08 December 2011

The Curious Case of Mariano del Castillo

I wonder what GMA was thinking

It was reported yesterday that the impeachment complaint against Associate Justice Mariano del Castillo in the House of Representatives is moving forward. The Committee on Justice determined that the use of the phrases and sentences from a foreign law review article without referring, acknowledging or citing to the other article is an impeachable breach of the public trust.

In the War Rape Victims Case, also known as Isabelita Vinuya et al. v. Executive Secretary et al, del Castillo used a variety of phrases from a law review article from the Yale Journal of International Law written by Evan Criddle and Evan Fox-Descent (both law professors). Although Criddle and Fox- Descent argued in their article that victims of rape during war should be entitled to damages/compensation/restitution, del Castillo used their phrasing and theoretical framework for the opposite conclusion.

The part that caught the attention of the victims and the media was that del Castillo did not cite to or refer to the Criddle and Fox-Descent article in his opinion. In the normal academic world, this would be considered plagiarism. However, in the realm of the law, the purpose of court opinions is to provide the reasoning upon which it makes decisions. Most cases that come before courts are not exactly the same as previous cases and some level of analogizing and referencing to similar, previous cases decided is necessary. When the court gives its opinion, that opinion together with the holding in the case, is the law. No one can claim a copyright on the law and a law giver, whether judicial or legislative, is under no obligation legal or customary to cite to someone who elsewhere formulated their opinion or description when it subsequently becomes law. The point of a judge citing another case is to lend credibility to the present opinion under the doctrine of stare decisis. A foreign law review article can lend no such credibility.

I did not read the Supreme Court's decision regarding del Castillo's absolution of plagiarism but I suspect it was founded on similar ideas and principles since these are basic and fundamental understandings of the law. It would highly be appropriate for lower court justices to make full and adequate citations to scholarly works since they are not ultimately the controlling authority and their citation can help support an affirmation of their decision if appealed. But for the high court, no such citation is necessary. The fact that the justices are not subject to the same rules as those they oversee does smack a bit of medieval monarchical thinking regarding a ruling position.

Nevertheless, in our constitutional scheme, it is not a justices' peers on the Court or armchair jurisprudent commentators like your blogger here, but the people's representatives that get to decide ultimately what conduct constitutes a breach of the public trust at the level of an impeachable offense. It is for this reason that I believe the House of Representatives is fully within its powers to impeach del Castillo and send his impeachment to the Senate for trial and removal. If this occurs, then it becomes clear that in the Philippines, the people have decided that correct citation to the works of others is necessary when one uses their previously formulated phrases for "public trust" reasons -- because plagiarism is generally a breach of trust.

So long as del Castillo is afforded due process, that is, notice of the standards upon which he is to be judged and an opportunity to prepare and present his defense, then the decisions of the House and Senate, ought to be final in the matter.

The impeachment mechanism or a similar process ought to be used to determine with finality the legality of Corona's chief justiceship. An opinion by the Supreme Court need not be the final word on the matter. In my opinion, he would not be able to retreat back to his associate justiceship because of the constructive resignation (ala Estrada) in order to act as the de facto chief justice.

1 comment:

  1. I think PNoy's disdain towards the SC is because of his lack of trust to GMA appointed justices.