54511 DEL CASTILLO RESO

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DES CASLTILLO RESO 2011 CASE
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  EN BANC [A.M. No. 10-7-17-SC. February 8, 2011.] IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DELCASTILLORESOLUTIONPER CURIAM   p :Petitioners Isabelita C. Vinuya, et al. , all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Courtdated October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice MarianoDel Castillo in connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo  . 1 Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. Thisclaim is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term.Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is to steal and pass off asone's own the ideas or words of another. Stealing implies malicious taking. Black's Law Dictionary, the world's leading English lawdictionary quoted by the Court in its decision, defines plagiarism as the deliberate and knowing presentation of another person'ssrcinal ideas or creative expressions as one's own. 2  The presentation of another person's ideas as one's own must be deliberate orpremeditated — a taking with ill intent. There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident orin good faith.Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of AcademicIntegrity ordains that plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing toone's self what is not one's work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Studentswho plead ignorance or appeal to lack of malice are not excused. 3 But the Court's decision in the present case does not set aside such norm. The decision makes this clear, thus: To paraphrase Bast and Samuels, while the academic publishing model is based on the srcinality of the writer'sthesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legaldata, precedents, and related studies in their decisions. The judge is not expected to produce srcinal scholarshipin every respect. The strength of a decision lies in the soundness and general acceptance of the precedents andlong held legal opinions it draws from.   4   SacTCA Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodyingresults of srcinal research, substantiating a specific view. 5  This must be so since the writing is intended to earn for the student anacademic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations,and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy.But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism.Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certainschools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its face the student's work shows as a whole that he has but committed an obvious mistake or aclerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his diploma.In contrast, decisions of courts are not written to earn merit, accolade, or prize as an srcinal piece of work or art. Deciding disputes is aservice rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of fleshand blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interestof society in written decisions is not that they are srcinally crafted but that they are fair and correct in the context of the particulardisputes involved. Justice, not srcinality, form, and style, is the object of every decision of a court of law. There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use srcinal or uniquelanguage when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But lawsinclude, under the doctrine of stare decisis  , judicial interpretations of such laws as are applied to specific situations. Under this doctrine,Courts are to stand by precedent and not to disturb settled point. Once the Court has laid down a principle of law as applicable to acertain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same. 6 And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even incontradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, inthemselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions inparticular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually liftpassages from such precedents and writings, at times omitting, without malicious intent, attributions to the srcinators.Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (whichinclude judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to beaffirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committingsome wrong or incurring some liability. Thus: The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often  centre round the way in which obligations have been expressed in legal documents and how the facts of the realworld fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversionof lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sensetherefore the community of lawyers have together contributed to this body of knowledge, language, andexpression which is common property and may be utilized, developed and bettered by anyone.   7  The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C.George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook:  TaEIAS A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from aparty's brief are used without giving attribution. Thus judges are free to use whatever sources they deemappropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writingsintended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, thepurpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.   8 If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellanoto the present, it is likely to discover that it has not on occasion acknowledged the srcinators of passages and views found in itsdecisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates fromthe Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipaltrial courts and other first level courts. Never in the judiciary's more than 100 years of history has the lack of attribution been regardedand demeaned as plagiarism. This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved andevaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their aptconclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. Theseefforts, reduced in writing, are the product of the judges' creativity. It is here — actually the substance of their decisions — that theirgenius, srcinality, and honest labor can be found, of which they should be proud.In Vinuya  , Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. Heidentified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the lawrelevant to their resolution. It was here that he drew materials from various sources, including the three foreign authors cited in thecharges against him. He compared the divergent views these present as they developed in history. He then explained why the Courtmust reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from hisdiscussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was srcinal. He had but donean honest work.  The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions toannul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done. This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts andadministrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file incourt or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not beexposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assistingthe Court in the administration of justice.As Duncan Webb said: In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequentlylifting whole sections of a judge's words to lend weight to a particular point either with or without attribution. Thewords of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are givenparticular authority. In England this place is given to Halsbury's Laws of England which is widely consideredauthoritative. A lawyer can do little better than to frame an argument or claim to fit with the articulation of the lawin Halsbury's. While in many cases the very purpose of the citation is to claim the authority of the author, this isnot always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largelywithout attribution. xxx xxx xxx The converse point is that srcinality in the law is viewed with skepticism. It is only the arrogant fool or the trulygifted who will depart entirely from the established template and reformulate an existing idea in the belief that indoing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.   9   IADCES  The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losingparty. But it is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school of law, have unfairly maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to attributelifted passages from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism as the world ingeneral knows it. True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing thedecision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that theattribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified andexperienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Courtbelieved her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozensof other sources she cited in her research, had high reputations in international law.Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The  authors concerned were not themselves the srcinators. As it happened, although the ponencia of Justice Del Castillo accidentallydeleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlierwritings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the erroneousclean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his own.With our ruling, the Court need not dwell long on petitioners' allegations that Justice Del Castillo had also committed plagiarism inwriting for the Court his decision in another case,  Ang Ladlad v. Commission on Elections  . 10  Petitioners are nit-picking. Upon closeexamination and as Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact madeattributions to passages in such decision that he borrowed from his sources although they at times suffered in formatting lapses.Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines forleave to file and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyo's claim of other instancesof alleged plagiarism in the Vinuya decision. ACCORDINGLY  , the Court DENIES  petitioners' motion for reconsideration for lack of merit. SO ORDERED . Corona, C.J., Velasco, Jr., Nachura and Villarama, Jr., JJ.,  concur. Carpio, J.,  see dissenting opinion. Carpio Morales, J.,  please see separate dissenting opinion. Leonardo-de Castro   and Perez, JJ.,  concur and also join the separate opinions of Justice Brion and Justice Abad. Brion, J.,  see separate concurring opinion. Peralta, Bersamin   and Mendoza, JJ.,  join the opinion of Justice A. Brion. Del Castillo, J.,  took no part. Abad, J.,  with a separate concurring opinion. Sereno, J.,  please see dissenting opinion. Separate Opinions CARPIO ,  J., dissenting  :I dissent on two grounds.  First,  this Court has no jurisdiction to decide in an administrative case  whether a sitting Justice of this Courthas committed misconduct in office as this power belongs exclusively to Congress. Second,  in writing judicial decisions a judge mustcomply with the Law on Copyright 1  as the judge has no power to exempt himself from the mandatory requirements of the law. ICDSca I. Disciplining Authority of Impeachable Officers  Under the Constitution, the sole disciplining authority of all impeachable officers, including Justices of this Court, is Congress. Section 3(1), Article XI of the Constitution provides that, The House of Representatives shall have the exclusive power  to initiate all cases of impeachment. Likewise, Section 3 (6) of the same Article provides that, The Senate shall have the sole power  to try and decidecases of impeachment. These provisions constitute Congress as the exclusive authority to discipline all impeachable officers  forany impeachable offense, including betrayal of public trust, a catchall phrase 2  to cover any misconduct involving breach of publictrust by an impeachable officer.While impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinaryproceedings against impeachable officers. Impeachable officers are not subject to administrative disciplinary proceedings either by theExecutive or Judicial branch, in the same manner that non-impeachable officers are subject. Thus, impeachment by Congress takesthe place of administrative disciplinary proceedings against impeachable officers as there is no other authority that can administratively discipline impeachable officers  . 3  Removal from office and disqualification to hold public office, 4  which is thepenalty for an impeachable offense, 5  is also the most severe penalty that can be imposed in administrative disciplinary proceedings.Impeachment is not a criminal proceeding because conviction in an impeachment complaint is not a bar to criminal prosecution for thesame act. 6  An impeachable offense, like betrayal of public trust, may not even constitute a criminal act. Like in an administrativeproceeding, proof beyond reasonable doubt is not required for conviction in impeachment. If an impeachable officer is charged of a crime , as distinguished from an administrative charge, the proper court has jurisdiction to try such impeachable officer because theproceeding is criminal, not administrative. However, neither the conviction nor acquittal of such impeachable officer in the criminal caseconstitutes a bar to his subsequent impeachment by Congress. There is no double jeopardy because impeachment is not a criminalproceeding. 7 Only Congress, as the exclusive disciplining authority  of all impeachable officers, can decide in a non-criminal, non-civil proceeding 8 whether a sitting Justice of this Court has committed plagiarism. Plagiarism is a betrayal of public trust because, as the majority puts it,to plagiarize is 'to steal and pass off as one's own' the ideas of another. 9  However, in writing judicial decisions a judge is liable forplagiarism only if the copying violates the moral rights of the author under the Law on Copyright. This Court may conduct an investigation of an administrative complaint against a sitting Justice to determine if there is basis in recommending to the House of Representatives the initiation of an impeachment complaint against the sitting Justice. This Court mayalso conduct an investigation of an administrative complaint against a sitting Justice to determine if the complaint constitutes contemptof this Court. However, this Court has no power to decide on the guilt or innocence of a sitting Justice in theadministrative complaint because such act is a usurpation of the exclusive disciplinary power of Congress over  impeachable officers under the Constitution . Any decision by this Court in an administrative case clearing a sitting Justice of animpeachable offense is void for want of jurisdiction and for violation of an express provision of the Constitution.Such a decision will put this Court on a collision course with Congress if subsequently an impeachment complaint for plagiarism is filedwith Congress against the sitting Justice. Incidentally, an impeachment complaint has already been filed in the House of Representatives involving the same complaint subject of this administrative case. If the House of Representatives decides to takecognizance of the complaint and initiates an impeachment based on the same administrative complaint that this Court had alreadydismissed as baseless, then this Court would have created a constitutional crisis that could only weaken the public's faith in the primacyof the Constitution.  The Supreme Court cannot  assume jurisdiction over an administrative complaint against a sitting Justice of this Court by invokingSection 6, Article VIII of the Constitution. This provision states that the Supreme Court shall have administrative supervision over allcourts and the personnel thereof. This provision refers to the administrative supervision that the Department of Justice used toexercise over the courts and their personnel, as shown by the following exchange during the deliberations of the ConstitutionalCommission: IcHSCT MR. GUINGONA: . . . . The second question has reference to Section 9, about the administrative supervision over all courts to be retained in theSupreme Court. I was wondering if the Committee had taken into consideration the proposed resolution for the transfer of the administrative supervision from the Supreme Court to the Ministry of Justice. But as far as I know, none of theproponents had been invited to explain or defend the proposed resolution. Also, I wonder if the Committee also took into consideration the fact that the UP Law Constitution Project in its Volume I,entitled: Annotated Provision had, in fact, made this an alternative proposal, the transfer of administrative supervision fromthe Supreme Court to the Ministry of Justice. Thank you.MR. CONCEPCION: May I refer the question to Commissioner Regalado? THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is recognized.MR. REGALADO: Thank you, Mr. Presiding Officer. We did invite Minister Neptali Gonzales, who was the proponent for the transfer of supervision of the lower courts to theMinistry of Justice. I even personally called up and sent a letter or a short note inviting him, but the good Minister unfortunatelywas enmeshed in a lot of official commitments. We wanted to hear him because the Solicitor General of his office, SedfreyOrdoñez, appeared before us, and asked for the maintenance of the present arrangement wherein the supervision over lowercourts is with the Supreme Court. But aside from that, although there were no resource persons, we did further studies onthe feasibility of transferring the supervision over the lower courts to the Ministry of Justice. All those things were taken intoconsideration motu proprio  . 10 For sure, the disciplinary authority  of the Supreme Court over judges  is expressly governed by another provision, that is, Section 11,Article VIII of the Constitution. Section 11 provides: Section 11. . . . The Supreme Court en banc shall have the power to discipline judges of lower courts , or order theirdismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and votedthereon. (Emphasis supplied) Clearly, the disciplinary authority of the Supreme Court over judges is found in Section 11 of Article VIII. However, this disciplinaryauthority is expressly limited to lower court judges, and does not include Supreme Court Justices, precisely because the Constitutionexpressly vests exclusively on Congress the power to discipline Supreme Court Justices. By excluding Supreme Court Justices, Section11 withholds  from the Supreme Court en banc the power to discipline its own members. The  Judicial Conduct and Disability Act of 1980 of the United States, which gives judicial councils composed of federal judges  thepower to discipline federal judges short of removal from office, does not  apply to Justices of the United States Supreme Court who aresubject to discipline only by the United States Congress. Moreover, a similar law cannot be enacted in the Philippines because all lowercourt judges are subject to discipline by the Supreme Court en banc under Section 11, Article VIII of the Constitution. Thus, reference tothe  Judicial Conduct and Disability Act of 1980 is inappropriate in this jurisdiction.I submit that this Court recall the Resolution of 12 October 2010 subject of the present motion for reconsideration for lack of jurisdictionto decide the administrative complaint against Justice Mariano C. Del Castillo. IDETCA II. The Judge Must Follow the Law on Copyright a. Copying from Works of the Government  In writing judicial decisions, a judge should make the proper attribution in copying passages from any  judicial decision, statute,regulation, or other Works of the Government . The  Manual of Judicial Writing adopted 11  by this Court provides how suchattribution should be made.However, the failure to make such attribution does not violate the Law on Copyright. 12  The law expressly provides that Works of theGovernment are not subject to copyright. 13  This means that there is neither a legal right by anyone to demand attribution, nor anylegal obligation from anyone to make an attribution, when Works of the Government are copied. The failure to make the properattribution of a Work of the Government is not actionable but is merely a case of sloppy writing. Clearly, there is no legal  obligation, by
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