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.””
No comments:
Post a Comment