Rizza Jane N.

Morada

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.

FACTS:
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. Petitioners claim that the Court has by its decision
legalized or approved of the commission of plagiarism in the Philippines.

The administrative case was rooted when 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. Justice Castillo
explained to the court that it was the researcher which 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.

ISSUE:
Whether Justice Castillo is guilty of Plagiarism.

RULING:
The Court resolved to dismiss the charge against Justice Castillo. 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

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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.”

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.

Malicious intent was viewed as an essential element, as “plagiarism is

essentially a form of fraud where intent to deceive is inherent.” As defined by
the Black’s Law Dictionary “The act of appropriating the literary composition
of another, or parts or passages of his writings, or the ideas or language of the
same, and passing them off as the product of one’s own mind.”

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

Justice Sereno

DISSENT
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.

To strengthen her point, she presented a table of comparison and alist

of violations of the existing rules against plagiarism of the original works and
the plagiarized work on the Vinuya decision as an aid for the technical
analysis of plagiarism.

“Contrary to the view of my esteemed colleagues, the [narration and

explanation found in the majority decision are] 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.

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 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 [majority’s] explanation regarding the lines quoted [from the
work of Professor Tams] may touch upon what happened in [this particular
incident of non-attribution], but it does not relate to what happened in [all the
other 23 incidents of non-attribution], 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 Tams’s work, no mention was made at all of the
works of Criddle & Fox-Decent and of Ellis even though the discussions and
analyses in their discursive footnotes were used wholesale.

Fourth, the researcher’s 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

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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

Word’s 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-in-progress 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.”

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