FULL COURT PRESS: What your 2016 vote will mean for the Supreme Court

By Siesta-friendly

The next Philippine President is constitutionally set to hold office for 6 years from 2016 – 2022.   And within her/his term, 11 Supreme Court justices are constitutionally mandated to retire once they reach 70 years.
Already potent as it is, the president’s power to appoint will be most significant when it comes to appointing Supreme Court justices as the new Chief Executive will be able to pack the court.
Judicial review

With the 1987 Constitution’s power of judicial review, to wit -

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Section 1, Article VIII, 1987 Constitution)

citizens have appealed to the Supreme Court on issues seemingly strictly within the jurisdiction of the executive or legislative departments.

Where pre-1987 Constitution, the Supreme Court could cite the doctrine of “political question” as a valid excuse in refusing to settle certain executive or legislative actions, that is no longer the case. With the 1987 Constitutional provision on judicial review, any act of a government official/s can be questioned on constitutional grounds if done in “grave abuse of discretion amounting to lack or excess of jurisdiction”.

So, if the next President chooses well, we can have a Supreme Court that can provide an effective check on executive or legislative excesses. If not, we end up with a Supreme Court rubber-stamping any questioned abusive executive or legislative action. Or possibly worse, an activist Court that indirectly legislates through its decisions.

And we indirectly have a hand in shaping the composition of the Supreme Court when we choose the person authorized to appoint its members.

Soon-to-retire SC justices

Here are the names of the 11 justices and their respective retirement dates:

1. Martin S. Villarama, Jr. - April 14, 2016
2. Jose P. Perez - December 14, 2016
3. Arturo D. Brion - December 29, 2016
4. Bienvenido L. Reyes - July 6, 2017
5. Jose C. Mendoza - August 13, 2017
6. Presbitero J. Velasco - August 8, 2018
7. Teresita Leonardo-De Castro- Oct. 8, 2018
8. Mariano C. Del Castillo - July 29, 2019
9. Lucas P. Bersamin - October 18, 2019
10. Antonio T. Carpio - October 26, 2019
11. Francis H. Jardeleza - September 26, 1949

We note that 10 of the 11 are Gloria Arroyo appointees, so while we look forward to the diminishing Arroyo court, we are wary that the next President would appoint justices lacking independence, integrity and morality thereby forming another President’s court which will unabashedly issue decisions favoring their appointer.

Thus, we need a President with independence, integrity and morality to get a Supreme Court of the same character.

So this campaign season, let us encourage debates on governance issues, and not politics. Let us set high standards for our leaders, and not settle for popularity. Let us look for the leader who will have the people’s interest – not his, nor his family, cronies or party’s – at heart. And let us vote wisely. It is not only the membership in the Court that is at stake but our very future.

“A world is supported by four things ...

the learning of the wise,

the justice of the great,

the prayers of the righteous

and the valour of the brave.

But all of these are as nothing ... without a ruler who knows the art of ruling.”

- The Reverend Mother Gaius Helen Mohiam, in Frank Herbert’s “Dune”

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By Your Own Hand or Not, who cares? (When Plagiarism isn’t Plagiarism according to the Supreme Court)

The Supreme Court recently held in In The Matter Of The Charges Of Plagiarism, Etc., Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC, October 15, 2010), how certain acts of lifting direct quotes without making proper attributions in Justice De Castillo’s penned decision in Vinuya, et al. vs The Executive Secretary, et al. (G.R. No. 162230, April 28, 2010) do not constitute plagiarism.

Let’s see for ourselves, shall we?

Lifted lines from the introductory chapter of Enforcing Obligations Erga Omnes in International Law by Christian J. Tam, (Cambridge University Press 2005) as enumerated in the annex of Mr. Tams’ letter to the Supreme Court

The following are the lifted lines comprising 3 lines forming 1 paragraph of page 30 of the main text plus its relevant footnote.  None of the 3 lines are enclosed in quotation nor indented to indicate they were lifted from another’s work.  None of the lines are attributed.While the 3^rd line has a footnote, the footnote begins with another line taken from the same unattributed source.

The Latin phrase ‘erga omnes’ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law. [However, as is so] often [the case], the reality is neither so clear nor so bright.  [W]hatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in practice. ^[69] [the changes made in the Vinuya decision are enclosed in parenthesis.]

_______

“^[69] Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment:‘Viewed realistically, the world of obligations erga omnes is still the world of the “ought” rather than of the “is” ’The Charter of the United Nations: A commentary 125 (Simma, ed. 1995). See Tams, Enforcing Obligations Erga omnes in International Law (2005) ... ”

As written, the footnote seems to merely state the writer’s comments to his main text paragraph.  It does not look like Bruno Simma is cited as the source of the 3^rd line - much less the entire paragraph - especially in the absence of quotations or indentation.

The only reference to Tams (“See Tams, Enforcing Obligations Erga omnes in International Law (2005). …”) gives the impression that Tams’ work might be read to gain more information on the matter. It does not make it appear that the entire paragraph on the main text or the introductory line of the footnote is taken from Tams’ book. 

       

Without indicating in any way that the above 4 lines were lifted word for word from another source, the writer makes it appear all the words and ideas are his.

The Supreme Court, however, explains the lack of plagiarism in all these instances as follows –

“…The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams himself credited for them.  Still, Footnote 69 mentioned, apart from Simma, Tams’ article as another source of those ideas. 

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 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.   

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.  If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.”

Not an ethical matter but one concerning clarity of writing?  Mere inadvertent slip in attribution?  Bad footnoting?

Hmmm.  Sure.

Lifted lines from the article Breaking The Silence: Rape As An International Crime by Mark Ellis, (Case Western Review Journal of International Law, 2007)

The lines are too many to list but they comprise almost all 6 paragraphs of footnote 65 of the Vinuya decision.  The lines were taken from parts III-VI, pages 3-12 of Ellis’ article.  Nowhere in the entire Vinuya decision is Mark Ellis or his article cited.  Nowhere is there any indication that substantially all 6 paragraphs were not Justice Del Castillo’s words or ideas.

Lifted lines from the article A Fiduciary Theory of Jus Cogens by Evan J. Criddle & Evan Fox-Decent (Yale Journal of International law, 2009)

8 sentences, 8 footnotes (footnotes 70 - 78) in 3 paragraphs (the 2^nd, 3^rd and 4^th to the last paragraphs) of the Vinuya decision were taken from different parts of the more than 50 pages of the Criddle & Fox-Decent article.  As with Mark Ellis, neither Criddle, Fox-Decent nor their article are cited in the entire Vinuya decision.  Unlike the lifted Ellis lines (which are found in a footnote), the Criddle & Fox-Decent lines form part of the main text, yet, no lines were with quotation nor were they indented to indicate they were sourced elsewhere. 

The Supreme Court explains the Ellis and Criddle & Fox-Decent citation snubs thus –

“… [Justice Del Castillo’s researcher] electronically “cut” relevant materials from books and journals in the Westlaw website and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice.  She used the Microsoft Word program.  Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded.  Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.

Justice Del Castillo’s 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.”  

It is one thing to accidentally delete attributions, but you have to use several strokes to “accidentally” delete quotation marks at the beginning and end of, and to delete the indentation encompassing, the lifted work. Unless, of course, they weren’t there in the first place. 

In ending, the Supreme Court noted that –

“What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in the Vinuya case ...  The Justice’s researcher was after all competent in the field of assignment given her.  She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her school’s Law Journal, and placed fourth in the bar examinations when she took it.  She earned a master’s degree in International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program, which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world ...”

Justice Del Castillo is a former MTC judge, RTC judge and Associate Justice of the Court of Appeals.  He’s used to writing intellectual works.  Based on her credentials, so is his researcher.  How then, with all their writing experience put together, could numerous accidental deletions referencing 3 different sources and inappropriate referencing have occurred in one single work?

Intent now an element of plagiarism

Apart from excusing plagiarism, the Supreme Court has now also added an element to plagiarism.

In finding that the claim of “accidental removal of proper attributions to the three authors is credible,” the Supreme Court also pronounced that:

“ … plagiarism is essentially a form of fraud where intent to deceive is inherent.  [The petitioners’ theory that intent is not material in plagiarism] provides no room for errors in research, an unrealistic position considering that there is hardly any substantial written work in any field of discipline that is free of any mistake.  The theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical explanations.”

             

Now, all plagiarists can claim lack of intent as an excuse for dishonesty.  Elsewhere, lazy, dishonest writers are celebrating …

In recent memory, we’ve already had a captain of industry and a Supreme Court justice both caught very publicly “unintentionally” copying another’s work.  It’s even more alarming when the university and the court concerned did not acknowledge the actions for what they really were: acts of plagiarism.  Giving credit where it is due is a deliberate act and its absence through accident or mere lack of intent is simply inexcusable.

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