D E C I S I O N
PER CURIAM:
I. THE FACTS
In the landmark decision of Vinuya vs. Executive Secretary, G.R. No. 162230, promulgated
last April 28, 2010, the Supreme Court DISMISSED the petition filed by a group
of Filipino “comfort women” during the Japanese military occupation of the
Philippines. The Court, speaking through Justice
Mariano C. del Castillo, held that the petition seeking to compel the Executive
Department to espouse the petitioners’ claims for official apology and other
forms of reparations against Japan before the International Court of Justice
and other international tribunals has NO
MERIT because: (1) the prerogative to determine whether to espouse petitioners’ claims
against Japan belongs exclusively to the Executive Department; and (2)
the Philippines is not under any international obligation to espouse
the petitioners’ claims.
Discontented with the foregoing decision, the
petitioners in Vinuya filed a motion for reconsideration. Subsequently, they also filed a
supplemental motion for reconsideration, this time accusing the Justice del
Castillo of
plagiarizing
(copying without attribution) and twisting passages from three foreign legal articles to support the Court’s position in the Vinuya decision:
(1) A Fiduciary Theory of Jus Cogens by Professors Evan J.
Criddle (Associate Professor of Syracuse University College of Law) and Evan Fox-Descent (Assistant
Professor of McGill University Faculty of Law) published in the Yale Journal of
International Law in 2009;
(2) Breaking the Silence: Rape as an
International Crime by Mark Ellis (Executive Director of the
International Bar Association), published in the Case Western Reserve Journal
of International Law in 2006; and
(3) Enforcing Erga Omnes Obligations in International Law by Professor Christian J. Tams (Chair of International Law of University of Glasgow School of
Law), published in Cambridge University Press (2005).
The Court then referred the charges against Justice Del Castillo to its Committee on
Ethics and Ethical Standards, chaired by Chief
Justice Renato Corona, for investigation and recommendation. After the proceedings
before it, the Committee submitted its findings and recommendations to the Court en banc, which then treated and decided the controversy as an
administrative matter.
II.
THE ISSUES
1. Did Justice Del Castillo, in writing the opinion for the Court in
the Vinuya case, plagiarize the published works of authors
Tams, Criddle-Descent, and Ellis?
2. Did Justice Del Castillo twist the works of these authors to make it
appear that such works supported the Court’s position in the Vinuya decision?
III. THE RULING
[By a 10-2 vote, with three Justices
including Justice del Castillo taking no part, the Court DISMISSED the charges for lack of merit and held that Justice del
Castillo was NOT GUILTY of
plagiarizing and twisting the cited materials and hence did NOT commit gross negligence.]
1. NO, Justice Del Castillo, in
writing the opinion for the Court in the Vinuya case, did NOT plagiarize the published works of
authors Tams, Criddle-Descent, and Ellis.
.
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.
As
regards that one passage from Professor Tams, the Court believes that whether or
not the footnote is sufficiently detailed, so as to satisfy the footnoting
standards of counsel for petitioners is not an ethical matter but one
concerning clarity of writing. The statement “See Tams, Enforcing
Obligations Erga Omnes in International Law (2005)” in
the Vinuya decision is an attribution no matter if Tams
thought that it gave him somewhat less credit than he deserved. Such
attribution altogether negates the idea that Justice Del Castillo passed off
the challenged passages as his own.
That it would have been better had Justice
Del Castillo used the introductory phrase “cited in” rather than the
phrase “See” would make a case of mere inadvertent slip in attribution
rather than a case of “manifest
intellectual theft and outright plagiarism.” If the Justice’s citations were
imprecise, it would just be a case of bad footnoting rather than one of theft
or deceit. If
it were otherwise, many would be target of abuse for every editorial error, for
every mistake in citing pagination, and for every technical detail of form.
As regards the passages
from Ellis, the Court notes
that the lengthy passages in Footnote 65 of Vinuya came almost verbatim from Ellis’ article but did not
contain an acknowledgment or introduction that they are from that article.
Moreover, as regards the passages from the work of Professors Criddle and
Descent, it was also observed that the Vinuya decision
lifted the portions, including their footnotes, from Criddle-Descent’s
article, A Fiduciary Theory of Jus Cogens as footnotes in the Vinuya decision without any attributions
made to the two authors. Unless
amply explained, these unattributed lifting from the works of Ellis and
Criddle-Descent could be construed as plagiarism.
The explanation came from one of Justice Del Castillo’s researchers, a
court-employed attorney. She 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. She said that, for most parts, she did her research
electronically. For international materials, she sourced these
mainly from Westlaw, an online research service for legal and law-related
materials to which the Court subscribes. The researcher
showed the Committee the early drafts of her report in the Vinuya case
and these included the passages lifted from the separate articles of
Criddle-Descent and of Ellis with proper attributions to these
authors. But, as it happened, in the course of editing and cleaning
up her draft, the researcher accidentally deleted the attributions.
It was notable that neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted passages
to Criddle-Descent or to Ellis. The latter authors are highly
respected professors of international law. The law journals that
published their works have exceptional reputations. It did not make
sense to intentionally omit attribution to these authors when the decision
cites an abundance of other sources. Citing these authors as the
sources of the lifted passages would enhance rather than diminish their
informative value. Both Justice Del Castillo and his researcher gain
nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and
Ellis was unquestionably due to inadvertence or pure oversight.
2. NO, Justice Del Castillo did NOT
twist the works of authors Tams, Criddle-Descent, and Ellis to make it appear
that such works supported the Court’s position in the Vinuya decision.
The decision [in Vinuya] did NOT twist the passages from Tams, Criddle-Descent, and Ellis. To
twist means “to distort or pervert the meaning of.” For example, if
one lifts the lyrics of the National Anthem, uses it in his work, and declares
that Jose Palma who wrote it “did not love his country,” then there is
“twisting” or misrepresentation of what the anthem’s lyrics said. Here, nothing in the Vinuya decision
said or implied that, based on the lifted passages, authors Tams,
Criddle-Descent, and Ellis supported the Court’s conclusion that the
Philippines is not under any obligation in international law to espouse
Vinuya et al.’s claims.
[For a more detailed treatment of the Court's October 12, 2010 per curiam decision in relation to the impeachment complaint filed in the House of Representatives against Justice del Castillo, please click here.]
[Next post: Digest of Justice Sereno's Dissenting Opinion from the October
12, 2010 per curiam decision.]
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