“Dishonesty as public policy” – Privilege Speech by Akbayan Rep. Kaka Bag-ao (Nov. 15, 2010)

Dishonesty as public policy

Privilege Speech by Akbayan Rep. Kaka Bag-ao

Delivered at the Plenary Hall, House of Representatives on November 15, 2010

Ginoong Speaker, mga kagalang-galang na kapwa kongresista, magandang hapon sa inyong lahat!

I rise today on a question of personal and collective privilege to bring to your attention an issue of dishonesty that haunts the highest court of the land. I wish to bring this concern to your attention not to pose an academic issue but to make a warning – unless the Supreme Court corrects itself on this issue, it will make dishonesty part of our public policy.

On April 28, 2010, the Supreme Court issued its ruling on the Vinuya, et al. v. Executive Secretary et al. case, denying the petition filed by survivors of rape during the World War II to force the government to seek redress from Japan on their behalf. The ponencia of the decision, Justice Mariano del Castillo, found no merit on the claim of our ‘comfort women’ that the government should demand for apology and renumeration for the atrocities that were committed against them by the Japanese during the Second World War.

The counsels of the comfort women discovered that portions of the Vinuya decision were plagiarized. Filing a supplemental motion for reconsideration on July 18, 2010, the counsels pointed out that parts of the decision were copied without proper citation from the following works:

1.       “A Fiduciary Theory of Jus Cogens, an article by Prof. Prof. Evan Criddle & Prof. Evan Fox-Decent’s in the Yale Journal of International Law and published in 2009;

2.       “Enforcing Erga Omnes Obligations in International Law”, a book written by Dr. Christian Tams and published by Cambridge University Press; and

3.       Breaking the Silence: On Rape as an International Crime”, an article written by the Executive Director of the International Bar Association , Mark Ellis, in the 2006 volume of Case Western Journal of International Law.

What’s worse, according to the counsels, is that the Vinuya decision twisted the findings of the works that it plagiarized.

The case of plagiarism was referred to the newly constituted Committee on Ethics and Ethical Standards of the Supreme Court. On August 9, 2010, the UP College of Law issued a statement, signed by 37 faculty members, calling the act of plagiarism “unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court” and “an extraordinary case of injustice” against the comfort women. The faculty members also urged the ponente of the Vinuya decision, Justice Castillo, to resign from the High Court.

The Supreme Court dismissed the plagiarism case against Justice Castillo. Voting 10-2 with three abstention, the High Court argued that no acts of plagiarism were committed because there was no ‘malicious intent’ on the part of Justice Del Castillo. The lack of attribution was blamed on the accidental deletion of the citation by Justice Del Castillo’s researcher when she was editing the decision. The High Court effectively blamed the software used, Microsoft Word, because it doesn’t notify the writer when portions of the original draft are unintentionally removed.

In the dissenting opinion of Justice Maria Lourdes P.A. Sereno, joined by Justice Conchita Carpio Morales, 24 acts of plagiarism were committed in Vinuya decision. Yes, Ginoong Speaker, that’s 24 acts of so-called unintentional errors or deletion of attribution which the Supreme Court would like to pass on Microsoft Word.

On October 19, 2010, the Supreme Court issued a resolution addressing the public statement issued by the UP College of Law faculty. It stated that statement of the faculty was “unnecessary, uncalled for, and a rash act of misplaced vigilance.” In a show cause order, it also ordered the UP faculty members to explain to the High Court why it should not be cited for contempt. Three justices dissented to the resolution, calling it an abrasive act of judicial muscle-flexing.

Ginoong Speaker, in a few days, the UP College of Law faculty will have to respond to the show cause order of the Supreme Court. As a member of the bar and as a member of this chamber, I am deeply disturbed by the implications of the Supreme Court decisions on the issues around the Vinuya ruling.

By making malicious intent a prerequisite in the commission of plagiarism, the Supreme Court has effectively made dishonesty a public policy. Plagiarism is intellectual thievery. It is intellectual corruption. The legal profession should maintain the highest standards of integrity, and the Supreme Court is not exempted from these standards. By claiming that malicious intent is not present in the omissions that were noted in the Vinuya decision, the Supreme Court dilutes the standards that should be imposed on intellectual work, the very same standards that public officials, especially the members of the High Court, should religiously observe.

No plagiarist would admit that their omission was intentional, Ginoong Speaker. In the statement of the De La Salle University on the plagiarism issue, it noted that the Supreme Court itself defined plagiarism in 1999 ‘as the “incorporation and reproduction of another’s work… without the authority or consent of the petitioners or authors.’ In another case in 2005, it defined plagiarism to include the act of “copying a computer file that contains another person’s work and submitting it for one’s own credit, or using it as a model for one’s own work, without the consent or permission of the owner or author of the work.” It only redefined plagiarism when a member of High Court was accused of committing the act.

By redefining plagiarism, the Supreme Court has made it easy for anyone to commit intellectual theft. Students may now copy-paste their way to accomplish their academic requirements. Lawyers and employees of the court may now make their decisions through judicial mimicry and by twisting the works of others sans the rigor that is necessary to craft fair and just arguments and decisions, which can only emanate from honesty and truthfulness, and from the clash of reasons. As a lawyer, this possibility disturbs me deeply.

But what I find more worrisome, Ginoong Speaker, is the implication of this issue on the social justice obligations of the High Court.

Dishonesty was not just committed against the students and the peers of law. It was committed, first and foremost, against victims of injustice, the lolas who suffered grave abuse during World War II. They sought redress from the Supreme Court because for decades now the Executive ignored their situation. By denying their petition using a plagiarized ruling, the Supreme Court effectively lied to these victims of abuse. The Supreme Court therefore reneged its obligation to deliver social justice to our comfort women.

Ginoong Speaker, it is not yet too late to provide remedy for our comfort women. The Vinuya decision is a bastardized decision – even the authors that were plagiarized claim that their own ideas were even not properly applied. One remedy is for the Supreme Court to review the case and decide anew on the issue with the proper application of the principles and ideas espoused by the aggrieved authors whose works were plagiarized.

Where the Supreme Court failed, the national government and this chamber may deliver. This representation urges the Aquino administration to fulfill its mandate and demand apology and renumeration from the Japanese government on behalf of our comfort women. This is urgent, Ginoong Speaker, and while the Supreme Court, to borrow the apt metaphors of Justice Sereno, is busy bullying others that the Emperor indeed has new clothes, the Aquino government should show mercy and compassion to our comfort women’s call for justice.

Maraming salamat, Ginoong Speaker!

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