Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 10-7-17-SC

October 15, 2010

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC.,

AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.
DECISION
PER CURIAM:
This case is concerned with charges that, in preparing a decision for the Court, a
designated member plagiarized the works of certain authors and twisted their
meanings to support the decision.
The Background Facts
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the
Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil
action of certiorari with application for preliminary mandatory injunction against the
Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and
the Office of the Solicitor General.
Petitioners claimed that in destroying villages in the Philippines during World War II,
the Japanese army systematically raped them and a number of other women, seizing
them and holding them in houses or cells where soldiers repeatedly ravished and
abused them.
Petitioners alleged that they have since 1998 been approaching the Executive
Department, represented by the respondent public 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 Executive
Department to espouse their claims for official apology and other forms of reparations
against Japan before the International Court of Justice and other international
tribunals.
On April 28, 2010, the Court rendered judgment dismissing petitioners action. Justice
Mariano C. del Castillo wrote the decision for the Court. The Court essentially gave
two reasons for its 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 against Japan; and, second, the
Philippines is not under any obligation in international law to espouse their claims.

On June 9, 2010, petitioners filed a motion for reconsideration of the Courts

decision. More than a month later on July 18, 2010, counsel for petitioners, Atty.
Herminio Harry Roque, Jr., announced in his online blog that his clients would file a
supplemental petition "detailing plagiarism committed by the court" under the second
reason it gave for dismissing the petition and that "these stolen passages were also
twisted to support the courts erroneous conclusions that the Filipino comfort women
of World War Two have no further legal remedies." The media gave publicity to Atty.
Roques announcement.
On July 19, 2010, petitioners filed the supplemental motion for reconsideration that
Atty. Roque announced. It accused Justice Del Castillo of "manifest intellectual theft
and outright plagiarism"1 when he wrote the decision for the Court and of "twisting the
true intents of the plagiarized sources to suit the arguments of the assailed
Judgment."2 They charged Justice Del Castillo of copying without acknowledgement
certain passages from three foreign articles:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan FoxDescent, Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case
Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge
University Press (2005).
Petitioners claim that the integrity of the Courts deliberations in the case has been
put into question by Justice Del Castillos fraud. The Court should thus "address and
disclose to the public the truth about the manifest intellectual theft and outright
plagiarism"3 that resulted in gross prejudice to the petitioners.
Because of the publicity that the supplemental motion for 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
used in it. He said in the pertinent part:
It must be emphasized that there was every intention to attribute 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 Court en banc. It was deliberated upon during the Baguio session on
April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions
were made which necessitated major revisions in the draft. Sources were re-studied,
discussions modified, passages added or deleted. The resulting decision comprises
34 pages with 78 footnotes.
xxxx
As regards the claim of the petitioners that the concepts as contained in the above
foreign materials were "twisted," the same remains their opinion which we do not
necessarily share.4
On July 27, 2010, the Court En Banc referred the charges against Justice Del
Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief
Justice, for investigation and recommendation. The Chief Justice designated retired

Justice Jose C. Vitug to serve as consultant of the Committee. He graciously

accepted.
On August 2, 2010, the Committee directed petitioners to comment on Justice Del
Castillos verified letter. When this was done, it set the matter for hearing.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his coauthor Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged
plagiarism involving their work but Criddles concern, after reading the supplemental
motion for reconsideration, was the Courts conclusion that prohibitions against
sexual slavery are not jus cogens or internationally binding norms that treaties cannot
diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in
mentioning his work, the Court "may have misread the argument [he] made in the
article and employed them for cross purposes." Dr. Ellis said that he wrote the article
precisely to argue for appropriate legal remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for investigation,
the Dean of the University of the Philippines (U.P.) College of Law publicized a
Statement from his faculty, claiming that the Vinuya decision was "an extraordinary
act of injustice" and a "singularly reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land." The 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 in
order to mislead and deceive."5
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that,
although relevant sentences in the Courts decision were taken from his work, he was
given generic reference 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 inappropriate. Mr. Tams was
also concerned that the decision may have used his work to support an approach to
erga omnes concept (obligations owed by individual States to the community of
nations) that is not consistent with what he advocated.
On August 26, 2010, the Committee heard the parties submissions in the summary
manner of administrative investigations. Counsels from both sides were given ample
time to address the Committee and submit their evidence. The Committee queried
them on these.
Counsels for Justice Del Castillo later asked to be heard with the other parties not in
attendance so they could make submissions that their client regarded as sensitive
and confidential, involving the drafting process that went into the making of the
Courts decision in the Vinuya case. Petitioners counsels vigorously 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 need
not be mentioned here, explain the research work that went into the making of the
decision in the Vinuya case. The Committee granted the request.
The researcher demonstrated by Power Point presentation how the attribution of the
lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning
drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully

expressed remorse at her "grievous mistake" and grief for having "caused an
enormous amount of suffering for Justice Del Castillo and his family." 6
On the other hand, addressing the Committee in reaction to the researchers
explanation, counsel for petitioners insisted that lack of intent is not a defense in
plagiarism since all that is required is for a writer to acknowledge that certain words
or language in his work were taken from anothers work. Counsel invoked the Courts
ruling in University of the Philippines Board of Regents v. Court of Appeals and
Arokiaswamy William Margaret Celine,7 arguing that standards on plagiarism in the
academe should apply with more force to the judiciary.
After the hearing, the Committee gave the parties ten days to file their respective
memoranda. They filed their memoranda in due course. Subsequently after
deliberation, the Committee submitted its unanimous findings and recommendations
to the Court.
The Issues
This case presents two issues:
1. Whether or not, in writing the opinion for the Court in the Vinuya case,
Justice Del Castillo plagiarized the published works of authors Tams, CriddleDescent, and Ellis.
2. Whether or not Justice Del Castillo twisted the works of these authors to
make it appear that such works supported the Courts position in the Vinuya
decision.
The Courts Rulings
Because of the pending motion for reconsideration in the Vinuya case, the Court like
its Committee on Ethics and Ethical Standards will purposely avoid touching the
merits of the Courts decision in that case or the soundness or lack of soundness of
the position it has so far taken in the same. The Court will deal, not with the essential
merit or persuasiveness of the foreign authors works, but how the decision that
Justice Del Castillo wrote for the Court appropriated parts of those works and for
what purpose the decision employed the same.
At its most basic, plagiarism means the theft of another persons language, thoughts,
or ideas. To plagiarize, as it is commonly understood according to Webster, is "to
take (ideas, writings, etc.) from (another) and pass them off as ones own." 8 The
passing off of the work of another as ones own is thus an indispensable element of
plagiarism.
The Passages from Tams
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 thought was a mere generic reference. But,
although Tams himself may have believed that the footnoting in this case was not "an
appropriate form of referencing,"9 he and petitioners cannot deny that the decision
did attribute the source or sources of such passages. Justice Del Castillo did not
pass off Tams work as his own. The Justice primarily attributed the ideas embodied

in the passages to Bruno Simma, whom Tams himself credited for them. Still,
Footnote 69 mentioned, apart from Simma, Tams article as another source of those
ideas.
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 Justices 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.
The Passages from Ellis
and Criddle-Descent
Petitioners also attack the Courts decision for lifting and using as footnotes, without
attribution to the author, passages from the published work of Ellis. The Court made
the following statement on page 27 of its decision, marked with Footnote 65 at the
end:
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. 65
xxx
Footnote 65 appears down the bottom of the page. Since the lengthy passages in
that footnote came almost verbatim from Ellis article,10 such passages ought to have
been introduced by an acknowledgement that they are from that article. The footnote
could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western
Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as
an international crime is relatively new. This is not to say that rape has never been
historically prohibited, particularly in war. But modern-day sensitivity to the crime of
rape did not emerge until after World War II. In the Nuremberg Charter, the word rape
was not mentioned. The article on crimes against humanity explicitly set forth
prohibited acts, but rape was not mentioned by name. (For example, the Treaty of
Amity and Commerce between Prussia and the United States provides that in time of
war all women and children "shall not be molested in their persons." The Treaty of
Amity and Commerce, Between his Majesty the King of Prussia and the United
States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l
Agreements Of The U.S. 78, 85. The 1863 Lieber Instructions classified rape as a
crime of "troop discipline." (Mitchell, The Prohibition of Rape in International
Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J.
Comp. Intl. L. 219, 224). It specified rape as a capital crime punishable by the death
penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the
protection of their "honour." ("Family honour and rights, the lives of persons, and

private property, as well as religious convictions and practice, must be respected."

Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18,
1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, "Affirmation
of the Principles of International Law recognized by the Charter of the Nrnberg
Tribunal"; General Assembly document A/64/Add.1 of 1946; See Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis, Aug.
8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes
against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population,
before or during the war, or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the Jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not
prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals
Crime and Punishment in the International Arena,7 ILSA J. Intl. Comp. L. 667, 676.)
However, International Military Tribunal for the Far East prosecuted rape crimes,
even though its Statute did not explicitly criminalize rape. The Far East Tribunal held
General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota
criminally responsible for a series of crimes, including rape, committed by persons
under their authority. (The Tokyo Judgment: Judgment Of The International Military
Tribunal For The Far East 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control
Council Law No. 10 included the term rape in the definition of crimes against
humanity. Law No. 10, adopted by the four occupying powers in Germany, was
devised to establish a uniform basis for prosecuting war criminals in German courts.
(Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official
Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the
first modern-day international instrument to establish protections against rape for
women. Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20,
1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and
the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced
the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a
crime against humanity.
But, as it happened, the acknowledgment above or a similar introduction was missing
from Footnote 65.
Next, petitioners also point out that the following eight sentences and their
accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:
xxx In international law, the term "jus cogens" (literally, "compelling law") refers to
norms that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.711avvphi1

Early strains of the jus cogens doctrine have existed since the 1700s,72 but
peremptory norms began to attract greater scholarly attention with the publication of
Alfred von Verdross's influential 1937 article, Forbidden Treaties in International
Law.73 The recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).74 Though there was a consensus that certain international norms had
attained the status of jus cogens,75 the ILC was unable to reach a consensus on the
proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that "there is not as yet any generally accepted criterion
by which to identify a general rule of international law as having the character of jus
cogens."76 In a commentary accompanying the draft convention, the ILC indicated
that "the prudent course seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of international tribunals."77
Thus, while the existence of jus cogens in international law is undisputed, no
consensus exists on its substance,77 beyond a tiny core of principles and rules.78
Admittedly, the Vinuya decision lifted the above, including their footnotes, from
Criddle-Descents article, A Fiduciary Theory of Jus Cogens.11 Criddle-Descents
footnotes were carried into the Vinuya decisions own footnotes but no attributions
were made to the two authors in those footnotes.
The Explanation
Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent
could be construed as plagiarism. But one of Justice Del Castillos researchers, a
court-employed attorney, 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.
In the old days, the common practice was that after a Justice would have assigned a
case for study and report, the researcher would source his materials mostly from
available law books and published articles on print. When he found a relevant item in
a book, whether for one side of the issue or for the other, he would place a strip of
paper marker on the appropriate page, pencil mark the item, and place the book on
his desk where other relevant books would have piled up. He would later paraphrase
or copy the marked out passages from some of these books as he typed his
manuscript on a manual typewriter. This occasion would give him a clear opportunity
to attribute the materials used to their authors or sources.
With the advent of computers, however, as Justice Del Castillos researcher also
explained, most legal references, including the collection of decisions of the Court,
are found in electronic diskettes or in internet websites that offer virtual libraries of
books and articles. Here, as the researcher found items that were relevant to her
assignment, she downloaded or copied them into her "main manuscript," a
smorgasbord plate of materials that she thought she might need. The researchers
technique in this case is not too far different from that employed by a carpenter. The
carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes
suitable to the object he has in mind, say a table. When ready, he would measure out

the portions he needs, cut them out of the pieces of lumber he had collected, and
construct his table. He would get rid of the scraps.
Here, Justice Del Castillos researcher did just that. She electronically "cut" relevant
materials from books and journals in the Westlaw website and "pasted" these to a
"main manuscript" in her computer that contained the issues for discussion in her
proposed report to the Justice. She used the Microsoft Word program.12 Later, after
she decided on the general shape that her report would take, she began pruning
from that manuscript those materials that did not fit, changing the positions in the
general scheme of those that remained, and adding and deleting paragraphs,
sentences, and words as her continuing discussions with Justice Del Castillo, her
chief editor, demanded. Parenthetically, this is the standard scheme that computerliterate court researchers use everyday in their work.
Justice Del Castillos 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.
First Finding
The Court adopts the Committees finding that the researchers explanation regarding
the accidental removal of proper attributions to the three authors is credible. Given
the operational properties of the Microsoft program in use by the Court, the
accidental decapitation of attributions to sources of research materials is not remote.
For most senior lawyers and judges who are not computer literate, a familiar example
similar to the circumstances of the present case would probably help illustrate the
likelihood of such an accident happening. If researcher X, for example, happens to
be interested in "the inalienable character of juridical personality" in connection with
an assignment and if the book of the learned Civilist, Arturo M. Tolentino, happens to
have been published in a website, researcher X would probably show interest in the
following passage from that book:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons;
hence, they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other
sources, it is evident that Tolentino did not originate it. The idea is not a product of his
intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign
authors.
When researcher X copies and pastes the above passage and its footnote into a
manuscript-in-the-making in his computer, the footnote number would, given the
computer program in use, automatically change and adjust to the footnoting
sequence of researcher Xs manuscript. Thus, if the preceding footnote in the
manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos
footnote would automatically change from the original Footnote 15 to Footnote 24.

But then, to be of use in his materials-gathering scheme, researcher X would have to

tag the Tolentino passage with a short description of its subject for easy reference. A
suitable subject 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 him to attribute the passage in its final form to
Tolentino. After the passage has been tagged, it would now appear like this:
The inalienable character of juridical personality.23
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons;
hence, they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
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.
The mistake of Justice Del Castillos researcher is that, after the Justice had decided
what texts, passages, and citations were to be retained including those from CriddleDescent and Ellis, and when she was already cleaning up her work and deleting all
subject tags, she unintentionally deleted the footnotes that went with such tagswith
disastrous effect.
To understand this, in Tolentinos example, the equivalent would be researcher Xs
removal during cleanup of the tag, "The inalienable character of juridical
personality.23," by a simple "delete" operation, and the unintended removal as well of
the accompanying footnote (#23). The erasure of the footnote eliminates the link
between the lifted passage and its source, Tolentinos book. Only the following would
remain in the manuscript:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons;
hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program does not have a function that raises an
alarm when original materials are cut up or pruned. The portions that remain simply
blend in with the rest of the manuscript, adjusting the footnote number and removing
any clue that what should stick together had just been severed.
This was what happened in the attributions to Ellis and Criddle-Descent. The
researcher deleted the subject tags and, accidentally, 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.
Petitioners point out, however, that Justice Del Castillos verified letter of July 22,
2010 is inconsistent with his researchers claim that the omissions were mere errors
in attribution. They cite the fact that the Justice did not disclose his researchers error

in that letter despite the latters confession regarding her mistake even before the
Justice sent his letter to the Chief Justice. By denying plagiarism in his letter, Justice
Del Castillo allegedly perjured himself and sought to whitewash the case.13
But nothing in the July 22 letter supports the charge of false testimony. Justice Del
Castillo merely explained "that there was every intention to attribute all sources
whenever due" and that there was never "any malicious intent to appropriate
anothers work as our own," which as it turns out is a true statement. He recalled how
the Court deliberated upon the case more than once, prompting major revisions in
the draft of the decision. In the process, "(s)ources were re-studied, discussions
modified, passages added or deleted." Nothing in the letter suggests a cover-up.
Indeed, it did not preclude a researchers inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose his
researchers error. He wrote the decision for the Court and was expected to take full
responsibility for any lapse arising from its preparation. What is more, the process of
drafting a particular decision for the Court is confidential, which explained his initial
request to be heard on the matter without the attendance of the other parties.
Notably, 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.
Petitioners of course insist that intent is not material in committing plagiarism since all
that a writer has to do, to avoid the charge, is to enclose lifted portions with quotation
marks and acknowledge the sources from which these were taken.14 Petitioners point
out that the Court should apply to this case the ruling in University of the Philippines
Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine.15
They argue that standards on plagiarism in the academe should apply with more
force to the judiciary.
But petitioners theory ignores the fact that plagiarism is essentially a form of fraud
where intent to deceive is inherent. Their theory provides no room for errors in
research, an unrealistic position considering that there is hardly any substantial
written work in any field of discipline that is free of any mistake. The theory places an
automatic universal curse even on errors that, as in this case, have reasonable and
logical explanations.
Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the "deliberate
and knowing presentation of another person's original ideas or creative expressions
as one's own."16 Thus, plagiarism presupposes intent and a deliberate, conscious
effort to steal anothers work and pass it off as ones own.
Besides, the Court said nothing in U.P. Board of Regents that would indicate that an
intent to pass off anothers work as ones own is not required in plagiarism. The Court
merely affirmed the academic freedom of a university to withdraw a masters degree
that a student obtained based on evidence that she misappropriated the work of

others, passing them off as her own. This is not the case here since, as already
stated, Justice Del Castillo actually imputed the borrowed passages to others.
Second Finding
The Court also adopts the Committees finding that the omission of attributions to
Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo
himself created the passages that he lifted from their published articles. That he
merely got those passages from others remains self-evident, despite the accidental
deletion. The fact is that he still imputed the passages to the sources from which
Criddle-Descent and Ellis borrowed them in the first place.
This is best illustrated in the familiar example above. After the deletion of the subject
tag and, accidentally, its footnote which connects to the source, the lifted passage
would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Although the unintended deletion severed the passages link to Tolentino, the
passage remains to be attributed to Von Tuhr and Valverde, the original sources that
Tolentino himself cites. The text and its footnote reference cancel out any impression
that the 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 sources, the omission of attributions to CriddleDescent and Ellis gave no impression that the passages were the creations of
Justice Del Castillo. This wholly negates the idea that he was passing them off as his
own thoughts.
True the subject passages in this case were reproduced in the Vinuya decision
without placing them in quotation marks. But such passages are much unlike the
creative line from Robert Frost,17 "The woods are lovely, dark, and deep, but I have
promises to keep, and miles to go before I sleep, and miles to go 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 literature, already belong to the public realm.
To paraphrase Bast and Samuels,18 while the academic publishing 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 in their decisions. The judge is not expected to produce original
scholarship in every respect. The strength of a decision lies in the soundness and
general acceptance of the precedents and long held legal opinions it draws from.
Third Finding
Petitioners allege that the decision twisted the passages from Tams, CriddleDescent, and Ellis. The Court adopts the Committees finding that this is not so.
Indeed, this allegation of twisting or misrepresentation remains a mystery to the
Court. To twist means "to distort or pervert the meaning of."19 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 anthems 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 Courts conclusion that the Philippines is not under any obligation in
international law to espouse Vinuya et al.s claims.
The fact is that, first, since the attributions to Criddle-Descent and Ellis were
accidentally deleted, it is impossible for any person reading the decision to connect
the same to the works of those authors as to conclude that in writing the decision
Justice Del 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. These are neutral data that could support
conflicting theories regarding whether or not the judiciary has the power today to
order the Executive Department to sue another country or whether the duty to
prosecute violators of international crimes has attained the status of jus cogens.
Considering how it was impossible for Justice Del Castillo to have 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 more accurate, however, the charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have mistakenly cited the wrong sources, failed to
use quotation marks, inadvertently omitted necessary information from footnotes or
endnotes. But these do not, in every case, amount to misconduct. Only errors that
are tainted with fraud, corruption, or malice are subject of disciplinary action. 20 This is
not the case here. Justice Del Castillos acts or omissions were not shown to have
been impelled by any of such disreputable motives.21 If the rule were otherwise, no
judge or justice, however competent, honest, or dedicated he may be, can ever hope
to retire from the judiciary with an unblemished record.22
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the omission was
the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable
negligence. They point out that he has full control and supervision over his
researcher and should not have surrendered the writing of the decision to the latter.23
But this assumes that Justice Del Castillo abdicated the writing of the Vinuya
decision to his researcher, which is contrary to the evidence adduced during the
hearing. As his researcher testified, the Justice set the direction that the research and
study were to take by discussing the issues with her, setting forth his position on
those issues, and reviewing and commenting on the study that she was putting
together until he was completely satisfied with it.24 In every sense, Justice Del
Castillo was in control of the writing of the report to the Court, which report eventually
became the basis for the decision, and determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent of a "law
clerk" in the United States Supreme Court, is 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 our Court each month, it would be truly senseless for him to do all the
studies and research, going to the library, searching the internet, checking footnotes,
and watching the punctuations. If he does all these by himself, he would have to

allocate at least one to two weeks of work for each case that has been submitted for
decision. The wheels of justice in the Supreme Court will grind to a halt under such a
proposition.
What is important is that, in this case, Justice Del Castillo retained control over the
writing of the decision in the Vinuya case without, however, having to look over his
researchers shoulder as she cleaned up her draft report to ensure that she hit the
right computer keys. The Justices researcher was after all competent in the field of
assignment given her. She finished law from a leading law school, graduated third in
her class, served as Editor-in Chief of her schools Law Journal, and placed fourth in
the bar examinations when she took it. She earned a masters degree in International
Law and Human Rights from a prestigious university in the United States under the
Global-Hauser program, which counsel for petitioners concedes to be one of the top
post graduate programs on International Law in the world. Justice Del Castillo did not
exercise bad judgment in assigning the research work in the Vinuya case to her.
Can errors in preparing decisions be prevented? Not until computers cease to be
operated by human beings who are vulnerable to human errors. They are hypocrites
who believe that the courts should be as error-free as they themselves are.
Incidentally, in the course of the submission of petitioners exhibits, the Committee
noted that petitioners Exhibit J, the accusing statement of the Faculty of the U.P.
College of Law on the allegations of plagiarism and misinterpretation, was a mere
dummy. The whole of the statement was reproduced but the signatures portion below
merely listed the names of 38 faculty members, in solid rows, with the letters "Sgd" or
"signed" printed beside the names without exception. These included the name of
retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.
Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty.
Roque to present the signed copy within three days of the August 26 hearing.25 He
complied. As it turned out, the original statement was signed by only a minority of the
faculty members on the list. The set of signatories that appeared 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 document, it does not appear to be a statement of the Faculty
but of just some of its members. And retired Justice V. V. Mendoza did not sign the
statement, contrary to what the dummy represented. 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:
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 separate
pending matter concerning that supposed Faculty statement.
SO ORDERED.
RENATO C. CORONA
Chief Justice