DELA CRUZ, EI EILEEN EI EIKA M.
LEGRES CASE DIGEST
In the matter of the charges of plagiarism, etc., against Associate Justice Mariano Del Castillo [A.M. No. 10 – 7 – 17 C! "cto#er $010% &AC'( G.R . No. 162230, 162230, prom (1) In the landmark landmark decision decision of Vinuya vs. Executive Secretary , G.R. promul ulga gate ted d last last April pril 28, 2010, the Supreme Court DIMI)D the petition filed b a group of !ilipino "comfort #omen$ during the %apanese militar occupation of the &hilippines' he Court, speaking through Just Justic icee Mar Maria iano no C. del del Cas Casti till llo o , held that that the the peti petitio tion n seeki seeking ng to compel the *ecuti+e *e cuti+e epartment epartme nt to espouse the petitionerspet itioners- claims clai ms for official apolog and other forms of reparations against %apan before the International Court of %ustice and other international tribunals has N" M)*I' because. (1) the prerogati+e to determine #hether to espouse petitionersclaims against %apan belongs e*clusi+el to the *ecuti+e epartment/ and (2) the &hilippines is not under an international obligation to espouse the petitioners- claims'
(2) iscontented #ith the foregoing decision, the petitioners in Vinuya filed a motion for reconsideration' Subseuentl, Subseuentl, the also filed a supplemental motion for reconsideration, this time accusing the Just Justic icee del del Cast Castil illo lo of plagiariing (coping #ithout attribution) and t#isting passages from three foreign legal articles to support the Court-s position in the Vinuya decision. Vinuya decision.
(a) A Fiduciary Theory of Jus Cogens b Cogens b &rofessors +an %' Criddle (Associate &rofessor of Sracuse ni+ersit College of 3a#) and +an !o*4escent (Assistant &rofessor of 5c6ill ni+ersit !acult of 3a#) published in the 7ale %ournal of International 3a# in 200/ (b) Breaking Breaking the Silence: Rae as as an !nternational !nternational Cri"e b 5ark llis (*ecuti+e irector of the International 9ar Association), published in the Case :estern ;eser+e %ournal of International 3a# in 200) he Court then referred the charges against Justice against Justice (el Castillo Castillo to its Committee on thics and thical Standards, chaired b Chief Justice Renato Corona, Corona, for in+estigation and recommendation' After After the proceedings before it, the Committee submitted its findings and recommendations to the Court en banc, #hich then treated and decided the contro+ers contro+ers as an administrati+e administrati+e matter'
I+)(
(1) :hether or not Justice not Justice (el Castillo Castillo,, in #riting the opinion for the Court in the Vinuya case, Vinuya case, plagiaried the published #orks of authors ams, ams, Criddle4escent, Criddle4escent, and llis' (2) :hether or not Justice not Justice (el Castillo Castillo t#isted t#isted the #orks of these authors to make it appear that such #orks supported the Court-s position in the Vinuya decision' Vinuya decision' (>) :hether or not %ustice el Castillo emploed gross ine*cusable negligence gi+en the researcher-s admission'
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
*+IN-(
?)By a *+- ote, 'ith three Justices including Justice del Castillo taking no art, the Court DISMISSED the charges for lack of "erit and held that Justice del Castillo 'as NO G!I"# of lagiari/ing and t'isting the cited "aterials and hence did NO co""it gross negligence.0 1. NO, $ustice De% &asti%%o, in 'ritin( t)e o*inion +or t)e &ourt in t)e Vinuya case, i NO *%a(iari-e t)e *u%is)e 'or/s o+ aut)ors as, &ri%eDescent, an E%%is. ' At its most basic, plagiarism means the theft of another person-s language, thoughts, or ideas' o plagiarie, as it is commonl understood according to :ebster, is "to take (ideas, #ritings, etc') from (another) and pass them off as one-s o#n'$ he passing off of the #ork of another as one-s o#n is thus an indispensable element of plagiarism'
As regards that one passage from rofessor 'ams, the Court belie+es that #hether or not the footnote is sufficientl detailed, so as to satisf the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarit of #riting' he statement "See ams, nforcing @bligations #rga $"nes in International 3a# (200=)$ in the Vinuya decision is an attribution no matter if ams thought that it ga+e him some#hat less credit than he deser+ed' Such attribution altogether negates the idea that %ustice el Castillo passed off the challenged passages as his o#n' hat it #ould ha+e been better had %ustice el Castillo used the introductor phrase " cited in$ rather than the phrase " See$ #ould make a case of mere inad+ertent slip in attribution rather than a case of "manifest intellectual theft and outright plagiarism'$ If the %ustice-s citations #ere imprecise, it #ould ust be a case of bad footnoting rather than one of theft or deceit' If it #ere other#ise, man #ould be target of abuse for e+er editorial error, for e+er mistake in citing pagination, and for e+er technical detail of form' As regards the passages from )llis , the Court notes that the length passages in !ootnote <= of Vinuya came almost +erbatim from llis- article but /i/ not contain an acnole/gment or intro/uction that the are from that article' 5oreo+er, as regards the passages from the or of rofessors Cri//le an/ Descent, it #as also obser+ed that the Vinuya decision lifted the portions, including their footnotes, from Criddle4escent-s article, A Fiduciary Theory of Jus Cogens as footnotes in the Vinuya decision #ithout an attributions made to the t#o authors' nless ampl e*plained, these unattributed lifting from the #orks of llis and Criddle4escent could be construed as plagiarism' he e*planation came from one of Justice (el Castillo-s researchers, a court4emploed attorne' She e*plained ho# she accidentall deleted the attributions, originall planted in the beginning drafts of her report to him, #hich report e+entuall became the #orking draft of the decision' She said that, for most parts, she did her research electronicall' !or international materials, she sourced these mainl from :estla#, an online research ser+ice for legal and la#4related materials to #hich the Court subscribes' he researcher sho#ed the Committee the earl drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle4escent and of llis #ith proper attributions to these authors' 9ut, as it happened, in the course of editing and cleaning up her draft, the researcher accidentall deleted the attributions' It #as notable that neither Justice (el Castillo nor his researcher had a moti2e or reason for omitting attribution for the lifted passages to Criddle4escent or to llis' he latter authors are highl respected professors of international la#' he la# ournals that published their #orks ha+e e*ceptional
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
reputations' It did not make sense to intentionall omit attribution to these authors #hen the decision cites an abundance of other sources' Citing these authors as the sources of the lifted passages #ould enhance rather than diminish their informati+e +alue' 9oth %ustice el Castillo and his researcher gain nothing from the omission' hus, the failure to mention the #orks of Criddle4ecent and llis #as unuestionabl due to inad+ertence or pure o+ersight' 2. NO, $ustice De% &asti%%o i NO t'ist t)e 'or/s o+ aut)ors as, &ri%eDescent, an E%%is to a/e it a**ear t)at suc) 'or/s su**orte t)e &ourts *osition in t)e Vinuya ecision.
he decision Bin inuaD /i/ N"' tist the passages from 'ams, Cri//le3Descent, an/ )llis' o t#ist means "to distort or per+ert the meaning of'$ !or e*ample, if one lifts the lrics of the Eational Anthem, uses it in his #ork, and declares that %ose &alma #ho #rote it "did not lo+e his countr,$ then there is "t#isting$ or misrepresentation of #hat the anthem-s lrics said' Fere, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors ams, Criddle4escent, and llis supported the Court-s conclusion that the &hilippines is not under an obligation in international la# to espouse inua et al.1s claims'
3. NO, $ustice e% &asti%%o is NO (ui%ty o+ isconuct(ross inexcusa%e ne(%i(ence.
he Court concluded that Justice del Castillo is N"' guilt4 of miscon/uct ' @n occasions udges and ustices ha+e mistakenl cited the #rong sources, failed to use uotation marks, inad+ertentl omitted necessar information from footnotes or endnotes' 9ut these do not, in e+er case, amount to misconduct' @nl errors that are tainted #ith fraud, corruption, or malice are subect of disciplinar action' his is not the case here' %ustice el Castillo-s acts or omissions #ere not sho#n to ha+e been impelled b an of such disreputable moti+es . If the rule #ere other#ise, no udge or ustice, ho#e+er competent, honest, or dedicated he ma be, can e+er hope to retire from the udiciar #ith an unblemished record' he Court also concluded that Justice del Castillo is N"' guilt4 of gross ine5cusa#le negligence' According to the Court, the contention that Justice (el Castillo is guilt of gross ine*cusable negligence since he has full control and super+ision o+er his researcher and should not ha+e surrendered the #riting of the decision to the latter, is erroneous' he assertion assumes that Justice (el Castillo abdicated the #riting of the Vinuya decision to his researcher, #hich is contrar to the e+idence adduced during the hearing' As his researcher testified, the %ustice set the direction that the research and stud #ere to take b discussing the issues #ith her, setting forth his position on those issues, and re+ie#ing and commenting on the stud that she #as putting together until he #as completel satisfied #ith it' In e+er sense, Justice (el Castillo #as in control of the #riting of the report to the Court, #hich report e+entuall became the basis for the decision, and determined its final outcome' !or the Court, #hat is important is that, in this case, Justice (el Castillo retained control o+er the #riting of the decision in the Vinuya case #ithout, ho#e+er, ha+ing to look o+er his researcher-s shoulder as she cleaned up her draft report to ensure that she hit the right computer kes' he %ustice-s researcher #as after all competent in the field of assignment gi+en her' She finished la# from a leading la# school, graduated third in her class, ser+ed as ditor4in Chief of her school-s 3a# %ournal, and placed fourth in the bar e*aminations #hen she took it' She earned a master-s degree in International 3a# and Fuman ;ights from a prestigious uni+ersit in the nited States under the 6lobal4Fauser program, #hich counsel for petitioners concedes to be one of the top post graduate programs on International 3a# in the #orld' %ustice el Castillo did not e*ercise bad udgment in assigning the research #ork in the Vinuya case to her'
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
N"')( 6$010 D)CII"N 88 Criddles concern, after reading the supplemental motion for reconsideration, #as the Courts conclusion that prohibitions against se*ual sla+er are not 2us cogens or internationall binding norms that treaties cannot diminish'
?? r' 5ark llis #rote the Court e*pressing concern that in mentioning his #ork , the Court ma4 ha2e misrea/ the argument BheD made in the article and emploed them for cross purposes' r' llis said that he #rote the article precisel to argue for appropriate legal remed for +ictims of #ar crimes ?? the ean of the ni+ersit of the &hilippines ('&') College of 3a# publicied a Statement from his facult, claiming that the Vinuya decision #as an e*traordinar act of inustice and a singularl reprehensible act of dishonest and misrepresentation b the Fighest Court of the land' he statement said that %ustice el Castillo had a deliberate intention to appropriate the original authors #ork, and that the Courts decision amounted to an act of intellectual fraud b coping #orks in order to mislead and decei+e'1B ?? After consulting %ustice el Castillo, his counsels reuested the Committee to hear the %ustices court researcher, #hose name need not be mentioned here, e*plain the research #ork that #ent into the making of the decision in the Vinuya case' he Committee granted the reuest' ?? he researcher demonstrated b &o#er &oint presentation ho# the attribution of the lifted passages to the #ritings of Criddle4escent and llis, found in the beginning drafts of her report to %ustice el Castillo, #ere unintentionall deleted' She tearfull e*pressed remorse at her grie+ous mistake and grief for ha+ing caused an enormous amount of suffering for %ustice el Castillo and his famil' 2B ?? o plagiarie, as it is commonl understood according to :ebster, is to take (ideas, #ritings, etc') from (another) and pass them off as one-s o#n' >B8D he passing off of the #ork of another as one-s o#n is thus an indispensable element of plagiarism' ?? he and petitioners cannot den that the decision did attribute the source or sources of such passages' %ustice el Castillo did not pass off ams #ork as his o#n' he %ustice primaril attributed the ideas embodied in the passages to 9runo Simma, #hom ams himself credited for them' Still, !ootnote < mentioned, apart from Simma, ams article as another source of those ideas'
1[5] Statement of the Unie!"it# of the $hi%i&&ine" Co%%e'e of La( )a*+%t# ate -+%# /, 010, Ehi2it - of the &etitione!".
[3] T!an"*!i&t of Steno'!a&hi* Note" ta4en on A+'+"t 3, 010, &. 1. [6] 7e2"te!" Ne( 7o!% Co%%e'e Di*tiona!#, Thi! Eition, Ma*mi%%an USA, &. 101.
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
?? In the old das, the common practice #as that after a %ustice #ould ha+e assigned a case for stud and report, the researcher #ould source his materials mostl from a+ailable la# books and published articles on print' :hen he found a rele+ant item in a book, #hether for one side of the issue or for the other, he #ould place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk #here other rele+ant books #ould ha+e piled up ?? :ith the ad+ent of computers, ho#e+er, as %ustice el Castillo-s researcher also e*plained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet #ebsites that offer +irtual libraries of books and articles' ?? She electronicall cut rele+ant materials from books and ournals in the :estla# #ebsite and pasted these to a main manuscript in her computer that contained the issues for discussion in her proposed report to the %ustice' She used the 5icrosoft :ord program' GB12D 3ater, after she decided on the general shape that her report #ould take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and #ords as her continuing discussions #ith %ustice el Castillo, her chief editor, demanded' &arentheticall, this is the standard scheme that computer4literate court researchers use e+er da in their #ork ?? he Court adopts the Committees finding that the researcher-s e*planation regarding the accidental remo+al of proper attributions to the three authors is credible' 6i+en the operational properties of the 5icrosoft program in use b the Court, the accidental decapitation of attributions to sources of research materials is not remote'
88 Fe #rote the decision for the Court and #as e*pected to take full responsibilit for an lapse arising from its preparation' :hat is more, the process of drafting a particular decision for the Court is confidential, #hich e*plained his initial reuest to be heard on the matter #ithout the attendance of the other parties'
?? 9ut petitioner-s theor ignores the fact that plagiarism is essentiall a form of fraud #here intent to decei+e is inherent' heir theor pro+ides no room for errors in research, an unrealistic position considering that there is hardl an substantial #ritten #ork in an field of discipline that is free of an mistake' he theor places an automatic uni+ersal curse e+en on errors that, as in this case, ha+e reasonable and logical e*planations' 88 Indeed, the 8th edition of 9lack-s 3a# ictionar defines plagiarism as the /eli#erate an/ noing presentation of another personHs original ideas or creati+e e*pressions as oneHs o#n' =B1
8[1] Memo!an+m fo! -+"ti*e De% Ca"ti%%o, &a!a'!a&h" 595. 5
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
plagiarism presupposes intent and a deliberate, conscious effort to steal another-s #ork and pass it off as one-s o#n'
88 9ecause such passages remained attributed b the footnotes to the author-s original sources, the omission of attributions to Criddle4escent and llis ga+e no impression that the passages #ere the creations of %ustice el Castillo' his #holl negates the idea that he #as passing them off as his o#n thoughts'
?? the udicial sstem is based on the doctrine of stare decisis, #hich encourages courts to cite historical legal data, precedents, and related studies in their decisions' he udge is not e*pected to produce original scholarship in e+er respect' he strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it dra#s from' ?? ' As his researcher testified, the %ustice set the direction that the research and stud #ere to take b discussing the issues #ith her, setting forth his position on those issues, and re+ie#ing and commenting on the stud that she #as putting together until he #as completel satisfied #ith it
N"') 6$011 D)CII"N(
?? In contrast, decisions of courts are not #ritten to earn merit, accolade, or prie as an original piece of #ork or art' eciding disputes is a ser+ice rendered b the go+ernment for the public good' %udges issue decisions to resol+e e+erda conflicts in+ol+ing people of flesh and blood #ho ache for speed ustice or uridical beings #hich ha+e rights and obligations in la# that need to be protected' he interest of societ in #ritten decisions is not that the are originall crafted but that the are fair and correct in the conte*t of the particular disputes in+ol+ed ?? he interest of societ in #ritten decisions is not that the are originall crafted but that the are fair and correct in the conte*t of the particular disputes in+ol+ed' %ustice, not originalit, form, and stle, is the obect of e+er decision of a court of la#' ?? here is a basic reason for indi+idual udges of #hate+er le+el of courts, including the Supreme Court, not to use original or uniue language #hen reinstating the la#s in+ol+ed in the cases the decide' heir dut is to appl the la#s as these are #ritten' ?? And because udicial precedents are not al#as clearl delineated, the are uite often entangled in apparent inconsistencies or e+en in contradictions, prompting e*perts in the la# to build up regarding such matters a large bod of commentaries or annotations that, in themsel+es, often become part of legal #ritings upon #hich la#ers and udges dra# materials for their theories or solutions in particular cases' ?? because of the nee/ to #e precise an/ correct, udges and practitioners alike, b practice and tradition, usuall lift passages from such precedents and #ritings, at times omitting, #ithout malicious intent, attributions to the originators'
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
?? 'he ten/enc4 to cop4 in la is rea/il4 e5plica#le. In la accurac4 of or/s is e2er4thing. egal /isputes often centre roun/ the a4 in hich o#ligations ha2e #een e5presse/ in legal /ocuments an/ ho the facts of the real orl/ fit the meaning of the or/s in hich the o#ligation is containe/. 'his, in con9unction ith the ris3a2ersion of la4ers means that refuge ill often #e sought in articulations that ha2e #een trie/ an/ teste/. In a sense therefore the communit4 of la4ers ha2e together contri#ute/ to this #o/4 of nole/ge, language, an/ e5pression hich is common propert4 an/ ma4 #e utili:e/, /e2elope/ an/ #ettere/ #4 an4one. ?? As %oce C' 6eorge, #hom %ustice 5aria 3ourdes Sereno cites in her dissenting opinion, obser+ed in her %udicial @pinion :riting Fandbook. A 9u/ge riting to resol2e a /ispute, hether trial or appellate, is e5empte/ from a charge of plagiarism e2en if i/eas, or/s or phrases from a la re2ie article, no2el thoughts pu#lishe/ in a legal perio/ical or language from a part4s #rief are use/ ithout gi2ing attri#ution. 'hus 9u/ges are free to use hate2er sources the4 /eem appropriate to resol2e the matter #efore them, ithout fear of reprisal. 'his e5emption applies to 9u/icial ritings inten/e/ to /eci/e cases for to reasons( the 9u/ge is not riting a literar4 or an/, more importantl4, the purpose of the riting is to resol2e a /ispute. As a result, 9u/ges a/9u/icating cases are not su#9ect t o a claim of legal plagiarism. 88 his is not to sa that the magistrates of our courts are mere copcats' he are not' heir
decisions anale the often conflicting facts of each case and sort out the rele+ant from the irrele+ant' he identif and formulate the issue or issues that need to be resol+ed and e+aluate each of the la#s, rulings, principles, or authorities that the parties to the case in+oke' he decisions then dra# their apt conclusions regarding #hether or not such la#s, rulings, principles, or authorities appl to the particular cases before the Court' hese efforts, reduced in #riting, are the product of the udges creati+it' It is here actuall the substance of their decisions that their genius, originalit, and honest labor can be found, of #hich the should be proud' ?? In Vinuya, %ustice el Castillo e*amined and summaried the facts as seen b the opposing sides in a #a that no one has e+er done' Fe identified and formulated the core of the issues that the parties raised' And #hen he had done this, he discussed the state of the la# rele+ant to their resolution' It #as here that he dre# materials from +arious sources, including the three foreign authors cited in the charges against him' Fe compared the di+ergent +ie#s these present as the de+eloped in histor' Fe then e*plained #h the Court must reect some +ie#s in light of the peculiar facts of the case and applied those that suit such facts' !inall, he dre# from his discussions of the facts and the la# the right solution to the dispute in the case' @n the #hole, his #ork #as original' Fe had but done an honest #ork'
DELA CRUZ, EILEEN EIKA M.
LEGRES CASE DIGEST
?? as the Court said, the e+idence as found b its thics Committee sho#s that the attribution to these authors appeared in the beginning drafts of the decision' nfortunatel, as testified to b a highl ualified and e*perienced court4emploed researcher, she accidentall deleted the same at the time she #as cleaning up the final draft' he Court belie+ed her since, among other reasons, she had no moti+e for omitting the attribution' ?? pon close e*amination and as %ustice el Castillo ampl demonstrated in his comment to the motion for reconsideration, he in fact made attributions to passages in such decision that he borro#ed from his sources although the at times suffered in formatting lapses' ?? Considering its abo+e ruling, the Court sees no point in further passing upon the motion of the Integrated 9ar of the &hilippines for lea+e to file and admit motion for reconsideration4in4inter+ention dated %anuar =, 2011 and r' &eter &aoos claim of other instances of alleged plagiarism in the inua decision' ACC"*DIN-;, the Court D)NI) petitioners motion for reconsideration for lack of merit' " "*D)*)D.
