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.
No comments:
Post a Comment