Saturday, October 30, 2010

Notoriously Offending the Religious Feelings of the Faithful

This cause celebre  pits the Catholic Church hierarchy against Manila's most famous Tourist Guide of the Nineteenth Century,  Carlos Celdran, who recently entered  a plea of  "Not Guilty!" to criminal charges brought against him by Monsignor Nestor Cerbo, Director of the Archdiocesan Office of Research and Development of the Arzobispado de Manila.  Msgr. Cerbo is also the Rector of the Minor Basilica of the Immaculate Conception at the Manila Cathedral in Intramuros.  At the heart of the criminal proceeding Cerbo v. Celdran is the following Law:

Revised Penal Code of the Philippines 
Section Four. — Crimes against religious worship
Art. 133. Offending the religious feelings. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.

This Law can put convicted parties in prison for up to six years, so these are serious allegations that the Good Monsignor Cerbo makes against Mr. Carlos Celdran.  But as we no longer live under the Theocracy that once reigned here with Sword and Cross,  under the Constitution Carlos Celdran is innocent until proven guilty in a Court of Law of the crimes alleged.

In my opinion, proving his guilt in a Court of Law will be extremely difficult.  (And hugely entertaining for the Court of Public Opinion!)  Towards these ends, I propose to lend some assistance and advice to the Prosecution and the Accuser, Msgr. Nestor Cerbo by making the following observations...

Wednesday, October 27, 2010

JPE Appeals for Judicial Restraint from Supreme Court

(Editor's Note: The Office of the Senate President Juan Ponce Enrile just released a  PRESS STATEMENT on the plagiarism issue that has engulfed the Supreme Court of the Republic of the Philippines. I reproduce the Statement verbatim below as received by email.)
27 October 2010
Ref: Yvonne Caunan/ Lizette Nepomuceno
Tel. 5526782; 5526691

On the Supreme Court’s Order to U.P. Law Faculty to show cause why they should not be liable for Indirect Contempt for their statement regarding the issue of plagiarism in the Decision in the case of Vinuya vs. Executive Secretary


I feel compelled to express my humble position on the issue of the Supreme Court’s order for the Dean and the members of the faculty of my alma mater, the College of Law of the University of the Philippines, to show cause why they should not be cited for indirect contempt for issuing and publishing a statement denouncing the plagiarism committed by one of its Associate Justices and to justify why they should not be administratively sanctioned and disciplined.

The Supreme Court had adopted and promulgated its decision by a majority vote in the case of Vinuya et al vs. Executive Secretary (G.R. No. 162230) involving the petition of the victims of rape and sexual slavery committed by the Japanese forces against the so-called Filipina “comfort women” during the Second World War. Thus, understandably, the Highest Court of the land was not spared from the U.P. Law faculty’s statement expressing criticism and indignation over the blatant act of intellectual dishonesty and misrepresentation by the ponente of the decision.

As a member of the Philippine Bar, I am fully cognizant that all of us in the law profession are officers of the Court. The practice of law as a profession is a privilege granted to each of us by the Court, and we are bound by rules of ethical conduct, especially in the manner by which we are required at all times to accord the Court utmost respect. In the practice of our profession, whether as counsels, litigators, advocates, or professors, we are subject to the Supreme Court’s disciplinary powers.

But I hasten to add that our duty to conduct ourselves properly as members of the Bar carries with it the serious duty to protect the Court’s honor and integrity as an institution devoted to the dispensation of justice. The Supreme Court, no less, being the final arbiter in the resolution of disputes that affect both individual and State rights, legal obligations and duties, must be protected against any act, even and more so by one of its own, which in any way would compromise, diminish or weaken its moral, intellectual and institutional integrity.

I understand that no less than three international authors have written the Supreme Court to call attention not only to the lack of attribution of obviously lifted and copied portions of the work of the original authors found in the Vinuya decision, but also to the misrepresentation in the use of the plagiarized material to support conclusions which are far from and in fact opposite to the context of the original works from which they were lifted.

Plagiarism is a grievous affront not only to the Supreme Court itself but to the Philippine judicial system. To claim as one’s own the intellectual work of another without proper attribution is theft of intellectual property. Such practice has no place especially in the drafting, preparation, debates, discussions and decisions of our courts, most especially, the Supreme Court.

When the Highest Court’s attention was invited to the plagiarism, the public, not only the academe, rightly expected that the Court would make sure that such reprehensible conduct would not be allowed to stain the Court’s reputation.

The tenuous justification offered as an excuse for the non-attribution of copied intellectual material, followed by the adoption by the majority of the questioned ponencia on a most sensitive and internationally significant issue such as the right of the “comfort women” to demand the State’s action on their behalf, has stirred much concern and controversy.

The latest action of the Supreme Court, being just a step away from punishing those who wished to voice out and protest what they honestly believed to be a serious wrongdoing on the part of an Associate Justice and a mistake on the part of the Court, has only served to add pain to the aggrieved parties and to spark a fiery debate between the Court on the one hand, and the legal academe and their sympathizers among the members of the Bar and the public on the other.

In the face of such a serious ethical breach on the part of the decision’s ponente, and with all due respect to the majority of the Court who decided to adopt the ponencia, thus making it its own and a part of Philippine jurisprudence, I strongly believe that sadly, the Supreme Court has made itself vulnerable to and must render itself open to legitimate criticism.

I respectfully submit that the Supreme Court’s independence, honor and integrity were not besmirched by the release of the U.P. Law faculty’s statement. The Court’s independence, honor and integrity, including its moral ascendancy, have been placed under a dark cloud of doubt unfortunately by the intellectual dishonesty of one of its own.

The power and majesty of the Supreme Court is too awesome for anyone to trifle with or ignore. As a legislator, public servant, and as a humble member of the Bar, I would like to respectfully appeal to the Supreme Court to exercise restraint in using its disciplinary hand to exact punishment or retribution from those who may disagree with the correctness and wisdom of its decision.

Freedom of expression which embraces academic freedom may be orphaned should our Highest Court choose to use its strong hand when it feels bruised or hurt, rather than to act as its faithful guardian. Ultimately, it is the Supreme Court, acting as the stronghold of civil liberties and rising above its own frailties, which is in the best position to cleanse itself and its ranks and repair the damage brought upon its image before the nation and before the world.

Tuesday, October 26, 2010

Why SCoRP Owes UP Law Faculty a Debt of Gratitude

The Supreme Court Decision alleged to contain plagiarized passages  Vinuya vs. Executive Secretary, G.R. No. 162230 (28 April 2010) has not become final and executory because a Motion for Reconsideration on the substance of that Decsion has not been ruled upon.  Of course in A.M. 10-7-17-SC (the administrative matter In Re Del Castillo) the Court has basically ruled that there was no INTENTIONAL PLAGIARISM in the preparation of that Decision, indeed no plagiarism at all but merely "editing errors" by an unnamed assistant of the ponente, Associate Justice Mariano C. del Castillo.

I am prepared to concede this ruling simply because the Decision has not been promulgated as final and executory.  There is only the potential of plagiarism being committed if it is promulgated AS IS, without the so-called "editing errors" being corrected or properly acknowledged.

In a way, the Supreme Court has painted itself into a corner. By insisting there is NO PLAGIARISM in their April 28 Decision, they would have no reason to change anything relating to those passages not properly attributed without admitting that the Decision is invalid as it stands for the particular kind of FORM VIOLATION recognized internationally as plagiarism.

By a parity of reasoning however, if the Supreme Court allows the Decision to stand as is, and promulgates Vinuya v. Romulo as final and executory,  a part of the Law of the Land, an official ACT of the Supreme Court of the Republic of the Philippines (SCoRP), then they could deservedly be accused of committing INTENTIONAL PLAGIARISM.

There is another interesting aspect of this.  By filing a Motion for Reconsideration and supplementing that with the criticism that plagiarism objectively exists in the assailed Decision, Petitioners have actually given the Supreme Court an opportunity to correct the very grievous form violations of internationally accepted norms in using the intellectual works of others.

For imagine if there had been no Motion for Reconsideration and the Decision had passed into Law with finality and executory power, then the plagiarism was discovered!

I would say the Supreme Court owes the UP Law Faculty a debt of gratitude.

Monday, October 25, 2010

Who Owns The Alleged Plagiarism?

The Supreme Court Decision Vinuya v. Romulo is believed by many both here and abroad to be polluted with plagiarism, whether intentional or not.  Indeed the very authors involved have even communicated to the Supreme Court their criticism of the inappropriate utilization of their work -- both in FORM and in SUBSTANCE. Not only were requisite attributions and references to them missing, but the allegedly purloined ideas and formulations were also used to come to an entirely opposite conclusion about the matter at hand--war time rape whose victims have cried to the Court for help.  Just today, Yale University's constitutional authority, Prof. Bruce Ackerman has weighed in on the matter and warned the  Court that it could lose a lot of face with the international community over their recent actions.

Unfortunately the Mass Media and many commentators seem to have ignored the question asked in this post: Who owns the alleged plagiarism? Even the UP LAW faculty statement accuses the PONENTE or penman assigned by the Chief Justice to write up the Court's opinion: Associate Justice Mariano C. Del Castillo.

Yet the simple and obvious fact is that under the Constitution there is nothing that empowers a single Justice to issue a Decision as his own work. The Supreme Court under  1987 Article VIII only ever issues Decisions and Resolutions as a collegial body, in Divisions with a minimum of three justices or sitting En Banc.

The assailed Decision, Vinuya v. Romulo, was an En Banc Decision. It is in form and substance  entirely an ACT of the Supreme Court of the Republic of the Philippines (SCoRP), and with all its flaws and pollutions, it is presumed to be part of the Law of the Land. The En Banc itself is responsible for this ACT, not Del Castillo, not his unnamed Court Researcher, and most certainly not the programmers of a well known word processing program.

Had the UP Law Faculty made this identification explicitly, instead of focusing only on Del Castillo, the present Show Cause Order why they ought not to be disciplined with disbarment, suspension or worse, would be more obviously a self-serving and unethical judging of their own cause by the Supreme Court Justices with concurred unqualifiedly with the ponencia.

Intent Is Not Essential To Plagiarism

The essential insight of dissenting Justice Maria Lourdes Sereno is that in order to exonerate Associate Justice Mariano C. Del Castillo of plagiarism charges in preparing for the En Banc its Decision in the case of Vinuya versus Romulo, the Majority introduced a most troublesome innovation:
The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision[1] and the determination of the liability that results from a finding of plagiarism. Specifically, it made “malicious intent”, which heretofore had not been relevant to a finding of plagiarism, an essential element.
She then details the internationally recognized FORMS of plagiarism and identifies their objective existence in Vinuya and criticizes the Court for "against the overwhelming conventions on what constitutes plagiarism."  

Plagiarism is thus akin to a crime like MANSLAUGHTER. You may not have intended to hit the pedestrian, but if you killed or maimed him or her, the death or injury is an objective and readily verifiable fact for which you are liable under the Law. The Supreme Court cannot be above this very logic. Worse it ought not to be introducing judicial innovations for the mere purpose of self-preservation that now aids and abets both plagiarists and copyright violators.

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: ). 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: 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:

3. All International Law professors/authors came forward with their separate complaints to the Philippine Supreme Court regarding the misuse of their works. Unfortunately, FB doesn't have an attachment function yet, so I will repost in a separate note the letters of Dr. Christian Tams, Mark Ellis to the Philippine Supreme Court. Professor Evan Criddle posted his complaint on Opinio Juris at this link: 

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.”

4. When Philippine national media carried these complaints, the Philippine Supreme Court did not appear disposed to take them seriously. The Court Spokesperson/Court Administrator, Midas Marquez, stated that the “You can’t expect all justices of the Supreme Court to be familiar with these law journals.”

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:

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:

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:

8. On Monday, October 18, 2010, various Philippine national media carried the news that the Philippine Supreme Court had deliberated and decided to hold the UP Law Faculty in contempt for its Statement. See and , among others.

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.

Tuesday, October 19, 2010

Sereno's Dissenting Opinion: Supreme Court Decision Aids Plagiarists and Copyright Violators

The opening paragraphs of Justice Sereno's Dissent from the majority opinion in the recent plagiarism decision of the En Banc A.M. No. 10-7-17-SC contains very chilling predictions about how plagiarists and copyright violators will benefit from the terrible innovation created by the Supreme Court. By making "malicious intent" essential to those crimes Justice Sereno warns that lack of such malicious intent now becomes a strong defense against charges of plagiarism and copyright violation.

What is black can be called “white” but it cannot turn white by the mere calling.  The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision[1] and the determination of the liability that results from a finding of plagiarism. Specifically, it made “malicious intent”, which heretofore had not been relevant to a finding of plagiarism, an essential element.
 The majority Decision will thus stand against the overwhelming conventions on what constitutes plagiarism. In doing so, the Decision has created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists “lack of malicious intent” as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. Under Section 184 of R.A. 8293 (“An Act Describing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Powers and Functions, and for Other Purposes”), or the Intellectual Property Code of the Philippines, there is no infringement of copyright in the use of another's work in:
(b) the making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided that the source and the name of the author, if appearing on the work, are mentioned. (Emphasis supplied)
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate ─ and that therefore there was no plagiarism ─ lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.[2]

Read it all at the Supreme Court Website!  

Monday, October 18, 2010

A Sagada Sunrise

At Philippine Commentary V3.0 it's not all just speaking bitterness against that rogue Supreme Court...

Has Not the Supreme Court Judged Its Own Cause?

A recent En Banc Decision by the Supreme Court of the Republic of the Philippines (SCoRP)  disposes of charges that a previous En Banc Decision Vinuya v. Executive Secretary contained plagiarized passages from three froreign academics, as follows:
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; 
That's funny...Vinuya v. Executive Secretary was an EN BANC Decision, so if anything it was the En Banc that was being charged with plagiarism, twisting the conclusions of the cited materials [sic!] and gross negligence.

By portraying the charges as being merely directed at Justice Mariano C. del Castillo, the Court is being entirely disingenuous.  Whilst the Court attributes the entire brouhaha to the "editiing errors" of an unidentified Court researcher, it cannot escape notice that the researcher herself could not have been responsible for the Court's having come to an opposite conclusion to which the misappropriated materials originally led--as the genuine authors Criddle and Fox-Descent in fact claim the Vinuya decision did.

The subject matter of the allegedly plagiarized material (jus cogens status of the war time rape) was not tangential but central to the entire Vinuya Decision, which held that the Philippine government is not under any obligation under international law standards to assist the Malaya Lola's long search for justice!

This substantial and essential matter was under the complete control and recognizance of the En Banc during the three times that Del Castillo's draft was on their agenda.

ERGO, by issuing A.M. 10-7-17-S.C. allegedly exonerating just Del Castillo, has not SCoRP in effect, exonerated the En Banc of all editorial and juridical responsibility for Vinuya and unethically and most inappropriately judged its own cause?

Should not every Justice who participated in the production of Vinuya, taken cognizance of that participation and delicately recused themselves from the Administrative Matter?

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.

Executive Order No. 1 is Unconstitutional

by Alan F. Paguia

Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila           

Why is President Noynoy Aquino’s Executive Order (EO) No. 1, dated July 30, 2010, “CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010” – unconstitutional?

Because it appears to violate two (2) constitutional principles. First, the principle of equal protection of the law, and second, the principle of separation of powers.

Violation of equal protection

1. The EO materially provides:

“...WHEREAS,  corruption in the Philippines has reached very alarming levels, and undermined (sic) the people’s trust and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants;

WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections “kung walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;...”

“... NOW THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereafter referred to as the “COMMISSION”, which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body:

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its findings and recommendations to the President, Congress and the Ombudsman...”

“...SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before Decmber 31, 2012...”

2. In short, the Commission was created to investigate reported cases of graft and corruption during the previous administration, meaning the Gloria Arroyo administration, and not the other previous administrations.

3. The EO singles out the Arroyo administration from the other previous administrations.

4. Does the EO claim there are no reports of graft and corruption during previous administrations other than the Arroyo administration? NO.

5. Does the EO claim there are no reports of large-scale graft and corruption during previous administrations other than the Arroyo administration? NO. In fact, it states corruption in the Philippines has reached very alarming levels, resulting in the need to restore the people’s faith and confidence in the Government.  

6. Does the EO claim the very alarming levels of corruption in the Philippines were caused wholly and exclusively by the Arroyo administration? NO.

7. Does the EO claim the previous administrations other than the Arroyo administration, did not contribute to the very alarming levels of corruption in the Philippines? NO.

8. Does the EO claim there is no causal relation between the previous administrations other than the Arroyo administration, on one hand, and the very alarming levels of corruption in the Philippines, on the other? NO.

9. Consequently, it would appear that, compared with the other previous administrations, the Arroyo administration does not have a monopoly of reports of large-scale graft and corruption that need to be investigated. The truth is, all previous administrations share the common predicament.

10. Thus: (a) there appears no substantial distinction between the Arroyo administration and the other previous administrations, and (b) the EO does not apply equally to all members of the class of previous administrations. While the EO commands the Truth Commission to investigate the Arroyo administration, there apppears no command to investigate the OTHER previous administrations. According to jurisprudence, these infirmities would render the EO violative of the equal protection clause (Quinto v. Comelec, G.R. No. 189698, December 1, 2009) and, therefore, VOID from the beginning (Art. 5, CIVIL CODE; Velasco v. Lopez, 1 Phil 720).

Violation of separation of powers

11. Under the Constitution, the essential duty of the Chief Executive is to ensure that the laws be faithfully executed (Sec. 17, Art. VII).

12. What law does EO 1 seek to ensure to be faithfully executed? The Anti-Graft and Corrupt Practices Act (RA 3019).

13. What government agency has the constitutional duty to investigate cases of graft and corruption? The independent Office of the Ombudsman (Sec. 5, Art. XI).

14. What is the scope of the Ombudsman’s power of investigation? According to the Constitution, it shall: “Investigate on its own, or on complaint by any person, any act or ommission of any public official, employee, office or agency, when such act or ommission appears to be illegal, unjust, improper, or inefficient” (Sec. 13, subpar. 1, ibid.).

15. Under the EO, the duty of the Truth Commission is to investigate reports of graft and corruption during the previous administration. Under the Constitution, the duty of the Ombudsman is to investigate any act or ommission when such act or ommission appears to be illegal. Is there any substantial difference? NONE. Both laws seek to investigate graft and corruption or illegal acts or ommissions committed by public officials. The Truth Commission is, therefor, a DUPLICATION of the Ombudsman. It is the Chief Executive’s “Ombudsman”, as against the Constitution’s “independent Office of the Ombudsman”.

16. The Chief Executive, through EO 1, instead of respecting the SEPARATE power of the “independent Office of the Ombudsman” to investigate cases of graft and corruption, does the opposite by creating a Truth Commission that will USURP, or ENCROACH upon, the same power to investigate vested by the Constitution exclusively in favor of the Ombudsman.

Expired term

17. The Chief Executive either has trust or no trust in the current Ombudsman, Merceditas Gutierrez. In the first case, there would be no need for EO 1. The Ombudsman can do the job of the Truth Commission. In the second case, the question that naturally arises is: WHY? Regardless of the answer, and regardless of the need for a Truth Commission, the answer is the Chief Executive must follow the Rule of Law. If indeed there is a need for an executive Truth Commission outside of the Office of the Ombudsman, then let it be created through an Executive Order that does not violate the Constitution.

18. The Chief Executive appears to ignore, albeit without any apparent reason, the fact that Ombudsman Gutierrez’s term of office had expired in 2009. Ombudsman Aniano Desierto’s seven-year term from 1995 to 2002 was completed. Ombudsman Simeon Marcelo followed and began his seven-year term from 2002 to 2009, but did not complete the same. He resigned in 2005. To complete Marcelo’s term, Ombudsman Merceditas Gutierrez was appointed in his place in 2005. Thus, the latter’s TENURE was cut short by the expiration of Marcelo’s TERM in 2009. The Constitution vested Desierto and Marcelo with a TERM of seven (7) years each. Gutierrez had no such term under the law. She only had a TENURE or actual stay in office for the balance of Marcelo’s term. Gutierrez is, therefore, an overstaying Ombudsman who is acting WITHOUT JURISDICTION. 

19. Under the foregoing premises, should the Chief Executive declare the Office of the Ombudsman vacant, and appoint a new one? YES. It is a matter of DUTY under the Constitution.

(Editorial Note: This is a Commentary on President Noynoy Aquino's Executive Order No. 1 creating a Truth Commission headed by former Chief Justice Hilario Davide, Jr. It was written last August 15, 2010 by Prof. Alan F. Paguia, with whose gracious permission it is here republished. --DJB)