ANDAL AMPATUAN SR’S LONG DELAYED ARRAIGNMENT: EVIDENCE OF DYSFUNCTIONAL JUSTICE SYSTEM


The long delayed arraignment of Andal Ampatuan Sr. for 57 counts of murder is
evidence of a dysfunctional justice system in the Philippines. While an accused like him has the right to a stay of his arraignment where he opts to challenge the existence of probable cause, the rules on criminal procedure nonetheless mandates that the suspension should  not be more than 60 days reckoned from the time of the filing of the Information. Our computation indicates that the 60-day period to which Ampatuan Sr. was entitled  expired in August of 2010. Yet, it is only today, 1 June 2011, when he is actually being arraigned.

There is more reasons to worry. Andal Sr’s arraignment was made possible
only because he voluntarily agreed to it. Never mind that the prosecution
has had a pending motion to have all the accused in  custody to be arraigned. The Court has not acted on this motion. This is alarming because seemingly, it was not the rules that compelled Andal Sr to enter a plea. On the contrary, it was only because he agreed to it- as if an accused can now rewrite the rules to suit his ends.

The Center for International Law, an affiliate of the Southeast Asia Media Legal Defense Network, private prosecutor representing media victims of the massacre, submits that an arraignment done in this manner undermines the country’s rule of law. Under human rights law, all accused should be treated
alike. Here, an arraignment, made dependent on the willingness of the accused to enter a plea, and not pursuant to the rules of criminal procedures, weakens and undermines the rule of law. It proves that some accused have more rights than others. This is a truly sad commentary on the state of our criminal justice system.

Neither do we think that altruism is behind Andal Sr’s  voluntary arraignment. To date, at least three of his sons, Zaldy, Sajib, and Akmed, have also not been arraigned, despite the lapse of the mandatory 60 days suspension. We believe that the voluntary nature of Andal’s arraignment is intended to deflect the public’s attention away from the controversy that has by now surrounded the Petition for reviews filed by Andal’s sons in the Court of Appeals. At least one columnist, Mon Tulfo, has written that at least 200 million circulated in the high court to effect the release of at least one of Andal’s sons.

Ultimately, this is why there is impunity in the Philippines. Despite a change in administration, the justice system is simply not working and its rebuilding- has not been made a priority.#30#

Published in: on June 1, 2011 at 8:52 am  Comments (6)  
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Democracy and the ARMM elections


I used to be uncertain about my position on the administration’s planned postponement of the elections at the Autonomous Region for Muslim Mindanao (ARMM). I no longer am.

The postponement appears to be the brainchild of a dear friend and law client, Political Affairs Secretary Ronald Lamas and is for the noblest of intentions: the holding of truly democratic elections at the ARMM. Commission on Human Rights Chair Loreta “Etta” Rosales, another dear friend, explained that the postponement is necessary to give the COMELEC time to purge the voters list and conduct a comprehensive dissemination on the sacred value of the right to suffrage in a democracy. The last time we had elections at the ARMM, the Ampatuan family emerged victorious. The perception was the dreaded clan won because it used the 3 G’s of traditional politics: guns, goons, and gold, but not necessarily in that order. It helped too that the clans’ patriarch, Andal Sr., astutely married off his sons and daughters to the different influential clans in Muslim Mindanao. This united in marriage the fractious and normally warring clans of the region.

The opposition to the postponement has been articulated by Fr. Eliseo “Jun” Mercado of Notre Dame, Cotabato. According to Fr. Mercado, the postponement is contrary to the organic law of the ARMM. Congress could not amend this organic act without a plebiscite held especially for the purpose. This is because the date of the ARMM elections was expressly provided in the ARRM organic law passed by Congress and duly ratified by its constituents. Any amendment thus to a provision of the ARMM organic law, including the date for its regular elections, should likewise be approved by the people. Moreover, Fr. Mercado highlights the point that a Manila sanctioned postponement would bolster criticisms that the current system of autonomy proffered as a solution to the age-old Mindanao conflict is a – sham. How could there be genuine autonomy when elections are held hostage by colonial Manila? Ramon Casiple has pointed out an irony: while the motives behind proposal to postpone the ARMM elections has to do with the wish to strengthen democracy in the region, a postponement would in fact have the opposite result: destroy democracy. This, according to Casiple, is because the appointment of leaders in the ARMM, a move that the President would have to do in the event the elections were to be synchronized with the 2013 elections, is simply anathema to democracy where elections could be resorted. This last argument certainly made the most sense to me: the postponement would kill democracy to promote it.

Besides, why should we expect elections at the ARMM to dramatically change after two years? Already, it is obvious that while the Ampatuan massacre has led to what Fr. Mercado has described as the “beginning of the end of the Ampatuan clan”, it is very clear that the Mangudadatus will simply substitute them. Pakung S. Mandudadatu, also known as Pax, although well loved by his Christian constituents in Sultan Kudarat, does offer a glimmer of hope. But already, we see that in places like Maguindanao under yet another Mangudadatu, Toto- all that has occurred thus far is a change of characters. The institutional changes that are required to liberate our Muslim brothers from the yoke of poverty and feudalism will not happen in two years. It probably will not happen in my lifetime!

In any case, time does not appear to be on the side of those who want to postpone the elections. In what appears as yet another Senate “snub”, the upper house, most likely deliberately, failed to act on the House approved bill mandating the postponement. This has prompted the political elites of the region to file their respective certificates of candidacy. As expected, a Pax has filed his certificate of candidacy for the post of governor. Even the President’s own aunt, Margarita “Tingting” Reyes-Cojuangco, has become Muslim and has filed her certificate of candidacy for Vice-Governor. In fairness to the beautiful Tingting, she has indeed spent long periods of time studying the culture and politics of Muslim Mindanao. I do not know though if this is enough to make her a bona fide resident of the ARMM.

Meanwhile, the talk has shifted to what kind of elections will be conducted at the ARMM. Apparently, my friend and comrade against the SMARTMATIC PCOS machine, now Commissioner Gus Lagman, was the lone dissenter in a COMELEC resolution authorizing the purchase of about 5000 PCOS machines to be used in the ARMM elections. This decision has certainly reignited the debate about the PCOS as an agent of democracy. I have been one of those who like Gus and the rest of the AES Watch consortium, believe that the use of the PCOS machine is both unconstitutional and illegal. It is unconstitutional because COMELEC has for all intents and purposes, abdicated its constitutional mandate to conduct and supervise all elections to foreigners. It is illegal because among others, it does not give the voter an opportunity to verify how his vote was counted. Worse, Smartmatic, despite a legal duty and a Supreme Court decision ordering it to have its source examined, has dismally failed in this regard because it is unable to have a program owned by a third party to be examined by anyone. This means that we were denied- and the ARMM voters may yet be again denied- the only means to ensure that the computer programs used in the electoral exercise does not have pernicious codes that may undermine the right of the people to choose their leaders.

To those who are with us on this issue: do not despair. If the first time around, we did not have actual evidence of our apprehensions against the Smartmatic PCOS machines, we have them now courtesy of the flawed 2010 elections. Moreover, we also have the procurement law on our side: the COMELEC resolution was without the benefit of the mandatory competitive public bidding. As they say: abangan ang susunod na kabanata!(wait for the next chapter) #30#

Published in: on May 25, 2011 at 11:22 pm  Comments (1)  
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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.

Published in: on October 21, 2010 at 10:55 pm  Comments (6)  
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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.

Published in: on October 21, 2010 at 10:45 pm  Comments (7)  
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Battle Royale


Impeachment is once again controversial. In an unprecedented move, the House Committee on Justice lead by its Chairman, Rep. Neil Tupas Jr., voted overwhelmingly to defy a status quo order ordered by the Supreme Court on the impeachment complaint filed against the Ombudsman Merceditas Gutierrez. At issue is whether a second impeachment complaint by the party list Bayan Muna filed and consolidated with an earlier one filed by Rep. Rissa Hontiveros of Akbayan was a prohibited complaint for violating the one-year ban on the filing of subsequent impeachment proceedings against an impeachable officer. The allegation of the beleaguered Ombudsman is that it is. The House of Representatives believes that the Court has no jurisdiction to hear the Ombudsman’s petition. This is because according to it, the initiation of an impeachment complaint is an exclusive power of the House of Representatives. Hence, the Court is bereft of jurisdiction to hear the Petition of the Ombudsman.
To the surprise of the House of Representatives, and before it could be heard, the Supreme Court issued a stay order that effectively had the effect of a restraining order. Predictably, the Court spokesman warned members of the House that they risk being cited in contempt of court should they proceed with their proceedings. Well, the die has been cast: the House has defied the court. Who will blink in this constitutional confrontation?

We have had our share of involvement in impeachment proceedings. In 2003, we petitioned the court to restraint the House of Representatives from transmitting its articles of impeachment against then Chief Justice Hilario Davide Jr. on the ground that the same was a second prohibited impeachment proceeding. This was because the articles of impeachment was signed by one-third of all members of the lower house a day after the Justice Committee had dismissed an earlier impeachment complaint against the Chief Justice for administering the oath to President Gloria Macapagal-Arroyo as President after Edsa 2.

Later, we also served as counsel for three impeachment complaints against ex-president Gloria Macapagal-Arroyo and a petition in the Supreme Court questioning the dismissal of an amended impeachment complaint filed after an earlier complaint filed by Oliver Lozano.

At the center of all controversies is the one-year ban provided in Section 3 (5), Article XI of the 1987 Constitution: “(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year”.

In the first case, the court ruled in Roque et. al. v. De Venecia that it had jurisdiction to act on the petition seeking to restraint the filing of the impeachment despite clear language of the Constitution that the House of Representatives has the exclusive power to initiate impeachment complaints. This, according to the court, is precisely the purpose behind judicial power, that is, to uphold the supremacy of the constitution where there is grave abuse of discretion on the part of an agency or department of government. There is grave abuse of discretion where a branch of government contravenes a literal provision of the Constitution.

The Court then ruled that initiation is upon filing of a complaint and referral to the Committee of Justice. Under this interpretation, the court ruled hence: “In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on Aug. 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro Jr. and Felix William Fuentebella against the Chief Justice on Oct. 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period”.

In the second petition, Martinez v. De Venecia, we questioned the decision of the House to junk the substantive amended complaint to the Lozano petition. We argued that what is prohibited by the Constitution is more than one impeachment proceeding per year and not multiplicity of complaints itself. Otherwise, we argued that all that an impeachable officer would do to ensure a year of impunity is to cause the filing of a bogus impeachment complaint.

In the vernacular, we warned that what would ensue would be an “unahan ng daga”. Hence we argued that what was literally prohibited was “multiple impeachment proceedings” and not “complaints”. No ruling on the merit was rendered in this second case because the court dismissed it on the ground that it had become moot when Mrs. Arroyo ended her nine years of destructive reign. But the court did miss a golden opportunity to give guidance to bar and bench on what is precisely prohibited by the constitution. This once more, is the issue in Gutierrez v. House of Representatives Committee on Justice.

The argument by the Ombudsman is that the House Committee on Justice violated the constitution when it consolidated the second Bayan petition with the first Akbayan petition and proceeded to determine sufficiency of form and substance of both complaints.

This we submit is the correct course of action in the event of multiple impeachment complaints. Provided it complies with the ruling in Roque that it was referred simultaneously to the Committee on Justice, the committee should consolidate all pending complaints in the same manner that any House committee would consolidate all the different bills covering the same subject matter in a committee report that would then be submitted to the plenary. The difference is that unlike in the earlier controversy, this is now the course of action taken by the Committee. Our problem then was whether as a result of separation of powers, the Court could in fact compel the House Committee on Justice to do what it did now in the Gutierrez complaint.

But the really interesting issue now is: which branch of government will blink? Relax and enjoy the best show in town!

Published in: on September 30, 2010 at 1:53 pm  Comments (4)  
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CITO LORENZO: DON’T DO A NERY, SPEAK THE TRUTH!


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Published in: on July 7, 2010 at 1:15 pm  Comments (14)  
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DEMOCRACY, DE LIMA AND DEMOCRACY


A third journalist was killed in a span of five days. Nestor Bedolido of Digos City was shot six times by a motorcycle riding assailant. Previously, two other journalists—Joselito Agustin from Laoag and  Desidario Camangyan from Mati City, bothe radio commentators —were also killed. Already, the number of journalists killed during the administration of Gloria Macapagal-Arroyo has reached 103. It is because of these killings that international journalists groups such as the Committee to Protect Journalists have  concluded that the Philippines is now   the deadliest country for journalists .

While journalists are not the only ones being  killed in this country, as in fact, the number of victims of extralegal killings have already exceeded a thousand for the period of Arroyo’s administration alone, the question is asked: what is so wrong with the killing of journalists outside of the fact that under both natural and our penal laws, murder is a crime? What makes the killings of media professionals more heinous than say the killing of a street vendor by a drug crazed killer?

The answer lies in the unique role that the media plays in a democratic society.

Our Constitution provides that “no law shall be passed abridging the freedom of the press”. This is based on a belief that the truth is discerned only in a free market place of ideas. According to Justice Holmes, the “true test for truth is the power of an idea to be accepted as truth in a market place of ideas”. This explains why under democratic systems, a falsity per se is not actionable. It becomes actionable only where there is actual malice, be it actual or legally presumed.

A free press, though, is valued far more than because it helps us discern the truth. More importantly,  it is valued because it is only when you have a free market place of ideas that an individual can form an opinion on issues involving him and the public at large. It is because of these individual opinions that individuals can participate in public debates on issues that affect the public. When there is a consensus of individual opinions, we have what we refer to as public opinion. In turn, it is believed that public opinion, over and above institutions of government, is best able to fiscalize governments and regimes. This is why the media is referred to as the “fourth estate”, a co-equal institution in a democracy, albeit not a branch or instrumentality of government.

To kill a member of the media is hence is to kill what makes democracy work. Without information, there can be no opinions. Without the latter, there would be no debates. With no debates, there would be no consensus. Without public opinion, there would certainly be despots and dictatorial regimes. This explains why in the course of history, dictators would always infringe on freedom of the press first. To kill members of the media, in other words, is the surest way to kill a democracy.

***

I have just gotten word that Commission on Human Rights Chairperson Leila De Lima has accepted her appointment as Secretary of Justice. I must say that this is thus far one of the best moves of President-elect Noynoy Aquino. What has contributed to the culture of impunity prevailing in this country is that the Arroyo administration, including all the Secretaries of Justice, did not prevent these killings of journalists and activists. Worse, they also failed to investigate, prosecute and punish the perpetrators of these killings. With Leila De Lima at the helm of the Justice Department, there is now hope that change may indeed be forthcoming.

Secretary-Designate De Lima surprised skeptics who thought that as an election lawyer, she may not be effective in protecting and promoting human rights in the CHR. But in a very short span of two years, she studied the law on human rights and became by far the most effective exponent of rights in an administration that has become notorious for being a human rights violator. What made her effective may not have been her thorough grasp of the specialized field of human rights, but her visibility, dynamism and her sincerity in promoting these rights. When people stayed away from Maguindanao right after the massacre, she was on the ground conducting her own parallel investigation. When the Morong 43 was apprehended, she had the balls to summon the Armed Forces hierarchy and declare that they committed acts of torture against the apprehended health professionals. Even in the recently concluded automated elections, she was an advocate for clean and honest elections, arguing what many people may not have realized: that clean and honest election is also a fundamental human right enumerated in the International Covenant on Civil and Political Rights. Kudos for P-Noy for the De Lima appointment.

***

At least 10 Filipino comfort women conducted a prayer vigil last Tuesday, June 22 to protest the recently promulgated decision of the Supreme Court in the case of Vinuya versus Executive Secretary. The Petition was to compel the Philippine government to sponsor the claims of these Filipinas for compensation from Japan. The claim was because all of the petitioners in the case were brutally and repeatedly raped by officers and soldiers of the retreating Japanese Imperial Forces when it had become apparent that they would lose the war. Some of these Lolas were as young as 12 years old when they were forcibly brought to the infamous Bahay na Pula, which stands until today along the national highway en route to Cabanatuan, where they were repeatedly raped for days and weeks by Japanese soldiers. When these women previously filed suit before Japanese Court for compensation as victims of mass rape as a war crime, the Japanese court ruled that they had no  standing to sue as it is the Philippines that should have filed suit on their behalf. According to the Japanese Court, it is states, and not individuals, that have the capacity to sue under International Law. And because their claim was never espoused by the Philippine government, they filed suit to compel the government precisely for this purpose.

The lolas protested a ruling that said that their claims for compensation is barred by the San Francisco Peace Pact where in exchange for nominal war reparations, the Philippines allegedly renounced all further claims for compensation. The Court also said that there was no jus cogens prohibition on rape during World War Two and that the plight of the comfort women was one of those where there was a violation of a right but with no legal remedy.

The lolas will congregate anew in front of the Supreme Court on July 5 at 10 a.m.

Published in: on June 25, 2010 at 4:57 am  Comments (1)  
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