CASE DIGEST: ISABELITA C. VINUYA, et al. v.

THE HONORABLE EXECUTIVE

SECRETARY ALBERTO G. ROMULO, et al.

FACTS: Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
established for the purpose of providing aid to the victims of rape by Japanese military forces in
the Philippines during the Second World War.Petitioners narrate that during the Second World
War, the Japanese army attacked villages and systematically raped the women as part of the
destruction of the village. Their communities were bombed, houses were looted and burned, and
civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they were repeatedly raped, beaten, and abused
by Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have
spent their lives in misery, having endured physical injuries, pain and disability, and mental and
emotional suffering. Petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort women
stations in the Philippines. However, officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of the comfort women for compensation
had already been fully satisfied by Japans compliance with the Peace Treaty between the
Philippines and Japan.
ISSUE: Did respondents commit grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them?

HELD: Political questions refer "to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government. It is concerned with
issues dependent upon the wisdom, not legality of a particular measure." Certain types of cases
often have been found to present political questions.One such category involves questions of
foreign relations.It is well-established that "the conduct of the foreign relations of our government
is committed by the Constitution to the executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."

Not all cases implicating foreign relations present political questions, and courts certainly possess
the authority to construe or invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches.In this case, the Executive
Department has already decided that it is to the best interest of the country to waive all claims of
its nationals for reparations against Japan in the Treaty of Peace of 1951.The wisdom of such
decision is not for the courts to question.Neither could petitioners herein assail the said
determination by the Executive Department via the instant petition for certiorari.

The Executive Department has determined that taking up petitioners cause would be inimical to
our country's foreign policy interests, and could disrupt our relations withJapan, thereby creating
serious implications for stability in this region.For the Court to overturn the Executive Departments
determination would mean an assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been constitutionally
committed. DISMISSED.

VINUYA VS. SEC. ROMULO

MARCH 28, 2013 ~ VBDIAZ

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

FACTS:
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive
Secretary, the Secretary of the DFA, the Secretary of the DOJ, and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
registered with the SEC, established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the Second World War.

Petitioners claim that since 1998, they have approached the Executive Department through the
DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and
military officers who ordered the establishment of the “comfort women” stations in the Philippines.
But officials of the Executive Department declined to assist the petitioners, and took the position
that the individual claims of the comfort women for compensation had already been fully satisfied
by Japan’s compliance with the Peace Treaty between the Philippines and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed
grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their
claims for the crimes against humanity and war crimes committed against them; and (b) compel
the respondents to espouse their claims for official apology and other forms of reparations against
Japan before the International Court of Justice (ICJ) and other international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were
dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of
1956.

On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for former comfort
women. Over the next five years, these were implemented by the Department of Social Welfare
and Development.
ISSUE:
WON the Executive Department committed grave abuse of discretion in not espousing petitioners’
claims for official apology and other forms of reparations against Japan.

RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the
exclusive prerogative to determine whether to espouse petitioners’ claims against Japan.

Political questions refer “to those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure.”

One type of case of political questions involves questions of foreign relations. It is well-established
that “the conduct of the foreign relations of our government is committed by the Constitution to
the executive and legislative–‘the political’–departments of the government, and the propriety of
what may be done in the exercise of this political power is not subject to judicial inquiry or
decision.” are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance or
imperil.

But not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom
of such decision is not for the courts to question.

The President, not Congress, has the better opportunity of knowing the conditions which prevail
in foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials.

The Executive Department has determined that taking up petitioners’ cause would be inimical to
our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For the to overturn the Executive Department’s
determination would mean an assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such an
extraordinary length of time has lapsed between the treaty’s conclusion and our consideration –
the Executive must be given ample discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of both the interests of the petitioners and
those of the Republic, and decide on that basis if apologies are sufficient, and whether further
steps are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim
within the international legal system has been when the individual is able to persuade a
government to bring a claim on the individual’s behalf. By taking up the case of one of its subjects
and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is
in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of
international law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can do is resort to national
law, if means are available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis.
Petitioners have not shown that the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators
of international crimes is an erga omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal
term describing obligations owed by States towards the community of states as a whole. Essential
distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic
protection. By their very nature, the former are the concern of all States. In view of the importance
of the rights involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.

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

WHEREFORE, the Petition is hereby DISMISSED.

 In Re del Castillo, A.M. No. 10-7-17-SC, October 12, 2010

DECISION

PER CURIAM:

I. THE FACTS

In the landmark decision of Vinuya vs. Executive Secretary, G.R. No.

162230, promulgated last April 28, 2010, the Supreme Court DISMISSED the petition filed by a group of
Filipino “comfort women” during the Japanese military occupation of the Philippines. The Court, speaking
through Justice Mariano C. del Castillo, held that the petition seeking to compel the Executive
Department to espouse the petitioners’ claims for official apology and other forms of reparations
against Japan before the International Court of Justice and other international tribunals has NO
MERIT because: (1) the prerogative to determine whether to espouse petitioners’ claims against Japan
belongs exclusively to the Executive Department; and (2) the Philippines is not under any international
obligation to espouse the petitioners’ claims.

Discontented with the foregoing decision, the petitioners in Vinuya filed a motion for
reconsideration. Subsequently, they also filed a supplemental motion for reconsideration, this time
accusing the Justice del Castillo of plagiarizing (copying without attribution) and twisting passages
from three foreign legal articles to support the Court’s position in the Vinuya decision:

(1) A Fiduciary Theory of Jus Cogens by Professors Evan J. Criddle (Associate Professor
of Syracuse University College of Law) and Evan Fox-Descent (Assistant Professor of McGill
University Faculty of Law) published in the Yale Journal of International Law in 2009;

(2) Breaking the Silence: Rape as an International Crime by Mark Ellis (Executive Director of the
International Bar Association), published in the Case Western Reserve Journal of International
Law in 2006; and

(3) Enforcing Erga Omnes Obligations in International Law by Professor Christian J. Tams (Chair of
International Law of University of Glasgow School of Law), published in Cambridge University
Press (2005).
 The Court then referred the charges against Justice Del Castillo to its Committee on
Ethics and Ethical Standards, chaired by Chief Justice Renato Corona, for investigation and
recommendation. After the proceedings before it, the Committee submitted its findings and
recommendations to the Court en banc, which then treated and decided the controversy as an
administrative matter.

II. THE ISSUES

1. Did Justice Del Castillo, in writing the opinion for the Court in the Vinuya case,
plagiarize the published works of authors Tams, Criddle-Descent, and Ellis?

2. Did Justice Del Castillo twist the works of these authors to make it appear that such
works supported the Court’s position in the Vinuya decision?

III. THE RULING

[By a 10-2 vote, with three Justices including Justice del Castillo taking no part, the
Court DISMISSED the charges for lack of merit and held that Justice del Castillo was NOT
GUILTY of plagiarizing and twisting the cited materials and hence did NOT commit gross
negligence.]

1. NO, Justice Del Castillo, in writing the opinion for the Court in the Vinuya case,
did NOT plagiarize the published works of authors Tams, Criddle-Descent, and Ellis.

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.” The passing off of the work of
another as one’s own is thus an indispensable element of plagiarism.

As regards that one passage from Professor Tams, 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.

As regards the passages from Ellis, the Court notes that the lengthy passages in
Footnote 65 of Vinuya came almost verbatim from Ellis’ article but did not contain an
acknowledgment or introduction that they are from that article. Moreover, as regards
the passages from the work of Professors Criddle and Descent, it was also observed that
the Vinuya decision lifted the portions, including their footnotes, from Criddle-Descent’s article, A
Fiduciary Theory of Jus Cogens as footnotes in the Vinuya decision without any attributions made
to the two authors. Unless amply explained, these unattributed lifting from the works of Ellis and
Criddle-Descent could be construed as plagiarism.

The explanation came from one of Justice Del Castillo’s researchers, a court-employed
attorney. She 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. The 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.

It was notable that 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.

2. NO, Justice Del Castillo did NOT twist the works of authors Tams, Criddle-
Descent, and Ellis to make it appear that such works supported the Court’s position in
the Vinuya decision.

The decision [in Vinuya] did NOT twist the passages from Tams, Criddle-Descent, and
Ellis. To twist means “to distort or pervert the meaning of.” 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.

In Re Del Castillo Plagiarism Controversy (Part I) : The October 12,

2010 Per Curiam Decision

Yesterday’s issue of the Philippine Daily Inquirer carried the headline “House body tightens
noose on SC justice.” It was reported that the House committee on justice voted 40-7 last
Wednesday to declare the long-pending impeachment complaint against Supreme Court Associate
Justice Mariano del Castillo sufficient in substance. Justice del Castillo was purportedly given 10 days
from Wednesday to answer the complaint. [This is INACCURATE. The 10 days is counted from
receipt of the formal notice from the committee.]

The story reported that House Minority Leader Edcel Lagman attempted to have the voting
suspended for another week until the committee had perused the Supreme Court per
curiam decision exonerating Del Castillo. He was of course outvoted. [To read a digest of the per
curiam decision, please click here.]

The impeachment complaint, according to the story, was filed sometime in December 2010. On
May 18, 2011, the committee on justice voted 11-10 [with one abstention] to declare the complaint
sufficient in form. On the other hand, the per curiam decision and subsequent resolution in A.M. No.
10-7-17-SC, the plagiarism administrative matter, were promulgated on October 12, 2010
and February 8, 2011, respectively. Lagman’s stated reason is therefore pathetically lame since if they
were so minded, they had all the time to read the decision (and resolution) before the vote was pushed
by the administration solons last Wednesday.
 To have a context of the pending impeachment proceeding, we look back at how the
controversy began and how the High Tribunal decided A.M. No. 10-7-17-SC. In this post, we
summarize the October 12, 2010 per curiam decision of the Court. In the next post, we will summarize
the February 8, 2011 resolution of the motion for reconsideration.

How the controversy began

In the landmark decision of Vinuya vs. Executive Secretary, G.R. No. 162230, promulgated
last April 28, 2010, the Supreme Court DISMISSED the petition filed by a group of Filipino “comfort women”
during the Japanese military occupation of the Philippines. The Court, speaking through Justice Mariano C. del
Castillo, held that the petition seeking to compel the Executive Department to espouse the petitioners’
claims for official apology and other forms of reparations against Japan before the International Court
of Justice and other international tribunals has NO MERIT because: (1) the prerogative to determine
whether to espouse petitioners’ claims against Japan belongs exclusively to the Executive Department; and (2)
the Philippines is not under any international obligation to espouse the petitioners’ claims.

Discontented with the foregoing decision, Vinuya, et al. filed a motion for reconsideration.
Subsequently, they also filed a supplemental motion for reconsideration, this time accusing the Justice del
Castillo of plagiarizing (copying without attribution) passages from three foreign legal articles:

(1) A Fiduciary Theory of Jus Cogens by Professors Evan J. Criddle (Associate Professor of Syracuse
University College of Law) and Evan Fox-Descent (Assistant Professor of McGill University Faculty of
Law) published in the Yale Journal of International Law in 2009;

(2) Breaking the Silence: Rape as an International Crime by Mark Ellis (Executive Director of the
International Bar Association), published in the Case Western Reserve Journal of International Law in
2006; and

(3) Enforcing Erga Omnes Obligations in International Law by Professor Christian J. Tams (Chair of
International Law of University of Glasgow School of Law), published in Cambridge University Press
(2005).

The petitioners also claimed that 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.

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 Chief Justice Renato Corona, for investigation
and recommendation. After the proceedings before it, the Committee submitted its findings and
 recommendations to the Court en banc, which then treated and decided the controversy as an
administrative matter.

The issues

The issues resolved by the Court en banc in this administrative case are as follows:

1. Did Justice Del Castillo, in writing the opinion for the Court in the Vinuya case, plagiarize the published
works of authors Tams, Criddle-Descent, and Ellis?

2. Did Justice Del Castillo twist the works of these authors to make it appear that such works supported
the Court’s position in the Vinuya decision?

3. Was Justice del Castillo guilty of misconduct/gross inexcusable negligence?

The October 12, 2010 per curiam decision

[By a 10-2 vote, with three Justices including Justice del Castillo taking no part, the
Court DISMISSED the charges for lack of merit and held that Justice del Castillo was NOT guilty of
plagiarizing and twisting the cited materials and hence did NOT commit gross negligence.]

1. NO, Justice Del Castillo did NOT plagiarize the published works of authors Tams,
Criddle-Descent, and Ellis.
.
According to the Court, 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.” The passing off of the
work of another as one’s own is thus an indispensable element of plagiarism.

As regards that one passage from Professor Tams, the Court believed 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.

As regards the passages from Ellis, the Court noted that the lengthy passages in Footnote
65 of Vinuya came almost verbatim from Ellis’ article but did not contain an acknowledgment or
introduction that they are from that article. Moreover, as regards the passages from the work of
Professors Criddle and Descent, it was also observed that the Vinuya decision lifted the portions,
including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens as
footnotes in the Vinuya decision without any attributions made to the two authors. According to the
Court, unless amply explained, these unattributed lifting from the works of Ellis and Criddle-Descent
could be construed as plagiarism.

The explanation, said the Court, came from one of Justice Del Castillo’s researchers, a court-
employed attorney. She 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. 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.

For the Court, it was notable that 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.

The Court adopted 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.
 2. NO, Justice Del Castillo did NOT twist the works of authors Tams, Criddle-Descent,
and Ellis to make it appear that such works supported the Court’s position in
the Vinuya decision.

The Court adopted the Committee’s finding that the decision did NOT twist the passages
from Tams, Criddle-Descent, and Ellis. For the Court, this allegation of twisting or
misrepresentation remained a mystery. To twist means “to distort or pervert the meaning of.” 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.

3. NO, Justice del Castillo is NOT guilty of misconduct/gross inexcusable negligence.

The Court concluded that Justice del Castillo is NOT guilty of 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. 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. 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.

The Court also concluded that Justice del Castillo is NOT guilty of gross inexcusable
negligence. According to the Court, the contention that Justice Del Castillo is guilty of gross
inexcusable negligence since he has full control and supervision over his researcher and should not
have surrendered the writing of the decision to the latter, is erroneous. The assertion 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. 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. For the Court, 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.
The dissent of Justice Sereno

In her Dissenting Opinion, Justice Sereno opened with a scathing remark on the import of
the per curiam decision: “What is black can be called “white” but it cannot turn white by the mere
calling.”

According to Justice Sereno, the unfortunate ruling of the majority Decision that no plagiarism
was committed stems from its failure to distinguish between the determination of the objective,
factual existence of plagiarism in the Vinuya decision 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.

Justice Sereno made a painstaking part-by-part analysis of the Vinuya decision.

As regards that one passage from Professor Tams, she argued that the attribution to Tams
is wholly insufficient because without quotation marks, there is nothing to alert the reader that [a]
paragraph [in Vinuya] was lifted verbatim from Tams. The footnote [in Vinuya] leaves the reader with
the impression that the said paragraph is the author’s own analysis of erga omnes. The “See Tams,
Enforcing Obligations Erga omnes in International Law (2005)” line in footnote 69 of
the Vinuya decision does not clearly indicate that the statement on Simma’s observation was lifted
directly from Tams’s work; it only directs the reader to Tams’s work should the reader wish to read
further discussions on the matter.

As regards the passages from the work of Professors Criddle and Descent that were used
either in the body or in the discursive footnotes of Vinuya, Justice Sereno noted seventeen (17)
instances when Justice del Castillo failed to use quotation marks to indicate that the passages were
not his but were lifted from Criddle & Fox-Decent’s work published in Yale Law Journal of International
Law. Some of the passages were absolutely without any attribution to the authors.

As regards the passages from Ellis, the Vinuya decision failed 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.

Thus, to Justice Sereno, 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.

Justice Sereno then explained why the narration and explanation in the majority decision [of
the accidental deletion of the attributions from the draft of the Vinuya decision] is not a fair presentation
of what happens in electronically generated writings aided by electronic research, thus:

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 [majority’s] explanation regarding the lines [quoted from the work of Professor
Tams] may touch upon what happened in [this particular incident of non-attribution], but it does not
relate to what happened in [all all the other 23 incidents of non-attribution], which are wholesale lifting
of excerpts from both the body and the footnotes of the referenced works, without any attribution,
specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s
work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the
discussions and analyses in their discursive footnotes were used wholesale.

Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of
119 does not plausibly account for the extensive amount of text used with little to no modifications
from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text
occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-
attribution cannot be remedied by the reinstatement of 2 footnotes.

Fifth, the mention of Tams in “See Tams, Enforcing Obligations Erga omnes in International
Law (2005)” in footnote 69 of the Vinuya decision was not a mere insufficiency in “clarity of writing,”
but a case of plagiarism under the rule prohibiting the use of misleading citations.

Sixth, the analogy that was chosen ─ that of a carpenter who discards materials that do not
fit into his carpentry work ─ is completely inappropriate. In the scheme of “cutting and pasting” that the
researcher did during her work, it is standard practice for the original sources of the downloaded and
copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A
computer-generated document can accommodate as many quotation marks, explanatory notes,
citations and attributions as the writer desires and in multiple places. The limits of most desktop
computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and
megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming
roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an
electronic document is practically negligible. It is not as if the researcher lacked any electronic space;
there was simply no attribution.

Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and
in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically
type in quotation marks at the beginning and end of a passage that was lifted verbatim; these
attribution marks must be made with deliberate effort by the human researcher. Nor can a software
program generate the necessary citations without input from the human researcher. Neither is there a
built-in software alarm that sounds every time attribution marks or citations are deleted. The best
guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of
court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical
practice, if they took their legal research courses in law school and their undergraduate research
courses seriously. This knowledge can be easily picked up and updated by browsing many free online
sources on the subject of writing standards. In addition, available on the market are software
programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with
those in selected published materials; however, these programs cannot supply the citations on their
own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to
make partial audits of their work, but it is still the human writer who must decide to give the proper
attribution and act on this decision. [Emphasis in the original.]

To Justice Sereno, while indeed the notion of having committed judicial plagiarism may be
unsettling to contemplate, as it may raise in the mind of a judge the question of his or her own
culpability, 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.

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.

The dissent closed with the statement on the “unfortunate result of the majority decision,” thus:
 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.

[Next post: The February 8, 2011 per curiam resolution and the dissents of Justices Carpio
(who did not participate in the October 12, 2010 decision), Carpio-Morales, and Sereno.]

In Re Del Castillo Plagiarism Controversy (Part II) : The February 8,

2011 Per Curiam Resolution (With Separate Concurrences)
In its Per Curiam Resolution promulgated last February 8, 2011 in A.M. No. 10-7-17-SC, the
Supreme Court en banc DENIED the petitioners’ motion for reconsideration for lack of merit.

The Court first reiterated the definition of plagiarism that it used in the October 12, 2010
decision, thus:

Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says
Webster, is “to steal and pass off as one’s own” the ideas or words of another. Stealing implies malicious
taking. Black’s Law Dictionary, the world’s leading English law dictionary quoted by the Court in its
decision, defines plagiarism as the “deliberate and knowing presentation of another person's original ideas
or creative expressions as one’s own.” The presentation of another person’s ideas as one’s own must be
deliberate or premeditated—a taking with ill intent.

[To read a digest of the per curiam resolution, please click here. To read a digest of the
dissenting opinion of Justice Sereno, please click here. –Atty. Ed.]

Then, in response to the reaction from Justice Sereno’s comment that the
majority decision “has created unimaginable problems for Philippine academia,” the Court explained
that it is not actually setting aside the norms adopted by academic institutions in treating plagiarism,
thus:

[T]he Court’s decision in the present case does not set aside [the different norms assumed by
educational institutions in treating plagiarism]. The decision makes this clear, thus:

To paraphrase Bast and Samuels, 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 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.

For the majority, it is in the substance of the decisions of magistrates – like Justice del
Castillo – that their genius, originality, and honest labor can be found. Thus, as regards
the Vinuya decision, the Court explained why it is an original and honest work of Justice del Castillo:

In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides
in a way that no one has ever done. He identified and formulated the core of the issues that the parties
raised. And when he had done this, he discussed the state of the law relevant to their resolution. It was
here that he drew materials from various sources, including the three foreign authors cited in the charges
against him. He compared the divergent views these present as they developed in history. He then
explained why the Court must reject some views in light of the peculiar facts of the case and applied those
that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the
dispute in the case. On the whole, his work was original. He had but done an honest work.

The Court explained why it entertained the charges of plagiarism against Justice Del Castillo,
and why it found that the non-attribution did NOT amount to plagiarism:

The Court probably should not have entertained at all the charges of plagiarism against Justice Del
Castillo, coming from the losing party. But it is a case of first impression and petitioners, joined by some
faculty members of the University of the Philippines school of law, have unfairly maligned him with the
charges of plagiarism, twisting of cited materials, and gross neglect for failing to attribute lifted passages
from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism
as the world in general knows it.

True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their
works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence
as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning
drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed
researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Court
believed her since, among other reasons, she had no motive for omitting the attribution. The foreign
authors concerned, like the dozens of other sources she cited in her research, had high reputations in
international law.

Notably, those foreign authors expressly attributed the controversial passages found in their works
to earlier writings by others. The authors concerned were not themselves the originators. As it
happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there
remained in the final draft of the decision attributions of the same passages to the earlier writings from
which those authors borrowed their ideas in the first place. In short, with the remaining attributions after
the erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face
that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his
own.
The separate concurring opinion of Justice Brion

Justice Brion fully supported the conclusions of the Ethics Committee [as adopted by the per
curiam decision and resolution] and disagreed with Justice Carpio’s position that the Court has no
jurisdiction to discipline its Members as the only means to discipline them is through impeachment
proceedings that the Congress has the sole prerogative to undertake. He discussed the jurisdiction of
the Supreme Court to discipline its own members in the following wise:

A given in the discipline of Members of the Supreme Court is that they can only be “removed from
office” through impeachment, as provided under Article XI of the Constitution, on the specified grounds
of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal
of the public trust. The purpose of impeachment and the constitutional interest sought is to protect the
people and the State from official delinquencies and other malfeasances. The Constitution, however, is not
a single-purpose document that focuses on one interest alone to the exclusion of related interests;
impeachment was never intended by the Constitution to be the totality of the administrative actions or
remedies that the public or the Court may take against an erring Justice of the Court. Other related
constitutional interests exist touching on other facets of the Judiciary and public accountability. They are,
by themselves, equally compelling and demanding of recognition.

xxx xxx xxx

[Other] considerations [judicial independence; need for judicial integrity; and the insufficiency of
impeachment to protect the people and foster the public accountability that the Constitution speaks of],
taken together, dictate against the position of Justice Carpio that the Congress alone, through impeachment
and to the exclusion of this Court, can proceed against the Members of the Court.

xxx xxx xxx

Thus, when the conduct of a member of the Supreme Court is improper but is not of such gravity
to be considered as an impeachable offense, the Court – to protect its integrity – may address the
misconduct through an administrative disciplinary case against the erring member.

Justice Brion concluded that the Supreme Court can hear the case against Justice del
Castillo as an administrative matter, thus:

What the impeachment provisions of the Constitution guarantee is simply the right to be removed
from office only through the process of impeachment and not by any other means; it does not
preclude the imposition of disciplinary sanctions short of removal on the impeachable
official. Impeachment is the sole means of removal, but it is certainly not the sole means of
disciplining Members of the Supreme Court or, for that matter, public officials removable by
impeachment.

Accordingly, I believe that the Court has the authority to hear the present administrative disciplinary
case against Associate Justice Mariano del Castillo; in case of a finding of misconduct, it can impose
penalties that are not the functional equivalent of removal or dismissal from service. If, in the exercise of
its prerogative as interpreter of the Constitution, it determines that an act complained of falls within the
defined grounds for impeachment, then the Court should say so and forthwith forward its recommendations
to Congress as the body constitutionally mandated to act in impeachment cases.

To Justice Brion, the Court’s interpretation of plagiarism in this controversy is only limited to
its concept as an ethical violation of members of the judiciary. He noted that “[t]he dissatisfaction with
the Court’s October 12, 2010 Decision (resolving the plagiarism charge against Justice del Castillo or
the “plagiarism Decision”) primarily lies with the Court’s declaration that malicious intent is a
necessary element in committing plagiarism.” He discussed:

Separately from [the] distinctions [between “plagiarism” and “copyright infringement”], the matter
before the Court is Justice del Castillo’s alleged plagiarism or failure to make attributions as an ethical
violation, not a copyright violation under the Intellectual Property Code. Given these distinctions, I see no
reason to quibble over the definition of plagiarism – a term that, in the absence of any statutory limitation,
the Court can define and interpret for purposes of its administrative authority over all courts and the
personnel thereof.

From the point of view of ethical rules, what are important are the intent in undertaking an act and
the concepts of integrity, propriety, honesty and impartiality for purposes of dispensing justice by an
independent Judiciary. It is in this sense, and in light of the nature of the present case as an administrative
disciplinary charge against a Member of this Court, that the pronouncement of this Court on plagiarism and
on the merits of the ethical charge should be understood.

xxx xxx xxx

When the Supreme Court acts on complaints against judges under its supervision and control, it
acts as an administrator imposing discipline and not as a court passing upon justiciable controversies. It is
precisely for this reason that disciplinary cases are docketed as “Administrative Matters” or “A.M.”
Hence, any interpretation by the Court of “plagiarism” is limited to this context and cannot be held to bind
the academe in undertaking its educational functions, particularly its own power to define plagiarism in the
educational context. It likewise cannot bind Congress in its role as the sole authority to determine what
constitutes an impeachable offense, subject to what I stated above on the established scope of
impeachable offenses and the power of the Court to act in grave abuse of discretion situations under the
Constitution. Specifically, a finding by this Court that plagiarism was or was not committed cannot preclude
Congress from determining whether the failure or omission to make an attribution, intentionally or
unintentionally, amounts to a “betrayal of public trust.”
Justice Abad’s separate concurring opinion

Interestingly, Justice Abad went beyond the usual nature of a concurring opinion in his
treatment of the present controversy. [A concurring opinion is an opinion that agrees with the ponencia
or main opinion, but expresses other reasons for such agreement. –Atty. Ed.] Aside from “fully
concur[ring] in the majority opinion,” he also “react[ed] to the separate dissenting opinions of Justices
Antonio T. Carpio and Maria Lourdes P.A. Sereno.”

As regards the view of Justice Carpio that the Court has no authority over this
controversy, Justice Abad argued:

Certainly . . . the Supreme Court has the administrative authority to investigate and discipline its
members for official infractions that do not constitute impeachable offenses. This is a consequence of the
Court’s Constitutional power of “administrative supervision over all courts and the personnel thereof.” When
the Court decided earlier the plagiarism charge filed against Justice Mariano Del Castillo by the petitioners
in Vinuya, it was under a belief that “plagiarism,” which is not even a statutory offense, is an administrative
infraction. The petitioners in that case did not themselves object to the proceedings conducted by the
Court’s Ethics Committee.

After writing a rather toned down and respectful disagreement with Justice Carpio, he then
unleashed the brunt of his pen on Justice Sereno:

Justice Sereno castigates the majority in the Court for lowering the standards for judicial
scholarship, negating the educative and moral directional value in the writing and publishing of decisions,
bending over backwards to deny the objective existence of gross plagiarism, and condoning dishonesty in
the exercise of a function central to the role of the courts.

But our courts are in the business, not of “judicial scholarship,” but of deciding fairly and honestly
the disputes before them, using precedents and legal literature that, according to American scholars, belong
to the public domain. If this is not honest work for a judge, I do not know what is.

And Justice Sereno has no right to preach at the expense of the majority about “educative and
moral directional value” in writing published articles. For one thing, her standards are obviously for work
done in the academe, not for the judge plodding at his desk to perform government work. For another, I
note that on occasions she has breached those very standards, lifting from works of others without proper
attribution.

Justice Abad then enumerated the instances when Justice Sereno ostensibly did not properly
attribute her sources: First, in her article Toward the Formulation of a Philippine Position in Resolving
Trade and Investment Disputes in APEC, Justice Sereno allegedly lifted verbatim portions from Annex
2 of the General Agreement on Tariffs and Trade (GATT) 1994 entitled “Understanding on Rules and
Procedures Governing the Settlement of Disputes” “without introduction or preamble”, “without citing
this specific source” and “[without using] quotation marks to identify the copied portions.” According
to Justice Abad, Justice Sereno thus made ordinary readers like him believe that she also crafted
those portions. Justice Abad went on:

Justice Sereno’s explanation is that, since she was drawing from the rules embodied in
GATT’s Understanding on Dispute Settlement, she did not have to make attributions to those rules at each
turn of her writing. She may be correct if she in fact properly cited those rules the first time she copied from
it and, further, indicated a clear intent to do further copying down the line. But she did not. xxx.

xxx xxx xxx

Further, she did not identify the portions she copied verbatim in order to set them apart from her
own writing. Under the rule that she foists on Justice Del Castillo, quotation marks must be used whenever
verbatim quotes are made. This requirement is all the more important since, unlike domestic rules, the rules
of GATT are unfamiliar terrain to most readers. Thus, at the next turn, she could have at least enclosed in
quotation marks the other portions she copied verbatim from her source xxx.

In the same article, Justice Abad also noted that Justice Sereno copied significant lines from
Oppenheim’s Treatise without making an attribution to that work. On Justice Sereno explanation that
“trite, common, standard statement[s]” like the ones she copied from Oppenheim has “nothing original
at all about [them]” and need no citation or quotation marks, Justice Abad responded:

This is true. Indeed, the Court acknowledged in its October 12, 2010 decision that no plagiarism
could be committed respecting “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.” But I cite the above because Justice Sereno would not grant to Justice Del Castillo the liberty to
use common definitions and terms in his ponencia without the correct attribution.

Second, Justice Abad also mentioned about another omission of attribution in an article
entitled Justice and the Cost of Doing Business, which was published in 2007 by Justice Sereno and
two co-authors. According to Justice Abad, a portion of this article appeared to have been reproduced
without attribution from a 2005 publication, the Asian Development Bank Country Governance
Assessment (Philippines) 2005. And although “Justice Sereno has since explained to [Justice Abad’s]
satisfaction that such portion came from the three co-authors’ earlier 2001 report submitted to the
World Bank (WB),” he nevertheless commented:

Parenthetically, however, in the academic model, “dual and overlapping submissions” is a thesis
writer’s sin. It simply means that the same academic work is submitted to gain credit for more than one
academic course. In the publishing world, while not prohibited across the board, law journals and reviews
frown upon authors who submit manuscripts which have been previously published elsewhere, since the
purpose of publication is the circulation and distribution of original scholarship and the practice would permit
the author to be credited twice for the same work.

Third, Justice Abad alleged that Justice Sereno lifted a famous phrase from the United States’
case of Baker v. Carr without making attribution in her memorandum for petitioners-intervenors in the
case of Province of North Cotabato, et al. v. Government of the Republic of the Philippines Peace and
Panel on Ancestral Domain, et al. On Justice Sereno’s explanation that, since she earlier cited Baker
v. Carr in her memorandum, it would be utterly pointless to require her to repeat her citation as often
as excerpts from the case appear down the line, Justice Abad responded:

xxx. It is not quite pointless because one who copies from the work of another has an obligation,
she insists in her dissent, to make an attribution to his source. Otherwise, a writer can simply say at the
start of his article that he is copying from a list of named cases and it would be up to the reader to guess
where the copied portions are located in that article. An explanation like this from an academician is
disheartening.

After his “counter-attack” against Justice Sereno, Justice Abad then closed with the following
lines:

Using the severe standards she sets for Justice Del Castillo in Vinuya, i.e., “objective existence of
plagiarism,” I am afraid that any explanation of good faith or lack of malicious intent on Justice Sereno’s
part in copying without proper attribution from the work of Judge Posner would not be acceptable.

Still I can concede that Justice Sereno may not have intended to plagiarize the work of others even
if she copied verbatim from them without proper attribution or quotation marks. Her above articles were,
taken as whole, essentially hers. I regret, however, that since she wrote them as an academician bound
by the high standards that she and the University of the Philippines where she taught espouse, she may
have failed, borrowing her own phrase, to set the correct “educative and moral directional value” for the
young.

Justice Del Castillo, who did not write as an academician but as a judge, is at least entitled to the
liberties granted judges in writing decisions.

In Re del Castillo Plagiarism Controversy (Part III) : The February 8,

2011 Dissenting Opinions

The dissent of Justice Carpio

 Justice Carpio, who had no participation in the decision, dissented from the majority resolution
on two grounds. First, he argued that “[the Supreme] Court has no jurisdiction to decide in
an administrative case whether a sitting Justice of this Court has committed misconduct in office as
this power belongs exclusively to Congress.” Second, he said that “in writing judicial decisions a judge
must comply with the Law on Copyright as the judge has no power to exempt himself from the
mandatory requirements of the law.”
To Justice Carpio, “[o]nly Congress, as the exclusive disciplining authority of all
impeachable officers, can decide in a non-criminal, non-civil proceeding whether a sitting Justice of
this Court has committed plagiarism. Plagiarism is a betrayal of public trust because, as the majority
puts it, to plagiarize is “‘to steal and pass off as one’s own’ the ideas of another.” He however qualified
that “in writing judicial decisions a judge is liable for plagiarism only if the copying violates the moral
rights of the author under the Law on Copyright,” the apparent implication being that instances of non-
attribution in judicial decision-writing, which do not violate the moral rights of the author, is NOT
plagiarism. He went on to explain:

This Court may conduct an investigation of an administrative complaint against a sitting Justice to
determine if there is basis in recommending to the House of Representatives the initiation of an
impeachment complaint against the sitting Justice. This Court may also conduct an investigation of an
administrative complaint against a sitting Justice to determine if the complaint constitutes contempt of this
Court. However, this Court has no power to decide on the guilt or innocence of a sitting Justice in
the administrative complaint because such act is a usurpation of the exclusive disciplinary power
of Congress over impeachable officers under the Constitution. Any decision by this Court in an
administrative case clearing a sitting Justice of an impeachable offense is void for want of jurisdiction and
for violation of an express provision of the Constitution.

The dissent of Justice Sereno

Justice Sereno was again characteristically scathing and loaded with more ammunition on the
substance of her dissent. She wrote:

Even if a judge has to rely in large part on the drafts of his legal researchers, the work of a diligent
and honest judge will never display the severe plagiarism evident in the Vinuya Decision published under
the name of Justice Mariano C. del Castillo. A judge will only find himself in the same predicament as
Justice del Castillo if two situations coincide: (1) the judge wittingly or unwittingly entrusts a legal researcher
with the task of drafting his judicial opinion, and the legal researcher decides to commit severe plagiarism;
and (2) the judge: (a) does not read and study the draft decision himself; (b) even if he does read and study
the same, the “red flags” that are self-evident in the draft decision completely escape him; or (c) despite
having seen the red flags, he ignores them.

We use the words “severe plagiarism” here deliberately because not only were three (3) works of
the four (4) complaining authors plagiarized in Vinuya, text from the following copyrighted works was copied
without attribution as well: essays contributed by Robert McCorquodale and Phoebe Okowa to the
book International Law, edited by Malcolm Evans; an article written by Mariana Salazar Albornoz,
entitled Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges;
an article written by Elizabeth Prochaska, entitled Testing the Limits of Diplomatic Protection: Khadr v. The
Prime Minister of Canada; a report by Larry Niksch, entitled Japanese Military’s Comfort Women;
and an article by James Ladino, entitled Ianfu: No Comfort Yet for Korean Comfort Women and the Impact
of House Resolution 121. In addition, incorporated into Vinuya were excerpts from a decision of an
international tribunal without any signal given to the reader that the words were not those of Justice del
Castillo of the Philippine Supreme Court but the words of another tribunal. While there are views that a
judge cannot be guilty of plagiarism for failure to recognize foreign decisions as source materials in one’s
judicial writing – as when Justice Antonio C. Carpio opines that a judge cannot be guilty on this score alone
– it is beyond debate that there is a duty of care to attribute to these foreign and international judicial
decisions properly, and that one should never present these materials as if they are one’s own.

An estimate of the extent of the plagiarism in the Vinuya Decision has been made by my office.
The best approximation available to us, using the “word count” feature of Microsoft Word, reveals that
52.9% of the words used in the Vinuya Decision’s discussion on international law, which begins in page 24
and continues to the end (2,869 out of 5,419 words), are copied without attribution from other works.

To allay whatever concerns members of the judiciary may have on her thesis, Justice
Sereno reiterated the limitations of her analysis on the matter of the alleged plagiarism for non-
attribution in the Vinuya decision:

To allay any concern from members of the judiciary, I have been very careful to underscore the
limitations of my analysis of the Vinuya Decision. My Dissent of 12 October 2010 is very clear:

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.

To be categorical, a judge or legal researcher cannot be guilty for using doctrines that have been
incorporated into the mainstream and are standard terms of trade. Neither is a judge required to use
quotation marks or blockquotes every time there is a reference to allegations in the pleadings of parties, or
when he is discussing legal arguments using already accepted legal doctrines. It is when he ventures into
using the original words of others, especially those of legal scholars, that he must be particularly careful.
He cannot write to pass off the words of others, especially those of others’ pioneering works, as his own.
To do so is dishonest. xxx.

To show her readers that she has “scientific and objective basis to conclude that severe
plagiarism characterizes the Vinuya Decision,” Justice Sereno then enumerated more violations (in
addition to the ones enumerated in her October 12, 2010 dissent) of rules against plagiarism in
the Vinuya decision [The following is a summary of the other passages that, according to Justice
Sereno, were also lifted without attribution in Vinuya. –Atty. Ed.]:
(1) three more passages from Criddle and Fox-Decent’s work, which were copied word for word, including
the corresponding footnote;
(2) four more passages, including entire paragraphs from the work of Ellis;
(3) five passages from the respective works of Robert McCorquodale (Director of the British Institute of
International and Comparative Law in London), entitled The Individual and the International Legal
System, and Phoebe Okowa (Queen Mary University, London) entitled Issues of Admissibility and the
Law on International Responsibility, both of which were published in Malcolm Evans’s book
(International Law);

(4) seven passages, including summations and conclusions, from the article of Mariana Salazar Albornoz
entitled Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges;
(5) an excerpt from the third paragraph of Elizabeth Prochaska’s article, Testing the Limits of Diplomatic
Protection: Khadr v. The Prime Minister of Canada Prochaska;
(6) a sentence and two excerpts from Larry Niksch’s Report, Japanese Military’s Comfort Women, 10 April
2006;
(7) six passages, some with few changes and others verbatim, from James Ladino’s article, Ianfu: No
Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121.]

On the contention of Justice del Castillo’s researcher that accidental deletion is the sole reason
for the missing footnotes, but also that their office subsequently went over the Decision “sentence by
sentence” and concluded that no plagiarism was committed at all, Justice Sereno wryly commented
that “the rearrangement of the sentences lifted from the original work, the mimicking of the original
work’s use of footnotes, the subsequent back and forth copying and pasting of such footnotes – these
acts belie mere negligence.” To Justice Sereno, the analysis in the present dissent shows objective
plagiarism viewed through three lenses: extent, deliberateness, and effect, thus:

The massiveness and frequency with which instances of unattributed copying occur
in Vinuya highlight the extent of the plagiarism. Clever transpositions of excerpts to make them flow
according to the researcher’s transition phrases are clearly devices of a practiced plagiarist, which betray
the deliberateness of every single act. The plagiarism in Vinuya will also be scrutinized on the basis of
its effect, especially in light of its commission in a judicial decision. The rationale for such a thematic
presentation will then be discussed in a succeeding section, which deals with evaluating plagiarism.

Justice Sereno then elaborated. First, on the extent of the unattributed copying, which belies
inadvertence, she discussed:

In the tables outlined above, as well as in the analysis in my Dissent dated 12 October 2010, it can
be seen that the researcher of Justice del Castillo failed to make the necessary attribution twenty-three (23)
times in the body of the Vinuya Decision; the works whose texts were used without attribution include
several copyrighted journal articles, essays from a book on international law, and one congressional report
of the United States. There were thirty-six (36) missing citations in the footnotes, including twelve (12)
citations missing from footnote 65 alone. This adds up to a total of fifty-nine (59) missing citations. The
sheer number of missing citations is related to the length and volume of the footnotes and discussions,
some of which Justice del Castillo himself admitted to be unnecessary.

xxx xxx xxx

On its face, the sheer volume of portions copied, added to the frequency with which citations to the
plagiarized works were omitted while care was taken to retain citations to the sources cited by the
plagiarized works, reveal that the plagiarism committed cannot logically be anything other than deliberate.

Second, on the systematic commission of plagiarism, which demonstrates deliberateness, she

noted:

In pages twelve (12) to thirteen (13) of Vinuya, sentences from the body of Ladino’s article were
interspersed with Ladino’s footnotes, without a single attribution to Ladino (please refer to Table G).
Sentences from Ladino’s article were copied into footnote 32 of Vinuya, while the immediately succeeding
sentence was again copied to form part of the body of Vinuya. The cutting of sentences from Ladino’s work
and the patching together of these pieces to form a mishmash of sentences negate the defense of
inadvertence, and give the reader the impression that the freshly crafted argument was an original creation.

The work of Criddle and Fox-Decent was subjected to a similar process. This process is dissected in
the following list of instances ordered according to how they appear in pages 31 to 32 of the body of the
Decision:

[Justice Sereno then provided a detailed analysis of the FIVE instances of ‘patchwork plagiarism’
using the work of Criddle and Fox-Decent in pp. 31-32 of Vinuya. A similar method of splicing was shown
by Justice Sereno in another detailed analysis of another NINE instances of ‘patchwork plagiarism’ in
paragraph 1, footnote 65 of Vinuya using Dr. Ellis’ work. – Atty. Ed.]

The conscious thought required for the act of cutting and pasting the original author’s footnotes onto
the precise spot where the copied sentences ended contradicts the account of inadvertence. There is
consistent correspondence between the sentences copied to the footnote copied. In the example above,
the act of encapsulating Ellis’ footnotes in parentheses show further that in Vinuya there was a conscious
appropriation of Ellis’s sources in a usage that is substantially similar to what appears in his article. This
allegedly inadvertent copying of Ellis’s footnotes occurred no less than twelve (12) times in footnote 65
alone.

Justice Sereno discussed the research steps purportedly followed by Justice del
Castillo’s researcher in drafting the Vinuya decision, and showed why the alleged inadvertent non-
attribution is simply NOT plausible:
 xxx. I know of no software in the world, especially not Microsoft Word, that will generate the citation
to the work of Ellis on its own, without the appropriate action of the user. An honest researcher would
immediately copy and paste the citation references of Ellis into the copied portions, or type a reference or
label in, even if it were only a short form placeholder of the proper citation. If she did neither, she may be
sloppy, incompetent or downright dishonest.

During the deliberations of the Ethics Committee, the researcher explained this crucial step: “So I
would cut and paste relevant portions, at least portions which I find relevant into what turns out to be a large
manuscript which I can then whittle and edit and edit further.” Adhering to this account, there would be an
additional step in the process:

Step 5

If an existing draft or “manuscript” has already been created, the next step would be to incorporate the
selections from the articles into the draft. This is a second opportunity to ensure that the proper attributions
are made. If the researcher is diligent, she would already have tried to follow the correct form as prescribed
by the Manual of Judicial Writing.

If a “manuscript” or outline has already been formulated, then incorporating the selections would
require her to be conscious that these ideas and arguments are not her own. The process ideally alerts any
researcher that extraneous sources are being added. It allows her to make the following
considerations: Does this portion sufficiently discuss the historical context of a particular conclusion? Do I
need this literature as support for my arguments? Am I including it to support my arguments, or merely to
mimic the author’s? Corollarily, the researcher would initially assess if such argument made by the author
is adequately supported as well. She would check the author’s footnotes. In Vinuya, the copying of the
footnotes was so extensive, such that it practically used the uncited works as blueprint for the Decision’s
footnotes.

Justice Sereno likewise noted that “[t]he frequency of instances of missing citations and
actions required for deletion betray[s] deliberateness [in the non-attribution],” thus:

To purposefully input citations would require many key strokes and movements of the computer’s
“mouse.” If the attributions had indeed been made already, then the deletions of such attributions would not
simply happen without a specific sequence of key strokes and mouse movements. The researcher testified
that the necessary attributions were made in the earlier drafts, but that in the process of cutting and pasting
the various paragraphs, they were accidentally dropped. She makes it sound as if something like a long
reference citation can just easily fall by the wayside. Not so.

xxx xxx xxx

The researcher in Vinuya explained that footnotes were deleted along with headings of certain
portions, and with the deletion of the note reference mark in the body of the text, the citations in the
document’s footers disappeared also. For this scenario to happen with the same frequency as the number
of missing citations, the following steps must have been followed:
 1. First movement: Using hand and eye coordination, consciously move cursor to the location of
target footnote and/or heading, using either the mouse or arrow keys.

2. Second movement: Select the “note reference mark” by highlighting the target footnote
number. Note that unlike in normal characters or texts wherein a single press of the “delete” or “backspace”
button would suffice, a footnote number must be highlighted before it can be deleted. This means that either
the particular footnote and/or heading must have been “double-clicked” or it must have been specifically
highlighted by a precise horizontal motion of the cursor while pressing on a mouse button – both of which
require two movements (either two “clicks”, or a “click” and a “swipe”).

3. Third movement: Press “delete” or “backspace” key.

Note that in the case wherein the note reference mark was not highlighted by a mouse movement,
the “delete” or “backspace” key must have been pressed twice, as pressing it only once will merely highlight
the note reference mark without deleting the same.

Hence, even accommodating the explanation given by the researcher, at least four movements
must have been accomplished to delete one footnote or reference. Multiply this with the number of
references that were “dropped” or “missing,” and you have a situation wherein the researcher accomplished
no less than two hundred thirty-six (236) deliberate steps to be able to drop the fifty-nine (59) citations that
are missing in Vinuya. If by some chance the cursor happened to be at the precise location of the citations,
and the citations were subsequently deleted by an accidental click of the mouse, this would still have
necessitated a total of one hundred seventy seven (177) clicks. It is understandable if a researcher
accidentally deleted one, two or even five footnotes. That a total of 59 footnotes were erased by mere
accident is inconceivable.

To make a conservative estimate, we can deduct the number of times that a footnote number in
the body of the Decision could simply have been deleted inadvertently. Our analysis indicates that this
could have happened a third of the time, or an estimate of twenty times, when short footnotes
containing “supra” or “id.” could have been easily forgotten or omitted. This would still have yielded sixty
deliberate steps or movements, and would alert the researcher either that: 1) too much of the body
comprises ideas which are not his own, or 2) too many of the sources in his “main manuscript” were getting
lost. Subsequently, if more than half of the attributions in the International Law discussion went missing,
the simple recourse would have been either to review his or her first draft, or simply delete his lengthy
discursive footnotes precisely because he cannot remember which articles he might have lifted them from.

xxx xxx xxx

As to the claim of the researcher that the footnotes in the headings were accidentally deleted, there
was a failure on the part of the Ethics Committee to thoroughly investigate the matter when they relied on
a presentation of what, according to the researcher, happened during her research for and drafting of
the Vinuya Decision. Instead of asking her to re-create the various situations of “inadvertent dropping,” the
Ethics Committee satisfied itself with a “before” and “after” Microsoft PowerPoint presentation which could
not, by any stretch of the imagination, have recreated the whole process of researching and drafting that
happened in Vinuya unless every step were to be frozen through screenshots using the “Print Screen”
command in tandem with a common image management program. To simply present the “before” and
“after” scenario through PowerPoint has no bearing on the reality of what happened. Had the Ethics
Committee required that the presentation made before them be through recreation of the drafting process
using Microsoft Word alone, without “priming the audience” through a “before” and “after” PowerPoint
presentation, they would have seen the footnotes themselves behaving strangely, alerting the researcher
that something was seriously wrong. The Committee would then have found incredible the claim that the
accidental deletion of a footnote mark attached to a heading – and the subsequent transposition of text
under that heading to another footnote – could have occurred without the researcher being reminded that
the text itself came from another source. Proof of deliberate action is found in the Vinuya Decision itself
– the care with which the researcher included citations of the sources to which the authors of the copied
works referred, while conveniently neglecting attribution to the copied works themselves.

It is therefore impossible to conclude that such gross plagiarism, consisting of failure to attribute to
nine (9) copyrighted works, could have been the result of anything other than failure to observe the
requirements of the standard of conduct demanded of a legal researcher. There is also no basis to conclude
that there was no failure on the part of Justice del Castillo to meet the standard of supervision over his law
clerk required of incumbent judges.

One interesting aspect about this resolution is how another magistrate, Justice Roberto Abad,
made a counter-accusation of plagiarism against Justice Sereno. The former alleged that the latter
“lifted from works of others without proper attribution.” Justice Sereno however refuted these
allegations point by point. She closed by ruefully noting:

The problem with the majority approach is that it refuses to face the scale of the plagiarism in the
Vinuya Decision. If only that were the starting point for the analysis of the majority, then some of my
colleagues would not have formed the impression that I was castigating or moralizing the majority. No court
can lightly regard a ponencia, as in Vinuya, where around 53% of the words used for an important section
were plagiarized from sources of original scholarship. Judges and their legal researchers are not being
asked to be academics; only to be diligent and honest.

The separate dissenting opinion of Justice Carpio Morales

Justice Carpio Morales concurred with her cousin Justice Carpio “on the commission of
plagiarism or violation of intellectual property rights in the Vinuya decision.” She also joined him “on
his other thesis that [the Supreme] Court has no jurisdiction to decide an administrative case where a
sitting Justice of [the Supreme] Court has committed misconduct in office,” but “with qualification.”

To Justice Carpio Morales “the [Supreme} Court may wield its administrative power against its
incumbent members on grounds other than culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust, AND provided the offense or
misbehavior does not carry with it a penalty, the service of which would amount to removal from
office either on a permanent or temporary basis such as suspension. She thinks however that –

In view of the impeachment complaint filed with the House of Representatives involving the same
subject matter of the case, which denotes that a co-equal branch of government found the same act or
omission grievous as to present a ground for impeachment and opted to exercise its constitutional
function, I submit that the Court cannot proceed with the administrative complaint against Justice Del
Castillo for it will either (i) take cognizance of an impeachable offense which it has no jurisdiction to
determine, or (ii) downplay the questioned conduct and preempt the impeachment proceedings.

Justice Carpio Morales likewise noted that “[w]hile the Court recognizes that there were indeed
lapses in the editorial work in the drafting of the Vinuya Decision, it easily attributed them to “accidental
deletions.” It conveniently assigned such human errors to the realm of accidents, without
explaining whether it could not have been foreseen or avoided.” She thus posited “that the legal
researcher, who must hitherto be named, is liable for Simple Neglect of Duty and must be ordered to
pay a Fine in the amount of . . . P10,000.00, with warning of more severe sanctions for future similar
conduct.”

Finally, she argued that “[w]hether liability attaches to what the October 15, 2010 per
curiam Decision finds to be deletion or omission of citation “unquestionably due to inadvertence or
pure oversight,” the fact remains, nonetheless, that there is a need for a textual correction of
the Vinuya Decision. This Court should cause the issuance of a corrected version in the form of, what
Justice Ma. Lourdes P. A. Sereno suggests as, a “corrigendum.””

In Re: Letter of the UP Law Faculty

AM No. 10-10-4-SC

Leonardo-De Castro, J.:

FACTS:

On 28 April 2010, the decision of the case Vinuya v Executive Secretary was
promulgated with Justice Mariano del Castillo as its ponente. Motion for
reconsideration was filed by the petitioner’s counsel on various grounds but most
notably on the ground that not only did the ponente of the case plagiarised at
least 3 books and articles in discussing the principles of jus cogens and erga
omnes, but have also twisted such quotations making it appear contrary to the
intent of the original works. The authors and their purportedly plagiarized articles
are: 1) Evan J Criddle and Evan Fox-Decent’s A Fiduciary Theory of Jus
Cogens published in 2009 in the Yale Journal of International Law; 2) Christian J.
Tams’ Enforcing Erga Omnes Obligations in Internation Law published by the
Cambridge University Press in 2005; and 3) Mark Ellis’ Breaking the Silence: On
Rape as an International Crime published in the Case Western Reserve Journal
of Internation Law in 2006. Thereafter, news regarding the plagiarism by the
Supreme Court spread over the media and the original authors wrote letters to
the Chief Justice expressing discontent by the questioned act of Justice del
Castillo.

On 27 July 2010, the UP College of Law faculty members gave their opinion on
the matter of plagiarism by issuing an article titled “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”
signed overall 37 faculty members. In said article, the faculty expressly gave
their dismay saying that the court had the hopes of relief from those “comfort
women” during the war “crushed by a singularly reprehensible act of dishonesty
and misrepresentation by the Highest Court of the Land.”

In the article, it was stated that plagiarism, as appropriation and

misrepresentation of another person’s work as one’s own, is considered as
“dishonesty, pure and simple.” Hence, it was argued that since the decision in
the Vinuya case form part of the Philippine judicial system, the Court, in fine, is
allowing dishonesty to be promulgated. Furthermore, the plagiarism and
misrepresentation in the Vinuya case undermines the judicial system of our
country and is a dirt on the honor and dignity of the Supreme Court, the article
sought for the resignation of Associate Justice Mariano del Castillo.

In response to the said article, the Court issued a resolution stating that the
remarks and choice of words used were such a great insult to the members of
the Court and a threat to the independence of the judiciary, a clear violation of
Canons 1, 11 and 13 and the Rules 1.02 and 11.05 of the Code of Professional
Responsibility. Thereafter, the Court ordered the signatories to show cause on
why they should not be disciplined as members of the Bar for such alleged
violations.

In fulfillment of the directive by the Court, the signatories passed a Common

Compliance stating therein that their intention in issuing the article in question
“was not to malign the Court but rather to defend its integrity and credibility and
to ensure continued confidence in the legal system” by the words used therein as
“focusing on constructive action.” Also, it was alleged that the respondents are
correct in seeking responsibility from Justice del Castillo for he, indeed,
committed plagiarism thus, rectifying their issuance of the article. Furthermore,
the respondents argued that the article in question is a valid exercise of the
freedom of expression as citizens of a democracy, and an exercise of academic
freedom.

ISSUES:

W/N the UP Law Faculty’s actions constitute violation of various

Canons and Rules of the Code of Professional Responsibility.

HELD:

Yes. The Court ruled that the Common Compliance given by the respondent-
signatories in the questioned article is not sufficient in reasoning why they should
not be disciplined as members of the Bar.

“…the adversarial nature of our legal system has tempted members of the bar to
use 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 personality and 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.

“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.”

“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.”

The Court further reminded the respondent law professors “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.”

DISSENTING OPINION

Sereno, J.:

The Court’s act in directing the law professors to furnish the Show
Cause Resolution is like the little boy who exclaimed that the emperor has no
clothes in the Danish story be made to explain why he should not be punished for
his keen observation which is an act of prematurely judging them guilty. The
Court’s act of labelling Justice del Castillo’s act as not plagiarism is what makes
this contempt case grave. It should not be the place of the Court to seek
revenge against those who have the courage to say what is wrong with it.

The Resolution requiring the Show Cause Resolution demonstrates nothing but
an abrasive flexing of the judicial muscle that could hardly be characterized as
judicious. This knee-jerk response from the Court stares back at its own face,
since this judicial act is the one that is totally unnecessary, uncalled for and a
rash act of misplaced vigilance.

Carpio, J.:

The Show Cause Resolution by the respondents is sufficient and there is no

need to admonish or warn them of the use of disrespectful language. The Court
adheres to the clear and present danger test and it appears that the evil
consequences of the statements are absent and it does not exhibit that irrational
obsession to demean, ridicule, degrade and even destroy the courts and their
members. There is only contempt when the article is taken apart, contrary to the
practice of the Court which is to read with contextual care making sure that
disparaging statements are not taken out of context.

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”
A.M. No. 10-10-4-SC
March 8, 2011
Facts:
On April 28, 2010, the Supreme Court decided on the case of Vinuya, et al. v.
Executive Secretary, in the ponencia of Associate Justice Mariano del Castillo. On
May 31, 2010, the counsel for Vinuya, et al. (the “Malaya Lolas”), Attys. H. Harry L.
Roque, Jr. and Romel Regalado Bagares, filed a Motion for Reconsideration of the
decision. They again filed for a Supplemental Motion for Reconsideration on July 19,
2010 raising the charge of plagiarism against the judgment of the court. They
argued that there was extensive plagiarism of at least three sources and the true
intents of these works were twisted by the ponencia to suit the arguments denying
the petition. On the same day, the alleged issue on plagiarism was brought out to
the media. Three days later, Justice Del Castillo wrote to his colleagues on the
Court in reply to the charge of plagiarism. On July 27, 2010, the Court formed the
Ethics Committee and on August 2, 2010, the committee required Attys. Roque and
Bagares to comment on the letter.
On August 9, 2010, the Restoring Integrity statement dated July 27, 2010 was
posted on Newsweek’s website and on Atty. Roque’s blog, was featured in various
online news sites, and was posted at the UP College of Law bulletin board a day
after. On August 11, 2010, Dean Marvic M.V.F. Leonen of the UP College of Law
submitted a copy of the statement to the Court through Chief Justice Renato C.
Corona, but the copy did not contain the actual signatures of the signatories but
only stated the names of the 37 UP Law professors with the (SGD.) notation beside
their names. The Ethics Committee directed Atty. Roque to present the signed copy
of the written statement and the committee found discrepancies between the
submitted copy of Dean Leonen and the original signed document. The Court
observed that the statement reflected the opinions and dissatisfactions of the
educators on the allegations of plagiarism against Justice Del Castillo and his
explanations and upheld such allegation as truth, and the Court also observed that
the statement attacks and criticizes the Supreme Court and its members and
threatens the independence of the judiciary, contrary to the obligation of the law
professors and officers of the Court to uphold the dignity and authority of the Court,
to which they owe fidelity according to the oath they took as attorneys. The Court
then directed the signatories to show cause why they should not be disciplined as
members of the Bar for violation of Canons 1, 11, and 13 and Rules 1.02 and 11.05
of the Code of Professional Responsibility. Dean Leonen was directed to show cause
for violation of Canon 10, Rules 10.01, 10.02, and 10.03 for submitting a dummy of
the statement to the Court. The controversy was docketed as an administrative
matter. 35 of the UP Law professors filed a common compliance, while Prof. Raul T.
Vasquez and Prof. Owen Lynch filed a separate compliance. Generally, they
emphasized their noble intentions, they upheld the fact that Justice Del Castillo
committed plagiarism, they have been singled out, and they exercised freedom of
expression and academic freedom. Prof. Vasquez conceded that the language used
in the statement might have been exacting while Prof. Lynch manifested he is not a
member of the Philippine Bar. Dean Leonen also filed a separate compliance for the
submission of the dummy statement claiming there was an error committed by him
and his clerk and that the statement’s signatory portion is evolving and dynamic.

Issues:
1. Whether or not the Show Cause Resolution deny respondents their freedom of
expression.
2. Whether or not the Show Cause Resolution violate respondents’ academic
freedom as law professors.
3. Whether or not 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. Whether or not the separate Compliance of Dean Leonen satisfactorily
explains why he should not be disciplined as a Member of the Bar under
Canon 10, Rules 10.01, 10.02, and 10.03.
5. Whether or not respondents are entitled to have the Show Cause Resolution
set for hearing and respondents are entitled to require the production or
presentation of evidence bearing on the plagiarism and misrepresentation
issues in the Vinuya case and the ethics case against Justice Del Castillo 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.

Ruling:
1. No, the Show Cause Resolution itself recognized respondents’ freedom of
expression. The purpose of the statement of the faculty was to discredit the
April 28, 2010 decision in the Vinuya case, establish as a fact that Justice Del
Castillo was guilty of plagiarism pending an ongoing investigation, and
undermine the Court’s honesty, integrity, and competence in addressing the
motion for reconsideration. The statement was an institutional attack and
insult. 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.
2. No, there is nothing in the Show Cause Resolution that dictates upon
respondents the subject matter they can teach and the manner of their
instruction. Academic freedom cannot be successfully invoked by
respondents in this case. Lawyers when they teach law are considered
engaged in the practice of law. Respondents are bound by their oath to
uphold the ethical standards of the legal profession.
3. No, whether or not respondents’ views regarding the plagiarism issue on the
Vinuya case had valid basis was wholly immaterial to their liability for
contumacious speech and conduct. 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.
4. No, 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. The Court cannot subscribe to Dean Leonen’s implied view
that the signatures in the statement are not as significant as its contents. If
Dean Leonen was truly determined to observe candor and truthfulness in his
dealings with the Court, there is 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.
5. No, the request is unmeritorious. It should be clarified that this is not an
indirect contempt proceeding and Rule 71 has no application to this case. As
explicitly ordered in the Show Cause Resolution this case was docketed as an
administrative matter.