EN
BANC
A.M. No. 10-7-17-SC -- In the Matter of the Charges of Plagiarism, etc.,
against Associate Justice Mariano C. Del Castillo.
Promulgated:
February 8, 2011
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SEPARATE
CONCURRING OPINION
ABAD, J.:
I fully concur in the majority opinion
and would like to react to the separate dissenting opinions of Justices Antonio
T. Carpio and Maria Lourdes P.A. Sereno.
Justice Carpio has again graced the Court’s rulings in this case
with his typically incisive dissenting opinion.
Still, I cannot agree with his views.
He asserts that the sole disciplining authority of all impeachable
officers, including the Justices of this Court, lies in Congress. This is quite true but only with respect to
impeachable offenses that consist in “culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust,”[1] all
offenses that warrant the removal of such officers and disqualification for
holding any office in the government.[2] The Supreme Court has no intention of
exercising the power of impeachment that belongs to Congress alone.
Certainly, however, the Supreme Court
has the administrative authority to investigate and discipline its members for
official infractions that do not constitute impeachable offenses. This is a consequence of the Court’s
Constitutional power of “administrative supervision over all courts and the
personnel thereof.”[3] When the Court decided earlier the plagiarism
charge filed against Justice Mariano Del Castillo by the petitioners in Vinuya, it was under a belief that
“plagiarism,” which is not even a statutory offense, is an administrative
infraction. The petitioners in that case
did not themselves object to the proceedings conducted by the Court’s Ethics
Committee.
Subsequently, a complaint for
impeachment was filed against Justice Del Castillo before the House of
Representatives based on the same charge of plagiarism. The Court cannot do anything about that but
it is not the Court, denying the motion for reconsideration filed in the
present case, which will provoke a constitutional crisis; if ever, it is the
House of Representatives that will do so, seeing that the Court has already
acted on such a charge under an honest belief that plagiarism is an
administrative rather than an impeachable offense.
Whether plagiarism is an
administrative or an impeachable offense need not be decided by the Court in
this case since no actual dispute has arisen between Congress and the Court
regarding it.
As for the alleged violation of the
copyright law in this case, it should be sufficient to point out that no such
charge has been lodged against Justice Del Castillo. What is more, the Court has no original
jurisdiction over copyright law violations.
I reserve in the appropriate case my view on whether or not lifting from
copyrighted articles, without attribution, solely for the purpose of rendering
a decision, constitutes violation of the copyright law.
Justice
Sereno castigates the majority in the
Court for lowering the standards for
judicial scholarship, negating the educative and moral directional value in the
writing and publishing of decisions, bending over backwards to deny the
objective existence of gross plagiarism, and condoning dishonesty in the
exercise of a function central to the role of the courts.
But our courts are in the business,
not of “judicial scholarship,” but of deciding fairly and honestly the disputes
before them, using precedents and legal literature that, according to American
scholars, belong to the public domain.
If this is not honest work for a judge, I do not know what is.
And 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.
Take Justice Sereno’s article, Toward the Formulation of a Philippine Position in Resolving Trade and
Investment Disputes in APEC.”[4] Under the section subtitled “The WTO Dispute
Settlement Mechanism,” she said in the footnote that “[t]his section is drawn
from Article XX and XXIII of the GATT 1994, Understanding on Dispute
Settlement, and Working Procedures.” To
me, this means that in writing the section, she drew ideas from these four GATT
issuances.
I am reproducing below the beginning portions of Justice
Sereno’s work that are relevant to this discussion. I underline what she copied verbatim from Annex
2 of the General Agreement on Tariffs and
Trade (GATT) 1994, entitled “Understanding
on Rules and Procedures Governing the Settlement of Disputes,” or “Understanding
on Dispute Settlement” for short.
The WTO Dispute
Settlement Mechanism
Dispute settlement under the WTO mechanism is the
prompt settlement of situations in which a member considers that any benefit
accruing to it directly or indirectly under the WTO Agreement is being impaired
by measures taken by another member. A dispute settlement mechanism aims to
secure a positive solution to a dispute. Thus, a solution mutually acceptable
to the parties to a dispute is preferred. However, in the absence of a mutually
agreed solution, the first objective is usually to secure the withdrawal of
measures concerned. A measure is any internal act, whether a law, an
administrative action, or a judicial decision of a member.
The DSB is the WTO organ that is mandated to
administer the rules and procedures that govern the settlement of disputes. It
is made up of the representatives of all the members of the WTO. Each member is
entitled to one vote.
The DSB has the following powers and functions: (a) to
establish panels, (b) to adopt or reject panel and Appellate Body reports, (c)
to maintain surveillance of the implementation of rulings and recommendations,
and (d) to authorize the suspension of concessions and other obligations. It
is understood that requests for conciliation and the use of the dispute
settlement procedures should not be viewed as contentious acts. Members
engage in this procedure to resolve disputes. [copied]
If a measure adopted by a country (A) within its
territory impinges on, for example, the exports of another country (B), the
first step in dispute settlement is the filing of a request for consultation by
the complainant. In this case, B is the complainant.
If B requests consultation with A, then A must
consider the complaint of B. A must reply to the request within 10 days after
its receipt and enter into consultations with B in good faith within a period of 30 days from the date of the
request, with a view to reaching a mutually satisfactory solution. If A does
not respond within 10 days, does not enter into consultations within a period
of 30 days from the filing of the request, and if the consultation fails to
settle a dispute within 60 days after the request for consultation, then B may
proceed to request the establishment of a panel.
Good
offices, conciliation, and mediation may be requested at any time by any party
to a dispute. They may begin and be terminated at any time. Once they are
terminated, the complaining party can then request the establishment of a
panel.
If the
complaining party so requests, a panel may be established by the DSB. The
function of the panel is to assist the DSB in discharging its responsibilities.
Accordingly, a panel should make an
objective assessment of the matter before it, including the facts of the case
and the applicability and conformity of the measure with the relevant
agreements. It should also make other findings that will assist the DSB in
making the recommendations or in giving the rulings provided for in the covered
agreements, besides consulting regularly with the parties to the
dispute and giving them adequate opportunity to develop a mutually satisfactory
solution. [Copied]
The
request for the establishment of a panel should be made in writing, indicate
whether consultations were held, identify the specific measures at issue, and
provide a brief summary of the legal basis of the complaint. [Copied]
x x x x
Notably, Justice Sereno began her above discussion
with ideas presumably from her four sources, which she put together and
fashioned into her own sentences and paragraphs. The ideas were from GATT but the presentation
was original Sereno. Down the line,
however, without introduction or preamble, she copied verbatim into her work
portions from Understanding on Dispute
Settlement, without citing this specific source. More, she did not use quotation marks to
identify the copied portions. She thus
made ordinary readers like me believe that she also crafted those portions. To borrow a word from the civil code, she
“co-mingled” the work of others with hers, erasing the identity of the lifted
work.
Justice Sereno’s explanation is that, since she was drawing
from the rules embodied in GATT’s Understanding
on Dispute Settlement, she did not have to make attributions to those rules
at each turn of her writing. She may be
correct if she in fact properly cited those rules the first time she copied
from it and, further, indicated a clear intent to do further copying down the
line. But she did not. Properly, she could have written:
x x x x
The
DSB has the following powers and functions: (a) to establish panels, (b) to
adopt or reject panel and Appellate Body reports, (c) to maintain surveillance
of the implementation of rulings and recommendations, and (d) to authorize the
suspension of concessions and other obligations. GATT’s
Understanding on Dispute Settlement has a lot to say about the subject and some
are mentioned here. For one it says,
“It is understood that requests for conciliation and the use of the dispute
settlement procedures should not be … as contentious acts. Members engage in …
procedure to resolve disputes.”
x
x x x
Further, she did not identify the portions she copied
verbatim in order to set them apart from her own writing. Under the rule that she foists on Justice Del
Castillo, quotation
marks must be used whenever verbatim quotes are made.[5] This requirement is all the more important
since, unlike domestic rules, the rules of GATT are unfamiliar terrain to most
readers. Thus, at the next turn, she
could have at least enclosed in quotation marks the other portions she copied
verbatim from her source like this:
If the complaining
party so requests, a panel may be established by the DSB. “The
function of the panel is to assist the DSB in discharging its
responsibilities. Accordingly, a panel
should make an objective assessment of the matter before it, including the
facts of the case and the applicability and conformity of the measure with the
relevant agreements. It should also make other findings that will assist the
DSB in making the recommendations or in giving the rulings provided for in the
covered agreements … consul … regularly with the parties to the dispute and
giving them adequate opportunity to develop a mutually satisfactory solution.”
“The request for the establishment of a panel should
be made in writing, indicate whether consultations were held, identify the
specific measures at issue, and provide a brief summary of the legal basis of
the complaint.”
What is more, learned lawyers would always set apart the
laws or rules that they cite or invoke in their work since these are
expressions of a higher grade than their comments or opinions. A lawyer’s opinion can persuade but a rule or
a law is binding. I have yet to see a
Supreme Court decision that copies verbatim a specific rule or law, which it
invokes to support such decision, without distinctly calling it what it is or citing
its source.
Below is the rest of the verbatim copying that she
made from Understanding on Dispute Settlement in the section she wrote without
attribution or quotation marks.
|
Sereno, J. |
Original work - GATT Annex 2, Understanding
on Dispute Settlement |
|
After receipt of comments from the parties, the panel shall issue
an interim report to them, including both the descriptive sections and the
panel’s findings and conclusions.
The parties may submit written requests for the panel to review
precise aspects of the interim report for which the panel shall meet with
the parties. If no comments are
received from any party within the comment period, the interim report shall
be considered the final panel report and circulated promptly to the members.
(page 7) |
Following the expiration of the set period of time for receipt of
comments from the parties to the dispute, the panel shall issue an interim report to the parties, including
both the descriptive sections and the panel’s findings and conclusions. Within a period of time set by the panel, a party may submit a written request for
the panel to review precise aspects of the interim report prior to
circulation of the final report to the Members. At the request of a party, the panel shall
hold a further meeting with the parties on the issues identified in the
written comments. If no comments are
received from any party within the comment period, the interim report shall
be considered the final panel report and circulated promptly to the Members. [Article 15.2, GATT Annex 2] |
|
When a panel or the AB concludes that a measure is inconsistent with a
covered agreement, it shall recommend that the member concerned bring the
measure into conformity with that agreement.
In addition to its recommendations, the panel or AB may suggest ways
by which the member concerned could implement the recommendations. (page 8) |
Where a panel or the Appellate
Body concludes that a measure is inconsistent with a covered agreement, it
shall recommend that the Member concerned bring the measure into conformity
with that agreement. In addition to
its recommendations, the panel or Appellate Body may suggest ways in which
the Member concerned could implement the recommendations. [Article 19.1, GATT Annex 2] |
|
The DSB shall adopt the report within 60 days of the issuance of a
panel report to the members, unless one of the parties to the dispute
formally notifies the DSB of its decision to appeal, or the DSB decides by
consensus not to adopt the report. If
the panel report is on appeal, the panel report shall not be considered for
adoption by the DSB until the completion of the appeal. (page 7-8) |
Within 60 days after the date
of circulation of a panel report to the Members, the report shall be adopted
at a DSB meeting unless a party to the dispute formally notifies the DSB of
its decision to appeal or the DSB decides by consensus not to adopt the
report. If a party has notified its
decision to appeal, the report by the panel shall not be considered for adoption
by the DSB until after completion of the appeal. [Article 16.4, GATT Annex 2] |
|
It may uphold, modify, or reverse the legal findings and
conclusions of the panel. ( page 8) |
The Appellate Body may uphold,
modify or reverse the legal findings and conclusions of the panel. [Article 17.13, GATT Annex 2] |
|
Note that the AB reviews only issues of law covered in the panel
report and legal interpretation developed by the panel. (page 8) |
An appeal shall be limited to
issues of law covered in the panel report and legal interpretations developed
by the panel. [Article 17.6, GATT Annex 2] |
|
The DSB shall keep under surveillance the implementation of adopted
recommendation or rulings. Any member
may raise the issue of implementation of the recommendations or rulings at
the DSB anytime following their adoption. (page 8) |
The DSB shall keep under
surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the
recommendations or rulings may be raised at the DSB by any Member at any time
following their adoption. [Article 21.6, GATT Annex 2] |
Going
to another item in the same article, Justice Sereno copies significant lines from
Oppenheim’s Treatise without making an attribution to that work.
|
Sereno, J. |
Original work – Oppenheim’s Treatise |
|
In mediation, the third party facilitates the negotiations between the parties concerned. It involves direct conduct of negotiations between the parties at issue on the basis of proposals made by the mediator. On the other hand, good offices are a friendly offer by a third party, which tries to induce disputants to negotiate among themselves. Such efforts may consist of various kinds of actions tending to call negotiations between conflicting states into existence. (page 11) |
The difference between [good offices and mediation] is that, whereas good offices consist in various kinds of action tending to call negotiations between the conflicting States into existence, mediation consists in a direct conduct of negotiations between the differing parties on the basis of proposals made by the mediator. [Oppenheim, International Law, A Treatise volume 2 page 11 (1920)] |
Justice
Sereno explains that “trite, common, standard statement[s]” like the ones she
copied from Oppenheim has “nothing original at all about [them]” and need no
citation or quotation marks. This is
true. Indeed, the Court acknowledged in
its October 12, 2010 decision that no plagiarism could be committed respecting “common
definitions and terms, abridged history of certain principles of law, and
similar frequently repeated phrases that, in the world of legal literature,
already belong to the public realm.” But
I cite the above because Justice Sereno would not grant to Justice Del Castillo
the liberty to use common definitions and terms in his ponencia without the correct attribution.
In the original draft of this concurring opinion that
I circulated among the members of the Court, I mentioned an article published
in 2007 that Justice Sereno wrote with two others entitled Justice
and the Cost of Doing Business.[6] I found that a portion of this article
appeared to have been reproduced without attribution from a 2005 publication,
the Asian Development Bank Country
Governance Assessment (
Parenthetically, however, in the
academic model, “dual and overlapping submissions” is a thesis writer’s sin. It simply means that the same academic work
is submitted to gain credit for more than one academic course.[8] In the publishing world, while not prohibited
across the board, law journals and reviews frown upon authors who submit manuscripts
which have been previously published elsewhere, since the purpose of
publication is the circulation and distribution of original scholarship and the
practice would permit the author to be credited twice for the same work.
Notably, from the papers she furnished
the members of the Court, it would seem that the WB Danish Trust Fund commissioned
and paid for the 2001 study that Justice Sereno and her co-authors undertook. Indeed,
the cover page of the WB paper she also provided shows that it was part of the
“Document of the World Bank.” I would
assume, however, that Justice Sereno obtained WB authorization for the subsequent
publication of the report in 2007.
Next, in her memorandum for petitioners-intervenors
Franklin M. Drilon and Adel A. Tamano in Province
of North Cotabato, et al. v. Government of the Republic of the Philippines
Peace and Panel on Ancestral Domain, et al.,[9] Justice Sereno lifted a famous phrase
from the United States’ case of Baker v.
Carr, 169 U.S. 180, without making attribution to her source.
|
J. Sereno |
Original Work – Baker v. Carr |
|
|
Second, there is no lack of a judicially discoverable and manageable standard for resolving the question, nor impossibility of deciding the question without an initial policy determination of a kind clearly for non-judicial discretion. |
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion x x x [Baker v. Carr, 169 |
Justice Sereno explains that, since she earlier cited Baker v. Carr in her memorandum, it
would be utterly pointless to require her to repeat her citation as often as
excerpts from the case appear down the line.
It is not quite pointless because one who copies from the work of
another has an obligation, she insists in her dissent, to make an attribution
to his source. Otherwise, a writer can
simply say at the start of his article that he is copying from a list of named
cases and it would be up to the reader to guess where the copied portions are located
in that article. An explanation like
this from an academician is disheartening.
In another article, Uncertainties Beyond The Horizon: The Metamorphosis of the WTO
Investment Framework In The Philippine Setting,[10]
Justice Sereno also copied from the World Trade Organization fact sheet on line
(prepared by the United States Department of Agriculture) without using
quotation marks, and made the material appear to be her own original analysis. Thus:
|
J. Sereno |
Original Work – WTO Factsheet |
|
|
The World Trade Organization (WTO) was established on January 1, 1995. It is a multilateral institution charged with administering rules for trade among member countries. The WTO functions as the principal international body concerned with multilateral negotiations on the reduction of trade barriers and other measures that distort competition. The WTO also serves as a platform for countries to raise their concerns regarding the trade policies of their trading partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development. |
The World Trade Organization (WTO),
established on January 1, 1995, is a multilateral institution charged with
administering rules for trade among member countries. x x x The WTO functions as the principal international body concerned with
multilateral negotiations on the reduction of trade barriers and other
measures that distort competition. The
WTO also serves as a platform for countries to raise their concerns regarding
the trade policies of their trading partners.
The basic aim of the WTO is to liberalize world trade and place it on
a secure basis, thereby contributing to economic growth and development.
[WTO FACTSHEET http://www.fas.usda. gov/info/factsheets/wto.html (last accessed February 13, 2008)] |
Here again, Justice Sereno ignores her unbendable rule
that one commits plagiarism by his “[f]ailure to use quotation marks to
indicate that the entire paragraph in the body of the decision…was not the ponente’s original paragraph, but was
lifted verbatim from [another’s] work.”
In his book entitled Economic Analysis of Law (2nd edition, 1977), Judge
Richard A. Posner wrote:
xxx Hence, settlement negotiations will fail, and litigation ensue, only if the minimum price that the plaintiff is willing to accept in compromise of his claim is greater than the maximum price the defendant is willing to pay in satisfaction of that claim. (At p. 435)
Justice Sereno copied the above verbatim in her article
entitled Lawyers’ Behavior and Judicial
Decision-Making[11] published in the Philippine Law
Journal, without quotation marks or attribution to Judge Posner. Thus, she wrote:
xxx
[S]ettlement negotiations will fail and
litigation will ensue if the minimum price that plaintiff is willing to accept
in compromise of his claim is greater than the maximum price that the defendant
is willing to pay in satisfaction of that claim. (At page 483)
In other sections of the same article that Justice
Sereno wrote, she either copied verbatim from Judge Posner or mimicked his
ideas without attributing these to him.
Thus:
Judge Posner wrote --
A somewhat more plausible case can be made that judges might slant their decisions in favour of powerful interest groups in order to increase the prospects of promotion to higher office, judicial or otherwise. xxx (At p. 416)
Justice Sereno mimicked --
The third is that the judge maximizes the
prospects of his promotion to a higher office by slanting his decisions in
favor of powerful interest groups. (page 489)
Judge Posner wrote --
Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and non-monetary elements xxx. (At p. 415)
Justice Sereno mimicked --
In understanding judicial behaviour we have
to assume that judges like all economic actors maximize a utility function.
This function in all probability includes material as well as non-material
factors. xxx (At page 489)
Judge Posner wrote --
[T]he rules of the judicial process have been carefully
designed both to prevent the judge from receiving a monetary payoff from
deciding a particular case one way or the other and to minimize the influence
of politically effective interest groups in his decisions. [At p.
415]
Justice Sereno mimicked --
The first is that the American judicial
system have rules designed to minimize the possibilities of a judge maximizing
his financial interest by receiving a bribe from a litigant or from acceding to
a politically powerful interest group by making the rules work in such a manner
as to create disincentives for the judge ruling in such a manner (page 489)
Judge Posner wrote --
It is often argued, for example, that the judge who owns
land will decide in favor of landowners, the judge who walks to work will be in
favour of pedestrians. Posner,
415]
Justice Sereno mimicked --
The second proceeding from the first is
that the judge maximizes the interest of the group to which he belongs. If he
belongs to the landowning class he will generally favor landowners and if he
walks to work, he will generally favor pedestrians. (page 489)
Judge Posner wrote --
[J]udges seek to impose their preferences, tastes,
values, etc. on society. [Posner, 416]
Justice Sereno mimicked--
The last is that judges maximize their
influence on society by imposing their values, tastes and preferences thereon.
(page 489)
Using the severe standards she sets for Justice Del
Castillo in Vinuya, i.e., “objective
existence of plagiarism,” I am afraid that any explanation of good faith or
lack of malicious intent on Justice Sereno’s part in copying without proper
attribution from the work of Judge Posner would not be acceptable.
Still I can concede that Justice Sereno may not have intended
to plagiarize the work of others even if she copied verbatim from them without
proper attribution or quotation marks. Her
above articles were, taken as whole, essentially hers. I regret, however, that since she wrote them as
an academician bound by the high standards that she and the University of the
Justice Del Castillo, who did not write as an academician
but as a judge, is at least entitled to the liberties granted judges in writing
decisions.
I vote to DENY the motion for reconsideration filed in this case.
ROBERTO
A. ABAD
Associate Justice
[1] Section 2,
Article XI, 1987 Constitution of the
[2] Section 3 (7),
id.
[3] Section 6,
Article VIII, 1987 Constitution of the
[4] Sereno, Toward the Formulation of a Philippine
Position in Resolving Trade and Investment Disputes in APEC, Philippine APEC
Study Center Network (PASCN) Discussion Paper No. 2001-15 (2001). [available
online at http://pascn.pids.gov.ph/DiscList/d01/s01-15.pdf]
[5]
[6] Ma Lourdes A. Sereno, Emmanuel S. De Dios, and Joseph
J. Capuno, Justice and the Cost of Doing Business: The
online
at http://www.econ.upd.ude.ph/respub/dp/pdf/DP2007-11.pdf
or
[7] At p. 103.
[8] The Harvard
Plagiarism Policy states:
It is the
expectation of every course that all work submitted to it will have been done
solely for that course. If the same or
similar work is to be submitted to any other course, the prior written
permission of the instructor must be obtained.
If the same or similar work is to be submitted to more than one course
during the same term, the prior written permission of all instructors involved
must be obtained. A student submits the
same or similar work to more than one course without such prior permission is
subject to disciplinary action, and ordinarily will be required to withdraw
from the College. (available online at http://isites.harvard.edu/icb/icb.do?keyword=k70847&pageid=icb.page355322)
[9] G.R. Nos.
183591, 183752, 183893, 183951, September 18, 2008.
[10] Sereno, Uncertainties Beyond The Horizon: The
Metamorphosis Of The WTO Investment Framework In The Philippine Setting, 52
UST LAW REVIEW 259 (2007-2008).
Available online at http:// ustlawreview.com/pdf/vol.LII/Uncertainties_
Beyond_the_Horizon.pdf
[11] Sereno, Lawyer’s Behavior and Judicial
Decision-Making, 70 Phil. L. J. 472-492 (vol 4, June 1996) [available
online at http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20
volume%2070%20number%204%20-02-%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf]