Tuesday, November 23, 2010

Bernas Defends Intent As An Element of Judicial Plagiarism

JOAQUIN BERNAS, S.J. defends the centrality of malicious intent as an element of Judicial Plagiarism in his PDI column, Sounding Board. In the piece About Plagiarism, Fr. Bernas quotes an essay of Margaret Randall's:

In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to in criminal law as an ulterior intent, to claim the credit by passing [off] the work as one’s own.”

But is intent always required? The author goes on to add: “While some institutional statements explicitly include unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”
I actually like the idea of making intent central to Judicial Plagiarism.

In doing so, Fr. Bernas in effect, chains the tenant Justices of the Supreme Court to a Ticking Nuclear Bomb which will explode if malicious intent ever IS proved. For example: if a PATTERN of PLAGIARISM should ever be established in their recent jurisprudence. In their Compliance to the Show Cause Order of SCoRP, the UP Law's Malcolm 37 have begun that clinical demonstration of judicial plagiarism as defined by SCoRP and now Bernas--right within the corpus delicti that is Vinuya v. Executive Secretary.  Moreover, there is also another SCoRP decision, already final and executory, in the Ang Ladlad case, that is also tainted with plagiarism. It was also written by Justice Mariano Del Castillo and promulgated just two days before Vinuya last April.

Father Bernas is driving the Court deeper into the Quagmire of plagiarism that they have dug themselves with two highly immoderate and unwise actions: (1) the unethical manner by which the Ethics Committee formed by Chief Justice Corona exonerated their colleague, when all five members had concurred with Del Castillo unqualifiedly in Vinuya to begin with; and (2) the Show Cause Order against the UP Law Faculty, which was really a Resolution finding them guilty of violating professional canons of behavior delivered in a Notice of Judgment with an order for them to show cause why they should not be punished according to the vindictive whims of the Court!

5 comments:

GabbyD said...

Why is pattern intent?

the key idea of intent here, is what bernas wrote:

"to claim the credit by passing [off] the work as one’s own.”"

if an author claims credit to an idea, thats plagiarism.

if, in an opinion, the judge coins a legal principle without crediting the source, claims that he coined it -- that is plagiarism.
a judge that repeated fails to cite some ideas is incompetent, but not a plagiarist.

GabbyD said...

Why is pattern intent?

the key idea of intent here, is what bernas wrote:

"to claim the credit by passing [off] the work as one’s own.”"

if an author claims credit to an idea, thats plagiarism.

if, in an opinion, the judge coins a legal principle without crediting the source, claims that he coined it -- that is plagiarism.
a judge that repeated fails to cite some ideas is incompetent, but not a plagiarist.

Dean Jorge Bocobo said...

GabbyD,
Justice Del Castillo was found innocent of any plagiarism because the Court established as fact that the missing footnotes and quotation marks were the result of a computer glitch and or carelessness by the Court Researcher. But what if another Decision, such as the one in Ang Ladlad comes to light with similar objectively existing plagiarism? Or were there other instances of misappropriations in Vinuya itself--not detected by Roque et al--that Del Castillo and Court Researcher might be aware of? The fact that they have not volunteered such info means there are no more plagiarisms in Vinuya, or there are other plagiarisms that they are keeping mum about.

It turns out that in a more careful search, a legal researcher at the UP Law School, not one of the 37 faculty, has indeed found other substantial plagiarisms in Vinuya itself! Now, the fact that Del Castillo and Researcher did not volunteer this information during the Ethics Committee hearing indicates at the very least a guilty conscience willing to hope against discovery. A vain hope it turns out thanks to a certain Atty. Payoyo who by his research appears to have established a pattern of guilty behavior.

Intentional plagiarism is not limited to some aggrandizing claim of ownership to some brilliant piece of legal prose. It can be done out of laziness, just to get the ponencia done, for example!

The fact that the Ang Ladlad ponencia and the Vinuya one came just two days one after the other last April, and they both contain the same kind of ahem, computer glitch, is at best, SUSPICIOUS.

Jhay said...

The pattern of alleged plagiarism in Vinuya and Ang Ladlad is not only suspicious, it should be enough to have another investigation, however this time around it should be done by an independent body.

Bruce In Iloilo said...

It is indefensible to use somebody else's work and ideas and not acknowledge their contribution, whether intentional or not. It is doubly indefensible when that lack of acknowledgment, that lack of respect, is the result of lazy work practices. It is triply indefensible when such lack of respect for another's work is intentional.

Is this first, second, or third degree plagiarism? I don't know and I don't care. Regardless of what degree it is, this behavior, intentional or unintentional, is beneath acceptable standards and should be called out. Decent standards must be upheld.

The inability of the Supreme Court to uphold acceptable standards is both appalling and unsurprising. Afterall, the judicial branch is the most dysfunctional of all the branches of government.