Rape and probable cause against Del Castillo

Voting 38-10, with no abstentions, the House of Representatives Committee on Justice determined the existence of probable cause for betrayal of public trust against Supreme Court Associate Justice Mariano Del Castillo. This is the latest in the saga of the Malaya Lolas, victims of mass rape during World War II, who have been fighting for redress for the past 60 years. The impeachment, together with the Lolas’ motion for reconsideration pending in the case of Vinuya et al vs. Executive Secretary, are the last remaining legal attempts to obtain justice for these victims.It was my first time to attend the House proceedings. Last week, four of the Lolas trooped to the Committee to give evidence to prove the existence of probable cause against the magistrate. Unfortunately, in the one and only time I could have spoken on behalf of the Lolas in Congress, I happened to be abroad to deliver plenary remarks in an international conference to mark the tenth year of the International Criminal Court in Sydney, Australia. I would have preferred to talk on behalf of the Lolas in Congress. Unfortunately, my restricted and non-refundable ticket to Sydney had already been issued by the time I received my invitation to the Committee hearing. It was my law partner Joel Butuyan and the Executive Director of Center for International Law, Romel Bagares, who went to represent the Lolas in Congress.But just as the Lolas were giving their testimony in Congress, I too was discussing their plight in the ICC conference. Before an audience consisting of the “ who’s who” in international law, I discussed lessons learned and challenges arising from the Philippine accession to the Rome statute of the ICC. One such challenge is the ability of the Philippines to exercise primary jurisdiction in crimes cognizable by the ICC. I argued that the decision in Vinuya, the Lolas’ case, is evidence of a lack of capacity of our courts to apply the basic principles of international criminal law. This may be a from of “inability” to exercise primary jurisdiction. The good news is that this would justify the ICC prosecuting similar crimes in the future without offending sovereignty.

The audience was in disbelief when told about the Vinuya decision They could not understand why the Court declared that the waiver of further reparations provided in the San Francisco Peace pact should prevail over the jus cogens norm against rape as a war crime and the duty to provide redress to victims thereof. That the women are entitled to reparations despite the waiver of further reparation has been the consistent position of the United Nations, particularly the Special Rapporteur on violence against women and the Committee on the Elimination of Discrimination Against Women. Since the pendency of Vinuya, the South Korean Constitutional Court has expressed the same opinion. Only recently, the latter ruled that a failure of the South Korean government to espouse their comfort women’s claim is unconstitutional.

Worse, the audience was baffled with our Court’s opinion that rape only became criminal in the 1990s as a result of the decision of the Rwanda tribunal in the case of Prosecutor v. Akayesu. This was what prompted me to instruct my law associates to look at each and every footnote cited by the Court in Vineyard. Simply put, that conclusion was wrong.

Back to the Congressional hearing, much of the time spent prior to the voting on the existence of probable cause was whether the plagiarism and the twisting complained of by the complainants were serious enough to warrant impeachment. The chairman of the committee, Rep Neil Tupas, started the hearing by reading from the proceedings of the constitutional commission. It was clear from what Tupas read that betrayal of public trust as a impeachable offense is new. It was added to include acts which may not be criminal- but could still affect the fitness of an impeachable officer to hold office.

Yesterday’s ruling was ground breaking not only insofar as the Lolas’ quest for justice is concerned. In Roque v. De Venecia, our Court ruled that the definition of betrayal of pubic trust is beyond the ambit of judicial review and is a political question, The question was given an answer yesterday: 32 counts of plagiarism and the twisting perpetrated by Justice Del Castillo in Vinuya, albeit allegedly without intent, constitute betrayal of public trust.

Future magistrates, beware.


attached please find a copy of the motion for reconsideration which we filed this afternoon in the Supreme Court involving the plagiarism case of Justice Mariano Del Castillo. The blotted portions refer to confidential mattes taken up during the ethics committee hearing.


Dr. Christian Tams Calls on the Supreme Court to Withdraw its Show Cause Order to the UP Faculty of Law

Dr. Christian Tams, a professor of international law at the University of Glasgow and one of the three scholars whose work was plagiarized by Supreme Court Justice Mariano del Castillo, has written the following commentary at the European Journal of International Law.

Here is the link:

Philippine Supreme Court Silencing Dissent?
Author: Christian Tams Filed under: EJIL Analysis
Tuesday, Nov 9,2010
Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?

What it’s about

The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.

On the basis of this alleged “judicial plagiarism” and “misrepresentation,” the plaintiffs filed a motion for reconsideration. Members of the University of the Philippines College of Law (none of them acting as counsel in Isabelita Vinuya et al.) submitted a rather strongly-worded statement, which noted the complaints of plagiarism of the authors, requested the Court to provide guidance to the bench and bar, and called on the reporting judge to resign his office – “the UP Statement”].

On 15 October, the Supreme Court – against the dissent of two members – denied the plagiarism charge, finding that there either had been no unauthorised lifting of passages (in my case) or that unauthorised lifting had been by mistake (in the case of Ellis and Fox-Decent/Criddle) [see here for the majority opinion, and here for the dissent).

Four days later, on 19 October, this was followed by a seven-page order, in which a majority of the Court declared the signatories of the “UP statement” to be in contempt, until they could show sufficient cause for their conduct (“the disciplinary order”). This exposes them to disciplinary action including loss of rights to practise. It is this last aspect, rather than the strange dispute about plagiarism or the Supreme Court’s curious handling of it, that should make us think.

Why should we care?

Up until 18 October, this seemed a strange story, but not really worth our time. So, to give but one example, while I thought the Supreme Court “plagiarism whitewash” to be rather unconvincing, I did not for a moment consider wasting any more energy on it. Also, without being an expert on Philippine constitutional law, I should say that from the perspective of international law, I have sympathy for judgments cautiously interpreting the concept of diplomatic protection, and refusing to read it to impose upon governments specific instructions on how to pursue foreign policy.

But the disciplinary order of 19 October changes matters decisively. This, it seems to me, is really a dangerous step. Of course, courts must be able to impose disciplinary standards. And it may even be that in this case, the statement calling on the judge to resign went a step too far. However, this transgression (if any) pales in comparison to the disciplinary order threatening sanctions against the UP academics. Not only are the sanctions potentially far-reaching. The order also seems to be more than a usual “show cause order” that could be easily rebutted: it contains specific findings of fact and enumerates particular violations of the Code of Professional Responsibility, which, it seems, the majority of the Court considers to be violated. No wonder, then, that the dissenting judges criticised it as having prejudged the eventual outcome.

And this, of course, raises fundamental issues concerning the respective roles of courts and their critics. Evan Criddle and Evan Fox-Decent have made the point very clearly on Opinio Juris, and I fully agree with them 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”.

However, there is more to it than what courts should do, and whether they should be able to live with criticism. The role of lawyers is also protected by international human rights obligations incumbent on the Philippines, notably international fair trial guarantees. Art 14 CCPR eg might come into play, especially if read in the light of the UN’s Basic Principles on the Role of Lawyers, which recognise the right of lawyers to express their opinions on matters of law and the administration of justice. While none of these rights is absolute, they are important and should be taken seriously, especially by courts – after all, their status is equally dependent on guarantees of the judicial process. So it is right that commentators from within the Philippines and abroad – have voiced their concern.


Looked at from a distance, the whole episode seems to have spiralled quite out of control. The ingredients were of course there from the beginning: an emotionally-charged case; accusations involving matters of professional honour; and all this within a deeply-divided society whose divisions are mirrored in the make-up of bar & bench. Having received, over the last months, dozens of letters, interview requests, official statements and petitions, I would think that neither side in this whole escalation has excelled in moderation or pulled punches. However, even in on-going processes of conflict escalation, some steps are more dangerous than others, and it seems to me that the disciplinary order of 19 October marks such a dangerous step. So far, it has prompted the usual (and to be expected) responses: petitions; further incriminations; angry debates in online fora. All this is unlikely to allow protagonists the breathing space which they will need to come to their senses and realize that this whole escalation, in the long run, will leave all sides tarnished: the UP academics just as the country’s highest court. One can only hope that Philippine lawyers – coming, after all, from a country with a great legal tradition – will be able to show the self-restraint and, perhaps, wisdom required to refrain from the pouring further oil into the flames. What is needed is some de-escalation, some conflict management. The Supreme Court might pave the way for such de-escalation by recalling the disciplinary order of 19 October.

ATENEO, alma mater of Justice Del Castillo and his legal researcher, rebukes SC’s definition of plagiarism

Treatment of Plagiarism Cases in the Loyola Schools in Light of the Recent Supreme Court Decision

date posted: 2010-11-05 08:33:12

4 November 2010

MEMO TO: The Loyola Schools Community

FROM: John Paul C. Vergara

Vice President for the Loyola Schools

SUBJECT: Treatment of Plagiarism Cases in the Loyola Schools

in Light of the Recent Supreme Court Decision

On October 12, 2010, the Supreme Court issued its decision on A.M.

No.10-7-17-SC (In the Matter of the Charges of Plagiarism, etc.

against Associate Justice Mariano C. Castillo), where it was indicated that “plagiarism presupposes intent, and a deliberate, conscious effort to steal another’s work and pass it off as one’s own”. Since this statement seems to contradict what has long been our understanding of the essential nature of plagiarism, the Loyola Schools of the Ateneo de Manila University is compelled to issue this memorandum restating its policy and practices that relate to acts of plagiarism:

1. The Loyola Schools takes very seriously all cases of academic dishonesty including acts of plagiarism.

2. As articulated in the Loyola Schools Code of Academic Integrity (A Student Guide), the objective act of “plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one’s self what is not one’s work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occured. Students who plead ignorance or appeal to lack of malice are not excused.”

3. Aspects pertaining to intent are considered during the determination of the appropriate sanctions. The specific context of the violation is studied to ensure that the sanctions are proportional to the gravity of the offense, which incorporates awareness, willfulness, and acknowledgement of wrongdoing, among others.

4. The foregoing Supreme Court decision notwithstanding, the Loyola Schools’ understanding and definition of what constitutes plagiarism has not changed. Cases of plagiarism will continue to be handled in the same manner, and with the same regard for due process, as stipulated in the Student Handbook.

The Loyola Schools reiterates its position that academic honesty and the acknowledgement of sources is not simply a matter of the correct use of quotation marks, placement of footnotes, or acquisition of permissions; it is a question of personal discipline and moral character. The school’s resolve on the stringent requirements in the proper acknowledgement of sources goes to the heart of its mission in forming persons for others-persons who value truth, respect, gratitude, integrity and justice.

VINUYA, the Comfort Women Petition: A CLASS PROJECT

It was my first year of full time  teaching at UP Law when Dean Raul Pangalangan and I decided that we should teach a separate elective on International Humanitarian Law. This was a result of a series of training programs that the UP Law Center co-sponsored with the International Committee of the Red Cross on the teaching of this specialized field of Public International Law. IHL seeks to limit human sufferings in times of armed conflicts by providing for a non-derogable code of conduct for all fighters which accords protection to those who are not actively involved in the armed conflict, and limits the means ad methods of warfare that combatants may resort to.. Previously, the subject was either taught as part of human rights law, or at best, taught as part of the basic course in public international law.

Teaching a new course in UP could be tough. This is because each and every course offered by the University has to be approved by one collegial body after another. Fortunately, UP Law has found a way around this. A couple of years back, they offered  “shell courses” such as “contemporary problems in International Law” and “ settlement of international disputes” to serve as vehicles to teach new electives at the College. I opted in 2004 to offer IHL under “contemporary problems” since the definition of an armed conflict and the subjects of the law were problematic anyway. Under IHL, the types of armed conflicts governed by the law are only those between sovereign states or between a state and a group in the exercise of the right to self-determination. Both of these conflicts are classified as “international armed conflicts”. An internal armed conflict, on the other hand, involved a state and domestic armed groups that, among others, control territory, openly carry arms, and distinguish themselves from the civilian populations. These definitions effectively exclude conflicts that do not involve a state such as ethnic or clan disputes. There is also a controversy on whether all armed groups with capacity to sustain an armed conflict over time and with sufficient intensity should be considered subjects of the law.

Public law in 2004 was not exactly considered to be the preferred area of concentration for law students. Predictably, they flock to electives that would bring in the big bucks. For instance,  a colleague, Prof. Jay Layug, who teaches “project development”, a must for turn-key infrastructure projects, has had to turn down students to his elective despite the fact that his course attracts no less than 80 students per semester. True, his rock star good looks contribute to the attractiveness of his course. This though is secondary to the fact that almost of our graduates nowadays end up working initially for the big firms and hence, the preference for commercial law electives. I thus had two burden at once: teaching what was then an esoteric field of public law to students many of whom enter law for the money, and the fact that I did not have “rock-star” good looks.

Against all odds, I met the minimum of ten students for the pilot course. While my memory now somehow falters after six years , I do recall that some members of the class include Atty Diane Desierto,, SJD student at Yale and currently a Clerk at the International Court of Justice, Atty. Raymond Sandoval, now a prosecutor at the UN War Crimes Tribunal for the former Yugoslavia, Atty. Camille Sevilla, Chief of Staff of Senator Miriam Defensor-Santiago, Atty. Neil Silva, consultant, Department of Justice, Atty . Ahmed Paglinawan of the UP Law Center, and law practitioner cum soprano, Kaye Balajadia, among others.

Having taught international law part time since 2001, I had by 2004 a clear view of how the law should be taught. Mine was an advocacy: to convince layers and students alike that International Law has become a viable field of practice particularly for litigators, primarily because of the proliferation of modern day international criminal tribunals. But more than that, I felt that international law in particular, was law because of its normative character. Students hence should not just know what its relevant principles are, such as the prohibition on torture and war crimes; but more importantly, students should be able to apply them in everyday life. This meant  thus that students should actually investigate and prosecute cases of torture and war crimes. As a pedagogical tool, this was hugely successful because students acquired not just mastery of concepts, but developed invaluable professional skills as well.

It was in this context that the case of Vinuya vs. Executive Secretary came about. In the middle of the semester, Nelia Sancho, the activist and former beauty queen, called me up for consultations concerning a group called “Malaya Lola’s” whose members were victims of mass rape and sexual slavery during World War Two. She explained that the women sued in Japan for compensation as a consequence of Japan’s internationally wrongful act of sanctioning these rapes during the war  but that Japanese courts dismissed their complaint on the ground that the women had no personality to sue. According to Japanese courts, only states could sue for compensation on behalf of victims of war crimes. The Philippines, apparently, is the only country in the world that has opted not to espouse the claims of its comfort women on the ground that such would be contrary to the San Francisco Peace Pact where we allegedly waived any and all further claims for reparation in exchange for nominal war reparations which we then received.

Nelia, whom I did not know before,  came to me apparently because  one of the “Malaya Lolas ” heard me lecture on IHL in Tarlac where I emphatically said that law exists to provide remedies to those whose legal rights have been violated. In due course, Camille Sevilla made trips to Candaba,  Pampanga to personally interview the Lolas while the rest of the class engaged in “dogged” research for a legal remedy. The result was a petition that argued that a treaty obligation, such as the renunciation clause in the San Francisco peace pact, cannot prevail over an absolute  and non-derogable prohibition  (“jus cogens”) on rape and the resulting  obligation to make reparation and to pay compensation to the victims thereof.

After the students graduated, the task of continuing with the case fell on Atty. Romel Bagares , bachelor par excellance, who was a former journalist for eight  years before being called to the bar. It  he who made the discovery that many passages in the decision were lifted from foreign sources without proper attribution.

Vinuya has turned out to be a very successful pedagogical tool.  It started as a class project. Let’s see how it ends.#30#

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.