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In the matter of the charges of plagiarism, etc., against Associate Justice Mariano C. Del Castillo. [A.M.

No. 10-7-17-SC]

FACTS:

On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya
Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et
al, questioned the said decision. He raised, among others, that the ponente in said case, Justice Mariano
del Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these books
to support the assailed decision. These books were: a. A Fiduciary Theory of Jus Cogens by Evan J.
Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as
an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c.
Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).

As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence.
Interestingly, even the three foreign authors mentioned above, stated that their works were used
inappropriately by Justice Del Castillo and that the assailed decision is different from what their works
advocated.

ISSUE: Whether or not there is plagiarism in the case at bar.

HELD: No. There is no plagiarism. Even if there is (as emphasized by the Supreme Court in its ruling on
the Motion for Reconsideration filed by Vinuya et al in 2011), the rule on plagiarism cannot be applied to
judicial bodies.

No Plagiarism

At its most basic, plagiarism means the theft of another persons language, thoughts, or ideas. To
plagiarize, as it is commonly understood according to Webster, is to take (ideas, writings, etc.) from
(another) and pass them off as ones own.The passing off of the work of another as ones own is thus an
indispensable element of plagiarism.

According to Black’s Law Dictionary: Plagiarism is the “deliberate and knowing presentation of another
person’s original ideas or creative expressions as one’s own.”
This cannot be the case here because as proved by evidence, in the original drafts of the assailed
decision, there was attribution to the three authors but due to errors made by Justice del Castillo’s
researcher, the attributions were inadvertently deleted. There is therefore no intent by Justice del
Castillo to take these foreign works as his own.

But in plagiarism, intent is immaterial.

On this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board of Regents vs CA, 313
SCRA 404), the Supreme Court never indicated that intent is not material in plagiarism. To adopt a strict
rule in applying plagiarism in all cases leaves no room for errors. This would be very disadvantageous in
cases, like this, where there are reasonable and logical explanations.

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

According to the Supreme Court, the passages lifted from their works were merely used as background
facts in establishing the state on international law at various stages of its development. The Supreme
Court went on to state that the foreign authors’ works can support conflicting theories. The Supreme
Court also stated that since the attributions to said authors were accidentally deleted, it is impossible to
conclude that Justice del Castillo twisted the advocacies that the works espouse.

No Misconduct

Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was no malice, fraud
or corruption.

No Inexcusable Negligence (explanation of Justice Del Castillo)

The error of Justice del Castillo’s researcher is not reflective of his gross negligence. The researcher is a
highly competent one. The researcher earned scholarly degrees here and abroad from reputable
educational institutions. The researcher finished third in her class and 4th in the bar examinations. Her
error was merely due to the fact that the software she used, Microsoft Word, lacked features to apprise
her that certain important portions of her drafts are being deleted inadvertently. Such error on her part
cannot be said to be constitutive of gross negligence nor can it be said that Justice del Castillo was
grossly negligent when he assigned the case to her. Further, assigning cases to researchers has been a
long standing practice to assist justices in drafting decisions. It must be emphasized though that prior to
assignment, the justice has already spelled out his position to the researcher and in every sense, the
justice is in control in the writing of the draft.

With the advent of computers, however, as Justice Del Castillos researcher also explained, most legal
references, including the collection of decisions of the Court, are found in electronic diskettes or in
internet websites that offer virtual libraries of books and articles. Here, as the researcher found items
that were relevant to her assignment, she downloaded or copied them into her main manuscript, a
smorgasbord plate of materials that she thought she might need.

She electronically cut relevant materials from books and journals in the Westlaw website and pasted
these to a main manuscript in her computer that contained the issues for discussion in her proposed
report to the Justice. She used the Microsoft Word program. Later, after she decided on the general
shape that her report would take, she began pruning from that manuscript those materials that did not
fit, changing the positions in the general scheme of those that remained, and adding and deleting
paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor,
demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use
everyday in their work.