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Cayetano, a Filipino taxpayer, questions the constitutionality of the appointment

of Atty. Monsod to the COMELEC because he contends that the requirement of


"practice of law" for at least ten years has not been met

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT,
and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal
issues are involved, the Court's decision in this case would indubitably have a profound effect
on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution
which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a
majority thereof, including the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law
as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation,
but embraces the preparation of pleadings, and other papers incident to actions
and special proceedings, conveyancing, the preparation of legal instruments of
all kinds, and the giving of all legal advice to clients. It embraces all advice to
clients and all actions taken for them in matters connected with the law. An
attorney engages in the practice of law by maintaining an office where he is held
out to be-an attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing counsel about
pending litigation, and fixing and collecting fees for services rendered by his
associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust
Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the
practice of law when he:
... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a

representative capacity as an advocate in proceedings pending or prospective,


before any court, commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there, in such
representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in
a representative capacity, engages in the business of advising clients as to their
rights under the law, or while so engaged performs any act or acts either in court
or outside of court for that purpose, is engaged in the practice of law. (State ex.
rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177)
stated:
The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf
of clients before judges and courts, and in addition, conveying. In general, all
advice to clients, and all action taken for them in matters connected with the law
incorporation services, assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a mortgage, enforcement of
a creditor's claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been
held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal
mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263).
(Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to proceedings
in court. It embraces conveyancing, the giving of legal advice on a large variety
of subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these
transactions may have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary
functions of an attorney or counselor at law bear an intimate relation to the
administration of justice by the courts. No valid distinction, so far as concerns the
question set forth in the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which involves advice
and drafting of instruments in his office. It is of importance to the welfare of the
public that these manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral character, and acting at
all times under the heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis
ours)
The University of the Philippines Law Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some
one or more lines of employment such as this he is a practicing attorney at law
within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform
those acts which are characteristics of the profession. Generally, to practice law is to give notice

or render any kind of service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the
provisions on the Commission on Audit. May I be allowed to make
a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of
the Commission on Audit. Among others, the qualifications
provided for by Section I is that "They must be Members of the
Philippine Bar" I am quoting from the provision "who have
been engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the
Bar who are now employed in the COA or Commission on Audit, we would like to
make the clarification that this provision on qualifications regarding members of
the Bar does not necessarily refer or involve actual practice of law outside the
COA We have to interpret this to mean that as long as the lawyers who are
employed in the COA are using their legal knowledge or legal talent in their
respective work within COA, then they are qualified to be considered for
appointment as members or commissioners, even chairman, of the Commission
on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the practice
of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a
lawyer is equivalent to the requirement of a law practice that is set
forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA,
although it is auditing, will necessarily involve legal work; it will
involve legal work. And, therefore, lawyers who are employed in
COA now would have the necessary qualifications in accordance
with the Provision on qualifications under our provisions on the
Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this
is equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman
and two Commissioners of the Commission on Audit (COA) should either be certified public
accountants with not less than ten years of auditing practice, or members of the Philippine Bar
who have been engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with
the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a
fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood,
means "an individual or organization engaged in the business of delivering legal services."
(Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are
called "firms." The firm is usually a partnership and members of the firm are the partners. Some
firms may be organized as professional corporations and the members called shareholders. In
either case, the members of the firm are the experienced attorneys. In most firms, there are
younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of
law is defined as the performance of any acts . . . in or out of court, commonly understood to be
the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d
863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]).
Because lawyers perform almost every function known in the commercial and governmental
realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar
role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little
time in courtrooms, and a large percentage spend their entire practice without litigating a case.
(Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role
colors much of both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality.
(Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated
on the importance of a lawyer as a business counselor in this wise: "Even today, there are still
uninformed laymen whose concept of an attorney is one who principally tries cases before the
courts. The members of the bench and bar and the informed laymen such as businessmen,
know that in most developed societies today, substantially more legal work is transacted in law
offices than in the courtrooms. General practitioners of law who do both litigation and nonlitigation work also know that in most cases they find themselves spending more time doing
what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer
has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need
not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of legal
tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions,
clients, and other interested parties. Even the increasing numbers of lawyers in specialized
practice wig usually perform at least some legal services outside their specialty. And even within
a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as
advice-giving to an importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively
rare types a litigator who specializes in this work to the exclusion of much else. Instead, the
work will require the lawyer to have mastered the full range of traditional lawyer skills of client
counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find
that the new skills of evaluation and mediation are both effective for many clients and a source
of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in
very important ways, at least theoretically, so as to remove from it some of the salient features
of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client and by the way in
which the lawyer is organized into a social unit to perform that work. The most common of these
roles are those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional groups,
in particular those members participating in various legal-policy decisional

contexts, are finding that understanding the major emerging trends in corporation
law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning," has
impressed upon us the inadequacy of traditional procedures in many decisional
contexts.
In a complex legal problem the mass of information to be processed, the sorting
and weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the
need for fast decision and response in situations of acute danger have prompted
the use of sophisticated concepts of information flow theory, operational analysis,
automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive
component of the policy-making process, wherein a "model", of the decisional
context or a segment thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy of
advancing corporate legal education. Nonetheless, a cross-disciplinary approach
to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multivariable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level of
decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate finance problems would require
the services of an astute attorney because of the complex legal implications that
arise from each and every necessary step in securing and maintaining the
business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989,
p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money and
with a clientele composed of the tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain
what it is that a corporate lawyer does. For one, the number of attorneys
employed by a single corporation will vary with the size and type of the
corporation. Many smaller and some large corporations farm out all their legal
problems to private law firms. Many others have in-house counsel only for certain
matters. Other corporation have a staff large enough to handle most legal
problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may include,
inter alia: corporate legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts and other adjudicatory
agencies (including the Securities and Exchange Commission), and in other
capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such

matters as determining policy and becoming involved in management. (


Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the
action, or not understanding how one's work actually fits into the work of the
orgarnization. This can be frustrating to someone who needs to see the results of
his work first hand. In short, a corporate lawyer is sometimes offered this fortune
to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of companies
and law firms. Because working in a foreign country is perceived by many as
glamorous, tills is an area coveted by corporate lawyers. In most cases, however,
the overseas jobs go to experienced attorneys while the younger attorneys do
their "international practice" in law libraries. (Business Star, "Corporate Law
Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance.
To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad
lawyer is one who fails to spot problems, a good lawyer is one who perceives the
difficulties, and the excellent lawyer is one who surmounts them." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to
speak. No longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the Securities Code but
an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary
skins applicable to a corporate counsel's management responsibilities; and (3) a
devotion to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's role.
For that matter, the corporate lawyer reviews the globalization process, including
the resulting strategic repositioning that the firms he provides counsel for are
required to make, and the need to think about a corporation's; strategy at multiple
levels. The salience of the nation-state is being reduced as firms deal both with
global multinational entities and simultaneously with sub-national governmental
units. Firms increasingly collaborate not only with public entities but with each
other often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a new
role as a stakeholder in some cases participating in the organization and
operations of governance through participation on boards and other decisionmaking roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as
corporations organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries.
In Europe, Esprit, Eureka and Race are examples of collaborative efforts

between governmental and business Japan's MITI is world famous. (Emphasis


supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the groupcontext interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of
team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer visa-vis the managerial mettle of corporations are challenged. Current research is
seeking ways both to anticipate effective managerial procedures and to
understand relationships of financial liability and insurance considerations.
(Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and pressing
immediate problems. An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of systematic
problems physical, economic, managerial, social, and psychological. New
programming techniques now make the system dynamics principles more
accessible to managers including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and
minimize the cost and risk involved in managing a portfolio of cases. (Emphasis
supplied)
Third Modeling for Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of negotiations. All integrated
set of such tools provide coherent and effective negotiation support, including
hands-on on instruction in these techniques. A simulation case of an international
joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:

1 Preventive Lawyering. Planning by lawyers requires special skills that comprise a

major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of legal
trouble and maximizing legal rights for such legal entities at that time when
transactional or similar facts are being considered and made.

2 Managerial Jurisprudence. This is the framework within which are undertaken


those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric as
firms change to stay competitive in a global, interdependent environment. The
practice and theory of "law" is not adequate today to facilitate the relationships
needed in trying to make a global economy work.

3 Organization and Functioning of the Corporate Counsel's Office. The general

counsel has emerged in the last decade as one of the most vibrant subsets of the
legal profession. The corporate counsel hear responsibility for key aspects of the
firm's strategic issues, including structuring its global operations, managing
improved relationships with an increasingly diversified body of employees,
managing expanded liability exposure, creating new and varied interactions with
public decision-makers, coping internally with more complex make or by
decisions.

This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on corporate
activities, he must, at the very least, also gain a working knowledge of the
management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a
passing knowledge of financial law affecting each aspect of their work. Yet, many
would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position
of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod
does not possess the required qualification of having been engaged in the practice of law for at
least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's
nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and
Prohibition praying that said confirmation and the consequent appointment of Monsod as
Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations
of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of
the Philippines since its inception in 1972-73. He has also been paying his professional license
fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (1963-1970),
Monsod worked as an operations officer for about two years in Costa Rica and Panama, which
involved getting acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of an investment
bank and subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved
being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings
before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former
Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked
with the under privileged sectors, such as the farmer and urban poor groups, in initiating,
lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban
land reform bill. Monsod also made use of his legal knowledge as a member of the Davide
Commission, a quast judicial body, which conducted numerous hearings (1990) and as a
member of the Constitutional Commission (1986-1987), and Chairman of its Committee on
Accountability of Public Officers, for which he was cited by the President of the Commission,
Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions
with individual freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which
is adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations

officer (such as an official involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down
the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in maintaining
their countries' sovereignty. (Condensed from the work paper, entitled "Wanted:
Development Lawyers for Developing Nations," submitted by L. Michael Hager,
regional legal adviser of the United States Agency for International Development,
during the Session on Law for the Development of Nations at the Abidjan World
Conference in Ivory Coast, sponsored by the World Peace Through Law Center
on August 26-31, 1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation and
agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may
work with an international business specialist or an economist in the formulation
of a model loan agreement. Debt restructuring contract agreements contain such
a mixture of technical language that they should be carefully drafted and signed
only with the advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law Aspects of the
Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School
of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set of
terms and conditions which determines the contractual remedies for a failure to
perform one or more elements of the contract. A good agreement must not only
define the responsibilities of both parties, but must also state the recourse open
to either party when the other fails to discharge an obligation. For a compleat
debt restructuring represents a devotion to that principle which in the ultimate
analysis is sine qua non for foreign loan agreements-an adherence to the rule of
law in domestic and international affairs of whose kind U.S. Supreme Court
Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat
no drums; but where they are, men learn that bustle and bush are not the equal
of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of
Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol.
15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly the
modern concept of law practice, and taking into consideration the liberal construction intended
by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional
requirement that he has been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court
said:
Appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition being
that the appointee should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide.
(emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no authority
to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is
vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a
commission (in the Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment; and (4) acceptance
e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949;
Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of Monsod
as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article
IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold office
for seven years, two Members for five years, and the last Members for three
years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which
modern connotation is exactly what was intended by the eminent framers of the
1987 Constitution. Moreover, Justice Padilla's definition would require generally a
habitual law practice, perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten consecutive years. Clearly,
this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice " . . . is what people ordinarily mean by the practice of law."
True I cited the definition but only by way of sarcasm as evident from my statement that the
definition of law practice by "traditional areas of law practice is essentially tautologous" or
defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are actually
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod
is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years.
This is different from the acts of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly
doubt. For one thing, how can an action or petition be brought against the President? And even
assuming that he is indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as required

by law. The judgment rendered by the Commission in the exercise of such an acknowledged
power is beyond judicial interference except only upon a clear showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only
where such grave abuse of discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's
corrective power, since no abuse, much less a grave abuse of discretion, that would amount to
lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may
the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible that
the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah
(who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samson's eyes. This blinded the
man. Upon hearing of what had happened to her beloved, Delilah was beside herself with
anger, and fuming with righteous fury, accused the procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it
does not appear to me that there has been an adequate showing that the challenged
determination by the Commission on Appointments-that the appointment of respondent Monsod
as Chairman of the Commission on Elections should, on the basis of his stated qualifications
and after due assessment thereof, be confirmed-was attended by error so gross as to amount to
grave abuse of discretion and consequently merits nullification by this Court in accordance with
the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the
petition.

PADILLA, J., dissenting:


The records of this case will show that when the Court first deliberated on the Petition at bar, I
voted not only to require the respondents to comment on the Petition, but I was the sole vote for
the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the
position of COMELEC Chairman, while the Court deliberated on his constitutional qualification
for the office. My purpose in voting for a TRO was to prevent the inconvenience and even
embarrassment to all parties concerned were the Court to finally decide for respondent
Monsod's disqualification. Moreover, a reading of the Petition then in relation to established
jurisprudence already showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to
his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because,
ultimately, the core issue to be resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional
provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among
these are that he must have been "engaged in the practice of law for at least ten (10) years." It
is the bounden duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge;
it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or profession actively,
habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a
nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant
who works as a clerk, cannot be said to practice his profession as an accountant. In the same
way, a lawyer who is employed as a business executive or a corporate manager, other than as
head or attorney of a Legal Department of a corporation or a governmental agency, cannot be
said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522,
98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding
one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109
citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of
law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a
lawyer before a notary public, and files a manifestation with the Supreme Court
informing it of his intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or


customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127,
p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself
to be in the active and continued practice of the legal profession and that his
professional services are available to the public for compensation, as a service of
his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving
the use of legal knowledge and skill is within the term "practice of law" (Ernani
Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v.
People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion
as to the proper interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to
clients and all action taken for them in matters connected with the law; are
practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin
supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the
existence of lawyer-client relationship. Hence, where a lawyer undertakes an
activity which requires knowledge of law but involves no attorney-client
relationship, such as teaching law or writing law books or articles, he cannot be
said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal
Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10)
years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he
did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC
Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not
qualify his past endeavors as "practice of law." To become engaged in the practice of law, there
must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs.
Villanueva: 4
Essentially, the word private practice of law implies that one must have
presented himself to be in the active and continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law
for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the
same. There are certain points on which I must differ with him while of course respecting
hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choose between two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of
the required qualifications, I see no reason why we cannot disqualified an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have
been too sweeping in its definition of the phrase "practice of law" as to render the qualification
practically toothless. From the numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice
of law as long as his activities involve the application of some law, however peripherally. The
stock broker and the insurance adjuster and the realtor could come under the definition as they
deal with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That
covers every company organized under the Corporation Code and regulated by the SEC under
P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that
is not affected by some law or government regulation the businessman must know about and
observe. In fact, again going by the definition, a lawyer does not even have to be part of a
business concern to be considered a practitioner. He can be so deemed when, on his own, he
rents a house or buys a car or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he operates a public utility vehicle as his
main source of livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of
any acts ... in or out of court, commonly understood to be the practice of law," which tells us
absolutely nothing. The decision goes on to say that "because lawyers perform almost every
function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be
engaged in the practice of law even if he does not earn his living, or at least part of it, as a
lawyer. It is enough that his activities are incidentally (even if only remotely) connected with
some law, ordinance, or regulation. The possible exception is the lawyer whose income is
derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he
has been engaged in the practice of law for ten years as required by the Constitution. It is
conceded that he has been engaged in business and finance, in which areas he has
distinguished himself, but as an executive and economist and not as a practicing lawyer. The
plain fact is that he has occupied the various positions listed in his resume by virtue of his
experience and prestige as a businessman and not as an attorney-at-law whose principal
attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the
Constitutional Commission (together with non-lawyers like farmers and priests) and was a
member of the Davide Commission, he has not proved that his activities in these capacities

extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as Chairman
of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a
qualification for public office would be settled one way or another in fairly definitive terms.
Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2
voting in the result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he viewed the issue; and
2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of
executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a
specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he
has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law,
if he has not engaged in an activity where membership in the bar is a requirement I fail to see
how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in
fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged"
in an activity for ten years requires committed participation in something which is the result of
one's decisive choice. It means that one is occupied and involved in the enterprise; one is
obliged or pledged to carry it out with intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least
ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one
year period after passing the bar examinations when he worked in his father's law firm. Even
then his law practice must have been extremely limited because he was also working for M.A.
and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How
could he practice law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in
1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group Economist, Industry Department;


Operations, Latin American Department; Division Chief, South Asia and Middle
East, International Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco
Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation
and affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup
Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod
has given the law enough attention or a certain degree of commitment and participation as
would support in all sincerity and candor the claim of having engaged in its practice for at least
ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged
in the practice of law" with the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such
knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country
who has reached the age of discernment has to know, follow, or apply the law at various times
in his life. Legal knowledge is useful if not necessary for the business executive, legislator,
mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to

name only a few. And yet, can these people honestly assert that as such, they are engaged in
the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It
is not satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with
litigation but also services rendered out of court, and it includes the giving of
advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal effect
of which, under the facts and conditions involved, must be carefully determined.
People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People
ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what
constitutes the practice of law. "Practicing law" has been defined as "Practicing
as an attorney or counselor at law according to the laws and customs of our
courts, is the giving of advice or rendition of any sort of service by any person,
firm or corporation when the giving of such advice or rendition of such service
requires the use of any degree of legal knowledge or skill." Without adopting that
definition, we referred to it as being substantially correct in People ex rel. Illinois
State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901.
(People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or
customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He
was asked whether or not he ever prepared contracts for the parties in realestate transactions where he was not the procuring agent. He answered: "Very
seldom." In answer to the question as to how many times he had prepared
contracts for the parties during the twenty-one years of his business, he said: "I
have no Idea." When asked if it would be more than half a dozen times his
answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When asked if he did not
remember saying that he had made a practice of preparing deeds, mortgages
and contracts and charging a fee to the parties therefor in instances where he
was not the broker in the deal, he answered: "Well, I don't believe so, that is not
a practice." Pressed further for an answer as to his practice in preparing
contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as real
estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a
lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the
like. There is no doubt but that he has engaged in these practices over the years
and has charged for his services in that connection. ... (People v. Schafer, 87
N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by
another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings.
Strictly, these professional persons are attorneys at law, and non-professional
agents are properly styled "attorney's in fact;" but the single word is much used

as meaning an attorney at law. A person may be an attorney in facto for another,


without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally qualified to
prosecute and defend actions in such court on the retainer of clients. "The
principal duties of an attorney are (1) to be true to the court and to his client; (2)
to manage the business of his client with care, skill, and integrity; (3) to keep his
client informed as to the state of his business; (4) to keep his secrets confided to
him as such. ... His rights are to be justly compensated for his services." Bouv.
Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster,
means 'to do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or repeated
action; to apply, as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of
acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions,
a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of
statute has been interpreted as customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required
component of the meaning of practice of law in a Memorandum prepared and issued by it, to
wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding
one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing
State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general practice of law (U.S.
v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer
before a notary public, and files a manifestation with the Supreme Court
informing it of his intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1
27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities
which do not fall under the denomination of practice of law. Admission to the practice of law was
not required for membership in the Constitutional Commission or in the Fact-Finding
Commission on the 1989 Coup Attempt. Any specific legal activities which may have been
assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign
corporations in the Philippines which do not categorize the foreign corporations as doing
business in the Philippines. As in the practice of law, doing business also should be active and
continuous. Isolated business transactions or occasional, incidental and casual transactions are
not within the context of doing business. This was our ruling in the case of Antam Consolidated,
Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for
such high offices as President, Vice-President, Senator, Congressman or Governor but the
Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be
confirmed for that office. The Constitution charges the public respondents no less than this
Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion
in confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it
does not appear to me that there has been an adequate showing that the challenged
determination by the Commission on Appointments-that the appointment of respondent Monsod
as Chairman of the Commission on Elections should, on the basis of his stated qualifications
and after due assessment thereof, be confirmed-was attended by error so gross as to amount to
grave abuse of discretion and consequently merits nullification by this Court in accordance with
the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the
petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I
voted not only to require the respondents to comment on the Petition, but I was the sole vote for
the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the
position of COMELEC Chairman, while the Court deliberated on his constitutional qualification
for the office. My purpose in voting for a TRO was to prevent the inconvenience and even
embarrassment to all parties concerned were the Court to finally decide for respondent
Monsod's disqualification. Moreover, a reading of the Petition then in relation to established
jurisprudence already showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to
his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because,
ultimately, the core issue to be resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional
provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among
these are that he must have been "engaged in the practice of law for at least ten (10) years." It
is the bounden duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge;
it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or profession actively,
habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a
nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant
who works as a clerk, cannot be said to practice his profession as an accountant. In the same
way, a lawyer who is employed as a business executive or a corporate manager, other than as
head or attorney of a Legal Department of a corporation or a governmental agency, cannot be
said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2

Practice is more than an isolated appearance for it consists in frequent or


customary actions, a succession of acts of the same kind. In other words, it is
frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522,
98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding
one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109
citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of
law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a
lawyer before a notary public, and files a manifestation with the Supreme Court
informing it of his intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127,
p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself
to be in the active and continued practice of the legal profession and that his
professional services are available to the public for compensation, as a service of
his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving
the use of legal knowledge and skill is within the term "practice of law" (Ernani
Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v.
People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion
as to the proper interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to
clients and all action taken for them in matters connected with the law; are
practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal
knowledge, training and experience is within the term "practice of law". (Martin
supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the
existence of lawyer-client relationship. Hence, where a lawyer undertakes an
activity which requires knowledge of law but involves no attorney-client
relationship, such as teaching law or writing law books or articles, he cannot be
said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal
Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10)
years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he

did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC
Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not
qualify his past endeavors as "practice of law." To become engaged in the practice of law, there
must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs.
Villanueva: 4
Essentially, the word private practice of law implies that one must have
presented himself to be in the active and continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law
for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the
same. There are certain points on which I must differ with him while of course respecting
hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choose between two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of
the required qualifications, I see no reason why we cannot disqualified an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have
been too sweeping in its definition of the phrase "practice of law" as to render the qualification
practically toothless. From the numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice
of law as long as his activities involve the application of some law, however peripherally. The
stock broker and the insurance adjuster and the realtor could come under the definition as they
deal with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That
covers every company organized under the Corporation Code and regulated by the SEC under
P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that
is not affected by some law or government regulation the businessman must know about and
observe. In fact, again going by the definition, a lawyer does not even have to be part of a
business concern to be considered a practitioner. He can be so deemed when, on his own, he
rents a house or buys a car or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he operates a public utility vehicle as his
main source of livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of
any acts . . . in or out of court, commonly understood to be the practice of law," which tells us

absolutely nothing. The decision goes on to say that "because lawyers perform almost every
function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be
engaged in the practice of law even if he does not earn his living, or at least part of it, as a
lawyer. It is enough that his activities are incidentally (even if only remotely) connected with
some law, ordinance, or regulation. The possible exception is the lawyer whose income is
derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he
has been engaged in the practice of law for ten years as required by the Constitution. It is
conceded that he has been engaged in business and finance, in which areas he has
distinguished himself, but as an executive and economist and not as a practicing lawyer. The
plain fact is that he has occupied the various positions listed in his resume by virtue of his
experience and prestige as a businessman and not as an attorney-at-law whose principal
attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the
Constitutional Commission (together with non-lawyers like farmers and priests) and was a
member of the Davide Commission, he has not proved that his activities in these capacities
extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as Chairman
of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a
qualification for public office would be settled one way or another in fairly definitive terms.
Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2
voting in the result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he viewed the issue; and
2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of
executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a
specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he
has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law,
if he has not engaged in an activity where membership in the bar is a requirement I fail to see
how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in
fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged"
in an activity for ten years requires committed participation in something which is the result of
one's decisive choice. It means that one is occupied and involved in the enterprise; one is
obliged or pledged to carry it out with intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least
ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one
year period after passing the bar examinations when he worked in his father's law firm. Even
then his law practice must have been extremely limited because he was also working for M.A.
and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How
could he practice law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in
1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department;
Operations, Latin American Department; Division Chief, South Asia and Middle
East, International Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco
Securities Corporation, Philippine Petroleum Corporation, Philippine Electric
Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation
and affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup
Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation


l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod
has given the law enough attention or a certain degree of commitment and participation as
would support in all sincerity and candor the claim of having engaged in its practice for at least
ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged
in the practice of law" with the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such
knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country
who has reached the age of discernment has to know, follow, or apply the law at various times
in his life. Legal knowledge is useful if not necessary for the business executive, legislator,
mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to
name only a few. And yet, can these people honestly assert that as such, they are engaged in
the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It
is not satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with
litigation but also services rendered out of court, and it includes the giving of
advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal effect
of which, under the facts and conditions involved, must be carefully determined.
People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People
ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what
constitutes the practice of law. "Practicing law" has been defined as "Practicing
as an attorney or counselor at law according to the laws and customs of our
courts, is the giving of advice or rendition of any sort of service by any person,
firm or corporation when the giving of such advice or rendition of such service
requires the use of any degree of legal knowledge or skill." Without adopting that
definition, we referred to it as being substantially correct in People ex rel. Illinois
State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901.
(People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or
customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He
was asked whether or not he ever prepared contracts for the parties in realestate transactions where he was not the procuring agent. He answered: "Very
seldom." In answer to the question as to how many times he had prepared
contracts for the parties during the twenty-one years of his business, he said: "I
have no Idea." When asked if it would be more than half a dozen times his
answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When asked if he did not
remember saying that he had made a practice of preparing deeds, mortgages
and contracts and charging a fee to the parties therefor in instances where he
was not the broker in the deal, he answered: "Well, I don't believe so, that is not

a practice." Pressed further for an answer as to his practice in preparing


contracts and deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the books as far as real
estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a
lawful right to do any legal work in connection with real-estate transactions,
especially in drawing of real-estate contracts, deeds, mortgages, notes and the
like. There is no doubt but that he has engaged in these practices over the years
and has charged for his services in that connection. ... (People v. Schafer, 87
N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by
another to act in his stead; an agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in legal proceedings.
Strictly, these professional persons are attorneys at law, and non-professional
agents are properly styled "attorney's in fact;" but the single word is much used
as meaning an attorney at law. A person may be an attorney in facto for another,
without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally qualified to
prosecute and defend actions in such court on the retainer of clients. "The
principal duties of an attorney are (1) to be true to the court and to his client; (2)
to manage the business of his client with care, skill, and integrity; (3) to keep his
client informed as to the state of his business; (4) to keep his secrets confided to
him as such. ... His rights are to be justly compensated for his services." Bouv.
Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster,
means 'to do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or repeated
action; to apply, as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of
acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions,
a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of
statute has been interpreted as customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required
component of the meaning of practice of law in a Memorandum prepared and issued by it, to
wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding
one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing
State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general practice of law (U.S.
v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer
before a notary public, and files a manifestation with the Supreme Court
informing it of his intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1
27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities
which do not fall under the denomination of practice of law. Admission to the practice of law was
not required for membership in the Constitutional Commission or in the Fact-Finding
Commission on the 1989 Coup Attempt. Any specific legal activities which may have been
assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign
corporations in the Philippines which do not categorize the foreign corporations as doing
business in the Philippines. As in the practice of law, doing business also should be active and
continuous. Isolated business transactions or occasional, incidental and casual transactions are
not within the context of doing business. This was our ruling in the case of Antam Consolidated,
Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for
such high offices as President, Vice-President, Senator, Congressman or Governor but the
Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be
confirmed for that office. The Constitution charges the public respondents no less than this
Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion
in confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Footnotes
1 Webster's 3rd New International Dictionary.
2 14 SCRA 109
3 Commission on Appointments' Memorandum dated 25 June 1991 RE: WHAT
CONSTITUTES PRACTICE OF LAW, pp. 6-7.
4 14 SCRA 109.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
Resolution

March 18, 1954

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of
1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.
Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.
DIOKNO, J.:
In recent years few controversial issues have aroused so much public interest and concern as
Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of
Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may
be deemed to have passed his examinations successfully, he must have obtained a general
average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule
127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different
bar examinations held since 1946 and the varying degree of strictness with which the
examination papers were graded, this court passed and admitted to the bar those candidates
who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in
1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent.
Believing themselves as fully qualified to practice law as those reconsidered and passed by this
court, and feeling conscious of having been discriminated against (See Explanatory Note to
R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than
those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate
Bill No. 12 which, among others, reduced the passing general average in bar examinations to
70 per cent effective since 1946. The President requested the views of this court on the bill.
Complying with that request, seven members of the court subscribed to and submitted written
comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not
override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the
provisions of the vetoed bill. Although the members of this court reiterated their unfavorable
views on the matter, the President allowed the bill to become a law on June 21, 1953 without his
signature. The law, which incidentally was enacted in an election year, reads in full as follows:
REPUBLIC ACT NO. 972
AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM
NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN
HUNDRED AND FIFTY-FIVE.
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one
hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general
average of seventy per cent in any bar examinations after July fourth, nineteen hundred
and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventyone per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per
cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per
cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the
nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade
below fifty per cent in any subject, shall be allowed to take and subscribe the
corresponding oath of office as member of the Philippine Bar: Provided, however, That
for the purpose of this Act, any exact one-half or more of a fraction, shall be considered
as one and included as part of the next whole number.
SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject
in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed
to have passed in such subject or subjects and such grade or grades shall be included in

computing the passing general average that said candidate may obtain in any
subsequent examinations that he may take.
SEC. 3. This Act shall take effect upon its approval.
Enacted on June 21, 1953, without the Executive approval.
After its approval, many of the unsuccessful postwar candidates filed petitions for admission to
the bar invoking its provisions, while others whose motions for the revision of their examination
papers were still pending also invoked the aforesaid law as an additional ground for admission.
There are also others who have sought simply the reconsideration of their grades without,
however, invoking the law in question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or not they had invoked
Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If
they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if
declared valid, should be applied equally to all concerned whether they have filed petitions or
not. A complete list of the petitioners, properly classified, affected by this decision, as well as a
more detailed account of the history of Republic Act No. 972, are appended to this decision as
Annexes I and II. And to realize more readily the effects of the law, the following statistical data
are set forth:
(1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No.
972 total 1,168, classified as follows:
1946

(August)

206

121

18

1946

(November)

477

228

43

1947

749

340

1948

899

409

11

1949

1,218

532

164

1950

1,316

893

26

1951

2,068

879

196

1952

2,738 1,033

426

1953

2,555

284

TOTAL

968

12,230 5,421 1,168

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have
filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for
reconsideration.
(2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said
Republic Act. These candidates had each taken from two to five different examinations, but
failed to obtain a passing average in any of them. Consolidating, however, their highest grades
in different subjects in previous examinations, with their latest marks, they would be sufficient to
reach the passing average as provided for by Republic Act No. 972.
(3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of
which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had
individually presented motions for reconsideration which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending
because they could be favorably affected by Republic Act No. 972, although as has been
already stated, this tribunal finds no sufficient reasons to reconsider their grades
UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972

Having been called upon to enforce a law of far-reaching effects on the practice of the legal
profession and the administration of justice, and because some doubts have been expressed as
to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole
question of whether or not Republic Act No. 972 is constitutional.
We have been enlightened in the study of this question by the brilliant assistance of the
members of the bar who have amply argued, orally an in writing, on the various aspects in
which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente
J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law,
and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz,
Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of
counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio
Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped
us in this task. The legal researchers of the court have exhausted almost all Philippine and
American jurisprudence on the matter. The question has been the object of intense deliberation
for a long time by the Tribunal, and finally, after the voting, the preparation of the majority
opinion was assigned to a new member in order to place it as humanly as possible above all
suspicion of prejudice or partiality.
Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those
candidates who suffered from insufficiency of reading materials and inadequate preparation.
Quoting a portion of the Explanatory Note of the proposed bill, its author Honorable Senator
Pablo Angeles David stated:
The reason for relaxing the standard 75 per cent passing grade is the tremendous
handicap which students during the years immediately after the Japanese occupation
has to overcome such as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the liberation.
Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now
it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because
they suffered from "insufficiency of reading materials" and of "inadequacy of preparation."
By its declared objective, the law is contrary to public interest because it qualifies 1,094 law
graduates who confessedly had inadequate preparation for the practice of the profession, as
was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of
legal profession adequate preparation and efficiency, precisely more so as legal problem
evolved by the times become more difficult. An adequate legal preparation is one of the vital
requisites for the practice of law that should be developed constantly and maintained firmly. To
the legal profession is entrusted the protection of property, life, honor and civil liberties. To
approve officially of those inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the statement that there was an
insufficiency of legal reading materials is grossly exaggerated. There were abundant materials.
Decisions of this court alone in mimeographed copies were made available to the public during
those years and private enterprises had also published them in monthly magazines and annual
digests. The Official Gazette had been published continuously. Books and magazines published
abroad have entered without restriction since 1945. Many law books, some even with revised
and enlarged editions have been printed locally during those periods. A new set of Philippine
Reports began to be published since 1946, which continued to be supplemented by the addition
of new volumes. Those are facts of public knowledge.
Notwithstanding all these, if the law in question is valid, it has to be enforced.
The question is not new in its fundamental aspect or from the point of view of applicable
principles, but the resolution of the question would have been easier had an identical case of
similar background been picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been directly derived the
judicial system established here with its lofty ideals by the Congress of the United States, and
which we have preserved and attempted to improve, or in our contemporaneous judicial history
of more than half a century? From the citations of those defending the law, we can not find a
case in which the validity of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240
NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of

Guaria (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of
the original bill and which the postponement of the contested law respects.
This law has no precedent in its favor. When similar laws in other countries had been
promulgated, the judiciary immediately declared them without force or effect. It is not within our
power to offer a precedent to uphold the disputed law.
To be exact, we ought to state here that we have examined carefully the case that has been
cited to us as a favorable precedent of the law that of Cooper (22 NY, 81), where the Court of
Appeals of New York revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the provisions of a statute
concerning the school of law of Columbia College promulgated on April 7, 1860, which was
declared by the Court of Appeals to be consistent with the Constitution of the state of New York.
It appears that the Constitution of New York at that time provided:
They (i.e., the judges) shall not hold any other office of public trust. All votes for either of
them for any elective office except that of the Court of Appeals, given by the Legislature
or the people, shall be void. They shall not exercise any power of appointment to public
office. Any male citizen of the age of twenty-one years, of good moral character, and
who possesses the requisite qualifications of learning and ability, shall be entitled to
admission to practice in all the courts of this State. (p. 93).
According to the Court of Appeals, the object of the constitutional precept is as follows:
Attorneys, solicitors, etc., were public officers; the power of appointing them had
previously rested with the judges, and this was the principal appointing power which they
possessed. The convention was evidently dissatisfied with the manner in which this
power had been exercised, and with the restrictions which the judges had imposed upon
admission to practice before them. The prohibitory clause in the section quoted was
aimed directly at this power, and the insertion of the provision" expecting the admission
of attorneys, in this particular section of the Constitution, evidently arose from its
connection with the object of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any portion of their power over
this subject, unless the Supreme Court is right in the inference it draws from the use of
the word `admission' in the action referred to. It is urged that the admission spoken of
must be by the court; that to admit means to grant leave, and that the power of granting
necessarily implies the power of refusing, and of course the right of determining whether
the applicant possesses the requisite qualifications to entitle him to admission.
These positions may all be conceded, without affecting the validity of the act. (p. 93.)
Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that
the possession of a diploma of the school of law of Columbia College conferring the degree of
Bachelor of Laws was evidence of the legal qualifications that the constitution required of
applicants for admission to the Bar. The decision does not however quote the text of the law,
which we cannot find in any public or accessible private library in the country.
In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the
Court of Appeals said of the object of the law:
The motive for passing the act in question is apparent. Columbia College being an
institution of established reputation, and having a law department under the charge of
able professors, the students in which department were not only subjected to a formal
examination by the law committee of the institution, but to a certain definite period of
study before being entitled to a diploma of being graduates, the Legislature evidently,
and no doubt justly, considered this examination, together with the preliminary study
required by the act, as fully equivalent as a test of legal requirements, to the ordinary
examination by the court; and as rendering the latter examination, to which no definite
period of preliminary study was essential, unnecessary and burdensome.
The act was obviously passed with reference to the learning and ability of the applicant,
and for the mere purpose of substituting the examination by the law committee of the
college for that of the court. It could have had no other object, and hence no greater
scope should be given to its provisions. We cannot suppose that the Legislature
designed entirely to dispense with the plain and explicit requirements of the Constitution;

and the act contains nothing whatever to indicate an intention that the authorities of the
college should inquire as to the age, citizenship, etc., of the students before granting a
diploma. The only rational interpretation of which the act admits is, that it was intended
to make the college diploma competent evidence as to the legal attainments of the
applicant, and nothing else. To this extent alone it operates as a modification of preexisting statutes, and it is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of the law on the subject.
(p.89)
xxx

xxx

xxx

The Legislature has not taken from the court its jurisdiction over the question of
admission, that has simply prescribed what shall be competent evidence in certain cases
upon that question. (p.93)
From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be
clearly seen. Please note only the following distinctions:
(1) The law of New York does not require that any candidate of Columbia College who failed in
the bar examinations be admitted to the practice of law.
(2) The law of New York according to the very decision of Cooper, has not taken from the court
its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the
admission of any lawyer.
(3) The Constitution of New York at that time and that of the Philippines are entirely different on
the matter of admission of the practice of law.
In the judicial system from which ours has been evolved, the admission, suspension,
disbarment and reinstatement of attorneys at law in the practice of the profession and their
supervision have been disputably a judicial function and responsibility. Because of this attribute,
its continuous and zealous possession and exercise by the judicial power have been
demonstrated during more than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our Constitution to repeal, alter
supplement the rules promulgated by this Court regarding the admission to the practice of law,
to our judgment and proposition that the admission, suspension, disbarment and reinstatement
of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable.
The function requires (1) previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as to whether these facts are
governed by the rules and principles; in effect, a judicial function of the highest degree. And it
becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the
petitions of these same individuals are attempted to be revoked or modified.
We have said that in the judicial system from which ours has been derived, the act of admitting,
suspending, disbarring and reinstating attorneys at law in the practice of the profession is
concededly judicial. A comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a
legislative enactment providing that Cannon be permitted to practice before the courts was
discussed. From the text of this decision we quote the following paragraphs:
This statute presents an assertion of legislative power without parallel in the history of
the English speaking people so far as we have been able to ascertain. There has been
much uncertainty as to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly committed to the courts, and
the act of admission has always been regarded as a judicial function. This act purports
to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an
assertion of legislative power. (p. 444)
Under the Constitution all legislative power is vested in a Senate and Assembly. (Section
1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are
legislative in character, the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)
But when the Legislature has prescribed those qualifications which in its judgment will
serve the purpose of legitimate legislative solicitude, is the power of the court to impose
other and further exactions and qualifications foreclosed or exhausted? (p. 444)

Under our Constitution the judicial and legislative departments are distinct, independent,
and coordinate branches of the government. Neither branch enjoys all the powers of
sovereignty which properly belongs to its department. Neither department should so act
as to embarrass the other in the discharge of its respective functions. That was the
scheme and thought of the people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4
Wis., 567. (p. 445)
The judicial department of government is responsible for the plane upon which the
administration of justice is maintained. Its responsibility in this respect is exclusive. By
committing a portion of the powers of sovereignty to the judicial department of our state
government, under 42a scheme which it was supposed rendered it immune from
embarrassment or interference by any other department of government, the courts
cannot escape responsibility fir the manner in which the powers of sovereignty thus
committed to the judicial department are exercised. (p. 445)
The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an
attache of the courts. The quality of justice dispense by the courts depends in no small
degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and
reproach to the administration of justice and bring the courts themselves into disrepute.
(p.445)
Through all time courts have exercised a direct and severe supervision over their bars,
at least in the English speaking countries. (p. 445)
After explaining the history of the case, the Court ends thus:
Our conclusion may be epitomized as follows: For more than six centuries prior to the
adoption of our Constitution, the courts of England, concededly subordinate to
Parliament since the Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in Matter of the Sergeant's
at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the
courts and judicial power be regarded as an entity, the power to determine who should
be admitted to practice law is a constituent element of that entity. It may be difficult to
isolate that element and say with assurance that it is either a part of the inherent power
of the court, or an essential element of the judicial power exercised by the court, but that
it is a power belonging to the judicial entity and made of not only a sovereign institution,
but made of it a separate independent, and coordinate branch of the government. They
took this institution along with the power traditionally exercise to determine who should
constitute its attorney at law. There is no express provision in the Constitution which
indicates an intent that this traditional power of the judicial department should in any
manner be subject to legislative control. Perhaps the dominant thought of the framers of
our constitution was to make the three great departments of government separate and
independent of one another. The idea that the Legislature might embarrass the judicial
department by prescribing inadequate qualifications for attorneys at law is inconsistent
with the dominant purpose of making the judicial independent of the legislative
department, and such a purpose should not be inferred in the absence of express
constitutional provisions. While the legislature may legislate with respect to the
qualifications of attorneys, but is incidental merely to its general and unquestioned power
to protect the public interest. When it does legislate a fixing a standard of qualifications
required of attorneys at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and limit the class from which
the court must make its selection. Such legislative qualifications do not constitute the
ultimate qualifications beyond which the court cannot go in fixing additional qualifications
deemed necessary by the course of the proper administration of judicial functions. There
is no legislative power to compel courts to admit to their bars persons deemed by them
unfit to exercise the prerogatives of an attorney at law. (p. 450)
Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite
likely true that the legislature may exercise the power of appointment when it is in
pursuance of a legislative functions. However, the authorities are well-nigh unanimous
that the power to admit attorneys to the practice of law is a judicial function. In all of the
states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our

investigation reveals, attorneys receive their formal license to practice law by their
admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex parte
Secombre, 19 How. 9,15 L. Ed. 565; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366;
Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep.
1030, 20 Ann. Cas. 413.
The power of admitting an attorney to practice having been perpetually exercised by the
courts, it having been so generally held that the act of the court in admitting an attorney
to practice is the judgment of the court, and an attempt as this on the part of the
Legislature to confer such right upon any one being most exceedingly uncommon, it
seems clear that the licensing of an attorney is and always has been a purely judicial
function, no matter where the power to determine the qualifications may reside. (p. 451)
In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of
the Senate of that State, 180 NE 725, said:
It is indispensible to the administration of justice and to interpretation of the laws that
there be members of the bar of sufficient ability, adequate learning and sound moral
character. This arises from the need of enlightened assistance to the honest, and
restraining authority over the knavish, litigant. It is highly important, also that the public
be protected from incompetent and vicious practitioners, whose opportunity for doing
mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y.
456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege
burden with conditions." One is admitted to the bar "for something more than private
gain." He becomes an "officer of the court", and ,like the court itself, an instrument or
agency to advance the end of justice. His cooperation with the court is due "whenever
justice would be imperiled if cooperation was withheld." Without such attorneys at law
the judicial department of government would be hampered in the performance of its
duties. That has been the history of attorneys under the common law, both in this
country and England. Admission to practice as an attorney at law is almost without
exception conceded to be a judicial function. Petition to that end is filed in courts, as are
other proceedings invoking judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its records. The
establishment by the Constitution of the judicial department conferred authority
necessary to the exercise of its powers as a coordinate department of government. It is
an inherent power of such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for assisting in its work,
and to protect itself in this respect from the unfit, those lacking in sufficient learning, and
those not possessing good moral character. Chief Justice Taney stated succinctly and
with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled,
by the rules and practice of common-law courts, that it rests exclusively with the court to
determine who is qualified to become one of its officers, as an attorney and counselor,
and for what cause he ought to be removed." (p.727)
In the case of Day and others who collectively filed a petition to secure license to practice the
legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part:
In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test
oath for attorneys to be unconstitutional, explained the nature of the attorney's office as
follows: "They are officers of the court, admitted as such by its order, upon evidence of
their possessing sufficient legal learning and fair private character. It has always been
the general practice in this country to obtain this evidence by an examination of the
parties. In this court the fact of the admission of such officers in the highest court of the
states to which they, respectively, belong for, three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient evidence that their private and
professional character is fair. The order of admission is the judgment of the court that the
parties possess the requisite qualifications as attorneys and counselors, and are entitled
to appear as such and conduct causes therein. From its entry the parties become
officers of the court, and are responsible to it for professional misconduct. They hold
their office during good behavior, and can only be deprived of it for misconduct

ascertained and declared by the judgment of the court after opportunity to be heard has
been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a
mere ministerial power. It is the exercise of judicial power, and has been so held in
numerous cases. It was so held by the court of appeals of New York in the matter of the
application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and
Counselors", said that court, "are not only officers of the court, but officers whose duties
relate almost exclusively to proceedings of a judicial nature; and hence their
appointment may, with propriety, be entrusted to the court, and the latter, in performing
his duty, may very justly considered as engaged in the exercise of their appropriate
judicial functions." (pp. 650-651).
We quote from other cases, the following pertinent portions:
Admission to practice of law is almost without exception conceded everywhere to be the
exercise of a judicial function, and this opinion need not be burdened with citations in
this point. Admission to practice have also been held to be the exercise of one of the
inherent powers of the court. Re Bruen, 102 Wash. 472, 172 Pac. 906.
Admission to the practice of law is the exercise of a judicial function, and is an inherent
power of the court. A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512.
On this matter there is certainly a clear distinction between the functions of the judicial and
legislative departments of the government.
The distinction between the functions of the legislative and the judicial departments is
that it is the province of the legislature to establish rules that shall regulate and govern in
matters of transactions occurring subsequent to the legislative action, while the judiciary
determines rights and obligations with reference to transactions that are past or
conditions that exist at the time of the exercise of judicial power, and the distinction is a
vital one and not subject to alteration or change either by legislative action or by judicial
decree.
The judiciary cannot consent that its province shall be invaded by either of the other
departments of the government. 16 C.J.S., Constitutional Law, p. 229.
If the legislature cannot thus indirectly control the action of the courts by requiring of
them construction of the law according to its own views, it is very plain it cannot do so
directly, by settling aside their judgments, compelling them to grant new trials, ordering
the discharge of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry. Cooley's Constitutional Limitations, 192.
In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a
general average of 70 per cent without falling below 50 per cent in any subject, be admitted in
mass to the practice of law, the disputed law is not a legislation; it is a judgment a judgment
revoking those promulgated by this Court during the aforecited year affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive
department, that may be so. Any attempt on the part of any of these departments would be a
clear usurpation of its functions, as is the case with the law in question.
That the Constitution has conferred on Congress the power to repeal, alter or supplement the
rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid
argument. Section 13, article VIII of the Constitution provides:
Section 13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice, and procedure in all courts, and the admission to the practice of law.
Said rules shall be uniform for all courts of the same grade and shall not diminish,
increase or modify substantive rights. The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the same. The Congress shall have
the power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines. Constitution of
the Philippines, Art. VIII, sec. 13.

It will be noted that the Constitution has not conferred on Congress and this Tribunal equal
responsibilities concerning the admission to the practice of law. the primary power and
responsibility which the Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it would have nothing over
which to exercise the power granted to it. Congress may repeal, alter and supplement the rules
promulgated by this Court, but the authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their supervision remain vested in the
Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit
that Congress substitute or take the place of this Tribunal in the exercise of its primary power on
the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar
or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law.
Its power is limited to repeal, modify or supplement the existing rules on the matter, if according
to its judgment the need for a better service of the legal profession requires it. But this power
does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys
at law and supervise the practice of the legal profession.
Being coordinate and independent branches, the power to promulgate and enforce rules for the
admission to the practice of law and the concurrent power to repeal, alter and supplement them
may and should be exercised with the respect that each owes to the other, giving careful
consideration to the responsibility which the nature of each department requires. These powers
have existed together for centuries without diminution on each part; the harmonious delimitation
being found in that the legislature may and should examine if the existing rules on the admission
to the Bar respond to the demands which public interest requires of a Bar endowed with high
virtues, culture, training and responsibility. The legislature may, by means of appeal,
amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power,
which has the inherent responsibility for a good and efficient administration of justice and the
supervision of the practice of the legal profession, should consider these reforms as the
minimum standards for the elevation of the profession, and see to it that with these reforms the
lofty objective that is desired in the exercise of its traditional duty of admitting, suspending,
disbarring and reinstating attorneys at law is realized. They are powers which, exercise within
their proper constitutional limits, are not repugnant, but rather complementary to each other in
attaining the establishment of a Bar that would respond to the increasing and exacting
necessities of the administration of justice.
The case of Guaria (1913) 24 Phil., 37, illustrates our criterion. Guaria took examination and
failed by a few points to obtain the general average. A recently enacted law provided that one
who had been appointed to the position of Fiscal may be admitted to the practice of law without
a previous examination. The Government appointed Guaria and he discharged the duties of
Fiscal in a remote province. This tribunal refused to give his license without previous
examinations. The court said:
Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks
admission to the bar, without taking the prescribed examination, on the ground that he
holds the office of provincial fiscal for the Province of Batanes.
Section 2 of Act No. 1597, enacted February 28, 1907, is as follows:
Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety,
entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings
in the Philippine Islands," is hereby amended to read as follows:
1. Those who have been duly licensed under the laws and orders of the Islands under
the sovereignty of Spain or of the United States and are in good and regular standing as
members of the bar of the Philippine Islands at the time of the adoption of this code;
Provided, That any person who, prior to the passage of this act, or at any time thereafter,
shall have held, under the authority of the United States, the position of justice of the
Supreme Court, judge of the Court of First Instance, or judge or associate judge of the
Court of Land Registration, of the Philippine Islands, or the position of Attorney General,
Solicitor General, Assistant Attorney General, assistant attorney in the office of the
Attorney General, prosecuting attorney for the City of Manila, city attorney of Manila,
assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province, or
assistant attorney for the Moro Province, may be licensed to practice law in the courts of

the Philippine Islands without an examination, upon motion before the Supreme Court
and establishing such fact to the satisfaction of said court.
The records of this court disclose that on a former occasion this appellant took, and
failed to pass the prescribed examination. The report of the examining board, dated
March 23, 1907, shows that he received an average of only 71 per cent in the various
branches of legal learning upon which he was examined, thus falling four points short of
the required percentage of 75. We would be delinquent in the performance of our duty to
the public and to the bar, if, in the face of this affirmative indication of the deficiency of
the applicant in the required qualifications of learning in the law at the time when he
presented his former application for admission to the bar, we should grant him license to
practice law in the courts of these Islands, without first satisfying ourselves that despite
his failure to pass the examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."
But it is contented that under the provisions of the above-cited statute the applicant is
entitled as of right to be admitted to the bar without taking the prescribed examination
"upon motion before the Supreme Court" accompanied by satisfactory proof that he has
held and now holds the office of provincial fiscal of the Province of Batanes. It is urged
that having in mind the object which the legislator apparently sought to attain in enacting
the above-cited amendment to the earlier statute, and in view of the context generally
and especially of the fact that the amendment was inserted as a proviso in that section
of the original Act which specifically provides for the admission of certain candidates
without examination. It is contented that this mandatory construction is imperatively
required in order to give effect to the apparent intention of the legislator, and to the
candidate's claim de jure to have the power exercised.
And after copying article 9 of Act of July 1, 1902 of the Congress of the United States, articles 2,
16 and 17 of Act No. 136, and articles 13 to 16 of Act 190, the Court continued:
Manifestly, the jurisdiction thus conferred upon this court by the commission and
confirmed to it by the Act of Congress would be limited and restricted, and in a case
such as that under consideration wholly destroyed, by giving the word "may," as used in
the above citation from Act of Congress of July 1, 1902, or of any Act of Congress
prescribing, defining or limiting the power conferred upon the commission is to that
extent invalid and void, as transcending its rightful limits and authority.
Speaking on the application of the law to those who were appointed to the positions
enumerated, and with particular emphasis in the case of Guaria, the Court held:
In the various cases wherein applications for the admission to the bar under the
provisions of this statute have been considered heretofore, we have accepted the fact
that such appointments had been made as satisfactory evidence of the qualifications of
the applicant. But in all of those cases we had reason to believe that the applicants had
been practicing attorneys prior to the date of their appointment.
In the case under consideration, however, it affirmatively appears that the applicant was
not and never had been practicing attorney in this or any other jurisdiction prior to the
date of his appointment as provincial fiscal, and it further affirmatively appears that he
was deficient in the required qualifications at the time when he last applied for admission
to the bar.
In the light of this affirmative proof of his defieciency on that occasion, we do not think
that his appointment to the office of provincial fiscal is in itself satisfactory proof if his
possession of the necessary qualifications of learning and ability. We conclude therefore
that this application for license to practice in the courts of the Philippines, should be
denied.
In view, however, of the fact that when he took the examination he fell only four points
short of the necessary grade to entitle him to a license to practice; and in view also of
the fact that since that time he has held the responsible office of the governor of the
Province of Sorsogon and presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief Executive, with the consent and
approval of the Philippine Commission, sought to retain him in the Government service
by appointing him to the office of provincial fiscal, we think we would be justified under

the above-cited provisions of Act No. 1597 in waiving in his case the ordinary
examination prescribed by general rule, provided he offers satisfactory evidence of his
proficiency in a special examination which will be given him by a committee of the court
upon his application therefor, without prejudice to his right, if he desires so to do, to
present himself at any of the ordinary examinations prescribed by general rule. (In re
Guaria, pp. 48-49.)
It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum conditions for the license.
The law in question, like those in the case of Day and Cannon, has been found also to suffer
from the fatal defect of being a class legislation, and that if it has intended to make a
classification, it is arbitrary and unreasonable.
In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until
December 31 of that year, to grant license for the practice of law to those students who began
studying before November 4, 1897, and had studied for two years and presented a diploma
issued by a school of law, or to those who had studied in a law office and would pass an
examination, or to those who had studied for three years if they commenced their studies after
the aforementioned date. The Supreme Court declared that this law was unconstitutional being,
among others, a class legislation. The Court said:
This is an application to this court for admission to the bar of this state by virtue of
diplomas from law schools issued to the applicants. The act of the general assembly
passed in 1899, under which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as
it appears in the enacting clause, consists in the addition to the section of the following:
"And every application for a license who shall comply with the rules of the supreme court
in regard to admission to the bar in force at the time such applicant commend the study
of law, either in a law or office or a law school or college, shall be granted a license
under this act notwithstanding any subsequent changes in said rules". In re Day et al,
54 N.Y., p. 646.
. . . After said provision there is a double proviso, one branch of which is that up to
December 31, 1899, this court shall grant a license of admittance to the bar to the holder
of every diploma regularly issued by any law school regularly organized under the laws
of this state, whose regular course of law studies is two years, and requiring an
attendance by the student of at least 36 weeks in each of such years, and showing that
the student began the study of law prior to November 4, 1897, and accompanied with
the usual proofs of good moral character. The other branch of the proviso is that any
student who has studied law for two years in a law office, or part of such time in a law
office, "and part in the aforesaid law school," and whose course of study began prior to
November 4, 1897, shall be admitted upon a satisfactory examination by the examining
board in the branches now required by the rules of this court. If the right to admission
exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights
and privileges upon the persons named therein, and establishes rules of legislative
creation for their admission to the bar. (p. 647.)
Considering the proviso, however, as an enactment, it is clearly a special legislation,
prohibited by the constitution, and invalid as such. If the legislature had any right to
admit attorneys to practice in the courts and take part in the administration of justice, and
could prescribe the character of evidence which should be received by the court as
conclusive of the requisite learning and ability of persons to practice law, it could only be
done by a general law, persons or classes of persons. Const. art 4, section 2. The right
to practice law is a privilege, and a license for that purpose makes the holder an officer
of the court, and confers upon him the right to appear for litigants, to argue causes, and
to collect fees therefor, and creates certain exemptions, such as from jury services and
arrest on civil process while attending court. The law conferring such privileges must be
general in its operation. No doubt the legislature, in framing an enactment for that
purpose, may classify persons so long as the law establishing classes in general, and
has some reasonable relation to the end sought. There must be some difference which

furnishes a reasonable basis for different one, having no just relation to the subject of
the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People,
155 Ill. 98, 40 N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.
The length of time a physician has practiced, and the skill acquired by experience, may
furnish a basis for classification (Williams vs. People 121 Ill. 48, II N.E. 881); but the
place where such physician has resided and practiced his profession cannot furnish
such basis, and is an arbitrary discrimination, making an enactment based upon it void
(State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature undertakes to say
what shall serve as a test of fitness for the profession of the law, and plainly, any
classification must have some reference to learning, character, or ability to engage in
such practice. The proviso is limited, first, to a class of persons who began the study of
law prior to November 4, 1897. This class is subdivided into two classes First, those
presenting diplomas issued by any law school of this state before December 31, 1899;
and, second, those who studied law for the period of two years in a law office, or part of
the time in a law school and part in a law office, who are to be admitted upon
examination in the subjects specified in the present rules of this court, and as to this
latter subdivision there seems to be no limit of time for making application for admission.
As to both classes, the conditions of the rules are dispensed with, and as between the
two different conditions and limits of time are fixed. No course of study is prescribed for
the law school, but a diploma granted upon the completion of any sort of course its
managers may prescribe is made all-sufficient. Can there be anything with relation to the
qualifications or fitness of persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification. Plainly not. Those who
began the study of law November 4th could qualify themselves to practice in two years
as well as those who began on the 3rd. The classes named in the proviso need spend
only two years in study, while those who commenced the next day must spend three
years, although they would complete two years before the time limit. The one who
commenced on the 3rd. If possessed of a diploma, is to be admitted without examination
before December 31, 1899, and without any prescribed course of study, while as to the
other the prescribed course must be pursued, and the diploma is utterly useless. Such
classification cannot rest upon any natural reason, or bear any just relation to the subject
sought, and none is suggested. The proviso is for the sole purpose of bestowing
privileges upon certain defined persons. (pp. 647-648.)
In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature
attempted by law to reinstate Cannon to the practice of law, the court also held with regards to
its aspect of being a class legislation:
But the statute is invalid for another reason. If it be granted that the legislature has
power to prescribe ultimately and definitely the qualifications upon which courts must
admit and license those applying as attorneys at law, that power can not be exercised in
the manner here attempted. That power must be exercised through general laws which
will apply to all alike and accord equal opportunity to all. Speaking of the right of the
Legislature to exact qualifications of those desiring to pursue chosen callings, Mr.
Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233,
32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to
follow any lawful calling, business or profession he may choose, subject only to such
restrictions as are imposed upon all persons of like age, sex, and condition." This right
may in many respects be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like conditions. All may be
pursued as sources of livelihood, some requiring years of study and great learning for
their successful prosecution. The interest, or, as it is sometimes termed, the "estate"
acquired in them that is, the right to continue their prosecution is often of great
value to the possessors and cannot be arbitrarily taken from them, any more than their
real or personal property can be thus taken. It is fundamental under our system of
government that all similarly situated and possessing equal qualifications shall enjoy
equal opportunities. Even statutes regulating the practice of medicine, requiring
medications to establish the possession on the part of the application of his proper
qualifications before he may be licensed to practice, have been challenged, and courts
have seriously considered whether the exemption from such examinations of those

practicing in the state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general principle. State vs. Thomas
Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101
Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.
This law singles out Mr. Cannon and assumes to confer upon him the right to practice
law and to constitute him an officer of this Court as a mere matter of legislative grace or
favor. It is not material that he had once established his right to practice law and that one
time he possessed the requisite learning and other qualifications to entitle him to that
right. That fact in no matter affect the power of the Legislature to select from the great
body of the public an individual upon whom it would confer its favors.
A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court
to admit to the practice of law without examination, all who had served in the military or
naval forces of the United States during the World War and received a honorable
discharge therefrom and who (were disabled therein or thereby within the purview of the
Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924
and whose disability is rated at least ten per cent thereunder at the time of the passage
of this Act." This Act was held |unconstitutional on the ground that it clearly violated the
quality clauses of the constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.
A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151153 as follows:
The general rule is well settled by unanimity of the authorities that a classification to be
valid must rest upon material differences between the person included in it and those
excluded and, furthermore, must be based upon substantial distinctions. As the rule has
sometimes avoided the constitutional prohibition, must be founded upon pertinent and
real differences, as distinguished from irrelevant and artificial ones. Therefore, any law
that is made applicable to one class of citizens only must be based on some substantial
difference between the situation of that class and other individuals to which it does not
apply and must rest on some reason on which it can be defended. In other words, there
must be such a difference between the situation and circumstances of all the members
of the class and the situation and circumstances of all other members of the state in
relation to the subjects of the discriminatory legislation as presents a just and natural
cause for the difference made in their liabilities and burdens and in their rights and
privileges. A law is not general because it operates on all within a clause unless there is
a substantial reason why it is made to operate on that class only, and not generally on
all. (12 Am. Jur. pp. 151-153.)
Pursuant to the law in question, those who, without a grade below 50 per cent in any subject,
have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5
per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5
per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as
members of the Bar, notwithstanding that the rules require a minimum general average of 75
per cent, which has been invariably followed since 1950. Is there any motive of the nature
indicated by the abovementioned authorities, for this classification ? If there is none, and none
has been given, then the classification is fatally defective.
It was indicated that those who failed in 1944, 1941 or the years before, with the general
average indicated, were not included because the Tribunal has no record of the unsuccessful
candidates of those years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the
exclusion of those who failed before said years under the same conditions justified. The fact that
this Court has no record of examinations prior to 1946 does not signify that no one concerned
may prove by some other means his right to an equal consideration.
To defend the disputed law from being declared unconstitutional on account of its retroactivity, it
is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972
intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted
admission to the bar of candidates who did not obtain the general average of 75 per cent: in
1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more;
in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per

cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the
Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the
passing averages during those years were all that could be objected to or criticized. Now, it is
desired to undo what had been done cancel the license that was issued to those who did not
obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to
do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented
is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946
to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of
judgment of the Court that is being cured, and to complete the cure of this infirmity, the
effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955,
increasing each year the general average by one per cent, with the order that said candidates
be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the
law attempts to amend and correct are not the rules promulgated, but the will or judgment of the
Court, by means of simply taking its place. This is doing directly what the Tribunal should have
done during those years according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue in force. What was
done was to stop or suspend them. And this power is not included in what the Constitution has
granted to Congress, because it falls within the power to apply the rules. This power
corresponds to the judiciary, to which such duty been confided.
Article 2 of the law in question permits partial passing of examinations, at indefinite intervals.
The grave defect of this system is that it does not take into account that the laws and
jurisprudence are not stationary, and when a candidate finally receives his certificate, it may
happen that the existing laws and jurisprudence are already different, seriously affecting in this
manner his usefulness. The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other disadvantages. In this case,
however, the fatal defect is that the article is not expressed in the title will have temporary effect
only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite
time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls
article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity
affect the entire law.
Laws are unconstitutional on the following grounds: first, because they are not within the
legislative powers of Congress to enact, or Congress has exceeded its powers; second,
because they create or establish arbitrary methods or forms that infringe constitutional
principles; and third, because their purposes or effects violate the Constitution or its basic
principles. As has already been seen, the contested law suffers from these fatal defects.
Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is
unconstitutional and therefore, void, and without any force nor effect for the following reasons,
to wit:
1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations
of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was
exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these
candidates, depriving this Tribunal of the opportunity to determine if they are at present already
prepared to become members of the Bar. It obliges the Tribunal to perform something contrary
to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional
responsibility of the Supreme Court.
2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of
these 810 candidates, without having examined their respective examination papers, and
although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable
reasons, only this Court and no other may revise and alter them. In attempting to do it directly
Republic Act No. 972 violated the Constitution.
3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and
supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they
ought to be, intended to regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum
norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers
to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial
functions and is essential to a worthy administration of justice. It is therefore the primary and

inherent prerogative of the Supreme Court to render the ultimate decision on who may be
admitted and may continue in the practice of law according to existing rules.
4. The reason advanced for the pretended classification of candidates, which the law makes, is
contrary to facts which are of general knowledge and does not justify the admission to the Bar of
law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a
class legislation.
5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the
Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is
void.
6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the
examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in
those years, shall continue in force.
RESOLUTION
Upon mature deliberation by this Court, after hearing and availing of the magnificent and
impassioned discussion of the contested law by our Chief Justice at the opening and close of
the debate among the members of the Court, and after hearing the judicious observations of two
of our beloved colleagues who since the beginning have announced their decision not to take
part in voting, we, the eight members of the Court who subscribed to this decision have voted
and resolved, and have decided for the Court, and under the authority of the same:
1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946
to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without
force and effect.
2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the
examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid
and shall continue to be in force, in conformity with section 10, article VII of the Constitution.
Consequently, (1) all the above-mentioned petitions of the candidates who failed in the
examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the
examinations of 1953 obtained a general average of 71.5 per cent or more, without having a
grade below 50 per cent in any subject, are considered as having passed, whether they have
filed petitions for admission or not. After this decision has become final, they shall be permitted
to take and subscribe the corresponding oath of office as members of the Bar on the date or
dates that the chief Justice may set. So ordered.
Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.
ANNEX I
PETITIONERS UNDER REPUBLIC ACT NO. 972
A resume of pertinent facts concerning the bar examinations of 1946 to 1953 inclusive follows:
August, 19461
Board of Examiners: Hon. Pedro Tuason, Chairman, Prof. Gerardo
Florendo, Atty. Bernardino Guerrero, Atty. Joaquin Ramirez, Atty.
Crispin Oben, Hon. Jose Teodoro, Atty. Federico Agrava, Atty. Jose
Perez Cardenas, and Hon. Bienvenido A. Tan, members.
Number of candidates

206

Number of candidates whose grades were raised


73'S

12
6

72'S

Number of candidates who passed

85

Number of candidates who failed

121

Number of those affected by Republic Act No. 972

18

Percentage of success

(per cent)

41.62

Percentage of failure

(per cent)

58.74

Passing grade

(per cent)

72

November, 1946
Board of Examiners: The same as that of August, 1946, except Hon.
Jose Teodoro who was substituted by Atty. Honesto K. Bausan.
Number of candidates

481

Number of candidates whose grades were raised

19

(72 per cent and above 73 per cent --Minutes of March 31, 1947)
Number of candidates who passed

249

Number of candidates who failed

228

Number of those affected by Republic Act No. 972

43

Percentage of success

(per cent)

52.20

Percentage of failure

(per cent)

47.80

Passing grade
(By resolution of the Court).

(per cent)

72

October, 1947
Board of Examiners: Hon. Cesar Bengzon, Chairman, Hon. Guillermo B.
Guevara, Atty. Antonio Araneta, Atty. Simon Cruz, Hon. Sixto de la
Costa, Atty. Celso B. Jamora, Hon. Emilio Pea, Atty. Federico Agrava,
Atty. Carlos B. Hilado, Members.
Number of candidates

749

Number of candidates whose grades were raised


70.55 per cent with 2 subject below 50 per

43
1

cent
69 per cent

40

68 per cent

Number of candidates who passed

409

Number of candidates who failed

340

Number of those affected by Republic Act No. 972

972

Percentage of success

(per cent)

54.59

Percentage of failure

(per cent)

45.41

Passing grade

(per cent)

69

(by resolution of the Court).


Note.--In passing the 2 whose grades were 68.95 per cent and
68.1 per cent respectively, the Court found out that they were
not benefited at all by the bonus of 12 points given by the
Examiner in Civil Law.
August, 1948
Board of Examiners: Hon. Marceliano R. Montemayor, Chairman Hon.
Luis P. Torres, Hon. Felipe Natividad, Hon. Jose Teodoro, Sr., Atty.
Federico Agrava, Atty. Macario Peralta, Sr., Hon. Jesus G. Barrera,
Hon. Rafael Amparo, Atty. Alfonso Ponce Enrile, Members.
Number of candidates

899

Number of candidates whose grades were raised

64

71's

29

70's

35

Number of candidates who passed

490

Number of candidates who failed

409

Number of those affected by Republic Act No. 972

11

Percentage of success

(per cent)

62.40

Percentage of failure

(per cent)

37.60

Passing grade

(per cent)

70

(by resolution of the Court).


August, 1949
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Fernando
Jugo, Hon. Enrique Filamor, Atty. Salvador Araneta, Hon. Pastor M.
Endencia, Atty. Federico Agrava, Hon. Mariano H. de Joya, Hon. Felipe
Natividad, Atty. Emeterio Barcelon, Members.

Number of candidates

1,218

Number of candidates whose grades were raised


(74's)

55

Number of candidates who passed

686

Number of candidates who failed

532

Number of those affected by Republic Act No. 972

164

Percentage of success

(per cent)

56.28

Percentage of failure

(per cent)

43.72

Passing grade

(per cent)

74

(by resolution of the Court).


August, 1950
Board of Examiners: Hon. Fernando Jugo,2 Chairman, Hon. Guillermo
B. Guevara, Atty. Enrique Altavas, Atty. Marcial P. Lichauco, Atty.
Carlos B. Hilado, Atty. J. Antonio Araneta, Hon. Enrique V. Filamor,
Hon. Francisco A. Delgado, Hon. Antonio Horrilleno, Members.
Number of candidates

1,316

Number of candidates whose grades were raised

38

(The grade of 74 was raised to 75 per cent by recommendation


and authority
of the examiner in Remedial Law, Atty. Francisco Delgado).
Number of candidates who passed

432

Number of candidates who failed

894

Number of those affected by Republic Act No. 972

26

Percentage of success

(per cent)

32.14

Percentage of failure

(per cent)

67.86

Passing grade

(per cent)

75

August, 1951
Board of Examiners: Hon. Guillermo F. Pablo, Chairman, Hon. Pastor
M. Endencia, Atty. Enrique Altavas, Hon. Manuel Lim, Hon. Felipe
Natividad, Hon. Vicente Albert, Atty. Arturo Alafriz, Hon. Enrique V.
Filamor, Hon. Alfonso Felix, Members.
Number of candidates

2,068

Number of candidates whose grades were raised


(74's)

112

Number of candidates who passed

1,189

Number of candidates who failed

879

Number of those affected by Republic Act No. 972

196

Percentage of success

(per cent)

57.49

Percentage of failure

(per cent)

42.51

Passing grade

(per cent)

75

August, 1952
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Pastor M.
Endencia, Hon. Enrique V. Filamor, Atty. Francisco Ortigas, Hon. Emilio
Pea, Atty. Emilio P. Virata, Hon. Alfonso Felix, Hon. Felipe Natividad,
Atty. Macario Peralta, Sr., Members.
Number of candidates

2,738

Number of candidates whose grades were raised


(74's)

163

Number of candidates who passed

1,705

Number of candidates who failed

1,033

Number of those affected by Republic Act No. 972

426

Percentage of success

(per cent)

62.27

Percentage of failure

(per cent)

37.73

Passing grade

(per cent)

75

August, 1953
Board of Examiners: Hon. Fernando Jugo, Chairman, Hon. Pastor M.
Endencia, Atty. Enrique Altavas, Atty. Francisco Ortigas, Jr., Hon.
Emilio Pea, Atty. Jose S. de la Cruz, Hon. Alfonso Felix, Hon. Felipe
Natividad, Hon. Mariano L. de la Rosa, Members.
Number of candidates
Number of candidates whose grades were raised
(74's)
Number of candidates who passed
Number of candidates who failed

2,555
100

1,570
986

Number of those affected by Republic Act No. 972

284

Percentage of success

(per cent)

61.04

Percentage of failure

(per cent)

38.96

Passing grade

(per cent)

75

A list of petitioners for admission to the Bar under Republic Act No. 972, grouped by the years in
which they took the bar examinations, with annotations as to who had presented motions for
reconsideration which were denied (MRD), and who filed mere motions for reconsideration
without invoking said law, which are still pending, follows:
PETITIONER UNDER THE BAR FLUNKERS' LAW
Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.
MRD- 1. Agunod, Filemon L.

66

71

61

76 80

83

73

75

71.4

MRD- 2. Cunanan, Albino

76

72

74

75 70

70

65

72

71.45

MRD- 3. Mejia, Flaviano V.

64

64

65

68 83

74

68

80

69.85

MRD- 4. Orlina, Soledad R.

71

68

66

75 63

75

70

88

69.9

MRD- 5. Vivero, Antonio Lu.

75

73

73

65 63

66

65

80

69.95

MRD- 6. Gatchalian, Salud

72

66

71

75 78

68

65

50

69.65

69

79

75

75 71

89

55

75

70.8

76

80

62

86 81

72

60

65

70.5

63

85

70

77 80

81

65

80

71.8

10. Alacar, Pascual C.

61

63

83

79 71

85

65

80

72.05

11. Amog, Pedro M.

75

66

76

78 81

74

55

85

72.2

12. Apolinario, Miguel S.

75

84

78

78 70

70

60

75

71.95

13. Aquino, Maximo G.

82

77

71

77 76

77

60

75

73.15

14. Asinas, Candido D.

75

83

69

80 81

83

55

85

72.65

15. Baldivino, Jose B.

75

65

72

82 82

69

60

80

71.95

16. Balintona, Bernardo

75

80

64

78 74

67

65

70

70

17. Banawa, Angel L.

78

70

70

75 81

83

60

60

72.3

1948

1949
7. Abaya, Jesus A.
MRD- 8. Advincula, David D.
9. Agraviador, Alfredo L.

18. Bandala, Anacleto A.

66

80

66

71 93

72

55

70

69.6

19. Bandon, Alawadin L.

74

79

69

77 91

73

60

80

73.35

20. Baquero, Benjamin

76

79

64

77 85

72

65

75

72.5

21. Blanco, Jose

75

75

70

75 77

76

60

90

72.5

22. Buenaluz, Victoriano T. 75

71

72

78 67

82

60

75

70.85

23. Canda, Benjamin S.

75

72

75

82 76

77

65

75

73.55

24. Canon, Guillermo

77

86

67

88 75

69

70

85

73.9

25. Carlos, Estela S.

75

81

81

79 72

73

65

70

73.8

26. Cerezo, Gregorio O.

69

76

76

79 71

80

55

80

70.4

27. Clarin, Manuel L.

75

82

76

81 73

69

70

75

73.95

28. Claudo, Conrado O.

76

62

78

77 73

72

60

70

71.4

29. Condevillamar, Antonio 68


V.

65

74

80 85

75

60

75

71.65

MRD- Cornejo, Crisanto R.


30.

72

75

69

82 83

79

65

80

73.4

31. Corona, Olvido D.

68

76

73

81 81

72

60

75

71.15

32. Dizon, Marcial C.

76

86

69

83 75

74

65

80

73.1

33. Enriquez, Agustin P.

75

77

70

81 81

77

65

80

73.75

34. Espiritu, Irineo E.

80

88

69

75 76

77

65

75

73.8

35. Fernandez, Macario J. 63

82

76

75 81

84

65

75

72.95

36. Gallardo, Amando C.

78

79

67

77 76

75

60

65

70.95

37. Garcia, Freidrich M.

76

80

66

75 72

70

60

75

69.7

38. Garcia, Julian L.

64

77

68

82 89

77

65

75

72.15

39. Garcia, Leon Mo.

77

86

71

80 60

82

65

75

71.85

40. Garcia, Pedro V.

76

82

73

81 74

83

60

85

73.6

41. Garcia, Santiago C.

62

91

79

75 72

75

65

80

71.8

42. Genoves, Pedro

75

83

70

78 87

76

55

80

72.7

43. Gonzales, Amado P.

75

71

71

75 86

75

60

75

72.65

44. Guia, Odon R. de

77

76

66

81 74

76

60

75

70.9

45. Fernandez, Simeon

62

68

71

80 74

90

65

75

70.85

46. Jakosalem, Filoteo

82

83

73

82 61

87

65

70

73.6

47. Jesus, Felipe D. de

75

83

67

79 78

85

60

75

72.45

48. Jocom, Jacobo M.

77

77

74

77 74

64

55

85

70.65

49. Juares, Nicolas

77

84

56

76 73

82

60

85

70

50. Kalalang, Remigio

65

75

74

80 70

70

65

85

70.3

51. Layumas, Vicente L.

67

84

65

75 89

66

60

80

70.3

52. Leyson, Amancio F.

69

83

75

76 81

75

65

75

73.15

53. Libanan, Marcelino

71

83

61

77 80

81

65

85

71.75

54. Lim, Jose E.

77

77

72

76 72

64

65

70

71.15

55. Lim, Jose F.

70

75

62

83 80

71

65

80

70.4

56. Linao, Mariano M.

66

84

76

78 80

75

60

75

71.75

57. Lopez, Angelo P.

67

81

75

72 79

81

55

80

71

58. Lopez, Eliezar M.

77

75

60

75 77

85

60

75

70.7

59. Lopez, Nicanor S.

72

71

70

78 77

84

60

75

71.55

60. Manoleto, Proceso D.

72

70

65

78 81

90

60

80

71.95

61. Mancao, Alfredo P.

67

64

71

83 76

76

65

80

70.95

62. Manera, Mariano A.

75

78

75

75 68

79

60

65

71

63. Mercado, Arsenio N.

67

64

71

83 76

76

65

80

70.95

64. Miranda, Benjamin G.

76

81

67

82 74

77

65

80

72.55

65. Manad, Andres B.

77

75

68

82 69

72

65

75

71.15

66. Orosco, Casimiro P.

72

84

69

81 70

82

65

75

71.9

67. Padua, Manuel C.

76

76

68

80 79

79

50

75

70.1

68. Palang, Basilio S.

71

75

82

71 55

87

55

75

69.6

69. Palma, Cuadrato

62

75

69

93 80

79

55

80

69.5

1948

70. Paganiban, Jose V.

67

83

61

81 91

74

60

75

70.6

71. Pareja, Felipe

66

71

75

81 67

74

60

70

68.75

72. Patalinjug, Eriberto

73

77

78

73 78

71

55

75

71.25

73. Paulin, Jose C.

66

69

71

77 83

82

65

75

72.1

74. Pido, Serafin C.

72

78

63

80 71

85

70

80

72.05

75. Pimentel, Luis P.

77

75

76

81 76

68

55

80

71.6

76. Plantilla, Rodrigo C.

72

78

68

89 79

81

65

85

73.55

77. Regalario, Benito B.

72

80

64

80 75

81

55

80

69.55

78. Robis, Casto P.

62

77

74

73 68

80

70

80

70.9

79. Rodil, Francisco C.

68

69

70

81 76

75

65

75

70.75

80. Rodriguez, Mariano I.

80

75

69

80 72

80

65

80

73.35

81. Romero, Crispulo P.

78

75

66

77 76

83

65

75

72.85

82. Saez, Porfirio D.

75

75

72

81 69

77

60

75

71

83. Saliguma, Crisogono


D.

79

79

74

78 69

65

65

70

71.8

84. Samano, Fortunato A.

75

84

72

77 70

82

60

75

71.9

85. Santos, Faustina C.

71

68

68

76 75

85

55

75

69.5

86. Santos, Josefina R.

68

69

76

71 77

82

65

75

72.3

87. Seludo, Ananias G.

75

80

69

79 77

82

65

75

73.25

88. Semilia, Rafael I.

68

85

55

83 89

79

65

80

71.25

89. Telan, Gaudencio

77

79

70

75 70

75

60

75

70.85

90. Tesorero, Leocadio T.

75

71

63

75 82

62

65

63

69.65

91. Torre, Valentin S. de la 85

81

71

76 69

65

55

70

70.4

92. Torres, Ariston L.

78

71

72

81 61

84

55

85

70.4

93. Veyra, Zosimo C. de

70

75

71

79 65

80

65

80

70.65

94. Viado, Jose

67

70

74

75 75

90

55

80

70.7

95. Villacarlos, Delfin A.

73

87

71

82 69

70

75

85

73.85

96. Villamil, Leonor S.

73

81

76

86 86

73

55

85

73.6

97. Zabala, Amando A.

76

70

67

75 76

76

60

75

70.6

MRD- Cruz, Filomeno de la


98.

70

71

78

81 76

72

64

96

73.4

99. Espaola, Pablo S.

71

78

55

76 85

69

65

93

70.2

100. Foronda, Clarencio J.

60

78

68

79 84

88

62

93

71.9

101. Hechanova, Vicente

59

76

75

75 69

68

75

96

71.3

MRD- Pealosa, Osias R.


102.

80

78

61

76 61

77

66

85

70.2

103. Sarmiento, Floro A.

65

86

63

82 89

72

60

72

70.15

75

85

68

78 69

67

65

69

70.25

61

87

75

70 57

85

83

82

72.8

106. Abasolo, Romulo

77

70

64

65 76

70

76

64

71.7

107. Adeva, Daniel G.

75

59

74

65 69

51

78

67

70.4

108. Aguilar, Vicente Z.

73

63

68

75 70

69

75

75

71.25

109. Amodia, Juan T.

75

76

66

75 76

60

77

76

72.35

MRD- Aosa, Pablo S.


110.

76

78

63

75 74

61

75

79

71.6

111. Antiola, Anastacio R.

68

76

75

70 71

70

81

66

73.05

112. Aquino, S. Rey A.

70

71

71

60 74

62

76

77

71.1

113. Atienza, Manuel G.

71

78

68

80 86

51

82

75

73.85

114. Avancea, Alfonso

71

71

65

75 70

72

78

80

71.8

MRD- Balacuit, Camilo N.


115.

75

73

75

70 72

65

75

76

73.25

68

69

73

70 74

50

80

79

71.2

MRD- Barrientos, Ambrosio


117. D.

76

60

67

55 74

63

77

62

70.25

MRD- Benitez, Tomas P.


118.

67

75

75

60 73

72

75

78

72.2

1950

MRD- Torre, Catalino P.


104.
105. Ungson, Fernando S.
1951

116. Barinaga, Jeremias L.

119. Biason, Sixto F.

73

82

67

65 66

72

77

68

71.25

MRD- Brias, Isagani A.


120.

71

69

74

70 76

52

79

72

71.95

121. Buela, Arcadio P.

72

77

61

70 71

58

79

71

69.75

122. Cabilao, Leonardo S.

73

50

75

75 75

60

71

79

71.25

123. Cabrera, Ireneo M.

75

66

70

65 72

81

70

79

72.4

64

73

73

80 73

57

75

59

69.65

64

73

73

80 73

57

75

59

69.65

127. Calimlim, Pedro B.

66

82

69

60 69

52

83

75

70

128. Camello, Sotero H.

70

77

63

65 75

66

84

64

71.55

129. Campos, Juan A.

71

88

70

75 64

69

71

62

70.15

130. Castillo, Antonio del

78

78

70

60 79

67

69

76

72.65

MRD- Castillo, Dominador


131. Ad.

75

61

72

75 74

71

67

66

71.1

MRD- Castro, Jesus B.


132.

72

86

72

75 65

75

76

71

72.85

133. Casuga, Bienvenido B. 75

72

72

70 69

61

75

60

70.95

134. Cabangbang, Santiago 77


B.

67

61

80 73

59

83

76

72.2

135. Cruz, Federico S.

69

74

75

75 68

65

76

70

71.65

136. Dacanay, Eufemio P.

70

73

62

75 72

69

85

71

72.05

137. Deysolong, Felisberto

66

62

72

75 70

62

83

62

70.85

MRD- Dimaano, Jr., Jose N.


138.

78

79

63

75 73

75

81

59

73.5

139. Espinosa, Domingo L.

78

63

58

70 70

67

87

63

71.6

MRD- Farol, Evencia C.


140.

80

78

66

75 81

72

62

73

72.25

141. Felix, Conrado S.

71

71

75

65 70

58

75

69

70.75

142. Fernan, Pablo L.

67

88

66

85 73

68

78

75

72.35

124. Cacacho, Emilio V.


125. Calilung, Soledad C.
MRD- Calimlim, Jose B.
126.

143. Gandioco, Salvador G. 64

58

66

65 76

70

89

75

72.1

144. Gastardo, Crispin B.

70

69

68

75 78

66

86

72

73.9

145. Genson, Angelo B.

75

57

73

65 67

54

78

56

69.55

146. Guiani, Guinald M.

68

60

75

65 74

67

75

77

71.5

147. Guina, Graciano P.

66

69

67

60 78

52

83

61

69.6

MRD- Homeres, Praxedes P. 74


148.

74

75

75 71

69

75

71

73.35

149. Ibarra, Venancio M.

60

75

74

70 74

70

80

75

71.9

150. Imperial, Monico L.

72

78

75

75 72

56

82

77

73.7

MRD- Ibasco, Jr., Emiliano M. 71


151.

70

63

85 71

60

85

53

70.85

152. Inandan, Fortunato C.

77

77

67

53 73

75

79

57

72.5

153. Jimenez, Florencio C.

75

70

70

75 72

61

75

78

72.05

154. Kintanar, Woodrow M. 70

83

72

65 76

73

75

69

72.95

155. Languido, Cesar V.

63

71

63

85 70

61

85

79

70.55

156. Lavilles, Cesar L.

61

89

75

55 73

63

75

78

70.55

157. Llenos, Francisco U.

64

70

65

60 72

65

92

75

71.75

158. Leon, Marcelo D. de

63

73

60

85 75

75

90

70

72.75

159. Llanto, Priscilla

72

68

60

65 76

67

84

68

71.35

160. Machachor, Oscar

68

59

78

70 67

57

75

75

70.15

MRD- Magsino, Encarnacion 77


161.

66

70

70 76

71

75

61

72.75

MRD- Maligaya, Demetrio M. 70


162.

61

75

65 75

50

91

51

72.3

163. Manio, Gregorio

67

67

69

80 71

67

75

75

70.65

164. Puzon, Eduardo S.

72

82

60

60 69

70

68

72

62.05

MRD- Marcial, Meynardo R.


165.

66

75

74

70 75

67

81

75

73.15

166. Martin, Benjamin S.

68

72

63

75 69

63

84

62

70.1

MRD- Monterroyo, Catalina


167. S.

70

80

75

80 76

66

82

51

73.95

MRD- Montero, Leodegario


168. C.

73

67

66

80 81

65

81

75

73.75

169. Monzon, Candido T.

70

72

74

75 67

70

77

69

72.05

170. Natividad, Alberto M.

73

79

68

65 73

69

75

79

72.2

MRD- Navallo, Capistrano C. 70


171.

72

68

85 81

66

71

74

72.1

66

66

75

65 79

68

85

62

73.5

MRD- Ocampo, Antonio F. de 75


173.

81

76

65 74

67

75

69

73.75

172. Nisce, Camilo Z.

174. Olaviar, Jose O.

72

70

69

55 66

70

77

75

70.5

MRD- Perez, Cesario Z.


175.

75

76

66

80 72

63

82

69

72.95

176. Pogado, Causin O.

70

66

65

70 75

64

75

70

69.95

177. Ramos-Balmori,
Manuela

75

73

62

65 78

59

75

66

70.2

178. Recinto, Ireneo I.

73

76

68

75 74

68

80

53

72.3

MRD- Redor, Francisco K.


179.

62

77

73

75 69

64

76

69

70

MRD- Regis, Deogracias A.


180.

76

74

68

65 65

65

88

75

73.35

67

78

61

80 71

77

79

65

70.9

MRD- Rimorin-Gordo, Estela 70


182.

72

62

60 88

66

67

79

70.15

70

64

70

70 72

73

85

57

72.65

184. Rosario, Vicente D. del 75

91

65

75 68

68

79

62

72.2

185. Saavedra, Felipe

73

80

63

75 76

73

68

62

70.35

186. Salazar, Alfredo N.

66

72

73

75 67

68

77

69

70.85

187. Salem, Romulo R.

77

81

72

65 73

60

76

75

73

188. Foz, Julita A.

75

72

75

75 65

70

76

64

72.5

189. Santa Ana, Candido T. 77

69

65

75 81

75

70

75

73

190. Santos, Aquilino

72

66

69

65 68

70

81

71

71.7

191. Santos, Valeriano V.

76

72

75

75 68

62

76

79

73.1

181. Rigor, Estelita C.

183. Rosario, Prisco del

192. Suico, Samuel

73

79

72

75 71

59

84

65

73.3

193. Suson, Teodorico

74

68

66

80 66

59

79

67

70.35

194. Tado, Florentino P.

64

76

67

65 76

72

76

53

69.7

195. Tapayan, Domingo A.

69

72

69

70 76

73

82

79

73.75

MRDTiausas, Miguel V.
196.

67

60

71

75 79

67

84

60

72.7

197. Torres, Carlos P.

68

71

71

70 70

63

82

71

71.6

198. Tria, Hipolito

69

72

75

60 69

54

78

66

70.05

199. Velasco, Avelino A.

65

72

75

75 71

67

78

76

72.1

200. Villa, Francisco C.

65

80

73

75 68

79

65

75

70.2

201. Villagonzalo, Job R.

78

67

74

65 72

51

69

71

70.25

202. Villarama, Jr., Pedro

75

74

75

55 75

66

67

75

71.45

203. Abacon, Pablo

75

72

78

81 78

72

64

55

72.7

MRP- Abad, Agapito


204.

73

76

73

85 75

63

62

75

70.95

MRP- Abella, Ludovico B.


205.

70

81

76

81 70

66

77

58

72.7

MRP- Abellera, Geronimo F.


206.

75

79

79

87 76

51

63

70

71.7

MRP- Abenojar, Agapito N.


207.

71

72

78

84 70

75

69

70

72.9

208. Alandy, Doroteo R.

64

83

93

91 68

59

60

60

71.2

209. Alano, Fabian T.

70

83

61

83 72

87

72

70

71.9

71

79

80

81 73

70

72

62

73.65

211. Arcangel, Agustin Ag.

75

85

71

73 76

65

68

65

71.85

212. Acosta, Dionisio N.

75

81

78

87 56

65

77

70

72.8

MRP- Abinguna, Agapito C.


213.

66

85

80

84 75

58

76

75

73.65

214. Adove, Nehemias C.

76

86

78

77 66

78

69

62

73.55

1952

MRP- Alcantara, Pablo V.


210.

215. Adrias, Inocencio C.

75

83

61

88 76

67

79

75

73.4

216. Aglugub, Andres R.

75

83

73

88 72

62

72

62

72.65

217. Andrada, Mariano L.

76

85

66

87 63

77

75

77

73.

MRP- Almeda, Serafin V.


218.

72

72

75

81 61

67

73

65

70.75

219. Almonte-Peralta,
Felicidad

73

71

72

91 75

67

65

53

70.7

MRP- Amodia, Juan T.


220.

75

79

68

85 62

64

75

78

71.4

MRP- Antonio, Felino A.


221.

71

76

81

83 79

52

72

70

73.3

MRP- Antonio, Jose S.


222.

75

92

90

68 65

64

68

60

73.75

223. Aonuevo, Ramos B.

71

87

78

81 64

63

74

76

72.7

224. Aquino, S. Rey A.

67

77

57

78 69

70

69

80

67.7

225. Arteche, Filomeno D.

78

83

50

89 76

77

70

70

70.8

MRP- Arribas, Isaac M.


226.

75

78

70

81 73

70

67

78

72.2

MRP- Azucena, Ceferino D.


227.

72

67

78

89 72

67

77

65

73.95

228. Atienza, Ricardo

72

87

70

79 66

55

75

75

70.85

229. Balacuit, Camilo N.

75

78

89

75 70

54

66

75

73.3

MRP- Baclig, Cayetano S.


230.

77

84

83

80 69

70

61

65

73

231. Balcita, Oscar C.

75

77

79

90 64

60

67

50

70.65

232. Barilea, Dominador Z.

71

67

82

77 64

61

65

80

70.5

MRP- Banta, Jose Y.


233.

75

80

77

81 75

63

71

75

73.95

MRP- Barrientos, Ambrosio


234. D.

76

70

67

80 67

65

70

81

70.7

235. Batucan, Jose M.

66

76

78

88 62

76

67

78

71.2

236. Bautista, Atilano C.

70

82

84

85 58

61

71

62

71.25

237. Bautista, Celso J.

71

68

63

87 80

67

80

70

72.75

238. Belderon, Jose

76

81

76

92 70

66

67

62

72.65

MRP- Belo, Victor B.


239.

76

77

64

73 75

71

76

76

72.85

MRP- Bejec, Conceso D.


240.

79

80

73

82 63

77

75

50

73.15

MRP- Beltran, Gervasio M.


241.

72

75

81

73 75

57

75

80

73.95

MRP- Benaojan, Robustiano


242. O.

74

84

77

84 75

63

68

62

72.85

MRP- Beria, Roger C.


243.

70

80

79

79 68

72

64

78

71.85

MRP- Bihis, Marcelo M.


244.

75

86

65

92 64

64

84

75

73.45

MRP- Binaoro, Vicente M.


245.

73

69

78

83 73

59

70

82

72.75

MRP- Bobila, Rosalio B.


246.

76

86

76

83 68

59

71

78

73.05

247. Buenafe, Avelina R.

78

80

75

75 70

55

72

80

72.75

248. Bueno, Anastacio F.

73

78

71

78 71

67

71

60

71.15

249. Borres, Maximino L.

67

85

62

91 72

63

76

80

70.9

MRP- Cabegin, Cesar V.


250.

72

71

76

75 74

70

71

60

72.2

MRP- Cabello, Melecio F.


251.

72

78

78

89 58

70

67

71

70.5

MRP- Cabrera, Irineo M.


252.

79

88

53

91 71

85

75

76

73.3

71

79

83

84 60

62

71

50

70.85

254. Calayag, Florentino R. 69

79

66

88 69

75

68

76

70.6

76

72

80

67 62

71

66

62

70.85

70

82

81

77 78

51

75

75

73.7

MRP- Cabugao, Pablo N.


257.

76

87

69

80 58

64

78

75

71.8

258. Calagi, Mateo C.

73

93

71

87 70

66

69

62

71.8

253. Cabreros, Paulino N.

MRP- Calzada, Cesar de la


255.
256. Canabal, Isabel

259. Canda, Benjamin S.

72

71

77

90 62

75

66

82

71.95

260. Cantoria, Eulogio

71

80

71

89 70

55

72

75

71

261. Capacio, Jr., Conrado

67

78

71

90 65

75

72

60

70.65

262. Capitulo, Alejandro P.

75

70

53

87 78

63

76

91

71.2

MRP- Calupitan, Jr., Alfredo


263.

75

93

81

76 64

75

68

56

73.15

MRP- Caluya, Arsenio V.


264.

75

86

70

87 77

52

77

82

73.9

MRP- Campanilla, Mariano B. 80


265.

75

78

77 73

71

63

76

73.65

MRP- Campos, Juan A.


266.

66

85

83

84 67

61

80

57

73.25

267. Cardoso, Angelita G.

78

71

73

76 79

56

69

60

71.8

268. Cartagena, Herminio


R.

71

72

65

89 64

73

80

70

71.65

65

75

77

76 85

60

75

69

73.15

270. Cauntay, Gaudencio V. 70

78

72

73 77

69

64

80

71.2

271. Castro, Pedro L. de

70

68

69

87 76

75

72

70

73.35

272. Cerio, Juan A.

75

82

75

86 60

54

76

75

71.75

273. Colorado, Alfonso R.

68

75

80

74 77

66

67

80

72.6

274. Chavez, Doroteo M.

73

65

79

84 73

69

66

84

73.1

275. Chavez, Honorato A.

77

76

79

86 74

53

71

75

73.65

MRP- Cobangbang, Orlando


276. B.

69

81

74

82 76

61

78

80

73.85

277. Cortez, Armando R.

78

60

88

86 60

66

69

64

73.1

278. Crisostomo, Jesus L.

76

87

74

76 62

55

76

66

71.45

MRP- Cornejo, Crisanto R.


279.

68

87

78

86 79

50

80

60

73.7

MRP- Cruz, Raymundo


280.

75

81

79

85 72

57

68

75

72.95

MRP- Cunanan, Jose C.


281.

78

92

63

83 76

72

68

65

72.4

MRP- Castro, Daniel T.


269.

282. Cunanan, Salvador F.

70

82

64

92 67

75

73

76

71.45

283. Cimafranca, Agustin B. 71

76

76

80 70

71

75

71

73.35

284. Crisol, Getulio R.

70

91

78

85 68

55

71

50

70.8

MRP- Dusi, Felicisimo R.


285.

76

82

69

82 66

62

80

71

72.85

MRP- Datu, Alfredo J.


286.

70

75

72

86 80

55

68

79

71.5

287. Dacuma, Luis B.

71

67

87

83 71

50

65

70

71.25

MRP- Degamo, Pedro R.


288.

73

80

82

74 80

67

67

57

73.65

70

84

82

84 77

52

73

50

72.65

75

83

86

73 54

54

75

75

72.25

291. Dionisio, Jr., Guillermo 73

84

64

89 71

78

75

66

72.8

289. Delgado, Vicente N.


MRP- Diolazo, Ernesto A.
290.

MRP- Dichoso, Alberto M.


292.

71

77

71

81 69

75

80

70

73.65

MRP- Dipasupil, Claudio R.


293.

70

76

82

73 79

70

72

56

73.9

MRP- Delgado, Abner


294.

75

84

63

67 64

60

70

72

68.35

MRP- Domingo, Dominador


295. T.

70

69

81

82 68

63

71

75

72.2

296. Ducusin, Agapito B.

70

78

53

88 75

77

62

76

68.05

75

77

78

86 76

72

64

75

73.9

298. Duque, Castulo

75

80

73

83 66

67

65

66

70.65

299. Ebbah, Percival B.

70

80

85

76 66

63

76

75

73.95

300. Edisa, Sulpicio

65

77

75

89 75

62

75

65

72

301. Edradan, Rosa C.

70

75

84

84 71

59

69

86

73.4

MRP- Enage, Jacinto N.


302.

66

70

88

93 72

67

65

75

73.2

MRP- Encarnacion, Alfonso


303. B.

75

86

73

81 63

77

69

75

72.65

MRP- Duque, Antonio S.


297.

304. Encarnacion, Cesar

65

78

58

68 66

64

75

78

67.1

305. Estoista, Agustin A.

78

76

74

86 58

67

70

76

71.7

MRP- Fabros, Jose B.


306.

66

75

80

82 80

71

67

70

73.05

MRP- Fajardo, Balbino P.


307.

77

69

82

83 65

60

75

75

73.9

308. Fajardo, Genaro P.

70

79

77

79 79

50

73

75

72.5

309. Evangelista, Felicidad


P.

75

75

72

87 63

63

77

70

72.15

310. Familara, Raymundo Z. 68

75

87

83 64

65

68

65

71.85

311. Farias, Dionisio

70

78

89

66 65

75

70

50

72.75

312. Favila, Hilario B.

71

84

74

70 75

67

73

59

72.2

MRP- Feliciano, Alberto I.


313.

71

69

70

85 69

81

72

70

72.25

MRP- Fernando, Lope F.


314.

73

77

86

79 70

76

64

50

73

MRP- Flores, Dionisio S.


315.

78

72

77

83 67

60

68

73

72.05

MRP- Fortich, Benjamin B.


316.

70

82

70

70 78

65

64

75

70.35

MRP- Fuente, Jose S. de la


317.

76

88

72

74 60

71

79

79

73.55

318. Fohmantes, Nazario S. 72

79

71

77 68

61

76

60

70.9

MRP- Fuggan, Lorenzo B.


319.

76

81

74

69 71

71

73

60

72.85

320. Gabuya, Jesus S.

70

83

82

83 70

63

75

65

73.75

321. Galang, Victor N.

69

83

84

76 70

57

71

60

71.95

322. Gaerlan, Manuel L.

73

87

77

90 67

61

72

75

73.15

323. Galem, Nestor R.

72

79

86

78 60

61

75

70

73.05

324. Gallardo, Jose Pe B.

75

88

75

75 63

70

70

65

71.85

70

78

84

91 80

51

65

70

72.85

70

89

87

65 78

71

62

62

73.4

MRP- Gallos, Cirilo B.


325.
326. Galindo, Eulalio D.

327. Galman, Patrocinio G.

72

72

80

85 71

56

70

53

71.15

328. Gamalinda, Carlos S.

76

79

81

86 67

63

69

55

72.55

329. Gamboa, Antonio G.

71

67

70

72 76

60

75

68

70.95

330. Gannod, Jose A.

69

80

75

81 68

62

73

68

71.25

MRP- Garcia, Matias N.


331.

67

78

74

90 79

59

76

65

72.8

MRP- Ganete, Carmelo


332.

75

87

77

82 74

57

68

81

73.3

333. Gilbang, Gaudioso R.

75

67

80

82 67

57

64

70

70.5

334. Gofredo, Claro C.

68

78

72

86 78

52

70

76

70.9

335. Gomez, Jose S.

71

76

71

81 76

63

69

62

70.85

MRP- Gosiaoco, Lorenzo V.


336.

68

93

85

78 64

69

70

54

72.35

MRP- Gonzales, Rafael C.


337.

77

75

71

89 55

70

70

60

70.05

MRP- Gracia, Eulalia L. de


338.

66

68

90

84 77

59

69

65

73.3

339. Grageda, Jose M. A.

70

85

72

67 70

60

73

73

70.75

340. Guzman, Juan de

75

86

69

84 64

79

75

76

73.6

MRP- Guzman, Mateo de


341.

76

79

79

73 72

69

68

80

73.9

342. Guzman, Salvador B.

71

61

74

72 61

66

78

75

70.75

343. Guzman, Salvador T.


de

75

84

64

81 74

61

78

58

71.75

344. Habelito, Geronimo E.

71

76

71

87 73

60

67

55

69.65

345. Hedriana, Naterno G.

75

68

84

76 66

58

76

60

72.9

346. Hernandez, Quintin B.

67

75

72

81 72

72

66

76

70.6

347. Homeres, Agustin R.

73

84

65

86 70

77

63

76

70.7

348. Ines, Leonilo F.

65

88

71

88 77

73

61

70

70.55

349. Jamer, Alipio S.

68

75

83

89 80

61

65

50

72

1952

MRP- Ibasco, Jr., Emiliano M. 75


350.

65

68

85 76

70

83

54

73.8

MRP- Jardinico, Jr., Emilio


351.

73

86

72

78 82

67

67

64

72.8

MRP- Jaen, Justiniano F.


352.

76

75

78

84 71

66

70

77

73.85

353. Jaring, Antonio S.

72

77

79

70 72

57

71

50

70.75

MRP- Javier, Aquilino M.


354.

75

84

79

78 77

61

66

66

73.05

355. Jomuad, Francisco

75

75

72

88 78

58

76

43

72.4

MRP- Jose, Nestor L.


356.

78

61

64

73 68

76

64

80

69.7

357. La Q, Jose M.

75

71

75

72 70

67

81

59

73.5

358. Leon, Brigido C. de

67

75

78

91 78

51

72

80

72.55

359. Leones, Constante B.

68

81

79

84 73

60

77

60

73

360. Liboro, Horacio T.

72

69

80

87 73

62

70

61

72.4

361. Llanera, Cesar L.

77

81

80

78 64

59

75

63

73

362. Lomontod, Jose P.

75

76

69

70 73

76

74

75

73.2

363. Luna, Lucito

70

75

69

83 59

53

74

75

68.4

MRP- Luz, Lauro L.


364.

76

90

78

88 64

58

75

77

73.95

MRP- Macasaet, Tomas S.


365.

73

81

72

83 66

75

72

70

72.5

366. Magbiray, Godofredo


V.

80

67

84

76 70

62

65

68

73.05

367. Majarais, Rodolfo P.

70

62

64

82 88

75

71

79

72.85

MRP- Makabenta, Eduardo


368.

75

90

77

83 59

71

72

78

73.3

MRP- Malapit, Justiniano S.


369.

74

83

74

89 58

60

72

76

71.1

370. Maloles, Iluminado M.

70

87

73

76 77

50

76

76

72.3

371. Maniquis, Daniel R.

75

80

73

91 69

71

65

70

72.1

372. Maraa, Arsenio

65

79

60

72 73

51

75

86

67.9

373. Marasigan, Napoleon

75

71

83

75 69

62

69

70

72.75

MRP- Marco, Jaime P.


374.

75

67

74

76 64

75

75

57

71.9

MRP- Martir, Osmundo P.


375.

70

86

76

78 72

71

75

53

72.95

MRP- Masancay, Amando E. 73


376.

87

75

77 72

50

78

80

73.2

MRP- Mati-ong, Ignacio T.


377.

62

87

72

79 73

76

69

77

71.3

378. Mara, Guillermo L.

70

78

78

89 75

67

66

65

72.35

MRP- Mercado, Felipe A.


379.

73

77

82

82 78

52

69

85

73.9

MRP- Miculob, Eugenio P.


380.

70

82

73

86 77

52

79

65

72.8

381. Mison, Rafael M. Jr.,

79

78

73

75 71

68

69

53

71.95

MRP- Monponbanua, Antonio 79


382. D.

79

68

88 64

78

69

83

73.1

MRP- Montero, Leodegario


383. C.

72

89

69

89 70

68

70

75

72.15

384. Morada, Servillano S.

75

76

67

71 65

66

75

76

70.9

385. Mocorro, Generoso

78

84

78

84 60

73

68

70

73

MRP- Mosquera, Estanislao


386. L.

75

78

75

85 72

55

77

66

73.15

387. Motus, Rodentor P.

80

78

70

94 72

75

70

57

73.75

388. Macario, Pedro R.

70

67

74

86 78

63

72

66

72.15

MRP- Nadela, Geredion T.


389.

72

64

64

81 73

50

75

75

69.15

MRP- Nazareno, Romeo P.


390.

67

70

71

76 76

79

75

57

72.05

391. Nieto, Benedicto S.

69

79

77

77 72

62

76

76

72.9

MRP- Noguera, Raymundo


392.

71

86

81

80 73

56

72

70

73.15

MRP- Nodado, Domiciano R. 70


393.

70

69

73 57

37

64

72

63.6

394. Nono, Pacifico G.

67

77

78

67 75

59

71

76

71.35

MRP- Nuval, Manuel R.


395.

78

72

67

90 72

68

78

67

73.65

396. Ocampo, Augusto

75

90

77

72 69

55

65

67

60.7

397. Oliveros, Amado A.

72

75

68

72 84

50

75

79

71.9

398. Opia, Jr., Pedro

76

77

74

67 73

66

68

70

71.85

MRP- Olaviar, Jose O.


399.

70

62

85

81 74

50

68

79

71.8

MRP- Olandesca, Per O.


400.

70

91

76

87 72

66

70

79

73.45

401. Orden, Apolonio J.

72

65

84

86 66

50

72

68

71.45

402. Ortiz, Melencio T.

71

75

78

81 66

67

70

78

72.1

MRP- Pablo, Fedelino S.


403.

72

64

76

86 72

61

76

75

72.95

404. Pacifico, Vicente V.

76

79

69

80 76

52

72

80

71.95

MRP- Paderna, Perfecto D.


405.

75

69

72

75 78

58

75

70

72.6

406. Padlan, Crispin M.

71

66

76

79 68

67

74

66

71.65

407. Padilla, Jose C.

70

65

67

82 78

75

78

75

73.3

408. Padilla, Jr., Estanislao


E.

71

88

78

86 59

75

78

50

72.95

MRP- Palma, Bartolome


409.

67

81

80

82 71

75

69

75

73.25

MRP- Papa, Angel A.


410.

75

72

85

85 77

59

63

71

73.45

MRP- Parayno, Mario V.


411.

71

88

74

89 69

66

76

73

73.65

412. Paria, Santos L.

70

87

85

77 64

67

63

76

71.85

MRP- Pasion, Anastacio


413.

63

80

68

81 82

79

76

58

72.55

414. Pastrana, Rizal R.

69

76

71

76 68

63

77

83

71.65

70

66

80

87 75

50

65

80

70.9

MRP- Paulin, Jose O.


415.

MRP- Pelaez, Jr., Vicente C.


416.

79

87

73

83 69

71

68

65

73.2

417. Pea, Jesus

75

75

75

62 75

70

60

66

70.4

418. Perez, Toribio R.

71

64

81

92 69

58

67

70

71.25

419. Pestao, Melquiades

77

81

74

87 59

68

76

75

73.2

MRP- Pido, Serafin C.


420.

77

81

72

82 69

71

60

75

71.15

421. Pinlac, Filemon

67

76

74

86 65

79

65

72

70.55

422. Poblete, Celso B.

72

79

82

76 66

64

74

50

72.15

68

70

75

87 74

67

64

75

70.8

424. Puzon, Eduardo S.

72

80

81

69 72

53

67

70

71.05

425. Quetulio, Josefina D.

75

90

60

93 64

78

76

83

72.9

MRP- Quipanes, Melchor V.


426.

69

88

79

82 65

62

71

66

71.55

MRP- Quietson, Bayani R.


427.

73

75

76

77 70

81

71

53

72.85

428. Racho, Macario D.

68

75

81

82 78

53

66

54

70.55

429. Ramirez, Sabas P.

71

80

73

87 62

62

75

80

71.65

MRP- Raffian, Jose A.


430.

80

83

79

79 62

72

68

65

73.25

MRP- Ramos, Patricio S.


431.

75

87

76

75 72

72

61

75

72.25

MRP- Ramos-Balmori,
432. Manuela

78

84

76

90 48

75

80

65

73.45

MRP- Raro, Celso


433.

75

81

76

67 75

77

55

77

71.4

MRP- Rayos, Victor S.


434.

75

86

79

91 71

67

67

70

73.9

435. Revilla, Mariano S.

75

78

81

90 70

54

69

81

73.35

436. Reyes, Abdon L.

72

64

81

78 76

73

69

53

72.85

437. Reyes, Domingo B.

72

87

78

83 72

75

62

70

72.7

438. Reyes, Francisco M.

75

85

84

68 75

71

68

50

73.9

MRP- Piza, Luz


423.

439. Reyes, Lozano M.

80

57

78

79 78

65

64

79

73.35

75

75

82

82 76

64

68

60

73.65

441. Rigonan, Cesar V.

71

85

65

86 75

70

76

70

72.7

442. Rivera, Honorio

71

56

70

90 71

65

75

71

71.2

MRP- Rivero, Buenaventura


443. A.

72

88

72

94 68

73

66

80

72.6

MRP- Robles, Enrique


444.

75

77

75

77 82

64

69

70

73.7

445. Rodriguez, Orestes


Arellano

76

75

76

63 69

77

65

78

72.25

446. Roldan, Jose V.

67

80

79

83 73

71

75

70

73.9

447. Rosario, Adelaida R.


del

80

75

65

70 68

72

80

70

73.15

448. Rosario, Restituto F.


del

75

75

79

90 68

65

66

63

72.1

MRP- Sabelino, Conrado S.


449.

71

81

69

75 77

71

75

70

72.95

450. San Juan, Damaso

77

86

72

89 59

76

65

72

71.6

451. Saiel, Felix L.

72

93

76

80 67

75

66

62

72.1

452. Samaniego, Jesus B.

75

80

76

72 60

67

68

70

70.6

MRP- Sandoval, Emmanuel


453. M.

75

83

70

83 77

67

77

60

73.95

MRP- Sanidad, Emmanuel Q. 71


454.

75

81

90 62

64

76

68

72.95

455. Santiago, Jr., Cristobal 75

76

84

93 63

65

59

70

71.8

456. Santillan, Juanito Ll.

76

89

83

83 63

58

65

52

71.25

MRP- Santos, Rodolfo C.


457.

75

75

78

82 73

76

66

70

73.7

MRP- Santos, Ruperto M.


458.

67

54

69

76 63

64

71

60

66.75

MRP- Santos, Aquilino C.


459.

72

71

73

79 73

79

71

85

73.8

MRP- Santos, Rufino A.

75

81

79

85 74

72

66

54

73.3

MRP- Reyes, Oscar R.


440.

460.
461. Suanding, Bantas

75

67

67

92 79

59

76

76

73.1

76

79

76

78 72

75

68

67

73.5

463. Songco, Felicisimo G.

70

68

82

84 60

69

76

65

73.35

464. Soriano, Aniceto S.

64

79

77

80 80

53

70

65

70.7

465. Suarez, Pablo D.

73

85

70

87 76

70

64

70

71.9

MRP- Sybico, Jesus L.


466.

79

70

70

72 75

75

72

60

73.05

467. Tabaque, Benjamin R. 69

68

77

79 74

68

72

60

71.85

MRP- Sulit, Feliz M.


462.

MRP- Tan Kiang, Clarita


468.

81

79

72

80 62

75

73

80

73.95

MRP- Tando, Amado T.


469.

71

82

78

83 71

61

71

60

72

470. Tasico, Severo E.

71

69

75

89 70

75

67

63

71.65

471. Tiburcio, Ismael P.

73

82

72

93 76

57

68

54

71.15

MRP- Tiongson, Federico T.


472.

70

70

76

84 77

75

75

50

73.45

MRP- Tolentino, Jesus C.


473.

75

89

63

84 85

73

73

50

73.4

474. Torrijas, Alfredo A.

77

66

67

83 68

75

71

63

71.3

MRP- Tobias, Artemio M.


475.

69

58

74

81 71

55

65

57

67.55

MRP- Trillana, Jr., Apolonio


476.

76

86

76

86 70

68

75

50

73.8

MRP- Trinidad, Manuel O.


477.

66

91

83

75 63

66

67

65

70.8

478. Trinidad, Pedro O.

66

78

78

85 78

51

64

75

70.8

80

82

77

82 67

56

68

75

72.6

480. Umali, Osmundo C.

68

75

81

80 71

69

68

60

71.7

481. Umayam, Juanito C.

77

75

87

85 56

56

66

60

71

75

72

75

74 73

76

71

70

73.55

MRP- Udarbe, Flavio J.


479.

MRP- Usita, Gelacio U.

482.
483. Valino, Francisco M.

72

81

80

84 62

78

71

75

73.7

484. Varela, Dominador M.

67

75

81

86 72

57

81

70

73.85

485. Vega, Macairog L. de

78

62

79

87 70

70

71

65

73.8

MRP- Velasco, Emmanuel D. 71


486.

80

74

85 60

66

76

76

71.85

487. Velez, Maria E.

73

70

89

80 56

50

72

67

71.05

MRP- Venal, Artemio V.


488.

78

91

58

67 76

55

75

73

73.65

489. Venus, Conrado B.

69

81

74

85 62

66

72

77

77.05

MRP- Verzosa, Federico B.


490.

75

79

72

88 76

68

74

59

73.7

MRP- Villafuerte, Eduardo V. 75


491.

83

70

76 64

64

75

65

71.2

MRP- Villanueva, Cecilio C.


492.

75

85

79

88 66

77

67

70

73.95

73

69

70

88 76

66

69

50

70.75

MRP- Villaseor, Leonidas F. 80


494.

85

67

77 62

75

76

73

73.15

493. Villar, Custodio R.

495. Viterbo, Jose H.

80

77

65

93 70

65

65

65

70.65

496. Yaranon, Pedro

70

77

76

85 72

50

75

75

71.85

MRP- Yasay, Mariano R.


497.

75

75

72

76 63

77

70

60

71.1

MRP- Ygay, Venancio M.


498.

73

80

83

84 62

59

72

77

72.65

499. Yulo, Jr., Teodoro

73

82

78

75 60

81

75

75

73.95

500. Zamora, Alberto

70

65

76

79 62

77

69

82

71.3

501. Rigonan, Felipe C.

70

79

69

89 76

62

71

64

71.2

A list of those who petitioned for the consolidation of their grades in subjects passed in
previous examinations, showing the years in which they took the examinations together
with their grades and averages, and those who had filed motions for reconsideration
which were denied, indicated by the initials MRD, follows:
PETITIONERS UNDER REPUBLIC ACT NO. 72
Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.

Av.
1. Amao, Sulpicio M.
1946

68

67

76

76 73

73

49

50

66.5

1950

59

80

67

77 62

80

71

57

67.4

1951

65

76

58

55 59

63

75

72

64.9

1952

65

68

75

84 72

59

73

57

69.75

1953

57

74

68

68 76

52

71

76

66.7

MRD-1949

75

75

70

75 77

76

60

90

72.15

1951

64

71

58

65 68

70

75

71

66.95

1950

71

80

62

75 75

81

55

92

69.3

1951

70

60

61

65 77

64

67

81

67.85

MRD-1949

69

70

76

73 76

71

55

60

68.65

1950

60

71

55

67 67

75

56

89

68.1

MRD-1949

60

70

82

79 70

69

60

80

69.25

1950

57

65

51

69 54

85

56

84

60.3

1946

63

53

69

76 75

76

57

69

66.55

1952

70

75

69

83 59

53

74

75

68.4

1949

72

68

68

75 75

72

60

75

69.35

1952

65

79

60

72 73

51

75

86

67.9

2. Baldo, Olegario Ga.

3. Blanco, Jose B.

4. Condeno, Mateo

5. Ducusin, Agapito B.

6. Garcia, Manuel N.

7. Luna, Lucito A.

8. Maraa, Arsenio s.

9. Montano, Manuel M.
1951

61

60

58

60 70

63

75

64

64.8

1952

70

77

65

79 66

52

70

50

66.4

1953

78

64

66

68 81

50

71

78

70.65

1950

25

75

45

75 45

52

46

71

46.2

1951

70

77

65

79 66

52

70

50

66.4

1952

75

75

75

62 75

70

60

66

70.4

1950

68

78

70

75 69

70

58

69

67.75

1951

65

62

75

60 73

57

75

71

66.8

1949

65

75

72

75 60

75

55

85

66.65

1951

68

57

48

60 91

66

55

75

64.05

1952

68

53

68

67 58

56

75

64

65.7

1952

67

80

51

69 69

77

73

53

66.35

1953

65

67

78

74 75

62

69

80

70.9

1951

67

60

70

65 68

56

75

66

67.75

1952

70

71

67

78 67

75

71

70

70.1

1948

39

69

82

75 76

72

55

50

63.5

MRD-1949

67

56

69

75 72

77

60

75

68

1951

70

59

55

60 68

57

78

67

65.8

10. Pea, Jesus S.

11. Placido, Sr., Isidro

12. Rementizo, Filemon S.

13. Amao, Sulpicio M.

14. Rodulfa, Juan T.

15. Sanchez, Juan J.

16. Santos, Constantino

1952

62

76

54

82 72

77

66

65

66.65

1953

73

71

70

65 78

64

65

78

70.4

1951

60

64

55

70 68

52

70

75

62.85

1952

75

64

70

81 76

55

61

75

69.1

1953

70

71

79

65 72

54

66

80

70

MRD-1948

50

64

76

66 66

69

60

52

63.1

MRD-1949

47

66

78

64 71

86

65

85

68

1950

35

65

40

75 63

57

27

49

45

MRD-1951

68

59

72

55 69

65

75

75

69.3

1953

70

73

74

70 81

56

69

71

71.05

17. Santos, Salvador H.

18. Sevilla, Macario C.

Finally, with regards to the examinations of 1953, while some candidates--85 in all--presented
motions for reconsideration of their grades, others invoked the provisions of Republic Act No.
972. A list of those candidates separating those who filed mere motions for reconsideration (56)
from those who invoked the aforesaid Republic act, is as follows:
1953 PETITIONERS FOR RECONSIDERATION
Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.
1. Acenas, Calixto R.

73

70

68

62 82

51

67

77

73.45

2. Alcantara, Pedro N.

67

70

75

85 87

54

71

80

72.8

3. Alejandro, Exequiel

67

72

71

75 80

76

75

77

73.4

4. Andres, Gregorio M.

70

73

86

58 79

50

71

78

72.7

5. Arnaiz, Antonio E.

66

80

76

58 79

68

77

81

73.4

6. Asis, Floriano U. de

66

78

75

81 77

55

73

69

71.25

7. Bacaiso, Celestino M.

71

65

76

68 76

50

75

70

70.95

8. Bala, Florencio F.

64

82

47

70 82

58

75

82

67

9. Baldo, Olegario A.

57

74

68

68 76

52

71

76

66.7

10. Barrios, Benjamin O.

65

71

76

75 80

62

83

73

73.95

11. Buhay, Eduardo L.

73

76

71

91 76

61

74

78

73.35

12. Burgos, Dominador C.

72

80

89

61 66

37

69

68

70.05

13. Cario, Eldo J.

79

81

60

75 74

74

76

74

73

14. Casar, Dimapuro

67

73

84

79 77

61

71

74

73.35

15. Castaeda, Gregorio

70

73

80

71 75

70

73

78

73.95

16. Estrellado, Benjamin R.

67

79

64

73 82

62

71

74

70.2

17. Fabunan, Edilberto C.

70

72

68

69 77

60

76

74

71.1

18. Feril, Domingo B.

75

71

84

65 70

60

65

70

71.6

19. Fernandez, Alejandro G.

65

75

87

80 81

63

61

80

72.8

20. Gapus, Rosita S. (Miss)

76

80

86

77 64

74

66

69

73.9

21. Garcia, Rafael B.

70

86

70

75 73

63

73

75

71.65

22. Gracia, Miguel L. de

73

68

75

59 80

51

72

71

71

23. Gungon, Armando G.

68

76

76

84 77

57

77

83

73.6

24. Gutierrez, Antonio S.

68

77

66

70 72

59

71

74

69.1

25. Ilejay, Abraham I.

77

70

76

77 81

62

70

68

73.7

26. Leon, Benjamin La. De

66

66

75

70 77

55

71

82

70.35

27. Lugtu, Felipe L.

62

70

78

65 78

56

69

81

69.9

28. Lukman, Abdul-Hamid

76

64

67

69 73

59

73

75

70.45

29. Maloles, Jr., Benjamin G. 77

76

68

68 71

51

75

78

70.85

30. Maloles, Julius G.

77

71

60

71 79

62

68

72

69.75

31. Mandi, Santiago P.

65

76

70

61 79

68

75

72

71.1

32. Margete, Rufino C.

70

76

66

75 85

73

71

75

72.75

33. Melocoton, Nestorio B.

70

81

73

78 83

52

72

75

72.35

34. Molina, Manuel C.

75

78

70

61 75

63

66

85

70.95

35. Muoz, Mariano A.

75

80

86

67 74

57

68

76

73.75

36. Navarro, Buenaventura


M.

80

75

65

75 83

55

73

79

73

37. Nodado, Domiciano R.

60

67

67

50 70

50

56

75

61.7

38. Papas, Sisenando B.

65

62

71

61 70

56

66

67

66

39. Pagulayan-Sy, Fernando 63

75

71

62 83

67

70

72

70.4

40. Padula, Benjamin C.

70

77

54

62 74

78

75

68

69.05

41. Pasno, Enrique M.

78

72

66

54 71

58

72

78

69.85

42. Pea, Jr., Narciso

70

95

81

78 67

66

67

73

72.55

43. Peralta, Rodolfo P.

70

70

52

81 68

63

59

69

63.7

44. Pigar, Leopoldo R.

76

75

78

61 72

72

71

79

73.75

45. Publico, Paciano L.

68

69

76

76 70

59

74

67

70.6

46. Radaza, Leovigildo

75

78

76

61 77

50

71

86

72.2

47. Ramos, Bernardo M.

64

62

75

93 81

52

66

80

70.1

48. Rabaino, Andres D.

68

72

75

73 78

55

69

76

70.65

49. Ravanera, Oscar N.

70

77

80

71 82

62

69

78

73.6

50. Renovilla, Jose M.

65

75

80

68 79

52

62

78

69.5

51. Sabaot, Solomon B.

69

73

80

69 82

69

69

79

73.85

52. Sumaway, Ricardo S.

66

76

69

76 74

56

72

68

69.1

53. Torrefiel, Sofronio O.

70

77

74

75 73

50

68

72

69.55

54. Vera, Federico V. de

60

61

47

77 69

50

67

77

60.9

55. Viray, Venancio Bustos

65

67

67

52 73

64

71

65

67.15

56. Ylaya, Angela P. (Miss)

63

70

56

75 68

54

70

77

64.5

PETITIONERS UNDER REPUBLIC ACT NO. 972


Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.
1. Ala, Narciso

70

71

73

59 73

74

81

77

73.5

2. Alcantara, Pedro N.

67

70

75

85 87

54

71

80

72.8

3. Arellano, Antonio L.

74

66

73

60 78

63

78

72

72.9

4. Buhay, Eduardo L.

73

76

71

91 76

61

74

78

73.35

5. Calautit, Celestino R.

71

78

84

75 75

61

68

72

73.2

6. Casuncad, Sulvio P.

61

73

82

69 81

68

71

84

73.05

7. Enriquez, Pelagio y
Concepcion

84

69

76

75 82

50

58

79

72.05

8. Estonina, Severino

80

74

64

89 81

56

68

82

72.4

9. Fernandez, Alejandro Q.

65

75

87

80 81

63

61

80

72.8

10. Fernandez, Luis N.

70

75

77

75 78

67

72

73

73.35

11. Figueroa, Alfredo A.

70

75

87

78 75

50

68

68

72.3

12. Formilleza, Pedro

65

75

89

68 83

51

70

75

73.25

13. Garcia, Manuel M.

69

68

83

83 73

62

62

70

71

14. Grospe, Vicente E.

68

75

78

66 79

61

69

82

71.6

15. Galema, Nestor R. (1952) 72

79

86

78 60

61

75

70

73.05

16. Jacobo, Rafael F.

76

76

75

74 76

50

72

76

72.3

17. Macalindong, Reinerio L. 67

77

79

79 74

72

68

77

72.75

18. Mangubat, Antonio M.

70

70

78

61 80

74

62

70

71.45

19. Montano, Manuel M.

78

64

66

68 81

50

71

78

70.65

20. Plomantes, Marcos

73

67

74

58 68

70

76

71

71.6

21. Ramos, Eugenio R.

70

80

76

67 72

69

72

79

72.6

22. Reyes, Juan R.

71

73

77

76 81

59

72

74

73.2

23. Reyes, Santiago R.

65

78

83

60 76

75

70

70

72.9

24. Rivera, Eulogio J.

65

67

78

74 75

62

69

80

70.9

25. Santos, Constantino P.

73

71

70

65 78

64

65

78

70.4

26. Santos, Salvador H.

70

71

79

65 72

54

66

80

70

27. Sevilla, Macario C.

70

73

74

70 81

56

69

71

71.05

28. Villavicencio, Jose A.

78

75

70

67 69

77

64

77

73.2

29. Viray, Ruperto G.

76

73

76

73 80

58

68

83

73.25

There are the unsuccessful candidates totaling 604 directly affected by this resolution. Adding
490 candidates who have not presented any petition, they reach a total of 1,094.
The Enactment of Republic Act No. 972
As will be observed from Annex I, this Court reduced to 72 per cent the passing general
average in the bar examination of august and November of 1946; 69 per cent in 1947; 70 per
cent in 1948; 74 per cent in 1949; maintaining the prescribed 75 per cent since 1950, but raising
to 75 per cent those who obtained 74 per cent since 1950. This caused the introduction in 1951,
in the Senate of the Philippines of Bill No. 12 which was intended to amend Sections 5, 9, 12,

14 and 16 of Rule 127 of the Rules of Court, concerning the admission of attorneys-at-law to the
practice of the profession. The amendments embrace many interesting matters, but those
referring to sections 14 and 16 immediately concern us. The proposed amendment is as follows:
SEC. 14. Passing average. In order that a candidate may be deemed to have passed
the examinations successfully, he must have obtained a general average of 70 per cent
without falling below 50 per cent in any subject. In determining the average, the
foregoing subjects shall be given the following relative weights: Civil Law, 20 per cent;
Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal Law,
10 per cent; Political Law, 10 per cent; International Law, 5 per cent; Remedial Law, 20
per cent; Legal Ethics and Practical Exercises, 5 per cent; Social Legislation, 5 per cent;
Taxation, 5 per cent. Unsuccessful candidates shall not be required to take another
examination in any subject in which they have obtained a rating of 70 per cent or higher
and such rating shall be taken into account in determining their general average in any
subsequent examinations: Provided, however, That if the candidate fails to get a general
average of 70 per cent in his third examination, he shall lose the benefit of having
already passed some subjects and shall be required to the examination in all the
subjects.
SEC. 16. Admission and oath of successful applicants. Any applicant who has
obtained a general average of 70 per cent in all subjects without falling below 50 per
cent in any examination held after the 4th day of July, 1946, or who has been otherwise
found to be entitled to admission to the bar, shall be allowed to take and subscribe
before the Supreme Court the corresponding oath of office. (Arts. 4 and 5, 8, No. 12).
With the bill was an Explanatory Note, the portion pertinent to the matter before us being:
It seems to be unfair that unsuccessful candidates at bar examinations should be
compelled to repeat even those subjects which they have previously passed. This is not
the case in any other government examination. The Rules of Court have therefore been
amended in this measure to give a candidate due credit for any subject which he has
previously passed with a rating of 75 per cent or higher."
Senate Bill No. 12 having been approved by Congress on May 3, 1951, the President requested
the comments of this Tribunal before acting on the same. The comment was signed by seven
Justices while three chose to refrain from making any and one took no part. With regards to the
matter that interests us, the Court said:
The next amendment is of section 14 of Rule 127. One part of this amendment provides
that if a bar candidate obtains 70 per cent or higher in any subject, although failing to
pass the examination, he need not be examined in said subject in his next examination.
This is a sort of passing the Bar Examination on the installment plan, one or two or three
subjects at a time. The trouble with this proposed system is that although it makes it
easier and more convenient for the candidate because he may in an examination
prepare himself on only one or two subjects so as to insure passing them, by the time
that he has passed the last required subjects, which may be several years away from
the time that he reviewed and passed the firs subjects, he shall have forgotten the
principles and theories contained in those subjects and remembers only those of the one
or two subjects that he had last reviewed and passed. This is highly possible because
there is nothing in the law which requires a candidate to continue taking the Bar
examinations every year in succession. The only condition imposed is that a candidate,
on this plan, must pass the examination in no more that three installments; but there is
no limitation as to the time or number of years intervening between each examination
taken. This would defeat the object and the requirements of the law and the Court in
admitting persons to the practice of law. When a person is so admitted, it is to be
presumed and presupposed that he possesses the knowledge and proficiency in the law
and the knowledge of all law subjects required in bar examinations, so as presently to be
able to practice the legal profession and adequately render the legal service required by
prospective clients. But this would not hold true of the candidates who may have
obtained a passing grade on any five subjects eight years ago, another three subjects
one year later, and the last two subjects the present year. We believe that the present
system of requiring a candidate to obtain a passing general average with no grade in
any subject below 50 per cent is more desirable and satisfactory. It requires one to be all

around, and prepared in all required legal subjects at the time of admission to the
practice of law.
xxx

xxx

xxx

We now come to the last amendment, that of section 16 of Rule 127. This amendment
provides that any application who has obtained a general average of 70 per cent in all
subjects without failing below 50 per cent in any subject in any examination held after
the 4th day of July, 1946, shall be allowed to take and subscribe the corresponding oath
of office. In other words, Bar candidates who obtained not less than 70 per cent in any
examination since the year 1946 without failing below 50 per cent in any subject, despite
their non-admission to the Bar by the Supreme Court because they failed to obtain a
passing general average in any of those years, will be admitted to the Bar. This provision
is not only prospective but retroactive in its effects.
We have already stated in our comment on the next preceding amendment that we are
not exactly in favor of reducing the passing general average from 75 per cent to 70 per
cent to govern even in the future. As to the validity of making such reduction retroactive,
we have serious legal doubts. We should not lose sight of the fact that after every bar
examinations, the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average grade, but also
rejecting and denying the petitions for reconsideration of those who have failed. The
present amendment would have the effect of repudiating, reversing and revoking the
Supreme Court's resolution denying and rejecting the petitions of those who may have
obtained an average of 70 per cent or more but less than the general passing average
fixed for that year. It is clear that this question involves legal implications, and this phase
of the amendment if finally enacted into law might have to go thru a legal test. As one
member of the Court remarked during the discussion, when a court renders a decision or
promulgate a resolution or order on the basis of and in accordance with a certain law or
rule then in force, the subsequent amendment or even repeal of said law or rule may not
affect the final decision, order, or resolution already promulgated, in the sense of
revoking or rendering it void and of no effect.
Another aspect of this question to be considered is the fact that members of the bar are
officers of the courts, including the Supreme Court. When a Bar candidate is admitted to
the Bar, the Supreme Court impliedly regards him as a person fit, competent and
qualified to be its officer. Conversely, when it refused and denied admission to the Bar to
a candidate who in any year since 1946 may have obtained a general average of 70 per
cent but less than that required for that year in order to pass, the Supreme Court equally
and impliedly considered and declared that he was not prepared, ready, competent and
qualified to be its officer. The present amendment giving retroactivity to the reduction of
the passing general average runs counter to all these acts and resolutions of the
Supreme Court and practically and in effect says that a candidate not accepted, and
even rejected by the Court to be its officer because he was unprepared, undeserving
and unqualified, nevertheless and in spite of all, must be admitted and allowed by this
Court to serve as its officer. We repeat, that this is another important aspect of the
question to be carefully and seriously considered.
The President vetoed the bill on June 16, 1951, stating the following:
I am fully in accord with the avowed objection of the bill, namely, to elevate the standard
of the legal profession and maintain it on a high level. This is not achieved, however, by
admitting to practice precisely a special class who have failed in the bar examination,
Moreover, the bill contains provisions to which I find serious fundamental objections.
Section 5 provides that any applicant who has obtained a general average of 70 per cent
in all subjects without failing below 50 per cent in any subject in any examination held
after the 4th day of July, 1946, shall be allowed to take and subscribed the
corresponding oath of office. This provision constitutes class legislation, benefiting as it
does specifically one group of persons, namely, the unsuccessful candidates in the
1946, 1947, 1948, 1949 and 1950 bar examinations.
The same provision undertakes to revoke or set aside final resolutions of the Supreme
Court made in accordance with the law then in force. It should be noted that after every

bar examination the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average but also
rejecting and denying the petitions for reconsideration of those who have failed. The
provision under consideration would have the effect of revoking the Supreme Court's
resolution denying and rejecting the petitions of those who may have failed to obtain the
passing average fixed for that year. Said provision also sets a bad precedent in that the
Government would be morally obliged to grant a similar privilege to those who have
failed in the examinations for admission to other professions such as medicine,
engineering, architecture and certified public accountancy.
Consequently, the bill was returned to the Congress of the Philippines, but it was not repassed
by 2/3 vote of each House as prescribed by section 20, article VI of the Constitution. Instead Bill
No. 371 was presented in the Senate. It reads as follows:
AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM 1946 UP
TO AND INCLUDING 1953
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of the Rules of
Court, any bar candidate who obtained a general average of 70 per cent in any bar
examinations after July 4, 1946 up to the August 1951 Bar examinations; 71 per cent in
the 1952 bar examinations; 72 per cent in the 1953 bar examinations; 73 per cent in the
1954 bar examinations; 74 per cent in 1955 bar examinations without a candidate
obtaining a grade below 50 per cent in any subject, shall be allowed to take and
subscribe the corresponding oath of office as member of the Philippine Bar; Provided,
however, That 75 per cent passing general average shall be restored in all succeeding
examinations; and Provided, finally, That for the purpose of this Act, any exact one-half
or more of a fraction, shall be considered as one and included as part of the next whole
number.
SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any subject in any bar
examination after July 4, 1945 shall be deemed to have passed in such subject or
subjects and such grade or grades shall be included in computing the passing general
average that said candidate may obtain in any subsequent examinations that he may
take.
SEC. 3. This bill shall take effect upon its approval.
With the following explanatory note:
This is a revised Bar bill to meet the objections of the President and to afford another
opportunity to those who feel themselves discriminated by the Supreme Court from 1946
to 1951 when those who would otherwise have passed the bar examination but were
arbitrarily not so considered by altering its previous decisions of the passing mark. The
Supreme Court has been altering the passing mark from 69 in 1947 to 74 in 1951. In
order to cure the apparent arbitrary fixing of passing grades and to give satisfaction to all
parties concerned, it is proposed in this bill a gradual increase in the general averages
for passing the bar examinations as follows; For 1946 to 1951 bar examinations, 70 per
cent; for 1952 bar examination, 71 per cent; for 1953 bar examination, 72 per cent; for
1954 bar examination, 73 percent; and for 1955 bar examination, 74 per cent. Thus in
1956 the passing mark will be restored with the condition that the candidate shall not
obtain in any subject a grade of below 50 per cent. The reason for relaxing the standard
75 per cent passing grade, is the tremendous handicap which students during the years
immediately after the Japanese occupation has to overcome such as the insufficiency of
reading materials and the inadequacy of the preparation of students who took up law
soon after the liberation. It is believed that by 1956 the preparation of our students as
well as the available reading materials will be under normal conditions, if not improved
from those years preceding the last world war.
In this will we eliminated altogether the idea of having our Supreme Court assumed the
supervision as well as the administration of the study of law which was objected to by
the President in the Bar Bill of 1951.

The President in vetoing the Bar Bill last year stated among his objections that the bill
would admit to the practice of law "a special class who failed in the bar examination". He
considered the bill a class legislation. This contention, however, is not, in good
conscience, correct because Congress is merely supplementing what the Supreme
Court have already established as precedent by making as low as 69 per cent the
passing mark of those who took the Bar examination in 1947. These bar candidates for
who this bill should be enacted, considered themselves as having passed the bar
examination on the strength of the established precedent of our Supreme Court and
were fully aware of the insurmountable difficulties and handicaps which they were
unavoidably placed. We believe that such precedent cannot or could not have been
altered, constitutionally, by the Supreme Court, without giving due consideration to the
rights already accrued or vested in the bar candidates who took the examination when
the precedent was not yet altered, or in effect, was still enforced and without being
inconsistent with the principles of their previous resolutions.
If this bill would be enacted, it shall be considered as a simple curative act or corrective
statute which Congress has the power to enact. The requirement of a "valid
classification" as against class legislation, is very expressed in the following American
Jurisprudence:
A valid classification must include all who naturally belong to the class, all who possess
a common disability, attribute, or classification, and there must be a "natural" and
substantial differentiation between those included in the class and those it leaves
untouched. When a class is accepted by the Court as "natural" it cannot be again split
and then have the dissevered factions of the original unit designated with different rules
established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95, N. E. 465 (1926).
Another case penned by Justice Cardozo: "Time with its tides brings new conditions
which must be cared for by new laws. Sometimes the new conditions affect the
members of a class. If so, the correcting statute must apply to all alike. Sometimes the
condition affect only a few. If so, the correcting statute may be as narrow as the
mischief. The constitution does not prohibit special laws inflexibly and always. It permits
them when there are special evils with which the general laws are incompetent to cope.
The special public purpose will sustain the special form. . . . The problem in the last
analysis is one of legislative policy, with a wide margin of discretion conceded to the
lawmakers. Only in the case of plain abuse will there be revision by the court. (In
Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup.
Ct. 431). (1932)
This bill has all the earmarks of a corrective statute which always retroacts to the extent
of the care of correction only as in this case from 1946 when the Supreme Court first
deviated from the rule of 75 per cent in the Rules of Court.
For the foregoing purposes the approval of this bill is earnestly recommended.
(Sgd.) PABLO ANGELES DAVID
Senator
Without much debate, the revised bill was passed by Congress as above transcribed. The
President again asked the comments of this Court, which endorsed the following:
Respectfully returned to the Honorable, the Acting Executive Secretary, Manila, with the
information that, with respect to Senate Bill No. 371, the members of the Court are
taking the same views they expressed on Senate Bill No. 12 passed by Congress in
May, 1951, contained in the first indorsement of the undersigned dated June 5, 1951, to
the Assistant Executive Secretary.
(Sgd.) RICARDO PARAS
The President allowed the period within which the bill should be signed to pass without vetoing
it, by virtue of which it became a law on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered
972 (many times erroneously cited as No. 974).

It may be mentioned in passing that 1953 was an election year, and that both the President and
the author of the Bill were candidates for re-election, together, however, they lost in the polls.
Separate Opinions
LABRADOR, J., concurring and dissenting:
The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.
I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?
I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.
PARAS, C.J., dissenting:
Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.
With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.
Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.
Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.
Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."
All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:
The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.
Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.
The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been

the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would be
ex post facto, would impair obligations and contracts or vested rights or would deny due process
and equal protection of the law. Republic Act No. 972 certainly is not an ex post facto
enactment, does not impair any obligation and contract or vested rights, and denies to no one
the right to due process and equal protection of the law. On the other hand, it is a mere curative
statute intended to correct certain obvious inequalities arising from the adoption by this Court of
different passing general averages in certain years.
Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.
As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.
Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.
Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.
To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this

Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.
I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.
Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.
Separate Opinions
LABRADOR, J., concurring and dissenting:
The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.
I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?
I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.
PARAS, C.J., dissenting:
Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.
With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,

in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.
Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.
In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.
Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.
Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."
All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:
The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.
Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would be
ex post facto, would impair obligations and contracts or vested rights or would deny due process
and equal protection of the law. Republic Act No. 972 certainly is not an ex post facto
enactment, does not impair any obligation and contract or vested rights, and denies to no one
the right to due process and equal protection of the law. On the other hand, it is a mere curative
statute intended to correct certain obvious inequalities arising from the adoption by this Court of
different passing general averages in certain years.
Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.
As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.
Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.
Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947

bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.
To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.
I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.
Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.
Footnotes
1

Designed as Chairman of the Committee of Bar Examiners vice Mr. Justice Roman
Ozaeta, resigned.
2

In 1946 and 1947, the members of the Supreme Court were Hon. Manuel V. Moran,
Chief Justice, Ho. Ricardo Paras, Hon. Felicisimo Feria, Hon. Guillermo F. Pablo, Hon.
Gregorio Perfecto, Ho. Carlos Hilado, Hon. Cesar Bengzon, Hon. Manuel C. Briones,
Hon. Jose Hontiveros, Hon. Sabino Padilla, and Hon. Pedro Tuason, Associate Justices.
In 1948, Justices Marcelino R. Montemayor and Alex. Reyes took the place of Justice
Hilado, resigned, and Hontiveros, retired. Justice Roman Ozaeta was returned to the
Court and Justice Sabino Padilla was appointed Secretary of Justice. In June, 1949,
Justice Padilla was returned to the Tribunal, as Justice Briones resigned. In October,
1950, Justices Fernando Jugo and Felix Bautista Angelo were appointed to t he Court,
as Justice Perfecto Jugo and Felix Bautista Angelo were appointed to the Court, as
Justice Perfecto had died, and Justice Ozaeta had resigned. In 1951, Chief Justice
Manuel V. Moran resigned and Justice Ricardo Paras was appointed Chief Justice. In
1953, Justice Felicisimo R. Feria retired.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
January 9, 1973
IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE PHILIPPINES.
RESOLUTION
PER CURIAM:
On December 1, 1972, the Commission on Bar Integration 1 submitted its Report dated
November 30, 1972, with the "earnest recommendation" on the basis of the said Report and
the proceedings had in Administrative Case No. 526 2 of the Court, and "consistently with the
views and counsel received from its [the Commission's] Board of Consultants, as well as the
overwhelming nationwide sentiment of the Philippine Bench and Bar" that "this Honorable
Court ordain the integration of the Philippine Bar as soon as possible through the adoption and
promulgation of an appropriate Court Rule."
The petition in Adm. Case No. 526 formally prays the Court to order the integration of the
Philippine Bar, after due hearing, giving recognition as far as possible and practicable to existing
provincial and other local Bar associations. On August 16, 1962, arguments in favor of as well
as in opposition to the petition were orally expounded before the Court. Written oppositions
were admitted, 3 and all parties were thereafter granted leave to file written memoranda. 4
Since then, the Court has closely observed and followed significant developments relative to the
matter of the integration of the Bar in this jurisdiction.
In 1970, convinced from preliminary surveys that there had grown a strong nationwide
sentiment in favor of Bar integration, the Court created the Commission on Bar Integration for
the purpose of ascertaining the advisability of unifying the Philippine Bar.
In September, 1971, Congress passed House Bill No. 3277 entitled "An Act Providing for the
Integration of the Philippine Bar, and Appropriating Funds Therefor." The measure was signed
by President Ferdinand E. Marcos on September 17, 1971 and took effect on the same day as
Rep. Act 6397. This law provides as follows:
SECTION 1. Within two years from the approval of this Act, the Supreme Court
may adopt rules of court to effect the integration of the Philippine Bar under such
conditions as it shall see fit in order to raise the standards of the legal profession,
improve the administration of justice, and enable the Bar to discharge its public
responsibility more effectively.
SEC. 2. The sum of five hundred thousand pesos is hereby appropriated, out of
any funds in the National Treasury not otherwise appropriated, to carry out the
purposes of this Act. Thereafter, such sums as may be necessary for the same
purpose shall be included in the annual appropriations for the Supreme Court.
SEC. 3. This Act shall take effect upon its approval.
The Report of the Commission abounds with argument on the constitutionality of Bar integration
and contains all necessary factual data bearing on the advisability (practicability and necessity)
of Bar integration. Also embodied therein are the views, opinions, sentiments, comments and
observations of the rank and file of the Philippine lawyer population relative to Bar integration,
as well as a proposed integration Court Rule drafted by the Commission and presented to them
by that body in a national Bar plebiscite. There is thus sufficient basis as well as ample material
upon which the Court may decide whether or not to integrate the Philippine Bar at this time.
The following are the pertinent issues:
(1) Does the Court have the power to integrate the Philippine Bar?
(2) Would the integration of the Bar be constitutional?

(3) Should the Court ordain the integration of the Bar at this time?
A resolution of these issues requires, at the outset, a statement of the meaning of Bar
integration. It will suffice, for this purpose, to adopt the concept given by the Commission on Bar
Integration on pages 3 to 5 of its Report, thus:
Integration of the Philippine Bar means the official unification of the entire lawyer
population of the Philippines. This requires membership and financial support (in
reasonable amount) of every attorney as conditions sine qua non to the practice
of law and the retention of his name in the Roll of Attorneys of the Supreme
Court.
The term "Bar" refers to the collectivity of all persons whose names appear in the
Roll of Attorneys. An Integrated Bar (or Unified Bar) perforce must include all
lawyers.
Complete unification is not possible unless it is decreed by an entity with power
to do so: the State. Bar integration, therefore, signifies the setting up by
Government authority of a national organization of the legal profession based on
the recognition of the lawyer as an officer of the court.
Designed to improve the position of the Bar as an instrumentality of justice and
the Rule of Law, integration fosters cohesion among lawyers, and ensures,
through their own organized action and participation, the promotion of the
objectives of the legal profession, pursuant to the principle of maximum Bar
autonomy with minimum supervision and regulation by the Supreme Court.
The purposes of an integrated Bar, in general, are:
(1) Assist in the administration of justice;
(2) Foster and maintain on the part of its members high ideals of integrity,
learning, professional competence, public service and conduct;
(3) Safeguard the professional interests of its members;
(4) Cultivate among its members a spirit of cordiality and brotherhood;
(5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading,
practice and procedure, and the relations of the Bar to the Bench and to the
public, and publish information relating thereto;
(6) Encourage and foster legal education;
(7) Promote a continuing program of legal research in substantive and adjective
law, and make reports and recommendations thereon; and
(8) Enable the Bar to discharge its public responsibility effectively.
Integration of the Bar will, among other things, make it possible for the legal
profession to:
(1) Render more effective assistance in maintaining the Rule of Law;
(2) Protect lawyers and litigants against the abuse of tyrannical judges and
prosecuting officers;
(3) Discharge, fully and properly, its responsibility in the disciplining and/or
removal of incompetent and unworthy judges and prosecuting officers;
(4) Shield the judiciary, which traditionally cannot defend itself except within its
own forum, from the assaults that politics and self-interest may level at it, and
assist it to maintain its integrity, impartiality and independence;
(5) Have an effective voice in the selection of judges and prosecuting officers;
(6) Prevent the unauthorized practice of law, and break up any monopoly of local
practice maintained through influence or position;
(7) Establish welfare funds for families of disabled and deceased lawyers;

(8) Provide placement services, and establish legal aid offices and set up lawyer
reference services throughout the country so that the poor may not lack
competent legal service;
(9) Distribute educational and informational materials that are difficult to obtain in
many of our provinces;
(10) Devise and maintain a program of continuing legal education for practising
attorneys in order to elevate the standards of the profession throughout the
country;
(11) Enforce rigid ethical standards, and promulgate minimum fees schedules;
(12) Create law centers and establish law libraries for legal research;
(13) Conduct campaigns to educate the people on their legal rights and
obligations, on the importance of preventive legal advice, and on the functions
and duties of the Filipino lawyer; and
(14) Generate and maintain pervasive and meaningful country-wide involvement
of the lawyer population in the solution of the multifarious problems that afflict the
nation.
Anent the first issue, the Court is of the view that it may integrate the Philippine Bar in the
exercise of its power, under Article VIII, Sec. 13 of the Constitution, "to promulgate rules
concerning pleading, practice, and procedure in all courts, and the admission to the practice of
law." Indeed, the power to integrate is an inherent part of the Court's constitutional authority
over the Bar. In providing that "the Supreme Court may adopt rules of court to effect the
integration of the Philippine Bar," Republic Act 6397 neither confers a new power nor restricts
the Court's inherent power, but is a mere legislative declaration that the integration of the Bar
will promote public interest or, more specifically, will "raise the standards of the legal profession,
improve the administration of justice, and enable the Bar to discharge its public responsibility
more effectively."
Resolution of the second issue whether the unification of the Bar would be constitutional
hinges on the effects of Bar integration on the lawyer's constitutional rights of freedom of
association and freedom of speech, and on the nature of the dues exacted from him.
The Court approvingly quotes the following pertinent discussion made by the Commission on
Bar Integration pages 44 to 49 of its Report:
Constitutionality of Bar Integration
Judicial Pronouncements.
In all cases where the validity of Bar integration measures has been put in issue,
the Courts have upheld their constitutionality.
The judicial pronouncements support this reasoning:
Courts have inherent power to supervise and regulate the practice of law.
The practice of law is not a vested right but a privilege; a privilege, moreover,
clothed with public interest, because a lawyer owes duties not only to his client,
but also to his brethren in the profession, to the courts, and to the nation; and
takes part in one of the most important functions of the State, the administration
of justice, as an officer of the court.
Because the practice of law is privilege clothed with public interest, it is far and
just that the exercise of that privilege be regulated to assure compliance with the
lawyer's public responsibilities.
These public responsibilities can best be discharged through collective action;
but there can be no collective action without an organized body; no organized
body can operate effectively without incurring expenses; therefore, it is fair and
just that all attorneys be required to contribute to the support of such organized
body; and, given existing Bar conditions, the most efficient means of doing so is
by integrating the Bar through a rule of court that requires all lawyers to pay
annual dues to the Integrated Bar.

1. Freedom of Association.
To compel a lawyer to be a member of an integrated Bar is not violative of his
constitutional freedom to associate (or the corollary right not to associate).
Integration does not make a lawyer a member of any group of which he is not
already a member. He became a member of the Bar when he passed the Bar
examinations. All that integration actually does is to provide an official national
organization for the well-defined but unorganized and incohesive group of which
every lawyer is already a member.
Bar integration does not compel the lawyer to associate with anyone. He is free
to attend or not attend the meetings of his Integrated Bar Chapter or vote or
refuse to vote in its elections as he chooses. The body compulsion to which he is
subjected is the payment of annual dues.
Otherwise stated, membership in the Unified Bar imposes only the duty to pay
dues in reasonable amount. The issue therefore, is a question of compelled
financial support of group activities, not involuntary membership in any other
aspect.
The greater part of Unified Bar activities serves the function of elevating the
educational and ethical standards of the Bar to the end of improving the quality of
the legal service available to the people. The Supreme Court, in order to further
the State's legitimate interest in elevating the quality of professional services,
may require that the cost of improving the profession in this fashion be shared by
the subjects and beneficiaries of the regulatory program the lawyers.
Assuming that Bar integration does compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an exercise of the police power of
the State. The legal profession has long been regarded as a proper subject of
legislative regulation and control. Moreover, the inherent power of the Supreme
Court to regulate the Bar includes the authority to integrate the Bar.
2. Regulatory Fee.
For the Court to prescribe dues to be paid by the members does not mean that
the Court levies a tax.
A membership fee in the Integrated Bar is an exaction for regulation, while the
purpose of a tax is revenue. If the Court has inherent power to regulate the Bar, it
follows that as an incident to regulation, it may impose a membership fee for that
purpose. It would not be possible to push through an Integrated Bar program
without means to defray the concomitant expenses. The doctrine of implied
powers necessarily includes the power to impose such an exaction.
The only limitation upon the State's power to regulate the Bar is that the
regulation does not impose an unconstitutional burden. The public interest
promoted by the integration of the Bar far outweighs the inconsequential
inconvenience to a member that might result from his required payment of annual
dues.
3. Freedom of Speech.
A lawyer is free, as he has always been, to voice his views on any subject in any
manner he wishes, even though such views be opposed to positions taken by the
Unified Bar.
For the Integrated Bar to use a member's due to promote measures to which said
member is opposed, would not nullify or adversely affect his freedom of speech.
Since a State may constitutionally condition the right to practice law upon
membership in the Integrated Bar, it is difficult to understand why it should
become unconstitutional for the Bar to use the member's dues to fulfill the very
purposes for which it was established.
The objection would make every Governmental exaction the material of a "free
speech" issue. Even the income tax would be suspect. The objection would carry

us to lengths that have never been dreamed of. The conscientious objector, if his
liberties were to be thus extended, might refuse to contribute taxes in furtherance
of war or of any other end condemned by his conscience as irreligious or
immoral. The right of private judgment has never yet been exalted above the
powers and the compulsion of the agencies of Government.
4. Fair to All Lawyers.
Bar integration is not unfair to lawyers already practising because although the
requirement to pay annual dues is a new regulation, it will give the members of
the Bar a new system which they hitherto have not had and through which, by
proper work, they will receive benefits they have not heretofore enjoyed, and
discharge their public responsibilities in a more effective manner than they have
been able to do in the past. Because the requirement to pay dues is a valid
exercise of regulatory power by the Court, because it will apply equally to all
lawyers, young and old, at the time Bar integration takes effect, and because it is
a new regulation in exchange for new benefits, it is not retroactive, it is not
unequal, it is not unfair.
To resolve the third and final issue whether the Court should ordain the integration of the Bar
at this time requires a careful overview of the practicability and necessity as well as the
advantages and disadvantages of Bar integration.
In many other jurisdictions, notably in England, Canada and the United States, Bar integration
has yielded the following benefits: (1) improved discipline among the members of the Bar; (2)
greater influence and ascendancy of the Bar; (3) better and more meaningful participation of the
individual lawyer in the activities of the Integrated Bar; (4) greater Bar facilities and services; (5)
elimination of unauthorized practice; (6) avoidance of costly membership campaigns; (7)
establishment of an official status for the Bar; (8) more cohesive profession; and (9) better and
more effective discharge by the Bar of its obligations and responsibilities to its members, to the
courts, and to the public. No less than these salutary consequences are envisioned and in fact
expected from the unification of the Philippine Bar.
Upon the other hand, it has been variously argued that in the event of integration, Government
authority will dominate the Bar; local Bar associations will be weakened; cliquism will be the
inevitable result; effective lobbying will not be possible; the Bar will become an impersonal Bar;
and politics will intrude into its affairs.
It is noteworthy, however, that these and other evils prophesied by opponents of Bar integration
have failed to materialize in over fifty years of Bar integration experience in England, Canada
and the United States. In all the jurisdictions where the Integrated Bar has been tried, none of
the abuses or evils feared has arisen; on the other hand, it has restored public confidence in the
Bar, enlarged professional consciousness, energized the Bar's responsibilities to the public, and
vastly improved the administration of justice.
How do the Filipino lawyers themselves regard Bar integration? The official statistics compiled
by the Commission on Bar integration show that in the national poll recently conducted by the
Commission in the matter of the integration of the Philippine Bar, of a total of 15,090 lawyers
from all over the archipelago who have turned in their individual responses, 14,555 (or 96.45 per
cent) voted in favor of Bar integration, while only 378 (or 2.51 per cent) voted against it, and 157
(or 1.04 per cent) are non-commital. In addition, a total of eighty (80) local Bar association and
lawyers' groups all over the Philippines have submitted resolutions and other expressions of
unqualified endorsement and/or support for Bar integration, while not a single local Bar
association or lawyers' group has expressed opposed position thereto. Finally, of the 13,802
individual lawyers who cast their plebiscite ballots on the proposed integration Court Rule
drafted by the Commission, 12,855 (or 93.14 per cent) voted in favor thereof, 662 (or 4.80 per
cent) vote against it, and 285 (or 2.06 per cent) are non-committal. 5 All these clearly indicate an
overwhelming nationwide demand for Bar integration at this time.
The Court is fully convinced, after a thoroughgoing conscientious study of all the arguments
adduced in Adm. Case No. 526 and the authoritative materials and the mass of factual data
contained in the exhaustive Report of the Commission on Bar Integration, that the integration of
the Philippine Bar is "perfectly constitutional and legally unobjectionable," within the context of
contemporary conditions in the Philippines, has become an imperative means to raise the

standards of the legal profession, improve the administration of justice, and enable the Bar to
discharge its public responsibility fully and effectively.
ACCORDINGLY, the Court, by virtue of the power vested in it by Section 13 of Article VIII of the
Constitution, hereby ordains the integration of the Bar of the Philippines in accordance with the
attached COURT RULE, effective on January 16, 1973.
Concepcion, C.J., Makalintal, Zaldivar, Castillo, Fernando, Teehankee, Barredo, Makasiar,
Antonio and Esguerra, JJ., concur.
Footnotes
1 Created by Supreme Court Resolution of October 5, 1970 "for the purpose of
ascertaining the advisability of the integration of the Bar in this jurisdiction," the
Commission is composed of Supreme Court Associate Justice Fred Ruiz Castro
(Chairman), Senator Jose J. Roy, retired Supreme Court Associate Justice
Conrado V. Sanchez, Supreme Court Associate Justice (then Court of Appeals
Presiding Justice) Salvador V. Esguerra, U. P. Law Center Director Crisolito
Pascual, Ex-Senator Tecla San Andres Ziga, and San Beda Law Dean and
Constitutional Convention Delegate Feliciano Jover Ledesma (Members).
2 Filed on July 11, 1962 (by a Committee composed of Jose W. Diokno, Roman
Ozaeta, Jose P. Carag, Eugenio Villanueva, Jr. and Leo A. Panuncialman), the
petition represented the unanimous consensus of 53 Bar Associations (from all
over the Philippines) reached in convention at the Far Eastern University
Auditorium in Manila on June 23, 1962.
3 Written oppositions were submitted by Attys. Cesar Fajardo and Vicente L.
Arcega, the Camarines Norte Lawyers League, Atty. Fructuoso S. Villarin, the
Camarines Sur Bar Association and the Manila Bar Association.
4 The Petitioners and the Negros Occidental Bar Association submitted
memoranda in favor of Bar integration, while the Manila Bar Association
submitted a memoranda opposing Bar integration.
5 All figures are as of January 8, 1973.

Whether or not the petitioner, a Filipino who got a license to practice law in Spain,
can successfully invoke the Treaty on Academic Degrees and Exercise of
Professions between Spain and Philippines
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
August 15, 1961
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar
without taking the examination. ARTURO EFREN GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without
submitting to the required bar examinations. In his verified petition, he avers, among others, that
he is a Filipino citizen born in Bacolor City, Province of Negros Occidental, of Filipino parentage;
that he had taken and finished in Spain, the course of "Bachillerato Superior"; that he was
approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central
University of Madrid where he studied and finished the law course graduating there as
"Licenciado En Derecho"; that thereafter he was allowed to practice the law profession in Spain;
and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions
between the Republic of the Philippines and the Spanish state, he is entitled to practice the law
profession in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition on the following grounds:
(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between
the Republic of the Philippines and the Spanish State can not be invoked by applicant. Under
Article 11 thereof;
The Nationals of each of the two countries who shall have obtained recognition of the
validity of their academic degrees by virtue of the stipulations of this Treaty, can practice
their professions within the territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens
desiring to practice their profession in Spain, and the citizens of Spain desiring to practice their
professions in the Philippines. Applicant is a Filipino citizen desiring to practice the legal
profession in the Philippines. He is therefore subject to the laws of his own country and is not
entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or diplomas to practice
the liberal professions in either of the Contracting States, issued by competent national
authorities, shall be deemed competent to exercise said professions in the territory of the
Other, subject to the laws and regulations of the latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made
expressly subject to the laws and regulations of the contracting State in whose territory it is
desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections
2,9, and 16 thereof, which have the force of law, require that before anyone can practice the
legal profession in the Philippine he must first successfully pass the required bar examinations;
and
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the
Spanish State could not have been intended to modify the laws and regulations governing
admission to the practice of law in the Philippines, for the reason that the Executive Department
may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules
for admission to the practice of law in the Philippines, the lower to repeal, alter or supplement
such rules being reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil.
Constitution).
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ.,
concur.
Bautista Angelo, J., on leave, took no part.
Concepcion, J., took no part.

Whether or not Estanislao Bayot can be made liable for violation of Ex. 25,
Rule 127 prohibiting the blatant advertisement made in the newspaper about
his skills
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. L-1117

March 20, 1944

THE DIRECTOR OF RELIGIOUS AFFAIRS, complainant,


vs.
ESTANISLAO R. BAYOT, respondent.
Office of the Solicitor General De la Costa and Solicitor Feria for complainant.
Francisco Claravall for respondent.
OZAETA, J.:
The respondent, who is an attorney-at-law, is charged with malpractice for having published an
advertisement in the Sunday Tribune of June 13, 1943, which reads as follows:
Marriage
license promptly secured thru our assistance & the annoyance of delay or publicity
avoided if desired, and marriage arranged to wishes of parties. Consultation on any
matter free for the poor. Everything confidential.
Legal assistance service
12 Escolta, Manila, Room, 105
Tel. 2-41-60.
Appearing in his own behalf, respondent at first denied having published the said advertisement;
but subsequently, thru his attorney, he admitted having caused its publication and prayed for
"the indulgence and mercy" of the Court, promising "not to repeat such professional misconduct
in the future and to abide himself to the strict ethical rules of the law profession." In further
mitigation he alleged that the said advertisement was published only once in the Tribune and
that he never had any case at law by reason thereof.
Upon that plea the case was submitted to the Court for decision.
It is undeniable that the advertisement in question was a flagrant violation by the respondent of
the ethics of his profession, it being a brazen solicitation of business from the public. Section 25
of Rule 127 expressly provides among other things that "the practice of soliciting cases at law
for the purpose of gain, either personally or thru paid agents or brokers, constitutes
malpractice." It is highly unethical for an attorney to advertise his talents or skill as a merchant
advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his
profession who stoops to and adopts the practices of mercantilism by advertising his services or
offering them to the public. As a member of the bar, he defiles the temple of justice with
mercenary activities as the money-changers of old defiled the temple of Jehovah. "The most
worth and effective advertisement possible, even for a young lawyer, . . . is the establishment of
a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but
must be the outcome of character and conduct." (Canon 27, Code of Ethics.)
In In re Tagorda, 53 Phil., the respondent attorney was suspended from the practice of law for
the period of one month for advertising his services and soliciting work from the public by writing
circular letters. That case, however, was more serious than this because there the solicitations
were repeatedly made and were more elaborate and insistent.
Considering his plea for leniency and his promise not to repeat the misconduct, the Court is of
the opinion and so decided that the respondent should be, as he hereby is, reprimanded.
Yulo, C.J., Moran, Horrilleno, Paras and Bocobo, JJ., concur.

Whether or not petitioner Dacanay can be allowed to resume his practice


of law in the Philippines notwithstanding the fact the he had been a
Canadian citizen
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
B.M. No. 1678

December 17, 2007

PETITION FOR LEAVE TO RESUME PRACTICE OF LAW,


BENJAMIN M. DACANAY, petitioner.
RESOLUTION
CORONA, J.:
This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to resume the
practice of law.
Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he migrated
to Canada in December 1998 to seek medical attention for his ailments. He subsequently
applied for Canadian citizenship to avail of Canadas free medical aid program. His application
was approved and he became a Canadian citizen in May 2004.
On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and ReAcquisition Act of 2003), petitioner reacquired his Philippine citizenship.1 On that day, he took
his oath of allegiance as a Filipino citizen before the Philippine Consulate General in Toronto,
Canada. Thereafter, he returned to the Philippines and now intends to resume his law practice.
There is a question, however, whether petitioner Benjamin M. Dacanay lost his membership in
the Philippine bar when he gave up his Philippine citizenship in May 2004. Thus, this petition.
In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule 138
(Attorneys and Admission to Bar) of the Rules of Court:
SECTION 2. Requirements for all applicants for admission to the bar. Every applicant
for admission as a member of the bar must be a citizen of the Philippines, at least
twenty-one years of age, of good moral character, and a resident of the Philippines; and
must produce before the Supreme Court satisfactory evidence of good moral character,
and that no charges against him, involving moral turpitude, have been filed or are
pending in any court in the Philippines.
Applying the provision, the Office of the Bar Confidant opines that, by virtue of his reacquisition
of Philippine citizenship, in 2006, petitioner has again met all the qualifications and has none of
the disqualifications for membership in the bar. It recommends that he be allowed to resume the
practice of law in the Philippines, conditioned on his retaking the lawyers oath to remind him of
his duties and responsibilities as a member of the Philippine bar.
We approve the recommendation of the Office of the Bar Confidant with certain modifications.
The practice of law is a privilege burdened with conditions.2 It is so delicately affected with
public interest that it is both a power and a duty of the State (through this Court) to control and
regulate it in order to protect and promote the public welfare.3
Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality,
faithful observance of the rules of the legal profession, compliance with the mandatory
continuing legal education requirement and payment of membership fees to the Integrated Bar
of the Philippines (IBP) are the conditions required for membership in good standing in the bar
and for enjoying the privilege to practice law. Any breach by a lawyer of any of these conditions
makes him unworthy of the trust and confidence which the courts and clients repose in him for
the continued exercise of his professional privilege.4
Section 1, Rule 138 of the Rules of Court provides:
SECTION 1. Who may practice law. Any person heretofore duly admitted as a member
of the bar, or thereafter admitted as such in accordance with the provisions of this Rule,
and who is in good and regular standing, is entitled to practice law.
Pursuant thereto, any person admitted as a member of the Philippine bar in accordance with the
statutory requirements and who is in good and regular standing is entitled to practice law.

Admission to the bar requires certain qualifications. The Rules of Court mandates that an
applicant for admission to the bar be a citizen of the Philippines, at least twenty-one years of
age, of good moral character and a resident of the Philippines.5 He must also produce before
this Court satisfactory evidence of good moral character and that no charges against him,
involving moral turpitude, have been filed or are pending in any court in the Philippines.6
Moreover, admission to the bar involves various phases such as furnishing satisfactory proof of
educational, moral and other qualifications;7 passing the bar examinations;8 taking the lawyers
oath9 and signing the roll of attorneys and receiving from the clerk of court of this Court a
certificate of the license to practice.10
The second requisite for the practice of law membership in good standing is a continuing
requirement. This means continued membership and, concomitantly, payment of annual
membership dues in the IBP;11 payment of the annual professional tax;12 compliance with the
mandatory continuing legal education requirement;13 faithful observance of the rules and ethics
of the legal profession and being continually subject to judicial disciplinary control.14
Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law in the
Philippines? No.
The Constitution provides that the practice of all professions in the Philippines shall be limited to
Filipino citizens save in cases prescribed by law.15 Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates membership in the Philippine bar and,
consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino
citizenship ipso jure terminates the privilege to practice law in the Philippines. The practice of
law is a privilege denied to foreigners.16
The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of
another country but subsequently reacquired pursuant to RA 9225. This is because "all
Philippine citizens who become citizens of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of [RA 9225]."17 Therefore, a Filipino lawyer who
becomes a citizen of another country is deemed never to have lost his Philippine citizenship if
he reacquires it in accordance with RA 9225. Although he is also deemed never to have
terminated his membership in the Philippine bar, no automatic right to resume law practice
accrues.
Under RA 9225, if a person intends to practice the legal profession in the Philippines and he
reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the proper
authority for a license or permit to engage in such practice."18 Stated otherwise, before a lawyer
who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must
first secure from this Court the authority to do so, conditioned on:
(a) the updating and payment in full of the annual membership dues in the IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit hours of mandatory continuing legal education;
this is specially significant to refresh the applicant/petitioners knowledge of Philippine
laws and update him of legal developments and
(d) the retaking of the lawyers oath which will not only remind him of his duties and
responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to
maintain allegiance to the Republic of the Philippines.
Compliance with these conditions will restore his good standing as a member of the Philippine
bar.
WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED, subject to
compliance with the conditions stated above and submission of proof of such compliance to the
Bar Confidant, after which he may retake his oath as a member of the Philippine bar.
SO ORDERED.
Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales,
Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur.
Quisumbing, J., on leave.

Footnotes
1

As evidence thereof, he submitted a copy of his Identification Certificate No. 07-16912


duly signed by Immigration Commissioner Marcelino C. Libanan.
2

In the Matter of the IBP Membership Dues Deliquency of Atty. Marcial A. Edillon, A.C.
No. 1928, 19 December 1980, 101 SCRA 612.
3

Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA 329.

In re Atty. Marcial Edillon, A.C. No. 1928, 03 August 1978, 84 SCRA 554.

Section 2, Rule 138, Rules of Court.

Id.

Sections 2, 5 and 6, id.

Sections 8 to 11 and 14, id.

Section 17, id.

10

Sections 18 and 19, id.

11

In re Integration of the Bar of the Philippines, 09 January 1973, 49 SCRA 22; In re


Atty. Marcial Edillon, supra note 3.
12

Section 139, RA 7160.

13

Resolution dated August 8, 2000 in Bar Matter No. 850 (Rules on Mandatory
Continuing Legal Education for Members of the IBP).
14

Philippine Association of Free Labor Unions v. Binalbagan Isabela Sugar Co., G.R.
No. L-23959, 29 November 1971, 42 SCRA 302.
15

See last paragraph of Section 14, Article XII.

16

In re Bosque, 1 Phil. 88 (1902).

17

Section 2, RA 9225. Emphasis supplied.

18

Section 5(4), id.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
BAR MATTER No. 914 October 1, 1999
RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father
validly elect Philippine citizenship fourteen (14) years after he has reached the age of majority?
This is the question sought to be resolved in the present case involving the application for
admission to the Philippine Bar of Vicente D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and Prescila
A. Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11 April 1964. Since his
birth, Ching has resided in the Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St. Louis
University in Baguio City, filed an application to take the 1998 Bar Examinations. In a Resolution
of this Court, dated 1 September 1998, he was allowed to take the Bar Examinations, subject to
the condition that he must submit to the Court proof of his Philippine citizenship.
In compliance with the above resolution, Ching submitted on 18 November 1998, the following
documents:
1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the
Professional Regulations Commission showing that Ching is a certified public
accountant;
2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo,
Election Officer of the Commission on Elections (COMELEC) in Tubao La Union
showing that Ching is a registered voter of the said place; and
3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo,
showing that Ching was elected as a member of the Sangguniang Bayan of
Tubao, La Union during the 12 May 1992 synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was one of
the successful Bar examinees. The oath-taking of the successful Bar examinees was scheduled
on 5 May 1999. However, because of the questionable status of Ching's citizenship, he was not
allowed to take his oath. Pursuant to the resolution of this Court, dated 20 April 1999, he was
required to submit further proof of his citizenship. In the same resolution, the Office of the
Solicitor General (OSG) was required to file a comment on Ching's petition for admission to the
bar and on the documents evidencing his Philippine citizenship.
The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate child of a
Chinese father and a Filipino mother born under the 1935 Constitution was a Chinese citizen
and continued to be so, unless upon reaching the age of majority he elected Philippine
citizenship" 1 in strict compliance with the provisions of Commonwealth Act No. 625 entitled "An
Act Providing for the Manner in which the Option to Elect Philippine Citizenship shall be
Declared by a Person Whose Mother is a Filipino Citizen." The OSG adds that "(w)hat he
acquired at best was only an inchoate Philippine citizenship which he could perfect by election
upon reaching the age of majority." 2 In this regard, the OSG clarifies that "two (2) conditions
must concur in order that the election of Philippine citizenship may be effective, namely: (a) the
mother of the person making the election must be a citizen of the Philippines; and (b) said

election must be made upon reaching the age of majority." 3 The OSG then explains the
meaning of the phrase "upon reaching the age of majority:"
The clause "upon reaching the age of majority" has been construed to mean a
reasonable time after reaching the age of majority which had been interpreted by
the Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op.,
Sec. of Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended
under certain circumstances, as when a (sic) person concerned has always
considered himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12,
46, 86 and 97, s. 1953). But in Cuenco, it was held that an election done after
over seven (7) years was not made within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected Philippine citizenship and,
if ever he does, it would already be beyond the "reasonable time" allowed by present
jurisprudence. However, due to the peculiar circumstances surrounding Ching's case, the OSG
recommends the relaxation of the standing rule on the construction of the phrase "reasonable
period" and the allowance of Ching to elect Philippine citizenship in accordance with C.A. No.
625 prior to taking his oath as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election of
Philippine Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his Manifestation,
Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently declared myself as one in my
school records and other official documents;
3. I am practicing a profession (Certified Public Accountant) reserved for Filipino
citizens;
4. I participated in electoral process[es] since the time I was eligible to vote;
5. I had served the people of Tubao, La Union as a member of the Sangguniang
Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with
Commonwealth Act No. 625;
7. My election was expressed in a statement signed and sworn to by me before a
notary public;
8. I accompanied my election of Philippine citizenship with the oath of allegiance
to the Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to (sic)
the Civil Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999, the question raised is
whether he has elected Philippine citizenship within a "reasonable time." In the affirmative,
whether his citizenship by election retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution. Under Article
IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino
mother and an alien father followed the citizenship of the father, unless, upon reaching the age
of majority, the child elected Philippine citizenship. 4 This right to elect Philippine citizenship was
recognized in the 1973 Constitution when it provided that "(t)hose who elect Philippine
citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five" are
citizens of the Philippines. 5 Likewise, this recognition by the 1973 Constitution was carried over
to the 1987 Constitution which states that "(t)hose born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon reaching the age of majority" are Philippine
citizens. 6 It should be noted, however, that the 1973 and 1987 Constitutional provisions on the
election of Philippine citizenship should not be understood as having a curative effect on any
irregularity in the acquisition of citizenship for those covered by the 1935 Constitution. 7 If the
citizenship of a person was subject to challenge under the old charter, it remains subject to

challenge under the new charter even if the judicial challenge had not been commenced before
the effectivity of the new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution,
prescribes the procedure that should be followed in order to make a valid election of Philippine
citizenship. Under Section 1 thereof, legitimate children born of Filipino mothers may elect
Philippine citizenship by expressing such intention "in a statement to be signed and sworn to by
the party concerned before any officer authorized to administer oaths, and shall be filed with the
nearest civil registry. The said party shall accompany the aforesaid statement with the oath of
allegiance to the Constitution and the Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within which
the election of Philippine citizenship should be made. The 1935 Charter only provides that the
election should be made "upon reaching the age of majority." The age of majority then
commenced upon reaching twenty-one (21) years. 9 In the opinions of the Secretary of Justice
on cases involving the validity of election of Philippine citizenship, this dilemma was resolved by
basing the time period on the decisions of this Court prior to the effectivity of the 1935
Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn,
based on the pronouncements of the Department of State of the United States Government to
the effect that the election should be made within a "reasonable time" after attaining the age of
majority. 10 The phrase "reasonable time" has been interpreted to mean that the election should
be made within three (3) years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year
period is not an inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable period after
reaching the age of majority, and that the Secretary of Justice has ruled that
three (3) years is the reasonable time to elect Philippine citizenship under the
constitutional provision adverted to above, which period may be extended under
certain circumstances, as when the person concerned has always considered
himself a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect Philippine citizenship
is not indefinite:
Regardless of the foregoing, petitioner was born on February 16, 1923. He
became of age on February 16, 1944. His election of citizenship was made on
May 15, 1951, when he was over twenty-eight (28) years of age, or over seven
(7) years after he had reached the age of majority. It is clear that said election
has not been made "upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35) years
old when he complied with the requirements of C.A. No. 625 on 15 June 1999, or over fourteen
(14) years after he had reached the age of majority. Based on the interpretation of the phrase
"upon reaching the age of majority," Ching's election was clearly beyond, by any reasonable
yardstick, the allowable period within which to exercise the privilege. It should be stated, in this
connection, that the special circumstances invoked by Ching, i.e., his continuous and
uninterrupted stay in the Philippines and his being a certified public accountant, a registered
voter and a former elected public official, cannot vest in him Philippine citizenship as the law
specifically lays down the requirements for acquisition of Philippine citizenship by election.
Definitely, the so-called special circumstances cannot constitute what Ching erroneously labels
as informal election of citizenship. Ching cannot find a refuge in the case of In re: Florencio
Mallare, 15 the pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were (sic) legally married to an
alien, Esteban's exercise of the right of suffrage when he came of age,
constitutes a positive act of election of Philippine citizenship. It has been
established that Esteban Mallare was a registered voter as of April 14, 1928, and
that as early as 1925 (when he was about 22 years old), Esteban was already
participating in the elections and campaigning for certain candidate[s]. These
acts are sufficient to show his preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein are
very different from those in the present case, thus, negating its applicability. First, Esteban

Mallare was born before the effectivity of the 1935 Constitution and the enactment of C.A. No.
625. Hence, the requirements and procedures prescribed under the 1935 Constitution and C.A.
No. 625 for electing Philippine citizenship would not be applicable to him. Second, the ruling in
Mallare was an obiter since, as correctly pointed out by the OSG, it was not necessary for
Esteban Mallare to elect Philippine citizenship because he was already a Filipino, he being a
natural child of a Filipino mother. In this regard, the Court stated:
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a
Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332;
Santos Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs.
Republic, L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16,
1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be
taken on the erroneous belief that he is a non-filipino divest him of the citizenship
privileges to which he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the
House of Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal and an informal
process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that
the exercise of the right of suffrage and the participation in election exercises
constitute a positive act of election of Philippine citizenship. In the exact
pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age
constitutes a positive act of Philippine citizenship. (p. 52:
emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has established
his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be excepted to
have elected Philippine citizenship as they were already citizens, we apply the In
Re Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is a requirement for those who
still have to elect citizenship. For those already Filipinos when the time to elect
came up, there are acts of deliberate choice which cannot be less binding.
Entering a profession open only to Filipinos, serving in public office where
citizenship is a qualification, voting during election time, running for public office,
and other categorical acts of similar nature are themselves formal manifestations
for these persons.
An election of Philippine citizenship presupposes that the person electing is an
alien. Or his status is doubtful because he is a national of two countries. There is
no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one
(21).
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted
in an absurdity. How can a Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we consider
the special circumstances in the life of Ching like his having lived in the Philippines all his life
and his consistent belief that he is a Filipino, controlling statutes and jurisprudence constrain us
to disagree with the recommendation of the OSG. Consequently, we hold that Ching failed to
validly elect Philippine citizenship. The span of fourteen (14) years that lapsed from the time he
reached the age of majority until he finally expressed his intention to elect Philippine citizenship
is clearly way beyond the contemplation of the requirement of electing "upon reaching the age
of majority." Moreover, Ching has offered no reason why he delayed his election of Philippine
citizenship. The prescribed procedure in electing Philippine citizenship is certainly not a tedious
and painstaking process. All that is required of the elector is to execute an affidavit of election of

Philippine citizenship and, thereafter, file the same with the nearest civil registry. Ching's
unreasonable and unexplained delay in making his election cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed when needed
and suppressed when convenient. 20 One who is privileged to elect Philippine citizenship has
only an inchoate right to such citizenship. As such, he should avail of the right with fervor,
enthusiasm and promptitude. Sadly, in this case, Ching slept on his opportunity to elect
Philippine citizenship and, as a result. this golden privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for
admission to the Philippine Bar.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Footnotes
1 Citing Cu vs. Republic of the Philippines, 89 Phil. 473, 476 (1951).
2 Citing CRUZ, Constitutional Law, 1991 Ed., p. 359.
3 Citing Cuenco. vs. Secretary of Justice, 5 SCRA 108, 110 (1962).
4 Sec. 1, Art. IV of the 1935 Constitution reads:
Sec. 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands
at the time of the adoption of the Constitution;
(2) Those born in the Philippine Islands of foreign
parents who, before the adoption of this
Constitution, had been elected to public office;
(3) Those whose fathers are citizens of the
Philippines;
(4) Those whose mothers are citizens of the
Philippines, and, upon reaching the age of majority,
elect Philippine citizenship;
(5) Those who are naturalized in accordance with
law.
5 Sec. 1(1), Article III, 1973 Constitution.
6 Sec. 1(3), Article IV, 1987 Constitution.
7 BERNAS, The Constitution of the Republic of the Philippines; First Ed. (1987),
p. 502.
8 Ibid., citing Convention Session of November 27, 1972 and noting that it is also
applicable to the 1987 Constitution.
9 Art. 402, Civil Code.
10 Lim Teco vs. Collector of Customs, 24 SCRA 84, 88 (1912).
11 Muoz vs. Collector of Customs, 20 SCRA 494: 498 (1911); Lorenzo vs.
Collector of Customs, 15 SCRA 559, 592 (1910).
12 5 SCRA 108 (1962).
13 Id., at 110.
14 Id.
15 59 SCRA 45 (1974)
16 Id., at 52.
17 Id.
18 199 SCRA 692 (1991).

19 Id., at 707-709 (Emphasis supplied).


20 Yu vs. Defensor-Santiago, 169 SCRA 364, 379 (1989).

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
A.M. No. 10-7-17-SC

October 15, 2010

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


JUSTICE MARIANO C. DEL CASTILLO.
DECISION
PER CURIAM:
This case is concerned with charges that, in preparing a decision for the Court, a designated
member plagiarized the works of certain authors and twisted their meanings to support the
decision.
The Background Facts
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya
Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with
application for preliminary mandatory injunction against the Executive Secretary, the Secretary
of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General.
Petitioners claimed that in destroying villages in the Philippines during World War II, the
Japanese army systematically raped them and a number of other women, seizing them and
holding them in houses or cells where soldiers repeatedly ravished and abused them.
Petitioners alleged that they have since 1998 been approaching the Executive Department,
represented by the respondent public officials, requesting assistance in filing claims against the
Japanese military officers who established the comfort women stations. But that Department
declined, saying that petitioners individual claims had already been fully satisfied under the
Peace Treaty between the Philippines and Japan.
Petitioners wanted the Court to render judgment, compelling the Executive Department to
espouse their claims for official apology and other forms of reparations against Japan before the
International Court of Justice and other international tribunals.
On April 28, 2010, the Court rendered judgment dismissing petitioners action. Justice Mariano
C. del Castillo wrote the decision for the Court. The Court essentially gave two reasons for its
decision: it cannot grant the petition because, first, the Executive Department has the exclusive
prerogative under the Constitution and the law to determine whether to espouse petitioners
claim against Japan; and, second, the Philippines is not under any obligation in international law
to espouse their claims.
On June 9, 2010, petitioners filed a motion for reconsideration of the Courts decision. More
than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr.,
announced in his online blog that his clients would file a supplemental petition "detailing
plagiarism committed by the court" under the second reason it gave for dismissing the petition
and that "these stolen passages were also twisted to support the courts erroneous conclusions
that the Filipino comfort women of World War Two have no further legal remedies." The media
gave publicity to Atty. Roques announcement.
On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque
announced. It accused Justice Del Castillo of "manifest intellectual theft and outright
plagiarism"1 when he wrote the decision for the Court and of "twisting the true intents of the
plagiarized sources to suit the arguments of the assailed Judgment."2 They charged Justice
Del Castillo of copying without acknowledgement certain passages from three foreign articles:
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).

Petitioners claim that the integrity of the Courts deliberations in the case has been put into
question by Justice Del Castillos fraud. The Court should thus "address and disclose to the
public the truth about the manifest intellectual theft and outright plagiarism"3 that resulted in
gross prejudice to the petitioners.
Because of the publicity that the supplemental motion for reconsideration generated, Justice Del
Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote
the decision for the Court he had the intent to attribute all sources used in it. He said in the
pertinent part:
It must be emphasized that there was every intention to attribute all sources, whenever due. At
no point was there ever any malicious intent to appropriate anothers work as our own. We
recall that this ponencia was thrice included in the Agenda of the Court en banc. It was
deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on
April 27, 2010. Each time, suggestions were made which necessitated major revisions in the
draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting
decision comprises 34 pages with 78 footnotes.
xxxx
As regards the claim of the petitioners that the concepts as contained in the above foreign
materials were "twisted," the same remains their opinion which we do not necessarily share. 4
On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its
Committee on Ethics and Ethical Standards, chaired by the Chief Justice, for investigation and
recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as
consultant of the Committee. He graciously accepted.
On August 2, 2010, the Committee directed petitioners to comment on Justice Del Castillos
verified letter. When this was done, it set the matter for hearing.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author
Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism
involving their work but Criddles concern, after reading the supplemental motion for
reconsideration, was the Courts conclusion that prohibitions against sexual slavery are not jus
cogens or internationally binding norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work,
the Court "may have misread the argument [he] made in the article and employed them for
cross purposes." Dr. Ellis said that he wrote the article precisely to argue for appropriate legal
remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean
of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty,
claiming that the Vinuya decision was "an extraordinary act of injustice" and a "singularly
reprehensible act of dishonesty and misrepresentation by the Highest Court of the land." The
statement said that Justice Del Castillo had a "deliberate intention to appropriate the original
authors work," and that the Courts decision amounted to "an act of intellectual fraud by copying
works in order to mislead and deceive."5
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although
relevant sentences in the Courts decision were taken from his work, he was given generic
reference only in the footnote and in connection with a citation from another author (Bruno
Simma) rather than with respect to the passages taken from his work. He thought that the form
of referencing was inappropriate. Mr. Tams was also concerned that the decision may have
used his work to support an approach to erga omnes concept (obligations owed by individual
States to the community of nations) that is not consistent with what he advocated.
On August 26, 2010, the Committee heard the parties submissions in the summary manner of
administrative investigations. Counsels from both sides were given ample time to address the
Committee and submit their evidence. The Committee queried them on these.
Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance
so they could make submissions that their client regarded as sensitive and confidential,
involving the drafting process that went into the making of the Courts decision in the Vinuya
case. Petitioners counsels vigorously objected and the Committee sustained the objection.
After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justices

court researcher, whose name need not be mentioned here, explain the research work that
went into the making of the decision in the Vinuya case. The Committee granted the request.
The researcher demonstrated by Power Point presentation how the attribution of the lifted
passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report
to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her
"grievous mistake" and grief for having "caused an enormous amount of suffering for Justice Del
Castillo and his family."6
On the other hand, addressing the Committee in reaction to the researchers explanation,
counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is
required is for a writer to acknowledge that certain words or language in his work were taken
from anothers work. Counsel invoked the Courts ruling in University of the Philippines Board of
Regents v. Court of Appeals and Arokiaswamy William Margaret Celine,7 arguing that standards
on plagiarism in the academe should apply with more force to the judiciary.
After the hearing, the Committee gave the parties ten days to file their respective memoranda.
They filed their memoranda in due course. Subsequently after deliberation, the Committee
submitted its unanimous findings and recommendations to the Court.
The Issues
This case presents two issues:
1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del
Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis.
2. Whether or not Justice Del Castillo twisted the works of these authors to make it
appear that such works supported the Courts position in the Vinuya decision.
The Courts Rulings
Because of the pending motion for reconsideration in the Vinuya case, the Court like its
Committee on Ethics and Ethical Standards will purposely avoid touching the merits of the
Courts decision in that case or the soundness or lack of soundness of the position it has so far
taken in the same. The Court will deal, not with the essential merit or persuasiveness of the
foreign authors works, but how the decision that Justice Del Castillo wrote for the Court
appropriated parts of those works and for what purpose the decision employed the same.
At its most basic, plagiarism means the theft of another persons 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 ones own."8 The passing off of the work of another as
ones own is thus an indispensable element of plagiarism.
The Passages from Tams
Petitioners point out that the Vinuya decision lifted passages from Tams book, Enforcing Erga
Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the
author thought was a mere generic reference. But, although Tams himself may have believed
that the footnoting in this case was not "an appropriate form of referencing,"9 he and petitioners
cannot deny that the decision did attribute the source or sources of such passages. Justice Del
Castillo did not pass off Tams work as his own. 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 Justices 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.

The Passages from Ellis


and Criddle-Descent
Petitioners also attack the Courts decision for lifting and using as footnotes, without attribution
to the author, passages from the published work of Ellis. The Court made the following
statement on page 27 of its decision, marked with Footnote 65 at the end:
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible
as well as legally prohibited under contemporary international law. 65 xxx
Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote
came almost verbatim from Ellis article,10 such passages ought to have been introduced by an
acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve
Journal of International Law (2006), Mark Ellis said: 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. But modern-day sensitivity to the crime of rape did not emerge until after
World War II. 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. (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. The 1863 Lieber Instructions classified rape as a crime of
"troop discipline." (Mitchell, The Prohibition of Rape in International Humanitarian Law as a
Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Intl. L. 219, 224). It specified
rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague
Convention protected women by requiring the protection of their "honour." ("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 Nrnberg Tribunal"; General
Assembly document A/64/Add.1 of 1946; 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.
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.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted.
(Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in
the International Arena,7 ILSA J. Intl. Comp. L. 667, 676.) However, International Military
Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly
criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata
and Foreign Minister Hirota criminally responsible for a series of crimes, including rape,
committed by persons under their authority. (The Tokyo Judgment: Judgment Of The
International Military Tribunal For The Far East 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law
No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted
by the four occupying powers in Germany, was devised to establish a uniform basis for
prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10:
Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity,
Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first
modern-day international instrument to establish protections against rape for women. Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27,
6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva
Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda

(ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as


genocide, a war crime, and a crime against humanity.
But, as it happened, the acknowledgment above or a similar introduction was missing from
Footnote 65.
Next, petitioners also point out that the following eight sentences and their accompanying
footnotes appear in text on pages 30-32 of the Vinuya decision:
xxx In international law, the term "jus cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms
are considered peremptory in the sense that they are mandatory, do not admit derogation, and
can be modified only by general international norms of equivalent authority.711avvphi1
Early strains of the jus cogens doctrine have existed since the 1700s,72 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.73 The recognition of jus cogens
gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna
Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain
international norms had attained the status of jus cogens,75 the ILC was unable to reach a
consensus on the proper criteria for identifying peremptory norms.
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."76 In a commentary
accompanying the draft convention, the ILC indicated that "the prudent course seems to be to x
x x leave the full content of this rule to be worked out in State practice and in the jurisprudence
of international tribunals."77 Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and
rules.78
Admittedly, the Vinuya decision lifted the above, including their footnotes, from CriddleDescents article, A Fiduciary Theory of Jus Cogens.11 Criddle-Descents footnotes were carried
into the Vinuya decisions own footnotes but no attributions were made to the two authors in
those footnotes.
The Explanation
Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be
construed as plagiarism. But one of Justice Del Castillos researchers, a court-employed
attorney, 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 lawrelated materials to which the Court subscribes.
In the old days, the common practice was that after a Justice would have assigned a case for
study and report, the researcher would source his materials mostly from available law books
and published articles on print. When he found a relevant item in a book, whether for one side of
the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil
mark the item, and place the book on his desk where other relevant books would have piled up.
He would later paraphrase or copy the marked out passages from some of these books as he
typed his manuscript on a manual typewriter. This occasion would give him a clear opportunity
to attribute the materials used to their authors or sources.
With the advent of computers, however, as Justice Del Castillos researcher also explained,
most legal references, including the collection of decisions of the Court, are found in electronic
diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the
researcher found items that were relevant to her assignment, she downloaded or copied them
into her "main manuscript," a smorgasbord plate of materials that she thought she might need.
The researchers technique in this case is not too far different from that employed by a
carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and
sizes suitable to the object he has in mind, say a table. When ready, he would measure out the
portions he needs, cut them out of the pieces of lumber he had collected, and construct his
table. He would get rid of the scraps.

Here, Justice Del Castillos researcher did just that. She 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.12 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 Castillos 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 CriddleDescent 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.
First Finding
The Court adopts the Committees finding that the researchers explanation regarding the
accidental removal of proper attributions to the three authors is credible. Given the operational
properties of the Microsoft program in use by the Court, the accidental decapitation of
attributions to sources of research materials is not remote.
For most senior lawyers and judges who are not computer literate, a familiar example similar to
the circumstances of the present case would probably help illustrate the likelihood of such an
accident happening. If researcher X, for example, happens to be interested in "the inalienable
character of juridical personality" in connection with an assignment and if the book of the
learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X
would probably show interest in the following passage from that book:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is
evident that Tolentino did not originate it. The idea is not a product of his intellect. He merely
lifted it from Von Tuhr and Valverde, two reputable foreign authors.
When researcher X copies and pastes the above passage and its footnote into a manuscript-inthe-making in his computer, the footnote number would, given the computer program in use,
automatically change and adjust to the footnoting sequence of researcher Xs manuscript. Thus,
if the preceding footnote in the manuscript when the passage from Tolentino was pasted on it is
23, Tolentinos footnote would automatically change from the original Footnote 15 to Footnote
24.
But then, to be of use in his materials-gathering scheme, researcher X would have to tag the
Tolentino passage with a short description of its subject for easy reference. A suitable subject
description would be: "The inalienable character of juridical personality.23" The footnote mark,
23 From Tolentino, which researcher X attaches to the subject tag, serves as reminder to him to
attribute the passage in its final form to Tolentino. After the passage has been tagged, it would
now appear like this:
The inalienable character of juridical personality.23
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
The tag is of course temporary and would later have to go. It serves but a marker to help
researcher X maneuver the passage into the right spot in his final manuscript.

The mistake of Justice Del Castillos researcher is that, after the Justice had decided what texts,
passages, and citations were to be retained including those from Criddle-Descent and Ellis, and
when she was already cleaning up her work and deleting all subject tags, she unintentionally
deleted the footnotes that went with such tagswith disastrous effect.
To understand this, in Tolentinos example, the equivalent would be researcher Xs removal
during cleanup of the tag, "The inalienable character of juridical personality.23," by a simple
"delete" operation, and the unintended removal as well of the accompanying footnote (#23). The
erasure of the footnote eliminates the link between the lifted passage and its source, Tolentinos
book. Only the following would remain in the manuscript:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence,
they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the 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.
This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted
the subject tags and, accidentally, their accompanying footnotes that served as reminder of the
sources of the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them
was not easily detectable.
Petitioners point out, however, that Justice Del Castillos verified letter of July 22, 2010 is
inconsistent with his researchers claim that the omissions were mere errors in attribution. They
cite the fact that the Justice did not disclose his researchers error in that letter despite the
latters confession regarding her mistake even before the Justice sent his letter to the Chief
Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and
sought to whitewash the case.13
But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo
merely explained "that there was every intention to attribute all sources whenever due" and that
there was never "any malicious intent to appropriate anothers work as our own," which as it
turns out is a true statement. He recalled how the Court deliberated upon the case more than
once, prompting major revisions in the draft of the decision. In the process, "(s)ources were restudied, discussions modified, passages added or deleted." Nothing in the letter suggests a
cover-up. Indeed, it did not preclude a researchers inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose his researchers error.
He wrote the decision for the Court and was expected to take full responsibility for any lapse
arising from its preparation. What is more, the process of drafting a particular decision for the
Court is confidential, which explained his initial request to be heard on the matter without the
attendance of the other parties.
Notably, 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. The latter authors are highly
respected professors of international law. The law journals that published their works have
exceptional reputations. It did not make sense to intentionally omit attribution to these authors
when the decision cites an abundance of other sources. Citing these authors as the sources of
the lifted passages would enhance rather than diminish their informative value. Both Justice Del
Castillo and his researcher gain nothing from the omission. Thus, the failure to mention the
works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure oversight.
Petitioners of course insist that intent is not material in committing plagiarism since all that a
writer has to do, to avoid the charge, is to enclose lifted portions with quotation marks and
acknowledge the sources from which these were taken.14 Petitioners point out that the Court
should apply to this case the ruling in University of the Philippines Board of Regents v. Court of
Appeals and Arokiaswamy William Margaret Celine.15 They argue that standards on plagiarism
in the academe should apply with more force to the judiciary.
But petitioners theory ignores the fact that plagiarism is essentially a form of fraud where intent
to deceive is inherent. Their theory 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.
Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the "deliberate and
knowing presentation of another person's original ideas or creative expressions as one's own."16
Thus, plagiarism presupposes intent and a deliberate, conscious effort to steal anothers work
and pass it off as ones own.
Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to
pass off anothers work as ones own is not required in plagiarism. The Court merely affirmed
the academic freedom of a university to withdraw a masters degree that a student obtained
based on evidence that she misappropriated the work of others, passing them off as her own.
This is not the case here since, as already stated, Justice Del Castillo actually imputed the
borrowed passages to others.
Second Finding
The Court also adopts the Committees finding that the omission of attributions to CriddleDescent 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.
This is best illustrated in the familiar example above. After the deletion of the subject tag and,
accidentally, its footnote which connects to the source, the lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of persons;
hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Although the unintended deletion severed the passages link to Tolentino, the passage remains
to be attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The
text and its footnote reference cancel out any impression that the passage is a creation of
researcher X. It is the same with the passages from Criddle-Descent and Ellis. Because such
passages remained attributed by the footnotes to the authors original sources, the omission of
attributions to Criddle-Descent and Ellis gave no impression that the passages were the
creations of Justice Del Castillo. This wholly negates the idea that he was passing them off as
his own thoughts.
True the subject passages in this case were reproduced in the Vinuya decision without placing
them in quotation marks. But such passages are much unlike the creative line from Robert
Frost,17 "The woods are lovely, dark, and deep, but I have promises to keep, and miles to go
before I sleep, and miles to go before I sleep." The passages here consisted of 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.
To paraphrase Bast and Samuels,18 while the academic publishing model is based on the
originality of the writers 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.
Third Finding
Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis.
The Court adopts the Committees finding that this is not so. Indeed, this allegation of twisting or
misrepresentation remains a mystery to the Court. To twist means "to distort or pervert the
meaning of."19 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 anthems 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 Courts conclusion that the Philippines is not under any obligation in international law to
espouse Vinuya et al.s claims.

The fact is that, 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.
Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the
passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of "twisting"
or misrepresentation against him is to say the least, unkind. To be more accurate, however, the
charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have mistakenly cited the wrong sources, failed to use
quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But
these do not, in every case, amount to misconduct. Only errors that are tainted with fraud,
corruption, or malice are subject of disciplinary action.20 This is not the case here. Justice Del
Castillos acts or omissions were not shown to have been impelled by any of such disreputable
motives.21 If the rule were otherwise, no judge or justice, however competent, honest, or
dedicated he may be, can ever hope to retire from the judiciary with an unblemished record.22
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the omission was the result of
plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point
out that he has full control and supervision over his researcher and should not have surrendered
the writing of the decision to the latter.23
But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his
researcher, which is contrary to the evidence adduced during the hearing. As his researcher
testified, the Justice set the direction that the research and study were to take by discussing the
issues with her, setting forth his position on those issues, and reviewing and commenting on the
study that she was putting together until he was completely satisfied with it.24 In every sense,
Justice Del Castillo was in control of the writing of the report to the Court, which report
eventually became the basis for the decision, and determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent of a "law clerk" in the
United States Supreme Court, is standard practice in the high courts of all nations. This is
dictated by necessity. With about 80 to 100 cases assigned to a Justice in our Court each
month, it would be truly senseless for him to do all the studies and research, going to the library,
searching the internet, checking footnotes, and watching the punctuations. If he does all these
by himself, he would have to allocate at least one to two weeks of work for each case that has
been submitted for decision. The wheels of justice in the Supreme Court will grind to a halt
under such a proposition.
What is important is that, in this case, Justice Del Castillo retained control over the writing of the
decision in the Vinuya case without, however, having to look over his researchers shoulder as
she cleaned up her draft report to ensure that she hit the right computer keys. The Justices
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 schools Law
Journal, and placed fourth in the bar examinations when she took it. She earned a masters
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 did not exercise
bad judgment in assigning the research work in the Vinuya case to her.
Can errors in preparing decisions be prevented? Not until computers cease to be operated by
human beings who are vulnerable to human errors. They are hypocrites who believe that the
courts should be as error-free as they themselves are.
Incidentally, in the course of the submission of petitioners exhibits, the Committee noted that
petitioners Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the

allegations of plagiarism and misinterpretation, was a mere dummy. The whole of the statement
was reproduced but the signatures portion below merely listed the names of 38 faculty
members, in solid rows, with the letters "Sgd" or "signed" printed beside the names without
exception. These included the name of retired Supreme Court Justice Vicente V. Mendoza, a
U.P. professor.
Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to
present the signed copy within three days of the August 26 hearing.25 He complied. As it turned
out, the original statement was signed by only a minority of the faculty members on the list. The
set of signatories that appeared like solid teeth in the dummy turned out to be broken teeth in
the original. Since only 37 out of the 81 on the list signed the document, it does not appear to be
a statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza
did not sign the statement, contrary to what the dummy represented. The Committee wondered
why the Dean submitted a dummy of the signed document when U.P. has an abundance of
copying machines.
Since the above circumstances appear to be related to separate en banc matter concerning the
supposed Faculty statement, there is a need for the Committee to turn over the signed copy of
the same to the en banc for its consideration in relation to that matter.
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.
Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the
en banc the dummy as well as the signed copy of petitioners Exhibit J, entitled "Restoring
Integrity," a statement by the Faculty of the University of the Philippines College of Law for the
en bancs consideration in relation to the separate pending matter concerning that supposed
Faculty statement.
SO ORDERED.
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice

Footnotes
1

Supplemental Motion for Reconsideration, petitioners Exhibit A, p. 5.

Id. at 3.

Supplemental Motion for Reconsideration, supra note 1, at 5.

Justice Del Castillos Verified Letter, p. 3, Exhibit G of the petitioners.

Statement of the University of the Philippines College of Law Faculty dated July 27,
2010, Exhibit J of the petitioners.
6

Transcript of Stenographic Notes taken on August 26, 2010, p. 31.

G.R. No. 134625, August 31, 1999, 313 SCRA 404.

Websters New World College Dictionary, Third Edition, Macmillan USA, p. 1031.

Exhibit I for the petitioners.

10

Breaking the Silence of Rape as an International Crime, 38 Case W. Res. J. Intl. L.


225 (2006).
11

34 Yale J. Intl. L. 331 (2009).

12

Memorandum for Justice Del Castillo, paragraphs 25-35.

13

Petitioners Memorandum, pp. 26-27.

14

Supra note 6, at 41.

15

Supra note 7.

16

Black's Law Dictionary (8th ed. 2004).

17

Stopping by the Woods on a Snowy Evening (1923).

18

Bast and Samuels, Plagiarism and Legal Scholarship in the Age of Information
Sharing: The Need for Intellectual Honesty, 57 CATH. U. L. REV 777, 800 (2008).
19

Websters New World College Dictionary, 3rd Edition, p. 1445.

20

Atty. Alberto P. Quinto v. Judge Gregorio S. Vios, Municipal Trial Court, Kapatagan,
Lanao del Norte, A.M. No. MTJ-04-1551, May 21, 2004, 429 SCRA 1; Tolentino v.
Camano, Jr., A.M. No. RTJ 10-1522, January 20, 2000, 322 SCRA 559.
21

Daracan v. Natividad, A.M. No. RTC-99-1447, September 27, 2000, 341 SCRA 161.

22

Guerrero v. Villamor, A.M. No. RTJ-90-483, September 25, 1998, 296 SCRA 88; Tan
v. Adre, A.M. No. RTJ-05-1898, January 31, 2005, 450 SCRA 145.
23

Supra note 13, at 25.

24

Supra note 6, at 27-30.

25

Order dated August 26, 2010, Committee Records, pp. 382-383.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
SERENO, J.:
What is black can be called "white" but it cannot turn white by the mere calling. The unfortunate
ruling of the majority Decision that no plagiarism was committed stems from its failure to
distinguish between the determination of the objective, factual existence of plagiarism in the
Vinuya decision1 and the determination of the liability that results from a finding of plagiarism.
Specifically, it made "malicious intent", which heretofore had not been relevant to a finding of
plagiarism, an essential element.
The majority Decision will thus stand against the overwhelming conventions on what constitutes
plagiarism. In doing so, the Decision has created 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. Under Section 184 of R.A. 8293 ("An Act
Describing the Intellectual Property Code and Establishing the Intellectual Property Office,
Providing for Its Powers and Functions, and for Other Purposes"), or the Intellectual Property
Code of the Philippines, there is no infringement of copyright in the use of another's work in:
(b) the making of quotations from a published work if they are compatible with fair use and only
to the extent justified for the purpose, including quotations from newspaper articles and
periodicals in the form of press summaries: Provided that the source and the name of the
author, if appearing on the work, are mentioned. (Emphasis supplied)
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.2
TABLES OF COMPARISON
The tables of comparison below were first drawn based on the tables made by petitioners in
their Supplemental Motion for Reconsideration. This was then compared with Annex "A" of
Justice Mariano del Castillo's letter, which is his tabular explanation for some of the copied
excerpts.3 The alleged plagiarism of the cited excerpts were then independently verified and represented below, with the necessary revisions accurately reflecting the alleged plagiarized
works and the pertinent portions of the decision. A few excerpts in the table of petitioners are
not included, as they merely refer to in-text citations.
TABLE A: Comparison of Christian J. Tamss book, entitled Enforcing Erga Omnes Obligations
in International Law (2005), hereinafter called "Tamss work" and the Supreme Courts 28 April
2010 Decision in Vinuya, et. al. v. Executive Secretary.
Christian J. Tams, Enforcing Erga Omnes Vinuya, et. al. v. Executive Secretary,
Obligations in International Law (2005).
G.R. No. 162230, 28 April 2010.
1.

xxx 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. xxx

*The Latin phrase, erga omnes, has


since become one of the rallying cries of
those sharing a belief in the emergence
of a value-based international public
order. However, as is so often the case,
As often, the reality is neither so clear nor the reality is neither so clear nor so
so bright. One problem is readily admitted bright. Whatever the relevance of
obligations erga omnes as a legal
by commentators: whatever the
remains to be
relevance of obligations erga omnes as a concept, its full potential
[FN69]
realized
in
practice.
(p.
30, Body of
legal concept, its full potential remains to
the
28
April
2010
Decision)
be realised in practice. xxx Bruno

Simmas 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.
(pp. 3-4 of the Christian Tamss book)

[FN69]

Bruno Simmas 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).
*The decision mentioned Christian
Tamss book in footnote 69.

TABLE B: Comparison of Evan J. Criddle & Evan Fox-Decents article in the Yale Journal of
International Law, entitled A Fiduciary Theory of Jus Cogens (2009), hereinafter called
"Criddles & Fox-Decents work" and the Supreme Courts 28 April 2010 Decision in Vinuya, et
al. v. Executive Secretary.

1.

Evan J. Criddle & Evan Fox-Decent, A


Fiduciary Theory of Jus Cogens, 34 Yale
J. Int'l L. 331 (2009).

Vinuya, et. al. v. Executive Secretary,


G.R. No. 162230, 28 April 2010

In international law, the term "jus cogens"


(literally, "compelling law") refers to
norms that command peremptory
authority, superseding conflicting treaties
and custom. xxx Jus cogens norms are
considered peremptory in the sense that
they are mandatory, do not admit
derogation, and can be modified only by
general international norms of equivalent
authority.[FN2]

In international law, the term "jus cogens"


(literally, "compelling law") refers to
norms that command peremptory
authority, superseding conflicting treaties
and custom. Jus cogens norms are
considered peremptory in the sense that
they are mandatory, do not admit
derogation, and can be modified only by
general international norms of equivalent
authority.[FN70] (pp. 30-31, Body of the 28
April 2010 Decision)

[FN2]

See Vienna Convention on the Law


of Treaties art. 53, opened for signature
May 23, 1969, 1155 U.N.T.S. 331, 8
I.L.M. 679 [hereinafter VCLT].
(pp. 331-332 of the Yale Law Journal of
Intl Law)
2.

Peremptory norms began to attract


greater scholarly attention with the
publication of Alfred von Verdross's
influential 1937 article, Forbidden
Treaties in International Law.[FN10]
[FN10] For example, in the 1934 Oscar
Chinn Case, Judge Schcking's
influential dissent stated that neither an
interna-tional court nor an arbitral tribunal
should apply a treaty provision in
contradiction to bonos mores. Oscar
Chinn Case, 1934 P.C.I.J. (ser. A/B) No.
63, at 149-50 (Dec. 12) (Schcking, J.,
dissenting).
(p. 334 of the Yale Law Journal of Intl
Law)

[FN70]

See Vienna Convention on the Law


of Treaties art. 53, opened for signature
May 23, 1969, 1155 U.N.T.S. 331, 8
I.L.M. 679 [hereinafter VCLT].

xxx 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. [FN72] (p. 31,
Body of the 28 April 2010 Decision)
[FN72]

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").
3.

Classical publicists such as Hugo


Grotius, Emer de Vattel, and Christian
Wolff drew upon the Roman law
distinction between jus dispositivum
(voluntary law) and jus scriptum
(obligatory law) to differentiate
consensual agreements between states
from the "necessary" principles of
international law that bind all states as a
point of conscience regardless of
consent.[FN6]

[FN71]

Classical publicists such as Hugo


Grotius, Emer de Vattel, and Christian
Wolff drew upon the Roman law
distinction between jus dispositivum
(voluntary law) and jus scriptum
(obligatory law) to differentiate
consensual agreements between states
from the "necessary" principles of
international law that bind all states as a
point of conscience regardless of
consent.

[FN6] See Hugonis Grotii, De Jure Belli et (p. 31, Footnote 71 of the 28 April 2010
Pacis [On the Law of War and Peace]
Decision)
(William Whewell ed. & trans., John W.
Parker, London 2009) (1625); Emer de
Vattel, Le Droit des Gens ou Principes de
la Loi Naturelle [The Law of Nations or
Principles of Natural Law] 9, 27 (1758)
(distinguishing "le Droit des Gens Naturel,
ou Ncessaire" from "le Droit
Volontaire"); Christian Wolff, Jus Gentium
Methodo Scientifica Pertractorum [A
Scientific Method for Understanding the
Law of Nations] 5 (James Brown Scott
ed., Joseph H. Drake trans., Clarendon
Press 1934) (1764).
(p. 334 of the Yale Law Journal of Intl
Law)
4.

Early twentieth-century publicists such as


Lassa Oppenheim and William Hall
asserted confidently that states could not
abrogate certain "universally recognized
principles" by mutual agreement.[FN9]
Outside the academy, judges on the
Permanent Court of International Justice
affirmed the existence of peremptory
norms in international law by referencing
treaties contra bonos mores (contrary to
public policy) in a series of individual
concurring and dissenting opinions.[FN10]
xxx
[FN9]

William Hall, A Treatise on


International Law 382-83 (8th ed. 1924)
(asserting that "fundamental principles of
international law" may "invalidate [], or at

[FN71]

xxx Early twentieth-century publicists


such as Lassa Oppenheim and William
Hall asserted that states could not
abrogate certain "universally recognized
principles" by mutual agreement. xxx
Judges on the Permanent Court of
International Justice affirmed the
existence of peremptory norms in
international law by referencing treaties
contra bonos mores (contrary to public
policy) in a series of individual concurring
and dissenting opinions. xxx
(p. 31, Footnote 71 of the 28 April 2010
Decision)

least render voidable," conflicting


international agreements); 1 Lassa
Oppen-heim, International Law 528
(1905).
[FN10]

For example, in the 1934 Oscar


Chinn Case, Judge Schcking's
influential dissent stated that neither an
interna-tional court nor an arbitral tribunal
should apply a treaty provision in
contradiction to bonos mores. Oscar
Chinn Case, 1934 P.C.I.J. (ser. A/B) No.
63, at 149-50 (Dec. 12) (Schcking, J.,
dissenting).
(pp. 334-5 of the Yale Law Journal of Intl
Law)
5.

6.

7.

[FN9]

William Hall, A Treatise on


International Law 382-83 (8th ed. 1924)
(asserting that "fundamental principles of
international law" may "invalidate [], or at
least render voidable," conflicting
international agreements) xxx

[FN71]

(Footnote 9 of the Yale Law Journal of


Intl Law)

(p. 31, Footnote 71 of the 28 April 2010


Decision)

[FN10]

For example, in the 1934 Oscar


Chinn Case, Judge Schcking's
influential dissent stated that neither an
international court nor an arbitral tribunal
should apply a treaty provision in
contradiction to bonos mores. Oscar
Chinn Case, 1934 P.C.I.J. (ser. A/B) No.
63, at 149-50 (Dec. 12) (Schcking, J.,
dissenting).

[FN71]

(Footnote 9 of the Yale Law Journal of


Intl Law)

(p. 31, Footnote 71 of the 28 April 2010


Decision)

Verdross argued that certain discrete


rules of international custom had come to
be recognized as having a compulsory
character notwithstanding contrary state
agreements.[FN12]

[FN72]

[FN12]

(p. 31, Footnote 72 of the 28 April 2010


Decision)

[Von Verdross, supra note 5.]

(pp. 335 of the Yale Law Journal of Intl


Law)
8.

At first, Verdross's vision of international


jus cogens encountered skepticism within
the legal academy. xxx 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.

xxx (William Hall, A Treatise on


International Law 382-83 (8th ed. 1924)
(asserting that "fundamental principles of
international law" may "invalidate [], or at
least render voidable," conflicting
international agreements) xxx

xxx (For example, in the 1934 Oscar


Chinn Case, Judge Schcking's
influential dissent stated that neither an
international court nor an arbitral tribunal
should apply a treaty provision in
contradiction to bonos mores. Oscar
Chinn Case, 1934 P.C.I.J. (ser. A/B) No.
63, at 149-50 (Dec. 12) (Schcking, J.,
dissenting).

Verdross argued that certain


discrete rules of international custom had
come to be recognized as having a
compulsory character notwithstanding
contrary state agreements. xxx

[FN72]

xxx 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. xxx

(pp. 335-6 of the Yale Law Journal of Intl (p. 31, Footnote 72 of the 28 April 2010
Law)
Decision)
9.

[FN18]

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").
(Footnote 18 of the Yale Law Journal of
Intl Law)

10.

[FN72]

xxx (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").
(p. 31, Footnote 72 of the 28 April 2010
Decision)

xxx the 1950s and 1960s with the United


Nations International Law Commission's
(ILC) preparation of the Vienna
Convention on the Law of Treaties
(VCLT).[FN20]

xxx the 1950s and 1960s with the ILCs


preparation of the Vienna Convention on
the Law of Treaties (VCLT).[FN73]

[FN20] VCLT, supra note 2.

[FN73]

(p. 336 of the Yale Law Journal of Intl


Law)

(p. 31, Body of the 28 April 2010


Decision)
In March 1953, the ILC's Special
Rapporteur, Sir Hersch Lauterpacht,
submitted for the ILC's consideration a
partial draft convention on treaties which
stated that "[a] treaty, or any of its
provisions, is void if its performance
involves an act which is illegal under
international law and if it is declared so to
be by the International Court of Justice."
Hersch Lauterpacht, Law of Treaties:
Report by Special Rapporteur, [1953] 2
Y.B. Int'l L. Comm'n 90, 93, U.N. Doc.
A/CN.4/63.

11.

In March 1953, Lauterpacht submitted for


the ILC's consideration a partial draft
convention on treaties which stated that
"[a] treaty, or any of its provisions, is void
if its performance involves an act which is
illegal under international law and if it is
declared so to be by the International
Court of Justice."[FN21]

[FN73]

12.

Lauterpacht's colleagues on the ILC


generally accepted his assessment that
certain international norms had attained
the status of jus cogens. [FN23] Yet despite
general agreement over the existence of

Though there was a consensus that


certain international norms had attained
the status of jus cogens, [FN74] the ILC was
unable to reach a consensus on the
proper criteria for identifying peremptory

In March 1953, the ILC's Special


Rapporteur, Sir Hersch Lauterpacht,
submitted for the ILC's consideration a
partial draft convention on treaties which
stated that "[a] treaty, or any of its
provisions, is void if its performance
involves an act which is illegal under
international law and if it is declared so to
be by the International Court of Justice."
[FN21] Hersch Lauterpacht, Law of
Hersch Lauterpacht, Law of Treaties:
Treaties: Report by Special Rapporteur,
[1953] 2 Y.B. Int'l L. Comm'n 90, 93, U.N. Report by Special Rapporteur, [1953] 2
Y.B. Int'l L. Comm'n 90, 93, U.N. Doc.
Doc. A/CN.4/63.
A/CN.4/63.
(p. 336 of the Yale Law Journal of Intl
(p. 31, Footnote 73 of the 28 April 2010
Law)
Decision)

international jus cogens, the ILC was


norms.
unable to reach a consensus regarding
(p. 31, Body of the 28 April 2010
either the theoretical basis for peremptory Decision)
norms' legal authority or the proper
[FN74]
See Summary Records of the 877th
criteria for identifying peremptory norms.
Meeting,
[1966] 1 Y.B. Int'l L. Comm'n
[FN23]
See Hannikainen, supra note 18, at 227, 230-231, U.N. Doc. A/CN.4/188
160-61 (noting that none of the twenty
(noting that the "emergence of a rule of
five members of the ILC in 1963 denied
jus cogens banning aggressive war as an
the existence of jus cogens or contested international crime" was evidence that
the inclusion of an article on jus cogens in international law contains "minimum
the VCLT); see, e.g., Summary Records requirement[s] for safeguarding the
of the 877th Meeting, [1966] 1 Y.B. Int'l L. existence of the international
Comm'n 227, 230-231, U.N. Doc.
community").
A/CN.4/188 (noting that the "emergence
of a rule of jus cogens banning
aggressive war as an international crime"
was evidence that international law
contains "minimum requirement[s] for
safeguarding the existence of the
international community").
(p. 336 of the Yale Law Journal of Intl
Law)
13.

14.

[FN23]

xxx see, e.g., Summary Records of


the 877th Meeting, [1966] 1 Y.B. Int'l L.
Comm'n 227, 230-231, U.N. Doc.
A/CN.4/188 (noting that the "emergence
of a rule of jus cogens banning
aggressive war as an international crime"
was evidence that international law
contains "minimum requirement[s] for
safeguarding the existence of the
international community").

[FN74]

(Footnote 23 of the Yale Law Journal of


Intl Law)

(p. 31, Footnote 74 of the 28 April 2010


Decision)

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."[FN27] xxx In
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."[FN29] xxx

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."[FN75] In a
commentary accompanying the draft
convention, the ILC indicated that "the
prudent course seems to be to x x x leave
the full content of this rule to be worked
out in State practice and in the
jurisprudence of international
tribunals."[FN76] xxx

[FN27]

(p. 32, Body of the 28 April 2010


Decision)

Second Report on the Law of


Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1,
52, U.N. Doc. A/CN.4/156.
[FN29]

Second Report on the Law of


Treaties, supra note 27, at 53.
(p. 337-8 of the Yale Law Journal of Intl

See Summary Records of the 877th


Meeting, [1966] 1 Y.B. Int'l L. Comm'n
227, 230-231, U.N. Doc. A/CN.4/188
(noting that the "emergence of a rule of
jus cogens banning aggressive war as an
international crime" was evidence that
international law contains "minimum
requirement[s] for safeguarding the
existence of the international
community").

[FN75]

Second Report on the Law of


Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1,
52, U.N. Doc. A/CN.4/156.

15.

Law)

[76]

In some municipal cases, courts have


declined to recognize international norms
as peremptory while expressing doubt
about the proper criteria for identifying jus
cogens.[FN72]

[FN77]

See, e.g., Sampson v. Federal


Republic of Germany, 250 F.3d 1145,
1149 (7th Cir. 2001) (expressing concern
that jus cogens should be invoked "[o]nly
as a last resort").

xxx In some municipal cases, courts


have declined to recognize international
norms as peremptory while expressing
doubt about the proper criteria for
identifying jus cogens. (See, e.g.,
Sampson v. Federal Republic of
Germany, 250 F.3d 1145, 1149 (7th Cir.
2001) (expressing concern that jus
cogens should be invoked "[o]nly as a
last resort")). xxx

(p. 346 of the Yale Law Journal of Intl


Law)

(p. 32, Footnote 77 of the 28 April 2010


Decision)

In other cases, national courts have


accepted international norms as
peremptory, but have hesitated to enforce
these norms for fear that they might
thereby compromise state
sovereignty.[FN73] xxx In Congo v.
Rwanda, for example, Judge ad hoc John
Dugard observed that the ICJ had
refrained from invoking the jus cogens
concept in several previous cases where
peremptory norms manifestly clashed
with other principles of general
international law.[FN74] Similarly, the
European Court of Human Rights has
addressed jus cogens only once, in AlAdsani v. United Kingdom, when it
famously rejected the argument that jus
cogens violations would deprive a state of
sovereign immunity.

[FN77]

[FN72]

16.

Id. at 53.

[FN73]

See, e.g., Bouzari v. Iran, [2004] 71


O.R.3d 675 (Can.) (holding that the
prohibition against torture does not entail
a right to a civil remedy enforceable in a
foreign court).

xxx In other cases, national courts


have accepted international norms as
peremptory, but have hesitated to enforce
these norms for fear that they might
thereby compromise state sovereignty.
(See, e.g., Bouzari v. Iran, [2004] 71
O.R.3d 675 (Can.) (holding that the
prohibition against torture does not entail
a right to a civil remedy enforceable in a
foreign court)).
In Congo v. Rwanda, for example, Judge
ad hoc John Dugard observed that the
ICJ had refrained from invoking the jus
cogens concept in several previous cases
where peremptory norms manifestly
clashed with other principles of general
international law. (See Armed Activities
on the Territory of the Congo (Dem. Rep.
Congo v. Rwanda) (Judgment of
February 3, 2006), at 2 (Dissenting
Opinion of Judge Dugard))

Similarly, the European Court of Human


Rights has addressed jus cogens only
once, in Al-Adsani v. United Kingdom,
[FN74]
See Armed Activities on the Territory when it famously rejected the argument
of the Congo (Dem. Rep. Congo v.
that jus cogens violations would deprive a
Rwanda) (Judgment of Feb. 3, 2006), at
state of sovereign immunity. Al-Adsani v.
2 (dissenting opinion of Judge Dugard)
United Kingdom, 2001-XI Eur. Ct. H.R.
xxx.
79, 61).
(pp. 346-7 of the Yale Law Journal of Intl (p. 32, Footnote 77 of the 28 April 2010
Law)
Decision)
TABLE C: Comparison of Mark Elliss article in the Case Western Reserve Journal of
International Law, entitled Breaking the Silence: Rape as an International Crime (2006-7),
hereafter called "Elliss work" and the Supreme Courts 28 April 2010 Decision in Vinuya, et al.
v. Executive Secretary.
Mark Ellis, Breaking the Silence: Rape as Vinuya, et. al. v. Executive Secretary,
an International Crime, 38 Case W. Res. J. G.R. No. 162230, 28 April 2010.
Int'l L. 225 (2006-2007).

1.

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.[FN7] The 1863
Lieber Instructions, which codified
customary inter-national law of land
warfare, classified rape as a crime of
"troop discipline."[FN8] It specified rape as a
capital crime punishable by the death
penalty.[FN9] The 1907 Hague Convention
protected women by requiring the
protection of their "honour."[FN10] But
modern-day sensitivity to the crime of rape
did not emerge until after World War II.

[FN65]

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.
But modern-day sensitivity to the crime
of rape did not emerge until after World
War II. xxx (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.
[FN7]
23, Sept. 10, 1785, U.S.-Pruss., 8
For example, the Treaty of Amity and
Commerce Prussia and the United States Treaties & Other Int'l Agreements Of The
provides that in time of war all women and U.S. 78, 85[)]. The 1863 Lieber
Instructions classified rape as a crime of
children "shall not be molested in their
"troop discipline." (Mitchell, The
persons." The Treaty of Amity and
Commerce, Between his Majesty the King Prohibition of Rape in International
Humanitarian Law as a Norm of Jus
of Prussia and the United States of
cogens: Clarifying the Doctrine, 15
America, art. 23, Sept. 10, 1785, U.S.DUKE J. COMP. INTL. L. 219, 224). It
Pruss., 8 TREATIES & OTHER INT'L
specified rape as a capital crime
AGREEMENTS OF THE U.S. 78, 85,
punishable by the death penalty (Id. at
available at xxx.
236). The 1907 Hague Convention
[FN8]
David Mitchell, The Prohibition of Rape protected women by requiring the
in International Humanitarian Law as a
protection of their "honour." ("Family
Norm of Jus Cogens: Clarifying the
honour and rights, the lives of persons,
Doctrine, 15 DUKE J. COMP. INT'L L. 219, and private property, as well as religious
224.
convictions and practice, must be
[FN9]
respected." Convention (IV) Respecting
Id. at 236.
the Laws & Customs of War on Land,
[FN10]
"Family honour and rights, the lives of art. 46, Oct. 18, 1907[)]. xxx.
persons, and private property, as well as
religious convictions and practice, must be (p. 27, Footnote 65 of the 28 April 2010
Decision)
respected." Convention (IV) Respecting
the Laws & Customs of War on Land, art.
46, Oct. 18, 1907, available at
http://www.yale
.edu/lawweb/avalon/lawofwar/hague04.htm
#art46.
(p. 227 of the Case Western Law Reserve
Journal of Intl Law)

2.

After World War II, when the Allies


established 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.[FN11]
[FN11]

See generally, Agreement for the


Prosecution and Punishment of the Major
War Criminals of the Euro-pean Axis, Aug.
8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
(p. 227 of the Case Western Law Reserve
Journal of Intl Law)

[FN65]

xxx 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. xxx
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. xxx.
(p. 27, Footnote 65 of the 28 April 2010
Decision)

3.

The Nuremberg Judgment did not make


any reference to rape and rape was not
prosecuted.[FN13] xxx.

[FN65]

xxx The Nuremberg Judgment did


not make any reference to rape and rape
was not prosecuted. (Judge Gabrielle
Kirk McDonald, The International
It was different for the Charter of the
Criminal Tribunals Crime and
International Military Tribunal for the Far
[FN15]
Punishment in the International Arena,7
East.
xxx The Tribunal prosecuted
ILSA J. Intl. Comp. L. 667, 676.)
rape crimes, even though its Statute did
[FN17]
not explicitly criminalize rape.
The Far However, International Military Tribunal
East Tribunal held General Iwane Matsui, for the Far East prosecuted rape crimes,
even though its Statute did not explicitly
Commander Shunroku Hata and Foreign
Minister Hirota criminally responsible for a criminalize rape. The Far East Tribunal
series of crimes, including rape, committed held General Iwane Matsui, Commander
Shunroku Hata and Foreign Minister
by persons under their authority.[FN18]
Hirota criminally responsible for a series
[FN13]
Judge Gabrielle Kirk McDonald, The
of crimes, including rape, committed by
International Criminal Tribunals Crime and persons under their authority. (The
Punishment in the International Arena, 7
Tokyo Judgment: Judgment Of The
ILSA J. INT'L COMP L. 667, at 676.
International Military Tribunal For The
[FN15]
Far East 445-54 (1977). xxx
See Charter of the International
Tribunal for the Far East, Jan. 19, 1946,
(p. 27, Footnote 65 of the 28 April 2010
T.I.A.S. 1589.
Decision)
[FN17]
See McDonald, supra note 13, at 676.
[FN18]

THE TOKYO JUDGMENT:


JUDGMENT OF THE INTERNATIONAL
MILITARY TRIBUNAL FOR THE FAR
EAST 445-54 (B.V.A. Roling and C.F.
Ruter eds., 1977).
(p. 228 of the Case Western Law Reserve
Journal of Intl Law)
4.

The first mention of rape as a specific


crime came in December 1945 when
Control Council Law No. 10 included the
term rape in the definition of crimes against
humanity.[FN22] Law No. 10, adopted by the
four occupying powers in Germany, was
devised to establish a uniform basis for
prosecuting war criminals in German
courts.

[FN65]

http://www1.umn.edu/humanrts
/instree/ccno10.htm (last visited Nov. 20,
2003). This law set forth a uniform legal
basis in Germany for the prosecution of
war criminals and similar offenders, other
than those dealt with under the
International Military Tribunal. See id. at
50.

(p. 27, Footnote 65 of the 28 April 2010


Decision)

xxx The first mention of rape as a


specific crime came in December 1945
when Control Council Law No. 10
included the term rape in the definition of
crimes against humanity. Law No. 10,
adopted by the four occupying powers in
Germany, was devised to establish a
uniform basis for prosecuting war
criminals in German courts. (Control
[FN22]
Control Council for Germany, Law No. Council for Germany, Law No. 10:
Punishment of Persons Guilty of War
10: Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and
Crimes, Crimes Against Peace and
Against Humanity, Dec. 20, 1945, 3 Official Against Humanity, Dec. 20, 1945, 3
Official Gazette Control Council for
Gazette Control Council for Germany 50,
Germany 50, 53 (1946)) xxx
53 (1946), available at

(pp. 228-9 of the Case Western Law


Reserve Journal of Intl Law)

5.

The 1949 Geneva Convention Relative to


the Treatment of Prisoners of War was the
first modern-day international instrument to
establish protections against rape for
women.[FN23] However, the most important
development in breaking the silence of
rape as an international crime has come
through the jurisprudence of the ICTY and
the International Criminal Tribunal for
Rwanda (ICTR). Both of these Tribunals
have significantly advanced the crime of
rape by enabling it to be prosecuted as
genocide, a war crime, and a crime against
humanity. xxx.

[FN65]

xxx The 1949 Geneva Convention


Relative to the Treatment of Prisoners of
War was the first modern-day
international instrument to establish
protections against rape for women.
Geneva Convention Relative to the
Protection of Civilian Persons in Time of
War, Aug. 12, 1949, art. 27, 6 U.S.T.
3316, 75 U.N.T.S. 287 (entry into force
Oct. 20, 1950) [hereinafter Fourth
Geneva Convention]. Furthermore, the
ICC, the ICTY, and the International
Criminal Tribunal for Rwanda (ICTR)
have significantly advanced the crime of
[FN23]
rape by enabling it to be prosecuted as
Geneva Convention Relative to the
genocide, a war crime, and a crime
Protection of Civilian Persons in Time of
War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, against humanity. xxx.
75 U.N.T.S. 287 (entry into force Oct. 20,
(p. 27, Footnote 65 of the 28 April 2010
1950) [hereinafter Fourth Geneva
Decision)
Convention].
(p. 229 of the Case Western Law Reserve
Journal of Intl Law)
Forms of Plagiarism

There are many ways by which plagiarism can be committed.4 For the purpose of this analysis,
we used the standard reference book prescribed for Harvard University students, "Writing with
Sources" by Gordon Harvey.
Harvey identifies four forms of plagiarism5: (a) uncited data or information;6 (b) an uncited idea,
whether a specific claim or general concept;7 (c) an unquoted but verbatim phrase or passage;8
and (d) an uncited structure or organizing strategy.9 He then explains how each form or mode of
plagiarism is committed. Plagiarism is committed in mode (a) by "plagiarizing information that is
not common knowledge."10 Mode (b) is committed when "distinctive ideas are plagiarized,"
"even though you present them in a different order and in different words, because they are
uncited."11
Even if there has been a prior citation, succeeding appropriations of an idea to make it appear
as your own is plagiarism, because the "[previous] citation in [an earlier] passage is a
deception." Mode (c) is committed when "you borrowed several distinctive phrases verbatim,
without quotation marks" Mode (d) 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."12
These forms of plagiarism can exist simultaneously in one and the same passage. 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. There
may be patchwork plagiarizing committed by collating different works or excerpts from the same
work without proper attribution.13
These acts of plagiarism can also be committed in footnotes in the same way and at the same
degree of unacceptability as plagiarized passages in the body. This is especially frowned upon
in footnotes that are discursive or "content" footnotes or endnotes. Harvey explains that a
discursive footnote or endnote is "a note that includes comments, not just publication
information . . . when you want to tell your reader something extra to the strict development of
your argument, or incorporate extra information about sources."14
Violations of Rules against
Plagiarism in the Vinuya Decision

Below are violations of the existing rules against plagiarism that can be found in the Vinuya
decision. The alphanumeric tags correspond to the table letter and row numbers in the tables
provided above.
A.1 Failure to use quotation marks to indicate that the entire paragraph in the body of the
decision on page 30 was not the ponentes original paragraph, but was lifted verbatim
from Tamss work. The attribution to Tams is wholly insufficient because without the
quotation marks, there is nothing to alert the reader that the paragraph was lifted
verbatim from Tams. The footnote leaves the reader with the impression that the said
paragraph is the authors own analysis of erga omnes.
The "See Tams, Enforcing Obligations Erga omnes in International Law (2005)" line in footnote
69 of the Vinuya decision does not clearly indicate that the statement on Simmas observation
was lifted directly from Tamss work; it only directs the reader to Tamss work should the reader
wish to read further discussions on the matter.
B.1 Failure to use quotation marks to indicate that the two sentences were not the
ponentes, but were lifted verbatim from two non-adjoining sentences found on pages
331 and 332 of the Yale Law Journal of International Law article of Criddle & Fox-Decent
and with absolutely no attribution to the latter.
B.2 Failure to use quotation marks to indicate that the sentence fragment on peremptory
norms was not the ponentes original writing, but was lifted verbatim from page 334 of
the Yale Law Journal of International Law article of Criddle & Fox-Decent with absolutely
no attribution to the authors.
B.3 Failure to use quotation marks to indicate that the first sentence in discursive
footnote number 71 was not the ponentes idea, but was lifted verbatim from Criddle &
Fox-Decents work at page 334.
B.4 Failure to use quotation marks to indicate that the third sentence in discursive
footnote number 71 was not the ponentes idea, but was lifted from Criddle & FoxDecents work at 334-335.
B.5 Failure to indicate that one footnote source in discursive footnote 71 was lifted
verbatim from discursive footnote 9 of Tams; thus, even the idea being propounded in
this discursive part of footnote 71 was presented as the ponentes, instead of Criddles &
Fox-Decents.
B.6 Failure to indicate that the last discursive sentence in footnote 71 and the citations
thereof were not the ponentes, but were lifted verbatim from footnote 9 of Criddle & FoxDecents work.
B.7 Failure to indicate that the first discursive sentence of footnote 72 was not the
ponentes, but was lifted verbatim from page 335 of Criddle & Fox-Decents work.
B.8 Failure to indicate that the second discursive sentence of footnote 72 was not the
ponentes, but was lifted verbatim from pages 335-336 of Criddle and Fox-Decents
work.
B.9 Failure to indicate that the citation and the discursive passage thereon in the last
sentence of footnote 72 was not the ponentes, but was lifted verbatim from discursive
footnote 18 of Criddle & Fox-Decents work.
B.10 Failure to use quotation marks to indicate that a phrase in the body of the decision
on page 31 was not the ponentes, but was lifted verbatim from page 336 of Criddle &
Fox-Decents work.
B.11 Failure to indicate that the entirety of discursive footnote 73 was not the ponentes,
but was lifted verbatim from page 336 of Criddle & Fox-Decents work.
B.12 Failure to indicate that the idea of lack of "consensus on whether certain
international norms had attained the status of jus cogens" was a paraphrase of a
sentence combined with a verbatim lifting of a phrase that appears on page 336 of
Criddle & Fox-Decents work and was not the ponentes own conclusion. This is an
example of patchwork plagiarism.

B.13 Failure to indicate that the entirety of discursive footnote 74 on page 31 of the
Decision was not the ponentes comment on the source cited, but was lifted verbatim
from footnote 23 of Criddle & Fox-Decents work.
B.14 Failure to indicate through quotation marks and with the proper attribution to
Criddle that the first two sentences of page 32 were not the ponentes, but were lifted
verbatim from two non-adjoining sentences on pages 337-338 of Criddle & Fox-Decents
work.
B.15 Failure to indicate through quotation marks and the right citation that the discursive
sentence in the second paragraph of footnote 77, and the citation therein, were not the
ponentes, but were lifted verbatim from page 346 of the body of Criddle & Fox-Decents
work in the instance of the discursive sentence, and from footnote 72 of Criddle & FoxDecents work in the instance of the case cited and the description thereof.
B.16 Failure to indicate that the choice of citation and the discursive thereon statement
in the second sentence of the second paragraph of discursive footnote 77 was not the
ponentes, but was lifted verbatim from footnote 72 of Criddle & Fox-Decents work.
B.17 Failure to indicate through quotation marks and the right citations that the entirety
of the discursive third to fifth paragraphs of footnote 77 were not the product of the
ponentes own analysis and choice of sources, but were lifted verbatim from footnotes
73 and 77 on pages 346-347 of Criddle & Fox-Decents work.
C.1 to C.6 Failure to use quotation marks and the right citations to indicate that half of
the long discursive footnote 65, including the sources cited therein, was actually
comprised of the rearrangement, and in some parts, rephrasing of 18 sentences found
on pages 227-228 of Mr. Elliss work in Case Western Law Reserve Journal of
International Law.
This painstaking part-by-part analysis of the Vinuya decision is prompted by the fact that so
many, including international academicians, await the Courts action on this plagiarism charge
whether it will in all candor acknowledge that there is a set of conventions by which all
intellectual work is to be judged and thus fulfill its role as an honest court; or blind itself to the
unhappy work of its member.
The text of the Decision itself reveals the evidence of plagiarism. The tearful apology of the legal
researcher to the family of the ponente and her acknowledgment of the gravity of the act of
omitting attributions is an admission that something wrong was committed. Her admission that
the correct attributions went missing in the process of her work is an admission of plagiarism.
The evidence in the text of the Vinuya Decision and the acknowledgment by the legal
researcher are sufficient for the determination of plagiarism.
The Place of the Plagiarized
Portions in the Vinuya Decision
The suspect portions of the majority decision start from the discursive footnotes of the first full
paragraph of page 27. In that paragraph, the idea sought to be developed was that while rape
and sexual slavery may be morally reprehensible and impermissible by international legal
norms, petitioners have failed to make the logical leap to conclude that the Philippines is thus
under international legal duty to prosecute Japan for the said crime. The plagiarized work found
in discursive footnote 65 largely consists of the exposition by Mr. Ellis of the development of the
concept of rape as an international crime. The impression obtained by any reader is that the
ponente has much to say about how this crime evolved in international law, and that he is an
expert on this matter.
There are two intervening paragraphs before the next suspect portion of the decision. The latter
starts from the second paragraph on page 30 and continues all the way up to the first paragraph
of page 32. The discussion on the erga omnes obligation of states almost cannot exist, or at the
very least cannot be sustained, without the plagiarized works of Messrs. Tams, Criddle and
Decent-Fox. There is basis to say that the plagiarism of this portion is significant.
How the Majority Decision
Treated the Specific Allegations
of Plagiarism

The majority Decision narrates and explains:


"The researcher demonstrated by Power Point presentation how the attribution of the lifted
passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report
to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her
"grievous mistake" and grief for having "caused an enormous amount of suffering for Justice Del
Castillo and his family."
On the other hand, addressing the Committee in reaction to the researchers explanation,
counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is
required is for a writer to acknowledge that certain words or language in his work were taken
from anothers work. Counsel invoked the Courts ruling in University of the Philippines Board of
Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards
on plagiarism in the academe should apply with more force to the judiciary.
xxx

xxx

xxx

" although Tams himself may have believed that the footnoting in his case was not "an
appropriate form of referencing," he and petitioners cannot deny that the decision did attribute
the source or sources of such passages. Justice Del Castillo did not pass off Tams work as his
own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma,
whom Tam 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 Justices 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."
xxx
"Footnote 65 appears down the bottom of the page. Since the lengthily passages in that
footnote came almost verbatim from Ellis article, such passages ought to have been introduced
by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve
Journal of International Law (2006), Mark Ellis said.) x x x
"But, as it happened, the acknowledgment above or a similar introduction was missing from
Footnote 65.
xxx
"Admittedly, the Vinuya decision lifted the above, including their footnotes, from CriddleDescents article, A Fiduciary Theory of Jus Cogens. Criddle-Descents footnotes were carried
into the Vinuya decisions own footnotes but no attributions were made to the two authors in
those footnotes.
"Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be
construed as plagiarism. But one of Justice Del Castillos researchers, a court-employed
attorney, 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 lawrelated materials to which the Court subscribes.
xxx

"With the advent of computers, however as Justice Del Castillos researcher also explained,
most legal references, including the collection of decisions of the Court, are found in electronic
diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the
researcher found items that were relevant to her assignment, she downloaded or copied them
into her "main manuscript," a smorgasbord plate of materials that she thought she might need.
The researchers technique in this case is not too far different from that employed by a
carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and
sizes suitable to the object he has in mind, say a table. When ready, he would measure out the
portions he needs, cut them out of the pieces of lumber he had collected, and construct his
table. He would get rid of the scraps.
"Here, Justice Del Castillos researcher did just that. She 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 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 Castillos 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 CriddleDescent 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.
"The Court adopts the Committees finding that the researchers explanation regarding the
accidental removal of proper attributions to the three authors is credible. Given the operational
properties of the Microsoft program in use by the Court, the accidental decapitation of
attributions to sources of research materials is not remote."
Contrary to the view of my esteemed colleagues, the above is not a fair presentation of what
happens in electronically generated writings aided by electronic research.
First, for a decision to make full attribution for lifted passages, one starts with block
quote formatting or the "keying-in" of quotation marks at the beginning and at the end of
the lifted passages. These keyed-in computer commands are not easily accidentally
deleted, but should be deliberately inputted where there is an intention to quote and
attribute.
Second, a beginning acknowledgment or similar introduction to a lengthy passage
copied verbatim should not be accidentally deleted; it must be deliberately placed.
Third, the above explanation regarding the lines quoted in A.1 in the majority Decision
may touch upon what happened in incident A.1, but it does not relate to what happened
in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of
excerpts from both the body and the footnotes of the referenced works, without any
attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention
was made of Tamss work, no mention was made at all of the works of Criddle & FoxDecent and of Ellis even though the discussions and analyses in their discursive
footnotes were used wholesale.
Fourth, the researchers explanation regarding the accidental deletion of 2 footnotes out
of 119 does not plausibly account for the extensive amount of text used with little to no
modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in
Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the
Vinuya decision. All these instances of non-attribution cannot be remedied by the
reinstatement of 2 footnotes.
Fifth, the mention of Tams in "See Tams, Enforcing Obligations Erga omnes in
International Law (2005)" in footnote 69 of the Vinuya decision was not a mere
insufficiency in "clarity of writing," but a case of plagiarism under the rule prohibiting the
use of misleading citations.
Sixth, the analogy that was chosen that of a carpenter who discards materials that do
not fit into his carpentry work is completely inappropriate. In the scheme of "cutting

and pasting" that the researcher did during her work, it is standard practice for the
original sources of the downloaded and copied materials to be regarded as integral parts
of the excerpts, not extraneous or ill-fitting. A computer-generated document can
accommodate as many quotation marks, explanatory notes, citations and attributions as
the writer desires and in multiple places. The limits of most desktop computer drives,
even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes,
capable of accommodating 200 to 400 books per gigabyte (with each book just
consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file
space taken up by an electronic document is practically negligible. It is not as if the
researcher lacked any electronic space; there was simply no attribution.
Seventh, contrary to what is implied in the statement on Microsoft Words lack of an
alarm and in paragraph 4 of the decretal portion of the majority Decision, no software
exists that will automatically type in quotation marks at the beginning and end of a
passage that was lifted verbatim; these attribution marks must be made with deliberate
effort by the human researcher. Nor can a software program generate the necessary
citations without input from the human researcher. Neither is there a built-in software
alarm that sounds every time attribution marks or citations are deleted. The best
guarantee for works of high intellectual integrity is consistent, ethical practice in the
writing habits of court researchers and judges. All lawyers are supposed to be
knowledgeable on the standard of ethical practice, if they took their legal research
courses in law school and their undergraduate research courses seriously. This
knowledge can be easily picked up and updated by browsing many free online sources
on the subject of writing standards. In addition, available on the market are software
programs that can detect some, but not all, similarities in the phraseology of a work-inprogress with those in selected published materials; however, these programs cannot
supply the citations on their own. Technology can help diminish instances of plagiarism
by allowing supervisors of researchers to make partial audits of their work, but it is still
the human writer who must decide to give the proper attribution and act on this decision.
Plagiarism and Judicial Plagiarism
Plagiarism is an act that does not depend merely on the nature of the object, i.e. what is
plagiarized, but also hinges on the process, i.e. what has been done to the object. The elements
of this process are the act of copying the plagiarized work and the subsequent omission in
failing to attribute the work to its author.15 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 from 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.
If the question of plagiarism, then, turns on a failure of attribution, judicial plagiarism in the case
at bar "arises when judges author opinions that employ materials from copyrighted sources such
as law journals or books, but neglect to give credit to the author."16 Doing so effectively implies
the staking of a claim on the copied work as the judge's own.17 Note that there is no requirement
of extent of copying or a minimum number of instances of unattributed usage for an act to be
considered a plagiarist act, nor is the intent to deceive or to copy without attribution a
prerequisite of plagiarism. In Dursht's exhaustive analysis of judicial plagiarism she cites the
case of Newman v. Burgin18 wherein the court said that plagiarism may be done "through
negligence or recklessness without intent to deceive."19 Dursht in addition notes that intent may
also be taken as the intent to claim authorship of the copied work, whether or not there was
intent to deceive, citing Napolitano v. Trustees of Princeton Univ.20
George describes the following among the types of judicial plagiarism:
Borrowed Text: When quoting a legal periodical, law review, treatise or other such source, the
judicial writer must surround the borrowed text with quotation marks or use a block quote. . . .
Additionally, the source should be referenced in the text . . .
Using another's language verbatim without using quotation marks or a block quote is intentional,
as opposed to unintentional, plagiarism.

Reference errors: The judge may fail to put quotation marks around a clause, phrase or
paragraph that is a direct quote from another's writing even though he cites the author correctly.
This is plagiarism even though it may be inadvertent.21
While indeed the notion of having committed judicial plagiarism may be unsettling to
contemplate, as it may raise in the mind of a judge the question of his or her own culpability22, it
is a grievous mistake to overlook the possibility of the commission of judicial plagiarism or the
fact that judicial plagiarism is categorized by its very definition as a subset of plagiarism. That a
judge, in lifting words from a source and failing to attribute said words to said source in the
writing of a decision, committed specifically judicial plagiarism does not derogate from the
nature of the act as a plagiarist act. Nor does any claim of inadvertence or lack of intent in the
commission of a plagiarist act change the characterization of the act as plagiarism.
Penalties for Plagiarism and
Judicial Plagiarism
In the academe, plagiarism is generally dealt with severely when found out; many universities
have policies on plagiarism detailing the sanctions that may be imposed on students who are
found to have plagiarized in their coursework and other academic requirements. These run the
gamut from an automatic failing grade in the course for which the offending work was submitted,
or in more egregious cases, outright expulsion from the university. Sanctions for plagiarism in
the academe operate through "the denial of certification or recognition of achievement"23 to the
extent of rescinding or denying degrees. In the case of law students who do manage to obtain
their degrees, their admission to the bar may be hindered due to questions about their
"character or fitness to practice law."24 Indeed, plagiarism, due to the severity of the penalties it
may incur, is often identified with the punishment of "academic death."25 The academe justifies
the harshness of the sanctions it imposes with the seriousness of the offense: plagiarism is
seen not only to undermine the credibility and importance of scholarship, but also to deprive the
rightful author of what is often one of the most valuable currencies in the academe: credit for
intellectual achievement an act of debasing the coinage, as it were. Thus the rules of many
academic institutions sanctioning plagiarism as a violation of academic ethics and a serious
offense often classed under the broader heading of "academic dishonesty."
The imposition of sanctions for acts of judicial plagiarism, however, is not as clear-cut. While
George recognizes the lack of attribution as the fundamental mark of judicial plagiarism, she
notes in the same breath that the act is "without legal sanction."26 Past instances of censure
notwithstanding (as in examples of condemnation of plagiarism cited by Lebovits et al27, most
particularly the censure of the actions of the judge who plagiarized a law-review article in
Brennan28; the admonition issued by the Canadian Federal Court of Appeal in the case of
Apotex29) there is still no strictly prevailing consensus regarding the need or obligation to
impose sanctions on judges who have committed acts of judicial plagiarism. This may be due in
a large part to the absence of expectations of originality in the decisions penned by judges, as
courts are required to "consider and usually . . . follow precedent."30 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 adhere33. The lack of
definitiveness in sanctions for judicial plagiarism may also be due to the reluctance of judges
themselves to confront the issue of plagiarism in the context of judicial writing; the apprehension
caused by "feelings of guilt" being due to "the possibility that plagiarism has unknowingly or
intentionally been committed" and a "traditional" hesitance to consider plagiarism as "being
applicable to judicial writings."34
Findings of judicial plagiarism do not necessarily carry with them the imposition of sanctions, nor
do they present unequivocal demands for rehearing or the reversal of rulings. In Liggett Group,
Inc., et al v Harold M. Engle, M.D. et al35, a U.S. tobacco class action suit, "[the] plaintiffs'
counsel filed a motion for rehearing alleging that the appellate opinion copied large portions of
the defendants' briefs. . . . without attribution." The result of this, the plaintiffs claimed, was the
creation of the "appearance of impropriety," the abdication of judicative duties, the relinquishing

of independence to defendants, the failure to maintain impartiality, and therefore, as an act of


judicial plagiarism, was "a misrepresentation of the facts found by the trial court and denied
plaintiffs due process of law."36 The three-judge panel denied the motion. In addition, "courts
generally have been reluctant to reverse for the verbatim adoption of prepared findings."37 In
Anderson v. City of Bessemer City, North Carolina38 it was held that even though the trial
judge's findings of fact may have been adopted verbatim from the prevailing party, the findings
"may be reversed only if clearly erroneous."39
On Guilt and Hypocrisy
It is not hypocrisy, contrary to what is implied in a statement in the majority Decision, to make a
finding of plagiarism when plagiarism exists. To conclude thus is to condemn wholesale all the
academic thesis committees, student disciplinary tribunals and editorial boards who have made
it their business to ensure that no plagiarism is tolerated in their institutions and industry. In
accepting those review and quality control responsibilities, they are not making themselves out
to be error-free, but rather, they are exerting themselves to improve the level of honesty in the
original works generated in their institution so that the coinage and currency of intellectual life
originality and the attribution of originality is maintained. The incentive system of intellectual
creation is made to work so that the whole society benefits from the encouraged output.
In the case of judicial plagiarism, it is entirely possible for judges to have violated the rules
against plagiarism out of ignorance or from the sheer fact that in order to cope with their
caseloads, they have to rely on researchers for part of the work. That would have been a very
interesting argument to consider. But ignorance is not pleaded here, nor is the inability to
supervise a legal researcher pleaded to escape liability on the part of the ponente. Rather, the
defense was that no plagiarism existed. This conclusion however is unacceptable for the
reasons stated above.
As noted above, writers have ventured to say that the reluctance to address judicial plagiarism
may stem from fear, nay, guilt.40 Fear that the judge who says plagiarism was committed by
another is himself guilty of plagiarism. But that is neither here nor there. We must apply the
conventions against judicial plagiarism because we must, having taken on that obligation when
the Court took cognizance of the plagiarism complaint, not because any one of us is error-free.
In fact, the statement on hypocrisy in the majority Decision betrays prejudgment of the
complainants as hypocrites, and a complaint against a sitting judge for plagiarism would appear
impossible to win.
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.
As earlier said, a determination of the existence of plagiarism in decision-making is not
conclusive on the disciplinary measure to be imposed. Different jurisdictions have different
treatments. At the very least however, the process of rectification must start from an
acknowledgment and apology for the offense. After such have been done, then consideration of
the circumstances that mitigate the offense are weighed. But not before then.
The Unfortunate Result of
the Majority Decision
Unless reconsidered, this Court would unfortunately be remembered as the Court that made
"malicious intent" an indispensable element of plagiarism and that made computer-keying errors
an exculpatory fact in charges of plagiarism, without clarifying whether its ruling applies only to
situations of judicial decision-making or to other written intellectual activity. It will also weaken
this Courts disciplinary authority the essence of which proceeds from its moral authority
over the bench and bar. In a real sense, this Court has rendered tenuous its ability to positively
educate and influence the future of intellectual and academic discourse.
The Way Forward
Assuming that the Court had found that judicial plagiarism had indeed been committed in the
Vinuya decision, the Court could then have moved to the next logical question: what then is the

legal responsibility of the ponente of the Vinuya decision for having passed on to the Court en
banc a ponencia that contains plagiarized parts?
There would have been at that point two possible choices for the Court vis--vis the ponente
to subject him to disciplinary measures or to excuse him. In order to determine whether the acts
committed would have warranted discipline, the Court should have laid down the standard of
diligence and responsibility that a judge has over his actions, as well as the disciplinary
measures that are available and appropriate.
The Court could also have chosen to attribute liability to the researcher who had admitted to
have caused the plagiarism. In In re Hinden, disciplinary measures were imposed on an
attorney who plagiarized law review articles.41
Response to the Decretal
Portion of the Majority Decision
In view of the above, it is my opinion:
1. That Justice Mariano C. del Castillo and his unnamed researcher have committed
plagiarism in the drafting and passing on of the ponencia in the Vinuya decision;
2. That this Court should request Justice del Castillo to acknowledge the plagiarism and
apologize to the complaining authors for his mistake;
3. That this Court should cause the issuance of a corrected version of the Vinuya
decision in the form of a "Corrigendum";
4. That court attorneys should be provided with the appropriate manuals on writing and
legal citation, and should be informed that the excerpts complained of and described in
Tables A, B, and C of this opinion are acts of plagiarism and not mere editing errors or
computer-generated mistakes;
5. That the refusal of the majority to pronounce that plagiarism was committed by Justice
del Castillo means that any judicial opinion on his liability or that of his researcher would
be academic and speculative, a ruling which this Dissenting Opinion will not venture to
make a pronouncement on; and
6. That a copy of this Dissenting Opinion should be circulated by the Public Information
Office in the same manner as the Majority Decision to the complaining authors Christian
J. Tams, Mark Ellis, Evan Criddle and Evan Fox-Decent.
MARIA LOURDES P. A. SERENO
Associate Justice
Footnotes
1

Isabelita C. Vinuya, et al. v. The Honorable Executive Secretary, et al., G.R. No.
1622309, April 28, 2010.
2

Judges cannot be liable for copyright infringement in their judicial work (Section
184.1(k), R.A. 8293).
3

Justice Mariano del Castillos letter addressed to Chief Justice Renato C. Corona and
Colleagues, dated July 22, 2010.
4

Gordon Harvey, Writing with Sources: A Guide for Harvard Students (Hackett
Publishing Company, 2nd ed. [c] 2008).
5

Id. at 32.

Id. at 33.

Id.

Id. at 34.

Id. at 32-35.

10

Id. at 32.

11

Id. at 33.

12

Harvey, supra at 32.

13

Id. at 32.

14

Id. at 26.

15

Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Observations on the
Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings L. J.
167, at 173.
16

Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo
L. Rev. 1253, at 1.
17

Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook,


<http://books.google.com.ph/books?id=7jBZ4yjmgXUC&pg=PR1&hl=en&lpg=PR1#v=on
epage&q&f=false> (accessed on 10/12/2010).
18

Newman v Burgin, 930 F.2d 955 (1st Cir.) as cited in Dursht, supra at 4 and note 60.

19

Newman v. Burgin, id. at 962 as cited in Dursht, id. at 4 and note 61.

20

453 A.2d 279 (N.J. Super. Ct. Ch. Div. 1982) as cited in Dursht, supra at 1 and note 6.

21

George, supra at 715.

22

Id. at 707-708.

23

Dursht, supra note 16 at 5.

24

In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865, as cited in Dursht, id. at 5 and
note 92.
25

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 (accessed on 02/05/2009, 17:56) 789.
26

George, supra note 17 at 715.

27

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.
28

See In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1989) as cited in Lebovits, et al.,
supra at note 191.
29

Apotex Inc. v. Janssen-Ortho Inc., 2009, as cited in Emir Aly Crowne-Mohammed, 22


No. 4 Intell. Prop. & Tech. L.J. 15, 1.
30

Richard A. Posner, The Little Book of Plagiarism, 22 (2007), and Terri LeClercq,
Failure to Teach: Due Process and Law School Plagiarism, 49 J. Legal Educ., 240
(1999), as cited in Carol M. Bast and Linda B. Samuels, Plagiarism and Legal
Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57
Cath. U.L. Rev. 777, note 85.
31

George, supra note 17 at 708.

32

Lebovits, supra at 265.

33

See generally Dursht; supra note 16; and Lebovits, supra.

34

George, supra note 17 at 707

35

Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003), as cited in Bast
and Samuels, supra at note 102.
36

Id.

37

Counihan v. Allstate Ins. Co., 194 F.3d at 363, as cited in Roger J. Miner, Judicial
Ethics in the Twenty-First Century: Tracing the Trends, 32 Hofstra Law Rev. 1135, note
154.
38

Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985) as cited in Miner, id.

39

United States v. El Paso Natural Gas Co., p. 656, and United States v. Marine
Bancorporation, p. 615, as cited in George, supra note 17 at 719.
40

See Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Observations on
the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings L. J.
167; and Peter Shaw, Plagiary, 51 Am. Scholar 325, 328 (1982); and Green, supra at
180 as cited in George, supra at note 1
41

In re Hinden, 654 A.2d 864 (1995) (U.S.A.).

Republic of the Philippines


SUPREME COURT
Manila
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:
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 ones own" the ideas or words of another. Stealing
implies malicious taking. Blacks Law Dictionary, the worlds 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 ones own."2 The
presentation of another persons ideas as ones own must be deliberate or premeditateda
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 ones self what is not
ones 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 Courts 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 writers 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
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 students 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 often centre round the way in which obligations have been expressed in legal
documents and how the facts of the real world fit the meaning of the words in which the
obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge
will often be sought in articulations that have been tried and tested. In a sense therefore the
community of lawyers have together contributed to this body of knowledge, language, and
expression which is common property and may be utilized, developed and bettered by anyone.7
The implicit right of judges to use legal materials regarded as belonging to the public domain is
not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in
her dissenting opinion, observed in her Judicial Opinion Writing Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of
plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in
a legal periodical or language from a partys 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 judiciarys 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 hereactually the substance of their
decisionsthat 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 judges 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 Halsburys 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 Halsburys. 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.
xxxx
The converse point is that originality in the law is viewed with skepticism. It is only the arrogant
fool or the truly gifted who will depart entirely from the established template and reformulate an
existing idea in the belief that in doing so they will improve it. While over time incremental
changes occur, the wholesale abandonment of established expression is generally considered
foolhardy.9
The Court probably should not have entertained at all the charges of plagiarism against Justice
Del Castillo, coming from the losing party. But it is a case of first impression and petitioners,
joined by some faculty members of the University of the Philippines school of law, have unfairly
maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for
failing to attribute lifted passages from three foreign authors. These charges as already stated
are false, applying the meaning of plagiarism as the world in general knows it.
True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from
their works and used in writing the decision for the Court in the Vinuya case. But, as the Court
said, the evidence as found by its Ethics Committee shows that the attribution to these authors
appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly
qualified and experienced court-employed researcher, she accidentally deleted the same at the
time she was cleaning up the final draft. The Court believed her since, among other reasons,
she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of
other sources she cited in her research, had high reputations in international law.1awphi1

Notably, those foreign authors expressly attributed the controversial passages found in their
works to earlier writings by others. The authors concerned were not themselves the originators.
As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution
to them, there remained in the final draft of the decision attributions of the same passages to the
earlier writings from which those authors borrowed their ideas in the first place. In short, with the
remaining attributions after the erroneous clean-up, the passages as it finally appeared in the
Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del
Castillo but to others. He did not pass them off as his own.
With our ruling, the Court need not dwell long on petitioners allegations that Justice Del Castillo
had also committed plagiarism in writing for the Court his decision in another case, Ang Ladlad
v. Commission on Elections.10 Petitioners are nit-picking. Upon close examination and as
Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in
fact made attributions to passages in such decision that he borrowed from his sources although
they at times suffered in formatting lapses.
Considering its above ruling, the Court sees no point in further passing upon the motion of the
Integrated Bar of the Philippines for leave to file and admit motion for reconsideration-inintervention dated January 5, 2011 and Dr. Peter Payoyos 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.
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice

Footnotes
1

April 28, 2010.

Blacks Law Dictionary (8th Edition, 2004).

Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.

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

Websters Third New International Dictionary, p. 2374.

Blacks Law Dictionary (6th Edition, 1990), p. 1406.

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-3207-43d6-9e8716c3bc2be595.
8

Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by Justice
Maria Lourdes Sereno in her dissenting opinion.
9

Supra note 7.

10

G.R. No. 190582, April 8, 2010.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
CARPIO, J.:
I dissent on two grounds. First, this Court has no jurisdiction to decide in an administrative
case whether a sitting Justice of this Court has committed misconduct in office as this power
belongs exclusively to Congress. Second, in writing judicial decisions a judge must comply with
the Law on Copyright1 as the judge has no power to exempt himself from the mandatory
requirements of the law.
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 the exclusive authority to discipline all impeachable officers for any impeachable
offense, including "betrayal of public trust," a "catchall phrase"2 to cover any misconduct
involving breach of public trust by an impeachable officer.
While impeachment is often described as a political process, it also functions as the equivalent
of administrative disciplinary proceedings against impeachable officers. Impeachable officers
are not subject to administrative disciplinary proceedings either by the Executive or Judicial
branch, in the same manner that non-impeachable officers are subject. Thus, impeachment by
Congress takes the place of administrative disciplinary proceedings against impeachable
officers as there is no other authority that can administratively discipline impeachable
officers.3 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 proceeding8 whether a sitting Justice of this Court has committed
plagiarism. Plagiarism is a betrayal of public trust because, as the majority puts it, to plagiarize
is "to steal and pass off as ones 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 could only weaken the publics
faith in the primacy of the Constitution.
The Supreme Court cannot assume jurisdiction over an administrative complaint against a
sitting Justice of this Court by invoking Section 6, Article VIII of the Constitution. This provision
states that the "Supreme Court shall have administrative supervision over all courts and the
personnel thereof." This provision refers to the administrative supervision that the Department of
Justice used to exercise over the courts and their personnel, as shown by the folowing
exchange during the deliberations of the Constitutional Commission:
MR. GUINGONA: xxx.
The second question has reference to Section 9, about the administrative supervision over all
courts to be retained in the Supreme Court. I was wondering if the Committee had taken into
consideration the proposed resolution for the transfer of the administrative supervision from the
Supreme Court to the Ministry of Justice. But as far as I know, none of the proponents had been
invited to explain or defend the proposed resolution.
Also, I wonder if the Committee also took into consideration the fact that the UP Law
Constitution Project in its Volume I, entitled: Annotated Provision had, in fact, made this an
alternative proposal, the transfer of administrative supervision from the Supreme Court to the
Ministry of Justice.
Thank you.
MR. CONCEPCION: May I refer the question to Commissioner Regalado?
THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is recognized.
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
Ordoez, appeared before us, and asked for the maintenance of the present arrangement
wherein the supervision over lower courts is with the Supreme Court. But aside from that,
although there were no resource persons, we did further studies on the feasibility of transferring
the supervision over the lower courts to the Ministry of Justice. All those things were taken into
consideration motu proprio.10
For sure, the disciplinary authority of the Supreme Court over judges is expressly govened
by another provision, that is, Section 11, Article VIII of the Constitution. Section 11 provides:

Section 11. xxx The Supreme Court en banc shall have the power to discipline judges of
lower courts, or order their dismissal by a vote of a majority of the Members who actually took
part in the deliberations on the issues in the case and voted thereon. (Emphasis supplied)
Clearly, the disciplinary authority of the Supreme Court over judges is found in Section 11 of
Article VIII. However, this disciplinary authority is expressly limited to lower court judges, and
does not incude 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. Morever, a similar law cannot be enacted in the
Philippines bacause all lower court judges are subject to discipline by the Supreme Court en
banc under Section 11, Article VIII of the Constitution. Thus, reference to the Judicial Conduct
and Disability Act of 1980 is inappropriate in this jurisdiction.
I submit that this Court recall the Resolution of 12 October 2010 subject of the present motion
for reconsideration for lack of jurisdiction to decide the administrative complaint against Justice
Mariano C. Del Castillo.
II. The Judge Must Follow the Law on Copyright
a. Copying from Works of the Government
In writing judicial decisions, a judge should make the proper attribution in copying passages
from any judicial decision, statute, regulation, or other Works of the Government. The
Manual of Judicial Writing adopted11 by this Court provides how such attribution should be
made.
However, the failure to make such attribution does not violate the Law on Copyright. 12 The law
expressly provides that Works of the Government are not subject to copyright.13 This means
that there is neither a legal right by anyone to demand attribution, nor any legal obligation from
anyone to make an 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 3.0216 of the Code provide that a
judge must be faithful to the law, maintain professional competence, and strive diligently to
ascertain the facts and the applicable law.
The foregoing applies to any non-copyrightable work, and any work in the public domain,
whether local or foreign.
b. Copying from Pleadings of Parties
In writing judicial decisions, the judge may copy passages from the pleadings of the parties with
proper attribution to the author of the pleading. However, the failure to make the proper
attribution is not actionable.
Pleadings are submitted to the court precisely so that the pleas, or the arguments written on the
pleadings, are accepted by the judge. There is an implied offer by the pleader that the judge
may make any use of the pleadings in resolving the case. If the judge accepts the pleaders
arguments, he may copy such arguments to expedite the resolution of the case. In writing his
decision, the judge does not claim as his own the arguments he adopts from the pleadings of
the parties. Besides, the legal arguments in the pleadings are in most cases merely reiterations
of judicial precedents, which are Works of the Government.
However, misquoting or twisting, with or without attribution, any passage from the pleadings of
the parties, if done to mislead the parties or the public, is actionable. Under Canon 3 of the
Code of Judicial Conduct, a judge "should perform official duties honestly." Rule 3.01 and Rule

3.02 of the Code provide that a judge must be faithful to the law, maintain professional
competence, and strive diligently to ascertain the facts and the applicable law.
c. Copying from Textbooks, Journals and other Non-Government Works
In writing judicial decisions, the judge may copy passages from textbooks, journals and other
non-government works with proper attribution. However, whether the failure to make the proper
attribution is actionable or not depends on the nature of the passages copied.
If the work copied without proper attribution is copyrighted, the failure to make such attribution
violates Section 193 of the Intellectual Property Code, which provides:
Section 193. Scope of Moral Rights. The author of a work shall, independently of the
economic rights in Section 177 or the grant of an assignment or license with respect to such
right, have the right:
193.1. To require that the authorship of the works be attributed to him, in particular, the
right that his name, as far as practicable, be indicated in a prominent way on the copies, and in
connection with the public use of his work;
xxxx
193.3 To object to any distortion, mutilation or other modification of, or other derogatory
action in relation to his work which would be prejudicial to his honor or reputation;
x x x x. (Emphasis supplied)
Section 184(k) of the Intellectual Property Code expressly allows, as a limitation on the
copyright or economic rights of the author, "any use made of a work for the purpose of any
judicial proceedings x x x."17 Section 184(k) clearly authorizes a judge to copy copyrighted
works for "any use" in judicial proceedings, which means the judge, in writing his decision, can
copy passages beyond the quantitative limitations of "fair-use" under Section 184(b). This is the
significance of Section 184(k), allowing the judge to copy lengthy passages of copyrighted work
even beyond what is required by fair-use. Section 184(k) is silent on the obligation of the judge
to make the proper attribution, unlike Section 184(b) on fair-use by the public which expressly
requires a proper attribution.
However, Section 193 nevertheless requires anyone, including a judge writing a judicial
decision, to make the proper attribution to show respect for the moral rights of the author. Thus,
while the author has no right to demand economic compensation from the judge or the
government for the unlimited and public use of his work in a judicial decision, the law requires
that "the authorship of the works be attributed to him x x x in connection with the public
use of his work." In short, the judge is legally obligated to make the proper attribution because
Section 193 protects the moral rights of the author.
The moral rights under Section 193 of the Intellectual Property Code arise only if the work of an
author is copyrighted. If the work is not copyrighted, then there are no moral rights to the work. If
the passages in a textbook, journal article, or other non-work of the government are merely
quotations from Works of the Government, like sentences or paragraphs taken from judicial
decisions, then such passages if copied by a judge do not require attribution because such
passages, by themselves, are Works of the Government. The same is true for works in the
public domain.
However, the arrangement or presentation of passages copied from Works of the Government
may be subject to copyright,18 and a judge copying such arrangement or presentation, together
with the passages, may have to make the proper attribution. If the passages are those of the
author himself, and not copied from Works of the Government or from works in the public
domain, then clearly there is a legal obligation on the part of the judge to make the proper
attribution. Failure by the judge to make such attribution violates not only Section 193 of the
Intellectual Property Code, but also Canon 3 of the Code of Judicial Conduct.
The moral rights of an author are independent of the authors 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 authors 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.

Two essential elements of an authors moral rights are the right to attribution and the right to
integrity. The right to attribution or paternity21 is the right of the author to be recognized as the
originator or father of his work, a right expressly recognized in Section 193.1 of the Intellectual
Property Code. The right to integrity is the right of the author to prevent any distortion or
misrepresentation of his work, a right expressly recognized in Section 193.3 of the Code. The
Legislature incorporated the moral rights of an author in the Intellectual Property Code in
compliance with the treaty obligations of the Philippines under the Berne Convention, which
requires treaty states to enact legislation protecting the moral rights of authors. 22
The rationale behind moral rights is explained in a local intellectual property textbook, citing
American jurisprudence:
The term moral rights has its origins in the civil law and is a translation of the French le droit
moral, which is meant to capture those rights of a spiritual, non-economic and personal nature.
The rights spring from a belief that an artist in the process of creation injects his spirit into the
work and that the artists 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 artists 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 authors work from
being attributed to someone else, and to prevent the use of the authors name on works
created by others, including distorted editions of the authors original work. The right of
integrity allows the author to prevent any deforming or mutilating changes to his work,
even after title of the work has been transferred. In some jurisdictions, the integrity right also
protects artwork from destruction. Whether or not a work of art is protected from destruction
represents a fundamentally different perception of the purpose of moral rights. If integrity is
meant to stress the public interest in preserving a nations culture, destruction is prohibited; if
the right is meant to emphasize the authors 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 authors
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.
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 Courts jurisdiction extends only to a determination whether
the administrative complaint against Justice Mariano C. Del Castillo constitutes contempt of this
Court.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1

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

Volume II, Records of the Constitutional Commission, p. 272. The following exchange
took place during the deliberations of the Constitutional Commission:
MR. REGALADO: Thank you, Madam President.
xxx
First, this is with respect to Section 2, on the grounds for impeachment, and I
quote:
. . . culpable violation of the Constitution, treason, bribery, other high crimes, graft
and corruption or betrayal of public trust.
Just for the record, what would the Committee envision as a betrayal of the
public trust which is not otherwise covered by the other terms antecedent
thereto?
MR. ROMULO: I think, if I may speak for the Committee and subject to further
comments of Commissioner de los Reyes, the concept is that this is a catchall
phrase. Really, it refers to his oath of office, in the end that the idea of a public
trust is connected with the oath of office of the officer, and if he violates that oath
of office, then he has betrayed that trust.
MR. REGALADO: Thank you.
MR. MONSOD: Madam President, may I ask Commissioner de los Reyes to
perhaps add to those remarks.
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-disciplinereform.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.
xxxx
The Commission concludes that a statute providing for the removal from office of
judges who serve on good behavior under Article III by means other than
impeachment and conviction would be unconstitutional. (Emphasis
supplied; citations omitted)
4

Section 3(7), Article XI of the Constitution provides: "Judgment in cases of


impeachment shall not extend further than removal from office and disqualification to
hold any office under the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and punishment according to
law."
5

There are those who, with good reason, believe that removal from office is the
maximum penalty in impeachment and thus there can be lesser penalties like censure.
See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process,
18 Yale Law & Policy Review 53 (1999).
6
7

See note 4.

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 Nixons improper discussions with a
state prosecutor in a case involving a business acquaintances 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
Senates 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.

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 Blacks Law Dictionary.

10

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

11

Approved by the En Banc on 15 November 2005.

12

Part IV of RA No. 8293, otherwise known as the "Intellectual Property Code of the
Philippines."
13

Section 176 of RA No. 8293 provides: "Works of the Government. No copyright shall
subsist in any work of the Government of the Philippines. xxx."
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) x x x x
xxxx
(k) Any use made of a work for the purpose of any judicial proceedings or for the
giving of professional advice by a legal practitioner."
18

Section173.1 (b), Intellectual Property Code.

19

Section 198.1 of the Intellectual Property Code provides that the "[moral] rights of an
author x x x shall not be assignable or subject to license."
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)
The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
SERENO, J.:
Judges need not strain themselves to meet inapplicable standards of research and attribution of
sources in their judicial opinions, nor seek to achieve the scholarly rigidity or thoroughness
observed in academic work. They need to answer to only two standards diligence and
honesty. By honesty here is meant that good faith attempt to attribute to the author his original
words and analysis.
Even if a judge has to rely in large part on the drafts of his legal researchers, the work of a
diligent and honest judge will never display the severe plagiarism evident in the Vinuya Decision
published under the name of Justice Mariano C. del Castillo. A judge will only find himself in the
same predicament as Justice del Castillo if two situations coincide: (1) the judge wittingly or
unwittingly entrusts a legal researcher with the task of drafting his judicial opinion, and the legal
researcher decides to commit severe plagiarism; and (2) the judge: (a) does not read and study
the draft decision himself; (b) even if he does read and study the same, the "red flags" that are
self-evident in the draft decision completely escape him; or (c) despite having seen the red
flags, he ignores them.
We use the words "severe plagiarism" here deliberately because not only were three (3) works
of the four (4) complaining authors1 plagiarized in Vinuya, text from the following copyrighted
works was copied without attribution as well: essays contributed by Robert McCorquodale and
Phoebe Okowa to the book International Law, edited by Malcolm 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 Militarys Comfort Women; and an article by James Ladino,
entitled Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution
121. In addition, incorporated into Vinuya were excerpts from a decision of an international
tribunal without any signal given to the reader that the words were not those of Justice del
Castillo of the Philippine Supreme Court but the words of another tribunal. While there are views
that a judge cannot be guilty of plagiarism for failure to recognize foreign decisions as source
materials in ones 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 ones 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 Decisions discussion on international law,
which begins in page 24 and continues to the end (2,869 out of 5,419 words), are copied
without attribution from other works.
The Vinuya Decision, therefore, because of the severity of the plagiarism attending it, is the
worst possible context for the Majority to draw, in its Decision dated 12 October 2010 and in its
Resolution denying the Motion for Reconsideration, the following conclusions:
1. that plagiarism requires the element of "malicious intent";
2. that calibrating its ruling in response to the outcry of the academic community after
the Majority 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 counteraccused 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.
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 to one table entry.
Following the presentation of the tables, the process whereby plagiarism could have been
committed in Vinuya is examined. The severe extent of plagiarism, which is already evident in
the tables, is discussed further, followed by an analysis of the systematic commission of
plagiarism in Vinuya. This analysis consists of the detailed dissection of specific parts of the
Vinuya decision: the text of the body in pages 31-32, and the first paragraph of footnote 65. The
research process purportedly used by the legal researcher of Vinuya is then broken down into
separate steps that illustrate the decision points at which an honest and diligent researcher
would have ensured that proper attribution to sources be given. This is then followed by a closer
examination of the deletion of existing citations and the features of Microsoft Word relevant to
the deletion of footnotes.
II. Technical Analysis of Plagiarism in Vinuya
A. More Plagiarism
Below are new tables of comparison excluding materials in tables already discussed in my
earlier Dissent to the majority Decision in AM 10-7-17-SC of excerpts from the Decision in
Vinuya vis-a-vis text from one (1) book on international law, five (5) foreign law journal articles,
and a copyrighted report of the United States Congressional Research Service. While the
degree of seriousness of the offense of unattributed copying varies with the kind of material
copied, the 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-Decents article in the Yale Journal of
International Law, entitled A Fiduciary Theory of Jus Cogens (2009) and the Supreme Courts
28 April 2010 Decision in Vinuya v. Executive Secretary.
The Allegedly
Plagiarized Work
Evan J. Criddle & Evan FoxDecent, A Fiduciary Theory of
Jus Cogens, 34 Yale J. Int'l L.
331 (2009).
1. ...judges on the Permanent
Court of International Justice
affirmed the existence of
peremptory norms in
international law by referencing
treaties contra bonos mores
(contrary to public policy) in a
series of individual concurring
and dissenting opinions.[10]
[10] For example, in the 1934
Oscar Chinn Case, Judge
Schcking's influential dissent
stated that neither an
international court nor an arbitral
tribunal should apply a treaty
provision in contradiction to
bonos mores. Oscar Chinn
Case, 1934 P.C.I.J. (ser. A/B)
No. 63, at 149-50 (Dec. 12)
(Schcking, J., dissenting).
(p. 335 of Criddle and FoxDecent)

The Decision

Vinuya v. Executive Secretary,


G.R. No. 162230, 28 April 2010.

...Judges on the Permanent


Court of International Justice
affirmed the existence of
peremptory norms in international
law by referencing treaties contra
bonos mores (contrary to public
policy) in a series of individual
concurring and dissenting
opinions. (For example, in the
1934 Oscar Chinn Case, Judge
Schcking's influential dissent
stated that neither an
international court nor an arbitral
tribunal should apply a treaty
provision in contradiction to
bonos mores. Oscar Chinn Case,
1934 P.C.I.J. (ser. A/B) No. 63, at
149-50 (Dec. 12) (Schcking, J.,
dissenting).
(p. 31, footnote 71 of Vinuya)

International
Source Being
Analyzed by
Criddle and
Fox-Decent

...It is an
essential
principle of any
court, whether
national or
international,
that the judges
may only
recognize legal
rules which
they hold to be
valid. There is
nothing to show
that it was
intended to
disregard that
legal principle
when this Court
was instituted,
or that it was to
be obliged to
found its
decisions on
the ideas of the
partieswhich
may be entirely
wrongas to the
law to be
applied in a
given case.
The Court
would never, for
instance, apply
a convention
the terms of
which were
contrary to
public morality.
But, in my view,
a tribunal finds
itself in the
same position if
a convention
adduced by the
parties is in
reality null and

void, owing 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:
The Oscar
Chinn Case
(U.K. v. Belg.),
1934 P.C.I.J.
(ser. A/B) No.
63, at 149-50
(Dec. 12)
(separate
opinion of
Judge
Schcking).
2. While the ICJ recently endorsed
the jus cogens concept for the
first time in its 2006 Judgment
on Preliminary Objections in
Armed Activities on the Territory
of the Congo (Congo v.
Rwanda), it declined to clarify jus
cogens's legal status or to
specify any criteria for identifying
peremptory norms.[67]

While the ICJ recently endorsed


the jus cogens concept for the
first time in its 2006 Judgment on
Preliminary Objections in Armed
Activities on the territory of the
Congo (Congo v. Rwanda), it
declined to clarify jus cogenss
legal status or to specify any
criteria for identifying peremptory
norms. (Armed Activities on the
Territory of the Congo,
Jurisdiction of the Court and
Admissibility of the Application
(Dem. Rep. Congo v. Rwanda)
(Judgment of February 3, 2006),
at 31-32, available at
http://www.icjcij.org/docket/files/126/10435.pdf.

[67] Armed Activities on the


Territory of the Congo,
Jurisdiction of the Court and
Admissibility of the Application
(Dem. Rep. Congo v. Rwanda)
(Judgment of Feb. 3, 2006), at
31-32, available at
http://www.icjcij.org/docket/files/126/10435.pdf (p. 32, footnote 77 of Vinuya)
(last visited Mar. 31, 2009).
(p. 346, footnote 67 of Criddle
and Fox-Decent)

[64]....The
Court observes,
however, as it
has already had
occasion to
emphasize, that
"the erga
omnes
character of a
norm and the
rule of consent
to jurisdiction
are two
different
things"..., and
that the mere
fact that rights
and obligations
erga omnes
may be at issue
in a dispute
would not give
the Court
jurisdiction to
entertain that
dispute.

The same
applies to the
relationship
between
peremptory
norms of
general
international
law (jus
cogens) and
the
establishment
of the Courts
jurisdiction: the
fact that a
dispute relates
to compliance
with a norm
having such a
character,
which is
assuredly the
case with
regard to the
prohibition of
genocide,
cannot of itself
provide a basis
for the
jurisdiction of
the Court to
entertain that
dispute. Under
the Courts
Statute that
jurisdiction is
always based
on the consent
of the parties.
Source:
Armed
Activities on the
Territory of the
Congo (Dem.
Rep. Congo v.
Rwanda), 2006
I.C.J. 6, 31-32
(Feb. 3).
3. Similarly, the European Court of
Human Rights has addressed
jus cogens only once, in AlAdsani v. United Kingdom, when
it famously rejected the
argument that jus cogens
violations would deprive a state
of sovereign immunity.[75]

[77] Similarly, the European


Court of Human Rights has
addressed jus cogens only once,
in Al-Adsani v. United Kingdom,
when it famously rejected the
argument that jus cogens
violations would deprive a state
of sovereign immunity. Al-Adsani

[61] While the


Court accepts,
on the basis of
these
authorities, that
the prohibition
of torture has
achieved the

[75] Shelton, supra note 3, at


309 (discussing Al-Adsani v.
United Kingdom, 2001-XI Eur.
Ct. H.R. 79, 61).
(p. 347 of Criddle and FoxDecent)

v. United Kingdom, 2001-XI Eur.


Ct. H.R. 79, 61)
(p. 32, footnote 77 of Vinuya)

status of a
peremptory
norm in
international
law, it observes
that the present
case
concerns the
immunity of a
State in a civil
suit for
damages in
respect of acts
of torture within
the territory of
that State.
Notwithstanding
the special
character of the
prohibition of
torture in
international
law, the Court
is unable to
discern in the
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:
Al-Adsani v
United
Kingdom, App.
No. 35763/97,
34 Eur. H.R.
Rep. 11, par.
61 (2002)(21
Nov. 2001).

TABLE B: Comparison of Mark Elliss article entitled Breaking the Silence: Rape as an
International Crime (2006-2007) and the Supreme Courts 28 April 2010 Decision in Vinuya v.
Executive Secretary.

The Allegedly
Copied Work

The Decision

Mark Elliss article entitled Vinuya v. Executive


Breaking the Silence:
Secretary, G.R. No.
Rape as an International
162230, 28 April 2010.
Crime 38 Case W. Res. J.
Intl. L. 225(2006-2007).
1. A major step in this legal
development came in
1949, when rape and
sexual assault were
included in the Geneva
Conventions.... Rape is
included in the following
acts committed against
persons protected by the
1949 Geneva
Conventions: "wilful
killing, torture or inhuman
treatment, including
biological experiments;
wilfully causing great
suffering or serious injury
to body or health."
[65] Fourth Geneva
Convention, supra note
23, art. 147.
(p. 236 of Ellis)

[65] A major step in this


legal development came
in 1949, when rape and
sexual assault were
included in the Geneva
Conventions. Rape is
included in the following
acts committed against
persons protected by the
1949 Geneva
Conventions: "willful
killing, torture or inhuman
treatment, including
biological experiments;
willfully causing great
suffering or serious injury
to body or health." (See
Geneva Convention for
the Amelioration of the
Condition of the Wounded
and Sick in Armed Forces
in the Field, art. 3(1)(c),
75 U.N.T.S. 31; Geneva
Convention for the
Amelioration of the
Condition of Wounded,
Sick and Shipwrecked
Members of Armed
Forces at Sea, art.
3(1)(c), 75 U.N.T.S. 85;
Geneva Convention
Relative to the Treatment
of Prisoners of War, art.
3(1)(c), 75 U.N.T.S. 973;
Fourth Geneva
Convention, supra note
23, art. 3(1)(c).

International Source
Being Analyzed by Ellis

[Article 50/51/147]
Grave breaches to which
the preceding Article
relates shall be those
involving any of the
following acts, if
committed against
persons protected by
the Convention: willful
killing, torture or inhuman
treatment, including
biological experiments,
wilfully causing great
suffering or serious injury
to body or health.
Source:
Geneva Convention (I) for
the Amelioration of the
Condition of the Wounded
and Sick in Armed Forces
in the Field, 75 U.N.T.S.
31; Geneva Convention
(II) for the Amelioration of
the Condition of
Wounded, Sick and
Shipwrecked Members of
Armed Forces at Sea, 75
U.N.T.S. 85; Geneva
Convention (III) Relative
to the Treatment of
Prisoners of War, 75
U.N.T.S. 973; Geneva
Convention (IV) Relative
to the Protection of
Civilian Persons in Time
of War, 75 U.N.T.S. 287.

(p. 28, footnote 65 of


Vinuya)
2. Rape as a violation of the
laws or customs of war
generally consists of
violations of Article 3 of
the 1949 Geneva
Conventions, which, in
part, prohibits "violence to

[65] Rape as a violation


of the laws or customs of
war generally consists of
violations of Article 3 of
the 1949 Geneva
Conventions, which, in
part, prohibits "violence to

Article 3

(a) violence to life and


person, in particular
murder of all kinds,
mutilation, cruel treatment

life and person, in


particular mutilation, cruel
treatment and torture;
outrages upon personal
dignity, in particular
humiliating and degrading
treatment."[66]

life and person, in


particular mutilation, cruel
treatment and torture;
outrages upon personal
dignity, in particular
humiliating and degrading
treatment." (See Geneva
Convention for the
66 See Geneva
Amelioration of the
Convention for the
Condition of the Wounded
Amelioration of the
Condition of the Wounded and Sick in Armed Forces
and Sick in Armed Forces in the Field, art. 3(1)(c),
75 U.N.T.S. 31; Geneva
in the Field, art. 3(1)(c),
Convention for the
75 U.N.T.S. 31; Geneva
Amelioration of the
Convention for the
Condition of Wounded,
Amelioration of the
Sick and Shipwrecked
Condition of Wounded,
Members of Armed
Sick and Shipwrecked
Forces at Sea, art.
Members of Armed
3(1)(c), 75 U.N.T.S. 85;
Forces at Sea, art.
Geneva Convention
3(1)(c), 75 U.N.T.S. 85;
Relative to the Treatment
Geneva Convention
Relative to the Treatment of Prisoners of War, art.
3(1)(c), 75 U.N.T.S. 973;
of Prisoners of War, art.
Fourth Geneva
3(1)(c), 75 U.N.T.S. 973;
Convention, supra note
Fourth Geneva
23, art. 3(1)(c).
Convention, supra note
23, art. 3(1)(c)....
(p. 28, footnote 65 of
Vinuya)
(p. 236 of Ellis)
3. Article 27 of the Fourth
Geneva Convention,
directed at protecting
civilians during time of
war, states that "women
shall be especially
protected against any
attack on their honour, in
particular against rape,
enforced prostitution, or
any form of indecent
assault."[67]
[67] Fourth Geneva
Convention, supra note
23, art. 27.

[65] Article 27 of the


Fourth Geneva
Convention, directed at
protecting civilians during
time of war, states that
"women shall be
especially protected
against any attack on
their honour, in particular
against rape, enforced
prostitution, or any form of
indecent assault."
(p. 28, footnote 65 of
Vinuya)

and torture;
(b) taking of hostages;
(c) outrages upon
personal dignity, in
particular humiliating and
degrading treatment;
Source:
Geneva Convention (I) for
the Amelioration of the
Condition of the Wounded
and Sick in Armed Forces
in the Field, 75 U.N.T.S.
31; Geneva Convention
(II) for the Amelioration of
the Condition of
Wounded, Sick and
Shipwrecked Members of
Armed Forces at Sea, 75
U.N.T.S. 85; Geneva
Convention (III) Relative
to the Treatment of
Prisoners of War, 75
U.N.T.S. 973; Geneva
Convention (IV) Relative
to the Protection of
Civilian Persons in Time
of War, 75 U.N.T.S. 287.

Article 27
Women shall be
especially protected
against any attack on
their honour, in particular
against rape, enforced
prostitution, or any form of
indecent assault.
Source:
Geneva Convention (IV)
Relative to the Protection
of Civilian Persons in
Time of War, 75 U.N.T.S.
287.

(pp. 236 of Ellis)


4. Protocol I of the Geneva
Conventions continues to
expand the protected
rights by providing that
"women shall be the
object of special respect
and shall be protected in
particular against rape,
forced prostitution and

[65] Protocol I of the


Geneva Conventions
continues to expand the
protected rights by
providing that "women
shall be the object of
special respect and shall
be protected in particular
against rape, forced

Article 76.-Protection of
women
1. Women shall be the
object of special respect
and shall be protected in
particular against rape,
forced prostitution and
any other form of indecent

any form of indecent


assault."[68]
[68] Protocol Additional to
the Geneva Conventions
of 12 August 1949, and
Relating to the Protection
of Victims of International
Armed Conflicts (Protocol
I), Article 76(1), 1125
U.N.T.S. 4.
(pp. 236-237 of Ellis)

prostitution and any form


of indecent assault."
(Protocol Additional to the
Geneva Conventions of
August 12, 1949, and
Relating to the Protection
of Victims of International
Armed Conflicts (Protocol
I), Article 76(1), 1125
U.N.T.S. 4).

assault.
Source:
Protocol Additional to the
Geneva Conventions of
12 August 1949, and
relating to the Protection
of Victims of International
Armed Conflicts (Protocol
I), 1125 U.N.T.S. 3.

(p. 28, footnote 65 of


Vinuya)

TABLE C: Comparison of Robert McCorquodales work, entitled The Individual and the
International Legal System,4 and Phoebe Okowas work, entitled Issues of Admissibility and the
Law on International Responsibility,5 both of which were published in Malcolm Evanss book
(International Law), and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R.
No. 162230, 28 April 2010.
The Allegedly
Copied Work

1.

The Decision

Essays published in
Malcolm Evans,
International Law (ed.,
2006).

Vinuya v. Executive
Secretary, G.R. No.
162230, 28 April 2010.

Traditionally, the only


means available for
individuals to bring a
claim within the
international legal system
has been when the
individual is able to
persuade a government
to bring a claim on the
individuals behalf. Even
then, it is not the
individuals international
rights that are being
asserted but the States
own rights.

traditionally, the only


means available for
individuals to bring a
claim within the
international legal system
has been when the
individual is able to
persuade a government
to bring a claim on the
individuals behalf.[55]

(p. 315-16 of Evanss


International Law book,
essay written by
McCorquodale)

[55] Appeal from a


Judgment of the
Hungaro/Czeochoslovak
Mixed Arbitral Tribunal,
Judgment, 1933, PCIJ,
Ser. A/B No. 61, p. 208 at
231.

Even then, it is not the


individuals rights that are
being asserted, but
rather, the states own
rights.

(p. 24, Body of Vinuya)

International Source
Being Analyzed and
Used by McCorquodale
/ Okowa

Note:
Page 231 of the Appeal
from a Judgment of the
Hungaro-Czechoslovak
Mixed Arbitral Tribunal
case the citation
nearest in location and in
context to the passage
does not contain a
discussion on
"persuad[ing] a
government to bring a
claim on the individuals
behalf."
The reference to Appeal
from a Judgment of the
Hungaro-Czechoslovak
Mixed Arbitral Tribunal
case occurs in
McCorquodale as
footnote 14, four
sentences before the
passage copied by
Vinuya, and is made
following the quote, it is
scarcely necessary to
point out that the
capacity to possess civil
rights does not

necessarily imply the


capacity to exercise
those rights oneself.
In McCorquodale, the
citation following the
discussion on how "it is
not the individuals
international rights that
are being asserted but
the States own rights" is
written thus in footnote
16: [16] PanevezeysSaldutiskis 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
understanding that
individuals have rights
and responsibilities in the
international legal system
does not automatically
mean that they have the
ability to bring
international claims to
assert their rights or are
able to claim an immunity
to prevent their
responsibilities being
enforced (Hohfeld,
above). Thus the PCIJ
declared that it is
scarcely necessary to
point out that the capacity
to possess civil rights
does not necessarily
imply the capacity to
exercise those rights
oneself.[14]
[14] Appeal from a
Judgment of the
Hungaro/Czechoslovak
Mixed Arbitral Tribunal,
Judgment, 1933, PCIJ,
Ser A/B, No 61, p 208 at
p 231
(p. 315 of Evanss
International Law book,
essay written by
McCorquodale)

[55] The conceptual


understanding that
individuals have rights
and responsibilities in the
international arena does
not automatically mean
that they have the ability
to bring international
claims to assert their
rights. Thus, the
Permanent Court of
International Justice
declared that "it is
scarcely necessary to
point out that the capacity
to possess civil rights
does not necessarily
imply the capacity to
exercise those rights
oneself." Appeal from a
Judgment of the
Hungaro/Czeochoslovak
Mixed Arbitral Tribunal,
Judgment, 1933, PCIJ,
Ser. A/B No. 61, p. 208 at
231.
(p. 24, footnote 55 of
Vinuya)

Again, it is scarcely
necessary to point out
that the capacity to
possess civil rights does
not necessarily imply the
capacity to exercise
those rights oneself. No
argument against the
University's personality in
law can therefore be
deduced from the fact
that it did not enjoy the
free disposal of the
property in question....
Source:
Appeal from a Judgment
of the HungaroCzechoslovak Mixed
Arbitral Tribunal (Peter
Pzmny University v.
Czechoslovakia), 1933
P.C.I.J. 208, (ser. A/B)
No. 61, at 231 (Dec. 15).

3.

The decisions of national


courts on these
constitutional provisions
nevertheless support the
thesis that general
international law as it
stands does not mandate
an enforceable legal duty
of diplomatic
protection.[17]

Even decisions of national


courts support the thesis
that general international
law as it stands does not
mandate an enforceable
legal duty of diplomatic
protection.
(p. 26, footnote 63 of
Vinuya)

[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 denied that it was
required by customary
international law. See
also Abbasi v Sec of
Foreign and
Commonwealth Affairs
and Sec of Home Office
[2002] EWCA Civ 1598, 6
November 2002.

Note:
In Okowas essay, this
statement follows a
paragraph in which she
discusses Kaunda in the
context of discretionary
diplomatic protection.
Thus, for the pertinent
passages of Kaunda
please see entry 5 of this
table.

(p. 484 of Evanss


International Law book,
essay written by Okowa)
4.

This position was been


challenged in the UK in a
case arising from the
clearly internationally
unlawful detention by the
US of prisoners in
Guantanamo Bay from
the time of the
Afghanistan conflict in
2001. In Abassi v
Secretary of State for
Foreign and
Commonwealth
Affairs[19] the applicant (a
British national) sought
judicial review of the
adequacy of the
diplomatic actions of the
British government with
the US government.
(p. 316 of Evanss
International Law book,

[63] has been


challenged in the UK in a
case arising from the
unlawful detention by the
US of prisoners in
Guantanamo Bay from
the time of the
Afghanistan conflict in
2001. In Abbasi v
Secretary of State for
Foreign and
Commonwealth Affairs
([2002] EWCA Civ 1316,
19 September 2002) the
applicant (a British
national) sought judicial
review of the adequacy of
the diplomatic actions of
the British government
with the US
government.
(p. 26, footnote 63 of

1. Feroz Ali Abbasi, the


first claimant, is a British
national.... They seek, by
judicial review, to compel
the Foreign Office to
make representations on
his behalf to the United
States Government or to
take other appropriate
action or at least to give
an explanation as to why
this has not been done.
...
107. ...On no view would
it be appropriate to order
the 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 human

essay written by
McCorquodale)

Vinuya)

right, as it is obvious that


this would have an
impact on the conduct of
foreign policy.
Source:
Abbasi v. Secretary of
State for Foreign and
Commonwealth Affairs,
42 I.L.M. 358, 359-383
(2003)(Nov. 6)(U.K.).

5.

The South African


Constitutional Court in
Kaunda and others v
President of the Republic
of South Africa and
others[16] recognized the
constitutional basis of the
right of diplomatic
protection as enshrined in
the South African
constitution, but went on
to hold that the nature
and extent of his
obligation was an aspect
of foreign policy within the
discretion of the
executive.

[63] The South African


Constitutional Court in
Kaunda and others v.
President of the Republic
of South Africa and others
(Case CCCT23/04)
recognized the
constitutional basis of the
right of diplomatic
protection as enshrined in
the South African
Constitution, but went on
to hold that the nature
and extent of this
obligation was an aspect
of foreign policy within the
discretion of the
executive.

[16] Kaunda and others v.


President of the Republic (p. 27, footnote 63 of
of South Africa and
Vinuya)
others, Case CCCT23/04.
(p. 484 of Evanss
International Law book,
essay written by Okowa)

[65] The founding values


of our Constitution
include human dignity,
equality and the
advancement of human
rights and freedoms.

[69] There may thus be a


duty on government,
consistent with its
obligations under
international law, to take
action to protect one of
its citizens against a
gross abuse of
international human
rights norms....

[73] A court cannot tell


the government how to
make diplomatic
interventions for the
protection of its
nationals.

[77] A decision as to
whether, and if so, what
protection should be
given, is an aspect of
foreign policy which is
essentially the function of
the executive. The timing
of representations if they
are to be made, the
language in which they
should be couched, and
the sanctions (if any)
which should follow if
such representations are
rejected are matters with
which courts are ill
equipped to deal.
Source:

Kaunda v. President of
the Republic of South
Africa, 44 I.L.M. 173,
pars. 65-77 (2005) (C.
Ct. S. Afr.).
TABLE D: Comparison of Mariana Salazar Albornozs article, Legal Nature and Legal
Consequences of Diplomatic Protection: Contemporary Challenges, and the Supreme Courts
Decision in Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.
The Allegedly
Copied Work

1.

The Decision

Mariana Salazar
Albornoz, Legal Nature
and Legal Consequences
of Diplomatic Protection:
Contemporary
Challenges, 6 Anuario
Mexicano de Derecho
Internacional 377 (2006)

Vinuya v. Executive
Secretary, G.R. No.
162230, 28 April 2010.

The Purported "Original"


Source Cited by the
Concerned Authors and
in the Vinuya Decision

Nowhere is this position


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

Nowhere is this position


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

By taking up the case of


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

By taking up the case of


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

By taking up the case of


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

[85] Mavrommatis
Palestine Concessions
case, supra note 9, p. 12.
The emphasis is ours.
This traditional view was
repeated by the PCIJ in
the Panevezys-Saldutiskis
Railway Case, the Case
Concerning the Payment
of Various Serbian Loans
issued in France,
Judgment of July 12,
1929, PCIJ Reports,
Series A No. 20; and in
the Case Concerning the
Factory at Chorzow,
Judgment of September
13, 1928, Merits, PCIJ
Reports, Series A No. 17.
The ICJ has adopted it in
the Reparation for injuries
suffered in the service of
the United Nations
Advisory Opinion: ICJ
Reports 1949, p. 174; the
Nottebohm Case (second
phase) Judgment of April
6th, 1955: ICJ Reports
1955, p. 4 at p. 24; the
Interhandel Case
(Judgment of March 21st,
1959: ICJ Reports 1959,
p. 6 at p. 27) and the
Barcelona Traction Light
and Power Company,
Limited case, supra note
6, at p. 32 par. 33. It has
also been recognized by
other international
tribunals: see, for
example, Administrative
Decision No. V of the USGerman Claims
Commission.

[56] PCIJ, Ser. A, No. 2,


p. 11, at 16. This
traditional view was
repeated by the PCIJ in
the Panevezys-Saldutiskis
Railway Case, the Case
Concerning the Payment
of Various Serbian Loans
issued in France,
Judgment of July 12,
1929, PCIJ Reports,
Series A No. 20; and in
the Case Concerning the
Factory at Chorzow,
Judgment of September
13, 1928, Merits, PCIJ
Reports, Series A No. 17.
The ICJ has adopted it in
the Reparation for injuries
suffered in the service of
the United Nations
Advisory Opinion: ICJ
Reports 1949, p. 174; the
Nottebohm Case (second
phase) Judgment of April
6th, 1955: ICJ Reports
1955, p. 4 at p. 24; the
Interhandel Case
(Judgment of March 21st,
1959: ICJ Reports 1959,
p. 6 at p. 27) and the
Barcelona Traction Light
and Power Company,
Limited case, (Belg. V.
Spain), 1970 I.C.J. 3, 32
(Feb. 5).

Article 26 of the
Palestine Mandate.
Source:
Mavrommatis Palestine
Concessions (Greece v.
Gr. Brit.), 1924 P.C.I.J.
(ser. A) No. 2, at 12
(Aug. 30).

(p. 24 Body of Vinuya)

(p. 397 of Albornoz)


2.

Under this view, the


considerations underlying
the decision to exercise or
not diplomatic protection
may vary depending on
each case and may rely
entirely on policy
considerations regardless
of the interests of the
directly-injured individual,
and the State is not
required to provide

[57] See Borchard, E.,


Diplomatic Protection of
Citizens Abroad at VI
(1915). Under this view,
the considerations
underlying the decision to
exercise or not diplomatic
protection may vary
depending on each case
and may rely entirely on
policy considerations
regardless of the interests

The citizen abroad has


no legal right to require
the diplomatic protection
of his national
government. Resort to
this remedy of diplomatic
protection is solely a
right of the government,
the justification and
expediency of its
employment being a
matter for the

justification for its


decision.[90]
[90] See in this sense,
Borchard E., Diplomatic
Protection of Citizens
Abroad, New York, The
Banks Law Publishing
Co., 1915, at VI. Also: G.
Berlia, op. cit. (note 86),
pp. 63 y 64.

of the directly-injured
individual, and the State
is not required to provide
justification for its
decision.
(p. 25, footnote 57 of
Vinuya)

(p. 398 of Albornoz)

governments
unrestricted discretion.
This protection is subject
in its grant to such rules
of municipal
administrative law as the
state may adopt, and in
its exercise
internationally to certain
rules which custom has
recognized.
Source:
Edwin M. Borchard, The
Diplomatic Protection of
Citizens Abroad or the
Law of International
Claims, vi (1914).

3.

The ILCs First Reading


Draft Articles on
diplomatic protection have
fully attached to the
traditional view on the
legal nature of such
institution. In this sense,
(i) they expressly state
that "the right of
diplomatic protection
belongs to or vests in the
State", a statement which
"gives recognition to the
Vattelian notion that an
injury to a national is an
indirect injury to the
State";[96] (ii) they affirm
its discretionary nature by
clarifying that diplomatic
protection is a "sovereign
prerogative" of the
State;[97] and stressing
that the state "has the
right to exercise
diplomatic protection on
behalf of a national. It is
under no duty or
obligation to do so."[98]
[96] ILC First Reading
Draft Articles on
Diplomatic Protection,
supra note 13, par. 60,
Commentary to Draft
Article 2, par. (1); see
also, Commentary to Draft
Article 1, par. (3), and text
of Draft Article 2.
[97] Report of the

The International Law


Commissions (ILCs)
Draft Articles on
Diplomatic Protection fully
support this traditional
view. They (i) state that
"the right of diplomatic
protection belongs to or
vests in the State,"[59] (ii)
affirm its discretionary
nature by clarifying that
diplomatic protection is a
"sovereign prerogative" of
the State;[60] and (iii)
stress that the state "has
the right to exercise
diplomatic protection on
behalf of a national. It is
under no duty or
obligation to do so."[61]

60. The texts of the draft


articles on diplomatic
protection with
commentaries thereto
adopted on first reading
by the Commission at its
fifty-sixth session, are
reproduced below.

[59] ILC First Reading


Draft Articles on
Diplomatic Protection,
U.N. Doc. A/CN.4/484,
ILC Report, A/53/10 (F),
par. 60, Commentary to
Draft Article 2, par. (1);
see also, Commentary to
Draft Article 1, par. (3),
and text of Draft Article 2.

A State has the right to


exercise diplomatic
protection on behalf of a
national. It is under no
duty or obligation to do
so. The internal law of a
State may oblige a State
to extend diplomatic
protection to a
national,[29] but
international law imposes
no such obligation....

[60] Report of the


International Law
Commission on the work
of its 50th session, supra
note 60, par. 77.
[61] ILC First Reading
Draft Articles on
Diplomatic Protection,

Article 2 stresses that the


right of diplomatic
protection belongs to or
vests in the State. It
gives recognition to the
Vattelian notion that an
injury to a national is an
indirect injury to the
State.[25]
...

Source:
Text of the Draft Articles
on Diplomatic Protection
Adopted by the
Commission on First
Reading, Rep. of the Int'l.

International Law
Commission on the work
of its 50th session, supra
note 13, par. 77.

supra note 60,


commentary to Draft
Article 2, par. (2).
(p. 25-26 Body of Vinuya)

[98] ILC First Reading


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

Law Comm'n, 56th


Sess., 3 May-4 June and
5 July-6 August 2004,
U.N. Doc. A/59/10 at 2228, par. 60; GAOR, 59th
Sess., Supp. 10 (2004).

(p. 400 of Albornoz)


4.

Special Rapporteur
Dugard proposed that the
ILC adopt in its Draft
Articles a provision under
which States would be
internationally obliged to
exercise diplomatic
protection in favour of
their nationals injured
abroad by grave breaches
to their jus cogens norms,
if the national so
requested and if he/she
was not afforded direct
access to an international
tribunal.[116

[62] Special Rapporteur


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

74. The discretionary


power of the State to
intervene on behalf of its
national is considered in
the commentary on
article 4.
Article 4
1. Unless the injured
person is able to bring a
claim for such injury
before a competent
international court or
tribunal, the State of
his/her nationality has a
legal duty to exercise
diplomatic protection on
behalf of the injured
person upon request, if
the injury results from a
grave breach of a jus
cogens norm attributable
to another State.
2. The State of
nationality is relieved of
this obligation if:
(a) The exercise of
diplomatic protection
would seriously
endanger the overriding
interests of the State
and/or its people;
(b) Another State
exercises diplomatic
protection on behalf of
the injured person;
(c) The injured person
does not have the
effective and dominant
nationality of the State.
3. States are obliged to
provide in their municipal
law for the enforcement
of this right before a

dominant nationality of
the State. States are
obliged to provide in their
municipal law for the
enforcement of this right
before a competent
domestic court or other
independent national
authority." Dugard, J. First
report on diplomatic
protection, supra note 13,
par. 74.
(p. 404 of Albornoz)

the State. States are


obliged to provide in their
municipal law for the
enforcement of this right
before a competent
domestic court or other
independent national
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).

competent domestic
court or other
independent national
authority.
Source:
Special Rapporteur on
Diplomatic Protection,
First Rep. on Diplomatic
Protection, Intl. Law
Commn, UN Doc.
A/CN.4/506, at 27, par.
74 (7 March 2000) (by
John R. Dugard).

(p. 26, footnote 62 of


Vinuya)
5.

the proposal was not


accepted by the ILC, as
"the question was still not
ripe for treatment"
because "the State
practice and their opinio
juris still hadnt evolved in
such direction."[120]
[120] Official Records of
the
General Assembly: 55th
session, Supplement No.
10, Doc. A/55/10 (2000),
Report of the ILC on the
work of its 52nd session,
p. 131.
(p. 405 of Albornoz)

[62] the proposal was


not accepted by the ILC,
as "the question was still
not ripe for treatment"
because "the State
practice and their opinio
juris still hadnt evolved in
such direction." Official
Records of the
General Assembly: 55th
session, Supplement No.
10, Doc. A/55/10 (2000),
Report of the ILC on the
work of its 52nd session,
p. 131.
(p.26, footnote 62 of
Vinuya)

456. The Special


Rapporteur recognized
that he had introduced
article 4 de lege ferenda.
As already indicated, the
proposal enjoyed the
support of certain writers,
as well as of some
members of the Sixth
Committee and of ILA; it
even formed part of
some constitutions. It
was thus an exercise in
the progressive
development of
international
law. But the general view
was that the issue was
not yet 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."
Source:
Rep. of the Intl. Law

Commn, 52nd Sess., 1


May - 9 June and 10 July
- 18 August 2000, U.N.
Doc. A/55/10 at 78-79,
par. 456; GAOR, 55th
Sess., Supp. 10 (2000).
6.

[62] some States have,


indeed, incorporated in
their municipal law a duty
to exercise diplomatic
protection in favor of their
nationals. (Dugard
identifies this "obligation
to exist in the
Constitutions of Albania,
Belarus, Bosnia and
Herzegovina, Bulgaria,
Cambodia, China,
Croatia, Estonia, Georgia,
Guyana, Hungary, Italy,
Kazakhstan, Lao Peoples
Democratic Republic,
Latvia, Lithuania, Poland,
Portugal, Republic of
[130] Dugard identifies
Korea, Romania, Russian
this "obligation to exist in
Federation, Spain, the
the Constitutions of
former Yugoslav Republic
Albania, Belarus, Bosnia
of Macedonia, Turkey,
and Herzegovina,
Ukraine, Viet Nam and
Bulgaria, Cambodia,
Yugoslavia, albeit with
China, Croatia, Estonia,
different reaches. J.
Georgia, Guyana,
Dugard, First Report on
Hungary, Italy,
Kazakhstan, Lao Peoples diplomatic protection,
supra note 13, par. 80.)
Democratic Republic,
Latvia, Lithuania, Poland, (p. 26, footnote 62 of
Portugal, Republic of
Vinuya)
Korea, Romania, Russian
Federation, Spain, the
former Yugoslav Republic
of Macedonia, Turkey,
Ukraine, Viet Nam and
Yugoslavia, albeit with
different reaches. J.
Dugard, First Report on
diplomatic protection,
supra note 13, par. 80.
...some States have,
indeed, incorporated in
their municipal law a duty
to exercise diplomatic
protection in favor of their
nationals. Various other
States have also included
such a "duty to exercise
diplomatic protection"
under their domestic
laws,[130 ]but their
enforceability is also, to
say the least,
questionable (in many
cases there are not even
courts competent to
review the decision).

80. Constitutional
provisions in a number of
States recognize the
right of the individual to
receive diplomatic
protection for injuries
suffered abroad. These
include: Albania,
Belarus, Bosnia and
Herzegovina, Bulgaria,
Cambodia, China,
Croatia, Estonia,
Georgia, Guyana,
Hungary, Italy,
Kazakhstan, Lao
Peoples
Democratic Republic,
Latvia, Lithuania, Poland,
Portugal, Republic of
Korea,
Romania, Russian
Federation, Spain, the
former Yugoslav
Republic of Macedonia,
Turkey, Ukraine, Viet
Nam and Yugoslavia.
Source:
Special Rapporteur on
Diplomatic Protection,
First Rep. on Diplomatic
Protection, Intl. Law
Commn, UN Doc.
A/CN.4/506, at 30, par.
80 (7 March 2000) (by
John R. Dugard).

(p. 406 of Albornoz)


7.

but their enforceability


is also, to say the least,
questionable (in many
cases there are not even
courts competent to
review the decision).
Moreover, their existence
in no way implies that

[62] ..., but their


enforceability is also, to
say the least,
questionable (in many
cases there are not even
courts competent to
review the decision).
Moreover, their existence

(2) A State has the right


to exercise diplomatic
protection on behalf of a
national. It is under no
duty or obligation to do
so. The internal law of a
State may oblige a State
to extend diplomatic

international law imposes


such an obligation,[131]
simply suggesting "that
certain States consider
diplomatic protection for
their nationals abroad to
be desirable."[132

in no way implies that


international law imposes
such an obligation, simply
suggesting "that certain
States consider diplomatic
protection for their
nationals abroad to be
desirable" (ILC First
[131] ILC First Reading
Reading Draft Articles on
Draft Articles on
Diplomatic Protection,
Diplomatic Protection,
supra note 2,
supra note 2,
Commentary to Draft
Commentary to Draft
Article 2, par (2). This was Article 2, par (2)).
recognized expressly in
(p. 26, footnote 62 of
the Barcelona Traction
Vinuya)
case, supra note 6.
[132] Dugard, J. First
report on diplomatic
protection, supra note 13,
par. 81.

protection to a
national,[29] but
international law imposes
no such obligation. The
position was clearly
stated by the
International Court of
Justice in the Barcelona
Traction case:

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]
Source:

(p. 406-407 of Albornoz)

Commentary to the Text


of the Draft Articles on
Diplomatic Protection
Adopted by the
Commission on First
Reading, Rep. of the Int'l.
Law Commn, 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).

TABLE E: Comparison of Elizabeth Prochaskas article, Testing the Limits of Diplomatic


Protection: Khadr v. The Prime Minister of Canada,6 and the Supreme Courts Decision in
Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.
The Allegedly
Copied Work

The Decision

Elizabeth Prochaska,
Testing the Limits of
Diplomatic Protection:
Khadr v. The Prime
Minister of Canada
(2009).

Vinuya v. Executive
Secretary, G.R. No.
162230, 28 April 2010.

Instead, Draft Article 19,


entitled Recommended
Practice, suggests that
states should be
encouraged to exercise
diplomatic protection
especially when
significant injury occurred

[62] Official Records of


the General Assembly:
55th session, Supplement
No. 10, Doc. A/55/10
(2000), Report of the ILC
on the work of its 52nd
session, p. 131. Instead,
Draft Article 19, entitled

International Source
Being Analyzed By
Prochaska

Note:
The Report of the
International Law
Commission on the Work
of its Fifty-Second
Session, and the Special
Rapporteurs First on
Diplomatic Protection,

to the national. Drafted in


soft language, the Article
does not purport to create
any binding obligations on
the state.
(p. 397 of Prochaska)

Recommended Practice,'
suggests that states
should be encouraged to
exercise diplomatic
protection especially
when significant injury
occurred to the national.
Drafted in soft language,
the Article does not
purport to create any
binding obligations on the
state.

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.

(Footnote 62 of Vinuya)
TABLE F: Comparison of Larry Nikschs Report, Japanese Militarys Comfort Women, 10 April
2006,7 and the Supreme Courts Decision in Vinuya et. al. v. Executive Secretary, G.R. No.
162230, 28 April 2010.
The Allegedly
Copied Work
Larry Niksch,
Japanese Militarys
Comfort Women, 10
April 2006.
1. The Asian Womens
Fund announced
three programs for
former comfort women
who applied for
assistance: (1) an
atonement fund that
paid two million yen
(approximately
$20,000) to each
former comfort
woman; (2) medical
and welfare support
programs for former
comfort women,
paying 2.5-3 million
yen ($25,000$30,000) for each
former comfort
woman; and (3) a
letter of apology from
the Japanese Prime
Minister to each
recipient woman.[8]
[FN8]. From the Asian
Womens Fund
website, March 16,
2006.
(paragraph 11 of

The Decision

Vinuya v. Executive
Secretary, G.R. No.
162230, 28 April
2010.

Source Being Used By Niksch

The AWF announced


three programs for
former comfort women
who applied for
assistance: (1) an
atonement fund
paying 2 million
(approximately
$20,000) to each
woman; (2) medical
and welfare support
programs, paying
2.5-3 million
($25,000-$30,000) for
each woman; and (3)
a letter of apology
from the Japanese
Prime Minister to each
woman.

The projects of atonement


involved providing former comfort
women with 2 million yen per
person as atonement money
donated by Japanese citizens,
delivering a letter of apology from
the Japanese Prime Minister,
and offering goods and services
under medical and welfare
support projects financed by the
Japanese government.

(p. 17, Body of


Vinuya)

http://web.archive.org/web/20060
301213211/http://www.awf.or.jp/e
nglish/project_atonement.html

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.

Niksch)
2. ...As of March 2006,
the Asian Womens
Fund provided 700
million yen
(approximately $7
million) for these
programs in South
Korea, Taiwan, and
the Philippines; 380
million yen
(approximately $3.8
million) in Indonesia;
and 242 million yen
(approximately $2.4
million) in the
Netherlands. [9]
(paragraph 12 of
Niksch)

...As of March 2006,


the AWF provided
700 million yen
(approximately $7
million) for these
programs in South
Korea, Taiwan, and
the Philippines; 380
million yen
(approximately $3.8
million) in Indonesia;
and 242 million yen
(approximately $2.4
million) in the
Netherlands.
(p. 17, Body of
Vinuya)

In order to fulfill its moral


responsibility in all sincerity, the
Japanese government decided to
disburse about 700 million yen
over a five-year period for
medical and welfare support
projects aiding former comfort
women in the Philippines, the
Republic of Korea and Taiwan.
...
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/20060
301213211/http://www.awf.or.jp/e
nglish/project_atonement.html

3. On January 15, 1997


the Asian Womens
Fund and the
Philippine government
signed a
Memorandum of
understanding for
medical and welfare
support programs for
former comfort
women. Over the next
five years, these were
implemented by the
Philippine
governments
Department of Social
Welfare and
Development.
(paragraph 19 of
Niksch)

On January 15, 1997


the AWF and the
Philippine government
signed a
Memorandum of
Understanding for
medical and welfare
support programs for
former comfort
women. Over the next
five years, these were
implemented by the
Department of Social
Welfare and
Development.
(p. 17, Body of
Vinuya)

The government of the


Philippines and the Asian
Womens Fund signed a
Memorandum of Understanding
on January 15, 1997.
The Philippine governments
Department of Social Welfare
and Development implemented
the projects over a period of five
years.
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/20060
301213211/http://www.awf.or.jp/e
nglish/project_atonement.html

TABLE G: Comparison of James Ladinos article, Ianfu: No Comfort Yet for Korean Comfort
Women and the Impact of House Resolution 121 and the Supreme Courts Decision in Vinuya v.
Executive Secretary, G.R. No. 162230, 28 April 2010.
The Allegedly
Copied Work
James Ladino, Ianfu: No
Comfort Yet for Korean

The Decision
Source Being Analyzed
and/or Used by Ladino
Vinuya v. Executive
Secretary, G.R. No. 162230,

1
.

Comfort Women and the


Impact of House Resolution
121, 15 Cardozo J.L. &
Gender 333 (2009).

28 April 2010.

In 1992, the Korean Council


for the Women Drafted for
Military Sexual Slavery by
Japan ("KCWS"), submitted
a petition to the United
Nations Human Rights
Commission ("UNHRC"),
asking for their assistance in
investigating crimes
committed by Japan against
Korean women and
pressuring Japan to pay
reparations to the women
who had filed lawsuits.[96]
The UNHRC formally placed
the issue on its agenda and
appointed Radhika
Coomaraswamy as the
issues special
investigator.[97] Issued in
1996, the UNHRCs report
reaffirmed Japans guilt in
forcing Korean women to act
as sex slaves for the imperial
army.[98]

In 1992, the Korean Council


for the Women Drafted for
Military Sexual Slavery by
Japan (KCWS), submitted a
petition to the UN Human
Rights Commission
(UNHRC), asking for
assistance in investigating
crimes committed by Japan
against Korean women and
seeking reparations for
former comfort women.[29]
The UNHRC placed the
issue on its agenda and
appointed Radhika
Coomaraswamy as the
issue's special investigator.
In 1996, Coomaraswamy
issued a Report reaffirming
Japan's responsibility in
forcing Korean women to act
as sex slaves for the imperial
army, and made the
following
recommendations:

[96] Soh, supra note 7


[Chunghee Sarah Soh, The
Korean "Comfort Women":
Movement for Redress, 36
Asian Survey 1226,], at
1234-35.
[97] Id. at 1226.

[29] Soh, The Comfort


Women Project, San
Francisco State University
(1997-2001),
http://online.sfsu.edu/~soh/c
omf ortwomen.html, at 123435.

[98] Id.

(p. 9-10, Body of Vinuya)

...In her report to the U.N.


Human Rights Commission,
Radhika Coomaraswamy, the
U.N. special investigator into
violence against women,
concluded that Japan must
admit its legal responsibility....
...
...Lee Hyo-chae, as a co-chair
of the KCWS submitted a
petition to the U.N. Human
Rights Commission, dated
March 4, 1992, requesting
that the Commission
investigate Japanese
atrocities committed against
Korean women during World
War Two, and help pressure
the Japanese government to
pay reparations 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.
Source:
Chunghee Sarah Soh, The
Korean "Comfort Women":
Movement for Redress, 36
Asian Survey 1226, 1234-35
(1996).

(p. 344 of Ladino)


2
.

The Women's International


War Crimes Tribunal
(WIWCT) was a "people's
tribunal" established by a
number of Asian women,
human rights organizations,
and supported by an
international coalition of nongovernmental organizations
("NGOs").[101] First
proposed in 1998, the
WIWCT convened in Tokyo
in 2000 to discuss the issue
of comfort women.[102]
Specifically, the WIWCT
aimed to "adjudicate Japan's

The Women's International


War Crimes Tribunal
(WIWCT) was a "people's
tribunal" established by a
number of Asian women and
human rights organizations,
supported by an international
coalition of nongovernmental
organizations.[31] First
proposed in 1998, the
WIWCT convened in Tokyo
in 2000 in order to
"adjudicate Japan's military
sexual violence, in particular
the enslavement of comfort

From December 8 to 12,


2000, a peoples' tribunal, the
Women's International War
Crimes Tribunal 2000, sat in
Tokyo, Japan. It was
established to consider the
criminal liability of leading
high-ranking Japanese
military and political officials
and the separate
responsibility of the state of
Japan for rape and sexual
slavery as crimes against
humanity arising out of
Japanese military activity in
the Asia Pacific region in the

military sexual violence, in


particular the enslavement of
comfort women, to bring
those responsible for it to
justice, and to end the
ongoing cycle of impunity for
wartime sexual violence
against women."

women, to bring those


responsible for it to justice,
and to end the ongoing cycle
of impunity for wartime
sexual violence against
women."

1930s and 1940s.


...
The tribunal arose out of
the work of various women's
nongovernmental
organizations (NGOs) across
Asia.

[31] Chinkin, Womens


International Tribunal on
[101] Christine M. Chinkin,
Japanese Sexual Slavery, 95 Source:
Womens International
Am. J. Intl. L. 335 (2001).
Chinkin, Womens
Tribunal on Japanese Sexual (p. 12, Body of Vinuya)
International Tribunal on
Slavery, 95 Am. J. Intl. L.
Japanese Sexual Slavery, 95
335 (2001)
Am. J. Intl. L. 335 (2001).
[102] Violence Against
Women in War-Network
Japan, What is the Womens
Tribunal?
http.//www1.jca.apc.org/vaw
w-net japan/English/womenstribun
al200 0/whatstribunal.html
(last visited Oct. 16, 2008).
(p. 345 of Ladino)
3
.

A large amount of evidence


was presented to the tribunal
for examination. Sixty-four
former comfort women from
Korea and other surrounding
territories in the Asia-Pacific
region testified before the
court.[104] Testimony was
also presented by historical
scholars, international law
scholars, and two former
Japanese soldiers.[105]
Additional evidence was
submitted by the prosecution
teams of ten different
countries, including: North
and South Korea, China,
Japan, the Philippines,
Indonesia, Taiwan, Malaysia,
East Timor, and the
Netherlands.[106]

[32] A large amount of


evidence was presented to
the tribunal for examination.
Sixty-four former comfort
women from Korea and other
surrounding territories in the
Asia-Pacific region testified
before the court. Testimony
was also presented by
historical scholars,
international law scholars,
and two former Japanese
soldiers. Additional evidence
was submitted by the
prosecution teams of ten
different countries, including:
North and South Korea,
China, Japan, the
Philippines, Indonesia,
Taiwan, Malaysia, East
Timor, and the Netherlands.
Id. [Chinkin] at 336.

[104] Id. [Violence Against


Women in War-Network
(p. 12, footnote 32 of Vinuya)
Japan, What is the Women's
Tribunal?,
http://www1.jca.apc.org/vaw
w-net japan/english/womenstribuna
l200 0/whatstribunal.html
(last visited Oct. 16, 2008).]
[105] Id.
[106] Chinkin, supra note

Prosecution teams from ten


countries presented
indictments.[6] North and
South Korea, China, Japan,
the Philippines, Indonesia,
Taiwan, Malaysia, East
Timor, and the
Netherlands. Two lead
prosecutors (Patricia Viseur
Sellers[7] and Ustinia
Dolgopol[8]) joined the
separate-country prosecutors
and presented a common
indictment.
Source:
Chinkin, Womens
International Tribunal on
Japanese Sexual Slavery, 95
Am. J. Intl. L. 335, 336
(2001).

101, at 336.
(p. 345 of Ladino)
The preliminary judgment
indicated that the judges had
found Emperor Hirohito guilty
of the charges on the basis of
After examining the evidence
command responsibility, that
for more than a year, the
After examining the evidence he knew or should have
tribunal issued its final
known of the offenses. The
for more than a year, the
verdict on December 4,
judges also indicated that
"tribunal" issued its verdict
2001, finding the former
they had determined Japan to
on December 4, 2001,
Emperor Hirohito and the
be responsible under
finding the former Emperor
State of Japan guilty of
international law applicable at
Hirohito and the State of
crimes against humanity for
the time of the events for
Japan guilty of crimes
the rape and sexual slavery
against humanity for the rape violation of its treaty
of women.[107]
obligations and principles of
and sexual slavery of
customary international law

women.[32] It bears
relating to slavery, trafficking,
stressing, however, that
Although the tribunal
forced labor, and rape,
although the tribunal
included prosecutors,
amounting to crimes against
included prosecutors,
witnesses, and judges, its
humanity.
witnesses, and judges, its
judgment was not legally
judgment
was
not
legally
What was the value of this
binding since the tribunal
binding
since
the
tribunal
exercise? Lacking legal
itself was organized by
itself
was
organized
by
authority, was the tribunal no
private citizens.
private citizens.
more than a mock trial of little
[107] Violence Against
concern to serious
[32]
Id.
[Chinkin]
at
336.
Women in War-Network
international lawyers?
Japan, supra note 102.
(p. 12, Body of Vinuya)
Source:
(p. 345 of Ladino)
Chinkin, Womens
International Tribunal on
Japanese Sexual Slavery, 95
Am. J. Intl. L. 335 (2001).
4
.

On January 31, 2007, United


States Representative
Michael Honda of California,
along with six co-sponsor
representatives, introduced
House Resolution 121. The
resolution called for
Japanese action in light of
the ongoing struggle for
closure by former comfort
women. The House of
Representatives formally
passed the resolution on July
30, 2007.[110] The resolution
also makes four distinct
demands:
[110] Press Release,
Congressman Mike Honda,
Rep. Honda Calls on Japan
to Apologize for World War II
Exploitation of "Comfort

On January 31, 2007, US


Representative Michael
Honda of California, along
with six co-sponsor
representatives, introduced
House Resolution 121 which
called for Japanese action in
light of the ongoing struggle
for closure by former comfort
women. The Resolution was
formally passed on July 30,
2007,[33] and made four
distinct demands:

Today, Representative
Michael M. Honda (CA 15)
introduced a bipartisan
resolution before the U.S.
House of Representatives
calling on the government of
Japan to formally and
unambiguously apologize for
and acknowledge the tragedy
that comfort women endured
at the hands of its Imperial
Army during World War II.

[33] Press Release,


Congressman Mike Honda,
Rep. Honda Calls on Japan
to Apologize for World War II
Exploitation of "Comfort
Women" (January 31, 2007).

The resolution is cosponsored


by: Representatives Edward
R. Royce (CA 40),
Christopher H. Smith (NJ - 4),
Diane E. Watson (CA - 33),
David Wu ()R - 1), Phil Hare
(IL - 17), and Delegate
Madaleine Bordallo (GU).

(p. 12, Body of Vinuya)

Women" (Jan. 31, 2007),


available at
http://www.house.gov/list/
press/ca15_honda/
COMFORTWOMEN.html.

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

(p. 346 of Ladino)

5
.

The resolution also makes


four distinct demands:
[I]t is the sense of the House
of Representatives that the
Government of Japan (1)
should formally
acknowledge, apologize, and
accept historical
responsibility in a clear and
unequivocal manner for its
Imperial Armed Forces'
coercion of young women
into sexual slavery, known to
the world as "comfort
women", during its colonial
and wartime occupation of
Asia and the Pacific Islands
from the 1930s through the
duration of World War II; (2)
would help to resolve
recurring questions about the
sincerity and status of prior
statements if the Prime
Minister of Japan were to
make such an apology as a
public statement in his official
capacity; (3) should clearly
and publicly refute any
claims that the sexual
enslavement and trafficking
of the "comfort women" for
the Japanese Imperial Army
never occurred; and (4)
should educate current and
future generations about this
horrible crime while following
the recommendations of the
international community with
respect to the "comfort
women."[111
111] H.R. Res. 121, 110th
Cong. (2007) (enacted).
(p. 346 of Ladino)

The Resolution was formally


passed on July 30, 2007,[33]
and made four distinct
demands:

Resolved, That it is the sense


of the House of
Representatives that the
Government of Japan

[I]t is the sense of the House


of Representatives that the
Government of Japan (1)
should formally
acknowledge, apologize, and
accept historical
responsibility in a clear and
unequivocal manner for its
Imperial Armed Forces'
coercion of young women
into sexual slavery, known to
the world as "comfort
women", during its colonial
and wartime occupation of
Asia and the Pacific Islands
from the 1930s through the
duration of World War II; (2)
would help to resolve
recurring questions about the
sincerity and status of prior
statements if the Prime
Minister of Japan were to
make such an apology as a
public statement in his
official capacity; (3) should
clearly and publicly refute
any claims that the sexual
enslavement and trafficking
of the "comfort women" for
the Japanese Imperial Army
never occurred; and (4)
should educate current and
future generations about this
horrible crime while following
the recommendations of the
international community with
respect to the "comfort
women."[34

(1) should formally


acknowledge, apologize, and
accept historical responsibility
in a clear and unequivocal
manner for its Imperial Armed
Forces coercion of young
women into sexual slavery,
known to the world as
"comfort women", during its
colonial and wartime
occupation of Asia and the
Pacific Islands from the 1930s
through the duration of World
War II;

34] H.R. Res. 121, 110th


Cong. (2007) (enacted).

(2) should have this official


apology given as a public
statement presented by the
Prime Minister of Japan in his
official capacity;
(3) should clearly and publicly
refute any claims that the
sexual enslavement and
trafficking of the "comfort
women" for the Japanese
Imperial Armed Forces never
occurred; and
(4) should educate current
and future generations about
this horrible crime while
following the
recommendations of the
international community with
respect to the "comfort
women".
Source cited:
H.R. Res. 121, 110th Cong.
(2007) (enacted), available at
http://www.gpo.gov/fdsys/pkg/
BILLS-

6
.

(p. 12, Body of Vinuya)

110hres121ih/pdf/BILLS110hres121ih.pdf (U.S.)

In December 2007, the


European Parliament, the
governing body of the
European Union, drafted a
resolution similar to House
Resolution 121.[130]
Entitled, "Justice for Comfort
Women," the resolution
demanded: (1) a formal
acknowledgment of
responsibility by the
Japanese government; (2) a
removal of the legal
obstacles preventing
compensation; and (3)
unabridged education of the
past.[132] The resolution
also stresses the urgency
with which Japan should act
on these issues, stating: "the
right of individuals to claim
reparations against the
government should be
expressly recognized in
national law, and cases for
reparations for the survivors
of sexual slavery, as a crime
under international law,
should be prioritized, taking
into account the age of the
survivors."[133]

In December 2007, the


European Parliament, the
governing body of the
European Union, drafted a
resolution similar to House
Resolution 121.[35] Entitled,
"Justice for Comfort
Women," the resolution
demanded: (1) a formal
acknowledgment of
responsibility by the
Japanese government; (2) a
removal of the legal
obstacles preventing
compensation; and (3)
unabridged education of the
past. The resolution also
stressed the urgency with
which Japan should act on
these issues, stating: "the
right of individuals to claim
reparations against the
government should be
expressly recognized in
national law, and cases for
reparations for the survivors
of sexual slavery, as a crime
under international law,
should be prioritized, taking
into account the age of the
survivors."

A resolution on the 'comfort


women' (sex slaves) used by
Japan in World War II calls for
a change of official attitudes
in modern-day Japan, a right
for survivors or families to
apply for compensation and
measures to educate people
about these historical events.

[132] Id.

(p. 13, Body of Vinuya)

Call for formal


acknowledgment of
responsibility by government

Legal obstacles to
compensation must be
removed

Education about the past

Source cited:

European Parliament, Human


rights: Chad, Women's Rights
in Saudi Arabia, Japan's
Wartime Sex Slaves, (17 Dec.
2007) available at
http://www.europarl.europa.e
u/
[130] European Parliament,
[35] European Parliament,
sides/getDoc.do?language=
Human rights: Chad,
Human rights: Chad,
EN&type=IMWomen's Rights in Saudi
Women's Rights in Saudi
PRESS&reference=
Arabia, Japan's Wartime Sex Arabia, Japan's Wartime Sex 20071210BRI14639&second
Slaves, Dec. 17, 2007,
Slaves, Dec. 17, 2007,
Ref= ITEM-008-EN
http://www.europarl.europa.e http://www.europarl.europa.e
u/
u/
sides/getDoc.do?language= sides/getDoc.do?language=
EN& type=IMEN& type=IMPRESS&reference=
PRESS&reference=
20071210BRI14639&second 20071210BRI14639&second
Ref= ITEM-008-EN.
Ref= ITEM-008-EN.
[133] Id.
(p. 360 of Ladino)
7
.

The Canadian and Dutch


parliaments have each
followed suit in drafting
resolutions against Japan.
Canada's resolution
demands the Japanese

The Canadian and Dutch


parliaments have each
followed suit in drafting
resolutions against Japan.
Canada's resolution
demands the Japanese

Note:
On the issue of comfort
women, the website only
refers to the attitude and
reaction of the following

government to issue a formal


apology, to admit that its
Imperial Military coerced or
forced hundreds of
thousands of women into
sexual slavery, and to
restore references in
Japanese textbooks to its
war crimes.[134] The Dutch
parliament's resolution
simply calls for the Japanese
government to uphold the
1993 declaration of remorse
made by Chief Cabinet
Secretary Yohei Kono.[135]

government to issue a formal


apology, to admit that its
Imperial Military coerced or
forced hundreds of
thousands of women into
sexual slavery, and to
restore references in
Japanese textbooks to its
war crimes.[36] The Dutch
parliament's resolution calls
for the Japanese
government to uphold the
1993 declaration of remorse
made by Chief Cabinet
Secretary Yohei Kono.

[134] The Comfort Women-A History of Trauma,

[36] The Comfort Women--A


History of Trauma,

http://taiwan.yam.org.tw/
womenweb/conf_women/
index_e.html. (last visited
Mar. 26, 2009).

http:// taiwan.yam.org.tw/
womenweb/conf_women/
index_e.html.

governments: Taiwan, South


Korea, North Korea,
Philippines, China, Indonesia,
Malaysia, and Japan.
Source cited:
http://taiwan.yam.org.tw/wom
enwe
b/conf_women/index_e.html

(p. 13, Body of Vinuya)

[134] Id.
(p. 360 of Ladino)
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
ponentes own. No attribution to Criddle and Fox-Decent was made.
A.2 Similar to A.1, Criddle and Fox-Decents 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 Elliss discussion on rape as an international crime. Two citations of cases from
Ellis were omitted. No attribution to Ellis was made.
B.2 Elliss identification of Article 3 of the 1949 Geneva Conventions as a general authority on
rape as a violation of the laws of war, and his summation thereof, was lifted word for word. His
footnote was also copied, including the intratext reference "supra note 23," enclosed in
parentheses and inserted after the corresponding text. No attribution to Ellis was made.
B.3 Elliss summary and analysis of Article 27 of the Fourth Geneva Convention was lifted word
for word. No attribution to Ellis was made.
B.4 Elliss conclusion regarding Protocol I of the Geneva Convention was appropriated, without
any attribution to Ellis. Elliss footnote was again copied. No attribution to Ellis was made.
C.1 McCorquodales 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 Okowas 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 McCorquodales 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 Okowas 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 Albornozs 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 ponentes 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. Albornozs citation of Borchard was used as a reference in the same footnote, but
Albornoz was bypassed completely.
D.3 Albornozs summation of the ILCs 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 Albornozs summary to streamline the flow of the second copied sentence. No attribution to
Albornoz was made.
D.4 Albornozs summation of Dugards proposal was lifted word for word and used in footnote
62 of Vinuya. The footnote Albornoz attached to this summation, a quotation of Albornozs 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 Dugards 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 Albornozs 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 ponentes analysis, but Prochaskas.
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 Ladinos 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 Ladinos 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 Ladinos discussion in page 350 and the corresponding footnotes were reproduced
verbatim in page 13 of the Decision. No attribution to Ladino was made.
B. The Process of the Commission of Plagiarism in the Vinuya Decision
A careful reading of the Vinuya Decision reveals that it is unlike other decisions issued by this
Court, except perhaps for the case of Ang Ladlad LGBT Party v. Commission on Elections,
which Justice del Castillo likewise penned. The footnotes in Vinuya read like those found in
theses of international law scholars, where one discursive footnote can be so extensive as to
occupy three-fourths of a page (see footnotes 62, 63, and 65). An honest researcher for a
Philippine judge, after painstakingly developing a perspective on an international legal issue by
reading the works of scholars who have documented the debate, would deliberately refer to the
works of such scholars, and not transform their works into his own.
Justice del Castillos 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 works
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 researchers transition phrases are clearly devices of a practiced plagiarist,
which betray the deliberateness of every single act. The plagiarism in Vinuya will also be
scrutinized on the basis of its effect, especially in light of its commission in a judicial decision.
The rationale for such a thematic presentation will then be discussed in a succeeding section,
which deals with evaluating plagiarism.
1. The extent of unattributed copying belies inadvertence.
In the tables outlined above, as well as in the analysis in my Dissent dated 12 October 2010, it
can be seen that the researcher of Justice del Castillo failed to make the necessary attribution
twenty-three (23) times in the body of the Vinuya Decision; the works whose texts were used
without attribution include several copyrighted journal articles, essays from a book on
international law, and one congressional report of the United States. There were thirty-six (36)
missing citations in the footnotes, including twelve (12) citations missing from footnote 65 alone.
This adds up to a total of fifty-nine (59) missing citations. The sheer number of missing citations
is related to the length and volume of the footnotes and discussions, some of which Justice del
Castillo himself admitted to be unnecessary.
The quantity of text copied without attribution is most concentrated in pages 12 to 13, which
deal with actions taken in the pursuit of justice for the comfort women, and in pages 24 to 32,
which appear under the section heading The 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 Ladinos article were
interspersed with Ladinos footnotes, without a single attribution to Ladino (please refer to Table
G). Sentences from Ladinos 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 Ladinos 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 ILCs 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-Decents analysis of how international "minimum requirements"
form evidence of jus cogens. The paragraph was broken down, then rearranged in Vinuya.
3. Page 31, par. 2: Though there was a consensus that certain international norms had attained
the status of jus cogens,[74] the ILC was unable to reach a consensus on the proper criteria for
identifying peremptory norms.

Aside from copying the first clause in the sentence, which forms part of the premise, the
conclusion of Criddle and Fox-Decent was likewise copied.
4. Page 32, par. 1: After an extended debate over these and other theories of jus cogens, the
ILC concluded ruefully in 1963 that "there is not as yet any generally accepted criterion by which
to identify a general rule of international law as having the character of jus cogens."[75]
After copying the sentence and footnote in No. 4 above, three sentences were omitted from the
article, then this sentence in No. 5 was also copied. In the body of the work, the two sentences
immediately following this statement pertaining to the conclusion of the International Law
Commission were again omitted.
5. Page 32, par. 1: In a commentary accompanying the draft convention, the ILC indicated that
"the prudent course seems to be to x x x leave the full content of this rule to be 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-Decents 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 Elliss other footnotes, at the
end of the paragraph.
4. Sentences 6 and 7: (For example, the Treaty of Amity and Commerce between Prussia and
the United States provides that in time of war all women and children "shall not be molested in
their persons." The Treaty of Amity and Commerce, Between his Majesty the King of Prussia
and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l
Agreements Of The U.S. 78, 85.
This is the citation originally corresponding to the first and second sentences on page 227 of
Elliss 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 Elliss 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. Intl. 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. Elliss 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 Nrnberg
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 Elliss 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 Elliss work. Pages 227 to 228 of the said work, pertaining to
the discussion on rape were substantially copied. Insertions were made for Elliss own
footnotes.
The conscious thought required for the act of cutting and pasting the original authors footnotes
onto the precise spot where the copied sentences ended contradicts the account of
inadvertence. There is consistent correspondence between the sentences copied to the
footnote copied. In the example above, the act of encapsulating Ellis footnotes in parentheses
show further that in Vinuya there was a conscious appropriation of Elliss sources in a usage
that is substantially similar to what appears in his article. This allegedly inadvertent copying of
Elliss 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.
Step 1:
a. First, using an internet-based search engine, which could be a free search service like
Googles, or a paid service like Westlaws, 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 authors? Corollarily, the researcher would
initially assess if such argument made by the author is adequately supported as well. She would
check the authors footnotes. In Vinuya, the copying of the footnotes was so extensive, such
that it practically used the uncited works as blueprint for the Decisions footnotes.
4. The frequency of instances of missing citations and actions required for deletion betray
deliberateness.
To purposefully input citations would require many key strokes and movements of the
computers "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 documents footers disappeared also. For this scenario to happen with the same frequency
as the number of missing citations, the following steps must have been followed:
1. First movement: Using hand and eye coordination, consciously move cursor to the
location of target footnote and/or heading, using either the mouse or arrow keys.
2. Second movement: Select the "note reference mark" by highlighting the target
footnote number. Note that unlike in normal characters or texts wherein a single press of
the "delete" or "backspace" button would suffice, a footnote number must be highlighted
before it can be deleted. This means that either the particular footnote and/or heading
must have been "double-clicked" or it must have been 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 authors analysis. Actually, it would have been easier to cite the authors
copied work considering the availability of short citation forms commonly used as reference
tools in legal articles such as "supra" or "id."
Microsoft Word may not have an automatic alarm each time a footnote or citation is deleted, but
it does contain built-in features to help raise "red flags" to signal that a particular passage was
copied, or is attached to a particular citation if indeed such citation exists. For example, the
researcher in Vinuya, in describing her own process of drafting the Decision, stated that portions
containing footnotes from the first Vinuya draft were lifted and transformed into the contents of a
separate footnote. In short, during revisions of the draft, substantial footnoted portions which
used to be in the body were relegated to footnotes. This does not result, however, in the

automatic erasure of the original footnotes within the new footnote. A simple recreation of this
process reveals that this "footnote within a footnote" retains a number symbol in superscript,
albeit one altered due to the redundancy in the functionality of "footnotes within footnotes." Any
reasonably 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 footnotes
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. Posners Standards for Evaluating the Characterization of Incidents of Plagiarism
To be generous to my colleagues in this part of my analysis, I have referred to one of the
scholars who hold the most liberal views on plagiarism, Judge Richard A. Posner. The three
guideposts by which I structured my technical analysis of the instances of plagiarism in the
Vinuya Decision come from his breakdown of certain key issues in his work, The Little Book of
Plagiarism. In his "cooks tour" of the key issues surrounding plagiarism, wherein he is more
liberal than most academics in speaking of the sanctions the act may merit he is against the
criminalization of plagiarism, for instance, and believes it an act more suited to informal
sanctions13 Judge Posner characterizes plagiarism thus:
Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier
claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him
and the claim causes the copier's audience to behave otherwise than it would if it knew the
truth. This change in behavior, as when it takes the form of readers' buying the copier's book
under the misapprehension that it is original, can harm both the person who is copied and the
competitors of the copier. But there can be plagiarism without publication, as in the case of
student plagiarism. The fraud is directed in the first instance at the teacher (assuming that the

student bought rather than stole the paper that he copied). But its principal victims are the
plagiarist's student competitors, who are analogous to authors who compete with a plagiarist. 14
Posner then goes on to neatly sum up, in the form of three "keys," major considerations that
need to be taken into account when evaluating an occurrence of plagiarism. His books last
paragraph reads:
In the course of my cooks 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 of extent, an analogue of reliance, as extensive
plagiarism correlates to the reliance of the text on the copied work; deliberateness; and effect,
an analogue of what Posner called "extent of the market for expressive works", used here in the
context of the effect of plagiarism in the Vinuya Decision were put to the text being scrutinized.
The first two questions have been discussed in preceding sections. To examine the effect, one
must first make the distinction between the effect of copying a copyrighted work without
attribution, and between the effect of copying without attribution a work in the public domain.
Using these three guideposts, we can them come to a conclusion whether the plagiarism is
relatively harmless and light or something severe and harmful. In the case of the Vinuya
Decision, we have come to conclude that the plagiarism is severe; and because judicial
decisions are valuable to the Philippine legal system, that the plagiarism harms this institution
as well.
1. The distinction between the effect of appropriating copyrighted works and works in the
public domain
The infringement of copyright necessitates a framework for characterizing the expression of
ideas as property. It thus turns on a question of whether there exists resultant harm in a form
which is economically quantifiable. Plagiarism, on the other hand, covers a much wider range of
acts. In defining copyright infringement, Laurie Stearns points out how it is an offense
independent from plagiarism, so that an action for violation of copyright which may take on
either a criminal and a civil aspect, or even both does not sufficiently remedy the broader
injury inherent in plagiarism.
Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily
plagiarismIn 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 infringementinfringement can occur even when a work is properly attributed
if the copying is not authorizedfor 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 partys brief are used without giving
attribution. Thus judges are free to use whatever sources they deem appropriate to
resolve the matter before them, without fear or reprisal. This exemption applies to
judicial writings intended to decide cases for two reasons: the judge is not writing a
literary work and, more importantly, the purpose of the writing is to resolve a dispute. As
a result, judges adjudicating cases are not subject to a claim of legal plagiarism.
The use of this excerpt to justify the wholesale lifting of others words without attribution as an
"implicit right" is a serious misinterpretation of the discussion from which the excerpt was taken.
George wrote the above-quoted passage in the context of a nuanced analysis of possible
sanctions for judicial plagiarism, not in the context of the existence of plagiarism in judicial
opinions. (I had candidly disclosed the existence of this liberal view even in my 12 October 2010
Dissent.) The sections preceding the text from which this passage was taken are, in fact,
discussions of the following: ethical issues involving plagiarism in judicial writing, with regard to
both the act of copying the work of another and the implications of plagiarism on the act of
adjudication; types of judicial plagiarism, the means by which they may be committed, and the
venues in and through which they can occur; and recent cases of judicial plagiarism.
In no wise does George imply that the judicial function confers upon judges the implicit
right to use the writing of others without attribution. Neither does George conflate the
possible lack of sanctions for plagiarism with the issue of whether a determination of
judicial plagiarism can be made. Rather, George is careful to make the distinction between
the issue of whether judicial plagiarism was committed and the issue of whether a sanction can
be imposed for an act of judicial plagiarism. In Georges 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.1avvphi1 Thus,
George writes:
The intentional representation of another persons words, thoughts, or ideas as ones 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 judges copying of anothers judges
opinion, the adoption verbatim of an advocates findings of fact and conclusions of law, the
wholesale adoption of an advocates brief, or the copying of a portion of a law review article and
representing it as the judges 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 Georges 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 anothers language verbatim without using quotation marks or a block quote is intentional,
as opposed to unintentional, plagiarism.19
...
The lack of proper attribution may be unintentional and due to sloppy note taking, either by the
law clerk or the judge.20

...
Judicial plagiarism may also arise from the use of law clerks performing research and writing of
draft decisions and who may not accurately reflect the source. The plagiarized material may be
included within the draft resulting from the law clerks poor research skills.21
...
The commission of unintended judicial plagiarism is unethical, but it is not sanctionable.22
The intentional representation of which George speaks, then, may be considered as the intent
to represent a work as ones own already embodied in claiming a work by, for instance,
affixing ones 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 judges ethical obligation to attribute. She writes:
In conclusion, this author believes that a judicial writer cannot commit legal plagiarism because
the purpose of his writing is 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." 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" or that it falls far short of the high ethical standards to which judges must
adhere.24
It must not be forgotten, however, that Georges 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 ones 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 ones own. As the work is
anothers and used without attribution, the plagiarist derives the benefit of use form the
plagiarized work without expending the requisite effort for the same at a cost (as in the
concept of "opportunity cost") to its author who could otherwise have gained credit for the work
and whatever compensation for its use is deemed appropriate and necessary.26
Allow me to analyze the allegations of Justice Robert C. Abad point by point using the same
standard I propounded in my 12 October 2010 Dissent.
1. The alleged non-attribution to the Asian Development Banks Country Governance
Assessment Report for the Philippines (2005).
TABLE H: Comparison of Justice Abads allegations, the 2001 and 2007 versions of the article
co-authored with Drs. De Dios and Capuno, and the ADB Country Governance Assessment of
2005.

Excerpt from the Article


Co-Authored with Drs.
De Dios and Capuno:
Reproduction of
J. Abads Allegations

1.

Justice and the Cost of


Doing Business: The
Philippines, report
submitted to the World
Bank, 2001.

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., lawyers 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.

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 outof-pocket costs arising
from litigation itself (e.g.,
lawyers fees and
documentation). Indirect
costs also inevitably arise,
of which the most
important are those
arising from delays in the
resolution of cases, and
the failure to come up
[Asian Development Bank with timely decisions.
Country Governance
Assessment (Philippines) Excerpt from the Article
2005, page 103]
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 outof-pocket costs arising
from litigation itself (e.g.,
lawyers fees and
documentation). Indirect
costs also inevitably arise,

Excerpt from the ADB


Country Governance
Assessment:
Philippines
Asian Development Bank
Country Governance
Assessment: Philippines,
2005.
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.,
lawyers 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.

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 Banks 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 ADBs 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. lawyers 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.
Warmest regards always.
Sincerely,
Maria Lourdes P.A. Sereno
A proper reading of the ADB publication will immediately convey the fact that the ADB considers
one of my writings as a resource on the topic of Philippine judicial reform. My name is quoted
four (4) times in the text. A reading of the references listed one of my 2001 papers, which I
wrote singly as the source. Note the following references to my writing:
... It is incumbent upon the courts to harmonize these laws, and often they would find the
absence of constitutional standards to guide them (Sereno 2001). at page 98
...

... Critics pointed out that the Supreme Court should not have made factual declarations on
whether a property belongs to the national patrimony in the absence of an operative law by
which a factual determination can be made (Sereno 2001). at page 99
... As Sereno pointed out, if this tension between the three branches is not resolved
satisfactorily, it will create a climate of unpredictability as a result of the following: at page 99
...
(iii) a court that will continually have to defend the exercise of its own powers against the
criticism of the principal stakeholders in the process of economic policy formulation: the
executive and legislative branches and the constituencies consulted on the particular economic
issues at hand (Sereno 2001).
Had Justice Abad or his researcher taken the time to go through the ADB material, it would
have been immediately apparent to either of them that ADB was merely collating the thoughts of
several authors on the subject of Philippine judicial reform, and that I was one of those
considered as a resource person. He would not then have presumed that I copied those
sentences; rather, it might have struck him that more likely than not, it was the ADB echoing the
thoughts of one or some of the authors in the reference list when it used those quoted
sentences, and that the pool of authors being echoed by ADB includes me. The reference list of
the ADB report with the relevant reference is quoted herein:
REFERENCES
...
Sereno, Ma. Lourdes. 2001. The Power of Judicial Review and Economic Policies: Achieving
Constitutional Objectives. PHILJA-AGILE-USAID Project on Law and Economics." at page 158.
What is more unfortunate is that I was immediately accused of having copied my sentences
from ADB when a simple turn of the page after the cover page of our 2007 paper would reveal
that the 2007 paper is but a re-posting of our 2001 work. The notice on page 2 of the paper
that is found in the asterisked footnote of the title reads:
This paper was originally submitted in August 2001 as project report to the World Bank.
During and since the time this report was written, the Supreme Court was engaged in various
projects in judicial reform. The authors are grateful to J. Edgardo Campos and Robert Sherwood
for stimulating ideas and encouragement but take responsibility for remaining errors and
omissions. The Asian Institute of Journalism and Communication provided excellent support to
the study in the actual administration of the survey questionnaire and conduct of focus group
discussions.
This charge is made even more aggravating by the fact that the Supreme Court itself, through
the Project Management Office, has a copy of my 2001 paper. In July 2003, a "Project Appraisal
Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the
Philippines for a Judicial Reform Support Project" was officially filed by the World Bank as
Report No. 25504.28 The applicant Supreme Courts representative is named as Chief Justice
Hilario Davide. The project leader is named as Evelyn Dumdum. The Report lists the technical
papers that form the basis for the reform program. Among the papers listed is our 2001 paper.
What is worse, from the point of view of research protocols, is that a simple internet search
would have revealed that this 2001 co-authored paper of mine has been internationally referred
to at least four (4) times in three (3) English language publications and one (1) Japanese- or
Chinese-language publication; two of these are prior to the year 2005 when the relevant ADB
Outlook Report came out. The authors of the English-language works are all scholars on judicial
reform, and they cite our work as one of the pioneering ones in terms of measuring the
relationship between dysfunctions in the judicial system and the cost to doing business of such
dysfunctions. It would have then struck any researcher that in all probability, the alleged
plagiarized sentences originated from my co-authors and me.
The references to my 2001 paper appear in the following international publications:
a) Sherwood, Robert. Judicial Performance: Its Economic Impact in Seven Countries; at
page 20. (http://www.molaah.com/Economic%20Realities/Judicial%20Performance.pdf)

b) Messick, Richard. Judicial Reform and Economic Growth: What a Decade of


Experience Teaches; at pages 2 and 16. (2004).
http://www.cato.org/events/russianconf2004/papers/messick2.pdf
c) Herro, Alvaro and Henderson, Keith. Inter-American Development Bank. The Cost of
Resolving Small-Business Conflicts in Sustainable Development Department Best
Practices Series; at page 46. (2004)
http://www.ifes.org/~/media/Files/Publications/White%20PaperReport/2003/258/SME_P
eru_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 webpage30 shows that
"Understanding on Dispute Settlement" is the first short way they call the long set of rules
covered by Annex 2 of the WTO Treaty.
More importantly, the WTO documents that were cited here are public international documents
and rules governing the relations of states. In page 6 of my article, "Toward the Formulation of a
Philippine Position in Resolving Trade and Investment Dispute in APEC," I explain the modes of
resolving trade and investment disputes by APEC countries, and one of these modes is the
WTO dispute settlement mechanism governed by the WTO rules themselves.
This is therefore a meaningless charge.
Assuming that Justice Abad knows that the above treaty titles are interchangeable, then his
charge is akin to complaining of my supposed failure for having simply written thus: "The
following are the requirements for filing a complaint under the Rules of Court" and then for
having 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 Abads view I should have written: "the following are the requirements provided for under
the 1997 Rules of Civil Procedure (Bar Matter No. 803) for filing a complaint" and then used
quotation marks every time reference to the law is made. Nothing can be more awkward than
requiring such a tedious way of explaining the Rules of Court requirements. I have made no
such comparable charge of violation against Justice del Castillo in the Dissent to the main
Decision and I am not making any such claim of violation in my Dissent to the Resolution
denying the Motion for Reconsideration, because that would be a meaningless point.

Regarding the phrase allegedly coming from Professor Oppenheim on good offices and
mediation, this is a trite, common, standard statement with nothing original at all about it that
can be found in any international dispute settlement reference book, including those that
discuss WTO dispute settlement systems. The phrase is a necessary, cut-and-dried statement
on the use of good offices and mediation, which take place alongside the formal dispute
settlement system in major international dispute settlement systems. The system is provided for
expressly in Article 5.5 and 5.6 of the DSU. A quick view of the WTO website makes this point
very apparent.31
3. The supposed non-attribution of a phrase from Baker v. Carr.
TABLE I: Comparison of Justice Abads 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 of
J. Abads Allegations

Excerpt from the Legal


Memorandum Prepared
by J. Sereno:
Petitioners-Intervenors
Memorandum, Province
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.

Prominent on the surface


of any case held to
involve a political question
is found a textually
demonstrable
constitutional commitment
of the issue to a
coordinate political
department; or a lack of
judicially discoverable and
manageable standards for
resolving it; or the
impossibility of deciding
without an initial policy
determination of a kind
clearly for non-judicial
3.5 In this case,
discretion x x x
Respondents cannot hide
under the political
[Baker v. Carr, 169 U.S.
question doctrine, for two
186]
compelling reasons.
3.6 First, there is no
resolute textual
commitment in the
Constitution that accords
the President the power
to negotiate with the
MILF.

Excerpt from the


Source Cited by J.
Sereno:
Baker v. Carr, 369 U.S.
186 (1962).

Prominent on the surface


of any case held to
involve a political
question is found a
textually demonstrable
constitutional
commitment of the issue
to a coordinate political
department; or a lack of
judicially discoverable
and manageable
standards for resolving it;
or the impossibility of
deciding without an initial
policy determination of a
kind clearly for nonjudicial discretion.
Source cited:
Baker v. Carr


3.13 Second, there is no
lack of a judicially
discoverable and
manageable standard for
resolving the question,
nor impossibility of
deciding the question
without an initial policy
determination of a kind
clearly for non-judicial
discretion. On the
contrary, the negotiating
history with Muslim
secessionist 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.
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 Abads 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 Abads 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.
Excerpt from the Work of J.
Sereno:
Reproduction of
J. Abads Allegations

The World Trade


Organization (WTO),
established on January
1, 1995, is a multilateral

Sereno, Uncertainties
Beyond the Horizon: The
Metamorphosis of the WTO
Investment Framework in
the Philippine Setting, 52
U.S.T. L. Rev. 259 (20072008)
This reticence, to link
investment regulation with
the legal disciplines in the
WTO, compared to the

Excerpt from the Source


Cited by J. Sereno:
http://www.fas.usda.gov/
info/factsheets/wto.html

Source cited:
The World Trade
Organization (WTO),
established on January

institution charged with


administering rules for
trade among member
countries. Currently,
there are 145 official
member countries. The
United States and other
countries participating in
the Uruguay Round of
Multilateral Trade
Negotiations (1986-1994)
called for the formation of
the WTO to embody the
new trade disciplines
adopted during those
negotiations.

eagerness with which other


issues are linked to trade
rules, was evident even in
the precursor to the
Marakkesh Agreement.[2]

1, 1995, is a multilateral
institution charged with
administering rules for
trade among member
countries. Currently,
there are 145 official
[2] Marakkesh Agreement
established the World Trade member countries. The
United States and other
Organization and replaced
countries participating in
GATT as an international
the Uruguay Round of
organization. It was signed
Multilateral Trade
by ministers from most of
Negotiations (1986the 123 participating
governments at a meeting in 1994) called for the
Marrakesh, Morocco on April formation of the WTO to
embody the new trade
15, 1994.
disciplines adopted
The World Trade
during those
The WTO functions as
Organization (WTO) was
negotiations.
the principal international established on January 1,
body concerned with
The WTO functions as
1995. It is a multilateral
multilateral negotiations
the principal
institution charged with
on the reduction of trade administering rules for trade international body
barriers and other
concerned with
among member countries.
measures that distort
multilateral negotiations
The WTO functions as the
competition. The WTO
on the reduction of trade
principal international body
also serves as a platform concerned with multilateral
barriers and other
for countries to raise their negotiations on the
measures that distort
concerns regarding the
competition. The WTO
reduction of trade barriers
trade policies of their
also serves as a
and other measures that
trading partners. The
platform for countries to
distort competition. The
basic aim of the WTO is
raise their concerns
WTO also serves as a
to liberalize world trade
regarding the trade
platform for countries to
and place it on a secure
policies of their trading
raise their concerns
basis, thereby
partners. The basic aim
regarding the trade policies
contributing to economic of their trading partners. The of the WTO is to
growth and development. basic aim of the WTO is to
liberalize world trade
and place it on a secure
[WTO FACTSHEET
liberalize world trade and
basis, thereby
http://www.fas.usda.gov/ place it on a secure basis,
contributing to economic
info/factsheets/wto.html, thereby contributing to
growth and
last accessed February
economic growth and
development.
13, 2008.]
development.
http://www.fas.usda.gov/info/ Source cited:
factsheets/wto.html (last
accessed February 13,
2008). (Emphasis supplied.)

http://www.fas.usda.gov/
info/factsheets/wto.html

(p. 260-261, footnote 2 of J.


Serenos work)
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 Abads
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. Posners seminal work in his book
Economic Analysis of Law.
TABLE K: Comparison of Justice Abads allegations, the article entitled Lawyers Behavior and
Judicial Decision-Making, and Judge Richard A. Posners book Economic Analysis of Law, cited
in the article.
Excerpt from the Work
of J. Sereno:
Reproduction of
J. Abads Allegations

Sereno, Lawyers
Behavior and Judicial
Decision-Making, 70(4)
Phil. L. J. 476 (1996).

Excerpt from the


Source Cited by J.
Sereno:
Richard A. Posner,
Economic Analysis of
Law, (2nd ed. 1977).

...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...
As with any contract, a
necessary (and usually
Posners model is but a
why not always?
simple mathematical
sufficient) conditions for
illustration or validation of negotiations to succeed
what we as laymen have
is that there be a price at
always believed to be
which both parties would
[S]ettlement negotiations true, although how to
feel that agreement
will fail and litigation
prove it to be true has
would increase their
ensue, only if the
always remained a
welfare. Hence
minimum price that the
problem to us. We have
settlement negotiations
plaintiff is willing to accept always known that the
should fail, and litigation
in compromise of his
decision on whether to
ensue, only if the
claim is greater than the
settle or not is dictated by minimum price that the
maximum price the
the size of the stakes in
plaintiff is willing to
defendant is willing to pay the eyes of the parties,
accept in compromise of
in satisfaction of the
the costs of litigation and his claim is greater than
claim.
the probability which each the maximum price that
side gives to his winning
the defendant is willing to
[Posner, p. 434]
or losing. But until now,
pay in satisfaction of that
we have only been
claim; .
intuitively dealing with a
Source cited:
formula for arriving at an
Richard A. Posner,
estimation of the
Economic Analysis of
"settlement range" or its
Law, 435 (2nd ed. 1977).
existence in any given
controversy. Simply, the
settlement range is that
range of prices in which
both parties would be
willing to settle because it
would increase their
welfare. Settlement
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.
(pp. 481-483 of Lawyers
Behavior and Judicial
Decision-Making)
Presumably judges, like
the rest of us, seek to
maximize a utility function
that includes both
monetary and
nonmonetary elements.

What the Judge


Maximizes

In understanding judicial
behavior, we have to
assume, that judges, like
all economic actors
[Posner, p. 415]
maximize a utility function.
This function in all
[T]he rules of the judicial
probability includes
process have been
carefully designed both to material as well as nonmaterial factors. In
the prevent the judge
from receiving a monetary American literature, they
have come up with
payoff from deciding a
particular case one way or several theories on what
the other and to minimize judges maximize.
the influence of politically The first is that the
effective interest group in American judicial system
his decisions.
have rules designed to
minimize the possibilities
[Posner, 415]
of a judge maximizing his
It is often argued, for
financial interest by
example, that the judge
receiving a bribe from a
who owns land will decide litigant of from acceding
in favor of landowners,
to a politically powerful
the judge who walks to
interest group by making
work will be in favour of
the rules work in such a
pedestrians.
manner as to create
[Posner, 415]
disincentives for the judge
ruling in such a manner.
A somewhat more

19.7 WHAT DO
JUDGES MAXIMIZE?
This section attempts
to sketch a theory of
judicial incentives that
will reconcile these
assumptions.

Presumably judges, like


the rest of us, seek to
maximize a utility
function that includes
both monetary and
nonmonetary elements
(the latter including
leisure, prestige, and
power). As noted earlier,
however, the 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
on his decisions. To be
sure, the effectiveness of
these insulating rules is
plausible case can be
The second, proceeding
sometimes questioned. It
made that judges might
from the first is that the
is often argued, for
slant their decisions in
judge maximizes the
example, that the judge
favour of powerful interest interest of the group to
who owns land will
groups in order to
which he belongs. If he
increase the prospects of belongs to the landowning decide in favor of
landowners, the judge
promotion to higher office, class, he will generally
who walks to work in
judicial or otherwise.
favor landowners, and if
favor of pedestrians, the
he walks to work, he will
[Posner, p. 416]
judge who used to be a
generally favor
[J]udges seek to impose
corporate lawyer in favor
pedestrians.
their preferences, tastes,
of corporations....
The third is that the judge
values, etc. on society.
maximizes the prospects A somewhat more
[Posner, 416]
plausible case can be
of his promotion to a

higher office by slanting


his decisions in favor of
powerful interest groups.
The last is that judges
maximize their influence
on society by imposing
their values, tastes and
preferences thereon.
Depending on ones
impressions and
experiences (since there
is no 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 utilitymaximizing behavior on
both our probability
estimate function and
Posners precondition
inequality for litigation.
Although more research is
required in this area, if we
believe Posners function
to be true.
(Emphasis supplied.)
(pp. 489 of Lawyers
Behavior and Judicial
Decision-Making)

made that judges might


slant their decisions in
favor of powerful interest
groups in order to
increase the prospects of
promotion to higher
office, judicial or
otherwise....
It would seem, therefore,
that the explanation for
judicial behavior must lie
elsewhere than in
pecuniary or political
factors. That most judges
are leisure maximizers is
an assumption that will
not survive even casual
observation of judicial
behavior. A more
attractive possibility, yet
still one thoroughly
consistent with the
ordinary assumptions of
economic analysis, is
that judges seek to
impose their
preferences, tastes,
values etc. on society....
Source:
Richard A. Posner,
Economic Analysis of
Law, 415-16 (2nd ed.
1977).

May I invite the reader to read my entire article entitled "Lawyers Behavior and Judicial
Decision-Making," accessible online at
<http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20numbe
r%204%20-02-%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf>, so
that the alleged copying of words can be taken in the proper context.
It must first be emphasized that the whole article was largely a presentation and discussion of
Judge Posners 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 Posners 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 Posners 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 individuals utility is one of the core principles on which the study of an
individuals 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 Posners 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 Posners work I am alleged to have plagiarized in
my Philippine Law Journal article.
Thank you very much. I will be much obliged for this kind favor.
Very truly yours,
Maria Lourdes P.A. Sereno
The problem with the majority approach is that it refuses to face the scale of the plagiarism in
the Vinuya Decision. If only that were the starting point for the analysis of the majority, then
some of my colleagues would not have formed the impression that I was castigating or
moralizing the majority. No court can lightly regard a ponencia, as in Vinuya, where around 53%
of the words used for an important section were plagiarized from sources of original scholarship.
Judges and their legal researchers are not being asked to be academics; only to be diligent and
honest.
IV. The Role of the Judiciary in Society
On more than one occasion, this Court has referred to one of its functions as the symbolic or
educative function, the competence to formulate guiding principles that may enlighten the bench
and the bar, and the public in general.32 It cannot now backpedal from the high standards
inherent in the judicial role, or from the standards it has set for itself.
The need to cement ethical standards for judges and justices is intertwined with the democratic
process. As Lebovits explained:
The judiciary's power comes from its words alonejudges 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 writeopinions scrutinized by litigants,
attorneys, other judges, and the publicare held, and must be held, to high ethical standards.
Ethics must constrain every aspect of the judicial opinion. 33

Justice George Rose Smith once pointed to the democratic process as a reason to write
opinions: "Above all else to expose the court's decision to public scrutiny, to nail it up on the wall
for all to see. In no other way can it be known whether the law needs revision, whether the court
is doing its job, whether a particular judge is competent." Justice Smith recognized that judges
are not untouchable beings. Judges serve their audience. With this service comes the need for
judges to be trusted. Writing opinions makes obtaining trust easier; it allows an often opaque
judicial institution to become transparent.34
Judges cannot evade the provisions in the Code of Judicial Conduct.35
A judge should participate in establishing, maintaining and enforcing high standards of conduct,
and shall personally observe those standards so that the integrity and independence of the
judiciary will be preserved. The drafters of the Model Code were aware that to be effective, the
judiciary must maintain legitimacy and to maintain legitimacy, judges must live up to the Model
Code's moral standards when writing opinions. If the public is able to witness or infer from
judges' writing that judges resolve disputes morally, the public will likewise be confident of
judges' ability to resolve disputes fairly and justly.36 (Citations omitted)
Canon 1 of the Code of Judicial Conduct states that a judge should uphold the integrity and
independence of the judiciary. Rule 1.01 in particular states that a judge should be the
embodiment of competence, integrity, and independence.
Canon 3 then focuses on the duty of honesty in the performance of official duties, as well as on
the supervision of court personnel:
Rule 3.09. A judge should organize and supervise the court personnel to ensure the prompt and
efficient dispatch of business, and require at all times the observance of high standards of public
service and fidelity.
Rule 3.10. A judge should take or initiate appropriate disciplinary measures against lawyers or
court personnel for unprofessional conduct of which the judge may have become aware.
Paragraph 17 of the Code of Judicial Ethics37 focuses on the writing of judicial opinions:
In disposing of controversial cases, judges should indicate the reasons for their action in
opinions showing that they have not disregarded or overlooked serious arguments of counsel.
They should show their full understanding of the case, avoid the suspicion of arbitrary
conclusion, promote confidence in their intellectual integrity and contribute useful
precedents to the growth of the law. (Emphasis supplied)
Paragraph 31, "a summary of judicial obligations," contains a more general statement regarding
the behavioral norms required of judges and justices alike, stating:
A judges 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 peoples 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 Justices written
opinions. In the democratic framework, it is the only way by which the public can check the
performance of such public officers 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 Courts Educative Function
The Courts first Decision in this case hinged on the difference between the academic publishing
model on the one hand, and the judicial system on the other. It proceeded to conclude that
courts are encouraged to cite "historical legal data, precedents, and related studies" in their
decisions, so that "the judge is not expected to produce original scholarship in every respect."
This argument presents a narrower view of the role of the courts than what this countrys 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 courts judgment
reverberates throughout the community in which it is rendered, affecting issues of life, liberty,
and property in ways that are more pervasive and penetrating than what usually appears on the
surface or under it.45
The impact of judicial decisions has even been codified in paragraph 2 of the Canon of Judicial
Ethics: "Every judge should at all times be alert in his rulings and in the conduct 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 narrowlysuggesting 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 Courts
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 clientsThe 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
casesthough 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--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 cutand-pasted kind. What then is to be gained by trying to make an ethical issue of judicial writing?
Professor Llewellyn said it is in part because the judicial office acts as "a subduer of self and
self-will, as an engine to promote openness to listen and to understand, to quicken
evenhandedness, patience, sustained effort to see and judge for All-of-Us." 49
The lessons taught our country by its singular experience in history has given rise to a more
defined place for our courts. With the constitutional mandate that the Supreme Court alone can
exercise judicial review, or promulgate rules and guidelines for the bench and the bar, or act as
the arbiter between the two branches of government, it is all the more 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.
MARIA LOURDES P. A. SERENO
Associate Justice

Footnotes
1

Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J.
Intl 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. Intl 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 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-primeminister-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
Womens 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 thisall 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, its possible to e-mail the article to yourself, which makes it easier becauseso
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
17

Id. at 522.

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=on
epage&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://wwwwds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2003/07/31/
000012009_20030731101244/Rendered/PDF/255040PH0PAD.pdf (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 Pao, 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.

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).
The Lawphil Project - Arellano Law Foundation

SEPARATE DISSENTING OPINION


CARPIO MORALES, J.:
I join Justice Antonio T. Carpios thesis in his Dissenting Opinion on the commission of
plagiarism or violation of intellectual property rights in the Vinuya decision. I join him too on his
other thesis that this Court has no jurisdiction to decide an administrative case where a sitting
Justice of this Court has committed misconduct in office, with qualification.
I submit that the Court may wield its administrative power against its incumbent members on
grounds other than culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust, AND provided the offense or misbehavior does
not carry with it a penalty, the service of which would amount to removal from office either on a
permanent or temporary basis such as suspension.
The President, the Vice President, the members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office, on
impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but not by impeachment. 1
(underscoring supplied)
In 1988, the Court dismissed the complaint for disbarment against Justice Marcelo Fernan for
lack of merit. Aside from 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 members 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.
x x x A public officer who under the Constitution is required to be a Member of the Philippine Bar
as a qualification for the office held by him and who may be removed from office only by
impeachment, cannot be charged with disbarment during the incumbency of such public officer.
Further, such public officer, during his incumbency, cannot be charged criminally before the
Sandiganbayan or any other court with any offense which carries with it the penalty of removal
from office, or any penalty service of which would amount to removal from office.4
(emphasis and underscoring supplied; italics in the original)

The Court clarified, however, that it is not saying that its members are entitled to immunity from
liability for possible criminal acts or for alleged violations of the canons of judicial ethics or codes
of judicial conduct. It stressed that there is a fundamental procedural requirement that must be
observed before such liability may be determined and enforced.
x x x A Member of the Supreme Court must first be removed from office via the constitutional
route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the
tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held
to answer either criminally or administratively (by disbarment proceedings) for any wrong or
misbehaviour that may be proven against him in appropriate proceedings.5 (underscoring
supplied)
The Court declared the same principle in Jarque v. Desierto6 by Resolution of December 5,
1995.
The rule that an impeachable officer cannot be criminally prosecuted for the same offenses
which constitute grounds for impeachment presupposes his continuance in office. Hence, the
moment he is no longer in office because of his removal, resignation, or permanent disability,
there can be no bar to his criminal prosecution in the courts.
Nor does retirement bar an administrative investigation from proceeding against the private
respondent, given that, as pointed out by the petitioner, the formers 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 Courts 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 Courts ethical rules and
standards for submission to the en banc. (emphasis and underscoring supplied)
The Court acknowledged its power to take cognizance of complaints against its incumbent
Members. It is circumscribed, however, by the abovementioned principle of constitutional law11
in terms of grounds and penalties.
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.
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
Purisimas 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
Purisimas retirement made it untenable for the Court to further impose administrative
sanctions on him. What was confirmed by the Purisima case, nonetheless, for purposes of
pertinent discussion, is that the Court has jurisdiction to take cognizance of a complaint against
an incumbent Justice.
Then there was the case In re: Undated Letter of Mr. Louis Biraogo12 where Justice Ruben
Reyes was, inter alia, "held liable for GRAVE MISCONDUCT for leaking a confidential internal
document of the Court" for which he was "FINED P500,000.00, to be charged against his
retirement benefits, and disqualified to hold any office or employment in any branch or
instrumentality of the government including government-owned or controlled corporations."13
The question in Biraogo was not so much on the Courts 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 Courts October 15, 2010 Resolution, but only
insofar as Justice Del Castillo is concerned. All related administrative concerns and issues
involving non-impeachable officers therein should still be considered effectual.
In Biraogo, the unauthorized release of the unpromulgated ponencia of Justice Reyes in the
consolidated Limkaichong cases spawned an investigation to determine who were responsible
for the leakage of the confidential internal 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 Cabalquinto15 which should apply only to cases
involving violence against women and children.16

The unjustified non-disclosure of her identity is unfair to Atty. Evangelista who, aside from
having his own credentials 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 Courts 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 Castillos "shortcomings," the legal
researcher, who was the lone drafter, proofreader and citechecker, was tasked like any other
Court Attorney to secure and ensure the substance and legal reasoning of the Vinuya Decision.
Like Justice Reyes, Justice Del Castillo can only do so much in claiming responsibility and full
control of his office processes and shielding the staff under the mantle of his impeachable
wings.
Notably, Rule 10.2 of Canon 10 of the Code of Professional Responsibility states that lawyers
shall "not knowingly misquote or misrepresent the contents of a paper, the language or the
argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a
provision already rendered inoperative by repeal or amendment, or assert as a fact that which
has not been proved." While the provision presupposes knowledge or willful intent, it does not
mean that 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
the Vinuya Decision, it easily attributed them to "accidental deletions." It conveniently assigned
such human errors to the realm of accidents, without explaining whether it could not have been
foreseen or avoided.
I, therefore, posit that the legal researcher, who must hitherto be named, is liable for Simple
Neglect of Duty and must be ordered to pay a Fine in the amount of, following Biraogo,
P10,000.00, with warning of more severe sanctions for future similar conduct.
Whether liability attaches to what the October 15, 2010 per curiam Decision finds to be deletion
or omission of citation "unquestionably due to inadvertence or pure oversight," the fact remains,
nonetheless, that there is a need for a textual correction of the Vinuya Decision. This Court
should cause the issuance of a corrected version in the form of, what Justice Ma. Lourdes P. A.
Sereno suggests as, a "corrigendum."
The matter of making corrections in judicial issuances is neither novel nor something beneath
the Court. As early as February 22, 2000, the Court already accepted the reality of human error.
In A.M. No. 00-2-05-SC, "In the Matter of Correction of Typographical Errors in Decisions and
Signed Resolutions," the Court provided a simple procedure in making proper corrections:
Inadvertent typographical errors in decisions and signed resolutions of the Court may occur
every now and then. As these decisions and signed resolutions are published and preserved for
posterity in the Philippine Reports, the Supreme Court Reports Annotated, and other
publications as well as in the Supreme Court website, the need for making them free of

typographical errors cannot be overemphasized. Care should, therefore, be taken in


proofreading them before they are submitted for promulgation and/or publication.
Nevertheless, should typographical errors be discovered after the promulgation and/or
publication of decisions and resolutions, the following procedure should be observed to the end
that unauthorized corrections, alterations, or intercalations in what are public and official
documents are not made.
1. In case of decisions and signed resolutions with the author[s] names indicated, the
Reporter and the Chief of the Management Information Systems Office of the Supreme
Court should secure the authority of the author concerned to make the necessary
correction of typographical errors. In case of per curiam decisions and unsigned
resolutions, authority to make corrections should be secured from the Chief Justice.
2. The correction of typographical errors shall be made by crossing out the incorrect
word and inserting by hand the appropriate correction immediately above the cancelled
word. Such correction shall be authenticated by the author by signing his initials
immediately below the correction. In per curiam decisions and unsigned resolutions, and
in cases where the author is no longer a member of the Court, the authentication shall
be made by the Chief Justice.
3. The Reporter and the Chief of the Management Information Systems Office shall
submit to the Court, through the Clerk of Court, a quarterly report of decisions and
resolutions in which corrections have been made. The Clerk of Court must thereafter
include the report in the agenda of the Court en banc.
This resolution takes effect immediately.
Despite the avowals of "slip in attribution," "bad footnoting," and "editorial error" in the Courts
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.
CONCHITA CARPIO MORALES
Associate Justice
Footnotes
1

Constitution, Art. XI, Sec. 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.

Id. at 774.

Id. at 776-777.

A.C. No. 4509, December 5, 1995, 250 SCRA xi.

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
11

Id., Rule 2, Sec. 3, par. (h).

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;
Caada v. Suerte, A.M. No. RTJ-04-1884, February 22, 2008, 546 SCRA 414]. Its
application to a particular administrative action is not dependent on the date of
commission of the offense but on the date of filing of the case. There is no automatic
conversion when the administrative case was filed before October 1, 2002 or prior to the
date of effectivity of A.M. No. 02-9-02-SC (vide Office of the Court Administrator v.
Morante, A.M. No. P-02-1555, April 16, 2004, 428 SCRA 1, 35-36; J. King and Sons
Company, Inc., v. Hontanosas, Jr., A.M. No. RTJ-03-1802, February 28, 2006
Resolution) and the respondent has already been required to comment on the complaint
(Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA 329, 341).
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 peoples 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.
The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION


BRION, J.:
Background Facts
The present administrative disciplinary case against Supreme Court Associate Justice Mariano
C. del Castillo stemmed from the decision he penned for the Court in G.R. No. 162230, entitled
Isabelita C. Vinuya, et al. v. Executive Secretary. The Vinuya Decision was promulgated on
April 28, 2010 with 13 justices of this Court concurring with the ruling to dismiss the case.
On July 19, 2010, Attys. Harry Roque and Rommel Bagares, counsels for petitioners Vinuya, et
al., filed a Supplemental Motion for Reconsideration raising, among others, the plagiarism
allegedly committed by Justice del Castillo for using the works of three foreign legal authors in
his ponencia. They alleged that the use was without proper attribution and that Justice del
Castillo twisted the foreign authors works to support the Decision. They considered it "highly
improper for x x x the Court x x x to wholly lift, without proper attribution, from at least three
sources an article published in 2009 in the Yale Law Journal of International Law,1 a book
published by the Cambridge University Press in 2005,2 and an article published in the Case
Western Reserve Journal of International Law3 and to make it appear that these sources
support the assailed Judgments arguments for dismissing [their] petition[,] when in truth, the
plagiarized sources even make a strong case for the Petitions claims[.]"4
In reply to the accusation, Justice del Castillo wrote and circulated a letter dated July 22, 2010
to the members of this Court. On July 27, 2010, the Court decided to refer the letter to the
Ethics and Ethical Standards Committee (the "Ethics Committee" or "committee") which
docketed it as an administrative matter. The committee required Attys. Roque and Bagares to
comment on Justice del Castillos letter, after which it heard the parties. After the parties
memoranda, the committee submitted its findings and recommendations to the Court.
The Courts 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 the Vinuya Decision and that "no attributions were made to the x x
x authors in [its] footnotes."5 However, the Court concluded that the failure to attribute did not
amount to plagiarism because no malicious intent attended the failure; the attributions (present

in Justice del Castillos 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 Blacks Law Dictionarys
definition of plagiarism the deliberate and knowing presentation of another persons original
ideas or creative expressions as ones own the Court declared that "plagiarism presupposes
intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own." In
fact, the Court found that by citing the foreign authors 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 Committees finding that the omission of attributions to CriddleDescent and Ellis did not bring about an impression that Justice Del Castillo himself created the
passages that he lifted from their published articles. That he merely got those passages from
others remains self-evident, despite the accidental deletion. The fact is that he still imputed the
passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place.
As to the charge that Justice del Castillo twisted the meaning of the works of the foreign
authors, the Court ruled that it was impossible for him to have done so because:
first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible
for any person reading the decision to connect the same to the works of those authors as to
conclude that in writing the decision Justice Del Castillo "twisted" 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 Castillos 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 Courts October 12, 2010 Decision
based mainly on her disagreement with the majoritys 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
Courts 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 Courts 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 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
Carpios Dissenting Opinion, specifically on his position that the Court has no jurisdiction to
discipline its Members as the only means to discipline them is through impeachment
proceedings that the Congress has the sole prerogative to undertake. Impeachment, he
declares, functions as the equivalent of administrative disciplinary proceedings. Since the
Congress is given the exclusive power to initiate,6 try, and decide7 all cases of impeachment,
Justice Carpio posits that the Congress serves as the exclusive disciplining authority over all
impeachable officers. He warns that for the Supreme Court to hear the present administrative
disciplinary case would be to usurp this exclusive power of Congress.
Jurisdiction of the Supreme Court to Discipline its Members
A given in the discipline of Members of the Supreme Court is that they can only be "removed
from office" through impeachment, as provided under Article XI of the Constitution, on the
specified grounds of culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of the public trust. The purpose of impeachment and the
constitutional interest sought is to protect the people and the State from official delinquencies
and other malfeasances.8 The Constitution, however, is not a single-purpose document that
focuses on one interest alone to the exclusion of related interests; impeachment was never
intended by the Constitution to be the totality of the administrative actions or remedies that the
public or the Court may take against an erring Justice of the Court. Other related constitutional
interests exist touching on other facets of the Judiciary and public accountability. They are, by
themselves, equally compelling and demanding of recognition.
Among the compelling interests that the Constitution zealously guards is judicial independence
because it is basic to the meaning and purposes of the Judiciary. This interest permeates the
provisions of Article VIII of the Constitution.9
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 Judiciarys Code of Judicial Conduct and the lawyers Code of
Professional Responsibility. Judicial integrity is not only a necessary element in the orderly and
efficient administration of justice; it is almost literally the lifeblood of the Judiciary. A Judiciary,

dissociated from integrity and the public trust that integrity brings, loses its rightful place in the
constitutional democratic scheme that puts a premium on a reliable and respected third branch
of government that would balance the powers of the other two branches.
To ensure the maintenance and enhancement of judicial integrity, the Constitution has given the
Judiciary, mainly through the Supreme Court, a variety of powers. These powers necessarily
begin with the power to admit and to discipline members of the bar10 who are officers of the
courts and who have the broadest frontline interaction with the courts and with the public.
Courts in general have the power to cite for contempt11 that proceeds, not only from the need to
maintain orderly procedures, but also from the need to protect judicial integrity in the course of
the courts exercise of judicial power. The Supreme Court has the power to discipline and
remove judges of lower courts.12 In this role, the Court hears administrative disciplinary cases
against lower court judges for purposes of redress against erring judges and, more importantly,
to "[preserve] the integrity of the judicial system and public confidence in the system and x x x
[to safeguard] the bench and the public from those who are unfit."13
As concrete legal basis, the Supreme Court is expressly granted the general power of
administrative supervision over all courts and the personnel thereof.14 By its plain terms, the
power extends not only to the authority to supervise and discipline lower court judges but to
exercise the same powers over the Members of the Court itself. This is the unavoidable
meaning of this grant of authority if its main rationale i.e., to preserve judicial integrity is to
be given full effect. The Supreme Court must ensure that the integrity of the whole Judiciary, its
own Members included, is maintained as any taint on any part of the Judiciary necessarily taints
the whole. To state the obvious, a taint in or misconduct by any Member of the Supreme Court
even if only whispered about for lack of concrete evidence and patriotic whistleblowers carries
greater adverse impact than a similar event elsewhere in the Judiciary.
Independent of the grant of supervisory authority and at a more basic level, the Supreme Court
cannot be expected to play its role in the constitutional democratic scheme solely on the basis
of the Constitutions 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.
xxxx
[The] Constitution does x x x shield [judges] from corrective action by other judges designed to
ensure that the law is effectively administered. The appellate courts have the power to prevent
action so obviously improper as to place it beyond established rules of law.21
Adverse Effects of Expansive View of Impeachment Grounds
If impeachment were to be the only administrative proceeding to hold Justices of this Court
accountable, then the grounds for impeachment may arguably carry a definition beyond the
traditionally grave or serious character these offenses have always carried. An expanded
definition, however, is no different from the remedy of burning a house to kill a rat. While such
definition in the long run may kill more rats or assuredly do away with a particularly obnoxious
rat, it will at the same time threaten and adversely affect a more valuable constitutional interest
the independence of the Judiciary that allows magistrates to conscientiously undertake their
duties, guided only by the dictates of the Constitution and the rule of law.
It needs no elaborate demonstration to show that the threat of impeachment for every perceived
misconduct or misdemeanor would open Justices of the Court to harrassment. A naughty effect
if administrative redress can only be secured from Congress to the exclusion of this Court
under an expanded definition of impeachment grounds is to encourage every litigant with a
perceived grievance against a Justice of this Court to run to his congressman for the filing of an
impeachment complaint.
Undoubtedly, this kind of scenario will be a continuing threat to judges and justices, with
consequential adverse effects on the Judiciary, on inter-branch relationship, and on the respect
the public may give the Judiciary, the Legislature, and even of the government itself. Worse, this
kind of scenario may ultimately trivialize the impeachment process and is thus best avoided.
An expansive interpretation of the grounds for impeachment must also affect Congress which
acts on impeachment complaints but whose main task under our structure of government is to
legislate, not to police the Supreme Court and other impeachable officers. To say the least, a
deluge of impeachment complaints may prove to be impractical for Congress because
impeachment is both an arduous and a time consumming process that will surely divert
congressional time and other resources from the principal function of lawmaking.
The US Practice
In the United States (US) federal courts, "the impeachment process has not been the only check
on federal judges [who are removable through impeachment] who may have abused their
independence, or the only assurance of their accountability."22 The US National Commission on
Judicial Discipline and Removal has posited that there must be "a power in the judiciary to deal
with certain kinds of misconduct [as this will further] both the smooth functioning of the judicial
branch and the broad goal judicial independence."
Along this line, the US Congress created a system enforcing an internal judicial self-discipline
through the judicial councils under their Judicial Councils Reform and Judicial Conduct and
Disability Act of 1980 (the US 1980 Act). The judicial council (composed of the federal judges
within a specific judicial circuit) is considered as a "formal and credible supplement to the
impeachment process for resolving complaint of misconduct or disability against federal
judges."23 The judicial council of a federal circuit, through the chief judge, is authorized to
receive and to act on complaints about the conduct of judges who are removable only through
impeachment. If there is merit to a complaint, the judicial council can "take appropriate action,
which may include censure, reprimand, temporary suspension, and transfer of cases, but not
removal from office. If the judicial council believes that it has uncovered grounds for
impeachment, the council is empowered to report its findings to the Judicial Conference of the

United States, which after an investigation, may report its findings to the House of
Representatives."24
Arguably, the existence of a judicial council as an additional or supplemental check on US
federal judges is statutory and no equivalent statute has been enacted in our jurisdiction
specifically establishing in our Supreme Court a system of internal judicial self-discipline. This
argument, however, loses sight of the constitutional authority of our Supreme Court to govern
the conduct of its members under its power of general administrative supervision over all courts
a power that the Philippine Constitution expressly grants to our Supreme Court to the
exclusion of remedies 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] Courts best interest, as contributing to the publics perception
of accountability, to devise and adopt some type of formal procedure for the receipt and
disposition of conduct and disability complaints.
The Commission recommends that the Supreme Court may wish to consider the adoption of
policies and procedures for the filing and disposition fo complaints alleging misconduct against
Justices of the Supreme Court.25
Note should be taken in these regards that the Philippine Supreme Court has already put in
place various Codes governing ethical rules for the bar and for the Judiciary. The Code of
Judicial Conduct applies to all members of the Judiciary, including the Members of the Supreme
Court. The Code of Professional Responsibility applies to all lawyers, thus, necessarily to
Members of the Court for whom membership in the bar is an essential qualification. The Court
as well has codified the Internal Rules of the Supreme Court. A Rule on Whistleblowing is
presently under consideration by the Court en banc.
What is crucial in the establishment of the judicial council system in the US is the implication
that no inherent incompatibility exists between the existence of Congress power to impeach
and the Supreme Courts 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--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 US26:
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.
Courts Interpretation of Plagiarism - limited to its Concept as an Ethical violation of Members of
the Judiciary.
The dissatisfaction with the Courts October 12, 2010 Decision (resolving the plagiarism charge
against Justice del Castillo or the "plagiarism Decision") primarily lies with the Courts
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 anothers work and
pass it off as ones 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, as long as they
acted in good faith.27
The term plagiarism does not have a precise statutory definition as it is not a matter covered by
present Philippine statutes.28 What the Intellectual Property Code (Republic Act 8283)29 defines
and punishes is "copyright infringement." However, these terms are not legally interchangeable.
Laurie Stearns, copyright lawyer and author of the article "Copy Wrong: Plagiarism, Process,
Property, and the Law" aptly observes the distinctions between the two in this wise:
Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily
plagiarism. The two concepts diverge with respect to three main aspects of the offense:
copying, attribution and intent. In some ways the concept of plagiarism broader than
infringement, in that it can include the copying of ideas or of expression not protected by
copyright, that would not constitute infringement and it can include copying of small amounts of
material that would be disregarded under copyright law. In other ways the concept of
infringement is broader, in that it can include both properly attributed copying and unintentional
copying that would be excused from being called plagiarism.
The divergence between plagiarisms popular definition and copyrights 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 Castillos 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 Courts 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.
xxxx
Because the majority Decision has excused the lack of attribution to the complaining authors in
the Vinuya decision to editorial errors and lack of malicious intent to appropriate and that
therefore there was no plagiarism lack of intent to infringe copyright in the case of lack of
attribution may now also become a defense, rendering the above legal provision meaningless.31
When the Supreme Court acts on complaints against judges under its supervision and control, it
acts as an administrator imposing discipline and not as a court passing upon justiciable
controversies.32 It is precisely for this reason that disciplinary cases are docketed as
"Administrative Matters" or "A.M."33 Hence, any interpretation by the Court of "plagiarism" is
limited to this context and cannot be held to bind the academe in undertaking its educational
functions, particularly its own power to define plagiarism in the educational context. It likewise
cannot bind Congress in its role as the sole authority to determine what constitutes an
impeachable offense, subject to what I stated above on the established scope of impeachable
offenses and the power of the Court to act in grave abuse of discretion situations under the
Constitution. Specifically, a finding by this Court that plagiarism was or was not committed
cannot preclude Congress from determining whether the failure or omission to make an
attribution, intentionally or unintentionally, amounts to a "betrayal of public trust."
For these reasons, I support the conclusion of the Ethics and Ethical Standards Committee that
Justice Mariano C. del Castillos attribution lapses did not involve any ethical violation. I vote for
the approval of the Committees Report and for the denial of the petitioners Motion for
Reconsideration.
ARTURO D. BRION
Associate Justice
Footnotes
1

A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent.

Enforcing Erga Omnes Obligations in International Law by Christian J. Tams.

Breaking the Silence: On Rape as an International Crime by Mark Ellis.

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.

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;
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
VICENTE SOTTO

January 21, 1949

In re VICENTE SOTTO, for contempt of court.


Vicente Sotto in his own behalf.
FERIA, J.:
This is a proceeding for contempt of our court against the respondent Atty. Vicente Sotto, who
was required by their Court on December 7, 1948, to show cause why he should not be
punished for contempt to court for having issued a written statement in connection with the
decision of this Court in In re Angel Parazo for contempt of court, which statement, as published
in the Manila Times and other daily newspapers of the locality, reads as follows:
As author of the Press Freedom Law (Republic Act No. 53.) interpreted by the Supreme
Court in the case of Angel Parazo, reporter of a local daily, who now has to suffer 30
days imprisonment, for his refusal to divulge the source of a news published in his
paper, I regret to say that our High Tribunal has not only erroneously interpreted said
law, but that it is once more putting in evidence the incompetency of narrow mindedness
o the majority of its members, In the wake of so many mindedness of the majority
deliberately committed during these last years, I believe that the only remedy to put an
end to so much evil, is to change the members of the Supreme Court. To his effect, I
announce that one of the first measures, which as its objects the complete
reorganization of the Supreme Court. As it is now constituted, a constant peril to liberty
and democracy. It need be said loudly, very loudly, so that even the deaf may hear: the
Supreme Court very of today is a far cry from the impregnable bulwark of Justice of
those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other
learned jurists who were the honor and glory of the Philippine Judiciary.
Upon his request, the respondent was granted ten days more besides the five originally given
him to file his answer, and although his answer was filed after the expiration of the period of
time given him the said answer was admitted. This Court could have rendered a judgment for
contempt after considering his answer, because he does not deny the authenticity of the
statement as it has been published. But, in order to give the respondent ample opportunity to
defend himself or justify the publication of such libelous statement, the case was set for hearing
or oral argument on January 4, the hearing being later postponed to January 10, 1949. As the
respondent did not appear at the date set for hearing, the case was submitted for decision.
In his answer, the respondent does not deny having published the above quoted threat, and
intimidation as well as false and calumnious charges against this Supreme Court. But he therein
contends that under section 13, Article VIII of the Constitution, which confers upon this Supreme
Court the power to promulgate rules concerning pleading, practice, and procedure, "this Court
has no power to impose correctional penalties upon the citizens, and that the Supreme Court
can only impose fines and imprisonment by virtue of a law, and has to be promulgated by
Congress with the approval of the Chief Executive." And he also alleges in his answer that "in
the exercise of the freedom of speech guaranteed by the Constitution, the respondent made his
statement in the press with the utmost good faith and with no intention of offending any of the
majority of the honorable members of this high Tribunal, who, in his opinion, erroneously
decided the Parazo case; but he has not attacked, or intended to attack the honesty or integrity
of any one.' The other arguments set forth by the respondent in his defenses observe no
consideration.
Rules 64 of the rules promulgated by this court does not punish as for contempt of court an act
which was not punishable as such under the law and the inherent powers of the court to punish
for contempt. The provisions of section 1 and 3 of said Rule 64 are a mere reproduction of
section 231 and 232 of the old Code of Civil Procedure, Act No. 190, amended, in connection
with the doctrine laid down by this Court on the inherent power if the superior courts to punish
for contempt is several cases, among them In re Kelly, 35 Phil., 944. That the power to punish
for contempt is inherent in all courts of superior statue, is a doctrine or principle uniformly
accepted and applied by the courts of last resort in the United States, which is applicable in this
jurisdiction since our Constitution and courts of justice are patterned as expounded in American
Jurisprudence is as follows:
The power of inflicting punishment upon persons guilty of contempt of court may be
regarded as an essential element of judicial authority, IT is possessed as a part of the
judicial authority granted to courts created by the Constitution of the United States or by

the Constitutions of the several states. It is a power said to be inherent in all courts
general jurisdiction, whether they are State or Federal; such power exists in courts of
general jurisdiction independently of any special express grant of statute. In many
instances the right of certain courts of tribunals to punish for contempt is expressly
bestowed by statue, but such statutory authorization is unnecessary, so far as the courts
of general jurisdiction are concerned, and in general adds nothing statutory authority
may be necessary as concerns the inferior courts statutory authority may be necessary
to empower them to act. (Contempt, 12 Jur., pp. 418, 419.)
In conformity with the principle enunciated in the above quotation from American Jurisprudence,
this Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause, respecting the
same, has always been considered as misbehavior, tending to obstruct the
administration of justice, and subjects such persons to contempt proceedings. Parties
have a constitutional right to have their fairly in court, by an impartial tribunal,
uninfluenced by publications or public clamor. Every citizen has a profound personal
interest in the enforcement of the fundamental right to have justice administered by the
courts, under the protection and forms of law, free from outside coercion or interference.
Any publication, pending a suit, reflecting upon the upon court, the parties, the officers of
the court, the counsel, etc., with reference to the suit, or tending to influence the decision
of the controversy, is contempt of court and is punishable. The power to punish for
contempt is inherent in all court. The summary power to commit and punish for contempt
tending to obstructed or degrade the administration of justice, as inherent in courts as
essential to the execution of their powers and to the maintenance of their authority is a
part of the law of the land. (In re Kelly, 35 Phil., 944, 945.)
Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the
decision of the court in a pending case made in good faith may be tolerated; because if well
founded it may enlighten the court and contribute to the correction of an error if committed; but if
it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing
or modifying its decision. Had the respondent in the present case limited himself to as statement
that our decision is wrong or that our construction of the intention of the law is not correct,
because it is different from what he, as proponent of the original bill which became a law had
intended, his criticism might in that case be tolerated, for it could not in any way influence the
final disposition of the Parazo case by the court; inasmuch as it is of judicial notice that the bill
presented by the respondent was amended by both Houses of Congress, and the clause
"unless the court finds that such revelation is demanded by the interest of the State" was added
or inserted; and that, as the Act was passed by Congress and not by any particular member
thereof, the intention of Congress and not that of the respondent must be the one to be
determined by this Court in applying said act.
But in the above-quoted written statement which he caused to be published in the press, the
respondent does not merely criticize or comment on the decision of the Parazo case, which was
then and still is pending reconsideration by this Court upon petition of Angel Parazo. He not only
intends to intimidate the members of this Court with the presentation of a bill in the next
Congress, of which he is one of the members, reorganizing the Supreme Court and reducing
the members, reorganizing the Supreme Court and reducing the members of Justices from
eleven to seven, so as to change the members of this Court which decided the Parazo case,
who according to his statement, are incompetent and narrow minded, in order to influence the
final decision of said case by this Court, and thus embarrass or obstruct the administration of
justice. But the respondent also attacks the honesty and integrity of this Court for the apparent
purpose of bringing the Justices of this Court into disrepute and degrading the administration of
justice, for in his above-quoted statement he says:
In the wake of so many blunders and injustices deliberately committed during these last
years, I believe that the only remedy to put an end to so much evil, is to change the
members of the Supreme Court. To this effect, I announce that one of the first
measures, which I will introduce in the coming congressional sessions, will have as its
object the complete reorganization of the Supreme Court. As it is now the Supreme
Court of today constitutes a constant peril to liberty and democracy.

To hurl the false charge that this Court has been for the last years committing deliberately "so
many blunders and injustices," that is to say, that it has been deciding in favor of one party
knowing that the law and justice is on the part of the adverse party and not on the one in whose
favor the decision was rendered, in many cases decided during the last years, would tend
necessarily to undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower or degrade the administration of justice by
this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to
which the Filipino people may repair to obtain relief for their grievances or protection of their
rights when these are trampled upon, and if the people lose their confidence in the honesty and
integrity of the members of this Court and believe that they cannot expect justice therefrom, they
might be driven to take the law into their own hands, and disorder and perhaps chaos might be
the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other,
is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity
according to the oath he has taken as such attorney, and not to promote distrust in the
administration of justice. Respect to the courts guarantees the stability of other institutions,
which without such guaranty would be resting on a very shaky foundation.
Respondent's assertion in his answer that "he made his statement in the press with the utmost
good faith and without intention of offending any of the majority of the honorable members of
this high Tribunal," if true may mitigate but not exempt him from liability for contempt of court;
but it is belied by his acts and statements during the pendency of this proceeding. The
respondent in his petition of December 11, alleges that Justice Gregorio Perfecto is the principal
promoter of this proceeding for contempt, conveying thereby the idea that this Court acted in the
case through the instigation of Mr. Justice Perfecto.
It is true that the constitutional guaranty of freedom of speech and the press must be protected
to its fullest extent, but license or abuse of liberty of the press and of the citizen should not be
confused with liberty in its true sense. As important as the maintenance of an unmuzzled press
and the free exercise of the right of the citizen, is the maintenance of the independence of the
judiciary. As Judge Holmes very appropriately said U. S vs Sullens (1929), 36 Fed. (2nd), 230,
238, 239: "The administration of justice and the freedom of the press, though separate and
distinct, are equally sacred, and neither should be violated by the other. The press and the
courts have correlative rights and duties and should cooperate to uphold the principles of the
Constitution and laws, from which the former receives its prerogatives and the latter its
jurisdiction. The right of legitimate publicity must be scrupulously recognized and care taken at
all times to avoid impinging upon it. In a clear case where it is necessary, in order to dispose of
judicial business unhampered by publications which reasonably tend to impair the impartiality of
verdicts, or otherwise obstruct the administration of justice, this court will not hesitate to exercise
its undoubted power to punish for contempt. This Court must be permitted to proceed with the
disposition if its business in an orderly manner free from outside interference obstructive of its
constitutional functions. This right will be insisted upon as vital to an impartial court, and, as a
last resort, as a individual exercises the right of self-defense, it will act to preserve its existence
as an unprejudiced tribunal. . . ."
It is also well settled that an attorney as an officer of the court is under special obligation to be
respectful in his conduct and communication to the courts, he may be removed from office or
stricken from the roll of attorneys as being guilty of flagrant misconduct (17 L. R. A. [N.S.], 586,
594).
In view of all the foregoing, we find the respondent Atty. Vicente Sotto guilty of contempt of this
Court by virtue of the above-quoted publication, and he is hereby sentenced to pay, within the
period of fifteen days from the promulgation of this judgment, a fine of P1,000, with subsidiary
imprisonment in case of insolvency.
The respondent is also hereby required to appear, within the same period, and show cause to
this Court why he should not be disbarred form practicing as an attorney-at-law in any of the
courts of this Republic, for said publication and the following statements made by him during the
pendency of the case against Angel Parazo for contempt of Court.
In his statement to the press as published in the Manila Times in its issue of December 9, 1948,
the respondent said "The Supreme Court can send me to jail, but it cannot close my mouth; "
and in his other statement published on December 10, 1948, in the same paper, he stated
among others: "It is not the imprisonment that is degrading, but the cause of the imprisonment."

In his Rizal day speech at the Abellana High School in Cebu, published on January 3, 1949, in
the Manila Daily Bulletin, the respondent said that "there was more freedom of speech when
American Justices sat in the Tribunal than now when it is composed of our countrymen;"
reiterated that "even if it succeeds in placing him behind bars, the court can not close his
mouth," and added: "I would consider imprisonment a precious heritage to leave for those who
would follow me because the cause is noble and lofty." And the Manila Chronicle of January 5
published the statement of the respondent in Cebu to the effect that this Court "acted with
malice" in citing him to appear before this Court on January 4 when "the members of this Court
know that I came here on vacation." In all said statements the respondent misrepresents to the
public the cause of the charge against him for contempt of court. He says that the cause is for
criticizing the decision of this Court in said Parazo case in defense of the freedom of the press,
when in truth and in fact he is charged with intending to interfere and influence the final
disposition of said case through intimidation and false accusations against this Supreme Court.
So ordered.
Moran, C.J., Paras, Pablo, Perfecto, Bengzon, Briones, Tuason, Montemayor and Reyes, JJ.,
concur.
Separate Opinions
PERFECTO, J., concurring:
Respondent published in the Manila newspapers of Sunday, December 5, 1948, a written
statement in relation with the decision rendered by this Court sentencing Angel Parazo to 30
days imprisonment for contempt.
On December 7, 1948, considering the statement as "intended not only to intimidate the
members of this Court or influence the final disposition of said (Parazo) case, but also to
degrade and vilify the administration of justice," this Court adopted a resolution ordering
respondent to show cause within five days why he should not be punished for contempt,
"without prejudice to taking further action against him as attorney."
Alleging to be suffering from myologenous leukemia, with moderately severe anemia, and that
his physician had advised him to have "absolute rest and to avoid any form of mental and
physical strain for a few weeks," respondent prayed for a 15-day extension to file his answer. He
was granted a 10-day extension.
In the resolution of December 13, 1948, granting said extension, this Court branded as false
respondent's allegations the effect that he had formal charges pending in this Court against Mr.
Justice Perfecto and that the latter is the "moving spirit" of these contempt proceedings.
Two days after the expiration of the 10-day extension granted to him, respondent filed his
answer. The belated filing of said answer was overlooked by this Court in order not to deprive
respondent of the benefits of his answer. Filed out of time, due to his unexplained fault, it could
legally have been rejected.
In said answer, dated December 24, 1948, respondent repeated one of his allegations which, in
the resolution of December 13, 1948, this Court had already declared to be false.
Respondent has not denied that he is the author of the statement for which he has been
summoned to our bar for contempt and he has not denied the correctness of the text published
in the Manila Chronicle and other daily newspapers and which is reproduced in the resolution of
this Court of December 7, 1948.
In his statement, respondent does not limit himself to saying that this Tribunal has erroneously
interpreted Republic Act No. 53, but alleges that said erroneous interpretation "is once more
putting in evidence the incompetency or narrow-mindedness of the majority of its members,"
coupled with this sweeping and calumnious accusation:
In the wake of so many blunders and injustices deliberately committed during these last
years, I believe that the only remedy to put an end to so much evil, is to change the
members of the Supreme Court.
To fittingly crown this dastard imputation of deliberately committing blunders and injustice,
respondent would bully the members of this Court, by making the following intimidating
announcement:

To this effect, I announce that one of the first measures, which I will introduce in the
coming congressional sessions, will have as its objects the complete reorganization of
the Supreme Court.
There are other rhetorical passages in respondent's statement, aimed to emphasize the nuclear
ideas of the statement, to the effect that the majority of the members of the Supreme Court are
incompetent and narrow-minded and guilty of "so many blunders and injustices deliberately
committed" and that the author will introduce in the coming congressional sessions a measure
"to change the members of the Supreme Court" and to effect a "complete reorganization of the
Supreme Court.
Among such maximizing expressions intended to stress the main ideas and purposes of the
statement are the following:
1. As it is now constituted, the Supreme Court of today constitutes a constant peril to
liberty and democracy.
2. It need be said loudly, very loudly so that even the deaf may hear: The Supreme
Court if today is far cry from the impregnable bulwark of Justice of those memorable
times of Cayetano Arellano, Victoriano Mapa, Manuel Araullo and other learned jurists
who were the glory of the Philippine judiciary.
3. The reporter, who is erroneously convicted of contempt and unjustly sentenced to 30
days imprisonment by the Supreme Court, should be immediately and spontaneously
pardoned by the Executive Power, to serve as lesson in law to the majority of the
members of that High Tribunal.
4. That sentence is intolerable, and should be protested by all newspapers throughout
the country, under the cry of "The press demands better qualified justices for the
Supreme Court."
There can be no question that respondent knowingly published false imputations against the
members of this Court. He accused them of such depravity as to have committed "blunders and
injustices deliberately." He has maliciously branded them to be incompetent, narrow-minded,
perpetrators of evil, "a constant peril to liberty and democracy," to be the opposite of those who
were the honor and glory of the Philippines judiciary, to be needing a lesson in law, to be
rendering an intolerable sentence, to be needing replacement by better qualified justices.
Respondent has not presented any evidence or offered any to support his slanderous
imputations, and no single word can be found in his answer showing that he ever believed that
the imputations are based on fact.
Respondent appears to belong to the class of individuals who have no compunction to resort to
falsehood of falsehoods. The record of this case indicates that the practice of falsehoods seems
to be habitual in respondent, and this is proved when he reiterated in his answer one of his
allegations in a previous petition which were pronounced by this Court to be false in its
resolution in its resolution of December 3, 1948.
More than thirty years ago, using the words of respondent himself, in "those memorable times of
Cayetano Arellano, Victorino Mapa, and Manual Araullo and other learned jurists who were the
glory of the Philippines judiciary" and when it was the "impregnable bulwark of Justice," the
Supreme Court pronounced respondent guilty of falsehoods three times: first, in case in which
he was sentenced to 4 years and 2 months of prision correccional for criminally abducting
Aquilina Vasquez, a girl less then 18 years of age, and to pay her a dowry of P500 and to
support the offspring of his relations with her (U. S. vs. Sotto, 9 Phil., 231); second, in a
sentence of disbarment as a blackmailer (In re Sotto, 38 Phil., 532); and third, in prison
sentence for false libel (U. S. vs. Sotto, 38 Phil., 666). The first and the last sentences bear the
signature of Chief Justice Cayetano Arellano himself.
In the first case the Supreme Court found that only on July 29, 1906, Vicente Sotto wrote a letter
to Aquilina Vasquez, protesting his love for her and urging her to leave her house and go with
him; on the afternoon of August 1, 1906, Sotto made an arrangement with Luis Crisologo for the
renting of his house since that night when Sotto went with Aquilina into the room of the house,
where she passed the night; Sotto had told Crisologo that he wanted the house for a forestry
ranger who was just arriving from Bohol; Sotto did not leave the room until the middle of the

night; Aquilina transferred to a house in Sambag where Sotto brought various housekeeping
utensils; during the following days and nights Aquilina was visited by respondent.
On August 10, 1906, a complaint was filed against Vicente Sotto and Pio Datan, charging them
with the crime of rapto. As a defense, respondent offered evidence to show that on August 5,
1906, a legal marriage was celebrated between Aquilina and the accused Pio Datan, Sotto's
washerman and accomplice in crime. Upon the evidence, the Supreme Court pronounced the
celebration of the alleged marriage to be false. The certificate of marriage offered as evidence in
support of the claim that the marriage took place had been declared a forgery.
It is not necessary to give the details of the whole disgusting affair, wherein the revolting and
sinister nature of an individual is pictured in bold relief with some of its ugliest features. The
more that 4 years of imprisonment imposed upon the accused did not reform him. It only served
to emphasize the beginning of along career of falsehoods and slanders already spanning more
than 40 years, soon nearing half of a century.
Respondent also chose not to deny his intimidating announcement to introduce in the coming
sessions of Congress, among the first measures, one for the change of the members of the
Supreme Court and for the latter's complete reorganization.
He has not explained or justified why he has to intimidate the members of the Supreme Court
with change and reorganization, and why, to make the intimidation more dreadful, he had to
announce the horrible course of subverting and trampling down the Constitution, as all who can
read and understand the fundamental law know that it is beyond the powers of Congress to
reorganize and change the membership of the Supreme Court.
Because the announcement is highly subversive, being aimed at shaking the very foundations
of this Republic, it could have been no less terrible than for the respondent to have announced
an intention to attain his purposes by resorting to open rebellion. The fact that respondent is a
lawyer and a senator aggravates his flaunted purpose to assault the very Constitution he has
sworn to obey and defend.
We have devoted considerable time to respondent's answer.
As first defense, respondent alleges that he made the written press statement, not as a lawyer
or as a private citizen, but as a senator. He avers a senator should have ample liberty to discuss
public affairs and should not be annoyed with contempt proceedings.
Now law or valid authority has been invoked in support of the theory, unless we could
countenance a fictitious maxim that respondent is the sovereign. The theory lacks even the
merit of novelty. Long before the claim of respondent that, because he is a senator, he is above
the law, Mussolini, Hitler and all the tyrants and dictators who preceded them since the dawn of
history had always claimed that they were above they law and acted as if they were really so.
Unfortunately for respondent, senators are creatures of the Constitution and the Constitution
makes them amenable to law.
As a second defense, respondent alleges that, not having appeared either as attorney or a
witness in the Parazo case, he cannot be held either for direct or for indirect contempt.
The defense is based on stark ignorance of the law on the subject.
Respondent alleges, as third defense, that he made his statement with "utmost good faith," with
"no intention of offending any of the majority of the honorable members of the High Tribunal,"
and that he has not attacked nor intended to attack the honesty or integrity of any one.
This allegation lacks sincerity in view of his imputation, among several others equally false and
calumnious, that the majority members of the Supreme Court have committed many blunders
and injustices deliberately." The slanderous imputation can only be attributed to bad faith.
As another defense, respondent questions the validity of the penal provisions of Rule 64,
implying that said penalties are not procedural in nature, and invoking the provisions of section
13 of Article VIII of the Constitution, limiting the rule-making power of the Supreme Court to
matters of pleading, practice, and procedure in courts, and to the admission to the practice of
law.
Respondent's contention can be easily disposed of by quoting the following provisions of Act
No. 190:

SEC. 231. What Contempts of Court may be Punished Summarily. A court of First
Instance or a judge of such court at chambers, may punish summarily, by fine not
exceeding two hundred pesos, or by imprisonment not exceeding ten days, or both, a
person guilty of misbehavior in the presence of or so near the court or judge as to
obstruct administration of justice, including the refusal of a person present in court to be
sworn as a witness or to answer as a witness when lawfully required.
SEC. 232. What Other Acts are Contempts of Court. A person guilty of any of the
following act any be punished as for contempt:
1. Disobedience of or resistance to a lawful writ, process, order, judgment of command
of a court, or injunction granted by a court or judge;
2. Misbehavior of an officer of the court in the performance of his official duties, or in his
official transactions;
3. A failure to obey a subpoena duly served;
4. The rescue, or attempted rescue, of a person or property in the custody of an officer
by virtue of an order or process of the court held by him.
5. The persons defeated in a civil action concerning the ownership or possession of real
estate who, after being evicted by the sheriff from the realty under litigation in
compliance with judgment rendered, shall enter or attempt to enter upon the same for
the purpose of executing acts of ownership or possession or who shall in any manner
disturb possession by the person who the sheriff placed in possession of said reality.
SEC. 235. Trial of the Charge. Upon the day fixed for the trial, the court shall proceed
to investigate the charge and shall hear any answer or testimony which the accused may
make or offer.
SEC. 236. Punishment if Found Guilty. The court shall then determine whether the
accused is guilty off the contempt charged; and, if it be adjudged that he is guilty, he
may be fined not exceeding one thousand pesos, or imprisoned not more than six
months, or both. If the contempt consist in the violation of an injunction, the person guilty
of such contempt may also be ordered to make complete restitution to the party injured
by such violation.
Therefore, even on the false hypothesis that penalties for contempt are not procedural in nature,
courts of justice may impose said penalties, if not under Rule 64, under the provisions of Act No.
190.
The power to punish for contempt is inherent in courts of justice. It springs from the very nature
of their functions. Without such power, courts of justice would be unable to perform effectively
their functions. They function by orders. Every decision is a command. The power to punish
disobedience to command is essential to make the commands effective.
Respondent is in error in maintaining that the Supreme Court has no power to enact Rule 64,
He is correct in calling it judicial legislation although he fails to remember that judicial legislation
in matters of judicial practice and procedure is expressly authorized by section 13 of Article VIII
of the Constitution.
As a last defense, respondent invokes the constitutional freedom of the press, which includes
the right to criticize judges in court proceedings.
Respondent, undoubtedly, misses the point, and his citations about said freedom, with which we
fully agree, have absolutely no bearing on the question involved in these proceedings.
No one, and the members of the Supreme Court would be the last to do so, has ever denied
respondent the freedom of the press and his freedom to criticize our proceedings, this Court and
its members. Respondent's statement goes much further than mere criticism of our decision and
the majority members of this Court. The statement is an attempt to interfere with the
administration of justice, to miscarry and defeat justice, by trammelling the freedom of action of
the members of the Supreme Court, by bullying them with the menace of change,
reorganization, and removal, upon the false accusation that they have been committing
"blunders and injustices deliberately," and the menacing action constitutes a flagrant violation of
the Constitution. Such a thing is not covered by the freedom of the press or by the freedom to

criticize judges and court proceedings, as no one in his senses has ever conceived that such
freedom include any form of expressed gangterism, whether oral or written.
The freedom of the press is not involved in these proceedings. To assert otherwise is to
mislead. What is at stake in these proceedings is the integrity of our system of administration of
justice and the independence of the Supreme Court and its freedom from any outside
interference intended to obstruct it or to unduly sway it one way or another.
The freedom of the press is one of the causes which we have always endeared. The repeated
prosecution and persecutions we have endured in the past for its sake we have been hailed
to court eight times, are conclusive evidence of the firm stand we have taken as defender of
such freedom. It can be seen from official records that every acquittal handed down to us by the
Supreme Court had been a new step forward and new triumph for the freedom of the press. (U.
S. vs. Perfecto, 42 Phil., 113 Sept. 9, 1921; U.S. vs. Perfecto, 43 Phil., 58, March 4, 1922; U. S.
vs. Perfecto, 43 Phil., 887, March 4, 1922.) That stand has remained the same, as can be
shown in our written opinion in another contempt proceedings in the Ben Brillantes case, which
failed to attract public attention at the time.
Among the facts which we cannot ignore in deciding this case, are the following:
1. That this is not the first time respondent has been brought to a court of justice, for a grave
misbehavior and for perpetrating stark falsehoods. In a decision by the Supreme Court of
September 6, 1918, respondent was removed from the office of attorney-at-law and
incapacitated from exercising the legal profession. He was found guilty of:
(a) Lack of fidelity to clients;
(b) Blackmailing, by abusing his position as director of a newspaper whose columns he used to
blacken the reputation of those who refused to yield to demands made by him in his business as
lawyer;
(c) Publication of malicious and unjustifiable insinuations against the integrity of a judge who
had fined him for the crime of libel;
(d) Giving false testimony or perjury. (38 Phil., 532.)
2. On September 24, 1918, the Supreme Court sentenced respondent to imprisonment for libel,
for besmirching the honesty of three private individuals, Lope K. Santos, Jose Turiano Santiago
and Hermenegildo Cruz with false charges. (38 Phil., 666.)
3. After having been cited for contempt in these proceedings, respondent, in order to pose as a
martyr for the freedom of the press, waged a campaign of viturperation against the Supreme
Court. He made repeated press statements and delivered speeches in his home province to
show that he cannot expect justice from the Supreme Court, that the Supreme Court will
imprison him, that he will be imprisoned for the sake of the freedom of the press, thereby posing
as a false martyr for it.
4. In his persecutory obsession, respondent would make all believe that, contrary to fact, the
writer of this opinion is the moving spirit behind these contempt proceedings and that the
Supreme Court is acting merely as a tool. Apparently, respondent was irked by his failure to sit
even for a single moment in the Senate Electoral Tribunal, because of our objection. The
publicity given to our objection has exposed the illegality of respondent's designation made by
the Senate President as, under section 11 of Article VI of the Constitution, the power to choose
Senators for the Electoral Tribunal belongs to the Senate, and not to its presiding officer. At the
bar of public opinion, the Senate President and respondent appeared either to be ignorant of the
Constitution or to be bent on flagrantly violating it.
5. Respondent is the number of the bill which was enacted into Republic Act No. 53, but the
purposes of his bill were thwarted by an amendment introduced by the Senate, denying the
privilege granted therein when in conflict with the interest of the Senate. Respondent's bill was
for an absolute privilege. Because the majority decision of the Supreme Court had made his
failure patent, respondent took occasion to give vent to his grudge against the Supreme Court,
wherein, of the 15 cases he had since liberation, he lost all except three, as can be seen in the
records of the following cases:
L-23, Filomena Domiit Cabiling vs. The Prison Officer LOST

of the Military Prison of Quezon City


L-212, Narcisa de la Fuente vs Fernando Jugo, etc.
et al.

WON

L-247, Monsig. Canilo Diel vs. Felix Martinez, etc. et


al.

WON

L-301, In the matter of the petition of Carlos Palanca


to be admitted a Citizen of the Philippines

LOST
(As amicus
curiae

L-307, Eufemia Evangelista et al. vs. Rafael


Maninang

LOST

L-599, Amalia Rodriguez vs. Pio E. Valencia et al.

LOST

L-1201, Vicente Sotto vs. Tribunal del Pueblo et al.

LOST

L-1287, Ong Sit vs. Edmundo Piccio et al.

LOST

L-1365, Vitaliano Jurado vs. Marcelo Flores

LOST

L- 1509, Tagakotta Sotto vs. Francisco Enage

LOST

L-1510, Bernarda Ybaez de Sabido et al. vs. Juan


V. Borromeo et al.

LOST

L-1938, Vicente Sotto vs. Crisanto Aragon et al.

WON

L-1961, The People of the Philippines vs. Antonio de


los Reyes

LOST

L-2041, Quirico Abeto vs. Sotero Rodas

LOST

L-2370, Voltaire Sotto vs. Rafael Dinglasan et al.

LOST

Upon the records of his previous cases in 1918 and of these proceedings, it is inevitable to
conclude that we have before us the case of an individual who has lowered himself to
unfathomable depths of moral depravity, a despicable habitual liar, unscrupulous vilifier and
slanderer, unrepented blackguard and blackmailer, shameful and shameless libeler, unmindful
of the principles of decency as all hardened criminals. He is a disgrace to the human species.
He is a shame to the Senate.
Aghast at the baseness of his character, we felt, at first blush, the impulse of acquitting him, as
his contemptible conduct, culminating in the press statement in question, seemed compatible
only with the complete irresponsibility of schizophrenics, idiots, or those suffering from doddery.
His repeated press releases in which he tried to focus public attention to the most harmless part
of his statement, wherein he accuses the majority of the Supreme Court of incompetency or
narrow-mindedness, have shown, however, that respondent is not completely devoid of
personal responsibility, as he is aware that he has no possible defense for alleging that the
members of the Supreme Court have committed "blunders and injustices deliberately," for which
reason he has widely publicized his expectation that he will be sentenced in this case to

imprisonment, a penalty that, by his repeated public utterances, he himself gives the impression
that he is convinced he deserves.
Verily he deserves to be sentenced to six months imprisonment, the maximum allowed by Rule
64, and such penalty would not be heavy enough because of the attendance of several
aggravating circumstances, namely, the falsehoods he resorted to in this case, his insolence
after he was cited for contempt, the fact that he is a lawyer and a Senator, the fact that he has
already been sentenced to imprisonment for falsely libeling three private individuals, the fact
that more than 30 years ago he had been disbarred as a blackmailer, the fact that more than 40
years ago he was sentenced to be jailed for more than 4 years as an abductor. The majority of
this Court has sentenced a young and humble newspaperman to 30 days imprisonment only for
refusing to answer a question. The offense committed by respondent is much graver than a
mere refusal to answer a question.
We concur, however, in the decision imposing upon respondent a fine of P1,000 with subsidiary
imprisonment and ordering him to show cause why he should not be completely deprived of the
privilege of practicing the profession of a lawyer. High reasons of humanity restrained us from
sending respondent to prison, unless he should voluntarily choose to enter therein, instead of
paying the fine. He is old and, according to his physician, suffering from myologenous leukemia
with moderately severe anemia, requiring absolute and avoidance of any from of mental and
physical strain, and we do not wish to endanger respondent's life by sending him to prison, and
thus causing him the mental and physical strains which his physician advised him to avoid.
Although the continued existence of respondents is more harmful than beneficial to our Republic
and to human society, we have to be consistent with our abidance by the injunction of the
Sermon on the Mount: "Thou shalt not kill." (Matth., Chapter 5, paragr