it was
explained in the Compliance that:
Respondent Atty. Miguel Armovit physically
signed Restoring Integrity I when it was
circulated to him. However, his name was
inadvertently left out by Dean Leonen’s staff in
the reformatting of the signing pages in
Restoring Integrity II. The dean assumed that
his name was still included in the reformatted
signing pages, and so mentioned in his cover
note to Chief Justice Corona that 38 members
of the law faculty signed (the original 37 plus
Justice Mendoza.)96
Dean Leonen argues that he should not be
deemed to have submitted a dummy of the
Statement that was not a true and faithful
reproduction of the same. He emphasized that
the main body of the Statement was unchanged
in all its three versions and only the signature
pages were not the same. This purportedly is
merely "reflective of [the Statement’s] essential
nature as a ‘live’ public manifesto meant to
continuously draw adherents to its message, its
signatory portion is necessarily evolving and
dynamic x x x many other printings of [the
Statement] may be made in the future, each one
reflecting the same text but with more and more
signatories."97 Adverting to criminal law by
analogy, Dean Leonen claims that "this is not an
instance where it has been made to appear in a
document that a person has participated in an
act when the latter did not in fact so
participate"98 for he "did not misrepresent which
members of the faculty of the UP College of Law
had agreed with the Restoring Integrity
Statement proper and/or had expressed their
desire to be signatories thereto."99
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 56
In this regard, Dean Leonen believes that he
had not committed any violation of Canon 10 or
Rules 10.01 and 10.02 for he did not mislead
nor misrepresent to the Court the contents of the
Statement or the identities of the UP Law faculty
members who agreed with, or expressed their
desire to be signatories to, the Statement. He
also asserts that he did not commit any violation
of Rule 10.03 as he "coursed [the Statement]
through the appropriate channels by
transmitting the same to Honorable Chief
Justice Corona for the latter’s information and
proper disposition with the hope that its points
would be duly considered by the Honorable
Court en banc."100 Citing Rudecon Management
Corporation v. Camacho,101 Dean Leonen
posits that the required quantum of proof has
not been met in this case and that no dubious
character or motivation for the act complained of
existed to warrant an administrative sanction for
violation of the standard of honesty provided for
by the Code of Professional Responsibility.102
Dean Leonen ends his Compliance with an
enumeration of nearly identical reliefs as the
Common Compliance, including the prayers for
a hearing and for access to the records,
evidence and witnesses allegedly relevant not
only in this case but also in A.M. No. 10-7-17-
SC, the ethical investigation involving Justice
Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch
Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch)
manifests to this Court that he is not a member
of the Philippine bar; but he is a member of the
bar of the State of Minnesota. He alleges that he
first taught as a visiting professor at the UP
College of Law in 1981 to 1988 and returned in
the same capacity in 2010. He further alleges
that "[h]e subscribes to the principle, espoused
by this Court and the Supreme Court of the
United States, that ‘…[d]ebate on public issues
should be uninhibited, robust and wide open
and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on
government and public officials."103 In signing
the Statement, he believes that "the right to
speak means the right to speak
104
effectively." Citing the dissenting opinions in
Manila Public School Teachers Association v.
Laguio, Jr.,105 Prof. Lynch argued that "[f]or
speech to be effective, it must be forceful
enough to make the intended recipients
listen"106 and "[t]he quality of education would
deteriorate in an atmosphere of repression,
when the very teachers who are supposed to
provide an example of courage and self-
assertiveness to their pupils can speak only in
timorous whispers."107 Relying on the doctrine
in In the Matter of Petition for Declaratory Relief
Re: Constitutionality of Republic Act 4880,
Gonzales v. Commission on Elections,108Prof.
Lynch believed that the Statement did not pose
any danger, clear or present, of any substantive
evil so as to remove it from the protective mantle
of the Bill of Rights (i.e., referring to the
constitutional guarantee on free speech).109 He
also stated that he "has read the Compliance of
the other respondents to the Show Cause
Resolution" and that "he signed the Restoring
Integrity Statement for the same reasons they
did."110
ISSUES
Based on the Show Cause Resolution and a
perusal of the submissions of respondents, the
material issues to be resolved in this case are
as follows:
1.) Does the Show Cause Resolution deny
respondents their freedom of expression?
2.) Does the Show Cause Resolution violate
respondents’ academic freedom as law
professors?
3.) Do the submissions of respondents
satisfactorily explain why they should not be
disciplined as Members of the Bar under
Canons 1, 11, and 13 and Rules 1.02 and 11.05
of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean
Leonen satisfactorily explain why he should not
be disciplined as a Member of the Bar under
Canon 10, Rules 10.01, 10.02 and 10.03?
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 57
5.) Are respondents entitled to have the Show
Cause Resolution set for hearing and in relation
to such hearing, are respondents entitled to
require the production or presentation of
evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case
(G.R. No. 162230) and the ethics case against
Justice Del Castillo (A.M. No. 10-7-17-SC) and
to have access to the records and transcripts of,
and the witnesses and evidence presented, or
could have been presented, in the ethics case
against Justice Del Castillo (A.M. No. 10-7-17-
SC)?
DISCUSSION
The Show Cause Resolution does not deny
respondents their freedom of expression.
It is respondents’ collective claim that the Court,
with the issuance of the Show Cause
Resolution, has interfered with respondents’
constitutionally mandated right to free speech
and expression. It appears that the underlying
assumption behind respondents’ assertion is
the misconception that this Court is denying
them the right to criticize the Court’s decisions
and actions, and that this Court seeks to
"silence" respondent law professors’ dissenting
view on what they characterize as a "legitimate
public issue."
This is far from the truth. A reading of the Show
Cause Resolution will plainly show that it was
neither the fact that respondents had criticized a
decision of the Court nor that they had charged
one of its members of plagiarism that motivated
the said Resolution. It was the manner of the
criticism and the contumacious language by
which respondents, who are not parties nor
counsels in the Vinuya case, have expressed
their opinion in favor of the petitioners in the said
pending case for the "proper disposition" and
consideration of the Court that gave rise to said
Resolution. The Show Cause Resolution
painstakingly enumerated the statements that
the Court considered excessive and uncalled for
under the circumstances surrounding the
issuance, publication, and later submission to
this Court of the UP Law faculty’s Restoring
Integrity Statement.
To reiterate, it was not the circumstance that
respondents expressed a belief that Justice Del
Castillo was guilty of plagiarism but rather their
expression of that belief as "not only as an
established fact, but a truth"111 when it was "[o]f
public knowledge [that there was] an ongoing
investigation precisely to determine the truth of
such allegations."112 It was also pointed out in
the Show Cause Resolution that there was a
pending motion for reconsideration of the
Vinuya decision.113 The Show Cause
Resolution made no objections to the portions of
the Restoring Integrity Statement that
respondents claimed to be "constructive" but
only asked respondents to explain those
portions of the said Statement that by no stretch
of the imagination could be considered as fair or
constructive, to wit:
Beyond this, however, the statement bore
certain remarks which raise concern for the
Court. The opening sentence alone is a grim
preamble to the institutional attack that lay
ahead. It reads:
An extraordinary act of injustice has again been
committed against the brave Filipinas who had
suffered abuse during a time of war.
The first paragraph concludes with a reference
to the decision in Vinuya v. Executive Secretary
as a reprehensible act of dishonesty and
misrepresentation by the Highest Court of the
land. x x x.
The insult to the members of the Court
was aggravated by imputations of deliberately
delaying the resolution of the said case,
its dismissal on the basis of "polluted sources,"
the Court’s alleged indifference to the cause of
petitioners [in the Vinuya case], as well as
the supposed alarming lack of concern of the
members of the Court for even the most basic
values of decency and respect.114 x x x.
(Underscoring ours.)
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 58
To be sure, the Show Cause Resolution itself
recognized respondents’ freedom of expression
when it stated that:
While most agree that the right to criticize the
judiciary is critical to maintaining a free and
democratic society, there is also a general
consensus that healthy criticism only goes so
far. Many types of criticism leveled at the
judiciary cross the line to become harmful and
irresponsible attacks. These potentially
devastating attacks and unjust criticism can
threaten the independence of the judiciary. The
court must "insist on being permitted to proceed
to the disposition of its business in an orderly
manner, free from outside interference
obstructive of its functions and tending to
embarrass the administration of justice."
The Court could hardly perceive any reasonable
purpose for the faculty’s less than objective
comments except to discredit the April 28, 2010
Decision in the Vinuya case and undermine the
Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As
if the case on the comfort women’s claims is not
controversial enough, the UP Law faculty would
fan the flames and invite resentment against a
resolution that would not reverse the said
decision. This runs contrary to their obligation
as law professors and officers of the Court to be
the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the
oath they have taken as attorneys, and not to
promote distrust in the administration of
justice.115 x x x. (Citations omitted; emphases
and underscoring supplied.)
Indeed, in a long line of cases, including those
cited in respondents’ submissions, this Court
has held that the right to criticize the courts and
judicial officers must be balanced against the
equally primordial concern that the
independence of the Judiciary be protected from
due influence or interference. In cases where
the critics are not only citizens but members of
the Bar, jurisprudence has repeatedly affirmed
the authority of this Court to discipline lawyers
whose statements regarding the courts and
fellow lawyers, whether judicial or extrajudicial,
have exceeded the limits of fair comment and
common decency.
As early as the 1935 case of Salcedo v.
Hernandez,116 the Court found Atty. Vicente J.
Francisco both guilty of contempt and liable
administratively for the following paragraph in
his second motion for reconsideration:
We should like frankly and respectfully to make
it of record that the resolution of this court,
denying our motion for reconsideration, is
absolutely erroneous and constitutes an
outrage to the rights of the petitioner Felipe
Salcedo and a mockery of the popular will
expressed at the polls in the municipality of
Tiaong, Tayabas. We wish to exhaust all the
means within our power in order that this error
may be corrected by the very court which has
committed it, because we should not want that
some citizen, particularly some voter of the
municipality of Tiaong, Tayabas, resort to the
press publicly to denounce, as he has a right to
do, the judicial outrage of which the herein
petitioner has been the victim, and because it is
our utmost desire to safeguard the prestige of
this honorable court and of each and every
member thereof in the eyes of the public. But, at
the same time we wish to state sincerely that
erroneous decisions like these, which the
affected party and his thousands of voters will
necessarily consider unjust, increase the
proselytes of 'sakdalism' and make the public
lose confidence in the administration of
justice.117 (Emphases supplied.)
The highlighted phrases were considered by the
Court as neither justified nor necessary and
further held that:
[I]n order to call the attention of the court in a
special way to the essential points relied upon
in his argument and to emphasize the force
thereof, the many reasons stated in his said
motion were sufficient and the phrases in
question were superfluous. In order to appeal to
reason and justice, it is highly improper and
amiss to make trouble and resort to threats, as
Attorney Vicente J. Francisco has done,
because both means are annoying and good
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 59
practice can never sanction them by reason of
their natural tendency to disturb and hinder the
free exercise of a serene and impartial
judgment, particularly in judicial matters, in the
consideration of questions submitted for
resolution.
There is no question that said paragraph of
Attorney Vicente J. Francisco's motion contains
a more or less veiled threat to the court because
it is insinuated therein, after the author shows
the course which the voters of Tiaong should
follow in case he fails in his attempt, that they
will resort to the press for the purpose of
denouncing, what he claims to be a judicial
outrage of which his client has been the victim;
and because he states in a threatening manner
with the intention of predisposing the mind of the
reader against the court, thus creating an
atmosphere of prejudices against it in order to
make it odious in the public eye, that decisions
of the nature of that referred to in his motion
promote distrust in the administration of justice
and increase the proselytes of sakdalism, a
movement with seditious and revolutionary
tendencies the activities of which, as is of public
knowledge, occurred in this country a few days
ago. This cannot mean otherwise than contempt
of the dignity of the court and disrespect of the
authority thereof on the part of Attorney Vicente
J. Francisco, because he presumes that the
court is so devoid of the sense of justice that, if
he did not resort to intimidation, it would
maintain its error notwithstanding the fact that it
may be proven, with good reasons, that it has
acted erroneously.118 (Emphases supplied.)
Significantly, Salcedo is the decision from which
respondents culled their quote from
the minority view of Justice Malcolm.
Moreover, Salcedo concerned statements
made in a pleading filed by a counsel in a case,
unlike the respondents here, who are neither
parties nor counsels in the Vinuya case and
therefore, do not have any standing at all to
interfere in the Vinuya case. Instead of
supporting respondents’ theory, Salcedo is
authority for the following principle:
As a member of the bar and an officer of this
court, Attorney Vicente J. Francisco, as any
attorney, is in duty bound to uphold its dignity
and authority and to defend its integrity, not only
because it has conferred upon him the high
privilege, not a right (Malcolm, Legal Ethics, 158
and 160), of being what he now is: a priest of
justice (In re Thatcher, 80 Ohio St. Rep., 492,
669), but also because in so doing, he neither
creates nor promotes distrust in the
administration of justice, and prevents anybody
from harboring and encouraging discontent
which, in many cases, is the source of disorder,
thus undermining the foundation upon which
rests that bulwark called judicial power to which
those who are aggrieved turn for protection and
relief.119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined
and reprimanded for his injudicious statements
in his pleading, by accusing the Court of
"erroneous ruling." Here, the respondents’
Statement goes way beyond merely ascribing
error to the Court.
Other cases cited by respondents likewise
espouse rulings contrary to their position. In re:
Atty. Vicente Raul Almacen,120 cited in the
Common Compliance and the Vasquez
Compliance, was an instance where the
Court indefinitely suspended a member of the
Bar for filing and releasing to the press a
"Petition to Surrender Lawyer’s Certificate of
Title" in protest of what he claimed was a great
injustice to his client committed by the Supreme
Court. In the decision, the petition was
described, thus:
He indicts this Court, in his own phrase, as a
tribunal "peopled by men who are calloused to
our pleas for justice, who ignore without reasons
their own applicable decisions and commit
culpable violations of the Constitution with
impunity." His client's he continues, who was
deeply aggrieved by this Court's "unjust
judgment," has become "one of the sacrificial
victims before the altar of hypocrisy." In the
same breath that he alludes to the classic
symbol of justice, he ridicules the members of
this Court, saying "that justice as administered
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 60
by the present members of the Supreme Court
is not only blind, but also deaf and dumb." He
then vows to argue the cause of his client "in the
people's forum," so that "the people may know
of the silent injustices committed by this Court,"
and that "whatever mistakes, wrongs and
injustices that were committed must never be
repeated." He ends his petition with a prayer
that
"x x x a resolution issue ordering the Clerk of
Court to receive the certificate of the
undersigned attorney and counsellor-at-law IN
TRUST with reservation that at any time in the
future and in the event we regain our faith and
confidence, we may retrieve our title to assume
the practice of the noblest profession."121
It is true that in Almacen the Court extensively
discussed foreign jurisprudence on the principle
that a lawyer, just like any citizen, has the right
to criticize and comment upon actuations of
public officers, including judicial authority.
However, the real doctrine in Almacen is that
such criticism of the courts, whether done in
court or outside of it, must conform to standards
of fairness and propriety. This case engaged in
an even more extensive discussion of the legal
authorities sustaining this view.1awphi1 To
quote from that decision:
But it is the cardinal condition of all such
criticism that it shall be bona fide, and shall not
spill over the walls of decency and propriety. A
wide chasm exists between fair criticism, on the
one hand, and abuse and slander of courts and
the judges thereof, on the other. Intemperate
and unfair criticism is a gross violation of the
duty of respect to courts. It is such a misconduct
that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a
person obligations and duties which are not
mere flux and ferment. His investiture into the
legal profession places upon his shoulders no
burden more basic, more exacting and more
imperative than that of respectful behavior
toward the courts. He vows solemnly to conduct
himself "with all good fidelity x x x to the courts;"
and the Rules of Court constantly remind him "to
observe and maintain the respect due to courts
of justice and judicial officers." The first canon of
legal ethics enjoins him "to maintain towards the
courts a respectful attitude, not for the sake of
the temporary incumbent of the judicial office,
but for the maintenance of its supreme
importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly
assume, if they do not by express declaration
take upon themselves, when they are admitted
to the Bar, is not merely to be obedient to the
Constitution and laws, but to maintain at all
times the respect due to courts of justice and
judicial officers. This obligation is not discharged
by merely observing the rules of courteous
demeanor in open court, but includes abstaining
out of court from all insulting language and
offensive conduct toward judges personally for
their judicial acts." (Bradley, v. Fisher, 20 Law.
4d. 647, 652)
The lawyer's duty to render respectful
subordination to the courts is essential to the
orderly administration of justice. Hence, in the
assertion of their clients' rights, lawyers — even
those gifted with superior intellect — are
enjoined to rein up their tempers.
"The counsel in any case may or may not be an
abler or more learned lawyer than the judge,
and it may tax his patience and temper to submit
to rulings which he regards as incorrect, but
discipline and self-respect are as necessary to
the orderly administration of justice as they are
to the effectiveness of an army. The decisions
of the judge must be obeyed, because he is the
tribunal appointed to decide, and the bar should
at all times be the foremost in rendering
respectful submission." (In Re Scouten, 40 Atl.
481)
xxxx
In his relations with the courts, a lawyer may not
divide his personality so as to be an attorney at
one time and a mere citizen at another. Thus,
statements made by an attorney in private
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 61
conversations or communications or in the
course of a political campaign, if couched in
insulting language as to bring into scorn and
disrepute the administration of justice, may
subject the attorney to disciplinary
action.122 (Emphases and underscoring
supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in
the Vasquez Compliance, observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the
court to a pending cause, respecting the same,
has always been considered as misbehavior,
tending to obstruct the administration of justice,
and subjects such persons to contempt
proceedings. Parties have a constitutional right
to have their causes tried fairly in court, by an
impartial tribunal, uninfluenced by publications
or public clamor. Every citizen has a profound
personal interest in the enforcement of the
fundamental right to have justice administered
by the courts, under the protection and forms of
law, free from outside coercion or interference.
x x x.
Mere criticism or comment on the correctness or
wrongness, soundness or unsoundness of the
decision of the court in a pending case made in
good faith may be tolerated; because if well
founded it may enlighten the court and
contribute to the correction of an error if
committed; but if it is not well taken and
obviously erroneous, it should, in no way,
influence the court in reversing or modifying its
decision. x x x.
xxxx
To hurl the false charge that this Court has been
for the last years committing deliberately "so
many blunders and injustices," that is to say,
that it has been deciding in favor of one party
knowing that the law and justice is on the part of
the adverse party and not on the one in whose
favor the decision was rendered, in many cases
decided during the last years, would tend
necessarily to undermine the confidence of the
people in the honesty and integrity of the
members of this Court, and consequently to
lower or degrade the administration of justice by
this Court. The Supreme Court of the
Philippines is, under the Constitution, the last
bulwark to which the Filipino people may repair
to obtain relief for their grievances or protection
of their rights when these are trampled upon,
and if the people lose their confidence in the
honesty and integrity of the members of this
Court and believe that they cannot expect
justice therefrom, they might be driven to take
the law into their own hands, and disorder and
perhaps chaos might be the result. As a
member of the bar and an officer of the courts
Atty. Vicente Sotto, like any other, is in duty
bound to uphold the dignity and authority of this
Court, to which he owes fidelity according to the
oath he has taken as such attorney, and not to
promote distrust in the administration of
justice. Respect to the courts guarantees the
stability of other institutions, which without such
guaranty would be resting on a very shaky
foundation.124 (Emphases and underscoring
supplied.)
That the doctrinal pronouncements in these
early cases are still good law can be easily
gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court
administratively disciplined a lawyer, through
the imposition of a fine, for making malicious
and unfounded criticisms of a judge in the guise
of an administrative complaint and held, thus:
As an officer of the court and its indispensable
partner in the sacred task of administering
justice, graver responsibility is imposed upon a
lawyer than any other to uphold the integrity of
the courts and to show respect to its officers.
This does not mean, however, that a lawyer
cannot criticize a judge. As we stated in Tiongco
vs. Hon. Aguilar:
It does not, however, follow that just because a
lawyer is an officer of the court, he cannot
criticize the courts. That is his right as a citizen,
and it is even his duty as an officer of the court
to avail of such right. Thus, in In Re: Almacen
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 62
(31 SCRA 562, 579-580 [1970]), this Court
explicitly declared:
Hence, as a citizen and as officer of the court, a
lawyer is expected not only to exercise the right,
but also to consider it his duty to avail of such
right. No law may abridge this right. Nor is he
"professionally answerable to a scrutiny into the
official conduct of the judges, which would not
expose him to legal animadversion as a citizen."
(Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit.
For, as this Court warned in Almacen:
But it is a cardinal condition of all such criticism
that it shall be bona fide, and shall not spill over
the walls of decency and propriety. A wide
chasm exists between fair criticism, on the one
hand, and abuse and slander of courts and the
judges thereof, on the other. Intemperate and
unfair criticism is a gross violation of the duty of
respect to courts. It is such a misconduct, that
subjects a lawyer to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is
guaranteed by the freedom of speech and of
expression in the Bill of Rights of the
Constitution, must be exercised responsibly, for
every right carries with it a corresponding
obligation. Freedom is not freedom from
responsibility, but freedom with responsibility. x
x x.
xxxx
Proscribed then are, inter alia, the use of
unnecessary language which jeopardizes high
esteem in courts, creates or promotes distrust in
judicial administration (Rheem, supra), or tends
necessarily to undermine the confidence of
people in the integrity of the members of this
Court and to degrade the administration of
justice by this Court (In re: Sotto, 82 Phil. 595
[1949]); or of offensive and abusive language (In
re: Rafael Climaco, 55 SCRA 107 [1974]); or
abrasive and offensive language (Yangson vs.
Salandanan, 68 SCRA 42 [1975]; or of
disrespectful, offensive, manifestly baseless,
and malicious statements in pleadings or in a
letter addressed to the judge (Baja vs.
Macandog, 158 SCRA [1988], citing the
resolution of 19 January 1988 in Phil. Public
Schools Teachers Association vs. Quisumbing,
G.R. No. 76180, and Ceniza vs. Sebastian, 130
SCRA 295 [1984]); or of disparaging,
intemperate, and uncalled-for remarks
(Sangalang vs. Intermediate Appellate Court,
177 SCRA 87 [1989]).
Any criticism against a judge made in the guise
of an administrative complaint which is clearly
unfounded and impelled by ulterior motive will
not excuse the lawyer responsible therefor
under his duty of fidelity to his client. x x
x.126 (Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found
respondent lawyer guilty of simple misconduct
for using intemperate language in his pleadings
and imposed a fine upon him, we had the
occasion to state:
The Code of Professional Responsibility
mandates:
CANON 8 - A lawyer shall conduct himself with
courtesy, fairness and candor toward his
professional colleagues, and shall avoid
harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional
dealings, use language which is abusive,
offensive or otherwise improper.
CANON 11 - A lawyer shall observe and
maintain the respect due to the courts and to
judicial officers and should insist on similar
conduct by others.
Rule 11.03 - A lawyer shall abstain from
scandalous, offensive or menacing
language or behavior before the Courts.
To be sure, the adversarial nature of our legal
system has tempted members of the bar to use
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 63
strong language in pursuit of their duty to
advance the interests of their clients.
However, while a lawyer is entitled to
present his case with vigor and courage,
such enthusiasm does not justify the use of
offensive and abusive language. Language
abounds with countless possibilities for one
to be emphatic but respectful, convincing
but not derogatory, illuminating but not
offensive.
On many occasions, the Court has reminded
members of the Bar to abstain from all
offensive personalityand to advance no fact
prejudicial to the honor or reputation of a party
or witness, unless required by the justice of the
cause with which he is charged. In keeping with
the dignity of the legal profession, a lawyer’s
language even in his pleadings must be
dignified.128
Verily, the accusatory and vilifying nature of
certain portions of the Statement exceeded the
limits of fair comment and cannot be deemed as
protected free speech. Even In the Matter of
Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales
v. Commission on Elections,129 relied upon by
respondents in the Common Compliance, held
that:
From the language of the specific constitutional
provision, it would appear that the right is not
susceptible of any limitation. No law may be
passed abridging the freedom of speech and of
the press. The realities of life in a complex
society preclude however a literal interpretation.
Freedom of expression is not an absolute. It
would be too much to insist that at all times and
under all circumstances it should remain
unfettered and unrestrained. There are other
societal values that press for recognition. x x
x.130 (Emphasis supplied.)
One such societal value that presses for
recognition in the case at bar is the threat to
judicial independence and the orderly
administration of justice that immoderate,
reckless and unfair attacks on judicial decisions
and institutions pose. This Court held as much
in Zaldivar v. Sandiganbayan and
Gonzales,131 where we indefinitely
suspended a lawyer from the practice of law for
issuing to the media statements grossly
disrespectful towards the Court in relation to a
pending case, to wit:
Respondent Gonzales is entitled to the
constitutional guarantee of free speech. No one
seeks to deny him that right, least of all this
Court. What respondent seems unaware of is
that freedom of speech and of expression, like
all constitutional freedoms, is not absolute and
that freedom of expression needs on occasion
to be adjusted to and accommodated with the
requirements of equally important public
interest. One of these fundamental public
interests is the maintenance of the integrity and
orderly functioning of the administration of
justice. There is no antinomy between free
expression and the integrity of the system of
administering justice. For the protection and
maintenance of freedom of expression itself can
be secured only within the context of a
functioning and orderly system of dispensing
justice, within the context, in other words, of
viable independent institutions for delivery of
justice which are accepted by the general
community. x x x.132 (Emphases supplied.)
For this reason, the Court cannot uphold the
view of some respondents133 that the Statement
presents no grave or imminent danger to a
legitimate public interest.
The Show Cause Resolution does not interfere
with respondents’ academic freedom.
It is not contested that respondents herein are,
by law and jurisprudence, guaranteed academic
freedom and undisputably, they are free to
determine what they will teach their students
and how they will teach. We must point out that
there is nothing in the Show Cause Resolution
that dictates upon respondents the subject
matter they can teach and the manner of their
instruction. Moreover, it is not inconsistent with
the principle of academic freedom for this Court
to subject lawyers who teach law to disciplinary
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 64
action for contumacious conduct and speech,
coupled with undue intervention in favor of a
party in a pending case, without observing
proper procedure, even if purportedly done in
their capacity as teachers.
A novel issue involved in the present
controversy, for it has not been passed upon in
any previous case before this Court, is the
question of whether lawyers who are also law
professors can invoke academic freedom as a
defense in an administrative proceeding for
intemperate statements tending to pressure the
Court or influence the outcome of a case or
degrade the courts.
Applying by analogy the Court’s past treatment
of the "free speech" defense in other bar
discipline cases, academic freedom cannot be
successfully invoked by respondents in this
case. The implicit ruling in the jurisprudence
discussed above is that the constitutional right
to freedom of expression of members of the Bar
may be circumscribed by their ethical duties as
lawyers to give due respect to the courts and to
uphold the public’s faith in the legal profession
and the justice system. To our mind, the reason
that freedom of expression may be so delimited
in the case of lawyers applies with greater force
to the academic freedom of law professors.
It would do well for the Court to remind
respondents that, in view of the broad definition
in Cayetano v. Monsod,134lawyers when they
teach law are considered engaged in the
practice of law. Unlike professors in other
disciplines and more than lawyers who do not
teach law, respondents are bound by their oath
to uphold the ethical standards of the legal
profession. Thus, their actions as law professors
must be measured against the same canons of
professional responsibility applicable to acts of
members of the Bar as the fact of their being law
professors is inextricably entwined with the fact
that they are lawyers.
Even if the Court was willing to accept
respondents’ proposition in the Common
Compliance that their issuance of the Statement
was in keeping with their duty to "participate in
the development of the legal system by initiating
or supporting efforts in law reform and in the
improvement of the administration of justice"
under Canon 4 of the Code of Professional
Responsibility, we cannot agree that they have
fulfilled that same duty in keeping with the
demands of Canons 1, 11 and 13 to give due
respect to legal processes and the courts, and
to avoid conduct that tends to influence the
courts. Members of the Bar cannot be selective
regarding which canons to abide by given
particular situations. With more reason that law
professors are not allowed this indulgence,
since they are expected to provide their
students exemplars of the Code of Professional
Responsibility as a whole and not just their
preferred portions thereof.
The Court’s rulings on the submissions
regarding the charge of violation of Canons 1,
11 and 13.
Having disposed of respondents’ main
arguments of freedom of expression and
academic freedom, the Court considers here the
other averments in their submissions.
With respect to good faith, respondents’
allegations presented two main ideas: (a) the
validity of their position regarding the plagiarism
charge against Justice Del Castillo, and (b) their
pure motive to spur this Court to take the correct
action on said issue.
The Court has already clarified that it is not the
expression of respondents’ staunch belief that
Justice Del Castillo has committed a misconduct
that the majority of this Court has found so
unbecoming in the Show Cause Resolution. No
matter how firm a lawyer’s conviction in the
righteousness of his cause there is simply no
excuse for denigrating the courts and engaging
in public behavior that tends to put the courts
and the legal profession into disrepute. This
doctrine, which we have repeatedly upheld in
such cases as Salcedo, In re Almacen and
Saberong, should be applied in this case with
more reason, as the respondents, not parties to
the Vinuya case, denounced the Court and
urged it to change its decision therein, in a public
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 65
statement using contumacious language, which
with temerity they subsequently submitted to the
Court for "proper disposition."
That humiliating the Court into reconsidering the
Vinuya Decision in favor of the Malaya Lolas
was one of the objectives of the Statement could
be seen in the following paragraphs from the
same:
And in light of the significance of this decision to
the quest for justice not only of Filipino women,
but of women elsewhere in the world who have
suffered the horrors of sexual abuse and
exploitation in times of war, the Court cannot
coldly deny relief and justice to the petitioners
on the basis of pilfered and misinterpreted texts.
xxxx
(3) The same breach and consequent
disposition of the Vinuya case does violence to
the primordial function of the Supreme Court as
the ultimate dispenser of justice to all those who
have been left without legal or equitable
recourse, such as the petitioners
therein.135 (Emphases and underscoring
supplied.)
Whether or not respondents’ views regarding
the plagiarism issue in the Vinuya case had
valid basis was wholly immaterial to their liability
for contumacious speech and conduct. These
are two separate matters to be properly
threshed out in separate proceedings. The
Court considers it highly inappropriate, if not
tantamount to dissembling, the discussion
devoted in one of the compliances arguing the
guilt of Justice Del Castillo. In the Common
Compliance, respondents even go so far as to
attach documentary evidence to support the
plagiarism charges against Justice Del Castillo
in the present controversy. The ethics case of
Justice Del Castillo (A.M. No. 10-7-17-SC), with
the filing of a motion for reconsideration, was
still pending at the time of the filing of
respondents’ submissions in this administrative
case. As respondents themselves admit, they
are neither parties nor counsels in the ethics
case against Justice Del Castillo.
Notwithstanding their professed overriding
interest in said ethics case, it is not proper
procedure for respondents to bring up their
plagiarism arguments here especially when it
has no bearing on their own administrative case.
Still on motive, it is also proposed that the choice
of language in the Statement was intended for
effective speech; that speech must be "forceful
enough to make the intended recipients
listen."136 One wonders what sort of effect
respondents were hoping for in branding this
Court as, among others, callous, dishonest and
lacking in concern for the basic values of
decency and respect. The Court fails to see how
it can ennoble the profession if we allow
respondents to send a signal to their students
that the only way to effectively plead their cases
and persuade others to their point of view is to
be offensive.
This brings to our mind the letters of Dr. Ellis and
Prof. Tams which were deliberately quoted in
full in the narration of background facts to
illustrate the sharp contrast between the civil
tenor of these letters and the antagonistic
irreverence of the Statement. In truth, these
foreign authors are the ones who would
expectedly be affected by any perception of
misuse of their works. Notwithstanding that they
are beyond the disciplinary reach of this Court,
they still obviously took pains to convey their
objections in a deferential and scholarly
manner. It is unfathomable to the Court why
respondents could not do the same. These
foreign authors’ letters underscore the
universality of the tenet that legal professionals
must deal with each other in good faith and due
respect. The mark of the true intellectual is one
who can express his opinions logically and
soberly without resort to exaggerated rhetoric
and unproductive recriminations.
As for the claim that the respondents’ noble
intention is to spur the Court to take
"constructive action" on the plagiarism issue,
the Court has some doubts as to its veracity. For
if the Statement was primarily meant for this
Court’s consideration, why was the same
published and reported in the media first before
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 66
it was submitted to this Court? It is more
plausible that the Statement was prepared for
consumption by the general public and
designed to capture media attention as part of
the effort to generate interest in the most
controversial ground in the Supplemental
Motion for Reconsideration filed in the Vinuya
case by Atty. Roque, who is respondents’
colleague on the UP Law faculty.
In this regard, the Court finds that there was
indeed a lack of observance of fidelity and due
respect to the Court, particularly when
respondents knew fully well that the matter of
plagiarism in the Vinuya decision and the merits
of the Vinuya decision itself, at the time of the
Statement’s issuance, were still both sub judice
or pending final disposition of the Court. These
facts have been widely publicized. On this point,
respondents allege that at the time the
Statement was first drafted on July 27, 2010,
they did not know of the constitution of the
Ethics Committee and they had issued the
Statement under the belief that this Court
intended to take no action on the ethics charge
against Justice Del Castillo. Still, there was a
significant lapse of time from the drafting and
printing of the Statement on July 27, 2010 and
its publication and submission to this Court in
early August when the Ethics Committee had
already been convened. If it is true that the
respondents’ outrage was fueled by their
perception of indifference on the part of the
Court then, when it became known that the
Court did intend to take action, there was
nothing to prevent respondents from
recalibrating the Statement to take this
supervening event into account in the interest of
fairness.
Speaking of the publicity this case has
generated, we likewise find no merit in the
respondents’ reliance on various news reports
and commentaries in the print media and the
internet as proof that they are being unfairly
"singled out." On the contrary, these same
annexes to the Common Compliance show that
it is not enough for one to criticize the Court to
warrant the institution of disciplinary137 or
contempt138 action. This Court takes into
account the nature of the criticism and weighs
the possible repercussions of the same on the
Judiciary. When the criticism comes from
persons outside the profession who may not
have a full grasp of legal issues or from
individuals whose personal or other interests in
making the criticism are obvious, the Court may
perhaps tolerate or ignore them. However, when
law professors are the ones who appear to have
lost sight of the boundaries of fair commentary
and worse, would justify the same as an
exercise of civil liberties, this Court cannot
remain silent for such silence would have a
grave implication on legal education in our
country.
With respect to the 35 respondents named in
the Common Compliance, considering that this
appears to be the first time these respondents
have been involved in disciplinary proceedings
of this sort, the Court is willing to give them the
benefit of the doubt that they were for the most
part well-intentioned in the issuance of the
Statement. However, it is established in
jurisprudence that where the excessive and
contumacious language used is plain and
undeniable, then good intent can only be
mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco
states that it was not his intention to offend the
court or to be recreant to the respect thereto but,
unfortunately, there are his phrases which need
no further comment. Furthermore, it is a well
settled rule in all places where the same
conditions and practice as those in this
jurisdiction obtain, that want of intention is no
excuse from liability (13 C. J., 45). Neither is the
fact that the phrases employed are justified by
the facts a valid defense:
"Where the matter is abusive or insulting,
evidence that the language used was justified
by the facts is not admissible as a defense.
Respect for the judicial office should always be
observed and enforced." (In re Stewart, 118 La.,
827; 43 S., 455.) Said lack or want of intention
constitutes at most an extenuation of liability in
this case, taking into consideration Attorney
Vicente J. Francisco's state of mind, according
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 67
to him when he prepared said motion. This court
is disposed to make such concession. However,
in order to avoid a recurrence thereof and to
prevent others, by following the bad example,
from taking the same course, this court
considers it imperative to treat the case of said
attorney with the justice it
deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the
Common Compliance should, notwithstanding
their claim of good faith, be reminded of their
lawyerly duty, under Canons 1, 11 and 13, to
give due respect to the courts and to refrain from
intemperate and offensive language tending to
influence the Court on pending matters or to
denigrate the courts and the administration of
justice.
With respect to Prof. Vasquez, the Court
favorably notes the differences in his
Compliance compared to his colleagues. In our
view, he was the only one among the
respondents who showed true candor and
sincere deference to the Court. He was able to
give a straightforward account of how he came
to sign the Statement. He was candid enough to
state that his agreement to the Statement was
in principle and that the reason plagiarism was
a "fair topic of discussion" among the UP Law
faculty prior to the promulgation of the October
12, 2010 Decision in A.M. No. 10-7-17-SC was
the uncertainty brought about by a division of
opinion on whether or not willful or deliberate
intent was an element of plagiarism. He was
likewise willing to acknowledge that he may
have been remiss in failing to assess the effect
of the language of the Statement and could
have used more care. He did all this without
having to retract his position on the plagiarism
issue, without demands for undeserved reliefs
(as will be discussed below) and without
baseless insinuations of deprivation of due
process or of prejudgment. This is all that this
Court expected from respondents, not for them
to sacrifice their principles but only that they
recognize that they themselves may have
committed some ethical lapse in this affair. We
commend Prof. Vaquez for showing that at least
one of the respondents can grasp the true
import of the Show Cause Resolution involving
them. For these reasons, the Court finds Prof.
Vasquez’s Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation
that he is a member of the Bar of the State of
Minnesota and, therefore, not under the
disciplinary authority of this Court, he should be
excused from these proceedings. However, he
should be reminded that while he is engaged as
a professor in a Philippine law school he should
strive to be a model of responsible and
professional conduct to his students even
without the threat of sanction from this Court.
For even if one is not bound by the Code of
Professional Responsibility for members of the
Philippine Bar, civility and respect among legal
professionals of any nationality should be
aspired for under universal standards of
decency and fairness.
The Court’s ruling on Dean Leonen’s
Compliance regarding the charge of violation of
Canon 10.
To recall, the Show Cause Resolution directed
Dean Leonen to show cause why he should not
be disciplinary dealt with for violation of Canon
10, Rules 10.01, 10.02 and 10.03 and for
submitting a "dummy" that was not a true and
faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially
denies that Restoring Integrity II was not a
true and faithful reproduction of the actual
signed copy, Restoring Integrity I, because
looking at the text or the body, there were no
differences between the two. He attempts to
downplay the discrepancies in the signature
pages of the two versions of the Statement
(i.e., Restoring Integrity I and Restoring
Integrity II) by claiming that it is but expected in
"live" public manifestos with dynamic and
evolving pages as more and more signatories
add their imprimatur thereto. He likewise
stresses that he is not administratively liable
because he did not misrepresent the members
of the UP Law faculty who "had agreed with the
Restoring Integrity Statement proper and/or who
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 68
had expressed their desire to be signatories
thereto."140
To begin with, the Court cannot subscribe to
Dean Leonen’s implied view that the signatures
in the Statement are not as significant as its
contents. Live public manifesto or not, the
Statement was formally submitted to this Court
at a specific point in time and it should reflect
accurately its signatories at that point. The value
of the Statement as a UP Law Faculty
Statement lies precisely in the identities of the
persons who have signed it, since the
Statement’s persuasive authority mainly
depends on the reputation and stature of the
persons who have endorsed the same. Indeed,
it is apparent from respondents’ explanations
that their own belief in the "importance" of their
positions as UP law professors prompted them
to publicly speak out on the matter of the
plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of
Dean Leonen’s predicament is the fact that he
did not from the beginning submit the signed
copy, Restoring Integrity I, to this Court on
August 11, 2010 and, instead, submitted
Restoring Integrity II with its retyped or
"reformatted" signature pages. It would turn out,
according to Dean Leonen’s account, that there
were errors in the retyping of the signature
pages due to lapses of his unnamed staff. First,
an unnamed administrative officer in the dean’s
office gave the dean inaccurate information that
led him to allow the inclusion of Justice
Mendoza as among the signatories of Restoring
Integrity II. Second, an unnamed staff also failed
to type the name of Atty. Armovit when encoding
the signature pages of Restoring Integrity II
when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of
posting on a bulletin board or a website a signed
document may have to be reformatted and
signatures may be indicated by the notation
(SGD). This is not unusual. We are willing to
accept that the reformatting of documents
meant for posting to eliminate blanks is
necessitated by vandalism concerns.
However, what is unusual is the submission to a
court, especially this Court, of a signed
document for the Court’s consideration that did
not contain the actual signatures of its authors.
In most cases, it is the original signed document
that is transmitted to the Court or at the very
least a photocopy of the actual signed
document. Dean Leonen has not offered any
explanation why he deviated from this practice
with his submission to the Court of Restoring
Integrity II on August 11, 2010. There was
nothing to prevent the dean from submitting
Restoring Integrity I to this Court even with its
blanks and unsigned portions. Dean Leonen
cannot claim fears of vandalism with respect to
court submissions for court employees are
accountable for the care of documents and
records that may come into their custody. Yet,
Dean Leonen deliberately chose to submit to
this Court the facsimile that did not contain the
actual signatures and his silence on the reason
therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonen’s
explanations yield the answer. In the course of
his explanation of his willingness to accept his
administrative officer’s claim that Justice
Mendoza agreed to be indicated as a signatory,
Dean Leonen admits in a footnote that other
professors had likewise only authorized him to
indicate them as signatories and had not in fact
signed the Statement. Thus, at around the time
Restoring Integrity II was printed, posted and
submitted to this Court, at least one purported
signatory thereto had not actually signed the
same. Contrary to Dean Leonen’s proposition,
that is precisely tantamount to making it appear
to this Court that a person or persons
participated in an act when such person or
persons did not.
We are surprised that someone like Dean
Leonen, with his reputation for perfection and
stringent standards of intellectual honesty, could
proffer the explanation that there was no
misrepresentation when he allowed at least one
person to be indicated as having actually signed
the Statement when all he had was a verbal
communication of an intent to sign. In the case
of Justice Mendoza, what he had was only
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 69
hearsay information that the former intended to
sign the Statement. If Dean Leonen was truly
determined to observe candor and truthfulness
in his dealings with the Court, we see no reason
why he could not have waited until all the
professors who indicated their desire to sign the
Statement had in fact signed before transmitting
the Statement to the Court as a duly signed
document. If it was truly impossible to secure
some signatures, such as that of Justice
Mendoza who had to leave for abroad, then
Dean Leonen should have just resigned himself
to the signatures that he was able to secure.
We cannot imagine what urgent concern there
was that he could not wait for actual signatures
before submission of the Statement to this
Court. As respondents all asserted, they were
neither parties to nor counsels in the Vinuya
case and the ethics case against Justice Del
Castillo. The Statement was neither a pleading
with a deadline nor a required submission to the
Court; rather, it was a voluntary submission that
Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen’s
Compliance unsatisfactory. However, the Court
is willing to ascribe these isolated lapses in
judgment of Dean Leonen to his misplaced zeal
in pursuit of his objectives. In due consideration
of Dean Leonen’s professed good intentions,
the Court deems it sufficient to admonish Dean
Leonen for failing to observe full candor and
honesty in his dealings with the Court as
required under Canon 10.
Respondents’ requests for a hearing, for
production/presentation of evidence bearing on
the plagiarism and misrepresentation issues in
G.R. No. 162230 and A.M. No. 10-7-17-SC, and
for access to the records of A.M. No. 10-7-17-
SC are unmeritorious.
In the Common Compliance, respondents
named therein asked for alternative reliefs
should the Court find their Compliance
unsatisfactory, that is, that the Show Cause
Resolution be set for hearing and for that
purpose, they be allowed to require the
production or presentation of witnesses and
evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case
(G.R. No. 162230) and the plagiarism case
against Justice Del Castillo (A.M. No. 10-7-17-
SC) and to have access to the records of, and
evidence that were presented or may be
presented in the ethics case against Justice Del
Castillo. The prayer for a hearing and for access
to the records of A.M. No. 10-7-17-SC was
substantially echoed in Dean Leonen’s separate
Compliance. In Prof. Juan-Bautista’s
Compliance, she similarly expressed the
sentiment that "[i]f the Restoring Integrity
Statement can be considered indirect contempt,
under Section 3 of Rule 71 of the Rules of Court,
such may be punished only after charge and
hearing."141 It is this group of respondents’
premise that these reliefs are necessary for
them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to
the necessity of a hearing in this case springs
largely from its characterization as a special civil
action for indirect contempt in the Dissenting
Opinion of Justice Sereno (to the October 19,
2010 Show Cause Resolution) and her reliance
therein on the majority’s purported failure to
follow the procedure in Rule 71 of the Rules of
Court as her main ground for opposition to the
Show Cause Resolution.
However, once and for all, it should be clarified
that this is not an indirect contempt proceeding
and Rule 71 (which requires a hearing) has no
application to this case. As explicitly ordered in
the Show Cause Resolution this case was
docketed as an administrative matter.
The rule that is relevant to this controversy is
Rule 139-B, Section 13, on disciplinary
proceedings initiated motu proprio by the
Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.—In
proceedings initiated motu proprio by the
Supreme Court or in other proceedings when
the interest of justice so requires, the Supreme
Court may refer the case for investigation to the
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 70
Solicitor General or to any officer of the
Supreme Court or judge of a lower court, in
which case the investigation shall proceed in the
same manner provided in sections 6 to 11
hereof, save that the review of the report of
investigation shall be conducted directly by the
Supreme Court. (Emphasis supplied.)
From the foregoing provision, it cannot be
denied that a formal investigation, through a
referral to the specified officers, is merely
discretionary, not mandatory on the Court.
Furthermore, it is only if the Court deems such
an investigation necessary that the procedure in
Sections 6 to 11 of Rule 139-A will be followed.
As respondents are fully aware, in general,
administrative proceedings do not require a trial
type hearing. We have held that:
The essence of due process is simply an
opportunity to be heard or, as applied to
administrative proceedings, an opportunity to
explain one's side or an opportunity to seek a
reconsideration of the action or ruling
complained of. What the law prohibits
is absolute absence of the opportunity to be
heard, hence, a party cannot feign denial of due
process where he had been afforded the
opportunity to present his side. A formal or trial
type hearing is not at all times and in all
instances essential to due process, the
requirements of which are satisfied where the
parties are afforded fair and reasonable
opportunity to explain their side of the
controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had
the occasion to rule in Pena v. Aparicio143 that:
Disciplinary proceedings against lawyers
are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action
or a suit, but is rather an investigation by the
Court into the conduct of one of its officers. Not
being intended to inflict punishment, it is in no
sense a criminal prosecution. Accordingly, there
is neither a plaintiff nor a prosecutor therein. It
may be initiated by the Court motu proprio.
Public interest is its primary objective, and the
real question for determination is whether or not
the attorney is still a fit person to be allowed the
privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon
a member of the Bar to account for his
actuations as an officer of the Court with the end
in view of preserving the purity of the legal
profession and the proper and honest
administration of justice by purging the
profession of members who by their misconduct
have proved themselves no longer worthy to be
entrusted with the duties and responsibilities
pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak
of a complainant or a prosecutor.144 (Emphases
supplied.)
In Query of Atty. Karen M. Silverio-Buffe,
Former Clerk of Court – Br. 81, Romblon – On
the Prohibition from Engaging in the Private
Practice of Law,145 we further observed that:
[I]n several cases, the Court has disciplined
lawyers without further inquiry or resort to any
formal investigation where the facts on record
sufficiently provided the basis for the
determination of their administrative liability.
In Prudential Bank v. Castro, the Court
disbarred a lawyer without need of any further
investigation after considering his actions based
on records showing his unethical misconduct;
the misconduct not only cast dishonor on the
image of both the Bench and the Bar, but was
also inimical to public interest and welfare. In
this regard, the Court took judicial notice of
several cases handled by the errant lawyer and
his cohorts that revealed their modus
operandi in circumventing the payment of the
proper judicial fees for the astronomical sums
they claimed in their cases. The Court held that
those cases sufficiently provided the basis for
the determination of respondents' administrative
liability, without need for further inquiry into the
matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in
Richards v. Asoy, that no evidentiary hearing is
required before the respondent may be
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 71
disciplined for professional misconduct already
established by the facts on record.
xxxx
These cases clearly show that the absence of
any formal charge against and/or formal
investigation of an errant lawyer do not preclude
the Court from immediately exercising its
disciplining authority, as long as the errant
lawyer or judge has been given the opportunity
to be heard. As we stated earlier, Atty. Buffe has
been afforded the opportunity to be heard on the
present matter through her letter-query and
Manifestation filed before this
Court.146(Emphases supplied.)
Under the rules and jurisprudence, respondents
clearly had no right to a hearing and their
reservation of a right they do not have has no
effect on these proceedings. Neither have they
shown in their pleadings any justification for this
Court to call for a hearing in this instance. They
have not specifically stated
what relevant evidence, documentary or
testimonial, they intend to present in their
defense that will necessitate a formal hearing.
Instead, it would appear that they intend to
present records, evidence, and witnesses
bearing on the plagiarism and
misrepresentation issues in the Vinuya case
and in A.M. No. 10-7-17-SC on the assumption
that the findings of this Court which were the
bases of the Show Cause Resolution were
made in A.M. No. 10-7-17-SC, or were related
to the conclusions of the Court in the Decision
in that case. This is the primary reason for their
request for access to the records and evidence
presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is
erroneous. To illustrate, the only incident in A.M.
No. 10-7-17-SC that is relevant to the case at
bar is the fact that the submission of the actual
signed copy of the Statement (or Restoring
Integrity I, as Dean Leonen referred to it)
happened there. Apart from that fact, it bears
repeating that the proceedings in A.M. No. 10-
7-17-SC, the ethics case against Justice Del
Castillo, is a separate and independent matter
from this case.
To find the bases of the statements of the Court
in the Show Cause Resolution that the
respondents issued a Statement with language
that the Court deems objectionable during the
pendency of the Vinuya case and the ethics
case against Justice Del Castillo, respondents
need to go no further than the four corners of the
Statement itself, its various versions, news
reports/columns (many of which respondents
themselves supplied to this Court in their
Common Compliance) and internet sources that
are already of public knowledge.
Considering that what respondents are chiefly
required to explain are the language of the
Statement and the circumstances surrounding
the drafting, printing, signing,
dissemination, etc., of its various versions, the
Court does not see how any witness or evidence
in the ethics case of Justice Del Castillo could
possibly shed light on these facts. To be sure,
these facts are within the knowledge of
respondents and if there is any evidence on
these matters the same would be in their
possession.
We find it significant that in Dean Leonen’s
Compliance he narrated how as early as
September 2010, i.e., before the Decision of this
Court in the ethics case of Justice Del Castillo
on October 12, 2010 and before the October 19,
2010 Show Cause Resolution, retired Supreme
Court Justice Vicente V. Mendoza, after being
shown a copy of the Statement upon his return
from abroad, predicted that the Court would take
some form of action on the Statement. By simply
reading a hard copy of the Statement, a
reasonable person, even one who
"fundamentally agreed" with the Statement’s
principles, could foresee the possibility of court
action on the same on an implicit recognition
that the Statement, as worded, is not a matter
this Court should simply let pass. This belies
respondents’ claim that it is necessary for them
to refer to any record or evidence in A.M. No.
10-7-17-SC in order to divine the bases for the
Show Cause Resolution.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 72
If respondents have chosen not to include
certain pieces of evidence in their respective
compliances or chosen not to make a full
defense at this time, because they were
counting on being granted a hearing, that is
respondents’ own look-out. Indeed, law
professors of their stature are supposed to be
aware of the above jurisprudential doctrines
regarding the non-necessity of a hearing in
disciplinary cases. They should bear the
consequence of the risk they have taken.
Thus, respondents’ requests for a hearing and
for access to the records of, and evidence
presented in, A.M. No. 10-7-17-SC should be
denied for lack of merit.
A final word
In a democracy, members of the legal
community are hardly expected to have
monolithic views on any subject, be it a legal,
political or social issue. Even as lawyers
passionately and vigorously propound their
points of view they are bound by certain rules of
conduct for the legal profession. This Court is
certainly not claiming that it should be shielded
from criticism. All the Court demands is the
same respect and courtesy that one lawyer
owes to another under established ethical
standards. All lawyers, whether they are judges,
court employees, professors or private
practitioners, are officers of the Court and have
voluntarily taken an oath, as an indispensable
qualification for admission to the Bar, to conduct
themselves with good fidelity towards the
courts. There is no exemption from this sworn
duty for law professors, regardless of their
status in the academic community or the law
school to which they belong.
WHEREFORE, this administrative matter is
decided as follows:
(1) With respect to Prof. Vasquez, after
favorably noting his submission, the Court finds
his Compliance to be satisfactory.
(2) The Common Compliance of 35
respondents, namely, Attys. Marvic M.V.F.
Leonen, Froilan M. Bacungan, Pacifico A.
Agabin, Merlin M. Magallona, Salvador T.
Carlota, Carmelo V. Sison, Patricia R.P.
Salvador Daway, Dante B. Gatmaytan,
Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G.
De Vera, Solomon F. Lumba, Rommel J. Casis,
Jose Gerardo A. Alampay, Miguel R. Armovit,
Arthur P. Autea, Rosa Maria J. Bautista, Mark
R. Bocobo, Dan P. Calica, Tristan A. Catindig,
Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Viña,
Carina C. Laforteza, Jose C. Laureta, Rodolfo
Noel S. Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn
G. Ursua, Susan D. Villanueva and Dina D.
Lucenario, is found UNSATISFACTORY. These
35 respondent law professors are reminded of
their lawyerly duty, under Canons 1, 11 and 13
of the Code of Professional Responsibility, to
give due respect to the Court and to refrain from
intemperate and offensive language tending to
influence the Court on pending matters or to
denigrate the Court and the administration of
justice and warned that the same or similar act
in the future shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic
M.V.F. Leonen regarding the charge of violation
of Canon 10 is found UNSATISFACTORY. He
is further ADMONISHED to be more mindful of
his duty, as a member of the Bar, an officer of
the Court, and a Dean and professor of law, to
observe full candor and honesty in his dealings
with the Court and warned that the same or
similar act in the future shall be dealt with more
severely.
(4) Prof. Lynch, who is not a member of the
Philippine bar, is excused from these
proceedings. However, he is reminded that
while he is engaged as a professor in a
Philippine law school he should strive to be a
model of responsible and professional conduct
to his students even without the threat of
sanction from this Court.
(5) Finally, respondents’ requests for a hearing
and for access to the records of A.M. No. 10-7-
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 73
17-SC are denied for lack of merit. SO
ORDERED.
SEPARATE OPINION
VILLARAMA, JR., J.:
This treats of respondents’ compliance with the
Court’s Resolution dated October 19, 2010,
which required respondents, who are professors
of the University of the Philippines College of
Law, to show cause why they should not be
disciplined as members of the bar for having
published a Statement entitled, "Restoring
Integrity: A Statement by the Faculty of the
University of the Philippines College of Law on
the Allegations of Plagiarism and
Misrepresentation in the Supreme Court" which
appeared to contain statements that were
disrespectful to the Court. The Court’s directive
reads as follows:
WHEREFORE, in light of the foregoing, Attys.
Marvic M.V.F. Leonen, Froilan M. Bacungan,
Pacifico A. Agabin, Merlin M. Magallona,
Salvador T. Carlota, Carmelo V. Sison, Patricia
R.P. Salvador Daway, Dante B. Gatmaytan,
Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G.
De Vera, Solomon F. Lumba, Rommel J. Casis,
Jose Gerardo A. Alampay, Miguel R. Armovit,
Arthur P. Autea, Rosa Maria J. Bautista, Mark
R. Bocobo, Dan P. Calica, Tristan A. Catindig,
Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Viña,
Carina C. Laforteza, Jose C. Laureta, Owen J.
Lynch, Rodolfo Noel S Quimbo, Antonio M.
Santos, Gmeleen Faye B. Tomboc, Nicholas
Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez,
Susan D. Villanueva, and Dina D. Lucenario,
members of the faculty of the University of the
Philippines College of Law, are directed
to SHOW CAUSE, within ten (10) days from
receipt of a copy of this Resolution, why they
should not be disciplined as members of the Bar
for violation of Canons 11, 11, and 13 and Rules
1.02 and 11.05 of the Code of Professional
Responsibility.
Further, Dean Marvic M.V.F. Leonen is directed
to SHOW CAUSE, within ten (10) days from
receipt of this Resolution, why he should not be
disciplinarily dealt with for violation of Canon 10,
Rules 10.01, 10.02 and 10.03 for submitting,
through his letter dated August 10, 2010, during
the pendency of G.R. No. 162330, Vinuya v.
Executive Secretary and of the investigation
before the Committee on Ethics and Ethical
Standards, for the consideration of the Court En
Banc, a dummy which is not a true and faithful
reproduction of the purported statement, entitled
"Restoring Integrity: A Statement by the Faculty
of the University of the Philippines College of
Law on the Allegations of Plagiarism and
Misrepresentation in the Supreme Court." x x x
In their Compliance, 35 of the respondents,
excluding Professors Owen J. Lynch and Raul
V. Vasquez, take common defense that the
statements contained in Restoring
Integrity were mere expressions of their opinion,
dispensed in accordance with their duties as
members of the bar and as professors of law.
They aver that they acted with the purest
intentions, guided by their duty of candor,
fairness and good faith to the Court, and deny
that it was their intention to malign the Court as
an institution for its decision in Vinuya v.
Executive Secretary.2 They claim that any
reference to Vinuya in their statement was
made only to establish and accent the grave
consequences of the allegations of plagiarism
and misrepresentation allegedly committed by
one of the Court’s members. Indeed, they claim
that the Statement was intended "to defend the
integrity and credibility of the entire Supreme
Court" and ensure continued confidence in the
legal system and the Judiciary by calling on the
Court to take constructive action in the face of
the damaging allegations. They also add that
the Statement was meant to address what they
perceived as indifference on the part of the
Court owing to certain statements reportedly
made by Supreme Court Administrator and
spokesperson, Atty. Jose Midas P. Marquez
(that Chief Justice Renato C. Corona would not
take any action on the charges) and their
reading of Justice Mariano C. Del Castillo’s
letter replying to the allegations.
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 74
Respondents affirm their loyalty and respect for
the Court and claim that as professors of law,
they have a special interest in guarding against
plagiarism and misrepresentation to ensure
intellectual honesty among their students. They
allegedly released the Statement in support of
"efforts to achieve high standards in law schools
as well as in the practical training of law students
and assist in disseminating information
regarding law and jurisprudence." Citing similar
commentaries on the issue, they likewise invoke
freedom of speech and academic freedom to
justify the publication of their stand on the
matter.
Finally, respondents argue that the Resolution
amounted to a prejudgment of their liability for
contempt and breach of Canons 1, 11, 13 and
Rules 1.02 and 11.05 of the Code of
Professional Responsibility. Thus, they invoke
their right to due process and plead for an
opportunity to present evidence relative to the
proceedings in A.M. No. 10-7-17-SC entitled In
the Matter of the Charges of Plagiarism, etc.
Against Associate Justice Mariano C. Del
Castillo.
Prof. Rosa Maria T. Juan-Bautista, in her
separate Compliance and Reservation,
reiterates the above reservation of her right to
due process and request for hearing. She
likewise supplements the above submissions
with additional arguments in support of her
assertion that she signed the Statement in the
exercise of her freedom of expression.
As to Prof. Owen J. Lynch, Prof. Lynch filed a
Manifestation invoking freedom of expression
and asserting that the statement did not pose a
clear and present danger of a substantive evil
that the State has a right to prevent. He also
manifests that he is not a member of the
Philippine Bar as he is an American citizen who
is a member of the bar of the State of Minnesota.
Prof. Raul V. Vasquez, for his part, likewise
submits that he never had any intention of
maligning the Court and alleges that he signed
the Statement as he was fundamentally in
agreement with its contents. He further states
that he might have been remiss in correctly
assessing the effects of the language employed
in the Statement and says that he could have
been more careful.
As regards the charge of violating Canon 10 and
Rules 10.01, 10.02 and 10.03 for submitting to
the Court a copy of the Restoring Integrity
Statement that was not a true and faithful
reproduction thereof, Dean Marvic M.V.F.
Leonen submitted the following explanations.
Dean Leonen denies misrepresenting the
contents of the Statement or which faculty
members signed and/or signified their intention
to sign the same. He avers that there are
actually three versions of the Statement, all with
the same contents, but with different signature
pages. Two versions were submitted to the
Court: one with the signature pages containing
the full roster of faculty members and the actual
signatures of the signatories (which version he
calls Restoring Integrity I) and the other with the
retyped signature page containing just the
names of the members who signed, with the
notation "(SGD.)" beside their names. This
second version he referred to as Restoring
Integrity II. According to him, these two copies
arose because after the original version
containing the full roster of faculty members was
circulated for signature, he had the signature
pages re-typed to eliminate the blanks prior to
posting in the bulletin board. (He alleges that the
practice of re-typing the signature pages was
meant to ensure the integrity of the public
issuance as posting the Statement with blanks
would open it to vandalism.)
When the re-typed signature page was
presented to him by his staff, he noticed that the
name of retired Justice Vicente V. Mendoza was
indicated as a signatory even though the latter
did not sign the Statement. He asked his
administrative staff about the inclusion and the
latter claimed that she spoke to Justice
Mendoza on the phone before the latter flew for
the United States. According to his staff, Justice
Mendoza allegedly authorized him to sign on
behalf of Justice Mendoza since the latter
agrees with the contents of the Statement but
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 75
was just unable to personally affix his signature
because he was leaving for the United States
the following week. Dean Leonen claims that he
did not have any reason to disbelieve his staff
because there were indeed other faculty
members who authorized him to sign the
Statement for them. Thus, he placed full faith
and confidence in his staff’s claim and allowed
the inclusion of Justice Mendoza’s name as one
of the signatories in Restoring Integrity II which
he later submitted to the Court. Because of this
information, also, he believed that the total
number of signatories to the Statement was
already 38.
Dean Leonen adds that in September 2010, he
received a call from Justice Mendoza, who said
that he will no longer sign the statement
"considering that it had already become
controversial and that he did not wish to unduly
aggravate the situation." On October 21, 2010,
after receiving a copy of this Court’s Show
Cause Resolution, he met with his staff and
reviewed what had transpired in connection with
their efforts to secure Justice Mendoza’s
signature. It was then that he learned that while
Justice Mendoza initially agreed to sign the
statement, Justice Mendoza did not exactly
authorize him to sign for the latter. Rather,
Justice Mendoza merely inquired "if he could
authorize the dean to sign it for him as he was
leaving for the United States." He then realized
the full import of the call he received from
Justice Mendoza in September.
As regards the omission of the name of Atty.
Miguel R. Armovit in the re-typed signature
pages of Restoring Integrity II, Dean Leonen
explains that the omission was due simply to
inadvertence.
After a careful study of the respondents’
submissions, I respectfully submit that the
above submissions are SATISFACTORY in
view of respondents’ claim of good faith and the
fact that a re-examination of the Statement
indeed admits of such claim. Consistent with
respondents’ claims, the tenor of the Statement
was to call the Court’s attention to the grave
allegations and its effects on the integrity and
credibility of the Court and the Judiciary. Indeed,
the general wording of the Statement and its
ending paragraphs lend support to respondents’
averments that the Statement was prompted by
the sincere and honest desire to protect the
integrity and credibility of the Judiciary,
especially the Supreme Court. Given such
submissions, I am willing to afford respondents
the benefit of the doubt as to their intentions
concerning the forceful language employed in
certain portions of the Restoring Integrity
Statement. This is especially so considering that
the subject statements present no clear and
present danger of a substantive evil that the
State has a right to prevent as to take it out of
the protective mantle of the freedom of speech
and expression under the Bill of Rights. A
reading of the Statement, with particular focus
on its final paragraphs, will not leave the reader
with feelings of contempt for the Court but only
a feeling that the Court must champion the
cause of integrity. Furthermore, it should be
noted that our society has developed to the
point where critical analysis of information is not
in short supply. The public is nowadays not only
more well informed, but it has access to
information with which citizens could make their
own independent assessment of pending issues
of public concern, including the fitness and
integrity of the members of this Court to render
fair and impartial judgment on the cases before
them. However, given the fact that some
isolated portions of the statement were arguably
disrespectful, respondents should be reminded
to be more circumspect in their future
statements.
As regards Dean Leonen, I likewise submit that
his explanation is sufficient to exonerate him
from the charge of violation of Canon 10 and
Rules 10.01, 10.02 and 10.03, all of the Code of
Professional Responsibility. While it appears
that Dean Leonen mistakenly relied on hearsay
information that Justice Mendoza had
authorized him to indicate Justice Mendoza as
a signatory to the Statement, still, Dean
Leonen’s lapses appear more the result of
overzealousness rather than bad faith or a
deliberate intent to do falsehood or to mislead
the Court. Indeed, under the circumstances as
 LEGAL RESEARCH WEEK 2 TOPIC ACJUCO 76

they appeared to him, and considering that

there were other professors who had authorized
him to indicate them as signatories,3 it was not
all too remiss on his part to indicate Justice
Mendoza as a signatory to the Statement upon
the information given to him by his
administrative staff. That he acted upon the
wrong information given to him, though telling of
some degree of carelessness on his part, is not
gross negligence that is tantamount to bad faith.
Hence, there being no intent or inexcusable
negligence, there is no ground to find him liable
under Canon 10 and Rules 10.01 and 10.02 of
the Code of Professional Responsibility.

Similarly, there is no cogent reason to hold him

liable for violation of Rule 10.03 as it likewise
does not appear that Dean Leonen violated any
rule of procedure or misused any procedural
rule to defeat the ends of justice. The
submission of the Statement to the Court, it
should be noted, was ad hoc.

I therefore vote to NOTE and CONSIDER the

explanations submitted by respondents in their
Compliance/s SATISFACTORY with
a REMINDER that they be more circumspect in
their future statements considering that the
Court also has its own sensibilities.

I also vote to consider this administrative

matter CLOSED and TERMINATED.