Sunday, December 11, 2011

In Re del Castillo Plagiarism Controversy (Part II) : The February 8, 2011 Per Curiam Resolution


RESOLUTION

PER CURIAM:
                                                             
 [T]he Court’s decision in the present case does not set aside [the different norms assumed by educational institutions in treating plagiarism].  The decision makes this clear, thus:

To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer’s thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions.  The judge is not expected to produce original scholarship in every respect.  The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.

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There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide.  Their duty is to apply the laws as these are written.  But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations.  Under this doctrine, Courts are “to stand by precedent and not to disturb settled point.” Once the Court has “laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same.”

And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases.  And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators.

Is this dishonest?  No.  Duncan Webb, writing for the International Bar Association puts it succinctly.  When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected.  Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability.

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If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions.  These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts.  Never in the judiciary’s more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism. 

This is not to say that the magistrates of our courts are mere copycats.  They are not.  Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant.  They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke.  The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court.  These efforts, reduced in writing, are the product of the judges’ creativity.  It is here—actually the substance of their decisions—that their genius, originality, and honest labor can be found, of which they should be proud.

In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done.  He identified and formulated the core of the issues that the parties raised.  And when he had done this, he discussed the state of the law relevant to their resolution.  It was here that he drew materials from various sources, including the three foreign authors cited in the charges against him.  He compared the divergent views these present as they developed in history.  He then explained why the Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the dispute in the case.  On the whole, his work was original.  He had but done an honest work.   

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True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision.  Unfortunately, as testified to by a highly qualified and experienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft.  The Court believed her since, among other reasons, she had no motive for omitting the attribution.  The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law.

Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others.  The authors concerned were not themselves the originators.  As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors borrowed their ideas in the first place.  In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others.  He did not pass them off as his own.  

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ACCORDINGLY, the Court DENIES petitioners’ motion for reconsideration for lack of merit.

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