16 NOVEMBER 2010

The Supreme Court (SC) was asked yesterday to reconsider its ruling last month clearing a magistrate of charges of plagiarism.

          In a motion for reconsideration, UP professors and lawyers led by Harry Roque Jr. reiterated their allegations of plagiarism, twisting of cited materials and gross neglect against Associate Justice Mariano del Castillo.

          Del Castillo penned the SC’s unanimous ruling last April junking the bid of over 70 Filipino women abused during World War II to compel the government to support their demand for an official apology and other reparations from Tokyo.

          The petitioners said the SC erred in adopting the findings of its committee on ethics and ethical standards, which investigated the plagiarism issue. The committee had ruled that the lack of attribution in the ruling was a result of “accidental removal of proper attributions to the three authors” by Del Castillo’s legal researcher while drafting the decision on the computer.

          Roque said plagiarism has been “a clear pattern and practice” by Justice Del Castillo as shown by the decision he penned on the case involving the disqualification of Ang Ladlad in the party-list elections.

          He said the Ang Ladlad decision, which has a portion on page 21 supposedly taken out without proper attribution from paragraph 49 of the decision of the European Court of Human Rights on Handyside vs. United Kingdom case, shows the “indefensibility of the Microsoft defense” of the magistrate.

          The activist lawyer urged the Court to also investigate this second alleged plagiarism committed by Del Castillo, which he alleged constitutes another violation of judicial ethics.

          “His conduct in both Vinuya and Ang Ladlad has raised in the public mind serious questions on his integrity and competence. His conduct has even unfortunately caused the entire Supreme Court to suffer international humiliation,” Roque claimed.

          Petitioners also questioned the conclusion of the Court that there was “no malicious intent to appropriate another’s work as our own.”

          “This honourable court’s insistence of ‘malicious intent as an element of plagiarism and copyright infringement’ puts in peril the societal values it represents as the country’s supreme interpreter of the laws of the land,” they stressed.

          They also alleged that the magistrate violated Canon 2, Section 3 of the Judicial Code of Ethics when he “covered up instead of initiating disciplinary proceedings against the law clerk who claims responsibility for the plagiarism and misrepresentation.”

          Lastly, they said the SC violated its own rules on intellectual property and the use of information technology facilities in the court when it cleared Del Castillo.

          They cited AM No. 05-3-08-SC issued on March 15, 2005, which spelled out rules on use of computer resources in the SC. Under the rules, “the use of IT facilities and computer resources provided by SC entails responsibility to use these resources in an efficient, ethical and lawful manner consistent with the mission and vision of the Court. To this end, every user must use SC’s computer resources in a responsible, professional, and ethical manner and within legal and proper boundaries.”

          With these arguments, they asked the Court to reverse its decision last Oct. 12 and issue a corrected version of the Vinuya decision in the form of “corrigendum” and also ask Del Castillo to resign from his post to “save the SC from further embarrassment.”

          Roque, counsel of the “comfort women,” had alleged that the justice lifted without proper attribution quotes and footnotes from: 31 parts of “A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, published last year in the Yale Journal of International Law; 24 parts of “Breaking the Silence on Rape as an International Crime” by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law; and four parts of “Enforcing Erga Omnes Obligations in International Law” by Christian Tams, published in 2005.

          But the High Court, voting 10-2, earlier ruled that the allegations of plagiarism, twisting of cited materials and gross neglect against Del Castillo lacked merit.

          “The mistake of Justice Del Castillo’s researcher is that, after the Justice had decided what texts, passages and citations were to be retained including those from (authors), and when she was already cleaning up her work and deleting all subject tags, she unintentionally deleted the footnotes that went with such tags – with disastrous effect,”   the Court explained.

          “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,” it stressed.

          The SC also junked as “mystery” the allegation of lawyers of petitioners in the case led by professor Roque that the magistrate twisted the points from the sources to justify his ruling.

          “Since the attributions 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,” the Court pointed out.

          With this, the Court opted not to penalize even the legal researcher of Del Castillo. But it has decided to take steps to prevent future lapses in citations and attributions in writing decisions of the Court and directed 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 similar editing errors and also to acquire necessary software for this purpose.

          Chief Justice Renato Corona and nine others voted with the majority. Associate Justice Conchita Carpio-Morales and Ma. Lourdes Sereno dissented from the ruling while Senior Justice Antonio Carpio and Diosdado Peralta were on leave.