John Louis R.

Aguila August 22, 2019

Legal Research Pros. Immanuel Awisan

In the matter of the charges of plagiarism, etc., against Associate Justice Mariano C. Del

Castillo.

A.M. No. 10-7-17-SC

Facts:

In 2010, the Supreme Court issued a decision which dismissed a petition for

reconsideration filed by the Malaya Lolas Organization in the case of Vinuya v. Romulo.

Attorney Herminio Harry Roque Jr., counsel for the petitioner in the said case, questioned the

said decision. He raised, among others, that the ponente in said case, Justice Mariano del

Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these

books to support the assailed decision. These books were: (a) A Fiduciary Theory of Jus Cogens

by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); (b)

Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve

Journal of International Law (2006); and (c) Enforcing Erga Omnes Obligations by Christian J.

Tams, Cambridge University Press (2005).

As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable

negligence. Interestingly, even the three foreign authors mentioned above stated that their works

were used inappropriately by Justice Del Castillo and that the assailed decision is different from

what their works advocated.

Issue:

Whether or not Justice Mariano del Castillo is guilty of plagiarism? Whether or not

Justice Castillo is guilty of misconduct or not?

Held:

No. There is no plagiarism. Even if there is (as emphasized by the Supreme Court in its

ruling on the Motion for Reconsideration filed by Vinuya, et al in 2011), the rule on plagiarism

cannot be applied to judicial bodies.

No Plagiarism

At its most basic, plagiarism means the theft of another person’s language, thoughts, or

ideas. To plagiarize, as it is commonly understood according to Webster, is to take (ideas,

writings, etc.) from (another) and pass them off as one’s own. The passing off of the work of

another as one’s own is thus an indispensable element of plagiarism.

According to Black’s Law Dictionary: Plagiarism is the “deliberate and knowing

presentation of another person’s original ideas or creative expressions as one’s own.”

This cannot be the case here because as proved by evidence, in the original drafts of the

assailed decision, there was attribution to the three authors but due to errors made by Justice del

Castillo’s researcher, the attributions were inadvertently deleted. There is therefore no intent by

Justice del Castillo to take these foreign works as his own.

Additionally, 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.

But in plagiarism, intent is immaterial. On this note, the Supreme Court stated that in its

past decisions, (i.e., U.P Board of Regents vs CA, 313 SCRA 404), the Supreme Court never

indicated that intent is not material in plagiarism. To adopt a strict rule in applying plagiarism in

all cases leaves no room for errors. This would be very disadvantageous in cases, like this, where

there are reasonable and logical explanations.

On the foreign authors’ claim that their works were used inappropriately According to the

Supreme Court, the passages lifted from their works were merely used as background facts in

establishing the state on international law at various stages of its development. The Supreme

Court went on to state that the foreign authors’ works can support conflicting theories. The

Supreme Court also stated that since the attributions to said authors were accidentally deleted, it

is impossible to conclude that Justice del Castillo twisted the advocacies that the works espouse.

No Misconduct

Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was

no malice, fraud or corruption.

No Inexcusable Negligence (explanation of Justice Del Castillo)

The error of Justice del Castillo’s researcher is not reflective of his gross negligence. The

researcher is a highly competent one. The researcher earned scholarly degrees here and abroad

from reputable educational institutions. The researcher finished third in her class and 4th in the
bar examinations. Her error was merely due to the fact that the software she used, Microsoft

Word, lacked features to apprise her that certain important portions of her drafts are being

deleted inadvertently. Such error on her part cannot be said to be constitutive of gross negligence

nor can it be said that Justice del Castillo was grossly negligent when he assigned the case to her.

Further, assigning cases to researchers has been a long standing practice to assist justices in

drafting decisions. It must be emphasized though that prior to assignment, the justice has already

spelled out his position to the researcher and in every sense, the justice is in control in the writing

of the draft.

With the advent of computers, however, as Justice Del Castillo’s 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.

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. 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 every day in their work.
Rule also apply to lawyers

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.