Supreme Court Associate Justice Ma. Lourdes Sereno denounced countercharges of plagiarism hurled by a fellow justice as "an unwarranted collateral attack" on her after the high court refused to reconsider its decision to exonerate SC Associate Justice Mariano Del Castillo of plagiarism charges. A UP law professor said with its "internecine squabbling," the court risks losing its voice of credibility and authority. Turning the tables on dissenting justice Sereno, SC Associate Justice Roberto Abad wrote in a concurring opinion on the Del Castillo case that Sereno has "no right to preach" when she herself lifted "from works of others without proper attribution." In her own dissenting opinion, Sereno parried the charges point by point. The justices wrote their opinions on the resolution denying the motion for reconsideration filed by the counsels of the Malaya Comfort Women group which alleged that Del Castillo did not only plagiarize the decision he wrote in the case of Vinuya v. Executive Secretary but had also plagiarized his earlier ponencia in the case of Ang Ladlad v. Comelec.
Dissenting and concurring opinions Aside from SC Associate Justices Abad and Sereno, three other justices filed their separate opinions regarding
In re: Charges of Plagiarism Against Associate Justice Mariano C. Del Castillo (A.M. 10-7-17-SC, Feb. 8, 2011). Del Castillo took no part in the deliberations, himself being the subject of the administrative case. The Malaya Lolas Comfort Women group has also filed an
impeachment complaint against him at the House of Representatives. Here are some highlights from the pens of SC Associate Justices Antonio Carpio, Conchita Carpio-Morales, and Arturo Brion.
Carpio dissents on two grounds In his 16-page separate opinion, Carpio dissented from the majority’s ruling on two grounds. "First, that [the Supreme] Court has no jurisdiction to decide in an administrative case whether a sitting [SC] Justice… has committed misconduct in office as this power belongs exclusively to Congress. Second, in writing judicial decisions a judge must comply with the Law on Copyright as the judge has no power to exempt himself from the mandatory requirements of the law." He underscored the differences between copying from works of government and pleadings [documents filed by lawyers] generally belonging to the public domain, and copying from textbooks, journals and other non-governmental works protected by copyright. He acknowledged that the academe requires works of the government, works in the public domain, and non-copyrighted works to be attributed in the same way as copyrighted works. "Nevertheless," he stressed, "the Judiciary and the academe should have the same rule when it comes to copyrighted works. In every case, there is a legal duty to make the proper attribution when copying passages from copyrighted works because the law expressly requires such attribution without exception."
Carpio-Morales: Fine the lawyer who drafted Vinuya Carpio-Morales joined in Carpio’s dissent but herself wrote an 11-page dissenting opinion. She opined that the high court still wields administrative powers over incumbent SC Justices on grounds short of impeachable offenses or for misbehavior punishable by removal from office. Further, she called on the court to punish Del Castillo’s legal researcher who had drafted the Vinuya decision. "Why, in the present case, the legal researcher who is hiding behind her credentials appears to be a sacred cow, I cannot fathom," Carpio-Morales said. She said that "the legal researcher, who must hitherto be named, is liable for Simple Neglect of Duty and must be ordered to pay" a P10,000 fine. The SC has not disclosed who was Del Castillo’s drafting researcher but she had already been
identified by media using clues as to her identity as found in the SC’s earlier resolution.
Brion: Plagiarism case, an ‘administrative matter’ limited to judicial ethics In his 18-page concurring opinion, Brion disagreed with Justice Carpio’s position on Congress being the “exclusive disciplining authority" over SC justices. Brion said the 1987 Constitution grants the SC "the power of administrative supervision over all courts and personnel thereof" which also extends over SC justices. "Thus, when the conduct of a member of the Supreme Court is improper but is not of such gravity to be considered as an impeachable offense, the Court – to protect its integrity – may address the misconduct through an administrative disciplinary case against the erring member." He still supported the SC majority’s conclusion that Del Castillo’s "attribution lapses did not involve any ethical violation." But he pointed out that the SC’s interpretation of plagiarism "cannot be held to bind the academe," and "a finding by [the SC] that plagiarism was or was not committed cannot preclude Congress from determining whether the failure or omission to make an attribution [to the original author of a publication], intentionally or unintentionally, amounts to a ‘betrayal of public trust.’" Joining Brion in his concurring opinion were SC Associate Justices Teresita Leonardo-De Castro, Diosdado Peralta, Lucas Bersamin, Jose Portugal Perez, and Jose Catral Mendoza.
— Marlon Anthony Tonson/RSJ/KBK, GMA News On Feb. 8, 2011,
the SC affirmed its resolution A.M. No. 10-7-17-SC,
clearing Del Castillo of the plagiarism charges in Oct. 2010. Sereno considered the recent scrutiny of her work after having written her original dissenting opinion on Oct. 12, 2010, as “an unwarranted collateral attack on [her professional] record." On Wednesday early evening, the February 8, 2011 resolution was re-posted on the SC website, together with the dissenting opinions of SC Associate Justices Sereno, Antonio Carpio, and Conchita Carpio-Morales, as well as the concurring opinions of SC Associate Justices Abad and Arturo Brion. Sources at the SC Public Information Office explained that the online versions were only taken down from the website for a time after it was discovered that some pages had inadvertently been left out. The SC-PIO also assured that the glitches have already been fixed. Oddly enough, the resolution and accompanying separate opinions were missing from the SC website since the evening of Feb. 18. Over the weekend, scanned copies of the signed printed resolution and all the separate opinions have been available in Adobe Portable Document Format (PDF) files uploaded to file-sharing site
MediaFire. These copies have been circulating in the online legal community via social networking sites like Facebook and Twitter.
'An exceedingly rare instance' In his
Newsbreak column Tuesday, University of the Philippines law professor Theodore Te noted: “In what may be considered an exceedingly rare instance, an Associate Justice used a separate concurring opinion to not only disagree with two dissenters but also to accuse one of the dissenters of plagiarism." Te called what Abad had written “unprecedented" because “a separate concurring opinion, according to the Court’s own Internal Rules, is really for the purpose of stating a reason not mentioned by the majority in the main Opinion."
Addressing Abad’s 5 countercharges of plagiarism In his 12-page concurring opinion, Abad stated that: "Justice Sereno has no right to preach at the expense of the majority about ‘educative and moral directional value’ in writing published articles. For one thing, her standards are obviously for work done in the academe, not for the judge plodding at his desk to perform government work. For another, I note that on occasions she has breached those very standards, lifting from works of others without proper attribution." Abad leveled five countercharges against Sereno: that she had plagiarized – or failed to properly attribute as sources – a bank publication, treaty rules, a United States Supreme Court decision, an online factsheet, and a book, in her career as a legal scholar through various papers she had written that were identified by Abad. In Sereno’s dissenting opinion, she addressed Abad’s countercharges point-by-point. 1. Abad had alleged that Sereno plagiarized the Asian Development Bank’s Country Governance Assessment Report for the Philippines (2005) when she wrote a paper in 2007. In response, Sereno thanked him for alerting her to the ADB’s failure to attribute to her an earlier work she herself had co-authored in 2001. She wrote a letter to the ADB as regards the oversight so that proper attribution can be made to her work done four years before the ADB publication. Her letter was reproduced in her dissenting opinion. 2. Abad had alleged that Sereno failed to attribute as source the document “Understanding on the Rules & Procedures Governing the Settlement of Disputes, Annex 2 to the GATT [General Agreement on Tariffs and Trade] 1994." In response, Sereno explained that she had in fact properly cited that same source but had used its short title “Understanding on Dispute Settlement" as used by the World Trade Organization itself. 3. Abad had alleged that, again, Sereno failed to attribute a phrase she extracted from an oft-cited US decision,
Baker v. Carr. In response, Sereno wrote that “[a] simple upward glance nine paragraphs above the phrase that Justice Abad quoted from [her] post-hearing memorandum in the GRP-MILF MOA-AD [case] would show that
Baker v. Carr was aptly cited." 4. Abad mentioned another case of alleged plagiarism by Sereno of an online WTO fact sheet. Sereno pointed out, however, that she “clearly attributed the source of the information at the end of [her] footnote by providing the website source." 5. Finally, Abad cited Sereno’s
Philippine Law Journal article, which purportedly failed to attribute Judge Richard A. Posner’s book
Economic Analysis of Law as her source. In response, Sereno explained that the supposedly plagiarized passages Abad cited were actually “terms of the trade" in the field of economics which “may be regarded as a re-statement, in words instead of numbers, of a fundamental mathematical condition as it appears in Posner’s model and in many similar models." She wrote a letter to the dean of the University of the Philippines (UP) School of Economics to determine if her law review article had indeed plagiarized Posner’s book or not. This letter was also reproduced in her dissenting opinion.
Abad mostly unappeased In his concurring opinion, Abad said, “Sereno has since explained to [his] satisfaction that [the ADB’s 2005 publication] portion came from [Sereno and her two] co-authors’ earlier 2001 report submitted to the World Bank." But he found another angle of attack in Sereno’s having reused a 2001 report in the 2005 publication, adding: “Parenthetically, however, in the academic model, ‘dual and overlapping submissions’ is a thesis writer’s sin." As for her copying verbatim from the “Understanding on Dispute Settlement" of the GATT, he said that since she did not use quotation marks “[s]he thus made ordinary readers like [him] believe that she also crafted those portions." He stressed that: “This requirement [of putting quotation marks] is all the more important since, unlike domestic rules, the rules of the GATT are unfamiliar terrain to most readers." He also called attention to her failure to put in quotation marks the sentences she copied from the WTO factsheet she had cited in her work. Noting Sereno’s supposed statement that it would be “utterly pointless" to require her to repeat her citation of
Baker v. Carr in her memorandum on the GRP-MILF MOA-AD, Abad said: “An explanation like this from an academician is disheartening." He said that in sections of Sereno’s
Philippine Law Journal article, "she either copied verbatim from Judge Posner or mimicked his ideas without attributing these to him." In concluding his concurring opinion, Abad said: “Justice Del Castillo, who did not write [the Vinuya decision] as an academician but as a judge, is at least entitled to the liberties granted judges in writing decisions." Joining Abad in his concurring opinion were SC Associate Justices Teresita Leonardo-De Castro and Jose Portugal Perez.
A case of ‘severe plagiarism’? Sereno began her dissenting opinion by saying that “scholarly rigidity" was not expected of judges because “[t]hey need to answer to only two standards – diligence and honesty." Aside from
reiterating her earlier dissent to the majority’s Oct. 2010 resolution, she cited former UP law professor
Peter Payoyo's allegations of new findings of plagiarism in the Vinuya decision, adding that her office had even discovered three other alleged instances of copying without attribution to original sources. However, the SC majority’s resolution stated that “the Court sees no point in further passing upon… Payoyo’s claim of other instances of alleged plagiarism in the Vinuya decision." But she said that aside from the 23 instances of failure of proper attribution in the Vinuya decision mentioned in her Oct. 2010 dissenting opinion, there were 36 more missing citations in the footnotes — a total of 59 missing citations. In Sereno’s dissenting opinion, she provided a detailed technical analysis of alleged “patchwork plagiarism" in the Vinuya decision. She wrote that “the extent of unattributed copying belies inadvertence" and that the “systematic commission of plagiarism demonstrates deliberateness." Further, she said the research steps purportedly followed in drafting the Vinuya decision “cast doubts on inadvertence" because the “frequency of instances of missing citations and actions required for deletion betray deliberateness." She calculated that it would take “no less than 236 deliberate steps to drop the 59 citations missing in
Vinuya." In closing, Sereno affirmed her earlier dissenting opinion but this time added that “more work of more authors must be appropriately acknowledged [in the Vinuya decision], apologies must be extended, and a more extensively corrected Corrigendum [judicial version of an ‘erratum’] must be issued." Commenting on this exchange between magistrates of the country’s highest court, Te concluded his online column thus: “If this internecine squabbling continues, this Court which is supposed to speak with one voice, credibly and with authority, may lose not only that credibility but also that voice and that authority."
— RSJ/KBK/JV/HS, GMA News 
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