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A.M. No. 10-7-17-SC October 15, 2010
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.
This case is concerned with charges that, in preparing a decision for the Court, a designated member plagiarized the works of certain authors and twisted their meanings to support the decision.
On April 28, 2010, the Court rendered judgment dismissing petitioners’ action. Justice Mariano C. del Castillo wrote the decision for the Court on the case of petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General.
The Court essentially gave two reasons for its decision: it cannot grant the petition because, first, the Executive Department has the exclusive prerogative under the Constitution and the law to determine whether to espouse petitioners’ claim against Japan; and, second, the Philippines is not under any obligation in international law to espouse their claims.
On June 9, 2010, petitioners filed a motion for reconsideration of the Court’s decision. More than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a supplemental petition "detailing plagiarism committed by the court" under the second reason it gave for dismissing the petition and that "these stolen passages were also twisted to support the court’s erroneous conclusions that the Filipino comfort women of World War Two have no further legal remedies." The media gave publicity to Atty. Roque’s announcement.
On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused Justice Del Castillo of "manifest intellectual theft and outright plagiarism" when he wrote the decision for the Court and of "twisting the true intents of the plagiarized sources … to suit the arguments of the assailed Judgment."
They charged Justice Del Castillo of copying without acknowledgement certain passages from three foreign articles:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
Petitioners claim that the integrity of the Court’s deliberations in the case has been put into question by Justice Del Castillo’s fraud. The Court should thus "address and disclose to the public the truth about the manifest intellectual theft and outright plagiarism" that resulted in gross prejudice to the petitioners.
Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute all sources used in it. He said in the pertinent part:
It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own. We recall that this ponencia was thrice included in the Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78 footnotes.
Twisted Foreign Materials
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 the Chief Justice, for investigation and recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddle’s concern, after reading the supplemental motion for reconsideration, was the Court’s conclusion that prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court "may have misread the argument [he] made in the article and employed them for cross purposes." Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was "an extraordinary act of injustice" and a "singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land." The statement said that Justice Del Castillo had a "deliberate intention to appropriate the original authors’ work," and that the Court’s decision amounted to "an act of intellectual fraud by copying works in order to mislead and deceive."
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the Court’s decision were taken from his work, he was given generic reference only in the footnote and in connection with a citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is not consistent with what he advocated.
On August 26, 2010, the Committee heard the parties’ submissions in the summary manner of administrative investigations. Counsels from both sides were given ample time to address the Committee and submit their evidence. The Committee queried them on these.
The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her "grievous mistake" and grief for having "caused an enormous amount of suffering for Justice Del Castillo and his family."
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary.
After the hearing, the Committee gave the parties ten days to file their respective memoranda. They filed their memoranda in due course. Subsequently after deliberation, the Committee submitted its unanimous findings and recommendations to the Court.
1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis.
2. Whether or not 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.
Because of the pending motion for reconsideration in the Vinuya case, the Court like its Committee on Ethics and Ethical Standards will purposely avoid touching the merits of the Court’s decision in that case or the soundness or lack of soundness of the position it has so far taken in the same. The Court will deal, not with the essential merit or persuasiveness of the foreign author’s works, but how the decision that Justice Del Castillo wrote for the Court appropriated parts of those works and for what purpose the decision employed the same.
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.
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.
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over his researcher and should not have surrendered the writing of the decision to the latter.
But this 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.
Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration in relation to that matter.
WHEREFORE, in view of all of the above, the Court:
1. DISMISSES for lack of merit petitioner Vinuya, et al.’s charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo;
2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses;
3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and reporting with copies of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing computer program especially when the volume of citations and footnoting is substantial; and
4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent future lapses in citations and attributions.
Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of petitioners’ Exhibit J, entitled "Restoring Integrity," a statement by the Faculty of the University of the Philippines College of Law for the en banc’s consideration in relation to the separate pending matter concerning that supposed Faculty statement.