EN BANC

[A.M. No. 10-7-17-SC. February 8, 2011.]

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL
CASTILLO

RESOLUTION

PER CURIAM : p

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 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 respect. The strength of a decision lies in the soundness and general acceptance
of the precedents and long held legal opinions it draws from. 4 SacTCA

Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain
dissertations 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 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.
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 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
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 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: TaEIAS

A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism
even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or
language from 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 resolve a dispute. As a result, judges adjudicating
cases are not subject to a claim of legal plagiarism. 8

If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice
Cayetano S. 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 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 citation
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.
xxx xxx xxx
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 IADCES

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.
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
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 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.
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see separate dissenting opinion.
Leonardo-de Castro and Perez, JJ., concur and also join the separate opinions of Justice Brion and Justice Abad.
Brion, J., see separate concurring opinion.
Peralta, Bersamin and Mendoza, JJ., join the opinion of Justice A. Brion.
Del Castillo, J., took no part.
Abad, J., with a separate concurring opinion.
Sereno, J., please see dissenting opinion.

Separate Opinions
CARPIO, J., dissenting:

I dissent on two grounds. First, this Court has no jurisdiction to decide in an administrative case whether a sitting
Justice of this 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 Copyright 1 as the judge has no power to exempt himself from the
mandatory requirements of the law. ICDSca

I. Disciplining Authority of Impeachable Officers

Under the Constitution, the sole disciplining authority of all impeachable officers, including Justices of this Court, is
Congress. Section 3 (1), Article XI of the Constitution provides that, "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment." Likewise, Section 3 (6) of the same Article provides that, "The Senate shall have
the sole power to try and decide cases of impeachment." These provisions constitute Congress as theexclusive 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.

While impeachment is often described as a political process, it also functions as theequivalent 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 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.
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-
civil proceeding 8 whether a sitting Justice of this Court has committed plagiarism. Plagiarism is a betrayal of public trust
because, as the majority puts it, to plagiarize is "'to steal and pass off as one's own' the ideas of another." 9 However, in
writing judicial decisions a judge is liable 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 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
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 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 following exchange during the
deliberations of the Constitutional Commission: IcHSCT

MR. GUINGONA: . . . .

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.

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 governed by another provision,
that is, Section 11, Article VIII of the Constitution. Section 11 provides:
Section 11. . . . The Supreme Court en banc shall have the power to discipline judges of lower courts , or order
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.
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. Moreover, a similar law cannot be enacted in
the Philippines because 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. IDETCA

II. The Judge Must Follow the Law on Copyright

a. Copying from Works of the Government
In writing judicial decisions, a judge should make the proper attribution in copying passages from any judicial
decision, statute, regulation, or other Works of the Government. The Manual of Judicial Writing adopted 11 by this
Court provides how 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 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 3.01 15 and Rule 3.02 16 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 pleader that the judge may make any use of the pleadings
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 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: aEHASI

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;

xxx xxx xxx

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;
xxx xxx xxx. (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 . . . ." 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 him . . . 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 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. TIESCA

Two essential elements of an author's moral rights are the right to attribution and the right to integrity. The right to
attribution or paternity 21 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 recognized 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
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 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 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. EcAISC

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
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.

CARPIO MORALES, J., dissenting:

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 groundsother 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
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. Gonzales, 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.
. . . 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.
. . . 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 tenure of the Supreme Court Justice be thus
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 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) aTICAc

The Court declared the same principle in Jarque v. Desierto 6 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, "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 law 11 in terms of grounds and penalties.
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. cHDaEI

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 Biraogo 12 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
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 inBiraogo 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, butonly insofar as Justice Del
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 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 document 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
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 Cabalquinto 15 which
should apply only to cases involving violence against women and children. 16 cESDCa

The unjustified non-disclosure of her identity is unfair to Atty. Evangelista who, aside from having his own credentials 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, orthe 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
negligent 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 theVinuya 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
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: HcaDIA

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.

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.cSTCDA

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 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.

BRION, J., concurring:

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 "highly improper for . . . the Court . .
. 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 Law 3 — 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" o r "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 theVinuya Decision
and that "no attributions were made to the . . . 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: THCASc

first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person
reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice
Del Castillo "twisted" their intended messages. And, second, the lifted passages provided mere background facts that
established the state of international law at various stages of its development. These are neutral data that could support
conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue
another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens.

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.
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
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 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 decide 7 all cases of impeachment, Justice Carpio posits that the Congress serves 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. cCaIET

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
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.
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 bar 10 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 contempt 11 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 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 . . . [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 overall
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. DHITcS

Independent of the grant of supervisory authority and at a more basic level, the Supreme Court cannot be expected to
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 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, 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 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.

xxx xxx xxx

[The] Constitution does . . . 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. cSEAHa

It needs no elaborate demonstration to show that the threat of impeachment for every perceived misconduct or
misdemeanor would open Justices of the Court to harassment. 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 consuming 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 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
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 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 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 of 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 thatno 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 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 AaIDHS

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
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 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,
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 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: CTEaDc

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.

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.

xxx xxx xxx

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."
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. HDaACI

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 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.
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
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 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.
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. HCEcaT

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
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.
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] cSEAHa

xxx xxx xxx

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'sUnderstanding on Dispute
Settlement, she did not have to make attributions to those 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:
xxx xxx xxx

The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate
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 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."

xxx xxx xxx

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, 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. DTCSHA

Sereno, J. Original work — GATT Annex 2,

Understanding on Dispute Settlement

Following the expiration of the set period

After receipt of comments from the
of
time for receipt of comments from the
parties, the panel shall issue an interim
parties
report to them, including both the to the dispute, the panel shall issue an
descriptive sections and the panel's interim report to the parties, including
findings and conclusions. The parties both the descriptive sections and the
panel's findings and conclusions.
may submit written requests for the panel
Within a
period of time set by the panel, a party
to review precise aspects of the interim
may
submit a written request for the panel
report for which the panel shall meet
to
review precise aspects of the interim
with the parties. If no comments are
report
received from any party within the prior to circulation of the final report to the
Members. At the request of a party, the
comment period, the interim report shall
panel
be considered the final panel report and shall hold a further meeting with the parties
circulated promptly to the members. on the issues identified in the written
(page 7) 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 concludes that a Where a panel or the Appellate Body
concludes that a measure is
measure is inconsistent with a covered
inconsistent
agreement, it shall recommend that the with a covered agreement, it shall
recommend that the Member
member concerned bring the measure
concerned
bring the measure into conformity
into conformity with that agreement. In
with
addition to its recommendations, the that agreement. In addition to its
recommendations, the panel or
panel or AB may suggest ways by which
Appellate
the member concerned could implement Body may suggest ways in which the
Member concerned could implement
the recommendations. (page 8)
the
recommendations.

[Article 19.1, GATT Annex 2]

Within 60 days after the date of

The DSB shall adopt the report within 60
circulation
days of the issuance of a panel report to of a panel report to the Members, the
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 the members, unless one of the parties to report shall be adopted at a DSB
meeting
the dispute formally notifies the DSB of unless a party to the dispute formally
notifies the DSB of its decision to
its decision to appeal, or the DSB
appeal or
the DSB decides by consensus not to
decides by consensus not to adopt the
adopt
report. If the panel report is on appeal, the report. If a party has notified its
decision to appeal, the report by the
the panel report shall not be considered
panel
shall not be considered for adoption
for adoption by the DSB until the
by the
DSB until after completion of the
completion of the appeal. (page 7-8)
appeal.

[Article 16.4, GATT Annex 2]

The Appellate Body may uphold,

It may uphold, modify, or reverse the
modify or
reverse the legal findings and
legal findings and conclusions of the
conclusions of
panel. (page 8) the panel.

[Article 17.13, GATT Annex 2]

An appeal shall be limited to issues of

Note that the AB reviews only issues of
law
law covered in the panel report and legal covered in the panel report and legal
interpretations developed by the
interpretation developed by the panel.
panel.
(page 8)
[Article 17.6, GATT Annex 2]

The DSB shall keep under surveillance The DSB shall keep under surveillance the
the implementation of adopted implementation of adopted
recommendation or rulings. Any recommendations or rulings. The issue of
member may raise the issue of implementation of the recommendations
implementation of the recommendations or rulings may be raised at the DSB by any
or rulings at the DSB anytime following Member at any time following their
their adoption. (page 8) adoption.

[Article 21.6, GATT Annex 2]

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 facilitates The difference between [good offices and
the negotiations between the parties mediation] is that, whereas good offices
concerned. It involves direct conduct of consist in various kinds of action
tending to call negotiations between
negotiations between the parties at issue
the
on the basis of proposals made by the conflicting States into existence,
mediator. mediation consists in a direct conduct of
negotiations between the differing
On the other hand, good offices are a parties on the basis of proposals made
friendly offer by a third party, which by the mediator.
tries to induce disputants to negotiate
among themselves. Such efforts may [Oppenheim, International Law, A
consist of various kinds of actions Treatise volume 2 page 11 (1920)]
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 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 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
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 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 and 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 judicially Prominent on the surface of any case held
discoverable and manageable standard to involve a political question is found a
for resolving the question, nor textually demonstrable constitutional
impossibility of deciding the question commitment of the issue to a coordinate
without an initial policy determination political department; or a lack of
judicially discoverable and
of a kind clearly for non-judicial
manageable
discretion. standards for resolving it; or the
impossibility of deciding without an
initial policy determination of a kind
clearly for non-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: ICHcTD

J. Sereno Original Work — WTO Factsheet

The World Trade Organization (WTO) The World Trade Organization (WTO),
was established on January 1, 1995. It established on January 1, 1995, is a
is a multilateral institution charged with multilateral institution charged with
administering rules for trade among administering rules for trade among
member countries. The WTO functions member countries. . . .
as the principal international body The WTO functions as the principal
concerned with multilateral negotiations international body concerned with
on the reduction of trade barriers and multilateral negotiations on the
other measures that distort competition. reduction of trade barriers and other
measures that distort competition.
The WTO also serves as a platform for
The
countries to raise their concerns WTO also serves as a platform for
regarding the trade policies of their countries to raise their concerns
trading partners. The basic aim of the regarding the trade policies of their
trading partners. The basic aim of
WTO is to liberalize world trade and
the
place it on a secure basis, thereby WTO is to liberalize world trade and
contributing to economic growth place it on a secure basis, thereby
and development. contributing to economic growth and
development.

[WTO FACTSHEET http://www.fas.usda.

gov/info/factsheets/wto.html (last
accessed February 13, 2008)]

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:
. . . 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:
. . . [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:
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 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. . . . (At p. 416)

Justice Sereno mimicked — HDATSI

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)

Judge Posner wrote —

Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and non-
monetary elements . . . . (At p. 415)

Justice Sereno mimicked —

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. . . . (At page
489)

Judge Posner wrote —

[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]

Justice Sereno mimicked —

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)

Judge Posner wrote —

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]

Justice Sereno mimicked —

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 landowners and if he walks to work, he
will generally favor pedestrians. (page 489)

Judge Posner wrote —

[J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416]

Justice Sereno mimicked —

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 inVinuya, 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. cADEHI

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.

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 authors 1 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 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
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 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. ECSHID

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 Decision 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
regarding 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 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. cdtai

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
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
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 to one table entry.
Following the presentation of the tables, the process whereby plagiarism could have been committed inVinuya 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 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-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. HDaACI

INTERNATIONAL SOURCE
BEING
THE ALLEGEDLY ANALYZED BY CRIDDLE AND
PLAGIARIZED WORK THE DECISION FOX-DECENT

Evan J. Criddle & Evan Vinuya v. Executive

Fox-Decent, A Fiduciary Secretary, G.R. No. 162230,
Theory of Jus Cogens, 34 28 April 2010.
YALE J. INT'L L. 331
(2009).

1. . . . judges on the Permanent . . . Judges on the Permanent . . . It is an essential principle

Court of International Court of International of any court, whether
Justice affirmed the Justice affirmed the national or international,
existence of peremptory existence of peremptory that the judges may only
norms in international law norms in international law recognize legal rules which
by referencing treaties by referencing treaties they hold to be valid. There
contra bonos mores contra bonos mores is nothing to show that it
(contrary to public policy) (contrary to public policy) was intended to disregard
in a series of individual in a series of individual that legal principle when
concurring and dissenting concurring and dissenting this Court was instituted, or
opinions. 10 opinions. (For example, in that it was to be obliged to
the 1934 Oscar Chinn Case, found its decisions on the
10 For example, in the 1934 Judge Schücking's ideas of the parties — which
Oscar Chinn Case, Judge influential dissent stated may be entirely wrong — as
Schücking's influential that neither an international to the law to be applied in a
dissent stated that neither court nor an arbitral tribunal given case . . . . The Court
an international court nor should apply a treaty would never, for instance,
an arbitral tribunal should provision in contradiction to apply a convention the
apply a treaty provision in bonos mores. Oscar Chinn terms of which were
contradiction to bonos Case, 1934 P.C.I.J. (ser. contrary to public morality.
mores. Oscar Chinn Case, A/B) No. 63, at 149-50 But, in my view, a tribunal
1934 P.C.I.J. (ser. A/B) No. (Dec. 12) (Schücking, J., finds itself in the same
63, at 149-50 (Dec. 12) dissenting). position if a convention
(Schücking, J., dissenting). adduced by the parties is in
reality null and void, owing
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 to a flaw in its origin. The
attitude of the tribunal
should, in my opinion, be

governed in such a case by

considerations of
international public policy,
even when jurisdiction is
conferred on the Court by
virtue of a Special
Agreement.

Source:

(p. 335 of Criddle and Fox- (p. 31, footnote 71 of The Oscar Chinn Case
Decent) Vinuya) (U.K. v. Belg.) , 1934 P.C.I.J.
(ser. A/B) No. 63, at 149-50
(Dec. 12) (separate opinion
of Judge Schücking).

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

the consent of the parties.

Source:

(p. 346, footnote 67 of Criddle (p. 32, footnote 77 of Vinuya) Armed Activities on the
and Fox-Decent) Territory of the Congo (Dem.
Rep. Congo v. Rwanda),
2006 I.C.J. 6, 31-32 (Feb. 3).

3. Similarly, the European Court 77

Similarly, the European Court 61 While the Court accepts,
of Human Rights has of Human Rights has addressed on the basis of these
addressed jus cogens only jus cogens only once, in authorities, that the
once, in Al-Adsani v. United Al-Adsani v. United Kingdom , prohibition of torture has
Kingdom, when it famously when it famously rejected the achieved the status of a
rejected the argument that argument that jus cogens peremptory norm in
jus cogens violations would violations would deprive a international law, it observes
deprive a state of sovereign state of sovereign immunity. that the present case
immunity. 75 Al-Adsani v. United Kingdom , concerns. . . the immunity
2001-XI Eur. Ct. H.R. 79, ¶ 61) of a State in a civil suit for
damages in respect of acts of
75 Shelton, supra note 3, at 309 torture within the territory of
(discussing Al-Adsani v. that State. Notwithstanding the
United Kingdom , 2001-XI Eur. special character of the
Ct. H.R. 79, ¶ 61). prohibition of torture in
international law, the Court is
unable to discern in the
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 international instruments,
judicial authorities or other
materials before it any firm
basis for concluding that, as a
matter of international law, a
State no longer enjoys
immunity from civil suit in the
courts of another State where
acts of torture are alleged. . . .

Source:

(p. 347 of Criddle and (p. 32, footnote 77 of Vinuya) Al-Adsani v. United Kingdom,
Fox-Decent) 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.
INTERNATIONAL SOURCE
BEING
THE ALLEGEDLY ANALYZED BY ELLIS
COPIED WORK THE DECISION

Mark Ellis's article entitled Vinuya v. Executive Secretary,

Breaking the Silence: Rape as G.R. No. 162230, 28 April 2010.
an International Crime 38
Case W. Res. J. Int'l. L. 225
(2006-2007).

1. A major step in this legal 65 . . . A major step in this legal

development came in 1949, development came in 1949, [Article 50/51/147]
when rape and sexual assault when rape and sexual assault
were included in the Geneva were included in the Geneva Grave breaches to which the
Conventions. . . . Rape is Conventions. Rape is included preceding Article relates shall
included in the following acts in the following acts committed be those involving any of the
committed against persons against persons protected by following acts, if committed
protected by the 1949 Geneva the 1949 Geneva Conventions: against persons. . . protected
Conventions: "wilful killing, willful killing, torture or by the Convention: willful
torture or inhuman treatment, inhuman treatment, including killing, torture or inhuman
including biological biological experiments; willfully treatment, including biological
experiments; wilfully causing causing great suffering or experiments, wilfully causing
serious injury to body or
great suffering or serious great suffering or serious
health."
. . . (See Geneva Convention
injury to body or health." 65 injury to body or health. . . .
for
the Amelioration of the
65 Fourth Geneva Convention, Condition of the Wounded and
supra note 23, art. 147. Sick in Armed Forces in the Source:
Field, art. 3 (1) (c), 75 U.N.T.S.
31; Geneva Convention for the
Amelioration of the Condition Geneva Convention (I) for the
of Wounded, Sick and Amelioration of the Condition
Shipwrecked Members of
of the Wounded and Sick in
Armed
Forces at Sea, art. 3 (1) (c), 75 Armed Forces in the Field, 75
U.N.T.S. 85; Geneva
U.N.T.S. 31; Geneva
Convention
Relative to the Treatment of Convention (II) for the
Prisoners of War, art. 3 (1) (c), Amelioration of the Condition
75 U.N.T.S. 973; Fourth Geneva of Wounded, Sick and
Convention, supra note 23, art. Shipwrecked Members of
3 (1) (c). 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)
(p. 236 of Ellis) (p. 28, footnote 65 of Vinuya) Relative to the Protection of
Civilian Persons in Time of
War, 75 U.N.T.S. 287.

65 . . . Rape as a violation of
2. Rape as a violation of the laws Article 3
the
laws or customs of war
or customs of war generally xxx xxx xxx
generally
consists of violations of consists of violations of
Article 3 of the 1949 Geneva Article 3 of the 1949 Geneva (a) violence to life and person,
Conventions, which, in part, Conventions, which, in part, in particular murder of all
prohibits violence to life and prohibits "violence to life and kinds, mutilation, cruel
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 person, in particular
mutilation, cruel treatment person, in particular
cruel treatment mutilation, treatment
and torture; and
(b) taking of torture;
hostages;
and torture; outrages upon outrages upon personal dignity,(c) outrages upon personal
personal dignity, in particular
in particular humiliating and dignity, in particular
humiliating and degrading degrading treatment." (See humiliating and degrading
treatment." 66 Geneva Convention for the treatment; . . .
Amelioration of the Condition
66 See Geneva Convention for of the Wounded and Sick in Source:
the Amelioration of the Armed Forces in the Field, art.
Condition of the Wounded 3 (1) (c), 75 U.N.T.S. 31; Geneva Convention (I) for the
and Sick in Armed Forces in Geneva Convention for the Amelioration of the Condition
the Field, art. 3 (1) (c), 75 Amelioration of the Condition of the Wounded and Sick in
U.N.T.S. 31; Geneva of Wounded, Sick and Armed Forces in the Field, 75
Convention for the Shipwrecked Members of U.N.T.S. 31; Geneva
Amelioration of the Armed Forces at Sea, art. 3 (1) Convention (II) for the
Condition of Wounded, Sick (c), 75 U.N.T.S. 85; Geneva Amelioration of the Condition
and Shipwrecked Members Convention Relative to the of Wounded, Sick and
of Armed Forces at Sea, art. Treatment of Prisoners of War, Shipwrecked Members of
3 (1) (c), 75 U.N.T.S. 85; art. 3 (1) (c), 75 U.N.T.S. 973; Armed Forces at Sea, 75
Geneva Convention Relative Fourth Geneva Convention, U.N.T.S. 85; Geneva
to the Treatment of Prisoners supra note 23, art. 3 (1) (c). Convention (III) Relative to
of War, art. 3 (1) (c), 75 the Treatment of Prisoners of
U.N.T.S. 973; Fourth Geneva War, 75 U.N.T.S. 973;
Convention, supra note 23, Geneva Convention (IV)
art. 3 (1) (c). . . . Relative to the Protection of
Civilian Persons in Time of
War, 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 Fourth Article 27

Geneva Convention, directed Geneva Convention, directed
at protecting civilians during at protecting civilians during Women shall be especially
time of war, states that time of war, states that protected against any attack on
women shall be especially women shall be especially their honour, in particular
protected against any attack
protected against any attack against rape, enforced
on
on their honour, in particular their honour, in particular prostitution, or any form of
against rape, enforced against rape, enforced indecent assault.
prostitution, or any form of prostitution, or any form of
indecent assault. 67 indecent assault. Source:

67 Fourth Geneva Convention, Geneva Convention (IV)

supra note 23, art. 27. Relative to the Protection of
Civilian Persons in Time of
War, 75 U.N.T.S. 287.
(p. 236 of Ellis) (p. 28, footnote 65 of Vinuya)

4. Protocol I of the Geneva 65 . . .Protocol I of the Geneva Article 76. Protection of

Conventions continues to Conventions continues to women
expand the protected rights by expand the protected rights by
providing that "women shall providing that "women shall 1. Women shall be the object
be the object of special be the object of special respect of special respect and shall be
respect and shall be protected and shall be protected in protected in particular against
in particular against rape, particular against rape, forced rape, forced prostitution and
forced prostitution and any prostitution and any form of any other form of indecent
form of indecent assault." 68 indecent assault." (Protocol assault.
Additional to the Geneva
68 Protocol Additional to the Conventions of August 12, Source:
Geneva Conventions of 12 1949, and Relating to the
August 1949, and Relating to Protection of Victims of Protocol Additional to the
the Protection of Victims of International Armed Geneva Conventions of 12
International Armed Conflicts Conflicts (Protocol I), Article August 1949, and relating to
(Protocol I), Article 76 (1), 76 (1), 1125 U.N.T.S. 4). the Protection of Victims of
1125 U.N.T.S. 4. International Armed Conflicts
(Protocol I), 1125 U.N.T.S. 3.
(pp. 236-237 of Ellis) (p. 28, footnote 65 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. EICDSA

INTERNATIONAL SOURCE
BEING
THE ALLEGEDLY ANALYZED AND USED
COPIED WORK THE DECISION BY MCCORQUODALE/
OKOWA
Essays published in Vinuya v. Executive Secretary,
MALCOLM EVANS, G.R. No. 162230, 28 April 2010.
INTERNATIONAL LAW
(ed., 2006).
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 1. Traditionally, the only means . . . traditionally, the only means Note:
available for individuals to available for individuals to bring
bring a claim within the a claim within the international Page 231 of the Appeal from a
international legal system has legal system has been when the Judgment of the Hungaro-
been when the individual is individual is able to persuade a Czechoslovak Mixed Arbitral
able to persuade a
government to bring a claim Tribunal case — the citation
government
to bring a claim on the on the individual's behalf. 55 nearest in location and in
individual's behalf. Even then, Even then, it is not the context to the passage — does
it is not the individual's individual's rights that are not contain a discussion on
international rights that are being asserted, but rather, the "persuad[ing] a government to
being asserted but the state's own rights. bring a claim on the
State's own rights. . . . individual's behalf."

55 . . . Appeal from a Judgment The reference to Appeal from

of the Hungaro/Czeochoslovak a Judgment of the Hungaro-
Mixed Arbitral Tribunal, Czechoslovak Mixed Arbitral
Judgment, 1933, PCIJ, Ser. Tribunal case occurs in
A/B No. 61, p. 208 at 231. McCorquodale as footnote 14,
four sentences before the
passage copied by Vinuya,
and is made following the
quote, 'it is scarcely necessary
(pp. 315-16 of Evans's (p. 24, Body of Vinuya) to point out that the capacity
International Law book, essay to possess civil rights does not
written by McCorquodale) 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 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 understanding55 The conceptual understanding
that individuals have rights
and that individuals have rights and

responsibilities in the responsibilities in the

international legal system
international arena does not
does
not automatically mean that automatically mean that they
they have the ability to bring have the ability to bring
international claims to assert international claims to assert
their rights or are able to
their rights. Thus, the Permanent
claim
an immunity to prevent their Court of International Justice
responsibilities being
declared that "it is scarcely Again, it is scarcely necessary
enforced
(Hohfeld, above). Thus the necessary to point out that the to point out that the capacity
PCIJ declared that 'it is capacity to possess civil rights to possess civil rights does not
scarcely necessary to point does not necessarily imply the necessarily imply the capacity
out that the capacity to
capacity to exercise those rights to exercise those rights
possess
civil rights does not
oneself." Appeal from a oneself. No argument against
necessarily
imply the capacity to exercise Judgment of the Hungaro/ the University's personality in
those rights oneself'. 14 Czeochoslovak Mixed Arbitral law can therefore be deduced
Tribunal, Judgment, 1933, PCIJ, from the fact that it did not
14 Appeal from a Judgment of Ser. A/B No. 61, p. 208 at 231. enjoy the free disposal of the
the Hungaro/Czechoslovak property in question. . . .
Mixed Arbitral Tribunal,
Judgment, 1933, PCIJ, Ser Source:
A/B, No. 61, p. 208 at p. 231
Appeal from a Judgment of
the Hungaro-Czechoslovak
Mixed Arbitral Tribunal
(p. 315 of Evans's (p. 24, footnote 55 of Vinuya) (Peter Pázmány University v.
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 International Law book, essay
written by McCorquodale)
Czechoslovakia) , 1933
P.C.I.J. 208, (ser. A/B) No.
61, at 231 (Dec. 15).
3. The decisions of national Even decisions of national courts
courts on these constitutional support the thesis that general
provisions nevertheless international law as it stands
support the thesis that
does not mandate an
general
international law as it stands enforceable legal duty of
does not mandate an diplomatic protection.
enforceable legal duty of
diplomatic protection. 17

17 Kaunda and others v.

President of the Republic of

South Africa and others, Case
CCCT23/04. In the Hess
Decision BverfGE, 55, 349, 90
ILR 386, the German Federal
Constitutional Court upheld
the existence of a federal
constitutional right to
diplomatic protection but Note:
denied that it was required by
customary international law. In Okowa's essay, this
See also Abbasi v. Sec of statement follows a paragraph
Foreign and Commonwealth in which she discusses
Affairs and Sec of Home Kaunda in the context of
Office [2002] EWCA Civ discretionary diplomatic
1598, 6 November 2002. protection. Thus, for the
pertinent passages of Kaunda
please see entry 5 of this table.
(p. 484 of Evans's (p. 26, footnote 63 of Vinuya)
International Law book, essay
written by Okowa )

4. This position was been 63 . . . has been challenged in the 1. Feroz Ali Abbasi, the first
challenged in the UK in a case UK in a case arising from the claimant, is a British
arising from the clearly unlawful detention by the US of national. . . . They seek, by
internationally unlawful prisoners in Guantanamo Bay judicial review, to compel the
detention by the US of from the time of the Foreign Office to make
prisoners in Guantanamo Bay Afghanistan conflict in 2001. representations on his behalf
from the time of the In Abbasi v. Secretary of State to the United States
Afghanistan conflict in 2001. for Foreign and Commonwealth Government or to take other
In Abassi v. Secretary of State Affairs ([2002] EWCA Civ 1316, appropriate action or at least
for Foreign and 19 September 2002) the to give an explanation as to
Commonwealth Affairs 19 the applicant (a British national) why this has not been done.
applicant (a British national) sought judicial review of the
sought judicial review of the adequacy of the diplomatic xxx xxx xxx
adequacy of the diplomatic actions of the British government
actions of the British with the US government. . . . 107. . . .On no view would it
government with the US be appropriate to order the
government. . . . Secretary of State to make any
specific representations to the
United States, even in the face
of what appears to be a clear
breach of a fundamental
(p. 316 of Evans's (p. 26, footnote 63 of Vinuya) human right, as it is obvious
International Law book, essay that this would have an impact
written by McCorquodale) 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 63 . . .The South African [65] The founding values of
Constitutional Court in Constitutional Court in Kaunda our Constitution include
Kaunda and others v. and others v. President of the human dignity, equality and
President of the Republic of Republic of South Africa and the advancement of human
South Africa and others 16 others (Case CCCT23/04) rights and freedoms. . . .
recognized the constitutional recognized the constitutional
basis of the right of diplomaticbasis of the right of diplomatic xxx xxx xxx
protection as enshrined in the protection as enshrined in the
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 South African constitution, South African Constitution, but [69] There may thus be a duty
but went on to hold that the went on to hold that the nature on government, consistent
nature and extent of his and extent of this obligation with its obligations under
obligation was an aspect of was an aspect of foreign policy international law, to take
foreign policy within the within the discretion of the action to protect one of its
discretion of the executive. executive. citizens against a gross abuse
of international human rights
norms. . . .

xxx xxx xxx

16 Kaunda and others v. [73] A court cannot tell the

President of the Republic of government how to make
South Africa and others, diplomatic interventions for
Case CCCT23/04. the protection of its
nationals. . . .

xxx xxx xxx

[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
matters with which courts are
ill equipped to deal. . . .

Source:

(p. 484 of Evans's (p. 27, footnote 63 of Vinuya) Kaunda v. President of the
International Law book, Republic of South Africa, 44
essay written by Okowa) 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.
THE PURPORTED
"ORIGINAL"
SOURCE CITED BY THE
THE ALLEGEDLY
CONCERNED
AUTHORS AND IN THE
COPIED WORK THE DECISION
VINUYA
DECISION
Mariana Salazar Albornoz, Vinuya v. Executive Secretary,
Legal Nature and Legal G.R. No. 162230, 28 April 2010.
Consequences of Diplomatic
Protection: Contemporary
Challenges, 6 ANUARIO
MEXICANO DE DERECHO
INTERNACIONAL 377 (2006)

1. Nowhere is this position more Nowhere is this position more

clearly reflected than in the clearly reflected than in the
dictum of the Permanent Court dictum of the Permanent Court
of International Justice (PCIJ) of International Justice (PCIJ)
in the 1924 Mavrommatis in the 1924 Mavrommatis
Palestine Concessions Case: Palestine Concessions Case:

By taking up the case of By taking up the case of one By taking up the case of one
of its subjects and by
one of its subjects and by of its subjects and by
resorting
resorting to diplomatic resorting to diplomatic action to diplomatic action or
action or international or international judicial international judicial
judicial proceedings on his proceedings on his behalf, a proceedings on his behalf, a
State is in reality asserting
behalf, a State is in reality State is in reality asserting
its
asserting its own right to its own right to ensure, in own right to ensure, in the
person of its subjects,
ensure, in the person of the person of its subjects,
respect
its subjects, respect for the respect for the rules of for the rules of international
rules of international law. international law. The law.
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 The question, therefore, question, therefore, whether
whether the present the present dispute The question, therefore,
dispute originates in an originates in an injury to a whether the present dispute
injury to a private interest, private interest, which in originates in an injury to a
private interest, which in
which in point of fact, is point of fact, is the case in
point
the case in many many international disputes, of fact, is the case in many
international disputes, is is irrelevant from this international disputes, is
irrelevant from this
irrelevant from this standpoint. Once a State has
standpoint.
standpoint. Once a State taken up a case on behalf of Once a State has taken up a
has taken up a case on one of its subjects before case on behalf of one of its
behalf of one of its an international tribunal, in subjects before an
subjects before an the eyes of the latter the international tribunal, in the
international tribunal, in State is sole claimant. 56 eyes of the latter the State is
the eyes of the latter the sole claimant. The fact that
State is sole claimant. 85 Great 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:

85 Mavrommatis Palestine 56 PCIJ, Ser. A, No. 2, p. 11, at Mavrommatis Palestine

Concessions case, supra note 16. This traditional view was Concessions (Greece v. Gr.
9, p. 12. The emphasis is ours. repeated by the PCIJ in the Brit.), 1924 P.C.I.J. (ser. A)
This traditional view was Panevezys-Saldutiskis Railway No. 2, at 12 (Aug. 30).
repeated by the PCIJ in the Case, the Case Concerning the
Panevezys-Saldutiskis Payment of Various Serbian
Railway Case, the Case Loans issued in France,
Concerning the Payment of Judgment of July 12, 1929, PCIJ
Various Serbian Loans issued Reports, Series A No. 20; and in
in France, Judgment of July the Case Concerning the
12, 1929, PCIJ Reports, Series Factory at Chorzow, Judgment
A No. 20; and in the Case of September 13, 1928, Merits,
Concerning the Factory at PCIJ Reports, Series A No. 17.
Chorzow, Judgment of The ICJ has adopted it in the
September 13, 1928, Merits, Reparation for injuries suffered
PCIJ Reports, Series A No. 17. in the service of the United
The ICJ has adopted it in the
Nations Advisory Opinion: ICJ
Reparation for injuries Reports 1949, p. 174; the
suffered in the service of the Nottebohm Case (second phase)
United Nations Advisory Judgment of April 6th, 1955:
Opinion: ICJ Reports 1949, p. ICJ Reports 1955, p. 4 at p. 24;
174; the Nottebohm Case the Interhandel Case
(second phase) Judgment of (Judgment of March 21st, 1959:
April 6th, 1955: ICJ Reports ICJ Reports 1959, p. 6 at p. 27)
1955, p. 4 at p. 24; the and the Barcelona Traction
Interhandel Case (Judgment Light and Power Company
of March 21st, 1959: ICJ Limited case, (Belg. V.
Reports 1959, p. 6 at p. 27) Spain), 1970 I.C.J. 3, 32
and the Barcelona Traction (Feb. 5).
Light and Power Company,
Limited case, supra note 6,
at p. 32 par. 33. It has also
been recognized by other
international tribunals: see, (p. 24 Body of Vinuya)
for example, Administrative
Decision No. V of the US-
German Claims Commission.

(p. 397 of Albornoz)

2. Under this view, the 57 See BORCHARD, E., . . . The citizen abroad has no
considerations underlying the DIPLOMATIC PROTECTION legal right to require the
decision to exercise or not OF CITIZENS ABROAD AT VI diplomatic protection of his
national government. Resort
diplomatic protection may (1915). Under this view, the
to
vary depending on each case considerations underlying the this remedy of diplomatic
and may rely entirely on policy decision to exercise or not protection is solely a right of
considerations regardless of diplomatic protection may vary the government, the
justification and expediency
the interests of the directly- depending on each case and
of
its employment being a
injured individual, and the may rely entirely on policy
matter
State is not required to considerations regardless of the for the government's
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 provide justification for its interests of the directly-injured unrestricted discretion. This
decision. 90 individual, and the State is not protection is subject in its
required to provide justification grant to such rules of
90 See in this sense, Borchard for its decision. municipal administrative law
as the state may adopt, and
E., Diplomatic Protection of
in
Citizens Abroad, New York, its exercise internationally to
certain rules which custom
The Banks Law Publishing
has
Co., 1915, at VI. Also: G. recognized.
Berlia, op. cit. (note 86), pp.
63 y 64.

(p. 398 of Albornoz) (p. 25, footnote 57 of Vinuya)

Source:

EDWIN M. BORCHARD,
THE DIPLOMATIC
PROTECTION OF CITIZENS
ABROAD OR THE LAW OF
INTERNATIONAL CLAIMS,
VI (1914).

3. The ILC's First Reading Draft The International Law 60. The texts of the draft
Articles on diplomatic Commission's (ILC's) Draft articles on diplomatic
protection with
protection have fully attached Articles on Diplomatic Protection
commentaries
to the traditional view on the fully support this traditional thereto adopted on first

reading by the Commission

legal nature of such institution. view. They (i) state that the
at
In this sense, (i) they expressly right of diplomatic protection its fifty-sixth session, are
state that the right of belongs to or vests in the State,"reproduced below.
diplomatic protection belongs 59 (ii) affirm its discretionary
to or vests in the State", a nature by clarifying that xxx xxx xxx
statement which gives diplomatic protection is a
Article 2 stresses that the
recognition to the Vattelian "sovereign prerogative" of the
right
notion that an injury to a State; 60 and (iii) stress that of diplomatic protection
national is an indirect injury to the state has the right to belongs to or vests in the
the State"; 96 (ii) they affirm exercise diplomatic protection State. It gives recognition to
its discretionary nature by on behalf of a national. It is the Vattelian notion that an
clarifying that diplomatic under no duty or obligation injury to a national is an
protection is a "sovereign to do so." 61 indirect injury to the
prerogative of the State; 97 State. 59 . . .
and stressing that the state
"has the right to exercise xxx xxx xxx
diplomatic protection on
behalf of a national. It is A State has the right to
exercise diplomatic
under no duty or obligation
protection
to do so." 98 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. . . .

Source:

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

98 ILC First Reading Draft 61 ILC First Reading Draft

Articles on Diplomatic Articles on Diplomatic
Protection, supra note 2, Protection, supra note 60,
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 commentary to Draft Article commentary to Draft Article 2,
2, par. (2). par. (2).

(p. 400 of Albornoz) (p. 25-26 Body of Vinuya)

62 . . . Special Rapporteur 74. The discretionary power

4. . . . Special Rapporteur Dugard
Dugard of
proposed that the ILC adopt in proposed that the ILC adopt in the State to intervene on
its Draft Articles a provision its Draft Articles a provision behalf of its national is
considered in the
under which States would be under which States would be
commentary
internationally obliged to internationally obliged to on article 4.
exercise diplomatic protection exercise diplomatic protection
in favour of their nationals in favor of their nationals injuredArticle 4
1. Unless the injured person
injured abroad by grave abroad by grave breaches to
is
breaches to their jus cogens jus cogens norms, if the able to bring a claim for such
norms, if the national so national so requested and if injury before a competent
international court or
requested and if he/she was he/she was not afforded direct
tribunal,
the State of his/her
not afforded direct access to access to an international
nationality
an international tribunal. 116 tribunal. The proposed article has a legal duty to exercise
reads as follows: diplomatic protection on
116 The proposed article read behalf of the injured person
as follows: "Article [4] 1. Article [4] 1. Unless the upon request, if the injury
results from a grave breach
Unless the injured person is injured person is able to
of
a jus cogens norm
able to bring a claim for such bring a claim for such injury
attributable
injury before a competent before a competent to another State.
international court or tribunal, international court or 2. The State of nationality is
the State of his/her nationality tribunal, the State of his/her relieved of this obligation if:
has a legal duty to exercise nationality has a legal duty (a) The exercise of diplomatic
diplomatic protection on to exercise diplomatic protection would seriously
behalf of the injured person protection on behalf of the endanger the overriding
interests of the State and/or
upon request, if the injury injured person upon
its
results from a grave breach of request, if the injury results people;
a jus cogens norm attributable from a grave breach of a (b) Another State exercises
to another State. 2. The state jus cogens norm attributable diplomatic protection on
of nationality is relieved of this to another State. 2. The behalf of the injured person;
obligation if: (a) The exercise state of nationality is relieved (c) The injured person does
of diplomatic protection would of this obligation if: (a) The not have the effective and
seriously endanger the exercise of diplomatic dominant nationality of the
overriding interests of the State protection would seriously State.
and/or its people; (b) Another endanger the overriding 3. States are obliged to
State exercises diplomatic interests of the State and/or provide in their municipal law
protection on behalf of the its people; (b) Another for the enforcement of this
injured person; (c) The injured State exercises diplomatic right before a competent
person does not have the protection on behalf of the domestic court or other
effective and dominant injured person; (c) The independent national
nationality of the State. States injured person does not authority.
are obliged to provide in their have the effective and
municipal law for the dominant nationality of the
enforcement of this right State. States are obliged to
before a competent domestic provide in their municipal
court or other independent law for the enforcement of
national authority." Dugard, J. this right before a competent
First report on diplomatic domestic court or other
protection, supra note 13, par. independent national
74. authority." Special
Rapporteur John Dugard,
appointed in 1999, First
Report on Diplomatic
Protection, par. 74 (UN Doc
A/CN.4/506 (March 7, 2000)
and Corr. 1 (June 7, 2000)
and Add. 1 (April 20, 2000). Source:

(p. 404 of Albornoz) (p. 26, footnote 62 of Vinuya) Special Rapporteur on

Diplomatic Protection, First
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 was not 62 . . . the proposal was not 456. The Special Rapporteur
accepted by the ILC, as "the accepted by the ILC, as "the recognized that he had
question was still not ripe for question was still not ripe for introduced article 4 de lege
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 treatment" because "the State treatment" because "the State ferenda. As already
practice and their opinio juris practice and their opinio juris indicated,
the proposal enjoyed the
still hadn't evolved in such still hadn't evolved in such support of certain writers, as
direction." 120 direction." Official Records of well as of some members of
the General Assembly: 55th the Sixth Committee and of
120 Official Records of the session, Supplement No. 10, ILA; it even formed part of
some constitutions. It was
General Assembly: 55th Doc. A/55/10 (2000), Report
thus
an exercise in the
session, Supplement No. 10, of the ILC on the work of its
progressive
Doc. A/55/10 (2000), Report 52nd session, p. 131. development of international
law. But the general view
of the ILC on the work of its
was
that the issue was not yet
52nd session, p. 131.
ripe
for the attention of the
Commission and that there
was a need for more State
practice and, particularly,
more opinio juris before it
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."

(p. 405 of Albornoz) (p. 26, footnote 62 of Vinuya) 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).

62 . . . some States have,

6. . . . some States have, indeed, 80. . . . Constitutional
indeed,
incorporated in their incorporated in their municipal provisions in a number of
municipal law a duty to law a duty to exercise States. . . recognize the right
exercise diplomatic protection diplomatic protection in favor of the individual to receive
in favor of their nationals. . . . of their nationals. (Dugard diplomatic protection for
injuries suffered abroad.
Various other States have also identifies this "obligation to
These
included such a "duty to exist in the Constitutions of include: Albania, Belarus,
exercise diplomatic protection" Albania, Belarus, Bosnia and Bosnia and Herzegovina,
under their domestic laws, 130 Herzegovina, Bulgaria, Bulgaria, Cambodia, China,
but their enforceability is also, Cambodia, China, Croatia, Croatia, Estonia, Georgia,
to say the least, questionable Estonia, Georgia, Guyana, Guyana, Hungary, Italy,
(in many cases there are not Hungary, Italy, Kazakhstan, Lao Kazakhstan, Lao People's
even courts competent to People's Democratic Republic, Democratic Republic, Latvia,
review the decision). Latvia, Lithuania, Poland, Lithuania, Poland, Portugal,
Portugal, Republic of Korea, Republic of Korea, Romania,
Russian Federation, Spain,
Romania, Russian Federation,
the
Spain, the former Yugoslav former Yugoslav Republic of
Republic of Macedonia, Macedonia, Turkey, Ukraine,
Turkey, Ukraine, Viet Nam Viet Nam and Yugoslavia. . . .
and Yugoslavia, albeit with
different reaches. J. Dugard,
First Report on diplomatic
protection, supra note 13, Source:
par. 80.)

130 Dugard identifies this Special Rapporteur on

obligation to exist in the Diplomatic Protection, First
Constitutions of Albania, Rep. on Diplomatic
Protection, Int'l. Law
Belarus, Bosnia and
Comm'n,
Herzegovina, Bulgaria, UN Doc. A/CN.4/506, at 30,
Cambodia, China, Croatia, par. 80 (7 March 2000) (by
Estonia, Georgia, Guyana, John R. Dugard).
Hungary, Italy, Kazakhstan,
Lao People's Democratic
Republic, Latvia, Lithuania,
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Poland, Portugal, Republic of
Korea, Romania, Russian
Federation, Spain, the former
Yugoslav Republic of
Macedonia, Turkey, Ukraine, (p. 26, footnote 62 of Vinuya)
Viet Nam and Yugoslavia,
albeit with different reaches.
J. Dugard, First Report on
diplomatic protection, supra
note 13, par. 80.

(p. 406 of Albornoz)

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

131 ILC First Reading Draft Source:

Articles on Diplomatic
Commentary to the Text of
Protection, supra note 2,
the
Commentary to Draft Article 2, Draft Articles on Diplomatic
par (2). This was recognized Protection Adopted by the
Commission on First
expressly in the Barcelona
Reading,
Traction case, supra note 6. Rep. of the Int'l. Law
Comm'n, 56th Sess., 3 May-4
June and 5 July-6 August
2004, U.N. Doc. A/59/10 at
28, par. 60; GAOR, 59th
Sess., Supp. 10 (2004).

132 Dugard, J. First report on

diplomatic protection, supra
note 13, par. 81. . . .

(pp. 406-407 of Albornoz) (p. 26, footnote 62 of Vinuya)

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. TSaEcH

INTERNATIONAL SOURCE
BEING
THE ALLEGEDLY ANALYZED BY
COPIED WORK THE DECISION PROCHASKA

Elizabeth Prochaska,
Vinuya v. Executive Secretary,
Testing
G.R. No. 162230, 28 April
the Limits of Diplomatic
2010.
Protection: Khadr v. The
Prime Minister of Canada
(2009).
62 . . . Official Records of the
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 General Assembly: 55th
session, Supplement No. 10,
Doc. A/55/10 (2000), Report
Instead, Draft Article 19, of the ILC on the work of its
entitled 'Recommended 52nd session, p. 131. Instead,
Practice,' suggests that
Draft Article 19, entitled
states
should be encouraged to 'Recommended Practice,'
exercise diplomatic suggests that states should
protection be
'especially when significant encouraged to exercise
injury occurred to the diplomatic protection
national. Drafted in soft 'especially when significant
injury occurred to the
language, the Article does
national.
not purport to create any Drafted in soft language, the
binding obligations on the Article does not purport to
state. create any binding obligations
on the state.

(p. 397 of Prochaska) (Footnote 62 of Vinuya) Note:

The Report of the

International Law Commission
on the Work of its Fifty-
Second Session, and the
Special Rapporteur's First on
Diplomatic Protection, which
are the 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, 7 and the Supreme Court's
Decision in Vinuya, et al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.

SOURCE BEING
THE ALLEGEDLY USED BY
COPIED WORK THE DECISION NIKSCH

Larry Niksch, Japanese Vinuya v. Executive Secretary,

G.R. No. 162230, 28 April
Military's Comfort Women,
2010.
10 April 2006.

1. The Asian Women's Fund The AWF announced three The projects of atonement
announced three programs
programs for former comfort involved providing former
for
former comfort women who women who applied for comfort women with 2 million
applied for assistance: (1) assistance: (1) an atonement
yen per person as atonement
an fund
atonement fund that paid
paying ¥2 million money donated by Japanese
two
(approximately $20,000) to
million yen (approximately citizens, delivering a letter of
each
woman; (2) medical and
$20,000) to each former apology from the Japanese
welfare
support programs, paying
comfort woman; (2) medical Prime Minister, and offering
¥2.5-3
and welfare support
million ($25,000-$30,000) for goods and services under
programs
each woman; and (3) a letter
for former comfort women, medical and welfare support
of
paying 2.5-3 million yen apology from the Japanese projects financed by the
($25,000-$30,000) for each Prime Minister to each Japanese government.
former comfort woman; and woman.
(3) a letter of apology from
the
Japanese Prime Minister to Note:
each recipient woman.[8]
The passage in Vinuya does
not contain a footnote. The
following source is the
nearest
citation that may reasonably
be taken as within the
context
of the discussion in Vinuya.
http://web.archive.org/web/
20060301213211/
http://www.awf.or.jp/english/
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 project_atonement.html
[FN8]. From the Asian
Women's Fund website,
March 16, 2006.

(paragraph 11 of Niksch) (p. 17, Body of Vinuya)

2. . . . As of March 2006, the . . . As of March 2006, the AWFIn order to fulfill its moral
Asian Women's Fund provided ¥700 million yen responsibility in all sincerity,
provided 700 million yen (approximately $7 million) for the Japanese government
(approximately $7 million) these programs in South decided to disburse about
for Korea, 700
these programs in South Taiwan, and the Philippines; million yen over a five-year
¥380 million yen period for medical and
Korea, Taiwan, and the
(approximately welfare
support projects aiding
Philippines; 380 million yen $3.8 million) in Indonesia; and
former
(approximately $3.8 million) ¥242 million yen comfort women in the
in Indonesia; and 242 (approximately $2.4 million)
Philippines, the Republic of
million in
yen (approximately $2.4 the Netherlands. Korea and Taiwan.
million) in the Netherlands.
[9]
xxx xxx xxx

(paragraph 12 of Niksch) (p. 17, Body of Vinuya) Note:

The passage in Vinuya does

not contain a footnote. The
following source is the
nearest
citation that may reasonably
be taken as within the
context
of the discussion in Vinuya.

http://web.archive.org/web/
20060301213211/http://
www.awf.or.jp/english/
project_atonement.html

On January 15, 1997 the

3. On January 15, 1997 the AWF The government of the
Asian
and the Philippine
Women's Fund and the Philippines and the Asian
government
Philippine government
signed a Memorandum of Women's Fund signed a
signed
Understanding for medical
a Memorandum of Memorandum of
and
understanding for medical Understanding on January
welfare support programs for
and 15,
welfare support programs
former comfort women. Over 1997. . . .
for
former comfort women. the next five years, these
Over were
the next five years, these implemented by the
The Philippine government's
were Department
implemented by the of Social Welfare and Department of Social Welfare
Philippine government's Development. and Development
implemented the projects
Department of Social
over
Welfare and Development. a period of five years. . . .

(paragraph 19 of Niksch) (p. 17, Body of Vinuya) Note:

The passage in Vinuya does

not contain a footnote. The
following source is the
nearest
citation that may reasonably

be taken as within the

context
of the discussion in Vinuya.

http://web.archive.org/web/
20060301213211/http://
www.awf.or.jp/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.
SOURCE BEING

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

 THE ALLEGEDLY ANALYZED AND/OR USED
COPIED WORK THE DECISION BY LADING

James Ladino, Ianfu: No Vinuya v. Executive Secretary,

G.R. No. 162230, 28 April
Comfort Yet for Korean
2010.
Comfort Women and the
Impact of House Resolution
121 , 15 CARDOZO J.L. &
GENDER 333 (2009).

In 1992, the Korean Council

1. In 1992, the Korean Council . . . In her report to the U.N.
for
the Women Drafted for
for the Women Drafted for Human Rights Commission,
Military
Military Sexual Slavery by Sexual Slavery by Japan Radhika Coomaraswamy, the
Japan ("KCWS"), submitted a (KCWS), submitted a petition U.N. special investigator into
petition to the United Nations to the UN Human Rights violence against women,
Human Rights Commission Commission (UNHRC), asking concluded that Japan must
("UNHRC"), asking for their for assistance in investigating admit its legal
assistance in investigating crimes committed by Japan responsibility. . . .
crimes committed by Japan against Korean women and
against Korean women and seeking reparations for former xxx xxx xxx
pressuring Japan to pay comfort women. 29 The
reparations to the women who UNHRC placed the issue on its . . . Lee Hyo-chae, as a co-
agenda and appointed
had filed lawsuits. 96 The chair of the KCWS submitted
Radhika
UNHRC formally placed the Coomaraswamy as the issue's a petition to the U.N. Human
issue on its agenda and special investigator. In 1996, Rights Commission, dated
March 4, 1992, requesting
appointed Radhika Coomaraswamy issued a
that
Coomaraswamy as the Report reaffirming Japan's the Commission investigate
97 responsibility in forcing
issue's special investigator. Japanese atrocities committed
Korean
Issued in 1996, the UNHRC's women to act as sex slaves foragainst Korean women during
report reaffirmed Japan's guilt the imperial army, and made World War Two, and help
the following
in forcing Korean women to pressure the Japanese
recommendations:
government to pay
act as sex slaves for the
reparations
imperial army. 98 to individual women who have
filed suit. The UNHRC
responded by placing the
issue
on the official agenda for its
August 1992 meeting in
Geneva. . . .
96 Soh, supra note 7 29 SOH, THE COMFORT
[Chunghee Sarah Soh, The WOMEN PROJECT, SAN
Korean "Comfort Women": FRANCISCO STATE
Movement for Redress, 36 UNIVERSITY (1997-2001),
Asian Survey 1226,], at http://online.sfsu.edu/~soh/c
1234-35. comfortwomen.html, at
1234-35.
97 Id. at 1226. Source:

Chunghee Sarah Soh, The

98 Id. Korean "Comfort Women":
Movement for Redress, 36
(p. 344 of Ladino) (p. 9-10, Body of Vinuya) ASIAN SURVEY 1226, 1234
35 (1996).
The Women's International From December 8 to 12,
2. The Women's International
War 2000,
War Crimes Tribunal Crimes Tribunal (WIWCT) was a peoples' tribunal, the
a "people's tribunal"
(WIWCT) was a "people's Women's International War
established
tribunal" established by a by a number of Asian women Crimes Tribunal 2000, sat in
and human rights
number of Asian women, Tokyo, Japan. It was
organizations,
human rights organizations, supported by an international established to consider the
and supported by an coalition of non-governmental criminal liability of leading
international coalition of non- organizations. 31 First high-ranking Japanese military
proposed
governmental organizations in 1998, the WIWCT convened and political officials and the
("NGOs"). 101 First proposed in Tokyo in 2000 in order to separate responsibility of the
in 1998, the WIWCT adjudicate Japan's military state of Japan for rape and
sexual violence, in particular
convened in Tokyo in 2000 to sexual slavery as crimes
the
enslavement of comfort
discuss the issue of against humanity arising out
women,
to bring those responsible for
comfort women. 102 of Japanese military activity in
it
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Specifically, the WIWCT to justice, and to end the the Asia Pacific region in the
aimed to "adjudicate Japan's ongoing cycle of impunity for 1930s and 1940s.
wartime sexual violence
military sexual violence, in
against
particular the enslavement of women." xxx xxx xxx
comfort women, to bring
those responsible for it to . . . The tribunal arose out of
justice, and to end the ongoing the work of various women's
cycle of impunity for wartime nongovernmental
sexual violence against organizations (NGOs) across
women." Asia. . . .

Source:

101 Christine M. Chinkin, 31 Chinkin, Women's Chinkin, Women's

Women's International International Tribunal on International Tribunal on
Tribunal on Japanese Sexual Japanese Sexual Slavery, Japanese Sexual Slavery, 95
Slavery, 95 Am. J. Int'l. L. 95 Am. J. Int'l. L. 335 (2001). AM. J. INT'L. L. 335 (2001).
335 (2001)

102 Violence Against Women

in War-Network Japan, What
is the Women's Tribunal?
http.//www1.jca.apc.org/
vaww-net-japan/English/
womenstribunal2000/
whatstribunal.html (last visited
Oct. 16, 2008).

(p. 345 of Ladino) (p. 12, Body of Vinuya)

3. A large amount of evidence 32 A large amount of evidence

was presented to the tribunal
was presented to the tribunal
for
for examination. Sixty-four examination. Sixty-four former
comfort women from Korea
former comfort women from
and
other surrounding territories
Korea and other surrounding
in
territories in the Asia-Pacific the Asia-Pacific region testified
before the court. Testimony
region testified before the
was
court. 104 Testimony was also also presented by historical
presented by historical scholars, international law
scholars, international law scholars, and two former
scholars, and two former Japanese soldiers. Additional
evidence was submitted by
Japanese soldiers. 105 . . . Prosecution teams from
the
Additional evidence was prosecution teams of ten ten countries presented
submitted by the prosecution different countries, including: indictments. 6 North and
teams of ten different North and South Korea, China, South Korea, China, Japan,
countries, including: North Japan, the Philippines, the Philippines, Indonesia,
and South Korea, China, Indonesia, Taiwan, Malaysia, Taiwan, Malaysia, East
East Timor, and the
Japan, the Philippines, Timor, and the Netherlands. . .
Netherlands.
Indonesia, Taiwan, Malaysia, Id. [Chinkin] at 336. Two lead prosecutors (Patricia
East Timor, and the Viseur Sellers 7 and Ustinia
Netherlands. 106 Dolgopol 8) joined the
separate-country prosecutors
and presented a common
indictment.
104 Id. [Violence Against
Women in War-Network
Japan, What is the Women's Source:
Tribunal?, http://www1.jca.
apc.org/vaww-net-japan/ Chinkin, Women's
english/womenstribunal2000/ International Tribunal on
whatstribunal.html (last Japanese Sexual Slavery, 95
visited Oct. 16, 2008).] AM. J. INT'L. L. 335, 336
(2001).
105 Id.
106 Chinkin, supra note 101,
at 336.

(p. 345 of Ladino) (p. 12, footnote 32 of Vinuya)

After examining the evidence

After examining the evidence The preliminary judgment
for
more than a year, the
for more than a year, the indicated that the judges had
"tribunal"
issued its verdict on
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 tribunal issued its final verdict
December found Emperor Hirohito guilty
on December 4, 2001, finding 4, 2001, finding the former of the charges on the basis of
Emperor Hirohito and the
the former Emperor Hirohito command responsibility, that
State
of Japan guilty of crimes
and the State of Japan guilty he knew or should have
against
humanity for the rape and
of crimes against humanity known of the offenses. . . .
sexual
for the rape and sexual slavery slavery of women. 32 It bears The judges also indicated that
of women. 107 stressing, however, that they had determined Japan to
although the tribunal included be responsible under
xxx xxx xxx prosecutors, witnesses, and international law applicable at
judges, its judgment was not the time of the events for
Although the tribunal included legally binding since the violation of its treaty
prosecutors, witnesses, and tribunal itself was organized obligations and principles of
judges, its judgment was not by private citizens. customary international law
legally binding since the relating to slavery, trafficking,
tribunal itself was organized forced labor, and rape,
by private citizens. . . . amounting to crimes against
humanity. . . .
What was the value of this
exercise? Lacking legal
authority, was the tribunal no
more than a mock trial of little
concern to serious
international lawyers?
107 Violence Against Women 32 . . . Id. [Chinkin] at 336.
in War-Network Japan, supra
note 102.

(p. 345 of Ladino) (p. 12, Body of Vinuya) Source:

Chinkin, Women's
International Tribunal on
Japanese Sexual Slavery, 95
AM. J. INT'L. L. 335 (2001).

4. On January 31, 2007, United On January 31, 2007, US Today, Representative

States Representative Michael Representative Michael Honda Michael M. Honda (CA —
Honda of California, along of California, along with six 15) introduced a bipartisan
with six co-sponsor co-sponsor representatives, resolution before the U.S.
representatives, introduced introduced House Resolution House of Representatives
House Resolution 121. The 121 which called for Japanese calling on the government of
resolution called for Japanese action in light of the ongoing Japan to formally and
action in light of the ongoing struggle for closure by former unambiguously apologize for
struggle for closure by former comfort women. The and acknowledge the tragedy
Resolution was formally
comfort women. The House that comfort women endured
passed
of Representatives formally on July 30, 2007, 33 and made at the hands of its Imperial
passed the resolution on July four distinct demands: Army during World War II. . .
30, 2007. 110 The resolution
also makes four distinct xxx xxx xxx
demands:

33 Press Release,
110 Press Release, The resolution is cosponsored
Congressman
Congressman Mike Honda, Mike Honda, Rep. Honda Calls by: Representatives Edward R.
on Japan to Apologize for
Rep. Honda Calls on Japan Royce (CA — 40),
World
to Apologize for World War War II Exploitation of "Comfort Christopher H. Smith (NJ - 4),
II Exploitation of "Comfort Women" (January 31, 2007). Diane E. Watson (CA - 33),
Women" (Jan. 31, 2007), David Wu (R - 1), Phil Hare
available at http://www.house. (IL - 17), and Delegate
gov/list/press/ca15_honda/ Madaleine Bordallo (GU).
COMFORTWOMEN.html.

(p. 346 of Ladino) (p. 12, Body of Vinuya) Source:

Press Release of Congressman

Mike Honda, Rep. Honda
Calls on Japan to Apologize
for World War II Exploitation
of "Comfort Women," 31 Jan.
2007, available at
http://www.house.gov/
list/press/ca15_honda/
COMFORTWOMEN.html

5. . . . The resolution also The Resolution was Resolved, That it is the

makes four distinct formally passed on July sense of the House of

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

 demands: 30,
four2007, 33demands:
distinct and made Representatives that the
Government of Japan —

[I]t is the sense of the [I]t is the sense of the (1) should formally
House of Representatives House of Representatives acknowledge, apologize,
that the Government of that the Government of and accept historical
Japan (1) should Japan (1) should responsibility in a clear
formally acknowledge, formally acknowledge, and unequivocal manner
apologize, and accept apologize, and accept for its Imperial Armed
historical responsibility historical responsibility Force's coercion of young
in a clear and in a clear and women into sexual
unequivocal manner unequivocal manner slavery, known to the
for its Imperial Armed for its Imperial Armed world as "comfort
Forces' coercion of Forces' coercion of women", during its
young women into young women into colonial and wartime
sexual slavery, known sexual slavery, known occupation of Asia and
to the world as to the world as the Pacific Islands from
comfort women, comfort women, the 1930s through the
during its colonial and during its colonial and duration of World War II;
wartime occupation of wartime occupation of
Asia and the Pacific Asia and the Pacific (2) should have this
Islands from the 1930s Islands from the 1930s official apology given as
through the duration through the duration a public statement
of World War II; (2) of World War II; (2) presented by the Prime
would help to resolve would help to resolve Minister of Japan in his
recurring questions recurring questions official capacity;
about the sincerity about the sincerity and
and status of prior status of prior (3) should clearly and
statements if the Prime statements if the Prime publicly refute any claims
Minister of Japan were Minister of Japan were that the sexual
to make such an to make such an enslavement and
apology as a public apology as a public trafficking of the "comfort
statement in his statement in his women" for the Japanese
official capacity; official capacity; (3) Imperial Armed Forces
(3) should clearly should clearly and never occurred; and
and publicly refute publicly refute any
(4) should educate
any claims that the claims that the sexual
current
sexual enslavement enslavement and and future generations
and trafficking of the trafficking of the about this horrible crime
comfort women for comfort women for while following the
the Japanese Imperial the Japanese Imperial recommendations of the
Army never occurred; Army never occurred; international community
and (4) should educate and (4) should educate with respect to the
current and future current and future comfort women.
generations about generations about this
this horrible crime horrible crime while
while following the following the
recommendations of recommendations of
the international the international
community with community with Source cited:
respect to the "comfort respect to the "comfort
women." 111 women." 34

111 H.R. Res. 121, 110th 34 H.R. Res. 121, 110th H.R. Res. 121, 110th Cong.
Cong. (2007) (enacted). Cong. (2007) (enacted). (2007) (enacted), available at
http://www.gpo.gov/fdsys/
(p. 346 of Ladino) (p. 12, Body of Vinuya) pkg/BILLS-110hres121ih/pdf/
BILLS-110hres121ih.pdf
(U.S.)

6. In December 2007, the In December 2007, the A resolution on the

European Parliament, the European Parliament, the 'comfort women' (sex
governing body of the governing body of the slaves) used by Japan in
European Union, drafted a European Union, drafted a World War II calls for a
resolution similar to House resolution similar to House change of official attitudes
Resolution 121. 130 . . . Resolution 121. 35 Entitled, in modern-day Japan, a
Entitled, "Justice for "Justice for Comfort right for survivors or
Comfort Women," the Women," the resolution families to apply for
resolution demanded: (1) a demanded: (1) a formal compensation and measures
formal acknowledgment of acknowledgment of to educate people about
responsibility by the responsibility by the these historical events.
Japanese government; (2) a Japanese government; (2) a
removal of the legal removal of the legal xxx xxx xxx
obstacles preventing obstacles preventing
compensation; and (3) compensation; and (3) Call for formal
unabridged education of the unabridged education of the acknowledgment of
past. 132 The resolution also past. The resolution also responsibility by
stresses the urgency with stressed the urgency with government
which Japan should act on which Japan should act on
these issues, stating: "the these issues, stating: "the xxx xxx xxx
right of individuals to claim right of individuals to claim
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 reparations against the reparations against the Legal obstacles to
government should be government should be compensation must be
expressly recognized in expressly recognized in removed
national law, and cases for national law, and cases for
reparations for the reparations for the survivors xxx xxx xxx
survivors of sexual slavery, of sexual slavery, as a crime
as a crime under under international law, Education about the past
international law, should be should be prioritized, taking
prioritized, taking into into account the age of the xxx xxx xxx
account the age of the survivors."
survivors." 133 . . . Source cited:

130 European Parliament, 35 European Parliament, European Parliament,

Human rights: Chad, Human rights: Chad, Human rights: Chad,
Women's Rights in Saudi Women's Rights in Saudi Women's Rights in Saudi
Arabia, Japan's Wartime Arabia, Japan's Wartime Sex Arabia, Japan's Wartime
Sex Slaves, Dec. 17, 2007, Slaves, Dec. 17, 2007, Sex Slaves, (17 Dec. 2007)
http://www.europarl. http://www.europarl.europa. available at
europa.eu/sides/ eu/sides/getDoc.do? http://www.europarl.europa.
getDoc.do?language=EN language=EN&type=IM- eu/sides/getDoc.do?
&type=IM-PRESS& PRESS&reference=2007121 language=EN&type=IM-
reference=20071210 0BRI14639&secondRef=IT PRESS&reference=200712
BRI14639&second EM-008-EN. 10BRI14639&secondRef=I
Ref=ITEM-008-EN. TEM-008-EN

132 Id.

133 Id.

(p. 360 of Ladino) (p. 13, Body of Vinuya)

7. The Canadian and Dutch The Canadian and Dutch

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

134 Id. http://taiwan.yam.org.tw/

womenweb/conf_women/
(p. 360 of Ladino) (p. 13, Body of Vinuya) index_e.html

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
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 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. CADSHI

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.
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 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 ofVinuya. 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.
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. aAHSEC

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 verbatim without quotation marks in page 17 of the body of the
Decision. No attribution to Niksch was made.
F.3 An excerpt from paragraph 19 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the
Decision. No attribution to Niksch was made.
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
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
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 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 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. SEHACI

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
Philippines 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 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.
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. ADScCE

3. Page 31, par. 2: Though there was a consensus that certain international norms had attained the status ofjus 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
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 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 . . . leave the full content of this rule to be 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 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. IEaCDH

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)."
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:
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
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 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 Vinuya
is so high that the underlying cause could not have been mere inadvertence. TAacIE

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 possible 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 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 the footnotes was
so extensive, such that it practically used the uncited works as blueprint for the Decision's footnotes. IDEHCa

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
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 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 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 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." AIHDcC

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
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" 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

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 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 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 sanctions 13 — 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: cHDAIS

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 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 — ofextent, 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 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 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. IHEDAT

In no wise does George imply that the judicial function confers upon judges the implicit right to use the
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 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 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 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

xxx xxx xxx

The lack of proper attribution may be unintentional and due to sloppy note taking, either by the law clerk or the
judge. 20

xxx xxx xxx

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

xxx xxx xxx

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
stigma, censure, and ostracism — does not negate the judge's ethical obligation to attribute. She writes: EDCIcH

In conclusion, this author believes that a judicial writer cannot commit legal plagiarism because the purpose of his
writing is not 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
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 aATCDI

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).
TABLE H: Comparison of Justice Abad's allegations, the 2001 and 2007 versions of the article co-authored with Drs. De Dios
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 and Capuno, and the ADB Country Governance Assessment of 2005.
EXCERPT FROM THE
REPRODUCTION EXCERPT FROM THE
ADB
ARTICLE CO-
OF J. ABAD'S COUNTRY GOVERNANCE
AUTHORED
ASSESSMENT:
ALLEGATIONS WITH DRS. DE DIOS
PHILIPPINES
AND CAPUNO:

Justice and the Cost of Asian Development Bank

Doing Business: The Country Governance
Philippines, report Assessment: Philippines,
submitted to the World 2005.
Bank, 2001.

1. Cost refers to both Costs, on the other hand,Cost refers to both

refer to both the monetary and
monetary and nonmonetary
monetary nonmonetary
opportunities that a
opportunities that a litigant and nonmonetary
litigant
opportunities that
has to forego in pursuing a business has to forego in pursuing a

people forego as a result

case. Direct cost refers not case. Direct cost refers not
of
making use of the
only to fees paid to the only to fees paid to the
judicial
system itself. Direct
courts but also to out-of- courts but also to out-of-
costs
pocket costs arising from refer not only to the fees pocket costs arising from
paid the courts but also
litigation itself (e.g., litigation itself (e.g.,
to
out-of-pocket costs
lawyers' fees and lawyer's fees and
arising
compensation, transcript from litigation itself (e.g.,compensation, transcript
fees for stenographic fees for stenographic
lawyers' fees and
notes, notes,
etc.). Indirect costs refer to documentation). Indirect etc.). Indirect costs refer to
costs also inevitably
lost opportunities arising lost opportunities arising
arise, of
which the most
from delays in the from delays in the
important
resolution of cases and the are those arising from resolution of cases and the
delays in the resolution
time spent by a litigant time spent by a litigant
of
attending and following up cases, and the failure to attending and following up
a case. come up with timely a case.
decisions.
[Asian Development Bank
Country Governance
Assessment (Philippines)
2005, page 103]
EXCERPT FROM THE
ARTICLE CO-
AUTHORED
WITH DRS. DE DIOS
AND CAPUNO:

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 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.,

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 lawyers' fees andIndirect
documentation).
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 produced 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. DcSACE

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

xxx xxx xxx

. . . 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

xxx xxx xxx

(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 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
xxx xxx xxx

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.
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 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 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. IDAESH

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
Conflicts 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:
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 webpage 30 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. EISCaD

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 immediately 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
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 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 Panel, and
the decision of the U.S. Supreme Court in Baker v. Carr, cited in the legal memorandum.
REPRODUCTION EXCERPT FROM THE EXCERPT FROM THE
OF J. ABAD'S LEGAL MEMORANDUM SOURCE CITED BY
ALLEGATIONS PREPARED BY J. J. SERENO:
SERENO:

Petitioners-Intervenors' Baker v. Carr, 369 U.S.

Memorandum, Province
186 (1962).
of
North Cotabato v. 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
judicial review whenever
a
grave abuse of discretion
has been prima facie
established, as in this
instance.

3.5 In this case,

Respondents cannot
hide
under the political
question
doctrine, for two
compelling
reasons.

Prominent on the surface 3.6 First, there is no Prominent on the surface

of resolute of
any case held to involve a textual commitment in any case held to involve a
the
Constitution that accords political question is found
political question is found a
the a
textually demonstrable President the power to textually demonstrable
negotiate with the MILF .
constitutional commitment constitutional commitment
..
of the issue to a coordinate of the issue to a coordinate
political department; or a xxx xxx xxx political department; or a
lack of judicially
lack of judicially
discoverable
3.13 Second, there is no and manageable
discoverable and
lack standards for
manageable standards of a judicially
resolving it; or the
for discoverable
and manageable
resolving it; or the impossibility of deciding
standard for
resolving the question,
impossibility of deciding without an initial policy
nor
impossibility of deciding determination of a kind
without an initial policy
the clearly
question without an for non-judicial discretion .
determination of a kind
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 clearly for non-judicial initial
policy determination of a . .
kind clearly for non-
discretion . . . Source cited:
judicial
discretion. On the
contrary,
the negotiating history
[Baker v. Carr, 169 U.S. Baker v. Carr
with
Muslim secessionist
186]
groups
easily contradict any
pretense that this Court
cannot set down the
standards for what the
government cannot do
in 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. SECIcT

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.
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.

REPRODUCTION EXCERPT FROM THE EXCERPT FROM THE

OF J. ABAD'S WORK OF J. SERENO: SOURCE CITED BY
ALLEGATIONS J. SERENO:

Sereno, Uncertainties http://www.fas.usda.gov/info/

Beyond the Horizon: The factsheets/wto.html
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

2 Marakkesh Agreement
established the World Trade
Organization and replaced
GATT as an international
organization. It was signed
by ministers from most of
the 123 participating
governments at a meeting in
Marrakesh, Morocco on
April 15, 1994 . . . Source cited:

The World Trade The World Trade The World Trade

Organization (WTO), Organization (WTO) was Organization (WTO),
established on January 1, established on January 1, established on January 1,
1995, is a multilateral 1995. It is a multilateral 1995, is a multilateral
institution charged with institution charged with institution charged with
administering rules for administering rules for trade administering rules for
trade among member among member countries. trade among member
countries. Currently, there The WTO functions as the countries. Currently, there
are 145 official member principal international body are 145 official member
countries. The United concerned with multilateral countries. The United
States and other countries negotiations on the reduction States and other countries
participating in the of trade barriers and other participating in the
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 Uruguay Round
Multilateral of
Trade measures that
competition. distort
The WTO also Uruguay Round
Multilateral Tradeof
Negotiations (1986-1994) serves as a platform for Negotiations (1986-1994)
called for the formation of countries to raise their called for the formation of
the WTO to embody the concerns regarding the the WTO to embody the
new trade disciplines trade policies of their new trade disciplines
adopted during those trading partners. The adopted during those
negotiations. basic aim of the WTO is to negotiations.
liberalize world trade and
The WTO functions as the place it on a secure basis, The WTO functions as the
principal international body thereby contributing to principal international body
concerned with multilateral economic growth and concerned with multilateral
negotiations on the development. negotiations on the reduction
reduction of trade barriers http://www.fas.usda.gov/info/of trade barriers and other
and other measures that factsheets/wto.html measures that distort
distort competition. The (last accessed February 13, competition. The WTO also
WTO also serves as a 2008). (Emphasis supplied.) serves as a platform for
platform for countries to countries to raise their
raise their concerns concerns regarding the trade
regarding the trade policies policies of their trading
of their trading partners. partners. The basic aim of
The basic aim of the WTO the WTO is to liberalize
is to liberalize world trade world trade and place it
and place it on a secure on a secure basis, thereby
basis, thereby contributing contributing to economic
to economic growth and growth and development.
development.
[WTO FACTSHEET (p. 260-261, footnote 2 of Source cited:
http://www.fas.usda.gov/ J. Sereno's work)
info/factsheets/wto.html, http://www.fas.usda.gov/
last accessed February info/factsheets/wto.html
13, 2008.]

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.
REPRODUCTION EXCERPT FROM THE EXCERPT FROM THE
OF J. ABAD'S WORK OF J. SERENO: SOURCE CITED BY
ALLEGATIONS J. SERENO:

Sereno, Lawyers' Behavior RICHARD A. POSNER,

and Judicial Decision- ECONOMIC ANALYSIS
Making, 70 (4) PHIL. L. J. OF LAW, (2ND ED. 1977).
476 (1996).

. . . We could deal with this

problem later. What I
would
propose to evaluate at this
point is the preconditions
that Judge Richard
Posner
theorizes as dictating the
likelihood of litigating . . .

xxx xxx xxx

Posner's model is but a

simple mathematical
illustration or validation of
what we as laymen have
always believed to be
true,
although how to prove it
to
be true has always
remained
a problem to us. We have
always known that the
decision on whether to
settle
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 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
intuitively dealing with a
formula for arriving at an As with any contract, a
estimation of the
necessary (and usually —
"settlement
range" or its existence in why not always? —
any given controversy. sufficient) conditions for
Simply, the settlement
negotiations to succeed is
range
is that range of prices in that there be a price at
which both parties would
which both parties would
be
willing to settle because it feel that agreement would
would increase their increase their welfare.
[S]ettlement
welfare. Settlement Hence settlement
negotiations
will fail and litigation negotiations will fail, and negotiations should fail,
and litigation ensue, only
ensue, only if the litigation will ensue, if the
if
minimum price that the minimum price that
minimum price that the
plaintiff the
plaintiff is willing to is willing to accept in plaintiff is willing to accept
accept in compromise
compromise of his claim is in compromise of his claim
of
greater than the is greater than the
his claim is greater than
maximum maximum
the maximum price the price that the defendant is price that the defendant is
willing to pay in willing to pay in
defendant is willing to
satisfaction satisfaction
pay in satisfaction of theof that claim. of that claim; . . .
claim.

[Posner, p. 434] (pp. 481-483 of Lawyers' Source cited:

Behavior and Judicial
Decision-Making) RICHARD A. POSNER,
ECONOMIC ANALYSIS
OF LAW, 435 (2ND ED.
1977).

WHAT THE JUDGE §19.7 WHAT DO JUDGES

MAXIMIZES MAXIMIZE?

. . . This section attempts

to
sketch a theory of judicial
incentives that will
reconcile
In understanding judicial these assumptions.
behavior, we have to
assume, that judges, like Presumably judges, like
all the
economic actors maximize rest of us, seek to
Presumably judges, like
a maximize
the rest of us, seek to utility function. This a utility function that
maximize a utility includes both monetary
function in all probability
function and
that includes both includes material as well nonmonetary elements
monetary as (the
and nonmonetary
non-material factors. In latter including leisure,
elements.
American literature,
prestige, and power). As
they
have come up with severalnoted earlier, however, the
[Posner, p. 415] theories on what judges rules of the judicial process
maximize. have been carefully
designed both to prevent
The first is that the the judge from receiving a
American judicial system monetary payoff from
[T]he rules of the judicial have rules designed to deciding a particular case
minimize the possibilities one way or the other and
process have been carefully
of to
designed both to the a judge maximizing his minimize the influence of
prevent the judge from financial interest by politically effective interest
receiving a monetary receiving a bribe from a groups on his decisions. To
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 payoff from deciding a litigant of from acceding be sure, the effectiveness
to of
particular case one way or a politically powerful these insulating rules is
sometimes questioned. It
the other and to minimize interest group by making
is
the influence of politically the rules work in such a often argued, for example,
effective interest group in manner as to create that the judge who owns
his decisions. disincentives for the judge land will decide in favor of
ruling in such a manner. landowners, the judge who
[Posner, 415] walks to work in favor of
The second, proceeding pedestrians, the judge who
from the first is that the used to be a corporate
judge maximizes the
lawyer in favor of
interest
It is often argued, for of the group to which he corporations . . .
belongs. If he belongs to
example, that the judge
the
who owns land will A somewhat more
landowning class, he will
decide plausible
generally favor
in favor of landowners, case can be made that
landowners,
the judge who walks to and if he walks to work, hejudges might slant their
work will be in favour of will generally favor decisions in favor of
pedestrians. pedestrians. powerful interest groups in
order to increase the
[Posner, 415] prospects of promotion to
The third is that the judge higher office, judicial or
maximizes the prospects
otherwise . . .
of
his promotion to a higher
A somewhat more plausible office by slanting his It would seem, therefore,
case can be made that decisions in favor of that the explanation for
judges might slant their powerful interest groups. judicial behavior must lie
elsewhere than in
decisions in favour of
pecuniary
powerful interest groups or political factors. That
in order to increase the most judges are leisure
prospects of promotion
maximizers is an
to
higher office, judicial or assumption that will not
otherwise. survive even casual
The last is that judges observation of judicial
maximize their influence behavior. A more
[Posner, p. 416]
on attractive
society by imposing their possibility, yet still one
values, tastes and thoroughly consistent with
the ordinary assumptions
[J]udges seek to impose preferences thereon.
of
their preferences,
economic analysis, is that
tastes,
judges seek to impose
values, etc. on society. Depending on one's
their
impressions and
preferences, tastes, values
experiences
(since there is no
[Posner, 416] etc. on society . . .
empirical
data on which a more
scientific conclusion can
be
reached on which of the
above four theories are
correct), we can see the
relation of this utility-
maximizing behavior on
both our probability
estimate
function and Posner's
precondition inequality
for
litigation. Although more
research is required in this
area, if we believe
Posner's
function to be true . . .

(Emphasis supplied.)

(pp. 489 of Lawyers' Source:

Behavior and Judicial
Decision-Making) RICHARD A. POSNER,
ECONOMIC ANALYSIS OF
LAW, 415-16 (2ND ED.
1977).
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 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. CTSAaH

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
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.

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. HcDaAI

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:
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
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 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 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 Ethics 37 focuses on the writing of judicial opinions: IEHSDA

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, 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 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 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." ITESAc

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
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 should at all times be alert in his rulings and in the conduct 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 grudging 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 THAECc

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 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 wrong must be righted, and this Court must move forward in the
right direction.

Footnotes

1. April 28, 2010.

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.

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.

5. Webster's Third New International Dictionary, p. 2374.

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

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.

8. Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by Justice Maria Lourdes Sereno in her dissenting opinion.

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 9. Supra note 7.
10. G.R. No. 190582, April 8, 2010.

CARPIO, J., dissenting:

1. Part IV, Intellectual Property Decree (Republic Act No. 8293).

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 xxx 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.

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) 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.

xxx xxx xxx

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).

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.

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.

10. Volume I, Records of the Constitutional Commission, pp. 456-457.

11. Approved by the En Banc on 15 November 2005.

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 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. . . . ."

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."

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) . . .

xxx xxx xxx

(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."

18. Section 173.1 (b), Intellectual Property Code.

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

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.
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."

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)

CARPIO MORALES, J., dissenting:

1. CONSTITUTION, Art. XI, Sec. 2.

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 774.

5. Id. at 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, THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003), p. 988].

9. A.M. No. 10-4-20-SC (May 4, 2010).

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
Administrative 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;

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 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).

12. A.M. No. 09-2-19-SC, February 24, 2009, 580 SCRA 106.

13. Id. at 164.

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 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 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.
17. In Re: Undated Letter of Mr. Louis Biraogo, supra at 162, citing Rivera v. Buena, A.M. No. P-07-2394, February 19, 2008, 546 SCRA
222.

BRION, J., concurring:

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.

5. Specifically, the Court referred to the article A Fiduciary Theory of Jus Cogens written by Criddle-Decent and Fox.

6. CONSTITUTION, 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.

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 unnecessary; and the guarantee of strict focus on judicial
duties under Section 12.

10. CONSTITUTION, Article VIII, Section 5 (5); RULES OF COURT, Rules 138 and 139-B.

11. RULES OF COURT, Rule 71.

12. CONSTITUTION, 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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 15. CONSTITUTION, Article XI, Section 2.

16. See Bernas, supra, note 14, p. 1113.

17. Ibid.

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. CONSTITUTION, Article XI, Section 1.

21. Brent D. Ward, Can the Federal Courts Keep Order in Their Own House? Appellate Supervision through Mandamus and Orders of
Judicial Councils, 233 Brigham 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.

22. Robert W. Kastenmeier, supra note 18.

23. Ibid.

24. Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Texas Law Review 1, 73-74 (November
1989).
25. Robert W. Kastenmeier, supra note 18.

26. 264 F.3d 52 (2001).

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. AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING
FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES.

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.
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.

ABAD, J.:

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.

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]

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).

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 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.
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

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%20volume%2070%20number%204%20-02-
%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf]

SERENO, J., dissenting:

1. Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 CASE W. RES. J. INT'L. L. 225 (2006-2007); CHRISTIAN J. TAMS,
ENFORCING ERGA OMNES OBLIGATIONS IN INTERNATIONAL LAW (2005); Evan J. Criddle and Evan Fox-Decent, A Fiduciary Theory
of Jus Cogens, 34 YALE J. INT'L. L. 331 (2009)
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
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Mariano C. del Castillo, AM 10-7-17-SC, promulgated 12 October 2010, at 31.
4. Robert McCorquodale, The Individual and the International Legal System, in INTERNATIONAL LAW, 307-332 (Malcolm Evans ed.,
2006).

5. Phoebe Okowa, Issues of Admissibility and the Law on International Responsibility, in INTERNATIONAL LAW (Malcolm Evans ed.,
2006).

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.

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.

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 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.

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.

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.

13. RICHARD A. POSNER, THE LITTLE BOOK OF PLAGIARISM, 38 (2007).

14. Id. at 106.

15. Laurie Stearns, Copy Wrong: Plagiarism, Property, and the Law, 80 CAL. L. REV. 513, 518 (1992).
16. Id. at 522.

17. JOYCE C. GEORGE, Judicial Plagiarism, JUDICIAL OPINION WRITING HANDBOOK, 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 726.

19. Id. at 715.

20. Id. at 718.

21. Id.

22. Id. at 726.

23. Id.
24. Supra note 3 at 29.

25. See: In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865 (as cited in Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It
Ethical?, 18 CARDOZO L. REV. 1253); Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57
COLLEGE ENGLISH 7 (Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403; Klinge v. Ithaca
College, 634 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 THE GEORGETOWN JOURNAL OF LEGAL ETHICS 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 26.

27. Discussion Paper No. 07011, October 2007, UP School of Economics.

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
(accessed on February 5, 2011).
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.

30. Understanding on Dispute Settlement, available at http://www.inquit.com/iqebooks/WTODC/Webversion/prov/eigteen.htm

(accessed on February 5, 2011).

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).
32. Salonga v. Cruz Paño, G.R. No. 59525, 18 February 1985, 134 SCRA 438.

33. Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21 GEO. J. LEGAL ETHICS 264 (2008).

34. Id. at 269.

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 35. Promulgated 5 September 1989, took effect 20 October 1989.

36. Supra note 33 at 240-241.

37. Administrative Order No. 162.

38. In Re Letter of Judge Augustus C. Diaz, A.M. No. 07-7-17-SC, 19 September 2007.

39. A.M. No. RTJ-90-447, 199 SCRA 75, 12 July 1991, 83-84.

40. Junio v. Rivera, A.M. No. MTJ-91-565. August 30, 1993.

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).

44. Supra note 33 at 282.

45. Foreword of Justice Ameurfina A. Melencio Herrera, "FUNDAMENTALS OF DECISION WRITING FOR JUDGES," (2009).

46. Daniel Farber, Missing the Play of Intelligence, 6 WM. & MARY L. REV. 147, (1994).
47. Id. at 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).

50. Paul A. Freund, "The Supreme Court" in TALKS ON AMERICAN LAW 81-94 (rev. ed., 1972).

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