The Tsunami that hit Malcolm


The normally pleasant and peaceful atmosphere of Malcolm Hall in University of the Philippines in Diliman was recently hit by a legal tsunami.
The early signs of the impending tsunami became apparent when in support of  the Philippine comfort women’s quest for justice, 37 of my colleagues signed a public statement entitled “Restoring Integrity”. Confirming what they deemed were acts of plagiarism committed by Justice Mariano Del Castillo in the case of Vinuya versus Executive Secretary, my colleagues said: “The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.”

As an academic faculty, they were of course gravely concerned about plagiarism per se: “In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work as one’s own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of someone else’s ideas and expressions, including all the effort and creativity that went into committing such ideas and expressions into writing, and then making it appear that such ideas and expressions were originally created by the taker. It is dishonesty, pure and simple”.

Of course, my colleagues were particularly concerned about plagiarism in the Supreme Court  for what I personally consider as obvious reasons: “A judicial system that allows plagiarism in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by

dishonest means. Evidently, this is a complete perversion and falsification of the ends of justice”.

The statement continued: “The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes ensuring that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It is an absolutely essential step toward the establishment of a higher standard of professional care and practical scholarship in the Bench and Bar, which are critical to improving the system of administration of justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all controversies: a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.”

They ended their statement with the following “prayer”: “1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;

(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;

(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;

(5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication”.

The tsunami was in the form of a decision cum show-cause order. As professor Ibarra Gutierrez said: “It was the longest show cause order” he had seen. Indeed, since the document was seven pages long. The Order purportedly asked my colleagues to SHOW CAUSE why they should not be disciplined for violating the Code of Professional Responsibility.  It was the opinion of the Court that for concluding that there was plagiarism even before the court-created ethics committee could begin its task of determining the existence of such, it was unethical for the UP law professors to have concluded that there truly was.

Two female Justices dissented from the Show Cause order. For Justice Conchita Morales, the order was in reality an indictment without due process: “ the Court appears to be lending only a semblance of due process x x x. The Resolution is replete with conclusions that already adjudged them guilty of violating the canons of ethics. Aside from concluding that the publication  x x x was “totally unnecessary, uncalled for and rash x x x the Resolution classifies it as an “institutional attack”. Justice Maria Lourdes Sereno for her part  said that “Ordering the 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” not be crucified for his public observation x x x 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”.

Overnight, many of my colleagues, many of whom used to enjoy utmost privacy in the confines of Diliman, have become celebrities, if not heroes. Thus far, they have gotten tremendous support from the Philippine media and from angry citizens deploring “judicial tyranny”. Many of those expressing support to the College did so on  the Internet. More importantly, at least three of the four foreign authors, whose works the College concluded were plagiarized, have also expressed their support for the beleaguered faculty. The latest is Mark Ellis of the International Bar Association. In a letter to the Supreme Court, Mr. Ellis said that the show cause order is an affront on the human rights of the faculty.

MORE PLAGIARISM IN THE DEL CASTILLO’s PONENCIA IN “ANG LADLAD”


One of my former students who is now pursuing further studies in the US made an independent review of the ponencia of SC Justice Mariano del Castillo in the “Ang Ladlad” case and listed the following instances of plagiarism:

Ladlad ponencia by J. del Castillo Original source 

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.  

Source: Section 49 of Handyside vs. United Kingdom (1979), a decision by the European Court of Human Rights (ECHR)

 

Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. 

Source: Hurley vs. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 515 U.S. 557, at 579.

 

However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door. What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community. 

Source: Section 19 of Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, a decision by the Supreme Court of Canada

 

[42] x x x  See also, L. and V. v Austria (2003-I 29; (2003) 36 EHRR 55) and S.L. v Austria (2003-I 71; (2003) 37 EHRR 39),  where the European Court considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’. 

 

In L. and V. v Austria65 and S.L. v Austria66 the ECtHR considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’.67 

65 L. andV. vAustria 2003-I 29; (2003) 36 EHRR 55.

66 S.L. vAustria 2003-I 71; (2003) 37 EHRR 39.

67 L. andV. vAustria, supra n. 65; and S.L. vAustria, ibid. at para. 44.

Source: Sexual Orientation, Gender Identity and International

Human Rights Law: Contextualising the Yogyakarta Principles by Michael O’Flaherty and John Fisher, Human Rights Law Review (2008) 8(2), 207-248, at 217.

Note:

(1)    The Human Rights Law Review is published by the Oxford University Press.

(2)    The journal article by O’Flaherty and Fisher was never cited in the Ladlad ponencia.

 

[44] x x x Note that in Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, the ECHR unanimously ruled that the banning of an LGBT gay parade in Warsaw was a discriminatory violation of Article 14 of the ECHR, which provides: 

The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It also found that banning LGBT parades violated the group’s freedom of assembly and association. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.

 

63. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44, p. 25, § 63, and Chassagnou and Others v. France [GC], nos. 25088/95 and 28443/95, ECHR 1999-III, p. 65, § 112). 

Source: Paragraph 63 of Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, a decision by the European Court of Human Rights.

[46] x x x x 

So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US Supreme Court held that the Boy Scouts of America could not be compelled to accept a homosexual as a scoutmaster, because “the Boy Scouts believe that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a legitimate form of behavior.”

When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. We therefore held, for example, that a State severely burdened the right of expressive association when it required the Boy Scouts to accept an openly gay scoutmaster. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” Boy Scouts of America v. Dale, 530 U. S. 640, 653 (2000). 

Source: Justice Antonin Scalia’s Dissenting Opinion in Washington State Grange v. Washington State Republican Party, et al., 552 US 442, at 463.

[49] The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work) (Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right to water) (Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, November 26, 2002) and 14 of 2000 (on the right to the highest attainable standard of health) (Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, August 14, 2000), it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation. 

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003, it stated that, “State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These grounds also cover [inter alia] sexual orientation”. (Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, July 1, 2003, CRC/GC/2003/4).

The Committee on the Elimination of Discrimination Against Women (CEDAW), has, on a number of occasions, criticized States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, “lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished” (Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, February 5, 1999, A/54/38 at par. 128).

The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos 18 of 2005 (on the right to work),37 15 of 2002 (on the right to water)38 and 14 of 2000 (on the right to the highest attainable standard of health),39 it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation ‘that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]’. The CESCR has consistently based this prohibition on the terms of the Covenant’s anti-discrimination provision, Article 2.2, which lists invidious categories of discrimination as 

including ‘sex’ and ‘other status’. Presumably, since the CESCR distinguishes ‘sex’and ‘sexual orientation’ in its General Comments, it locates sexual orientation within the rubric of ‘other status’. The CESCR, in the General Comments, also invokes the article addressing equal rights of men and women, Article 3, as a basis for its prohibition of sexual orientation-related discrimination. This linkage of the categories of sex and sexual orientation-related discrimination is discussed subsequently in the context of the practice of the Human Rights Committee (HRC).

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003,40 it stated that, ‘State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These grounds also cover [inter alia] sexual orientation’. The CRC thus appears to adopt the same approach as the CESCR in locating sexual orientation within the category of ‘other status’.

x x x x

The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that,‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’.44 The Committee on the Elimination of Racial Discrimination (CERD) appears never to have engaged with issues of discrimination against persons who belong to both racial and sexual minority groups. This gap is startling when one considers the authoritative evidence of such persons facing forms of ‘double discrimination’, as reported, for instance, by the UN Human Rights Council’s Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.45

37 Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, 24 November 2005.

38 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, 26 November 2002.

39 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, 11 August 2000.

40 Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/

2003/4.

x x x x

44 Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, 5 February 1999, A/54/38 at para. 128.

45 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Commission on Human Rights, 28 February 2006,

E/CN.4/2006/16/Add.3 at para. 40.

Source: Sexual Orientation, Gender Identity and International

Human Rights Law: Contextualising the Yogyakarta Principles by Michael O’Flaherty and John Fisher, Human Rights Law Review (2008) 8(2), 207-248, at 214-216.

Note:

(1)    The Human Rights Law Review is published by the Oxford University Press.

(2)    The journal article by O’Flaherty and Fisher was never cited in the Ladlad ponencia.

 

[51] The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) individuals. It contains 29 Principles adopted by human rights practitioners and experts, together with recommendations to governments, regional intergovernmental institutions, civil society, and the United Nations. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) people, and further of intersexuality requested by Louise Arbour according to the International Human Rights Law. 

Source: Wikipedia – http://en.wikipedia.org/wiki/Yogyakarta_Principles

It contains 29 Principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil society, and the UN itself.

Source: Human Rights Watch World Report 2008, p. 36. Preview of the book (as well as the relevant page) is available at:

http://books.google.com/books?id=4QL9BElMSbkC

 

Further Mistakes of MS Word or more Plagiarism from Justice Del Castillo?


In the earlier case of Ang Ladlad, (GR No. 190582, April 8, 2010) Justice Del Castillo appeared to have committed plagiarism as well. Our study is only preliminary but the exigencies of the situation have compelled us to make this public.

In the Ang Ladlad decision allowed a gay rights group to run in the party-list elections, and was released 20 days earlier than the Vinuya decision. The ponente here is also Justice Del Castillo.

————————-
The relevant passages are as follows:

Del Castillo ponente (Ang Ladlad), p. 21

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

The European Court of Human Rights case of Handyside v. United Kingdom, 7 December 1976, 1 EHRR 737 para. 49:

Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

—————-

We wonder if this is also the fault of MS Word

FOREIGN VICTIMS OF “VINUYA” SPEAK IN FAVOR OF UP LAW AND THE COMFORT WOMEN


http://opiniojuris.org/2010/10/26/holding-the-up-law-faculty-in-contempt-would-be-a-grave-mistake/

Holding the UP Law Faculty in Contempt Would Be a Grave Mistake
by Evan Criddle And Evan Fox-Decent

[Opinio Juris is delighted to post these remarks by Professors Evan Fox-Decent (McGill) and Evan Criddle (Syracuse) on the fallout from the allegations that their article was plagiarized by a member of the Philippines Supreme Court]
We are writing to lend support to the University of Philippine’s College of Law, which now faces a very serious charge of contempt from the Philippine Supreme Court (PSC). If the members of the College are held in contempt, they face the loss of their bar licenses and with that the loss of their ability to teach and practice law.
A few months ago the PSC rendered its decision in Isabelita Vinuya et al. v. Executive Secretary et al. (full text of this decision available at:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm ). The complainants asked the PSC to order the Philippine government to seek reparations from Japan for the Japanese military’s mistreatment of Philippine women during World War II. During the Japanese occupation of the Philippines, the Japanese military interned scores of Philippine women and placed them in sexual slavery. The Vinuya decision discusses jus cogens or peremptory norms of international law, as these norms enjoy a status that cannot be overridden by treaty. The PSC concluded the no such norm prohibited sexual slavery, and thus that jus cogens was irrelevant to the case.
In its jus cogens discussion, the PSC quoted without attribution numerous selections from an article by Evan Criddle and myself, an article featured here at Opinio Juris. In the aftermath of Vinuya, Professor Criddle noted that the most troubling aspect of the PSC’s jus cogens discussion is that it implies that sexual slavery, crimes against humanity, and other abuses are not covered by jus cogens, whereas we had emphatically argued that they are.
The complainants in Vinuya filed a motion for reconsideration, pointing to more than 30 tracks lifted without attribution from our article. The complainants also alleged that material from Mark Ellis and Christian Tams had been used without proper attribution. The motion is available here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/. The University of the Philippine’s College of Law issued a statement critical of the apparent plagiarism, available here.
The PSC held a hearing to review the plagiarism charge and delivered a split decision. The majority acknowledged that some of our article’s text was used in Vinuya without appropriate referencing, but chalked this up to clerical errors. The minority doubted that so many selections could be used innocently without attribution, raising the possibility that the lack of attribution stemmed from the Vinuya Court reaching conclusions directly contrary to those expressed by us, Ellis and Tams.
On 18 October 2010 the PSC issued an order giving members of the UP College of Law 10 days to show cause as to why they should not be sanctioned for issuing the statement critical of Vinuya.
Professor Criddle and I believe that it is not the place of a court to sanction individuals or institutions that have been critical of it. This principle is especially important in the case of a law school, where discussion of cases is an integral part of legal pedagogy. The idea that a law school or its members cannot express an opinion on a case is contrary to the best practices of law schools everywhere, and an affront to free expression. That a court would assert jurisdiction to sanction its detractors is, in our opinion, an abuse of judicial power. To the best of our knowledge, no court in a democracy has ever attempted to assert the kind of jurisdiction the PSC is asserting now against the UP College of Law.
We initially declined to comment on the substance of the plagiarism complaint, except as noted above. Readers can draw their own conclusions from the ‘tables of comparison’ (comparing the original text with text in Vinuya) provided by Justice Sereno who wrote with the minority in the plagiarism decision. Given the stakes involved now for members of the UP College of Law, we believe it is important for us to offer our opinion on the merits of the plagiarism charge. The point of our doing so is only to underline that the UP College of Law issued its critical statement in good faith and has clean hands in its dispute with the PSC. While the UP statement contains some harsh and uncompromising language, it emerged in the wake of a controversial decision, and is clearly within the scope of speech protected under any reasonable interpretation of freedom of expression.
A cursory glance at the tables of comparison set out in Justice Serano’s opinion reveals repeated verbatim or near-verbatim uses of text from our article without attribution. If a law student submitted an essay with this much cut-and-paste text, without attribution, he or she would almost certainly be subject to disciplinary action. We say this with all due respect to the PSC, and only to emphasize to others in the legal community that we believe the UP College of Law acted in good faith when it criticized the use of our article in the Vinuya opinion. The College has clean hands in this dispute, and in our view deserves support.

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:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm ). 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: http://www.ruhr-uni-bochum.de/ifhv/documents/huvi/huv_2006/3_2006.pdf 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:http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/

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:http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/

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.”http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100721-282283/High-court-not-probing-plagiarism

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:http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/

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:http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.htm

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: http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm

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. Seehttp://newsinfo.inquirer.net/inquirerheadlines/nation/view/20101020-298693/UP-Law-faces-sanction-over-SC-plagiarism-case andhttp://www.gmanews.tv/story/203873/up-law-risks-sanctions-for-statements-on-plagiarism-mess , 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.

xxx

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.

xxx

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.

xxx

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.

Plagiarism and Kidnapping


The Supreme Court last week promulgated a decision that Justice Maria Lourdes Sereno described in her dissent as one that would create “unimaginable problems for the academia” on how they would hence discipline students and researchers for plagiarism. Justice Sereno was particularly concerned with the majority’s decisions that plagiarism requires intent, which according to her, “stand against overwhelming convention on what plagiarism is.”
The lady Justice’s dissent was a directed at a per curiam (meaning the writer does not wish to be identified) majority opinion of the Supreme Court which dismissed our complaint against Justice Mariano Del Castillo for plagiarizing at least three works of foreign authors published by two leading international law journals and a book published by Cambridge University Press.

The majority dismissed the complaint after it accepted the explanation of Justice Del Castillo’s researcher that the failure to attribute was not intentional. In the words of the court: x x x “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.. x x x

She electronically “cut” relevant materials from books and journals in the Westlaw Web site and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. x x x as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions. x x x Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.”

In the absence of an intent to plagiarize, the court could not rule that there was in fact plagiarism: “plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.”

Justice Sereno was, however, not convinced: “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.”

The dissenting opinion then adopted the matrix that was included in our supplemental motion as evidence of plagiarism in the text of the decision itself. She then painstakingly enumerated what were instances of plagiarism.

Anent the defense that the “limited operational properties” of MS Word was somehow contributory to the omission of the court researcher, the lady justice had this to say:

“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 above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, 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.”

I have not received a copy of either the majority nor the dissenting opinion. Chances are we will file a motion for reconsideration, precluding me hence from commenting on either opinion. This much I will say: plagiarism comes from the same root word as kidnapping. It is not just morally wrong, it is in fact criminal. It cannot and should not be treated lightly, nor casually. As an educator, I can only concur in the fears expressed by Justice Sereno that the decision will have disastrous effects for the academe. Unless challenged, the majority opinion and the “MS Word” defense may hence be invoked by dishonest students in justifying plagiarism.

In any event, while the Supreme Court’s decision is final on purely legal issues, its decisions on a charge of plagiarism, unprecedented in our jurisdiction, is subject to challenge particularly by those who have the most interest in preventing it: the academe. Surely, the decision cannot remove the perception by at least three respected international scholars that their works were in fact plagiarized and twisted. And yes, lest we forget, Vinuya is not just about plagiarism. Its primarily about at least 60 women who were repeatedly raped during World War II and who, according to the majority opinion of the Court, have no further remedies under our laws.