Disastrous effect

The Supreme Court (SC) is supposed to be the ultimate adjudicator of all legal disputes and the primary guardian of the rule of law. But for the past several days, its ruling in “The Matter of the Charges of Plagiarism Etc. against Associate Justice Mariano C. Del Castillo” (A.M. 10-7-17-SC, October 12, 2010) is openly assailed and vigorously criticized in media by various sectors of our society, particularly lawyers and members of the academe who do not agree with it on a question of law.

The bone of contention here is centered on the meaning of “plagiarism”. The critics insist that it means “to use another person’s work without proper attribution” (CEAP); to “copy other people’s work and pass them off as their own” (DLSU College of Law); “thievery of intellectual property, intellectual dishonesty” (COCOPEA). The act itself is enough; intent is not necessary, according to them.

But in the above case, they bluntly claim that the SC “conveniently changed the definition of plagiarism to justify a member’s exoneration” by adding “intent to deceive” as an essential element (DLSU); that it “refused to acknowledge the act of lifting passages from various foreign publications without proper referencing as an act of plagiarism… by positing that there was absence of malicious intent” (CEAP); and that it “treated plagiarism in cavalier fashion… by ruling that it cannot be committed without malicious intent” (COCOPEA). They virtually accuse Justice Del Castillo of intellectual dishonesty by using another person’s work without proper attribution.

The alleged plagiarism here is supposedly committed by Justice Del Castillo as ponente of the decision in the case of Vinuya et. al. vs. Executive Secretary et. al. (G.R. 162230, April 28, 2010). In said case, 71 elderly “comfort women” wanted the SC to order the Executive Department to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals, for the acts of Japanese military officers in seizing them and holding them in houses or cells and systematically raping and abusing them.

The SC dismissed the petition on April 28, 2010 mainly because “the Philippines is not under any obligation in international law to espouse their claim”. In arriving at this conclusion, Justice Del Castillo copied certain passages from three foreign articles: (a) “A Foreign Theory of Jus Cogens” by Evan J. Criddle and Evan Fox-Decent; (b) “Breaking the Silence: Rape as an International Crime” by Mark Ellis; and (c) “Enforcing Erga Omnes Obligation” by Christian J. Tams.

In their supplemental motion for reconsideration of this decision, the counsel for the petitioners accused Justice Del Castillo of copying without acknowledgment certain passages from the above mentioned foreign articles which he said was “manifest intellectual theft and outright plagiarism”, that put into question the integrity of the Court’s deliberation in the case. Justice Del Castillo, on the other hand claimed that when he wrote the decision he had the intent to attribute all sources but because of suggestions made during the deliberations of the court, the draft underwent major revisions where “sources were re-studied, discussed, modified” and passages added or deleted”.

In its investigation of the charges of plagiarism, the SC Committee on Ethics and Ethical Standards found that there was attribution of the lifted passages but it was either “unintentionally deleted” or “inappropriately done”.

With respect to Tam’s work the Committee found that Justice Del Castillo did not pass it off as his own because he did attribute the source or sources of said passages. The slip in attribution merely consists in using the introductory word “See” instead of the introductory phrase “cited in”. Thus the SC said that this is not a case of “manifest intellectual theft and outright plagiarism”.

With respect to the passages from Ellis and Criddle-Decent, the Committee found that the footnotes therein were the ones carried into the decision but no attributions were made to the two authors in those footnotes because the court researcher accidentally deleted the attributions originally planted in the beginning drafts of her report to Justice Del Castillo, which report eventually became the working draft of the decision. This was shown by the early drafts of her report in the Vinuya case submitted to the Committee which included the passages lifted from Ellis and Criddle-Decent with proper attributions to these authors. But in the course of editing and cleaning up her draft, which was done electronically, the researcher deleted the subject tags, and accidentally, the footnotes that served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, she failed to notice deletion.

Thus the SC said that the failure to mention the works of the two authors was unquestionably due to inadvertence or pure oversight because neither Justice Del Castillo nor the researcher had a motive for omitting the attribution or would they gain anything from it. It did not bring about an impression that Justice Del Castillo himself created the passages lifted from their published articles because he still imputed the passage to the sources from which the two authors borrowed them in the first place, so it remains self-evident that he merely got the passages from other sources despite the accidental deletion. Then citing the 8th edition of the Black’s Law dictionary defining plagiarism as “the deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own” the SC ruled that Justice Del Castillo did not commit plagiarism.

The SC decision really does not look as condemnable and deplorable as it was pictured in the various ads. Perhaps it raised so much uproar because the person involved is a colleague thus making the case unique and creating the impression that the decision was done not only with the coldness of a neutral mind but with the warmth of a compassionate heart. The objectors could have asked for a reconsideration of the ruling instead of going to the media right away. The more paramount concern here is the trustworthiness of the institution. If people start believing that they can no longer get justice from our courts, it may have a “disastrous effect” even on “the continuity of the government itself”.

* * *

E-mail:[email protected]