To thine own self be true--that to no one canst thou be false!
Thursday, October 21, 2010
An Open Appeal to International Legal Scholars
(I ask all Philippine Commentary and Global Post readers, correspondents and bloggers to give the letter below the greatest possible circulation in the Philippines and abroad--Dean Jorge Bocobo)
An Open Appeal to International Legal Scholars
by Professor Diane A. Desierto, University of the Philippines College of Law
Dear friends and fellow legal scholars,
I apologize for this long note, but I thought I should set the record straight on the maelstrom of ongoing institutional persecution against the UP Law Faculty, where I serve as a faculty member. Several hours ago, a majority at the Philippine Supreme Court issued an unprecedented contempt order for the “Statement of the Faculty of the UP College of Law”, naming 37 out of 81 faculty members (including five present and former deans, a retired Justice of the Supreme Court now back in the faculty, among other senior academics and junior faculty members) whose physical signatures appeared in the Statement. Many faculty members support this Statement, but, as is customary, did not need to physically sign the Statement so long as we signified our support over email. For this reason, many of us understand the contempt order to eventually extend to all 81 members of the UP College of Law. All our bar licenses, without which we cannot teach, work, or practice as lawyers, are now at stake.
Let me narrate the brief factual background of this case:
1. On April 28, 2010, the Philippine Supreme Court issued its decision in Isabelita Vinuya et al. v. Executive Secretary et al. (full text of this decision available at:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm ). This case involved a certiorari petition of most remaining Filipina survivors of the “comfort women system” during World War II, asking the Court to compel the Executive Branch to exercise its constitutional duties and international obligations, in order to ensure these Filipina survivors’ their rights to redress. I wrote this petition as a law student of UP Law in 2004 along with UP Law Professor Harry Roque, theorizing then that our broadly universalist 1987 Philippine Constitution imposed unique constitutional duties on the Philippine President to observe our international legal obligations, including the right to redress for war crimes, mass rapes, and sexual slavery. Professor Roque and I published our analysis and theory of the petition in 2006, in the Journal of International Law of Peace and Armed Conflict. (full text of this available at: http://www.ruhr-uni-bochum.de/ifhv/documents/huvi/huv_2006/3_2006.pdf Relevant pages are pp. 91-98).
2. The Vinuya decision denied the petition. Professor Roque filed an initial Motion for Reconsideration, subject to the submission of a more extended Supplemental Motion for Reconsideration (Supplemental MR) under the Philippine Rules of Court. Professor Roque and his colleague, Attorney Romel Bagares, closely coordinated with me in the preparation of the Supplemental MR . After we discussed the legal arguments, I requested Attorney Bagares to recheck all sources cited in the Vinuya decision, as is customary for us in preparing appellate pleadings. Several days later, Attorney Bagares and Professor Roque discovered that many significant portions of the Vinuya decision appeared to have been lifted without attribution from the works of International Law authors (Professor Evan Criddle and Professor Evan Fox-descent’s 2009 Article in the Yale Journal of International Law, titled “A Fiduciary Theory of Jus Cogens”; the book of Dr. Christian Tams, titled Enforcing Erga Omnes Obligations in International Law, published by Cambridge University Press; and an article by Mark Ellis, Executive Director of the International Bar Association, in the 2006 volume of Case Western Journal of International Law, entitled “Breaking the Silence: On Rape as an International Crime”). What was worse than the lifting without attribution of these sources was that the Vinuya Decision completely twisted what the authors said in their works. Professor Roque and Attorney Bagares decided to file the Supplemental MR inviting the Philippine Supreme Court’s attention to this grave matter, showing that the misrepresentation of these works erroneously laid the foundation for the Court’s decision to deny the petition. The Supplemental MR also included the rest of the arguments of the petition. The full text of the Supplemental MR can be found here:http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
a) Professor Criddle told Opinio Juris: “Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite.”
b) Dr. Tams’ letter said: “The relevant passage of the judgment is to be found on p. 30 of your Court’s Judgment, in the section addressing the concept of obligations erga omnes. As the table annexed to this letter shows, the relevant sentences were taken almost word by word from the introductory chapter of my book Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note that there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing. I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law….With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support – as it seemingly has – the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s judgment has drawn on scholarly work without properly acknowledging it.”
c) Mr. Ellis’ letter said: “My attention was called to the Judgment and the issue of possible plagiarism by the Philippine Chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI), an affiliate of the London based Media Legal Defence Initiative (MLDI) where I sit as a trustee. In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of the Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.”
5. In light of the apparent plagiarism and twisting of the works in the text of the Vinuya Decision and the Court’s predispositions, the UP Law Faculty issued a Statement asking the Court to take responsibility and to provide guidance to the Philippine bench and bar. The UP Law Faculty, headed by the present Dean Marvic M.V.F. Leonen and other law deans, expressed alarm at how the works were misused to deny a key petition of comfort women survivors, and asked the ponente of the Vinuya Decision, Justice Mariano del Castillo to voluntarily resign from the Court. The full text of the UP Law Faculty Statement can be found here:http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/
6. On Friday, October 15, 2010, a majority of ten members of the Philippine Supreme Court issued a resolution denying that Justice del Castillo had committed plagiarism and misuse of plagiarized works, holding that Justice del Castillo’s clerk/court researcher accidentally deleted the attributions, which could not have been detected since “the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned.” The full text of the decision can be found here:http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.htm
7. The newest member of the Court, Justice Lourdes Aranal-Sereno, strongly dissented along with (Justice Conchita Carpio-Morales) from the Court’s findings and showed why plagiarism and misrepresentation was committed not just through deletions of attributions, but due to the deliberate inclusion of phrases that tried to convey the opposite of what the authors’ works said. Saying that the court will be remembered for saying Del Castillo did not commit plagiarism because there was "no malicious intent" to pass off someone else's works as his own, Justice Sereno added that the ruling of the court's majority has caused "unimaginable problems" for the Philippine academe. She explained decisions on future cases of plagiarism committed by students will be based on the court's ruling that malicious intent must be present to constitute plagiarism. "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," said Sereno. "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," she added. The full text of the Sereno dissent can be found here: http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm
9. Copies of the Court’s seven-page Order were finally seen several hours ago. As will be seen from the full text of the Order and the dissenting opinions (I will repost this file in a separate note), the Court majority made the unprecedented move of holding the UP Law Faculty in contempt, until they can show why they do not merit contempt. Three justices of the Court noted this prejudgment in their dissents:
CARPIO-MORALES, j., dissenting:
"The Resolution demonstrates nothing but an abrasive flexing of the judicial muscle that could hardly be characterized as judicious. This knee-jerk response from the Court stares back at its own face, since this judicial act is one that is "totally unnecessary, uncalled for and a rash act of misplaced vigilance.
The adverse declarations describing the written work of the UP law faculty operate to their prejudice since that would render any subsequent proceeding illusory, because the Court, which would ultimately decide the administrative case, has already made up its mind before hearing the parties.
Worse, the Resolution is not what it purports to be. Ostensibly, the Resolution is a show cause order that initiates what would merely become a newly docketed regular administrative matter. There is more than meets the eye, however. When stripped of its apparent complexion, the Resolution shows its true colors and presents itself as a pronouncement of guilt of indirect contempt, without proper recourse left to the parties.
Unless the Court intends to busy itself into consistently engaging in a judicial witch hunt against its detractors, it is more in keeping with the Court's dignity not to dignify each and every write-up that is taken to vilify it, and console itself with the number of testimonials, written or living that vilify the judiciary.
Although as a human being, a person naturally gets pissed off by hurtful words, it would not hurt the Court as an institution and the law as a profession if it passes off the statement of the UP law faculty at this time."
SERENO, j., dissenting.
"Ordering the 37 respondent members of the UP law faculty to "show cause" in this indirect contempt case is like ordering the little boy who exclaimed that "the emperor has no clothes" to explain why he should be crucified for his public observation. It is true that the little boy may have aggravated the situation by adding that the unclothed emperor did not present a flattering figure in his natural state, but the analogy remains true -- that the subject UP law faculty members have been prematurely adjudged guilty and asked to explain why such prejudgment should be reversed simply for expressing what they believed was the truth.
What is so grievous about this whole contempt proceeding is that it comes in the wake of the gross injury that the Court has inflicted upon the virtue of honesty in learned discourses by labeling plagiarism as not plagiarism in the related case involving one of its members.
With all due respect to my colleagues, it is not the place of the Court to seek revenge against those who, in their wish to see reform in the judiciary, have the courage to say what is wrong with it. The Court finds its legitimacy in demonstrating its moral vein case after case, not in flaunting its judicial brawn. There is nothing to be gained for the administration of justice in not letting his one instance pass just because feelings have been hurt and the urge to retaliate must be satisfied.
If the 37 members of the UP law faculty are wrong, there will be recompense in their loss of esteem among the academic community and the legal profession. But if they are right, then the Court will have made martyrs out of those who -- in their temporary passion --- may have acted recklessly, but truthfully and sincerely. Indeed, should they be proven right they may even rise in the esteem in the eyes of the international academic and legal circles, for being the object of prosecution by one's Supreme Court for bold but intelligent reformist language can be deemed a badge of honor similar to that bequeathed by history to the great thinkers who were persecuted by society's forces."
In view of the blatant institutional persecution now being committed against the UP Law Faculty --- who discharged their duties in good faith as public servants, law professors, and officers of the Court in asking the Court to take responsibility for the apparent plagiarism and misrepresentation that tainted the Vinuya decision --- I urgently plead for the help of fellow legal scholars and academics to write --- either public statements, or letters to their embassies in Manila regarding this matter. As the dissenting Justices have disclosed, the Supreme Court majority has already prejudged this matter, and that same majority will prevail in imposing sanctions (from disbarment, to suspension of bar licenses, fines, imprisonment) on the UP Law Faculty. We cannot realistically expect a fair hearing anymore when the majority acts as both the supposed “injured” party and our judge at the same time. We acted in good faith, conscious of our duties as lawyers and legal scholars, to ensure the preservation of integrity in our jurisprudence ---- we could not anticipate then, nor would we have accepted now as law professors and members of the Philippine legal academia, the Supreme Court majority’s defense that Microsoft Word was responsible for failing to detect the plagiarism and misrepresentation. The objective fact of plagiarism and misrepresentation are glaring from the text of Vinuya, as confirmed by the international law professors whose works were used, and as confirmed by the extensive dissent of Justice Sereno. Most importantly, we acted from our sense of justice and duty as lawyers to promote the rule of law, on behalf of those comfort women survivors whose petition was denied through a decision-making process that apparently relied on plagiarized and misrepresented works of international law authors.
Our only hope now is for reason from the rest of the world to prevail against this institutional persecution --- the glaring and ongoing threats to our constitutional and international rights to freedom of expression and academic freedom. While it appears that only 37 of the 81 faculty members signed the UP Law Faculty Statement, the Court majority overlooked all the names sent in the original list by Dean Marvic Leonen. It has been our practice to signify support for statements electronically through email or discussions in our faculty egroup, and for many of us abroad it was not necessary to physically sign so long as we expressed our support for the statement to the faculty egroup. We expect, therefore, that it will only be a matter of time before the contempt order is extended to all of us. We will not shirk from our part in having supported the UP Law Faculty Statement.
We fervently hope for your help in this fight against institutional persecution. We have no recourse left.
Very truly yours,
Professor Diane A. Desierto, University of the Philippines College of Law
Law Reform Specialist, Institute of International Legal Studies, University of the Philippines
JSD candidate (2014), LLM (2009), Yale Law School
* IMPORTANT: This NOTE in NO WAY represents the views of the International Court of Justice or any of its staff. This Note was written in my private capacity, SOLELY as a member of the UP Law Faculty.