FACTS:
On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned the said decision. He raised, among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these books to support the assailed decision. These books were: a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence. Interestingly, even the three foreign authors mentioned above, stated that their works were used inappropriately by Justice Del Castillo and that the assailed decision is different from what their works advocated.
On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned the said decision. He raised, among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these books to support the assailed decision. These books were: a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).
As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence. Interestingly, even the three foreign authors mentioned above, stated that their works were used inappropriately by Justice Del Castillo and that the assailed decision is different from what their works advocated.
ISSUE:
Whether or not there is plagiarism in the case at bar.
HELD:
No. There is no plagiarism. Even if there is (as emphasized by the Supreme
Court in its ruling on the Motion for Reconsideration filed by Vinuya et al in
2011), the rule on plagiarism cannot be applied to judicial bodies.
No Plagiarism
At
its most basic, plagiarism means the theft of another persons language,
thoughts, or ideas. To plagiarize, as it is commonly understood according to
Webster, is to take (ideas, writings, etc.) from (another) and pass them off as
ones own.The passing off of the work of another as ones own is thus an
indispensable element of plagiarism.
According
to Black’s Law Dictionary: Plagiarism is the “deliberate and knowing
presentation of another person’s original ideas or creative expressions as
one’s own.”
This
cannot be the case here because as proved by evidence, in the original drafts
of the assailed decision, there was attribution to the three authors but due to
errors made by Justice del Castillo’s researcher, the attributions were
inadvertently deleted. There is therefore no intent by Justice del Castillo to
take these foreign works as his own.
But
in plagiarism, intent is immaterial.
On
this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board
of Regents vs CA, 313 SCRA 404), the Supreme Court never indicated that intent
is not material in plagiarism. To adopt a strict rule in applying plagiarism in
all cases leaves no room for errors. This would be very disadvantageous in
cases, like this, where there are reasonable and logical explanations.
On
the foreign authors’ claim that their works were used inappropriately
According
to the Supreme Court, the passages lifted from their works were merely used as
background facts in establishing the state on international law at various
stages of its development. The Supreme Court went on to state that the foreign
authors’ works can support conflicting theories. The Supreme Court also stated
that since the attributions to said authors were accidentally deleted, it is
impossible to conclude that Justice del Castillo twisted the advocacies that
the works espouse.
No Misconduct
Justice
del Castillo is not guilty of misconduct. The error here is in good faith.
There was no malice, fraud or corruption.
No Inexcusable Negligence (explanation
of Justice Del Castillo)
The
error of Justice del Castillo’s researcher is not reflective of his gross
negligence. The researcher is a highly competent one. The researcher earned
scholarly degrees here and abroad from reputable educational institutions. The
researcher finished third in her class and 4th in the bar examinations. Her
error was merely due to the fact that the software she used, Microsoft Word,
lacked features to apprise her that certain important portions of her drafts
are being deleted inadvertently. Such error on her part cannot be said to be
constitutive of gross negligence nor can it be said that Justice del Castillo
was grossly negligent when he assigned the case to her. Further, assigning
cases to researchers has been a long standing practice to assist justices in
drafting decisions. It must be emphasized though that prior to assignment, the
justice has already spelled out his position to the researcher and in every
sense, the justice is in control in the writing of the draft.
With
the advent of computers, however, as Justice Del Castillos researcher also
explained, most legal references, including the collection of decisions of the
Court, are found in electronic diskettes or in internet websites that offer
virtual libraries of books and articles. Here, as the researcher found items
that were relevant to her assignment, she downloaded or copied them into her
main manuscript, a smorgasbord plate of materials that she thought she might
need.
She
electronically cut relevant materials from books and journals in the Westlaw
website and pasted these to a main manuscript in her computer that contained
the issues for discussion in her proposed report to the Justice. She used the
Microsoft Word program. Later, after she decided on the general shape that her
report would take, she began pruning from that manuscript those materials that
did not fit, changing the positions in the general scheme of those that
remained, and adding and deleting paragraphs, sentences, and words as her
continuing discussions with Justice Del Castillo, her chief editor, demanded.
Parenthetically, this is the standard scheme that computer-literate court
researchers use everyday in their work.
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