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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SERENO, J.:
Judges
need not strain themselves to meet inapplicable standards of research and
attribution of sources in their judicial opinions, nor seek to achieve the
scholarly rigidity or thoroughness observed in academic work. They need to
answer to only two standards – diligence and honesty. By honesty here is meant
that good faith attempt to attribute to the author his original words and
analysis.
Even
if a judge has to rely in large part on the drafts of his legal researchers,
the work of a diligent and honest judge will never display the severe
plagiarism evident in the Vinuya Decision published under the name of
Justice Mariano C. del Castillo. A judge will only find himself in the same
predicament as Justice del Castillo if two situations coincide: (1) the judge
wittingly or unwittingly entrusts a legal researcher with the task of drafting
his judicial opinion, and the legal researcher decides to commit severe
plagiarism; and (2) the judge: (a) does not read and study the draft decision
himself; (b) even if he does read and study the same, the “red flags” that are
self-evident in the draft decision completely escape him; or (c) despite having
seen the red flags, he ignores them.
We use the words “severe plagiarism”
here deliberately because not only were three (3) works of the four (4)
complaining authors[1]
plagiarized in Vinuya, text from the following copyrighted works was
copied without attribution as well: essays contributed by Robert
McCorquodale and Phoebe Okowa to the
book International Law, edited by Malcolm Evans; an article written by
Mariana Salazar Albornoz, entitled Legal
Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges;
an article written by Elizabeth Prochaska, entitled Testing the Limits of Diplomatic Protection: Khadr v. The Prime
Minister of Canada; a
report by Larry Niksch, entitled Japanese
Military’s Comfort Women; and an
article by James Ladino, entitled Ianfu:
No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121. In addition, incorporated into Vinuya
were excerpts from a decision of an international tribunal without any signal
given to the reader that the words were not those of Justice del Castillo of
the Philippine Supreme Court but the words of another tribunal. While there are
views that a judge cannot be guilty of plagiarism for failure to recognize
foreign decisions as source materials in one’s judicial writing – as when
Justice Antonio C. Carpio opines that a judge cannot be guilty on this score
alone – it is beyond debate that there is a duty of care to attribute to these
foreign and international judicial decisions properly, and that one should
never present these materials as if they are one’s own.
An estimate of the extent of the
plagiarism in the Vinuya Decision has been made by my office. The best
approximation available to us, using the “word count” feature of Microsoft
Word, reveals that 52.9% of the words used in the Vinuya Decision’s
discussion on international law, which begins in page 24 and continues to the
end (2,869 out of 5,419 words), are copied without attribution from other
works.
The Vinuya Decision, therefore,
because of the severity of the plagiarism attending it, is the worst possible
context for the Majority to draw, in its Decision dated 12 October 2010 and in
its Resolution denying the Motion for Reconsideration, the following
conclusions:
1. that
plagiarism requires the element of “malicious intent”;
2. that
– calibrating its ruling in response to the outcry of the academic community
after the Majority Decision was issued – the rules against plagiarism
applicable to the academic community do not apply to judicial decisions;
3. that
the standard of attribution applicable to judicial decisions is effectively, no
standard at all – a judge cannot be guilty of plagiarism as understood by the
academic world, and neither is he liable for copying without attribution, even
from copyrighted materials;
4. that
this lack of liability extends as well to benefit lawyers in the submission of
their pleadings before courts; and
5. that on the whole, the Vinuya
Decision is the product of hard, honest, original work.
In the course of the resolution of the
Motion for Reconsideration, I have found myself counter-accused of having copied
the works of others without attribution. I have debunked each of these claims
and lay them bare in this Dissent. I have even proven that it was one of my
co-authored works that was copied without attribution being given to me and to
my co-authors. The theory propounded against me is that I cannot conclude that
the Vinuya Decision is partly a product of plagiarism unless I am
willing to call myself a plagiarist as well. I emphasize, however, my original
thesis – that a diligent and honest judge or researcher will never find
himself to have plagiarized, even unwittingly, to the same extent that
plagiarism occurred in the Vinuya Decision. Herein lies the safety of a
researcher – a habit of trying to give recognition where recognition is due.
Should any of my works, wherein I failed to make proper attribution, surface, I
will do what I have recommended that the author of the Vinuya Decision
do: acknowledge the wrong, apologize to the wronged, and correct the work. See pages 58 to
75 herein for a discussion on the counter-accusations leveled against me.
Irrespective of the outcome of my analysis, let it be
stated that this Dissent does not make any pronouncement regarding the
jurisdiction of this Court over the complaint for plagiarism against Justice
del Castillo. My esteemed colleague Justice Carpio is convinced that Congress
is the sole disciplining authority of all impeachable officers, including
Justices of the Supreme Court. He characterizes plagiarism as a betrayal of
public trust, and thus, “impeachment by Congress takes the place of
administrative disciplinary proceedings against impeachable officers as there
is no other power that can administratively discipline impeachable officers.”[2]
I.
The Flow of the Analysis in This Dissent
A.
Parameters
To allay any concern from members of the judiciary, I have
been very careful to underscore the limitations of my analysis of the Vinuya
Decision. My Dissent of 12 October 2010 is very clear:
In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.[3]
To be categorical, a judge or legal researcher cannot be guilty for using doctrines that have been incorporated into the mainstream and are standard terms of trade. Neither is a judge required to use quotation marks or blockquotes every time there is a reference to allegations in the pleadings of parties, or when he is discussing legal arguments using already accepted legal doctrines. It is when he ventures into using the original words of others, especially those of legal scholars, that he must be particularly careful. He cannot write to pass off the words of others, especially those of others’ pioneering works, as his own. To do so is dishonest. It has also been suggested that Justice del Castillo cannot be guilty of plagiarism as he never read the work of Mariana Salazar Albornoz. That argument is neither here nor there. At the very least, the words he copied were those of another in an important original analysis of the state of international law on rape.
B. Structure of the Technical Analysis in This
Dissent
The structure and rigidity of the Technical Analysis in
this Dissent is necessary to fulfill two purposes: (1) to enable the reader to
examine whether I have scientific and objective basis to conclude that severe
plagiarism characterizes the Vinuya Decision; and (2) to examine whether
I am willing to subject my work to the same standards to which I have subjected
the Vinuya Decision.
One interesting note. My professional record had been vetted by the Judicial and Bar Council prior to my appointment to this Court. My previous works – those of an academic and those of a pleader – are presently being, and, I expect will continue to be, thoroughly scrutinized. While those previous works form part of the basis of my appointment, inasmuch as they are proof of my competence and expertise, they cannot serve as a basis to determine whether I am now performing my duties as a judge satisfactorily. One can view the scrutiny as an unwarranted collateral attack on my record. This did not happen until my Dissent of 12 October 2010.
The first part of the Technical Analysis consists of new tables of comparison presenting more instances of plagiarism as they occur in the Vinuya Decision. Two of these tables deal with copied works that previously appeared in my earlier Dissent: A Fiduciary Theory of Jus Cogens, by Evan J. Criddle and Evan Fox-Decent, and Breaking the Silence: Rape as an International Crime by Mark Ellis; however, the entries for these tables present instances of plagiarism not discussed or presented in my Dissent of 12 October 2010. Following the tables are lists of violations of rules against plagiarism, each list item corresponding to one table entry.
Following the presentation of the tables, the process whereby plagiarism could have been committed in Vinuya is examined. The severe extent of plagiarism, which is already evident in the tables, is discussed further, followed by an analysis of the systematic commission of plagiarism in Vinuya. This analysis consists of the detailed dissection of specific parts of the Vinuya decision: the text of the body in pages 31-32, and the first paragraph of footnote 65. The research process purportedly used by the legal researcher of Vinuya is then broken down into separate steps that illustrate the decision points at which an honest and diligent researcher would have ensured that proper attribution to sources be given. This is then followed by a closer examination of the deletion of existing citations and the features of Microsoft Word relevant to the deletion of footnotes.
II.
Technical Analysis of Plagiarism in Vinuya
A.
More Plagiarism
Below are new tables of comparison
– excluding materials in tables already discussed in my earlier Dissent to the
majority Decision in AM 10-7-17-SC – of excerpts from the Decision in Vinuya vis-a-vis text from one (1) book
on international law, five (5) foreign law journal articles, and a copyrighted
report of the United States Congressional Research Service. While the degree of
seriousness of the offense of unattributed copying varies with the kind of
material copied, the extent of the copying conveys the level of honesty or
dishonesty of the work done with respect to the Vinuya Decision. The
extent of copying enumerated in these tables also renders incredible the claim
of mechanical failure, as well as the alleged lack of intent on the part of the
researcher to not give proper attribution.
The materials for comparison were first identified in the Motion for Reconsideration and in the letter of Dr. Peter B. Payoyo, a Filipino legal scholar residing in the Netherlands, addressed to the Chief Justice dated 28 October 2010. These excerpts were independently verified, and compared with the corresponding portions from the original works. In the course of independent verification, we came across three more unattributed copied works.
To aid an objective analysis of the
extent and manner of the plagiarism committed in the Vinuya Decision,
below are tables of comparison that will compare three written works: (1) the
plagiarized work; (2) the Vinuya Decision; and (3) the purported
“original” source analyzed or cited by the concerned authors and by the Vinuya
Decision. The left column pertains to the literary works allegedly
plagiarized by the legal researcher in the Vinuya
Decision. The middle column refers to the pertinent passage in the Vinuya Decision that makes unattributed
use of the copied work. According to the
Majority Resolution, these citations made to original sources (e.g. to the
international law cases being referenced to support a certain point) in the Vinuya
Decision are sufficient to refute the charges of non-attribution. To address
this claim, I have chosen to add a third column to present the text of the
source referred to in the nearest (location-wise and/or context-wise) citation
or attribution made in the Vinuya
Decision. This will allow us to determine whether the analysis, reference
and/or collation of original sources were those of the allegedly plagiarized
authors or are Vinuya originals. In addition, this three-column
presentation will also allow us to examine the claim being made by Justice del
Castillo that at least two of the authors whose works are allegedly plagiarized
in the Vinuya Decision themselves violated academic scholarship rules
against plagiarism.
TABLE
A:
Comparison of Evan J. Criddle & Evan Fox-Decent’s article in the Yale
Journal of International Law, entitled A
Fiduciary Theory of Jus Cogens (2009) and the Supreme Court’s 28 April 2010
Decision in Vinuya v. Executive Secretary.
|
|
The Allegedly Plagiarized
Work |
The Decision |
International Source Being Analyzed by
Criddle and Fox-Decent |
|
Evan
J. Criddle & Evan Fox-Decent, A
Fiduciary Theory of Jus Cogens, 34 Yale
J. Int'l L. 331 (2009). |
Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. |
||
|
1. |
...judges on
the Permanent Court of International Justice affirmed the existence of
peremptory norms in international law by referencing treaties contra bonos
mores (contrary to public policy) in a series of individual concurring and
dissenting opinions.10 10 For example, in the 1934
Oscar Chinn Case, Judge Schücking's influential dissent stated that neither
an international court nor an arbitral tribunal should apply a treaty
provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J.
(ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting). (p. 335 of Criddle and Fox-Decent) |
...Judges on
the Permanent Court of International Justice affirmed the existence of
peremptory norms in international law by referencing treaties contra bonos mores (contrary to public
policy) in a series of individual concurring and dissenting opinions. (For example, in the 1934 Oscar Chinn Case, Judge Schücking's
influential dissent stated that neither an international court nor an
arbitral tribunal should apply a treaty provision in contradiction to bonos
mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12)
(Schücking, J., dissenting). (p. 31, footnote 71 of Vinuya) |
...It is an essential principle of any court,
whether national or international, that the judges may only recognize legal
rules which they hold to be valid. There is nothing to show that it was
intended to disregard that legal principle when this Court was instituted, or
that it was to be obliged to found its decisions on the ideas of the parties–which
may be entirely wrong–as to the law to be applied in a given case…. The Court
would never, for instance, apply a convention the terms of which were
contrary to public morality. But, in my view, a tribunal finds itself in the
same position if a convention adduced by the parties is in reality null and
void, owing to a flaw in its origin. The attitude of the tribunal should, in
my opinion, be governed in such a case by considerations of international
public policy, even when jurisdiction is conferred on the Court by virtue of
a Special Agreement. Source: The Oscar Chinn Case (U.K. v. Belg.), 1934
P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (separate opinion of Judge
Schücking). |
|
2. |
While the ICJ
recently endorsed the jus cogens concept for the first time in its 2006
Judgment on Preliminary Objections in Armed Activities on the Territory of
the Congo (Congo v. Rwanda), it declined to clarify jus cogens's legal status
or to specify any criteria for identifying peremptory norms.67 67
Armed Activities on the Territory of the Congo, Jurisdiction of the Court and
Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of
Feb. 3, 2006), at 31-32, available at
http://www.icj-cij.org/docket/files/126/10435.pdf (last visited Mar. 31,
2009). (p. 346,
footnote 67 of Criddle and Fox-Decent) |
While the ICJ recently endorsed the jus cogens concept for the first time
in its 2006 Judgment on Preliminary
Objections in Armed Activities on the territory of the Congo (Congo v.
Rwanda), it declined to clarify jus
cogens’s legal status or to specify any criteria for identifying
peremptory norms. (Armed Activities on the Territory of the Congo,
Jurisdiction of the Court and Admissibility of the Application (Dem. Rep.
Congo v. Rwanda) (Judgment of February 3, 2006), at 31-32, available at
http://www.icj-cij.org/docket/files/126/10435.pdf. (p. 32, footnote 77 of Vinuya) |
64. ...The Court observes, however, as it has
already had occasion to emphasize, that “the erga omnes character of a
norm and the rule of consent to jurisdiction are two different things”...,
and that the mere fact that rights and obligations erga omnes may be
at issue in a dispute would not give the Court jurisdiction to entertain that
dispute. The same applies to the relationship between
peremptory norms of general international law (jus cogens) and the
establishment of the Court’s jurisdiction: the fact that a dispute relates to
compliance with a norm having such a character, which is assuredly the case
with regard to the prohibition of genocide, cannot of itself provide a basis
for the jurisdiction of the Court to entertain that dispute. Under the
Court’s Statute that jurisdiction is always based on the consent of the
parties. Source: Armed Activities on the Territory of the Congo (Dem.
Rep. Congo v. Rwanda), 2006 I.C.J. 6, 31-32 (Feb. 3). |
|
3. |
Similarly, the
European Court of Human Rights has addressed jus cogens only once, in
Al-Adsani v. United Kingdom, when it famously rejected the argument that jus
cogens violations would deprive a state of sovereign immunity.75 75 Shelton, supra note 3, at 309 (discussing Al-Adsani v. United
Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61). (p. 347 of Criddle and Fox-Decent) |
77 Similarly, the European Court
of Human Rights has addressed jus
cogens only once, in Al-Adsani v.
United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a
state of sovereign immunity. Al-Adsani
v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61) (p. 32, footnote 77 of Vinuya) |
61 While the Court accepts, on the basis of these
authorities, that the prohibition of torture has achieved the status of a
peremptory norm in international law, it observes that the present case
concerns… the immunity of a State in a civil suit for damages in respect of
acts of torture within the territory of that State. Notwithstanding the
special character of the prohibition of torture in international law, the
Court is unable to discern in the international instruments, judicial
authorities or other materials before it any firm basis for concluding that,
as a matter of international law, a State no longer enjoys immunity from
civil suit in the courts of another State where acts of torture are alleged…. Source: Al-Adsani v
United Kingdom,
App. No. 35763/97, 34 Eur. H.R. Rep. 11, par. 61 (2002)(21 Nov. 2001). |
TABLE B:
Comparison of Mark Ellis’s article entitled Breaking
the Silence: Rape as an International Crime (2006-2007) and the Supreme
Court’s 28 April 2010 Decision in Vinuya
v. Executive Secretary.
TABLE
C: Comparison of Robert McCorquodale’s
work, entitled The Individual and the
International Legal System,[4]
and Phoebe Okowa’s work, entitled Issues of Admissibility and
the Law on International Responsibility,[5]
both of which were published in Malcolm Evans’s book (International Law), and
the Supreme Court’s Decision in Vinuya v.
Executive Secretary, G.R. No. 162230, 28 April 2010.
TABLE D: Comparison of Mariana Salazar Albornoz’s article, Legal Nature and Legal Consequences of
Diplomatic Protection: Contemporary Challenges, and the Supreme Court’s
Decision in Vinuya et. al. v. Executive
Secretary, G.R. No. 162230, 28 April 2010.
|
|
The Allegedly Copied Work |
The Decision |
The Purported “Original” Source Cited by
the Concerned Authors and in the Vinuya Decision |
|
|
Mariana
Salazar Albornoz, Legal Nature and
Legal Consequences of Diplomatic Protection: Contemporary Challenges, 6 Anuario Mexicano de Derecho Internacional
377 (2006) |
Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. |
|
|
1. |
Nowhere is this position more clearly reflected than in the dictum of
the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis
Palestine Concessions Case: By taking up the case of one of its subjects and
by resorting to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for
the rules of international law. The question, therefore, whether the present
dispute originates in an injury to a private interest, which in point of
fact, is the case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of its subjects
before an international tribunal, in the eyes of the latter the State is sole
claimant.85 85 Mavrommatis Palestine Concessions case,
supra note 9, p. 12. The emphasis is ours. This traditional view was repeated by the PCIJ in the Panevezys-Saldutiskis Railway Case,
the Case Concerning the Payment of Various Serbian Loans issued in France,
Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at Chorzow,
Judgment of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The
ICJ has adopted it in the Reparation
for injuries suffered in the service of the United Nations Advisory
Opinion: ICJ Reports 1949, p. 174; the Nottebohm
Case (second phase) Judgment of April 6th, 1955: ICJ Reports 1955, p. 4
at p. 24; the Interhandel Case
(Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27)
and the Barcelona Traction Light and
Power Company, Limited case, supra note 6, at p. 32
par. 33. It has also been recognized by other international tribunals: see,
for example, Administrative Decision
No. V of the US-German Claims Commission. (p. 397 of Albornoz) |
Nowhere is this position more clearly reflected than in the dictum of
the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis
Palestine Concessions Case: By taking up the case of one of its subjects and
by resorting to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for
the rules of international law. The question, therefore, whether the present dispute
originates in an injury to a private interest, which in point of fact, is the
case in many international disputes, is irrelevant from this standpoint. Once
a State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant.56 56 PCIJ, Ser. A, No. 2, p. 11, at
16. This traditional view was
repeated by the PCIJ in the Panevezys-Saldutiskis
Railway Case, the Case Concerning the Payment of Various Serbian Loans
issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20;
and in the Case Concerning the Factory
at Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series
A No. 17. The ICJ has adopted it in the Reparation
for injuries suffered in the service of the United Nations Advisory
Opinion: ICJ Reports 1949, p. 174; the Nottebohm
Case (second phase) Judgment of April 6th, 1955: ICJ Reports 1955, p. 4
at p. 24; the Interhandel Case
(Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27)
and the Barcelona Traction Light and
Power Company, Limited case, (Belg. V. Spain), 1970 I.C.J. 3, 32 (Feb.
5). (p. 24 Body of Vinuya) |
By taking up
the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality
asserting its own right to ensure, in the person of its subjects, respect for
the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact, is the case in many international disputes,
is irrelevant from this standpoint. Once a State has taken up a case on
behalf of one of its subjects before an international tribunal, in the eyes
of the latter the State is sole claimant. The fact that Great Britain and
Greece are the opposing Parties to the dispute arising out of the Mavrommatis
concessions is sufficient to make it a dispute between two States within the
meaning of Article 26 of the Palestine Mandate. Source: Mavrommatis
Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A) No. 2, at
12 (Aug. 30). |
|
2. |
Under this
view, the considerations underlying the decision to exercise or not
diplomatic protection may vary depending on each case and may rely entirely
on policy considerations regardless of the interests of the directly-injured
individual, and the State is not required to provide justification for its
decision.90 90
See in this sense, Borchard E., Diplomatic
Protection of Citizens Abroad, New York, The Banks Law Publishing Co.,
1915, at VI. Also: G. Berlia, op. cit.
(note 86), pp. 63 y 64. (p. 398 of Albornoz) |
57 See Borchard,
E., Diplomatic Protection of Citizens Abroad at VI (1915). Under this view, the considerations
underlying the decision to exercise or not diplomatic protection may vary
depending on each case and may rely entirely on policy considerations
regardless of the interests of the directly-injured individual, and the State
is not required to provide justification for its decision. (p. 25,
footnote 57 of Vinuya) |
…The
citizen abroad has no legal right to require the diplomatic protection of his
national government. Resort to this remedy of diplomatic protection is solely
a right of the government, the justification and expediency of its employment
being a matter for the government’s unrestricted discretion. This protection
is subject in its grant to such rules of municipal administrative law as the
state may adopt, and in its exercise internationally to certain rules which
custom has recognized. Source: Edwin M. Borchard, The Diplomatic Protection of
Citizens Abroad or the Law of International Claims, vi
(1914). |
|
3. |
The ILC’s
First Reading Draft Articles on diplomatic protection have fully attached to
the traditional view on the legal nature of such institution. In this sense,
(i) they expressly state that “the right of diplomatic protection belongs to
or vests in the State”, a statement which “gives recognition to the Vattelian
notion that an injury to a national is an indirect injury to the State”;96
(ii) they affirm its discretionary nature by clarifying that diplomatic
protection is a “sovereign prerogative” of the State;97 and
stressing that the state “has the right to exercise diplomatic protection on
behalf of a national. It is under no duty or obligation to do so.”98 96 ILC First Reading Draft Articles on
Diplomatic Protection, supra
note 13, par. 60, Commentary to Draft Article 2, par. (1); see also,
Commentary to Draft Article 1, par. (3), and text of Draft Article 2. 97
Report of the International Law Commission on the work of its 50th session, supra note 13, par. 77. 98 ILC First Reading Draft Articles on
Diplomatic Protection, supra
note 2, commentary to Draft Article 2, par. (2). (p. 400 of Albornoz) |
The International Law
Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support
this traditional view. They (i) state that “the right of diplomatic
protection belongs to or vests in the State,”59 (ii) affirm its
discretionary nature by clarifying that diplomatic protection is a “sovereign
prerogative” of the State;60 and (iii) stress that the state “has
the right to exercise diplomatic protection on behalf of a national. It is
under no duty or obligation to do so.”61 59 ILC First Reading Draft Articles on
Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC Report, A/53/10 (F),
par. 60, Commentary to Draft Article 2, par. (1); see also, Commentary to
Draft Article 1, par. (3), and text of Draft Article 2. 60 Report of
the International Law Commission on the work of its 50th session, supra note
60, par. 77. 61 ILC First Reading Draft Articles on
Diplomatic Protection, supra
note 60, commentary to Draft Article 2, par. (2). (p. 25-26 Body of Vinuya) |
60. The
texts of the draft articles on diplomatic protection with commentaries
thereto adopted on first reading by the Commission at its fifty-sixth
session, are reproduced below. … Article 2
stresses that the right of diplomatic protection belongs to or vests in the
State. It gives recognition to the Vattelian notion that an injury to a
national is an indirect injury to the State.25… ... A State has
the right to exercise diplomatic protection on behalf of a national. It is
under no duty or obligation to do so. The internal law of a State may oblige
a State to extend diplomatic protection to a national,29 but
international law imposes no such obligation.... Source: Text of the Draft Articles on Diplomatic Protection
Adopted by the Commission on First Reading, Rep. of the Int'l. Law
Comm'n, 56th Sess., 3 May-4 June and 5 July-6 August 2004, U.N. Doc. A/59/10
at 22-28, par. 60; GAOR, 59th Sess., Supp. 10 (2004). |
|
4. |
…Special
Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a
provision under which States would be internationally
obliged to exercise diplomatic protection in favour of their nationals
injured abroad by grave breaches to their jus
cogens norms, if the national so requested and if he/she was not afforded
direct access to an international tribunal.116 116
The proposed article read as follows: “Article [4] 1. Unless the injured
person is able to bring a claim for such injury before a competent
international court or tribunal, the State of his/her nationality has a legal
duty to exercise diplomatic protection on behalf of the injured person upon
request, if the injury results from a grave breach of a jus cogens norm attributable to another State. 2. The state of
nationality is relieved of this obligation if: (a) The exercise of diplomatic
protection would seriously endanger the overriding interests of the State
and/or its people ; (b) Another State exercises diplomatic protection on
behalf of the injured person; (c) The injured person does not have the
effective and dominant nationality of the State. States are obliged to
provide in their municipal law for the enforcement of this right before a
competent domestic court or other independent national authority.” Dugard, J. First report on diplomatic
protection, supra note 13, par. 74. (p. 404 of Albornoz) |
62 …Special
Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a
provision under which States would be internationally
obliged to exercise diplomatic protection in favor of their nationals
injured abroad by grave breaches to jus
cogens norms, if the national so requested and if he/she was not afforded
direct access to an international tribunal. The proposed article reads as
follows: Article
[4] 1. Unless the injured person is able to bring a claim for such injury
before a competent international court or tribunal, the State of his/her
nationality has a legal duty to exercise diplomatic protection on behalf of
the injured person upon request, if the injury results from a grave breach of
a jus cogens norm attributable to
another State. 2. The state of nationality is relieved of this obligation if:
(a) The exercise of diplomatic protection would seriously endanger the
overriding interests of the State and/or its people ; (b) Another State
exercises diplomatic protection on behalf of the injured person; (c) The
injured person does not have the effective and dominant nationality of the
State. States are obliged to provide in their municipal law for the
enforcement of this right before a competent domestic court or other
independent national authority.” Special Rapporteur John Dugard, appointed in
1999, First Report on Diplomatic Protection, par. 74 (UN Doc A/CN.4/506
(March 7, 2000) and Corr. 1 (June 7, 2000) and Add. 1 (April 20, 2000). (p. 26, footnote 62 of Vinuya) |
74. The
discretionary power of the State to intervene on behalf of its national is
considered in the commentary on article 4. Article 4 1. Unless
the injured person is able to bring a claim for such injury before a
competent international court or tribunal, the State of his/her nationality
has a legal duty to exercise diplomatic protection on behalf of the injured
person upon request, if the injury results from a grave breach of a jus
cogens norm attributable to another State. 2. The
State of nationality is relieved of this obligation if: (a) The
exercise of diplomatic protection would seriously endanger the
overriding interests of the State and/or its people; (b) Another
State exercises diplomatic protection on behalf of the injured person; (c) The
injured person does not have the effective and dominant nationality of the
State. 3. States
are obliged to provide in their municipal law for the enforcement of this
right before a competent domestic court or other independent national
authority. Source: Special
Rapporteur on Diplomatic Protection, First Rep. on Diplomatic Protection,
Int’l. Law Comm’n, UN Doc. A/CN.4/506, at 27, par. 74 (7 March 2000) (by John
R. Dugard). |
|
5. |
…the proposal
was not accepted by the ILC, as “the question was still not ripe for
treatment” because “the State practice and their opinio juris still hadn’t evolved in such direction.”120 120
Official Records of the General
Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000),
Report of the ILC on the work of its 52nd session, p. 131. (p. 405 of Albornoz) |
62
…the proposal was not accepted by the ILC, as “the question was still not
ripe for treatment” because “the State practice and their opinio juris still hadn’t evolved in
such direction.” Official Records of
the General
Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000),
Report of the ILC on the work of its 52nd session, p. 131. (p.26, footnote 62 of Vinuya) |
456. The
Special Rapporteur recognized that he had introduced article 4 de lege ferenda. As already indicated,
the proposal enjoyed the support of certain writers, as well as of some
members of the Sixth Committee and of ILA; it even formed part of some
constitutions. It was thus an exercise in the progressive development of
international law. But
the general view was that the issue was not yet ripe for the attention of the
Commission and that there was a need for more State practice and,
particularly, more opinio juris
before it could be considered. Note: p. 131 of
the Report does not refer to the topic of diplomatic protection. Rather, the
heading of the page reads “Other Decisions and Conclusions of the
Commission.” Source: Rep. of the
Int’l. Law Comm’n, 52nd Sess., 1 May - 9 June and 10 July - 18 August 2000,
U.N. Doc. A/55/10 at 78-79, par. 456; GAOR, 55th Sess., Supp. 10 (2000). |
|
6. |
...some States
have, indeed, incorporated in their municipal law a duty to exercise
diplomatic protection in favor of their nationals…. Various other States have also included such a “duty to exercise
diplomatic protection” under their domestic laws,130
but
their enforceability is also, to say the least, questionable (in many cases
there are not even courts competent to review the decision). 130 Dugard
identifies this “obligation to exist in the Constitutions of Albania,
Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia,
Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People’s Democratic
Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania,
Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey,
Ukraine, Viet Nam and Yugoslavia, albeit with different reaches. J. Dugard,
First Report on diplomatic protection, supra note 13, par. 80.
(p. 406 of Albornoz) |
62
…some States have, indeed, incorporated in their municipal law a duty to exercise diplomatic protection in favor
of their nationals. (Dugard identifies this “obligation to exist in the
Constitutions of Albania, Belarus, Bosnia and Herzegovina, Bulgaria,
Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy,
Kazakhstan, Lao People’s Democratic Republic, Latvia, Lithuania, Poland,
Portugal, Republic of Korea, Romania, Russian Federation, Spain, the former
Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet Nam and Yugoslavia,
albeit with different reaches. J. Dugard, First Report on diplomatic
protection, supra note 13, par. 80.) (p. 26, footnote 62 of Vinuya) |
80.
…Constitutional provisions in a number of States… recognize the right of the
individual to receive diplomatic protection for injuries suffered abroad.
These include: Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia,
China, Croatia,
Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People’s Democratic
Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania,
Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey,
Ukraine, Viet Nam and Yugoslavia…. Source: Special
Rapporteur on Diplomatic Protection, First Rep. on Diplomatic Protection,
Int’l. Law Comm’n, UN Doc. A/CN.4/506, at 30, par. 80 (7 March 2000) (by John
R. Dugard). |
|
7. |
…but their
enforceability is also, to say the least, questionable (in many cases there
are not even courts competent to review the decision). Moreover, their
existence in no way implies that international law imposes such an
obligation,131 simply suggesting “that certain States consider
diplomatic protection for their nationals abroad to be desirable.”132 131 ILC First Reading Draft Articles on
Diplomatic Protection, supra note 2, Commentary to Draft Article 2, par
(2). This was recognized expressly in the Barcelona Traction case, supra note 6. 132
Dugard, J. First report on diplomatic protection, supra note 13, par. 81…. (p. 406-407 of
Albornoz) |
62
..., but their enforceability is also, to say the least, questionable (in
many cases there are not even courts competent to review the decision).
Moreover, their existence in no way implies that international law imposes
such an obligation, simply suggesting “that certain States consider
diplomatic protection for their nationals abroad to be desirable” (ILC First Reading Draft Articles on
Diplomatic Protection, supra note 2, Commentary to Draft Article 2, par
(2)). (p. 26,
footnote 62 of Vinuya) |
(2) A State
has the right to exercise diplomatic protection on behalf of a national. It
is under no duty or obligation to do so. The internal law of a State may
oblige a State to extend diplomatic protection to a national,29
but international law imposes no such obligation. The position was clearly
stated by the International Court of Justice in the Barcelona Traction case: … A proposal
that a limited duty of protection be imposed on the State of nationality was
rejected by the Commission as going beyond the permissible limits of
progressive development of the law.31 Source: Commentary to the Text of the Draft Articles on
Diplomatic Protection Adopted by the Commission on First Reading, Rep. of
the Int'l. Law Comm’n, 56th Sess., 3 May-4 June and 5 July-6 August 2004,
U.N. Doc. A/59/10 at 28, par. 60; GAOR, 59th Sess., Supp. 10 (2004). |
TABLE E: Comparison of Elizabeth
Prochaska’s article, Testing the Limits
of Diplomatic Protection: Khadr v. The Prime Minister of Canada,[6]
and the Supreme Court’s Decision in Vinuya
v. Executive Secretary, G.R. No. 162230, 28 April 2010.
|
|
The Allegedly Copied Work |
The Decision |
International Source Being Analyzed By
Prochaska |
|
|
Elizabeth
Prochaska, Testing the Limits of Diplomatic Protection: Khadr v. The Prime
Minister of Canada (2009). |
Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. |
|
|
|
Instead, Draft
Article 19, entitled ‘Recommended Practice,’ suggests that states should be
encouraged to exercise diplomatic protection ‘especially when significant
injury occurred to the national. Drafted in soft language, the Article does
not purport to create any binding obligations on the state. (p. 397 of Prochaska) |
62 …Official Records of the General Assembly:
55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of
the ILC on the work of its 52nd session, p. 131. Instead, Draft
Article 19, entitled ‘Recommended Practice,' suggests that states should be
encouraged to exercise diplomatic protection ‘especially when significant
injury occurred to the national. Drafted in soft language, the Article does
not purport to create any binding obligations on the state. (Footnote 62 of Vinuya) |
Note: The Report of the International Law Commission
on the Work of its Fifty-Second Session, and the Special Rapporteur’s First on Diplomatic Protection, which are
the nearest in location and in context to the passage, does not
contain a discussion on Draft Article 19. See pp. 72-85 and 27-34
respectively. |
TABLE F: Comparison of Larry Niksch’s Report, Japanese Military’s Comfort Women, 10 April 2006,[7]
and the Supreme Court’s Decision in Vinuya
et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.
|
|
The Allegedly Copied Work |
The Decision |
Source Being Used By Niksch |
|
|
Larry Niksch, Japanese Military’s Comfort Women, 10 April
2006. |
Vinuya v.
Executive Secretary, G.R. No. 162230, 28 April 2010. |
|
|
1. |
The Asian Women’s Fund announced three programs
for former comfort women who applied for assistance: (1) an atonement fund
that paid two million yen (approximately $20,000) to each former comfort
woman; (2) medical and welfare support programs for former comfort women,
paying 2.5-3 million yen ($25,000- $30,000) for each former comfort woman;
and (3) a letter of apology from the Japanese Prime Minister to each
recipient woman.[8] [FN8]. From the Asian Women’s Fund website,
March 16, 2006. (paragraph 11 of Niksch) |
The
AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying ¥2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying ¥2.5-3 million ($25,000-$30,000) for each woman;
and (3) a letter of apology from the Japanese Prime Minister to each woman. (p.
17, Body of Vinuya) |
The projects
of atonement involved providing former comfort women with 2 million yen per
person as atonement money donated by Japanese citizens, delivering a letter
of apology from the Japanese Prime Minister, and offering goods and services
under medical and welfare support projects financed by the Japanese
government. Note: The passage in
Vinuya does not contain a footnote.
The following source is the nearest citation that may reasonably be taken as
within the context of the discussion in Vinuya. http://web.archive.org/web/20060301213211/http://www.awf.or.jp/english/project_atonement.html |
|
2. |
...As of March 2006, the Asian Women’s Fund provided 700 million yen
(approximately $7 million) for these programs in South Korea, Taiwan, and the
Philippines; 380 million yen (approximately $3.8 million) in Indonesia; and
242 million yen (approximately $2.4 million) in the Netherlands. [9] (paragraph 12 of Niksch) |
...As of March 2006,
the AWF provided ¥700 million yen (approximately $7 million) for these
programs in South Korea, Taiwan, and the Philippines; ¥380 million yen
(approximately $3.8 million) in Indonesia; and ¥242 million yen
(approximately $2.4 million) in the Netherlands. (p. 17, Body of Vinuya) |
In order to
fulfill its moral responsibility in all sincerity, the Japanese government
decided to disburse about 700 million yen over a five-year period for medical
and welfare support projects aiding former comfort women in the Philippines,
the Republic of Korea and Taiwan. ... Note: The passage in
Vinuya does not contain a footnote.
The following source is the nearest citation that may reasonably be taken as
within the context of the discussion in Vinuya. http://web.archive.org/web/20060301213211/http://www.awf.or.jp/english/project_atonement.html |
|
3. |
On January 15, 1997 the Asian Women’s Fund and
the Philippine government signed a Memorandum of understanding for medical
and welfare support programs for former comfort women. Over the next five
years, these were implemented by the Philippine government’s Department of
Social Welfare and Development. (paragraph 19 of Niksch) |
On January 15, 1997 the AWF and the Philippine
government signed a Memorandum of Understanding for medical and welfare
support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development. (p.
17, Body of Vinuya) |
The government
of the Philippines and the Asian Women’s Fund signed a Memorandum of
Understanding on January 15, 1997…. The Philippine
government’s Department of Social Welfare and Development implemented the
projects over a period of five years…. Note: The passage in
Vinuya does not contain a footnote.
The following source is the nearest citation that may reasonably be taken as
within the context of the discussion in Vinuya. http://web.archive.org/web/20060301213211/http://www.awf.or.jp/english/project_atonement.html |
TABLE G: Comparison of James Ladino’s article, Ianfu: No Comfort Yet for Korean Comfort
Women and the Impact of House Resolution 121 and the Supreme Court’s
Decision in Vinuya v. Executive
Secretary, G.R. No. 162230, 28 April 2010.
Violations of
Rules Against Plagiarism in the Vinuya Decision
Below
are violations of existing rules against plagiarism as can be found in the Vinuya
Decision, in addition to violations earlier enumerated in my Dissent:
A.1 A passage from the article of Criddle and Fox-Decent was copied verbatim, including the footnote. There are no quotation marks to indicate that this important conclusion from the article and the example to illustrate it, which were discussed in the corresponding footnote, are not the ponente’s own. No attribution to Criddle and Fox-Decent was made.
A.2 Similar to A.1, Criddle and Fox-Decent’s conclusion was copied word for word, including the corresponding footnote, which was enclosed by parentheses and placed immediately after the sentence to which it corresponds. No attribution to Criddle and Fox-Decent was made.
A.3 Similar to A.1 and A.2, this sentence from the article was copied verbatim, including its corresponding footnote. No attribution to Criddle and Fox-Decent was made.
B.1 Save for a few words which were intentionally rearranged, the entire paragraph was lifted verbatim from Ellis’s discussion on rape as an international crime. Two citations of cases from Ellis were omitted. No attribution to Ellis was made.
B.2 Ellis’s identification of Article 3 of the 1949 Geneva Conventions as a general authority on rape as a violation of the laws of war, and his summation thereof, was lifted word for word. His footnote was also copied, including the intratext reference “supra note 23,” enclosed in parentheses and inserted after the corresponding text. No attribution to Ellis was made.
B.3 Ellis’s summary and analysis of Article 27 of the Fourth Geneva Convention was lifted word for word. No attribution to Ellis was made.
B.4 Ellis’s conclusion regarding Protocol I of the Geneva Convention was appropriated, without any attribution to Ellis. Ellis’s footnote was again copied. No attribution to Ellis was made.
C.1 McCorquodale’s analysis of individual claims within the international legal system was copied word for word and inserted after the introductory clause “In the international sphere” in Vinuya. The footnote McCorquodale appended to his analysis of individual claims (i.e. the sentences copied in C.1.) is not present. No attribution to McCorquodale was made.
C.2 This item refers to the footnote attached to the copied sentence in C.1. It is composed of two instances of copying stitched together: two sentences of McCorquodale, taken from the paragraph directly preceding his analysis of individual claims in the international legal system, and the footnote corresponding to the PCIJ Decision quoted in the second of the said two sentences. No attribution to McCorquodale was made.
C.3 The conclusion Okowa reached was copied in footnote 63 of Vinuya, but Okowa’s reference to the cases she cited in her analysis was omitted and the context of her conclusion (on the current standing of general international law with regard an enforceable legal duty of diplomatic protection) was removed. No attribution to Okowa was made.
C.4 McCorquodale’s discussion of the case Abassi v. Secretary of State was copied
without any citation of his essay or the international law book in which it was
published. No attribution to McCorquodale was made.
C.5 The order of sentences were reversed, but
the conclusion in Okowa’s essay was copied, and as well as her discussion of
the case Kaunda v. President of the
Republic of South Africa. No attribution to Okowa was made.
D.1 Albornoz’s summary and analysis was copied word for word in the body of the Decision on page 24. No indication was given that this was not the ponente’s original analysis, and no attribution to Albornoz was made.
D.2 The elucidation of Albornoz regarding what she calls the traditional view on the discretion of states in the exercise of diplomatic protection was copied into footnote 57 of the Vinuya Decision. Albornoz’s citation of Borchard was used as a reference in the same footnote, but Albornoz was bypassed completely.
D.3 Albornoz’s summation of the ILC’s First Reading Draft Articles on diplomatic protection was copied with some modifications: the second half of the first sentence from Albornoz was removed and instead replaced with “fully support this traditional view” in an apparent effort to link this summary to the previous instance of copying (table entry D.2.). Minor edits were made to Albornoz’s summary to streamline the flow of the second copied sentence. No attribution to Albornoz was made.
D.4 Albornoz’s summation of Dugard’s proposal was lifted word for word and used in footnote 62 of Vinuya. The footnote Albornoz attached to this summation, a quotation of Albornoz’s cited source, was inserted directly after the copied summation. No attribution to Albornoz was made.
D.5 The conclusion reached by Albornoz regarding the rejection of Dugard’s proposal was copied exactly, even with regard to the portions of the Official Records of the General Assembly that Albornoz quoted. No attribution to Albornoz was made.
D.6 The major part of a sentence from Albornoz was copied and attached to the transition phrase “In addition” to continue the pastiche of copied sentences in footnote 62 of Vinuya. The footnote of Albornoz regarding Dugard was inserted immediately after and enclosed in parentheses. Note that the inline text citation, “supra note 13, par. 80” in Albornoz’s footnote 130 was copied as well. No attribution to Albornoz was made.
D.7 Continuing
from the instance of copying in D.6., the second half of a sentence in Albornoz
was used as what is apparently an incomplete sentence (beginning with: “, but
their enforceability...”) in footnote 62 of Vinuya. The next sentence
was also copied, and its corresponding footnote enclosed in parentheses and
inserted immediately after it. While the Decision cites
one of the same sources Albornoz cited (ILC First Reading Draft Articles on
Diplomatic Protection), no attribution is made to Albornoz for the excerpt,
or to Dugard, whom Albornoz cited for the quoted portion.
E.1 An excerpt from the third paragraph of Prochaska is reproduced verbatim in footnote 62 of page 26 of the Decision. There were no quotation marks or attribution to Prochaska to indicate that such was not the ponente’s analysis, but Prochaska’s.
F.1 A sentence from paragraph 11 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made.
F.2 An excerpt from paragraph 12 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made.
F.3 An excerpt from paragraph 19 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made.
G.1 An excerpt from page 344 of Ladino was reproduced without quotation marks in pages 9 to 10 of the body of the Decision. The phrase “women who had filed” was changed to “comfort women.”
G.2 An excerpt from page 345 of Ladino was reproduced without quotation marks in page 12 of the body of the Decision. The two sentences in the footnote from Ladino were combined, but the words were reproduced verbatim.
G.3 An excerpt from page 345 of Ladino is reproduced verbatim in page 12 of the body of the Decision. Part of Ladino’s discussion was reproduced verbatim in footnote 32 of the Vinuya Decision, with no attribution to Ladino.
G.4 The first part of the paragraph in page 345 of Ladino was reproduced verbatim. However, the latter part of Ladino’s explanation, (stating that while the judgment against Japan was not legally binding, it still “cast Japan in the shadow of moral reproach”) was omitted. There was no attribution to Ladino.
G.5 An excerpt from page 346 of Ladino, along with two footnotes, was reproduced verbatim in page 12 of the Decision. No attribution to Ladino was made.
G.6 Ladino’s discussion in page 350 and the corresponding footnotes were reproduced verbatim in page 13 of the Decision. No attribution to Ladino was made.
B. The Process of the Commission of
Plagiarism in the Vinuya Decision
A careful reading of the Vinuya Decision reveals that it is unlike other decisions issued by this Court, except perhaps for the case of Ang Ladlad LGBT Party v. Commission on Elections, which Justice del Castillo likewise penned. The footnotes in Vinuya read like those found in theses of international law scholars, where one discursive footnote can be so extensive as to occupy three-fourths of a page (see footnotes 62, 63, and 65). An honest researcher for a Philippine judge, after painstakingly developing a perspective on an international legal issue by reading the works of scholars who have documented the debate, would deliberately refer to the works of such scholars, and not transform their works into his own.
Justice del Castillo’s researcher not only contends that accidental deletion is the sole reason for the missing footnotes, but also that their office subsequently went over the Decision “sentence by sentence” and concluded that no plagiarism was committed at all. However, the rearrangement of the sentences lifted from the original work, the mimicking of the original work’s use of footnotes, the subsequent back and forth copying and pasting of such footnotes – these acts belie mere negligence. The following analysis shows objective plagiarism viewed through three lenses: extent, deliberateness, and effect.
The massiveness and frequency with which instances of unattributed copying occur in Vinuya highlight the extent of the plagiarism. Clever transpositions of excerpts to make them flow according to the researcher’s transition phrases are clearly devices of a practiced plagiarist, which betray the deliberateness of every single act. The plagiarism in Vinuya will also be scrutinized on the basis of its effect, especially in light of its commission in a judicial decision. The rationale for such a thematic presentation will then be discussed in a succeeding section, which deals with evaluating plagiarism.
1. The extent of unattributed copying belies inadvertence.
In the tables outlined above, as well as in the analysis in my Dissent dated 12 October 2010, it can be seen that the researcher of Justice del Castillo failed to make the necessary attribution twenty-three (23) times in the body of the Vinuya Decision; the works whose texts were used without attribution include several copyrighted journal articles, essays from a book on international law, and one congressional report of the United States. There were thirty-six (36) missing citations in the footnotes, including twelve (12) citations missing from footnote 65 alone. This adds up to a total of fifty-nine (59) missing citations. The sheer number of missing citations is related to the length and volume of the footnotes and discussions, some of which Justice del Castillo himself admitted to be unnecessary.
The quantity of text copied without attribution is most concentrated in pages 12 to 13, which deal with actions taken in the pursuit of justice for the comfort women, and in pages 24 to 32, which appear under the section heading The Philippines is not under any international obligation to espouse petitioners’ claims. In the latter section, the discussion and analysis appearing on pages 24 (insofar as the section after the start of the international law discussion is concerned), 28 and 31 in particular would be significantly impaired were the unattributed portions of texts to be removed: there would be no words left in the instance of page 24; the entirety of the discursive footnote on page 28 would be reduced to one sentence and its attendant citations; three sentence fragments, and no footnotes, would remain on page 31.
In pages 24 to 32, out of a total of thirteen (13) discursive footnotes, eleven (11) of these are comprised wholly of material copied without attribution, and yet another one – footnote 69 – contains text that was copied without attribution as well. The writer of the Vinuya Decision displayed meticulous attention to detail in reproducing the citations to international judicial decisions, publications, and other such references in these footnotes – citations that originally appeared in the copied works – but completely bypassed the copied works themselves, thereby appropriating the analysis, processing, and synthesizing of information, as well as the words, of the writers whose works were copied.
On its face, the sheer volume of portions copied, added to the frequency with which citations to the plagiarized works were omitted while care was taken to retain citations to the sources cited by the plagiarized works, reveal that the plagiarism committed cannot logically be anything other than deliberate.
2. Systematic
commission of plagiarism demonstrates deliberateness.
In pages twelve (12) to thirteen (13) of Vinuya, sentences from the body of Ladino’s article were interspersed with Ladino’s footnotes, without a single attribution to Ladino (please refer to Table G). Sentences from Ladino’s article were copied into footnote 32 of Vinuya, while the immediately succeeding sentence was again copied to form part of the body of Vinuya. The cutting of sentences from Ladino’s work and the patching together of these pieces to form a mishmash of sentences negate the defense of inadvertence, and give the reader the impression that the freshly crafted argument was an original creation.
The work of Criddle and Fox-Decent was subjected to a similar process. This process is dissected in the following list of instances ordered according to how they appear in pages 31 to 32 of the body of the Decision:
a. Detailed
analysis of ‘patchwork plagiarism’ in the body of Vinuya, pp. 31-32:
1. Page 31, par. 2: Early strains of the jus cogens doctrine
have existed since the 1700s,[71] but peremptory norms
began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International
Law.[72]
[72] Verdross argued that certain
discrete rules of international custom had come to be recognized as having a
compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of international jus
cogens encountered skepticism within the legal academy. These voices of
resistance soon found themselves in the minority, however, as the jus cogens
concept gained enhanced recognition and credibility following the Second World
War. (See Lauri Hannikainen, Peremptory Norms
(Jus cogens) in International Law: Historical Development, Criteria,
Present Status 150 (1988) (surveying legal scholarship during the period
1945-69 and reporting that “about eighty per cent [of scholars] held the
opinion that there are peremptory norms existing in international law”).
This sentence, together with footnote 72 in Vinuya, is part of one
continuous discussion by Criddle and Fox Decent, and copied verbatim. The two
authors rightfully attributed the historical data to Lauri Hannikainen, but the
conclusion on established jus cogens principles is wholly their own.
2. Page 31, par. 2: The recognition of jus cogens gained even
more force in the 1950s and 1960s with the ILC’s preparation of the Vienna
Convention on the Law of Treaties (VCLT).[73] Though there was a
consensus that certain international norms had attained the status of jus
cogens…[74]
The first sentence and its subsequent clause are lifted verbatim from
the article. Footnotes 73 and 74 are Criddle and Fox-Decent’s analysis of how
international “minimum requirements” form evidence of jus cogens. The paragraph
was broken down, then rearranged in Vinuya.
3. Page 31, par. 2: Though there was a consensus that certain
international norms had attained the status of jus cogens,[74] the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.
Aside from copying the first clause in the sentence, which forms part
of the premise, the conclusion of Criddle and Fox-Decent was likewise copied.
4. Page 32, par. 1: After an extended debate over these and other
theories of jus cogens, the ILC concluded ruefully in 1963 that “there
is not as yet any generally accepted criterion by which to identify a general
rule of international law as having the character of jus cogens.”[75]
After copying the sentence and footnote in No. 4 above, three
sentences were omitted from the article, then this sentence in No. 5 was also
copied. In the body of the work, the two sentences immediately following this
statement pertaining to the conclusion of the International Law Commission were
again omitted.
5. Page 32, par. 1: In a commentary accompanying the draft
convention, the ILC indicated that “the prudent course seems to be to x x x
leave the full content of this rule to be worked out in State practice and in
the jurisprudence of international tribunals.”[76]
This sentence was conjoined with the sentence above; footnotes 75 and
76 were also copied. The net effect is that this paragraph was spliced
together, sentence by sentence, from Criddle and Fox-Decent’s work.
A similar method of splicing was used extensively in the footnotes of the Decision as well. It is most evident in footnote 65, the longest discursive footnote in Vinuya. This portion copied heavily from the article of Dr. Mark Ellis entitled “Breaking the Silence: Rape as an International Crime.” To illustrate, the first paragraph of footnote 65 is broken down and scrutinized by sentence, following the original sequence in the Decision.
b.
Detailed analysis of ‘patchwork plagiarism’ in paragraph 1, footnote 65 of
Vinuya:
1.
Sentences 1 and 2: 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.
These
are the opening sentences from the second paragraph on page 227 of the journal
article. Ellis cites the treaty between the United States and Prussia as his
own example, in a footnote. In Vinuya, this particular citation
is copied, enclosed in parentheses, and became the sixth and seventh sentences
of footnote 65.
2.
Sentence 3: But modern-day sensitivity to the crime of rape did not emerge until
after World War II.
This
is the sixth sentence in the same paragraph in Ellis’ article as discussed
above. It is transposed verbatim, and became the second sentence in Vinuya.
3.
Sentences 4 and 5: In the Nuremberg Charter, the word rape was not mentioned. The
article on crimes against humanity explicitly set forth prohibited acts, but
rape was not mentioned by name.
The
clauses “After World War II, when the Allies established the Nuremberg
Charter…” was deleted. This particular sentence is Ellis’ own conclusion
regarding the “Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis,” but there was no attribution to Ellis, only a
citation of the agreement, along with Ellis’s other footnotes, at the end of
the paragraph.
4.
Sentences 6 and 7: (For example, the Treaty of Amity and Commerce between Prussia and
the United States provides that in time of war all women and children “shall not
be molested in their persons.” The Treaty of Amity and Commerce, Between his
Majesty the King of Prussia and the United States of America, art. 23, Sept.
10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l Agreements Of The U.S. 78,
85.
This
is the citation originally corresponding to the first and second sentences on
page 227 of Ellis’s article. This portion was copied in Vinuya,
this time placed at the end of the paragraph and enclosed in parentheses.
5.
Sentence 8: The 1863 Lieber Instructions classified rape as a crime of “troop
discipline.”
Originally
the second sentence in Ellis’s paragraph, this was transposed to the eighth.
Its corresponding footnote in Ellis was lifted verbatim, enclosed in
parentheses, then inserted into the paragraph in Vinuya, as the ninth sentence:
“(Mitchell, The Prohibition
of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying
the Doctrine, 15
Duke J. Comp. Int’l. L. 219, 224).”
6.
Sentence 10: It specified rape as a capital crime punishable by the death penalty.
Originally
the fourth sentence in Ellis’ article, this was transposed, and its
corresponding footnote was copied: “(Id. at
236).”
7.
Sentence 11: The 1907 Hague Convention protected women by requiring the protection
of their “honour.”
The
sentence was copied, and its corresponding footnote was lifted verbatim,
enclosed in parentheses, and placed at the end of the paragraph. Ellis’s
attribution to the Yale Law website where the pertinent law may be found was
omitted, leaving only the following: (“Family honour and rights, the lives of
persons, and private property, as well as religious convictions and practice,
must be respected.” Convention (IV) Respecting the Laws & Customs of War on
Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December
11, 1946 entitled, “Affirmation of the Principles of International Law
recognized by the Charter of the Nürnberg Tribunal”; General Assembly document
A/64/Add.1 of 1946”.
8.
Sentence 13: See Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S.
279.
This
is originally Ellis’s citation, used to support his observation that there was
no express mention of “rape” in the Nuremberg Charter. It was enclosed in
parentheses and relegated to the end of the paragraph in Vinuya.
9.
Sentence 14: Article 6(c) of the Charter established crimes against humanity as
the following:
CRIMES AGAINST HUMANITY: namely, murder,
extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war, or persecutions on
political, racial or religious grounds in execution of or in connection with
any crime within the Jurisdiction of the Tribunal, whether or not in violation
of the domestic law of the country where perpetrated.
This
was lifted from page 227 of Ellis’s work. Pages 227 to 228 of the said work,
pertaining to the discussion on rape were substantially copied. Insertions were
made for Ellis’s own footnotes.
The conscious thought required for the act of cutting and pasting the original author’s footnotes onto the precise spot where the copied sentences ended contradicts the account of inadvertence. There is consistent correspondence between the sentences copied to the footnote copied. In the example above, the act of encapsulating Ellis’ footnotes in parentheses show further that in Vinuya there was a conscious appropriation of Ellis’s sources in a usage that is substantially similar to what appears in his article. This allegedly inadvertent copying of Ellis’s footnotes occurred no less than twelve (12) times in footnote 65 alone.
3. Research
steps purportedly followed in the drafting of Vinuya cast doubt on inadvertence.
The following is a recreation of the step-by-step research procedure followed by many offices in the research and crafting of judicial decisions. It is based on the account given by the researcher of the Vinuya Decision of her own experiences while working on the case. This detailed breakdown is made in order to show the exact number of actions which must be made in order to input a citation, if indeed it was intentionally inputted. A recreation of the steps necessary to delete a citation is also made to show that the aggregate number of actions needed to erase each and every citation missing in Vinuya is so high that the underlying cause could not have been mere inadvertence.
Step 1:
a. First, using an
internet-based search engine, which could be a free search service like
Google’s, or a paid service like Westlaw’s, the researcher would have typed in
key phrases like “erga omnes,”
“sexual slavery,” or other such terms relevant to the subject matter.
b. For some researchers, this is just a preliminary step, as they would then pick and choose which articles to read and which to discard. The researcher in Vinuya, however, claimed that she purposely read all the materials available through this search.[8]
Step 2:
a.
The search engine would have generated a list of documents containing
the search terms and topics relevant to the subject matter. The search engine
would also have linked the items on this list to the corresponding online
locations where these documents may be accessed.
b. In Vinuya, the researcher used the Westlaw legal research service
(which is made available to offices of all the Justices), and perused the
generated list.[9]
A possible item on this list would be the article entitled “Breaking the Silence: Rape as an
International Crime,” by one of the complaining authors, Dr. Mark Ellis.
Step 3:
The researcher would
read articles from the generated list and identify the portions she planned to
incorporate into the draft. For this example, she would have scrolled through
the work of Mark Ellis and found the selection she wanted. The level of
scrutiny invested into each of the chosen articles would vary; some researchers
make cursory readings and incorporate as many portions from different works and
authors as they can.
Step 4:
a.
The researcher can either save the articles in their entirety, or save
the selections in one document. The researcher in Vinuya claimed that
she did the latter and used the Microsoft Word program for this purpose.
b.
If the researcher chose to save only pertinent selections, then
ideally the attributions would have to be made at his point.
Now, this step is critical. I know of no software in the world, especially not Microsoft Word, that will generate the citation to the work of Ellis on its own, without the appropriate action of the user. An honest researcher would immediately copy and paste the citation references of Ellis into the copied portions, or type a reference or label in, even if it were only a short form placeholder of the proper citation. If she did neither, she may be sloppy, incompetent or downright dishonest.
During the deliberations of the Ethics Committee, the researcher explained this crucial step: “So I would cut and paste relevant portions, at least portions which I find relevant into what turns out to be a large manuscript which I can then whittle and edit and edit further.”[10] Adhering to this account, there would be an additional step in the process:
Step 5
If an existing draft or
“manuscript” has already been created, the next step would be to incorporate
the selections from the articles into the draft. This is a second opportunity
to ensure that the proper attributions are made. If the researcher is diligent,
she would already have tried to follow the correct form as prescribed by the Manual of Judicial Writing.[11]
If a “manuscript” or outline has already been formulated, then incorporating the selections would require her to be conscious that these ideas and arguments are not her own. The process ideally alerts any researcher that extraneous sources are being added. It allows her to make the following considerations: Does this portion sufficiently discuss the historical context of a particular conclusion? Do I need this literature as support for my arguments? Am I including it to support my arguments, or merely to mimic the author’s? Corollarily, the researcher would initially assess if such argument made by the author is adequately supported as well. She would check the author’s footnotes. In Vinuya, the copying of the footnotes was so extensive, such that it practically used the uncited works as blueprint for the Decision’s footnotes.
4. The frequency of
instances of missing citations and actions required for deletion betray
deliberateness.
To purposefully input citations would require many key strokes and movements of the computer’s “mouse.” If the attributions had indeed been made already, then the deletions of such attributions would not simply happen without a specific sequence of key strokes and mouse movements. The researcher testified that the necessary attributions were made in the earlier drafts, but that in the process of cutting and pasting the various paragraphs, they were accidentally dropped. She makes it sound as if something like a long reference citation can just easily fall by the wayside. Not so.
The reference required
under the Manual of Judicial Writing for the work of Ellis reads like
this: “Mark Ellis, Breaking
the Silence: Rape as an International Crime, 38 Case W. Res. J. Int'l L. 225 (2006-2007).”
The researcher in Vinuya explained that footnotes were
deleted along with headings of certain portions, and with the deletion of the
note reference mark in the body of the text, the citations in the document’s
footers disappeared also. For this scenario to happen with the same frequency
as the number of missing citations, the following steps must have been followed:
1. First
movement: Using hand and eye coordination, consciously move cursor to the
location of target footnote and/or heading, using either the mouse or arrow
keys.
2. Second
movement: Select the “note reference mark” by highlighting the target
footnote number. Note that unlike in normal characters or texts wherein a
single press of the “delete” or “backspace” button would suffice, a footnote
number must be highlighted before it can be deleted. This means that either the
particular footnote and/or heading must have been “double-clicked” or it must
have been specifically highlighted by a precise horizontal motion of the cursor
while pressing on a mouse button – both of which require two movements (either
two “clicks”, or a “click” and a “swipe”).
3. Third
movement: Press “delete” or “backspace” key.
Note that in the case wherein the note
reference mark was not highlighted by a mouse movement, the “delete” or
“backspace” key must have been pressed twice, as pressing it only once
will merely highlight the note reference mark without deleting the same.
Hence, even accommodating the explanation given by the researcher, at least four movements must have been accomplished to delete one footnote or reference. Multiply this with the number of references that were “dropped” or “missing,” and you have a situation wherein the researcher accomplished no less than two hundred thirty-six (236) deliberate steps to be able to drop the fifty-nine (59) citations that are missing in Vinuya. If by some chance the cursor happened to be at the precise location of the citations, and the citations were subsequently deleted by an accidental click of the mouse, this would still have necessitated a total of one hundred seventy seven (177) clicks. It is understandable if a researcher accidentally deleted one, two or even five footnotes. That a total of 59 footnotes were erased by mere accident is inconceivable.
To make a conservative estimate, we can deduct the number of times that a footnote number in the body of the Decision could simply have been deleted inadvertently. Our analysis indicates that this could have happened a third of the time, or an estimate of twenty times, when short footnotes containing “supra” or “id.” could have been easily forgotten or omitted. This would still have yielded sixty deliberate steps or movements, and would alert the researcher either that: 1) too much of the body comprises ideas which are not his own, or 2) too many of the sources in his “main manuscript” were getting lost. Subsequently, if more than half of the attributions in the International Law discussion went missing, the simple recourse would have been either to review his or her first draft, or simply delete his lengthy discursive footnotes precisely because he cannot remember which articles he might have lifted them from.
On
Microsoft Word features that alert the user to discrepancies in footnote
deletions
The
researcher took pains to deliberately cut and paste the original sources of the
author, thereby making it appear that she was the one who collated and
processed this material. What she should have done was simply to cite the
author from whom she took the analysis and summarization of the said sources in
the first place. The latter would have been the simple, straightforward, not to
mention honest path. Instead, the effect is that the Vinuya Decision
also appropriated the author’s analysis. Actually, it would have been easier to
cite the author’s copied work considering the availability of short citation
forms commonly used as reference tools in legal articles such as “supra” or “id.”
Microsoft Word may not have an automatic alarm each time a footnote or citation is deleted, but it does contain built-in features to help raise “red flags” to signal that a particular passage was copied, or is attached to a particular citation – if indeed such citation exists. For example, the researcher in Vinuya, in describing her own process of drafting the Decision, stated that portions containing footnotes from the first Vinuya draft were lifted and transformed into the contents of a separate footnote. In short, during revisions of the draft, substantial footnoted portions which used to be in the body were relegated to footnotes. This does not result, however, in the automatic erasure of the original footnotes within the new footnote. A simple recreation of this process reveals that this “footnote within a footnote” retains a number symbol in superscript, albeit one altered due to the redundancy in the functionality of “footnotes within footnotes.” Any reasonably prudent researcher would thus be alerted to the fact that something was amiss with the citations in that particular selection because the footnote would have abnormal numeric superscripts. This glaring abnormality in itself is a warning.
Another notable feature is that when a cursor, as seen on the screen in an open document, is placed over a footnote reference mark, Microsoft Word automatically supplies that footnote’s citation in a popup text box. The popup box hovers over the numerical superscript, unmistakably indicating the source.[12] In addition, no single action can cause a footnote to be deleted; once the cursor is beside it, either the “delete” or “backspace” key must be pressed twice, or it must be deliberately highlighted and then erased with a stroke of either the “delete” or the “backspace” key. This functionality of footnote deletion in Microsoft Word thus decreases the likelihood of footnotes being deleted without the knowledge or intention of the researcher.
As to the claim of the researcher that the footnotes in the headings were accidentally deleted, there was a failure on the part of the Ethics Committee to thoroughly investigate the matter when they relied on a presentation of what, according to the researcher, happened during her research for and drafting of the Vinuya Decision. Instead of asking her to re-create the various situations of “inadvertent dropping,” the Ethics Committee satisfied itself with a “before” and “after” Microsoft PowerPoint presentation which could not, by any stretch of the imagination, have recreated the whole process of researching and drafting that happened in Vinuya unless every step were to be frozen through screenshots using the “Print Screen” command in tandem with a common image management program. To simply present the “before” and “after” scenario through PowerPoint has no bearing on the reality of what happened. Had the Ethics Committee required that the presentation made before them be through recreation of the drafting process using Microsoft Word alone, without “priming the audience” through a “before” and “after” PowerPoint presentation, they would have seen the footnotes themselves behaving strangely, alerting the researcher that something was seriously wrong. The Committee would then have found incredible the claim that the accidental deletion of a footnote mark attached to a heading – and the subsequent transposition of text under that heading to another footnote – could have occurred without the researcher being reminded that the text itself came from another source. Proof of deliberate action is found in the Vinuya Decision itself – the care with which the researcher included citations of the sources to which the authors of the copied works referred, while conveniently neglecting attribution to the copied works themselves.
It is therefore impossible to conclude
that such gross plagiarism, consisting of failure to attribute to nine (9)
copyrighted works, could have been the result of anything other than failure to
observe the requirements of the standard of conduct demanded of a legal
researcher. There is also no basis to conclude that there was no failure on the
part of Justice del Castillo to meet the standard of supervision over his law
clerk required of incumbent judges.
III. On Evaluating Plagiarism
A.
Posner’s Standards for Evaluating the Characterization of Incidents of
Plagiarism
To be generous to my
colleagues in this part of my analysis, I have referred to one of the scholars
who hold the most liberal views on plagiarism, Judge Richard A. Posner. The
three guideposts by which I structured my technical analysis of the instances
of plagiarism in the Vinuya Decision come from his breakdown of certain
key issues in his work, The Little Book of Plagiarism. In his “cook’s
tour” of the key issues surrounding plagiarism, wherein he is more liberal than
most academics in speaking of the sanctions the act may merit – he is against
the criminalization of plagiarism, for instance, and believes it an act more
suited to informal sanctions[13]
– Judge Posner characterizes plagiarism
thus:
Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him and the claim causes the copier's audience to behave otherwise than it would if it knew the truth. This change in behavior, as when it takes the form of readers' buying the copier's book under the misapprehension that it is original, can harm both the person who is copied and the competitors of the copier. But there can be plagiarism without publication, as in the case of student plagiarism. The fraud is directed in the first instance at the teacher (assuming that the student bought rather than stole the paper that he copied). But its principal victims are the plagiarist's student competitors, who are analogous to authors who compete with a plagiarist.[14]
Posner then goes on to neatly sum up, in the form of three “keys,” major considerations that need to be taken into account when evaluating an occurrence of plagiarism. His book’s last paragraph reads:
In the
course of my cook’s tour of the principal issues that have to be addressed in
order to form a thoughtful response to plagiarism in modern America, I have
challenged its definition as “literary theft” and in its place emphasized
reliance, detectability, and the extent of the market for expressive works as
keys to defining plagiarism and calibrating the different types of plagiarism
by their gravity. I have emphasized the variety of plagiarisms, argued for
the adequacy of the existing, informal sanctions, pointed out that the “fair
use” doctrine of copyright law should not protect a plagiarist, noted the
analogy between plagiarism and trademark infringement (a clue to the entwinement
of the modern concept of plagiarism with market values)–and warned would-be
plagiarists that the continuing advance of digitization may soon trip them up.
(Emphasis supplied.)
It is in this spirit that the three questions – of extent,
an analogue of reliance, as extensive plagiarism correlates to the reliance of
the text on the copied work; deliberateness; and effect, an
analogue of what Posner called “extent of the market for expressive works”,
used here in the context of the effect of plagiarism in the Vinuya
Decision – were put to the text being scrutinized. The first two questions have
been discussed in preceding sections. To examine the effect, one must first
make the distinction between the effect of copying a copyrighted work without
attribution, and between the effect of copying without attribution a work in
the public domain. Using these three guideposts, we can them come to a
conclusion whether the plagiarism is relatively harmless and light or something
severe and harmful. In the case of the Vinuya Decision, we have come to
conclude that the plagiarism is severe; and because judicial decisions are
valuable to the Philippine legal system, that the plagiarism harms this
institution as well.
1. The
distinction between the effect of appropriating copyrighted works and works in
the public domain
The infringement of copyright
necessitates a framework for characterizing the expression of ideas as property. It thus turns on a question of
whether there exists resultant harm in a form which is economically
quantifiable. Plagiarism, on the other hand, covers a much wider range of acts.
In defining copyright infringement, Laurie Stearns points out how it is an
offense independent from plagiarism, so that an action for violation of
copyright – which may take on either a criminal and a civil aspect, or even
both – does not sufficiently remedy the
broader injury inherent in plagiarism.
Plagiarism is not necessarily copyright infringement, nor is
copyright infringement necessarily plagiarism…In some ways the concept of
plagiarism is broader than infringement, in that it can include the copying of
ideas, or of expression not protected by copyright, that would not constitute
infringement, and it can include the copying of small amounts of material that
copyright law would disregard.[15]
Plagiarism, with its lack of attribution, severs the connection between the original author's name and the work. A plagiarist, by falsely claiming authorship of someone else's material, directly assaults the author's interest in receiving credit. In contrast, attribution is largely irrelevant to a claim of copyright infringement…infringement can occur even when a work is properly attributed if the copying is not authorized–for example, a pirated edition of a book produced by someone who does not own the publication rights.[16]
The recognition of plagiarism as an offense that can stand independently of copyright infringement allows a recognition that acts of plagiarism are subject to reproof irrespective of whether the work is copyrighted or not. In any case, the scenario presented before the Court is an administrative matter and deals with plagiarism, not infringement of copyright.
2. On judicial plagiarism and the sanctions
therefor
The majority Resolution quotes from the Judicial Opinion
Writing Handbook written by Joyce George – which I cited in my earlier
Dissent – thusly:
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 or 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.
The
use of this excerpt to justify the wholesale lifting of others’ words without
attribution as an “implicit right” is a serious misinterpretation of the
discussion from which the excerpt was taken. George wrote the above-quoted
passage in the context of a nuanced analysis of possible sanctions for
judicial plagiarism, not in the context of the existence of plagiarism
in judicial opinions. (I had candidly disclosed the existence of this liberal
view even in my 12 October 2010 Dissent.) The sections preceding the text from
which this passage was taken are, in fact, discussions of the following:
ethical issues involving plagiarism in judicial writing, with regard to both
the act of copying the work of another and the implications of plagiarism on
the act of adjudication; types of judicial plagiarism, the means by which they
may be committed, and the venues in and through which they can occur; and
recent cases of judicial plagiarism.
In no wise does George imply that the judicial function confers upon judges the implicit right to use the writing of others without attribution. Neither does George conflate the possible lack of sanctions for plagiarism with the issue of whether a determination of judicial plagiarism can be made. Rather, George is careful to make the distinction between the issue of whether judicial plagiarism was committed and the issue of whether a sanction can be imposed for an act of judicial plagiarism. In George’s terminology, the latter issue may also be framed as a question of whether judicial plagiarism is “subject to a claim of legal [that is, actionable] plagiarism”, and it has no bearing whatsoever on the former issue. Thus, George writes:
The intentional representation of
another person’s words, thoughts, or ideas as one’s own without giving
attribution is plagiarism. “Judicial plagiarism” is the copying of words or
ideas first written down by another judge, advocate, legal writer or
commentator without giving credit to the originator of that work. It can
include such things as a judge’s copying of another’s judges opinion, the
adoption verbatim of an advocate’s findings of fact and conclusions of law, the
wholesale adoption of an advocate’s brief, or the copying of a portion of a law
review article and representing it as the judge’s own thoughts. The lack of
attribution makes this activity “judicial plagiarism,” but without legal
sanctions.[17]
Indeed, my previous Dissent stated that inasmuch as
sanctions for judicial plagiarism are concerned, “there is no strictly
prevailing consensus regarding the need or obligation to impose sanctions on
judges who have committed judicial plagiarism.” Yet the absence of a definite
answer to the question of liability does not grant judges carte blanche to use
the work of others without attribution, willy-nilly, in their judicial
opinions. As George puts it, “the judge is ethically bound to give proper
credit to law review articles, novel thoughts published in legal periodicals,
newly handed down decisions, or even a persuasive case from another
jurisdiction.”[18]
Plainly, George is of the opinion that though a judge may not be held liable
for an act of judicial plagiarism, he should still attribute.
A note about “intentional representation.” A careful
reading of George’s writing on judicial plagiarism will make it clear that she
does not consider “inadvertent” or “unintentional” plagiarism not
plagiarism; indeed, she makes the distinction between “intentional” and
“unintentional” plagiarism several times, treating both as types of
plagiarism:
Using
another’s language verbatim without using quotation marks or a block quote is
intentional, as opposed to unintentional, plagiarism.[19]
...
The
lack of proper attribution may be unintentional and due to sloppy note taking,
either by the law clerk or the judge.[20]
...
Judicial
plagiarism may also arise from the use of law clerks performing research and
writing of draft decisions and who may not accurately reflect the source. The
plagiarized material may be included within the draft resulting from the law
clerk’s poor research skills.[21]
...
The
commission of unintended judicial plagiarism is unethical, but it is not
sanctionable.[22]
The intentional representation of which George
speaks, then, may be considered as the intent to represent a work as one’s own
– already embodied in claiming a work by, for instance, affixing one’s name or
byline to it – in which case the inadvertence, or lack thereof, by which an act
of plagiarism was committed is irrelevant to a finding of plagiarism.
While George is perhaps not as exacting in her valuation of the penalties for plagiarism as others may be, she still emphasizes that her view on the exemption of judicial plagiarism from sanctions – among which she evidently counts social stigma, censure, and ostracism – does not negate the judge’s ethical obligation to attribute. She writes:
In conclusion, this author believes that a
judicial writer cannot commit legal plagiarism because the purpose of his
writing is not to create a literary work but to dispose of a dispute between
parties. Even so, a judge is ethically bound to give proper credit to law
review articles, novel thoughts published in legal periodicals, newly handed
down decisions, or even a persuasive case from another jurisdiction. While the
judge may unwittingly use the language of a source without attribution, it is
not proper even though he may be relieved of the stigma of plagiarism.[23]
As
I wrote in my previous Dissent:
In so fulfilling her obligations, it may become imperative for the judge to use "the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute."[31] Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism “detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy”[32] or that it falls far short of the high ethical standards to which judges must adhere[33].[24]
It must
not be forgotten, however, that George’s view tends toward the very liberal.
There are other writings, and actual instances of the imposition of sanctions,
that reveal a more exacting view of the penalties merited by judicial
plagiarism.[25]
B. On
the Countercharges Made by Justice Abad
In his Concurring Opinion in A.M. No. 10-7-17-SC, Justice Abad alleged that I myself have “lifted from works of others without proper attribution,” having written “them as an academician bound by the high standards” that I espouse.
Regarding this allegation, let us recall my Dissent promulgated on 12 October 2010. I stated:
Plagiarism thus
does not consist solely of using the work of others in one’s own work, but of
the former in conjunction with the
failure to attribute said work to its rightful owner and thereby, as in the
case of written work, misrepresenting the work of another as one’s own. As the
work is another’s and used without attribution, the plagiarist derives the benefit
of use form the plagiarized work without expending the requisite effort for the
same – at a cost (as in the concept of “opportunity cost”) to its author who
could otherwise have gained credit for the work and whatever compensation for
its use is deemed appropriate and necessary.[26]
Allow
me to analyze the allegations of Justice Robert C. Abad point by point using the same standard I
propounded in my 12 October 2010 Dissent.
1. The alleged non-attribution to the Asian
Development Bank’s Country Governance
Assessment Report for the Philippines (2005).
TABLE
H: Comparison
of Justice Abad’s allegations, the 2001 and 2007 versions of the article
co-authored with Drs. De Dios and Capuno, and the ADB Country Governance
Assessment of 2005.
|
|
Reproduction of J. Abad’s Allegations |
Excerpt from the Article
Co-Authored with Drs. De Dios and Capuno: Justice and the Cost of Doing
Business: The Philippines, report submitted to the World Bank, 2001. |
Excerpt from the ADB
Country Governance Assessment: Philippines Asian Development Bank Country Governance Assessment: Philippines, 2005. |
|
1. |
Cost refers to both monetary and nonmonetary
opportunities that a litigant has to forego in pursuing a case. Direct cost
refers not only to fees paid to the courts but also to out-of-pocket costs
arising from litigation itself (e.g., lawyers’ fees and compensation,
transcript fees for stenographic notes, etc.). Indirect costs refer to lost
opportunities arising from delays in the resolution of cases and the time
spent by a litigant attending and following up a case. [Asian Development Bank Country
Governance Assessment (Philippines) 2005, page 103] |
Costs, on the other hand, refer to both the monetary and nonmonetary opportunities that business people forego as a result of making use of the judicial system itself. Direct costs refer not only to the fees paid the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers’ fees and documentation). Indirect costs also inevitably arise, of which the most important are those arising from delays in the resolution of cases, and the failure to come up with timely decisions. |
Cost refers to both monetary and nonmonetary
opportunities that a litigant has to forego in pursuing a case. Direct cost
refers not only to fees paid to the courts but also to out-of-pocket costs
arising from litigation itself (e.g., lawyer’s fees and compensation,
transcript fees for stenographic notes, etc.). Indirect costs refer to lost
opportunities arising from delays in the resolution of cases and the time
spent by a litigant attending and following up a case. |
|
Excerpt from the Article
Co-Authored with Drs. De Dios and Capuno: Justice and
the Cost of Doing Business: The Philippines, UP School of Economics
Discussion Paper 0711, October 2007. |
|||
|
Costs, on the other hand, refer to both the monetary and nonmonetary opportunities that business people forego as a result of making use of the judicial system itself. Direct costs refer not only to the fees paid the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers’ fees and documentation). Indirect costs also inevitably arise, of which the most important are those arising from delays in the resolution of cases, and the failure to come up with timely decisions. |
Justice Abad accuses Dr. Emmanuel S.
De Dios, Dr. Joseph J. Capuno, and me of copying, without attribution, three
sentences from the Asian Development Bank’s 2005 Outlook Report for the
Philippines, and incorporating them into our 2007 paper entitled “Justice and
the Cost of Doing Business.” [27]
I
thank Justice Abad for alerting me to this particular ADB publication;
otherwise I would not have noticed ADB’s failure to attribute the same to my
co-authored work produced in 2001. Were it not for his charges, I would not
have learned of such inadvertent error from the ADB. I have thus called the
attention of my co-authors, Drs. De Dios and
Capuno, to this matter. Below is a reproduction of the contents of my letter to
Drs. De Dios and Capuno:
Hon. Maria Lourdes P.A. Sereno
Associate Justice
Supreme Court of the Philippines
February 4, 2011
Dr. Emmanuel C. De Dios
Dr. Joseph D. Capuno
School of Economics
University of the Philippines
Dear Drs. De Dios and Capuno
Greetings!
I
have been recently alerted to a possible plagiarism that we are suspected to
have committed with respect to the 2005 Asian Development Bank Outlook Report,
specifically three sentences in page 103 that reads:
... Cost refers to both monetary and nonmonetary opportunities that a
litigant has to forego in pursuing a case. Direct cost refers not only to fees
paid to the courts but also to out-of-pocket costs arising from litigation
itself (e.g. lawyer’s fees and compensation, transcript fees for stenographic
notes, etc.) Indirect costs refer to lost opportunities arising from delays in the
resolution of cases and the time spent by a litigant attending and following up
a case.
On
examination, I discovered that it is the ADB that failed to attribute those
sentences to the report we submitted in August 2001 to the World Bank entitled
“Justice and the Cost of Doing Business: The Philippines,” specifically found
in the third paragraph of our 2001 report.
May I suggest that perhaps you could alert our friends at the ADB
regarding the oversight. It would be nice if our small study, and the World
Bank support that made it possible, were appropriately recognized in this ADB
publication.
Warmest
regards always.
Sincerely,
Maria
Lourdes P.A. Sereno
A proper reading of the ADB publication will immediately convey the fact that the ADB considers one of my writings as a resource on the topic of Philippine judicial reform. My name is quoted four (4) times in the text. A reading of the references listed one of my 2001 papers, which I wrote singly as the source. Note the following references to my writing:
... It is incumbent upon the courts to harmonize these laws, and often
they would find the absence of constitutional standards to guide them (Sereno
2001). at page 98
...
... Critics pointed out that the Supreme Court should not have made
factual declarations on whether a property belongs to the national patrimony in
the absence of an operative law by which a factual determination can be made (Sereno
2001). at page 99
... As Sereno pointed out, if this tension between the three
branches is not resolved satisfactorily, it will create a climate of
unpredictability as a result of the following: at page 99
...
(iii) a court that will continually have to defend the exercise of its
own powers against the criticism of the principal stakeholders in the process
of economic policy formulation: the executive and legislative branches and the
constituencies consulted on the particular economic issues at hand (Sereno
2001).
Had Justice Abad or his researcher taken the time to go through the ADB material, it would have been immediately apparent to either of them that ADB was merely collating the thoughts of several authors on the subject of Philippine judicial reform, and that I was one of those considered as a resource person. He would not then have presumed that I copied those sentences; rather, it might have struck him that more likely than not, it was the ADB echoing the thoughts of one or some of the authors in the reference list when it used those quoted sentences, and that the pool of authors being echoed by ADB includes me. The reference list of the ADB report with the relevant reference is quoted herein:
REFERENCES
...
Sereno, Ma. Lourdes. 2001. The Power of Judicial Review
and Economic Policies: Achieving Constitutional Objectives. PHILJA-AGILE-USAID
Project on Law and Economics.” at page 158.
What is more unfortunate is that I was immediately accused of having copied my sentences from ADB when a simple turn of the page after the cover page of our 2007 paper would reveal that the 2007 paper is but a re-posting of our 2001 work. The notice on page 2 of the paper that is found in the asterisked footnote of the title reads:
This paper was originally submitted in August 2001 as project
report to the World Bank. During and since the time this report was
written, the Supreme Court was engaged in various projects in judicial reform.
The authors are grateful to J. Edgardo Campos and Robert Sherwood for
stimulating ideas and encouragement but take responsibility for remaining
errors and omissions. The Asian Institute of Journalism and Communication
provided excellent support to the study in the actual administration of the
survey questionnaire and conduct of focus group discussions.
This charge is made even more
aggravating by the fact that the Supreme Court itself, through the Project
Management Office, has a copy of my 2001 paper. In July 2003, a “Project
Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the
Republic of the Philippines for a Judicial Reform Support Project” was officially
filed by the World Bank as Report No. 25504.[28]
The applicant Supreme Court’s representative is named as Chief Justice Hilario
Davide. The project leader is named as Evelyn Dumdum. The Report lists the
technical papers that form the basis for the reform program. Among the papers
listed is our 2001 paper.
What is worse, from the point of view of research protocols, is that a simple internet search would have revealed that this 2001 co-authored paper of mine has been internationally referred to at least four (4) times – in three (3) English language publications and one (1) Japanese- or Chinese-language publication; two of these are prior to the year 2005 when the relevant ADB Outlook Report came out. The authors of the English-language works are all scholars on judicial reform, and they cite our work as one of the pioneering ones in terms of measuring the relationship between dysfunctions in the judicial system and the cost to doing business of such dysfunctions. It would have then struck any researcher that in all probability, the alleged plagiarized sentences originated from my co-authors and me.
The references to my 2001 paper appear in the following international publications:
a) Sherwood, Robert. Judicial Performance: Its Economic Impact in
Seven Countries; at page 20.
(http://www.molaah.com/Economic%20Realities/Judicial%20Performance.pdf)
b) Messick, Richard. Judicial Reform and Economic Growth: What a
Decade of Experience Teaches; at pages 2 and 16. (2004).
http://www.cato.org/events/russianconf2004/papers/messick2.pdf
c) Herro, Alvaro and Henderson, Keith. Inter-American Development
Bank. The Cost of Resolving Small-Business Conflicts in Sustainable Development
Department Best Practices Series; at page 46. (2004)
http://www.ifes.org/~/media/Files/Publications/White%20PaperReport/2003/258/SME_Peru_Report_final_EN.pdf
d) World Development Report 2005 (Japanese language); at page 235
(2005) (“url” in Japanese characters)
2. The purported non-attribution of the “Understanding on the Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the General Agreement on Tariffs and Trade 1994.”[29]
I will spare the reader the tedium of reading twenty pages of treaty rules and working procedures, and thus omit the three-column table I have used in other sections of this Dissent. The rules and procedures may be accessed online at the following locations:
1. Marrakesh Declaration
of 15 April 1994
<http://www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.pdf> (Last
accessed on 16 February 2011)
2. Understanding on Rules
and Procedures Governing the Settlement of Disputes
<http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf> (Last accessed on
16 February 2011)
3. Working Procedures for
Appellate Review <http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm#20>
(Last accessed on 16 February 2011)
Justice Abad himself provides evidence of the attribution I made when he says:
Justice Sereno said that ‘this section is drawn
from Article XX and XXII of the GATT 1994, Understanding on Dispute
Settlement and Working Procedures.
I think the problem lies in the fact
that neither Justice Abad nor his researcher is aware that the phrase “Understanding
on Dispute Settlement” is the short title for the “Understanding on the Rules
and Procedures Governing the Settlement of Disputes”, which is formally
known also as Annex 2 of the Marakkesh Agreement Establishing the World Trade
Organization (short form of treaty name: WTO Treaty). A quick visit to the WTO website will show
that the WTO itself uses any of the terms “DSU,” “Dispute Settlement
Understanding” or “Understanding on Dispute Settlement” (UDS) as short forms
for the said Annex. The WTO webpage[30]
shows that “Understanding on Dispute Settlement” is the first short way they
call the long set of rules covered by Annex
2 of the WTO Treaty.
More importantly, the WTO documents that were cited here are public international documents and rules governing the relations of states. In page 6 of my article, “Toward the Formulation of a Philippine Position in Resolving Trade and Investment Dispute in APEC,” I explain the modes of resolving trade and investment disputes by APEC countries, and one of these modes is the WTO dispute settlement mechanism governed by the WTO rules themselves.
This is therefore a meaningless charge.
Assuming that Justice Abad knows that the above treaty titles are interchangeable, then his charge is akin to complaining of my supposed failure for having simply written thus: “The following are the requirements for filing a complaint under the Rules of Court” and then for having immediately discussed the requirements under the Rules of Court without quotation marks in reference to each specific rule and section. If this is the case, then it appears that in Justice Abad’s view I should have written: “the following are the requirements provided for under the 1997 Rules of Civil Procedure (Bar Matter No. 803) for filing a complaint” and then used quotation marks every time reference to the law is made. Nothing can be more awkward than requiring such a tedious way of explaining the Rules of Court requirements. I have made no such comparable charge of violation against Justice del Castillo in the Dissent to the main Decision and I am not making any such claim of violation in my Dissent to the Resolution denying the Motion for Reconsideration, because that would be a meaningless point.
Regarding the phrase allegedly coming
from Professor Oppenheim on good offices and mediation, this is a trite,
common, standard statement – with nothing original at all about it – that can
be found in any international dispute settlement reference book, including
those that discuss WTO dispute settlement systems. The phrase is a necessary,
cut-and-dried statement on the use of good offices and mediation, which take
place alongside the formal dispute settlement system in major international
dispute settlement systems. The system is provided for expressly in Article 5.5
and 5.6 of the DSU. A quick view of the WTO website makes this point very
apparent.[31]
3. The supposed non-attribution of a phrase from Baker
v. Carr.
TABLE
I: Comparison
of Justice Abad’s allegations, the legal memorandum in Province of North Cotabato v. Peace Panel, and the decision of the
U.S. Supreme Court in Baker v. Carr, cited
in the legal memorandum.
|
|
Reproduction of J. Abad’s Allegations |
Excerpt from the Legal
Memorandum Prepared by J. Sereno: Petitioners-Intervenors’ Memorandum, Province of North Cotabato v. Peace Panel |
Excerpt from the Source Cited
by J. Sereno: Baker
v. Carr,
369 U.S. 186 (1962). |
|
|
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 U.S. 186] |
3.4 The power to determine whether or not a
governmental act is a political question, is solely vested in this Court, and
not with the Respondents. This Honorable Court had firmly ruled that Article
VIII, Section 1 of the Constitution, as rejected the prudential approach
taken by courts as described in Baker v. Carr. Indeed, it
is a duty, not discretion, of the Supreme Court, to take cognizance of a case
and exercise the power of judicial review whenever a grave abuse of
discretion has been prima facie established,
as in this instance. 3.5 In this
case, Respondents cannot hide under the political question doctrine, for two
compelling reasons. 3.6 First, there is no resolute textual commitment
in the Constitution that accords the President the power to negotiate with
the MILF…. … 3.13 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. On the contrary,
the negotiating history with Muslim secessionist groups easily contradict any
pretense that this Court cannot set down the standards for what the
government cannot do in this case. (pp. 47-50 of the Memorandum) |
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…. Source cited: Baker v. Carr |
A simple upward glance nine paragraphs
above the phrase that Justice Abad quoted from my post-hearing Memorandum in
the GRP-MILF MOA-AD case would show that Baker v. Carr was aptly cited.
For quick reference, I have reproduced the pertinent parts of my legal
memorandum in the middle column of the above table.
Baker v. Carr was discussed in the
context of my argument that Marcos v. Manglapus has adopted a more
liberal approach to the political question jurisdictional defense, and has
rejected the prudential approach taken in Baker v. Carr. The offending
paragraph that Justice Abad quoted was meant to demonstrate to the Court then
hearing the GRP-MILF MOA-AD case that even if we apply Baker v. Carr,
the Petition has demonstrated satisfaction of its requirement: the presence of
a judicially-discoverable standard for resolving the legal question before the
Court. Justice Abad’s charge bears no similarity to the violations of the rules
against plagiarism that I enumerated in pages 16 to 19 of my Dissent dated 12
October 2010. I have made no similar complaint against the work in Vinuya.
4. The alleged plagiarism of the internet-based World
Trade Organization factsheet.
TABLE
J: Comparison
of Justice Abad’s allegations, the article, entitled Uncertainties Beyond the Horizon: The Metamorphosis of the WTO
Investment Framework in the Philippine Setting, and the WTO Factsheet cited
in the article.
|
|
Reproduction of J. Abad’s Allegations |
Excerpt from the Work of
J. Sereno: Sereno, Uncertainties
Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the
Philippine Setting, 52 U.S.T. L.
Rev. 259 (2007-2008) |
Excerpt from the Source Cited
by J. Sereno: http://www.fas.usda.gov/info/factsheets/wto.html |
|
|
The World Trade Organization (WTO), established on
January 1, 1995, is a multilateral institution charged with administering
rules for trade among member countries. Currently, there are 145 official
member countries. The United States and other countries participating in the
Uruguay Round of Multilateral Trade Negotiations (1986-1994) called for the
formation of the WTO to embody the new trade disciplines adopted during those
negotiations. 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.] |
This reticence, to link investment regulation with
the legal disciplines in the WTO, compared to the eagerness with which other
issues are linked to trade rules, was evident even in the precursor to the Marakkesh Agreement.2 2 Marakkesh Agreement established the World Trade Organization and
replaced GATT as an international organization. It was signed by ministers
from most of the 123 participating governments at a meeting in Marrakesh,
Morocco on April 15, 1994…. 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. http://www.fas.usda.gov/info/ factsheets/wto.html
(last accessed February 13, 2008). (Emphasis supplied.) (p. 260-261, footnote 2 of J. Sereno’s work) |
Source cited: The World Trade Organization (WTO), established on
January 1, 1995, is a multilateral institution charged with administering
rules for trade among member countries. Currently, there are 145 official
member countries. The United States and other countries participating in the
Uruguay Round of Multilateral Trade Negotiations (1986-1994) called for the
formation of the WTO to embody the new trade disciplines adopted during those
negotiations. 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. Source cited: http://www.fas.usda.gov/info/factsheets/wto.html |
Justice
Abad has likewise pointed out that I made it appear that the description of the
WTO in my article entitled “Uncertainties
Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the
Philippine Setting” was my own original analysis. Again, a cursory reading
of the article will show that the paragraph in question was actually the second
footnote in page 2 of the article. The footnote was made as a background
reference to the Marrakesh Agreement,
which, as I explained earlier in the article, established the WTO. The footnote
thus further provided background information on the WTO. Contrary, however, to
Justice Abad’s allegation, I clearly attributed the source of the information
at the end of the footnote by providing the website source of this information
and the date I accessed the information. Thus, should one decide to follow the
website that I cited, one would immediately see the information contained in
the article was lifted from this direct source.
5. The
purported non-attribution to Judge Richard A. Posner’s seminal work in his book
Economic Analysis of
Law.
TABLE
K: Comparison
of Justice Abad’s allegations, the article entitled Lawyers’ Behavior and Judicial Decision-Making, and Judge Richard
A. Posner’s book Economic Analysis of Law,
cited in the article.
|
|
Reproduction of J. Abad’s Allegations |
Excerpt from the Work of
J. Sereno: Sereno, Lawyers’
Behavior and Judicial Decision-Making, 70(4) Phil. L. J. 476 (1996). |
Excerpt from the Source Cited
by J. Sereno: Richard A. Posner, Economic Analysis of Law, (2nd
ed. 1977). |
|
|
[S]ettlement
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 the
claim. [Posner, p.
434] |
...We could deal with this problem later. What I
would propose to evaluate at this point is the preconditions that Judge Richard Posner theorizes
as dictating the likelihood of litigating... … Posner’s model is but a
simple mathematical illustration or validation of what we as laymen have
always believed to be true, although how to prove it to be true has always
remained a problem to us. We have always known that the decision on whether
to settle or not is dictated by the size of the stakes in the eyes of the
parties, the costs of litigation and the probability which each side gives to
his winning or losing. But until now, we have only been intuitively dealing with
a formula for arriving at an estimation of the “settlement range” or its
existence in any given controversy. Simply, the settlement range is that
range of prices in which both parties would be willing to settle because it
would increase their welfare. Settlement 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. (pp. 481-483 of Lawyers’ Behavior and Judicial Decision-Making) |
As with any contract, a necessary (and usually—why
not always?—sufficient) conditions for negotiations to succeed is that there
be a price at which both parties would feel that agreement would increase
their welfare. Hence settlement negotiations should 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 that the defendant
is willing to pay in satisfaction of that claim; …. Source cited: Richard A. Posner, Economic Analysis of Law, 435 (2nd
ed. 1977). |
|
|
Presumably judges,
like the rest of us, seek to
maximize a utility function that includes both monetary and
nonmonetary elements. [Posner, p.
415] [T]he rules of the judicial process have been carefully designed both to the 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 group in his decisions.
[Posner, 415] 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] 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. [Posner, p.
416] [J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416] |
What the Judge Maximizes In understanding judicial behavior, 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. In American literature, they have come up with several theories on what judges maximize. 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 of 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. 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. 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. The last is that judges maximize their influence on society by imposing their values, tastes and preferences thereon. Depending on one’s impressions and experiences
(since there is no empirical data on which a more scientific conclusion can
be reached on which of the above four theories are correct), we can see the
relation of this utility-maximizing behavior on both our probability estimate
function and Posner’s
precondition inequality for litigation. Although more research is required in
this area, if we believe Posner’s
function to be true…. (Emphasis supplied.) (pp. 489 of Lawyers’
Behavior and Judicial Decision-Making) |
§19.7 WHAT DO JUDGES MAXIMIZE? …This section attempts to sketch a theory of judicial incentives that will reconcile these assumptions. Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and nonmonetary elements (the latter including leisure, prestige, and power). As noted earlier, however, the 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 on his decisions. To be sure, the effectiveness of these insulating rules is sometimes questioned. It is often argued, for example, that the judge who owns land will decide in favor of landowners, the judge who walks to work in favor of pedestrians, the judge who used to be a corporate lawyer in favor of corporations.... A somewhat more plausible case can be made that judges might slant their decisions in favor of powerful interest groups in order to increase the prospects of promotion to higher office, judicial or otherwise.... It would seem, therefore, that the explanation for judicial behavior must lie elsewhere than in pecuniary or political factors. That most judges are leisure maximizers is an assumption that will not survive even casual observation of judicial behavior. A more attractive possibility, yet still one thoroughly consistent with the ordinary assumptions of economic analysis, is that judges seek to impose their preferences, tastes, values etc. on society.... Source: Richard A. Posner, Economic Analysis of Law, 415-16 (2nd
ed. 1977). |
May I invite the reader to read my
entire article entitled “Lawyers’ Behavior and Judicial Decision-Making,”
accessible online at
<http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20number%204%20-02-%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf>,
so that the alleged copying of words can be taken in the proper context.
It must first be emphasized that the
whole article was largely a presentation and discussion of Judge Posner’s
economic models of litigation and settlement, applying what he had written to
the context of the Philippines. An examination of the article will show that
Posner’s work was referred to no less than fourteen (14) times throughout the
article, excluding the use of pronouns that also refer to Posner, such as “he”
and “him.” A diligent reading of the full text of the article will reveal that
I have intentionally and heavily used Posner’s opinions, analyses, models, and
conclusions while crediting him with the same.
Furthermore, the passages cited in the table of counter-charges use what one may call the “terms of the trade” in the field of law and economics, or indeed in the field of economics itself. The maximization of an individual’s utility is one of the core principles on which the study of an individual’s choices and actions are based. The condition for the success/failure of settlement bargaining is practically a definition, as it is also a fundamental principle in the study of bargaining and negotiation that the minimum price of one of the parties must not exceed the maximum price the other party is willing to pay; that particular passage, indeed, may be regarded as a re-statement, in words instead of numbers, of a fundamental mathematical condition as it appears in Posner’s model and in many similar models.
To allow industry professionals to
have their say on the matter, I have written a letter to Dr. Arsenio M.
Balisacan, the Dean of the University of the Philippines School of Economics,
requesting that my paper, Lawyers’ Behavior and Judicial Decision-Making,
be examined by experts in the field to determine whether the allegations of
plagiarism leveled against me have basis. I am reproducing the contents of the
letter below.
Hon. Maria Lourdes P.A. Sereno
Associate Justice
Supreme Court of the Philippines
February 11, 2011
Dr. Arsenio M. Balisacan
Dean
School of Economics
University of the Philippines
Dear Dr. Balisacan:
Greetings!
I hope this letter finds you in the best of health.
I
write because I have a request to make of your highly-respected institution. I
have been recently accused of plagiarizing the work of Judge Richard Posner in
one of the articles on law and economics that I have written and that was
published in the Philippine Law Journal entitled “Lawyers’ Behavior and
Judicial Decision-Making”, 70 Phil L. J. 475-492 (June 1996). The work of
Posner that I am accused of having plagiarized is the second edition of the
book entitled “Economic Analysis of Law”, published in 1977 by Little, Brown
and Company.
May
I ask you for help in this respect – I wish to submit my work to the evaluation
of your esteemed professors in the UP School of Economics. My work as an
academic has been attacked and I would wish very much for a statement from a
panel of your choosing to give its word on my work.
I
am attaching a table showing which part of Posner’s work I am alleged to have
plagiarized in my Philippine Law Journal article.
Thank
you very much. I will be much obliged for this kind favor.
Very
truly yours,
Maria Lourdes P.A. Sereno
The problem with the majority approach is that it refuses to face the scale of the plagiarism in the Vinuya Decision. If only that were the starting point for the analysis of the majority, then some of my colleagues would not have formed the impression that I was castigating or moralizing the majority. No court can lightly regard a ponencia, as in Vinuya, where around 53% of the words used for an important section were plagiarized from sources of original scholarship. Judges and their legal researchers are not being asked to be academics; only to be diligent and honest.
IV. The Role of the Judiciary in Society
On more than one occasion, this Court
has referred to one of its functions as the symbolic or educative function, the
competence to formulate guiding principles that may enlighten the bench and the
bar, and the public in general.[32]
It cannot now backpedal from the high standards inherent in the judicial role,
or from the standards it has set for itself.
The need
to cement ethical standards for judges and justices is intertwined with the
democratic process. As Lebovits explained:
The judiciary's power comes from its words
alone–judges command no army and control no purse. In a democracy, judges have
legitimacy only when their words deserve respect, and their words deserve
respect only when those who utter them are ethical. Opinion writing is public
writing of the highest order; people are affected not only by judicial opinions
but also by how they are written. Therefore, judges and the opinions they
write–opinions scrutinized by litigants, attorneys, other judges, and the
public–are held, and must be held, to high ethical standards. Ethics must
constrain every aspect of the judicial opinion. [33]
Justice
George Rose Smith once pointed to the democratic process as a reason to write
opinions: “Above all else to expose the court's decision to public scrutiny, to
nail it up on the wall for all to see. In no other way can it be known whether
the law needs revision, whether the court is doing its job, whether a
particular judge is competent.” Justice Smith
recognized that judges are not untouchable beings. Judges serve their audience.
With this service comes the need for judges to be trusted. Writing opinions
makes obtaining trust easier; it allows an often opaque judicial institution to
become transparent.[34]
Judges cannot evade the provisions in
the Code of Judicial Conduct.[35]
A judge
should participate in establishing, maintaining and enforcing high standards of
conduct, and shall personally observe those standards so that the integrity and
independence of the judiciary
will be preserved. The drafters of the Model Code were aware that to be
effective, the judiciary must maintain legitimacy –and to maintain legitimacy,
judges must live up to the Model Code's moral standards when writing
opinions. If the public is able to witness or infer from judges' writing that
judges resolve disputes morally, the public will likewise be confident of
judges' ability to resolve disputes fairly and justly.[36]
(Citations omitted)
Canon 1 of the Code of Judicial Conduct states that a judge should uphold the
integrity and independence of the judiciary. Rule 1.01 in particular states
that a judge should be the embodiment of competence, integrity, and
independence.
Canon 3 then focuses on the duty of honesty in the performance of official duties, as well as on the supervision of court personnel:
Rule 3.09. A judge should organize
and supervise the court personnel to ensure the prompt and efficient dispatch
of business, and require at all times the observance of high standards of
public service and fidelity.
Rule 3.10. A judge should take or
initiate appropriate disciplinary measures against lawyers or court personnel
for unprofessional conduct of which the judge may have become aware.
Paragraph 17 of the Code of Judicial
Ethics[37]
focuses on the writing of judicial opinions:
In disposing of controversial cases, judges should indicate
the reasons for their action in opinions showing that they have not disregarded
or overlooked serious arguments of counsel. They should show their full
understanding of the case, avoid the suspicion of arbitrary conclusion, promote
confidence in their intellectual integrity and contribute useful precedents
to the growth of the law. (Emphasis supplied)
Paragraph 31, “a summary of judicial obligations,” contains a more general statement regarding the behavioral norms required of judges and justices alike, stating:
A judge’s conduct
should be above reproach and in the discharge of his judicial duties, he should
be conscientious, studious, thorough, courteous, patient, punctual, just,
impartial, fearless of public clamor, and regardless of private influence
should administer justice according to law and should deal with the patronage
of the position as a public trust; and he should not allow outside matters or
his private interests to interfere with the prompt and proper performance of
his office.
That judges and justices alike are subject to higher standards by virtue of their office has been repeatedly pronounced by the Supreme Court:
Concerned
with safeguarding the integrity of the judiciary, this Court has come down hard and wielded the rod of discipline against members of the
judiciary who have fallen short of the exacting standards of judicial conduct. This is because a judge is the visible representation of
the law and of justice. He must comport himself in a
manner that his conduct must be free of a whiff of impropriety, not only with
respect to the performance of his official duties but also as to his behavior
outside his sala and as a private individual. His
character must be able to withstand the most searching public scrutiny because
the ethical principles and sense of propriety of a judge are essential to the
preservation of the people’s faith in the judicial system.[38]
Thus, being the subject of constant
public scrutiny, a judge should freely and willingly accept restrictions on
conduct that might be viewed as burdensome by the ordinary citizen.[39]
A judge should personify integrity and exemplify honest public service.
The personal behavior of a judge, both in the performance of his official
duties and in private life should be above suspicion.[40]
Concerned with safeguarding the integrity of the judiciary, this Court has come
down hard on erring judges and imposed the concomitant punishment.[41]
As held by the Court in Teban
Hardware and Auto Supply Co. v. Tapucar:[42]
The personal and official actuations of
every member of the Bench must be beyond reproach and above suspicion.
The faith and confidence of the public in the administration of justice cannot
be maintained if a Judge who dispenses it is not equipped with the cardinal
judicial virtue of moral integrity, and if he obtusely continues to commit an
affront to public decency. In fact, moral integrity is more than a
virtue; it is a necessity in the Judiciary.
The inherent value of judicial decisions goes beyond the resolution of dispute between two parties. From the perspective of the judge, he has fulfilled his minimum burden when he has disposed of the case. Yet from the perspective of the public, it is only through publicized decisions that the public experiences the nearest approximation of a democratic experience from the third branch of Government.
Decisions and opinions of a court are of
course matters of public concern or interest for these are the authorized
expositions and interpretations of the laws, binding upon all citizens, of
which every citizen is charged with knowledge. Justice thus requires that all should have
free access to the opinions of judges and justices, and it would be against sound public
policy to prevent, suppress or keep the earliest knowledge of these from the
public.[43]
The clearest manifestation of
adherence to these standards is through a Justice’s written opinions. In the
democratic framework, it is the only way by which the public can check the
performance of such public officer’s obligations. Plagiarism in judicial
opinions detracts directly from the legitimacy of the judge's ruling and
indirectly from the judiciary's legitimacy.[44]
It is objectionable not only because of its inherent capacity to harm, but the
overarching damage it wreaks on the dignity of the Court as a whole.
The Court’s Educative Function
The Court’s first Decision in this case hinged on the difference between the academic publishing model on the one hand, and the judicial system on the other. It proceeded to conclude that courts are encouraged to cite “historical legal data, precedents, and related studies” in their decisions, so that “the judge is not expected to produce original scholarship in every respect.”
This argument presents a narrower view of the role of the courts than what this country’s history consistently reveals: the judiciary plays a more creative role than just traditional scholarship. No matter how hesitantly it assumes this duty and burden, the courts have become moral guideposts in the eyes of the public.
Easily the most daunting task which confronts a newly appointed judge is how to write decisions. It is truly a formidable challenge considering the impact of a court’s judgment reverberates throughout the community in which it is rendered, affecting issues of life, liberty, and property in ways that are more pervasive and penetrating than what usually appears on the surface – or under it.[45]
The impact of judicial decisions has even been codified in paragraph 2 of the Canon of Judicial Ethics: “Every judge should at all times be alert in his rulings and in the conduct of the business of his court, so far as he can, to make it useful to litigants and to the community.”
The error in the contention of the majority that judicial writing does not put a premium on originality is evident. In the words of Daniel Farber, stare decisis has become an oft-repeated catchphrase to justify an unfounded predisposition to repeating maxims and doctrines devoid of renewed evaluation.
In reviewing the Court's work, we saw a fixation on verbal formulas; likewise, race scholarship frequently seems to suffer from a similar fixation on stylized rhetoric. Yet Holmes' adage defines the problem a bit too narrowly–suggesting that we mostly need less abstraction and more concreteness. This deficiency actually is part of the problem; we could surely benefit from more empirical research and sensitivity to concrete factual situations. Yet, the problem goes beyond that.[46]
The consistent resort to stare decisis fails to take into account that in the exercise of the Court’s self-proclaimed symbolic function, its first accountability is to its audience: the public. Its duty of guiding the bench and the bar comes a close second.
Consider
first the judge. A key weakness of current Supreme Court opinions seems to be
that judges have sometimes lost track of whom they are addressing or what they
are trying to accomplish. Of course, they have no literal clients, but they
seek to advance a set of values and perspectives that might serve as the basis
for identifying metaphorical clients…The purpose, then, is to help the system
work as well as possible according to its own norms and goals…
Often, the purpose is to guide other
courts to advance the client's interests in their own decisions. In this
respect, the important part of the opinion is that portion speaking to future
cases–though as we have seen, judges sometimes fail to focus their energies
there. Additionally, the opinion, if it is to elicit more than the most grudging
obedience, must appeal to the values and goals of those judges as well as to
the author's.[47]
The Court seemingly views the issuance of opinions to be an end in itself, as if the text of the opinion had some autonomous value unrelated to its ability to communicate to an audience. At a deeper level, the intellectual flaw in the statutory-interpretation opinions is similar. The Court often treats statutes as free-standing texts, with little attention to their historical and social contexts or what their drafters were trying to achieve.[48]
Thus, the value of ethical judicial writing vis-à-vis the role that courts are called upon to play cannot be underestimated.
Worrying about the ethical status of
judicial opinions seems pointless at first. Complaints about decisions and the
opinions that explain them have been around as long as judges have been
judging. As technology has lowered the cost of
research, and of cutting and pasting earlier work, opinions often seem to be
formal exercises that do not suggest deep judicial engagement. Other opinions do show the hand of a deeply engaged
judge, though these can be worse than the cut-and-pasted kind. What then is to
be gained by trying to make an ethical issue of judicial writing? … Professor
Llewellyn said it is in part because the
judicial office acts as “a subduer of self and self-will, as an engine to
promote openness to listen and to understand, to quicken evenhandedness,
patience, sustained effort to see and judge for All-of-Us.” [49]
The lessons taught our country by its singular experience in history has given rise to a more defined place for our courts. With the constitutional mandate that the Supreme Court alone can exercise judicial review, or promulgate rules and guidelines for the bench and the bar, or act as the arbiter between the two branches of government, it is all the more evident that standards for judicial behavior must be formulated. After all, “the most significant aspect of the court's work may lie in just this method and process of decision: by avoiding absolutes, by testing general maxims against concrete particulars, by deciding only in the context of specific controversies, by finding accommodations between polar principles, by holding itself open to the reconsideration of dogma, the court at its best, provides a symbol of reconciliation.”[50]
According to Paul Freund, the great fundamental guarantees of our Constitution are in fact, moral standards wrapped in legal commands. It is only fitting that the Court, in taking on the role of a public conscience, accept the fact that the people expect nothing less from it than the best of faith and effort in adhering to high ethical standards.
I affirm my response to the dispositive portion of the majority Decision in this case as stated in my Dissent of 12 October 2010, with the modification that more work of more authors must be appropriately acknowledged, apologies must be extended, and a more extensively corrected Corrigendum must be issued. Again, I make no pronouncement on liability, not only because the process was erroneously cut short by the majority when it refused to proceed to the next step of determining the duty of diligence that a judge has in supervising the work of his legal research, and whether, in this instance, Justice del Castillo discharged such duty, but also because of the view expressed by Justice Carpio that this Court had best leave the matter of clearing Justice del Castillo to Congress, the body designated by the Constitution for such matters. It seems now that the process of determining the degree of care required in this case may never be undertaken by this Court. One thing is certain, however: we cannot allow a heavily plagiarized Decision to remain in our casebooks – it must be corrected. The issues are very clear to the general public. A wrong must be righted, and this Court must move forward in the right direction.
MARIA LOURDES P. A. SERENO
Associate Justice
[1] Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int’l L. 225 (2006-2007); Christian J. Tams, Enforcing Erga Omnes Obligations in International Law (2005); Evan J. Criddle and Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L. 331 (2009)
[2] Justice Antonio T. Carpio, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, A.M. No. 10-7-17-SC.
[3] Justice Maria Lourdes P. A. Sereno, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM 10-7-17-SC, promulgated 12 October 2010, at 31.
[4] Robert McCorquodale, The Individual and the International Legal System, in International Law, 307-332 (Malcolm Evans ed., 2006).
[5] Phoebe Okowa, Issues of Admissibility and the Law on International Responsibility, in International Law (Malcolm Evans ed., 2006).
[6] Published in the blog of the European Journal of International Law, accessed at http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-versus-the-prime-minister-of-canada. Last visited 24 January 2011, 1:47 p.m.
[7] From the Congressional Report Services Memorandum, by Larry Niksch, Specialist in Asian Affairs, Foreign Affairs, Defense and Trade Division, accessible at http://www.awf.or.jp/pdf/h0076.pdf. This document is covered by a copyright notice from the United States Congressional Research Service posted at the website of the Asian Women’s Fund: http://www.awf.or.jp/e4/un-05.html#etc. Last accessed 24 January 2011, 2:35 p.m.
[8] “So in the process, my practice, which may not be shared by other researchers, my own practice as to doing research for decisions is to basically review all the material that is available insofar as I can. So I review everything, I take notes, I do my own research and then after one has reviewed as much as I am able to, then one starts writing.” TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
[9] “So what happens, Your Honors, is basically, one does an initial review, sorry, I do an initial review on this…all of these goes for the most articles, Law Journal articles. So one does initial review on these articles and if there is an article that immediately strikes one as relevant or as important or as useful in the course of writing a decision, you can click on it, the blue portion, you can click on this and the article will actually appear. And then you can read the whole article, you can skim through the article, if again it seems relevant, it’s possible to e-mail the article to yourself, which makes it easier because…so at least I have, for instance, all of the articles available like in my home.” TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
[10] TSN at 29, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
[11] Approved by the court en banc on 15 November 2005.
[12] A case in which the popup text box would not appear is that in which a block of text containing the note reference mark is selected; the popup text box will only appear if the cursor is hovered near the note reference mark.
[13] Richard A. Posner, The Little Book of Plagiarism, 38 (2007).
[14] Id. at 106.
[15] Laurie Stearns, Copy Wrong: Plagiarism, Property, and the Law, 80 Cal. L. Rev. 513, 518 (1992).
[16] Id. at 522.
[17] Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook, accessed at <http://books.google.com.ph/books?id=7jBZ4yjmgXUC&lpg=PR1&hl=en&pg=PR1#v=onepage&q&f=false> on February 8, 2011, at 715.
[18] Id. at 726.
[19] Id. at 715.
[20] Id. at 718.
[21] Id.
[22] Id. at 726.
[23] Id.
[24] Supra note 3 at 29.
[25] See: In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865 (as cited in Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253); Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 College English 7 (Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403; Klinge v. Ithaca College, 634 N.Y.S.2d 1000 (Sup. Ct. 1995), Napolitano v. Trustees of Princeton Univ., 453 A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 The Georgetown Journal of Legal Ethics 264, note 190; Apotex Inc. v. Janssen-Ortho Inc. 2009, as cited in Emir Aly Crowne-Mohammed, 22 No. 4 Intell. Prop. & Tech. L. J. 15, 1 – as cited in page 28 and footnotes 24, 25, 27 to 29 of my 12 October 2010 Dissent.
[26] Id. at 26.
[27] Discussion Paper No. 07011, October 2007, UP School of Economics.
[28]
World Bank, Project Appraisal Document on a Proposed Loan in the Amount of US$21.9
Million to the Republic of the Philippines for a Judicial Reform Support
Project (Report No: 25504) (2003), available
at
http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2003/07/31/000012009_20030731101244/Rendered/PDF/255040PH0PAD.pdf
(accessed on February 5, 2011).
[29] A minor correction is in order. The “Understanding on the Rules and Procedures Governing the Settlement of Disputes” is Annex 2 to the Marakkesh Agreement Establishing the World Trade Organization. There is no Annex 2 to the General Agreement on Tariffs and Trade 1994. Please see paragraphs 1 to 4 of said GATT 1994 for a list of all its component parts.
[30] Understanding on Dispute Settlement, available at http://www.inquit.com/iqebooks/WTODC/Webversion/prov/eigteen.htm (accessed on February 5, 2011).
[31]
World Trade Organization, Dispute Settlement System Training Module: Chapter 8
– Dispute Settlement Without Recourse to Panels and the Appellate Body, available at http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c8s1p2_e.htm
(accessed on February 5, 2011).
[32] Salonga v. Cruz Paño, G.R. No. 59525, 18 February 1985, 134 SCRA 438.
[33] Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 264 (2008).
[34] Id. at 269.
[35] Promulgated 5 September 1989, took effect 20 October 1989.
[36] Supra note 33 at 240-241.
[37] Administrative Order No. 162.
[38] In Re Letter of Judge Augustus C. Diaz, A.M. No. 07-7-17-SC, 19 September 2007.
[39] A.M. No. RTJ-90-447, 199 SCRA 75, 12 July 1991, 83-84.
[40] Junio v. Rivera, A.M. No. MTJ-91-565. August 30, 1993.
[41] Castillo v. Calanog, Jr., A.M. No. RTJ-90-447, 16 December 1994, 239 SCRA 268
[42] Teban Hardware and Auto Supply Co. v. Tapucar, A.M. No. 1720, 31 January 1981, 102 SCRA 492, 504.
[43] Ex Parte Brown, 166
Ind. 593, 78 N.E. 553 (1906).
[44] Supra note 33 at 282.
[45] Foreword of Justice Ameurfina A. Melencio Herrera, “Fundamentals of Decision Writing for Judges,” (2009).
[46] Daniel Farber, Missing the Play of Intelligence, 6 Wm. & Mary L. Rev. 147, (1994).
[47] Id. at 170.
[48] Id. at footnote 40.
[49] David McGowan, Judicial Writing and the Ethics of the
Judicial Office, 14
Geo. J. Legal Ethics 509, 509.
(2001).
[50] Paul A. Freund, “The Supreme Court” in Talks on American Law 81-94 (rev. ed., 1972).