SC justice plagiarized parts of ruling on comfort women

By ARIES C. RUFO and PURPLE S. ROMERO, Newsbreak

Posted at Jul 19 2010 12:26 AM | Updated as of Jul 20 2010 02:17 AM

MANILA, Philippines—In what could possibly be a first in the Supreme Court, a magistrate appears to have committed plagiarism in a decision on a diplomatically and politically sensitive case.

Newsbreak’s 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 Castillo’s 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:
•    “A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, published last year in the Yale Journal of International Law.
•    “Breaking the Silence on Rape as an International Crime” by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law.
•    “Enforcing 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-Descent 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-Descent’s article; 24 of Ellis’s; and 4 of Tams’s.

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 “is 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. “With 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 Castillo’s 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 “not within (its) power to order the executive department to take up the petitioners’ cause. Ours is only the power to urge and exhort the executive department to take up petitioners’ cause.”
 
The SC also argued that the issue “is a diplomatic matter that must be addressed (alone) by the executive branch…. For us to overturn the Executive department’s determination would mean an assessment of the foreign policy judgment by a coordinate political branch….”
 
Nine justices signed the ruling, including now Chief Justice Renato Corona. Retired Chief Justice Reynato Puno indicated his vote “in the result,” meaning he agreed with the ruling but not on 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 major 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.
 
Vinuya’s 34-page ruling has 78 footnotes, clearly coming from researches 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, Tams’s book, and Ellis’s articles, appearing as if these were del Castillo’s own words.
 
The plagiarism is most evident in the ruling’s footnotes as Del Castillo—or his legal staff—freely 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-Descent wrote, “In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom.”

On pages 30-31 of Del Castillo’s ruling are written: “In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory   authority, superseding conflicting treaties and custom.”

(Download “Comparison of Criddle and Fox-Descent’s article and Del Castillo’s ruling.)”

Ellis’s article, on page 227 of Case Western Reserve Journal of International Law, stated that, “The 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 Castillo’s ruling states, without attribution, “The 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, “The Latin phrase ‘erga omnes’ 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 Castillo’s ruling: “The Latin phrase ‘erga omnes’ 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. A law dean hinted that judges and justices are aided by legal staff for research, considering the volume of their work and it is here that the lapse or gap may have occurred.
 
“If 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 others’ work and passing these off as original material.

Pacifico Agabin, dean of the Far Eastern University Institute of Law, pointed out, “It 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, “A 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 authority….”
 
A former SC justice, who teaches legal bibliography, said plagiarism is a form of “intellectual theft” and that “law 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. “It 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.”
 
UP’s Leonen said that it is “intellectual dishonesty” for a judge or a justice to pass off a material as if it were the product of an extensive research when it was merely copied from an earlier research.
 
One law school dean argued: “If only sentences are copied, then it’s hard to say that there is plagiarism.” The law dean qualified that there is “flagrant 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. It also strikes at the core of the judges or the justices’ 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 “sending 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)