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Plagiarism in the Supreme Court and the Malcolm 37

November 22, 2012 12:41pm

Back in 2010, then-professor Marvic Leonen was the Dean of the University of the Philippines College of Law when its faculty got embroiled in a controversy over an allegation of plagiarism in the Supreme Court. Several lawyers had discovered that the decision penned by Justice Mariano del Castillo on the case of some 70 Filipino comfort women—repeatedly raped by the Japanese forces during the Second World War—known as Vinuya et al v Executive Secretary et al contained at least 83 plagiarized parts.
The following excerpts from the book Hour before Dawn: The Fall and Uncertain Rise of the Philippine Supreme Court chronicle the stand taken by some members of the UP Law Faculty on the plagiarism issue. Appointed as the newest member of the Supreme Court on Wednesday, Leonen now joins the ranks of magistrates that once admonished him for joining the call for the resignation of del Castillo, who remains a member of the high court.
THE UP COLLEGE of Law, like the rest of the university, has been known for its activist leanings. It takes strong positions and speaks up on national issues, no matter that some of its alumni in public office may be the subjects of its criticism. It doesn’t seek to protect or condone them if they commit wrongdoing. Thus, the 100-year old college is far from tribal in that sense, although it has had to deal occasionally with crippling internecine fraternity wars.
The college dean at the time of the plagiarism scandal was Marvic Leonen, a sharp and assertive professor who was known for his pioneering advocacy on behalf of indigenous peoples. He had co-founded a non-government organization that promoted and defended the rights of these marginalized communities. In the political spectrum, he would be considered left of center. While in law school, his activism showed in his work at the UP Paralegal Volunteer Organization, where he and other students helped empower the poor (farmers, laborers, indigenous peoples) by making them understand their rights. Soon after graduation, he joined the Free Legal Assistance Group, where he handled a number of human rights cases and was, in the late 1980s, subjected to surveillance by the military.
Leonen had heard about the cut-and-paste Vinuya decision from Merlin Magallona, a former dean of the college who was writing a book on Philippine courts and international law. In the course of his research, Magallona saw the decision and was convinced that it was a clear case of plagiarism. Leonen immediately assigned two research assistants to check out the decision. They came back after a couple of days and showed Leonen what they found to be plagiarized portions.
Instinctively, Leonen brought it up in the e-group of the law faculty and asked one of the faculty members to draft a statement. What started out as a month-long back-and-forth process of electronic discussion led to a strong statement that caught the ire of the Supreme Court and threatened the careers of the 37 signatories.
Their statement on the Vinuya decision, titled “Restoring Integrity,” took two vigorous jabs at the Court: first, for the “extraordinary act of injustice” committed against the comfort women; and second, for the “reprehensible act of dishonesty and misrepresentation” which, they said, was a “serious threat to the integrity and credibility of the Philippine Judicial System.”
The plagiarism committed in the case of Vinuya v Executive Secretary, they went on, was “unacceptable, unethical and in breach of the high standards of moral conduct and judicial professional competence expected of the Supreme Court.”
They didn’t stop there. They asked Justice Del Castillo to resign “to save the honor and dignity of the Supreme Court.”
JAY BATONGBACAL, who taught supervised legal research at UP, wrote the first draft of the statement. The draft’s main call then was simply to ask the Court to get to the bottom of the plagiarized decision. “It was soft,” Batongbacal recalls. Nevertheless, he put it out for his colleagues to comment on.
The reactions were neither immediate nor uniform. Some found the draft’s tone too academic. Apparently, it didn’t generate much interest in the e-group. What was pivotal was the emotional appeal of former UP Law student Diane Desierto, who was then taking graduate studies in Yale University, for them to take a stand on the comfort-women case and the injustice of the decision, and the intellectual fraud. 
“She wrote a long letter, and she was passionate about the issues,” Susan Villanueva, a part-time faculty member teaching intellectual property, says. “I didn’t even know the Vinuya case. But we were moved by Diane.” From her initial noncommittal stance, Villanueva agreed to support the statement.
“She called for faculty unity, to bring the weight of the entire institution with us,” says Batongbacal. “She essentially argued, ‘Look, you taught me everything I know about justice and based on all that I learned from you, this is the right thing to do, so how can you not sign on to this?’” That tugged at many of the faculty members’ hearts and, soon after, many signed on. Batongbacal, who kept tab of the streaming comments—from “Don’t antagonize the Court and prejudice our cases” to “Let’s focus on injustice caused by plagiarism”—saw a sudden excitement in the e-group.
Batongbacal, who also specializes in marine territorial issues and maritime policy, wove the various strands together while Theodore Te, who headed the Human Rights Institute of the College and writes a regular blog, put the final touches. The first batch of signatories included Leonen, four former deans, ten regular faculty members, and 22 lecturers out of a total of 81 faculty members.
This started off a maelstrom of controversy. Various groups weighed in and threw their support behind the Supreme Court: the Philippine Constitutional Association; a number of RTC and Sandiganbayan judges, a few retired Court of Appeals justices, and the Ateneo de Manila University College of Law faculty. Let the Court resolve the case, they said in paid ads in newspapers.
Quietly, the low-key Intellectual Property Association of the Philippines or IPAP, an organization of lawyers, wrote the Chief Justice, as chair of the Court’s ethics committee, and Justice Teresita de Castro, the committee’s vice chair, calling attention to the “intellectual dishonesty” in the Vinuya decision which “does not speak well of the unauthorized user’s character.”
THE MEDIA CLUTCHED at the issue and followed it. Del Castillo dug in. He wrote the Chief Justice and his colleagues a letter which was published in The Philippine Star, claiming that “there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own.” He did not admit lifting passages from various published works.
Del Castillo was known to be a person without any wrinkles in his personal relationships—friendly, kind, and generous with his time to those who needed his help. He was said to have reached the Supreme Court, however, because of his close ties to President Arroyo, whom he openly and effusively thanked in a letter to a newspaper for helping him seek expert medical advice for his heart bypass. “Her single act of kindness in my momentary blow is something of eternal value,” he wrote.
Ethics is a field del Castillo is very familiar with. He was a member of the corps of professors of the ethics department of the Philippine Judicial Academy, which trains judges. He was a pre-bar reviewer for legal ethics of the Ateneo law school.
In August 2010, Michelle Ann Juan sobbed as she told the Supreme Court’s ethics committee that she had committed a “grievous mistake” when, in preparing the draft of the Vinuya decision, she deleted a number of footnotes. “There was no malice, there was no intent…. I’m sorry… and I’m prepared to be held responsible,” the legal researcher of Justice Mariano del Castillo confessed.
As it happened, the ethics committee glossed over the dozens of lifted passages and eventually declared del Castillo innocent, finding Juan’s explanation credible. The Court adopted the committee’s findings. Whose fault was it then? Bill Gates’ Microsoft Word program.
The Court, in a per curiam decision, said, “Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.” It continued: “Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned.” (Per curiam refers to an opinion of the whole Court written by an unnamed Justice.)
THE MAJORITY ON THE COURT was not going to let the UP law faculty get away with the harsh and hurtful words in their public statement. They seemed jolted by this wave of protest and considered it an “institutional attack,” an “unjust criticism” and “insult” which could “threaten the independence of the judiciary.” Moreover, it was “uncalled for and a rash act of misplaced vigilance.”
The four-page statement had been uncompromising in its stance and forceful in tone. Clearly, the 37 faculty members disagreed with the decision and were appalled by the use of plagiarized passages. Their opening line, which the Court found “grim,” set the tone: “An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during the war.”
More pungent sentences followed: “When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources….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 statement prompted the Court majority, on October 20, 2010, to issue a “show cause” order and to threaten the UP professors with contempt of court. They demanded that the 37 members of the UP law faculty explain why they should not be penalized for breaching the Code of Professional Responsibilities of Lawyers—a code which, according to Supreme Court spokesman Midas Marquez, barred lawyers from issuing public statements on pending cases, so as not to influence public opinion. Three Justices dissented: Justices Antonio Carpio, Conchita Carpio-Morales, and Ma. Lourdes Sereno.
The order, strangely enough, already carried a judgment: that the UP law faculty erred in coming up with the statement, that they meant to “discredit” the Vinuya decision and “undermine the Court’s honesty, integrity, and competence in addressing the motion for reconsideration” when they should be promoting confidence in the courts.
In the en banc meeting where this order was discussed, some Justices wanted immediate sanctions imposed on the UP professors. Thus, the draft resolution read like a contempt order. It took Justice Carpio-Morales to remind her colleagues that the Court should observe “due process.” It was left to Justice Martin Villarama, who penned the resolution, to convert the contempt order into a show-cause order.
THE UP FACULTY MEMBERS, who referred to themselves as the “Malcolm 37,” (George Malcolm was the first dean of the UP College of Law after whom the law building was named) remained solid until the last stretch except for one colleague who appeared to have been asked by his law firm, which had pending cases in the Court, to back-pedal. Raul Vasquez explained to his colleagues that he, too, had a duty to his clients.
In his separate response to the Court, Vasquez said he signed the UP statement in good faith. He narrated how he became one of the signatories. The Vinuya decision was a “topic of conversation” among the law faculty so he was familiar with it. On his way to class, a clerk from the office of the dean showed him the statement. He agreed with the “main theme” which was the “need to preserve the integrity” of the Court. That convinced him to sign it. 
He differed with his colleagues, though, in his response as he conceded that he “might have been remiss in correctly assessing the effects of such language [in the Statement] and could have been more careful.” But he was unequivocal in his stance that lawyers, like all citizens of democratic societies, have a “right to comment on acts of public officers.”
The rest of the Malcolm 37 decided on a unified legal strategy and to adopt a “moderate, respectful, firm, and erudite tone” in their pleading. In their prayer, they would ask the Court to reverse its adverse findings in the show-cause resolution. If this was not granted, they would urge the Court to set the show-cause resolution for hearing so that they would be given a fair opportunity to refute the findings. If so, then they would need access to all records, drafts, and transcripts in the plagiarism case and the opportunity to cross-examine the witnesses.
These points were not easy to agree on. As Jose Manuel Diokno, chairman of the Free Legal Assistance Group which represented most of the Malcolm 37, puts it, “the hardest part is when lawyers represent lawyers and getting everybody together on the same page.” For Diokno, the constitutional right to free speech was the core argument. He distilled the issue to this: “What the UP faculty said did not present clear and present danger.”
Over a series of meetings, their 35-page compliance evolved. The first draft was combative and confrontational, still unable to tone down the passions of the academics at risk of being cited for contempt. The strong language that characterized their controversial statement remained. As more minds worked on it, the pleading was refined, the tone became more respectful, and the language more sober. In the end, the common compliance was a “miracle,” as Susan Villanueva, who coordinated the crafting of their defense, describes it. “After all, we’re not a homogeneous group.”
Several law firms took up the cudgels for the Malcolm 37, including Castillo Laman Tan Pantaleon & San Jose; Ongkiko Manhit Custodio & Acorda; Quisumbing Torres; Sycip Salazar Hernandez & Gatmaitan; and Yorac Arroyo Chua Caedo & Coronel.
The largest law firm in the country, Sycip Salazar Hernandez & Gatmaitan, was initially fearful of the repercussions of taking on this case, since it counted big business and multinationals among its clients. Two of the UP law faculty members, Tristan Catindig, who worked with Sycip’s corporate department until his optional retirement, and Carina Laforteza, a partner also connected with the corporate department, asked for the firm’s help. Discussions among some of the partners gelled and they saw a common cause with the Malcolm 37. They decided to be up front and use the firm’s name.
INSIDE THE COURT, Justice Martin Villarama, who was the decision-writer, swayed in his position. Initially, he found the explanation of the UP faculty sufficient and circulated a first draft. Justice Teresita de Castro, who was among the hardliners, said she was going to prepare a dissent. Chief Justice Renato Corona was unhappy and sent word to Villarama to change his decision and reprimand the professors. Unable to say no to his boss, Villarama sent out a revised draft, this time, sanctioning the faculty. Not long after, though, he returned to his original position and issued a third draft. He voted with the minority and de Castro’s opinion became the Court decision. 
In March 2011 or eight months after the plagiarism was unearthed and after all the outcry from the international and home fronts, the Court gave the Malcolm 37 a slap on the wrist. Despite the severe tone used by de Castro in the 71-page decision, she merely reminded them that they should be respectful toward the Court, that they shouldn’t use “intemperate and offensive” language that “denigrates” the Court, and that, in the future, they should not repeat their “improper intervention or interference” in a pending case.
All of the UP professors got an extended lecture on “fair and constructive” criticism, the use of decent language, and how officers of the court should behave. The Court buttressed this with a long line of jurisprudence.
Vasquez, the Court said, was the only one who showed “true candor and sincere deference” and held him up as a model to his colleagues.
As for Leonen, his sanction was a mere admonition, a notch above a reminder, “to be more mindful of his duty” as a member of the Bar, a professor of law, and an officer of the court. – YA/Reprinted by GMA News Online with permission from the author

Hour before Dawn: The Fall and Uncertain Rise of the Philippine Supreme Court by MARITES DAÑGUILAN VITUG is available at the National Bookstore and Fully Booked.
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