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

Del Castillo. [A.M. No. 10-7-17-SC]

FACTS:

On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed
by the Malaya Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry
Roque Jr., counsel for Vinuya et al, 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 there is plagiarism in the case at bar.

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 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.The passing off of the work
of another as ones 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.

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 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.

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 everyday in their work.