A.M. No. 10-7-17-SC

EN BANC

IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC

OF PLAGIARISM, ETC., AGAINST

ASSOCIATE JUSTICE MARIANO C.

DEL CASTILLO. Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

Promulgated:

February 8, 2011

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RESOLUTION

PER CURIAM:

Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano Del Castillo in connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo.[1]

Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. This claim is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term.

Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is “to steal and pass off as one’s own” the ideas or words of another. Stealing implies malicious taking. Black’s Law Dictionary, the world’s leading English law dictionary quoted by the Court in its decision, defines plagiarism as the “deliberate and knowing presentation of another person's original ideas or creative expressions as one’s own.”[2] The presentation of another person’s ideas as one’s own must be deliberate or premeditated—a taking with ill intent.

There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident or in good faith.

Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of Academic Integrity ordains that “plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one’s self what is not one’s work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Students who plead ignorance or appeal to lack of malice are not excused.”[3]

But the Court’s decision in the present case does not set aside such norm. The decision makes this clear, thus:

To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer’s thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.[4]

Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodying results of original research, substantiating a specific view.[5] This must be so since the writing is intended to earn for the student an academic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations, and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy.

But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism. Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certain schools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its face the student’s work shows as a whole that he has but committed an obvious mistake or a clerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his diploma.

In contrast, decisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes is a service rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of flesh and blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interest of society in written decisions is not that they are originally crafted but that they are fair and correct in the context of the particular disputes involved. Justice, not originality, form, and style, is the object of every decision of a court of law.

There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are “to stand by precedent and not to disturb settled point.” Once the Court has “laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same.”[6]

And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators.

Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability. Thus:

The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone.[7]

The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook:

A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party’s brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.[8]

If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciary’s more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism.

This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the judges’ creativity. It is here—actually the substance of their decisions—that their genius, originality, and honest labor can be found, of which they should be proud.

In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. He identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the law relevant to their resolution. It was here that he drew materials from various sources, including the three foreign authors cited in the charges against him. He compared the divergent views these present as they developed in history. He then explained why the Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was original. He had but done an honest work.

The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done.

This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice.

As Duncan Webb said:

In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole sections of a judge’s words to lend weight to a particular point either with or without attribution. The words of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this place is given to Halsbury’s Laws of England which is widely considered authoritative. A lawyer can do little better than to frame an argument or claim to fit with the articulation of the law in Halsbury’s. While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution.

x x x x

The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.[9]

The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losing party. But it is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school of law, have unfairly maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to attribute lifted passages from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism as the world in general knows it.

True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law.

Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The authors concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his own.

With our ruling, the Court need not dwell long on petitioners’ allegations that Justice Del Castillo had also committed plagiarism in writing for the Court his decision in another case, Ang Ladlad v. Commission on Elections.[10] Petitioners are nit-picking. Upon close examination and as Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact made attributions to passages in such decision that he borrowed from his sources although they at times suffered in formatting lapses.

Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines for leave to file and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyo’s claim of other instances of alleged plagiarism in the Vinuya decision.

ACCORDINGLY, the Court DENIES petitioners’ motion for reconsideration for lack of merit.

SO ORDERED.

RENATO C. CORONA

Chief Justice

See dissenting opinion Please see dissenting opinion

ANTONIO T. CARPIO CONCHITA CARPIO MORALES