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.
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.]
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