SC justice plagiarized parts of ruling on comfort women
MANILA, PhilippinesâIn what could possibly a first in the Supreme Court, a magistrate appears to have committed plagiarism in a decision on a diplomatically and politically sensitive case. Newsbreakâs review of the decision penned by Associate Justice Mariano del Castillo on World War II comfort women showed that numerous parts were copied from three materials written by legal experts abroad without properly attributing these to the authors. In April 28, the Supreme Court, through Del Castilloâs ponencia in the Vinuya v. Romulo case (G.R. No. 162230), junked the petition of 70 Filipino comfort women to compel the Philippine government to get a public apology from Tokyo and to provide reparation to victims of sexual abuse during World War II. Del Castillo lifted quotes and footnotes from: ⢠âA Fiduciary Theory of Jus Cogens" by Ivan Criddle and Evan Fox-Decent, published last year in the Yale Journal of International Law. ⢠âBreaking the Silence on Rape as an International Crime" by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law. ⢠âEnforcing Erga Omnes Obligations in International Law" by Christian Tams, published in 2005. Criddle is assistant professor at the Syracuse University College of Law, while Fox-Decent is assistant professor at the McGill University Faculty of Law. Ellis is executive director of the International Bar Association, composed of 198 national bar associations and 40,000 members worldwide. Tams is a professor of International Law at the University of Glasgow and professor at the China EU School of Law (Beijing) and the Europa-Kolleg (Hamburg). Del Castillo plagiarized 31 parts of Criddle and Fox-Decentâs article; 24 of Ellisâs; and 4 of Tamsâs. We sent a letter to Del Castillo requesting for an interview. His judicial staff head, lawyer Teresa Fabregas, sent us a terse reply, saying that the case âis still subject of a motion for reconsideration and hence, sub judice." On the matter of failing to properly attribute the questioned legal materials and researches, Fabregas said that one author, Tams, was properly credited in the ponencia. âWith respect to Ivan Criddle and Mark Ellis, please consult the primary sources in said articles which shall show that all sources have been properly acknowledged." Our interviews with experts, however, show otherwise. Newsbreak sought the opinion of two former justices, two law school deans, and one professor of the Philippine Judicial Academy (Philja), which trains judges and justices. We showed the alleged plagiarized materials to some of those we interviewed and compared these with Del Castilloâs ponencia. Except for one, the interviewees agree that, on face value, Del Castillo may be guilty of plagiarism, a form of intellectual theft and a grave violation of the tenets of honesty and integrity, foremost qualities required of judges and justices. SC sustains plagiarized ruling In the Vinuya case, the SC refrained from compelling the RP government to take the cause of the comfort women. The Tribunal argued that it was ânot within [its] power to order the executive department to take up the petitionersâ cause. Ours is only the power to urge and exhort the executive department to take up petitionersâ cause." The SC also argued that the issue âis a diplomatic matter that must be addressed [alone] by the executive branchâ¦. For us to overturn the Executive departmentâs determination would mean an assessment of the foreign policy judgment by a coordinate political branchâ¦." Nine justices signed the ruling, including now Chief Justice Renato Corona. Retired Chief Justice Reynato Puno indicated his vote âin the result," meaning he agreed with the ruling but not with the arguments laid down in the ruling. Three justices concurred on procedural grounds while one concurred but cited a different argument. It was the second recent landmark case penned by Del Castillo, after the Ang Ladlad party-list case. We learned about the supposed plagiarism from two sources, one of them, University of the Philippines College of Law Dean Marvic Leonen, who learned about it from a scholar studying international law. The other source is familiar with the plagiarized materials. Vinuyaâs 34-page ruling has 78 footnotes, clearly coming from research and studies by foreign authors. The text of the main decision is 24 pages. Some of the texts in the ruling were copied verbatim from the Yale Journal, Tamsâs book, and Ellisâs articles, appearing as if these were Del Castilloâs own words. The plagiarism is most evident in the rulingâs footnotes as Del Castilloâor his legal staffâfreely plucked from the three materials and incorporated these as if these were the products of their own research. For example, on page 331 of the Yale Journal of International Law, Criddle and Fox-Decent wrote, âIn international law, the term âjus cogens" (literally, âcompelling law") refers to norms that command peremptory authority, superseding conflicting treaties and custom." On pages 30-31 of Del Castilloâs ruling are written: âIn international law, the term âjus cogens" (literally, âcompelling law") refers to norms that command peremptory authority, superseding conflicting treaties and custom." (Download "Comparison of Criddle and Fox-Decent's article and Del Castillo's ruling.") Ellisâs article, on page 227 of Case Western Reserve Journal of International Law, stated that, âThe concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war." Footnote 65 of Del Castilloâs ruling states, without attribution, âThe concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war." (Download "Comparison of Ellis's article and Del Castillo's footnote 65.") In his 2005 book, Tams wrote, âThe Latin phrase âerga omnesâ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law." On page 30 of Del Castilloâs ruling: âThe Latin phrase âerga omnesâ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law." (Download "Comparison of parts of Tams's book and Del Castillo's ruling.") No prohibition, just delicadeza One former justice said it was possible that Del Castillo or his staff may have researched the same materials as cited in the alleged plagiarized articles. Judges and justices are aided by legal staff in research, and it is here that the lapse or gap may have occurred. âIf it happened to the UP College of Law, this is considered a case of plagiarism," Leonen said. While plagiarism is frowned upon and considered a cardinal sin especially in the academe, there is no rule or provision in the judiciary against copying from othersâ work and passing these off as original material. Pacifico Agabin, dean of the Far Eastern University Institute of Law, pointed out, âIt is not prohibited under the Code of Judicial Ethics, or any statutes. It is just a matter of delicadeza.... It bears on the honesty of the judge to give credit where credit is due." A Philja lecturer who helped draft the Code of Professional Responsibility for lawyers noted that plagiarism is broadly tackled in the Code. Canon 10.2 of the Code states that, âA lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of the opposing counsel, or the text of a decision or authorityâ¦." A former SC justice, who teaches legal bibliography, said plagiarism is a form of âintellectual theft" and that âlaw students are told to be very strict in properly attributing materials." The former justice said judges and justices should be careful in stating the author, the volume number, the page, the year of the publication, etc.," so rulings can be crossed-referenced correctly. âIt is also one way of checking whether the cited material had been faithfully cited, to avoid misinterpretation or find out if it has been used improperly with intent to mislead." UPâs Leonen said that it is âintellectual dishonesty" for a judge or a justice to pass off material as if it were the product of extensive research when it was merely copied from someone else's work. One law school dean argued: âIf only sentences are copied, then itâs hard to say that there is plagiarism." The law dean qualified that there is âflagrant plagiarism when whole paragraphs are copied." But Leonen disagreed. Precisely, the standards are supposed to be stricter for judges and justices for their decisions reveal how they interpret the law. He added that it also strikes at the core of the judges or the justicesâ credibility, competence, and integrity. Australian experience Arguably, no member of the judiciary in recent memory has been punished for plagiarism or got caught for it. Some of those we interviewed said that it is unlikely that Del Castillo will be sanctioned, given the culture in the SC. But Leonen and Agabin said the SC should investigate the alleged offense as a moral duty. Anything less than this, Leonen said, is like âsending a signal to law students and lawyers that this (plagiarism) is acceptable." Other sources said exposing the offense, which will cause embarrassment or humiliation to the guilty party, is already enough punishment. Leonen, however, said Del Castillo should resign to protect the honor of the Court. Perhaps, the experience in other countries is instructive. In Australia, federal court magistrate Jennifer Rimmer was forced to resign in 2006 after she was exposed as a serial plagiarist. Rimmer was found to have copied verbatim a number of judgments of other magistrates and passed them off as her own. In one ruling, she copied more than 2,000 words from an unrelated case. The exposé prompted some parties to demand a review of her previous decisions, on suspicions that these have been plagiarized. - Newsbreak