Supreme theft

Philippine Daily Inquirer First Posted 22:52:00 07/24/2010 MANILA, PhilippinesThe Supreme Court, under new Chief Justice Renato Corona, has just encountered its first real test and has been found embarrassingly wanting. In dismissing the petition for compensation and apology from Japan by women who claimed to have been made sex slaves by the Japanese Imperial Army during World War II, the Court, according to the lawyers of the women, lifted several portions of its decision from Anglo-American scholarly publications on international law. Denying the womens petition for the Court to compel the Philippine government to support their case in asking Japan for indemnity for crimes against humanity, the Court said theres no sufficient evidence to establish a general international obligation for states to exercise diplomatic protection of their own nationals abroad. Refusing to internationalize the demand for indemnity, the Court ironically has internationalized its own apparent commission of plagiarism. The authors of the scholarly articles arent smiling. One of the authors, Evan Criddle, who teaches international law at Syracuse University, felt sufficiently appalled as to write about the fracas in a legal blog. Criddle co-authored, with Evan Fox-Descent of McGill University in Canada, the article, A Fiduciary Theory of Jus Cogens, which appeared in the Yale Law Journal of International Law last year. Harry Roque and Rommel Bagares, counsels for the women, have filed a motion for reconsideration that accuses the Supreme Court of lifting several sentences and citations from the article, as well as from two other sources Enforcing Erga Omnes Obligations, a book authored by Christian J. Tams and published by the Cambridge University Press in 2005; and Breaking the Silence: On Rape as an International Crime, an article by Mark Ellis published in the Case Western Reserve Law Journal on International Law in 2006. The allegation is very serious, but the high court leadership has generally waffled and even shielded the ponente, Associate Justice Mariano del Castillo. Corona has not ordered an investigation and instead allowed Del Castillo to formally respond to the charge. Justice is often portrayed as the classic woman in blindfold holding up the scale of justice. The blindfold is supposed to symbolize the objectivity of justice, currying no fear or favor. Is the Supreme Court living up to the demands of objectivity and justice? The Chief Justice seems oblivious to the crisis of confidence facing the Court. At stake is not only its credibility, but its very foundation as the nations final bastion of justice and upholder of law and order. To plagiarize, according to the MLA (Modern Languages Association) Handbook, is to give the impression you have written or thought of something you have in fact borrowed from someone else. Plagiarism comes from the Latin plagiarius, which means a kidnapper, seducer and plunderer. In English, it is used in the sense of a literary thief. In short, the Supreme Court is being accused of all the crimes it is supposed to check and defeat by an objective, fair, judicious and forceful application of justice. The Supreme Court is itself being accused of a high crime and by Coronas action, it appears to be paving the way for whitewashing its felony. Equally worrisome is that the Court appears not only to have committed plagiarism, also it looks like it has twisted what it has plagiarized to suit its own position. In the case of Criddle and Descents article on the jus cogens principle, the Courts promulgation argues that grave offenses such as sexual slavery and torture are not violations of jus cogens or standards that cannot be set aside in international law. But the article precisely argues that such crimes are jus cogens and, therefore, should be taken as violations of international law. Criddle himself writes in his blog that the most troubling aspect of the Courts jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery and torture are not jus cogens norms. Our article emphatically asserts the opposite. Thus, the Court has not only stolen ideas and words from other sources; it has done violence to those same ideas and words by making them stand for something opposite their original meaning. Thus the high court comes forth as a court not only of intellectual thieves, but also of intellectual lemons.