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 one’s own" the ideas or words of
another. Stealing implies malicious taking. Black’s Law Dictionary, the world’s 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 one’s own."2 The presentation of another person’s ideas as one’s own
must be deliberate or premeditated—a 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 one’s self what is not one’s 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 Court’s 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 writer’s 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 student’s 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 party’s 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 judiciary’s
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
here—actually the substance of their decisions—that 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 judge’s 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 Halsbury’s 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 Halsbury’s. 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-in-intervention dated January 5, 2011 and Dr. Peter Payoyo’s 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 CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ANTONIO EDUARDO B.
PRESBITERO J. VELASCO, JR.
NACHURA
Associate Justice
Associate Justice

TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA MARIA LOURDES P. A. SERENO

Associate Justice Associate Justice

Footnotes
1 April 28, 2010.
2 Black’s Law Dictionary (8th Edition, 2004).
3Available
at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.
4In 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 Webster’s Third New International Dictionary, p. 2374.
6 Black’s Law Dictionary (6th Edition, 1990), p. 1406.
7 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-
9e87-16c3bc2be595.
8Joyce 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 one’s 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 public’s 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 Ordoñez, 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 withholdsfrom 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 notapply 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 pleader’s 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 author’s 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 author’s 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 author’s 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 artist’s 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 artist’s 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 author’s work from being attributed to
someone else, and to prevent the use of the author’s name on works created by
others, including distorted editions of the author’s 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
nation’s culture, destruction is prohibited; if the right is meant to emphasize the author’s
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 author’s 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 Court’s 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

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 Military’s 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 one’s 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 one’s 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 VinuyaDecision’s
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
counter-accused 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 Vinuyaoriginals. 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-Decent’s article in the Yale
Journal of International Law, entitled A Fiduciary Theory of Jus Cogens (2009) and the
Supreme Court’s 28 April 2010 Decision in Vinuya v. Executive Secretary.

The Allegedly
The Decision International
Plagiarized Work
Source Being
Evan J. Criddle & Evan Fox- Vinuya v. Executive Secretary, Analyzed by
Decent, A Fiduciary Theory of G.R. No. 162230, 28 April Criddle and
Jus Cogens, 34 Yale J. Int'l L. 2010. Fox-Decent
331 (2009).
1 ...judges on the Permanent ...Judges on the Permanent ...It is an
. Court of International Justice Court of International Justice essential
affirmed the existence of affirmed the existence of principle of any
peremptory norms in peremptory norms in court, whether
international law by referencing international law by referencing national or
treaties contra bonos mores treaties contra bonos mores international,
(contrary to public policy) in a (contrary to public policy) in a that the judges
series of individual concurring series of individual concurring may only
and dissenting opinions.[10] and dissenting opinions. (For recognize legal
example, in the 1934 Oscar rules which
[10] For example, in the 1934 Chinn Case, Judge Schücking's they hold to be
Oscar Chinn Case, Judge influential dissent stated that valid. There is
Schücking's influential dissent neither an international court nothing to show
stated that neither an nor an arbitral tribunal should that it was
international court nor an apply a treaty provision in intended to
arbitral tribunal should apply a contradiction to bonos mores. disregard that
treaty provision in contradiction Oscar Chinn Case, 1934 legal principle
to bonos mores. Oscar Chinn P.C.I.J. (ser. A/B) No. 63, at when this Court
Case, 1934 P.C.I.J. (ser. A/B) 149-50 (Dec. 12) (Schücking, was instituted,
No. 63, at 149-50 (Dec. 12) J., dissenting). or that it was to
(Schücking, J., dissenting). be obliged to
(p. 31, footnote 71 of Vinuya) found its
(p. 335 of Criddle and Fox- decisions on
Decent) the ideas of the
parties–which
may be entirely
wrong–as 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
Schücking).
2 While the ICJ recently While the ICJ recently [64]....The
. endorsed the jus cogens endorsed the jus cogens Court observes,
concept for the first time in its concept for the first time in its however, as it
2006 Judgment on Preliminary 2006 Judgment on Preliminary has already
Objections in Armed Activities Objections in Armed Activities had occasion to
on the Territory of the Congo on the territory of the Congo emphasize, that
(Congo v. Rwanda), it declined (Congo v. Rwanda), it declined "the erga
to clarify jus cogens's legal to clarify jus cogens’s legal omnes charact
status or to specify any criteria status or to specify any criteria er of a norm
for identifying peremptory for identifying peremptory and the rule of
norms.[67] norms. (Armed Activities on the consent to
Territory of the Congo, jurisdiction are
[67] Armed Activities on the Jurisdiction of the Court and two different
Territory of the Congo, Admissibility of the Application things"..., and
Jurisdiction of the Court and (Dem. Rep. Congo v. Rwanda) that the mere
Admissibility of the Application (Judgment of February 3, fact that rights
(Dem. Rep. Congo v. Rwanda) 2006), at 31-32, available at and
(Judgment of Feb. 3, 2006), at http://www.icj- obligations erga
31-32, available at cij.org/docket/files/126/10435.p omnes may be
http://www.icj- df. at issue in a
cij.org/docket/files/126/10435.p dispute would
df (last visited Mar. 31, 2009). (p. 32, footnote 77 of Vinuya) not give the
Court
(p. 346, footnote 67 of Criddle jurisdiction to
and Fox-Decent) entertain that
dispute.

The same
applies to the
relationship
between
peremptory
norms of
general
international
law (jus
cogens) and
the
establishment
of the Court’s
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 Court’s
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 [77] Similarly, the European [61] While the
. of Human Rights has Court of Human Rights has Court accepts,
addressed jus cogens only addressed jus cogens only on the basis of
once, in Al-Adsani v. United once, in Al-Adsani v. United these
Kingdom, when it famously Kingdom, when it famously authorities, that
rejected the argument that jus rejected the argument that jus the prohibition
cogens violations would cogens violations would deprive of torture has
deprive a state of sovereign a state of sovereign immunity. achieved the
immunity.[75] Al-Adsani v. United Kingdom, status of a
2001-XI Eur. Ct. H.R. 79, ¶ 61) peremptory
[75] Shelton, supra note 3, at norm in
309 (discussing Al-Adsani v. (p. 32, footnote 77 of Vinuya) international
United Kingdom, 2001-XI Eur. law, it observes
Ct. H.R. 79, ¶ 61). that the present
case
(p. 347 of Criddle and Fox- concerns… the
Decent) immunity of a
State in a civil
suit for
damages in
respect of acts
of torture within
the territory of
that State.
Notwithstandin
g 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 Ellis’s article entitled Breaking the Silence: Rape as an
International Crime (2006-2007) and the Supreme Court’s 28 April 2010 Decision in
Vinuya v. Executive Secretary.

The Allegedly
The Decision
Copied Work
Mark Ellis’s article Vinuya v. Executive International Source
entitled Breaking the Secretary, G.R. No. Being Analyzed by Ellis
Silence: Rape as an 162230, 28 April 2010.
International Crime 38
 Case W. Res. J. Int’l.
L. 225(2006-2007).
1. A major step in this [65] …A major step in [Article 50/51/147]
legal development this legal development
came in 1949, when came in 1949, when Grave breaches to
rape and sexual rape and sexual which the preceding
assault were included assault were included Article relates shall be
in the Geneva in the Geneva those involving any of
Conventions.... Rape isConventions. Rape is the following acts, if
included in the included in the committed against
following acts following acts persons… protected by
committed against committed against the Convention: willful
persons protected by persons protected by killing, torture or
the 1949 Geneva the 1949 Geneva inhuman treatment,
Conventions: "wilful Conventions: "willful including biological
killing, torture or killing, torture or experiments, wilfully
inhuman treatment, inhuman treatment, causing great suffering
including biological including biological or serious injury to
experiments; wilfully experiments; willfully body or health….
causing great sufferingcausing great suffering
or serious injury to or serious injury to Source:
body or health." body or health."…
(See Geneva Geneva Convention (I)
[65] Fourth Geneva Convention for the for the Amelioration of
Convention, supra note Amelioration of the the Condition of the
23, art. 147. Condition of the Wounded and Sick in
Wounded and Sick in Armed Forces in the
(p. 236 of Ellis) Armed Forces in the Field, 75 U.N.T.S. 31;
Field, art. 3(1)(c), 75 Geneva Convention (II)
U.N.T.S. 31; Geneva for the Amelioration of
Convention for the the Condition of
Amelioration of the Wounded, Sick and
Condition of Wounded, Shipwrecked Members
Sick and Shipwrecked of Armed Forces at
Members of Armed Sea, 75 U.N.T.S. 85;
Forces at Sea, art. Geneva Convention
3(1)(c), 75 U.N.T.S. 85; (III) Relative to the
Geneva Convention Treatment of Prisoners
Relative to the of War, 75 U.N.T.S.
Treatment of Prisoners 973; Geneva
of War, art. 3(1)(c), 75 Convention (IV)
U.N.T.S. 973; Fourth Relative to the
Geneva Convention, Protection of Civilian
Persons in Time of
War, 75 U.N.T.S. 287.
 supra note 23, art.
3(1)(c).

(p. 28, footnote 65 of

Vinuya)
2. Rape as a violation of [65] …Rape as a Article 3
the laws or customs of violation of the laws or
war generally consists customs of war …
of violations of Article 3
generally consists of
of the 1949 Geneva violations of Article 3 of (a) violence to life and
Conventions, which, in the 1949 Geneva person, in particular
part, prohibits "violenceConventions, which, in murder of all kinds,
to life and person, in part, prohibits "violence mutilation, cruel
particular mutilation, to life and person, in treatment and torture;
cruel treatment and particular mutilation,
torture; outrages upon cruel treatment and (b) taking of hostages;
personal dignity, in torture; outrages upon
particular humiliating personal dignity, in (c) outrages upon
and degrading particular humiliating personal dignity, in
treatment."[66] and degrading particular humiliating
treatment." and degrading
66 See Geneva (SeeGeneva treatment; …
Convention for the Convention for the
Amelioration of the Amelioration of the Source:
Condition of the Condition of the
Wounded and Sick in Wounded and Sick in Geneva Convention (I)
Armed Forces in the Armed Forces in the for the Amelioration of
Field, art. 3(1)(c), 75 Field, art. 3(1)(c), 75 the Condition of the
U.N.T.S. 31; Geneva U.N.T.S. 31; Geneva Wounded and Sick in
Convention for the Convention for the Armed Forces in the
Amelioration of the Amelioration of the Field, 75 U.N.T.S. 31;
Condition of Wounded, Condition of Wounded, Geneva Convention (II)
Sick and Shipwrecked Sick and Shipwrecked for the Amelioration of
Members of Armed Members of Armed the Condition of
Forces at Sea, art. Forces at Sea, art. Wounded, Sick and
3(1)(c), 75 U.N.T.S. 85; 3(1)(c), 75 U.N.T.S. 85; Shipwrecked Members
Geneva Convention Geneva Convention of Armed Forces at
Relative to the Relative to the Sea, 75 U.N.T.S. 85;
Treatment of Prisoners Treatment of Prisoners Geneva Convention
of War, art. 3(1)(c), 75 of War, art. 3(1)(c), 75 (III) Relative to the
U.N.T.S. 973; Fourth U.N.T.S. 973; Fourth Treatment of Prisoners
Geneva Convention, Geneva Convention, of War, 75 U.N.T.S.
supra note 23, art. supra note 23, art. 973; Geneva
3(1)(c).... 3(1)(c). Convention (IV)
Relative to the
 (p. 236 of Ellis) (p. 28, footnote 65 of Protection of Civilian
Vinuya) Persons in Time of
War, 75 U.N.T.S. 287.
3. Article 27 of the Fourth [65] …Article 27 of the Article 27
Geneva Convention, Fourth Geneva
directed at protecting Convention, directed at Women shall be
civilians during time of protecting civilians especially protected
war, states that during time of war, against any attack on
"women shall be states that "women their honour, in
especially protected shall be especially particular against rape,
against any attack on protected against any enforced prostitution,
their honour, in attack on their honour, or any form of indecent
particular against rape, in particular against assault.
enforced prostitution, rape, enforced
or any form of indecent prostitution, or any Source:
assault."[67] form of indecent
assault." Geneva Convention
[67] Fourth Geneva (IV) Relative to the
Convention, supra note (p. 28, footnote 65 of Protection of Civilian
23, art. 27. Vinuya) Persons in Time of
War, 75 U.N.T.S. 287.
(pp. 236 of Ellis)
4. Protocol I of the [65] …Protocol I of the Article 76.-Protection of
Geneva Conventions Geneva Conventions women
continues to expand continues to expand
the protected rights by the protected rights by 1. Women shall be the
providing that "women providing that "women object of special
shall be the object of shall be the object of respect and shall be
special respect and special respect and protected in particular
shall be protected in shall be protected in against rape, forced
particular against rape, particular against rape, prostitution and any
forced prostitution and forced prostitution and other form of indecent
any form of indecent any form of indecent assault.
assault."[68] assault." (Protocol
Additional to the Source:
[68] Protocol Additional Geneva Conventions
to the Geneva of August 12, 1949, Protocol Additional to
Conventions of 12 and Relating to the the Geneva
August 1949, and Protection of Victims of Conventions of 12
Relating to the International Armed August 1949, and
Protection of Victims of Conflicts (Protocol I), relating to the
International Armed Article 76(1), 1125 Protection of Victims of
Conflicts (Protocol I), U.N.T.S. 4). International Armed
 Article 76(1), 1125 (p. 28, footnote 65 of Conflicts (Protocol I),
U.N.T.S. 4. Vinuya) 1125 U.N.T.S. 3.

(pp. 236-237 of Ellis)

TABLE C: Comparison of Robert McCorquodale’s work, entitled The Individual and the
International Legal System,4and Phoebe Okowa’s work, entitled Issues of Admissibility
and the Law on International Responsibility,5 both of which were published in Malcolm
Evans’s book (International Law), and the Supreme Court’s Decision in Vinuya v.
Executive Secretary, G.R. No. 162230, 28 April 2010.

The Allegedly
The Decision International Source
Copied Work
Being Analyzed and
Essays published in Vinuya v. Executive Used by
Malcolm Evans, Secretary, G.R. No. McCorquodale /
International Law (ed., 162230, 28 April 2010. Okowa
2006).
1. Traditionally, the only …traditionally, the only Note:
means available for means available for
individuals to bring a individuals to bring a Page 231 of the
claim within the claim within the Appeal from a
international legal international legal Judgment of the
system has been when system has been when Hungaro-
the individual is able to the individual is able to Czechoslovak Mixed
persuade a persuade a government Arbitral Tribunal case
government to bring a to bring a claim on the – the citation nearest
claim on the individual’s behalf.[55] in location and in
individual’s behalf. context to the
Even then, it is not the Even then, it is not the passage – does not
individual’s individual’s rights that contain a discussion
international rights that are being asserted, but on "persuad[ing] a
are being asserted but rather, the state’s own government to bring a
the State’s own rights. claim on the
rights…. individual’s behalf."
[55] …Appeal from a
(p. 315-16 of Evans’s Judgment of the The reference to
International Law book, Hungaro/Czeochoslovak Appeal from a
essay written Mixed Arbitral Tribunal, Judgment of the
by McCorquodale) Judgment, 1933, PCIJ, Hungaro-
Ser. A/B No. 61, p. 208 Czechoslovak Mixed
at 231. Arbitral Tribunal case
occurs
(p. 24, Body of Vinuya) 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 individual’s
international rights
that are being
asserted but the
State’s own rights" is
written thus in
footnote 16:
[16] Panevezeys-
Saldutiskis 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 [55] The conceptual Again, it is scarcely
understanding that understanding that necessary to point out
individuals have rights individuals have rights that the capacity to
and responsibilities in and responsibilities in possess civil rights
the international legal the international arena does not necessarily
system does not does not automatically imply the capacity to
automatically mean mean that they have the exercise those rights
that they have the ability to bring oneself. No argument
ability to bring international claims to against the
international claims to assert their rights. Thus, University's
assert their rights or the Permanent Court of personality in law can
are able to claim an International Justice therefore be deduced
immunity to prevent declared that "it is from the fact that it did
 their responsibilities scarcely necessary to not enjoy the free
being enforced point out that the disposal of the
(Hohfeld, above). Thus capacity to possess civil property in question....
the PCIJ declared that rights does not
‘it is scarcely necessarily imply the Source:
necessary to point out capacity to exercise
that the capacity to those rights oneself." Appeal from a
possess civil rights Appeal from a Judgment Judgment of the
does not necessarily of the Hungaro-
imply the capacity to Hungaro/Czeochoslovak Czechoslovak Mixed
exercise those rights Mixed Arbitral Tribunal, Arbitral Tribunal
oneself’.[14] Judgment, 1933, PCIJ, (Peter Pázmány
Ser. A/B No. 61, p. 208 University v.
[14] Appeal from a at 231. Czechoslovakia),
Judgment of the 1933 P.C.I.J. 208,
Hungaro/Czechoslovak (p. 24, footnote 55 of (ser. A/B) No. 61, at
Mixed Arbitral Tribunal, Vinuya) 231 (Dec. 15).
Judgment, 1933, PCIJ,
Ser A/B, No 61, p 208
at p 231

(p. 315 of Evans’s

International Law book,
essay written
by McCorquodale)
3. The decisions of Even decisions of Note:
national courts on national courts support
these constitutional the thesis that general In Okowa’s essay,
provisions international law as it this statement follows
nevertheless support stands does not a paragraph in which
the thesis that general mandate an enforceable she
international law as it legal duty of diplomatic discusses Kaunda in
stands does not protection. the context of
mandate an discretionary
enforceable legal duty (p. 26, footnote 63 diplomatic protection.
of diplomatic of Vinuya) Thus, for the pertinent
protection.[17] passages
of Kaundaplease see
[17] Kaunda and entry 5 of this table.
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.

(p. 484 of
Evans’s International
Law book, essay
written by Okowa)
4. This position was been [63] …has been 1. Feroz Ali Abbasi,
challenged in the UK in challenged in the UK in the first claimant, is a
a case arising from the a case arising from the British national....
clearly internationally unlawful detention by They seek, by judicial
unlawful detention by the US of prisoners in review, to compel the
the US of prisoners in Guantanamo Bay from Foreign Office to
Guantanamo Bay from the time of the make representations
the time of the Afghanistan conflict in on his behalf to the
Afghanistan conflict in 2001. In Abbasi v United States
2001. In Abassi v Secretary of State for Government or to
Secretary of State for Foreign and take other appropriate
Foreign and Commonwealth Affairs action or at least to
Commonwealth ([2002] EWCA Civ 1316, give an explanation
Affairs[19] the 19 September 2002) the as to why this has not
applicant (a British applicant (a British been done.
national) sought national) sought judicial
judicial review of the review of the adequacy ...
adequacy of the of the diplomatic actions
diplomatic actions of of the British 107. ...On no view
the British government government with the US would it be
with the US government…. appropriate to order
government…. the Secretary of State
(p. 26, footnote 63 of to make any specific
Vinuya) representations to the
 (p. 316 of Evans’s United States, even in
International Law book, the face of what
essay written appears to be a clear
by McCorquodale) breach of a
fundamental human
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 [63] …The South [65] The founding
Constitutional Court in African Constitutional values of our
Kaunda and others v Court in Kaunda and Constitution include
President of the others v. President of human dignity,
Republic of South the Republic of South equality and the
Africa and others[16] Africa and others (Case advancement of
recognized the CCCT23/04) recognized human rights and
constitutional basis of the constitutional basis freedoms….
the right of diplomatic of the right of diplomatic
protection as protection as enshrined …
enshrined in the South in the South African
African constitution, Constitution, but went [69] There may thus
but went on to hold on to hold that the be a duty on
that the nature and nature and extent of this government,
extent of his obligation obligation was an consistent with its
was an aspect of aspect of foreign policy obligations under
foreign policy within within the discretion of international law, to
the discretion of the the executive. take action to protect
executive. one of its citizens
(p. 27, footnote 63 of against a gross abuse
[16] Kaunda and Vinuya) of international human
others v. President of rights norms....
the Republic of South
Africa and others, …
Case CCCT23/04.
 (p. 484 of Evans’s [73] A court cannot
International Law book, tell the government
essay written by how to make
Okowa) 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 Albornoz’s article, Legal Nature and Legal
Consequences of Diplomatic Protection: Contemporary Challenges, and the Supreme
Court’s Decision in Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April
2010.
 The Allegedly
The Decision
Copied Work
Mariana Salazar Vinuya v. Executive
Albornoz, Legal Nature Secretary, G.R. No. The Purported
and Legal 162230, 28 April 2010. "Original" Source
Consequences of Cited by the
Diplomatic Protection: Concerned Authors
Contemporary and in the Vinuya
Challenges, 6 Anuario Decision
Mexicano de Derecho
Internacional 377
(2006)
1. Nowhere is this Nowhere is this By taking up the case
position more clearly position more clearly of one of its subjects
reflected than in the reflected than in the and by resorting to
dictum of the dictum of the diplomatic action or
Permanent Court of Permanent Court of international judicial
International Justice International Justice proceedings on his
(PCIJ) in the 1924 (PCIJ) in the 1924 behalf, a State is in
Mavrommatis Palestine Mavrommatis Palestine reality asserting its
Concessions Case: Concessions Case: own right to ensure, in
the person of its
By taking up the case By taking up the case subjects, respect for
of one of its subjects of one of its subjects the rules of
and by resorting to and by resorting to international law.
diplomatic action or diplomatic action or
international judicial international judicial The question,
proceedings on his proceedings on his therefore, whether the
behalf, a State is in behalf, a State is in present dispute
reality asserting its own reality asserting its own originates in an injury
right to ensure, in the right to ensure, in the to a private interest,
person of its subjects, person of its subjects, which in point of fact,
respect for the rules of respect for the rules of is the case in many
international law. The international law. The international disputes,
question, therefore, question, therefore, is irrelevant from this
whether the present whether the present standpoint. Once a
dispute originates in an dispute originates in an State has taken up a
injury to a private injury to a private case on behalf of one
interest, which in point interest, which in point of its subjects before
of fact, is the case in of fact, is the case in an international
many international many international tribunal, in the eyes of
disputes, is irrelevant disputes, is irrelevant the latter the State is
from this standpoint. from this standpoint. sole claimant. The fact
Once a State has taken Once a State has taken that Great Britain and
up a case on behalf of up a case on behalf of Greece are the
one of its subjects one of its subjects opposing Parties to
before an international before an internationalthe dispute arising out
tribunal, in the eyes of tribunal, in the eyes of
of the Mavrommatis
the latter the State is the latter the State isconcessions is
sole claimant.[85] sole claimant.[56] sufficient to make it a
dispute between two
[85] Mavrommatis [56] PCIJ, Ser. A, No. States within the
Palestine Concessions 2, p. 11, at 16. This meaning of Article 26
case, supra note 9, p. traditional view was of the Palestine
12. The emphasis is repeated by the PCIJ in Mandate.
ours. This traditional the Panevezys-
view was repeated by Saldutiskis Railway Source:
the PCIJ in the Case, the Case
Panevezys-Saldutiskis Concerning the Mavrommatis
Railway Case, the Payment of Various Palestine
Case Concerning the Serbian Loans issued Concessions (Greece
Payment of Various in France, Judgment of v. Gr. Brit.), 1924
Serbian Loans issued July 12, 1929, PCIJ P.C.I.J. (ser. A) No. 2,
in France, Judgment of Reports, Series A No. at 12 (Aug. 30).
July 12, 1929, PCIJ 20; and in the Case
Reports, Series A No. Concerning the Factory
20; and in the Case at Chorzow, Judgment
Concerning the Factory of September 13, 1928,
at Chorzow, Judgment Merits, PCIJ Reports,
of September 13, 1928, Series A No. 17. The
Merits, PCIJ Reports, ICJ has adopted it in
Series A No. 17. The the Reparation for
ICJ has adopted it in injuries suffered in the
the Reparation for service of the United
injuries suffered in the Nations Advisory
service of the United Opinion: ICJ Reports
Nations Advisory 1949, p. 174; the
Opinion: ICJ Reports Nottebohm Case
1949, p. 174; the (second phase)
Nottebohm Case Judgment of April 6th,
(second phase) 1955: ICJ Reports
Judgment of April 6th, 1955, p. 4 at p. 24; the
1955: ICJ Reports Interhandel Case
1955, p. 4 at p. 24; the (Judgment of March
Interhandel Case 21st, 1959: ICJ
(Judgment of March Reports 1959, p. 6 at p.
21st, 1959: ICJ 27) and the Barcelona
Reports 1959, p. 6 at p. Traction Light and
27) and the Barcelona Power Company,
Traction Light and Limited case, (Belg. V.
 Power Company, Spain), 1970 I.C.J. 3,
Limited case, supra 32 (Feb. 5).
note 6, at p. 32 par. 33.
It has also been (p. 24 Body of Vinuya)
recognized by other
international tribunals:
see, for example,
Administrative Decision
No. V of the US-
German Claims
Commission.

(p. 397 of Albornoz)

2. Under this view, the [57] See Borchard, E., …The citizen abroad
considerations Diplomatic Protection has no legal right to
underlying the decision of Citizens Abroad at require the diplomatic
to exercise or not VI (1915). Under this protection of his
diplomatic protection view, the national government.
may vary depending on considerations Resort to this remedy
each case and may underlying the decision of diplomatic
rely entirely on policy to exercise or not protection is solely a
considerations diplomatic protection right of the
regardless of the may vary depending on government, the
interests of the directly- each case and may justification and
injured individual, and rely entirely on policy expediency of its
the State is not considerations employment being a
required to provide regardless of the matter for the
justification for its interests of the directly- government’s
decision.[90] injured individual, and unrestricted discretion.
the State is not This protection is
[90] See in this sense, required to provide subject in its grant to
Borchard E., justification for its such rules of
Diplomatic Protection decision. municipal
of Citizens Abroad, administrative law as
New York, The Banks (p. 25, footnote 57 of the state may adopt,
Law Publishing Co., Vinuya) and in its exercise
1915, at VI. Also: G. internationally to
Berlia, op. cit. (note certain rules which
86), pp. 63 y 64. custom has
recognized.
(p. 398 of Albornoz)
Source:

Edwin M. Borchard,
The Diplomatic

3. The ILC’s 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),
Protection of Citizens
Abroad or the Law of
International Claims,
vi (1914).
The International Law 60. The texts of the
Commission’s (ILC’s) draft articles on
Draft Articles on diplomatic protection
Diplomatic Protection with commentaries
fully support this thereto adopted on
traditional view. They first reading by the
(i) state that "the right Commission at its fifty-
of diplomatic protection sixth session, are
belongs to or vests in reproduced below.
the State,"[59] (ii)
affirm its discretionary …
nature by clarifying that
diplomatic protection is Article 2 stresses that
a "sovereign the right of diplomatic
prerogative" of the protection belongs to
State;[60] and (iii) or vests in the State. It
stress that the state gives recognition to
"has the right to the Vattelian notion
exercise diplomatic that an injury to a
protection on behalf of national is an indirect
a national. It is under injury to the
no duty or obligation to State.[25]…
do so."[61]
...
[59] ILC First Reading
Draft Articles on A State has the right
Diplomatic Protection, to exercise diplomatic
U.N. Doc. A/CN.4/484, protection on behalf of
ILC Report, A/53/10 a national. It is under
(F), par. 60, no duty or obligation
Commentary to Draft to do so. The internal
Article 2, par. (1); see law of a State may
also, Commentary to oblige a State to
Draft Article 1, par. (3), extend diplomatic
and text of Draft Article protection to a
2. national,[29] but
international law
[60] Report of the imposes no such
International Law obligation....
Commission on the
work of its 50th
 and text of Draft Article
session, supra note 60, Source:
2. par. 77.
Text of the Draft
[97] Report of the [61] ILC First Reading Articles on Diplomatic
International Law Draft Articles on Protection Adopted by
Commission on the Diplomatic Protection, the Commission on
work of its 50th supra note 60, First Reading, Rep. of
session, supra note 13, commentary to Draft the Int'l. Law Comm'n,
par. 77. Article 2, par. (2). 56th Sess., 3 May-4
June and 5 July-6
[98] ILC First Reading (p. 25-26 Body of August 2004, U.N.
Draft Articles on Vinuya) Doc. A/59/10 at 22-28,
Diplomatic Protection, par. 60; GAOR, 59th
supra note 2, Sess., Supp. 10
commentary to Draft (2004).
Article 2, par. (2).

(p. 400 of Albornoz)

4. …Special Rapporteur [62] …Special 74. The discretionary
Dugard proposed that Rapporteur Dugard power of the State to
the ILC adopt in its proposed that the ILC intervene on behalf of
Draft Articles a adopt in its Draft its national is
provision under which Articles a provision considered in the
States would be under which States commentary on article
internationally obliged would be internationally 4.
to exercise diplomatic obliged to exercise
protection in favour of diplomatic protection in Article 4
their nationals injured favor of their nationals
abroad by grave injured abroad by 1. Unless the injured
breaches to their jus grave breaches to jus person is able to bring
cogens norms, if the cogens norms, if the a claim for such injury
national so requested national so requested before a competent
and if he/she was not and if he/she was not international court or
afforded direct access afforded direct access tribunal, the State of
to an international to an international his/her nationality has
tribunal.[116 tribunal. The proposed a legal duty to
article reads as follows:
exercise diplomatic
[116] The proposed protection on behalf of
article read as follows: Article [4] 1. Unless the the injured person
"Article [4] 1. Unless injured person is able upon request, if the
the injured person is to bring a claim for injury results from a
able to bring a claim for such injury before a grave breach of a jus
such injury before a competent international cogens norm
competent international court or tribunal, the
court or tribunal, the State of his/her
State of his/her nationality has a legal attributable to another
nationality has a legal duty to exercise State.
duty to exercise diplomatic protection
diplomatic protection on behalf of the injured 2. The State of
on behalf of the injured person upon request, if nationality is relieved
person upon request, if the injury results from a of this obligation if:
the injury results from a grave breach of a jus
grave breach of a jus cogens norm (a) The exercise of
cogens norm attributable to another diplomatic protection
attributable to another State. 2. The state of would seriously
State. 2. The state of nationality is relieved of endanger the
nationality is relieved of this obligation if: (a) overriding interests of
this obligation if: (a) The exercise of the State and/or its
The exercise of diplomatic protection people;
diplomatic protection would seriously
would seriously endanger the (b) Another State
endanger the overriding interests of exercises diplomatic
overriding interests of the State and/or its protection on behalf of
the State and/or its people ; (b) Another the injured person;
people ; (b) Another State exercises
State exercises diplomatic protection (c) The injured person
diplomatic protection on behalf of the injured does not have the
on behalf of the injured person; (c) The injured effective and dominant
person; (c) The injured person does not have nationality of the
person does not have the effective and State.
the effective and dominant nationality of
dominant nationality of the State. States are 3. States are obliged
the State. States are obliged to provide in to provide in their
obliged to provide in their municipal law for municipal law for the
their municipal law for the enforcement of this enforcement of this
the enforcement of this right before a right before a
right before a competent domestic competent domestic
competent domestic court or other court or other
court or other independent national independent national
independent national authority." Special authority.
authority." Dugard, J. Rapporteur John
First report on Dugard, appointed in Source:
diplomatic protection, 1999, First Report on
supra note 13, par. 74. Diplomatic Protection, Special Rapporteur on
par. 74 (UN Doc Diplomatic Protection,
(p. 404 of Albornoz) A/CN.4/506 (March 7, First Rep. on
2000) and Corr. 1 Diplomatic Protection,
(June 7, 2000) and Int’l. Law Comm’n, UN
Add. 1 (April 20, 2000). Doc. A/CN.4/506, at
27, par. 74 (7 March
 (p. 26, footnote 62 of 2000) (by John R.
Vinuya) Dugard).
5. …the proposal was not [62] …the proposal 456. The Special
accepted by the ILC, was not accepted by Rapporteur
as "the question was the ILC, as "the recognized that he
still not ripe for question was still not had introduced article
treatment" because ripe for treatment" 4 de lege ferenda. As
"the State practice and because "the State already indicated, the
their opinio juris still practice and their proposal enjoyed the
hadn’t evolved in such opinio juris still hadn’t support of certain
direction."[120] evolved in such writers, as well as of
direction." Official some members of the
[120] Official Records Records of the Sixth Committee and
of the of ILA; it even formed
General Assembly: part of some
General Assembly: 55th session, constitutions. It was
55th session, Supplement No. 10, thus an exercise in the
Supplement No. 10, Doc. A/55/10 (2000), progressive
Doc. A/55/10 (2000), Report of the ILC on development of
Report of the ILC on the work of its 52nd international
the work of its 52nd session, p. 131.
session, p. 131. law. But the general
(p.26, footnote 62 of view was that the
(p. 405 of Albornoz) Vinuya) 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 Int’l. Law

Comm’n, 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. ...some States have, [62] …some States 80. …Constitutional
indeed, incorporated in have, indeed, provisions in a number
their municipal law a incorporated in their of States… recognize
duty to exercise municipal law a duty to the right of the
diplomatic protection in exercise diplomatic individual to receive
favor of their protection in favor of diplomatic protection
nationals…. Various their nationals. (Dugard for injuries suffered
other States have also identifies this abroad. These
included such a "duty "obligation to exist in include: Albania,
to exercise diplomatic the Constitutions of Belarus, Bosnia and
protection" under their Albania, Belarus, Herzegovina,
domestic laws,[130 ]but Bosnia and Bulgaria, Cambodia,
their enforceability is Herzegovina, Bulgaria, China,
also, to say the least, Cambodia, China,
questionable (in many Croatia, Estonia, Croatia, Estonia,
cases there are not Georgia, Guyana, Georgia, Guyana,
even courts competent Hungary, Italy, Hungary, Italy,
to review the decision). Kazakhstan, Lao Kazakhstan, Lao
People’s Democratic People’s
[130] Dugard identifies Republic, Latvia,
this "obligation to exist Lithuania, Poland, Democratic Republic,
in the Constitutions of Portugal, Republic of Latvia, Lithuania,
Albania, Belarus, Korea, Romania, Poland, Portugal,
Bosnia and Russian Federation, Republic of Korea,
Herzegovina, Bulgaria, Spain, the former
Cambodia, China, Yugoslav Republic of Romania, Russian
Croatia, Estonia, Macedonia, Turkey, Federation, Spain, the
Georgia, Guyana, Ukraine, Viet Nam and former Yugoslav
Hungary, Italy, Yugoslavia, albeit with Republic of
Kazakhstan, Lao different reaches. J. Macedonia, Turkey,
People’s Democratic Dugard, First Report on Ukraine, Viet Nam and
Republic, Latvia, diplomatic protection, Yugoslavia….
Lithuania, Poland, supra note 13, par. 80.)
Portugal, Republic of Source:
Korea, Romania,
 Russian Federation, (p. 26, footnote 62 of Special Rapporteur on
Spain, the former Vinuya) Diplomatic Protection,
Yugoslav Republic of First Rep. on
Macedonia, Turkey, Diplomatic Protection,
Ukraine, Viet Nam and Int’l. Law Comm’n, UN
Yugoslavia, albeit with Doc. A/CN.4/506, at
different reaches. J. 30, par. 80 (7 March
Dugard, First Report on 2000) (by John R.
diplomatic protection, Dugard).
supra note 13, par. 80.

(p. 406 of Albornoz)

7. …but their [62] ..., but their (2) A State has the
enforceability is also, toenforceability is also, to right to exercise
say the least, say the least, diplomatic protection
questionable (in many questionable (in many on behalf of a
cases there are not cases there are not national. It is under no
even courts competent even courts competent duty or obligation to
to review the decision). to review the decision). do so. The internal law
Moreover, their Moreover, their of a State may oblige
existence in no way existence in no way a State to extend
implies that implies that diplomatic protection
international law international law to a national,[29] but
imposes such an imposes such an international law
obligation,[131] simply obligation, simply imposes no such
suggesting "that certain suggesting "that certain obligation. The
States consider States consider position was clearly
diplomatic protection diplomatic protection stated by the
for their nationals for their nationals International Court of
abroad to be abroad to be desirable" Justice in the
desirable."[132 (ILC First Reading Barcelona Traction
Draft Articles on case:
[131] ILC First Reading Diplomatic Protection,
Draft Articles on supra note 2, …
Diplomatic Protection, Commentary to Draft
supra note 2, Article 2, par (2)). A proposal that a
Commentary to Draft limited duty of
Article 2, par (2). This (p. 26, footnote 62 of protection be imposed
was recognized Vinuya) on the State of
expressly in the nationality was
Barcelona Traction rejected by the
case, supra note 6. Commission as going
beyond the
[132] Dugard, J. First permissible limits of
report on diplomatic progressive
 protection, supra note development of the
13, par. 81…. law.[31]

(p. 406-407 of Source:

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 Comm’n,
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 Prochaska’s article, Testing the Limits of Diplomatic

Protection: Khadr v. The Prime Minister of Canada,6 and the Supreme Court’s Decision
in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.

The Allegedly
The Decision
Copied Work
Elizabeth Prochaska, Vinuya v. Executive International Source
Testing the Limits of Secretary, G.R. No. Being Analyzed By
Diplomatic Protection: 162230, 28 April 2010. Prochaska
Khadr v. The Prime
Minister of Canada
(2009).
Instead, Draft Article [62] …Official Records Note:
19, entitled of the General
‘Recommended Assembly: 55th The Report of the
Practice,’ suggests that session, Supplement International Law
states should be No. 10, Doc. A/55/10 Commission on the
encouraged to exercise (2000), Report of the Work of its Fifty-
diplomatic protection ILC on the work of its Second Session, and
‘especially when 52nd session, p. 131. the Special
significant injury Instead, Draft Article Rapporteur’s First on
occurred to the 19, entitled Diplomatic Protection,
national. Drafted in soft ‘Recommended which are the nearest
language, the Article Practice,' suggests that in location and in
 does not purport to states should be context to the
create any binding encouraged to exercise passage, does not
obligations on the diplomatic protection contain a discussion
state. ‘especially when on Draft Article 19.
significant injury See pp. 72-85 and 27-
(p. 397 of Prochaska) occurred to the 34 respectively.
national. Drafted in soft
language, the Article
does not purport to
create any binding
obligations on the
state.

(Footnote 62 of Vinuya)

TABLE F: Comparison of Larry Niksch’s Report, Japanese Military’s Comfort Women,

10 April 2006,7 and the Supreme Court’s Decision in Vinuya et. al. v. Executive
Secretary, G.R. No. 162230, 28 April 2010.

The Allegedly
The Decision
Copied Work
Larry Niksch, Vinuya v.
Japanese Executive Source Being Used By Niksch
Military’s Comfort Secretary, G.R.
Women, 10 April No. 162230, 28
2006. April 2010.
1. The Asian The AWF The projects of atonement
Women’s Fund announced three involved providing former comfort
announced three programs for women with 2 million yen per
programs for former comfort person as atonement money
former comfort women who donated by Japanese citizens,
women who applied for delivering a letter of apology from
applied for assistance: (1) an the Japanese Prime Minister,
assistance: (1) an atonement fund and offering goods and services
atonement fund paying ¥2 million under medical and welfare
that paid two (approximately support projects financed by the
million yen $20,000) to each Japanese government.
(approximately woman; (2)
$20,000) to each medical and Note:
former comfort welfare support
woman; (2) programs, paying The passage in Vinuya does not
medical and ¥2.5-3 million contain a footnote. The following
welfare support ($25,000- source is the nearest citation that
programs for $30,000) for each may reasonably be taken as
 former comfort woman; and (3) a within the context of the
women, paying letter of apology discussion in Vinuya.
2.5-3 million yen from the
($25,000- Japanese Prime http://web.archive.org/web/20060
$30,000) for each Minister to each 301213211/http://www.awf.or.jp/e
former comfort woman. nglish/project_atonement.html
woman; and (3) a
letter of apology (p. 17, Body of
from the Vinuya)
Japanese Prime
Minister to each
recipient
woman.[8]

[FN8]. From the

Asian Women’s
Fund website,
March 16, 2006.

(paragraph 11 of
Niksch)
2. ...As of March ...As of March In order to fulfill its moral
2006, the Asian 2006, the AWF responsibility in all sincerity, the
Women’s Fund provided ¥700 Japanese government decided to
provided 700 million yen disburse about 700 million yen
million yen (approximately $7 over a five-year period for
(approximately $7 million) for these medical and welfare support
million) for these programs in South projects aiding former comfort
programs in South Korea, Taiwan, women in the Philippines, the
Korea, Taiwan, and the Republic of Korea and Taiwan.
and the Philippines; ¥380
Philippines; 380 million yen ...
million yen (approximately
(approximately $3.8 million) in Note:
$3.8 million) in Indonesia; and
Indonesia; and ¥242 million yen The passage in Vinuya does not
242 million yen (approximately contain a footnote. The following
(approximately $2.4 million) in the source is the nearest citation that
$2.4 million) in the Netherlands. may reasonably be taken as
Netherlands. [9] within the context of the
(p. 17, Body discussion in Vinuya.
(paragraph 12 of Vinuya)
of Niksch) http://web.archive.org/web/20060
301213211/http://www.awf.or.jp/e
nglish/project_atonement.html
3. On January 15, On January 15, The government of the
1997 the Asian 1997 the AWF Philippines and the Asian
Women’s Fund and the Philippine Women’s Fund signed a
and the Philippine government Memorandum of Understanding
government signed a on January 15, 1997….
signed a Memorandum of
Memorandum of Understanding for The Philippine government’s
understanding for medical and Department of Social Welfare
medical and welfare support and Development implemented
welfare support programs for the projects over a period of five
programs for former comfort years….
former comfort women. Over the
women. Over the next five years, Note:
next five years, these were
these were implemented by The passage in Vinuya does not
implemented by the Department of contain a footnote. The following
the Philippine Social Welfare source is the nearest citation that
government’s and Development. may reasonably be taken as
Department of within the context of the
Social Welfare (p. 17, Body of discussion in Vinuya.
and Development. Vinuya)
http://web.archive.org/web/20060
(paragraph 19 of 301213211/http://www.awf.or.jp/e
Niksch) nglish/project_atonement.html

TABLE G: Comparison of James Ladino’s article, Ianfu: No Comfort Yet for Korean
Comfort Women and the Impact of House Resolution 121 and the Supreme Court’s
Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.

The Allegedly
The Decision
Copied Work
James Ladino, Ianfu: No Vinuya v. Executive
Comfort Yet for Korean Secretary, G.R. No. Source Being Analyzed
Comfort Women and the 162230, 28 April 2010. and/or Used by Ladino
Impact of House
Resolution 121, 15
Cardozo J.L. & Gender
333 (2009).
1 In 1992, the Korean In 1992, the Korean ...In her report to the U.N.
. Council for the Women Council for the Women Human Rights
Drafted for Military Sexual Drafted for Military Sexual Commission, Radhika
Slavery by Japan Slavery by Japan Coomaraswamy, the U.N.
("KCWS"), submitted a (KCWS), submitted a special investigator into
petition to the United petition to the UN Human violence against women,
 Nations Human Rights Rights Commission concluded that Japan must
Commission ("UNHRC"), (UNHRC), asking for admit its legal
asking for their assistance assistance in investigating responsibility....
in investigating crimes crimes committed by
committed by Japan Japan against Korean ...
against Korean women women and seeking
and pressuring Japan to reparations for former...Lee Hyo-chae, as a co-
pay reparations to the comfort women.[29] Thechair of the KCWS
women who had filed UNHRC placed the issuesubmitted a petition to the
lawsuits.[96] The UNHRC on its agenda and U.N. Human Rights
formally placed the issue appointed Radhika Commission, dated March
on its agenda and Coomaraswamy as the 4, 1992, requesting that
appointed Radhika issue's special the Commission
Coomaraswamy as the investigator. In 1996,investigate Japanese
issue’s special Coomaraswamy issued a atrocities committed
investigator.[97] Issued in Report reaffirming against Korean women
1996, the UNHRC’s Japan's responsibility in
during World War Two,
report reaffirmed Japan’s forcing Korean women to
and help pressure the
guilt in forcing Korean act as sex slaves for the
Japanese government to
women to act as sex imperial army, and made
pay reparations to
slaves for the imperial the individual women who
army.[98] following recommendatio
have filed suit. The
ns: UNHRC responded by
[96] Soh, supra note 7 placing the issue on the
[Chunghee Sarah Soh, [29] Soh, The Comfort official agenda for its
The Korean "Comfort Women Project, San August 1992 meeting in
Women": Movement for Francisco State University Geneva….
Redress, 36 Asian Survey (1997-2001),
1226,], at 1234-35. http://online.sfsu.edu/~so Source:
h/comf ortwomen.html, at
[97] Id. at 1226. 1234-35. Chunghee Sarah Soh, The
Korean "Comfort Women":
[98] Id. (p. 9-10, Body of Vinuya) Movement for Redress, 36
Asian Survey 1226, 1234-
(p. 344 of Ladino) 35 (1996).
2 The Women's The Women's From December 8 to 12,
. International War Crimes International War Crimes 2000, a peoples' tribunal,
Tribunal (WIWCT) was a Tribunal (WIWCT) was a the Women's International
"people's tribunal" "people's tribunal" War Crimes Tribunal 2000,
established by a number established by a number sat in Tokyo, Japan. It was
of Asian women, human of Asian women and established to consider the
rights organizations, and human rights criminal liability of leading
supported by an organizations, supported high-ranking Japanese
international coalition of by an international military and political
non-governmental coalition of non- officials and the separate
 organizations governmental responsibility of the state
("NGOs").[101] First organizations.[31] First of Japan for rape and
proposed in 1998, the proposed in 1998, the sexual slavery as crimes
WIWCT convened in WIWCT convened in against humanity arising
Tokyo in 2000 to discuss Tokyo in 2000 in order to out of Japanese military
the issue of comfort "adjudicate Japan's activity in the Asia Pacific
women.[102] Specifically, military sexual violence, in region in the 1930s and
the WIWCT aimed to particular the 1940s.
"adjudicate Japan's enslavement of comfort
military sexual violence, in women, to bring those ...
particular the responsible for it to
enslavement of comfort justice, and to end the …The tribunal arose out of
women, to bring those ongoing cycle of impunity the work of various
responsible for it to for wartime sexual women's nongovernmental
justice, and to end the violence against women." organizations (NGOs)
ongoing cycle of impunity across Asia….
for wartime sexual [31] Chinkin, Women’s
violence against women." International Tribunal on Source:
Japanese Sexual Slavery,
[101] Christine M. 95 Am. J. Int’l. L. 335 Chinkin, Women’s
Chinkin, Women’s (2001). International Tribunal on
International Tribunal on Japanese Sexual Slavery,
Japanese Sexual Slavery, (p. 12, Body of Vinuya) 95 Am. J. Int’l. L. 335
95 Am. J. Int’l. L. 335 (2001).
(2001)

[102] Violence Against

Women in War-Network
Japan, What is the
Women’s Tribunal?
http.//www1.jca.apc.org/v
aww-net -
japan/English/womenstrib
unal200
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
[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
…Prosecution teams from
ten countries presented
indictments.[6] North and
South Korea, China,
Japan, the Philippines,
Indonesia, Taiwan,
Malaysia, East Timor, and
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]
[104] Id. [Violence Against
Women in War-Network (p. 12, footnote 32 of
Japan, What is the Vinuya)
Women's Tribunal?,
http://www1.jca.apc.org/v
aww-net -
japan/english/womenstrib
unal200
0/whatstribunal.html (last
visited Oct. 16, 2008).]
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.
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, Women’s
International Tribunal on
Japanese Sexual Slavery,
95 Am. J. Int’l. L. 335, 336
(2001).

[105] Id.

[106] Chinkin, supra note

101, at 336.

(p. 345 of Ladino)

After examining the The preliminary judgment
After examining the
evidence for more than a indicated that the judges
evidence for more than a
year, the "tribunal" issued had found Emperor
year, the tribunal issued
its verdict on December 4, Hirohito guilty of the
its final verdict on
2001, finding the former charges on the basis of
December 4, 2001,
Emperor Hirohito and the command responsibility,
finding the former
State of Japan guilty of that he knew or should
Emperor Hirohito and the
crimes against humanity have known of the
State of Japan guilty of
for the rape and sexual offenses…. The judges
crimes against humanity
slavery of women.[32] It also indicated that they
 for the rape and sexual
slavery of women.[107]
… witnesses, and judges, its applicable at the time of
Although the tribunal
included prosecutors,
witnesses, and judges, its
judgment was not legally
binding since the tribunal
itself was organized by
private citizens….
[107] Violence Against
Women in War-Network
Japan, supra note 102.
(p. 345 of Ladino)
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
bears stressing, however, had determined Japan to
that although the tribunal be responsible under
included prosecutors, international law
judgment was not legally the events for violation of
binding since the tribunal its treaty obligations and
itself was organized by principles of customary
private citizens. international law relating to
slavery, trafficking, forced
[32] …Id. [Chinkin] at 336. labor, and rape, amounting
to crimes against
(p. 12, Body of Vinuya) humanity….
What was the value of this
exercise? Lacking legal
authority, was the tribunal
no more than a mock trial
of little concern to serious
international lawyers?
Source:
Chinkin, Women’s
International Tribunal on
Japanese Sexual Slavery,
95 Am. J. Int’l. L. 335
(2001).
On January 31, 2007, US Today, Representative
Representative Michael Michael M. Honda (CA –
Honda of California, along 15) introduced a bipartisan
with six co-sponsor resolution before the U.S.
representatives, House of Representatives
introduced House calling on the government
Resolution 121 which of Japan to formally and
called for Japanese action unambiguously apologize
in light of the ongoing for and acknowledge the
struggle for closure by tragedy that comfort
former comfort women. women endured at the
The Resolution was hands of its Imperial Army
formally passed on July during World War II….
30, 2007,[33] and made
four distinct demands: …
[33] Press Release, The resolution is
Congressman Mike cosponsored by:
 resolution also makes Honda, Rep. Honda Calls Representatives Edward
four distinct demands: on Japan to Apologize for R. Royce (CA – 40),
World War II Exploitation Christopher H. Smith (NJ -
[110] Press Release, of "Comfort Women" 4), Diane E. Watson (CA -
Congressman Mike (January 31, 2007). 33), David Wu ()R - 1),
Honda, Rep. Honda Calls Phil Hare (IL - 17), and
on Japan to Apologize for (p. 12, Body of Vinuya) Delegate Madaleine
World War II Exploitation Bordallo (GU).
of "Comfort Women" (Jan.
31, 2007), available at Source:
http://www.house.gov/list/
press/ca15_honda/ Press Release of
COMFORTWOMEN.html. Congressman Mike
Honda, Rep. Honda Calls
(p. 346 of Ladino) 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
5 …The resolution also The Resolution was Resolved, That it is the
. makes four distinct formally passed on July sense of the House of
demands: 30, 2007,[33] and made Representatives that the
four distinct demands: Government of Japan—
[I]t is the sense of the
House of Representatives [I]t is the sense of the (1) should formally
that the Government of House of Representatives acknowledge, apologize,
Japan (1) should formally that the Government of and accept historical
acknowledge, apologize, Japan (1) should formally responsibility in a clear
and accept historical acknowledge, apologize, and unequivocal manner
responsibility in a clear and accept historical for its Imperial Armed
and unequivocal manner responsibility in a clear Force’s coercion of young
for its Imperial Armed and unequivocal manner women into sexual
Forces' coercion of young for its Imperial Armed slavery, known to the
women into sexual Forces' coercion of young world as "comfort women",
slavery, known to the women into sexual during its colonial and
world as "comfort slavery, known to the wartime occupation of Asia
women", during its world as "comfort and the Pacific Islands
colonial and wartime women", during its from the 1930s through
occupation of Asia and colonial and wartime the duration of World War
the Pacific Islands from occupation of Asia and II;
the 1930s through the the Pacific Islands from
duration of World War II; the 1930s through the (2) should have this official
(2) would help to resolve duration of World War II; apology given as a public
 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). 34] H.R. Res. 121, 110th
Cong. (2007) (enacted).
(p. 346 of Ladino)
(p. 12, Body of Vinuya)
6 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) 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
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
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/p
kg/ BILLS-
110hres121ih/pdf/BILLS-
110hres121ih.pdf (U.S.)
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.
 (2) a removal of the legal obstacles preventing …
obstacles preventing compensation; and (3)
compensation; and (3) unabridged education of Call for formal
unabridged education of the past. The resolution acknowledgment of
the past.[132] The also stressed the urgency responsibility by
resolution also stresses with which Japan should government
the urgency with which act on these issues,
Japan should act on stating: "the right of …
these issues, stating: "the individuals to claim
right of individuals to reparations against the Legal obstacles to
claim reparations against government should be compensation must be
the government should be expressly recognized in removed
expressly recognized in national law, and cases
national law, and cases for reparations for the …
for reparations for the survivors of sexual
survivors of sexual slavery, as a crime under Education about the past
slavery, as a crime under international law, should
international law, should be prioritized, taking into …
be prioritized, taking into account the age of the
account the age of the survivors." Source cited:
survivors."[133]…
[35] European Parliament, European Parliament,
[130] European Human rights: Chad, Human rights: Chad,
Parliament, Human rights: Women's Rights in Saudi Women's Rights in Saudi
Chad, Women's Rights in Arabia, Japan's Wartime Arabia, Japan's Wartime
Saudi Arabia, Japan's Sex Slaves, Dec. 17, Sex Slaves, (17 Dec.
Wartime Sex Slaves, Dec. 2007, 2007) available at
17, 2007, http://www.europarl.europ http://www.europarl.europ
http://www.europarl.europ a.eu/ a.eu/
a.eu/ sides/getDoc.do?languag sides/getDoc.do?language
sides/getDoc.do?languag e=EN& type=IM- = EN&type=IM-
e=EN& type=IM- PRESS&reference= PRESS&reference=
PRESS&reference= 20071210BRI14639&sec 20071210BRI14639&seco
20071210BRI14639&sec ondRef= ITEM-008-EN. ndRef= ITEM-008-EN
ondRef= ITEM-008-EN.
(p. 13, Body of Vinuya)
[132] Id.

[133] Id.

(p. 360 of Ladino)

7 The Canadian and Dutch The Canadian and Dutch Note:
. parliaments have each parliaments have each
followed suit in drafting followed suit in drafting On the issue of comfort
resolutions against Japan. resolutions against Japan. women, the website only
 Canada's resolution
demands the Japanese
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]
[134] The Comfort
Women--A History of
Trauma,
http://taiwan.yam.org.tw/
womenweb/conf_women/
index_e.html. (last visited
Mar. 26, 2009).
Canada's resolution refers to the attitude and
demands the Japanese reaction of the following
government to issue a governments: Taiwan,
formal apology, to admit South Korea, North Korea,
that its Imperial Military Philippines, China,
coerced or forced Indonesia, Malaysia, and
hundreds of thousands of Japan.
women into sexual
slavery, and to restore Source cited:
references in Japanese
textbooks to its war http://taiwan.yam.org.tw/w
crimes.[36] The Dutch omenwe
parliament's resolution b/conf_women/index_e.ht
calls for the Japanese ml
government to uphold the
1993 declaration of
remorse made by Chief
Cabinet Secretary Yohei
Kono.
[36] The Comfort Women-
-A History of Trauma,
http:// taiwan.yam.org.tw/
womenweb/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 ponente’s own. No attribution to Criddle and Fox-
Decent was made.
A.2 Similar to A.1, Criddle and Fox-Decent’s 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 Ellis’s discussion on rape as an international crime. Two citations of
cases from Ellis were omitted. No attribution to Ellis was made.

B.2 Ellis’s 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 Ellis’s summary and analysis of Article 27 of the Fourth Geneva Convention was
lifted word for word. No attribution to Ellis was made.

B.4 Ellis’s conclusion regarding Protocol I of the Geneva Convention was appropriated,
without any attribution to Ellis. Ellis’s footnote was again copied. No attribution to Ellis
was made.

C.1 McCorquodale’s 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 Okowa’s
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 McCorquodale’s 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 Okowa’s 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 Albornoz’s 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 ponente’s 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. Albornoz’s citation of Borchard was used as a reference in the
same footnote, but Albornoz was bypassed completely.

D.3 Albornoz’s summation of the ILC’s 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 Albornoz’s summary to streamline the flow
of the second copied sentence. No attribution to Albornoz was made.

D.4 Albornoz’s summation of Dugard’s proposal was lifted word for word and used in
footnote 62 of Vinuya. The footnote Albornoz attached to this summation, a quotation of
Albornoz’s 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 Dugard’s 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 Albornoz’s 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 ponente’s analysis, but Prochaska’s.

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 Ladino’s 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 Ladino’s 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 Ladino’s 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 Castillo’s 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 work’s 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 researcher’s transition phrases are clearly devices of a
practiced plagiarist, which betray the deliberateness of every single act. The plagiarism
in Vinuyawill 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 Ladino’s
article were interspersed with Ladino’s footnotes, without a single attribution to Ladino
(please refer to Table G). Sentences from Ladino’s 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 Ladino’s 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 cogensencountered
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 ILC’s 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-Decent’s 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-Decent’s 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 Ellis’s
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 Ellis’s 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 Ellis’s 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. Int’l. 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. Ellis’s 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 Nürnberg 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 Ellis’s 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 Ellis’s work. Pages 227 to 228 of the said work,
pertaining to the discussion on rape were substantially copied. Insertions were made for
Ellis’s own footnotes.

The conscious thought required for the act of cutting and pasting the original author’s
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 Ellis’s sources in a usage that is substantially similar to what appears in
his article. This allegedly inadvertent copying of Ellis’s 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 Google’s, or a paid service like Westlaw’s, 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 author’s? Corollarily, the researcher would initially assess if such argument
made by the author is adequately supported as well. She would check the author’s
footnotes. In Vinuya, the copying of the footnotes was so extensive, such that it
practically used the uncited works as blueprint for the Decision’s 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
computer’s "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 document’s 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 author’s analysis. Actually, it would have
been easier to cite the author’s 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 footnote’s 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. Posner’s 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 "cook’s 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
book’s last paragraph reads:

In the course of my cook’s 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 emphasizedreliance, 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 plagiarism…In 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 infringement…infringement can
occur even when a work is properly attributed if the copying is not authorized–for
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 party’s 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 George’s
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 person’s words, thoughts, or ideas as one’s

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 judge’s
copying of another’s judges opinion, the adoption verbatim of an advocate’s findings of
fact and conclusions of law, the wholesale adoption of an advocate’s brief, or the
copying of a portion of a law review article and representing it as the judge’s 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 George’s 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 another’s 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 clerk’s 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 one’s own – already embodied in claiming a work by, for
instance, affixing one’s 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 judge’s 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 George’s 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 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 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 Bank’s Country Governance

Assessment Report for the Philippines (2005).

TABLE H: Comparison of Justice Abad’s 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

Excerpt from the
Article Co-Authored
ADB Country
with Drs. De Dios and
Reproduction of Governance
Capuno:
J. Abad’s Allegations Assessment:
Philippines
Justice and the Cost of
Doing Business: The
 Philippines, report Asian Development
submitted to the World Bank Country
Bank, 2001. Governance
Assessment:
Philippines, 2005.
1. Cost refers to both Costs, on the other Cost refers to both
monetary and hand, refer to both the monetary and
nonmonetary monetary and nonmonetary
opportunities that a nonmonetary opportunities that a
litigant has to forego in opportunities that litigant has to forego in
pursuing a case. Direct business people forego pursuing a case.
cost refers not only to as a result of making Direct cost refers not
fees paid to the courts use of the judicial only to fees paid to the
but also to out-of- system itself. Direct courts but also to out-
pocket costs arising costs refer not only to of-pocket costs arising
from litigation itself the fees paid the courts from litigation itself
(e.g., lawyers’ fees and but also to out-of- (e.g., lawyer’s fees
compensation, pocket costs arising and compensation,
transcript fees for from litigation itself transcript fees for
stenographic notes, (e.g., lawyers’ fees and stenographic notes,
etc.). Indirect costs documentation). etc.). Indirect costs
refer to lost Indirect costs also refer to lost
opportunities arising inevitably arise, of opportunities arising
from delays in the which the most from delays in the
resolution of cases and important are those resolution of cases
the time spent by a arising from delays in and the time spent by
litigant attending and the resolution of cases, a litigant attending and
following up a case. and the failure to come following up a case.
up with timely
[Asian Development decisions.
Bank Country
Governance Excerpt from the
Assessment Article Co-Authored
(Philippines) 2005, with Drs. De Dios and
page 103] 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 out-of-
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 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 Bank’s 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 ADB’s 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. lawyer’s 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 Court’s
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_Peru_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 Abad’s 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 Abad’s 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.

Excerpt from the

Legal Memorandum
Prepared by J. Excerpt from the
Sereno: Source Cited by J.
Reproduction of Sereno:
J. Abad’s Allegations Petitioners-Intervenors’
Memorandum, Baker v. Carr, 369
Province of North U.S. 186 (1962).
Cotabato v. Peace
Panel
Prominent on the 3.4 The power to
Prominent on the
surface of any case determine whether or
surface of any case
held to involve a not a governmental act
held to involve a
political question is is a political question,
political question is
found a textually is solely vested in this
found a textually
demonstrable Court, and not with the
demonstrable
constitutional Respondents. This
constitutional
commitment of the Honorable Court had
commitment of the
issue to a coordinate firmly ruled that Article
issue to a coordinate
political department; or VIII, Section 1 of the
political department;
a lack of judicially Constitution, as
or a lack of judicially
discoverable and rejected the prudential
discoverable and
manageable standards approach taken by
manageable
for resolving it; or the courts as described
standards for
impossibility of in Baker v. Carr.
resolving it; or the
deciding without an Indeed, it is a duty, not
impossibility of
initial policy discretion, of the
deciding without an
determination of a kind Supreme Court, to take
initial policy
clearly for non-judicial cognizance of a case
determination of a
discretion x x x and exercise the power
kind clearly for non-
of judicial review
judicial discretion….
[Baker v. Carr, 169 whenever a grave
U.S. 186] abuse of discretion has
been prima facie Source cited:
established, as in this
instance. Baker v. Carr

3.5 In this case,

Respondents cannot
hide under the political
question doctrine, for
two 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….

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 Abad’s
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 Abad’s 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

Excerpt from the Work of J. Sereno:
Source Citedby J.
Sereno:
Sereno, Uncertainties Beyond the
Reproduction of
Horizon: The Metamorphosis of the
J. Abad’s Allegations http://www.fas.usda.
WTO Investment Framework in the
gov/
Philippine Setting, 52 U.S.T. L. Rev.
info/factsheets/wto.ht
259 (2007-2008)
ml
The World Trade This reticence, to link investment Source cited:
Organization (WTO), regulation with the legal disciplines in
established on the WTO, compared to the The World Trade
January 1, 1995, is a eagerness with which other issues Organization (WTO),
multilateral institution are linked to trade rules, was evident established on
charged with even in the precursor to the January 1, 1995, is a
administering rules Marakkesh Agreement.[2] multilateral institution
for trade among charged with
member countries. [2] Marakkesh Agreement administering rules
Currently, there are established the World Trade for trade among
145 official member Organization and replaced GATT as member countries.
countries. The United an international organization. It was Currently, there are
States and other signed by ministers from most of the 145 official member
countries 123 participating governments at a countries. The United
participating in the States and other
Uruguay Round of meeting in Marrakesh, Morocco on countries
Multilateral Trade April 15, 1994…. participating in the
Negotiations (1986- Uruguay Round of
1994) called for the The World Trade Organization Multilateral Trade
formation of the (WTO) was established on January Negotiations (1986-
WTO to embody the 1, 1995. It is a multilateral institution 1994) called for the
new trade disciplines charged with administering rules for formation of the
adopted during those trade among member countries. The WTO to embody the
negotiations. WTO functions as the principal new trade disciplines
international body concerned with adopted during those
The WTO functions multilateral negotiations on the negotiations.
as the principal reduction of trade barriers and other
international body measures that distort competition. The WTO functions
concerned with The WTO also serves as a platform as the principal
multilateral for countries to raise their concerns international body
negotiations on the regarding the trade policies of their concerned with
reduction of trade trading partners. The basic aim of the multilateral
barriers and other WTO is to liberalize world trade and negotiations on the
measures that distort place it on a secure basis, thereby reduction of trade
competition. The contributing to economic growth and barriers and other
WTO also serves as development. http://www.fas.usda.go measures that distort
a platform for v/info/ competition. The
countries to raise WTO also serves as
their concerns factsheets/wto.html (last accessed a platform for
regarding the trade February 13, 2008).(Emphasis countries to raise
policies of their supplied.) their concerns
trading partners. The regarding the trade
basic aim of the (p. 260-261, footnote 2 of J. Sereno’s policies of their
WTO is to liberalize work) trading partners. The
world trade and basic aim of the
place it on a secure WTO is to liberalize
basis, thereby world trade and
contributing to place it on a secure
economic growth and basis, thereby
development. contributing to
economic growth and
[WTO FACTSHEET development.
http://www.fas.usda.
gov/ Source cited:
info/factsheets/wto.ht
ml, last accessed http://www.fas.usda.
February 13, 2008.] gov/
info/factsheets/wto.ht
ml
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 Abad’s 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. Posner’s seminal work in

his book Economic Analysis of Law.

TABLE K: Comparison of Justice Abad’s allegations, the article entitled Lawyers’

Behavior and Judicial Decision-Making, and Judge Richard A. Posner’s book Economic
Analysis of Law, cited in the article.

Excerpt from the Work Excerpt from the

of J. Sereno: Source Cited by J.
Sereno:
Reproduction of
Sereno, Lawyers’
J. Abad’s Allegations
Behavior and Judicial Richard A. Posner,
Decision-Making, 70(4) Economic Analysis of
Phil. L. J. 476 (1996). Law, (2nd ed. 1977).
...We could deal with this As with any contract,
problem later. What I a necessary (and
[S]ettlement would propose to usually—why not
negotiations will fail evaluate at this point is always?—sufficient)
and litigation ensue, the preconditions conditions for
only if the minimum that Judge Richard negotiations to
price that the plaintiff Posner theorizes as succeed is that there
is willing to accept in dictating the likelihood of be a price at which
compromise of his litigating... both parties would
claim is greater than feel that agreement
the maximum price the … would increase their
defendant is willing to welfare. Hence
pay in satisfaction of Posner’s model is but a settlement
the claim. simple mathematical negotiations should
illustration or validation of fail, and litigation
[Posner, p. 434] what we as laymen have ensue, only if the
always believed to be minimum price that
true, although how to the plaintiff is willing
 prove it to be true has to accept in
always remained a compromise of his
problem to us. We have claim is greater than
always known that the the maximum price
decision on whether to that the defendant is
settle or not is dictated willing to pay in
by the size of the stakes satisfaction of that
in the eyes of the parties, claim; ….
the costs of litigation and
the probability which Source cited:
each side gives to his
winning or losing. But Richard A. Posner,
until now, we have only Economic Analysis of
been intuitively dealing Law, 435 (2nd ed.
with a formula for arriving 1977).
at an estimation of the
"settlement range" or its
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, What the Judge
like the rest of us, Maximizes
seek to maximize a
utility function that In understanding judicial
includes both behavior, we have to
monetary and assume, that judges, like
§19.7 WHAT DO
JUDGES MAXIMIZE?
…This section
attempts to sketch a
theory of judicial
nonmonetary all economic actors incentives that will
elements. maximize a utility reconcile these
function. This function in assumptions.
[Posner, p. 415] all probability includes
material as well as non- Presumably judges,
[T]he rules of the material factors. In like the rest of us,
judicial process have American literature, they seek to maximize a
been carefully have come up with utility function that
designed both to the several theories on what includes both
prevent the judge from judges maximize. monetary and
receiving a monetary nonmonetary
payoff from deciding a The first is that the elements (the latter
particular case one American judicial system including leisure,
way or the other and have rules designed to prestige, and power).
to minimize the minimize the possibilities As noted earlier,
influence of politically of a judge maximizing his however, the rules of
effective interest group financial interest by the judicial process
in his decisions. receiving a bribe from a have been carefully
litigant of from acceding designed both to
[Posner, 415] to a politically powerful prevent the judge
interest group by making from receiving a
It is often argued, for the rules work in such a monetary payoff from
example, that manner as to create deciding a particular
the judge who owns disincentives for the case one way or the
land will decide in judge ruling in such a other and to minimize
favor of landowners, manner. the influence of
the judge who walks to politically effective
work will be in favour The second, proceeding interest groups on his
of pedestrians. from the first is that the decisions. To be sure,
judge maximizes the the effectiveness of
[Posner, 415] interest of the group to these insulating rules
which he belongs. If he is sometimes
A somewhat more belongs to the questioned. It is often
plausible case can be landowning class, he will argued, for example,
made that generally favor that the judge who
judges might slant landowners, and if he owns land will decide
their decisions in walks to work, he will in favor of
favour of powerful generally favor landowners, the judge
interest groups in pedestrians. who walks to work in
order to increase the favor of pedestrians,
prospects of promotion The third is that the judge the judge who used to
to higher office, judicial maximizes the prospects be a corporate lawyer
or otherwise. of his promotion to a in favor of
higher office by slanting corporations....
[Posner, p. 416]
[J]udges seek to his decisions in favor of
impose their powerful interest groups.
preferences, tastes,
values, etc. on society. The last is that judges
maximize their influence
[Posner, 416] on society by imposing
their values, tastes and
preferences thereon.
Depending on one’s
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 utility-
maximizing behavior on
both our probability
estimate function
and Posner’sprecondition
inequality for litigation.
Although more research
is required in this area, if
we
believe Posner’s function
to be true….
(Emphasis supplied.)
(pp. 489 of Lawyers’
Behavior and Judicial
Decision-Making)
A somewhat more
plausible case can be
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%2
0number%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 Posner’s 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 Posner’s 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 Posner’s 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 individual’s utility is one of the core principles
on which the study of an individual’s 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 Posner’s
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 Posner’s 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 alone–judges 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 write–opinions scrutinized by litigants, attorneys, other judges, and the public–are
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 judge’s 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 people’s 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 Justice’s

written opinions. In the democratic framework, it is the only way by which the public can
check the performance of such public officer’s 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 Court’s Educative Function

The Court’s 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
country’s 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 court’s 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 narrowly–suggesting 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
Court’s 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
clients…The 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 cases–though 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-à-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 cut-and-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

SEPARATE DISSENTING OPINION

CARPIO MORALES, J.:

I join Justice Antonio T. Carpio’s 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 thanculpable 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 member’s 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 former’s 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 Court’s Internal Rules provides:

SEC. 13. Ethics Committee. – In addition to the above, a permanent Committee on

Ethics and Ethical Standardsshall 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 Court’s 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 Purisima’s 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 Purisima’s 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 ₱500,000.00, 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
Court’s 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 Court’s 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 Limkaichongcases 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 ₱10,000.00 and ₱5,000.00, 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 Cabalquinto15which 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
Court’s 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
Castillo’s "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, ₱10,000.00, 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
Court’s 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

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 Judgment’s arguments for dismissing [their] petition[,] when in truth, the
plagiarized sources even make a strong case for the Petition’s 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 Castillo’s letter, after which it
heard the parties. After the parties’ memoranda, the committee submitted its findings
and recommendations to the Court.
The Court’s 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 Castillo’s 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 Black’s Law Dictionary’s definition of plagiarism –
the deliberate and knowing presentation of another person’s original ideas or creative
expressions as one’s own – the Court declared that "plagiarism presupposes intent and
a deliberate, conscious effort to steal another’s work and pass it off as one’s own." In
fact, the Court found that by citing the foreign author’s 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 Committee’s finding that the omission of attributions to
Criddle-Descent 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
Castillo’s 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 Court’s October 12, 2010
Decision based mainly on her disagreement with the majority’s 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 Court’s 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 Court’s 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 Carpio’s 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 Judiciary’s 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 Constitution’s 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."23The 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] Court’s best interest, as contributing to the public’s
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 Court’s 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-à-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.
Court’s Interpretation of Plagiarism - limited to its Concept as an Ethical violation of
Members of the Judiciary.

The dissatisfaction with the Court’s October 12, 2010 Decision (resolving the plagiarism
charge against Justice del Castillo or the "plagiarism Decision") primarily lies with the
Court’s 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 another’s

work and pass it off as one’s 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 plagiarism’s popular definition and copyright’s 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 Castillo’s
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 Court’s 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 Castillo’s attribution lapses did not involve any
ethical violation. I vote for the approval of the Committee’s Report and for the denial of
the petitioners’ Motion for Reconsideration.

ARTURO D. BRION
Associate Justice
 SEPARATE CONCURRING OPINION

ABAD, J.:

I fully concur in the majority opinion and would like to react to the separate dissenting
opinions of Justices Antonio T. Carpio and Maria Lourdes P.A. Sereno.

Justice Carpio has again graced the Court’s rulings in this case with his typically incisive
dissenting opinion. Still, I cannot agree with his views. He asserts that the sole
disciplining authority of all impeachable officers, including the Justices of this Court, lies
in Congress. This is quite true but only with respect to impeachable offenses that
consist in "culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust,"1 all offenses that warrant the removal of
such officers and disqualification for holding any office in the government. 2 The
Supreme Court has no intention of exercising the power of impeachment that belongs to
Congress alone.

Certainly, however, the Supreme Court has the administrative authority to investigate
and discipline its members for official infractions that do not constitute impeachable
offenses. This is a consequence of the Court’s Constitutional power of "administrative
supervision over all courts and the personnel thereof."3 When the Court decided earlier
the plagiarism charge filed against Justice Mariano Del Castillo by the petitioners in
Vinuya, it was under a belief that "plagiarism," which is not even a statutory offense, is
an administrative infraction. The petitioners in that case did not themselves object to the
proceedings conducted by the Court’s Ethics Committee.

Subsequently, a complaint for impeachment was filed against Justice Del Castillo before
the House of Representatives based on the same charge of plagiarism. The Court
cannot do anything about that but it is not the Court, denying the motion for
reconsideration filed in the present case, which will provoke a constitutional crisis; if
ever, it is the House of Representatives that will do so, seeing that the Court has
already acted on such a charge under an honest belief that plagiarism is an
administrative rather than an impeachable offense.

Whether plagiarism is an administrative or an impeachable offense need not be decided

by the Court in this case since no actual dispute has arisen between Congress and the
Court regarding it.

As for the alleged violation of the copyright law in this case, it should be sufficient to
point out that no such charge has been lodged against Justice Del Castillo. What is
more, the Court has no original jurisdiction over copyright law violations. I reserve in the
appropriate case my view on whether or not lifting from copyrighted articles, without
attribution, solely for the purpose of rendering a decision, constitutes violation of the
copyright law.
Justice Sereno castigates the majority in the Court for lowering the standards for judicial
scholarship, negating the educative and moral directional value in the writing and
publishing of decisions, bending over backwards to deny the objective existence of
gross plagiarism, and condoning dishonesty in the exercise of a function central to the
role of the courts.

But our courts are in the business, not of "judicial scholarship," but of deciding fairly and
honestly the disputes before them, using precedents and legal literature that, according
to American scholars, belong to the public domain. If this is not honest work for a judge,
I do not know what is.

And Justice Sereno has no right to preach at the expense of the majority about
"educative and moral directional value" in writing published articles. For one thing, her
standards are obviously for work done in the academe, not for the judge plodding at his
desk to perform government work. For another, I note that on occasions she has
breached those very standards, lifting from works of others without proper attribution.

Take Justice Sereno’s article, Toward the Formulation of a Philippine Position in

Resolving Trade and Investment Disputes in APEC."4 Under the section subtitled "The
WTO Dispute Settlement Mechanism," she said in the footnote that "[t]his section is
drawn from Article XX and XXIII of the GATT 1994, Understanding on Dispute
Settlement, and Working Procedures." To me, this means that in writing the section, she
drew ideas from these four GATT issuances.

I am reproducing below the beginning portions of Justice Sereno’s work that are
relevant to this discussion. I underline what she copied verbatim from Annex 2 of the
General Agreement on Tariffs and Trade (GATT) 1994, entitled "Understanding on
Rules and Procedures Governing the Settlement of Disputes," or "Understanding on
Dispute Settlement" for short.

The WTO Dispute Settlement Mechanism

Dispute settlement under the WTO mechanism is the prompt settlement of situations in
which a member considers that any benefit accruing to it directly or indirectly under the
WTO Agreement is being impaired by measures taken by another member. A dispute
settlement mechanism aims to secure a positive solution to a dispute. Thus, a solution
mutually acceptable to the parties to a dispute is preferred. However, in the absence of
a mutually agreed solution, the first objective is usually to secure the withdrawal of
measures concerned. A measure is any internal act, whether a law, an administrative
action, or a judicial decision of a member.

The DSB is the WTO organ that is mandated to administer the rules and procedures
that govern the settlement of disputes. It is made up of the representatives of all the
members of the WTO. Each member is entitled to one vote.
The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or
reject panel and Appellate Body reports, (c) to maintain surveillance of the
implementation of rulings and recommendations, and (d) to authorize the suspension of
concessions and other obligations. It is understood that requests for conciliation and the
use of the dispute settlement procedures should not be viewed as contentious acts.
Members engage in this procedure to resolve disputes. [copied]

If a measure adopted by a country (A) within its territory impinges on, for example, the
exports of another country (B), the first step in dispute settlement is the filing of a
request for consultation by the complainant. In this case, B is the complainant.

If B requests consultation with A, then A must consider the complaint of B. A must reply
to the request within 10 days after its receipt and enter into consultations with B in good
faith within a period of 30 days from the date of the request, with a view to reaching a
mutually satisfactory solution. If A does not respond within 10 days, does not enter into
consultations within a period of 30 days from the filing of the request, and if the
consultation fails to settle a dispute within 60 days after the request for consultation,
then B may proceed to request the establishment of a panel.

Good offices, conciliation, and mediation may be requested at any time by any party to
a dispute. They may begin and be terminated at any time. Once they are terminated,
the complaining party can then request the establishment of a panel.

If the complaining party so requests, a panel may be established by the DSB. The
function of the panel is to assist the DSB in discharging its responsibilities. Accordingly,
a panel should make an objective assessment of the matter before it, including the facts
of the case and the applicability and conformity of the measure with the relevant
agreements. It should also make other findings that will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements,
besides consulting regularly with the parties to the dispute and giving them adequate
opportunity to develop a mutually satisfactory solution. [Copied]

The request for the establishment of a panel should be made in writing, indicate
whether consultations were held, identify the specific measures at issue, and provide a
brief summary of the legal basis of the complaint. [Copied]

xxxx

Notably, Justice Sereno began her above discussion with ideas presumably from her
four sources, which she put together and fashioned into her own sentences and
paragraphs. The ideas were from GATT but the presentation was original Sereno. Down
the line, however, without introduction or preamble, she copied verbatim into her work
portions from Understanding on Dispute Settlement, without citing this specific source.
More, she did not use quotation marks to identify the copied portions. She thus made
ordinary readers like me believe that she also crafted those portions. To borrow a word
from the civil code, she "co-mingled" the work of others with hers, erasing the identity of
the lifted work.

Justice Sereno’s explanation is that, since she was drawing from the rules embodied in
GATT’s Understanding on Dispute Settlement, she did not have to make attributions to
those rules at each turn of her writing. She may be correct if she in fact properly cited
those rules the first time she copied from it and, further, indicated a clear intent to do
further copying down the line. But she did not. Properly, she could have written:

xxxx

The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or
reject panel and Appellate Body reports, (c) to maintain surveillance of the
implementation of rulings and recommendations, and (d) to authorize the suspension of
concessions and other obligations. GATT’s Understanding on Dispute Settlement has a
lot to say about the subject and some are mentioned here. For one it says, "It is
understood that requests for conciliation and the use of the dispute settlement
procedures should not be … as contentious acts. Members engage in … procedure to
resolve disputes."

xxxx

Further, she did not identify the portions she copied verbatim in order to set them apart
from her own writing. Under the rule that she foists on Justice Del Castillo, quotation
marks must be used whenever verbatim quotes are made.5 This requirement is all the
more important since, unlike domestic rules, the rules of GATT are unfamiliar terrain to
most readers. Thus, at the next turn, she could have at least enclosed in quotation
marks the other portions she copied verbatim from her source like this:

If the complaining party so requests, a panel may be established by the DSB. "The
function of the panel is to assist the DSB in discharging its responsibilities. Accordingly,
a panel should make an objective assessment of the matter before it, including the facts
of the case and the applicability and conformity of the measure with the relevant
agreements. It should also make other findings that will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements …
consul … regularly with the parties to the dispute and giving them adequate opportunity
to develop a mutually satisfactory solution."

"The request for the establishment of a panel should be made in writing, indicate
whether consultations were held, identify the specific measures at issue, and provide a
brief summary of the legal basis of the complaint."

What is more, learned lawyers would always set apart the laws or rules that they cite or
invoke in their work since these are expressions of a higher grade than their comments
or opinions. A lawyer’s opinion can persuade but a rule or a law is binding. I have yet to
see a Supreme Court decision that copies verbatim a specific rule or law, which it
invokes to support such decision, without distinctly calling it what it is or citing its source.
Below is the rest of the verbatim copying that she made from Understanding on Dispute
Settlement in the section she wrote without attribution or quotation marks.
Sereno, J.
After receipt of comments from the
parties, the panel shall issue an
interim report to them, including both
the descriptive sections and the
panel’s findings and conclusions.
The parties may submit written
requests for the panel to review
precise aspects of the interim
report for which the panel shall meet
with the parties. If no comments are
received from any party within the
comment period, the interim report
shall be considered the final panel
report and circulated promptly to the
members. (page 7)
When a panel or the AB concludes
that a measure is inconsistent with a
covered agreement, it shall
recommend that the member
concerned bring the measure into
conformity with that agreement. In
addition to its recommendations, the
panel or AB may suggest ways by
which the member concerned could
implement the recommendations.
(page 8)
Original work - GATT Annex 2,
Understanding on Dispute Settlement
Following the expiration of the set
period of time for receipt of
comments from the parties to the
dispute, the panel shall issue an
interim report to the parties, including
both the descriptive sections and the
panel’s findings and conclusions.
Within a period of time set by the
panel, a party may submit a written
request for the panel to review
precise aspects of the interim report
prior to circulation of the final report
to the Members. At the request of a
party, the panel shall hold a further
meeting with the parties on the issues
identified in the written comments. If
no comments are received from any
party within the comment period, the
interim report shall be considered the
final panel report and circulated
promptly to the Members.
[Article 15.2, GATT Annex 2]
Where a panel or the Appellate Body
concludes that a measure is
inconsistent with a covered
agreement, it shall recommend that
the Member concerned bring the
measure into conformity with that
agreement. In addition to its
recommendations, the panel or
Appellate Body may suggest ways in
which the Member concerned could
implement the recommendations.
[Article 19.1, GATT Annex 2]
The DSB shall adopt the report within
60 days of the issuance of a panel
report to the members, unless one of
the parties to the dispute formally
notifies the DSB of its decision to
appeal, or the DSB decides by
consensus not to adopt the report. If
the panel report is on appeal, the
panel report shall not be considered
for adoption by the DSB until the
completion of the appeal. (page 7-8)
Within 60 days after the date of
circulation of a panel report to the
Members, the report shall be adopted
at a DSB meeting unless a party to
the dispute formally notifies the DSB
of its decision to appeal or the DSB
decides by consensus not to adopt
the report. If a party has notified its
decision to appeal, the report by the
panel shall not be considered for
adoption by the DSB until after
completion of the appeal.

[Article 16.4, GATT Annex 2]

It may uphold, modify, or reverse the The Appellate Body may uphold,
legal findings and conclusions of the modify or reverse the legal findings
panel. ( page 8) and conclusions of the panel.

[Article 17.13, GATT Annex 2]

Note that the AB reviews only issues An appeal shall be limited to issues of
of law covered in the panel report and law covered in the panel report and
legal interpretation developed by the legal interpretations developed by the
panel. (page 8) panel.

[Article 17.6, GATT Annex 2]

The DSB shall keep under
surveillance the implementation of
adopted recommendation or rulings.
Any member may raise the issue of
implementation of the
recommendations or rulings at the
DSB anytime following their adoption.
(page 8)
The DSB shall keep under
surveillance the implementation of
adopted recommendations or rulings.
The issue of implementation of the
recommendations or rulings may be
raised at the DSB by any Member at
any time following their adoption.
[Article 21.6, GATT Annex 2]

Going to another item in the same article, Justice Sereno copies significant lines from
Oppenheim’s Treatise without making an attribution to that work.

Sereno, J. Original work – Oppenheim’s Treatise

In mediation, the third party facilitates The difference between [good offices
the negotiations between the parties and mediation] is that, whereas good
concerned. It involves direct conduct offices consist in various kinds of
of negotiations between the parties at action tending to call negotiations
issue on the basis of proposals made between the conflicting States into
by the mediator. existence, mediation consists in a
direct conduct of negotiations
On the other hand, good offices are a between the differing parties on the
friendly offer by a third party, which basis of proposals made by the
tries to induce disputants to negotiate mediator.
among themselves. Such efforts
may consist of various kinds of [Oppenheim, International Law, A
actions tending to call negotiations Treatise volume 2 page 11 (1920)]
between conflicting states into
existence. (page 11)

Justice Sereno explains that "trite, common, standard statement[s]" like the ones she
copied from Oppenheim has "nothing original at all about [them]" and need no citation
or quotation marks. This is true. Indeed, the Court acknowledged in its October 12,
2010 decision that no plagiarism could be committed respecting "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." But I
cite the above because Justice Sereno would not grant to Justice Del Castillo the liberty
to use common definitions and terms in his ponencia without the correct attribution.

In the original draft of this concurring opinion that I circulated among the members of the
Court, I mentioned an article published in 2007 that Justice Sereno wrote with two
others entitled Justice and the Cost of Doing Business.6 I found that a portion of this
article appeared to have been reproduced without attribution from a 2005 publication,
the Asian Development Bank Country Governance Assessment (Philippines)
2005.7 Justice Sereno has since explained to my satisfaction that such portion came
from the three co-authors’ earlier 2001 report submitted to the World Bank (WB). I am
dropping it as a case of omission of attribution.

Parenthetically, however, in the academic model, "dual and overlapping submissions" is

a thesis writer’s sin. It simply means that the same academic work is submitted to gain
credit for more than one academic course.8 In the publishing world, while not prohibited
across the board, law journals and reviews frown upon authors who submit manuscripts
which have been previously published elsewhere, since the purpose of publication is the
circulation and distribution of original scholarship and the practice would permit the
author to be credited twice for the same work.

Notably, from the papers she furnished the members of the Court, it would seem that
the WB Danish Trust Fund commissioned and paid for the 2001 study that Justice
Sereno and her co-authors undertook. Indeed, the cover page of the WB paper she also
provided shows that it was part of the "Document of the World Bank." I would assume,
however, that Justice Sereno obtained WB authorization for the subsequent publication
of the report in 2007.
Next, in her memorandum for petitioners-intervenors Franklin M. Drilon and Adel A.
Tamano in Province of North Cotabato, et al. v. Government of the Republic of the
Philippines Peace and Panel on Ancestral Domain, et al.,9 Justice Sereno lifted a
famous phrase from the United States’ case of Baker v. Carr, 169 U.S. 180, without
making attribution to her source.

J. Sereno Original Work – Baker v. Carr

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.
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 discretion x x x

[Baker v. Carr, 169 U.S. 186]

Justice Sereno explains that, since she earlier cited Baker v. Carr in her memorandum,
it would be utterly pointless to require her to repeat her citation as often as excerpts
from the case appear down the line. It is not quite pointless because one who copies
from the work of another has an obligation, she insists in her dissent, to make an
attribution to his source. Otherwise, a writer can simply say at the start of his article that
he is copying from a list of named cases and it would be up to the reader to guess
where the copied portions are located in that article. An explanation like this from an
academician is disheartening.

In another article, Uncertainties Beyond The Horizon: The Metamorphosis of the WTO
Investment Framework In The Philippine Setting,10 Justice Sereno also copied from the
World Trade Organization fact sheet on line (prepared by the United States Department
of Agriculture) without using quotation marks, and made the material appear to be her
own original analysis. Thus:

J. Sereno Original Work – WTO Factsheet

The World Trade Organization
(WTO) was established on
January 1, 1995. It is a
multilateral institution charged
with administering rules for
trade among member
countries. The WTO functions
as the principal international
The World Trade Organization (WTO),
established on January 1, 1995, is a
multilateral institution charged with
administering rules for trade among
member countries. x x x
The WTO functions as the principal
international body concerned with
body concerned with
multilateral negotiations on the
reduction of trade barriers and
other measures that distort
competition. The WTO also
serves as a platform for
countries to raise their
concerns regarding the trade
policies of their trading
partners. The basic aim of the
WTO is to liberalize world trade
and place it on a secure basis,
thereby contributing to
economic growth and
development.
multilateral negotiations on the reduction of
trade barriers and other measures that
distort competition. The WTO also serves
as a platform for countries to raise their
concerns regarding the trade policies of
their trading partners. The basic aim of the
WTO is to liberalize world trade and place it
on a secure basis, thereby contributing to
economic growth and development.
[WTO FACTSHEET http://www.fas.usda.
gov/info/factsheets/wto.html (last accessed
February 13, 2008)]

Here again, Justice Sereno ignores her unbendable rule that one commits plagiarism by
his "[f]ailure to use quotation marks to indicate that the entire paragraph in the body of
the decision…was not the ponente’s original paragraph, but was lifted verbatim from
[another’s] work."

In his book entitled Economic Analysis of Law (2nd edition, 1977), Judge Richard A.
Posner wrote:

xxx Hence, settlement negotiations will fail, and litigation ensue, only if the minimum
price that the plaintiff is willing to accept in compromise of his claim is greater than the
maximum price the defendant is willing to pay in satisfaction of that claim. (At p. 435)

Justice Sereno copied the above verbatim in her article entitled Lawyers’ Behavior and
Judicial Decision-Making11published in the Philippine Law Journal, without quotation
marks or attribution to Judge Posner. Thus, she wrote:

xxx [S]ettlement 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. (At page 483)

In other sections of the same article that Justice Sereno wrote, she either copied
verbatim from Judge Posner or mimicked his ideas without attributing these to him.
Thus:

Judge Posner wrote --

A somewhat more plausible case can be made that judges might slant their decisions in
favour of powerful interest groups in order to increase the prospects of promotion to
higher office, judicial or otherwise. xxx (At p. 416)
Justice Sereno mimicked --

The third is that the judge maximizes the prospects of his promotion to a higher office by
slanting his decisions in favor of powerful interest groups. (page 489)

Judge Posner wrote --

Presumably judges, like the rest of us, seek to maximize a utility function that includes
both monetary and non-monetary elements xxx. (At p. 415)

Justice Sereno mimicked --

In understanding judicial behaviour we have to assume that judges like all economic
actors maximize a utility function. This function in all probability includes material as well
as non-material factors. xxx (At page 489)

Judge Posner wrote --

[T]he 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 in his
decisions. [At p. 415]

Justice Sereno mimicked --

The first is that the American judicial system have rules designed to minimize the
possibilities of a judge maximizing his financial interest by receiving a bribe from a
litigant or from acceding to a politically powerful interest group by making the rules work
in such a manner as to create disincentives for the judge ruling in such a manner (page
489)

Judge Posner wrote --

It is often argued, for example, that the judge who owns land will decide in favor of
landowners, the judge who walks to work will be in favour of pedestrians. Posner, 415]

Justice Sereno mimicked --

The second proceeding from the first is that the judge maximizes the interest of the
group to which he belongs. If he belongs to the landowning class he will generally favor
landowners and if he walks to work, he will generally favor pedestrians. (page 489)

Judge Posner wrote --

[J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416]
Justice Sereno mimicked--

The last is that judges maximize their influence on society by imposing their values,
tastes and preferences thereon. (page 489)

Using the severe standards she sets for Justice Del Castillo in Vinuya, i.e., "objective
existence of plagiarism," I am afraid that any explanation of good faith or lack of
malicious intent on Justice Sereno’s part in copying without proper attribution from the
work of Judge Posner would not be acceptable.

Still I can concede that Justice Sereno may not have intended to plagiarize the work of
others even if she copied verbatim from them without proper attribution or quotation
marks. Her above articles were, taken as whole, essentially hers. I regret, however, that
since she wrote them as an academician bound by the high standards that she and the
University of the Philippines where she taught espouse, she may have failed, borrowing
her own phrase, to set the correct "educative and moral directional value" for the young.

Justice Del Castillo, who did not write as an academician but as a judge, is at least
entitled to the liberties granted judges in writing decisions.

I vote to DENY the motion for reconsideration filed in this case.

ROBERTO A. ABAD
Associate Justice
A.M. No. 10-10-4-SC October 19, 2010

Re: Letter of the UP Law Faculty entitled "Restoring Integrity: A Statement by the
Faculty of the University of the Philippines College of Law on the Allegations of
Plagiarism and Misrepresentation in the Supreme Court."

RESOLUTION

VILLARAMA, JR., J.:

Plagiarism is 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.1

Allegations of this intellectual offense were hurled by Atty. Harry L. Roque, Jr. and Atty.
Romel R. Bagares against Justice Mariano C. Del Castillo for his ponencia in the case
of Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010. In said case, the
Court denied the petition for certiorari filed by Filipino comfort women to compel certain
officers of the executive department2 to espouse their claims for reparation and demand
apology from the Japanese government for the abuses committed against them by the
Japanese soldiers during World War II. Attys. Roque and Bagares represent the comfort
women in Vinuya v. Executive Secretary, which is presently the subject of a motion for
reconsideration.

The authors and their purportedly plagiarized articles are: (1) Evan J. Criddle and Evan
Fox-Decent from their article, "A Fiduciary Theory of Jus Cogens" published in 2009 in
the Yale Journal of International Law; (2) Christian J. Tams from his book, "Enforcing
Erga Omnes Obligations in International Law" published by the Cambridge University
Press in 2005; and (3) Mark Ellis from his article, "Breaking the Silence: On Rape as an
International Crime" published in the Case Western Reserve Journal of International
Law in 2006. The allegations of plagiarism centered on Justice Del Castillo’s discussion
of the principles of jus cogens and erga omnes.

On August 9, 2010, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A.

Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P.
Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J.
Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J.
Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel,
Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza,
Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D.
Villanueva, and Dina D. Lucenario, members of the faculty of the University of the
Philippines College of Law published a statement on the allegations of plagiarism and
misrepresentation relative to the Court’s decision in Vinuya v. Executive Secretary.
Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic
M.V.F. Leonen, calls for the resignation of Justice Mariano C. Del Castillo in the face of
allegations of plagiarism in his work.

Notably, while the statement was meant to reflect the educators’ opinion on the
allegations of plagiarism against Justice Del Castillo, they treated such allegation not
only as an established fact, but a truth. In particular, they expressed dissatisfaction over
Justice Del Castillo’s explanation on how he cited the primary sources of the quoted
portions and yet arrived at a contrary conclusion to those of the authors of the articles
supposedly plagiarized.

Beyond this, however, the statement bore certain remarks which raise concern for the
Court. The opening sentence alone is a grim preamble to the institutional attack that lay
ahead. It reads:

An extraordinary act of injustice has again been committed against the brave Filipinas
who had suffered abuse during a time of war.

The first paragraph concludes with a reference to the decision in Vinuya v. Executive
Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land. The authors also not only assumed that Justice Del Castillo
committed plagiarism, they went further by directly accusing the Court of perpetrating
extraordinary injustice by dismissing the petition of the comfort women in Vinuya v.
Executive Secretary. They further attempt to educate this Court on how to go about the
review of the case.

The insult to the members of the Court was aggravated by imputations of deliberately
delaying the resolution of the said case, its dismissal on the basis of "polluted sources,"
the Court’s alleged indifference to the cause of petitioners, as well as the supposed
alarming lack of concern of the members of the Court for even the most basic values of
decency and respect. Paragraph 9 of their published statement reads,

But instead of acting with urgency on this case, the Court delayed its resolution for
almost seven years, oblivious to the deaths of many of the petitioners seeking justice
from the Court. When it dismissed the Vinuya petition based on misrepresented and
plagiarized materials, the Court decided this case based on polluted sources. By doing
so, the Supreme Court added insult to injury by failing to actually exercise its "power to
urge and exhort the Executive Department to take up the claims of the Vinuya
petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies
(sic) [betrays] a more alarming lack of concern for even the most basic values of
decency and respect. (Emphasis supplied).1avvphi1

The publication of a statement by the faculty of the UP College of Law regarding the
allegations of plagiarism and misrepresentation in the Supreme Court was totally
unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is
the ongoing investigation precisely to determine the truth of such allegations. More
importantly, the motion for reconsideration of the decision alleged to contain plagiarized
materials is still pending before the Court. We made it clear in the case of In re
Kelly3 that any publication, pending a suit, reflecting upon the court, the jury, the parties,
the officers of the court, the counsel with reference to the suit, or tending to influence
the decision of the controversy, is contempt of court and is punishable.

While most agree that the right to criticize the judiciary is critical to maintaining a free
and democratic society, there is also a general consensus that healthy criticism only
goes so far. Many types of criticism leveled at the judiciary cross the line to become
harmful and irresponsible attacks. These potentially devastating attacks and unjust
criticism can threaten the independence of the judiciary.4 The court must "insist on
being permitted to proceed to the disposition of its business in an orderly manner, free
from outside interference obstructive of its functions and tending to embarrass the
administration of justice."5

The Court could hardly perceive any reasonable purpose for the faculty’s less than
objective comments except to discredit the April 28, 2010 Decision in the Vinuya case
and undermine the Court’s honesty, integrity and competence in addressing the motion
for its reconsideration. As if the case on the comfort women’s claims is not controversial
enough, the UP Law faculty would fan the flames and invite resentment against a
resolution that would not reverse the said decision. This runs contrary to their obligation
as law professors and officers of the Court to be the first to uphold the dignity and
authority of this Court, to which they owe fidelity according to the oath they have taken
as attorneys, and not to promote distrust in the administration of justice.6 Their actions
likewise constitute violations of Canons 10, 11, and 137 and Rules 1.02 and 11.058 of
the Code of Professional Responsibility.91awp++il

WHEREFORE, in light of the foregoing, Attys. Marvic M.V.F. Leonen, Froilan M.

Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V.
Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T.
Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F.
Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P.
Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig,
Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La
Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo,
Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua,
Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty
of the University of the Philippines College of Law, are directed to SHOW CAUSE,
within ten (10) days from receipt of a copy of this Resolution, why they should not be
disciplined as members of the Bar for violation of Canons 10, 11, and 13 and Rules 1.02
and 11.05 of the Code of Professional Responsibility.

Further, Dean Marvic M.V.F. Leonen is directed to SHOW CAUSE, within ten (10) days
from receipt of this Resolution, why he should not be disciplinarily dealt with for violation
of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting, through his letter dated
August 10, 2010, during the pendency of G.R. No. 162230, Vinuya v. Executive
Secretary and of the investigation before the Committee on Ethics and Ethical
Standards, for the consideration of the Court En Banc, a dummy which is not a true and
faithful reproduction of the purported statement, entitled "Restoring Integrity: A
Statement by the Faculty of the University of the Philippines College of Law on the
Allegations of Plagiarism and Misrepresentation in the Supreme Court." Enclosed are
copies of the said dummy and signed statement, respectively, attached to the said letter
dated August 10, 2010 and to the Compliance dated August 31, 2010 filed by Roque &
Butuyan Law Offices with the Committee on Ethics and Ethical Standards.

Let this matter be DOCKETED as a regular administrative matter.

Let service of this Resolution upon the above-named UP College of Law faculty
members be effected by personal delivery.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

(On leave)
ANTONIO T. CARPIO
CONCHITA CARPIO MORALES*
Associate Justice
Associate Justice

ANTONIO EDUARDO B.
PRESBITERO J. VELASCO, JR.
NACHURA
Associate Justice
Associate Justice

TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

(On leave)
MARIANO C. DEL CASTILLO
ROBERTO A. ABAD*
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice
 MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions
in the above Resolution had been reached in consultation before the case was assigned
to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

DISSENTING OPINION

CARPIO MORALES, J.:

The Resolution directs certain members of the law faculty of the University of the
Philippines (UP) to "SHOW CAUSE x x x why they should not be disciplined as
members of the Bar for violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of
the Code of Professional Responsibility."1

The Resolution demonstrates nothing but an abrasive flexing of the judicial muscle that
could hardly be characterized as judicious. This knee-jerk response from the Court
stares back at its own face, since this judicial act is the one that is "totally unnecessary,
uncalled for and a rash act of misplaced vigilance."2

The road embarked by the Court as paved by the Resolution leads the Court into an
autocratic pit with only an artificial twig of "independence of the judiciary" to hang on to
somewhere in that precarious cliff where public esteem shall ultimately reckon what
"dignity of the Court" means. I regret that I could not join in treading such crooked road.

The institution of a disciplinary action

smacks of injudiciousness

In instituting the proceedings3 against the UP law faculty, the Court appears to be
lending only a semblance of due process by ordering them to answer the administrative
charges. The Resolution is replete with conclusions that already adjudge them guilty of
violating the canons of ethics. Aside from concluding that the publication of the
statement of the UP law faculty was "totally unnecessary, uncalled for and a rash act of
misplaced vigilance," the Resolution classifies it as an "institutional attack" and an
"insult to the members of the Court."4 The Court has already determined that it "could
hardly perceive any reasonable purpose for the faculty’s less than objective
comments"5 that "fan the flames and invite resentment."6 The adverse declarations
describing the written work of the UP law faculty operate to their prejudice since that
would render any subsequent proceeding illusory, because the Court, which would
ultimately decide the administrative case, has already made up its mind even before
hearing the parties.

Worse, the Resolution is not what it purports to be. Ostensibly, the Resolution is a show
cause order that initiates what would become a newly docketed regular administrative
matter. There is more than meets the eye, however. When stripped of its apparent
complexion, the Resolution shows its true colors and presents itself as a
pronouncement of guilt of indirect contempt, without proper recourse left to the parties.
Without the benefit of a hearing and extensively quoting cases involving contempt, the
Resolution admonishes:

x x x We made it clear in the case of In re Kelly that any publication, pending a suit,
reflecting upon the court, the jury, the parties, the officers of the court, the counsel with
reference to the suit, or tending to influence the decision of the controversy, is contempt
of court and is punishable.

While most agree that the right to criticize the judiciary is critical to maintaining a free
and democratic society, there is also a general consensus that healthy criticism only
goes so far. Many types of criticism leveled at the judiciary cross the line to become
harmful and irresponsible attacks. These potentially devastating attacks and unjust
criticism can threaten the independence of the judiciary. The Court must "insist on being
permitted to proceed to the disposition of its business in an orderly manner, free from
outside interference obstructive of its functions and tending to embarrass the
administration of justice."7

Contempt, whether direct or indirect, may be civil or criminal depending on the nature
and effect of the contemptuous act. Criminal contempt is "conduct directed against the
authority and dignity of the court or a judge acting judicially; it is an act obstructing the
administration of justice which tends to bring the court to disrepute or disrespect." On
the other hand, civil contempt is the failure to do something ordered to be done by a
court or a judge for the benefit of the opposing party therein and is therefore, an offense
against the party in whose behalf the violated order was made. If the purpose is to
punish, then it is criminal in nature; but if to compensate, then it is civil.8 Intent is a
necessary element in criminal contempt, and no one can be punished for criminal
contempt unless the evidence makes it clear that he intended to commit it. 9

It is highly injudicious to anchor a motu proprio disciplinary action on an irregularly

concluded finding of indirect contempt.

The dignity of the Court will suffer none

by passing it in silence

No class of the community ought to be allowed freer scope in the expression or

publication of opinion as to the capacity, impartiality or integrity of judges than members
of the bar.10 For the most part of the existence of the judiciary, the legal academia has
been an able partner in the administration of justice and a resource provider in various
avenues of capacity building. Throughout these years, they have extended aid and
offered proposals in countless ways with no other interest but to pursue the noblest
intentions of improving the judicial system. A number of law professors/newspaper
columnists have also "attempt[ed] to educate this Court on how to go about the
review"11 of certain cases. The Court has taken them without losing equilibrium.

It is not unusual that unsolicited suggestions and unconstructive criticisms, oftentimes

fashioned in an ardent manner, finds their way into the Court’s sensibilities and
sensitivities. Most recently, various groups have once again turned to media to air their
advocacies in support of or in opposition to the contentious issues involved in the
Hacienda Luisita case. A few months ago, at the height of the "CJ Appointment Issue"
and during the pendency of the motion for reconsideration, a number of hard manifestos
and harsh articles saw print, which were no less intense than this plagiarism issue. The
Court cannot close its eyes to the fact that certain quarters even pushed for the early
resignation of Chief Justice Puno to save the Court from resolving the issue, and of the
other Justices to save face. But the Court did not lift its finger. What is so special with
the present case that disconcerts the Court, drawing it to institute this case against
professors of a particular law school?

Unless the Court intends to busy itself into consistently engaging in a judicial witch hunt
against its detractors, it is more in keeping with the Court’s dignity not to dignify each
and every write-up that is taken to vilify it, and console itself with the number of
testimonials, written or living, that vivify the judiciary.

It has been insightfully explained and suggested that a judge will generally and wisely
pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it
with simply a reproof. It is so that in every case where a judge decides for one party, he
decides against another; and oftentimes both parties are beforehand equally confident
and sanguine. The disappointment, therefore, is great, and it is not in human nature that
there should be other than a bitter feeling, which often reaches to the judge as the
cause of the supposed wrong. A judge, therefore, ought to be patient, and tolerate
everything which appears as but the momentary outbreak of disappointment. A second
thought will generally make a party ashamed of such outbreak, and the dignity of the
court will suffer none by passing it in silence.12 (underscoring supplied)

Although as a human being, a person naturally gets pissed off by hurtful words, it would
not hurt the Court as an institution and the law as a profession if it passes off the
statement of the UP law faculty at this time.

CONCHITA CARPIO MORALES

Associate Justice
 DISSENTING OPINION

SERENO, J.:

Ordering the 37 respondent members of the UP Law Faculty to "show cause" in this
indirect contempt case is like ordering the little boy who exclaimed that "the emperor
has no clothes" to explain why he should not be crucified for his public observation. It is
true that the little boy in the present case may have aggravated the situation by adding
that the unclothed emperor did not present a flattering figure in his natural state, but the
analogy remains true – that the subject UP Law Faculty members have been
prematurely adjudged guilty and asked to explain why such prejudgment should be
reversed simply for expressing what they believed was the truth. There may have been
exaggeration in the UP Law Faculty's process of expression, but this tempest is nothing
that the Supreme Court has not similarly weathered in the past and faced with
equanimity. What is so grievous about this whole contempt proceeding is that it comes
in the wake of the gross injury that the Court has inflicted upon the virtue of honesty in
learned discourses by labeling plagiarism as not plagiarism in the related case involving
one of its members.1

With all due respect to my colleagues, it is not the place of the Court to seek revenge
against those who, in their wish to see reform in the judiciary, have the courage to say
what is wrong with it. The Court finds its legitimacy in demonstrating its moral vein case
after case, not in flaunting its judicial brawn. There is nothing to be gained for the
administration of justice in not letting this one instance pass just because feelings have
been hurt and the urge to retaliate must be satisfied. If the 37 members of the UP Law
Faculty are wrong, there will be recompense in their loss of esteem among the
academic community and the legal profession. But if they are right, then the Court will
have made martyrs out of those who – in their temporary passion – may have acted
recklessly but truthfully and sincerely. Indeed, should they be proven right, they may
even rise in esteem in the eyes of international academic and legal circles, for being the
object of prosecution by one’s Supreme Court for bold but intelligent reformist language
can be deemed a badge of honor similar to that bequeathed by history to the great
thinkers who were persecuted by society’s reactionary forces.

Indirect contempt is committed in any of the acts enumerated in Section 3, Rule 71 of

the Rules of Court. The majority Resolution, which is the written charge required by said
rule, fails to cite which particular mode of committing indirect contempt appears to have
been violated. It is axiomatic to due process that the accused be informed specifically of
the charge against them. A proceeding for indirect contempt is criminal in nature; thus,
adherence to due process is more stringently required of this Court.

From a reading of the majority Resolution, it can be inferred that the following constitute
the portions of the text of the UP Law Faculty Statement that draw the charge of indirect
contempt: (a) the accusation that "an extraordinary act of injustice has been committed
against the brave Filipinas who suffered abuse during a time of war"; (b) the casting of
the decision as "a reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land"; (c) the further attempt to educate the Court on how to go about the
review of the case; (d) imputations of deliberately delaying the resolution of the Vinuya
case; (e) the dismissal of the petition on the basis of "polluted sources"; (f) alleged
indifference to the cause of petitioners; (g) the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and respect. The
majority Resolution believes that the UP Law Faculty's comments have no purpose
other than to "discredit the April 28, 2010 Decision in the Vinuya case and undermine
the Court's honesty, integrity and competence in addressing the motion for its
reconsideration." (Emphasis supplied.)

Despite the description of what it considers the allegedly offending language of the
Faculty Statement, the majority Resolution must still identify the specific paragraph of
Section 3, Rule 71 of which the UP Law Faculty appears guilty and must not leave it to
the reader to infer the basis of the complaint for indirect contempt.

Beyond the majority Resolution's failure to satisfy the technical requirements of Section
3, Rule 71 is the failure to see the purpose for vesting the Court with contempt powers.
Contempt powers are given to and inhere in the judicial function because these are
indispensable to the administration of justice. Thus, such powers must be exercised
only when there is a causal relationship between the act sought to be reproved and the
positive effect such reproof would have on the administration of justice. Sans this causal
relationship, the exercise may be viewed as tinged with vindictiveness. It must be kept
in mind that Rule 71 under Section 3 (c) and (d) is concerned with the "processes and
proceedings of a court" and the "administration of justice," not with the personal
convenience of a judge.

This Court, as complaining party, must state plainly how its ability to view the motion for
reconsideration of the Vinuya decision can be affected in any way by the UP Law
Faculty's statement. It must also state plainly how its ability to enforce its future orders
would be eroded by the release of the UP Law Faculty Statement. The milieu in which
the Vinuya decision was received by the public is well-known. It is not as if any outrage
at the Vinuya decision was caused by the UP Law Faculty Statement alone. It is also
incredible how the Court can claim that its honesty, integrity and competence could be
eroded by an extraneous act of any person other than itself. Either one is honest, has
integrity, or is competent – or he is not. No one can undermine those qualities other
than the one in whom they inhere.

Even more important to keep in mind is the apparently redemptive intent of the UP Law
Faculty when it issued its statement. The statement is headlined by the phrase
"Restoring Integrity." In the second paragraph, the Faculty says: "Given the Court's
recent history and the controversy that surrounded it, it cannot allow the charges of
such clear and obvious plagiarism to pass without sanction, as this would only further
erode faith and confidence in the judicial system." In the next paragraph, it says: "The
Court cannot regain its credibility and maintain its moral authority without ensuring that
its own conduct, whether collectively or through its members, is beyond reproach." In
the same paragraph, it further says: "It is also a very crucial step in ensuring the position
of the Supreme Court as the final arbiter of all controversies: a position that requires
competence and integrity completely above any and all reproach, in accordance with
the exacting demands of judicial and professional ethics."

These statements indicate the Faculty’s passionate desire to see the torch of justice
carried with honor and dignity by the highest court of the land, its steps unfaltering from
moral or professional weakness. Instead of denigrating the Court, the Faculty wants the
Court to remain the champion of justice, but the Court can only remain so if it
demonstrates beyond question that it remains faithful to the ideals of truth and justice in
every form, including in the honesty with which it makes use of its reference materials.
The UP Law Faculty has in fact not only suggested ways by which the Court can uphold
this role vis-à-vis the Vinuya decision, suggestions that this Court may ignore – it has
fearlessly articulated a thought that is already so common in the minds of Philippine law
practitioners: that sacrifice must accompany the act of atonement required of this Court
for a breach of the standards of professional ethics.

Neither can I agree that Dean Marvic Leonen should be asked to show cause why he
should not be punished for sending the Chief Justice mere dummies of the statement. In
most cases, this Court merely gives the parties’ counsel the opportunity to satisfy the
missing requirements. In any case, he has already submitted the signed original
statement, so what is the Court fretting over? This use of a heavy hand on a small
matter is profoundly disturbing.

The reason, I think, is that this Court has already prejudged the respondents. Reviewing
the events, I realize that the language used in the majority Decision in the matter of the
plagiarism charges2, and the circumstances under which this "show cause" order is
being issued, paint a chilling picture of the Court. When the UP Law Faculty statement
was issued, the Court was taken aback, teetering a little from the blast of what they
thought was the power of 81 signatures of the UP Law Faculty, including that of a
retired justice. Then it found out that Dean Leonen, when ordered, was actually ready to
transmit a statement with only 37 signatures. The Court recovered its composure and
seethed that it could have been so destabilized. This turn of events may account for the
victorious tone used by the plagiarism majority Decision when it referred to the UP Law
Faculty Statement as a statement that had "appeared like solid teeth in the dummy [but]
turned out to be broken teeth in the original . . . [a]nd retired Justice V.V. Mendoza did
not sign the statement, contrary to what the dummy represented." It seems to have
gloated over the realization that now the antagonist is more manageable, consisting
only of these 37 law professors, sans any retired Supreme Court justice. With more
reason should the Court evaluate its mental and emotional frame before issuing the
"show cause" order. Is it ready to squarely face the fact that the moral consequences of
the plagiarism majority Decision are too horrible to imagine?

The timing of the "show cause" order; the implication in the related Decision 3 that the
complainants in the plagiarism charge against Justice del Castillo are "hypocrites"; the
needling over a small matter such as submission of a dummy vis-à-vis the original
signed copies; and the apparent effect that the submission of the Statement had on the
Court – all of these betray a Court that is bent on seeing itself redeemed not by hard
and honest work, with the undertaking of proper remedial actions for when a member is
in breach of ethics, but by showing who, in the land of lawyers, has power.

It is with sadness that I view the issuance of the "show cause" order embodied in the
majority Resolution and dissent therefrom.

MARIA LOURDES P. A. SERENO

Associate Justice
 ARTICLE XIV
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS

EDUCATION

Section 1. The State shall protect and promote the right of all citizens to quality
education at all levels, and shall take appropriate steps to make such education
accessible to all.

Section 2. The State shall:

1. Establish, maintain, and support a complete, adequate, and integrated system of

education relevant to the needs of the people and society;
2. Establish and maintain, a system of free public education in the elementary and
high school levels. Without limiting the natural rights of parents to rear their
children, elementary education is compulsory for all children of school age;
3. Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in
both public and private schools, especially to the under-privileged;
4. Encourage non-formal, informal, and indigenous learning systems, as well as
self-learning, independent, and out-of-school study programs particularly those
that respond to community needs; and
5. Provide adult citizens, the disabled, and out-of-school youth with training in
civics, vocational efficiency, and other skills.

Section 3.

1. All educational institutions shall include the study of the Constitution as part of
the curricula.
2. They shall inculcate patriotism and nationalism, foster love of humanity, respect
for human rights, appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and technological
knowledge, and promote vocational efficiency.
3. At the option expressed in writing by the parents or guardians, religion shall be
allowed to be taught to their children or wards in public elementary and high
schools within the regular class hours by instructors designated or approved by
the religious authorities of the religion to which the children or wards belong,
without additional cost to the Government.

Section 4.
 1. The State recognizes the complementary roles of public and private institutions in
the educational system and shall exercise reasonable supervision and regulation
of all educational institutions.
2. Educational institutions, other than those established by religious groups and
mission boards, shall be owned solely by citizens of the Philippines or
corporations or associations at least sixty per centum of the capital of which is
owned by such citizens. The Congress may, however, require increased Filipino
equity participation in all educational institutions. The control and administration
of educational institutions shall be vested in citizens of the Philippines.

No educational institution shall be established exclusively for aliens and no group

of aliens shall comprise more than one-third of the enrollment in any school. The
provisions of this sub section shall not apply to schools established for foreign
diplomatic personnel and their dependents and, unless otherwise provided by
law, for other foreign temporary residents.

3. All revenues and assets of non-stock, non-profit educational institutions used

actually, directly, and exclusively for educational purposes shall be exempt from
taxes and duties. Upon the dissolution or cessation of the corporate existence of
such institutions, their assets shall be disposed of in the manner provided by law.

Proprietary educational institutions, including those cooperatively owned, may

likewise be entitled to such exemptions, subject to the limitations provided by
law, including restrictions on dividends and provisions for reinvestment.

4. Subject to conditions prescribed by law, all grants, endowments, donations, or

contributions used actually, directly, and exclusively for educational purposes
shall be exempt from tax.

Section 5.

1. the State shall take into account regional and sectoral needs and conditions and
shall encourage local planning in the development of educational policies and
programs.
2. Academic freedom shall be enjoyed in all institutions of higher learning.
3. Every citizen has a right to select a profession or course of study, subject to fair,
reasonable, and equitable admission and academic requirements.
4. The State shall enhance the right of teachers to professional advancement. Non-
teaching academic and non-academic personnel shall enjoy the protection of the
State.
5. The State shall assign the highest budgetary priority to education and ensure that
teaching will attract and retain its rightful share of the best available talents
through adequate remuneration and other means of job satisfaction and
fulfillment.

LANGUAGE
Section 6. The national language of the Philippines is Filipino. As it evolves, it shall be
further developed and enriched on the basis of existing Philippine and other languages.

Subject to provisions of law and as the Congress may deem appropriate, the
Government shall take steps to initiate and sustain the use of Filipino as a medium of
official communication and as language of instruction in the educational system.

Section 7. For purposes of communication and instruction, the official languages of the
Philippines are Filipino and, until otherwise provided by law, English.

The regional languages are the auxiliary official languages in the regions and shall
serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

Section 8. This Constitution shall be promulgated in Filipino and English and shall be
translated into major regional languages, Arabic, and Spanish.

Section 9. The Congress shall establish a national language commission composed of

representatives of various regions and disciplines which shall undertake, coordinate,
and promote researches for the development, propagation, and preservation of Filipino
and other languages.

SCIENCE AND TECHNOLOGY

Section 10. Science and technology are essential for national development and
progress. The State shall give priority to research and development, invention,
innovation, and their utilization; and to science and technology education, training, and
services. It shall support indigenous, appropriate, and self-reliant scientific and
technological capabilities, and their application to the country's productive systems and
national life.

Section 11. The Congress may provide for incentives, including tax deductions, to
encourage private participation in programs of basic and applied scientific research.
Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving
science students, researchers, scientists, inventors, technologists, and specially gifted
citizens.

Section 12. The State shall regulate the transfer and promote the adaptation of
technology from all sources for the national benefit. It shall encourage the widest
participation of private groups, local governments, and community-based organizations
in the generation and utilization of science and technology.

Section 13. The State shall protect and secure the exclusive rights of scientists,
inventors, artists, and other gifted citizens to their intellectual property and creations,
particularly when beneficial to the people, for such period as may be provided by law.
 ARTS AND CULTURE

Section 14. The State shall foster the preservation, enrichment, and dynamic evolution
of a Filipino national culture based on the principle of unity in diversity in a climate of
free artistic and intellectual expression.

Section 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nation's historical and cultural heritage and
resources, as well as artistic creations.

Section 16. All the country's artistic and historic wealth constitutes the cultural treasure
of the nation and shall be under the protection of the State which may regulate its
disposition.

Section 17. The State shall recognize, respect, and protect the rights of indigenous
cultural communities to preserve and develop their cultures, traditions, and institutions.
It shall consider these rights in the formulation of national plans and policies.

Section 18.

1. The State shall ensure equal access to cultural opportunities through the
educational system, public or private cultural entities, scholarships, grants and
other incentives, and community cultural centers, and other public venues.
2. The State shall encourage and support researches and studies on the arts and
culture.

SPORTS

Section 19.

1. The State shall promote physical education and encourage sports programs,
league competitions, and amateur sports, including training for international
competitions, to foster self-discipline, teamwork, and excellence for the
development of a healthy and alert citizenry.
2. All educational institutions shall undertake regular sports activities throughout the
country in cooperation with athletic clubs and other sectors.
G.R. No. L-40779 November 28, 1975

EPICHARIS T. GARCIA, petitioner,

vs.
THE FACULTY ADMISSION COMMITTEE, LOYOLA SCHOOL OF THEOLOGY,
herein represented by FR. ANTONIO B. LAMBINO, respondent.

Epicharis T Garcia in her own behalf.

Bengzon, Villegas, Zarraga, Narciso and Cudala for respondents.

FERNANDO, J.:

The specific issue posed by this mandamus proceeding to compel the Faculty
Admission Committee of the Loyola School of Theology, represented by Father Antonio
B. Lambino, to allow petitioner Epicharis T. Garcia, to continue studying therein is
whether she is deemed possessed of such a right that has to be respected. That is
denied not only on general principle, but also in view of the character of the particular
educational institution involved. It is a seminary. It would appear therefore that at most
she can lay claim to a privilege, no duty being cast on respondent school. Moreover, as
a reinforcement to such an obvious conclusion, there is the autonomy recognized by the
Constitution in this explicit language: "All institutions of higher learning shall enjoy
academic freedom."1 The petition must therefore fail.

Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for studies
leading to an M.A. in Theology; 4. That on May 30, 1975, when Petitioner wanted to
enroll for the same course for the first semester, 1975-76, Respondent told her about
the letter he had written her, informing her of the faculty's decision to bar her from re-
admission in their school; 5. That the reasons stated in said letter, dated May 19, 1975
... do not constitute valid legal ground for expulsion, for they neither present any
violation of any of the school's regulation, nor are they indicative of gross misconduct; 6.
That from June 25, 1975, Petitioner spent much time and effort in said school for the
purpose of arriving at a compromise that would not duly inconvenience the professors
and still allow her to enjoy the benefits of the kind of instruction that the school has to
offer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's Director, that
the compromises she was offering were unacceptable, their decision was final, and that
it were better for her to seek for admission at the UST Graduate School; 7 Petitioner
then subsequently made inquiries in said school, as to the possibilities for her pursuing
her graduate studies for an for M.A. in Theology, and she was informed that she could
enroll at the UST Ecclesiastical Faculties, but that she would have to fulfill their
requirements for Baccalaureate in Philosophy in order to have her degree later in
Theology — which would entail about four to five years more of studies — whereas in
the Loyola School of Studies to which she is being unlawfully refused readmission, it
would entail only about two years more; 8. That Petitioner, considering that time was of
the essence in her case, and not wanting to be deprived of an opportunity for gaining
knowledge necessary for her life's work, enrolled as a special student at said UST
Ecclesiastical Faculties, even if she would not thereby be credited with any academic
units for the subject she would take; 9. That Petitioner could have recourse neither to
the President of her school, Fr. Jose Cruz, he being with the First Couple's entourage
now in Red China, nor with the Secretary of Education, since this is his busiest time of
the year, and June 11, 1975 is the last day for registration; ... " 2 She prayed for a writ of
mandamus for the purpose of allowing her to enroll in the current semester. She made it
more specific in a pleading she called Amended Petition so that she would be allowed
cross-enrollment even beyond the June 11, 1975 deadline for registration and that
whatever units may be accredited to her in the UST Ecclesiastical Faculties be likewise
recognized by respondent. Her petition included the letter of respondent Father
Lambino which started on a happy note that she was given the grade of B+ and B in two
theology subjects, but ended in a manner far from satisfactory for her, as shown by this
portion thereof: "Now, you will have to forgive me for going into a matter which is not too
pleasant. The faculty had a meeting after the summer session and several members are
strongly opposed to having you back with us at Loyola School of Theology. In the spirit
of honesty may I report this to you as their reason: They felt that your frequent
questions and difficulties were not always pertinent and had the effect of slowing down
the progress of the class; they felt you could have tried to give the presentation a
chance and exerted more effort to understand the point made before immediately
thinking of difficulties and problems. The way things are, I would say that the advisability
of your completing a program (with all the course work and thesis writing) with us is very
questionable. That you have the requisite intellectual ability is not to be doubted. But it
would seem to be in your best interests to work with a faculty that is more compatible
with your orientation. I regret to have to make this report, but I am only thinking of your
welfare."3

This Court, in a resolution of June 23, 1975, required comment on the part of
respondent Faculty Admission Committee, Loyola School of Theology.4 As submitted on
behalf of Father Lambino, it set forth the following: "Respondent is the Chairman of the
Faculty Admission Committee of the Loyola School of Theology, which is a religious
seminary situated in Loyola Heights, Quezon City; In collaboration with the Ateneo de
Manila University, the Loyola School of Theology allows some lay students to attend its
classes and/or take courses in said Loyola School of Theology but the degree, if any, to
be obtained from such courses is granted by the Ateneo de Manila University and not
by the Loyola School of Theology; For the reason above given, lay students admitted to
the Loyola School of Theology to take up courses for credit therein have to be officially
admitted by the Assistant Dean of the Graduate School of the Ateneo de Manila
University in order for them to be considered as admitted to a degree program;
Petitioner in the summer of 1975 was admitted by respondent to take some courses for
credit but said admission was not an admission to a degree program because only the
Assistant Dean of the Ateneo de Manila Graduate School can make such admission;
That in the case of petitioner, no acceptance by the Assistant Dean of the Ateneo de
Manila Graduate School was given, so that she was not accepted to a degree program
but was merely allowed to take some courses for credit during the summer of 1975;
Furthermore, petitioner was not charged a single centavo by the Loyola School of
Theology and/or the Ateneo de Manila University in connection with the courses she
took in the summer of 1975, as she was allowed to take it free of charge; That
respondent Fr. Antonio B. Lambino, S.J., and/or the Loyola School of Theology thru its
Faculty Admission Committee, necessarily has discretion as to whether to admit and/or
to continue admitting in the said school any particular student, considering not only
academic or intellectual standards but also other considerations such as personality
traits and character orientation in relation with other students as well as considering the
nature of Loyola School of Theology as a seminary. The Petition
for Mandamus therefore does not lie, as there is no duty, much less a clear duty, on the
part of respondent to admit the petitioner therein in the current year to take up further
courses in the Loyola School of Theology."5 It was likewise alleged in the aforesaid
comment that as set forth in the letter of May 19, 1975, the decision not to allow
petitioner to take up further courses in said seminary "is not arbitrary, as it is based on
reasonable grounds, ... ."6 Then reference was made to the availability of non-judicial
remedies which petitioner could have pursued.7 The prayer was for the dismissal of the
petition for lack of merit. Petitioner sought permission to reply and it was granted.
Thereafter, she had a detailed recital of why under the circumstances she is entitled to
relief from the courts. In a resolution of August 8, 1975, this Court considered the
comment of respondent as answer and required the parties to file their respective
memoranda. That they did, and the petition was deemed submitted for decision. As was
made clear at the outset, we do not see merit in it. It must therefore be dismissed.

1. In respondent's memorandum, it was made clear why a petition for mandamus is not
the proper remedy. Thus: "Petitioner cannot compel by mandamus, the respondent to
admit her into further studies in the Loyola School of Theology. For respondent has
no clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for
the priesthood. Petitioner is admittedly and obviously not studying for the priesthood,
she being a lay person and a woman. And even assuming ex gratia argumenti that she
is qualified to study for the priesthood, there is still no duty on the part of respondent to
admit her to said studies, since the school has clearly the discretion to turn down even
qualified applicants due to limitations of space, facilities, professors and optimum
classroom size and component considerations."8 No authorities were cited, respondent
apparently being of the view that the law has not reached the stage where the matter of
admission to an institution of higher learning rests on the sole and uncontrolled
discretion of the applicant. There are standards that must be met. There are policies to
be pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology,
what a student in the position of petitioner possesses is a privilege rather than a right.
She cannot therefore satisfy the prime and indispensable requisite of a mandamus
proceeding. Such being the case, there is no duty imposed on the Loyola School of
Theology. In a rather comprehensive memorandum of petitioner, who unfortunately did
not have counsel, an attempt was made to dispute the contention of respondent. There
was a labored effort to sustain her stand, but it was not sufficiently persuasive. It is
understandable why. It was the skill of a lay person rather than a practitioner that was
evident. While she pressed her points with vigor, she was unable to demonstrate the
existence of the clear legal right that must exist to justify the grant of this writ.
2. Nor is this all. There is, as previously noted, the recognition in the Constitution of
institutions of higher learning enjoying academic freedom. It is more often identified with
the right of a faculty member to pursue his studies in his particular specialty and
thereafter to make known or publish the result of his endeavors without fear that
retribution would be visited on him in the event that his conclusions are found distasteful
or objectionable to the powers that be, whether in the political, economic, or academic
establishments. For the sociologist, Robert McIver it is "a right claimed by the accredited
educator, as teacher and as investigator, to interpret his findings and to communicate
his conclusions without being subjected to any interference, molestation, or penalization
because these conclusions are unacceptable to some constituted authority within or
beyond the institution." 9 As for the educator and philosopher Sidney Hook, this is his
version: "What is academic freedom? Briefly put, it is the freedom of professionally
qualified persons to inquire, discover, publish and teach the truth as they see it in the
field of their competence. It is subject to no control or authority except the control or
authority of the rational methods by which truths or conclusions are sought and
established in these disciplines." 10

3. That is only one aspect though. Such a view does not comprehend fully the scope of
academic freedom recognized by the Constitution. For it is to be noted that the
reference is to the "institutions of higher learning" as the recipients of this boon. It would
follow then that the school or college itself is possessed of such a right. It decides for
itself its aims and objectives and how best to attain them. It is free from outside coercion
or interference save possibly when the overriding public welfare calls for some restraint.
It has a wide sphere of autonomy certainly extending to the choice of students. This
constitutional provision is not to be construed in a niggardly manner or in a gradging
fashion. That would be to frustrate its purpose, nullify its intent. Former President
Vicente G. Sinco of the University of the Philippines, in his Philippine Political Law, is
similarly of the view that it "definitely grants the right of academic freedom to the
university as an institution as distinguished from the academic freedom of a university
professor." 11 He cited the following from Dr. Marcel Bouchard, Rector of the University
of Dijon, France, President of the conference of rectors and vice-chancellors of
European universities: " "It is a well-established fact, and yet one which sometimes
tends to be obscured in discussions of the problems of freedom, that the collective
liberty of an organization is by no means the same thing as the freedom of the individual
members within it; in fact, the two kinds of freedom are not even necessarily connected.
In considering the problems of academic freedom one must distinguish, therefore,
between the autonomy of the university, as a corporate body, and the freedom of the
individual university teacher." " 12 Also: "To clarify further the distinction between the
freedom of the university and that of the individual scholar, he says: "The personal
aspect of freedom consists in the right of each university teacher — recognized and
effectively guaranteed by society — to seek and express the truth as he personally sees
it, both in his academic work and in his capacity as a private citizen. Thus the status of
the individual university teacher is at least as important, in considering academic
freedom, as the status of the institutions to which they belong and through which they
disseminate their learning."' 13 He likewise quoted from the President of the Queen's
University in Belfast, Sir Eric Ashby: "'The internal conditions for academic freedom in a
university are that the academic staff should have de facto control of the following
functions: (i) the admission and examination of students; (ii) the curricula for courses of
study; (iii) the appointment and tenure of office of academic staff; and (iv) the allocation
of income among the different categories of expenditure. It would be a poor prospect for
academic freedom if universities had to rely on the literal interpretation of their
constitutions in order to acquire for their academic members control of these four
functions, for in one constitution or another most of these functions are laid on the
shoulders of the law governing body .'" 14 Justice Frankfurter, with his extensive
background in legal education as a former Professor of the Harvard Law School,
referred to what he called the business of a university and the four essential freedoms in
the following language: "It is the business of a university to provide that atmosphere
which is most conducive to speculation, experiment and creation. It is an atmosphere in
which there prevail "the four essential freedoms" of a university — to determine for itself
on academic grounds who may teach, what may be taught, how it shall be taught, and
who may be admitted to study." 15 Thus is reinforced the conclusion reached by us
that mandamus does not lie in this case.

4. It is not an easy matter then to disregard the views of persons knowledgeable in the
field, to whom cannot be imputed lack of awareness of the need to respect freedom of
thought on the part of students and scholars. Moreover, it could amount to minimizing
the full respect that must be accorded the academic freedom expressly granted by the
Constitution "to institutions of higher learning." It is equally difficult to yield conformity to
the approach taken that colleges and universities should be looked upon as public
utilities devoid of any discretion as to whom to admit or reject. Education, especially
higher education, belongs to a different, and certainly higher, category.

5. It only remains to be added that the futility that marked the persistence of petitioner to
continue her studies in the Loyola School of Theology is the result solely of a legal
appraisal of the situation before us. The decision is not to be construed as in any way
reflecting on the scholastic standing of petitioner. There was on the part of respondent
due acknowledgment of her intelligence. Nonetheless, for reasons explained in the
letter of Father Lambino, it was deemed best, considering the interest of the school as
well as of the other students and her own welfare, that she continue her graduate work
elsewhere. There was nothing arbitrary in such appraisal of the circumstances deemed
relevant. It could be that on more mature reflection, even petitioner would realize that
her transfer to some other institution would redound to the benefit of all concerned. At
any rate, as indicated earlier, only the legal aspect of the controversy was touched upon
in this decision.

WHEREFORE, the petition is dismissed for lack of merit.

Makalintal, C.J., Barredo, Antonio, Esguerra, Muñoz Palma, Aquino, Concepcion, Jr.
and Martin, JJ., concur.

Castro, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur with the dismissal of the petition for manifest lack of merit.

On the threadbare claim that during the summer of 1975 she had been admitted by
respondent Fr. Antonio B. Lambino, S.J., chairman of the Faculty Admission Committee
of the Loyola School of Theology (a religious seminary for the priesthood) to attend
therein free of charge two summer courses for credits, petitioner has filed the present
petition for mandamus against respondents to order her admission in said school as a
student for an M.A. in Theology and for the payment to her of exemplary and moral
damages and "an amount equivalent more or less to attorney's fees which petitioner
would have paid a competent lawyer, had she employed one." (According to petitioner,
her enrollment in the Loyola seminary would allegedly entail "only about two years
more" where she would need "about four to five years more of studies" at the UST
Graduate School for Ecclesiastical Faculties where she has now enrolled as a special
student without credit for any academic units for the subjects taken by her.)

The original respondent, Fr. Lambino, filed his comment on the petition, while the two
other respondents, the Director of Private Schools and the Director, UST Graduate
School, did not even deign (and were not required) to file their comments,
notwithstanding the Court's resolution of June 23, 1975 requiring their comment on the
amended petition, since by the very terms of said petition, petitioner had not even
bothered to make any application or representations with them before hailing them
before this Court as parties-respondents on her fancied right to enrollment and cross-
enrollment at the two institutions (Loyola and UST ).

The petition must be dismissed, since petitioner has admittedly failed to exhaust her
administrative remedies. The facts of record amply show that petitioner is obviously
disqualified, and is not studying, for the priesthood, she being a laywoman and not
eligible for admission to respondent seminary. Mandamus to order her admission in
respondent seminary cannot lie in the absence of a clear right on her part and a clear
duty on respondent's part to so admit her.

Petitioner in her petition admits that she has failed to avail of and exhaust the
administrative remedies open to her but seeks to justify her failure by alleging.
 That Petitioner could have recourse neither to the President of her school,
Fr. Jose Cruz, he being with the First Couple's entourage now in Red
China, nor with the Secretary of Education, since this is his busiest time of
the year, and June 11, 1975 is the last day for registration; ...

This execuse is of course patently inept, since neither the university president's
temporary absence nor the Secretary of Education's having "his busiest time of the
year" justifies petitioner's by passing these officials whose final administrative decision
should first be given. Such exhaustion of administrative remedies is a pre-condition for
court action and would get all the facts in so as to enable the courts in a petition for
review simply to decide on the basis of the facts whether the questioned act of
petitioner's non-admission constitutes an arbitrary action that would warrant judicial
intervention.

Withal, the facts of record amply show that far from being arbitrary , petitioner's non-
admission was for perfectly valid considerations, as follows:

— The Loyola School of Theology, is a seminary for the priesthood; and petitioner is
admittedly and obviously disqualified and is not studying, for the priesthood, she being a
laywoman and therefore not eligible for admission;

— Petitioner was admitted free to take some summer courses this year for credits, but
according to respondent Fr. Lambino this was not an admission to a degree program
since the official admission by the Assistant Dean of the Graduate School of the Ateneo
de Manila University (which is the institution, not the Loyola School of Theology, that
grants the decree) required for the purpose has neither been sought by petitioner nor
granted by the said Assistant Dean. Respondent Fr. Lambino thus asserts that he is the
wrong party to be sued;

— Petitioner claims on the contrary that she was actually admitted for a degree
program, and arguing that "The factual issue, however, of whether or not petitioner was
actually admitted for a degree program needs to be resolved first" 1 vehemently insists
that this Court resolve the factual issue in her favor on the basis of her bare counter-
assertions and the respondent school's very letter rejecting her admission; (Petitioner
who is not a lawyer of course does not appreciate that this Court is neither a trier nor
reviewer of facts and that precisely one of the reasons for exhaustion of administrative
remedies is that all the facts may be placed before the final administrative authorities,
whose decision may be reviewed by the courts only upon a clear showing of fraud,
collusion, arbitrariness, illegality, imposition or mistake.2); and

— Aside from the fact that her non-admission to respondent seminary for the priesthood
by virtue of her being disqualified as a laywoman is a matter of school policy and
regulation that obviously can in no way be said to be arbitrary (since females all over
the world are up to now not admitted to the priesthood), the faculty's "strong opposition"
to having her back in the school after summer because "they felt that (her) frequent
questions and difficulties were not always pertinent and had the effect of slowing down
the progress of the class" and respondent Fr. Lambino's courteous but candid appraisal
"that the advisability of (her) completing a program (with all the course work and thesis
writing) with us is very questionable" are matters of technical and academic judgment
that the courts will not ordinarily interfere with.

Petitioner's action for mandamus clearly does not lie, since no cleat right for her
admission to a degree program for an M.A. in Theology nor a clear duty on the part of
the Loyola School of Theology (or of the Ateneo Graduate School which is not even a
party) to so admit her have been shown.

Only after exhaustion of administrative remedies and when there is marked

arbitrariness, will the courts interfere with the academic judgment of the school faculty
and the proper authorities as to the competence and fitness of an applicant for
enrollment or to continue taking up graduate studies in a graduate school. The courts
simply do not have the competence nor inclination to constitute themselves as
Admission Committees of the universities and institutions of higher learning and to
substitute their judgment for that of the regularly constituted Admission Committees of
such educational institutions. Were the courts to do so, they would conceivable be
swamped with petitions for admission from the thousands refused admission every
year, and next the thousands who flunked and were dropped would also be petitioning
the courts for a judicial review of their grades!

—————

Before closing this concurrence, I must make of record my concurrence with and
adherence to the fundamental principles of freedom and liberty eloquently expressed by
Mr. Justice Makasiar in his dissent. His expression of deep concern for the preservation
and enhancement of the dignity and worth of the human personality citing Justice
Cardoso's injunction that man's freedom must be given sanctuary "against the assaults
of opportunism, the expediency of the passing hour, the erosion of small
encroachments and the scorn and derision of those who have no patience with general
principles", and Laski's thesis that "the happiness of the individual, not the well-being of
the State, was the criterion by which its behavior was to be judged, his interests, not its
power, set the limits to the authority it was entitled to exercise" reaffirm forcefully the
basic tenet that distinguishes a democratic from a totalitarian state, viz, that the State
exists for the individual rather than the other way around.

I part ways with him of course in his factual premises and assumptions which to my
mind are not supported by the record nor the facts at bar. Foremost among these are
the premise that petitioner had been admitted to the theology course and cannot be
refused further attendance therein, when as shown above, the question of whether
petitioner was in fact admitted to a degree program is a controverted one with petitioner
herself making no such averment in her petition and precisely asking that this Court
resolve this "factual issue" and the disinclination to give due credence to the reason
given by Fr. Lambino for the faculty's "strong opposition" to petitioner's admission viz,
that her "frequent questions and difficulties were not always pertinent and had the effect
of slowing down the progress of the class" and her failure "to give the (faculty's)
presentation a chance and exert(ed) more effort to understand the point made before
immediately thinking of problems and difficulties",3 when not even the petitioner
questions in her petition the veracity of such faculty opposition and the quoted factual
reasons therefor but only whether the same "constitutes valid legal ground for
expulsion".

I do not share his view that private educational institutions may operate only by
delegation of the State and "are no different in this respect from the commercial public
utilities whose right to exists and to operate depends upon State authority" 4 and the
assumption that respondent has prescribed "unreasonable rules or regulations" when
such rules have not even been submitted to the Court nor is there any claim that such
rules have even been questioned in or disapproved by the Director of Public Schools
(assuming that said official has jurisdiction over a religious seminary such as the Loyola
School of Theology).

Petitioner according to her petition has obtained enrollment at the UST Graduate School
for Ecclesiastical Faculties where according to her own petition she could pursue her
graduate studies for an M.A. in Theology (after fulfilling their requirements for
Baccalaureate in Philosophy and assuming she has the required recognized
undergraduate units, as to which there is some question). Under the circumstances, it
seems fair to state that petitioner may well heed the voices and visions (that call her to a
degree in Theology) without rejection other than that of respondent school and certainly
without being destined to be another Joan of Arc.

Makalintal, C.J., concurs.

MAKASIAR, J., dissenting:

With his usual scholarship and characteristic style, Mr. Justice Fernando has woven a
persuasive majority opinion that commands respect.

The 1973 Constitution provides that: "All institutions of higher learning shall enjoy
academic freedom" (Sec. 8[2], Art. XV). This is broader than Section 6 of Article XIV of
the 1935 Constitution, which provides that: "Universities established by the State shall
enjoy academic freedom." Under the aforecited clause of the 1973 Constitution, all
colleges and universities of higher learning, whether established by the State or not, are
guaranteed academic freedom.

It should be stressed that the academic freedom thus guaranteed is not limited to the
members of the faculty nor to the administrative authorities of the educational institution.
It should also be deemed granted in favor of the student body; because all three — the
administrative authorities of the college or university, its faculty and its student
population — constitute the educational institution, without any one of which the
educational institution can neither exist nor operate. The educational institution is
permitted by the State to exist and operate, not for the benefit of its administrative
authorities or faculty members, but for the benefit of its studentry.

As Chief Justice Warren, who penned the opinion in Sweezy versus New Hampshire,
emphasized: "No field of education is so thoroughly comprehended by man that new
discoveries cannot yet be made. Particularly is that true in the social sciences, where
few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an
atmosphere of suspicion and distrust. Teachers and students must always remain free
to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise
our civilization will stagnate and die" (354 US 234; 250; 1 L. ed. 2nd 1311, 1325,
emphasis supplied).

An individual has a natural and inherent right to learn and develop his faculties. It is for
this reason that the 1973 Constitution directs the State to aid and support the parents in
the rearing of the youth (Sec. 4, Art. II, 1973 Constitution); to promote their physical,
intellectual and social well-being (Sec. 5, Art II); to establish, maintain and ensure
adequate social services in the field of education (Sec. 7, Art. II; to establish and
maintain a complete adequate and integrated system of education relevant to the goals
of national development (Sec. 8[1] Art, XV); to recognize and protect the academic
freedom of all institutions of higher learning (Sec. 8[2], Art. XV); to maintain a system of
free public elementary education and where finances permit, a system of free public
education up to the secondary level (Sec 8[5], Art. XV); to provide citizenship and
vocational training to adult citizens and out-of-school youths and to create and maintain
scholarships for poor and deserving students (Sec. 8[6], Art. XV) and to promote
scientific research and invention, to patronize arts and letters, scholarships, grants-in-
aid or other forms of incentives for specially gifted children (Sec. 9[1], [2] and [3], Art.
XV).

On the other hand, no private person or entity has the inherent right to establish and
operate a school, college or university.

Hence, there is need of re-examining and recasting the limited definition of academic
freedom conceived by Professor Arthur Lovejoy (Encyclopedia of Social Sciences, p.
384) to the effect that it is "the freedom of the teacher or research worker in higher
institutions of learning to investigate and discuss the problems of his science and to
express his conclusions, whether through publication or in the instruction of the teacher,
without interference from political and ecclesiastical authorities or administrative
opinions of institutions in which he is employed, unless his methods are found by a
qualified body of his own profession to be clearly incompetent or contrary to
professional ethics", which is echoed by MacIver (MacIver, Academic Freedom in Our
Time [6], 1955) and by Hook (Hook, Academic Freedom and Academic Anarchy). The
scope of academic freedom should not be restricted to the narrow formulation of Mr.
Justice Frankfurter as "an atmosphere in which there prevail "the four essential
freedoms of a university — to determine for its own academic grounds who may teach,
what may be taught, how it shall be taught, and who may be admitted to study"' (His
concurring opinion in Sweezy vs. New Hampshire, 353, US 234, 263 [1957]), which
neutralizes his belief that "it is the business of a university to provide that atmosphere
which is most conducive to speculation, experiment and creation", to which he however
exhibits loyalty as he continued to state:

Progress in the natural sciences is not remotely confined to findings made

in the laboratory. Insights into the mysteries of nature are born of
hypothesis and speculation. The more so is this true in the pursuit of
understanding in the groping endeavors of what are called the social
sciences, the concern of which is man and society. The problems that are
the respective preoccupations of anthropology, economics, law,
psychology, sociology and related areas of scholarship are merely
departmentalized dealing, by way of manageable division of analysis, with
interpenetrating aspects of holistic perplexities. For society's good — if
understanding be an essential need of society — inquiries into these
problems, speculation about them, stimulation in others of reaction upon
them, must be left unfettered as
possible ... .

... One need only refer to the address of T. H. Huxley at the opening of
Johns Hopkins University, ... :

"In a university knowledge is its own end, not merely a

means to an end. A university ceases to be true to its own
nature if it becomes the tool of Church or State or any
sectional interest. A university is characterized by the spirit
of free inquiry, its ideal being the ideal of Socrates — "to
follow the argument where it leads." This implies the right to
examine, question, modify or reject traditional ideas and
beliefs. Dogma and hypothesis are incompatible, and the
concept of an immutable doctrine is repugnant to the spirit of
a university. The concern of its scholars is not merely to add
and revise facts in relation to an accepted framework, but to
be ever examining and modifying the framework itself.

"Freedom to reason and freedom for disputation on the basis

of observation and experiment are the necessary conditions
for the advancement of scientific knowledge. A sense of
freedom is also necessary for creative work in the arts
which, equally with scientific research, is the concern of the
university" (Sweezy vs. New Hampshire 354 US 234; 262-
263, emphasis supplied).

The cardinal article of faith of our democratic civilization is the preservation and
enhancement of the dignity and worth of the human personality. It was Mr. Justice
Frankfurter himself who emphasized that man's "inviolate character" should be
"protected to the largest possible extent in his thoughts and in his beliefs as the citadel
of his person" (American Communications Association, etc. vs. Douds, 339 US 382,
421, cited in Phil. Blooming Mills Employees Assn. vs. Phil. Blooming Mills Co., Inc., et
al., L-31195, June 5, 1973, 51 SCRA 189,200), so that the individual can fully develop
himself and achieve complete fulfillment. His freedom to seek his own happiness would
mean nothing if the same were not given sanctuary "against the assaults of
opportunism, the expediency of the passing hour, the erosion of small encroachments
and the scorn and derision of those who have no patience with general principles"
(Justice Cardoso, The Nature of Judicial Process, 90-93, cited in Phil. Blooming Mills
Employees Assn. vs. Phil. Blooming Mills Co., Inc., supra, 201).

WE likewise reiterated in the Philippine Blooming Mills case, supra, that "the purpose of
the Bill of Rights is to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the Courts. One's rights to life, liberty and
property, to free speech or free press, freedom of worship and assembly, and to the
fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections" (51 SCRA 201), much less on the caprice of bigoted, intolerant and impatient
professors and college administrators. In the stirring language of Laski, "the happiness
of the individual not the well-being of the State, was the criterion by which its behaviour
was to be judged, his interests, not its power, set the limits to the authority it was
entitled to exercise" (51 SCRA 201). This individual freedom and right to happiness
should be recognized and respected not only by the State but also by enterprises
authorized by the State to operate; for as Laski stressed: "Without freedom of the mind
... a man has no protection in our social order. He may speak wrongly or foolishly, ... .
Yet a denial of his right ... is a denial of his happiness. Thereby he becomes an
instrument of other people's ends, not himself an end" (Laski, Liberty in the Modern
State, 73, cited in Tañada and Fernando, Constitution of the Philippines, 1952 ed., 315).

As Justice Holmes pronounced, "the ultimate good desired is better reached by free
trade in ideas — that the best test of truth is the power of the thought to get itself
accepted in the competition of the market; and that truth is the only ground upon which
their wishes safely can be carried out" (Abrams vs. U.S. 250 US 616).

The human mind is by nature an inquiring mind, whether of the very young or of the
very old or in-between; for freedom of speech in the words of John Milton is the "liberty
to know, to utter, and to argue freely according to conscience above all liberties."

What is involved here is not merely academic freedom of the higher institutions of
learning as guaranteed by Section 8(2) of Article SV of the 1973 Constitution. The issue
here strikes at the broader freedom of expression of the individual — the very core of
human liberty.

Even if the term "academic freedom" were to be limited to institutions of higher learning
— which to the mind of Dr. Vicente Sinco, an eminent authority in Constitutional Law, is
the right of the university as an institution, not the academic freedom of the university
professor (Sinco, Phil. Political Law, 1962 ed., 489) — the term "institutions of higher
learning" contained in the aforecited provision of our New Constitution comprehends not
only the faculty and the college administrators but also the members of the student
body. While it is true that the university professor may have the initiative and
resourcefulness to pursue his own research and formulate his conclusions concerning
the problem of his own science or subject, the motivation therefor may be provoked by
questions addressed to him by his students. In this respect, the student — specially a
graduate student — must not be restrained from raising questions or from challenging
the validity of dogmas whether theological or not. The true scholar never avoids, but on
the contrary welcomes and encourages, such searching questions even if the same will
have the tendency to uncover his own ignorance. It is not the happiness and self-
fulfillment of the professor alone that are guaranteed. The happiness and full
development of the curious intellect of the student are protected by the narrow
guarantee of academic freedom and more so by the broader right of free expression,
which includes free speech and press, and academic freedom.

After having been admitted to the theology, course, petitioner cannot be refused further
attendance therein on the ground that "her frequent questions and difficulties were not
always pertinent and had the effect of slowing down the progress of the class ... ." It
seems that this excuse is merely an euphemistic way of characterizing her questions
which might be embarrassing to the clergy or to the professor or other sensitive souls,
for her questions might impugn the validity of their tenets, dogmas and beliefs. It is hard
to believe that "her frequent questions and difficulties" slowed down the progress of the
class; because respondent Father Lambino himself recognized that the petitioner is
endowed with "the requisite intellectual ability" and accordingly merited grades of B+
and B in two theology subjects.

Respondents obviously fear Laski's prophecy:" The heresies we may suppress today
may be the orthodoxies of tomorrow. New truths begins always in minority of one; it
must be someone's perception before it becomes a general perception. The world gains
nothing from a refusal to entertain the possibility that a new idea may be true. Nor can
we pick and choose among our suppressions with any prospect of success. It would,
indeed, be hardly beyond the mark to affirm that a list of opinions condemned in the
past as wrong or dangerous would be a list of the commonplaces of our time" (Laski,
Liberty in the Modern State, p. 75, cited in Tañada and Fernando, Constitution of the
Philippines, 1952 ed., 316-317).

If she flunked in said subjects or the entire course, she could have been justifiably
denied enrollment in the second semester. But that is not the case here, as aforestated.

The respondents never offered as justification for their refusing petitioner admission to
the next semester limitations of space facilities, professors and optimum classroom
size. It is doubtful whether the same could have been a valid reason in refusing her
further admission, after she had complied with all the other requirements.

And the fact that she was admitted free to study theology without intending to be a
priest, does not weaken her position. It should be stressed that education is a sovereign
state function. It is a vital duty of the state which can delegate the same to private
educational institutions that are qualified and duly authorized to operate. Private
educational institutions therefore are no different in this respect from the commercial
public utilities, whose right to exist and to operate depends upon State authority. The
moment they are allowed to operate, they must abide by the Constitution, laws and
implementing rules of the Government on the matter. While the college or university can
prescribe regulations for admission to the various courses of study offered by it, this
prerogative does not include the power to prescribe unreasonable rules or regulations
violative of the constitutional rights of the citizen, such as freedom of expression in
general and academic freedom in particular. The educational institutions perform a
more vital function than the ordinary public utilities. The institution of learning feeds and
nurtures the human mind and spirit to insure a robust, healthy and educated citizenry on
whom national survival and national greatness depend. The ordinary public utilities
merely serve the material comforts and convenience of the people, who can certainly go
on living without them. But the people cannot wallow in darkness and ignorance without
hastening their extermination from the face of the earth.

To repeat the reminder of Chief Justice Warren: "Scholarship cannot flourish in an

atmosphere of suspicion and distrust. Teachers and students must always remain free
to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise
our civilization will stagnate and die " (354 US 234, 250; 1 L ed. 2nd 1311, 1325,
emphasis supplied.).

Justice Fernando himself fittingly concludes: "Intellectual liberty occupies a place inferior
to none in the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by oral
discourse or through the media, and thus seek other candid views in occasions or
gatherings or in more permanent aggrupations. Embraced in such concept then are
freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association" (Fernando on the Philippine Constitution, 1974 ed., p. 565).

The case of herein petitioner is a mild prelude to a re-enactment of the persecution of

Joan of Arc. Sectarian schools should have realized by now that intolerance, bigotry
and the inquisition — relics of the Dark Ages — tyrannize the mind and spirit of man
and are antithetical to their very function of nourishing the intellect and spreading
enlightenment.

In my view, the petitioner has a clear right, and the respondents have the equally clear
duty to allow her to continue studying theology.

Separate Opinions
TEEHANKEE, J., concurring:

I concur with the dismissal of the petition for manifest lack of merit.

On the threadbare claim that during the summer of 1975 she had been admitted by
respondent Fr. Antonio B. Lambino, S.J., chairman of the Faculty Admission Committee
of the Loyola School of Theology (a religious seminary for the priesthood) to attend
therein free of charge two summer courses for credits, petitioner has filed the present
petition for mandamus against respondents to order her admission in said school as a
student for an M.A. in Theology and for the payment to her of exemplary and moral
damages and "an amount equivalent more or less to attorney's fees which petitioner
would have paid a competent lawyer, had she employed one." (According to petitioner,
her enrollment in the Loyola seminary would allegedly entail "only about two years
more" where she would need "about four to five years more of studies" at the UST
Graduate School for Ecclesiastical Faculties where she has now enrolled as a special
student without credit for any academic units for the subjects taken by her.)

The original respondent, Fr. Lambino, filed his comment on the petition, while the two
other respondents, the Director of Private Schools and the Director, UST Graduate
School, did not even deign (and were not required) to file their comments,
notwithstanding the Court's resolution of June 23, 1975 requiring their comment on the
amended petition, since by the very terms of said petition, petitioner had not even
bothered to make any application or representations with them before hailing them
before this Court as parties-respondents on her fancied right to enrollment and cross-
enrollment at the two institutions (Loyola and UST ).

The petition must be dismissed, since petitioner has admittedly failed to exhaust her
administrative remedies. The facts of record amply show that petitioner is obviously
disqualified, and is not studying, for the priesthood, she being a laywoman and not
eligible for admission to respondent seminary. Mandamus to order her admission in
respondent seminary cannot lie in the absence of a clear right on her part and a clear
duty on respondent's part to so admit her.

Petitioner in her petition admits that she has failed to avail of and exhaust the
administrative remedies open to her but seeks to justify her failure by alleging.

That Petitioner could have recourse neither to the President of her school,
Fr. Jose Cruz, he being with the First Couple's entourage now in Red
China, nor with the Secretary of Education, since this is his busiest time of
the year, and June 11, 1975 is the last day for registration; ...

This execuse is of course patently inept, since neither the university president's
temporary absence nor the Secretary of Education's having "his busiest time of the
year" justifies petitioner's by passing these officials whose final administrative decision
should first be given. Such exhaustion of administrative remedies is a pre-condition for
court action and would get all the facts in so as to enable the courts in a petition for
review simply to decide on the basis of the facts whether the questioned act of
petitioner's non-admission constitutes an arbitrary action that would warrant judicial
intervention.

Withal, the facts of record amply show that far from being arbitrary , petitioner's non-
admission was for perfectly valid considerations, as follows:

— The Loyola School of Theology, is a seminary for the priesthood; and petitioner is
admittedly and obviously disqualified and is not studying, for the priesthood, she being a
laywoman and therefore not eligible for admission;

— Petitioner was admitted free to take some summer courses this year for credits, but
according to respondent Fr. Lambino this was not an admission to a degree program
since the official admission by the Assistant Dean of the Graduate School of the Ateneo
de Manila University (which is the institution, not the Loyola School of Theology, that
grants the decree) required for the purpose has neither been sought by petitioner nor
granted by the said Assistant Dean. Respondent Fr. Lambino thus asserts that he is the
wrong party to be sued;

— Petitioner claims on the contrary that she was actually admitted for a degree
program, and arguing that "The factual issue, however, of whether or not petitioner was
actually admitted for a degree program needs to be resolved first" 1 vehemently insists
that this Court resolve the factual issue in her favor on the basis of her bare counter-
assertions and the respondent school's very letter rejecting her admission; (Petitioner
who is not a lawyer of course does not appreciate that this Court is neither a trier nor
reviewer of facts and that precisely one of the reasons for exhaustion of administrative
remedies is that all the facts may be placed before the final administrative authorities,
whose decision may be reviewed by the courts only upon a clear showing of fraud,
collusion, arbitrariness, illegality, imposition or mistake.2); and

— Aside from the fact that her non-admission to respondent seminary for the priesthood
by virtue of her being disqualified as a laywoman is a matter of school policy and
regulation that obviously can in no way be said to be arbitrary (since females all over
the world are up to now not admitted to the priesthood), the faculty's "strong opposition"
to having her back in the school after summer because "they felt that (her) frequent
questions and difficulties were not always pertinent and had the effect of slowing down
the progress of the class" and respondent Fr. Lambino's courteous but candid appraisal
"that the advisability of (her) completing a program (with all the course work and thesis
writing) with us is very questionable" are matters of technical and academic judgment
that the courts will not ordinarily interfere with.

Petitioner's action for mandamus clearly does not lie, since no cleat right for her
admission to a degree program for an M.A. in Theology nor a clear duty on the part of
the Loyola School of Theology (or of the Ateneo Graduate School which is not even a
party) to so admit her have been shown.
Only after exhaustion of administrative remedies and when there is marked
arbitrariness, will the courts interfere with the academic judgment of the school faculty
and the proper authorities as to the competence and fitness of an applicant for
enrollment or to continue taking up graduate studies in a graduate school. The courts
simply do not have the competence nor inclination to constitute themselves as
Admission Committees of the universities and institutions of higher learning and to
substitute their judgment for that of the regularly constituted Admission Committees of
such educational institutions. Were the courts to do so, they would conceivable be
swamped with petitions for admission from the thousands refused admission every
year, and next the thousands who flunked and were dropped would also be petitioning
the courts for a judicial review of their grades!

—————

Before closing this concurrence, I must make of record my concurrence with and
adherence to the fundamental principles of freedom and liberty eloquently expressed by
Mr. Justice Makasiar in his dissent. His expression of deep concern for the preservation
and enhancement of the dignity and worth of the human personality citing Justice
Cardoso's injunction that man's freedom must be given sanctuary "against the assaults
of opportunism, the expediency of the passing hour, the erosion of small
encroachments and the scorn and derision of those who have no patience with general
principles", and Laski's thesis that "the happiness of the individual, not the well-being of
the State, was the criterion by which its behavior was to be judged, his interests, not its
power, set the limits to the authority it was entitled to exercise" reaffirm forcefully the
basic tenet that distinguishes a democratic from a totalitarian state, viz, that the State
exists for the individual rather than the other way around.

I part ways with him of course in his factual premises and assumptions which to my
mind are not supported by the record nor the facts at bar. Foremost among these are
the premise that petitioner had been admitted to the theology course and cannot be
refused further attendance therein, when as shown above, the question of whether
petitioner was in fact admitted to a degree program is a controverted one with petitioner
herself making no such averment in her petition and precisely asking that this Court
resolve this "factual issue" and the disinclination to give due credence to the reason
given by Fr. Lambino for the faculty's "strong opposition" to petitioner's admission viz,
that her "frequent questions and difficulties were not always pertinent and had the effect
of slowing down the progress of the class" and her failure "to give the (faculty's)
presentation a chance and exert(ed) more effort to understand the point made before
immediately thinking of problems and difficulties",3 when not even the petitioner
questions in her petition the veracity of such faculty opposition and the quoted factual
reasons therefor but only whether the same "constitutes valid legal ground for
expulsion".

I do not share his view that private educational institutions may operate only by
delegation of the State and "are no different in this respect from the commercial public
utilities whose right to exists and to operate depends upon State authority" 4 and the
assumption that respondent has prescribed "unreasonable rules or regulations" when
such rules have not even been submitted to the Court nor is there any claim that such
rules have even been questioned in or disapproved by the Director of Public Schools
(assuming that said official has jurisdiction over a religious seminary such as the Loyola
School of Theology).

Petitioner according to her petition has obtained enrollment at the UST Graduate School
for Ecclesiastical Faculties where according to her own petition she could pursue her
graduate studies for an M.A. in Theology (after fulfilling their requirements for
Baccalaureate in Philosophy and assuming she has the required recognized
undergraduate units, as to which there is some question). Under the circumstances, it
seems fair to state that petitioner may well heed the voices and visions (that call her to a
degree in Theology) without rejection other than that of respondent school and certainly
without being destined to be another Joan of Arc.

Makalintal, C.J., concurs.

MAKASIAR, J., dissenting:

With his usual scholarship and characteristic style, Mr. Justice Fernando has woven a
persuasive majority opinion that commands respect.

The 1973 Constitution provides that: "All institutions of higher learning shall enjoy
academic freedom" (Sec. 8[2], Art. XV). This is broader than Section 6 of Article XIV of
the 1935 Constitution, which provides that: "Universities established by the State shall
enjoy academic freedom." Under the aforecited clause of the 1973 Constitution, all
colleges and universities of higher learning, whether established by the State or not, are
guaranteed academic freedom.

It should be stressed that the academic freedom thus guaranteed is not limited to the
members of the faculty nor to the administrative authorities of the educational institution.
It should also be deemed granted in favor of the student body; because all three — the
administrative authorities of the college or university, its faculty and its student
population — constitute the educational institution, without any one of which the
educational institution can neither exist nor operate. The educational institution is
permitted by the State to exist and operate, not for the benefit of its administrative
authorities or faculty members, but for the benefit of its studentry.

As Chief Justice Warren, who penned the opinion in Sweezy versus New Hampshire,
emphasized: "No field of education is so thoroughly comprehended by man that new
discoveries cannot yet be made. Particularly is that true in the social sciences, where
few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an
atmosphere of suspicion and distrust. Teachers and students must always remain free
to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise
our civilization will stagnate and die" (354 US 234; 250; 1 L. ed. 2nd 1311, 1325,
emphasis supplied).
An individual has a natural and inherent right to learn and develop his faculties. It is for
this reason that the 1973 Constitution directs the State to aid and support the parents in
the rearing of the youth (Sec. 4, Art. II, 1973 Constitution); to promote their physical,
intellectual and social well-being (Sec. 5, Art II); to establish, maintain and ensure
adequate social services in the field of education (Sec. 7, Art. II; to establish and
maintain a complete adequate and integrated system of education relevant to the goals
of national development (Sec. 8[1] Art, XV); to recognize and protect the academic
freedom of all institutions of higher learning (Sec. 8[2], Art. XV); to maintain a system of
free public elementary education and where finances permit, a system of free public
education up to the secondary level (Sec 8[5], Art. XV); to provide citizenship and
vocational training to adult citizens and out-of-school youths and to create and maintain
scholarships for poor and deserving students (Sec. 8[6], Art. XV) and to promote
scientific research and invention, to patronize arts and letters, scholarships, grants-in-
aid or other forms of incentives for specially gifted children (Sec. 9[1], [2] and [3], Art.
XV).

On the other hand, no private person or entity has the inherent right to establish and
operate a school, college or university.

Hence, there is need of re-examining and recasting the limited definition of academic
freedom conceived by Professor Arthur Lovejoy (Encyclopedia of Social Sciences, p.
384) to the effect that it is "the freedom of the teacher or research worker in higher
institutions of learning to investigate and discuss the problems of his science and to
express his conclusions, whether through publication or in the instruction of the teacher,
without interference from political and ecclesiastical authorities or administrative
opinions of institutions in which he is employed, unless his methods are found by a
qualified body of his own profession to be clearly incompetent or contrary to
professional ethics", which is echoed by MacIver (MacIver, Academic Freedom in Our
Time [6], 1955) and by Hook (Hook, Academic Freedom and Academic Anarchy). The
scope of academic freedom should not be restricted to the narrow formulation of Mr.
Justice Frankfurter as "an atmosphere in which there prevail "the four essential
freedoms of a university — to determine for its own academic grounds who may teach,
what may be taught, how it shall be taught, and who may be admitted to study"' (His
concurring opinion in Sweezy vs. New Hampshire, 353, US 234, 263 [1957]), which
neutralizes his belief that "it is the business of a university to provide that atmosphere
which is most conducive to speculation, experiment and creation", to which he however
exhibits loyalty as he continued to state:

Progress in the natural sciences is not remotely confined to findings made

in the laboratory. Insights into the mysteries of nature are born of
hypothesis and speculation. The more so is this true in the pursuit of
understanding in the groping endeavors of what are called the social
sciences, the concern of which is man and society. The problems that are
the respective preoccupations of anthropology, economics, law,
psychology, sociology and related areas of scholarship are merely
departmentalized dealing, by way of manageable division of analysis, with
 interpenetrating aspects of holistic perplexities. For society's good — if
understanding be an essential need of society — inquiries into these
problems, speculation about them, stimulation in others of reaction upon
them, must be left unfettered as
possible ... .

... One need only refer to the address of T. H. Huxley at the opening of
Johns Hopkins University, ... :

"In a university knowledge is its own end, not merely a

means to an end. A university ceases to be true to its own
nature if it becomes the tool of Church or State or any
sectional interest. A university is characterized by the spirit
of free inquiry, its ideal being the ideal of Socrates — "to
follow the argument where it leads." This implies the right to
examine, question, modify or reject traditional ideas and
beliefs. Dogma and hypothesis are incompatible, and the
concept of an immutable doctrine is repugnant to the spirit of
a university. The concern of its scholars is not merely to add
and revise facts in relation to an accepted framework, but to
be ever examining and modifying the framework itself.

"Freedom to reason and freedom for disputation on the basis

of observation and experiment are the necessary conditions
for the advancement of scientific knowledge. A sense of
freedom is also necessary for creative work in the arts
which, equally with scientific research, is the concern of the
university" (Sweezy vs. New Hampshire 354 US 234; 262-
263, emphasis supplied).

The cardinal article of faith of our democratic civilization is the preservation and
enhancement of the dignity and worth of the human personality. It was Mr. Justice
Frankfurter himself who emphasized that man's "inviolate character" should be
"protected to the largest possible extent in his thoughts and in his beliefs as the citadel
of his person" (American Communications Association, etc. vs. Douds, 339 US 382,
421, cited in Phil. Blooming Mills Employees Assn. vs. Phil. Blooming Mills Co., Inc., et
al., L-31195, June 5, 1973, 51 SCRA 189,200), so that the individual can fully develop
himself and achieve complete fulfillment. His freedom to seek his own happiness would
mean nothing if the same were not given sanctuary "against the assaults of
opportunism, the expediency of the passing hour, the erosion of small encroachments
and the scorn and derision of those who have no patience with general principles"
(Justice Cardoso, The Nature of Judicial Process, 90-93, cited in Phil. Blooming Mills
Employees Assn. vs. Phil. Blooming Mills Co., Inc., supra, 201).

WE likewise reiterated in the Philippine Blooming Mills case, supra, that "the purpose of
the Bill of Rights is to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the Courts. One's rights to life, liberty and
property, to free speech or free press, freedom of worship and assembly, and to the
fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections" (51 SCRA 201), much less on the caprice of bigoted, intolerant and impatient
professors and college administrators. In the stirring language of Laski, "the happiness
of the individual not the well-being of the State, was the criterion by which its behaviour
was to be judged, his interests, not its power, set the limits to the authority it was
entitled to exercise" (51 SCRA 201). This individual freedom and right to happiness
should be recognized and respected not only by the State but also by enterprises
authorized by the State to operate; for as Laski stressed: "Without freedom of the mind
... a man has no protection in our social order. He may speak wrongly or foolishly, ... .
Yet a denial of his right ... is a denial of his happiness. Thereby he becomes an
instrument of other people's ends, not himself an end" (Laski, Liberty in the Modern
State, 73, cited in Tañada and Fernando, Constitution of the Philippines, 1952 ed., 315).

As Justice Holmes pronounced, "the ultimate good desired is better reached by free
trade in ideas — that the best test of truth is the power of the thought to get itself
accepted in the competition of the market; and that truth is the only ground upon which
their wishes safely can be carried out" (Abrams vs. U.S. 250 US 616).

The human mind is by nature an inquiring mind, whether of the very young or of the
very old or in-between; for freedom of speech in the words of John Milton is the "liberty
to know, to utter, and to argue freely according to conscience above all liberties."

What is involved here is not merely academic freedom of the higher institutions of
learning as guaranteed by Section 8(2) of Article SV of the 1973 Constitution. The issue
here strikes at the broader freedom of expression of the individual — the very core of
human liberty.

Even if the term "academic freedom" were to be limited to institutions of higher learning
— which to the mind of Dr. Vicente Sinco, an eminent authority in Constitutional Law, is
the right of the university as an institution, not the academic freedom of the university
professor (Sinco, Phil. Political Law, 1962 ed., 489) — the term "institutions of higher
learning" contained in the aforecited provision of our New Constitution comprehends not
only the faculty and the college administrators but also the members of the student
body. While it is true that the university professor may have the initiative and
resourcefulness to pursue his own research and formulate his conclusions concerning
the problem of his own science or subject, the motivation therefor may be provoked by
questions addressed to him by his students. In this respect, the student — specially a
graduate student — must not be restrained from raising questions or from challenging
the validity of dogmas whether theological or not. The true scholar never avoids, but on
the contrary welcomes and encourages, such searching questions even if the same will
have the tendency to uncover his own ignorance. It is not the happiness and self-
fulfillment of the professor alone that are guaranteed. The happiness and full
development of the curious intellect of the student are protected by the narrow
guarantee of academic freedom and more so by the broader right of free expression,
which includes free speech and press, and academic freedom.

After having been admitted to the theology, course, petitioner cannot be refused further
attendance therein on the ground that "her frequent questions and difficulties were not
always pertinent and had the effect of slowing down the progress of the class ... ." It
seems that this excuse is merely an euphemistic way of characterizing her questions
which might be embarrassing to the clergy or to the professor or other sensitive souls,
for her questions might impugn the validity of their tenets, dogmas and beliefs. It is hard
to believe that "her frequent questions and difficulties" slowed down the progress of the
class; because respondent Father Lambino himself recognized that the petitioner is
endowed with "the requisite intellectual ability" and accordingly merited grades of B+
and B in two theology subjects.

Respondents obviously fear Laski's prophecy:" The heresies we may suppress today
may be the orthodoxies of tomorrow. New truths begins always in minority of one; it
must be someone's perception before it becomes a general perception. The world gains
nothing from a refusal to entertain the possibility that a new idea may be true. Nor can
we pick and choose among our suppressions with any prospect of success. It would,
indeed, be hardly beyond the mark to affirm that a list of opinions condemned in the
past as wrong or dangerous would be a list of the commonplaces of our time" (Laski,
Liberty in the Modern State, p. 75, cited in Tañada and Fernando, Constitution of the
Philippines, 1952 ed., 316-317).

If she flunked in said subjects or the entire course, she could have been justifiably
denied enrollment in the second semester. But that is not the case here, as aforestated.

The respondents never offered as justification for their refusing petitioner admission to
the next semester limitations of space facilities, professors and optimum classroom
size. It is doubtful whether the same could have been a valid reason in refusing her
further admission, after she had complied with all the other requirements.

And the fact that she was admitted free to study theology without intending to be a
priest, does not weaken her position. It should be stressed that education is a sovereign
state function. It is a vital duty of the state which can delegate the same to private
educational institutions that are qualified and duly authorized to operate. Private
educational institutions therefore are no different in this respect from the commercial
public utilities, whose right to exist and to operate depends upon State authority. The
moment they are allowed to operate, they must abide by the Constitution, laws and
implementing rules of the Government on the matter. While the college or university can
prescribe regulations for admission to the various courses of study offered by it, this
prerogative does not include the power to prescribe unreasonable rules or regulations
violative of the constitutional rights of the citizen, such as freedom of expression in
general and academic freedom in particular. The educational institutions perform a
more vital function than the ordinary public utilities. The institution of learning feeds and
nurtures the human mind and spirit to insure a robust, healthy and educated citizenry on
whom national survival and national greatness depend. The ordinary public utilities
merely serve the material comforts and convenience of the people, who can certainly go
on living without them. But the people cannot wallow in darkness and ignorance without
hastening their extermination from the face of the earth.

To repeat the reminder of Chief Justice Warren: "Scholarship cannot flourish in an

atmosphere of suspicion and distrust. Teachers and students must always remain free
to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise
our civilization will stagnate and die " (354 US 234, 250; 1 L ed. 2nd 1311, 1325,
emphasis supplied.).

Justice Fernando himself fittingly concludes: "Intellectual liberty occupies a place inferior
to none in the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by oral
discourse or through the media, and thus seek other candid views in occasions or
gatherings or in more permanent aggrupations. Embraced in such concept then are
freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association" (Fernando on the Philippine Constitution, 1974 ed., p. 565).

The case of herein petitioner is a mild prelude to a re-enactment of the persecution of

Joan of Arc. Sectarian schools should have realized by now that intolerance, bigotry
and the inquisition — relics of the Dark Ages — tyrannize the mind and spirit of man
and are antithetical to their very function of nourishing the intellect and spreading
enlightenment.

In my view, the petitioner has a clear right, and the respondents have the equally clear
duty to allow her to continue studying theology.
G.R. No. 99327 May 27, 1993

ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S. J., DEAN

CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE
VENICIO ESCOLIN, FISCAL MIGUEL ALBAR, ATTYS. MARCOS HERRAS,
FERDINAND CASIS, JOSE CLARO TESORO, RAMON CAGUIOA, and RAMON
ERENETA. petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134,
ZOSIMO MENDOZA, JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO
AMADO SABBAN, DALMACIO LIM JR., MANUEL ESCONA and JUDE
FERNANDEZ, respondents.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenes for petitioners.

Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner Cynthia
Roxas-del Castillo.

Fabregas, Calida & Remollo for private respondents.

ROMERO, J.:

In 1975, the Court was confronted with a mandamus proceeding to compel the Faculty
Admission Committee of the Loyola School of Theology, a religious seminary which has
a working arrangement with the Ateneo de Manila University regarding accreditation of
common students, to allow petitioner who had taken some courses therein for credit
during summer, to continue her studies.1 Squarely meeting the issue, we dismissed the
petition on the ground that students in the position of petitioner possess, not a right, but
a privilege, to be admitted to the institution. Not having satisfied the prime and
indispensable requisite of a mandamus proceeding since there is no duty, much less a
clear duty, on the part of the respondent to admit the petitioner, the petition did not
prosper.

In support of its decision, the Court invoked academic freedom of institutions of higher
learning, as recognized by the Constitution, the concept encompassing the right of a
school to choose its students.

Eighteen (18) years later, the right of a University to refuse admittance to its students,
this time in Ateneo de Manila University proper, is again challenged.

Whereas, in the Garcia case referred to in the opening paragraph, the individual
concerned was not a regular student, the respondents in the case at bar, having been
previously enrolled in the University, seek re-admission. Moreover, in the earlier case,
the petitioner was refused admittance, not on such considerations as personality traits
and character orientation, or even inability to meet the institution's academic or
intellectual standards, but because of her behavior in the classroom. The school
pointedly informed her that ". . . it would seem to be in your best interest to work with a
Faculty that is more compatible with your orientations."

On the other hand, students who are now being refused admission into petitioner
University have been found guilty of violating Rule No. 3 of the Ateneo Law School
Rules on Discipline which prohibits participation in hazing activities. The case attracted
much publicity due to the death of one of the neophytes and serious physical injuries
inflicted on another.

Herein lies an opportunity for the Court to add another dimension to the concept of
academic freedom of institutions of higher learning, this time a case fraught with social
and emotional overtones.

The facts which gave rise to this case which is far from novel, are as follows:

As a requisite to membership, the Aquila Legis, a fraternity organized in the Ateneo Law
School, held its initiation rites on February 8, 9 and 10, 1991, for students interested in
joining its ranks. As a result of such initiation rites, Leonardo "Lennie" H. Villa, a first
year student of petitioner university, died of serious physical injuries at Chinese General
Hospital on February 10, 1991. He was not the lone victim, though, for another
freshman by the name of Bienvenido Marquez was also hospitalized at the Capitol
Medical Center for acute renal failure occasioned by the serious physical injuries
inflicted upon him on the same occasion.

In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo created a Joint
Administration-Faculty-Student Investigating Committee2 which was tasked to
investigate and submit a report within 72 hours on the circumstances surrounding the
death of Lennie Villa. Said notice also required respondent students to submit their
written statements within twenty-four (24) hours from receipt. Although respondent
students received a copy of the written notice, they failed to file a reply. In the
meantime, they were placed on preventive suspension.3 Through their respective
counsels, they requested copies of the charges and pertinent documents or affidavits.

In a notice dated February 14, 1991, the Joint Administration-Faculty-Student

Investigating Committee, after receiving the written statements and hearing the
testimonies of several witness, found a prima facie case against respondent students
for violation of Rule 3 of the Law School Catalogue entitled "Discipline."4

Respondent students were then required to file their written answers to the formal
charge on or before February 18, 1991; otherwise, they would be deemed to have
waived their right to present their defenses.

On February 20, 1991, petitioner Dean created a Disciplinary Board composed of

petitioners Judge Ruperto Kapunan, Justice Venicio Escolin, Atty. Marcos Herras,
Fiscal Miguel Albar and Atty. Ferdinand Casis, to hear the charges against respondent
students.

In a letter dated February 20, 1991, respondent students were informed that they had
violated Rule No. 3 of the Rules on Discipline contained in the Law School Catalogue.
Said letter also states: "The complaint/charge against you arose from initiations held on
February 8-10, 1991. The evidence against you consist of testimonies of students,
showing your participation in acts prohibited by the School regulations." Finally, it
ordered respondent students to file their written answers to the above charge on or
before February 22 1991, otherwise they would be deemed to have waived their
defenses.5

In a motion dated February 21, 1991, respondent students, through counsel, requested
that the investigation against them be held in abeyance, pending action on their request
for copies of the evidence against them.6

Respondent students were then directed by the Board to appear before it at a hearing
on February 28, 1991 to clarify their answer with regard to the charges filed by the
investigating committee for violation of Rule No. 3. However, in a letter to a petitioners
dated February 27, 1991, counsel for respondent students moved to postpone the
hearing from February 28, 1991 to March 1, 1991.7

Subsequently, respondent students were directed to appear on March 2, 1991 for

clarificatory questions.8 They were also informed that:

a) The proceedings will be summary in nature in accordance with the rules

laid down in the case of Guzman vs. National University;9

b) Petitioners have no right to cross-examine the affiants-neophytes;

c) Hazing which is not defined in the School catalogue shall be defined in

accordance with the proposed bill of Sen. Jose Lina, Senate Bill No. 3815;

d) The Board will take into consideration the degree of participation of the
petitioners in the alleged hazing incident in imposing the penalty;

e) The Decision of the Board shall be appealable to the President of the

University, i. e., Respondent Joaquin Bernas S. J.

On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in cases where the
Disciplinary Board is not prepared to impose the penalty of dismissal, I would prefer that
the Board leave the decision on the penalty to the Administration so that this case be
decided not just on the Law School level but also on the University level."10

In a resolution dated March 9, 1991, the Board found respondent students guilty of
violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits
participation in hazing activities. The Board found that respondent students acted as
master auxiliaries or "auxies" during the initiation rites of Aquila Legis, and exercised the
"auxies privilege," which allows them to participate in the physical hazing. Although
respondent students claim that they were there to assist and attend to the needs of the
neophytes, actually they were assigned a definite supportive role to play in the
organized activity. Their guilt was heightened by the fact that they made no effort to
prevent the infliction of further physical punishment on the neophytes under their care.
The Board considered respondent students part and parcel of the integral process of
hazing. In conclusion, the Board pronounced respondents guilty of hazing, either by
active participation or through acquiescence. However, in view of the lack of unanimity
among the members of the Board on the penalty of dismissal, the Board left the
imposition of the penalty to the University Administration.11 Petitioner Dean del Castillo
waived her prerogative to review the decision of the Board and left to the President of
the University the decision of whether to expel respondents or not.

Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G. Bernas,
as President of the Ateneo de Manila University, accepted the factual findings of the
Board, thus: "that as Master Auxiliaries they exercised the 'auxie's privilege;' that even
assuming they did not lay hands on the neophytes," respondents students are still guilty
in accordance with the principle that "where two or more persons act together in the
commission of a crime, whether they act through the physical volition of one or of all,
proceeding severally or collectively, each individual whose will contributes to the
wrongdoing is responsible for the whole." Fr. Bernas, in describing the offense which led
to the death of Leonardo Villa, concluded that the "offense of the respondents can be
characterized as grave and serious, subversive of the goals of Christian education and
contrary to civilized behavior." Accordingly, he imposed the penalty of dismissal on all
respondent students.12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr. Bernas, 13 the
Board excluded respondent students Abas and Mendoza from the coverage of the
resolution of March 10, 1991, inasmuch as at the time the latter resolution was
promulgated, neither had as yet submitted their case to the Board. Said resolution also
set the investigation of the two students on March 21, 1991.

On March 18, 1991, respondent students filed with the Regional Trial Court of Makati, a
petition for certiorari, prohibition and mandamus with prayer for temporary restraining
order and preliminary injunction14 alleging that they were currently enrolled as students
for the second semester of school year 1990-91. Unless a temporary restraining order is
issued, they would be prevented from taking their examinations. The petition principally
centered on the alleged lack of due process in their dismissal.

On the same day, Judge Madayag issued a temporary restraining order the enjoining
petitioners from dismissing respondent students and stopping the former from
conducting hearings relative to the hazing incident.15
Hearings in connection with the issuance of the temporary restraining order were then
held. On April 7, 1991, the temporary restraining order were issued on March 18, 1991
lapsed. Consequently, a day after the expiration of the temporary restraining order,
Dean del Castillo created a Special Board composed of Atty.(s) Jose Claro Tesoro,
Ramon Caguioa, and Ramon Ereñeta to investigate the charges of hazing against
respondent students Abas and Mendoza.

Respondent students reacted immediately by filing a Supplemental Petition of certiorari,

prohibition and mandamuswith prayer for a temporary restraining order and preliminary
injunction, to include the aforesaid members of the Special Board, as additional
respondents to the original petition.16

Petitioners moved to strike out the Supplement Petition arguing that the creation of the
Special Board was totally unrelated to the original petition which alleged lack of due
process in the conduct of investigations by the Disciplinary Board against respondent
students; that a supplemental petition cannot be admitted without the same being set for
hearing and that the supplemental petition for the issuance of a temporary restraining
order will, in effect, extend the previous restraining order beyond its mandatory 20-day
lifetime.17 Acting on the urgent motion to admit the supplemental petition with prayer for
a temporary restraining order, Judge Amin, as pairing judge of respondents Judge
Capulong, granted respondent students' prayer on April 10, 1991. 18

On May 17, 1991, respondent Judge ordered petitioners to reinstate respondent

students. Simultaneously, the court ordered petitioners to conduct special examinations
in lieu of the final examinations which allegedly the students were not allowed to take,
and enjoined them to maintain the status quo with regard to the cases of Adel Abas and
Zosimo Mendoza pending final determination of the issue of the instant case. Lastly, it
directed respondent students to file a bond in the amount of P50,000.00.19

On the same date, May 17, 1991, the Special Board investigating petitioners Abas and
Mendoza and directed the dropping of their names from its roll of students.20

The following day or on May 21, 1991, respondent judge issued the writ of preliminary
injunction upon posting by respondents of a bond dated May 17, 1991 in the amount of
P50,000.00.

Hence, this special civil action of certiorari under Rule 65 with prayer for the issuance of
a temporary restraining order enjoining the enforcement of the May 17, 1991 order of
respondent judge.21

In the case at bar, we come to grips with two relevant issues on academic freedom,
namely: (1) whether a school is within its rights in expelling students from its academic
community pursuant to its disciplinary rules and moral standards; and (2) whether or not
the penalty imposed by the school administration is proper under the circumstances.
We grant the petition and reverse the order of respondent judge ordering readmission of
respondent students. Respondent judge committed grave abuse of discretion when he
ruled that respondent students had been denied due process in the investigation of the
charges against them.

It is the threshold argument of respondent students that the decision of petitioner Fr.
Joaquin Bernas, S. J., then President of the Ateneo de Manila University, to expel them
was arrived at without affording them their right to procedural due process. We are
constrained to disagree as we find no indication that such right has been violated. On
the contrary, respondent students' rights in a school disciplinary proceeding, as
enunciated in the cases of Guzman v. National University,22 Alcuaz v. PSBA, Q.C.
Branch23 and Non v. Dames II24 have been meticulously respected by petitioners in the
various investigative proceedings held before they were expelled.

Corollary to their contention of denials of due process is their argument that it is Ang
Tibay case25 and not the Guzman case which is applicable in the case at bar. Though
both cases essentially deal with the requirements of due process, the Guzman case is
more apropos to the instant case, since the latter deals specifically with the minimum
standards to be satisfied in the imposition of disciplinary sanctions in academic
institutions, such as petitioner university herein, thus:

(1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) that they shall have the right to answer the
charges against them with the assistance of counsel, if desired: (3) they
shall be informed of the evidence against them (4) they shall have the
right to adduce evidence in their own behalf; and (5) the evidence must be
duly considered by the investigating committee or official designated by
the school authorities to hear and decide the case.26

It cannot seriously be asserted that the above requirements were not met. When, in
view of the death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the
Ateneo Law School, notified and required respondent students on February 11, 1991 to
submit within twenty-four hours their written statement on the incident,27 the records
show that instead of filing a reply, respondent students requested through their counsel,
copies of the charges.28 While of the students mentioned in the February 11, 1991
notice duly submitted written statements, the others failed to do so. Thus, the latter were
granted an extension of up to February 18, 1991 to file their statements. 29

Indubitably, the nature and cause of the accusation were adequately spelled out in
petitioners' notices dated February 14 and 20, 1991.30 It is to be noted that the February
20, 1991 letter which quoted Rule No. 3 of its Rules of Discipline as contained in the
Ateneo Law School Catalogue was addressed individually to respondent students.
Petitioners' notices/letters dated February 11, February 14 and 20 clearly show that
respondent students were given ample opportunity to adduce evidence in their behalf
and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very start of the
investigations before the Joint Administration Faculty-Student Committee, the law firm
of Gonzales Batiler and Bilog and Associates put in its appearance and filed pleadings
in behalf of respondent students.

Respondent students may not use the argument that since they were not accorded the
opportunity to see and examine the written statements which became the basis of
petitioners' February 14, 1991 order, they were denied procedural due
process.31 Granting that they were denied such opportunity, the same may not be said
to detract from the observance of due process, for disciplinary cases involving students
need not necessarily include the right to cross examination. An administrative
proceeding conducted to investigate students' participation in a hazing activity need not
be clothed with the attributes of a judicial proceeding. A closer examination of the March
2, 1991 hearing which characterized the rules on the investigation as being summary in
nature and that respondent students have no right to examine affiants-neophytes,
reveals that this is but a reiteration of our previous ruling in Alcuaz.32

Respondent students' contention that the investigating committee failed to consider their
evidence is far from the truth because the February 14, 1992 ordered clearly states that
it was reached only after receiving the written statements and hearing the testimonies of
several witnesses.33 Similarly, the Disciplinary Board's resolution dated March 10, 1991
was preceded by a hearing on March 2, 1991 wherein respondent students were
summoned to answer clarificatory questions.

With regard to the charge of hazing, respondent students fault petitioners for not
explicitly defining the word "hazing" and allege that there is no proof that they were
furnished copies of the 1990-91 Ateneo Law School Catalogue which prohibits hazing.
Such flawed sophistry is not worthy of students who aspire to be future members of the
Bar. It cannot be overemphasized that the charge filed before the Joint Administration-
Faculty-Student Investigating Committee and the Disciplinary Board is not a criminal
case requiring proof beyond reasonable doubt but is merely administrative in character.
As such, it is not subject to the rigorous requirements of criminal due process,
particularly with respect to the specification of the charge involved. As we have had
occasion to declare in previous cases a similar nature, due process in disciplinary cases
involving students does not entail proceedings and hearings identical to those
prescribed for actions and proceedings in courts of justice.34 Accordingly, disciplinary
charges against a student need not be drawn with the precision of a criminal information
or complaint. Having given prior notice to the students involved that "hazing" which is
not defined in the School Catalogue shall be defined in accordance with Senate Bill No.
3815, the proposed bill on the subject of Sen. Jose Lina, petitioners have said what
needs to be said. We deem this sufficient for purposes of the investigation under
scrutiny.

Hazing, as a ground for disciplining a students, to the extent of dismissal or expulsion,

finds its raison d' etre in the increasing frequency of injury, even death, inflicted upon
the neophytes by their insensate "masters." Assuredly, it passes the test of
reasonableness and absence of malice on the part of the school authorities. Far from
fostering comradeship and esprit d' corps, it has merely fed upon the cruel and baser
instincts of those who aspire to eventual leadership in our country.

Respondent students argue that petitioners are not in a position to file the instant
petition under Rule 65 considering that they failed to file a motion for reconsideration
first before the trial court, thereby by passing the latter and the Court of Appeals. 35

It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies

is when the case involves a question of law,36 as in this case, where the issue is
whether or not respondent students have been afforded procedural due process prior to
their dismissal from petitioner university.

Lastly, respondent students argue that we erred in issuing a Temporary Restraining

Order since petitioners do not stand to suffer irreperable damage in the event that
private respondents are allowed to re-enroll. No one can be so myopic as to doubt that
the immediate reinstatement of respondent students who have been investigated and
found by the Disciplinary Board to have violated petitioner university's disciplinary rules
and standards will certainly undermine the authority of the administration of the school.
This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom which
has been enshrined in the 1935, 1973 and the present 1987 Constitutions.

At this juncture, it would be meet to recall the essential freedoms subsumed by Justice
Felix Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New
Hampshire,37 thus: (1) who may teach: (2) what may be taught; (3) how it shall be
taught; and (4) who may be admitted to study.

Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of
the State" has deservedly earned for himself a respected place in the annals of history
as a martyr to the cause of free intellectual inquiry. To Plato, this great teacher of his
was the "best, the most sensible, and the most sensible, and the most just man of his
age." In 399 B.C., he willingly quaffed the goblet of hemlock as punishment for alleged
"corruption" of the youth of Athens. He describes in his own words how this charge of
"corruption," the forerunner of the concept of academic freedom, came about:

Young men of the richer classes, who have not much to do, come about
me of their own accord: they like to heart the pretenders examined, and
they often imitate me, and examine others themselves; there are plenty of
person, as they soon discover, who think that they know something, but
really know little or nothing; and then those who are examined by them
instead of being angry with themselves are angry with me. This
confounded Socrates, they say; this villainous misleader of youth. And
then if somebody asks them, Why, what evil does he practice or teach?
they do not know, and cannot tell; but in order that they may not appear to
 be at a loss, they repeat the ready-made charges which are used against
all philosophers about teaching things up in the clouds and under the
earth, and having no gods, and making the worse appear the better
cause; for they do not like to confess that their pretense of knowledge has
been detected — which is the truth; and as they are numerous and
ambitious and energetic, and are all in battle array and have persuasive
tongues, they have filled your ears with their loud and inveterate
calumnies.38

Since Socrates, numberless individuals of the same heroic mold have similarly defied
the stifling strictures of authority, whether State, Church, or various interest groups, to
be able to give free rein to their ideas. Particularly odious were the insidious and blatant
attempts at thought control during the time of the Inquisition until even the Medieval
universities, renowned as intellectual centers in Europe, gradually lost their autonomy.

In time, such noble strivings, gathering libertarian encrustations along the way, were
gradually crystallized in the cluster of freedoms which awaited the champions and
martyrs of the dawning modern age. This was exemplified by the professors of the new
German universities in the 16th and 17th centuries such as the Universities of Leiden
(1554), Helmstatdt (1574) and Heidelberg (1652). The movement back to freedom of
inquiry gained adherents among the exponents of fundamental human rights of the 19th
and 20th centuries. "Academic freedom", the term as it evolved to describe the
emerging rights related to intellectual liberty, has traditionally been associated with
freedom of thought, speech, expression and the press; in other words, with the right of
individuals in university communities, such as professors, researchers and
administrators, to investigate, pursue, discuss and, in the immortal words of Socrates,
"to follow the argument wherever it may lead," free from internal and external
interference or pressure.

But obviously, its optimum impact is best realized where the freedom is exercised
judiciously and does not degenerate into unbridled license. Early cases on this
individual aspect of academic freedom have been stressed the need for assuring to
such individuals a measure of independence through the guarantees of autonomy and
security of tenure. The components of this aspect of academic freedom have been
categorized under the areas of: (1) who may teach and (2) how to teach.

It is to be realized that this individual aspects of academic freedom could have

developed only pari passu with its institutional counterpart. As corporate entities,
educational institutions of higher learning are inherently endowed with the right to
establish their policies, academic and otherwise, unhampered by external controls or
pressure. In theFrankfurter formulation, this is articulated in the areas of: (1) what shall
be taught, e.g., the curriculum and (2) who may be admitted to study.

In the Philippines, the Acts which are passed with the change of sovereignty from the
Spanish to the American government, namely, the Philippine Bill of 1902 and the
Philippine Autonomy Act of 1916 made no mention of the rights now subsumed under
the catch-all term of "academic freedom." This is most especially true with respect to the
institutional aspect of the term. It had to await the drafting of the Philippine Constitutions
to be recognized as deserving of legal protection.

The breakthrough for the concept itself was found in Section 5 of the 1935 Constitution
which stated: "Universities established by the State shall enjoy academic freedom." The
only State University at that time, being the University of the Philippines, the Charter
was perceived by some as exhibiting rank favoritism for the said institution at the
expense of the rest.

In attempt to broaden the coverage of the provision, the 1973 Constitution provided in
its Section 8(2): "All institutions of higher learning shall enjoy academic freedom." In his
interpretation of the provision, former U.P. President Vicente G. Sinco, who was also a
delegate to the 1971 Constitutional Convention, declared that it "definitely grants the
right of academic freedom to the University as an institution as distinguished from the
academic freedom of a university professor."39

Has the right been carried over the to the present Constitution? In an attempt to give an
explicit definition with an expanded coverage, the Commissioners of the Constitutional
Commission of the 1986 came up with this formulation: "Academic freedom shall be
enjoyed by students, by teachers, and by researchers." After protracted debate and
ringing speeches, the final version which was none too different from the way it was
couched in the previous two (2) Constitutions, as found in Article XIV, Section 5(2)
states: "Academic freedom shall be enjoyed in all institutions of higher learning." In
anticipation of the question as to whether and what aspects of academic freedom are
included herein, ConCom Commissioner Adolfo S. Azcuna explained: "Since academic
freedom is a dynamic concept, we want to expand the frontiers of freedom, especially in
education, therefore, we shall leave it to the courts to develop further the parameters of
academic freedom."40

More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak
of the sentence 'academic freedom shall be enjoyed in all institutions of higher learning,'
do we mean that academic freedom shall be enjoyed by the institution itself?" Azcuna
replied: "Not only that, it also includes . . . . " Gascon finished off the broken thought,—
"the faculty and the students." Azcuna replied: "Yes."

Since Garcia v. Loyola School of Theology,41 we have consistently upheld the salutary
proposition that admission to an institution of higher learning is discretionary upon a
school, the same being a privilege on the part of the student rather than a right. While
under the education Act of 1982, students have a right "to freely choose their field of
study, subject to existing curricula and to continue their course therein up to
graduation," such right is subject, as all rights are, to the established academic and
disciplinary standards laid down by the academic institution.42

"For private schools have the right to establish reasonable rules and regulations for the
admission, discipline and promotion of students. This . . . extends as well to parents . . .
as parents are under a social and moral (if not legal) obligation, individually and
collectively, to assist and cooperate with the schools."43

Such rules are "incident to the very object of incorporation and indispensable to the
successful management of the college. The rules may include those governing student
discipline."44 Going a step further, the establishment of rules governing university-
student relations, particularly those pertaining to student discipline, may be regarded as
vital, not merely to the smooth and efficient operation of the institution, but to its very
survival.

Within memory of the current generation is the eruption of militancy in the academic
groves as collectively, the students demanded and plucked for themselves from the
ponoply of academic freedom their own rights encapsulized under the rubric of "right to
education" forgetting that, in Holfeldian terms, they have a concomitant duty, and that is,
their duty to learn under the rules laid down by the school.

Considering that respondent students are proud to claim as their own a Christian school
that includes Theology as part of its curriculum and assidously strives to turn out
individuals of unimpeachable morals and integrity in the mold of the founder of the order
of the Society of Jesus, St. Ignatius of Loyola, and their God-fearing forbears, their
barbaric and ruthless acts are the more reprehensible. It must be borne in mind that
universities are established, not merely to develop the intellect and skills of the
studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or
flowering if you will, of the total man.

In essence, education must ultimately be religious — not in the sense that the founders
or charter members of the institution are sectarian or profess a religious ideology.
Rather, a religious education, as the renowned philosopher Alfred North Whitehead
said, is "an education which inculcates duty and reverence." 45 It appears that the
particular brand of religious education offered by the Ateneo de Manila has been lost on
the respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de
Manila University as their own a minute longer, for they may foreseeably cast a
malevolent influence on the students currently enrolled, as well as those who come after
them.

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of
Appeals that: "The maintenance of a morally conducive and orderly educational
environment will be seriously imperiled if, under the circumstances of this case, Grace
Christian is forced to admit petitioner's children and to reintegrate them to the student
body."46 Thus, the decision of petitioner university to expel them is but congruent with
the gravity of their misdeeds. That there must be such a congruence between the
offense committed and the sanction imposed was stressed in Malabanan v. Ramento.47
Having carefully reviewed the records and the procedure followed by petitioner
university, we see no reason to reverse its decision founded on the following undisputed
facts: that on February 8, 9 and 10, 1991, the Aquila Legis Fraternity conducted hazing
activities; that respondent students were present at the hazing as auxiliaries, and that
as a result of the hazing, Leonardo Villa died from serious physical injuries, while
Bienvenido Marquez was hospitalized. In light of the vicious acts of respondent students
upon those whom ironically they would claim as "brothers" after the initiation rites, how
can we countenance the imposition of such nominal penalties as reprimand or even
suspension? We, therefore, affirm petitioners' imposition of the penalty of dismissal
upon respondent students. This finds authority and justification in Section 146 of the
Manual of Regulations for Private Schools.48

WHEREFORE, the instant petition is GRANTED; the order of respondent Judge dated
May 17, 1991 reinstating respondents students into petitioner university is hereby
REVERSED. The resolution of petitioner Joaquin Bernas S. J., then President of Ateneo
de Manila University dated March 1991, is REINSTATED and the decision of the
Special Board DISMISSING respondent students ADEL ABAS and ZOSIMO
MENDOZA dated May 20, 1991 is hereby AFFIRMED.

Narvasa, C.J., Feliciano Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo
and Quiason, JJ., concur.

Griño-Aquino, J., is on leave.

Separate Opinions

CRUZ, J., concurring:

I concur in the result. I do not join in the statement in the ponencia which seem to me to
be a prejudgment of the criminal cases against the private respondents for the death of
Lenny Villa.

# Separate Opinions

CRUZ, J., concurring:I concur in the result. I do not join in the statement in
the ponencia which seem to me to be a prejudgment of the criminal cases against the
private respondents for the death of Lenny Villa.
G.R. No. 127980 December 19, 2007

DE LA SALLE UNIVERSITY, INC., EMMANUEL SALES, RONALD HOLMES, JUDE

DELA TORRE, AMPARO RIO, CARMELITA QUEBENGCO, AGNES YUHICO and
JAMES YAP, petitioners,
vs.
THE COURT OF APPEALS, HON. WILFREDO D. REYES, in his capacity as
Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION
ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND
SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE
and ROBERTO VALDES, JR., respondents.

DECISION

REYES, R.T., J.:

NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na

nasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isang
pamantasan.

PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and
Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by
the De La Salle University (DLSU) and College of Saint Benilde (CSB)1 Joint Discipline
Board because of their involvement in an offensive action causing injuries to petitioner
James Yap and three other student members of Domino Lux Fraternity. This is the
backdrop of the controversy before Us pitting private respondents' right to education vis-
a-vis the University's right to academic freedom.

ASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of
the Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) dated
July 30, 1996 dismissing DLSU's petition for certiorariagainst respondent Judge and
private respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.; 2 (2) Resolution of
the CA dated October 15, 1996 denying the motion for reconsideration; 3 (3) Order dated
January 7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting private
respondent Aguilar's motion to reiterate writ of preliminary injunction;4 and (4)
Resolution No. 181-96 dated May 14, 1996 of the Commission on Higher Education
(CHED) exonerating private respondent Aguilar and lowering the penalties for the other
private respondents from expulsion to exclusion.5

Factual Antecedents

Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two
violent incidents on March 29, 1995 involving private respondents occurred:

x x x From the testimonies of the complaining witnesses, it appears that one

week prior to March 29, 1995, Mr. James Yap was eating his dinner alone in
Manang's Restaurant near La Salle, when he overheard two men bad-mouthing
and apparently angry at Domino Lux. He ignored the comments of the two. When
he arrived at his boarding house, he mentioned the remarks to his two other
brods while watching television. These two brods had earlier finished eating their
dinner at Manang's. Then, the three, together with four other persons went back
to Manang's and confronted the two who were still in the restaurant. By
admission of respondent Bungubung in his testimony, one of the two was a
member of the Tau Gamma Phi Fraternity. There was no rumble or physical
violence then.

After this incident, a meeting was conducted between the two heads of the
fraternity through the intercession of the Student Council. The Tau Gamma Phi
Fraternity was asking for an apology. "Kailangan ng apology" in the words of
respondent Aguilar. But no apology was made.

Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the
Domino Lux Fraternity in the campus. Among them were respondents
Bungubung, Reverente and Papio. They were looking for a person whose
description matched James Yap. According to them, this person supposedly
"nambastos ng brod." As they could not find Mr. Yap, one of them remarked
"Paano ba iyan. Pasensiya na lang."

Came March 29, 1995 and the following events.

Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the
campus using the Engineering Gate to buy candies across Taft Avenue. As he
was about to re-cross Taft Avenue, he heard heavy footsteps at his back. Eight
to ten guys were running towards him. He panicked. He did not know what to do.
Then, respondent Bungubung punched him in the head with something heavy in
his hands – "parang knuckles." Respondents Reverente and Lee were behind
Yap, punching him. Respondents Bungubung and Valdes who were in front of
him, were also punching him. As he was lying on the street, respondent Aguilar
kicked him. People shouted; guards arrived; and the group of attackers left.

Mr. Yap could not recognize the other members of the group who attacked him.
With respect to respondent Papio, Mr. Yap said "hindi ko nakita ang mukha niya,
hindi ko nakita sumuntok siya." What Mr. Yap saw was a long haired guy also
running with the group.

Two guards escorted Mr. Yap inside the campus. At this point, Mr. Dennis
Pascual was at the Engineering Gate. Mr. Pascual accompanied Yap to the
university clinic; reported the incident to the Discipline Office; and informed his
fraternity brods at their tambayan. According to Mr. Pascual, their head of the
Domino Lux Fraternity said: "Walang gagalaw. Uwian na lang."
 Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw
him under the clock in Miguel Building. However, they did not proceed directly for
home. With a certain Michael Perez, they went towards the direction of Dagonoy
Street because Mr. Pascual was supposed to pick up a book for his friend from
another friend who lives somewhere in the area.

As they were along Dagonoy Street, and before they could pass the Kolehiyo ng
Malate Restaurant, Mr. Cano first saw several guys inside the restaurant. He said
not to mind them and just keep on walking. However, the group got out of the
restaurant, among them respondents Reverente, Lee and Valdes. Mr. Cano told
Mr. Lee: "Ayaw namin ng gulo." But, respondent Lee hit Mr. Cano without
provocation. Respondent Reverente kicked Mr. Pascual and respondent Lee also
hit Mr. Pascual. Mr. Cano and Mr. Perez managed to run from the mauling and
they were chased by respondent Lee and two others.

Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr.
Pascual was ganged-upon by the rest. He was able to run, but the group was
able to catch up with him. His shirt was torn and he was hit at the back of his
head with a lead pipe. Respondent Lee who was chasing Cano and Perez, then
returned to Mr. Pascual.

Mr. Pascual identified respondents Reverente and Lee, as among those who hit
him. Although Mr. Pascual did not see respondent Valdes hit him, he identified
respondent Valdez (sic) as also one of the members of the group.

In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near
the corner of Leon Guinto and Estrada; while respondent Pascual who managed
to run was stopped at the end of Dagonoy along Leon Guinto. Respondent
Valdes shouted: "Mga putang-ina niyo." Respondent Reverente hit Mr. Pascual
for the last time. Apparently being satisfied with their handiwork, the group left.
The victims, Cano, Perez and Pascual proceeded to a friend's house and waited
for almost two hours, or at around 8:00 in the evening before they returned to the
campus to have their wounds treated. Apparently, there were three cars roaming
the vicinity.6

The mauling incidents were a result of a fraternity war. The victims, namely: petitioner
James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the
"Domino Lux Fraternity," while the alleged assailants, private respondents Alvin Aguilar,
James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of
"Tau Gamma Phi Fraternity," a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint7 with the Discipline
Board of DLSU charging private respondents with "direct assault." Similar
complaints8 were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and
private respondents Valdes and Reverente. Thus, cases entitled "De La Salle University
and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung
(AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee
(EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-
MGT/9251227)" were docketed as Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private respondents
Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints
and requiring them to answer. Private respondents filed their respective answers. 9

As it appeared that students from DLSU and CSB10 were involved in the mauling
incidents, a joint DLSU-CSB Discipline Board11 was formed to investigate the incidents.
Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing12 to private
respondents on April 12, 1995. Said notices uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been
constituted to hear and deliberate the charge against you for violation of CHED
Order No. 4 arising from the written complaints of James Yap, Dennis C.
Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April 19,
1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give
testimony and present evidence in your behalf. You may be assisted by a lawyer
when you give your testimony or those of your witnesses.

On or before April 18, 1995, you are further directed to provide the Board,
through the Discipline Office, with a list of your witnesses as well as the sworn
statement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure to submit the list of
witnesses and the sworn statement of their proposed testimony will be
considered a waiver on your part to present evidence and as an admission of the
principal act complained of.

For your strict compliance.13

During the proceedings before the Board on April 19 and 28, 1995, private respondents
interposed the common defense of alibi, summarized by the DLSU-CSB Joint Discipline
Board as follows:

First, in the case of respondent Bungubung, March 29, 1995 was one of the few
instances when he was picked-up by a driver, a certain Romeo S. Carillo. Most of
the time, respondent Bungubung goes home alone sans driver. But on this
particular date, respondent Bungubung said that his dad asked his permission to
use the car and thus, his dad instructed this driver Carillo to pick-up his son. Mr.
Carillo is not a family driver, but works from 8:00 a.m. to 5:00 p.m. for the
Philippine Ports Authority where the elder Bungubung is also employed.
 Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo
said that he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.;
took the Roxas Blvd. route towards respondent's house in BF Parañaque (on a
Wednesday in Baclaran); and arrived at the house at 6:15 p.m. Respondent
Bungubung was dropped-off in his house, and taking the same route back, Mr.
Carillo arrived at the South Harbor at 6:55 p.m. the Philippine Ports Authority is
located at the South Harbor.14

xxxx

Secondly, respondent Valdes said that he was with his friends at McDonald's Taft
just before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50
p.m. together to get some medicine at the university clinic for his throat irritation.
He said that he was at the clinic at 5:52 p.m. and went back to McDonald, all
within a span of 3 or even 4 minutes.

Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a
certain Jorgette Aquino, attempted to corroborate Valdez' alibi.15

xxxx

Third, respondent Reverente told that (sic) the Board that he was at his home at
5:00 p.m. of March 29, 1995. He said that he was given the responsibility to be
the paymaster of the construction workers who were doing some works in the
apartment of his parents. Although he had classes in the evening, the workers
according to him would wait for him sometimes up to 9:00 p.m. when he arrives
from his classes. The workers get paid everyday.

Respondent Reverente submitted an affidavit, unsigned by the workers listed

there, supposedly attesting to the fact that he paid the workers at the date and
time in question.16

xxxx

Fourth, respondent Aguilar "solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for
Camp Crame for a meeting with some of the officers that we were preparing." 17

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution18 finding
private respondents guilty. They were meted the supreme penalty of automatic
expulsion,19 pursuant to CHED Order No. 4.20 The dispositive part of the resolution
reads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN
AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-
PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE
 (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby
orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board

acquits him of the charge.

SO ORDERED.21

Private respondents separately moved for reconsideration22 before the Office of the
Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a
Letter-Resolution23 dated June 1, 1995.

On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against
petitioners a petition for certiorariand injunction under Rule 65 of the Rules of Court with
prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was
docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36.
The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB
Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior
Vice-President for Internal Affairs.

The following day, June 6, 1995, respondent Judge issued a TRO24 directing DLSU, its
subordinates, agents, representatives and/or other persons acting for and in its behalf to
refrain and desist from implementing Resolution dated May 3, 1995 and Letter-
Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of
Aguilar for the second term of school year (SY) 1995.

Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition
to correct an allegation in paragraph 3.2125 of his original petition. Respondent Judge
amended the TRO26 to conform to the correction made in the amended petition.27

On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records
of Discipline Case No. 9495-3-25121,28 in view of the authority granted to it under
Section 77(c) of the Manual of Regulations for Private Schools (MRPS).

On the other hand, private respondents Bungubung and Reverente, and later, Valdes,
filed petitions-in-intervention29 in Civil Case No. 95-74122. Respondent Judge also
issued corresponding temporary restraining orders to compel petitioner DLSU to admit
said private respondents.

On June 19, 1995, petitioner Sales filed a motion to dismiss30 in behalf of all petitioners,
except James Yap. On June 20, 1995, petitioners filed a supplemental motion to
dismiss31 the petitions-in-intervention.

On September 20, 1995, respondent Judge issued an Order32 denying petitioners'

(respondents there) motion to dismiss and its supplement, and granted private
respondents' (petitioners there) prayer for a writ of preliminary injunction. The pertinent
part of the Order reads:

For this purpose, respondent, its agents, representatives or any and all other
persons acting for and in its behalf is/are restrained and enjoined from –

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering

the automatic expulsion of petitioner and the petitioners-in-intervention
from the De La Salle University and the letter-resolution dated June 1,
1995, affirming the Resolution dated May 3, 1995; and

2. Barring the enrolment of petitioner and petitioners-in-intervention in the

courses offered at respondent De La Salle University and to immediately
allow them to enroll and complete their respective courses/degrees until
their graduation thereat in accordance with the standards set by the latter.

WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its

agents, representatives, or any and all persons acting for and its behalf are
hereby restrained and enjoyed from:

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering

the automatic expulsion of petitioner and petitioners-in-intervention and
the Letter-Resolution dated June 1, 1995; and

2. Barring the enrollment of petitioner and petitioners-in-intervention in the

courses offered at respondent (De La Salle University) and to forthwith
allow all said petitioner and petitioners-in-intervention to enroll and
complete their respective courses/degrees until their graduation thereat.

The Writ of Preliminary Injunction shall take effect upon petitioner and
petitioners-in-intervention posting an injunctive bond in the amount of P15,000.00
executed in favor of respondent to the effect that petitioner and petitioners-in-
intervention will pay to respondent all damages that the latter may suffer by
reason of the injunction if the Court will finally decide that petitioner and
petitioners-in-intervention are not entitled thereto.

The motion to dismiss and the supplement thereto is denied for lack of merit.
Respondents are directed to file their Answer to the Petition not later than fifteen
(15) days from receipt thereof.

SO ORDERED.33

Despite the said order, private respondent Aguilar was refused enrollment by petitioner
DLSU when he attempted to enroll on September 22, 1995 for the second term of SY
1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an
urgent motion to cite petitioners (respondents there) in contempt of court.34 Aguilar also
prayed that petitioners be compelled to enroll him at DLSU in accordance with
respondent Judge's Order dated September 20, 1995. On September 25, 1995,
respondent Judge issued35 a writ of preliminary injunction, the relevant portion of which
reads:

IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT

OF MANILA that until further orders, you the said DE LA SALLE University as
well as your subordinates, agents, representatives, employees and any other
person assisting or acting for or on your behalf, to immediately desist from
implementing the Resolution dated May 3, 1995 ordering the automatic expulsion
of petitioner and the intervenors in DLSU, and the letter-resolution dated June 1,
1995 affirming the said Resolution of May 3, 1995 and to immediately desist from
barring the enrolment of petitioner and intervenors in the courses offered at
DLSU and to allow them to enroll and complete their degree courses until their
graduation from said school.36

On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari 37 (CA-
G.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin
the enforcement of respondent Judge's September 20, 1995 Order and writ of
preliminary injunction dated September 25, 1995.

On April 12, 1996, the CA granted petitioners' prayer for preliminary injunction.

On May 14, 1996, the CHED issued its questioned Resolution No. 181-96,
summarily disapproving the penalty of expulsion for all private respondents. As
for Aguilar, he was to be reinstated, while other private respondents were to be
excluded.38 The Resolution states:

RESOLUTION 181-96

RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY

(DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF
EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL
BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V.
REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED.

RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO

IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE
LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR.
ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V.
REVERENTE FROM EXPULSION TO EXCLUSION.39

Despite the directive of CHED, petitioner DLSU again prevented private respondent
Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several
demand letters40 to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll
private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to
petitioner Quebengco requesting that private respondent Aguilar be allowed to continue
attending his classes pending the resolution of its motion for reconsideration of
Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting
CHED to promulgate an Order dated September 23, 1996 which states:

Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining

De La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re:
Expulsion Case of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr.
Aguilar and finding the urgent request as meritorious, there being no other plain
and speedy remedy available, considering the set deadline for enrollment this
current TRIMESTER, and in order to prevent further prejudice to his rights as a
student of the institution, DLSU, through the proper school authorities, is hereby
directed to allow Mr. Alvin Aguilar to provisionally enroll, pending the
Commission's Resolution of the instant Motion for Reconsideration filed by
DLSU.

SO ORDERED.41

Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still
refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar's
counsel wrote another demand letter to petitioner DLSU.42

Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No.
181-96, filed a motion to dismiss43 in the CA, arguing that CHED Resolution No. 181-96
rendered the CA case moot and academic.

On July 30, 1996, the CA issued its questioned resolution granting the motion to
dismiss of private respondent Aguilar, disposing thus:

THE FOREGOING CONSIDERED, dismissal of herein petition is hereby

directed.

SO ORDERED.44

On October 15, 1996, the CA issued its resolution denying petitioners' motion for
reconsideration, as follows:

It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in

character, the pendency of a Motion for Reconsideration notwithstanding.

After considering the Opposition and for lack of merit, the Motion for
Reconsideration is hereby denied.

SO ORDERED.45
On October 28, 1996, petitioners requested transfer of case records to the Department
of Education, Culture and Sports (DECS) from the CHED.46 Petitioners claimed that it is
the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating
the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS.

On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R.
SP No. 38719 and the automatic lifting of the writ of preliminary injunction, private
respondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated
September 25, 1995 before respondent RTC Judge of Manila. 47

On January 7, 1997, respondent Judge issued its questioned order granting

private respondent Aguilar's urgent motion to reiterate preliminary injunction. The
pertinent portion of the order reads:

In light of the foregoing, petitioner Aguilar's urgent motion to reiterate writ of

preliminary injunction is hereby granted, and respondents' motion to dismiss is
denied.

The writ of preliminary injunction dated September 25, 1995 is declared to be in

force and effect.

Let a copy of this Order and the writ be served personally by the Court's sheriff
upon the respondents at petitioners' expense.

SO ORDERED.48

Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner

DLSU, subject to the continued effectivity of the writ of preliminary injunction dated
September 25, 1995 and to the outcome of Civil Case No. 95-74122.

On February 17, 1997, petitioners filed the instant petition.

On June 15, 1998, We issued a TRO49 as prayed for by the urgent motion for the
issuance of a TRO50 dated June 4, 1998 of petitioners, and enjoined respondent Judge
from implementing the writ of preliminary injunction dated September 25, 1995 issued in
Civil Case No. 95-74122, effective immediately and until further orders from this Court.

On March 27, 2006, private respondent Aguilar filed his manifestation51 stating that he
has long completed his course at petitioner DLSU. He finished and passed all his
enrolled subjects for the second trimester of 1997-1998, as indicated in his transcript of
records52 issued by DLSU. However, despite having completed all the academic
requirements for his course, DLSU has not issued a certificate of completion/graduation
in his favor.

Issues
We are tasked to resolve the following issues:

1. Whether it is the DECS or the CHED which has legal authority to review
decisions of institutions of higher learning that impose disciplinary action on their
students found violating disciplinary rules.

2. Whether or not petitioner DLSU is within its rights in expelling private

respondents.

2.a Were private respondents accorded due process of law?

2.b Can petitioner DLSU invoke its right to academic freedom?

2.c Was the guilt of private respondents proven by substantial evidence?

3. Whether or not the penalty imposed by DLSU on private respondents is

proportionate to their misdeed.

Our Ruling

Prefatorily, there is merit in the observation of petitioners53 that while CHED Resolution
No. 181-96 disapproved the expulsion of other private respondents, it nonetheless
authorized their exclusion from petitioner DLSU. However, because of the dismissal of
the CA case, petitioner DLSU is now faced with the spectacle of having two different
directives from the CHED and the respondent Judge – CHED ordering the exclusion of
private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge ordering
petitioner DLSU to allow them to enroll and complete their degree courses until their
graduation.

This is the reason We opt to decide the whole case on the merits, brushing aside
technicalities, in order to settle the substantial issues involved. This Court has the power
to take cognizance of the petition at bar due to compelling reasons, and the nature and
importance of the issues raised warrant the immediate exercise of Our jurisdiction. 54This
is in consonance with our case law now accorded near-religious reverence that rules of
procedure are but tools designed to facilitate the attainment of justice, such that when
its rigid application tends to frustrate rather than promote substantial justice, this Court
has the duty to suspend their operation.55

I. It is the CHED, not DECS, which has the

power of supervision and review over
disciplinary cases decided by institutions
of higher learning.

Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at

pagrepaso sa mga desisyong pandisiplina ng mga institusyon ng mas mataas na
pag-aaral.
Petitioners posit that the jurisdiction and duty to review student expulsion cases, even
those involving students in secondary and tertiary levels, is vested in the DECS not in
the CHED. In support of their stance, petitioners cite Sections 4,56 15(2) &
(3),57 54,58 57(3)59 and 7060 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the
"Education Act of 1982."

According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the
DECS' power of supervision/review over expulsion cases involving institutions of higher
learning. They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the
right and duty of learning institutions to develop moral character and instill discipline
among its students. The clear concern of R.A. No. 7722 in the creation of the CHED
was academic, i.e., the formulation, recommendation, setting, and development of
academic plans, programs and standards for institutions of higher learning. The
enumeration of CHED's powers and functions under Section 8 does not include
supervisory/review powers in student disciplinary cases. The reference in Section 3 to
CHED's "coverage" of institutions of higher education is limited to the powers and
functions specified in Section 8. The Bureau of Higher Education, which the CHED has
replaced and whose functions and responsibilities it has taken over, never had any
authority over student disciplinary cases.

We cannot agree.

On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as "An Act
Creating the Commission on Higher Education, Appropriating Funds Thereof and for
other purposes."

Section 3 of the said law, which paved the way for the creation of the CHED, provides:

Section 3. Creation of the Commission on Higher Education. – In pursuance of

the abovementioned policies, the Commission on Higher Education is hereby
created, hereinafter referred to as Commission.

The Commission shall be independent and separate from the Department of

Education, Culture and Sports (DECS) and attached to the office of the President
for administrative purposes only. Its coverage shall be both public and private
institutions of higher education as well as degree-granting programs in all post
secondary educational institutions, public and private.

The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722.
They include the following:

Sec. 8. Powers and functions of the Commission. – The Commission shall have
the following powers and functions:

xxxx
 n) promulgate such rules and regulations and exercise such other powers and
functions as may be necessary to carry out effectively the purpose and objectives
of this Act; and

o) perform such other functions as may be necessary for its effective operations
and for the continued enhancement of growth or development of higher
education.

Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not
transfer to the CHED the DECS' power of supervision/review over expulsion cases
involving institutions of higher learning.

First, the foregoing provisions are all-embracing. They make no reservations of powers
to the DECS insofar as institutions of higher learning are concerned. They show that the
authority and supervision over all public and private institutions of higher education, as
well as degree-granting programs in all post-secondary educational institutions, public
and private, belong to the CHED, not the DECS.

Second, to rule that it is the DECS which has authority to decide disciplinary cases
involving students on the tertiary level would render nugatory the coverage of the
CHED, which is "both public and private institutions of higher education as well as
degree granting programs in all post secondary educational institutions, public and
private." That would be absurd.

It is of public knowledge that petitioner DLSU is a private educational institution which

offers tertiary degree programs. Hence, it is under the CHED authority.

Third, the policy of R.A. No. 772261 is not only the protection, fostering and promotion
of the right of all citizens to affordable quality education at all levels and the taking of
appropriate steps to ensure that education shall be accessible to all. The law
is likewise concerned with ensuring and protecting academic freedom and with
promoting its exercise and observance for the continued intellectual growth of students,
the advancement of learning and research, the development of responsible and
effective leadership, the education of high-level and middle-level professionals, and the
enrichment of our historical and cultural heritage.

It is thus safe to assume that when Congress passed R.A. No. 7722, its members were
aware that disciplinary cases involving students on the tertiary level would continue to
arise in the future, which would call for the invocation and exercise of institutions of
higher learning of their right to academic freedom.

Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher
Education, which CHED replaced, never had authority over student disciplinary cases.
In fact, the responsibilities of other government entities having functions similar to those
of the CHED were transferred to the CHED.62
Section 77 of the MRPS63 on the process of review in student discipline cases should
therefore be read in conjunction with the provisions of R.A. No. 7722.

Fifth, Section 18 of R.A. No. 7722 is very clear in stating that "[j]urisdiction over
DECS-supervised or chartered state-supported post-secondary degree-granting
vocational and tertiary institutions shall be transferred to the Commission [On
Higher Education]." This provision does not limit or distinguish that what is being
transferred to the CHED is merely the formulation, recommendation, setting and
development of academic plans, programs and standards for institutions of higher
learning, as what petitioners would have us believe as the only concerns of R.A. No.
7722. Ubi lex non distinguit nec nos distinguere debemus: Where the law does not
distinguish, neither should we.

To Our mind, this provision, if not an explicit grant of jurisdiction to the

CHED, necessarily includes the transfer to the CHED of any jurisdiction which the
DECS might have possessed by virtue of B.P. Blg. 232 or any other law or rule for that
matter.

IIa. Private respondents were accorded due process of law.

Ang mga private respondents ay nabigyan ng tamang proseso ng batas.

The Due Process Clause in Article III, Section 1 of the Constitution embodies a system
of rights based on moral principles so deeply imbedded in the traditions and feelings of
our people as to be deemed fundamental to a civilized society as conceived by our
entire history.64 The constitutional behest that no person shall be deprived of life, liberty
or property without due process of law is solemn and inflexible.65

In administrative cases, such as investigations of students found violating school

discipline, "[t]here are withal minimum standards which must be met before to satisfy
the demands of procedural due process and these are: that (1) the students must be
informed in writing of the nature and cause of any accusation against them; (2) they
shall have the right to answer the charges against them and with the assistance if
counsel, if desired; (3) they shall be informed of the evidence against them; (4) they
shall have the right to adduce evidence in their own behalf; and (5) the evidence must
be duly considered by the investigating committee or official designated by the school
authorities to hear and decide the case."66

Where a party was afforded an opportunity to participate in the proceedings but failed to
do so, he cannot complain of deprivation of due process.67 Notice and hearing is the
bulwark of administrative due process, the right to which is among the primary rights
that must be respected even in administrative proceedings.68 The essence of due
process is simply an opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek
reconsideration of the action or ruling complained of.69 So long as the party is given the
opportunity to advocate her cause or defend her interest in due course, it cannot be said
that there was denial of due process.70

A formal trial-type hearing is not, at all times and in all instances, essential to due
process – it is enough that the parties are given a fair and reasonable opportunity to
explain their respective sides of the controversy and to present supporting evidence on
which a fair decision can be based.71 "To be heard" does not only mean presentation of
testimonial evidence in court – one may also be heard through pleadings and where the
opportunity to be heard through pleadings is accorded, there is no denial of due
process.72

Private respondents were duly informed in writing of the charges against them by the
DLSU-CSB Joint Discipline Board through petitioner Sales. They were given the
opportunity to answer the charges against them as they, in fact, submitted their
respective answers. They were also informed of the evidence presented against them
as they attended all the hearings before the Board. Moreover, private respondents were
given the right to adduce evidence on their behalf and they did. Lastly, the Discipline
Board considered all the pieces of evidence submitted to it by all the parties before
rendering its resolution in Discipline Case No. 9495-3-25121.

Private respondents cannot claim that they were denied due process when they were
not allowed to cross-examine the witnesses against them. This argument was already
rejected in Guzman v. National University73 where this Court held that "x x x the
imposition of disciplinary sanctions requires observance of procedural due process. And
it bears stressing that due process in disciplinary cases involving students does not
entail proceedings and hearings similar to those prescribed for actions and proceedings
in courts of justice. The proceedings in student discipline cases may be summary; and
cross examination is not, x x x an essential part thereof."

IIb. Petitioner DLSU, as an institution of higher learning, possesses academic

freedom which includes determination of who to admit for study.

Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay

nagtataglay ng kalayaang akademiko na sakop ang karapatang pumili ng mga
mag-aaral dito.

Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning
academic freedom. This institutional academic freedom includes the right of the school
or college to decide for itself, its aims and objectives, and how best to attain them free
from outside coercion or interference save possibly when the overriding public interest
calls for some restraint.74 According to present jurisprudence, academic freedom
encompasses the independence of an academic institution to determine for itself (1)
who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be
admitted to study.75
It cannot be gainsaid that "the school has an interest in teaching the student discipline,
a necessary, if not indispensable, value in any field of learning. By instilling discipline,
the school teaches discipline. Accordingly, the right to discipline the student likewise
finds basis in the freedom "what to teach."76 Indeed, while it is categorically stated under
the Education Act of 1982 that students have a right "to freely choose their field of
study, subject to existing curricula and to continue their course therein up to
graduation,"77 such right is subject to the established academic and disciplinary
standards laid down by the academic institution. Petitioner DLSU, therefore, can very
well exercise its academic freedom, which includes its free choice of students for
admission to its school.

IIc. The guilt of private respondents Bungubung, Reverente and Valdes, Jr. was
proven by substantial evidence.

Ang pagkakasala ng private respondents na sina Bungubung, Reverente at

Valdes, Jr. ay napatunayan ng ebidensiyang substansyal.

As has been stated earlier, private respondents interposed the common defense of alibi.
However, in order that alibi may succeed as a defense, "the accused must establish by
clear and convincing evidence (a) his presence at another place at the time of the
perpetration of the offense and (b) the physical impossibility of his presence at the
scene of the crime."78

On the other hand, the defense of alibi may not be successfully invoked where the
identity of the assailant has been established by witnesses.79 Positive identification of
accused where categorical and consistent, without any showing of ill motive on the part
of the eyewitness testifying, should prevail over the alibi and denial of appellants whose
testimonies are not substantiated by clear and convincing evidence.80 Well-settled is the
rule that denial and alibi, being weak defenses, cannot overcome the positive
testimonies of the offended parties.81

Courts reject alibi when there are credible eyewitnesses to the crime who can positively
identify the accused.82 Alibi is an inherently weak defense and courts must receive it
with caution because one can easily fabricate an alibi.83Jurisprudence holds that denial,
like alibi, is inherently weak and crumbles in light of positive declarations of truthful
witnesses who testified on affirmative matters that accused were at the scene of the
crime and were the victim's assailants. As between categorical testimonies that ring of
truth on one hand and a bare denial on the other, the former must prevail. 84 Alibi is the
weakest of all defenses for it is easy to fabricate and difficult to disprove, and it is for
this reason that it cannot prevail over the positive identification of accused by the
witnesses.85

The required proof in administrative cases, such as in student discipline cases, is

neither proof beyond reasonable doubt nor preponderance of evidence but only
substantial evidence. According to Ang Tibay v. Court of Industrial Relations,86 it means
"such reasonable evidence as a reasonable mind might accept as adequate to support
a conclusion."

Viewed from the foregoing, We reject the alibi of private respondents Bungubung,
Valdes Jr., and Reverente.1awphi1 They were unable to show convincingly that they
were not at the scene of the crime on March 29, 1995 and that it was impossible for
them to have been there. Moreover, their alibi cannot prevail over their positive
identification by the victims.

We hark back to this Court's pronouncement affirming the expulsion of several students
found guilty of hazing:

No one can be so myopic as to doubt that the immediate reinstatement of

respondent students who have been investigated and found guilty by the
Disciplinary Board to have violated petitioner university's disciplinary rules and
standards will certainly undermine the authority of the administration of the
school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom

which has been enshrined in the 1935, 1973 and the present 1987 Constitution. 87

Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to
claim a venerable institution as their own, for they may foreseeably cast a malevolent
influence on the students currently enrolled, as well as those who come after them. 88 It
must be borne in mind that universities are established, not merely to develop the
intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes;
nay, the development, or flowering if you will, of the total man.89

As for private respondent Aguilar, however, We are inclined to give credence to his alibi
that he was at Camp Crame in Quezon City at the time of the incident in question on
March 29, 1995. This claim was amply corroborated by the certification that he
submitted before the DLSU-CSB Joint Discipline Board, to wit:

CERTIFICATION

TO WHOM THIS MAY CONCERN:

We, the undersigned, hereby declare and affirm by way of this

Certification that sometime on March 29, 1995, at about and between 4:30
P.M. and 5:30 P.M., we were together with Alvin A. Aguilar, at Kiangan
Hall, inside Camp Crame, Quezon City, meeting in connection with an
affair of our class known as Class 7, Batch 89 of the Philippine
Constabulary discussing on the proposed sponsorship of TAU GAMMA
PHI from said Batch '89 affair.
 That the meeting was terminated at about 6:30 P.M. that evening and Alvin
Aguilar had asked our permission to leave and we saw him leave Camp Crame,
in his car with the driver.

April 18, 1995, Camp Crame, Quezon City.90

The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized
Crime CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City),
PO2 Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M.
Desesto (Supply Center, PNPLSS). The rule is that alibi assumes significance or
strength when it is amply corroborated by credible and disinterested witnesses. 91 It is
true that alibi is a weak defense which an accused can easily fabricate to escape
criminal liability. But where the prosecution evidence is weak, and betrays lack of
credibility as to the identification of defendant, alibi assumes commensurate strength.
This is but consistent with the presumption of innocence in favor of accused. 92

Alibi is not always undeserving of credit, for there are times when accused has no other
possible defense for what could really be the truth as to his whereabouts at the crucial
time, and such defense may, in fact, tilt the scales of justice in his favor.93

III. The penalty of expulsion imposed by DLSU on private respondents is

disproportionate to their misdeed.

Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi

angkop sa kanilang pagkakasala.

It is true that schools have the power to instill discipline in their students as subsumed in
their academic freedom and that "the establishment of rules governing university-
student relations, particularly those pertaining to student discipline, may be regarded as
vital, not merely to the smooth and efficient operation of the institution, but to its very
survival."94 This power, however, does not give them the untrammeled discretion to
impose a penalty which is not commensurate with the gravity of the misdeed. If the
concept of proportionality between the offense committed and the sanction imposed is
not followed, an element of arbitrariness intrudes. That would give rise to a due process
question.95

We agree with respondent CHED that under the circumstances, the penalty of expulsion
is grossly disproportionate to the gravity of the acts committed by private respondents
Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only
for few seconds and the victims did not suffer any serious injury. Disciplinary measures
especially where they involve suspension, dismissal or expulsion, cut significantly into
the future of a student. They attach to him for life and become a mortgage of his future,
hardly redeemable in certain cases. Officials of colleges and universities must be
anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary
action should be treated as an educational tool rather than a punitive measure. 96
Accordingly, We affirm the penalty of exclusion97 only, not expulsion,98 imposed on
them by the CHED. As such, pursuant to Section 77(b) of the MRPS, petitioner DLSU
may exclude or drop the names of the said private respondents from its rolls for being
undesirable, and transfer credentials immediately issued.

WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals

Resolutions dated July 30, 1996 and dated October 15, 1996, and Regional Trial Court
of Manila, Branch 36, Order dated January 7, 1997 are ANNULLED AND SET ASIDE,
while CHED Resolution 181-96 dated May 14, 1996 is AFFIRMED.

Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of

private respondent Aguilar. On the other hand, it may exclude or drop the names of
private respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their
transfer credentials immediately issued.

SO ORDERED.