DISSENTING OPINION
[I am posting here a digest of the
rather lengthy Dissenting Opinion of Justice Maria Lourdes Sereno in A.M.
No. 10-7-17-SC promulgated last October 12, 2010. Taken together with her subsequent Dissenting Opinion from the Per Curiam Resolution promulgated on February 8, 2011, this opinion will
enable you, dear readers, to compare the reasoning of the majority and the
minority in this administrative matter. It is hoped that in being able to do so, you will
get a glimpse of how the gods at Padre Faura can sometimes use sophism to
justify a pre-ordained result in a controversy.
To my
mind, Justice Sereno’s dissent enunciates the correct analysis and conclusions
on the issue of whether Justice del Castillo plagiarized (and twisted) the works of three foreign legal scholars in the Vinuya decision. I have read and
analyzed (more than once) the conflicting opinions of the High Tribunal, and I
am convinced beyond cavil that the
majority erred in relying too much on the reason (accidental deletion of the
attributions) given by the researcher of Justice del Castillo. Indeed, the
explanation offered, which the majority readily swallowed – hook, line, and
sinker – might have been plausible if the non-attribution occurred only once or
twice. But as shown by the painstaking analysis of Justice Sereno given below, this
is not so in this case.
Do read on to determine for
yourself what I am talking about.]
SERENO, J.:
“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 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.
xxx xxx xxx
“[As regards the passage
from Professor Tams, there was] [f]ailure to use quotation marks
to indicate that the entire paragraph in the body of the decision on page 30
was not the ponente’s original
paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is wholly insufficient because
without the quotation marks, there is nothing to alert the reader that the
paragraph was lifted verbatim from Tams. The footnote leaves the reader with
the impression that the said paragraph is the author’s own analysis of erga
omnes.
“The “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” line in
footnote 69 of the Vinuya decision does not clearly indicate
that the statement on Simma’s observation was lifted directly from Tams’s work;
it only directs the reader to Tams’s work should the reader wish to read
further discussions on the matter.
[As regards the passages from Professors Criddle and Descent that were used either in
the body or in the discursive footnotes of the Vinuya decision, Justice Sereno noted
and discussed on the seventeen (17) instances when Justice del Castillo failed to use quotation marks to indicate
that the passages were not his but
were lifted from Criddle & Fox-Decent’s work published in Yale Law Journal of International Law. Some of the passages were absolutely without any
attribution to the authors.]
“[As regards the passages
from Ellis, there
was] [f]ailure
to use quotation marks and the right citations to indicate that half of the
long discursive footnote 65 in the Vinuya
decision, including the sources cited therein, was actually comprised of the
rearrangement, and in some parts, rephrasing of 18 sentences found on pages
227-228 of Mr. Ellis’s work in Case Western Law Reserve Journal of
International Law.
xxx xxx xxx
“The
text of the Decision itself reveals the evidence of plagiarism. The tearful
apology of the legal researcher to the family of the ponente and her acknowledgment of the
gravity of the act of omitting attributions is an admission that something
wrong was committed. Her admission that the correct attributions went missing
in the process of her work is an admission of plagiarism. The evidence in the
text of the Vinuya Decision and the acknowledgment by the
legal researcher are sufficient for the determination of plagiarism.
xxx xxx xxx
The suspect portions of the majority [sic] decision start from the discursive
footnotes of the first full paragraph of page 27. In that paragraph, the idea sought to
be developed was that while rape and sexual slavery may be morally
reprehensible and impermissible by international legal norms, petitioners have
failed to make the logical leap to conclude that the Philippines is thus under
international legal duty to prosecute Japan for the said crime. The plagiarized work found in discursive footnote 65
largely consists of the exposition by Mr. Ellis of the development of the concept
of rape as an international crime. The impression obtained by any reader is
that the ponente has much to say about how this
crime evolved in international law, and that he is an expert on this matter.
There are two intervening paragraphs before
the next suspect portion of the decision. The latter starts from the second
paragraph on page 30 and continues all the way up to the first paragraph of
page 32. The discussion on
the erga omnes obligation of states almost cannot
exist, or at the very least cannot be sustained, without the plagiarized works
of Messrs. Tams, Criddle and Decent-Fox. There is basis to say that the
plagiarism of this portion is significant.
xxx xxx xxx
“Contrary
to the view of my esteemed colleagues, the [narration and explanation found in
the majority decision are] not a fair presentation of what happens in
electronically generated writings aided by electronic research.
“First, for a decision to make full attribution
for lifted passages, one starts with block quote formatting or the “keying-in”
of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands
are not easily accidentally deleted,
but should be deliberately
inputted where there is an
intention to quote and attribute.
“Second, a beginning acknowledgment or
similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.
“Third, the [majority’s] explanation regarding the lines quoted [from
the work of Professor Tams] may touch upon what happened in [this particular
incident of non-attribution], but it does not relate to what happened in [all
the other 23 incidents of non-attribution], which are wholesale lifting
of excerpts from both the body and the footnotes of the referenced works,
without any attribution, specifically to the works of Criddle & Fox-Decent
and of Ellis. While mention was made of Tams’s work, no mention was made at all
of the works of Criddle & Fox-Decent and of Ellis even though the
discussions and analyses in their discursive footnotes were used wholesale.
“Fourth, the researcher’s explanation regarding the
accidental deletion of 2 footnotes out of 119 does not plausibly account for
the extensive amount of text used with little to no modifications from the
works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C,
copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be
remedied by the reinstatement of 2 footnotes.
“Fifth, the mention of Tams in “See Tams, Enforcing
Obligations Erga omnes in International Law (2005)” in footnote 69 of the Vinuya decision was not a mere insufficiency
in “clarity of writing,” but a case of plagiarism under the rule prohibiting
the use of misleading citations.
“Sixth, the analogy that was chosen ─ that
of a carpenter who discards materials that do not fit into his carpentry work ─
is completely inappropriate. In the scheme of “cutting and pasting” that the
researcher did during her work, it is standard practice for the original
sources of the downloaded and copied materials to be regarded as integral parts
of the excerpts, not extraneous or ill-fitting. A computer-generated document
can accommodate as many quotation marks, explanatory notes, citations and
attributions as the writer desires and in multiple places. The limits of most desktop computer
drives, even those used in the Supreme Court, are in magnitudes of gigabytes
and megabytes, capable of accommodating 200 to 400 books per gigabyte (with
each book just consuming roughly 3 to 5 megabytes). The addition of a footnote
to the amount of file space taken up by an electronic document is practically
negligible. It is not as if the researcher lacked any electronic space; there
was simply no attribution.
“Seventh, contrary to what is implied in the statement on Microsoft
Word’s lack of an alarm and in paragraph 4 of the decretal portion of the
majority Decision, no software exists that will automatically type in quotation
marks at the beginning and end of a passage that was lifted verbatim; these
attribution marks must be made with deliberate effort by the human researcher.
Nor can a software program generate the necessary citations without input from
the human researcher. Neither is there a built-in software alarm that sounds
every time attribution marks or citations are deleted. The best guarantee for
works of high intellectual integrity is consistent, ethical practice in the
writing habits of court researchers and judges. All lawyers are supposed to be
knowledgeable on the standard of ethical practice, if they took their legal
research courses in law school and their undergraduate research courses
seriously. This knowledge
can be easily picked up and updated by browsing many free online sources on the
subject of writing standards. In
addition, available on the market are software programs that can detect some,
but not all, similarities in the phraseology of a work-in-progress with those
in selected published materials; however, these programs cannot supply the
citations on their own. Technology can help diminish instances of plagiarism by
allowing supervisors of researchers to make partial audits of their work, but
it is still the human writer who must decide to give the proper attribution and
act on this decision.
No comments:
Post a Comment