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Law 116: Legal Method

The Dissent

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IN THE MATTER OF THE CHARGES OF PLAGIARISM ET AL AGAINST ASSOCIATE JUSTICE

MARIANO DEL CASTILLO

October 2010Per curiam

Sereno, dissentingadministrative case with the Supreme Court

FACTS:

Petitioner Vinuya and 70 other elderly women who are all members of the Malaya LolasOrganization filed a special civil action of certiorari with the SC wanting to compel the ExecutiveDepartment to espouse their claims as comfort women during World War II for an official apologyand other forms of reparations against Japan before the International Court of Justice and otherinternational tribunals

The Court rendered a decision with Justice Del Castillo as ponentedismissing the petition on thegrounds that the Executive Department has exclusive prerogative to determine if it should

espouse the petitioners claims and that the Philippines isnt obligated by any international laws tosupport their claims

The petitioners filed a motion for reconsideration, and over a month later, filed a supplementalmotion for reconsideration accusing Del Castillo of manifest intellectual theft and outrightplagiarism, namely by allegedly copying passages from the following foreign texts withoutacknowledgment:

o A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descento Breaking the Silence: Rape as an International Crime by Mark Elliso Enforcing Erga Omnes Obligations by Christian J. Tams

The petitioners allege that such copying put into question the integrity of the Courts deliberationsin Vinuya, and that the true intents of the plagiarized sources were twisted to suit the judgment ofthe Court

Del Castillo subsequently circulated a letter saying that there was intent to attribute all of the

sources in the questioned decision, and that there was no malicious intent to appropriate otherpeoples work

The Court referred the charges to its Committee on Ethics and Ethical Standards; Criddle, Ellisand Tams also expressed their concern over the allegations

Del Castillos court researcher demonstrated to the Committee how the attribution to thementioned works were unintentionally lifted; petitioners maintained that lack of intent is not adefense in plagiarism and invoked the Courts ruling in University of the Philippines Board ofRegents v. Court of Appeals and Arokiaswamy William Margaret Celine(where a students PhDdegree in Anthropology was withdrawn after she was charged with plagiarizing parts of herdissertation)

ISSUES:1. Did Del Castillo plagiarize the works of Tams, Criddle and Fox-Descent, and Ellis in writing the

opinion of the Court in Vinuya?2. Did Del Castillo twist the works of the aforementioned authors to make it appear that their works

supported the judgment of the Court in Vinuya?

RULING:dismissesfor lack of merit the charges of plagiarism, twisting of cited materials and grossneglect against Del Castillo

RATIO:

Plagiarism is the theft of another persons language, thoughts or ideas in order to pass it off asones own; thus, the passing off of a work by another as ones own is an indispensableelement of plagiarism

On the passages from Tams:while both the petitioner and the original author may both believethat the footnote used to mark the passages taken from Tams book was not the appropriate

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Law 116: Legal Method

The Dissent

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form of referencing, the decision did attribute the sources of the passages and not pass themoff as original thought, primarily attributing them to Bruno Simma, who Tams also credited; the

sufficiency of the footnote is not an ethical matter but one concerning clarity of writing; the useof See Tams, Enforcing Obligations Erga Omnes in International Law (2005) is merelyimprecise, but not a case of deceit or theft

On the passages from Ellis and Criddle and Fox-Descent:the passages from these authorswere not attributed to them by means of footnotes, but the Court said these cannot beconstrued as plagiarism.

Finding One:Del Castillos legal researcher explained that she accidentally deleted theattributions in the working draft of the decision. She originally took the materials fromelectronic sources such as Westlaw, cutting relevant materials from books and journalsonline then pasting them in a file in Microsoft Word, later editing them down based on the inputof Del Castillo.

The Court accepted the explanation of the legal researcher and said that the nature of thecomputer programs used made the accidental removal of attributions to source materialpossible. The mistake of Del Castillos researcher is that, after the Justice had decided whattexts, passages, and citations were to be retained including those from Criddle and Descentand Ellis, and when she was already cleaning up her work and deleting all subject tags, sheunintentionally deleted the footnotes that went with such tags.It said that MS Word didnthave a function that alerts its user when original materials are changed.

Finding Two:The Court also said that neither Del Castillo nor his researcher had any motivefor omitting attributions for lifted passages, and didnt gain anything from it. Petitioners ignoredthe fact that plagiarism is a form of fraud where intent to deceive is inherent and that itpresupposes a deliberate, conscious effort to steal anothers work and pass it off as ones

own. The Court said nothing in UP Board of Regentsregarding the non-requirement of intentin plagiarism.

The omission of attribution in the Criddle et al passages didnt give the impression that DelCastillo himself created the passages in question, since the attributions to the sources ofCriddle et al were still intact. Even if they werent marked with quotation marks, the passagesconsisted of common definitions and terms, abridged history of certain principles of law, andsimilar frequently repeated phrases that, in the world of legal literature, already belong to thepublic realm.

Since the judicial system is based on stare decisis, which encourages courts to cite historicaldata, the judge is not expected to produce original scholarship in every respect.

Finding Three:Since the attributions to Criddle-Descent and Ellis were accidentally deleted, itis impossible for any person reading the decision to connect the same to the works of thoseauthors as to conclude that in writing the decision Justice Del Castillo "twisted" their intendedmessages. Also, the lifted passages provided mere background facts that established thestate of international law at various stages of its development. These are neutral data thatcould support conflicting theories.

On Misconduct:There was none since Del Castillos acts or omissions werent tainted withfraud, corruption or malice that would make him subject to disciplinary action.

On Inexcusable Negligence:Del Castillo didnt abdicate his responsibility of writing the Vinuyadecision since he was in control of writing the report, and he also didnt exercise bad judgmentin assigning his legal researcher to do the research for it.

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SERENO, dissenting:

The majority decision will thus stand against the overwhelming conventions on what constitutesplagiarism when it made malicious intent an essential element. In doing so, the decision hascreated unimaginable problems for Philippine academia, which will from now on have to find adisciplinary response to plagiarism committed by students and researchers on the justification ofthe majority decision. It also made lack of malicious intent a defense to charges of copyrightviolations due to lack of attribution, rendering Sec. 184 of the Intellectual Property Code (RepublicAct 8293) meaningless

According to Gordon Harveys Writing With Sources, there are four forms of plagiarism: (a)uncited data or information; (b) an uncited idea, whether a specific claim or general concept; (c)an unquoted but verbatim phrase or passage; and (d) an uncited structure or organizing strategy.These forms can exist simultaneously in one passage and can be committed in footnotes with thesame degree of unacceptability as unattributed passages in body text.

Many violations of existing rules against plagiarism existed in the Vinuyadecision, such as thefailure to use quotation marks and right citations to indicate that text was lifted verbatim

The text of the decision itself reveals the evidence of plagiarism. The tearful apology of the legalresearcher to the family of the ponenteand her acknowledgment of the gravity of the act ofomitting attributions is an admission that something wrong was committed. Her admission that thecorrect attributions went missing in the process of her work is an admission of plagiarism. Theevidence in the text of the Vinuyadecision and the acknowledgment by the legal researcher aresufficient for the determination of plagiarism.

The majority presentation on the use of electronic research wasnt fair: (a) keyed-in computercommands such as that of quotation marks or block-quote formatting arent easily accidentallydeleted, but should be deliberately inputted when theres intent to quote and attribute; (b) anopening introduction to a passage quoted verbatim is deliberately placed; (c) the explanationsprovided by the majority didnt cover the wholesale lifting from Criddle et al, only of Tams work;(d) the explanation of how two footnotes were deleted didnt account for all the text taken fromCriddle et al; (e) the use of See Tams ... wasnt mere insufficiency in clarity of writing but a case

of plagiarism under the rule prohibiting use of misleading citations; (f) the carpenter analogy wasinappropriate since computer programs can accommodate as many quotation marks, explanatorynotes, citations and attributions as the writer desires; (g) no software exists that will automaticallytype in quotation marks at the beginning and end of a passage that was lifted verbatim; theseattribution marks must be made with deliberate effort by the human researcher

The elements of plagiarism are the actof copying the plagiarized work and the subsequentomissionin failing to attribute the work to its author. As the work is another's and used withoutattribution, the plagiarist derives the benefit of use from the plagiarized work without expendingthe requisite effort for the same at a cost to its author who could otherwise have gained credit forthe work and whatever compensation for its use is deemed appropriate and necessary.

That a judge, in lifting words from a source and failing to attribute said words to said source in thewriting of a decision, committed specificallyjudicialplagiarism does not derogate from the natureof the act as a plagiarist act. Nor does any claim of inadvertence or lack of intent in the

commission of a plagiarist act change the characterization of the act as plagiarism. Unless reconsidered, this Court would unfortunately be remembered as the Court that made

"malicious intent" an indispensable element of plagiarism and that made computer-keying errorsan exculpatory fact in charges of plagiarism, without clarifying whether its ruling applies only tosituations of judicial decision-making or to other written intellectual activity. It will also weaken thisCourts disciplinary authority over the bench and bar. In a real sense, this Court has renderedtenuous its ability to positively educate and influence the future of intellectual and academicdiscourse.

There would have been at that point two possible choices for the Court vis--vis the ponente: tosubject him to disciplinary measures or to excuse him. In order to determine whether the actscommitted would have warranted discipline, the Court should have laid down the standard ofdiligence and responsibility that a judge has over his actions, as well as the disciplinary measuresthat are available and appropriate.