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.

Motion For Reconsideration in IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO (A.M. NO. 10-7-17- SC)


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.

http://www.mediafire.com/?x4952qljaf4mz65

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:

http://www.ejiltalk.org/philippine-supreme-court-silencing-dissent/#more-2767%22

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.

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.

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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’.

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We wonder if this is also the fault of MS Word