Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 10-10-4-SC               March 8, 2011

RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A STATEMENT BY

THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE
ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"

DECISION

LEONARDO-DE CASTRO, J.:

Facts:

On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in
Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On July 19, 2010, counsel for
the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel Regalado Bagares (Atty. Bagares),
filed a Supplemental Motion for Reconsideration in G.R. No. 162230, where they posited for the first
time their charge of plagiarism as one of the grounds for reconsideration of the Vinuya decision.

According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision
were namely: (1) Evan J. Criddle and Evan Fox-Decent’s article "A Fiduciary Theory of Jus Cogens;" (2)
Christian J. Tams’ book Enforcing Erga Omnes Obligations in International Law; and (3) Mark Ellis’ article
"Breaking the Silence: On Rape as an International Crime. On, July 22, 2010, Justice Del Castillo wrote to
his colleagues on the Court in reply to the charge of plagiarism contained in the Supplemental Motion
for Reconsideration.

In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee
on Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal
Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred the
July 22, 2010 letter of Justice Del Castillo to the Ethics Committee.

On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement
by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and
Misrepresentation in the Supreme Court" (the Statement), was posted in Newsbreak’s website and on
Atty. Roque’s blog. A report regarding the statement also appeared on various on-line news sites, such
as the GMA News TV and the Sun Star sites, on the same date.
 The text of the UP Law faculty Statement is partly reproduced is as follows with emphasis:

RESTORING INTEGRITY

A STATEMENT BY THE FACULTY OF

THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT

….An extraordinary act of injustice has again been committed against the brave Filipinas who
had suffered abuse during a time of war.

XXXX --------XXXXX

…hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the

Highest Court of the land.

XXXX ------- XXXXX

…the High Court actually misrepresents the conclusions of their work

XXXX ------ XXXX

…by transforming it into an act of intellectual fraud by copying works in order to mislead and
deceive.

XXXX ----- XXXX

…But instead of acting with urgency on this case, the Court delayed its resolution for almost
seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it
dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this
case based on polluted sources. By so doing, the Supreme Court added insult to injury by failing to
actually exercise its "power to urge and exhort the Executive Department to take up the claims of the
Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies a more
alarming lack of concern for even the most basic values of decency and respect.

XXXX - ---- XXXX

….clear and obvious plagiarism

XXXX ---- XXXX

….the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.

XXXX ----- XXXX

 With these considerations, and bearing in mind the solemn duties and trust reposed upon them
as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine
College of Law that:

The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical
and in breach of the high standards of moral conduct and judicial and professional competence
expected of the Supreme Court;

The same breach and consequent disposition of the Vinuya case does violence to the primordial
function of the Supreme Court as the ultimate dispenser of justice to all those who have been left
without legal or equitable recourse, such as the petitioners therein;

In a Resolution dated October 19, 2010, the Court en banc made the following observations
regarding the UP Law Faculty Statement:

Beyond this, however, the statement bore certain remarks which raise concern for the Court.
The opening sentence alone is a grim preamble to the institutional attack that lay ahead.

The insult to the members of this Court was aggravated by imputations of deliberately delaying
the resolution of said case, its dismissal on the basis of “polluted sources”, the Court’s alleged
indifference to the cause of petitioners in the Vinuya case, as well as the supposed alarming of lack of
concern of the members of the Court for even the most basic values of decency and respect.

In the same Resolution, the Court went on to state that:

While most agree that the right to criticize the judiciary is critical to maintaining a free and
democratic society, there is also a general consensus that healthy criticism only goes so far. Many
types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks.
These potentially devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an
orderly manner, free from outside interference obstructive of its functions and tending to embarrass
the administration of justice."

Thus, the Court directed the respondents to show cause, within ten (10) days from receipt of
the copy of the Resolution, why they should not be disciplined as members of the Bar for violation of
Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.

On November 19, 2010, within the extension for filing granted by the Court, respondents filed
several pleadings.

By way of explanation, the respondents emphasized the following points:

(a) Noble intention

Respondents assert that their intention was not to malign the Court but rather to defend its
integrity and credibility and to ensure continued confidence in the legal system.
 (b) The "correctness" of respondents’ position that Justice Del Castillo committed plagiarism
and should be held accountable in accordance with the standards of academic writing

A significant portion of the Common Compliance is devoted to a discussion of the merits of

respondents’ charge of plagiarism against Justice Del Castillo. Relying on University of the
Philippines Board of Regents v. Court of Appeals 52 and foreign materials and jurisprudence,
respondents essentially argue that their position regarding the plagiarism charge against Justice
Del Castillo is the correct view and that they are therefore justified in issuing their Restoring
Integrity Statement.

(c) Respondents’ belief that they are being "singled out" by the Court when others have
likewise spoken on the "plagiarism issue"

In the Common Compliance, respondents likewise asserted that "the plagiarism and
misrepresentation allegations are legitimate public issues.

(d) Freedom of expression

(e) Academic freedom

Issues:

Based on the Show Cause Resolution and a perusal of the submissions of respondents, the
material issues to be resolved in this case are as follows:

1.) Does the Show Cause Resolution deny respondents their freedom of expression?

2.) Does the Show Cause Resolution violate respondents’ academic freedom as law professors?

3.) Do the submissions of respondents satisfactorily explain why they should not be disciplined
as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional
Responsibility?

4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be
disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?

Ruling:

(1) No. A reading of the Show Cause Resolution will plainly show that it was neither the fact that
respondents had criticized a decision of the Court nor that they had charged one of its members of
plagiarism that motivated the said Resolution. It was the manner of the criticism and the contumacious
language by which respondents, who are neither parties nor counsels in the Vinuya case, have
expressed their opinion in favor of the petitioners in the said pending case for the "proper disposition"
and consideration of the Court that gave rise to said Resolution. The Show Cause Resolution
painstakingly enumerated the statements that the Court considered excessive and uncalled for under
the circumstances surrounding the issuance, publication, and later submission to this Court of the UP
Law faculty’s Restoring Integrity Statement.

To be sure, the Show Cause Resolution itself recognized respondents’ freedom of expression
when it stated that:

While most agree that the right to criticize the judiciary is critical to maintaining a free and
democratic society, there is also a general consensus that healthy criticism only goes so far. Many types
of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These
potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The
court must "insist on being permitted to proceed to the disposition of its business in an orderly manner,
free from outside interference obstructive of its functions and tending to embarrass the administration
of justice."

Indeed, in a long line of cases, this Court has held that the right to criticize the courts and judicial
officers must be balanced against the equally primordial concern that the independence of the Judiciary
be protected from due influence or interference. In cases where the critics are not only citizens but
members of the Bar, jurisprudence has repeatedly affirmed the authority of this Court to discipline
lawyers whose statements regarding the courts and fellow lawyers, whether judicial or extrajudicial,
have exceeded the limits of fair comment and common decency.

To be sure, the adversarial nature of our legal system has tempted members of the bar to use
strong language in pursuit of their duty to advance the interests of their clients.

However, while a lawyer is entitled to present his case with vigor and courage, such
enthusiasm does not justify the use of offensive and abusive language. Language abounds with
countless possibilities for one to be emphatic but respectful, convincing but not derogatory,
illuminating but not offensive.

(2) No. There is nothing in the Show Cause Resolution that dictates upon respondents the
subject matter they can teach and the manner of their instruction. Moreover, it is not inconsistent with
the principle of academic freedom for this Court to subject lawyers who teach law to disciplinary action
for contumacious conduct and speech, coupled with undue intervention in favor of a party in a pending
case, without observing proper procedure, even if purportedly done in their capacity as teachers.

A novel issue involved in the present controversy, for it has not been passed upon in any
previous case before this Court, is the question of whether lawyers who are also law professors can
invoke academic freedom as a defense in an administrative proceeding for intemperate statements
tending to pressure the Court or influence the outcome of a case or degrade the courts.

Applying by analogy the Court’s past treatment of the "free speech" defense in other bar
discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The
implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of
expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due
respect to the courts and to uphold the public’s faith in the legal profession and the justice system. To
our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies with
greater force to the academic freedom of law professors.

It would do well for the Court to remind respondents that, in view of the broad definition in
Cayetano v. Monsod,134 lawyers when they teach law are considered engaged in the practice of law.
Unlike professors in other disciplines and more than lawyers who do not teach law, respondents are
bound by their oath to uphold the ethical standards of the legal profession. Thus, their actions as law
professors must be measured against the same canons of professional responsibility applicable to acts
of members of the Bar as the fact of their being law professors is inextricably entwined with the fact
that they are lawyers.

(3) Yes. With respect to good faith, respondents’ allegations presented two main ideas: (a) the
validity of their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure
motive to spur this Court to take the correct action on said issue.

The Court has already clarified that it is not the expression of respondents’ staunch belief that
Justice Del Castillo has committed a misconduct that the majority of this Court has found so unbecoming
in the Show Cause Resolution. No matter how firm a lawyer’s conviction in the righteousness of his
cause there is simply no excuse for denigrating the courts and engaging in public behavior that tends to
put the courts and the legal profession into disrepute. This doctrine, which we have repeatedly upheld
in such cases as Salcedo, In re Almacen and Saberong, should be applied in this case with more reason,
as the respondents, not parties to the Vinuya case, denounced the Court and urged it to change its
decision therein, in a public statement using contumacious language, which with temerity they
subsequently submitted to the Court for "proper disposition."

Whether or not respondents’ views regarding the plagiarism issue in the Vinuya case had valid
basis was wholly immaterial to their liability for contumacious speech and conduct. These are two
separate matters to be properly threshed out in separate proceedings. The Court considers it highly
inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances
arguing the guilt of Justice Del Castillo.

As for the claim that the respondents’ noble intention is to spur the Court to take "constructive
action" on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement was
primarily meant for this Court’s consideration, why was the same published and reported in the media
first before it was submitted to this Court? It is more plausible that the Statement was prepared for
consumption by the general public and designed to capture media attention as part of the effort to
generate interest in the most controversial ground in the Supplemental Motion for Reconsideration filed
in the Vinuya case by Atty. Roque, who is respondents’ colleague on the UP Law faculty.

In this regard, the Court finds that there was indeed a lack of observance of fidelity and due
respect to the Court, particularly when respondents knew fully well that the matter of plagiarism in the
Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statement’s issuance,
were still both sub judice or pending final disposition of the Court. These facts have been widely
publicized.

This Court takes into account the nature of the criticism and weighs the possible repercussions
of the same on the Judiciary. When the criticism comes from persons outside the profession who may
not have a full grasp of legal issues or from individuals whose personal or other interests in making the
criticism are obvious, the Court may perhaps tolerate or ignore them. However, when law professors are
the ones who appear to have lost sight of the boundaries of fair commentary and worse, would justify
the same as an exercise of civil liberties, this Court cannot remain silent for such silence would have a
grave implication on legal education in our country.

Thus, the 35 respondents named in the Common Compliance should, notwithstanding their
claim of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect
to the courts and to refrain from intemperate and offensive language tending to influence the Court on
pending matters or to denigrate the courts and the administration of justice.

(4) No. In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a
true and faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the
text or the body, there were no differences between the two. He attempts to downplay the
discrepancies in the signature pages of the two versions of the Statement (i.e., Restoring Integrity I and
Restoring Integrity II) by claiming that it is but expected in "live" public manifestos with dynamic and
evolving pages as more and more signatories add their imprimatur thereto. He likewise stresses that he
is not administratively liable because he did not misrepresent the members of the UP Law faculty who
"had agreed with the Restoring Integrity Statement proper and/or who had expressed their desire to be
signatories thereto.

The Court cannot subscribe to Dean Leonen’s implied view that the signatures in the Statement
are not as significant as its contents. Live public manifesto or not, the Statement was formally submitted
to this Court at a specific point in time and it should reflect accurately its signatories at that point.

Further, in our assessment, the true cause of Dean Leonen’s predicament is the fact that he did
not from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010
and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages. It would
turn out, according to Dean Leonen’s account, that there were errors in the retyping of the signature
pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the dean’s office
gave the dean inaccurate information that led him to allow the inclusion of Justice Mendoza as among
the signatories of Restoring Integrity II. Second, an unnamed staff also failed to type the name of Atty.
Armovit when encoding the signature pages of Restoring Integrity II when in fact he had signed
Restoring Integrity I.

We are willing to accept that the reformatting of documents meant for posting to eliminate
blanks is necessitated by vandalism concerns.
 However, what is unusual is the submission to a court, especially this Court, of a signed
document for the Court’s consideration that did not contain the actual signatures of its authors. In most
cases, it is the original signed document that is transmitted to the Court or at the very least a photocopy
of the actual signed document. Dean Leonen has not offered any explanation why he deviated from this
practice with his submission to the Court of Restoring Integrity II on August 11, 2010.

Dean Leonen cannot claim fears of vandalism with respect to court submissions for court
employees are accountable for the care of documents and records that may come into their custody.
Yet, Dean Leonen deliberately chose to submit to this Court the facsimile that did not contain the actual
signatures and his silence on the reason therefor is in itself a display of lack of candor.

We are surprised that someone like Dean Leonen, with his reputation for perfection and
stringent standards of intellectual honesty, could proffer the explanation that there was no
misrepresentation when he allowed at least one person to be indicated as having actually signed the
Statement when all he had was a verbal communication of intent to sign. In the case of Justice
Mendoza, what he had was only hearsay information that the former intended to sign the Statement. If
Dean Leonen was truly determined to observe candor and truthfulness in his dealings with the Court, we
see no reason why he could not have waited until all the professors who indicated their desire to sign
the Statement had in fact signed before transmitting the Statement to the Court as a duly signed
document. If it was truly impossible to secure some signatures, such as that of Justice Mendoza who had
to leave for abroad, then Dean Leonen should have just resigned himself to the signatures that he was
able to secure.

In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory. However, the Court is
willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his
objectives. In due consideration of Dean Leonen’s professed good intentions, the Court deems it
sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings with
the Court as required under Canon 10.
 Leonardo-De Castro, J.:

FACTS:

On 28 April 2010, the decision of the case Vinuya v Executive Secretary was
promulgated with Justice Mariano del Castillo as its ponente.  Motion for
reconsideration was filed by the petitioner’s counsel on various grounds but most
notably on the ground that not only did the ponente of the case plagiarised at
least 3 books and articles in discussing the principles of jus cogens and erga
omnes, but have also twisted such quotations making it appear contrary to the
intent of the original works.  The authors and their purportedly plagiarized articles
are: 1) Evan J Criddle and Evan Fox-Decent’s A Fiduciary Theory of Jus
Cogens published in 2009 in the Yale Journal of International Law; 2) Christian J.
Tams’ Enforcing Erga Omnes Obligations in Internation Law published by the
Cambridge University Press in 2005; and 3) Mark Ellis’ Breaking the Silence: On
Rape as an International Crime published in the Case Western Reserve Journal
of Internation Law in 2006.  Thereafter, news regarding the plagiarism by the
Supreme Court spread over the media and the original authors wrote letters to
the Chief Justice expressing discontent by the questioned act of Justice del
Castillo.

On 27 July 2010, the UP College of Law faculty members gave their opinion on
the matter of plagiarism by issuing an article titled “Restoring Integrity: A
statement by the Faculty of the University of the Philippines College of Law on
the Allegations of Plagiarism and Misrepresentation in the Supreme Court”
signed overall 37 faculty members.   In said article, the faculty expressly gave
their dismay saying that the court had the hopes of relief from those “comfort
women” during the war “crushed by a singularly reprehensible act of dishonesty
and misrepresentation by the Highest Court of the Land.” 

In the article, it was stated that plagiarism, as appropriation and

misrepresentation of another person’s work as one’s own, is considered as
“dishonesty, pure and simple.”  Hence, it was argued that since the decision in
the Vinuya case form part of the Philippine judicial system, the Court, in fine, is
allowing dishonesty to be promulgated.  Furthermore, the plagiarism and
misrepresentation in the Vinuya case undermines the judicial system of our
country and is a dirt on the honor and dignity of the Supreme Court, the article
sought for the resignation of Associate Justice Mariano del Castillo.
In response to the said article, the Court issued a resolution stating that the
remarks and choice of words used were such a great insult to the members of
the Court and a threat to the independence of the judiciary, a clear violation of
Canons 1, 11 and 13 and the Rules 1.02 and 11.05 of the Code of Professional
Responsibility.  Thereafter, the Court ordered the signatories to show cause on
why they should not be disciplined as members of the Bar for such alleged
violations.

In fulfillment of the directive by the Court, the signatories passed a Common

Compliance stating therein that their intention in issuing the article in question
“was not to malign the Court but rather to defend its integrity and credibility and
to ensure continued confidence in the legal system” by the words used therein as
“focusing on constructive action.”  Also, it was alleged that the respondents are
correct in seeking responsibility from Justice del Castillo for he, indeed,
committed plagiarism thus, rectifying their issuance of the article.  Furthermore,
the respondents argued that the article in question is a valid exercise of the
freedom of expression as citizens of a democracy, and an exercise of academic
freedom.

ISSUES:

                W/N the UP Law Faculty’s actions constitute violation of various

Canons and Rules of the Code of Professional Responsibility.

HELD:

Yes.  The Court ruled that the Common Compliance given by the respondent-
signatories in the questioned article is not sufficient in reasoning why they should
not be disciplined as members of the Bar.

“…the adversarial nature of our legal system has tempted members of the bar to
use strong language in pursuit of their duty to advance the interests of their
clients.

“However, while a lawyer is entitled to present his case with vigor and courage,
such enthusiasm does not justify the use of offensive and abusive language.
Language abounds with countless possibilities for one to be emphatic but
respectful, convincing but not derogatory, illuminating but not offensive.
“On many occasions, the Court has reminded members of the Bar to abstain
from all offensive personality and to advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice of the cause with
which he is charged. In keeping with the dignity of the legal profession, a lawyer’s
language even in his pleadings must be dignified.

“Verily, the accusatory and vilifying nature of certain portions of the Statement
exceeded the limits of fair comment and cannot be deemed as protected free
speech.”

“In a democracy, members of the legal community are hardly expected to have
monolithic views on any subject, be it a legal, political or social issue. Even as
lawyers passionately and vigorously propound their points of view they are bound
by certain rules of conduct for the legal profession. This Court is certainly not
claiming that it should be shielded from criticism. All the Court demands is the
same respect and courtesy that one lawyer owes to another under established
ethical standards. All lawyers, whether they are judges, court employees,
professors or private practitioners, are officers of the Court and have voluntarily
taken an oath, as an indispensable qualification for admission to the Bar, to
conduct themselves with good fidelity towards the courts. There is no exemption
from this sworn duty for law professors, regardless of their status in the academic
community or the law school to which they belong.”

The Court further reminded the respondent law professors “of their lawyerly duty,
under Canons 1, 11 and 13 of the Code of Professional Responsibility, to give
due respect to the Court and to refrain from intemperate and offensive language
tending to influence the Court on pending matters or to denigrate the Court and
the administration of justice and warned that the same or similar act in the future
shall be dealt with more severely.