It took a celebrity to call attention to the inherent weakness of our criminal justice system. By now, only Filipinos in Mars have not heard of what happened to the comedian. Apparently, he visited a woman who speaks like Melanie Marquez. Then he was beaten black and blue, probably sexually humiliated, illegally detained and made to confess to a rape. He was brought to a police station in Taguig where remarkably, the police did not bother to inquire how he sustained his injuries and was not assisted to get medical assistance. Instead, the police blottered what the alleged woman victim claimed was an attempted or consummated rape. But because a rape is a personal crime and requires the consent of the woman to be initiated, no charge of rape was made. The woman declined to press charges against him.
A MOOT WITH REAL VICTIMS
It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.
For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.
But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.
I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.
Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.
I also commend the Philippine Association of Law Schools Deans under the able leadership of its President, Dean,Amado Valdez and its Chairman, Dean Perry Pe, for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the best in the history of Jessup in the Philippines.
Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction
A STATEMENT BY THE FACULTY OF THE UP COLLEGE OF LAW
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war. After they courageously came out with their very personal stories of abuse and suffering as “comfort women”, waited for almost two decades for any meaningful relief from their own government as well as from the government of Japan, got their hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. 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.
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. 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.
A comparison of the Vinuya decision and the original source material shows that the ponente merely copied select portions of other legal writers’ works and interspersed them into the decision as if they were his own, original work. Under the circumstances, however, because the Decision has been promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s. Thus the Court also bears the responsibility for the Decision. In the absence of any mention of the original writers’ names and the publications from which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the ‘primary’ sources relied upon. This cursory explanation is not acceptable, because the original authors’ writings and the effort they put into finding and summarizing those primary sources are precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate intention to appropriate the original authors’ work of organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar with all legal and scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more demands correct and careful attribution and citation of the material relied upon. It is a matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled “A Fiduciary Theory of Jus Cogens,” the main source of the plagiarized text. In this article they argue that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary conclusion. This exacerbates the intellectual dishonesty of copying works without attribution by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals with State liability and responsibility for personal injury and damage suffered in a time of war, and the role of the injured parties’ home States in the pursuit of remedies against such injury or damage. National courts rarely have such opportunities to make an international impact. That the petitioners were Filipino “comfort women” who suffered from horrific abuse during the Second World War made it incumbent on the Court of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added insult to injury by failing to actually exercise its “power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before other Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench and Bar because these undermine the very foundation of its authority and power in a democratic society. Given the Court’s recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this would only further erode faith and confidence in the judicial system. And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.
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.
With these considerations, and bearing in mind the solemn duties and trust reposed upon them as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippines College of Law that:
(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.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.
(SGD) MARVIC M.V.F. LEONEN
Dean and Professor of Law
(SGD.) FROILAN M. BACUNGAN
(SGD.) PACIFICO A. AGABIN
(SGD.) MERLIN M. MAGALLONA
(SGD.) SALVADOR T. CARLOTA
and Professor of Law
(SGD.) CARMELO V. SISON
(SGD.) PATRICIA R.P. SALVADOR DAWAY
Associate Dean and Associate Professor
(SGD.) DANTE B. GATMAYTAN
(SGD.) THEODORE O. TE
(SGD.) FLORIN T. HILBAY
(SGD.) JAY L. BATONGBACAL
(SGD.) EVELYN (LEO) D. BATTAD
(SGD.) GWEN G. DE VERA
(SGD.) SOLOMON F. LUMBA
(SGD.) ROMMEL J. CASIS
(SGD.) ARTHUR P. AUTEA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O. CORONEL
(SGD.) ROSARIO O. GALLO
(SGD.) CONCEPCION L. JARDELEZA
(SGD.) ANTONIO G.M. LA VIÑA
(SGD.) CARINA C. LAFORTEZA
(SGD.) JOSE C. LAURETA
(SGD.) DINA D. LUCINARIO
(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) GMELEEN FAYE B. TOMBOC
(SGD.) NICHOLAS FELIX L. TY
(SGD.) EVALYN G. URSUA
(SGD.) RAUL T. VASQUEZ
(SGD.) SUSAN D. VILLANUEVA
40 member of the Malaya Lolas (Liberated Grandmothers) will file tomorrow at 10:30 AM at the Supreme Court a Supplemental Motion for Reconsideration detailing plagiarism committed by the court in its unanimous decision in the case of Vinuya et. al. versus Executive Secretary promulgated in April 28, 2010. In their Supplemental Motion, petitioners will detail how 12 pages of the court’s 33 page decision appear to be plagiarized from at leat three sources, an article from the Yale Journal of International Law, a book published by Cambridge University, and an article from the Case Western University Joiurnal of International Law. In addition to the plagiarism, which is a word for word lifting of pages from the three articles without the proper attribution, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War Two have no further legal remedies. All three plagiarized articles argue otherwise.
It was a difficult decision to file the Supplemental Motion. In the end, we were guided by our duties as officers of the court under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, which provides for our duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”
It is our intent in calling attention to the plagiarism to strengthen rather than to weaken the Supreme Court as the ultimate guardian of constitutional supremacy. We hope that this unfortunate incident will result in a stronger rule of law for this country.
We are confident that the Justices of our Supreme Cort will eventually make the right decision and protect the integrity of the court.
At dawn of November 23, 1944, Japanese troops descended on the town of Mapanique, Candaba, Pampanga. To the shock of the local inhabitants, Japanese troops gathered all the men and boys and proceeded to castrate many of them. After which, the men were forced to put their severed sexual organs in their mouths before they were burned to death en masse.
The women and girls, on the other hand, were marched to what is known until today as “Bahay na Pula” (red house) in San Ildenfonso, Bulacan. There, the women and girls were interred and repeatedly raped.
The magnitude of the Japanese cruelty witnessed by the remote town of Mapanique was because the town was known to be hotbed of resistance to Japanese rule. It was in Central Luzon where the guerilla movement, HUKBALAHAP, was formed only months before he siege of Mapanique. One of its most respected leaders was a woman, Commander Dayang Dayang, who was herself a native of Mapanique. This, plus the desperation of the Japanese troops who already knew that they had lost the war, would explain the unparalleled cruelty that accompanied the war crimes committed by the Japanese troops against the civilian population of the town.
Inspired by the revelations of South Korean women who publicly admitted that they were victims of the Japanese comfort women system, about 60 victims of rape and other war crimes from Mapanique formed the group known as Malaya Lola’s, or liberated grandmothers. While primarily an organization of women who were victims of mass rape committed by the Japanese during the infamous siege of Mapanique, it also includes in its roster women folk whose husbands, sons and other male loved ones became victims of Japanese war atrocities.
In 2004, the Malaya Lolas filed suit in the Philippine Supreme Court to compel the Philippine government to espouse, or sponsor their claims for compensation from the Japanese government. Prior to their suit before the Philippine Supreme Court, the Malaya Lolas had their suit for reparations dismissed by Japanese courts on the ground that the women do not have personality to sue under international law. The Japanese courts opined that the Philippine government must sponsor their claims. Hence, the of case Vinuya et. Al. versus Executive Secretary.
The suit was itself novel because it was researched, drafted, prepared and filed by law students who were then enrolled in the first ever course on International Humanitarian Law in the Philippines. In that year, the University of the Philippines Institute of International Legal Studies, an Institute that I once headed, embarked on a training program on the teaching of IHL in Philippine law schools. To practice whet we were then preaching, UP pioneered in the teaching of IHL as a separate course since IHL used to be taught only as part of the general course on Public International Law.
It was in the course of teaching this pioneer class on IHL that the Malaya Lolas requested for us to provide them with a legal remedy after their suit for compensation had been dismissed by the Japanese courts. After some of the Lolas met the students then enrolled in that class, many of whom have become leading authorities in International Law today, such as Diane Desierto of Yale and the International Court of Justice, Neal Silva of the Department of Justice, Raymond Sandoval of the International Criminal Court; the students came out with this cause of action: one, mass rapes against civilian populations have always been subject of a non-derogable prohibition in times of war; two, it is also subject of a duty for all states to investigate, prosecute and punish the perpetrators thereof. Accordingly, and three, the commission of mass rape will not only entail the duty of a state to pay compensation as a consequence of the doing an internationally wrongful act, it is also the basis for individuals to incur individual criminal responsibility.
To counter the position of the Philippine Government that further reparations is barred by a waiver which the Republic signed, the students argued that such waiver is null and void for being contrary to public policy and that the state cannot waive a right that inures to its nationals. The students likened this second argument to the prosecution of the crime of rape. While the state is the offended party in a criminal prosecution for the crime of rape, compensation that would excuse the rapist from incurring criminal responsibility could only come from a pardon made by the private offended party. Here, it is the private offended party that has the power to determine whether or not to accept compensation in exchange for the dropping of a criminal case. There should no difference , the students argued, where the crime is more abominable, such as in the war crime of mass rape.
6 years after the filing of the case of Vinuya, and after 20 of the original petitioners had died, the Philippine Supreme Court unanimously dismissed the Malaya Lola’s petition. In its 33 page decision, the Court said that the claims for compensation are barred because the Philippines entered into the San Francisco Peace Pact where in exchange for nominal war reparations, the government was said to have waived any and further claims for compensation from Japan, a view consistently espoused by the Department of Foreign Affairs. Furthermore, the court ruled that while it commiserates with the sufferings of the women of Mapanique, this, allegedly, is one instance where there is a violation of right but bereft of a legal remedy. The Court also said that while rape is prohibited, there is no non-derogable obligation to investigate, prosecute and punish those who committed mass rape as a war crime. This is the second siege of the women of Mapanique.
In a few hours, read about the third siege of the women from Mapanique, Candaba, Pampanga.