Assoc. Justice Mariano C. Del Castillo (642 SCRA 11) 2011

A.M. No. 10-7-17-SC. February 8, 2011.
IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC.,

AGAINST ASSOCIATE JUSTICE MARIANO C. DEL
CASTILLO.
Administrative Complaints; Plagiarism; There is no commonly-used

dictionary in the world that embraces in the meaning of plagiarism errors in
attribution by mere accident or in good faith.—Plagiarism, a term not
defined by statute, has a popular or common definition. To plagiarize, says
Webster, is “to steal and pass off as one’s own” the ideas or words of
another. Stealing implies malicious taking. Black’s Law Dictionary, the
world’s leading English law dictionary quoted by the Court in its decision,
defines plagiarism as the “deliberate and knowing presentation of another
person’s original ideas or creative expressions as one’s own.” The
presentation of another person’s ideas as one’s own must be deliberate or
premeditated—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 or in good faith.
_______________
* EN BANC.
12
12 SUPREME COURT REPORTS ANNOTATED
In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

Mariano C. Del Castillo

Same; Same; Judgments; The interest of society in written decisions is

not that they are originally crafted but that they are fair and correct in the
context of the particular disputes involved.—In contrast, decisions of courts
are not written to earn merit, accolade, or prize as an original piece of work
or art. Deciding disputes is a service rendered by the government for the
public good. Judges issue decisions to resolve everyday conflicts involving
people of flesh and blood who ache for speedy justice or juridical beings
which have rights and obligations in law that need to be protected. The
interest of society in written decisions is not that they are originally crafted
but that they are fair and correct in the context of the particular disputes
involved. Justice, not originality, form, and style, is the object of every
decision of a court of law.
Same; Same; Same; There is a basic reason for individual judges of
whatever level of courts, including the Supreme Court, not to use original or
unique language when reinstating the laws involved in the cases they
decide.—There is a basic reason for individual judges of whatever level of
courts, including the Supreme Court, not to use original or unique language
when reinstating the laws involved in the cases they decide. Their duty is to
apply the laws as these are written. But laws include, 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 a certain 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.”
CARPIO, J., Dissenting Opinion:
Administrative Complaints; Plagiarism; View that only Congress can
decide in a non-criminal, non-civil proceeding whether a sitting Justice of
this Court has committed plagiarism.—Only Congress, as the exclusive
disciplining authority of all impeachable officers, can decide in a non-
criminal, non-civil proceeding 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.” However, in writing judicial decisions a judge is liable
for plagia-
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rism only if the copying violates the moral rights of the author under the
Law on Copyright.
Same; Same; View that the Supreme Court has no power to decide on
the guilt or innocence of a sitting Justice in the administrative complaint
because such act is a usurpation of the exclusive disciplinary power of
Congress over impeachable officers under the Constitution.—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 may also conduct an investigation of an
administrative complaint against a sitting Justice to determine if the
complaint constitutes contempt of this Court. However, this Court has no
power to decide on the guilt or innocence of a sitting Justice in the
administrative 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 an impeachable offense is void for want of
jurisdiction and for violation of an express provision of the Constitution.
Same; Same; Judgments; View that in writing judicial decisions, the
judge may copy passages from textbooks, journals and other non-
government works with proper attribution.—In writing judicial decisions,
the judge may copy passages from textbooks, journals and other non-
government works with proper attribution. However, whether the failure to
make the proper attribution is actionable or not depends on the nature of the
passages copied. If the work copied without proper attribution is
copyrighted, the failure to make such attribution violates Section 193 of the
Intellectual Property Code.
Same; Same; Same; View that the Judiciary and the academe should
have the same rule when it comes to copyrighted works.—Academic
writing, such as writing dissertations or articles in academic journals, is
governed by standards different from judicial decision writing. The failure
to make the proper attribution for passages copied from Works of the
Government is not actionable against a judge when writing a judicial
decision. However, the same failure by a student or a faculty member may
be deemed plagiarism in the academe, meriting a severe administrative
penalty. Never-
14


theless, the Judiciary and the academe should have the same rule when it
comes to copyrighted works. In every case, there is a legal duty to make
the proper attribution when copying passages from copyrighted works
because the law expressly requires such attribution without exception.
CARPIO-MORALES, J., Separate Dissenting Opinion:
Administrative Complaints; Plagiarism; View that the Supreme Court
may wield its administrative power against its incumbent members on
grounds other than culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust.—The
Court may wield its administrative power against its incumbent members on
grounds other than culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust, And
provided the offense or misbehavior does not carry with it a penalty, the
service of which would amount to removal from office either on a
permanent or temporary basis such as suspension.
Same; Same; View that the Court cannot proceed with the
administrative complaint against Justice Del Castillo for it will either (i)
take cognizance of an impeachable offense which it has no jurisdiction to
determine, or (ii) downplay the questioned conduct and preempt the
impeachment proceedings.—In view of the impeachment complaint filed
with the House of Representatives involving the same subject matter of the
case, which denotes that a co-equal branch of government found the same
act or omission grievous as to present a ground for impeachment and opted
to exercise its constitutional function, I submit that the Court cannot proceed
with the administrative complaint against Justice Del Castillo for it will
either (i) take cognizance of an impeachable offense which it has no
jurisdiction to determine, or (ii) downplay the questioned conduct and
preempt the impeachment proceedings.
Same; Same; View that the legal researcher was remiss in her duties of
re-studying the sources or authorities invoked in the Vinuya Decision.—I
submit that the legal researcher was remiss in her duties of re-studying the
sources or authorities invoked in the Vinuya Decision and checking the
therein citations or, at the very least, those whose authors’ rights to
attribution and integrity are
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VOL. 642, FEBRUARY 8, 2011 15

protected under Intellectual Property Law. While it is incumbent upon her to

devise ways and means of legal research, her admitted method or process as
shown in the Vinuya case reflects a disregard of a duty resulting from
carelessness or indifference. She failed to exercise the required degree of
care to a task expected of a lawyer-employee of the Supreme Court.
BRION, J., Separate Concurring Opinion:
Administrative Complaints; Plagiarism; View that the Court has the
authority to hear the present administrative disciplinary case against
Associate Justice Mariano Del Castillo; in case of a finding of misconduct,
it can impose penalties that are not the functional equivalent of removal or
dismissal from service.—What the impeachment provisions of the
Constitution guarantee is simply the right to be removed from office only
through the process of impeachment and not by any other means; it
does not preclude the imposition of disciplinary sanctions short of
removal on the impeachable official. Impeachment is the sole means of
removal, but it is certainly not the sole means of disciplining Members
of the Supreme Court or, for that matter, public officials removable by
impeachment. Accordingly, I believe that the Court has the authority to
hear the present administrative disciplinary case against Associate Justice
Mariano Del Castillo; in case of a finding of misconduct, it can impose
penalties that are not the functional equivalent of removal or dismissal from
service. If, in the exercise of its prerogative as interpreter of the
Constitution, it determines that an act complained of falls within the defined
grounds for impeachment, then the Court should say so and forthwith
forward its recommendations to Congress as the body constitutionally
mandated to act in impeachment cases.
Same; Same; View that a finding by this Court that plagiarism was or
was not committed cannot preclude Congress from determining whether the
failure or omission to make an attribution, intentionally or unintentionally,
amounts to a “betrayal of public trust.”—When the Supreme Court acts on
complaints against judges under its supervision and control, it acts as an
administrator imposing discipline and not as a court passing upon justiciable
controversies. It is precisely for this reason that disciplinary cases are
docketed as “Administrative Matters” or “A.M.” Hence, any interpretation
by the
16


Court of “plagiarism” is limited to this context and cannot be held to bind

the academe in undertaking its educational functions, particularly its own
power to define plagiarism in the educational context. It likewise cannot
bind Congress in its role as the sole authority to determine what constitutes
an impeachable offense, subject to what I stated above on the established
scope of impeachable offenses and the power of the Court to act in grave
abuse of discretion situations under the Constitution. Specifically, a finding
by this Court that plagiarism was or was not committed cannot preclude
Congress from determining whether the failure or omission to make an
attribution, intentionally or unintentionally, amounts to a “betrayal of public
trust.”
ABAD, J., Separate Concurring Opinion:
Administrative Complaints; Plagiarism; View that the Supreme Court
has the administrative authority to investigate and discipline its members
for official infractions that do not constitute impeachable offenses.—
Certainly, however, the Supreme Court has the administrative authority to
investigate and discipline its members for official infractions that do not
constitute impeachable offenses. This is a consequence of the Court’s
Constitutional power of “administrative supervision over all courts and the
personnel thereof.” When the Court decided earlier the plagiarism charge
filed against Justice Mariano Del Castillo by the petitioners in Vinuya, it was
under a belief that “plagiarism,” which is not even a statutory offense, is an
administrative infraction. The petitioners in that case did not themselves
object to the proceedings conducted by the Court’s Ethics Committee.
Same; Same; View that the Court has no original jurisdiction over
copyright law violations.—As for the alleged violation of the copyright law
in this case, it should be sufficient to point out that no such charge has been
lodged against Justice Del Castillo. What is more, the Court has no original
jurisdiction over copyright law violations. I reserve in the appropriate case
my view on whether or not lifting from copyrighted articles, without
attribution, solely for the purpose of rendering a decision, constitutes
violation of the copyright law.
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SERENO, J., Dissenting Opinion:

Administrative Complaints; Plagiarism; View that judges need not
strain themselves to meet inapplicable standards of research and attribution
of sources in their judicial opinions.—Judges need not strain themselves to
meet inapplicable standards of research and attribution of sources in their
judicial opinions, nor seek to achieve the scholarly rigidity or thoroughness
observed in academic work. They need to answer to only two standards—
diligence and honesty. By honesty here is meant that good faith attempt to
attribute to the author his original words and analysis.
Same; Same; View that even if a judge has to rely in large part on the
drafts of his legal researchers, the work of a diligent and honest judge will
never display the severe plagiarism evident in the Vinuya Decision.—Even
if a judge has to rely in large part on the drafts of his legal researchers, the
work of a diligent and honest judge will never display the severe plagiarism
evident in the Vinuya Decision published under the name of Justice Mariano
C. Del Castillo. A judge will only find himself in the same predicament as
Justice Del Castillo if two situations coincide: (1) the judge wittingly or
unwittingly entrusts a legal researcher with the task of drafting his judicial
opinion, and the legal researcher decides to commit severe plagiarism; and
(2) the judge: (a) does not read and study the draft decision himself; (b)
even if he does read and study the same, the “red flags” that are self-evident
in the draft decision completely escape him; or (c) despite having seen the
red flags, he ignores them.
Same; Same; View that a judge or legal researcher cannot be guilty for
using doctrines that have been incorporated into the mainstream and are
standard terms of trade.—To be categorical, a judge or legal researcher
cannot be guilty for using doctrines that have been incorporated into the
mainstream and are standard terms of trade. Neither is a judge required to
use quotation marks or blockquotes every time there is a reference to
allegations in the pleadings of parties, or when he is discussing legal
arguments using already accepted legal doctrines. It is when he ventures into
using the original words of others, especially those of legal scholars, that he
must be particularly careful. He cannot write to pass off the words of others,
especially those of others’ pioneering works, as his own. To do so is
dishonest.
18


Same; Same; View that the massiveness and frequency with which
instances of unattributed copying occur in Vinuya highlight the extent of the
plagiarism.—The massiveness and frequency with which instances of
unattributed copying occur in Vinuya highlight the extent of the plagiarism.
Clever transpositions of excerpts to make them flow according to the
researcher’s transition phrases are clearly devices of a practiced plagiarist,
which betray the deliberateness of every single act. The plagiarism in
Vinuya will also be scrutinized on the basis of its effect, especially in light of
its commission in a judicial decision.
Same; Same; View that judges and their legal researchers are not being
asked to be academics; only to be diligent and honest.—No court can lightly
regard a ponencia, as in Vinuya, where around 53% of the words used for an
important section were plagiarized from sources of original scholarship.
Judges and their legal researchers are not being asked to be academics; only
to be diligent and honest.
MOTION FOR RECONSIDERATION of a decision of the Supreme

Court.
The facts are stated in the resolution of the Court.
RESOLUTION
PER CURIAM:
Petitioners Isabelita C. Vinuya, et al., all members of the Malaya
Lolas Organization, seek reconsideration of the decision of the Court
dated October 12, 2010 that dismissed their charges of plagiarism,
twisting of cited materials, and gross neglect against Justice Mariano
Del 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. This claim is absurd. The Court, like everyone
_______________
1 April 28, 2010, 619 SCRA 533.
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In the Matter of the Charges of Plagiarism, Etc., Against Associate
Justice Mariano C. Del Castillo
VOL. 642, FEBRUARY 8, 2011 19

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 as one’s own” the ideas or words of another. Stealing implies
malicious taking. Black’s Law Dictionary, the world’s leading
English law dictionary quoted by the Court in its decision, defines
plagiarism as the “deliberate and knowing presentation of another
person’s original ideas or creative expressions as one’s own.”2 The
presentation of another person’s ideas as one’s own must be
deliberate or premeditated—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 or in good faith.
Certain educational institutions of course assume different norms
in its application. For instance, the Loyola Schools Code of
Academic Integrity ordains that “plagiarism is identified not through
intent but through the act itself. The objective act of falsely
attributing to one’s self what is not one’s work, whether intentional
or out of neglect, is sufficient to conclude that plagiarism has
occurred. Students who 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 originality of the writer’s 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 re-
_______________
2 Black’s Law Dictionary (8th Edition, 2004).
3 Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.
20


spect. The strength of a decision lies in the soundness and general

acceptance of the precedents and long held legal opinions it draws
from.”4
Original scholarship is highly valued in the academe and rightly

so. A college thesis, for instance, should contain dissertations
embodying results of original research, substantiating a specific
view.5 This must be so since the writing is intended to earn for the
student an academic 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, certain schools 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 a clerical 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 original piece of work or art. Deciding
disputes is a service rendered by the government for the public good.
Judges issue decisions to resolve everyday conflicts involving
people of flesh and blood who ache for speedy justice or juridical
beings which have rights and obli-
_______________
4 In the Matter of the Charges of Plagiarism, etc., Against Associate Justice

Mariano C. Del Castillo, A.M. No. 10-7-17-SC, October 12, 2010, 632 SCRA 607.
5 Webster’s Third New International Dictionary, p. 2374.
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gations in law that need to be protected. The interest of society in
written decisions is not that they are originally crafted but that they
are fair and correct in the context of the particular disputes involved.
Justice, not originality, 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 original or unique
language when reinstating the laws involved in the cases they
decide. Their duty is to apply the laws as these are written. But laws
include, 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 a
certain 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 in contradictions, prompting experts in the law to build up
regarding such matters a large body of commentaries or annotations
that, in themselves, often become part of legal writings upon which
lawyers and judges draw materials for their theories or solutions in
particular cases. And, because of the need to be precise and correct,
judges and practitioners alike, by practice and tradition, usually lift
passages from such precedents and writings, at times omitting,
without malicious intent, attributions to the originators.
Is this dishonest? No. Duncan Webb, writing for the International
Bar Association puts it succinctly. When practicing lawyers (which
include judges) write about the law, they effectively place their
ideas, their language, and their work in the public domain, to be
affirmed, adopted, criticized, or rejected. Being in the public
domain, other lawyers can thus
_______________
6 Black’s Law Dictionary (6th Edition, 1990), p. 1406.
22


freely use these without fear of committing some 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 real world fit the meaning of the words in which the
obligation is contained. This, in conjunction with the risk-aversion of
lawyers means that refuge will often be sought in articulations that have
been tried and tested. In a sense therefore the community of lawyers
have together contributed to this body of knowledge, language, and
expression 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:
“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 a party’s brief are used without giving attribution.
Thus judges are free to use whatever sources they deem appropriate to
resolve the matter before them, without fear of reprisal. This exemption
applies to judicial writings intended to decide cases for two reasons: the
judge is not writing a literary work and, more importantly, the purpose
of the writing is to re-
_______________
7 Duncan Webb, Plagiarism: A Threat to Lawyers’ Integrity? Published by the International

Bar Association, available online at http://www.ibanet.org/Article/Detail.aspx?
ArticleUid=bc2ef7cd-3207-43d6-9e87-16c3bc2be595.
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solve 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. Arellano to the present, it is likely to discover that it has not on
occasion acknowledged the originators of passages and views found
in its decisions. These omissions are true for many of the decisions
that have been penned and are being penned daily by magistrates
from the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Courts nationwide and with them, the
municipal trial courts and other first level courts. Never in the
judiciary’s more than 100 years of history has the lack of attribution
been regarded and 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
and evaluate each of the laws, rulings, principles, or authorities that
the parties to the case invoke. The decisions then draw their apt
conclusions regarding whether or not such laws, rulings, principles,
or authorities apply to the particular cases before the Court. These
efforts, reduced in writing, are the product of the judges’ creativity.
It is here—actually the substance of their decisions—that their
genius, originality, 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. He identified and formulated the core of the issues that the
parties raised. And when he had done this, he discussed the state of
the law relevant to their resolution. It
_______________
8 Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by

Justice Maria Lourdes Sereno in her dissenting opinion.
24


was here that he drew materials from various sources, including the
three foreign authors cited in the charges against him. He compared
the divergent views these present as they developed in history. He
then explained why the Court must reject some views in light of the
peculiar facts of the case and applied those that suit such facts.
Finally, he drew from his discussions of the facts and the law the
right solution to the dispute in the case. On the whole, his work was
original. He had but done an honest work.
The Court will not, therefore, consistent with established practice
in the Philippines and elsewhere, dare permit the filing of actions to
annul 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 and
administrative tribunals, cannot object to this. Although as a rule
they receive compensation for every pleading or paper they file in
court or for every opinion they render to clients, lawyers also need
to strive for technical accuracy in their writings. They should not be
exposed to charges of plagiarism in what they write so long as they
do not depart, as officers of the court, from the objective of assisting
the 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, frequently lifting whole sections
of a judge’s words to lend weight to a particular point either with or
without attribution. The words of scholars are also sometimes given
weight, depending on reputation. Some encyclopaedic works are given
particular authority. In England this place is given to Halsbury’s Laws
of England which is widely considered authoritative. A lawyer can do
little better than to frame an argument or claim to fit with the
articulation of the law in Halsbury’s. While in many cases the very
purpose of the cita-
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VOL. 642, FEBRUARY 8, 2011 25

tion is to claim the authority of the author, this is not always the case.
Frequently commentary or dicta of lesser standing will be adopted by
legal authors, largely without attribution.
xxxx
The converse point is that originality in the law is viewed with
skepticism. It is only the arrogant fool or the truly gifted who will
depart entirely from the established template and reformulate an
existing idea in the belief that in doing so they will improve it. While
over time incremental changes occur, the wholesale abandonment of
established expression is generally considered foolhardy.”9
The Court probably should not have entertained at all the charges
of plagiarism against Justice Del Castillo, coming from the losing
party. 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 attribute
lifted passages from three foreign authors. These charges as already
stated are false, applying the meaning of plagiarism as the world in
general knows it.
True, Justice Del Castillo failed to attribute to the foreign authors
materials that he lifted from their works and used in writing the
decision for the Court in the Vinuya case. But, as the Court said, the
evidence as found by its Ethics Committee shows that the attribution
to these authors appeared in the beginning drafts of the decision.
Unfortunately, as testified to by a highly qualified and experienced
court-employed researcher, she accidentally deleted the same at the
time she was cleaning up the final draft. The Court believed her
since, among other reasons, she had no motive for omitting the
attribution. The foreign authors concerned, like the dozens of other
sources she cited in her research, had high reputations in
international law.
_______________
9 Supra note 7.
26


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 originators.
As it happened, although the ponencia of Justice Del Castillo
accidentally deleted the attribution to them, there remained in the
final draft of the decision attributions of the same passages to the
earlier writings from which those authors borrowed their ideas in the
first place. In short, with the remaining attributions after the
erroneous clean-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
in writing for the Court his decision in another case, Ang Ladlad v.
Commission on Elections.10 Petitioners are nit-picking. Upon close
examination and as Justice Del Castillo amply demonstrated in his
comment to the motion for reconsideration, he in fact made
attributions 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 for
leave to file and admit motion for reconsideration-in-intervention
dated January 5, 2011 and Dr. Peter Payoyo’s claim of other
instances of 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.
_______________
10 G.R. No. 190582, April 8, 2010, 618 SCRA 32.
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Carpio, J., See Dissenting Opinion.

Carpio-Morales, J., Please see Separate Dissenting Opinion.
Leonardo-De Castro, J., I concur and also join the Separate
Opinions of Justice Brion and Justice Abad.
Brion, J., See: Separate Concurring Opinion.
Peralta, J., I join the opinion of Justice A. Brion.
Bersamin, J., I also join the Separate Concurring Opinion of
Justice Brion.
Del Castillo, J., No Part.
Abad, J., With a Separate Concurring Opinion.
Perez, J., I concur and join the Separate Opinion of Justice
Brion and Justice Abad.
Mendoza, J., I also join the Separate Concurring Opinion of
Justice Brion.
Sereno, J., Please See Dissenting Opinion.
DISSENTING OPINION
CARPIO, J.:
I dissent on two grounds. First, this Court has no jurisdiction to
decide in an administrative case whether a sitting Justice of this
Court has committed misconduct in office as this power belongs
exclusively to Congress. Second, in writing judicial decisions a
judge must comply with the Law on Copyright1 as the judge has no
power to exempt himself from the mandatory requirements of the
law.
_______________
1 Part IV, Intellectual Property Decree (Republic Act No. 8293).
28


1. 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 decide cases of impeachment.” These provisions constitute
Congress as the exclusive authority to discipline all impeachable
officers for any impeachable offense, including “betrayal of public
trust,” a “catchall phrase”2 to cover any misconduct involving
breach of public trust by an impeachable officer.
_______________
2 Volume II, Records of the Constitutional Commission, p. 272. The following

exchange took place during the deliberations of the Constitutional Commission:
MR. REGALADO: Thank you, Madam President.
xxx
First, this is with respect to Section 2, on the grounds for impeachment, and I
quote:
. . . culpable violation of the Constitution, treason, bribery, other high crimes,
graft and corruption or betrayal of public trust.
Just for the record, what would the Committee envision as a betrayal of the
public trust which is not otherwise covered by the other terms antecedent
thereto?
MR. ROMULO: I think, if I may speak for the Committee and subject to
further comments of Commissioner de los Reyes, the concept is that this is a
catchall phrase. Really, it refers to his oath of office, in the end that the idea of
a public trust is connected with the oath of office of the officer, and if he
violates that oath of office, then he has betrayed that trust.
MR. REGALADO: Thank you.
MR. MONSOD: Madam President, may I ask Commissioner de los Reyes to
perhaps add to those remarks.
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While impeachment is often described as a political process, it
also functions as the equivalent of administrative disciplinary
proceedings against impeachable officers. Impeachable officers are
not subject to administrative disciplinary proceedings either by the
Executive or Judicial branch, in the same manner that non-
impeachable officers are subject. Thus, impeachment by Congress
takes the place of administrative disciplinary proceedings
against impeachable officers as there is no other authority that
can administratively discipline impeachable officers.3
_______________
THE PRESIDENT: Commissioner de los Reyes is recognized.

MR. DE LOS REYES: The reason I proposed this amendment is that during
the Regular Batasang Pambansa when there was a move to impeach then
President Marcos, there were arguments to the effect that there is no ground
for impeachment because there is no proof that President Marcos committed
criminal acts which are punishable, or considered penal offenses. And so the
term “betrayal of public trust,” as explained by Commissioner Romulo,
is a catchall phrase to include all acts which are not punishable by
statutes as penal offenses but, nonetheless, render the officer unfit to
continue in office. It includes betrayal of public interest, inexcusable
negligence of duty, tyrannical abuse of power, breach of official duty by
malfeasance or misfeasance cronyism, favoritism, etc. to the prejudice of
public interest and which tend to bring the office into disrepute. That is
the purpose, Madam President. Thank you.
MR. ROMULO: If I may add another example, because Commissioner
Regalado asked a very good question. This concept would include, I think,
obstruction of justice since in his oath he swears to do justice to every man; so
if he does anything that obstructs justice, it could be construed as a betrayal of
the public trust. Thank you. (Emphasis supplied)
3 The 1993 Report of the National Commission on Judicial Discipline & Removal
of the United States (http://judicial-discipline-
reform.org/judicial_complaints/1993_Report_Removal.pdf, pp. 17-18)
30


Removal from office and disqualification to hold public office,4

which is the penalty for an impeachable offense,5 is also the most
severe penalty that can be imposed in administrative disciplinary
proceedings.
_______________
concluded that impeachment is the exclusive mode of removing federal judges

from office, thus:
Nevertheless, the Commission concludes that Congress may not provide for
removal as a criminal penalty. If removal may lawfully follow on conviction
for a federal judge, then it may do so for the Vice President of the United
States or perhaps even the President. But if the constitutional grant of a term
of office to the Vice President and President prevails against any provision for
removal in the criminal law, the same should be true of the tenure the
Constitution grants to judges. The Constitution quite explicitly separates
impeachment and removal from the ordinary criminal process. The
Commission does not believe that Congress’s power to punish crimes is an
exception to judicial life tenure, or alternatively a way in which good behavior
may be inquired into, in the way that the impeachment process clearly is.
xxxx
The Commission concludes that a statute providing for the removal from
office of judges who serve on good behavior under Article III by means
other than impeachment and conviction would be unconstitutional.
(Emphasis supplied; citations omitted)
4 Section 3(7), Article XI of the Constitution provides: “Judgment in cases of
impeachment shall not extend further than removal from office and disqualification to
hold any office under the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and punishment according to
law.”
5 There are those who, with good reason, believe that removal from office is the
maximum penalty in impeachment and thus there can be lesser penalties like censure.
See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process,
18 Yale Law & Policy Review 53 (1999).
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Impeachment is not a criminal proceeding because conviction in

an impeachment complaint is not a bar to criminal prosecution for
the same act.6 An impeachable offense, like betrayal of public trust,
may not even constitute a criminal act. Like in an administrative
proceeding, 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 the
proceeding is criminal, not administrative. However, neither the
conviction nor acquittal of such impeachable officer in the criminal
case constitutes a bar to his subsequent impeachment by Congress.
There is no double jeopardy because impeachment is not a criminal
proceeding.7
Only Congress, as the exclusive disciplining authority of all
impeachable officers, can decide in a non-criminal, non-
_______________
6 See note 4.
7 Professor Laurence H. Tribe writes: “The independence of the process of
impeachment and criminal prosecution is highlighted by the case of Judge Alcee
Hastings, who was acquitted of bribery by a federal jury in 1983, but was
subsequently impeached by the House and convicted by the Senate for the same
offense—and for testifying falsely about it under oath at his federal criminal trial.
Similarly, Judge Walter Nixon was impeached by the House and convicted by the
Senate in 1989 for falsely testifying under oath before a federal grand jury
investigating Judge Nixon’s improper discussions with a state prosecutor in a case
involving a business acquaintance’s son, despite an earlier acquittal in a federal
prosecution for bribery arising out of those very events. And, although this precise
sequence is not addressed by Article I, Section 3, clause 7, it should also be possible
for an official to be acquitted by the Senate in an impeachment trial but subsequently
convicted of the same underlying acts in a federal court. The Senate’s acquittal, after
all, could well represent a determination merely that the charged offenses were not
impeachable, or that the nation would be harmed more than protected by pronouncing
the official guilty.” American Constitutional Law, Volume 1 (3rd edition), pp. 159-
160.
32


civil proceeding8 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 for plagiarism 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 may
also conduct an investigation of an administrative complaint against
a sitting Justice to determine if the complaint constitutes contempt of
this Court. However, this Court has no power to decide on the
guilt or innocence of a sitting Justice in the administrative
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 an impeachable 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 filed with 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 take
cognizance of the complaint
_______________
8 An author whose moral rights under the Law on Copyright are infringed by a
judge in his judicial decision may file a civil case in court against such judge. See
discussion on The Judge Must Follow the Law on Copyright, infra.
9 Quoting Black’s Law Dictionary.
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and initiates an impeachment based on the same administrative
complaint that this Court had already dismissed as baseless, then this
Court would have created a constitutional crisis that could only
weaken the public’s faith in the primacy of the Constitution.
The Supreme Court cannot assume jurisdiction over an
administrative complaint against a sitting Justice of this Court by
invoking Section 6, Article VIII of the Constitution. This provision
states that the “Supreme Court shall have administrative supervision
over all courts and the personnel thereof.” This provision refers to
the administrative supervision that the Department of Justice used to
exercise over the courts and their personnel, as shown by the
folowing exchange during the deliberations of the Constitutional
Commission:
MR. GUINGONA: xxx.

The second question has reference to Section 9, about the administrative
supervision over all courts to be retained in the Supreme 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 the
proponents 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 from the 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.
34


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 the Ministry of Justice. I even
personally called up and sent a letter or a short note inviting him, but the
good Minister unfortunately was enmeshed in a lot of official commitments.
We wanted to hear him because the Solicitor General of his office, Sedfrey
Ordoñez, appeared before us, and asked for the maintenance of the present
arrangement wherein the supervision over lower courts is with the Supreme
Court. But aside from that, although there were no resource persons, we did
further studies on the feasibility of transferring the supervision over the
lower courts to the Ministry of Justice. All those things were taken into
consideration motu proprio.10
For sure, the disciplinary authority of the Supreme Court over

judges is expressly govened by another provision, that is, Section
11, Article VIII of the Constitution. Section 11 provides:
“Section 11. xxx The Supreme Court en banc shall have the power to

discipline judges of lower courts, or order their dismissal by a vote of a
majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon.” (Emphasis supplied)
Clearly, the disciplinary authority of the Supreme Court over
judges is found in Section 11 of Article VIII. However, this
disciplinary authority is expressly limited to lower court judges, and
does not include Supreme Court Justices, precisely because the
Constitution expressly vests exclusively on Congress the power to
discipline Supreme Court Justices. By excluding Supreme Court
Justices, Section 11 withholds from the Supreme Court en banc the
power to discipline its own members.
_______________
10 Volume I, Records of the Constitutional Commission, pp. 456-457.
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The Judicial Conduct and Disability Act of 1980 of the United

States, which gives judicial councils composed of federal judges
the power to discipline federal judges short of removal from office,
does not apply to Justices of the United States Supreme Court who
are subject to discipline only by the United States Congress.
Morever, a similar law cannot be enacted in the Philippines bacause
all lower court judges are subject to discipline by the Supreme Court
en banc under Section 11, Article VIII of the Constitution. Thus,
reference to the 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
jurisdiction to decide the administrative complaint against Justice
Mariano C. Del Castillo.
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 adopted11 by this Court provides how such
attribution 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 the Government are not subject to
copyright.13 This means that there is neither a legal right by anyone
to demand attribution, nor any legal obligation from anyone to make
an
_______________
11 Approved by the En Banc on 15 November 2005.

12 Part IV of RA No. 8293, otherwise known as the “Intellectual Property Code of
the Philippines.”
13 Section 176 of RA No. 8293 provides: “Works of the Government. No
copyright shall subsist in any work of the Government of the Philippines. xxx.”
36

attribution, when Works of the Government are copied. The failure

to make the proper attribution of a Work of the Government is not
actionable but is merely a case of sloppy writing. Clearly, there is no
legal obligation, by a judge or by any person, to make an attribution
when copying Works of the Government.
However, misquoting or twisting, with or without attribution, any
judicial decision, statute, regulation or other Works of the
Government in judicial writing, if done to mislead the parties or
the public, is actionable. Under Canon 3 of the Code of Judicial
Conduct, a judge “should perform official duties honestly.”14 Rule
3.0115 and Rule 3.0216 of the Code provide that a judge must be
faithful to the law, maintain professional competence, and strive
diligently to ascertain the facts and the applicable law.
The foregoing applies to any non-copyrightable work, and any
work in the public domain, whether local or foreign.
b. Copying from Pleadings of Parties
In writing judicial decisions, the judge may copy passages from
the pleadings of the parties with proper attribution to the author of
the pleading. However, the failure to make the proper attribution is
not actionable.
Pleadings are submitted to the court precisely so that the pleas, or
the arguments written on the pleadings, are accepted by the judge.
There is an implied offer by the
_______________
14 Canon 3 of the Code of Judicial Conduct provides: “A judge should perform

official duties honestly, and with impartiality and diligence.”
15 Rule 3.01 of the Code of Judicial Conduct provides: “A judge shall be faithful
to the law and maintain professional competence.”
16 Rule 3.02 of the Code of Judicial Conduct provides: “In every case, a judge
shall endeavour diligently to ascertain the facts and the applicable law, unswayed by
partisan interests, public opinion or fear of criticism.”
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pleader that the judge may make any use of the pleadings in
resolving the case. If the judge accepts the pleader’s arguments, he
may copy such arguments to expedite the resolution of the case. In
writing his decision, the judge does not claim as his own the
arguments he adopts from the pleadings of the parties. Besides, the
legal arguments in the pleadings are in most cases merely
reiterations of judicial precedents, which are Works of the
Government.
However, misquoting or twisting, with or without attribution, any
passage from the pleadings of the parties, if done to mislead the
parties or the public, is actionable. Under Canon 3 of the Code of
Judicial Conduct, a judge “should perform official duties honestly.”
Rule 3.01 and Rule 3.02 of the Code provide that a judge must be
faithful to the law, maintain professional competence, and strive
diligently to ascertain the facts and the applicable law.
c. Copying from Textbooks, Journals and other Non-
Government Works
In writing judicial decisions, the judge may copy passages from
textbooks, journals and other non-government works with proper
attribution. However, whether the failure to make the proper
attribution is actionable or not depends on the nature of the passages
copied.
If the work copied without proper attribution is copyrighted, the
failure to make such attribution violates Section 193 of the
Intellectual Property Code, which provides:
“Section 193. Scope of Moral Rights.—The author of a work shall,

independently of the economic rights in Section 177 or the grant of an
assignment or license with respect to such right, have the right:
193.1. To require that the authorship of the works be attributed to
him, in particular, the right that his name, as far as practicable, be indicated
in a prominent way on the copies, and in connection with the public use of
his work;
38


xxxx
193.3. To object to any distortion, mutilation or other modification of, or
other derogatory action in relation to his work which would be prejudicial
to his honor or reputation;
x x x x.” (Emphasis supplied)
Section 184(k) of the Intellectual Property Code expressly

allows, as a limitation on the copyright or economic rights of the
author, “any use made of a work for the purpose of any judicial
proceedings x x x.”17 Section 184(k) clearly authorizes a judge to
copy copyrighted works for “any use” in judicial proceedings,
which means the judge, in writing his decision, can copy passages
beyond the quantitative limitations of “fair-use” under Section
184(b). This is the significance of Section 184(k), allowing the judge
to copy lengthy passages of copyrighted work even beyond what is
required by fair-use. Section 184(k) is silent on the obligation of the
judge to make the proper attribution, unlike Section 184(b) on fair-
use by the public which expressly requires a proper attribution.
However, Section 193 nevertheless requires anyone, including a
judge writing a judicial decision, to make the proper attribution to
show respect for the moral rights of the author. Thus, while the
author has no right to demand economic compensation from the
judge or the government for the unlimited and public use of his work
in a judicial decision, the law requires that “the authorship of the
works be attributed to
_______________
17 Section 184 (k) of RA No. 8293 provides: “Limitations on Copyright. 184.1.

Notwithstanding the provisions of Chapter V [on copyright and economic rights], the
following acts shall not constitute infringement of copyright:
(a) x x x x
xxxx
(k) Any use made of a work for the purpose of any judicial proceedings or for
the giving of professional advice by a legal practitioner.”
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him x x x in connection with the public use of his work.” In short,

the judge is legally obligated to make the proper attribution because
Section 193 protects the moral rights of the author.
The moral rights under Section 193 of the Intellectual Property
Code arise only if the work of an author is copyrighted. If the work
is not copyrighted, then there are no moral rights to the work. If the
passages in a textbook, journal article, or other non-work of the
government are merely quotations from Works of the Government,
like sentences or paragraphs taken from judicial decisions, then such
passages if copied by a judge do not require attribution because such
passages, by themselves, are Works of the Government. The same is
true for works in the public domain.
However, the arrangement or presentation of passages copied
from Works of the Government may be subject to copyright,18 and a
judge copying such arrangement or presentation, together with the
passages, may have to make the proper attribution. If the passages
are those of the author himself, and not copied from Works of the
Government or from works in the public domain, then clearly there
is a legal obligation on the part of the judge to make the proper
attribution. Failure by the judge to make such attribution violates not
only Section 193 of the Intellectual Property Code, but also Canon 3
of the Code of Judicial Conduct.
The moral rights of an author are independent of the author’s
economic rights to his work in the sense that even if the author
assigns his work, the moral rights to the work remain with him,
being inalienable.19 Any violation of an author’s moral rights entitles
him to the same remedies as a violation
_______________
18 Section173.1 (b), Intellectual Property Code.

19 Section 198.1 of the Intellectual Property Code provides that the “[moral]
rights of an author x x x shall not be assignable or subject to license.”
40

of the economic rights to the work,20 whether such economic rights

are still with him or have been assigned to another party. Thus, while
called “moral rights,” these rights are legally enforceable.
Two essential elements of an author’s moral rights are the right to
attribution and the right to integrity. The right to attribution or
paternity21 is the right of the author to be recognized as the
originator or father of his work, a right expressly recognized in
Section 193.1 of the Intellectual Property Code. The right to
integrity is the right of the author to prevent any distortion or
misrepresentation of his work, a right expressly recognized in
Section 193.3 of the Code. The Legislature incorporated the moral
rights of an author in the Intellectual Property Code in compliance
with the treaty obligations of the Philippines under the Berne
Convention, which requires treaty states to enact legislation
protecting the moral rights of authors.22
The rationale behind moral rights is explained in a local
intellectual property textbook, citing American jurisprudence:
“The term moral rights has its origins in the civil law and is a translation
of the French le droit moral, which is meant to capture those rights of a
spiritual, non-economic and personal nature. The rights spring from a belief
that an artist in the process of creation injects his spirit into the work and
that the artist’s personality, as well as the integrity of the work, should
therefore be protected and preserved. Because they are personal to the artist,
moral rights exist independently of an artist’s copyright in his or her work.
While the rubric of moral rights encompasses many varieties of rights,
two are protected in nearly every jurisdiction recognizing their
existence: attribution and integrity. The right of attribution generally
consists of the right of an artist to be recog-
_______________
20 Section 119, Intellectual Property Code.

21 Roger E. Schechter and John R. Thomas, Intellectual Property (2003), p. 19.
22 Vicente B. Amador, Copyright under the Intellectual Property Code (1998), p. 570.
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nized by name as the author of his work or to publish anonymously or

pseudonymously, the right to prevent the author’s work from being
attributed to someone else, and to prevent the use of the author’s name
on works created by others, including distorted editions of the author’s
original work. The right of integrity allows the author to prevent any
deforming or mutilating changes to his work, even after title of the
work has been transferred. In some jurisdictions, the integrity right also
protects artwork from destruction. Whether or not a work of art is protected
from destruction represents a fundamentally different perception of the
purpose of moral rights. If integrity is meant to stress the public interest in
preserving a nation’s culture, destruction is prohibited; if the right is meant
to emphasize the author’s personality, destruction is seen as less harmful
than the continued display of deformed or mutilated work that misrepresents
the artist and destruction may proceed.”23 (Emphasis supplied)
When a judge respects the right to attribution and integrity of an

author, then the judge observes intellectual honesty in writing his
decisions. Writing decisions is the most important official duty of a
judge, more so of appellate court judges. Conversely, if a judge fails
to respect an author’s right to attribution and integrity, then the judge
fails to observe intellectual honesty in the performance of his official
duties, a violation of Canon 3 of the Code of Judicial Conduct.
The duty of a judge to respect the moral rights of an author is
certainly not burdensome on the performance of his official duties.
All the reference materials that a judge needs in writing judicial
decisions are either Works of the Government or works in the public
domain. A judge must base his decision on the facts and the
law,24 and the facts and the
_______________
23 Id., p. 569, citing John Carter, John Swing and John Veronis v. Helmsley-Spear,
Inc. and Associates, U.S. Court of Appeals for 2nd Circuit, 1 December 1995.
24 Article 8 of the Civil Code provides: “Judicial decisions applying or
interpreting the laws or the Constitution shall form part of the legal system of the
Philippines.”
42


law are all in the public domain. There is no need for a judge to
refer to copyrighted works. When a judge ventures to refer to
copyrighted works by copying passages from such works, he
immediately knows he is treading on protected works, and should
readily respect the rights of the authors of those works. The judge,
whose most important function is to write judicial decisions, must be
the first to respect the rights of writers whose lives and passions are
dedicated to writing for the education of humankind.
Besides, Section 184(k) of the Intellectual Property Code already
generously allows the judge unlimited copying of copyrighted works
in writing his judicial decisions. The Code, however, does not
exempt the judge from recognizing the moral rights of the author.
The basic rule of human relations, as embodied in Article 19 of the
Civil Code, requires that the judge should give to the author of the
copyrighted work what is due him. Thus, Article 19 states: “Every
person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe
honesty and good faith.”
d. Difference from the Academe
Academic writing, such as writing dissertations or articles in
academic journals, is governed by standards different from judicial
decision writing. The failure to make the proper attribution for
passages copied from Works of the Government is not actionable
against a judge when writing a judicial decision. However, the same
failure by a student or a faculty member may be deemed plagiarism
in the academe, meriting a severe administrative penalty.
Nevertheless, the Judiciary and the academe should have the same
rule when it comes to copyrighted works. In every case, there is a
legal duty to make the proper attribution when copying passages
from copyrighted works because the law expressly requires such
attribution without exception.
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The academe requires that passages copied from Works of the

Government, works in the public domain, and non-copyrighted
works should be properly attributed in the same way as copyrighted
works. The rationale is to separate the original work of the writer
from the works of other authors in order to determine the original
contribution of the writer to the development of a particular art or
science. This rationale does not apply to the Judiciary, where
adherence to jurisprudential precedence is the rule. However, if a
judge writes an article for a law journal, he is bound by the same
rules governing academic writing.25
_______________
25 In the Matter of Hon. Thomas E. Brennan, Jr., Judge, 55th District, Mason,
Michigan, 433 Mich. 1204, 447 N.W.2d 712 (6 November 1989) . In this case, Judge
Brennan, Jr. submitted an article to a law review for publication. The article failed to
acknowledge several passages copied from law journal articles of two other authors.
The Michigan Judicial Tenure Commission recommended to the Supreme Court of
Michigan that Judge Brennan, Jr. be publicly censured for misconduct. Interestingly,
Judge Brennan, Jr. (a state judge) admitted his misconduct and made the following
manifestation:
Respondent Thomas E. Brennan, Jr., of the 55th District Court, Ingham
County, Michigan, acknowledges notice and receipt of the Judicial Tenure
Commission’s Decision and Recommendation for Order of Discipline dated
September 12, 1989, and stipulates to the Judicial Tenure Commission’s
findings as recited in paragraphs one (1) through six (6) thereof;
Respondent further affirmatively acknowledges the impropriety of his
conduct as set forth in the Decision and Recommendation for Order of
Discipline, and pursuant to MCR 9.221(C), consents to the Commission’s
recommendation that he be publicly censured.
Respondent further concurs in the request of the Judicial Tenure Commission
that an order embodying the foregoing disciplinary action be entered
immediately by the Michigan Supreme Court. (Emphasis supplied)
44


ACCORDINGLY, I vote to RECALL the Resolution of 12
October 2010 subject of the present motion for reconsideration as
this Court’s jurisdiction extends only to a determination whether the
administrative complaint against Justice Mariano C. Del Castillo
constitutes contempt of this Court.
SEPARATE DISSENTING OPINION
CARPIO-MORALES, J.:
I join Justice Antonio T. Carpio’s thesis in his Dissenting
Opinion on the commission of plagiarism or violation of intellectual
property rights in the Vinuya decision. I join him too on his other
thesis that this Court has no jurisdiction to decide an administrative
case where a sitting Justice of this Court has committed misconduct
in office, with qualification.
I submit that the Court may wield its administrative power
against its incumbent members on grounds other than culpable
violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust, AND provided the
offense or misbehavior does not carry with it a penalty, the service
of which would amount to removal from office either on a
permanent or temporary basis such as suspension.
“The President, the Vice President, the members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may
be removed from office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but not by
impeachment.”1 (underscoring supplied)
In 1988, the Court dismissed the complaint for disbarment

against Justice Marcelo Fernan for lack of merit. Aside from
_______________
1C , Art. XI, Sec. 2.
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finding the accusations totally baseless, the Court, by per curiam

Resolution,2 also stated that to grant a complaint for disbarment of a
member of the Court during the member’s incumbency would in
effect be to circumvent and hence to run afoul of the constitutional
mandate that members of the Court may be removed from office
only by impeachment.
In the subsequent case of In Re Raul M. Gonzalez,3 this principle
of constitutional law was succinctly formulated in the following
terms which lay down a bar to the institution of certain actions
against an impeachable officer during his or her incumbency.
“x x x A public officer who under the Constitution is required to be a

Member of the Philippine Bar as a qualification for the office held by him
and who may be removed from office only by impeachment, cannot be
charged with disbarment during the incumbency of such public officer.
Further, such public officer, during his incumbency, cannot be charged
criminally before the Sandiganbayan or any other court with any offense
which carries with it the penalty of removal from office, or any penalty
service of which would amount to removal from office.”4 (emphasis and
underscoring supplied; italics in the original)
The Court clarified, however, that it is not saying that its

members are entitled to immunity from liability for possible
criminal acts or for alleged violations of the canons of judicial ethics
or codes of judicial conduct. It stressed that there is a fundamental
procedural requirement that must be observed before such liability
may be determined and enforced.
“x x x A Member of the Supreme Court must first be removed from

office via the constitutional route of impeachment under Sections 2 and 3 of
Article XI of the 1987 Constitution. Should the ten-
_______________
2 Cuenco v. Fernan, Adm. Case No. 3135, February 17, 1988, 158 SCRA 29; vide also the
Resolution of April 15, 1988 (160 SCRA 778) where the complainant was severely
reprimanded and warned.
3 A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771.
4 Id., at p. 774.
46


ure of the Supreme Court Justice be thus terminated by impeachment, he

may then be held to answer either criminally or administratively (by
disbarment proceedings) for any wrong or misbehaviour that may be proven
against him in appropriate proceedings.”5 (underscoring supplied)
The Court declared the same principle in Jarque v. Desierto6 by

Resolution of December 5, 1995.
“The rule that an impeachable officer cannot be criminally prosecuted

for the same offenses which constitute grounds for impeachment
presupposes his continuance in office. Hence, the moment he is no longer in
office because of his removal, resignation, or permanent disability, there can
be no bar to his criminal prosecution in the courts.
Nor does retirement bar an administrative investigation from proceeding
against the private respondent, given that, as pointed out by the petitioner,
the former’s retirement benefits have been placed on hold in view of the
provisions of Sections 12 and 13 of the Anti-Graft and Corrupt Practices
Act.”7 (underscoring supplied)
The immediately-quoted pronouncement implies that the

administrative investigation must be initiated during the incumbency
of the respondent.
That the Supreme Court has overall administrative power over its
members and over all members of the judiciary has been
recognized.8 Moreover, the Internal Rules of the Supreme Court
(2010)9 expressly included, for the first time,
_______________
5 Id., at pp. 776-777.

6 A.C. No. 4509, December 5, 1995, 250 SCRA xi.
7 Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, March 4, 2005,
452 SCRA 714, 734-735.
8 In discussing the word “incapacitated,” Bernas said that the power to determine
incapacity is part of the overall administrative power which the Supreme Court has
over its members and over all members of the judiciary [Bernas, T 1987
C R P :AC (2003), p. 988].
9 A.M. No. 10-4-20-SC (May 4, 2010).
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“cases involving the discipline of a Member of the Court”10 as

among those en banc matters and cases. Elucidating on the
procedure, Section 13, Rule 2 of the Court’s Internal Rules provides:
“SEC. 13. Ethics Committee.—In addition to the above, a permanent

Committee on Ethics and Ethical Standards shall be established and
chaired by the Chief Justice, with following membership:
a) a working Vice-Chair appointed by the Chief Justice;
b) three (3) members chosen among themselves by the en banc by
secret vote; and
c) a retired Supreme Court Justice chosen by the Chief Justice as a
non-voting observer-consultant.
The Vice-Chair, the Members and the Retired Supreme Court Justice
shall serve for a term of one (1) year, with the election in the case of elected
Members to be held at the call of the Chief Justice.
The Committee shall have the task of preliminarily investigating all
complaints involving graft and corruption and violations of ethical
standards, including anonymous complaints, filed against Members of the
Court, and of submitting findings and recommendations to the en banc.
All proceedings shall be completely confidential. The Committee shall also
monitor and report to the Court the progress of the investigation of similar
complaints against Supreme Court officials and employees, and handle the
annual update of the Court’s ethical rules and standards for submission to
the en banc.” (emphasis and underscoring supplied)
The Court acknowledged its power to take cognizance of

complaints against its incumbent Members. It is circumscribed,
however, by the abovementioned principle of constitutional law11 in
terms of grounds and penalties.
_______________
10 Id., Rule 2, Sec. 3, par. (h).

11 This framework of constitutional law likewise explains why incumbent Justices
of the Supreme Court, by virtue of their being impeachable officers, are not included
from the operation of A.M. No. 02-9-02-SC on the “Automatic Conversion of Some
Administra-
48

In at least two recent instances, the Court had conducted

administrative proceedings against its incumbent Members.
In the controversy surrounding the 1999 Bar Examinations, the
Court, by Resolution of March 22, 2000 in Bar Matter No. 979,
censured then incumbent Justice Fidel Purisima for his failure to
disclose on time his relationship to an examinee and for breach of
duty and confidence, and declared forfeited 50% of the fees due him
as chairperson of the 1999 Bar Examinations Committee. The
impositions did not, however, douse the clamor for stiffer penalties
on Justice Purisima in case he were found liable after a full,
thorough and formal investigation by an independent and impartial
committee, which some quarters urged the Court to form.
_______________
tive Cases Against Justices of the Court of Appeals and the Sandiganbayan, Judges of
Regular and Special Courts, and Court Officials Who Are Lawyers as Disciplinary
Proceedings Against Them Both as Officials and as Members of the Philippine Bar”
(September 17, 2002). The rule provides that when the said administrative case is
based on grounds which are likewise grounds for a disciplinary action of members of
the Bar, the administrative case shall also be considered a disciplinary action against
the respondent justice, judge or court official concerned as a member of the Bar [as
applied in Avancena v. Liwanag, A.M. No. MTJ-01-1383, March 5, 2003, 398 SCRA
541 and July 17, 2003, 406 SCRA 300 where the judge was dismissed from service
and disbarred from the practice of law. See also Juan de la Cruz (Concerned Citizen
of Legazpi City) v. Carretas, A.M. No. RTJ-07-2043, September 5, 2007, 532 SCRA
218; Cañada v. Suerte, A.M. No. RTJ-04-1884, February 22, 2008, 546 SCRA 414].
Its application to a particular administrative action is not dependent on the date of
commission of the offense but on the date of filing of the case. There is no automatic
conversion when the administrative case was filed before October 1, 2002 or prior to
the date of effectivity of A.M. No. 02-9-02-SC (vide Office of the Court
Administrator v. Morante, A.M. No. P-02-1555, April 16, 2004, 428 SCRA 1, 35-36;
J. King and Sons Company, Inc., v. Hontanosas, Jr., A.M. No. RTJ-03-1802, February
28, 2006 Resolution) and the respondent has already been required to comment on the
complaint (Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA
329, 341).
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Meanwhile, Justice Purisima retired from the Court on October

28, 2000. By Resolution of November 28, 2000, the Court ruled that
“[h]is retirement makes it untenable for this Court to further impose
administrative sanctions on him as he is no longer a member of the
Court” and referred the bar matter to the Special Study Group on
Bar Examination Reforms for report and recommendation.
The implication that the Court could have imposed further
administrative sanctions on Justice Purisima had he not retired is a
recognition that the Court may discipline one of its sitting members.
Further, the Court did not explain why the “further” imposition of
administrative sanctions was untenable except for the fact that
Justice Purisima was no longer a member of the Court. Could it be
that the earlier imposed penalties (i.e., censure and partial forfeiture
of fees) were already considered sufficient? Could it be that the
proper administrative case (arising from the earlier bar matter) was
not instituted before Justice Purisima retired? Or could it be that
Justice Purisima’s retirement benefits were already released to him,
leaving the Court with nothing more to go after to or impose
(except, perhaps, disqualification to hold any government office)?
I thus submit that the failure to initiate an administrative
proceeding prior to Justice Purisima’s retirement made it
untenable for the Court to further impose administrative
sanctions on him. What was confirmed by the Purisima case,
nonetheless, for purposes of pertinent discussion, is that the Court
has jurisdiction to take cognizance of a complaint against an
incumbent Justice.
Then there was the case In re: Undated Letter of Mr. Louis
Biraogo12 where Justice Ruben Reyes was, inter alia, “held liable
for GRAVE MISCONDUCT for leaking a confidential internal
document of the Court” for which he was “FINED
_______________
12 A.M. No. 09-2-19-SC, February 24, 2009, 580 SCRA 106.
50


P500,000.00, to be charged against his retirement benefits, and

disqualified to hold any office or employment in any branch or
instrumentality of the government including government-owned or
controlled corporations.”13 The question in Biraogo was not so
much on the Court’s jurisdiction over the case but on the effect of
Justice Reyes’ subsequent retirement during the pendency of the
case.
Unlike the present case, however, impeachment proceedings
against Justices Purisima and Reyes did not see the light of day as
they eventually retired, which mandatory retirement either
foreclosed the initiation of further administrative proceedings or
directed the imposable sanctions to the retirement benefits.
In view of the impeachment complaint filed with the House of
Representatives involving the same subject matter of the case, which
denotes that a co-equal branch of government found the same act or
omission grievous as to present a ground for impeachment and opted
to exercise its constitutional function, I submit that the Court cannot
proceed with the administrative complaint against Justice Del
Castillo for it will either (i) take cognizance of an impeachable
offense which it has no jurisdiction to determine, or (ii) downplay
the questioned conduct and preempt the impeachment proceedings.
I thus join the call of Justice Carpio to recall the Court’s October
15, 2010 Resolution, but only insofar as Justice Del Castillo is
concerned. All related administrative concerns and issues involving
non-impeachable officers therein should still be considered effectual.
In Biraogo, the unauthorized release of the unpromulgated
ponencia of Justice Reyes in the consolidated Limkaichong cases
spawned an investigation to determine who were responsible for the
leakage of the confidential internal docu-
_______________
13 Id., at p. 164.
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ment of the Court. The investigation led to the disciplining of not

just Justice Reyes but also two members of his staff, who were
named without hesitation by the Court, viz., Atty. Rosendo B.
Evangelista and Armando Del Rosario, and who were held liable for
SIMPLE NEGLECT OF DUTY and ordered to pay FINE in the
amount of P10,000.00 and P5,000.00, respectively.14
_______________
14 Id. The Court explained:

Liability of Atty. Rosendo B. Evangelista
The Committee finds that Atty. Evangelista, Justice Reyes’ Judicial Staff Head,
was remiss in his duties, which includes the supervision of the operations of the
office, particularly with respect to the promulgation of decisions. While it is
incumbent upon him to devise ways and means to secure the integrity of confidential
documents, his actuations reflected above evinced "a disregard of a duty resulting
from carelessness or indifference."
Atty. Evangelista was admittedly unmindful of the responsible safekeeping of
draft ponencias in an unlocked drawer of a member of the staff. He failed to make
sure that the unused portion of confidential documents like the second signatory page
of the ponencia in Gilbert form had been properly disposed of or shredded. He was
not on top of things that concerned the promulgation of ponencias, for he failed to
ascertain the status and procedural implication of an "on hold" order after having been
apprised thereof by his subordinate, Del Rosario, on July 17, 2008. Despite his
awareness that the Limkaichong case would eventually be called again, he admitted
that he was not privy to the preparation of the copy of the ponencia for the subsequent
session on July 29, 2008.
With these findings, the Court finds him liable for SIMPLE NEGLECT OF
DUTY.
Liability of Armando Del Rosario
The committee likewise finds Del Rosario administratively liable for failing to
exercise the required degree of care in the custody of the Gilbert copy. Del Rosario
admittedly kept the Gilbert copy in an unlocked drawer from July 16, 2008 to
December 10, 2008 when he should have known that, by the nature of the document
in his custody, he should have kept it more securely. His carelessness renders him
administratively liable for SIMPLE NEGLECT OF
52


Why, in the present case, the legal researcher who is hiding

behind her credentials appears to be held a sacred cow, I cannot
fathom. Hers is a new (or better) specie of initialed personification
(e.g., “xxx”) under the likes of Cabalquinto15 which should apply
only to cases involving violence against women and children.16
The unjustified non-disclosure of her identity is unfair to Atty.
Evangelista who, aside from having his own credentials
_______________
DUTY, defined as the failure to give proper attention to a task expected of an

employee resulting from either carelessness or indifference.
Time and again, the Court has emphasized the heavy burden and responsibility
which court officials and employees are mandated to carry. They are constantly
reminded that any impression of impropriety, misdeed or negligence in the
performance of official functions must be avoided. The Court will never countenance
any conduct, act or omission on the part of all those involved in the administration of
justice which would violate the norm of public accountability and diminish the
people’s faith in the judiciary.
Under Section 23, Rule XIV of the Omnibus Civil Service Rules and Regulations,
(simple) neglect of duty is punishable by suspension of one month and one day to six
months for the first offense. Under Sec. 19, Rule XIV of the same Rules, the penalty
of fine (instead of suspension) may also be imposed in the alternative. Following the
Court’s ruling in several cases involving (simple) neglect of duty, we find the penalty
of fine on Atty. Evangelista and Del Rosario in the amount of P10,000 and P5,000,
respectively, just and reasonable. (Id., at pp. 161-163; emphasis, italics and
underscoring in the original).
15 People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
16 Vide Republic Act No. 7610 (Special Protection of Children against Child
Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti-Violence
Against Women and Their Children Act of 2004); A.M. No. 04-10-11-SC of
November 14, 2004 (Rule on Violence against Women and their Children); and A.M.
No. 99-7-06-SC, In Re Internet Web page of the Supreme Court, Resolution of
February 14, 2006.
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to protect, had to be mentioned as a matter of course in the

committee report adopted by the Court in In re: Undated Letter of
Mr. Louis Biraogo, after similarly cooperating with and explaining
his side before the investigating committee.
Atty. Evangelista was eventually found by the Court to be
wanting in care and diligence in securing the integrity and
confidentiality of a document. In the present case, the Court’s
October 15, 2010 per curiam Decision cleared the name of the
unnamed legal researcher.
While what was at stake in Biraogo was the “physical integrity”
of a ponencia, what is at stake in the present case is the “intellectual
integrity” of a ponencia. The Court is committing a disservice to its
judicial function if it values the physical form of a decision more
than what a decision substantially contains.
Moreover, the liability of Justice Reyes did not save the day for
Atty. Evangelista who, as the judicial staff head, was tasked to
secure and protect the copies of the Limkaichong Decision. Similarly
in the present case, independently of Justice Del Castillo’s
“shortcomings,” the legal researcher, who was the lone drafter,
proofreader and citechecker, was tasked like any other Court
Attorney to secure and ensure the substance and legal reasoning of
the Vinuya Decision. Like Justice Reyes, Justice Del Castillo can
only do so much in claiming responsibility and full control of his
office processes and shielding the staff under the mantle of his
impeachable wings.
Notably, Rule 10.2 of Canon 10 of the Code of Professional
Responsibility states that lawyers shall “not knowingly misquote or
misrepresent the contents of a paper, the language or the argument
of opposing counsel, or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative by
repeal or amendment, or assert as a fact that which has not been
proved.” While the provision presupposes knowledge or willful
intent, it does not mean that negli-
54


gent acts or omissions of the same nature by lawyers serving the

government go scot-free.
Simple neglect of duty is defined as the failure to give proper
attention to a task expected of an employee resulting from either
carelessness or indifference.17
I submit that the legal researcher was remiss in her duties of re-
studying the sources or authorities invoked in the Vinuya Decision
and checking the therein citations or, at the very least, those whose
authors’ rights to attribution and integrity are protected under
Intellectual Property Law. While it is incumbent upon her to devise
ways and means of legal research, her admitted method or process as
shown in the Vinuya case reflects a disregard of a duty resulting
from carelessness or indifference. She failed to exercise the required
degree of care to a task expected of a lawyer-employee of the
Supreme Court.
While the Court recognizes that there were indeed lapses in the
editorial work in the drafting of the Vinuya Decision, it easily
attributed them to “accidental deletions.” It conveniently assigned
such human errors to the realm of accidents, without explaining
whether it could not have been foreseen or avoided.
I, therefore, posit that the legal researcher, who must hitherto be
named, is liable for Simple Neglect of Duty and must be ordered to
pay a Fine in the amount of, following Biraogo, P10,000.00, with
warning of more severe sanctions for future similar conduct.
Whether liability attaches to what the October 15, 2010 per
curiam Decision finds to be deletion or omission of citation
“unquestionably due to inadvertence or pure oversight,” the fact
remains, nonetheless, that there is a need for a textual
_______________
17 In Re: Undated Letter of Mr. Louis Biraogo, supra at p. 162, citing Rivera v.
Buena, A.M. No. P-07-2394, February 19, 2008, 546 SCRA 222.
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correction of the Vinuya Decision. This Court should cause the

issuance of a corrected version in the form of, what Justice Ma.
Lourdes P. A. Sereno suggests as, a “corrigendum.”
The matter of making corrections in judicial issuances is neither
novel nor something beneath the Court. As early as February 22,
2000, the Court already accepted the reality of human error. In A.M.
No. 00-2-05-SC, “In the Matter of Correction of Typographical
Errors in Decisions and Signed Resolutions,” the Court provided a
simple procedure in making proper corrections:
Inadvertent typographical errors in decisions and signed resolutions of

the Court may occur every now and then. As these decisions and signed
resolutions are published and preserved for posterity in the Philippine
Reports, the Supreme Court Reports Annotated, and other publications as
well as in the Supreme Court website, the need for making them free of
typographical errors cannot be overemphasized. Care should, therefore, be
taken in proofreading them before they are submitted for promulgation
and/or publication.
Nevertheless, should typographical errors be discovered after the
promulgation and/or publication of decisions and resolutions, the following
procedure should be observed to the end that unauthorized corrections,
alterations, or intercalations in what are public and official documents are
not made.
1. In case of decisions and signed resolutions with the author[‘s] names
indicated, the Reporter and the Chief of the Management Information
Systems Office of the Supreme Court should secure the authority of the
author concerned to make the necessary correction of typographical errors.
In case of per curiam decisions and unsigned resolutions, authority to make
corrections should be secured from the Chief Justice.
2. The correction of typographical errors shall be made by crossing out
the incorrect word and inserting by hand the appropriate correction
immediately above the cancelled word. Such correction shall be
authenticated by the author by signing his initials immediately below the
correction. In per curiam decisions and unsigned resolutions, and in cases
where the author is no longer a member of the Court, the authentication
shall be made by the Chief Justice.
56


3. The Reporter and the Chief of the Management Information Systems

Office shall submit to the Court, through the Clerk of Court, a quarterly
report of decisions and resolutions in which corrections have been made.
The Clerk of Court must thereafter include the report in the agenda of the
Court en banc.
This resolution takes effect immediately.
Despite the avowals of “slip in attribution,” “bad footnoting,”

and “editorial error” in the Court’s October 15, 2010 per curiam
Decision, to date no effort has been made to correct the Vinuya
Decision in conformity with A.M. No. 00-2-05-SC, which only
implies that the lapses are not typographical in nature. The
corrections of the Vinuya Decision cannot simply be made by
crossing out the incorrect word and inserting by hand the appropriate
correction immediately above the cancelled word, with
authentication by the ponente or writer.
SEPARATE CONCURRING OPINION
BRION, J.:
Background Facts
The present administrative disciplinary case against Supreme

Court Associate Justice Mariano C. del Castillo stemmed from the
decision he penned for the Court in G.R. No. 162230, entitled
Isabelita C. Vinuya, et al. v. Executive Secretary. The Vinuya
Decision was promulgated on April 28, 2010 with 13 justices of this
Court concurring with the ruling to dismiss the case.
On July 19, 2010, Attys. Harry Roque and Rommel Bagares,
counsels for petitioners Vinuya, et al., filed a Supplemental Motion
for Reconsideration raising, among others, the plagiarism allegedly
committed by Justice del Castillo for using the works of three
foreign legal authors in his ponencia. They alleged that the use was
without proper attribution and that Justice del Castillo twisted the
foreign authors’ works to support the Decision. They considered it
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“highly improper for x x x the Court x x x to wholly lift, without

proper attribution, from at least three sources—an article published
in 2009 in the Yale Law Journal of International Law,1 a book
published by the Cambridge University Press in 2005,2 and an
article published in the Case Western Reserve Journal of
International Law3—and to make it appear that these sources
support the assailed Judgment’s arguments for dismissing [their]
petition[,] when in truth, the plagiarized sources even make a strong
case for the Petition’s claims[.]”4
In reply to the accusation, Justice del Castillo wrote and
circulated a letter dated July 22, 2010 to the members of this Court.
On July 27, 2010, the Court decided to refer the letter to the
Ethics and Ethical Standards Committee (the “Ethics Committee”
or “committee”) which docketed it as an administrative matter.
The committee required Attys. Roque and Bagares to comment on
Justice del Castillo’s letter, after which it heard the parties. After the
parties’ memoranda, the committee submitted its findings and
recommendations to the Court.
The Court’s Decision on the Plagiarism
Charge against Justice del Castillo
In a Decision dated October 12, 2010, the Court resolved to
dismiss the plagiarism charges against Justice del Castillo. It
recognized that indeed certain passages of the foreign legal article
were lifted and used in
_______________
1 A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent.

2 Enforcing Erga Omnes Obligations in International Law by Christian J. Tams.
3 Breaking the Silence: On Rape as an International Crime by Mark Ellis.
4 Petitioners Vinuya, et al.’s Supplemental Motion for Reconsideration dated July
18, 2010, p. 2.
58


the Vinuya Decision and that “no attributions were made to the x x x
authors in [its] footnotes.”5 However, the Court concluded that the
failure to attribute did not amount to plagiarism because no
malicious intent attended the failure; the attributions (present in
Justice del Castillo’s original drafts) were simply accidentally
deleted in the course of the drafting process. Malicious intent was
deemed an essential element, as “plagiarism is essentially a form of
fraud where intent to deceive is inherent.” Citing Black’s Law
Dictionary’s definition of plagiarism—the deliberate and knowing
presentation of another person’s original ideas or creative
expressions as one’s own—the Court declared that “plagiarism
presupposes intent and a deliberate, conscious effort to steal
another’s work and pass it off as one’s own.” In fact, the Court
found that by citing the foreign author’s original sources, Justice del
Castillo never created the impression that he was the original author
of the passages claimed to have been lifted from the foreign law
articles:
“The Court also adopts the Committee’s 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.”
As to the charge that Justice del Castillo twisted the meaning of

the works of the foreign authors, the Court ruled that it was
impossible for him to have done so because:
“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”
_______________
5 Specifically, the Court referred to the article A Fiduciary Theory of Jus Cogens written by
Criddle-Decent and Fox.
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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.”
The Court, thus, declared that “only errors [of judges] tainted
with fraud, corruption, or malice are subject of disciplinary action”
and these were not present in Justice del Castillo’s case; the failure
was not attended by any malicious intent not to attribute the lifted
passages to the foreign authors.
Justice Maria Lourdes P. A. Sereno dissented from the Court’s
October 12, 2010 Decision based mainly on her disagreement with
the majority’s declaration that malicious intent is required for a
charge of plagiarism to prosper.
On November 15, 2010, Attys. Roque and Bagares filed a motion
for reconsideration of the Court’s October 12, 2010 Decision. This
motion was the subject of the Report/Resolution submitted to the
Court for consideration. Incidentally, the same counsels filed an
impeachment complaint for betrayal of public trust against
Justice del Castillo with the House of Representatives on
December 14, 2010.
The Court’s Action on the
Motion for Reconsideration
The Court referred the motion for reconsideration to the
Ethics Committee and its Report recommended the dismissal of
the motion for reconsideration. The Report differentiated
academic writing from judicial writing, declaring that originality of
ideas is not required of a judge writing decisions and resolving
conflicts because he is bound by the doctrine of stare decisis—the
legal principle of determining points in litigation according to
precedents.
60


The Report likewise declared that the foreign authors, whose

works were claimed to have been plagiarized, were not themselves
the originators of the ideas cited in the Vinuya Decision. While the
Vinuya Decision did not mention their names, it did attribute the
passages to the original authors from whom these foreign authors
borrowed the ideas. There was, thus, no intent on the part of Justice
del Castillo to appropriate the ideas or to claim that these ideas
originated from him; in short, he did not pass them off as his own.
Justice Antonio T. Carpio dissented from the Report, based on
two grounds:
a. the Court has no jurisdiction over the administrative case as it
involves a sitting Supreme Court Justice, for alleged
misconduct committed in office; and
b. the judge, when writing judicial decisions, must comply with
the law on copyright and respect the moral right of the author
to have the work copied attributed to him.
My Position
I fully support the conclusions of the Ethics Committee. I

likewise take exception to Justice Carpio’s Dissenting Opinion,
specifically on his position that the Court has no jurisdiction to
discipline its Members as the only means to discipline them is
through impeachment proceedings that the Congress has the sole
prerogative to undertake. Impeachment, he declares, functions as the
equivalent of administrative disciplinary proceedings. Since the
Congress is given the exclusive power to initiate,6 try, and decide7
all cases of impeachment, Justice Carpio posits that the Congress
serves
_______________
6 C , Article XI, Section 3(1). The House of Representatives shall

have the exclusive power to initiate all cases of impeachment.
7 Id., Section 3(6). The Senate shall have the sole power to try and decide all cases
of impeachment.
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as the exclusive disciplining authority over all impeachable officers.
He warns that for the Supreme Court to hear the present
administrative disciplinary case would be to usurp this exclusive
power of Congress.
Jurisdiction of the Supreme Court to
Discipline its Members
A given in the discipline of Members of the Supreme Court is
that they can only be “removed from office” through impeachment,
as provided under Article XI of the Constitution, on the specified
grounds of culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of the public
trust. The purpose of impeachment and the constitutional interest
sought is to protect the people and the State from official
delinquencies and other malfeasances.8 The Constitution, however,
is not a single-purpose document that focuses on one interest alone
to the exclusion of related interests; impeachment was never
intended by the Constitution to be the totality of the administrative
actions or remedies that the public or the Court may take against an
erring Justice of the Court. Other related constitutional interests exist
touching on other facets of the Judiciary and public accountability.
They are, by themselves, equally compelling and demanding of
recognition.
Among the compelling interests that the Constitution zealously
guards is judicial independence because it is basic to the meaning
and purposes of the Judiciary. This interest permeates the provisions
of Article VIII of the Constitution.9
_______________
8 See De Leon, Philippine Constitutional Law, Vol. II, 2004 Ed., p. 831.
9 See, among others, security of tenure at Section 1; fiscal autonomy under
Section 2; defined jurisdiction that Congress cannot touch without concurrence from
the Supreme Court; administrative supervision over all courts under Section 6; a
Judicial and Bar Council that renders recourse to the Commission on Appointments
unnec-
62


Another interest to consider is the need for judicial integrity—a

term not expressly mentioned in the Article on the Judiciary (Article
VIII), but is a basic concept found in Article XI (on Accountability
of Public Officers) of the Constitution. It is important as this
constitutional interest underlies the independent and responsible
Judiciary that Article VIII establishes and protects. To be exact, it
complements judicial independence as integrity and independence
affect and support one another; only a Judiciary with integrity can be
a truly independent Judiciary. Judicial integrity, too, directly relates
to public trust and accountability that the Constitution seeks in the
strongest terms. The same Article XI contains the impeachment
provisions that provide for the removal of Justices of the Supreme
Court. Notably, a common thread that runs through all the grounds
for impeachment is the lack of integrity of the official impeached on
these grounds.
Still another unavoidable consideration on impeachment and its
limited grounds is that it cannot, by itself, suffice to protect the
people and foster the public accountability that the Constitution
speaks of. While it is a powerful weapon in the arsenal of public
accountability and integrity, it is not a complete weapon that can
address and fully achieve its protective purposes. As discussed more
fully below, not all complaints and grievances can be subsumed
under the defined constitutional grounds for impeachment. Members
of the Court can commit other offenses not covered by the
impeachable offenses, for which other offenses they should equally
be held accountable. These other offenses must of course be
administratively addressed elsewhere if they cannot be similarly
addressed through impeachment; the people will not accept an
interpretation that these are offenses that fell through the
constitutional cracks and can no longer be administratively
addressed.
_______________
essary; and the guarantee of strict focus on judicial duties under Section 12.
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These considerations, taken together, dictate against the position

of Justice Carpio that the Congress alone, through impeachment and
to the exclusion of this Court, can proceed against the Members of
the Court.
Protection of Judicial Integrity
For the purpose of preserving judicial integrity, the Supreme
Court has as much (and in fact, should have more) interest as the
public or as any other branch of the government in overseeing the
conduct of members of the Judiciary, including its own Members.
This is precisely the reason for the Judiciary’s Code of Judicial
Conduct and the lawyers’ Code of Professional Responsibility.
Judicial integrity is not only a necessary element in the orderly and
efficient administration of justice; it is almost literally the lifeblood
of the Judiciary. A Judiciary, dissociated from integrity and the
public trust that integrity brings, loses its rightful place in the
constitutional democratic scheme that puts a premium on a reliable
and respected third branch of government that would balance the
powers of the other two branches.
To ensure the maintenance and enhancement of judicial integrity,
the Constitution has given the Judiciary, mainly through the
Supreme Court, a variety of powers. These powers necessarily begin
with the power to admit and to discipline members of the bar10 who
are officers of the courts and who have the broadest frontline
interaction with the courts and with the public. Courts in general
have the power to cite for contempt11 that proceeds, not only from
the need to maintain orderly procedures, but also from the need to
protect judicial integrity in the course of the courts’ exercise of
judicial power. The Supreme Court has the power to
_______________
10 C , Article VIII, Section 5(5); R C , Rules 138 and

139-B.
11 R C , Rule 71.
64


discipline and remove judges of lower courts.12 In this role, the

Court hears administrative disciplinary cases against lower court
judges for purposes of redress against erring judges and, more
importantly, to “[preserve] the integrity of the judicial system
and public confidence in the system and x x x [to safeguard] the
bench and the public from those who are unfit.”13
As concrete legal basis, the Supreme Court is expressly granted
the general power of administrative supervision over all courts and
the personnel thereof.14 By its plain terms, the power extends not
only to the authority to supervise and discipline lower court judges
but to exercise the same powers over the Members of the Court
itself. This is the unavoidable meaning of this grant of authority if its
main rationale—i.e., to preserve judicial integrity—is to be given
full effect. The Supreme Court must ensure that the integrity of the
whole Judiciary, its own Members included, is maintained as any
taint on any part of the Judiciary necessarily taints the whole. To
state the obvious, a taint in or misconduct by any Member of the
Supreme Court—even if only whispered about for lack of concrete
evidence and patriotic whistleblowers—carries greater adverse
impact than a similar event elsewhere in the Judiciary.
_______________
12 C , Article VIII, Section 11; Rules Of Court, Rule 140.

13 Cynthia Gray, A Study of State Judicial Discipline Sanctions, American
Judicature Society (2002), at <www.ajs.org/ethics/
pdfs/Sanctions.pdf>, last visited February 9, 2011. The article also cites other reasons:
impressing upon the judge the severity and significance of the misconduct; deterring
similar conduct by the judge and others; reassuring the public that judicial misconduct
is not tolerated or condoned; and fostering public confidence in the self-policing
system.
14 See Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the
Philippines: A Commentary (2009 ed.), p. 1012, and Hector S. De Leon, Philippine
Constitutional Law: Principles and Cases, Volume 2 (2004 ed.), p. 595.
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Independent of the grant of supervisory authority and at a more
basic level, the Supreme Court cannot be expected to play its role in
the constitutional democratic scheme solely on the basis of the
Constitution’s express grant of powers. Implied in these grants are
the inherent powers that every entity endowed with life (even
artificial life) and burdened with responsibilities can and must
exercise if it is to survive. The Court cannot but have the right to
defend itself to ensure that its integrity and that of the Judiciary it
oversees are kept intact. This is particularly true when its integrity is
attacked or placed at risk by its very own Members—a situation that
is not unknown in the history of the Court. To be sure, judicial
integrity cannot be achieved if the Court can police the ranks of the
lower court judges but not its own ranks. From this perspective view,
it is unthinkable that the Supreme Court can only watch helplessly—
for the reason that the power to act is granted only to Congress
under the terms of the Constitution—as its own Members prostitute
its integrity as an institution.
Impeachment Grounds are Limited
That an impeachment partakes of the nature of an administrative
disciplinary proceeding confined to the defined and limited grounds
of “culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, and betrayal of public trust”15 cannot
be disputed. However, it cannot likewise be disputed that these
grounds, as defined, refer only to those serious “offenses that strike
at the very heart of the life of the nation.”16 Thus, for “betrayal of
public trust” to be a ground for impeachment, the “manner of
commission must be of the same severity as ‘treason’ and
‘bribery.’ ”17 With respect to members of the High Court,
_______________
15 C , Article XI, Section 2.

16 See Bernas, supra, note 14, p. 1113.
17 Ibid.
66


impeachment is considered “as a response to serious misuse of

judicial power”18 no less equivalent to treason or bribery.
Directly implied from these established impeachment principles
is that “removal from office (the imposable penalty upon
impeachment and conviction) is not the price exacted for every
incident of judicial misconduct.”19 Otherwise stated, that
impeachment administratively addresses only serious offenses
committed by impeachable officers cannot imply that the
Constitution condones misdemeanors and misconduct that are not of
equal gravity.
For, side by side with the constitutional provision on
impeachment is the constitutional policy that “public office is a
public trust” and that “public officers and employees must, at all
times, be accountable to the people.”20 Even impeachable officials,
despite the nature and level of their positions, must be
administratively accountable for misconduct and misdemeanors that
are of lesser gravity than the defined impeachable offenses. Only
this approach and reconciled reading with the provision on
impeachment can give full effect to the constitutional policy of
accountability. If this were not the case, then the public would be left
with no effective administrative recourse against Supreme Court
Justices committing less than grave misconduct. One American
writer, Brent D. Ward, writes on this point that:
“It would be a serious weakness in our system to place systematic

judicial misconduct beyond the reach of any remedy save impeachment.
There are limits beyond which no
_______________
18 Robert W. Kastenmeier, Report of the National Commission on Judicial Discipline and

Removal (March 1994), 152 F.R.D. 265, at <judicial-discipline-reform.org/judicial-
complaints/1993-Report-Removal.pdf>, last visited on February 9, 2011.
19 Cynthia Gray, supra note 13, citing In re Lowery, 999 S.W.2d 639, 661 (Special Court of
Review Appointed by Texas Supreme Court, 1998).
20 C , Article XI, Section 1.
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person—even a federal judge—should be allowed to go with impunity.

The courts themselves have the power and the duty to curtail the effect of
repeated contrary and erratic actions of a judge that occur too frequently to
permit effective appellate supervision in the run of cases.
xxxx
[The] Constitution does x x x shield [judges] from corrective action by other
judges designed to ensure that the law is effectively administered. The
appellate courts have the power to prevent action so obviously improper as
to place it beyond established rules of law.”21
Adverse Effects of Expansive

View of Impeachment Grounds
If impeachment were to be the only administrative proceeding to
hold Justices of this Court accountable, then the grounds for
impeachment may arguably carry a definition beyond the
traditionally grave or serious character these offenses have always
carried. An expanded definition, however, is no different from the
remedy of burning a house to kill a rat. While such definition in the
long run may kill more rats or assuredly do away with a particularly
obnoxious rat, it will at the same time threaten and adversely affect a
more valuable constitutional interest—the independence of the
Judiciary that allows magistrates to conscientiously undertake their
duties, guided only by the dictates of the Constitution and the rule of
law.
It needs no elaborate demonstration to show that the threat of
impeachment for every perceived misconduct or
_______________
21 Brent D. Ward, Can the Federal Courts Keep Order in Their Own House?
Appellate Supervision through Mandamus and Orders of Judicial Councils, 233
Bringham Young University Law Review 233, 237 and 253 (1980), at
<heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/byulr1980&div=177ID=&page=>, last
visited on February 9, 2011.
68


misdemeanor would open Justices of the Court to harrassment. A

naughty effect—if administrative redress can only be secured from
Congress to the exclusion of this Court under an expanded definition
of impeachment grounds—is to encourage every litigant with a
perceived grievance against a Justice of this Court to run to his
congressman for the filing of an impeachment complaint.
Undoubtedly, this kind of scenario will be a continuing threat to
judges and justices, with consequential adverse effects on the
Judiciary, on inter-branch relationship, and on the respect the public
may give the Judiciary, the Legislature, and even of the government
itself. Worse, this kind of scenario may ultimately trivialize the
impeachment process and is thus best avoided.
An expansive interpretation of the grounds for impeachment
must also affect Congress which acts on impeachment complaints
but whose main task under our structure of government is to
legislate, not to police the Supreme Court and other impeachable
officers. To say the least, a deluge of impeachment complaints may
prove to be impractical for Congress because impeachment is both
an arduous and a time consumming process that will surely divert
congressional time and other resources from the principal function
of lawmaking.
The US Practice
In the United States (US) federal courts, “the impeachment
process has not been the only check on federal judges [who are
removable through impeachment] who may have abused their
independence, or the only assurance of their accountability.”22 The
US National Commission on Judicial Discipline and Removal has
posited that there must be “a power in the judiciary to deal with
certain kinds of misconduct [as this will
_______________
22 Robert W. Kastenmeier, supra note 18.
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further] both the smooth functioning of the judicial branch and the
broad goal judicial independence.”
Along this line, the US Congress created a system enforcing an
internal judicial self-discipline through the judicial councils under
their Judicial Councils Reform and Judicial Conduct and Disability
Act of 1980 (the US 1980 Act). The judicial council (composed of
the federal judges within a specific judicial circuit) is considered as
a “formal and credible supplement to the impeachment process for
resolving complaint of misconduct or disability against federal
judges.”23 The judicial council of a federal circuit, through the chief
judge, is authorized to receive and to act on complaints about the
conduct of judges who are removable only through impeachment. If
there is merit to a complaint, the judicial council can “take
appropriate action, which may include censure, reprimand,
temporary suspension, and transfer of cases, but not removal from
office. If the judicial council believes that it has uncovered grounds
for impeachment, the council is empowered to report its findings to
the Judicial Conference of the United States, which after an
investigation, may report its findings to the House of
Representatives.”24
Arguably, the existence of a judicial council as an additional or
supplemental check on US federal judges is statutory and no
equivalent statute has been enacted in our jurisdiction specifically
establishing in our Supreme Court a system of internal judicial self-
discipline. This argument, however, loses sight of the constitutional
authority of our Supreme Court to govern the conduct of its
members under its power of general administrative supervision over
all courts—a power that the Philippine Constitution expressly grants
to our Supreme Court to the exclusion of remedies
_______________
23 Ibid.
24 Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its
Alternatives, 68 Texas Law Review 1, 73-74 (November 1989).
70


outside of the Judiciary except only for impeachment. Interestingly,

even in the US, the view has been taken that the enactment of a
statute conferring disciplinary power to the Court over its own
members may be unnecessary as the Supreme Court itself may
assume this power. This is implied from the following
recommendation of the US National Commission on Judicial
Discipline and Removal which states:
“[I]t may be in the [US Supreme] Court’s best interest, as contributing to

the public’s perception of accountability, to devise and adopt some type of
formal procedure for the receipt and disposition of conduct and disability
complaints.
The Commission recommends that the Supreme Court may wish to
consider the adoption of policies and procedures for the filing and
disposition fo complaints alleging misconduct against Justices of the
Supreme Court.”25
Note should be taken in these regards that the Philippine

Supreme Court has already put in place various Codes governing
ethical rules for the bar and for the Judiciary. The Code of Judicial
Conduct applies to all members of the Judiciary, including the
Members of the Supreme Court. The Code of Professional
Responsibility applies to all lawyers, thus, necessarily to Members
of the Court for whom membership in the bar is an essential
qualification. The Court as well has codified the Internal Rules of
the Supreme Court. A Rule on Whistleblowing is presently under
consideration by the Court en banc.
What is crucial in the establishment of the judicial council
system in the US is the implication that no inherent
incompatibility exists between the existence of Congress’ power
to impeach and the Supreme Court’s power to discipline its own
members; the two powers can co-exist and, in fact, even supplement
each other. The constitutionality of recognizing disciplinary power
in the
_______________
25 Robert W. Kastenmeier, supra note 18.
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courts over their own impeachable members (as provided in the US

1980 Act), vis-à-vis the Congress’ power to remove the same
officials by impeachment, has been addressed before the US Court
of Appeals in the case of McBryde v. Commission to Review Circuit
Council Conduct and Disability Orders of the Judicial Conference of
the US:26
“Judge McBryde frames his separation of powers claim as whether the

Constitution “allocates the power to discipline federal judges and, if so, to
which branches of government.” Finding that it allocates the power to
Congress in the form of impeachment, he concludes that it excludes all other
forms of discipline. But Judge McBryde’s attempt to fudge the distinction
between impeachment and discipline doesn’t work. The Constitution limits
judgments for impeachment to removal from office and disqualification
to hold office. It makes no mention of discipline generally. The Supreme
Court recently observed that it accepted the proposition that “[w]hen a
statute limits a thing to be done in a particular mode, it includes a
negative of any other mode.” But application of the maxim depends on
the “thing to be done.” Here the thing to be done by impeachment is
removal and disqualification, not “discipline” of any sort.”
Thus, when the conduct of a member of the Supreme Court is

improper but is not of such gravity to be considered as an
impeachable offense, the Court—to protect its integrity—may
address the misconduct through an administrative disciplinary case
against the erring member.
Conclusion: Court can hear the
case against Justice del Castillo
as an Administrative Matter
What the impeachment provisions of the Constitution guarantee
is simply the right to be removed from office only through the
process of impeachment and not by any other means; it does not
preclude the imposition of
_______________
26 264 F.3d 52 (2001).
72


disciplinary sanctions short of removal on the impeachable

official. Impeachment is the sole means of removal, but it is
certainly not the sole means of disciplining Members of the
Supreme Court or, for that matter, public officials removable by
impeachment.
Accordingly, I believe that the Court has the authority to hear the
present administrative disciplinary case against Associate Justice
Mariano del Castillo; in case of a finding of misconduct, it can
impose penalties that are not the functional equivalent of removal or
dismissal from service. If, in the exercise of its prerogative as
interpreter of the Constitution, it determines that an act complained
of falls within the defined grounds for impeachment, then the Court
should say so and forthwith forward its recommendations to
Congress as the body constitutionally mandated to act in
impeachment cases.
Court’s Interpretation of Plagiarism—
limited to its Concept as an Ethical
violation of Members of the Judiciary.
The dissatisfaction with the Court’s October 12, 2010 Decision
(resolving the plagiarism charge against Justice del Castillo or the
“plagiarism Decision”) primarily lies with the Court’s declaration
that malicious intent is a necessary element in committing
plagiarism. In the plagiarism Decision, the Court said:
“[P]lagiarism presupposes intent and a deliberate, conscious effort to steal

another’s work and pass it off as one’s own.”
Why we deemed malicious intent as a necessary element for judicial
plagiarism can be explained by our repeated pronouncement that:
“not every error or mistake committed by judges in the performance of their
official duties renders them administratively liable. In the absence of
fraud, dishonesty or deliberate intent to do an
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injustice, acts done in their official capacity, even though erroneous, do

not always constitute misconduct.
Only errors that are tainted with fraud, corruption or malice may be the
subject of disciplinary action. For administrative liability to attach,
respondent must be shown to have been moved by bad faith, dishonesty,
hatred or some other motive. Indeed, judges may not be held
administratively liable for any of their official acts, no matter how
erroneous, as long as they acted in good faith.”27
The term plagiarism does not have a precise statutory definition

as it is not a matter covered by present Philippine statutes.28 What
the Intellectual Property Code (Republic Act 8283)29 defines and
punishes is “copyright infringement.” However, these terms are not
legally interchangeable. Laurie Stearns, copyright lawyer and author
of the article “Copy Wrong: Plagiarism, Process, Property, and the
Law” aptly observes the distinctions between the two in this wise:
“Plagiarism is not necessarily copyright infringement, nor is copyright

infringement necessarily plagiarism. The two concepts diverge with respect
to three main aspects of the offense: copying, attribution and intent. In
some ways the concept of plagiarism broader than infringement, in that it
can include the copying of ideas or of expression not protected by copyright,
that would not constitute infringement and it can include copying of small
amounts of material that would be disregarded under copyright law. In other
ways the concept of infringement is broader, in that it can include both
properly attributed copying and unintentional copying that would be
excused from being called plagiarism.
_______________
27 Cruz v. Iturralde, A.M. RTJ No. 03-1775, April 30, 2003, 402 SCRA 65.
28 George, Joyce J. “Judicial Opinion Writing Handbook.” 5th edition. William S. Hein &
Co., Inc., 2007, page 715, defines plagiarism as “the intentional representation of another
person’s words, thoughts or ideas as one’s own without giving attribution.”
29 A A P I P C E
I P O ,P I P F , O
P
74


The divergence between plagiarism’s popular definition and

copyright’s statutory framework suggests an essential contradiction between
what is at stake in plagiarism—the creative process—and what is at stake in
copyright infringement—the creative result.”30
Separately from these distinctions, the matter before the Court is

Justice del Castillo’s alleged plagiarism or failure to make
attributions as an ethical violation, not a copyright violation under
the Intellectual Property Code. Given these distinctions, I see no
reason to quibble over the definition of plagiarism—a term that, in
the absence of any statutory limitation, the Court can define and
interpret for purposes of its administrative authority over all courts
and the personnel thereof.
From the point of view of ethical rules, what are important are
the intent in undertaking an act and the concepts of integrity,
propriety, honesty and impartiality for purposes of dispensing justice
by an independent Judiciary. It is in this sense, and in light of the
nature of the present case as an administrative disciplinary charge
against a Member of this Court, that the pronouncement of this
Court on plagiarism and on the merits of the ethical charge should
be understood.
In this light, I find it misplaced for Justice Sereno to describe the
Court’s Decision as:
“[creating] unimaginable problems for Philippine academia, which will

from now on have to find a disciplinary response to plagiarism committed
by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making
available to plagiarists “lack of malicious intent” as a defense to a charge of
violation of copy or economic rights of the copyright owner committed
through lack of attribution.
_______________
30 Stearns, Laurie. “Copy Wrong: Plagiarism, Process, Property and the Law.” Perspectives
on Plagiarism and Intellectual Property in a Postmodern World. Ed. Lise Buranen and Alice
M. Roy. Albany, New York State University of New York Press. 1999. 5-6.
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xxxx
Because the majority Decision has excused the lack of attribution to the
complaining authors in the Vinuya decision to editorial errors and lack of
malicious intent to appropriate—and that therefore there was no plagiarism
—lack of intent to infringe copyright in the case of lack of attribution may
now also become a defense, rendering the above legal provision
meaningless.”31
When the Supreme Court acts on complaints against judges

under its supervision and control, it acts as an administrator
imposing discipline and not as a court passing upon justiciable
controversies.32 It is precisely for this reason that disciplinary cases
are docketed as “Administrative Matters” or “A.M.”33 Hence, any
interpretation by the Court of “plagiarism” is limited to this context
and cannot be held to bind the academe in undertaking its
educational functions, particularly its own power to define
plagiarism in the educational context. It likewise cannot bind
Congress in its role as the sole authority to determine what
constitutes an impeachable offense, subject to what I stated above on
the established scope of impeachable offenses and the power of the
Court to act in grave abuse of discretion situations under the
Constitution. Specifically, a finding by this Court that plagiarism
was or was not committed cannot preclude Congress from
determining whether the failure or omission to make an attribution,
intentionally or unintentionally, amounts to a “betrayal of public
trust.”
_______________
31 Dissenting Opinion of Justice Sereno in the Plagiarism decision.

32 Icasiano v. Sandiganbayan, G.R. No. 95642, May 28, 1992, 209 SCRA 377.
33 See: Rule 4, Internal Rules of the Supreme Court, in relation with Section 4,
Rule 6 on Docket Number and Entry in Logbook. Administrative cases are not listed
as G.R. (General Register) cases as they are not acted upon in the exercise of the
Court’s judicial function.
76


For these reasons, I support the conclusion of the Ethics and

Ethical Standards Committee that Justice Mariano C. del Castillo’s
attribution lapses did not involve any ethical violation. I vote for the
approval of the Committee’s Report and for the denial of the
petitioners’ Motion for Reconsideration.
SEPARATE CONCURRING OPINION
ABAD, J.:
I fully concur in the majority opinion and would like to react to
the separate dissenting opinions of Justices Antonio T. Carpio and
Maria Lourdes P.A. Sereno.
Justice Carpio has again graced the Court’s rulings in this case
with his typically incisive dissenting opinion. Still, I cannot agree
with his views. He asserts that the sole disciplining authority of all
impeachable officers, including the Justices of this Court, lies in
Congress. This is quite true but only with respect to impeachable
offenses that consist in “culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal
of public trust,”1 all offenses that warrant the removal of such
officers and disqualification for holding any office in the
government.2 The Supreme Court has no intention of exercising the
power of impeachment that belongs to Congress alone.Certainly,
however, the Supreme Court has the administrative authority to
investigate and discipline its members for official infractions that do
not constitute impeachable offenses. This is a consequence of the
Court’s Constitutional power of “administrative supervision over all
courts and the personnel thereof.”3 When the Court decided earlier
the pla-
_______________
1 Section 2, Article XI, 1987 Constitution of the Philippines.

2 Section 3 (7), id.
3 Section 6, Article VIII, 1987 Constitution of the Philippines.
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giarism charge filed against Justice Mariano Del Castillo by the

petitioners in Vinuya, it was under a belief that “plagiarism,” which
is not even a statutory offense, is an administrative infraction. The
petitioners in that case did not themselves object to the proceedings
conducted by the Court’s Ethics Committee.
Subsequently, a complaint for impeachment was filed against
Justice Del Castillo before the House of Representatives based on
the same charge of plagiarism. The Court cannot do anything about
that but it is not the Court, denying the motion for reconsideration
filed in the present case, which will provoke a constitutional crisis; if
ever, it is the House of Representatives that will do so, seeing that
the Court has already acted on such a charge under an honest belief
that plagiarism is an administrative rather than an impeachable
offense.
Whether plagiarism is an administrative or an impeachable
offense need not be decided by the Court in this case since no actual
dispute has arisen between Congress and the Court regarding it.
As for the alleged violation of the copyright law in this case, it
should be sufficient to point out that no such charge has been lodged
against Justice Del Castillo. What is more, the Court has no original
jurisdiction over copyright law violations. I reserve in the
appropriate case my view on whether or not lifting from copyrighted
articles, without attribution, solely for the purpose of rendering a
decision, constitutes violation of the copyright law.
Justice Sereno castigates the majority in the Court for lowering
the standards for judicial scholarship, negating the educative and
moral directional value in the writing and publishing of decisions,
bending over backwards to deny the objective existence of gross
plagiarism, and condoning dishonesty in the exercise of a function
central to the role of the courts.
78


But our courts are in the business, not of “judicial scholarship,”

but of deciding fairly and honestly the disputes before them, using
precedents and legal literature that, according to American scholars,
belong to the public domain. If this is not honest work for a judge, I
do not know what is.
And Justice Sereno has no right to preach at the expense of the
majority about “educative and moral directional value” in writing
published articles. For one thing, her standards are obviously for
work done in the academe, not for the judge plodding at his desk to
perform government work. For another, I note that on occasions she
has breached those very standards, lifting from works of others
without proper attribution.
Take Justice Sereno’s article, Toward the Formulation of a
Philippine Position in Resolving Trade and Investment Disputes in
APEC.”4 Under the section subtitled “The WTO Dispute Settlement
Mechanism,” she said in the footnote that “[t]his section is drawn
from Article XX and XXIII of the GATT 1994, Understanding on
Dispute Settlement, and Working Procedures.” To me, this means
that in writing the section, she drew ideas from these four GATT
issuances.
I am reproducing below the beginning portions of Justice
Sereno’s work that are relevant to this discussion. I underline what
she copied verbatim from Annex 2 of the General Agreement on
Tariffs and Trade (GATT) 1994, entitled “Understanding on Rules
and Procedures Governing the Settlement of Disputes,” or
“Understanding on Dispute Settlement” for short.
“The WTO Dispute Settlement Mechanism
_______________
4 Sereno, Toward the Formulation of a Philippine Position in Resolving Trade and

Investment Disputes in APEC, Philippine APEC Study Center Network (PASCN) Discussion
Paper No. 2001-15 (2001). [available online at http://pascn.pids.gov.ph/DiscList/d01/s01-
15.pdf]
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Dispute settlement under the WTO mechanism is the prompt

settlement of situations in which a member considers that any benefit
accruing to it directly or indirectly under the WTO Agreement is being
impaired by measures taken by another member. A dispute settlement
mechanism aims to secure a positive solution to a dispute. Thus, a
solution mutually acceptable to the parties to a dispute is preferred.
However, in the absence of a mutually agreed solution, the first
objective is usually to secure the withdrawal of measures concerned. A
measure is any internal act, whether a law, an administrative action, or
a judicial decision of a member.
The DSB is the WTO organ that is mandated to administer the rules
and procedures that govern the settlement of disputes. It is made up of
the representatives of all the members of the WTO. Each member is
entitled to one vote.
The DSB has the following powers and functions: (a) to establish
panels, (b) to adopt or reject panel and Appellate Body reports, (c) to
maintain surveillance of the implementation of rulings and
recommendations, and (d) to authorize the suspension of concessions
and other obligations. It is understood that requests for conciliation and
the use of the dispute settlement procedures should not be viewed as
contentious acts. Members engage in this procedure to resolve disputes.
[Copied]
If a measure adopted by a country (A) within its territory impinges
on, for example, the exports of another country (B), the first step in
dispute settlement is the filing of a request for consultation by the
complainant. In this case, B is the complainant.
If B requests consultation with A, then A must consider the
complaint of B. A must reply to the request within 10 days after its
receipt and enter into consultations with B in good faith within a period
of 30 days from the date of the request, with a view to reaching a
mutually satisfactory solution. If A does not respond within 10 days,
does not enter into consultations within a period of 30 days from the
filing of the request, and if the consultation fails to settle a dispute
within 60 days after the request for consultation, then B may proceed to
request the establishment of a panel.
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Good offices, conciliation, and mediation may be requested at any

time by any party to a dispute. They may begin and be terminated at
any time. Once they are terminated, the complaining party can then
request the establishment of a panel.
If the complaining party so requests, a panel may be established by
the DSB. The function of the panel is to assist the DSB in discharging its
responsibilities. Accordingly, a panel should make an objective
assessment of the matter before it, including the facts of the case and
the applicability and conformity of the measure with the relevant
agreements. It should also make other findings that will assist the DSB
in making the recommendations or in giving the rulings provided for in
the covered agreements, besides consulting regularly with the parties to
the dispute and giving them adequate opportunity to develop a
mutually satisfactory solution. [Copied]
The request for the establishment of a panel should be made in
writing, indicate whether consultations were held, identify the specific
measures at issue, and provide a brief summary of the legal basis of the
complaint. [Copied]
x x x x”
Notably, Justice Sereno began her above discussion with ideas

presumably from her four sources, which she put together and
fashioned into her own sentences and paragraphs. The ideas were
from GATT but the presentation was original Sereno. Down the line,
however, without introduction or preamble, she copied verbatim into
her work portions from Understanding on Dispute Settlement,
without citing this specific source. More, she did not use quotation
marks to identify the copied portions. She thus made ordinary
readers like me believe that she also crafted those portions. To
borrow a word from the civil code, she “co-mingled” the work of
others with hers, erasing the identity of the lifted work.
Justice Sereno’s explanation is that, since she was drawing from
the rules embodied in GATT’s Understanding on Dispute
Settlement, she did not have to make attributions to those
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rules at each turn of her writing. She may be correct if she in fact
properly cited those rules the first time she copied from it and,
further, indicated a clear intent to do further copying down the line.
But she did not. Properly, she could have written:
“x x x x
The DSB has the following powers and functions: (a) to establish panels,
(b) to adopt or reject panel and Appellate Body reports, (c) to maintain
surveillance of the implementation of rulings and recommendations, and (d)
to authorize the suspension of concessions and other obligations. GATT’s
Understanding on Dispute Settlement has a lot to say about the subject
and some are mentioned here. For one it says, “It is understood that
requests for conciliation and the use of the dispute settlement procedures
should not be … as contentious acts. Members engage in … procedure to
resolve disputes.”
x x x x”
Further, she did not identify the portions she copied verbatim in
order to set them apart from her own writing. Under the rule that she
foists on Justice Del Castillo, quotation marks must be used
whenever verbatim quotes are made.5 This requirement is all the
more important since, unlike domestic rules, the rules of GATT are
unfamiliar terrain to most readers. Thus, at the next turn, she could
have at least enclosed in quotation marks the other portions she
copied verbatim from her source like this:
“If the complaining party so requests, a panel may be established by the

DSB. “The function of the panel is to assist the DSB in discharging its
responsibilities. Accordingly, a panel should make an objective
assessment of the matter before it,
_______________
5 Harvey writes that “[w]ords you use verbatim from a source must be put in quotation
marks, even if you use only two or three words; it’s not enough simply to cite.” Harvey,
Writing with Sources: A Guide for Harvard Students 10 (2008).
82


including the facts of the case and the applicability and conformity of
the measure with the relevant agreements. It should also make other
findings that will assist the DSB in making the recommendations or in
giving the rulings provided for in the covered agreements … consul …
regularly with the parties to the dispute and giving them adequate
opportunity to develop a mutually satisfactory solution.”
“The request for the establishment of a panel should be made in
writing, indicate whether consultations were held, identify the specific
measures at issue, and provide a brief summary of the legal basis of the
complaint.”
What is more, learned lawyers would always set apart the laws or
rules that they cite or invoke in their work since these are
expressions of a higher grade than their comments or opinions. A
lawyer’s opinion can persuade but a rule or a law is binding. I have
yet to see a Supreme Court decision that copies verbatim a specific
rule or law, which it invokes to support such decision, without
distinctly calling it what it is or citing its source.
Below is the rest of the verbatim copying that she made from
Understanding on Dispute Settlement in the section she wrote
without attribution or quotation marks.
Sereno, J. Original work – GATT Annex 2,

Understanding on Dispute
Settlement
After receipt of comments from the Following the expiration of the set
parties, the panel shall issue an period of time for receipt of
interim report to them, including comments from the parties to the
both the descriptive sections and dispute, the panel shall issue an
the panel’s findings and interim report to the parties,
conclusions. The parties may including both the descriptive
submit written requests for the sections and the panel’s findings
panel to review precise aspects of and conclusions. Within a period
the interim report for which the of time set by the panel, a party
panel shall meet with the parties. If may submit a written
no
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comments are received from request for the panel to review

any party within the comment precise aspects of the interim report
period, the interim report shall prior to circulation of the final report to
be considered the final panel the Members. At the request of a party,
report and circulated promptly the panel shall hold a further meeting
to the members. (page 7) with the parties on the issues identified
in the written comments. If no
comments are received from any
party within the comment period, the
interim report shall be considered the
final panel report and circulated
promptly to the Members.
[Article 15.2, GATT Annex 2]
When a panel or the AB Where a panel or the Appellate Body
concludes that a measure is concludes that a measure is
inconsistent with a covered inconsistent with a covered
agreement, it shall recommend agreement, it shall recommend that
that the member concerned the Member concerned bring the
bring the measure into measure into conformity with that
conformity with that agreement. In addition to its
agreement. In addition to its recommendations, the panel or
recommendations, the panel or Appellate Body may suggest ways in
AB may suggest ways by which the Member concerned could
which the member concerned implement the recommendations.
could implement the [Article 19.1, GATT Annex 2]
recommendations. (page 8)
The DSB shall adopt the report Within 60 days after the date of
within 60 days of the issuance circulation of a panel report to the
of a panel report to the mem- Mem-
84


bers, unless one of the parties bers, the report shall be adopted at a
to the dispute formally notifies DSB meeting unless a party to the
the DSB of its decision to dispute formally notifies the DSB of
appeal, or the DSB decides by its decision to appeal or the DSB
consensus not to adopt the decides by consensus not to adopt the
report. If the panel report is on report. If a party has notified its
appeal, the panel report shall decision to appeal, the report by the
not be considered for adoption panel shall not be considered for
by the DSB until the adoption by the DSB until after
completion of the appeal. (page completion of the appeal.
7-8)
It may uphold, modify, or The Appellate Body may uphold,
reverse the legal findings and modify or reverse the legal findings
conclusions of the panel. ( page and conclusions of the panel.
8)
Note that the AB reviews only An appeal shall be limited to issues of
issues of law covered in the law covered in the panel report and
panel report and legal legal interpretations developed by
interpretation developed by the the panel.
panel. (page 8)
The DSB shall keep under The DSB shall keep under
surveillance the implementation surveillance the implementation of
of adopted recommendation or adopted recommendations or
rulings. Any member may raise rulings. The issue of implementation
the issue of implementation of of the recommendations or
the recommendations or
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VOL. 642, FEBRUARY 8, 2011 85
rulings at the DSB anytime rulings may be raised at the DSB by any
following their adoption. Member at any time following their
(page 8) adoption.
Going to another item in the same article, Justice Sereno copies

significant lines from Oppenheim’s Treatise without making an
attribution to that work.
Sereno, J. Original work – Oppenheim’s

Treatise
In mediation, the third party The difference between [good offices
facilitates the negotiations and mediation] is that, whereas good
between the parties concerned. offices consist in various kinds of
It involves direct conduct of action tending to call negotiations
negotiations between the between the conflicting States into
parties at issue on the basis of existence, mediation consists in a
proposals made by the direct conduct of negotiations
mediator. between the differing parties on the
basis of proposals made by the
On the other hand, good
mediator.
offices are a friendly offer by a
third party, which tries to [Oppenheim, International Law, A
induce disputants to negotiate Treatise volume 2 page 11 (1920)]
among themselves. Such
efforts may consist of various
kinds of actions tending to call
negotiations between
conflicting states into
existence. (page 11)
Justice Sereno explains that “trite, common, standard

statement[s]” like the ones she copied from Oppenheim has “nothing
original at all about [them]” and need no citation or quotation marks.
This is true. Indeed, the Court acknowledged in its October 12, 2010
decision that no plagiarism
86


could be committed respecting “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.” But I cite the above because Justice Sereno
would not grant to Justice Del Castillo the liberty to use common
definitions and terms in his ponencia without the correct attribution.
In the original draft of this concurring opinion that I circulated
among the members of the Court, I mentioned an article published in
2007 that Justice Sereno wrote with two others entitled Justice and
the Cost of Doing Business.6 I found that a portion of this article
appeared to have been reproduced without attribution from a 2005
publication, the Asian Development Bank Country Governance
Assessment (Philippines) 2005.7 Justice Sereno has since explained
to my satisfaction that such portion came from the three co-authors’
earlier 2001 report submitted to the World Bank (WB). I am
dropping it as a case of omission of attribution.
Parenthetically, however, in the academic model, “dual and
overlapping submissions” is a thesis writer’s sin. It simply means
that the same academic work is submitted to gain credit for more
than one academic course.8 In the publishing
_______________
6 Ma. Lourdes A. Sereno, Emmanuel S. De Dios, and Joseph J. Capuno, Justice

and the Cost of Doing Business: The Philippines (2007) published by the Philippine
Institute for Development Studies. online at
http://www.econ.upd.ude.ph/respub/dp/pdf/DP2007-11.pdf or
http://publications.pids.gov.ph/details.phtml?pid=4180
7 At p. 103.
8 The Harvard Plagiarism Policy states:
It is the expectation of every course that all work submitted to it will have been
done solely for that course. If the same or similar work is to be submitted to any other
course, the prior written permission of the instructor must be obtained. If the same or
similar work is to be submitted to more than one course during the same term, the
prior written permission of all instructors involved must be obtained. A student
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world, while not prohibited across the board, law journals and
reviews frown upon authors who submit manuscripts which have
been previously published elsewhere, since the purpose of
publication is the circulation and distribution of original scholarship
and the practice would permit the author to be credited twice for the
same work.
Notably, from the papers she furnished the members of the Court,
it would seem that the WB Danish Trust Fund commissioned and
paid for the 2001 study that Justice Sereno and her co-authors
undertook. Indeed, the cover page of the WB paper she also
provided shows that it was part of the “Document of the World
Bank.” I would assume, however, that Justice Sereno obtained WB
authorization for the subsequent publication of the report in 2007.
Next, in her memorandum for petitioners-intervenors Franklin M.
Drilon and Adel A. Tamano in Province of North Cotabato, et al. v.
Government of the Republic of the Philippines Peace Panel on
Ancestral Domain, et al.,9 Justice Sereno lifted a famous phrase
from the United States’ case of Baker v. Carr, 169 U.S. 180, without
making attribution to her source.
J. Sereno Original Work – Baker v. Carr

Second, there is no lack of a Prominent on the surface of any case
judicially discoverable and held to involve a political question is
manageable standard for found a textually demonstrable
resolving the question, nor constitutional
_______________
submits the same or similar work to more than one course without such prior
permission is subject to disciplinary action, and ordinarily will be required to
withdraw from the College. (available online at http://isites.harvard.edu/icb/icb.do?
keyword
=k70847&pageid=icb.page355322)
9 G.R. Nos. 183591, 183752, 183893, 183951, September 18, 2008, 568 SCRA
402.
88


impossibility of commitment of the issue to a coordinate political

deciding the department; or a lack of judicially discoverable
question without an and manageable standards for resolving it; or
initial policy the impossibility of deciding without an initial
determination of a policy determination of a kind clearly for non-
kind clearly for non- judicial discretion x x x
judicial discretion. [Baker v. Carr, 169 U.S. 186]
Justice Sereno explains that, since she earlier cited Baker v. Carr
in her memorandum, it would be utterly pointless to require her to
repeat her citation as often as excerpts from the case appear down
the line. It is not quite pointless because one who copies from the
work of another has an obligation, she insists in her dissent, to make
an attribution to his source. Otherwise, a writer can simply say at the
start of his article that he is copying from a list of named cases and it
would be up to the reader to guess where the copied portions are
located in that article. An explanation like this from an academician
is disheartening.
In another article, Uncertainties Beyond The Horizon: The
Metamorphosis of the WTO Investment Framework In The
Philippine Setting,10 Justice Sereno also copied from the World
Trade Organization fact sheet on line (prepared by the United States
Department of Agriculture) without using quotation marks, and
made the material appear to be her own original analysis. Thus:
_______________
10 Sereno, Uncertainties Beyond The Horizon: The Metamorphosis Of The WTO

Investment Framework In The Philippine Setting, 52 UST Law Review 259 (2007-
2008). Available online at http:// ustlawreview.com/pdf/vol.LII/Uncertainties_
Beyond_the_Horizon.pdf
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J. Sereno Original Work – WTO Factsheet

The World Trade The World Trade Organization (WTO),
Organization established on January 1, 1995, is a
(WTO) was multilateral institution charged with
established on administering rules for trade among member
January 1, 1995. It countries. x x x
is a multilateral
The WTO functions as the principal
institution charged
international body concerned with
with administering
multilateral negotiations on the reduction of
rules for trade
trade barriers and other measures that
among member
distort competition. The WTO also serves as
countries. The
a platform for countries to raise their
WTO functions as
concerns regarding the trade policies of their
the principal
trading partners. The basic aim of the WTO
international body
is to liberalize world trade and place it on a
concerned with
secure basis, thereby contributing to
multilateral
economic growth and development.
negotiations on the
reduction of trade [WTO FACTSHEET
barriers and other http://www.fas.usda.gov/info/factsheets/wto.html
measures that (last accessed February 13, 2008)]
distort competition.
The WTO also
serves as a platform
for countries to
raise their concerns
regarding the trade
policies of their
trading partners.
The basic aim of
the WTO is to
liberalize world
trade and place it
on a secure basis,
thereby
contributing to
economic growth
and development.
Here again, Justice Sereno ignores her unbendable rule that one
commits plagiarism by his “[f]ailure to use quotation marks to
indicate that the entire paragraph in the body of the decision…was
not the ponente’s original paragraph, but was lifted verbatim from
[another’s] work.”
In his book entitled Economic Analysis of Law (2nd edition,
1977), Judge Richard A. Posner wrote:
90


“xxx Hence, settlement negotiations will fail, and litigation ensue, only if
the minimum price that the plaintiff is willing to accept in compromise of
his claim is greater than the maximum price the defendant is willing to pay
in satisfaction of that claim.” (At p. 435)
Justice Sereno copied the above verbatim in her article entitled

Lawyers’ Behavior and Judicial Decision-Making11 published in the
Philippine Law Journal, without quotation marks or attribution to
Judge Posner. Thus, she wrote:
“xxx [S]ettlement negotiations will fail and litigation will ensue if the
minimum price that plaintiff is willing to accept in compromise of his
claim is greater than the maximum price that the defendant is willing to
pay in satisfaction of that claim.” (At page 483)
In other sections of the same article that Justice Sereno wrote, she
either copied verbatim from Judge Posner or mimicked his ideas
without attributing these to him. Thus:
Judge Posner wrote—
“A somewhat more plausible case can be made that judges might slant
their decisions in favour of powerful interest groups in order to increase the
prospects of promotion to higher office, judicial or otherwise.” xxx (At p.
416)
Justice Sereno mimicked—
“The third is that the judge maximizes the prospects of his

promotion to a higher office by slanting his decisions in favor of
powerful interest groups.” (page 489)
_______________
11 Sereno, Lawyer’s Behavior and Judicial Decision-Making, 70 Phil. L. J. 472-

492 (vol 4, June 1996) [available online at
http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20
volume%2070%20number%204%20-02-
%20Ma.%20Lourdes%20A.%20Sereno%20-
%20Lawyers%20Behavior.pdf]
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“Presumably judges, like the rest of us, seek to maximize a utility

function that includes both monetary and non-monetary elements xxx.” (At
p. 415)
“In understanding judicial behaviour we have to assume that judges

like all economic actors maximize a utility function. This function in all
probability includes material as well as non-material factors. Xxx” (At
page 489)

“[T]he rules of the judicial process have been carefully designed both to
prevent the judge from receiving a monetary payoff from deciding a
particular case one way or the other and to minimize the influence of
politically effective interest groups in his decisions.” [At p. 415]
“The first is that the American judicial system have rules designed
to minimize the possibilities of a judge maximizing his financial interest
by receiving a bribe from a litigant or from acceding to a politically
powerful interest group by making the rules work in such a manner as
to create disincentives for the judge ruling in such a manner.” (page
489)
“It is often argued, for example, that the judge who owns land will
decide in favor of landowners, the judge who walks to work will be in
favour of pedestrians.” [Posner, 415]
“The second proceeding from the first is that the judge maximizes
the interest of the group to which he belongs. If he belongs to the
landowning class he will generally favor
92


landowners and if he walks to work, he will generally favor

pedestrians.” (page 489)
“[J]udges seek to impose their preferences, tastes, values, etc. on

society.” [Posner, 416]
“The last is that judges maximize their influence on society by

imposing their values, tastes and preferences thereon.” (page 489)
Using the severe standards she sets for Justice Del Castillo in
Vinuya, i.e., “objective existence of plagiarism,” I am afraid that any
explanation of good faith or lack of malicious intent on Justice
Sereno’s part in copying without proper attribution from the work of
Judge Posner would not be acceptable.
Still I can concede that Justice Sereno may not have intended to
plagiarize the work of others even if she copied verbatim from them
without proper attribution or quotation marks. Her above articles
were, taken as whole, essentially hers. I regret, however, that since
she wrote them as an academician bound by the high standards that
she and the University of the Philippines where she taught espouse,
she may have failed, borrowing her own phrase, to set the correct
“educative and moral directional value” for the young.
Justice Del Castillo, who did not write as an academician but as a
judge, is at least entitled to the liberties granted judges in writing
decisions.
I vote to DENY the motion for reconsideration filed in this case.
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DISSENTING OPINION
SERENO, J.:
Judges need not strain themselves to meet inapplicable standards
of research and attribution of sources in their judicial opinions, nor
seek to achieve the scholarly rigidity or thoroughness observed in
academic work. They need to answer to only two standards—
diligence and honesty. By honesty here is meant that good faith
attempt to attribute to the author his original words and analysis.
Even if a judge has to rely in large part on the drafts of his legal
researchers, the work of a diligent and honest judge will never
display the severe plagiarism evident in the Vinuya Decision
published under the name of Justice Mariano C. del Castillo. A
judge will only find himself in the same predicament as Justice del
Castillo if two situations coincide: (1) the judge wittingly or
unwittingly entrusts a legal researcher with the task of drafting his
judicial opinion, and the legal researcher decides to commit severe
plagiarism; and (2) the judge: (a) does not read and study the draft
decision himself; (b) even if he does read and study the same, the
“red flags” that are self-evident in the draft decision completely
escape him; or (c) despite having seen the red flags, he ignores them.
We use the words “severe plagiarism” here deliberately because
not only were three (3) works of the four (4) complaining authors1
plagiarized in Vinuya, text from the following copyrighted works
was copied without attribution as well: essays contributed by Robert
McCorquodale and Phoebe Okowa to the book International Law,
edited by Malcolm
_______________
1 Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W.

Res. J. Int’l L. 225 (2006-2007); C J. T , E E O
O I I L (2005); Evan J. Criddle and Evan Fox-Decent,
A Fiduciary Theory of Jus Cogens, 34 Y J. I ’ L. 331 (2009)
94


Evans; an article written by Mariana Salazar Albornoz, entitled

Legal Nature and Legal Consequences of Diplomatic Protection:
Contemporary Challenges; an article written by Elizabeth
Prochaska, entitled Testing the Limits of Diplomatic Protection:
Khadr v. The Prime Minister of Canada; a report by Larry Niksch,
entitled Japanese Military’s Comfort Women; and an article by
James Ladino, entitled Ianfu: No Comfort Yet for Korean Comfort
Women and the Impact of House Resolution 121. In addition,
incorporated into Vinuya were excerpts from a decision of an
international tribunal without any signal given to the reader that the
words were not those of Justice del Castillo of the Philippine
Supreme Court but the words of another tribunal. While there are
views that a judge cannot be guilty of plagiarism for failure to
recognize foreign decisions as source materials in one’s judicial
writing—as when Justice Antonio C. Carpio opines that a judge
cannot be guilty on this score alone—it is beyond debate that there is
a duty of care to attribute to these foreign and international judicial
decisions properly, and that one should never present these materials
as if they are one’s own.
An estimate of the extent of the plagiarism in the Vinuya
Decision has been made by my office. The best approximation
available to us, using the “word count” feature of Microsoft Word,
reveals that 52.9% of the words used in the Vinuya Decision’s
discussion on international law, which begins in page 24 and
continues to the end (2,869 out of 5,419 words), are copied without
attribution from other works.
The Vinuya Decision, therefore, because of the severity of the
plagiarism attending it, is the worst possible context for the Majority
to draw, in its Decision dated 12 October 2010 and in its Resolution
denying the Motion for Reconsideration, the following conclusions:
1. that plagiarism requires the element of “malicious
intent”;
2. that—calibrating its ruling in response to the outcry of
the academic community after the Majority Deci-
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VOL. 642, FEBRUARY 8, 2011 95

sion was issued—the rules against plagiarism applicable to the

academic community do not apply to judicial decisions;
3. that the standard of attribution applicable to judicial
decisions is effectively, no standard at all—a judge cannot be
guilty of plagiarism as understood by the academic world, and
neither is he liable for copying without attribution, even from
copyrighted materials;
4. that this lack of liability extends as well to benefit
lawyers in the submission of their pleadings before courts; and
5. that on the whole, the Vinuya Decision is the product
of hard, honest, original work.
In the course of the resolution of the Motion for Reconsideration,
I have found myself counter-accused of having copied the works of
others without attribution. I have debunked each of these claims and
lay them bare in this Dissent. I have even proven that it was one of
my co-authored works that was copied without attribution being
given to me and to my co-authors. The theory propounded against
me is that I cannot conclude that the Vinuya Decision is partly a
product of plagiarism unless I am willing to call myself a plagiarist
as well. I emphasize, however, my original thesis—that a diligent
and honest judge or researcher will never find himself to have
plagiarized, even unwittingly, to the same extent that plagiarism
occurred in the Vinuya Decision. Herein lies the safety of a
researcher—a habit of trying to give recognition where recognition
is due. Should any of my works, wherein I failed to make proper
attribution, surface, I will do what I have recommended that the
author of the Vinuya Decision do: acknowledge the wrong,
apologize to the wronged, and correct the work. See pages 58 to 75
herein for a discussion on the counter-accusations leveled against
me.
Irrespective of the outcome of my analysis, let it be stated that
this Dissent does not make any pronouncement regard-
96


ing the jurisdiction of this Court over the complaint for plagiarism
against Justice del Castillo. My esteemed colleague Justice Carpio is
convinced that Congress is the sole disciplining authority of all
impeachable officers, including Justices of the Supreme Court. He
characterizes plagiarism as a betrayal of public trust, and thus,
“impeachment by Congress takes the place of administrative
disciplinary proceedings against impeachable officers as there is no
other power that can administratively discipline impeachable
officers.”2
I. The Flow of the Analysis in This Dissent
A. Parameters
To allay any concern from members of the judiciary, I have been
very careful to underscore the limitations of my analysis of the
Vinuya Decision. My Dissent of 12 October 2010 is very clear:
“In a certain sense, there should have been less incentive to plagiarize law
review articles because the currency of judges is stare decisis. One wonders
how the issue should have been treated had what was plagiarized been a
court ruling, but that is not at issue here. The analysis in this opinion is
therefore confined to the peculiar situation of a judge who issues a
decision that plagiarizes law review articles, not to his copying of
precedents or parts of the pleadings of the parties to a case.”3
To be categorical, a judge or legal researcher cannot be guilty for

using doctrines that have been incorporated into the mainstream and
are standard terms of trade. Neither is a
_______________
2 Justice Antonio T. Carpio, Dissenting Opinion, In the Matter of the Charges of

Plagiarism, etc. against Associate Justice Mariano C. del Castillo, A.M. No. 10-7-
17-SC.
3 Justice Maria Lourdes P. A. Sereno, Dissenting Opinion, In the Matter of the
Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM
10-7-17-SC, promulgated 12 October 2010, 632 SCRA 607, 675.
97
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VOL. 642, FEBRUARY 8, 2011 97

judge required to use quotation marks or blockquotes every time

there is a reference to allegations in the pleadings of parties, or when
he is discussing legal arguments using already accepted legal
doctrines. It is when he ventures into using the original words of
others, especially those of legal scholars, that he must be particularly
careful. He cannot write to pass off the words of others, especially
those of others’ pioneering works, as his own. To do so is dishonest.
It has also been suggested that Justice del Castillo cannot be guilty
of plagiarism as he never read the work of Mariana Salazar
Albornoz. That argument is neither here nor there. At the very least,
the words he copied were those of another in an important original
analysis of the state of international law on rape.
B. Structure of the Technical Analysis in This Dissent
The structure and rigidity of the Technical Analysis in this
Dissent is necessary to fulfill two purposes: (1) to enable the reader
to examine whether I have scientific and objective basis to conclude
that severe plagiarism characterizes the Vinuya Decision; and (2) to
examine whether I am willing to subject my work to the same
standards to which I have subjected the Vinuya Decision.
One interesting note. My professional record had been vetted by
the Judicial and Bar Council prior to my appointment to this Court.
My previous works—those of an academic and those of a pleader—
are presently being, and, I expect will continue to be, thoroughly
scrutinized. While those previous works form part of the basis of my
appointment, inasmuch as they are proof of my competence and
expertise, they cannot serve as a basis to determine whether I am
now performing my duties as a judge satisfactorily. One can view
the scrutiny as an unwarranted collateral attack on my record. This
did not happen until my Dissent of 12 October 2010.
The first part of the Technical Analysis consists of new tables of
comparison presenting more instances of plagiarism as
98


they occur in the Vinuya Decision. Two of these tables deal with
copied works that previously appeared in my earlier Dissent: A
Fiduciary Theory of Jus Cogens, by Evan J. Criddle and Evan Fox-
Decent, and Breaking the Silence: Rape as an International Crime
by Mark Ellis; however, the entries for these tables present instances
of plagiarism not discussed or presented in my Dissent of 12
October 2010. Following the tables are lists of violations of rules
against plagiarism, each list item corresponding to one table entry.
Following the presentation of the tables, the process whereby
plagiarism could have been committed in Vinuya is examined. The
severe extent of plagiarism, which is already evident in the tables, is
discussed further, followed by an analysis of the systematic
commission of plagiarism in Vinuya. This analysis consists of the
detailed dissection of specific parts of the Vinuya decision: the text
of the body in pages 31-32, and the first paragraph of footnote 65.
The research process purportedly used by the legal researcher of
Vinuya is then broken down into separate steps that illustrate the
decision points at which an honest and diligent researcher would
have ensured that proper attribution to sources be given. This is then
followed by a closer examination of the deletion of existing citations
and the features of Microsoft Word relevant to the deletion of
footnotes.
II. Technical Analysis of Plagiarism in Vinuya
A. More Plagiarism
Below are new tables of comparison—excluding materials in
tables already discussed in my earlier Dissent to the majority
Decision in AM 10-7-17-SC—of excerpts from the Decision in
Vinuya vis-a-vis text from one (1) book on international law, five (5)
foreign law journal articles, and a copyrighted report of the United
States Congressional Research Service. While the degree of
seriousness of the offense of unattributed copying varies with the
kind of material copied, the
99
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VOL. 642, FEBRUARY 8, 2011 99

extent of the copying conveys the level of honesty or dishonesty of

the work done with respect to the Vinuya Decision. The extent of
copying enumerated in these tables also renders incredible the claim
of mechanical failure, as well as the alleged lack of intent on the part
of the researcher to not give proper attribution.
The materials for comparison were first identified in the Motion
for Reconsideration and in the letter of Dr. Peter B. Payoyo, a
Filipino legal scholar residing in the Netherlands, addressed to the
Chief Justice dated 28 October 2010. These excerpts were
independently verified, and compared with the corresponding
portions from the original works. In the course of independent
verification, we came across three more unattributed copied works.
TABLES OF COMPARISON
To aid an objective analysis of the extent and manner of the

plagiarism committed in the Vinuya Decision, below are tables of
comparison that will compare three written works: (1) the
plagiarized work; (2) the Vinuya Decision; and (3) the purported
“original” source analyzed or cited by the concerned authors and by
the Vinuya Decision. The left column pertains to the literary works
allegedly plagiarized by the legal researcher in the Vinuya Decision.
The middle column refers to the pertinent passage in the Vinuya
Decision that makes unattributed use of the copied work. According
to the Majority Resolution, these citations made to original sources
(e.g. to the international law cases being referenced to support a
certain point) in the Vinuya Decision are sufficient to refute the
charges of non-attribution. To address this claim, I have chosen to
add a third column to present the text of the source referred to in the
nearest (location-wise and/or context-wise) citation or attribution
made in the Vinuya Decision. This will allow us to determine
whether the analysis, reference and/or collation of original sources
were those of the allegedly plagiarized authors or are Vinuya
originals. In addition, this three-
100


column presentation will also allow us to examine the claim being

made by Justice del Castillo that at least two of the authors whose
works are allegedly plagiarized in the Vinuya Decision themselves
violated academic scholarship rules against plagiarism.
TABLE A: Comparison of Evan J. Criddle & Evan Fox-Decent’s
article in the Yale Journal of International Law, entitled A Fiduciary
Theory of Jus Cogens (2009) and the Supreme Court’s 28 April
2010 Decision in Vinuya v. Executive Secretary.
THE ALLEGEDLY THE DECISION

PLAGIARIZED
WORK
Evan J. Criddle & Vinuya v. Ex- INTERNATIONAL
Evan Fox-Decent, A ecutive Secre- SOURCE BEING
Fiduciary Theory of
Jus Cogens, 34 Yale tary, G.R. No. ANALYZED BY CRID-
J. Int’l L. 331 162230, 28 DLE AND FOX-
(2009).
April 2010. DECENT
1. ...judges on the ...Judges on the ...It is an essential
Permanent Court of Permanent Court principle of any court,
International Justice of International whether national or
affirmed the Justice affirmed international, that the
existence of the existence of judges may only
peremptory norms in peremptory norms recognize legal rules
international law by in international which they hold to be
referencing treaties law by valid. There is nothing
contra bonos mores referencing to show that it was
(contrary to public treaties contra intended to disregard
policy) in a series of bonos mores that legal principle when
individual (contrary to this Court was instituted,
concurring and public policy) in a or that it was to be
dissenting opin- series of obliged to found its
individual
101
VOL. 642, FEBRUARY 8, 2011 101

VOL. 642, FEBRUARY 8, 2011 101

ions.10 concurring and decisions on the ideas of the

10 For example, dissenting parties–which may be entirely
in the 1934 opinions. (For wrong–as to the law to be
Oscar Chinn example, in the applied in a given case…. The
Case, Judge 1934 Oscar Chinn Court would never, for instance,
Schücking’s Case, Judge apply a convention the terms of
influential Schücking’s which were contrary to public
dissent stated influential dissent morality. But, in my view, a
that neither an stated that neither tribunal finds itself in the same
international an international position if a convention adduced
court nor an court nor an by the parties is in reality null
arbitral tribunal arbitral tribunal and void, owing to a flaw in its
should apply a should apply a origin. The attitude of the
treaty provision treaty provision in tribunal should, in my opinion,
in contradiction contradiction to be governed in such a case by
to bonos mores. bonos mores. considerations of international
Oscar Chinn Oscar Chinn Case, public policy, even when
Case, 1934 1934 P.C.I.J. (ser. jurisdiction is conferred on the
P.C.I.J. (ser. A/B) No. 63, at Court by virtue of a Special
A/B) No. 63, at 149-50 (Dec. 12) Agreement.
149-50 (Dec. 12) (Schücking, J., Source:
(Schücking, J., dissenting).
The Oscar Chinn Case (U.K. v.
dissenting).
Belg.), 1934 P.C.I.J. (ser. A/B)
(p. 335 of (p. 31, footnote No. 63, at 149-50 (Dec. 12)
Criddle and Fox- 71 of Vinuya) (separate opinion of Judge
Decent) Schücking).
102


2. While the ICJ recently endorsed While the ICJ recently endorsed the jus 64. ...The
the jus cogens concept for the cogens concept for the first time in its Court
first time in its 2006 Judgment on 2006 Judgment on Preliminary observes,
Preliminary Objections in Armed Objections in Armed Activities on the however, as it
Activities on the Territory of the territory of the Congo (Congo v. has already
Congo (Congo v. Rwanda), it Rwanda), it declined to clarify jus had occasion
declined to clarify jus cogens’s cogens’s legal status or to specify any to emphasize,
legal status or to specify any criteria for identifying peremptory that “the erga
criteria for identifying norms. (Armed Activities on the omnes
peremptory norms.67 Territory of the Congo, Jurisdiction of character of a
67 Armed Activities on the the Court and Admissibility of the norm and the
Territory of the Congo, Application (Dem. Rep. Congo v. rule of
Jurisdiction of the Court and Rwanda) (Judgment of February 3, consent to
Admissibility of the Application 2006), at 31-32, available at jurisdiction
(Dem. Rep. Congo v. Rwanda) http://www.icj- are two
(Judgment of Feb. 3, 2006), at cij.org/docket/files/126/10435.pdf. different
31-32, available at things.”..,
http://www.icj- and that the
cij.org/docket/files/126/10435.pdf mere fact that
(last visited Mar. 31, 2009). rights and
obligations
erga omnes
may be at
issue in a
dispute
would not
give the
Court
jurisdiction
to entertain
that dispute.
The same
applies to the
relationship
between
peremptory
norms of
general
international
law (jus
cogens) and
the
establishment
of the Court’s
jurisdiction:
the fact that a
dispute
relates to
compliance
with a norm
having such a
character,
which is
assuredly the
case with
regard to the
prohibition of
genocide,
cannot of
itself provide
a basis for
the
jurisdiction
of the Court
to entertain
that dispute.
Under
103
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VOL. 642, FEBRUARY 8, 2011 103

(p. 346, (p. 32, footnote the Court’s Statute that

footnote 67 of 77 of Vinuya) jurisdiction is always based on
Criddle and the consent of the parties.
Fox-Decent) Source:
Armed Activities on the
Territory of the Congo (Dem.
Rep. Congo v. Rwanda), 2006
I.C.J. 6, 31-32 (Feb. 3).
3. Similarly, the 77 Similarly, the 61 While the Court accepts, on
European European Court of the basis of these authorities,
Court of Human Rights has that the prohibition of torture
Human addressed jus has achieved the status of a
Rights has cogens only once, peremptory norm in
addressed jus in Al-Adsani v. international law, it observes
cogens only United Kingdom, that the present case
once, in Al- when it famously concerns… the immunity of a
Adsani v. rejected the State in a civil suit for damages
United argument that jus in respect of acts of torture
Kingdom, cogens violations within the territory of that
when it would deprive a State. Notwithstanding the
famously state of sovereign special character of the
rejected the immunity. Al- prohibition of torture in
argument that Adsani v. United international law, the Court is
jus cogens Kingdom, 2001- unable to discern in the
violations XI Eur. Ct. H.R. international instruments,
would 79, ¶ 61) judicial authorities or
deprive a
state of
sovereign
immunity.75
75 Shelton,
supra note 3,
at 309
(discussing
Al-Adsani v.
United
Kingdom,
2001-XI Eur.
Ct. H.R. 79, ¶
61).
104


(p. 347 (p. 32, other materials before it any firm basis for
of footnote concluding that, as a matter of international law, a
Criddle 77 of State no longer enjoys immunity from civil suit in
and Vinuya) the courts of another State where acts of torture
Fox- are alleged….
Decent) Source:
Al-Adsani v United Kingdom, App. No.
35763/97, 34 Eur. H.R. Rep. 11, par. 61 (2002)
(21 Nov. 2001).
TABLE B: Comparison of Mark Ellis’s article entitled Breaking

the Silence: Rape as an International Crime (2006-2007) and the
Supreme Court’s 28 April 2010 Decision in Vinuya v. Executive
Secretary.
THE ALLEGEDLY THE

COPIED WORK DECISION
Mark Ellis’s article entitled Vinuya v. I

Breaking the Silence: Rape as Executive S B
an International Crime 38 Case Secretary, G.R. A
W. Res. J. Int’l. L. 225(2006- No. 162230, 28 E
2007). April 2010.
105
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VOL. 642, FEBRUARY 8, 2011 105

1. A major step in 65 …A major step in this [Article
this legal legal development came in 50/51/147]
development 1949, when rape and sexual Grave breaches
came in 1949, assault were included in the to which the
when rape and Geneva Conventions. Rape preceding
sexual assault is included in the following Article relates
were included in acts committed against shall be those
the Geneva persons protected by the involving any of
Conventions.... 1949 Geneva Conventions: the following
Rape is included “willful killing, torture or acts, if
in the following inhuman treatment, committed
acts committed including biological against
against persons experiments; willfully persons…
protected by the causing great suffering or protected by the
1949 Geneva serious injury to body or Convention:
Conventions: health.”… (See Geneva willful killing,
“wilful killing, Convention for the torture or
torture or inhuman Amelioration of the inhuman
treatment, Condition of the Wounded treatment,
including and Sick in Armed Forces in including
biological the Field, art. 3(1)(c), 75 biological
experiments; U.N.T.S. 31; Geneva experiments,
wilfully causing Convention for the wilfully causing
great suffering or Amelioration of the great suffering or
serious injury to Condition of Wounded, Sick serious injury to
body or health.”65 and Shipwrecked Members body or
65Fourth Geneva of Armed health….
Convention, supra Source:
note 23, art.
147. Geneva
Convention (I)
for the
Amelioration of
the Condition of
the Wounded
and Sick in
Armed Forces in
the Field, 75
U.N.T.S. 31;
Geneva
Convention (II)
for the
Amelioration of
the Condition of
Wounded, Sick
and Shipwrecked
Members of
Armed Forces at
Sea, 75 U.N.T.S.
85; Geneva
Convention (III)
Relative to the
Treatment of
Prisoners of War,
75 U.N.T.S. 973;
Geneva
Convention (IV)
Relative to
106


(p. 236 of Ellis) Forces at Sea, art. 3(1)(c), the Protection

75 U.N.T.S. 85; Geneva of Civilian
Convention Relative to the Persons in
Treatment of Prisoners of Time of War,
War, art. 3(1)(c), 75 75 U.N.T.S.
U.N.T.S. 973; Fourth 287.
Geneva Convention, supra
note 23, art. 3(1)(c).
(p. 28, footnote 65 of
Vinuya)
2. Rape as a violation of 65 …Rape as a violation of Article 3
the laws or customs of the laws or customs of war …(a) violence
war generally consists generally consists of to life and
of violations of Article violations of Article 3 of person, in
3 of the 1949 Geneva the 1949 Geneva particular
Conventions, which, Conventions, which, in murder of all
in part, prohibits part, prohibits “violence to kinds,
“violence to life and life and person, in mutilation,
person, in particular particular mutilation, cruel cruel
mutilation, cruel treatment and torture; treatment and
treatment and torture; outrages upon personal torture;(b)
outrages upon dignity, in particular taking of
personal dignity, in humiliating and degrading hostages;(c)
particular humiliating treatment.” (See Geneva outrages upon
and degrading Convention for the personal
treatment.”66 Amelioration of the dignity, in
66See Geneva particular
Convention for the humiliating
and degrading
treatment; …
Source:
Geneva
Convention (I)
for the
Amelioration
of the
Condition of
the Wounded
and Sick in
Armed Forces
in the Field,
75 U.N.T.S.
31; Geneva
Convention
107
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VOL. 642, FEBRUARY 8, 2011 107

Amelioration of the Condition of the (II) for the
Condition of the Wounded and Sick in Amelioration of
Wounded and Sick in Armed Forces in the the Condition of
Armed Forces in the Field, art. 3(1)(c), 75 Wounded, Sick
Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva and Shipwrecked
U.N.T.S. 31; Geneva Convention for the Members of
Convention for the Amelioration of the Armed Forces at
Amelioration of the Condition of Sea, 75 U.N.T.S.
Condition of Wounded, Wounded, Sick and 85; Geneva
Sick and Shipwrecked Shipwrecked Convention (III)
Members of Armed Members of Armed Relative to the
Forces at Sea, art. 3(1) Forces at Sea, art. 3(1) Treatment of
(c), 75 U.N.T.S. 85; (c), 75 U.N.T.S. 85; Prisoners of War,
Geneva Convention Geneva Convention 75 U.N.T.S. 973;
Relative to the Relative to the Geneva
Treatment of Prisoners Treatment of Convention (IV)
of War, art. 3(1)(c), 75 Prisoners of War, art. Relative to the
U.N.T.S. 973; Fourth 3(1)(c), 75 U.N.T.S. Protection of
Geneva Convention, 973; Fourth Geneva Civilian Persons
supra note 23, art. 3(1) Convention, supra in Time of War,
(c).... note 23, art. 3(1)(c). 75 U.N.T.S. 287.
(p. 236 of Ellis) (p. 28, footnote 65 of
Vinuya)
3. Article 27 of the Fourth 65 …Article 27 of the Article 27
Geneva Convention, Fourth Geneva
Women shall be
directed at protecting Convention, directed
especially
civilians during time of at protecting civilians
protected against
war, states that “women during time of war,
any attack on
shall be states that “women
their honour, in
shall be
particular against
rape, enforced
prostitution,
108


especially protected especially protected against or any form

against any attack any attack on their honour, in of indecent
on their honour, in particular against rape, assault.
particular against enforced prostitution, or any
Source:
rape, enforced form of indecent assault.”
prostitution, or any Geneva
(p. 28, footnote 65 of Vinuya) Convention
form of indecent
assault.”67 (IV)
Relative to
67Fourth Geneva the
Convention, supra Protection
note 23, art. 27. of Civilian
(pp. 236 of Ellis) Persons in
Time of
War, 75
U.N.T.S.
287.
4. Protocol I of the 65…Protocol I of the Geneva Article 76.-
Geneva Conventions continues to Protection
Conventions expand the protected rights by of women
continues to expand providing that “women shall be
1. Women
the protected rights the object of special respect
shall be the
by providing that and shall be protected in
object of
“women shall be the particular against rape, forced
special
object of special prostitution and any form of
respect and
respect and shall be indecent assault.” (Protocol
shall be
protected in Additional to the Geneva
protected in
particular against Conventions of August 12,
particular
rape, forced 1949, and Relating to the
against rape,
prostitution and any Protection of Victims of
forced
form of indecent
prostitution
assault.”68
and any
68 Protocol other form
Additional to the of indecent
Geneva assault.
Conventions of 12 Source:
August
Protocol
Additional
to the
Geneva
Conventions
of 12
August
1949, and
relating to
the
Protection
of Victims
of
International
Armed
Conflicts
(Protocol I),
1125
109
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VOL. 642, FEBRUARY 8, 2011 109

1949, and Relating to the International Armed U.N.T.S.

Protection of Victims of Conflicts (Protocol I), 3.
International Armed Conflicts Article 76(1), 1125
(Protocol I), Article 76(1), 1125 U.N.T.S. 4).
U.N.T.S. 4. (p. 28, footnote 65
(pp. 236-237 of Ellis) of Vinuya)
TABLE C: Comparison of Robert McCorquodale’s work, entitled

The Individual and the International Legal System,4 and Phoebe
Okowa’s work, entitled Issues of Admissibility and the Law on
International Responsibility,5 both of which were published in
Malcolm Evans’s book (International Law), and the Supreme
Court’s Decision in Vinuya v. Executive Secretary, G.R. No. 162230,
28 April 2010.
T A T D I S
C W B A
Essays published in Vinuya v. U
M E , Executive M C /
I L Secretary, G.R. O
(ed., 2006). No. 162230, 28
April 2010.
1. Traditionally, the …traditionally, Note:
_______________
4 Robert McCorquodale, The Individual and the I L System, in

International Law, 307-332 (Malcolm Evans ed., 2006).
5 Phoebe Okowa, Issues of Admissibility and the Law on International
Responsibility, in I L (Malcolm Evans ed., 2006).
110


only means the only means Page 231 of the Appeal

available for available for from a Judgment of the
individuals to bring individuals to bring a Hungaro-Czechoslovak
a claim within the claim within the Mixed Arbitral
international legal international legal Tribunal case – the
system has been system has been citation nearest in
when the individual when the individual location and in context
is able to persuade a is able to persuade a to the passage – does
government to government to bring not contain a discussion
bring a claim on the a claim on the on “persuad[ing] a
individual’s behalf. individual’s behalf.55 government to bring a
Even then, it is not Even then, it is not claim on the
the individual’s the individual’s rights individual’s behalf.”
international rights that are being The reference to
that are being asserted, but rather, Appeal from a
asserted but the the state’s own rights. Judgment of the
State’s own 55 … Appeal from a Hungaro-Czechoslovak
rights…. Judgment of the Mixed Arbitral
(pp. 315-16 of Hungaro/Czeochoslo- Tribunal case occurs in
Evans’s vak Mixed Arbitral McCorquodale as
International Law Tribunal, Judgment, footnote 14, four
book, essay written 1933, PCIJ, Ser. A/B sentences before the
by McCorquodale) No. 61, p. 208 at 231. passage copied by
(p. 24, Body of Vinuya, and is made
Vinuya) following the quote, ‘it
is scarcely necessary to
point out that the
capacity to possess
civil rights does not
necessarily imply the
capacity to exercise
those rights oneself’.
In McCorquodale, the
citation following the
discussion on how “it is
not the individual’s
international rights
111
VOL. 642, FEBRUARY 8, 2011 111

VOL. 642, FEBRUARY 8, 2011 111

that are being

asserted but the
State’s own
rights” is
written thus in
footnote 16:
16 Panevezeys-
Saldutiskis
Railway,
Judgment,
PCIJ, Ser A/B,
No 76, p 4. Cf
LaGrand
(Germany v
United States
of America),
Merits,
Judgment, ICJ
Reports 2001,
p 466, para 42.
2. The conceptual 55 The conceptual Again, it is
understanding that understanding that scarcely
individuals have rights individuals have rights necessary to
and responsibilities in and responsibilities in point out that
the international legal the international arena the capacity to
system does not does not automatically possess civil
automatically mean that mean that they have the rights does not
they have the ability to ability to bring necessarily
bring international international claims to imply the
claims to assert their assert their rights. Thus, capacity to
rights or are able to the Permanent Court of exercise those
claim an immunity to International Justice rights oneself.
prevent their declared that “it is No argument
responsibilities being scarcely necessary to against the
enforced (Hohfeld, point out that the University’s
above). Thus the PCIJ capacity to possess civil personality in
declared that ‘it is rights does not law can
scarcely necessary to necessarily imply the therefore be
point out that the capacity to deduced from
capacity to the fact
112


possess civil exercise those rights that it did not
rights does not oneself.” Appeal from a enjoy the free
necessarily imply Judgment of the Hungaro/ disposal of the
the capacity to Czeochoslovak Mixed property in
exercise those Arbitral Tribunal, Judgment, question....
rights oneself’.14 1933, PCIJ, Ser. A/B No. 61,
p. 208 at 231.
Source:
14 Appeal from a
Judgment of the
Hungaro/ Appeal from a
Czechoslovak Judgment of the
Mixed Arbitral Hungaro-
Tribunal, Czechoslovak
Judgment, 1933, Mixed Arbitral
PCIJ, Ser A/B, Tribunal (Peter
No 61, p 208 at p Pázmány
231 University v.
Czechoslovakia),
1933 P.C.I.J.
208, (ser. A/B)
(p. 315 of No. 61, at 231
Evans’s (Dec. 15).
International Law
book, essay
written by
McCorquodale)
(p. 24, footnote
55 of Vinuya)
3. Even decisions of national
The decisions of courts support the thesis that
national courts on general international law as
these it stands does not mandate an
constitutional enforceable legal duty of
provisions diplomatic
nevertheless protection.
support the thesis
that general
international law
as it stands does
not mandate an
enforceable legal
duty of
diplomatic
protection.17
17 Kaunda and
113
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VOL. 642, FEBRUARY 8, 2011 113

others v President of the Republic of (p. 26, Note:
South Africa and others, Case footnote
In Okowa’s
CCCT23/04. In the Hess Decision 63 of
essay, this
BverfGE, 55, 349, 90 ILR 386, the Vinuya)
statement
German Federal Constitutional Court
follows a
upheld the existence of a federal
paragraph in
constitutional right to diplomatic
which she
protection but denied that it was
discusses
required by customary international law.
Kaunda in
See also Abbasi v Sec of Foreign and
the context
Commonwealth Affairs and Sec of Home
of
Office [2002] EWCA Civ 1598, 6
discretionary
November 2002.
diplomatic
(p. 484 of Evans’s International Law protection.
book, essay written by Okowa) Thus, for the
pertinent
passages of
Kaunda
please see
entry 5 of
this table.
4. This position was been challenged in 63 …has 1. Feroz Ali
the UK in a case arising from the clearly been Abbasi, the
interna- challenged first
in the UK claimant, is
in a case a British
arising national....
from the They seek,
unlawful by judicial
deten- review, to
compel the
114


tionally unlawful tion by the US of Foreign Office to
detention by the US prisoners in make
of prisoners in Guantanamo Bay from representations on
Guantanamo Bay the time of the his behalf to the
from the time of the Afghanistan conflict in United States
Afghanistan conflict 2001. In Abbasi v Government or to
in 2001. In Abassi v Secretary of State for take other
Secretary of State for Foreign and appropriate action
Foreign and Commonwealth Affairs or at least to give
Commonwealth ([2002] EWCA Civ an explanation as
Affairs19 the applicant 1316, 19 September to why this has not
(a British national) 2002) the applicant (a been done.
sought judicial review British national) sought ...
of the adequacy of the judicial review of the
diplomatic actions of adequacy of the 107. ...On no view
the British diplomatic actions of would it be
government with the the British government appropriate to
US government…. with the US order the
government…. Secretary of State
(p. 316 of Evans’s to make any
International Law (p. 26, footnote 63 of specific
book, essay written Vinuya) representations to
by McCorquodale) the United States,
even in the face of
what appears to be
a clear breach of a
fundamental
human right, as it
is obvious that this
would have an
impact on the
conduct of foreign
policy….
Source:
Abbasi v.
Secretary of State
for Foreign and
Commonwealth
Affairs, 42 I.L.M.
358, 359-383
(2003)(Nov. 6)
(U.K.).
5. The South African [65] The founding
Constitutional Court 63…The South African values of our
in Kaunda and others Constitutional Court in Constitution
v Kaunda and include human
dignity, equality
and
115
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VOL. 642, FEBRUARY 8, 2011 115

President of the others v. President of the advancement of
Republic of South the Republic of South human rights and
Africa and others16 Africa and others freedoms…
recognized the (Case CCCT23/04) .…
constitutional basis of recognized the
the right of diplomatic constitutional basis [69] There may thus
protection as of the right of be a duty on
enshrined in the South diplomatic protection government,
African constitution, as enshrined in the consistent with its
but went on to hold South African obligations under
that the nature and Constitution, but international law, to
extent of his went on to hold that take action to protect
obligation was an the nature and extent one of its citizens
aspect of foreign of this obligation against a gross abuse
policy within the was an aspect of of international
discretion of the foreign policy within human rights
executive. the discretion of the norms....
16 Kaunda and others executive. …
v. President of the [73] A court cannot
Republic of South tell the government
Africa and others, how to make
Case diplomatic
CCCT23/04. interventions for the
protection of its
nationals…
.…
[77] A decision as to
whether, and if so,
what protection
should be given, is an
aspect of foreign
policy which is
essentially the
function of the
executive. The timing
of representations if
they are to be made,
the language in
which they should be
couched, and the
sanctions (if any)
which should follow
if such
representations are
rejected are
116


(p. 484 of Evans’s (p. 27, matters with which courts are ill
International Law footnote equipped to deal….
book, essay written by 63 of Source:
Okowa) Vinuya)
Kaunda v. President of the
Republic of South Africa, 44
I.L.M. 173, pars. 65-77 (2005) (C.
Ct. S. Afr.).
TABLE D: Comparison of Mariana Salazar Albornoz’s article,
Legal Nature and Legal Consequences of Diplomatic Protection:
Contemporary Challenges, and the Supreme Court’s Decision in
Vinuya, et al. v. Executive Secretary, G.R. No. 162230, 28 April
2010.
T A T T P
C W D “O ”
S C
Mariana Salazar Albornoz, Legal Vinuya v. C
Nature and Legal Consequences Executive A
of Diplomatic Protection: Secretary, V
Contemporary Challenges, 6 G.R. No. D
A M 162230, 28
D I 377 April 2010.
(2006)
1. Nowhere is this position more Nowhere is
clearly reflected than in the this
dictum position
more
clearly
reflected
than in the
dictum of
the
117
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VOL. 642, FEBRUARY 8, 2011 117

of the Permanent Court of Permanent Court of
International Justice International Justice
(PCIJ) in the 1924 (PCIJ) in the 1924
Mavrommatis Palestine Mavrommatis Palestine
Concessions Case: Concessions Case:
By taking up the By taking up the
case of one of its case of one of its
subjects and by subjects and by
resorting to resorting to
diplomatic action diplomatic action
By taking up
or international or international
the case of
judicial judicial
one of its
proceedings on his proceedings on his
subjects and
behalf, a State is in behalf, a State is in
by resorting
reality asserting its reality asserting its
to diplomatic
own right to own right to
action or
ensure, in the ensure, in the
international
person of its person of its
judicial
subjects, respect subjects, respect
proceedings
for the rules of for the rules of
on his behalf,
international law. international law.
a State is in
The question, The question,
reality
therefore, whether therefore, whether
asserting its
the present dispute the present dispute
own right to
originates in an originates in an
ensure, in the
injury to a private injury to a private
person of its
interest, which in interest, which in
subjects,
point of fact, is the point of fact, is the
respect for
case in many case in many
the rules of
international international
international
disputes, is disputes, is
law.
irrelevant from irrelevant from
this standpoint. this standpoint. The question,
Once a State has Once a State has therefore,
taken up a case on taken up a case on whether the
be- be- present
dispute
originates in
an injury to a
private
interest,
which in
point of fact,
is the case in
many
international
disputes, is
irrelevant
from this
standpoint.
Once a State
has taken up
a case on
behalf of one
of its subjects
before an
interna-
118


half of one of its half of one of its tional tribunal, in

subjects before an subjects before an the eyes of the
international tribunal, international tribunal, latter the State is
in the eyes of the in the eyes of the latter sole claimant. The
latter the State is sole the State is sole fact that Great
claimant.85 claimant.56 Britain and Greece
are the opposing
Parties to the
dispute arising out
of the
Mavrommatis
concessions is
sufficient to make
it a dispute
between two States
within the meaning
of Article 26 of the
Palestine
Mandate.
Source:
Mavrommatis
Palestine
Concessions
(Greece v. Gr.
Brit.), 1924 P.C.I.J.
56 PCIJ, Ser. A, No. 2, (ser. A) No. 2, at
85 Mavrommatis p. 11, at 16. This 12 (Aug. 30).

Palestine Concessions traditional view was
case, supra note 9, p. repeated by the PCIJ in
12. The emphasis is the Panevezys-
ours. This traditional Saldutiskis Railway
view was repeated by Case, the Case
the PCIJ in the Concerning the
Panevezys-Saldutiskis Payment of Various
Railway Case, the Serbian Loans issued in
Case Concerning the France, Judgment of
Payment of Various July 12, 1929, PCIJ
Serbian Loans issued Reports, Series A No.
in France, Judgment 20; and in the Case
of July 12, 1929, PCIJ Concerning the Factory
Reports, Series A No. at Chorzow, Judgment
20; and in the Case of September 13, 1928,
Concerning Merits, PCIJ
119
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VOL. 642, FEBRUARY 8, 2011 119

the Factory at Chorzow, Judgment of Reports, Series A No. 17.
September 13, 1928, Merits, PCIJ The ICJ has adopted it in
Reports, Series A No. 17. The ICJ has the Reparation for injuries
adopted it in the Reparation for suffered in the service of
injuries suffered in the service of the the United Nations
United Nations Advisory Opinion: ICJ Advisory Opinion: ICJ
Reports 1949, p. 174; the Nottebohm Reports 1949, p. 174; the
Case (second phase) Judgment of Nottebohm Case (second
April 6th, 1955: ICJ Reports 1955, p. phase) Judgment of April
4 at p. 24; the Interhandel Case 6th, 1955: ICJ Reports
(Judgment of March 21st, 1959: ICJ 1955, p. 4 at p. 24; the
Reports 1959, p. 6 at p. 27) and the Interhandel Case
Barcelona Traction Light and Power (Judgment of March 21st,
Company, Limited case, supra note 6, 1959: ICJ Reports 1959,
at p. 32 par. 33. It has also been p. 6 at p. 27) and the
recognized by other international Barcelona Traction Light
tribunals: see, for example, and Power Company,
Administrative Decision No. V of the Limited case, (Belg. V.
US-German Claims Commission. Spain), 1970 I.C.J. 3, 32
(p. 397 of Albornoz) (Feb. 5).
(p. 24 Body of Vinuya)
120


2. Under this 57See B , E., …The citizen abroad has
view, the D no legal right to require
considerations P the diplomatic protection
underlying the C A of his national
decision to VI (1915). Under this government. Resort to this
exercise or not view, the remedy of diplomatic
diplomatic considerations protection is solely a right
protection may underlying the of the government, the
vary depending decision to exercise justification and
on each case or not diplomatic expediency of its
and may rely protection may vary employment being a
entirely on depending on each matter for the
policy case and may rely government’s unrestricted
considerations entirely on policy discretion. This protection
regardless of considerations is subject in its grant to
the interests of regardless of the such rules of municipal
the directly- interests of the administrative law as the
injured directly-injured state may adopt, and in its
individual, and individual, and the exercise internationally to
the State is not State is not required certain rules which custom
required to to provide has recognized.
provide justification for its Source:
justification for decision.
its decision.90 E M. B ,
(p. 25, footnote 57 of T D
90 See in this Vinuya) P C
sense, Borchard A L
E., Diplomatic I C , vi
Protection of (1914).
Citizens
Abroad, New
York, The
Banks Law
Publishing Co.,
1915, at VI.
Also: G. Berlia,
op. cit. (note
86), pp. 63 y
64.
(p. 398 of
Albornoz)
121
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VOL. 642, FEBRUARY 8, 2011 121

3. The ILC’s First Reading The International 60. The texts
Draft Articles on diplomatic Law Commission’s of the draft
protection have fully (ILC’s) Draft articles on
attached to the traditional Articles on diplomatic
view on the legal nature of Diplomatic protection
such institution. In this Protection fully with
sense, (i) they expressly state support this commentaries
that “the right of diplomatic traditional view. thereto
protection belongs to or vests They (i) state that adopted on
in the State,” a statement “the right of first reading
which “gives recognition to diplomatic protection by the
the Vattelian notion that an belongs to or vests in Commission
injury to a national is an the State,”59 (ii) at its fifty-
indirect injury to the affirm its sixth session,
State”;96 (ii) they affirm its discretionary nature are
discretionary nature by by clarifying that reproduced
clarifying that diplomatic diplomatic protection below
protection is a “sovereign is a “sovereign
.…
prerogative” of the State;97 prerogative” of the
and stressing that the state State;60 and (iii) Article 2
“has the right to exercise stress that the state stresses that
diplomatic protection on “has the right to the right of
behalf of a national. It is exercise diplomatic diplomatic
under no duty or obligation protection on behalf protection
to do so.”98 of a national. It is belongs to or
under no duty or vests in the
obligation to do State. It gives
so.”61 recognition to
the Vattelian
notion that an
injury to a
national is an
indirect
injury to the
State.25…
...
A State has
the right to
exercise
diplomatic
protection on
behalf of a
national. It is
under no duty
or obligation
to do so. The
internal law
of a State
may oblige a
State to
extend
diplomatic
protection to
a national,29
but
international
law imposes
no such
obligation....
122


Source:
96 ILC First 59 ILC First Reading Text of the Draft
Reading Draft Draft Articles on Articles on Diplomatic
Articles on Diplomatic Protection Adopted by
Diplomatic Protection, U.N. Doc. the Commission on
Protection, supra A/CN.4/484, ILC First Reading, Rep. of
note 13, par. 60, Report, A/53/10 (F), the Int’l. Law Comm’n,
Commentary to par. 60, Commentary 56th Sess., 3 May-4
Draft Article 2, to Draft Article 2, par. June and 5 July-6
par. (1); see also, (1); see also, August 2004, U.N.
Commentary to Commentary to Draft Doc. A/59/10 at 22-28,
Draft Article 1, Article 1, par. (3), and par. 60; GAOR, 59th
par. (3), and text text of Draft Article Sess., Supp. 10 (2004).
of Draft Article 2.
2.
97 Report of the 60 Report of the
International Law International Law
Commission on Commission on the
the work of its work of its 50th
50th session, session, supra note
supra note 13, 60, par. 77.
par. 77.
61 ILC First Reading

98 ILC First
Draft Articles on
Reading Draft
Diplomatic
Articles on
Protection, supra
Diplomatic
note 60, commentary
Protection, supra
to Draft Article 2, par.
note 2,
(2).
commentary to
Draft Article 2,
par. (2).
(p. 25-26 Body of

(p. 400 of Vinuya)
Albornoz)
4. …Special 62 …Special 74.The discretionary
Rapporteur Rapporteur Dugard power of the State to
Dugard proposed proposed that the ILC intervene on behalf of
that the ILC adopt adopt in its Draft its national is
in its Draft Articles a provision considered in the
Articles a under which States commentary on article
provision under would be interna- 4.
which States
would be interna-
123
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VOL. 642, FEBRUARY 8, 2011 123

tionally obliged to Article 4
tionally obliged to exercise diplomatic 1. Unless the
exercise diplomatic protection in favor of injured person is
protection in favour of their nationals injured able to bring a
their nationals injured abroad by grave claim for such
abroad by grave breaches to jus cogens injury before a
breaches to their jus norms, if the national competent
cogens norms, if the so requested and if international court
national so requested he/she was not or tribunal, the
and if he/she was not afforded direct access State of his/her
afforded direct access to an international nationality has a
to an international tribunal. The proposed legal duty to
tribunal.116 article reads as exercise
116 The proposed article follows: diplomatic
read as follows: protection on
“Article [4] 1. Unless Article [4] 1. behalf of the
the injured person is Unless the injured person
able to bring a claim for injured person is upon request, if
such injury before a able to bring a the injury results
competent international claim for such from a grave
court or tribunal, the injury before a breach of a jus
State of his/her competent cogens norm
nationality has a legal international attributable to
duty to exercise court or another State.
diplomatic protection tribunal, the 2. The State of
on behalf of the injured State of his/her nationality is
person upon request, if nationality has a relieved of this
the injury results from a legal duty to obligation if:
grave breach of a jus exercise
cogens norm (a) The exercise
diplomatic of diplomatic
attributable to another protection on
State. 2. The state of protection would
behalf of the seriously
nationality is relieved injured person
of endangerthe
upon request, if overriding
the injury interests of the
results from a State and/or its
grave breach of people;
a jus cogens
norm (b) Another State
attributable to exercises
another State. 2. diplomatic
The state of protection on
nationality is behalf of the
relieved of this injured person;
obligation if: (a) (c) The injured
The person does not
124


this obligation if: exercise of diplomatic have the effective and
(a) The exercise of protection would dominant nationality
diplomatic seriously endanger the of the State.
protection would overriding interests of
3. States are obliged
seriously endanger the State and/or its
to provide in their
the overriding people ; (b) Another
municipal law for the
interests of the State exercises
enforcement of this
State and/or its diplomatic protection
right before a
people ; (b) on behalf of the
competent domestic
Another State injured person; (c) The
court or other
exercises injured person does
independent national
diplomatic not have the effective
authority.
protection on behalf and dominant
of the injured nationality of the Source:
person; (c) The State. States are
injured person does obliged to provide in
not have the their municipal law for
effective and the enforcement of this
dominant right before a
nationality of the competent domestic
State. States are court or other
obliged to provide independent national
in their municipal authority.” Special
law for the Rapporteur John
enforcement of this Dugard, appointed in
right before a 1999, First Report on
competent domestic Diplomatic Protection,
court or other par. 74 (UN Doc
independent A/CN.4/506 (March 7,
national authority.” 2000) and Corr. 1
Dugard, J. First (June 7, 2000) and
report on Add. 1 (April 20,
diplomatic 2000).
protection, supra
note 13, par. 74.
125
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VOL. 642, FEBRUARY 8, 2011 125

(p. 404 of Special Rapporteur

Albornoz) on Diplomatic
(p. 26, footnote 62 Protection, First
of Vinuya)
Rep. on Diplomatic
Protection, Int’l. Law
Comm’n, UN Doc.
A/CN.4/506, at 27, par.
74 (7 March 2000) (by
John R. Dugard).
5. …the proposal 62 …the proposal 456. The Special
was not accepted was not accepted Rapporteur recognized
by the ILC, as by the ILC, as “the that he had introduced
“the question was question was still article 4 de lege ferenda.
still not ripe for not ripe for As already indicated, the
treatment” treatment” because proposal enjoyed the
because “the State “the State practice support of certain writers,
practice and their and their opinio as well as of some
opinio juris still juris still hadn’t members of the Sixth
hadn’t evolved in evolved in such Committee and of ILA; it
such direction.” Official even formed part of some
direction.”120 Records of constitutions. It was thus
120Official theGeneral an exercise in the
Records of Assembly: 55th progressive development
theGeneral session, Supplement of internationallaw. But
Assembly: 55th No. 10, Doc. the general view was that
session, A/55/10 (2000), the issue was not yet ripe
Supplement No. Report of the ILC for the attention of the
10, Doc. A/55/10 on the work of its Commission and that
(2000), Report of 52nd session, p. there was a need for more
the ILC on the 131. State practice and,
work of its 52nd particularly, more
session, p.
131.
126


(p. 405 of Albornoz) (p.26, footnote 62 of opinio juris before it

Vinuya) could be considered.
Note:
p. 131 of the Report
does not refer to the
topic of diplomatic
protection. Rather,
the heading of the
page reads “Other
Decisions and
Conclusions of the
Commission.”
Source:
Rep. of the Int’l.
Law Comm’n, 52nd
Sess., 1 May - 9 June
and 10 July - 18
August 2000, U.N.
Doc. A/55/10 at 78-
79, par. 456; GAOR,
55th Sess., Supp. 10
(2000).
6. ...some States have, 62 …some States 80. …Constitutional
indeed, incorporated have, indeed, provisions in a
in their municipal incorporated in their number of States…
law a duty to municipal law a duty recognize the right of
exercise diplomatic to exercise the individual to
protection in favor of diplomatic protection receive diplomatic
their nationals…. in favor of their protection for
Various other States nationals. (Dugard injuries suffered
have also included identifies this abroad. These
such a “duty to “obligation to exist in include: Albania,
exercise diplomatic the Constitutions of Belarus, Bosnia and
protec- Albania, Belarus, Herzegovina,
127
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VOL. 642, FEBRUARY 8, 2011 127

tion” under their domestic Bosnia and Bulgaria,
laws,130 but their Herzegovina, Cambodia,
enforceability is also, to Bulgaria, Cambodia, China, Croatia,
say the least, questionable China, Croatia, Estonia,
(in many cases there are Estonia, Georgia, Georgia,
not even courts competent Guyana, Hungary, Guyana,
to review the decision). Italy, Kazakhstan, Lao Hungary, Italy,
People’s Democratic Kazakhstan,
130 Dugard identifies this
Republic, Latvia, Lao People’s
“obligation to exist in the
Lithuania, Poland, Democratic
Constitutions of Albania,
Portugal, Republic of Republic,
Belarus, Bosnia and
Korea, Romania, Latvia,
Herzegovina, Bulgaria,
Russian Federation, Lithuania,
Cambodia, China, Croatia,
Spain, the former Poland,
Estonia, Georgia, Guyana,
Yugoslav Republic of Portugal,
Hungary, Italy,
Macedonia, Turkey, Republic of
Kazakhstan, Lao People’s
Ukraine, Viet Nam Korea,
Democratic Republic,
and Yugoslavia, albeit Romania,
Latvia, Lithuania, Poland,
with different reaches. Russian
Portugal, Republic of
J. Dugard, First Report Federation,
Korea, Romania, Russian
on diplomatic Spain, the
Federation, Spain, the
protection, supra note former
former Yugoslav Republic
13, par. 80.) Yugoslav
of Macedonia, Turkey,
Republic of
Ukraine, Viet Nam and
Macedonia,
Yugoslavia, albeit with
Turkey,
different reaches. J.
Ukraine, Viet
Dugard, First Report on
Nam and
diplomatic protection,
Yugoslavia….
supra note 13, par. 80.
Source:
Special
Rapporteur on
Diplomatic
Protection,
First Rep. on
Diplomatic
Protection,
Int’l. Law
Comm’n, UN
Doc.
A/CN.4/506, at
30, par. 80 (7
March 2000)
(by John R.
Dugard).
128


(p. 406 of (p. 26, footnote 62 of

Albornoz) Vinuya)
7. …but their 62 ..., but their (2) A State has the
enforceability is enforceability is also, to right to exercise
also, to say the say the least, diplomatic
least, questionable questionable (in many protection on behalf
(in many cases cases there are not even of a national. It is
there are not even courts competent to under no duty or
courts competent review the decision). obligation to do so.
to review the Moreover, their existence The internal law of
decision). in no way implies that a State may oblige
Moreover, their international law imposes a State to extend
existence in no such an obligation, diplomatic
way implies that simply suggesting “that protection to a
international law certain States consider national,29 but
imposes such an diplomatic protection for international law
obligation,131 their nationals abroad to imposes no such
simply suggesting be desirable” (ILC First obligation. The
“that certain States Reading Draft Articles on position was clearly
consider Diplomatic Protection, stated by the
diplomatic supra note 2, International Court
protection for their Commentary to Draft of Justice in the
nationals abroad Article 2, par (2)). Barcelona Traction
to be case:
desirable.”132 …
131 ILC First A proposal that a
Reading Draft limited duty of
Articles on protection be
Diplomatic imposed on the
Protection, supra State of nationality
note 2, was rejected by the
Commentary to Commission as
Draft Article 2, going beyond the
par (2). This was permissible limits
recognized of progressive
expressly in the development of the
Barcelona law.31
Traction case,
supra note 6. Source:
132Dugard, J. First
report on
diplomatic
protection,
129
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VOL. 642, FEBRUARY 8, 2011 129

supra (p. 26, Commentary to the Text of the Draft Articles on

note 13, footnote Diplomatic Protection Adopted by the
par. 62 of Commission on First Reading, Rep. of the Int’l.
81…. Vinuya) Law Comm’n, 56th Sess., 3 May-4 June and 5
(pp. 406- July-6 August 2004, U.N. Doc. A/59/10 at 28,
407 of par. 60; GAOR, 59th Sess., Supp. 10 (2004).
Albornoz)
TABLE E: Comparison of Elizabeth Prochaska’s article, Testing the
Limits of Diplomatic Protection: Khadr v. The Prime Minister of
Canada,6 and the Supreme Court’s Decision in Vinuya v. Executive
Secretary, G.R. No. 162230, 28 April 2010.
T A C T D I
W S B
Elizabeth Prochaska, Testing Vinuya v. A B
the Limits of Diplomatic Executive P
Protection: Khadr v. The Prime Secretary, G.R.
Minister of Canada (2009). No. 162230, 28
April 2010
_______________
6 Published in the blog of the European Journal of International Law, accessed at

http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-versus-the-
prime-minister-of-canada. Last visited 24 January 2011, 1:47 p.m.
130


Instead, Draft 62 …Official Records of the

Article 19, entitled General Assembly: 55th
Note:
‘Recommended session, Supplement No. 10,
Practice,’ suggests Doc. A/55/10 (2000), Report The Report of
that states should of the ILC on the work of its the
be encouraged to 52nd session, p. 131. Instead, International
exercise diplomatic Draft Article 19, entitled Law
protection ‘Recommended Practice,’ Commission
‘especially when suggests that states should be on the Work of
significant injury encouraged to exercise its Fifty-
occurred to the diplomatic protection Second
national. Drafted in ‘especially when significant Session, and
soft language, the injury occurred to the the Special
Article does not national. Drafted in soft Rapporteur’s
purport to create language, the Article does not First on
any binding purport to create any binding Diplomatic
obligations on the obligations on the state. Protection,
state. which are the
(Footnote 62 of Vinuya)
(p. 397 of
Prochaska)
131
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VOL. 642, FEBRUARY 8, 2011 131

nearest in location and in context to the passage, does not
contain a discussion on Draft Article 19. See pp. 72-85 and 27-
34 respectively.
TABLE F: Comparison of Larry Niksch’s Report, Japanese

Military’s Comfort Women, 10 April 2006,7and the Supreme Court’s
Decision in Vinuya, et al. v. Executive Secretary, G.R. No. 162230,
28 April 2010.
T A T D S
C W B U
B N
Larry Niksch, J Vinuya v. Executive
M ’ C Secretary, G.R. No.
W , 10 April 162230, 28 April 2010.
_______________
7 From the Congressional Report Services Memorandum, by Larry Niksch,

Specialist in Asian Affairs, Foreign Affairs, Defense and Trade Division, accessible at
http://www.awf.or.jp/pdf/h0076.pdf. This document is covered by a copyright notice
from the United States Congressional Research Service posted at the website of the
Asian Women’s Fund: http://www.awf.or.jp/e4/un-05.html#etc. Last accessed 24
January 2011, 2:35 p.m.
132


2006.
1. The Asian The AWF The projects of atonement involved providing former comfort women with 2 million
Women’s Fund announced three yen per person as atonement money donated by Japanese citizens, delivering a letter of
announced programs for apology from the Japanese Prime Minister, and offering goods and services under
three programs former comfort medical and welfare support projects financed by the Japanese government.
for former women who Note:
comfort applied for
women who assistance: (1) an The passage in Vinuya does not contain a footnote. The following source is the nearest
applied for atonement fund citation that may reasonably be taken as within the context of the discussion in Vinuya.
assistance: (1) paying ¥2 million http://web.archive.org/web/20060301213211/http://www.awf.or.jp/english/project_aton
an atonement (approximately
fund that paid $20,000) to each
two million woman; (2)
yen medical and
(approximately welfare support
$20,000) to programs, paying
each former ¥2.5-3 million
comfort ($25,000-$30,000)
woman; (2) for each woman;
medical and and (3) a letter of
welfare apology from the
support Japanese Prime
programs for Minister to each
former woman.
comfort (p. 17, Body of
women, Vinuya)
paying 2.5-3
million yen
($25,000-
$30,000) for
each former
comfort
woman; and
(3) a letter of
apology from
the Japanese
Prime Minister
to each
recipient
woman.[8]
[FN8]. From
the Asian
Women’s Fund
website,
March 16,
2006.
(paragraph 11
of Niksch)
133
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VOL. 642, FEBRUARY 8, 2011 133

ement.html
2. ...As of March ...As of March In order to fulfill its moral responsibility in all sincerity, the Japanese government
2006, the 2006, the decided to disburse about 700 million yen over a five-year period for medical and
Asian AWF provided welfare support projects aiding former comfort women in the Philippines, the Republic
Women’s Fund ¥700 million of Korea and Taiwan.
provided 700 yen ...
million yen (approximately
(approximately $7 million) for Note:
$7 million) for these programs The passage in Vinuya does not contain a footnote. The following source is the nearest
these programs in South citation that may reasonably be taken as within the context of the discussion in Vinuya.
in South Korea,
Korea, Taiwan, and http://web.archive.org/web/20060301213211/http://www.awf.or.jp/english/project_aton
Taiwan, and the
the Philippines;
Philippines; ¥380 million
380 million yen
yen (approximately
(approximately $3.8 million)
$3.8 million) in Indonesia;
in Indonesia; and ¥242
and 242 million yen
million yen (approximately
(approximately $2.4 million)
$2.4 million) in the
in the Netherlands.
Netherlands. (p. 17, Body
[9] of Vinuya)
(paragraph 12
of Niksch)
134


ement.html
3. On January On January The government of the Philippines and the Asian Women’s Fund
15, 1997 the 15, 1997 the signed a Memorandum of Understanding on January 15, 1997….
Asian AWF and the The Philippine government’s Department of Social Welfare and
Women’s Philippine Development implemented the projects over a period of five
Fund and the government years….
Philippine signed a
government Memorandum Note:
signed a of The passage in Vinuya does not contain a footnote. The following
Memorandum Understanding source is the nearest citation that may reasonably be taken as
of for medical within the context of the discussion in Vinuya.
understanding and welfare
for medical support http://web.archive.org/web/20060301213211/http://www.awf.or.jp
and welfare programs for
support former
programs for comfort
former women. Over
comfort the next five
women. Over years, these
the next five were
years, these implemented
were by the
implemented Department of
by the Social Welfare
Philippine and
government’s Development.
Department of (p. 17, Body
Social Welfare of Vinuya)
and
Development.
(paragraph 19
of Niksch)
135
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/english/project_atonement.html
TABLE G: Comparison of James Ladino’s article, Ianfu: No

Comfort Yet for Korean Comfort Women and the Impact of House
Resolution 121 and the Supreme Court’s Decision in Vinuya v.
Executive Secretary, G.R. No. 162230, 28 April 2010.
T A T D S B
C W A /
James Ladino, Ianfu: Vinuya v. Executive U L
No Comfort Yet for Secretary, G.R. No.
Korean Comfort 162230, 28 April
Women and the 2010.
Impact of House
Resolution 121, 15
Cardozo J.L. &
Gender 333 (2009).
1. In 1992, the Korean In 1992, the Korean ...In her report to
Council for the Council for the the U.N. Human
Women Drafted for Women Drafted for Rights
Military Sexual Military Sexual Commission,
Slavery by Japan Slavery by Japan Radhika
(“KCWS”), submitted (KCWS), submitted a Coomaraswamy,
a petition to the petition to the UN the U.N. special
United Nations Human Rights investigator into
Human Rights Commission violence against
Commission (UNHRC), asking for women, concluded
(“UNHRC”), asking assistance in that Japan must
for their assistance in investigating crimes admit its legal
investigating committed by responsibility....
...
....Lee Hyo-chae,
as a co-chair of the
KCWS submitted a
136


crimes Japan against Korean women and seeking petition to
committed by reparations for former comfort women.29 The the U.N.
Japan against UNHRC placed the issue on its agenda and Human
Korean women appointed Radhika Coomaraswamy as the Rights
and pressuring issue’s special investigator. In 1996, Commission,
Japan to pay Coomaraswamy issued a Report reaffirming dated March
reparations to Japan’s responsibility in forcing Korean women 4, 1992,
the women who to act as sex slaves for the imperial army, andrequesting
had filed made the following recommendations: that the
lawsuits.96 The 29 S ,T C W P ,S Commission
UNHRC F S U (1997-2001), investigate
formally placed http://online.sfsu.edu/~soh/comfortwomen.html, Japanese
the issue on its at 1234-35. atrocities
agenda and committed
appointed against
Radhika Korean
Coomaraswamy women
as the issue’s during World
special War Two,
investigator.97 and help
Issued in 1996, pressure the
the UNHRC’s Japanese
report government
reaffirmed to pay
Japan’s guilt in reparations
forcing Korean to individual
women to act as women who
sex slaves for have filed
the imperial suit. The
army.98 UNHRC
96 Soh, supra
responded
note 7 by placing
[Chunghee the issue on
Sarah Soh, The the official
Korean agenda for
“Comfort its August
Women”: 1992
Movement for meeting in
Redress, 36 Geneva….
Asian Survey Source:
1226,], at 1234- Chunghee
35. Sarah Soh,
97 Id. at 1226. The Korean
“Comfort
Women”:
Movement
for Redress,
36 Asian
Survey 1226,
1234-35
(1996).
137
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VOL. 642, FEBRUARY 8, 2011 137

98 Id. (p. 9-10, Body of

(p. 344 of Ladino) Vinuya)
2. The Women’s The Women’s From December 8
International War International War to 12, 2000, a
Crimes Tribunal Crimes Tribunal peoples’ tribunal,
(WIWCT) was a (WIWCT) was a the Women’s
“people’s tribunal” “people’s tribunal” International War
established by a established by a Crimes Tribunal
number of Asian number of Asian 2000, sat in
women, human rights women and human Tokyo, Japan. It
organizations, and rights organizations, was established to
supported by an supported by an consider the
international coalition international coalition criminal liability
of non-governmental of non-governmental of leading high-
organizations organizations.31 First ranking Japanese
(“NGOs”).101 First proposed in 1998, the military and
proposed in 1998, the WIWCT convened in political officials
WIWCT convened in Tokyo in 2000 in and the separate
Tokyo in 2000 to order to “adjudicate responsibility of
discuss the issue of Japan’s military the state of Japan
comfort women.102 sexual violence, in for rape and
Specifically, the particular the sexual slavery as
WIWCT aimed to enslavement of crimes against
“adjudicate Japan’s comfort women, to humanity arising
military sexual bring those out of Japanese
violence, in particular responsible for it to military activity
the enslavement of justice, and to end the in the Asia
comfort women, to ongoing cycle of Pacific region in
bring those responsible impunity for wartime the 1930s and
for it to justice, and to sexual violence 1940s.
end the ongoing cycle against women.” ...
of impunity
…The tribunal
arose out of the
work of various
women’s
nongovernmental
organizations
(NGOs) across
Asia….
Source:
138


for wartime sexual violence against women.” 31Chinkin, Chinkin,

Women’s Women’s
101Christine M. Chinkin, Women’s International
International International
Tribunal on Japanese Sexual Slavery, 95 Am. J. Int’l.
Tribunal on Tribunal on
L. 335 (2001)
Japanese Japanese
102 Violence Against Women in War-Network Japan, Sexual Sexual
What is the Women’s Tribunal? Slavery, 95 Slavery, 95
http.//www1.jca.apc.org/vaww-net- Am. J. Int’l. L. Am. J. Int’l.
japan/English/womenstribunal2000/whatstribunal.html 335 L. 335
(last visited Oct. 16, 2008). (2001). (2001).
(p. 345 of Ladino) (p. 12, Body
of Vinuya)
3. A large amount of evidence was presented to the 32 A large
tribunal for examination. Sixty-four former comfort amount of
women from Korea and other surrounding territories in evidence was
presented to
the tribunal
for
examination.
Sixty-four
former
comfort
women from
Korea and
other
surrounding
territories in
139
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VOL. 642, FEBRUARY 8, 2011 139

the Asia-Pacific region testified before the court.104
the Asia- …Prosecution
Testimony was also presented by historical scholars,Pacific teams from ten
international law scholars, and two former Japanese region countries
soldiers.105 Additional evidence was submitted by the
testified presented
prosecution teams of ten different countries, before the indictments.6
including: North and South Korea, China, Japan, the court. North and
Philippines, Indonesia, Taiwan, Malaysia, East Timor,
Testimony South Korea,
and the Netherlands.106 was also China, Japan,
104 Id. [Violence Against Women in War-Network
presented by the
Japan, What is the Women’s Tribunal?, historical Philippines,
http://wwwl.jca.apc.org/vaww-net- scholars, Indonesia,
japan/english/womenstribunal2000/whatstribunal.html international Taiwan,
(last visited Oct. 16, 2008).] law Malaysia, East
scholars, Timor, and the
and two Netherlands….
former Two lead
Japanese prosecutors
soldiers. (Patricia
Additional Viseur Sellers7
evidence and Ustinia
was Dolgopol8)
submitted joined the
by the separate-
prosecution country
teams of ten prosecutors
different and presented
countries, a common
including: indictment.
North and Source:
South
Korea, Chinkin,
China, Women’s
Japan, the International
Philippines, Tribunal on
Indonesia, Japanese
Taiwan, Sexual
Malaysia, Slavery, 95
East Timor, Am. J. Int’l. L.
and the 335, 336
Netherlands. (2001).
Id.
[Chinkin] at
336.
140


105 Id. (p. 12,

106Chinkin, footnote 32 of Vinuya)
supra note
101, at 336.
(p. 345 of
Ladino)
After After examining the The preliminary judgment
examining evidence for more than indicated that the judges had
the evidence a year, the “tribunal” found Emperor Hirohito
for more issued its verdict on guilty of the charges on the
than a year, December 4, 2001, basis of command
the tribunal finding the former responsibility, that he knew
issued its Emperor Hirohito and or should have known of the
final verdict the State of Japan guilty offenses…. The judges also
on of crimes against indicated that they had
December 4, humanity for the rape determined Japan to be
2001, and sexual slavery of responsible under
finding the women.32 It bears international law applicable
former stressing, however, that at the time of the events for
Emperor although the tribunal violation of its treaty
Hirohito and included prosecutors, obligations and principles of
the State of witnesses, and judges, customary international law
Japan guilty its judgment was not relating to slavery,
of crimes legally binding since trafficking, forced labor, and
against the tribunal itself was rape, amounting to crimes
humanity organized by private against humanity….
for the rape citizens. What was the value
and sexual 32 …Id. [Chinkin]
slavery of
women.107
…Although
the tribunal
included
prosecutors,
witnesses,
and judges,
its judgment
was not
legally
binding
since the
tribunal
itself was
organized
by private
citizens….
107 Violence
141
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VOL. 642, FEBRUARY 8, 2011 141

Against Women in at 336. of this exercise?
War-Network Japan, (p. 12, Body of Lacking legal
supra note 102. Vinuya) authority, was the
(p. 345 of Ladino) tribunal no more
than a mock trial of
little concern to
serious international
lawyers?
Source:
Chinkin, Women’s
International
Tribunal on
Japanese Sexual
Slavery, 95 Am. J.
Int’l. L. 335 (2001).
4. On January 31, 2007, On January 31, 2007, Today,
United States US Representative Representative
Representative Michael Honda of Michael M. Honda
Michael Honda of California, along with (CA – 15)
California, along six co-sponsor introduced a
with six co-sponsor representatives, bipartisan resolution
representatives, introduced House before the U.S.
introduced House Resolution 121 which House of
Resolution 121. The called for Japanese Representatives
resolution called for action in light of the calling on the
Japanese action in ongoing struggle for government of Japan
light of the ongoing closure by former to formally and
struggle for closure comfort women. The unambiguously
by former comfort Resolution was apologize for and
women. The House formally passed on acknowledge the
of Representatives July 30, 2007,33 and tragedy that comfort
formally passed the made four distinct women endured at
resolution on demands: the hands of its
Imperial Army
during World War
II….
…
The resolution is
142


July 30, 2007.110 33 Press cosponsored by: Representatives
The resolution Release, Edward R. Royce
Congressman
also makes four Mike Honda, (CA – 40), Christo-
distinct demands: Rep. Honda pher H. Smith (NJ -
Calls on Japan
110Press Release, Congressman Mike Honda, Rep. Honda Calls on to Apologize 4), Diane E. Watson
Japan to Apologize for World War II Exploitation of “Comfort Women” for World War (CA - 33), David Wu
(Jan. 31, 2007), available at II Exploitation
http://www.house.gov/list/press/ca15_honda/COMFORTWOMEN.html. ()R - 1), Phil Hare (IL - 17), and Delegate
of “Comfort
Madaleine Bordallo (GU).
(p. 346 of Ladino) Women”
(January 31, Source:
2007). Press Release of Congressman Mike
(p. 12, Body of Honda, Rep. Honda Calls on Japan to
Apologize for World War II Exploitation
Vinuya)
of “Comfort Women,”
31 Jan. 2007, available at
http://www.house.go
v/list/press/ca15_honda/COMFORTWOM
EN.html
5. …The resolution The Resolution Resolved, That it is the sense of the House
also makes four was formally of Representatives that the Government of
passed on July Japan—
distinct demands: 30, 2007,33 and (1) should formally acknowledge,
[I]t is the sense of the House of Representatives that the Gov- made four apologize, and accept historical responsi-
distinct
demands:
[I]t is the sense
of the House of
Representatives
that the Gov-
143
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VOL. 642, FEBRUARY 8, 2011 143

ernment of Japan (1) should ernment of Japan bility in a
formally acknowledge, (1) should clear and
apologize, and accept historical formally unequivocal
responsibility in a clear and acknowledge, manner for its
unequivocal manner for its apologize, and Imperial
Imperial Armed Forces’ accept historical Armed Force’s
coercion of young women into responsibility in coercion of
sexual slavery, known to the a clear and young women
world as “comfort women,” unequivocal into sexual
during its colonial and wartime manner for its slavery,
occupation of Asia and the Imperial Armed known to the
Pacific Islands from the 1930s Forces’ coercion world as
through the duration of World of young women “comfort
War II; (2) would help to resolve into sexual women,”
recurring questions about the slavery, known to during its
sincerity and status of prior the world as colonial and
statements if the Prime Minister “comfort wartime
of Japan were to make such an women,” during occupation of
apology as a public statement in its colonial and Asia and the
his official capacity; (3) should wartime Pacific Islands
clearly occupation of from the
Asia and the 1930s through
Pacific Islands the duration of
from the 1930s World War II;
through the (2) should
duration of World have this
War II; (2) would official
help to resolve apology given
recurring as a public
questions about statement
the sincerity and presented by
status of prior the Prime
statements if the Minister of
Prime Minister of Japan in his
Japan were to official
make such an capacity;
apology as a (3) should
public statement clearly and
in his official publicly refute
capacity; (3) any claims
that the sexual
enslavement
and trafficking
of the
“comfort
women” for
the Japanese
Imperial
Armed Forces
never
occurred; and
(4) should
educate
current and
future
144


and publicly should clearly generations about this horrible crime
refute any claims and publicly while following the recommendations
that the sexual refute any claims of the international community with
enslavement and that the sexual respect to the “comfort women”.
trafficking of the enslavement and Source cited:
“comfort trafficking of the
women” for the “comfort H.R. Res. 121, 110th Cong. (2007)
Japanese women” for the (enacted), available at
Imperial Army Japanese http://www.gpo.gov/fdsys/pkg/BILLS-
never occurred; Imperial Army 110hres121ih/pdf/BILLS-
and (4) should never occurred; 110hres121ih.pdf (U.S.)
educate current and (4) should
and future educate current
generations about and future
this horrible generations about
crime while this horrible
following the crime while
recommendations following the
of the recommendations
international of the
community with international
respect to the community with
“comfort respect to the
women.”111 “comfort
111 H.R. Res.
women.”34
121, 110th Cong. 34 H.R. Res. 121,
(2007) (enacted). 110th Cong.
(p. 346 of (2007) (enacted).
Ladino) (p. 12, Body of
Vinuya)
6. In December In December A resolution on the ‘comfort women’
2007, the 2007, the (sex slaves) used by Japan in World
European European War II calls for a change of official
Parliament, the Parliament, the attitudes in modern-day
governing body governing body
of the European of the European
Union, drafted a Union, drafted a
resolution similar resolu-
145
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VOL. 642, FEBRUARY 8, 2011 145

to House Resolution tion similar to House Japan, a right for
121.130 … Entitled, Resolution 121.35 survivors or
“Justice for Comfort Entitled, “Justice for families to apply
Women,” the Comfort Women,” the for compensation
resolution demanded: resolution demanded: and measures to
(1) a formal (1) a formal educate people
acknowledgment of acknowledgment of about these
responsibility by the responsibility by the historical events
Japanese government; Japanese government; .…
(2) a removal of the (2) a removal of the
legal obstacles legal obstacles Call for formal
preventing preventing acknowledgment
compensation; and (3) compensation; and (3) of responsibility by
unabridged education unabridged education government
of the past.132 The of the past. The …
resolution also stresses resolution also stressed
the urgency with the urgency with Legal obstacles to
which Japan should act which Japan should act compensation must
on these issues, on these issues, be removed
stating: “the right of stating: “the right of …
individuals to claim individuals to claim
Education about
reparations against the reparations against the
the past
government should be government should be
expressly recognized expressly recognized …
in national law, and in national law, and Source cited:
cases for reparations cases for reparations
for the survivors of for the survivors of European
sexual slavery, as a sexual slavery, as a Parliament, Human
crime under crime under rights: Chad,
international law, international law, Women’s Rights in
should be prioritized, should be priori- Saudi Arabia,
taking into Japan’s Wartime
Sex Slaves, (17
Dec. 2007) avail‐
able at http://www.
europarl.europa.eu/
sides/getDoc.do?
lang
146


account the age of the survivors.”133… tized, taking into uage=EN&type=IM-
130European Parliament, Human rights: Chad, Women’s account the age of PRESS
Rights in Saudi Arabia, the survivors.” &reference=2
Japan’s Wartime Sex Slaves, Dec. 17, 2007, http:// 35 European 0071210BRI14
www.europarl.
europa.eu/sides/ Parliament, Human 639&
getDoc.do?language=EN&type=IM- rights: Chad, Women’s Rights in secondRef=ITEM-
PRESS&reference=20071210BRI14639&secondRef=ITEM- 008-EN
008-EN. Saudi Arabia, Japan’s Wartime Sex
Slaves, Dec. 17, 2007,
132 Id.
http://www.europarl.europa.eu/sides/
133 Id. get
Doc.do?language=
(p. 360 of Ladino)
EN&type=IM-PRESS&
reference=
20071210BRI14639
&secondRef=
ITEM-008-EN.
(p. 13, Body of
Vinuya)
7. The Canadian and Dutch parliaments have each followed The Canadian and Dutch
suit in drafting resolutions against Japan. Canada’s parliaments have each followed suit
resolution demands the Japanese government in drafting resolutions against Japan.
Canada’s resolution demands the
Japanese gov-
VOL. 642, FEBRUARY 8, 2011 1

VOL. 642, FEBRUARY 8, 2011 1

to issue a ernment to issue a formal Note:

formal apology, apology, to admit that its On the issue of comfort women, the website only refers to the
to admit that its Imperial Military coerced attitude and reaction of the following governments: Taiwan,
Imperial or forced hundreds of South Korea, North Korea, Philippines, China, Indonesia,
Military thousands of women into Malaysia, and Japan.
coerced or sexual slavery, and to
forced restore references in Source cited:
hundreds of Japanese textbooks to its http://taiwan.yam.org.tw/womenweb/conf_women/index_e.html
thousands of war crimes.36 The Dutch
women into parliament’s resolution
sexual slavery, calls for the Japanese
and to restore government to uphold the
references in 1993 declaration of
Japanese remorse made by Chief
textbooks to its Cabinet Secretary Yohei
war crimes.134 Kono.
The Dutch 36The Comfort Women--
parliament’s A History of
resolution Trauma,http:// taiwan.
simply calls for yam.org.tw/
the Japanese womenweb/conf_women/
government to index_e.html.
uphold the
1993 (p. 13, Body of Vinuya)
declaration of
remorse made
by Chief
Cabinet
Secretary Yohei
Kono.135
134 The
Comfort
Women--A
History of
Trauma,http://
taiwan.yam.org.
tw/womenweb/
conf_women/
index_e.html.
(last visited
Mar. 26, 2009).
134 Id.
(p. 360 of
Ladino)
148


Violations of Rules Against Plagiarism in the Vinuya Decision

Below are violations of existing rules against plagiarism as can
be found in the Vinuya Decision, in addition to violations earlier
enumerated in my Dissent:
A.1 A passage from the article of Criddle and Fox-Decent was
copied verbatim, including the footnote. There are no quotation
marks to indicate that this important conclusion from the article and
the example to illustrate it, which were discussed in the
corresponding footnote, are not the ponente’s own. No attribution to
Criddle and Fox-Decent was made.
A.2 Similar to A.1, Criddle and Fox-Decent’s conclusion was
copied word for word, including the corresponding footnote, which
was enclosed by parentheses and placed immediately after the
sentence to which it corresponds. No attribution to Criddle and Fox-
Decent was made.
A.3 Similar to A.1 and A.2, this sentence from the article was
copied verbatim, including its corresponding footnote. No
attribution to Criddle and Fox-Decent was made.
B.1 Save for a few words which were intentionally rearranged, the
entire paragraph was lifted verbatim from Ellis’s discussion on rape
as an international crime. Two citations of cases from Ellis were
omitted. No attribution to Ellis was made.
B.2 Ellis’s identification of Article 3 of the 1949 Geneva
Conventions as a general authority on rape as a violation of the laws
of war, and his summation thereof, was lifted word for word. His
footnote was also copied, including the intratext reference “supra
note 23,” enclosed in parentheses and inserted after the
corresponding text. No attribution to Ellis was made.
B.3 Ellis’s summary and analysis of Article 27 of the Fourth
Geneva Convention was lifted word for word. No attribution to Ellis
was made.
149
VOL. 642, FEBRUARY 8, 2011 149
VOL. 642, FEBRUARY 8, 2011 149

B.4 Ellis’s conclusion regarding Protocol I of the Geneva

Convention was appropriated, without any attribution to Ellis. Ellis’s
footnote was again copied. No attribution to Ellis was made.
C.1 McCorquodale’s analysis of individual claims within the
international legal system was copied word for word and inserted
after the introductory clause “In the international sphere” in Vinuya.
The footnote McCorquodale appended to his analysis of individual
claims (i.e. the sentences copied in C.1.) is not present. No
attribution to McCorquodale was made.
C.2 This item refers to the footnote attached to the copied sentence
in C.1. It is composed of two instances of copying stitched together:
two sentences of McCorquodale, taken from the paragraph directly
preceding his analysis of individual claims in the international legal
system, and the footnote corresponding to the PCIJ Decision quoted
in the second of the said two sentences. No attribution to
McCorquodale was made.
C.3 The conclusion Okowa reached was copied in footnote 63 of
Vinuya, but Okowa’s reference to the cases she cited in her analysis
was omitted and the context of her conclusion (on the current
standing of general international law with regard an enforceable
legal duty of diplomatic protection) was removed. No attribution to
Okowa was made.
C.4 McCorquodale’s discussion of the case Abassi v. Secretary of
State was copied without any citation of his essay or the
international law book in which it was published. No attribution to
McCorquodale was made.
C.5 The order of sentences were reversed, but the conclusion in
Okowa’s essay was copied, and as well as her discussion of the case
Kaunda v. President of the Republic of South Africa. No attribution
to Okowa was made.
D.1 Albornoz’s summary and analysis was copied word for word
in the body of the Decision on page 24. No indication
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was given that this was not the ponente’s original analysis, and no
attribution to Albornoz was made.
D.2 The elucidation of Albornoz regarding what she calls the
traditional view on the discretion of states in the exercise of
diplomatic protection was copied into footnote 57 of the Vinuya
Decision. Albornoz’s citation of Borchard was used as a reference in
the same footnote, but Albornoz was bypassed completely.
D.3 Albornoz’s summation of the ILC’s First Reading Draft
Articles on diplomatic protection was copied with some
modifications: the second half of the first sentence from Albornoz
was removed and instead replaced with “fully support this
traditional view” in an apparent effort to link this summary to the
previous instance of copying (table entry D.2.). Minor edits were
made to Albornoz’s summary to streamline the flow of the second
copied sentence. No attribution to Albornoz was made.
D.4 Albornoz’s summation of Dugard’s proposal was lifted word
for word and used in footnote 62 of Vinuya. The footnote Albornoz
attached to this summation, a quotation of Albornoz’s cited source,
was inserted directly after the copied summation. No attribution to
Albornoz was made.
D.5 The conclusion reached by Albornoz regarding the rejection
of Dugard’s proposal was copied exactly, even with regard to the
portions of the Official Records of the General Assembly that
Albornoz quoted. No attribution to Albornoz was made.
D.6 The major part of a sentence from Albornoz was copied and
attached to the transition phrase “In addition” to continue the
pastiche of copied sentences in footnote 62 of Vinuya. The footnote
of Albornoz regarding Dugard was inserted immediately after and
enclosed in parentheses. Note that the inline text citation, “supra
note 13, par. 80” in Albornoz’s footnote 130 was copied as well. No
attribution to Albornoz was made.
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D.7 Continuing from the instance of copying in D.6., the second

half of a sentence in Albornoz was used as what is apparently an
incomplete sentence (beginning with:”, but their enforceability...”) in
footnote 62 of Vinuya. The next sentence was also copied, and its
corresponding footnote enclosed in parentheses and inserted
immediately after it. While the Decision cites one of the same
sources Albornoz cited (ILC First Reading Draft Articles on
Diplomatic Protection), no attribution is made to Albornoz for the
excerpt, or to Dugard, whom Albornoz cited for the quoted portion.
E.1 An excerpt from the third paragraph of Prochaska is
reproduced verbatim in footnote 62 of page 26 of the Decision.
There were no quotation marks or attribution to Prochaska to
indicate that such was not the ponente’s analysis, but Prochaska’s.
F.1 A sentence from paragraph 11 of Niksch was reproduced
verbatim without quotation marks in page 17 of the body of the
Decision. No attribution to Niksch was made.
F.2 An excerpt from paragraph 12 of Niksch was reproduced
F.3 An excerpt from paragraph 19 of Niksch was reproduced
G.1 An excerpt from page 344 of Ladino was reproduced without
quotation marks in pages 9 to 10 of the body of the Decision. The
phrase “women who had filed” was changed to “comfort women.”
G.2 An excerpt from page 345 of Ladino was reproduced without
quotation marks in page 12 of the body of the Decision. The two
sentences in the footnote from Ladino were combined, but the words
were reproduced verbatim.
G.3 An excerpt from page 345 of Ladino is reproduced verbatim
in page 12 of the body of the Decision. Part of Ladino’s
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discussion was reproduced verbatim in footnote 32 of the Vinuya

Decision, with no attribution to Ladino.
G.4 The first part of the paragraph in page 345 of Ladino was
reproduced verbatim. However, the latter part of Ladino’s
explanation, (stating that while the judgment against Japan was not
legally binding, it still “cast Japan in the shadow of moral reproach”)
was omitted. There was no attribution to Ladino.
G.5 An excerpt from page 346 of Ladino, along with two
footnotes, was reproduced verbatim in page 12 of the Decision. No
attribution to Ladino was made.
G.6 Ladino’s discussion in page 350 and the corresponding
footnotes were reproduced verbatim in page 13 of the Decision. No
attribution to Ladino was made.
B. The Process of the Commission of Plagiarism in the Vinuya
Decision
A careful reading of the Vinuya Decision reveals that it is unlike
other decisions issued by this Court, except perhaps for the case of
Ang Ladlad LGBT Party v. Commission on Elections, which Justice
del Castillo likewise penned. The footnotes in Vinuya read like those
found in theses of international law scholars, where one discursive
footnote can be so extensive as to occupy three-fourths of a page
(see footnotes 62, 63, and 65). An honest researcher for a Philippine
judge, after painstakingly developing a perspective on an
international legal issue by reading the works of scholars who have
documented the debate, would deliberately refer to the works of
such scholars, and not transform their works into his own.
Justice del Castillo’s researcher not only contends that accidental
deletion is the sole reason for the missing footnotes, but also that
their office subsequently went over the Decision “sentence by
sentence” and concluded that no plagiarism was committed at all.
However, the rearrangement of the sentences lifted from the original
work, the mimicking of the
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original work’s use of footnotes, the subsequent back and forth
copying and pasting of such footnotes—these acts belie mere
negligence. The following analysis shows objective plagiarism
viewed through three lenses: extent, deliberateness, and effect.
The massiveness and frequency with which instances of
unattributed copying occur in Vinuya highlight the extent of the
plagiarism. Clever transpositions of excerpts to make them flow
according to the researcher’s transition phrases are clearly devices of
a practiced plagiarist, which betray the deliberateness of every
single act. The plagiarism in Vinuya will also be scrutinized on the
basis of its effect, especially in light of its commission in a judicial
decision. The rationale for such a thematic presentation will then be
discussed in a succeeding section, which deals with evaluating
plagiarism.
1. The extent of unattributed copying belies inadvertence.
In the tables outlined above, as well as in the analysis in my
Dissent dated 12 October 2010, it can be seen that the researcher of
Justice del Castillo failed to make the necessary attribution twenty-
three (23) times in the body of the Vinuya Decision; the works
whose texts were used without attribution include several
copyrighted journal articles, essays from a book on international law,
and one congressional report of the United States. There were thirty-
six (36) missing citations in the footnotes, including twelve (12)
citations missing from footnote 65 alone. This adds up to a total of
fifty-nine (59) missing citations. The sheer number of missing
citations is related to the length and volume of the footnotes and
discussions, some of which Justice del Castillo himself admitted to
be unnecessary.
The quantity of text copied without attribution is most
concentrated in pages 12 to 13, which deal with actions taken in the
pursuit of justice for the comfort women, and in pages 24 to 32,
which appear under the section heading The Philip-
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pines is not under any international obligation to espouse

petitioners’ claims. In the latter section, the discussion and analysis
appearing on pages 24 (insofar as the section after the start of the
international law discussion is concerned), 28 and 31 in particular
would be significantly impaired were the unattributed portions of
texts to be removed: there would be no words left in the instance of
page 24; the entirety of the discursive footnote on page 28 would be
reduced to one sentence and its attendant citations; three sentence
fragments, and no footnotes, would remain on page 31.
In pages 24 to 32, out of a total of thirteen (13) discursive
footnotes, eleven (11) of these are comprised wholly of material
copied without attribution, and yet another one—footnote 69—
contains text that was copied without attribution as well. The writer
of the Vinuya Decision displayed meticulous attention to detail in
reproducing the citations to international judicial decisions,
publications, and other such references in these footnotes—citations
that originally appeared in the copied works—but completely
bypassed the copied works themselves, thereby appropriating the
analysis, processing, and synthesizing of information, as well as the
words, of the writers whose works were copied.
On its face, the sheer volume of portions copied, added to the
frequency with which citations to the plagiarized works were
omitted while care was taken to retain citations to the sources cited
by the plagiarized works, reveal that the plagiarism committed
cannot logically be anything other than deliberate.
2. Systematic commission of plagiarism demonstrates
deliberateness.
In pages twelve (12) to thirteen (13) of Vinuya, sentences from
the body of Ladino’s article were interspersed with Ladino’s
footnotes, without a single attribution to Ladino (please refer to
Table G). Sentences from Ladino’s article were copied into footnote
32 of Vinuya, while the immediately succeeding
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sentence was again copied to form part of the body of Vinuya. The
cutting of sentences from Ladino’s work and the patching together
of these pieces to form a mishmash of sentences negate the defense
of inadvertence, and give the reader the impression that the freshly
crafted argument was an original creation.
The work of Criddle and Fox-Decent was subjected to a similar
process. This process is dissected in the following list of instances
ordered according to how they appear in pages 31 to 32 of the body
of the Decision:
a. Detailed analysis of ‘patchwork plagiarism’ in the body of
Vinuya, pp. 31-32:
1. Page 31, par. 2: Early strains of the jus cogens doctrine have
existed since the 1700s,[71] 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.[72]
[72] Verdross argued that certain discrete rules of international

custom had come to be recognized as having a compulsory character
notwithstanding contrary state agreements. At first, Verdross’s vision
of international jus cogens encountered skepticism within the legal
academy. These voices of resistance soon found themselves in the
minority, however, as the jus cogens concept gained enhanced
recognition and credibility following the Second World War. (See
Lauri Hannikainen, Peremptory Norms (Jus cogens) in International
Law: Historical Development, Criteria, Present Status 150 (1988)
(surveying legal scholarship during the period 1945-69 and reporting
that “about eighty per cent [of scholars] held the opinion that there
are peremptory norms existing in international law”).
This sentence, together with footnote 72 in Vinuya, is part of
one continuous discussion by Criddle and Fox Decent, and
copied verbatim. The two authors rightfully attributed the
historical data to Lauri Hannikainen, but the conclusion on
established jus cogens principles is wholly their own.
156

2. Page 31, par. 2: The recognition of jus cogens gained even

more force in the 1950s and 1960s with the ILC’s preparation of
the Vienna Convention on the Law of Treaties (VCLT).[73]
Though there was a consensus that certain international norms
had attained the status of jus cogens…[74]
The first sentence and its subsequent clause are lifted
verbatim from the article. Footnotes 73 and 74 are Criddle
and Fox-Decent’s analysis of how international “minimum
requirements” form evidence of jus cogens. The paragraph
was broken down, then rearranged in Vinuya.
3. Page 31, par. 2: Though there was a consensus that
certain international norms had attained the status of
jus cogens,[74] the ILC was unable to reach a
consensus on the proper criteria for identifying
peremptory norms.
Aside from copying the first clause in the sentence, which
forms part of the premise, the conclusion of Criddle and Fox-
Decent was likewise copied.
4. Page 32, par. 1: 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.”[75]
After copying the sentence and footnote in No. 4 above, three
sentences were omitted from the article, then this sentence in
No. 5 was also copied. In the body of the work, the two
sentences immediately following this statement pertaining to
the conclusion of the International Law Commission were
again omitted.
5. Page 32, par. 1: 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
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worked out in State practice and in the jurisprudence of international

tribunals.”[76]
This sentence was conjoined with the sentence above;
footnotes 75 and 76 were also copied. The net effect is that
this paragraph was spliced together, sentence by sentence,
from Criddle and Fox-Decent’s work.
A similar method of splicing was used extensively in the
footnotes of the Decision as well. It is most evident in footnote 65,
the longest discursive footnote in Vinuya. This portion copied
heavily from the article of Dr. Mark Ellis entitled “Breaking the
Silence: Rape as an International Crime.” To illustrate, the first
paragraph of footnote 65 is broken down and scrutinized by
sentence, following the original sequence in the Decision.
b. Detailed analysis of ‘patchwork plagiarism’ in paragraph 1,
footnote 65 of Vinuya:
1. Sentences 1 and 2: 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.
These are the opening sentences from the second paragraph
on page 227 of the journal article. Ellis cites the treaty
between the United States and Prussia as his own example, in
a footnote. In Vinuya, this particular citation is copied,
enclosed in parentheses, and became the sixth and seventh
sentences of footnote 65.
2. Sentence 3: But modern-day sensitivity to the crime of rape
did not emerge until after World War II.
This is the sixth sentence in the same paragraph in Ellis’
article as discussed above. It is transposed verbatim, and
became the second sentence in Vinuya.
3. Sentences 4 and 5: In the Nuremberg Charter, the word rape
was not mentioned. The article on crimes
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against humanity explicitly set forth prohibited acts,

but rape was not mentioned by name.
The clauses “After World War II, when the Allies established
the Nuremberg Charter…” was deleted. This particular
sentence is Ellis’ own conclusion regarding the “Agreement
for the Prosecution and Punishment of the Major War
Criminals of the European Axis,” but there was no attribution
to Ellis, only a citation of the agreement, along with Ellis’s
other footnotes, at the end of the paragraph.
4. Sentences 6 and 7: (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.
This is the citation originally corresponding to the first and
second sentences on page 227 of Ellis’s article. This portion
was copied in Vinuya, this time placed at the end of the
paragraph and enclosed in parentheses.
5. Sentence 8: The 1863 Lieber Instructions classified rape as a
crime of “troop discipline.”
Originally the second sentence in Ellis’s paragraph, this was
transposed to the eighth. Its corresponding footnote in Ellis
was lifted verbatim, enclosed in parentheses, then inserted
into the paragraph in Vinuya, as the ninth sentence:
“(Mitchell, The Prohibition of Rape in International
Humanitarian Law as a Norm of Jus cogens: Clarifying the
Doctrine, 15 Duke J. Comp. Int’l. L. 219, 224).”
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6. Sentence 10: It specified rape as a capital crime punishable by

the death penalty.
Originally the fourth sentence in Ellis’ article, this was
transposed, and its corresponding footnote was copied: “(Id.
at 236).”
7. Sentence 11: The 1907 Hague Convention protected women
by requiring the protection of their “honour.”
The sentence was copied, and its corresponding footnote was
lifted verbatim, enclosed in parentheses, and placed at the end
of the paragraph. Ellis’s attribution to the Yale Law website
where the pertinent law may be found was omitted, leaving
only the following: (“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 Nürnberg Tribunal”;
General Assembly document A/64/Add.1 of 1946.”
8. Sentence 13: 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.
This is originally Ellis’s citation, used to support his
observation that there was no express mention of “rape” in
the Nuremberg Charter. It was enclosed in parentheses and
relegated to the end of the paragraph in Vinuya.
9. Sentence 14: Article 6(c) of the Charter established crimes
against humanity as the following:
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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.
This was lifted from page 227 of Ellis’s work. Pages 227
to 228 of the said work, pertaining to the discussion on
rape were substantially copied. Insertions were made
for Ellis’s own footnotes.
The conscious thought required for the act of cutting and pasting
the original author’s footnotes onto the precise spot where the
copied sentences ended contradicts the account of inadvertence.
There is consistent correspondence between the sentences copied to
the footnote copied. In the example above, the act of encapsulating
Ellis’ footnotes in parentheses show further that in Vinuya there was
a conscious appropriation of Ellis’s sources in a usage that is
substantially similar to what appears in his article. This allegedly
inadvertent copying of Ellis’s footnotes occurred no less than twelve
(12) times in footnote 65 alone.
3. Research steps purportedly followed in the drafting of Vinuya
cast doubt on inadvertence.
The following is a recreation of the step-by-step research
procedure followed by many offices in the research and crafting of
judicial decisions. It is based on the account given by the researcher
of the Vinuya Decision of her own experiences while working on the
case. This detailed breakdown is made in order to show the exact
number of actions which must be made in order to input a citation, if
indeed it was intentionally inputted. A recreation of the steps
necessary to delete a citation is also made to show that the aggregate
number of actions needed to erase each and every citation missing in
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Vinuya is so high that the underlying cause could not have been
mere inadvertence.
Step 1:
a. First, using an internet-based search engine, which could be a
free search service like Google’s, or a paid service like
Westlaw’s, the researcher would have typed in key phrases like
“erga omnes,” “sexual slavery,” or other such terms relevant to
the subject matter.
b. For some researchers, this is just a preliminary step, as they
would then pick and choose which articles to read and which to
discard. The researcher in Vinuya, however, claimed that she
purposely read all the materials available through this search.8
Step 2:
a. The search engine would have generated a list of documents
containing the search terms and topics relevant to the subject
matter. The search engine would also have linked the items on
this list to the corresponding online locations where these
documents may be accessed.
b. In Vinuya, the researcher used the Westlaw legal research
service (which is made available to offices of all the Justices),
and perused the generated list.9 A possi-
_______________
8 “So in the process, my practice, which may not be shared by other researchers,
my own practice as to doing research for decisions is to basically review all the
material that is available insofar as I can. So I review everything, I take notes, I do my
own research and then after one has reviewed as much as I am able to, then one starts
writing.” TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on
Ethics and Ethical Standards.
9 “So what happens, Your Honors, is basically, one does an initial review, sorry, I
do an initial review on this…all of these goes for the most articles, Law Journal
articles. So one does initial review on
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ble item on this list would be the article entitled “Breaking the
Silence: Rape as an International Crime,” by one of the
complaining authors, Dr. Mark Ellis.
Step 3:
The researcher would read articles from the generated list and
identify the portions she planned to incorporate into the draft. For
this example, she would have scrolled through the work of Mark
Ellis and found the selection she wanted. The level of scrutiny
invested into each of the chosen articles would vary; some
researchers make cursory readings and incorporate as many
portions from different works and authors as they can.
Step 4:
a. The researcher can either save the articles in their entirety, or
save the selections in one document. The researcher in Vinuya
claimed that she did the latter and used the Microsoft Word
program for this purpose.
b. If the researcher chose to save only pertinent selections, then
ideally the attributions would have to be made at his point.
Now, this step is critical. I know of no software in the world,
especially not Microsoft Word, that will generate the citation to the
work of Ellis on its own, without the appropriate action
_______________
these articles and if there is an article that immediately strikes one as relevant or as
important or as useful in the course of writing a decision, you can click on it, the blue
portion, you can click on this and the article will actually appear. And then you can
read the whole article, you can skim through the article, if again it seems relevant, it’s
possible to e-mail the article to yourself, which makes it easier because…so at least I
have, for instance, all of the articles available like in my home.” TSN at 28, Hearing
of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
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of the user. An honest researcher would immediately copy and paste

the citation references of Ellis into the copied portions, or type a
reference or label in, even if it were only a short form placeholder of
the proper citation. If she did neither, she may be sloppy,
incompetent or downright dishonest.
During the deliberations of the Ethics Committee, the researcher
explained this crucial step: “So I would cut and paste relevant
portions, at least portions which I find relevant into what turns out to
be a large manuscript which I can then whittle and edit and edit
further.”10 Adhering to this account, there would be an additional
step in the process:
Step 5:
If an existing draft or “manuscript” has already been created,
the next step would be to incorporate the selections from the
articles into the draft. This is a second opportunity to ensure
that the proper attributions are made. If the researcher is
diligent, she would already have tried to follow the correct
form as prescribed by the Manual of Judicial Writing.11
If a “manuscript” or outline has already been formulated, then
incorporating the selections would require her to be conscious that
these ideas and arguments are not her own. The process ideally
alerts any researcher that extraneous sources are being added. It
allows her to make the following considerations: Does this portion
sufficiently discuss the historical context of a particular conclusion?
Do I need this literature as support for my arguments? Am I
including it to support my arguments, or merely to mimic the
author’s? Corollarily, the researcher would initially assess if such
argument made by the author is adequately supported as well. She
would check the author’s footnotes. In Vinuya, the copying of
_______________
10 TSN at 29, Hearing of 26 August 2010, Deliberations of the Committee on

Ethics and Ethical Standards.
11 Approved by the court en banc on 15 November 2005.
164


the footnotes was so extensive, such that it practically used the

uncited works as blueprint for the Decision’s footnotes.
4. The frequency of instances of missing citations and actions
required for deletion betray deliberateness.
To purposefully input citations would require many key strokes
and movements of the computer’s “mouse.” If the attributions had
indeed been made already, then the deletions of such attributions
would not simply happen without a specific sequence of key strokes
and mouse movements. The researcher testified that the necessary
attributions were made in the earlier drafts, but that in the process of
cutting and pasting the various paragraphs, they were accidentally
dropped. She makes it sound as if something like a long reference
citation can just easily fall by the wayside. Not so.
The reference required under the Manual of Judicial Writing for
the work of Ellis reads like this: “Mark Ellis, Breaking the Silence:
Rape as an International Crime, 38 Case W. Res. J. Int’l L. 225
(2006-2007).”
The researcher in Vinuya explained that footnotes were deleted
along with headings of certain portions, and with the deletion of the
note reference mark in the body of the text, the citations in the
document’s footers disappeared also. For this scenario to happen
with the same frequency as the number of missing citations, the
following steps must have been followed:
1. First movement: Using hand and eye coordination, consciously
move cursor to the location of target footnote and/or heading, using
either the mouse or arrow keys.
2. Second movement: Select the “note reference mark” by
highlighting the target footnote number. Note that unlike in normal
characters or texts wherein a single press of the “delete” or
“backspace” button would suffice, a footnote number must be
highlighted before it can be deleted. This means that either the
particular footnote and/or heading must have been “double-clicked”
or it must have been
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specifically highlighted by a precise horizontal motion of the cursor

while pressing on a mouse button—both of which require two
movements (either two “clicks,” or a “click” and a “swipe”).
3. Third movement: Press “delete” or “backspace” key.
Note that in the case wherein the note reference mark was not
highlighted by a mouse movement, the “delete” or “backspace” key
must have been pressed twice, as pressing it only once will merely
highlight the note reference mark without deleting the same.
Hence, even accommodating the explanation given by the
researcher, at least four movements must have been accomplished to
delete one footnote or reference. Multiply this with the number of
references that were “dropped” or “missing,” and you have a
situation wherein the researcher accomplished no less than two
hundred thirty-six (236) deliberate steps to be able to drop the fifty-
nine (59) citations that are missing in Vinuya. If by some chance the
cursor happened to be at the precise location of the citations, and the
citations were subsequently deleted by an accidental click of the
mouse, this would still have necessitated a total of one hundred
seventy seven (177) clicks. It is understandable if a researcher
accidentally deleted one, two or even five footnotes. That a total of
59 footnotes were erased by mere accident is inconceivable.
To make a conservative estimate, we can deduct the number of
times that a footnote number in the body of the Decision could
simply have been deleted inadvertently. Our analysis indicates that
this could have happened a third of the time, or an estimate of
twenty times, when short footnotes containing “supra” or “id.”
could have been easily forgotten or omitted. This would still have
yielded sixty deliberate steps or movements, and would alert the
researcher either that: 1) too much of the body comprises ideas
which are not his own, or 2) too many of the sources in his “main
manuscript” were getting lost. Subsequently, if more than half of the
attributions in the
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International Law discussion went missing, the simple recourse

would have been either to review his or her first draft, or simply
delete his lengthy discursive footnotes precisely because he cannot
remember which articles he might have lifted them from.
On Microsoft Word features that alert the user to discrepancies in
footnote deletions
The researcher took pains to deliberately cut and paste the
original sources of the author, thereby making it appear that she was
the one who collated and processed this material. What she should
have done was simply to cite the author from whom she took the
analysis and summarization of the said sources in the first place. The
latter would have been the simple, straightforward, not to mention
honest path. Instead, the effect is that the Vinuya Decision also
appropriated the author’s analysis. Actually, it would have been
easier to cite the author’s copied work considering the availability of
short citation forms commonly used as reference tools in legal
articles such as “supra” or “id.”
Microsoft Word may not have an automatic alarm each time a
footnote or citation is deleted, but it does contain built-in features to
help raise “red flags” to signal that a particular passage was copied,
or is attached to a particular citation—if indeed such citation exists.
For example, the researcher in Vinuya, in describing her own process
of drafting the Decision, stated that portions containing footnotes
from the first Vinuya draft were lifted and transformed into the
contents of a separate footnote. In short, during revisions of the
draft, substantial footnoted portions which used to be in the body
were relegated to footnotes. This does not result, however, in the
automatic erasure of the original footnotes within the new footnote.
A simple recreation of this process reveals that this “footnote within
a footnote” retains a number symbol in superscript, albeit one
altered due to the redundancy in the functionality of “footnotes
within footnotes.” Any reasonably
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prudent researcher would thus be alerted to the fact that something
was amiss with the citations in that particular selection because the
footnote would have abnormal numeric superscripts. This glaring
abnormality in itself is a warning.
Another notable feature is that when a cursor, as seen on the
screen in an open document, is placed over a footnote reference
mark, Microsoft Word automatically supplies that footnote’s citation
in a popup text box. The popup box hovers over the numerical
superscript, unmistakably indicating the source.12 In addition, no
single action can cause a footnote to be deleted; once the cursor is
beside it, either the “delete” or “backspace” key must be pressed
twice, or it must be deliberately highlighted and then erased with a
stroke of either the “delete” or the “backspace” key. This
functionality of footnote deletion in Microsoft Word thus decreases
the likelihood of footnotes being deleted without the knowledge or
intention of the researcher.
As to the claim of the researcher that the footnotes in the
headings were accidentally deleted, there was a failure on the part of
the Ethics Committee to thoroughly investigate the matter when they
relied on a presentation of what, according to the researcher,
happened during her research for and drafting of the Vinuya
Decision. Instead of asking her to re-create the various situations of
“inadvertent dropping,” the Ethics Committee satisfied itself with a
“before” and “after” Microsoft PowerPoint presentation which could
not, by any stretch of the imagination, have recreated the whole
process of researching and drafting that happened in Vinuya unless
every step were to be frozen through screenshots using the “Print
Screen” command in tandem with a common image management
program. To simply present the “before” and “after”
_______________
12 A case in which the popup text box would not appear is that in which a block of
text containing the note reference mark is selected; the popup text box will only
appear if the cursor is hovered near the note reference mark.
168


scenario through PowerPoint has no bearing on the reality of what

happened. Had the Ethics Committee required that the presentation
made before them be through recreation of the drafting process
using Microsoft Word alone, without “priming the audience”
through a “before” and “after” PowerPoint presentation, they would
have seen the footnotes themselves behaving strangely, alerting the
researcher that something was seriously wrong. The Committee
would then have found incredible the claim that the accidental
deletion of a footnote mark attached to a heading—and the
subsequent transposition of text under that heading to another
footnote—could have occurred without the researcher being
reminded that the text itself came from another source. Proof of
deliberate action is found in the Vinuya Decision itself—the care
with which the researcher included citations of the sources to which
the authors of the copied works referred, while conveniently
neglecting attribution to the copied works themselves.
It is therefore impossible to conclude that such gross plagiarism,
consisting of failure to attribute to nine (9) copyrighted works, could
have been the result of anything other than failure to observe the
requirements of the standard of conduct demanded of a legal
researcher. There is also no basis to conclude that there was no
failure on the part of Justice del Castillo to meet the standard of
supervision over his law clerk required of incumbent judges.
III. On Evaluating Plagiarism
A. Posner’s Standards for Evaluating the Characterization of
Incidents of Plagiarism
To be generous to my colleagues in this part of my analysis, I
have referred to one of the scholars who hold the most liberal views
on plagiarism, Judge Richard A. Posner. The three guideposts by
which I structured my technical analysis of the instances of
plagiarism in the Vinuya Decision come from his breakdown of
certain key issues in his work, The Little Book
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of Plagiarism. In his “cook’s tour” of the key issues surrounding

plagiarism, wherein he is more liberal than most academics in
speaking of the sanctions the act may merit—he is against the
criminalization of plagiarism, for instance, and believes it an act
more suited to informal sanctions13—Judge Posner characterizes
plagiarism thus:
Plagiarism is a species of intellectual fraud. It consists of unauthorized

copying that the copier claims (whether explicitly or implicitly, and whether
deliberately or carelessly) is original with him and the claim causes the
copier’s audience to behave otherwise than it would if it knew the truth.
This change in behavior, as when it takes the form of readers’ buying the
copier’s book under the misapprehension that it is original, can harm both
the person who is copied and the competitors of the copier. But there can be
plagiarism without publication, as in the case of student plagiarism. The
fraud is directed in the first instance at the teacher (assuming that the student
bought rather than stole the paper that he copied). But its principal victims
are the plagiarist’s student competitors, who are analogous to authors who
compete with a plagiarist.14
Posner then goes on to neatly sum up, in the form of three

“keys,” major considerations that need to be taken into account
when evaluating an occurrence of plagiarism. His book’s last
paragraph reads:
In the course of my cook’s tour of the principal issues that have to be

addressed in order to form a thoughtful response to plagiarism in modern
America, I have challenged its definition as “literary theft” and in its place
emphasized reliance, detectability, and the extent of the market for
expressive works as keys to defining plagiarism and calibrating the
different types of plagiarism by their gravity. I have emphasized the
variety of plagiarisms, argued for the adequacy of the existing, informal
sanctions, pointed out that the “fair use” doctrine of copyright law should
not protect a plagiarist, noted the analogy between plagiarism and trademark
_______________
13 R A. P ,T L B P m, 38 (2007).
14 Id., at p. 106.
170


infringement (a clue to the entwinement of the modern concept of

plagiarism with market values)–and warned would-be plagiarists that the
continuing advance of digitization may soon trip them up.” (Emphasis
supplied.)
It is in this spirit that the three questions—of extent, an analogue

of reliance, as extensive plagiarism correlates to the reliance of the
text on the copied work; deliberateness; and effect, an analogue of
what Posner called “extent of the market for expressive works,”
used here in the context of the effect of plagiarism in the Vinuya
Decision—were put to the text being scrutinized. The first two
questions have been discussed in preceding sections. To examine the
effect, one must first make the distinction between the effect of
copying a copyrighted work without attribution, and between the
effect of copying without attribution a work in the public domain.
Using these three guideposts, we can them come to a conclusion
whether the plagiarism is relatively harmless and light or something
severe and harmful. In the case of the Vinuya Decision, we have
come to conclude that the plagiarism is severe; and because judicial
decisions are valuable to the Philippine legal system, that the
plagiarism harms this institution as well.
1. The distinction between the effect of appropriating
copyrighted works and works in the public domain
The infringement of copyright necessitates a framework for
characterizing the expression of ideas as property. It thus turns on a
question of whether there exists resultant harm in a form which is
economically quantifiable. Plagiarism, on the other hand, covers a
much wider range of acts. In defining copyright infringement,
Laurie Stearns points out how it is an offense independent from
plagiarism, so that an action for violation of copyright—which may
take on either a criminal and a civil aspect, or even both—does not
sufficiently remedy the broader injury inherent in plagiarism.
“Plagiarism is not necessarily copyright infringement, nor is copyright

infringement necessarily plagiarism…In some ways the
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concept of plagiarism is broader than infringement, in that it can include the
copying of ideas, or of expression not protected by copyright, that would not
constitute infringement, and it can include the copying of small amounts of
material that copyright law would disregard.15
Plagiarism, with its lack of attribution, severs the connection between the
original author’s name and the work. A plagiarist, by falsely claiming
authorship of someone else’s material, directly assaults the author’s interest
in receiving credit. In contrast, attribution is largely irrelevant to a claim of
copyright infringement… infringement can occur even when a work is
properly attributed if the copying is not authorized–for example, a pirated
edition of a book produced by someone who does not own the publication
rights.”16
The recognition of plagiarism as an offense that can stand

independently of copyright infringement allows a recognition that
acts of plagiarism are subject to reproof irrespective of whether the
work is copyrighted or not. In any case, the scenario presented
before the Court is an administrative matter and deals with
plagiarism, not infringement of copyright.
2. On judicial plagiarism and the sanctions therefor
The majority Resolution quotes from the Judicial Opinion
Writing Handbook written by Joyce George—which I cited in my
earlier Dissent—thusly:
“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:
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
_______________
15 Laurie Stearns, Copy Wrong: Plagiarism, Property, and the Law, 80 C . L. R . 513,
518 (1992).
16 Id., at p. 522.
172


law review article, novel thoughts published in a legal periodical

or language from a party’s brief are used without giving
attribution. Thus judges are free to use whatever sources they
deem appropriate to resolve the matter before them, without fear
or reprisal. This exemption applies to judicial writings intended
to decide cases for two reasons: the judge is not writing a literary
work and, more importantly, the purpose of the writing is to
resolve a dispute. As a result, judges adjudicating cases are not
subject to a claim of legal plagiarism.”
The use of this excerpt to justify the wholesale lifting of others’

words without attribution as an “implicit right” is a serious
misinterpretation of the discussion from which the excerpt was
taken. George wrote the above-quoted passage in the context of a
nuanced analysis of possible sanctions for judicial plagiarism, not in
the context of the existence of plagiarism in judicial opinions. (I had
candidly disclosed the existence of this liberal view even in my 12
October 2010 Dissent.) The sections preceding the text from which
this passage was taken are, in fact, discussions of the following:
ethical issues involving plagiarism in judicial writing, with regard to
both the act of copying the work of another and the implications of
plagiarism on the act of adjudication; types of judicial plagiarism,
the means by which they may be committed, and the venues in and
through which they can occur; and recent cases of judicial
plagiarism.
In no wise does George imply that the judicial function
confers upon judges the implicit right to use the writing of
others without attribution. Neither does George conflate the
possible lack of sanctions for plagiarism with the issue of
whether a determination of judicial plagiarism can be made.
Rather, George is careful to make the distinction between the issue
of whether judicial plagiarism was committed and the issue of
whether a sanction can be imposed for an act of judicial plagiarism.
In
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George’s terminology, the latter issue may also be framed as a

question of whether judicial plagiarism is “subject to a claim of legal
[that is, actionable] plagiarism,” and it has no bearing whatsoever on
the former issue. Thus, George writes:
“The intentional representation of another person’s words, thoughts, or

ideas as one’s own without giving attribution is plagiarism. “Judicial
plagiarism” is the copying of words or ideas first written down by another
judge, advocate, legal writer or commentator without giving credit to the
originator of that work. It can include such things as a judge’s copying of
another’s judges opinion, the adoption verbatim of an advocate’s findings of
fact and conclusions of law, the wholesale adoption of an advocate’s brief,
or the copying of a portion of a law review article and representing it as the
judge’s own thoughts. The lack of attribution makes this activity “judicial
plagiarism,” but without legal sanctions.”17
Indeed, my previous Dissent stated that inasmuch as sanctions

for judicial plagiarism are concerned, “there is no strictly prevailing
consensus regarding the need or obligation to impose sanctions on
judges who have committed judicial plagiarism.” Yet the absence of
a definite answer to the question of liability does not grant judges
carte blanche to use the work of others without attribution, willy-
nilly, in their judicial opinions. As George puts it, “the judge is
ethically bound to give proper credit to law review articles, novel
thoughts published in legal periodicals, newly handed down
decisions, or even a persuasive case from another jurisdiction.”18
Plainly, George is of the opinion that though a judge may not be held
liable for an act of judicial plagiarism, he should still attribute.
A note about “intentional representation.” A careful reading of
George’s writing on judicial plagiarism will make it
_______________
17 J C. G , Judicial Plagiarism, Judicial O W H ,

accessed at <http://books.google.com.ph/books?
id=7jBZ4yjmgXUC&lpg=PR1&hl=en&pg=PR1#v=onepage&q&f=false> on
February 8, 2011, at 715.
18 Id., at p. 726.
174


clear that she does not consider “inadvertent” or “unintentional”

plagiarism not plagiarism; indeed, she makes the distinction between
“intentional” and “unintentional” plagiarism several times, treating
both as types of plagiarism:
Using another’s language verbatim without using quotation marks or a

block quote is intentional, as opposed to unintentional, plagiarism.19
...
The lack of proper attribution may be unintentional and due to sloppy note
taking, either by the law clerk or the judge.20
...
Judicial plagiarism may also arise from the use of law clerks performing
research and writing of draft decisions and who may not accurately reflect
the source. The plagiarized material may be included within the draft
resulting from the law clerk’s poor research skills.21
...
The commission of unintended judicial plagiarism is unethical, but it is not
sanctionable.22
The intentional representation of which George speaks, then, may be

considered as the intent to represent a work as one’s own—already
embodied in claiming a work by, for instance, affixing one’s name or
byline to it—in which case the inadvertence, or lack thereof, by
which an act of plagiarism was committed is irrelevant to a finding
of plagiarism.
While George is perhaps not as exacting in her valuation of the
penalties for plagiarism as others may be, she still emphasizes that
her view on the exemption of judicial plagiarism from sanctions—
among which she evidently counts social
_______________
19 Id., at p. 715.
20 Id., at p. 718.
21 Id.
22 Id., at p. 726.
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VOL. 642, FEBRUARY 8, 2011 175
stigma, censure, and ostracism—does not negate the judge’s ethical

obligation to attribute. She writes:
“In conclusion, this author believes that a judicial writer cannot commit
legal plagiarism because the purpose of his writing is no to create a literary
work but to dispose of a dispute between parties. Even so, a judge is
ethically bound to give proper credit to law review articles, novel thoughts
published in legal periodicals, newly handed down decisions, or even a
persuasive case from another jurisdiction. While the judge may unwittingly
use the language of a source without attribution, it is not proper even though
he may be relieved of the stigma of plagiarism.23
As I wrote in my previous Dissent:
In so fulfilling her obligations, it may become imperative for the judge to

use “the legal reasoning and language [of others e.g. a supervising court or a
law review article] for resolution of the dispute.”[31] Although these
obligations of the judicial writer must be acknowledged, care should be
taken to consider that said obligations do not negate the need for attribution
so as to avoid the commission of judicial plagiarism. Nor do said obligations
diminish the fact that judicial plagiarism “detracts directly from the
legitimacy of the judge’s ruling and indirectly from the judiciary’s
legitimacy”[32] or that it falls far short of the high ethical standards to
which judges must adhere[33].”24
It must not be forgotten, however, that George’s view tends

toward the very liberal. There are other writings, and actual
instances of the imposition of sanctions, that reveal a more exacting
view of the penalties merited by judicial plagiarism.25
_______________
23. Id.
24 Supra note 3 at p. 29.
25 See: In re Widdison, 539 N.W.2d 671 (S.D. 1995) at p. 865 (as cited in Jaime S.
Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 C L.
R . 1253); Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic
Death Penalty, 57 College English 7 (Nov., 1995), at pp. 788-806, as cited in the
JSTOR, http://www.jstor.org./stable/378403; Klinge v. Ithaca College, 634
176


B. On the Countercharges Made by Justice Abad

In his Concurring Opinion in A.M. No. 10-7-17-SC, Justice Abad
alleged that I myself have “lifted from works of others without
proper attribution,” having written “them as an academician bound
by the high standards” that I espouse.
Regarding this allegation, let us recall my Dissent promulgated
on 12 October 2010. I stated:
“Plagiarism thus does not consist solely of using the work of others in
one’s own work, but of the former in conjunction with the failure to attribute
said work to its rightful owner and thereby, as in the case of written work,
misrepresenting the work of another as one’s own. As the work is another’s
and used without attribution, the plagiarist derives the benefit of use form
the plagiarized work without expending the requisite effort for the same—at
a cost (as in the concept of “opportunity cost”) to its author who could
otherwise have gained credit for the work and whatever compensation for its
use is deemed appropriate and necessary.”26
Allow me to analyze the allegations of Justice Robert C. Abad

point by point using the same standard I propounded in my 12
October 2010 Dissent.
1. The alleged non-attribution to the Asian Development Bank’s
Country Governance Assessment Report for the Philippines
(2005).
_______________
N.Y.S.2d 1000 (Sup. Ct. 1995), Napolitano v. Trustees of Princeton Univ., 453
A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712,
713-14 (Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon,
Ethical Judicial Opinion Writing, 21 T G J L E
264, note 190; Apotex Inc. v. Janssen-Ortho Inc., 2009, as cited in Emir Aly Crowne-
Mohammed, 22 No. 4 Intell. Prop. & Tech. L. J. 15, 1 – as cited in page 28 and
footnotes 24, 25, 27 to 29 of my 12 October 2010 Dissent.
26 Id., at p. 26.
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TABLE H: Comparison of Justice Abad’s allegations, the 2001

and 2007 versions of the article co-authored with Drs. De Dios and
Capuno, and the ADB Country Governance Assessment of 2005.
E
A C - E
A ADB C
D .D D G
C : A :
P
R
J. A ’ A -
Justice and the
Cost of Doing Asian Development
Business: The Bank Country
Philippines, report Governance
submitted to the Assessment:
World Bank, 2001. Philippines, 2005.
1. Cost refers to both Costs, on the other Cost refers to both
monetary and hand, refer to both monetary and
nonmonetary the monetary and nonmonetary
opportunities that a nonmonetary opportunities that a
litigant has to forego opportunities that litigant has to forego
in pursuing a case. business people in pursuing a case.
Direct cost refers not forego as a result of Direct cost refers not
only to fees paid to making use of the only to fees paid to
the courts but also to judicial system the courts but also to
out-of-pocket costs itself. Direct costs out-of-pocket costs
arising from litigation refer not only to the arising from litigation
itself (e.g., lawyers’ fees paid the courts itself (e.g., lawyer’s
fees and but also to out-of- fees and
compensation, pocket costs arising compensation,
transcript fees for from litigation transcript fees for
stenographic notes, itself (e.g., lawyers’ stenographic notes,
etc.). Indirect costs fees and etc.). Indirect costs
refer to lost documenta- refer to lost
opportunities arising opportunities arising
178


from delays in the tion). Indirect from delays in the

resolution of cases and costs also resolution of cases and
the time spent by a inevitably arise, the time spent by a
litigant attending and of which the most litigant attending and
following up a case. important are following up a
those arising from case.
[Asian Development
delays in the
Bank Country
resolution of
Governance
cases, and the
Assessment
failure to come up
(Philippines) 2005,
with timely
page
decisions.
103]
E
A C -
A
D .D D
C :
Justice and the
Cost of Doing
Business: The
Philippines, UP
School of
Economics
Discussion Paper
0711, October
2007.
Costs, on the
other hand, refer
to both the
monetary and
nonmonetary
opportunities that
business people
forego as
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VOL. 642, FEBRUARY 8, 2011 179

a result of making use of the judicial system itself. Direct costs

refer not only to the fees paid the courts but also to out-of-
pocket costs arising from litigation itself (e.g., lawyers’ fees and
documentation). Indirect costs also inevitably arise, of which the
most important are those arising from delays in the resolution of
cases, and the failure to come up with timely decisions.
Justice Abad accuses Dr. Emmanuel S. De Dios, Dr. Joseph J.

Capuno, and me of copying, without attribution, three sentences
from the Asian Development Bank’s 2005 Outlook Report for the
Philippines, and incorporating them into our 2007 paper entitled
“Justice and the Cost of Doing Business.”27
I thank Justice Abad for alerting me to this particular ADB
publication; otherwise I would not have noticed ADB’s failure to
attribute the same to my co-authored work pro-
_______________
27 Discussion Paper No. 07011, October 2007, UP School of Economics.
180


duced in 2001. Were it not for his charges, I would not have learned
of such inadvertent error from the ADB. I have thus called the
attention of my co-authors, Drs. De Dios and Capuno, to this matter.
Below is a reproduction of the contents of my letter to Drs. De Dios
and Capuno:
Hon. Maria Lourdes P.A. Sereno

Associate Justice
Supreme Court of the Philippines
February 4, 2011
Dr. Emmanuel C. De Dios
Dr. Joseph D. Capuno
School of Economics
University of the Philippines
Dear Drs. De Dios and Capuno
Greetings!
I have been recently alerted to a possible plagiarism that we are
suspected to have committed with respect to the 2005 Asian Development
Bank Outlook Report, specifically three sentences in page 103 that reads:
... Cost refers to both monetary and nonmonetary opportunities that a
litigant has to forego in pursuing a case. Direct cost refers not only to
fees paid to the courts but also to out-of-pocket costs arising from
litigation itself (e.g. lawyer’s fees and compensation, transcript fees
for stenographic notes, etc.) Indirect costs refer to lost opportunities
arising from delays in the resolution of cases and the time spent by a
litigant attending and following up a case.
On examination, I discovered that it is the ADB that failed to attribute
those sentences to the report we submitted in August 2001 to the World
Bank entitled “Justice and the Cost of Doing Business: The Philippines,”
specifically found in the third paragraph of our 2001 report. May I suggest
that perhaps you could alert our friends at the ADB regarding the oversight.
It would be nice if our small study, and the World Bank support that made it
possible, were appropriately recognized in this ADB publication.
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Warmest regards always.

Sincerely,
Maria Lourdes P.A. Sereno
A proper reading of the ADB publication will immediately

convey the fact that the ADB considers one of my writings as a
resource on the topic of Philippine judicial reform. My name is
quoted four (4) times in the text. A reading of the references listed
one of my 2001 papers, which I wrote singly as the source. Note the
following references to my writing:
... It is incumbent upon the courts to harmonize these laws, and often they
would find the absence of constitutional standards to guide them (Sereno
2001). at page 98
...
... Critics pointed out that the Supreme Court should not have made factual
declarations on whether a property belongs to the national patrimony in the
absence of an operative law by which a factual determination can be made
(Sereno 2001). at page 99
... As Sereno pointed out, if this tension between the three branches is not
resolved satisfactorily, it will create a climate of unpredictability as a result
of the following: at page 99
...
(iii) a court that will continually have to defend the exercise of its own
powers against the criticism of the principal stakeholders in the process of
economic policy formulation: the executive and legislative branches and the
constituencies consulted on the particular economic issues at hand (Sereno
2001).
Had Justice Abad or his researcher taken the time to go through

the ADB material, it would have been immediately apparent to
either of them that ADB was merely collating the thoughts of
several authors on the subject of Philippine judicial reform, and that
I was one of those considered as a resource person. He would not
then have presumed that I copied those sentences; rather, it might
have struck him that
182


more likely than not, it was the ADB echoing the thoughts of one or
some of the authors in the reference list when it used those quoted
sentences, and that the pool of authors being echoed by ADB
includes me. The reference list of the ADB report with the relevant
reference is quoted herein:
REFERENCES
...
Sereno, Ma. Lourdes. 2001. The Power of Judicial Review and Economic
Policies: Achieving Constitutional Objectives. PHILJA-AGILE-USAID
Project on Law and Economics.” at page 158.
What is more unfortunate is that I was immediately accused of

having copied my sentences from ADB when a simple turn of the
page after the cover page of our 2007 paper would reveal that the
2007 paper is but a re-posting of our 2001 work. The notice on page
2 of the paper that is found in the asterisked footnote of the title
reads:
This paper was originally submitted in August 2001 as project report to

the World Bank. During and since the time this report was written, the
Supreme Court was engaged in various projects in judicial reform. The
authors are grateful to J. Edgardo Campos and Robert Sherwood for
stimulating ideas and encouragement but take responsibility for remaining
errors and omissions. The Asian Institute of Journalism and Communication
provided excellent support to the study in the actual administration of the
survey questionnaire and conduct of focus group discussions.
This charge is made even more aggravating by the fact that the
Supreme Court itself, through the Project Management Office, has a
copy of my 2001 paper. In July 2003, a “Project Appraisal
Document on a Proposed Loan in the Amount of US$21.9 Million to
the Republic of the Philippines for a Judicial Reform Support
Project” was officially filed by the World
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Bank as Report No. 25504.28 The applicant Supreme Court’s

representative is named as Chief Justice Hilario Davide. The project
leader is named as Evelyn Dumdum. The Report lists the technical
papers that form the basis for the reform program. Among the papers
listed is our 2001 paper.
What is worse, from the point of view of research protocols, is
that a simple internet search would have revealed that this 2001 co-
authored paper of mine has been internationally referred to at least
four (4) times—in three (3) English language publications and one
(1) Japanese- or Chinese-language publication; two of these are
prior to the year 2005 when the relevant ADB Outlook Report came
out. The authors of the English-language works are all scholars on
judicial reform, and they cite our work as one of the pioneering ones
in terms of measuring the relationship between dysfunctions in the
judicial system and the cost to doing business of such dysfunctions.
It would have then struck any researcher that in all probability, the
alleged plagiarized sentences originated from my co-authors and me.
The references to my 2001 paper appear in the following
international publications:
a) Sherwood, Robert. Judicial Performance: Its Economic Impact in

Seven Countries; at page 20. (http://www.molaah.com/
Economic%20Realities/Judicial%20Performance.pdf)
b) Messick, Richard. Judicial Reform and Economic Growth: What
a Decade of Experience Teaches; at pages 2 and 16. (2004).
http://www.cato.org/events/russianconf2004/papers/messick2.pdf
c) Herro, Alvaro and Henderson, Keith. Inter-American
Development Bank. The Cost of Resolving Small-Business Con-
_______________
28 World Bank, Project Appraisal Document on a Proposed Loan in the Amount of

US$21.9 Million to the Republic of the Philippines for a Judicial Reform Support Project
(Report No: 25504) (2003), available at http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2003/07/31/000012009_20030731101244/Rendered/PDF/255040PH0PAD.pdf
(accessed on February 5, 2011).
184


flicts in Sustainable Development Department Best Practices Series;

at page 46. (2004) http://www.ifes.org/~/media/Files/
Publications/White%20PaperReport/2003/258/SME_Peru_Report
_final_EN.pdf
d) World Development Report 2005 (Japanese language); at page
235 (2005) (“url” in Japanese characters)
2. The purported non-attribution of the “Understanding on the

Rules and Procedures Governing the Settlement of Disputes,
Annex 2 to the General Agreement on Tariffs and Trade 1994.”29
I will spare the reader the tedium of reading twenty pages of
treaty rules and working procedures, and thus omit the three-column
table I have used in other sections of this Dissent. The rules and
procedures may be accessed online at the following locations:
1. Marrakesh Declaration of 15 April 1994 <http://

www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.pdf> (Last
accessed on 16 February 2011)
2. Understanding on Rules and Procedures Governing the
Settlement of Disputes <http://www.wto.org/english/
docs_e/legal_e/28-dsu.pdf> (Last accessed on 16 February 2011)
3. Working Procedures for Appellate Review <http://www.
wto.org/english/tratop_e/dispu_e/ab_e.htm#20> (Last accessed on 16
February 2011)
Justice Abad himself provides evidence of the attribution I made

when he says:
_______________
29 A minor correction is in order. The “Understanding on the Rules and

Procedures Governing the Settlement of Disputes” is Annex 2 to the Marakkesh
Agreement Establishing the World Trade Organization. There is no Annex 2 to the
General Agreement on Tariffs and Trade 1994. Please see paragraphs 1 to 4 of said
GATT 1994 for a list of all its component parts.
185
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Justice Sereno said that ‘this section is drawn from Article XX and XXII of
the GATT 1994, Understanding on Dispute Settlement and Working
Procedures.
I think the problem lies in the fact that neither Justice Abad nor
his researcher is aware that the phrase “Understanding on Dispute
Settlement” is the short title for the “Understanding on the Rules and
Procedures Governing the Settlement of Disputes,” which is
formally known also as Annex 2 of the Marakkesh Agreement
Establishing the World Trade Organization (short form of treaty
name: WTO Treaty). A quick visit to the WTO website will show
that the WTO itself uses any of the terms “DSU,” “Dispute
Settlement Understanding” or “Understanding on Dispute
Settlement” (UDS) as short forms for the said Annex. The WTO
webpage30 shows that “Understanding on Dispute Settlement” is the
first short way they call the long set of rules covered by Annex 2 of
the WTO Treaty.
More importantly, the WTO documents that were cited here are
public international documents and rules governing the relations of
states. In page 6 of my article, “Toward the Formulation of a
Philippine Position in Resolving Trade and Investment Dispute in
APEC,” I explain the modes of resolving trade and investment
disputes by APEC countries, and one of these modes is the WTO
dispute settlement mechanism governed by the WTO rules
themselves.
This is therefore a meaningless charge.
Assuming that Justice Abad knows that the above treaty titles are
interchangeable, then his charge is akin to complaining of my
supposed failure for having simply written thus: “The following are
the requirements for filing a complaint under the Rules of Court”
and then for having immedi-
_______________
30 Understanding on Dispute Settlement, available at

http://www.inquit.com/iqebooks/WTODC/Webversion/prov/eigteen.htm (accessed on
February 5, 2011).
186


ately discussed the requirements under the Rules of Court without

quotation marks in reference to each specific rule and section. If this
is the case, then it appears that in Justice Abad’s view I should have
written: “the following are the requirements provided for under the
1997 Rules of Civil Procedure (Bar Matter No. 803) for filing a
complaint” and then used quotation marks every time reference to
the law is made. Nothing can be more awkward than requiring such
a tedious way of explaining the Rules of Court requirements. I have
made no such comparable charge of violation against Justice del
Castillo in the Dissent to the main Decision and I am not making
any such claim of violation in my Dissent to the Resolution denying
the Motion for Reconsideration, because that would be a
meaningless point.
Regarding the phrase allegedly coming from Professor
Oppenheim on good offices and mediation, this is a trite, common,
standard statement—with nothing original at all about it—that can
be found in any international dispute settlement reference book,
including those that discuss WTO dispute settlement systems. The
phrase is a necessary, cut-and-dried statement on the use of good
offices and mediation, which take place alongside the formal dispute
settlement system in major international dispute settlement systems.
The system is provided for expressly in Article 5.5 and 5.6 of the
DSU. A quick view of the WTO website makes this point very
apparent.31
3. The supposed non-attribution of a phrase from Baker v. Carr.
TABLE I: Comparison of Justice Abad’s allegations, the legal
memorandum in Province of North Cotabato v. Peace
_______________
31 World Trade Organization, Dispute Settlement System Training Module:

Chapter 8 – Dispute Settlement Without Recourse to Panels and the Appellate Body,
available at
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c8s1p2_e.htm
(accessed on February 5, 2011).
187
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Panel, and the decision of the U.S. Supreme Court in Baker v. Carr,
cited in the legal memorandum.
R
J. A ’ E
A L M E
P J. S
S : C J.
Petitioners-Intervenors’ S :
Memorandum, Province Baker v. Carr, 369
of North Cotabato v. U.S. 186 (1962).
Peace Panel
3.4 The power to
determine whether or not
a governmental act is a
political question, is
solely vested in this
Court, and not with the
Respondents. This
Honorable Court had
firmly ruled that Article
VIII, Section 1 of the
Constitution, as rejected
the prudential approach
taken by courts as
described in Baker v.
Carr. Indeed, it is a duty,
not discretion, of the
Supreme Court, to take
cognizance of a case and
exercise the power of
188


Prominent on the surface judicial review Prominent on the
of any case held to whenever a surface of any case held
involve a political grave abuse of to involve a political
question is found a discretion has question is found a
textually demonstrable been prima textually demonstrable
constitutional facie constitutional
commitment of the issue established, as commitment of the
to a coordinate political in this instance. issue to a coordinate
department; or a lack of 3.5 In this case, political department; or
judicially discoverable Respondents a lack of judicially
and manageable cannot hide discoverable and
standards for resolving under the manageable standards
it; or the impossibility political for resolving it; or the
of deciding without an question impossibility of
initial policy doctrine, for deciding without an
determination of a kind two compelling initial policy
clearly for non-judicial reasons. determination of a kind
discretion x x x clearly for non-judicial
3.6 First, there discretion….
[Baker v. Carr, 169 is no resolute
textual Source cited:
commitment in
the Constitution
that accords the
President the
power to
negotiate with
the MILF…
.…3.13 Second,
there is no lack
of a judicially
discoverable
and manageable
standard for
resolving the
question, nor
impossibility of
deciding the
question
without an
initial policy
determination
of a kind clearly
for non-judicial
discretion. On
the contrary, the
negotiat-
189
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VOL. 642, FEBRUARY 8, 2011 189

U.S. ing history with Muslim secessionist groups easily Baker

186] contradict any pretense that this Court cannot set down v.
the standards for what the government cannot do in Carr
this case.
(pp. 47-50 of the Memorandum)
A simple upward glance nine paragraphs above the phrase that
Justice Abad quoted from my post-hearing Memorandum in the
GRP-MILF MOA-AD case would show that Baker v. Carr was aptly
cited. For quick reference, I have reproduced the pertinent parts of
my legal memorandum in the middle column of the above table.
Baker v. Carr was discussed in the context of my argument that
Marcos v. Manglapus has adopted a more liberal approach to the
political question jurisdictional defense, and has rejected the
prudential approach taken in Baker v. Carr. The offending paragraph
that Justice Abad quoted was meant to demonstrate to the Court then
hearing the GRP-MILF MOA-AD case that even if we apply Baker
v. Carr, the Petition has demonstrated satisfaction of its requirement:
the presence of a judicially-discoverable standard for resolving the
legal question before the Court. Justice Abad’s charge bears no
similarity to the violations of the rules against plagiarism that I
enumerated in pages 16 to 19 of my Dissent dated 12 October 2010.
I have made no similar complaint against the work in Vinuya.
190


4. The alleged plagiarism of the internet-based World Trade

Organization factsheet.
TABLE J: Comparison of Justice Abad’s allegations, the article,
entitled Uncertainties Beyond the Horizon: The Metamorphosis of
the WTO Investment Framework in the Philippine Setting, and the
WTO Factsheet cited in the article.
R E EXCERPT FROM THE SOURCE CITED

J. A ’ BY J. SERENO:
A W J. http://www.fas.usda.gov/info/factsheets/wto.html
S :
Sereno,
Uncertainties
Beyond the
Horizon: The
Metamorphosis
of the WTO
Investment
Framework in
the Philippine
Setting, 52
U.S.T. L. Rev.
259 (2007-
2008)
This reticence,
to link
investment
regulation with
the legal
disciplines in
the WTO,
compared to
the eagerness
with which
other issues are
linked to trade
rules, was
evident even in
the precursor
to the
Marakkesh
Agreement.2
191
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VOL. 642, FEBRUARY 8, 2011 191

The World Trade 2 Marakkesh Source cited:
Organization Agreement established The World Trade
(WTO), established the World Trade Organization (WTO),
on January 1, 1995, Organization and established on
is a multilateral replaced GATT as an January 1, 1995, is a
institution charged international multilateral
with administering organization. It was institution charged
rules for trade signed by ministers with administering
among member from most of the 123 rules for trade among
countries. Currently, participating member countries.
there are 145 governments at a Currently, there are
official member meeting in Marrakesh, 145 official member
countries. The Morocco on April 15, countries. The United
United States and 1994…. States and other
other countries The World Trade countries
participating in the Organization (WTO) participating in the
Uruguay Round of was established on Uruguay Round of
Multilateral Trade January 1, 1995. It is a Multilateral Trade
Negotiations (1986- multilateral institution Negotiations (1986-
1994) called for the charged with 1994) called for the
formation of the administering rules for formation of the
WTO to embody the trade among member WTO to embody the
new trade countries. The WTO new trade disciplines
functions as the adopted
principal international
body concerned with
multilateral
negotiations on the
reduction of trade
barriers and other
measures that distort
competition. The WTO
also serves as a
platform for countries
to raise their concerns
regarding the trade
policies of their
192


disciplines adopted during those negotiations. trading partners. The basic aim during those negotiations.
The WTO functions as the principal international of the WTO is to liberalize The WTO functions as the principal international
body concerned with multilateral negotiations on world trade and place it on a body concerned with multilateral negotiations on
the reduction of trade barriers and other measures secure basis, thereby the reduction of trade barriers and other
that distort competition. The WTO also serves as contributing to economic measures that distort competition. The WTO
a platform for countries to raise their concerns growth and development. also serves as a platform for countries to raise
regarding the trade policies of their trading http://www.fas.usd their concerns regarding the trade policies of
partners. The basic aim of the WTO is to a.gov/info/factsheets/wto.html their trading partners. The basic aim of the WTO
liberalize world trade and place it on a secure (last accessed February 13, is to liberalize world trade and place it on a
basis, thereby contributing to economic growth 2008). (Emphasis supplied.) secure basis, thereby contributing to economic
and development. (p. 260-261, footnote 2 of J. growth and development.
[WTO FACTSHEET Sereno’s work) Source cited:
http://www.fas.usda.gov/info/factsheets/wto.html,
last accessed February 13, 2008.] http://www.fas.usda.gov/info/factsheets/wto.html
Justice Abad has likewise pointed out that I made it appear that
the description of the WTO in my article entitled “Uncertainties
Beyond the Horizon: The Metamorphosis of the WTO Investment
Framework in the Philippine Setting” was my own original analysis.
Again, a cursory reading of the article will show that the paragraph
in question was actually the second footnote in page 2 of the article.
The footnote was made as a background reference to the Marrakesh
Agreement, which, as I explained earlier in the article, established
the WTO. The footnote thus further provided background
information on the WTO. Contrary, however, to Justice Abad’s
allegation, I clearly attributed the source of the information at the
end of the footnote by providing the website source of this
information and the date I accessed the information. Thus, should
one decide to follow the website that I cited, one would immediately
see the information contained in the article was lifted from this
direct source.
5. The purported non-attribution to Judge Richard A. Posner’s
seminal work in his book Economic Analysis of Law.
TABLE K: Comparison of Justice Abad’s allegations, the article
entitled Lawyers’ Behavior and Judicial Decision-Making, and
Judge Richard A. Posner’s book Economic Analysis of Law, cited in
the article.
R E W E
J. A ’ J. S : S C J.
A Sereno, Lawyers’ Behavior S :
and Judicial Decision- R A. P ,
Making, 70(4) Phil. L. J. E A
476 (1996). L , (2 ed.
1977).
194


...We could deal with this As with any
problem later. What I contract, a
would propose to necessary
evaluate at this point is (and usually
the preconditions that —why not
Judge Richard Posner always?—
theorizes as dictating the sufficient)
likelihood of litigating... conditions
… for
negotiations
Posner’s model is but a to succeed
simple mathematical is that there
illustration or validation be a price at
of what we as laymen which both
have always believed to parties
be true, although how to would feel
prove it to be true has that
always remained a agreement
problem to us. We have would
always known that the increase
decision on whether to their
settle or not is dictated by
the size of the stakes in
the eyes of the parties,
the costs of litigation and
the probability which
each side gives to his
winning or losing. But
until now, we have only
been
195
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[S]ettlement intuitively dealing with a formula welfare. Hence
negotiations for arriving at an estimation of settlement
will fail and the “settlement range” or its negotiations
litigation existence in any given should fail, and
ensue, only if controversy. Simply, the litigation ensue,
the minimum settlement range is that range of only if the
price that the prices in which both parties minimum price
plaintiff is would be willing to settle that the plaintiff
willing to because it would increase their is willing to
accept in welfare. Settlement negotiations accept in
compromise will fail, and litigation will compromise of
of his claim is ensue, if the minimum price that his claim is
greater than plaintiff is willing to accept in greater than the
the maximum compromise of his claim is maximum price
price the greater than the maximum price that the
defendant is that the defendant is willing to defendant is
willing to pay pay in satisfaction of that claim. willing to pay in
in satisfaction satisfaction of
(pp. 481-483 of Lawyers’
of the claim. that claim;
Behavior and Judicial Decision-
….
[Posner, p. Making)
434] Source cited:
R A.
P ,
E
A
L , 435 (2
ed. 1977).
196


Presumably §19.7 WHAT DO JUDGES
judges, like the W J MAXIMIZE?
rest of us, seek M …This section attempts to
to maximize a sketch a theory of judicial
utility function In understanding
incentives that will reconcile
that includes judicial behavior,
these assumptions.
both monetary we have to assume,
and that judges, like all Presumably judges, like the
nonmonetary economic actors rest of us, seek to maximize a
elements. maximize a utility utility function that includes
function. This both monetary and
[Posner, p.
function in all nonmonetary elements (the
415]
probability latter including leisure,
[T]he rules of includes material prestige, and power). As
the judicial as well as non- noted earlier, however, the
process have material factors. In rules of the judicial process
been carefully American have been carefully designed
designed both to literature, they both to prevent the judge
the prevent the have come up with from receiving a monetary
judge from several theories on payoff from deciding a
receiving a what judges particular case one way or
monetary payoff maximize. the other and to minimize the
from deciding a The first is that influence of politically effec-
particular case the American
one way or the judicial system
other and to have rules
minimize the designed to
influence of minimize the
politically possibilities of a
effective interest judge maximizing
group in his his financial
decisions. interest by
[Posner, 415] receiving a bribe
from a litigant of
from acceding to a
politically power-
167
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It is often argued, ful interest group by tive interest groups on
for example, that making the rules work his decisions. To be
the judge who in such a manner as to sure, the effectiveness
owns land will create disincentives for of these insulating
decide in favor of the judge ruling in such rules is sometimes
landowners, the a manner.
questioned. It is often
judge who walks
The second, argued, for example,
to work will be in
proceeding from the that the judge who
favour of
first is that the judge owns land will decide
pedestrians.
maximizes the interest in favor of
[Posner, 415] of the group to which landowners, the judge
A somewhat more he belongs. If he who walks to work in
plausible case can belongs to the favor of pedestrians,
be made that judges landowning class, he the judge who used to
might slant their will generally favor be a corporate lawyer
decisions in favour landowners, and if he in favor of
of powerful walks to work, he will corporations....
interest groups in generally favor A somewhat more
order to increase pedestrians. plausible case can be
the prospects of The third is that the made that judges
promotion to judge maximizes the might slant their
higher office, prospects of his decisions in favor of
judicial or promotion to a higher powerful interest
otherwise. office by slanting his groups in order to
[Posner, p. 416] decisions in favor of increase the prospects
powerful interest of promotion to
[J]udges seek to groups. higher office, judicial
impose their or otherwise....
preferences, tastes,
values, etc. on It would seem,
society.[Posner, p. therefore, that the
416] explanation
198


The last is that judges maximize for judicial behavior must lie
their influence on society by elsewhere than in pecuniary or
imposing their values, tastes and political factors. That most
preferences thereon. judges are leisure maximizers
Depending on one’s impressions is an assumption that will not
and experiences (since there is no survive even casual
empirical data on which a more observation of judicial
scientific conclusion can be behavior. A more attractive
reached on which of the above possibility, yet still one
four theories are correct), we can thoroughly consistent with the
see the relation of this utility- ordinary assumptions of
maximizing behavior on both our economic analysis, is that
probability estimate function and judges seek to impose their
Posner’s precondition inequality preferences, tastes, values etc.
for litigation. Although more on society....
research is required in this area, if
we believe Posner’s function to
be true….
(Emphasis supplied.)
199
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VOL. 642, FEBRUARY 8, 2011 199

(pp. 489 of Lawyers’ Source:

Behavior and Judicial R A. P ,E
Decision-Making) A L , 415-16 (2 ed.
1977).
May I invite the reader to read my entire article entitled

“Lawyers’ Behavior and Judicial Decision-Making,” accessible
online at
<http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20number%204%20-
02-%20Ma.
%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.
pdf>, so that the alleged copying of words can be taken in the proper
context.
It must first be emphasized that the whole article was largely a
presentation and discussion of Judge Posner’s economic models of
litigation and settlement, applying what he had written to the context
of the Philippines. An examination of the article will show that
Posner’s work was referred to no less than fourteen (14) times
throughout the article, excluding the use of pronouns that also refer
to Posner, such as “he” and “him.” A diligent reading of the full text
of the article will reveal that I have intentionally and heavily used
Posner’s opinions, analyses, models, and conclusions while crediting
him with the same.
Furthermore, the passages cited in the table of counter-charges
use what one may call the “terms of the trade” in the field of law and
economics, or indeed in the field of economics itself. The
maximization of an individual’s utility is one of the core principles
on which the study of an individual’s choices and actions are based.
The condition for the success/failure of
200


settlement bargaining is practically a definition, as it is also a

fundamental principle in the study of bargaining and negotiation that
the minimum price of one of the parties must not exceed the
maximum price the other party is willing to pay; that particular
passage, indeed, may be regarded as a re-statement, in words instead
of numbers, of a fundamental mathematical condition as it appears
in Posner’s model and in many similar models.
To allow industry professionals to have their say on the matter, I
have written a letter to Dr. Arsenio M. Balisacan, the Dean of the
University of the Philippines School of Economics, requesting that
my paper, Lawyers’ Behavior and Judicial Decision-Making, be
examined by experts in the field to determine whether the
allegations of plagiarism leveled against me have basis. I am
reproducing the contents of the letter below.
Hon. Maria Lourdes P.A. Sereno

Associate Justice
Supreme Court of the Philippines
February 11, 2011
Dr. Arsenio M. Balisacan
Dean
School of Economics
University of the Philippines
Dear Dr. Balisacan:
Greetings! I hope this letter finds you in the best of health.
I write because I have a request to make of your highly-respected
institution. I have been recently accused of plagiarizing the work of Judge
Richard Posner in one of the articles on law and economics that I have
written and that was published in the Philippine Law Journal entitled
“Lawyers’ Behavior and Judicial Decision-Making,” 70 Phil L. J. 475-492
(June 1996). The work of Posner that I am accused of having plagiarized is
the second edition of the book entitled “Economic Analysis of Law,”
published in 1977 by Little, Brown and Company.
201
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VOL. 642, FEBRUARY 8, 2011 201

May I ask you for help in this respect—I wish to submit my work to the
evaluation of your esteemed professors in the UP School of Economics. My
work as an academic has been attacked and I would wish very much for a
statement from a panel of your choosing to give its word on my work.
I am attaching a table showing which part of Posner’s work I am alleged
to have plagiarized in my Philippine Law Journal article.
Thank you very much. I will be much obliged for this kind favor.
Very truly yours,
Maria Lourdes P.A. Sereno
The problem with the majority approach is that it refuses to face

the scale of the plagiarism in the Vinuya Decision. If only that were
the starting point for the analysis of the majority, then some of my
colleagues would not have formed the impression that I was
castigating or moralizing the majority. No court can lightly regard a
ponencia, as in Vinuya, where around 53% of the words used for an
important section were plagiarized from sources of original
scholarship. Judges and their legal researchers are not being asked to
be academics; only to be diligent and honest.
IV. The Role of the Judiciary in Society
On more than one occasion, this Court has referred to one of its
functions as the symbolic or educative function, the competence to
formulate guiding principles that may enlighten the bench and the
bar, and the public in general.32 It cannot now backpedal from the
high standards inherent in the judicial role, or from the standards it
has set for itself.
The need to cement ethical standards for judges and justices is
intertwined with the democratic process. As Lebovits explained:
_______________
32 Salonga v. Cruz Paño, G.R. No. 59525, 18 February 1985, 134 SCRA 438.
202


“The judiciary’s power comes from its words alone–judges

command no army and control no purse. In a democracy, judges have
legitimacy only when their words deserve respect, and their words
deserve respect only when those who utter them are ethical. Opinion
writing is public writing of the highest order; people are affected not
only by judicial opinions but also by how they are written. Therefore,
judges and the opinions they write—opinions scrutinized by litigants,
attorneys, other judges, and the public—are held, and must be held, to
high ethical standards. Ethics must constrain every aspect of the
judicial opinion. 33
Justice George Rose Smith once pointed to the democratic process as a
reason to write opinions: “Above all else to expose the court’s decision to
public scrutiny, to nail it up on the wall for all to see. In no other way can it
be known whether the law needs revision, whether the court is doing its job,
whether a particular judge is competent.” Justice Smith recognized that
judges are not untouchable beings. Judges serve their audience. With this
service comes the need for judges to be trusted. Writing opinions makes
obtaining trust easier; it allows an often opaque judicial institution to
become transparent.”34
Judges cannot evade the provisions in the Code of Judicial

Conduct.35
“A judge should participate in establishing, maintaining and enforcing

high standards of conduct, and shall personally observe those standards so
that the integrity and independence of the judiciary will be preserved. The
drafters of the Model Code were aware that to be effective, the judiciary
must maintain legitimacy—and to maintain legitimacy, judges must live up
to the Model Code’s moral standards when writing opinions. If the public is
able to witness or infer from judges’ writing that judges resolve disputes
morally, the
_______________
33 Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21
Geo. J. L E 264 (2008).
34 Id., at p. 269.
35 Promulgated 5 September 1989, took effect 20 October 1989.
203
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VOL. 642, FEBRUARY 8, 2011 203

public will likewise be confident of judges’ ability to resolve disputes fairly

and justly.”36 (Citations omitted)
Canon 1 of the Code of Judicial Conduct states that a judge

should uphold the integrity and independence of the judiciary. Rule
1.01 in particular states that a judge should be the embodiment of
competence, integrity, and independence.
Canon 3 then focuses on the duty of honesty in the performance
of official duties, as well as on the supervision of court personnel:
“Rule 3.09. A judge should organize and supervise the court personnel

to ensure the prompt and efficient dispatch of business, and require at all
times the observance of high standards of public service and fidelity.
Rule 3.10. A judge should take or initiate appropriate disciplinary
measures against lawyers or court personnel for unprofessional conduct of
which the judge may have become aware.”
Paragraph 17 of the Code of Judicial Ethics37 focuses on the

writing of judicial opinions:
“In disposing of controversial cases, judges should indicate the reasons

for their action in opinions showing that they have not disregarded or
overlooked serious arguments of counsel. They should show their full
understanding of the case, avoid the suspicion of arbitrary conclusion,
promote confidence in their intellectual integrity and contribute useful
precedents to the growth of the law.” (Emphasis supplied)
Paragraph 31, “a summary of judicial obligations,” contains a

more general statement regarding the behavioral norms required of
judges and justices alike, stating:
“A judge’s conduct should be above reproach and in the discharge of his

judicial duties, he should be conscientious, studious,
_______________
36 Supra note 33 at pp. 240-241.

37 Administrative Order No. 162.
204


thorough, courteous, patient, punctual, just, impartial, fearless of public

clamor, and regardless of private influence should administer justice
according to law and should deal with the patronage of the position as a
public trust; and he should not allow outside matters or his private interests
to interfere with the prompt and proper performance of his office.”
That judges and justices alike are subject to higher standards by
virtue of their office has been repeatedly pronounced by the
Supreme Court:
“Concerned with safeguarding the integrity of the judiciary, this Court

has come down hard and wielded the rod of discipline against members of
the judiciary who have fallen short of the exacting standards of judicial
conduct. This is because a judge is the visible representation of the law and
of justice. He must comport himself in a manner that his conduct must be
free of a whiff of impropriety, not only with respect to the performance of
his official duties but also as to his behavior outside his sala and as a private
individual. His character must be able to withstand the most searching
public scrutiny because the ethical principles and sense of propriety of a
judge are essential to the preservation of the people’s faith in the judicial
system.”38
Thus, being the subject of constant public scrutiny, a judge

should freely and willingly accept restrictions on conduct that might
be viewed as burdensome by the ordinary citizen.39 A judge should
personify integrity and exemplify honest public service. The
personal behavior of a judge, both in the performance of his official
duties and in private life should be above suspicion.40 Concerned
with safeguarding the integrity of the
_______________
38 In Re Letter of Judge Augustus C. Diaz, A.M. No. 07-7-17-SC, 19 September

2007, 533 SCRA 534.
39 A.M. No. RTJ-90-447, 199 SCRA 75, 12 July 1991, 83-84.
40 Junio v. Rivera, Jr., A.M. No. MTJ-91-565, August 30, 1993, 225 SCRA 688.
205
VOL. 642, FEBRUARY 8, 2011 205

VOL. 642, FEBRUARY 8, 2011 205

judiciary, this Court has come down hard on erring judges and
imposed the concomitant punishment.41
As held by the Court in Teban Hardware and Auto Supply Co. v.
Tapucar:42
“The personal and official actuations of every member of the Bench must
be beyond reproach and above suspicion. The faith and confidence of the
public in the administration of justice cannot be maintained if a Judge who
dispenses it is not equipped with the cardinal judicial virtue of moral
integrity, and if he obtusely continues to commit an affront to public
decency. In fact, moral integrity is more than a virtue; it is a necessity in the
Judiciary.”
The inherent value of judicial decisions goes beyond the

resolution of dispute between two parties. From the perspective of
the judge, he has fulfilled his minimum burden when he has
disposed of the case. Yet from the perspective of the public, it is
only through publicized decisions that the public experiences the
nearest approximation of a democratic experience from the third
branch of Government.
“Decisions and opinions of a court are of course matters of public
concern or interest for these are the authorized expositions and
interpretations of the laws, binding upon all citizens, of which every citizen
is charged with knowledge. Justice thus requires that all should have free
access to the opinions of judges and justices, and it would be against
sound public policy to prevent, suppress or keep the earliest knowledge
of these from the public.”43
The clearest manifestation of adherence to these standards is

through a Justice’s written opinions. In the democratic framework, it
is the only way by which the public can check
_______________
41 Castillo v. Calanog, Jr., A.M. No. RTJ-90-447, 16 December 1994, 239 SCRA
268
42 Teban Hardware and Auto Supply Co. v. Tapucar, A.M. No. 1720, 31 January
1981, 102 SCRA 492, 504.
43 Ex Parte Brown, 166 Ind. 593, 78 N.E. 553 (1906).
206


the performance of such public officer’s obligations. Plagiarism in

judicial opinions detracts directly from the legitimacy of the judge’s
ruling and indirectly from the judiciary’s legitimacy.44 It is
objectionable not only because of its inherent capacity to harm, but
the overarching damage it wreaks on the dignity of the Court as a
whole.
The Court’s Educative Function
The Court’s first Decision in this case hinged on the difference
between the academic publishing model on the one hand, and the
judicial system on the other. It proceeded to conclude that courts are
encouraged to cite “historical legal data, precedents, and related
studies” in their decisions, so that “the judge is not expected to
produce original scholarship in every respect.”
This argument presents a narrower view of the role of the courts
than what this country’s history consistently reveals: the judiciary
plays a more creative role than just traditional scholarship. No
matter how hesitantly it assumes this duty and burden, the courts
have become moral guideposts in the eyes of the public.
“Easily the most daunting task which confronts a newly appointed judge
is how to write decisions. It is truly a formidable challenge considering the
impact of a court’s judgment reverberates throughout the community in
which it is rendered, affecting issues of life, liberty, and property in ways
that are more pervasive and penetrating than what usually appears on the
surface—or under it.”45
The impact of judicial decisions has even been codified in

paragraph 2 of the Canon of Judicial Ethics: “Every judge should at
all times be alert in his rulings and in the conduct
_______________
44 Supra note 33 at p. 282.
45 Foreword of Justice Ameurfina A. Melencio Herrera, “F
D W J ,” (2009).
207
VOL. 642, FEBRUARY 8, 2011 207

VOL. 642, FEBRUARY 8, 2011 207

of the business of his court, so far as he can, to make it useful to

litigants and to the community.”
The error in the contention of the majority that judicial writing
does not put a premium on originality is evident. In the words of
Daniel Farber, stare decisis has become an oft-repeated catchphrase
to justify an unfounded predisposition to repeating maxims and
doctrines devoid of renewed evaluation.
“In reviewing the Court’s work, we saw a fixation on verbal formulas;

likewise, race scholarship frequently seems to suffer from a similar fixation
on stylized rhetoric. Yet Holmes’ adage defines the problem a bit too
narrowly–suggesting that we mostly need less abstraction and more
concreteness. This deficiency actually is part of the problem; we could
surely benefit from more empirical research and sensitivity to concrete
factual situations. Yet, the problem goes beyond that.”46
The consistent resort to stare decisis fails to take into account

that in the exercise of the Court’s self-proclaimed symbolic function,
its first accountability is to its audience: the public. Its duty of
guiding the bench and the bar comes a close second.
“Consider first the judge. A key weakness of current Supreme Court

opinions seems to be that judges have sometimes lost track of whom they
are addressing or what they are trying to accomplish. Of course, they have
no literal clients, but they seek to advance a set of values and perspectives
that might serve as the basis for identifying metaphorical clients…The
purpose, then, is to help the system work as well as possible according to its
own norms and goals…
Often, the purpose is to guide other courts to advance the client’s
interests in their own decisions. In this respect, the important part of the
opinion is that portion speaking to future cases–though as we have seen,
judges sometimes fail to focus their energies there. Additionally, the
opinion, if it is to elicit more than the most grudg-
_______________
46 Daniel Farber, Missing the Play of Intelligence, 6 Wm. & Mary L. Rev. 147, (1994).
208


ing obedience, must appeal to the values and goals of those judges as well as
to the author’s.47
The Court seemingly views the issuance of opinions to be an end in
itself, as if the text of the opinion had some autonomous value unrelated
to its ability to communicate to an audience. At a deeper level, the
intellectual flaw in the statutory-interpretation opinions is similar. The
Court often treats statutes as free-standing texts, with little attention to
their historical and social contexts or what their drafters were trying to
achieve.”48
Thus, the value of ethical judicial writing vis-à-vis the role that
courts are called upon to play cannot be underestimated.
“Worrying about the ethical status of judicial opinions seems pointless at

first. Complaints about decisions and the opinions that explain them have
been around as long as judges have been judging. As technology has
lowered the cost of research, and of cutting and pasting earlier work,
opinions often seem to be formal exercises that do not suggest deep judicial
engagement. Other opinions do show the hand of a deeply engaged judge,
though these can be worse than the cut-and-pasted kind. What then is to be
gained by trying to make an ethical issue of judicial writing? … Professor
Llewellyn said it is in part because the judicial office acts as “a subduer of
self and self-will, as an engine to promote openness to listen and to
understand, to quicken evenhandedness, patience, sustained effort to
see and judge for All-of-Us.” 49
The lessons taught our country by its singular experience in

history has given rise to a more defined place for our courts. With
the constitutional mandate that the Supreme Court alone can
exercise judicial review, or promulgate rules and guidelines for the
bench and the bar, or act as the arbiter between the two branches of
government, it is all the more
_______________
47 Id., at p. 170.
48 Id., at footnote 40.
49 David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14
Geo. J. Legal Ethics 509, 509. (2001).
209
VOL. 642, FEBRUARY 8, 2011 209

VOL. 642, FEBRUARY 8, 2011 209

evident that standards for judicial behavior must be formulated.

After all, “the most significant aspect of the court’s work may lie in
just this method and process of decision: by avoiding absolutes, by
testing general maxims against concrete particulars, by deciding
only in the context of specific controversies, by finding
accommodations between polar principles, by holding itself open to
the reconsideration of dogma, the court at its best, provides a symbol
of reconciliation.”50
According to Paul Freund, the great fundamental guarantees of
our Constitution are in fact, moral standards wrapped in legal
commands. It is only fitting that the Court, in taking on the role of a
public conscience, accept the fact that the people expect nothing less
from it than the best of faith and effort in adhering to high ethical
standards.
I affirm my response to the dispositive portion of the majority
Decision in this case as stated in my Dissent of 12 October 2010,
with the modification that more work of more authors must be
appropriately acknowledged, apologies must be extended, and a
more extensively corrected Corrigendum must be issued. Again, I
make no pronouncement on liability, not only because the process
was erroneously cut short by the majority when it refused to proceed
to the next step of determining the duty of diligence that a judge has
in supervising the work of his legal research, and whether, in this
instance, Justice del Castillo discharged such duty, but also because
of the view expressed by Justice Carpio that this Court had best
leave the matter of clearing Justice del Castillo to Congress, the
body designated by the Constitution for such matters. It seems now
that the process of determining the degree of care required in this
case may never be undertaken by this Court. One thing is certain,
however: we cannot allow a heavily plagiarized Decision to remain
in our casebooks—it must be corrected. The issues are very clear to
the general public. A
_______________
50 Paul A. Freund, “The Supreme Court” in T A L 81-94 (rev.

ed., 1972).
210


wrong must be righted, and this Court must move forward in the
right direction.
Motion for Reconsideration denied.
Note.—A decision that does not clearly and distinctly state the
facts and the law on which it is based leaves the parties in the dark
as to how it was reached and is precisely prejudicial to the losing
party, who is unable to pinpoint the possible errors of the court for
review by a higher tribunal. More than that, the requirement is an
assurance to the parties that, in reaching judgment, the judge did so
through the processes of legal reasoning. It is, thus, a safeguard
against the impetuosity of the judge, preventing him from deciding
ipse dixit. (Yao vs. Court of Appeals, 344 SCRA 202 [2000])
——o0o——
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A.M. No. 10-7-17-SC. February 8, 2011.

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

Administrative Complaints; Plagiarism; There is no commonly-used

12 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

12 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

Same; Same; Judgments; The interest of society in written decisions is

VOL. 642, FEBRUARY 8, 2011 13

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

VOL. 642, FEBRUARY 8, 2011 13

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

14 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

14 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

VOL. 642, FEBRUARY 8, 2011 15

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

VOL. 642, FEBRUARY 8, 2011 15

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

protected under Intellectual Property Law. While it is incumbent upon her to

16 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

16 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

Court of “plagiarism” is limited to this context and cannot be held to bind

VOL. 642, FEBRUARY 8, 2011 17

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

VOL. 642, FEBRUARY 8, 2011 17

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

SERENO, J., Dissenting Opinion:

18 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

18 SUPREME COURT REPORTS ANNOTATED

In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice

MOTION FOR RECONSIDERATION of a decision of the Supreme

1 April 28, 2010, 619 SCRA 533.

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VOL. 642, FEBRUARY 8, 2011 19

else, condemns plagiarism as the world in general understands and

“To paraphrase Bast and Samuels, while the academic publishing

20 SUPREME COURT REPORTS ANNOTATED

20 SUPREME COURT REPORTS ANNOTATED

spect. The strength of a decision lies in the soundness and general

Original scholarship is highly valued in the academe and rightly

4 In the Matter of the Charges of Plagiarism, etc., Against Associate Justice

VOL. 642, FEBRUARY 8, 2011 21

VOL. 642, FEBRUARY 8, 2011 21

6 Black’s Law Dictionary (6th Edition, 1990), p. 1406.

22 SUPREME COURT REPORTS ANNOTATED

22 SUPREME COURT REPORTS ANNOTATED

freely use these without fear of committing some wrong or

“The tendency to copy in law is readily explicable. In law accuracy

“A judge writing to resolve a dispute, whether trial or appellate, is

7 Duncan Webb, Plagiarism: A Threat to Lawyers’ Integrity? Published by the International

VOL. 642, FEBRUARY 8, 2011 23

VOL. 642, FEBRUARY 8, 2011 23

solve a dispute. As a result, judges adjudicating cases are not subject to

If the Court were to inquire into the issue of plagiarism