CASE DIGEST for Legal Writing

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice Mariano C. Del Castillo
A.M. No. 10-7-17-SC, February 8, 2011

Doctrine:

Never in the judiciary’s more than 100 years of history has the lack of attribution been regarded and demeaned as
plagiarism.

Background of the Previous Case:

G.R. No. 162230 August 13, 2014

Petitioners - Isabelita C. Vinuya, et al., (Members of the Malaya Lolas Organization)

In the landmark decision of Vinuya vs. Executive Secretary, G.R. No. 162230, promulgated
last April 28, 2010, the Supreme Court DISMISSED the petition filed by a group of Filipino “comfort women”
during the Japanese military occupation of the Philippines. The Court, speaking through Justice Mariano C. del
Castillo, held that the petition seeking to compel the Executive Department to espouse the petitioners’
claims for official apology and other forms of reparations against Japan before the International Court
of Justice and other international tribunals has NO MERIT because: (1) the prerogative to determine
whether to espouse petitioners’ claims against Japan belongs exclusively to the Executive Department; and (2)
the Philippines is not under any international obligation to espouse the petitioners’ claims.

Discontented with the foregoing decision, the petitioners in Vinuya filed a motion for reconsideration.
Subsequently, they also filed a supplemental motion for reconsideration, this time accusing the Justice del
Castillo of plagiarizing (copying without attribution) and twisting passages from three foreign legal
articles to support the Court’s position in the Vinuya decision:

(1) A Fiduciary Theory of Jus Cogens by Professors Evan J. Criddle (Associate Professor of Syracuse
University College of Law) and Evan Fox-Descent (Assistant Professor of McGill University Faculty of
Law) published in the Yale Journal of International Law in 2009;

(2) Breaking the Silence: Rape as an International Crime by Mark Ellis (Executive Director of the
International Bar Association), published in the Case Western Reserve Journal of International Law in
2006; and

(3) Enforcing Erga Omnes Obligations in International Law by Professor Christian J. Tams (Chair of
International Law of University of Glasgow School of Law), published in Cambridge University Press
(2005).

The Court then referred the charges against Justice Del Castillo to its Committee on Ethics
and Ethical Standards, chaired by Chief Justice Renato Corona, for investigation and
recommendation. After the proceedings before it, the Committee submitted its findings and
recommendations to the Court en banc, which then treated and decided the controversy as an
administrative matter.
FACTS:

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

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

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

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

True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in
writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics
Committee shows that the attribution to these authors appeared in the beginning drafts of the decision.

ISSUE:

1. Did Justice Del Castillo, in writing the opinion for the Court in the Vinuya case, plagiarize
the published works of authors Tams, Criddle-Descent, and Ellis?

2. Did Justice Del Castillo twist the works of these authors to make it appear that such works
supported the Court’s position in the Vinuya decision?

RULING:

[By a 10-2 vote, with three Justices including Justice del Castillo taking no part, the
Court DISMISSED the charges for lack of merit and held that Justice del Castillo was NOT GUILTY of
plagiarizing and twisting the cited materials and hence did NOT commit gross negligence.]

1. NO, Justice Del Castillo, in writing the opinion for the Court in the Vinuya case, did
NOT plagiarize the published works of authors Tams, Criddle-Descent, and Ellis.
.
At its most basic, plagiarism means the theft of another person’s 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 one’s own.” The passing off of the work of another as one’s
own is thus an indispensable element of plagiarism.

As regards that one passage from Professor Tams, the Court believes that whether or not
the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners
is not an ethical matter but one concerning clarity of writing. The statement “See Tams, Enforcing
Obligations Erga Omnes in International Law (2005)” in the Vinuya decision is an attribution no matter
if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether
negates the idea that Justice Del Castillo passed off the challenged passages as his own.

That it would have been better had Justice Del Castillo used the introductory phrase “cited in”
rather than the phrase “See” would make a case of mere inadvertent slip in attribution rather than a
case of “manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it
would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many
would be target of abuse for every editorial error, for every mistake in citing pagination, and for every
technical detail of form.

As regards the passages from Ellis, the Court notes that the lengthy passages in Footnote
65 of Vinuya came almost verbatim from Ellis’ article but did not contain an acknowledgment or
introduction that they are from that article. Moreover, as regards the passages from the work of
Professors Criddle and Descent, it was also observed that the Vinuya decision lifted the portions,
including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens as
footnotes in the Vinuya decision without any attributions made to the two authors. Unless amply
explained, these unattributed lifting from the works of Ellis and Criddle-Descent could be construed as
plagiarism.

The explanation came from one of Justice Del Castillo’s researchers, a court-employed
attorney. She explained how she accidentally deleted the attributions, originally planted in the
beginning drafts of her report to him, which report eventually became the working draft of the
decision. She said that, for most parts, she did her research electronically. For international
materials, she sourced these mainly from Westlaw, an online research service for legal and law-related
materials to which the Court subscribes. The researcher showed the Committee the early drafts of her
report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-
Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of
editing and cleaning up her draft, the researcher accidentally deleted the attributions.

It was notable that neither Justice Del Castillo nor his researcher had a motive or reason for
omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly
respected professors of international law. The law journals that published their works have
exceptional reputations. It did not make sense to intentionally omit attribution to these authors when
the decision cites an abundance of other sources. Citing these authors as the sources of the lifted
passages would enhance rather than diminish their informative value. Both Justice Del Castillo and
his researcher gain nothing from the omission. Thus, the failure to mention the works of Criddle-
Decent and Ellis was unquestionably due to inadvertence or pure oversight.

2. NO, Justice Del Castillo did NOT twist the works of authors Tams, Criddle-Descent,
and Ellis to make it appear that such works supported the Court’s position in
the Vinuya decision.

The decision [in Vinuya] did NOT twist the passages from Tams, Criddle-Descent, and
Ellis. To twist means “to distort or pervert the meaning of.” For example, if one lifts the lyrics of the
National Anthem, uses it in his work, and declares that Jose Palma who wrote it “did not love his
country,” then there is “twisting” or misrepresentation of what the anthem’s lyrics said. Here, nothing
in the Vinuya decision said or implied that, based on the lifted passages, authors Tams, Criddle-
Descent, and Ellis supported the Court’s conclusion that the Philippines is not under any obligation in
international law to espouse Vinuya et al.’s claims.

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

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

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

NOTE:

Webster Definition as to Plagiarism:

"to steal and pass off as one’s own" the ideas or words of another. Stealing implies malicious taking.

Black’s Law Dictionary as to Plagiarism:

"deliberate and knowing presentation of another person's original ideas or creative expressions as one’s own."

Loyola Schools Code of Academic Integrity ordains that:

"plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one’s self
what is not one’s work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred.
Students who plead ignorance or appeal to lack of malice are not excused."

Decision of the courts:

“Justice, not originality, form, and style, is the object of every decision of a court of law.”

Doctrine of Stare Decisis:

Once the Court has "laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle,
and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property
are the same."

Tendencies of the court:

“because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift
passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators.”

Duncan Webb:
“When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language,
and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other
lawyers can thus freely use these without fear of committing some wrong or incurring some liability.”

“While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the
case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution.”
Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial
Opinion Writing Handbook:
“A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas,
words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party’s
brief are used without giving attribution. Thus, judges are free to use whatever sources they deem appropriate to
resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide
cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to
resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.”