IN RE: CHARGES OF PLAGIARISM AGAINST ASSOC.
JUSTICE MARIANO DEL petition filed by a group of Filipino “comfort women” during the Japanese military
CASTILLO
A.M. No. 10-7-17-SC | 12 Oct 2012 | EN BANC | Liabilities of a Judge
SUMMARY: On April 28, 2010, the Supreme Court issued a decision which
dismissed a petition filed by the Malaya Lolas Organization in the case of Vinuya
vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned
the said decision. He raised, among others, that the ponente in said case, Justice
Mariano del Castillo, plagiarized three books when the honorable Justice “twisted
the true intents” of these books to support the assailed decision. These books
were:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent,
Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case
Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University
Press (2005).
As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least
inexcusable negligence. Interestingly, even the three foreign authors mentioned
above, stated that their works were used inappropriately by Justice Del Castillo
and that the assailed decision is different from what their works advocated.
The Court held that there was no plagiarism. Even if there is (as emphasized by
the Supreme Court in its ruling on the Motion for Reconsideration filed by Vinuya
et al in 2011), the rule on plagiarism cannot be applied to judicial bodies.
ISSUE:
1. W/N Justice Del Castillo committed plagiarism – NO
2. W/N Justice Del Castillo twist the works of these authors – NO
RULING: The Court held that there was no plagiarism. Even if there is (as
emphasized by the Supreme Court in its ruling on the Motion for Reconsideration
filed by Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial
bodies.
DOCTRINE: Why the Court 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.
FACTS:
1. In the landmark decision of Vinuya vs. Executive Secretary, G.R. No.
162230, promulgated last April 28, 2010, the Supreme Court DISMISSED the
occupation of the Philippines.
2. The Court, speaking through Justice Mariano C. del Castillo, held that
the petition seeking to compel the Executive Department to espouse the
petitioners’ claims for official apology and other forms of reparations against
Japan before the International Court of Justice and other international tribunals
has NO MERIT because
3. the prerogative to determine whether to espouse petitioners’ claims
against Japan belongs exclusively to the Executive Department; and
4. the Philippines is not under any international obligation to espouse the
petitioners’ claims.
5. Discontented with the foregoing decision, the petitioners in Vinuya filed a
motion for reconsideration. Subsequently, they also filed a supplemental motion
for reconsideration, this time accusing Justice del Castillo of plagiarizing (copying
without attribution) and twisting passages from three foreign legal articles to
support the Court’s position in the Vinuya decision:
a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-
Descent, Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis,
Case Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge
University Press (2005).
6. The Court then referred the charges against Justice Del Castillo to its
Committee on Ethics and Ethical Standards, chaired by Chief Justice Renato
Corona, for investigation and recommendation. After the proceedings before it,
the Committee submitted its findings and recommendations to the Court en banc,
which then treated and decided the controversy as an administrative matter.
ISSUE/S:
1. W/N Justice Del Castillo committed plagiarism – NO
2. W/N Justice Del Castillo twist the works of these authors – NO
RATIO:
1. No, Justice Del Castillo, in writing the opinion for the Court in the Vinuya
case did not plagiarize the published works of authors Tams, Criddle-
Descent, and Ellis.
a. At its most basic, plagiarism means the theft of another person’s
language, thoughts, or ideas. To plagiarize, as it is commonly
understood according to Webster, is “to take (ideas, writings, etc.) from
(another) and pass them off as one’s own.” The passing off of the work
of another as one’s own is thus an indispensable element of plagiarism.
b. As regards to that one passage from Professor Tams, the Court believes
that whether or not the footnote is sufficiently detailed, so as to satisfy
the footnoting standards of counsel for petitioners is not an ethical matter
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 but one concerning clarity of writing. The statement “See Tams, Enforcing
Obligations Erga Omnes in International Law (2005)” in the Vinuya decision
is an attribution no matter if Tams thought that it gave him somewhat less
credit than he deserved. Such attribution altogether negates the idea that
Justice Del Castillo passed off the challenged passages as his own.
c. That it would have been better had Justice Del Castillo used the
introductory phrase “cited in” rather than the phrase “See” would make a
case of mere inadvertent slip in attribution rather than a case of “manifest
intellectual theft and outright plagiarism.” If the Justice’s citations were
imprecise, it would just be a case of bad footnoting rather than one of theft
or deceit.
d. As regards the passages from Ellis, the Court notes that the lengthy
passages in Footnote 65 of Vinuya came almost verbatim from Ellis’ article
but did not contain an acknowledgment or introduction that they are from
that article. Moreover, as regards the passages from the work of Professors
Criddle and Descent, it was also observed that the Vinuya decision lifted the
portions, including their footnotes, from Criddle-Descent’s article, A
Fiduciary Theory of Jus Cogens as footnotes in the Vinuya decision without
any attributions made to the two authors. Unless amply explained, these
unattributed lifting from the works of Ellis and Criddle- Descent could be
construed as plagiarism.
e. The explanation came from one of Justice Del Castillo’s researcher/court-
employed attorney. She explained how she accidentally deleted the
attributions, originally planted in the beginning drafts of her report to him,
which report eventually became the working draft of the decision. She said
that, for most parts, she did her research electronically. For international
materials, she sourced these mainly from Westlaw, an online research
service for legal and law-related materials to which the Court subscribes.
The researcher showed the Committee the early drafts of her report in the
Vinuya case and these included the passages lifted from the separate
articles of Criddle-Descent and of Ellis with proper attributions to these
authors. But, as it happened, in the course of editing and cleaning up her
draft, the researcher accidentally deleted the attributions.
f. It was notable that neither Justice Del Castillo nor his researcher had a
motive or reason for omitting attribution for the lifted passages to Criddle-
Descent or to Ellis.
2. No, Justice Del Castillo did not twist the works of these authors to make it
appear that such works supported the Court’s position in the Vinuya
decision.
a. The decision [in Vinuya] did NOT twist the passages from Tams,
Criddle- Descent, and Ellis. To twist means “to distort or pervert the
meaning of.” For example, if one lifts the lyrics of the National Anthem,
uses it in his work, and declares that Jose Palma who wrote it “did not
love his country,” then there is “twisting” or misrepresentation of what the
anthem’s lyrics said. Here, nothing in the Vinuya decision said or implied
that, based on the lifted passages, authors Tams, Criddle-Descent, and
Ellis supported the Court’s conclusion that the Philippines is not under
any obligation in international law to espouse Vinuya et al.’s claims.
DISPOSITION: WHEREFORE, in view of all of the above, the Court:
1. DISMISSES for lack of merit petitioner Vinuya, et al.’s charges of
plagiarism, twisting of
cited materials, and gross neglect against Justice Mariano C. del
Castillo;
2. DIRECTS the Public Information Office to send copies of this
decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr.
Mark Ellis, and Professor Christian J. Tams at their
known addresses;
3. DIRECTS the Clerk of Court to provide all court attorneys involved
in legal research and
reporting with copies of this decision and to enjoin them to avoid
editing errors committed in the Vinuya case while using the
existing computer program especially when the volume of citations
and footnoting is substantial; and
4. Finally, DIRECTS the Clerk of Court to acquire the necessary software
for use by the Court that can prevent future lapses in citations and
attributions.
Justice Sereno, dissenting.
1. Main Point: The court erred in ruling that there was no plagiarism
committed because their decision stems from its failure to distinguish
between the determination of the objective, factual existence of
plagiarism in the Vinuya decision and the determination of the liability
that results from a finding of plagiarism.
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2. Findings of judicial plagiarism do not necessarily carry with them the a. The lack of definitiveness in sanctions for judicial plagiarism
imposition of sanctions, nor do they present unequivocal demands for may also be due to the reluctance of judges themselves to
rehearing or the reversal of rulings. confront the issue of plagiarism in the context of judicial writing;
the apprehension caused by “feelings of guilt” being due to “the
3. There is no requirement of extent of copying or a minimum number of
possibility that plagiarism has unknowingly or intentionally been
instances of unattributed usage for an act to be considered a plagiarist act,
committed” and a “traditional” hesitance to consider plagiarism
nor is the intent to deceive or to copy without attribution a prerequisite of
as “being applicable to judicial writings.”
plagiarism.
4. The evidence in the text of the Vinuya Decision and the acknowledgment by
the legal researcher are sufficient for the determination of plagiarism.
5. Her admission that the correct attributions went missing in the process of
her work is an admission of plagiarism.
6. 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.
7. Sereno also listed down all the Violations of rules on plagiarism committed
by Del Castillo in the Vinuya Decision.
a. Writing Sources by Gordon Harvey identifies four forms of
plagiarism:
i. uncited data or information;
ii. an uncited idea, whether a specific claim or general
concept;
iii. an unquoted but verbatim phrase or passage;
iv. and (d) an uncited structure or organizing strategy.
b. Mode of Plagiarism
i. by “plagiarizing information that is not common
knowledge.”
ii. is committed when “distinctive ideas are plagiarized,”
“even though you present them in a different order and in
different words, because they are uncited.”
iii. is committed when “you ... borrowed several distinctive
phrases verbatim, without quotation marks...”
iv. is committed when, though the words and details are
original, “(y)ou have, however, taken the structural
framework or outline directly from the source passage ...
even though, again, your language differs from your
source and your invented examples are original.
c. These forms of plagiarism can exist simultaneously in one and the
same passage. Example given:
i. There may be a complete failure to use quotation marks
in one part of the sentence or paragraph while combining
that part with phrases employing an uncited structure or
organizing strategy.
8. There may be patchwork plagiarizing committed by collating different works
or excerpts from the same work without proper attribution.)
9. The imposition of sanctions for acts of judicial plagiarism, however, is not as
clear-cut.