By Perry Diaz


Judicial Voodoo vs. Rule of Law


The recent Supreme Court decision absolving Justice Mariano del Castillo of plagiarism stirred a hornet’s nest in the international legal community.  And, at home, the high court’s subsequent action, which threatened to sanction 37 faculty members of the University of the Philippines College of Law, ignited a firestorm of controversy that questions the infallibility of the Supreme Court.  


It all began in April 2010 when the Supreme Court dismissed the petition of 70 Filipino “comfort women” (Vinuya vs. Romulo, G.R. No. 162230) to compel the Philippine government to get a public apology from the Japanese government including reparation to victims of sexual abuse by the Japanese Imperial Army during World War II.  Justice Del Castillo penned the ponencia.



That would have been the end of it.  But Marvic Leonen, Dean of the U.P. College of Law, learned from a student of international law that Del Castillo lifted quotes and footnotes – without crediting the authors -- from three internationally published articles.   Consequently, lawyers Harry Roque and Romel Bagares submitted a motion for reconsideration on the comfort women’s petition and also accused Del Castillo of plagiarism.  


Meanwhile, Dr. Mark Ellis, one of the authors whose work was plagiarized, sent an email to the justices, which says: “In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28 of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross-purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.” 


Pretty soon, calls for discipline against the 10 justices -- including the ponente, Del Castillo -- snowballed.   Chief Justice Renato Corona created a five-member committee on Ethics and Ethical Standards, headed by him, to investigate the complaint of plagiarism.  The problem is that all five justices assigned to the committee had concurred with the ponencia in question; therefore, if they recommended disciplinary action, they would be incriminating themselves.   


Consequently, the 37 U.P. College of Law faculty members issued a public statement on the allegations of plagiarism and misrepresentation of the Supreme Court, to wit: “It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.”  They deplored the act of plagiarism as “unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court,” and demanded the resignation of Del Castillo to save the “honor and dignity” of the Supreme Court.

Last October 15, 2010, the Supreme Court -- on a 10-2 decision -- absolved Del Castillo of plagiarism for “lack of merit.”  The two justices who voted against the ruling were Conchita Carpio-Morales and Maria Lourdes Sereno.  Justices Antonio Carpio and Diosdado Peralta were on official leave while Del Castillo did not participate in the proceedings.


Judicial voodoo


In the ruling, the majority said that Del Castillo couldn’t be faulted because the alleged plagiarized material was “accidentally deleted” by Del Castillo’s court researcher.  They also said that Del Castillo and his researcher could not be held liable for plagiary because Microsoft Word, the software used in writing the ponencia, could not detect “copied” material without the proper attributions.  “Microsoft Word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed,” the ruling said.   The majority also accepted Del Castillo’s explanation that there was “no malicious intent to appropriate another’s work as our own.”     

The Supreme Court ruling defied conventional logic and used convoluted rationale that could only be construed as an aberration – or abrogation – of established norms and standards.   It was classic case of “judicial voodoo” taking precedence over the rule of law where the magistrates used mumbo-jumbo reasoning. 


In her dissenting opinion, Justice Sereno said, “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.”  She also said that claiming“lack of malicious intent” would not “change the characterization of the act as plagiarism.”  Indeed, Sereno’s rebuttal exemplifies logical rationalization predicated on the rule of law.


Desperate act


And in a desperate act to salvage what is left of its credibility and integrity, the Supreme Court tried to muffle dissent and criticism by threatening to impose sanctions against the 37 faculty members for their purported violation of the lawyers’ “code of ethics.”  Little did the Supreme Court realize that its action would only provoke and infuriate the media and the academia; thus, further intensifying demands for Del Castillo’s resignation.  Indeed, it’s a rude awakening for the Supreme Court justices who had gotten away with controversial decisions in the past which were accepted as “infallible” and therefore beyond reproach.   Not anymore.    


Quo vadis, Supreme Court?


The Supreme Court’s controversial ruling that totally ignored Section 15 Article VII of the Constitution -- which bans “midnight appointments” -- and allowed then President Gloria Macapagal Arroyo to appoint Justice Renato Corona as Chief Justice during the prohibited period was another process that could only be construed as “judicial voodoo” where rule of law was debased for the purpose of circumventing the constitution for the aggrandizement of a few. 


Sad to say, with Corona at the helm of the Supreme Court until 2018 -- when he reaches mandatory age retirement -- and the other Arroyo appointees holding a majority until then, the Aquino administration would be under the spell of “judicial voodooism” for a long time to come. 


Are these the signs that portend to the coming of the Dark Age in Philippine jurisprudence?  Or, are we already in that age?