officials, requesting assistance in filing claims against the Japanese

military officers who established the comfort women stations. But

that Department declined, saying that petitioners individual claims
had already been fully satisfied under the Peace Treaty between
the Philippines and Japan.

Petitioners wanted the Court to render judgment, compelling the

EN BANC Executive Department to espouse their claims for official apology
and other forms of reparations against Japan before the
A.M. No. 10-7-17-SC : October 15, 2010 International Court of Justice and other international tribunals.

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., On April 28, 2010, the Court rendered judgment dismissing
AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO. petitioners action. Justice Mariano C. del Castillo wrote the decision
for the Court. The Court essentially gave two reasons for its
DECISION decision: it cannot grant the petition because, first, the Executive
Department has the exclusive prerogative under the Constitution
and the law to determine whether to espouse petitioners claim
PER CURIAM:
against Japan; and, second, the Philippines is not under any
obligation in international law to espouse their claims.
This case is concerned with charges that, in preparing a decision
for the Court, a designated member plagiarized the works of
On June 9, 2010, petitioners filed a motion for reconsideration of
certain authors and twisted their meanings to support the decision.
the Courts decision. More than a month later on July 18, 2010,
counsel for petitioners, Atty. Herminio Harry Roque, Jr.,
The Background Facts announced in his online blog that his clients would file a
supplemental petition "detailing plagiarism committed by the
Petitioners Isabelita C. Vinuya and about 70 other elderly women, court" under the second reason it gave for dismissing the petition
all members of the Malaya Lolas Organization, filed with the Court and that "these stolen passages were also twisted to support the
in G.R. No. 162230 a special civil action of certiorari with courts erroneous conclusions that the Filipino comfort women of
application for preliminary mandatory injunction against the World War Two have no further legal remedies." The media gave
Executive Secretary, the Secretary of Foreign Affairs, the Secretary publicity to Atty. Roques announcement.
of Justice, and the Office of the Solicitor General.
On July 19, 2010, petitioners filed the supplemental motion for
Petitioners claimed that in destroying villages in the Philippines reconsideration that Atty. Roque announced. It accused Justice Del
during World War II, the Japanese army systematically raped them Castillo of "manifest intellectual theft and outright
and a number of other women, seizing them and holding them in plagiarism"1 when he wrote the decision for the Court and of
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houses or cells where soldiers repeatedly ravished and abused "twisting the true intents of the plagiarized sources to suit the
them. arguments of the assailed Judgment."2 They charged Justice Del
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Castillo of copying without acknowledgement certain passages

Petitioners alleged that they have since 1998 been approaching from three foreign articles:chanroblesvirtualawlibrary

the Executive Department, represented by the respondent public

a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan On July 27, 2010, the Court En Banc referred the charges against
Fox-Descent, Yale Journal of International Law (2009); Justice Del Castillo to its Committee on Ethics and Ethical
Standards, chaired by the Chief Justice, for investigation and
b. Breaking the Silence: Rape as an International Crime by Mark recommendation. The Chief Justice designated retired Justice Jose
Ellis, Case Western Reserve Journal of International Law (2006); C. Vitug to serve as consultant of the Committee. He graciously
and accepted.

c. Enforcing Erga Omnes Obligations by Christian J. Tams, On August 2, 2010, the Committee directed petitioners to
Cambridge University Press (2005). comment on Justice Del Castillos verified letter. When this was
done, it set the matter for hearing.
Petitioners claim that the integrity of the Courts deliberations in
the case has been put into question by Justice Del Castillos fraud. In the meantime, on July 19, 2010, Evan Criddle wrote on his blog
The Court should thus "address and disclose to the public the truth that he and his co-author Evan Fox-Descent (referred to jointly as
about the manifest intellectual theft and outright plagiarism" 3 that Criddle-Descent) learned of alleged plagiarism involving their work
but Criddles concern, after reading the supplemental motion for
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resulted in gross prejudice to the petitioners.

reconsideration, was the Courts conclusion that prohibitions
against sexual slavery are not jus cogens or internationally binding
Because of the publicity that the supplemental motion for
norms that treaties cannot diminish.
reconsideration generated, Justice Del Castillo circulated a letter to
his colleagues, subsequently verified, stating that when he wrote
the decision for the Court he had the intent to attribute all sources On July 23, 2010, Dr. Mark Ellis wrote the Court expressing
used in it. He said in the pertinent part: concern that in mentioning his work, the Court "may have misread
the argument [he] made in the article and employed them for
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cross purposes." Dr. Ellis said that he wrote the article precisely to
It must be emphasized that there was every intention to attribute
argue for appropriate legal remedy for victims of war crimes.
all sources, whenever due. At no point was there ever any
malicious intent to appropriate anothers work as our own. We
recall that this ponencia was thrice included in the Agenda of the On August 8, 2010, after the referral of the matter to the
Court en banc. It was deliberated upon during the Baguio session Committee for investigation, the Dean of the University of the
on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Philippines (U.P.) College of Law publicized a Statement from his
Each time, suggestions were made which necessitated major faculty, claiming that the Vinuya decision was "an extraordinary
revisions in the draft. Sources were re-studied, discussions act of injustice" and a "singularly reprehensible act of dishonesty
modified, passages added or deleted. The resulting decision and misrepresentation by the Highest Court of the land." The
comprises 34 pages with 78 footnotes. statement said that Justice Del Castillo had a "deliberate intention
to appropriate the original authors work," and that the Courts
decision amounted to "an act of intellectual fraud by copying works
xxxx
in order to mislead and deceive."5 chanroblesvirtuallawlibrary

As regards the claim of the petitioners that the concepts as

On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice
contained in the above foreign materials were "twisted," the same
Renato C. Corona that, although relevant sentences in the Courts
remains their opinion which we do not necessarily share. 4
decision were taken from his work, he was given generic reference
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only in the footnote and in connection with a citation from another

author (Bruno Simma) rather than with respect to the passages
taken from his work. He thought that the form of referencing was After the hearing, the Committee gave the parties ten days to file
inappropriate. Mr. Tams was also concerned that the decision may their respective memoranda. They filed their memoranda in due
have used his work to support an approach to erga omnes concept course. Subsequently after deliberation, the Committee submitted
(obligations owed by individual States to the community of its unanimous findings and recommendations to the Court.
nations) that is not consistent with what he advocated.
The Issues
On August 26, 2010, the Committee heard the parties submissions
in the summary manner of administrative investigations. Counsels This case presents two issues:
from both sides were given ample time to address the Committee
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and submit their evidence. The Committee queried them on these.

1. Whether or not, in writing the opinion for the Court in the
Vinuya case, Justice Del Castillo plagiarized the published works of
Counsels for Justice Del Castillo later asked to be heard with the authors Tams, Criddle-Descent, and Ellis.
other parties not in attendance so they could make submissions
that their client regarded as sensitive and confidential, involving
2. Whether or not Justice Del Castillo twisted the works of these
the drafting process that went into the making of the Courts
authors to make it appear that such works supported the Courts
decision in the Vinuya case. Petitioners counsels vigorously
position in the Vinuya decision.
objected and the Committee sustained the objection. After
consulting Justice Del Castillo, his counsels requested the
Committee to hear the Justices court researcher, whose name The Courts Rulings
need not be mentioned here, explain the research work that went
into the making of the decision in the Vinuya case. The Committee Because of the pending motion for reconsideration in the Vinuya
granted the request. case, the Court like its Committee on Ethics and Ethical Standards
will purposely avoid touching the merits of the Courts decision in
The researcher demonstrated by Power Point presentation how the that case or the soundness or lack of soundness of the position it
attribution of the lifted passages to the writings of Criddle-Descent has so far taken in the same. The Court will deal, not with the
and Ellis, found in the beginning drafts of her report to Justice Del essential merit or persuasiveness of the foreign authors works, but
Castillo, were unintentionally deleted. She tearfully expressed how the decision that Justice Del Castillo wrote for the Court
remorse at her "grievous mistake" and grief for having "caused an appropriated parts of those works and for what purpose the
enormous amount of suffering for Justice Del Castillo and his decision employed the same.
family."6
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At its most basic, plagiarism means the theft of another persons

On the other hand, addressing the Committee in reaction to the language, thoughts, or ideas. To plagiarize, as it is commonly
researchers explanation, counsel for petitioners insisted that lack understood according to Webster, is "to take (ideas, writings, etc.)
of intent is not a defense in plagiarism since all that is required is from (another) and pass them off as ones own."8 The passing off
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for a writer to acknowledge that certain words or language in his of the work of another as ones own is thus an indispensable
work were taken from anothers work. Counsel invoked the Courts element of plagiarism.
ruling in University of the Philippines Board of Regents v. Court of
Appeals and Arokiaswamy William Margaret Celine, 7 arguing that
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The Passages from Tams
standards on plagiarism in the academe should apply with more
force to the judiciary. Petitioners point out that the Vinuya decision lifted passages from
Tams book, Enforcing Erga Omnes Obligations in International Law
(2006) and used them in Footnote 69 with what the author Footnote 65 appears down the bottom of the page. Since the
thought was a mere generic reference. But, although Tams himself lengthy passages in that footnote came almost verbatim from Ellis
may have believed that the footnoting in this case was not "an article,10 such passages ought to have been introduced by an
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appropriate form of referencing,"9 he and petitioners cannot deny

cra1aw acknowledgement that they are from that article. The footnote
that the decision did attribute the source or sources of such could very well have read: chanroblesvirtualawlibrary

passages. Justice Del Castillo did not pass off Tams work as his
own. The Justice primarily attributed the ideas embodied in the 65 In an article, Breaking the Silence: Rape as an International
passages to Bruno Simma, whom Tams himself credited for them. Crime, Case Western Reserve Journal of International Law (2006),
Still, Footnote 69 mentioned, apart from Simma, Tams article as Mark Ellis said: The concept of rape as an international crime is
another source of those ideas. relatively new. This is not to say that rape has never been
historically prohibited, particularly in war. But modern-day
The Court believes that whether or not the footnote is sufficiently sensitivity to the crime of rape did not emerge until after World
detailed, so as to satisfy the footnoting standards of counsel for War II. In the Nuremberg Charter, the word rape was not
petitioners is not an ethical matter but one concerning clarity of mentioned. The article on crimes against humanity explicitly set
writing. The statement "See Tams, Enforcing Obligations Erga forth prohibited acts, but rape was not mentioned by name. (For
Omnes in International Law (2005)" in the Vinuya decision is an example, the Treaty of Amity and Commerce between Prussia and
attribution no matter if Tams thought that it gave him somewhat the United States provides that in time of war all women and
less credit than he deserved. Such attribution altogether negates children "shall not be molested in their persons." The Treaty of
the idea that Justice Del Castillo passed off the challenged Amity and Commerce, Between his Majesty the King of Prussia and
passages as his own. 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. The 1863
That it would have been better had Justice Del Castillo used the Lieber Instructions classified rape as a crime of "troop discipline."
introductory phrase "cited in" rather than the phrase "See" would (Mitchell, The Prohibition of Rape in International Humanitarian
make a case of mere inadvertent slip in attribution rather than a Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J.
case of "manifest intellectual theft and outright plagiarism." If the Comp. Intl. L. 219, 224). It specified rape as a capital crime
Justices citations were imprecise, it would just be a case of bad punishable by the death penalty (Id. at 236). The 1907 Hague
footnoting rather than one of theft or deceit. If it were otherwise, Convention protected women by requiring the protection of their
many would be target of abuse for every editorial error, for every "honour." ("Family honour and rights, the lives of persons, and
mistake in citing pagination, and for every technical detail of form. 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
The Passages from Ellis
95 (I) of December 11, 1946 entitled, "Affirmation of the Principles
and Criddle-Descent
of International Law recognized by the Charter of the Nürnberg
Tribunal"; General Assembly document A/64/Add.1 of 1946; See
Petitioners also attack the Courts decision for lifting and using as Agreement for the Prosecution and Punishment of the Major War
footnotes, without attribution to the author, passages from the Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82
published work of Ellis. The Court made the following statement on U.N.T.S. 279. Article 6(c) of the Charter established crimes against
page 27 of its decision, marked with Footnote 65 at the end: chanroblesvirtualawlibrary
humanity as the following: chanroblesvirtualawlibrary

We fully agree that rape, sexual slavery, torture, and sexual CRIMES AGAINST HUMANITY: namely, murder, extermination,
violence are morally reprehensible as well as legally prohibited enslavement, deportation, and other inhumane acts committed
under contemporary international law. 65 xxx against any civilian population, before or during the war, or
persecutions on political, racial or religious grounds in execution of Next, petitioners also point out that the following eight sentences
or in connection with any crime within the Jurisdiction of the and their accompanying footnotes appear in text on pages 30-32
Tribunal, whether or not in violation of the domestic law of the of the Vinuya decision:chanroblesvirtualawlibrary

country where perpetrated.

xxx In international law, the term "jus cogens" (literally,
The Nuremberg Judgment did not make any reference to rape and "compelling law") refers to norms that command peremptory
rape was not prosecuted. (Judge Gabrielle Kirk McDonald, authority, superseding conflicting treaties and custom. Jus cogens
The International Criminal Tribunals Crime and Punishment in the norms are considered peremptory in the sense that they are
International Arena,7 ILSA J. Intl. Comp. L. 667, 676.) However, mandatory, do not admit derogation, and can be modified only by
International Military Tribunal for the Far East prosecuted rape general international norms of equivalent authority.71
crimes, even though its Statute did not explicitly criminalize rape.
The Far East Tribunal held General Iwane Matsui, Commander Early strains of the jus cogens doctrine have existed since the
Shunroku Hata and Foreign Minister Hirota criminally responsible 1700s,72 but peremptory norms began to attract greater scholarly
for a series of crimes, including rape, committed by persons under attention with the publication of Alfred von Verdross's influential
their authority. (The Tokyo Judgment: Judgment Of The 1937 article, Forbidden Treaties in International Law.73 The
International Military Tribunal For The Far East 445-54 (1977). recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the
The first mention of rape as a specific crime came in December Law of Treaties (VCLT).74 Though there was a consensus that
1945 when Control Council Law No. 10 included the term rape in certain international norms had attained the status of jus
the definition of crimes against humanity. Law No. 10, adopted by cogens,75 the ILC was unable to reach a consensus on the proper
the four occupying powers in Germany, was devised to establish a criteria for identifying peremptory norms.
uniform basis for prosecuting war criminals in German courts.
(Control Council for Germany, Law No. 10: Punishment of Persons After an extended debate over these and other theories of jus
Guilty of War Crimes, Crimes Against Peace and Against Humanity, cogens, the ILC concluded ruefully in 1963 that "there is not as yet
Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, any generally accepted criterion by which to identify a general rule
53 (1946)) of international law as having the character of jus cogens."76 In a
commentary accompanying the draft convention, the ILC indicated
The 1949 Geneva Convention Relative to the Treatment of that "the prudent course seems to be to x x x leave the full
Prisoners of War was the first modern-day international instrument content of this rule to be worked out in State practice and in the
to establish protections against rape for women. Geneva jurisprudence of international tribunals."77 Thus, while the
Convention Relative to the Protection of Civilian Persons in Time of existence of jus cogens in international law is undisputed, no
War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 consensus exists on its substance,77 beyond a tiny core of
(entry into force Oct. 20, 1950) [hereinafter Fourth Geneva principles and rules.78
Convention].Furthermore, the ICC, the ICTY, and the International
Criminal Tribunal for Rwanda (ICTR) have significantly advanced Admittedly, the Vinuya decision lifted the above, including their
the crime of rape by enabling it to be prosecuted as genocide, a footnotes, from Criddle-Descents article, A Fiduciary Theory of Jus
war crime, and a crime against humanity. Cogens.11 Criddle-Descents footnotes were carried into the Vinuya
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decisions own footnotes but no attributions were made to the two

But, as it happened, the acknowledgment above or a similar authors in those footnotes.
introduction was missing from Footnote 65.
The Explanation
Unless amply explained, the above lifting from the works of Ellis the Westlaw website and "pasted" these to a "main manuscript" in
and Criddle-Descent could be construed as plagiarism. But one of her computer that contained the issues for discussion in her
Justice Del Castillos researchers, a court-employed attorney, proposed report to the Justice. She used the Microsoft Word
explained how she accidentally deleted the attributions, originally program.12 Later, after she decided on the general shape that her
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planted in the beginning drafts of her report to him, which report report would take, she began pruning from that manuscript those
eventually became the working draft of the decision. She said that, materials that did not fit, changing the positions in the general
for most parts, she did her research electronically. For scheme of those that remained, and adding and deleting
international materials, she sourced these mainly from Westlaw, paragraphs, sentences, and words as her continuing discussions
an online research service for legal and law-related materials to with Justice Del Castillo, her chief editor, demanded.
which the Court subscribes. Parenthetically, this is the standard scheme that computer-literate
court researchers use everyday in their work.
In the old days, the common practice was that after a Justice
would have assigned a case for study and report, the researcher Justice Del Castillos researcher showed the Committee the early
would source his materials mostly from available law books and drafts of her report in the Vinuya case and these included the
published articles on print. When he found a relevant item in a passages lifted from the separate articles of Criddle-Descent and of
book, whether for one side of the issue or for the other, he would Ellis with proper attributions to these authors. But, as it happened,
place a strip of paper marker on the appropriate page, pencil mark in the course of editing and cleaning up her draft, the researcher
the item, and place the book on his desk where other relevant accidentally deleted the attributions.
books would have piled up. He would later paraphrase or copy the
marked out passages from some of these books as he typed his First Finding
manuscript on a manual typewriter. This occasion would give him a
clear opportunity to attribute the materials used to their authors or
The Court adopts the Committees finding that the researchers
sources.
explanation regarding the accidental removal of proper attributions
to the three authors is credible. Given the operational properties of
With the advent of computers, however, as Justice Del Castillos the Microsoft program in use by the Court, the accidental
researcher also explained, most legal references, including the decapitation of attributions to sources of research materials is not
collection of decisions of the Court, are found in electronic remote.
diskettes or in internet websites that offer virtual libraries of books
and articles. Here, as the researcher found items that were
For most senior lawyers and judges who are not computer literate,
relevant to her assignment, she downloaded or copied them into
a familiar example similar to the circumstances of the present case
her "main manuscript," a smorgasbord plate of materials that she
would probably help illustrate the likelihood of such an accident
thought she might need. The researchers technique in this case is
happening. If researcher X, for example, happens to be interested
not too far different from that employed by a carpenter. The
in "the inalienable character of juridical personality" in connection
carpenter first gets the pieces of lumber he would need, choosing
with an assignment and if the book of the learned Civilist, Arturo
the kinds and sizes suitable to the object he has in mind, say a
M. Tolentino, happens to have been published in a website,
table. When ready, he would measure out the portions he needs,
researcher X would probably show interest in the following passage
cut them out of the pieces of lumber he had collected, and
from that book:
construct his table. He would get rid of the scraps.
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xxx Both juridical capacity and capacity to act are not rights, but
Here, Justice Del Castillos researcher did just that. She
qualities of persons; hence, they cannot be alienated or
electronically "cut" relevant materials from books and journals in
renounced.15
xxx The tag is of course temporary and would later have to go. It
serves but a marker to help researcher X maneuver the passage
_____________________________ into the right spot in his final manuscript.
15 3 Von Tuhr 296; 1 Valverde 291.
The mistake of Justice Del Castillos researcher is that, after the
Because the sentence has a footnote mark (#15) that attributes Justice had decided what texts, passages, and citations were to be
the idea to other sources, it is evident that Tolentino did not retained including those from Criddle-Descent and Ellis, and when
originate it. The idea is not a product of his intellect. He merely she was already cleaning up her work and deleting all subject tags,
lifted it from Von Tuhr and Valverde, two reputable foreign she unintentionally deleted the footnotes that went with such
authors. tagswith disastrous effect.

When researcher X copies and pastes the above passage and its To understand this, in Tolentinos example, the equivalent would be
footnote into a manuscript-in-the-making in his computer, the researcher Xs removal during cleanup of the tag, "The inalienable
footnote number would, given the computer program in use, character of juridical personality.23," by a simple "delete"
automatically change and adjust to the footnoting sequence of operation, and the unintended removal as well of the
researcher Xs manuscript. Thus, if the preceding footnote in the accompanying footnote (#23). The erasure of the footnote
manuscript when the passage from Tolentino was pasted on it is eliminates the link between the lifted passage and its source,
23, Tolentinos footnote would automatically change from the Tolentinos book. Only the following would remain in the
original Footnote 15 to Footnote 24. manuscript: chanroblesvirtualawlibrary

But then, to be of use in his materials-gathering scheme, xxx Both juridical capacity and capacity to act are not rights, but
researcher X would have to tag the Tolentino passage with a short qualities of persons; hence, they cannot be alienated or
description of its subject for easy reference. A suitable subject renounced.43
description would be: "The inalienable character of juridical
personality.23" The footnote mark, 23 From Tolentino, which _____________________________
researcher X attaches to the subject tag, serves as reminder to 43 3 Von Tuhr 296; 1 Valverde 291.
him to attribute the passage in its final form to Tolentino. After the
passage has been tagged, it would now appear like this: chanroblesvirtualawlibrary

As it happened, the Microsoft word program does not have a

function that raises an alarm when original materials are cut up or
The inalienable character of juridical personality.23 pruned. The portions that remain simply blend in with the rest of
the manuscript, adjusting the footnote number and removing any
xxx Both juridical capacity and capacity to act are not rights, but clue that what should stick together had just been severed.
qualities of persons; hence, they cannot be alienated or
renounced.24 This was what happened in the attributions to Ellis and Criddle-
Descent. The researcher deleted the subject tags and, accidentally,
xxx their accompanying footnotes that served as reminder of the
sources of the lifted passages. With 119 sources cited in the
decision, the loss of the 2 of them was not easily detectable.
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
Petitioners point out, however, that Justice Del Castillos verified Petitioners of course insist that intent is not material in committing
letter of July 22, 2010 is inconsistent with his researchers claim plagiarism since all that a writer has to do, to avoid the charge, is
that the omissions were mere errors in attribution. They cite the to enclose lifted portions with quotation marks and acknowledge
fact that the Justice did not disclose his researchers error in that the sources from which these were taken. 14 Petitioners point out
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letter despite the latters confession regarding her mistake even that the Court should apply to this case the ruling in University of
before the Justice sent his letter to the Chief Justice. By denying the Philippines Board of Regents v. Court of Appeals and
plagiarism in his letter, Justice Del Castillo allegedly perjured Arokiaswamy William Margaret Celine.15 They argue that
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himself and sought to whitewash the case. 13 chanroblesvirtuallawlibrary standards on plagiarism in the academe should apply with more
force to the judiciary.
But nothing in the July 22 letter supports the charge of false
testimony. Justice Del Castillo merely explained "that there was But petitioners theory ignores the fact that plagiarism is essentially
every intention to attribute all sources whenever due" and that a form of fraud where intent to deceive is inherent. Their theory
there was never "any malicious intent to appropriate anothers provides no room for errors in research, an unrealistic position
work as our own," which as it turns out is a true statement. He considering that there is hardly any substantial written work in any
recalled how the Court deliberated upon the case more than once, field of discipline that is free of any mistake. The theory places an
prompting major revisions in the draft of the decision. In the automatic universal curse even on errors that, as in this case, have
process, "(s)ources were re-studied, discussions modified, reasonable and logical explanations.
passages added or deleted." Nothing in the letter suggests a
cover-up. Indeed, it did not preclude a researchers inadvertent Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism
error. as the "deliberate and knowing presentation of another person's
original ideas or creative expressions as one's own." 16 Thus,
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And it is understandable that Justice Del Castillo did not initially plagiarism presupposes intent and a deliberate, conscious effort to
disclose his researchers error. He wrote the decision for the Court steal anothers work and pass it off as ones own.
and was expected to take full responsibility for any lapse arising
from its preparation. What is more, the process of drafting a Besides, the Court said nothing in U.P. Board of Regents that
particular decision for the Court is confidential, which explained his would indicate that an intent to pass off anothers work as ones
initial request to be heard on the matter without the attendance of own is not required in plagiarism. The Court merely affirmed the
the other parties. academic freedom of a university to withdraw a masters degree
that a student obtained based on evidence that she
Notably, neither Justice Del Castillo nor his researcher had a misappropriated the work of others, passing them off as her own.
motive or reason for omitting attribution for the lifted passages to This is not the case here since, as already stated, Justice Del
Criddle-Descent or to Ellis. The latter authors are highly respected Castillo actually imputed the borrowed passages to others.
professors of international law. The law journals that published
their works have exceptional reputations. It did not make sense to Second Finding
intentionally omit attribution to these authors when the decision
cites an abundance of other sources. Citing these authors as the
The Court also adopts the Committees finding that the omission of
sources of the lifted passages would enhance rather than diminish
attributions to Criddle-Descent and Ellis did not bring about an
their informative value. Both Justice Del Castillo and his researcher
impression that Justice Del Castillo himself created the passages
gain nothing from the omission. Thus, the failure to mention the
that he lifted from their published articles. That he merely got
works of Criddle-Decent and Ellis was unquestionably due to
those passages from others remains self-evident, despite the
inadvertence or pure oversight.
accidental deletion. The fact is that he still imputed the passages
to the sources from which Criddle-Descent and Ellis borrowed them in their decisions. The judge is not expected to produce original
in the first place. scholarship in every respect. The strength of a decision lies in the
soundness and general acceptance of the precedents and long held
This is best illustrated in the familiar example above. After the legal opinions it draws from.
deletion of the subject tag and, accidentally, its footnote which
connects to the source, the lifted passage would appear like Third Finding
this:
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Petitioners allege that the decision twisted the passages from

xxx Both juridical capacity and capacity to act are not rights, but Tams, Criddle-Descent, and Ellis. The Court adopts the
qualities of persons; hence, they cannot be alienated or Committees finding that this is not so. Indeed, this allegation of
renounced.43 twisting or misrepresentation remains a mystery to the Court. To
twist means "to distort or pervert the meaning of."19 For example,
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_____________________________ if one lifts the lyrics of the National Anthem, uses it in his work,
43 3 Von Tuhr 296; 1 Valverde 291. and declares that Jose Palma who wrote it "did not love his
country," then there is "twisting" or misrepresentation of what the
anthems lyrics said. Here, nothing in the Vinuya decision said or
Although the unintended deletion severed the passages link to
implied that, based on the lifted passages, authors Tams, Criddle-
Tolentino, the passage remains to be attributed to Von Tuhr and
Descent, and Ellis supported the Courts conclusion that the
Valverde, the original sources that Tolentino himself cites. The text
Philippines is not under any obligation in international law to
and its footnote reference cancel out any impression that the
espouse Vinuya et al.s claims.
passage is a creation of researcher X. It is the same with the
passages from Criddle-Descent and Ellis. Because such passages
remained attributed by the footnotes to the authors original The fact is that, first, since the attributions to Criddle-Descent and
sources, the omission of attributions to Criddle-Descent and Ellis Ellis were accidentally deleted, it is impossible for any person
gave no impression that the passages were the creations of Justice reading the decision to connect the same to the works of those
Del Castillo. This wholly negates the idea that he was passing them authors as to conclude that in writing the decision Justice Del
off as his own thoughts. Castillo "twisted" their intended messages. And, second, the lifted
passages provided mere background facts that established the
state of international law at various stages of its development.
True the subject passages in this case were reproduced in the
These are neutral data that could support conflicting theories
Vinuya decision without placing them in quotation marks. But such
regarding whether or not the judiciary has the power today to
passages are much unlike the creative line from Robert
order the Executive Department to sue another country or whether
Frost,17 "The woods are lovely, dark, and deep, but I have
the duty to prosecute violators of international crimes has attained
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promises to keep, and miles to go before I sleep, and miles to go

the status of jus cogens.
before I sleep." The passages here consisted of common
definitions and terms, abridged history of certain principles of law,
and similar frequently repeated phrases that, in the world of legal Considering how it was impossible for Justice Del Castillo to have
literature, already belong to the public realm. twisted the meaning of the passages he lifted from the works of
Tams, Criddle-Descent, and Ellis, the charge of "twisting" or
misrepresentation against him is to say the least, unkind. To be
To paraphrase Bast and Samuels,18 while the academic publishing
more accurate, however, the charge is reckless and obtuse.
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model is based on the originality of the writers thesis, the judicial

system is based on the doctrine of stare decisis, which encourages
courts to cite historical legal data, precedents, and related studies No Misconduct
On occasions judges and justices have mistakenly cited the wrong decision. The wheels of justice in the Supreme Court will grind to a
sources, failed to use quotation marks, inadvertently omitted halt under such a proposition.
necessary information from footnotes or endnotes. But these do
not, in every case, amount to misconduct. Only errors that are What is important is that, in this case, Justice Del Castillo retained
tainted with fraud, corruption, or malice are subject of disciplinary control over the writing of the decision in the Vinuya case without,
action.20 This is not the case here. Justice Del Castillos acts or
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however, having to look over his researchers shoulder as she

omissions were not shown to have been impelled by any of such cleaned up her draft report to ensure that she hit the right
disreputable motives.21 If the rule were otherwise, no judge or
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computer keys. The Justices researcher was after all competent in

justice, however competent, honest, or dedicated he may be, can the field of assignment given her. She finished law from a leading
ever hope to retire from the judiciary with an unblemished law school, graduated third in her class, served as Editor-in Chief
record.22 chanroblesvirtuallawlibrary

of her schools Law Journal, and placed fourth in the bar

examinations when she took it. She earned a masters degree in
No Inexcusable Negligence International Law and Human Rights from a prestigious university
in the United States under the Global-Hauser program, which
Finally, petitioners assert that, even if they were to concede that counsel for petitioners concedes to be one of the top post graduate
the omission was the result of plain error, Justice Del Castillo is programs on International Law in the world. Justice Del Castillo did
nonetheless guilty of gross inexcusable negligence. They point out not exercise bad judgment in assigning the research work in the
that he has full control and supervision over his researcher and Vinuya case to her.
should not have surrendered the writing of the decision to the
latter.23
chanroblesvirtuallawlibrary Can errors in preparing decisions be prevented? Not until
computers cease to be operated by human beings who are
But this assumes that Justice Del Castillo abdicated the writing of vulnerable to human errors. They are hypocrites who believe that
the Vinuya decision to his researcher, which is contrary to the the courts should be as error-free as they themselves are.
evidence adduced during the hearing. As his researcher testified,
the Justice set the direction that the research and study were to Incidentally, in the course of the submission of petitioners exhibits,
take by discussing the issues with her, setting forth his position on the Committee noted that petitioners Exhibit J, the accusing
those issues, and reviewing and commenting on the study that she statement of the Faculty of the U.P. College of Law on the
was putting together until he was completely satisfied with it. 24 In
cra1aw allegations of plagiarism and misinterpretation, was a mere
every sense, Justice Del Castillo was in control of the writing of the dummy. The whole of the statement was reproduced but the
report to the Court, which report eventually became the basis for signatures portion below merely listed the names of 38 faculty
the decision, and determined its final outcome. members, in solid rows, with the letters "Sgd" or "signed" printed
beside the names without exception. These included the name of
Assigning cases for study and research to a court attorney, the retired Supreme Court Justice Vicente V. Mendoza, a U.P.
equivalent of a "law clerk" in the United States Supreme Court, is professor.
standard practice in the high courts of all nations. This is dictated
by necessity. With about 80 to 100 cases assigned to a Justice in Because the Committee declined to admit a mere dummy of
our Court each month, it would be truly senseless for him to do all Exhibit J, it directed Atty. Roque to present the signed copy within
the studies and research, going to the library, searching the three days of the August 26 hearing.25 He complied. As it turned
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internet, checking footnotes, and watching the punctuations. If he out, the original statement was signed by only a minority of the
does all these by himself, he would have to allocate at least one to faculty members on the list. The set of signatories that appeared
two weeks of work for each case that has been submitted for like solid teeth in the dummy turned out to be broken teeth in the
original. Since only 37 out of the 81 on the list signed the separate pending matter concerning that supposed Faculty
document, it does not appear to be a statement of the Faculty but statement.
of just some of its members. And retired Justice V. V. Mendoza did
not sign the statement, contrary to what the dummy represented. SO ORDERED.
The Committee wondered why the Dean submitted a dummy of
the signed document when U.P. has an abundance of copying
machines.

Since the above circumstances appear to be related to separate en

banc matter concerning the supposed Faculty statement, there is a
need for the Committee to turn over the signed copy of the same
to the en banc for its consideration in relation to that matter.

WHEREFORE, in view of all of the above, the Court: chanroblesvirtualawlibrary

1. DISMISSES for lack of merit petitioner Vinuya, et al.s charges of

plagiarism, twisting of cited materials, and gross neglect against
Justice Mariano C. del Castillo;

2. DIRECTS the Public Information Office to send copies of this

decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr.
Mark Ellis, and Professor Christian J. Tams at their known
addresses;

3. DIRECTS the Clerk of Court to provide all court attorneys

involved in legal research and reporting with copies of this decision
and to enjoin them to avoid editing errors committed in
the Vinuya case while using the existing computer program
especially when the volume of citations and footnoting is
substantial; and

4. Finally, DIRECTS the Clerk of Court to acquire the necessary

software for use by the Court that can prevent future lapses in
citations and attributions.

Further, the Court DIRECTS the Committee on Ethics and Ethical

Standards to turn over to the en banc the dummy as well as the
signed copy of petitioners Exhibit J, entitled "Restoring Integrity,"
a statement by the Faculty of the University of the Philippines
College of Law for the en bancs consideration in relation to the
 Republic of the Philippines own."2 The presentation of another person’s ideas as one’s own
SUPREME COURT must be deliberate or premeditated—a taking with ill intent.
Manila
There is no commonly-used dictionary in the world that embraces
EN BANC in the meaning of plagiarism errors in attribution by mere accident
or in good faith.
A.M. No. 10-7-17-SC February 8, 2011
Certain educational institutions of course assume different norms
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., in its application. For instance, the Loyola Schools Code of
AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO. Academic Integrity ordains that "plagiarism is identified not
through intent but through the act itself. The objective act of
RESOLUTION 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
PER CURIAM:
to lack of malice are not excused."3
Petitioners Isabelita C. Vinuya, et al., all members of the Malaya
But the Court’s decision in the present case does not set aside
Lolas Organization, seek reconsideration of the decision of the
such norm. The decision makes this clear, thus:
Court dated October 12, 2010 that dismissed their charges of
plagiarism, twisting of cited materials, and gross neglect against
Justice Mariano Del Castillo in connection with the decision he To paraphrase Bast and Samuels, while the academic publishing
wrote for the Court in G.R. No. 162230, entitled Vinuya v. model is based on the originality of the writer’s thesis, the judicial
Romulo.1 system is based on the doctrine of stare decisis, which
encourages courts to cite historical legal data, precedents, and
related studies in their decisions. The judge is not expected to
Mainly, petitioners claim that the Court has by its decision
produce original scholarship in every respect. The strength of a
legalized or approved of the commission of plagiarism in the
decision lies in the soundness and general acceptance of the
Philippines. This claim is absurd. The Court, like everyone else,
precedents and long held legal opinions it draws from. 4
condemns plagiarism as the world in general understands and
uses the term.
Original scholarship is highly valued in the academe and rightly
so. A college thesis, for instance, should contain dissertations
Plagiarism, a term not defined by statute, has a popular or
embodying results of original research, substantiating a specific
common definition. To plagiarize, says Webster, is "to steal and
view.5 This must be so since the writing is intended to earn for the
pass off as one’s own" the ideas or words of another. Stealing
student an academic degree, honor, or distinction. He earns no
implies malicious taking. Black’s Law Dictionary, the world’s
credit nor deserves it who takes the research of others, copies
leading English law dictionary quoted by the Court in its decision,
their dissertations, and proclaims these as his own. There should
defines plagiarism as the "deliberate and knowing presentation of
be no question that a cheat deserves neither reward nor
another person's original ideas or creative expressions as one’s
sympathy.
But the policy adopted by schools of disregarding the element of And because judicial precedents are not always clearly
malicious intent found in dictionaries is evidently more in the delineated, they are quite often entangled in apparent
nature of establishing what evidence is sufficient to prove the inconsistencies or even in contradictions, prompting experts in
commission of such dishonest conduct than in rewriting the the law to build up regarding such matters a large body of
meaning of plagiarism. Since it would be easy enough for a commentaries or annotations that, in themselves, often become
student to plead ignorance or lack of malice even as he has part of legal writings upon which lawyers and judges draw
copied the work of others, certain schools have adopted the materials for their theories or solutions in particular cases. And,
policy of treating the mere presence of such copied work in his because of the need to be precise and correct, judges and
paper sufficient objective evidence of plagiarism. Surely, however, practitioners alike, by practice and tradition, usually lift passages
if on its face the student’s work shows as a whole that he has but from such precedents and writings, at times omitting, without
committed an obvious mistake or a clerical error in one of malicious intent, attributions to the originators.
hundreds of citations in his thesis, the school will not be so
unreasonable as to cancel his diploma. Is this dishonest? No. Duncan Webb, writing for the International
Bar Association puts it succinctly. When practicing lawyers (which
In contrast, decisions of courts are not written to earn merit, include judges) write about the law, they effectively place their
accolade, or prize as an original piece of work or art. Deciding ideas, their language, and their work in the public domain, to be
disputes is a service rendered by the government for the public affirmed, adopted, criticized, or rejected. Being in the public
good. Judges issue decisions to resolve everyday conflicts domain, other lawyers can thus freely use these without fear of
involving people of flesh and blood who ache for speedy justice or committing some wrong or incurring some liability. Thus:
juridical beings which have rights and obligations in law that need
to be protected. The interest of society in written decisions is not The tendency to copy in law is readily explicable. In law accuracy
that they are originally crafted but that they are fair and correct in of words is everything. Legal disputes often centre round the way
the context of the particular disputes involved. Justice, not in which obligations have been expressed in legal documents and
originality, form, and style, is the object of every decision of a how the facts of the real world fit the meaning of the words in
court of law. which the obligation is contained. This, in conjunction with the
risk-aversion of lawyers means that refuge will often be sought in
There is a basic reason for individual judges of whatever level of articulations that have been tried and tested. In a sense therefore
courts, including the Supreme Court, not to use original or unique the community of lawyers have together contributed to this body
language when reinstating the laws involved in the cases they of knowledge, language, and expression which is common
decide. Their duty is to apply the laws as these are written. But property and may be utilized, developed and bettered by anyone. 7
laws include, under the doctrine of stare decisis, judicial
interpretations of such laws as are applied to specific situations. The implicit right of judges to use legal materials regarded as
Under this doctrine, Courts are "to stand by precedent and not to belonging to the public domain is not unique to the Philippines. As
disturb settled point." Once the Court has "laid down a principle of Joyce C. George, whom Justice Maria Lourdes Sereno cites in
law as applicable to a certain state of facts, it will adhere to that her dissenting opinion, observed in her Judicial Opinion Writing
principle, and apply it to all future cases, where facts are Handbook:
substantially the same; regardless of whether the parties or
property are the same."6
A judge writing to resolve a dispute, whether trial or appellate, is In Vinuya, Justice Del Castillo examined and summarized the
exempted from a charge of plagiarism even if ideas, words or facts as seen by the opposing sides in a way that no one has
phrases from a law review article, novel thoughts published in a ever done. He identified and formulated the core of the issues
legal periodical or language from a party’s brief are used without that the parties raised. And when he had done this, he discussed
giving attribution. Thus judges are free to use whatever sources the state of the law relevant to their resolution. It was here that he
they deem appropriate to resolve the matter before them, without drew materials from various sources, including the three foreign
fear of reprisal. This exemption applies to judicial writings authors cited in the charges against him. He compared the
intended to decide cases for two reasons: the judge is not writing divergent views these present as they developed in history. He
a literary work and, more importantly, the purpose of the writing is then explained why the Court must reject some views in light of
to resolve a dispute. As a result, judges adjudicating cases are the peculiar facts of the case and applied those that suit such
not subject to a claim of legal plagiarism.8 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
If the Court were to inquire into the issue of plagiarism respecting work was original. He had but done an honest work.
its past decisions from the time of Chief Justice Cayetano S.
Arellano to the present, it is likely to discover that it has not on The Court will not, therefore, consistent with established practice
occasion acknowledged the originators of passages and views in the Philippines and elsewhere, dare permit the filing of actions
found in its decisions. These omissions are true for many of the to annul the decisions promulgated by its judges or expose them
decisions that have been penned and are being penned daily by to charges of plagiarism for honest work done.
magistrates from the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Courts nationwide and This rule should apply to practicing lawyers as well. Counsels for
with them, the municipal trial courts and other first level courts. the petitioners, like all lawyers handling cases before courts and
Never in the judiciary’s more than 100 years of history has the administrative tribunals, cannot object to this. Although as a rule
lack of attribution been regarded and demeaned as plagiarism. they receive compensation for every pleading or paper they file in
court or for every opinion they render to clients, lawyers also
This is not to say that the magistrates of our courts are mere need to strive for technical accuracy in their writings. They should
copycats. They are not. Their decisions analyze the often not be exposed to charges of plagiarism in what they write so
conflicting facts of each case and sort out the relevant from the long as they do not depart, as officers of the court, from the
irrelevant. They identify and formulate the issue or issues that objective of assisting the Court in the administration of justice.
need to be resolved and evaluate each of the laws, rulings,
principles, or authorities that the parties to the case invoke. The As Duncan Webb said:
decisions then draw their apt conclusions regarding whether or
not such laws, rulings, principles, or authorities apply to the In presenting legal argument most lawyers will have recourse to
particular cases before the Court. These efforts, reduced in either previous decisions of the courts, frequently lifting whole
writing, are the product of the judges’ creativity. It is here— sections of a judge’s words to lend weight to a particular point
actually the substance of their decisions—that their genius, either with or without attribution. The words of scholars are also
originality, and honest labor can be found, of which they should sometimes given weight, depending on reputation. Some
be proud. encyclopaedic works are given particular authority. In England
this place is given to Halsbury’s Laws of England which is widely
considered authoritative. A lawyer can do little better than to like the dozens of other sources she cited in her research, had
frame an argument or claim to fit with the articulation of the law in high reputations in international law.
1awphi1

Halsbury’s. While in many cases the very purpose of the citation

is to claim the authority of the author, this is not always the case. Notably, those foreign authors expressly attributed the
Frequently commentary or dicta of lesser standing will be adopted controversial passages found in their works to earlier writings by
by legal authors, largely without attribution. others. The authors concerned were not themselves the
originators. As it happened, although the ponencia of Justice Del
xxxx Castillo accidentally deleted the attribution to them, there
remained in the final draft of the decision attributions of the same
The converse point is that originality in the law is viewed with passages to the earlier writings from which those authors
skepticism. It is only the arrogant fool or the truly gifted who will borrowed their ideas in the first place. In short, with the remaining
depart entirely from the established template and reformulate an attributions after the erroneous clean-up, the passages as it
existing idea in the belief that in doing so they will improve it. finally appeared in the Vinuya decision still showed on their face
While over time incremental changes occur, the wholesale that the lifted ideas did not belong to Justice Del Castillo but to
abandonment of established expression is generally considered others. He did not pass them off as his own.
foolhardy.9
With our ruling, the Court need not dwell long on petitioners’
The Court probably should not have entertained at all the charges allegations that Justice Del Castillo had also committed
of plagiarism against Justice Del Castillo, coming from the losing plagiarism in writing for the Court his decision in another case,
party. But it is a case of first impression and petitioners, joined by Ang Ladlad v. Commission on Elections.10 Petitioners are nit-
some faculty members of the University of the Philippines school picking. Upon close examination and as Justice Del Castillo
of law, have unfairly maligned him with the charges of plagiarism, amply demonstrated in his comment to the motion for
twisting of cited materials, and gross neglect for failing to attribute reconsideration, he in fact made attributions to passages in such
lifted passages from three foreign authors. These charges as decision that he borrowed from his sources although they at times
already stated are false, applying the meaning of plagiarism as suffered in formatting lapses.
the world in general knows it.
Considering its above ruling, the Court sees no point in further
True, Justice Del Castillo failed to attribute to the foreign authors passing upon the motion of the Integrated Bar of the Philippines
materials that he lifted from their works and used in writing the for leave to file and admit motion for reconsideration-in-
decision for the Court in the Vinuya case. But, as the Court said, intervention dated January 5, 2011 and Dr. Peter Payoyo’s claim
the evidence as found by its Ethics Committee shows that the of other instances of alleged plagiarism in the Vinuya decision.
attribution to these authors appeared in the beginning drafts of
the decision. Unfortunately, as testified to by a highly qualified ACCORDINGLY, the Court DENIES petitioners’ motion for
and experienced court-employed researcher, she accidentally reconsideration for lack of merit.
deleted the same at the time she was cleaning up the final draft.
The Court believed her since, among other reasons, she had no SO ORDERED.
motive for omitting the attribution. The foreign authors concerned,