Sunday, October 17, 2010

Palusot! Supreme Court Absolves Itself of Plagiarism Charges

There is a quaint tradition in the Philippines that goes by the Filipino slang term palusot which operates when someone -- usually rich, powerful and sanctimonious -- is caught red-handed doing something embarrassingly wrong, unethical, unseemly and undignified.

But to see fifteen highly respected men and women in robes making palusot is a rare sight and sound to behold!  That they are also each and everyone of them an impeachable official of the government makes it rarer still.

So whilst the swinging door of revealing observation is slightly ajar on the Highest Court in the land --sometimes called The Supreme Court of the Republic of the Philippines (SCoRP) -- there is an opportunity for the usisero public to witness PALUSOT done in the grand manner of a full blown en banc Supreme Court Decision: 


The Supreme Court website contains much of its Jurisprudence in electronic (and therefore digitallly interrogatable form!) My own summary of and commentary on the instant Decision follows...

The Decision en banc can be analyzed using its own major subheadings:

The Background Facts are these:
On April 28, 2010,  SCoRP rendered an adverse decision in Vinuya v. Exec Sec against Petitioners from Malaya Lolas Organization a group of Filipino World War II-era "comfort women" who were asking the Court to compel Philippine government agencies and officials to pursue their case against Japanese tormentors in an international legal venue.   
SCoRP denied Petitioners prayers on two grounds: first, that it was the exclusive prerogative of the Executive whether or not to assist the war victims in their search for justice; and second that the Philippine government was not obliged under international law to do so.   
Petitioners moved to reconsider on June 9. Then in a supplemental motion on July 19, petitioners dropped a bombshell through counsel Harry Roque: charges of plagiarism in the Decision or ponencia penned by Associate Justice Mariano C. del Castillo as large chunks of the following articles allegedly appeared in it without proper attribution: 

(1) A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); 
(2) Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and, 
(3)  Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
 At this point the Decision then makes the following statement:
"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." 

This appears to me to be an ADMISSION by Del Castillo that the allegations of questionably attributed passages being present in his ponencia are indeed true and that interested but fair-minded members of the Public need not verify the same by having to examine and compare the original assailed Decision or above foreign sources.

In this letter, Associate Justice Del Castillo also appears to drag in his Colleagues on the Court as follows:
"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.   XXX "
Without as yet judging the merits of Del Castillo's initial line of defense,  Del Castillo nonetheless tacitly and directly admits an all-important LAPSE in his preparation of the Decision which requires some kind of explanation. 

A second charge made by Petitioners in their Motion for Reconsideration, and one that is perhaps more disturbing, is that not only were certain passages improperly handled so as to invite the obvious charge of plagiarism, but they seem to have been used to come to an entirely opposite conclusion than their utility and role in the original contexts. 

This is neither confirmed nor denied by Del Castillo in his Verified Letter to Colleagues, saying only that  it was a matter of opinion from Petitioners:
"As regards the claim of the petitioners that the concepts as contained in the above foreign materials were “twisted,” the same remains their opinion which we do not necessarily share."
Okay. Del Castillo and His Colleagues at SCoRP may not share this opinion, but guess who does??

Here is what Prof. Evan Criddle wrote on the well known international law blog 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. 
SCoRP even got a letter from Dr. Mark Ellis, the other allegedly plagiarized party:
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. 
We thus have a claim from the apparently injured parties that not only were their intellectual efforts misappropriated by Del Castillo and the En Banc (which had the ponencia as a working draft no less than three times on its agenda) but that these efforts were indeed twisted by Del Castillo and the En Banc  to come to an entirely different substantial conclusion about international law obligations of governments in historic cases like that of the comfort women.

The Issues
This case presents two issues:
          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.

Two big fat NO's sayeth the Court later, but very interesting is...

 The Explanation
Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism.  But one of Justice Del Castillo’s researchers, a court-employed attorney, 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.  
The Rulings
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.

So there it is in one neat package: complete exoneration of Del Castillo and itself by itself from the High Court.

But in the manner of certain television detective characters, one is forced to ask some niggling questions.
Could the apparent coming to an opposite conclusion from the substance and logic of the allegedly plagiarized material, as claimed by their true authors,  offer indirect proof of the alleged plagiarism itself!

For example, the present Decision does not explain  WHY it is only these passages that are indeed missing the requisite attribution?!  At there very least this circumstance goads SUSPICION. Is it because, in "the matter of opinion" mentioned by Del Castillo in his Verified Letter of Explanation, he may have been aware of the fact that he was coming to an entirely opposite conclusion regarding jus cogens from two authors whose ideas and reasoning he had just misappropriated.

I think it is revealingly disingenuous of both Del Castillo and SCoRP to innocently claim they do not plainly see the "twisting" that Petioners and the foreign academics assert, that they did not in fact come to an opposite conclusion about substantive matters even if the injured parties say they did!

They have to make this denial because it does indirectly explain why the attributions were left off -- even inadvertently.