Category: LEGAL NEWS


abs-cbnNEWS.com

Posted at 12/08/2010 6:30 PM | Updated as of 12/08/2010 8:20 PM

 

MANILA, Philippines – Atty. Marvic Leonen has offered to resign as dean of the University of the Philippines College of Law over accusations of plagiarism in an article he wrote in 2004.

The alleged plagiarism stems from an incident where he failed to cite his source, Dr. Owen Lynch, also a professor at UP Law, in an article he wrote for the Integrated Bar of the Philippines (IBP) Journal back in 2004.

In a text message to ABS-CBN News on Wednesday, Leonen said that he “missed two footnotes” in the said article, an “honest mistake” which Lynch himself “does not consider an act of intellectual dishonesty.”

“Although I have not committed any act of intellectual dishonesty, any accusation of impropriety should be enough cause to offer to resign as dean of UP Law,” Leonen said.

“Some group of lawyers pointed this out to me two days ago,” he said. “We walk our talk.”

This comes at the heels of the battle between the UP law community and the Supreme Court over accusations that Supreme Court Associate Justice Mariano del Castillo plagiarized law journals in his ponencia in the Vinuya vs. Executive Secretary case.

Thirty-seven professors of the college, including Leonen, came out with a statement calling for Del Castillo’s resignation, even if the case was still pending, last August 9.

On October 20, the Supreme Court ordered the group, now dubbed the “UP Law 37,” to explain why they should not be disciplined for violating certain canons of the law profession.

In particular, it cited a portion of the Professional Code of Conduct of Lawyers, which says: “Lawyers are prohibited to issue statements to the media relating to pending cases which may influence the public in favor or against a party.”

The professors, in response, said they are required by the ethics of the profession to support efforts to achieve high standards in law schools as well as in the practical training of law students.

Del Castillo was later cleared by the high court.

Leonen is also the chief negotiator of the Aquino government in the peace talks with the separatist Moro Islamic Liberation Front (MILF). — With reports from ANC

VIEW OF FR. BERNAS ON PLAGIARISM

Sounding Board
About plagiarism 

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 04:55:00 11/22/2010

Filed Under: Judiciary (system of justice), Patents and Copyright and Trademarks, Legal issues

THE PLAGIARISM case against Justice Mariano del Castillo has become a cause célèbre and noble souls are accusing institutions or persons who have remained silent of being cowards or traitors to justice. Bully for you, heroic souls of this land of the brave! But let me say my bit about the issue without accusing anybody of being ignoble. Nor would I be speaking on behalf of anybody but myself. (In the atmosphere of independent minds in a university, it is difficult to formulate a position that can command the support of all.)

The Supreme Court has made the decision (still subject to reconsideration) that indeed there was copying and that there was no perfect and meticulous attribution to the author of copied materials. But the Court concluded that there was no reprehensible act. Why? “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.”

Was the Court saying something new when it said, in the context of the plagiarism case, that only errors that are tainted with fraud, corruption or malice are subject of disciplinary action? In support of this statement the Court cited two earlier decisions involving lower court judges. Neither of them, however, was about plagiarism.

However, should intention be central to plagiarism? In a collection of essays entitled “Copyright and Piracy: An Interdisciplinary Critique” (Cambridge UniversityPress), an article entitled “Inspiration or infringement: the plagiarist in court,” the author makes this comparison between infringement of copyright and plagiarism: “…the question of intention is irrelevant to a charge of copyright infringement, but its role in relation to plagiarism is less clear. Copyright infringement, in its civil form, is a strict liability offense….. In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to incriminal law as an ulterior intent, to claim the credit by passing [off] the work as one’s own.”

But is intent always required? The author goes on to add: “While some institutional statements explicitly include unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”

Outside the academic sphere! This perhaps should assuage the fear of those in the academic world that the Supreme Court’s definition of plagiarism in the case might be extended to the academe. As oneFederal court decision put it: “Please note that, while not all academic infractions involve fraud, all are violations of the University’s standards and will normally result in disciplinary penalties.”

I might also add another quotation from the article I cited above. “In her book ‘Pragmatic Plagiarism,’ Marilyn Randall identifies plagiarism as a pragmatic, rather than a textual category, meaning it is principally determined by a wide variety of extra-textual criteria that constitute the aesthetic, institutional and cultural contexts of production and reception of the work.”

For this reason, it seems to me that it should be no surprise if scholastic plagiarism should be treated differently from judicial plagiarism.

Where then does this leave us as far as the SupremeCourt case is concerned? What will the final outcome be?

First, I do not think that the Court will change its mind about the centrality of intention in judicial plagiarism.

However, I would not be surprised, but would be pleased, should the Supreme Court clearly state that what has been said about judicial plagiarism is not meant to apply to the academic sphere. This hopefully would assuage the concern of people in the academe. They can continue to penalize both intentional and unintentional plagiarism.

Second, I do not see how the Court can avoid saying that there was copying both of “ideas” and of “expression.” The evidence of borrowing is just too obvious.

Third, will the Court maintain its original position that in the case of Justice Del Castillo, copying notwithstanding, there was no malicious intent? As the Court already said, “The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.” Was this indispensable element present in what the justice did?

The pleadings of both parties in this case will be making meticulous inquiry into whether the failure to make attribution or full attribution (detailed in Justice Sereno’s dissent) or the manner or circumstances of the failure of attribution (described in the per curiam opinion), amounted or did not amount to intent to pass off what was copied as one’s own. I will await the Court’s final judgment.

SC ASKED TO RECONSIDER PLAGIARISM RULING

PHILIPPINE STAR

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.