REPUBLIC OF THE PHILIPPINES

SUPREME COURT
En Banc

IN THE MATTER OF THE CHARGES

OF PLAGIARISM, ETC., AGAINST
ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO (A.M. NO. 10-7-17-
SC)

X___________________________X

MOTION FOR RECONSIDERATION

PREFATORY STATEMENT

T he enterprise of the Court, the process of

constitutionalism, depends on the Justices’
ability to persuade us (and one another) that
their choices among competing arguments, however
imperfect, represent reasoned, dispassionate, honest attempts
to decide cases in a principled way. We accept the
imperfection – the certainty that judges will sometimes err or
overstep their bounds – because we maintain a faith that, in
the run of things, better arguments will triumph over lesser
ones. And we depend on the judges themselves to undertake
the process with a sense of self-doubt and humility that leaves
open the constant possibility of reassessment and change.
….
The Court is both a microcosm and a model for the nation as a whole.
The ruptures in its cultures are the ones we share and partially impose.
And, by the same measure, the Court’s mending could be an inspiration
for our own. [emphasis and italics supplied].

- EDWARD LAZARUS, CLOSED CHAMBERS: THE RISE,

FALL AND FUTURE OF THE MODERN SUPREME COURT 9,
11 (Rev. ed. 1999)

1
 Undersigned counsels respectfully move that this Honorable Court
reconsider its October 12, 2010 ruling1 in the matter at hand on the following
submissions:

A SIMILAR PLAGIARISM-PLAGUED
PONENCIA IN THE ANG LADLAD 2 CASE
ESTABLISHES (1) A CLEAR PATTERN
AND PRACTICE OF PLAGIARISM BY THE
PONENTE, AND (2) DEMONSTRATES
THE INDEFENSIBILITY OF THE
“MICROSOFT DEFENSE” IN THE
PRESENT CONTROVERSY.

1. The same pattern and practice of plagiarism seen in Vinuya are

found in Ang Ladlad --- with Justice Del Castillo also as Ponente --- with entire
paragraphs lifted without attribution; in certain instances, sentences, words or
phrases were intercalated; in others, discursive footnotes were represented as if
the discussion in the footnotes were the ponente’s words when in fact these were
lifted from unacknowledged sources.

2. Below is a composite comparative table drawn from three sources

(1) a former student of undersigned lawyer Harry L. Roque who conducted an
independent analysis of the Ang Ladlad decision; (2) the website
www.pinoymoneytalk.com3 and (3) the undersigned lawyers’ own findings.4

3. On the table’s left panel are sections, phrases, paragraphs or

sentences found in the Ang Ladlad Judgment itself that were not properly
attributed or referenced. The right panel shows the sources from which the
plagiarized sections of the Judgment had been lifted.

4. At the outset, it must be acknowledged that the undersigned

counsels do not question at all the propriety of the dispositive conclusion
reached by the reporting judge in the majority opinion in Ang Ladlad. The
validity of Ang Ladlad’s holding is not in doubt; only the provenance of some
phrases and paragraphs the ponente passed off as his own.

1
Received by the undersigned on November 3, 2010.
2
Ang Ladlad, LGBT Party v. Comelec, G.R. No. 190582, April 8, 2010.
3
Another plagiarism case? SC Justice Mariano del Castillo and ‘Ang Ladlad’ decision, October 26, 2010,
available at http://www.pinoymoneytalk.com/supreme-court-justice-plagiarism/ <last visited, November
11, 2010>
4
A copy of the Ang Ladlad decision is attached to this Motion as ANNEX A, with pagination consistent
with the discussion in the table below, for easy reference.

2
 Ladlad ponencia by J. del
Castillo
Freedom of expression
constitutes one of the essential
foundations of a democratic
society, and this freedom applies
not only to those that are
favorably received but also to
those that offend, shock, or
disturb. Any restriction imposed
in this sphere must be
proportionate to the legitimate
aim pursued. (Ladlad, p.14)
Original source
The Court's supervisory
functions oblige it to pay the
utmost attention to the
principles characterising a
"democratic society".
Freedom of expression
constitutes one of the
essential foundations of
such a society, one of the
basic conditions for its
progress and for the
development of every man.
Subject to paragraph 2 of
Article 10 (art. 10-2), it is
applicable not only to
“information” or “ideas” that
are favourably received or
regarded as inoffensive or as a
matter of indifference, but
also to those that offend,
shock or disturb the State or
any sector of the population.
Such are the demands of that
pluralism, tolerance and
broadmindedness without
which there is no “democratic
society”. This means,
amongst other things, that
every “formality”,
“condition”, “restriction” or
“penalty” imposed in this
sphere must be
proportionate to the
legitimate aim pursued.
Source: Paragraph 49 of Handyside
vs. United Kingdom (1979), a
3

Otherwise stated, the COMELEC
is certainly not free to interfere
with speech for no better
reason than promoting an
approved message or
discouraging a disfavored one.
(Ladlad, p.14)
However, as far as this Court is
concerned, our democracy
precludes using the religious or
moral views of one part of the
community to exclude from
consideration the values of
other members of the
community.
(Ladlad, p.17)
[41]
In Bowers v. Hardwick, 478
U.S. 186 (1986), the US Supreme
Court first upheld the
constitutionality of a Georgia
sodomy law that criminalized oral
and anal sex in private between
consenting adults when applied to
homosexuals. Seventeen years later
the Supreme Court directly
overruled Bowers in Lawrence v. Texas,
539 U.S. 558 (2003), holding that
"Bowers was not correct when it was
decided, and it is not correct today."
decision by the European Court of
Human Rights (ECHR)
While the law is free to promote all
sorts of conduct in place of harmful
behavior, it is not free to interfere
with speech for no better reason
than promoting an approved
message or discouraging a
disfavored one, however enlightened
either purpose may strike the
government.
Source: Hurley vs. Irish-American
Gay, Lesbian and Bisexual Group of
Boston Inc., 515 U.S. 557, at 579.
Religion is an integral aspect of
people’s lives, and cannot be left at
the boardroom door. What secularism
does rule out, however, is any attempt
to use the religious views of one
part of the community to exclude
from consideration the values of
other members of the community.
Source: Section 19 of Chamberlain v.
Surrey School District No. 36, [2002]
4 S.C.R. 710, 2002 SCC 86, a decision
by the Supreme Court of Canada
Bowers v. Hardwick, 478 U.S. 186 (1986),
is a United States Supreme Court decision
that upheld the constitutionality of a
Georgia sodomy law criminalizing oral
and anal sex in private between consenting
adults when applied to homosexuals.[1][2]
Seventeen years after Bowers v. Hardwick,
the Supreme Court directly overruled the
decision in Lawrence v. Texas, 539 U.S.
558 (2003), and held that such laws are
unconstitutional. In overruling Bowers v.
Hardwick, the 2003 Court stated that
"Bowers was not correct when it was
decided, and it is not correct today."
Source:
http://www.answers.com/topic/bow
ers-v-hardwick, citing
4

In Lawrence, the US Supreme Court
has held that the liberty protected by
the Constitution allows homosexual
persons the right to choose to enter
into intimate relationships, whether
or not said relationships were
entitled to formal or legal
recognition.
Our prior cases make two
propositions abundantly clear. First,
the fact that the governing majority in
a State has traditionally viewed a
particular practice as immoral is not a
sufficient reason for upholding a law
prohibiting the practice; neither
history nor tradition could save a law
prohibiting miscegenation from
constitutional attack. Second,
individual decisions by married
persons, concerning the intimacies of
their physical relationship, even when
not intended to produce offspring,
are a form of “liberty” protected by
the Due Process Clause of the
Fourteenth Amendment. Moreover,
this protection extends to intimate
choices by unmarried as well as
married persons.
The present case does not involve The present case does not involve
minors. It does not involve persons
minors. It does not involve persons
who might be injured or coerced or who might be injured or coerced or
who are situated in relationships
http://en.wikipedia.org/wiki/Bowers
_v._Hardwick
When sexuality finds overt expression
in intimate conduct with another
person, the conduct can be but one
element in a personal bond that is
more enduring. The liberty protected
by the Constitution allows
homosexual persons the right to
make this choice
Source:
Lawrence vs. Texas 539 U.S. 558,
567
"Our prior cases make two
propositions abundantly clear. First,
the fact that the governing majority in
a State has traditionally viewed a
particular practice as immoral is not a
sufficient reason for upholding a law
prohibiting the practice; neither
history nor tradition could save a law
prohibiting miscegenation from
constitutional attack. Second,
individual decisions by married
persons, concerning the intimacies of
their physical relationship, even when
not intended to produce offspring,
are a form of 'liberty' protected by the
Due Process Clause of the
Fourteenth Amendment. Moreover,
this protection extends to intimate
choices by unmarried as well as
married persons." 478 U. S., at 216
(footnotes and citations omitted).
Source: Lawrence vs. Texas 539 U.S.
558, 577-578.
5
where consent might not easily be
refused. It does not involve public
conduct or prostitution. It does not
involve whether the government
must give formal recognition to any
relationship that homosexual persons
seek to enter. The case does involve
two adults who, with full and mutual
consent from each other, engaged in
sexual practices common to a
homosexual lifestyle. The petitioners
are entitled to respect for their private
lives. The State cannot demean their
existence or control their destiny by
making their private sexual conduct a
crime. Their right to liberty under the
Due Process Clause gives them the
full right to engage in their conduct
without intervention of the
government. “It is a promise of the
Constitution that there is a realm of
personal liberty which the
government may not enter.” The
Texas statute furthers no legitimate
state interest which can justify its
intrusion into the personal and
private life of the individual.
(Ladlad footnote 41 pp. 14-15)
[42]
x x x See also, L. and V. v
Austria (2003-I 29; (2003) 36
EHRR 55) and S.L. v Austria
(2003-I 71; (2003) 37 EHRR 39),
where the European Court
considered that Austria’s
differing age of consent for
heterosexual and homosexual
relations was discriminatory; it
‘embodied a predisposed bias
on the part of a heterosexual
majority against a homosexual
minority’, which could not
‘amount to sufficient
justification for the differential
treatment any more than
similar negative attitudes
towards those of a different
who are situated in relationships
where consent might not easily be
refused. It does not involve public
conduct or prostitution. It does not
involve whether the government must
give formal recognition to any
relationship that homosexual persons
seek to enter. The case does involve
two adults who, with full and mutual
consent from each other, engaged in
sexual practices common to a
homosexual lifestyle. The petitioners
are entitled to respect for their private
lives. The State cannot demean their
existence or control their destiny by
making their private sexual conduct a
crime. Their right to liberty under the
Due Process Clause gives them the
full right to engage in their conduct
without intervention of the
government. "It is a promise of the
Constitution that there is a realm of
personal liberty which the
government may not enter." Casey,
supra, at 847. The Texas statute
furthers no legitimate state interest
which can justify its intrusion into the
personal and private life of the
individual.
Source: Lawrence vs. Texas 539 U.S.
558, 578
In L. and V. v Austria65 and S.L. v
Austria66 the ECtHR considered
that Austria’s differing age of
consent for heterosexual and
homosexual relations was
discriminatory; it ‘embodied a
predisposed bias on the part of a
heterosexual majority against a
homosexual minority’, which
could not ‘amount to sufficient
justification for the differential
treatment any more than similar
negative attitudes towards those of
a different race, origin or colour’.67
65
L. andV. vAustria 2003-I 29; (2003)
36 EHRR 55.
66
S.L. vAustria 2003-I 71; (2003) 37
6
race, origin or colour’. EHRR 39.
67
L. andV. vAustria, supra n. 65; and
(Ladlad, footnote 42 pp. 15-16) S.L. vAustria, ibid. at para. 44.

Source: Sexual Orientation, Gender

Identity and International
Human Rights Law: Contextualising
the Yogyakarta Principles by Michael
O’Flaherty and John Fisher, Human
Rights Law Review (2008) 8(2), 207-
248, at 217.
Note:
(1) The Human Rights Law
Review is published by the
Oxford University Press.
(2) The journal article by
O’Flaherty and Fisher was never
cited in the Ladlad ponencia.
[44]
x x x Note that in Baczkowski 63. Referring to the hallmarks of a
and Others v. Poland, Application “democratic society”, the Court
No. 1543/06; Judgment of May 3, has attached particular importance
2007, the ECHR unanimously to pluralism, tolerance and
ruled that the banning of an broadmindedness. In that context,
LGBT gay parade in Warsaw was it has held that although
a discriminatory violation of individual interests must on
Article 14 of the ECHR, which occasion be subordinated to those
provides: of a group, democracy does not
simply mean that the views of the
The enjoyment majority must always prevail: a
of the rights balance must be achieved which
and freedoms ensures the fair and proper
set forth in [the] treatment of minorities and avoids
Convention any abuse of a dominant position
shall be secured (see Young, James and Webster v. the
without United Kingdom, 13 August 1981,
discrimination Series A no. 44, p. 25, § 63, and
on any ground Chassagnou and Others v. France
such as sex, [GC], nos. 25088/95 and 28443/95,
race, colour, ECHR 1999-III, p. 65, § 112).
language,
religion, Source: Paragraph 63 of Baczkowski
political or and Others v. Poland, Application
other opinion, No. 1543/06; Judgment of May 3,
national or 2007, a decision by the European
social origin, Court of Human Rights.
association with
a national
minority,
property, birth

7
 or other status.

It also found that banning

LGBT parades violated the
group’s freedom of assembly and
association. Referring to the
hallmarks of a “democratic
society”, the Court has
attached particular importance
to pluralism, tolerance and
broadmindedness. In that
context, it has held that
although individual interests
must on occasion be
subordinated to those of a
group, democracy does not
simply mean that the views of
the majority must always
prevail: a balance must be
achieved which ensures the fair
and proper treatment of
minorities and avoids any
abuse of a dominant position.
(Ladlad, footnote 44 p. 16)
[46]
xxxx When an expressive organization
So, too, in Boy Scouts of is compelled to associate with a
America v. Dale (530 U.S. 640 person whose views the group
[2000]), the US Supreme Court does not accept, the organization's
held that the Boy Scouts of message is undermined; the
America could not be compelled organization is understood to
to accept a homosexual as a embrace, or at the very least
scoutmaster, because “the Boy tolerate, the views of the persons
Scouts believe that homosexual linked with them. We therefore
conduct is inconsistent with the held, for example, that a State
values it seeks to instill in its severely burdened the right of
youth members; it will not expressive association when it
“promote homosexual conduct as required the Boy Scouts to accept an
a legitimate form of behavior.” openly gay scoutmaster. The
When an expressive scoutmaster's presence "would, at
organization is compelled to the very least, force the
associate with a person whose organization to send a message,
views the group does not both to the youth members and
accept, the organization’s the world, that the Boy Scouts
message is undermined; the accepts homosexual conduct as a
organization is understood to legitimate form of behavior." Boy
embrace, or at the very least Scouts of America v. Dale, 530 U. S. 640,
tolerate, the views of the 653 (2000).
persons linked with them. The
scoutmaster’s presence Source: Justice Antonin Scalia’s
“would, at the very least, force Dissenting Opinion in Washington

8
the organization to send a
message, both to the youth
members and the world, that
the Boy Scouts accepts
homosexual conduct as a
legitimate form of behavior.”
(Ladlad, footnote 46 p. 17)
[49]
The Committee on
Economic, Social and Cultural
Rights (CESCR) has dealt with
the matter in its General
Comments, the interpretative
texts it issues to explicate the
full meaning of the provisions
of the Covenant on Economic,
Social and Cultural Rights. In
General Comments Nos. 18 of
2005 (on the right to work)
(Committee on Economic,
Social and Cultural Rights,
General Comment No. 18: The
right to work, E/C.12/GC/18,
November 24, 2005), 15 of 2002
(on the right to water)
(Committee on Economic,
Social and Cultural Rights,
General Comment No. 15: The
right to water, E/C.12/2002/11,
November 26, 2002) and 14 of
2000 (on the right to the
highest attainable standard of
health) (Committee on
Economic, Social and Cultural
Rights, General Comment No.
14: The right to the highest
attainable standard of health,
E/C.12/2000/4, August 14,
2000), it has indicated that the
Covenant proscribes any
discrimination on the basis of,
inter-alia, sex and sexual
orientation.
The Committee on the
Rights of the Child (CRC) has
also dealt with the issue in a
General Comment. In its
General Comment No. 4 of
2003, it stated that, “State
State Grange v. Washington State
Republican Party, et al., 552 US 442,
at 463.
The Committee on
Economic, Social and Cultural
Rights (CESCR) has dealt with the
matter in its General Comments,
the interpretative texts it issues to
explicate the full meaning of the
provisions of the Covenant on
Economic, Social and Cultural
Rights. In General Comments Nos
18 of 2005 (on the right to work),37
15 of 2002 (on the right to water)38
and 14 of 2000 (on the right to the
highest attainable standard of
health),39 it has indicated that the
Covenant proscribes any
discrimination on the basis of,
inter-alia, sex and sexual
orientation ‘that has the intention or
effect of nullifying or impairing the
equal enjoyment or exercise of [the
right at issue]’. The CESCR has
consistently based this prohibition on
the terms of the Covenant’s anti-
discrimination provision, Article 2.2,
which lists invidious categories of
discrimination as
including ‘sex’ and ‘other status’.
Presumably, since the CESCR
distinguishes ‘sex’and ‘sexual
orientation’ in its General Comments,
it locates sexual orientation within the
rubric of ‘other status’. The CESCR,
in the General Comments, also
invokes the article addressing equal
rights of men and women, Article 3,
as a basis for its prohibition of sexual
orientation-related discrimination.
This linkage of the categories of sex
and sexual orientation-related
discrimination is discussed
subsequently in the context of the
practice of the Human Rights
9
parties have the obligation to
ensure that all human beings
below 18 enjoy all the rights set
forth in the Convention [on the
Rights of the Child] without
discrimination (Article 2),
including with regard to ‘‘race,
colour, sex, language, religion,
political or other opinion,
national, ethnic or social
origin, property, disability,
birth or other status’’. These
grounds also cover [inter alia]
sexual orientation”.
(Committee on the Rights of
the Child, General Comment
No. 4: Adolescent health and
development in the context of
the Convention on the Rights
of the Child, July 1, 2003,
CRC/GC/2003/4).
The Committee on the
Elimination of Discrimination
Against Women (CEDAW),
has, on a number of occasions,
criticized States for
discrimination on the basis of
sexual orientation. For
example, it also addressed the
situation in Kyrgyzstan and
recommended that,
“lesbianism be
reconceptualized as a sexual
orientation and that penalties
for its practice be abolished”
(Concluding Observations of
the Committee on the
Elimination of Discrimination
Against Women regarding
Kyrgyzstan, February 5, 1999,
A/54/38 at par. 128).
(Ladlad, footnote 49 p. 19)
Committee (HRC).
The Committee on the
Rights of the Child (CRC) has also
dealt with the issue in a General
Comment. In its General
Comment No. 4 of 2003,40 it stated
that, ‘State parties have the
obligation to ensure that all
human beings below 18 enjoy all
the rights set forth in the
Convention [on the Rights of the
Child] without discrimination
(Article 2), including with regard
to ‘‘race, colour, sex, language,
religion, political or other opinion,
national, ethnic or social origin,
property, disability, birth or other
status’’. These grounds also cover
[inter alia] sexual orientation’. The
CRC thus appears to adopt the same
approach as the CESCR in locating
sexual orientation within the category
of ‘other status’.
xxxx
The Committee on the
Elimination of Discrimination
against Women (CEDAW),
notwithstanding that it has not
addressed the matter in a General
Comment or otherwise specified the
applicable provisions of the
Convention on the Elimination of All
Forms of Discrimination Against
Women, on a number of occasions
has criticised States for
discrimination on the basis of
sexual orientation. For example, it
also addressed the situation in
Kyrgyzstan and recommended
that,‘lesbianism be
reconceptualised as a sexual
orientation and that penalties for
its practice be abolished’.44 The
Committee on the Elimination of
Racial Discrimination (CERD)
appears never to have engaged with
issues of discrimination against
10
persons who belong to both racial
and sexual minority groups. This gap
is startling when one considers the
authoritative evidence of such
persons facing forms of ‘double
discrimination’, as reported, for
instance, by the UN Human Rights
Council’s Special Rapporteur on
contemporary forms of racism, racial
discrimination, xenophobia and
related intolerance.45
37
Committee on Economic, Social
and Cultural Rights, General
Comment No. 18: The right to
work, E/C.12/GC/18, 24
November 2005.
38
Committee on Economic, Social
and Cultural Rights, General
Comment No. 15: The right to
water, E/C.12/2002/11, 26
November 2002.
39
Committee on Economic, Social
and Cultural Rights, General
Comment No. 14: The right to the
highest attainable standard of
health, E/C.12/2000/4, 11 August
2000.
40
Committee on the Rights of the
Child, General Comment No. 4:
Adolescent health and
development in the context of the
Convention on the Rights of the
Child, 1 July 2003, CRC/GC/
2003/4.
xxxx
44
Concluding Observations of the
Committee on the Elimination of
Discrimination Against Women
regarding Kyrgyzstan, 5 February
1999, A/54/38 at para. 128.
45
Report of the Special Rapporteur
on contemporary forms of racism,
racial discrimination, xenophobia and
related intolerance, Commission on
Human Rights, 28 February 2006,
E/CN.4/2006/16/Add.3 at para. 40.

Source: Sexual Orientation, Gender

Identity and International

11

[51]
The Yogyakarta Principles
on the Application of
International Human Rights
Law in relation to Sexual
Orientation and Gender
Identity is a set of international
principles relating to sexual
orientation and gender
identity, intended to address
documented evidence of abuse
of rights of lesbian, gay,
bisexual, and transgender
(LGBT) individuals. It contains
29 Principles adopted by
human rights practitioners and
experts, together with
recommendations to
governments, regional
intergovernmental institutions,
civil society, and the United
Nations.
(Ladlad footnote 51 p. 20)
Human Rights Law: Contextualising
the Yogyakarta Principles by Michael
O’Flaherty and John Fisher, Human
Rights Law Review (2008) 8(2), 207-
248, at 214-216.
Note:
(1) The Human Rights Law
Review is published by the
Oxford University Press.
(2) The journal article by
O’Flaherty and Fisher was never
cited in the Ladlad ponencia.
The Yogyakarta Principles on the
Application of International
Human Rights Law in relation to
Sexual Orientation and Gender
Identity is a set of international
principles relating to sexual
orientation and gender identity,
intended to address documented
evidence of abuse of rights of
lesbian, gay, bisexual, and
transgender (LGBT) people, and
further of intersexuality requested by
Louise Arbour according to the
International Human Rights Law.
Source: Wikipedia –
http://en.wikipedia.org/wiki/Yogyak
arta_Principles
It contains 29 Principles adopted
unanimously by the experts, along
with recommendations to
governments, regional
intergovernmental institutions,
civil society, and the UN itself.
Source: Human Rights Watch World
Report 2008, p. 36. Preview of the
book (as well as the relevant page) is
available at:
http://books.google.com/books?id=
4QL9BElMSbkC
12
 5. As evident from the above table, the same plagiaristic practice
seen in Vinuya are found in Ang Ladlad. To emphasize, the undersigned
counsels call the attention of the Honorable Court to the fact that even in the
earlier case of Ang Ladlad, entire paragraphs were lifted without attribution,
sentences, words or phrases were intercalated, and discursive footnotes were
represented as if the discussion in the footnotes were the ponente’s words, when
in fact these were lifted from unacknowledged sources.

6. Worse of all, in at least two instances, the source turned out to be

the Wikipedia (as in the discussion on the Yogjakarta principles .and that on the
case of Bowers v.Hardwick).5 This recalls a recent dismissal by the Court of
Appeals of an appeal by the Republic in connection with a nullity case because
the Solicitor General used Wikipedia as an authority in the pleadings it
submitted to the appellate court. At least, in the case of the Solicitor General, it
was honest enough to properly reference the web-based encyclopedia whose
reliability as an academic project is still under question. In this case, it appears
that the ponencia appropriated a reference from Wikipedia word for word,
without the due courtesy of citing it as a source of the direct quotation.

7. With due respect, this demolishes the “Microsoft Defense” that

has been deployed by this Honorable Court in its ruling to clear Justice Del
Castillo, for it shows a certain deliberateness, pattern, and habit in the way in
which these omissions and intercalations have been committed by the Ponente.

8. In fairness to Microsoft Word (MS Word), it is not correct to say

that MS Word does not have a signal to warn the user of deletions or changes
made in the electronic draft. It does have. It is called the “track changes”
function which has been available as early as the 1997 version of Mr. Bill Gates’
product. A popular website tutorial explains how this works (and we quote
from it word for word):

Q: What is Track Changes?

Track Changes is a way for Microsoft Word to keep track of the

changes you make to a document. You can then choose to accept
or reject those changes.
Let's say Bill creates a document and emails it to his colleague,
Lee, for feedback. Lee can edit the document with Track Changes
on. When Lee sends the document back to Bill, Bill can see what
changes Lee had made.
Track Changes is also known as redline, or redlining. This is
because some industries traditionally draw a vertical red line in the
margin to show that some text has changed.

Q: What do I need to know to use Track Changes?

5
See Nikko Dizon, Govt loses case for citing Wikipedia, August 29, 2010, Philippine Daily Inquirer,
available at http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100829-289336/Govt-loses-case-
for-citing-Wikipedia <last visited, November 11, 2010>

13
 To use Track Changes, you need to know that there are three
entirely separate things that might be going on at any one time:
• First, at some time in the past (last week, yesterday, one
millisecond ago), Word might have kept track of the changes you
made. It did this because you turned on Track Changes. Word
then remembered the changes you made to your document, and
stored the changes in your document.
• Second, if Word has stored information about changes
you've made to your document, then you can choose to display
those changes, or to hide them. Hiding them doesn't make them
go away. It just hides them from view. (The only way to remove
the tracked changes from your document is to accept or reject
them.)
• Third, at this very moment in time, Word may be tracking
the changes you make to your document.
Just to make the point:
• Word may, or may not, be currently keeping track of the
changes you make.
• At the same time, Word may, or may not, have stored
changes you made to the document at some point in the past.
• And, at the same time, Word may, or may not, be
displaying those tracked changes. Turning off (ie, hiding) the
tracked changes doesn't remove them. It just hides them. To
remove the tracked changes from the document, you must accept
or reject them6

9. The ineffectivity of the “Microsoft Defense” all the more

bolsters the revelation that a deliberate cut-and-paste habit and practice ---
with no intent of attribution --- had been resorted to in two landmark rulings
of this Honorable Court with Justice Del Castillo as ponente.

THE PATTERN AND HABIT OF PLAGIARISM

SEEN IN ANG LADLAD AND VINUYA
CONSTITUTE –AT THE VERY LEAST –
INEXCUSABLE GROSS NEGLIGENCE ON THE
PART OF THE PONENTE

10. The new findings of plagiarism in Ang Ladlad have exposed a

clear pattern and habit of plagiarism, and have removed all doubts about the
existence in Vinuya of a deliberate attempt to pass of as the Judgment’s own
words, sentences and citations that were the product of the intellectual labors
of others.

6
Shaunna Kelly, How does track changes in MicroSoft Word Work? available at
http://www.shaunakelly.com/word/sharing/howtrackchangesworks.html#WhatIsTrackChanges <last
visited, November 12, 2010>

14
 11. Thus both cases now bring to the fore the question of Justice Del
Castillo’s responsibility for these very serious lapses that have now
unfortunately dragged the entire High Court, given that both cases were
decisions made en banc and were each signed by an overwhelming majority of
the Justices of the Supreme Court.

12. As earlier noted in our submissions to the Committee on Ethics

and Ethical standards, given the incredible load of cases brought before the
Supreme Court, any and every Justice is not precluded from utilizing the
services of law clerks to research on points of law at issue as well as to prepare
memoranda; it is not disputed that such a system is an absolute necessity for
there to be a modicum of orderly and sound administration of justice by the
High Court.

13. However, it does not and should not mean the surrender by a
Justice of the Supreme Court of control and supervision of the writing of the
Judgment of the Court to a law clerk, considering that ultimately it is the Justice
himself assigned as the reporting judge or ponente by the majority who is
responsible for the writing of what eventually becomes the Court’s judgment
on a case.

14. The undersigned counsels beseech the Supreme Court to

consider the angle that, at the very least, there is a grave failure on the part of
Justice Del Castillo to properly supervise his law clerk in the preparation and
eventually submission of the draft that would eventually become the High
Court’s judgment in the cases at hand. The undersigned counsels beseech the
Supreme Court to consider the angle that such failure constitutes inexcusable gross
negligence on his part.

15. In the case of Vinuya, the following facts establish this:

16. The legal researcher told the Committee on Ethics and Ethical
standards that she submitted her draft in Vinuya in late March – the 27th of
March, if the undersigned’s recollection of her testimony before the Committee
is correct.

17. But Justice Del Castillo, in his verified statement to the Office of
the Chief Justice, declares that the draft went through at least three revisions
before it was issued as the High Court’s Judgment of April 28, 2010.

18. He thus says:

….We recall that this ponencia was thrice included in the Agenda of
the Court en banc. It was deliberated upon during the Baguio
session on April 13, 2010, April 20, 2010 and in Manila on April
27, 2010. Each time, suggestions were made which necessitated
major revisions in the draft. Sources were re-studied, discussions

15
 modified, passages added or deleted. The resulting decision
comprises 34 pages with 78 footnotes.7

19. Pursuant to Justice Del Castillo’s Verified Statement, the Justice

and his law clerk – with a good helping from the other members of the Court
en banc – have had three opportunities to correct whatever errors and omissions
the law clerk’s draft contained from the time she submitted it to Justice Del
Castillo on March 27, 2010 to the time the Court’s Judgment on the Vinuya
petition was promulgated on April 28, 2010.

20. Moreover, “[s]ources were re-studied” during these three sessions

held by no less than the Court en banc, according to Justice Del Castillo. In fact,
just the day before the Judgment was released, the draft went through a final
deliberation with the Court en banc, where, as Justice Del Castillo said, the
sources were again re-studied.

21. This admission on the part of Justice Del Castillo gives a hollow ring to the
law clerk’s claim of accidental deletion of references to the purloined articles all the more so
because, as Justice Sereno notes in her dissenting opinion, “the researcher’s
explanation regarding the accidental deletion of 2 footnotes out of 119 does
not plausibly account for the extensive amount of text used with little to no
modifications from the works of Criddle & Fox-Decent and Ellis. As was
presented …. copied text occurs in 22 instances in pages 27, 31, and 32 of the
Vinuya decision. All these instances of non-attribution cannot be remedied by
the reinstatement of 2 footnotes.”

22. As Justice Sereno noted extensively in her dissent in Vinuya:

First, for a decision to make full attribution for lifted passages,

one starts with block quote formatting or the “keying-in” of
quotation marks at the beginning and at the end of the lifted
passages. These keyed-in computer commands are not easily
accidentally deleted, but should be deliberately inputted where
there is an intention to quote and attribute.

Second, a beginning acknowledgment or similar introduction to a

lengthy passage copied verbatim should not be accidentally
deleted; it must be deliberately placed.

Third, the above explanation regarding the lines quoted in A.1 in

the majority Decision may touch upon what happened in incident
A.1, but it does not relate to what happened in incidents B.1 to
C.6 of the Tables of Comparison, which are wholesale lifting of
excerpts from both the body and the footnotes of the referenced
works, without any attribution, specifically to the works of Criddle

7
Letter of Justice Mariano Del Castillo to the Office of the Chief Justice, dated July 22, 2010 but verified
on July 30, 2010.

16
& Fox-Decent and of Ellis. While mention was made of Tams’s
work, no mention was made at all of the works of Criddle & Fox-
Decent and of Ellis even though the discussions and analyses in
their discursive footnotes were used wholesale.

Fourth, the researcher’s explanation regarding the accidental

deletion of 2 footnotes out of 119 does not plausibly account for
the extensive amount of text used with little to no modifications
from the works of Criddle & Fox-Decent and Ellis. As was
presented in Tables B and C, copied text occurs in 22 instances in
pages 27, 31, and 32 of the Vinuya decision. All these instances of
non-attribution cannot be remedied by the reinstatement of 2
footnotes.

Fifth, the mention of Tams in “See Tams, Enforcing Obligations

Erga omnes in International Law (2005)” in footnote 69 of the
Vinuya decision was not a mere insufficiency in “clarity of
writing,” but a case of plagiarism under the rule prohibiting the
use of misleading citations.

Sixth, the analogy that was chosen ─ that of a carpenter who

discards materials that do not fit into his carpentry work ─ is
completely inappropriate. In the scheme of “cutting and pasting”
that the researcher did during her work, it is standard practice for
the original sources of the downloaded and copied materials to be
regarded as integral parts of the excerpts, not extraneous or ill-
fitting. A computer-generated document can accommodate as
many quotation marks, explanatory notes, citations and
attributions as the writer desires and in multiple places. The limits
of most desktop computer drives, even those used in the Supreme
Court, are in magnitudes of gigabytes and megabytes, capable of
accommodating 200 to 400 books per gigabyte (with each book
just consuming roughly 3 to 5 megabytes). The addition of a
footnote to the amount of file space taken up by an electronic
document is practically negligible. It is not as if the researcher
lacked any electronic space; there was simply no attribution.

Seventh, contrary to what is implied in the statement on

Microsoft Word’s lack of an alarm and in paragraph 4 of the
decretal portion of the majority Decision, no software exists that
will automatically type in quotation marks at the beginning and
end of a passage that was lifted verbatim; these attribution marks
must be made with deliberate effort by the human researcher. Nor
can a software program generate the necessary citations without
input from the human researcher. Neither is there a built-in
software alarm that sounds every time attribution marks or
citations are deleted. The best guarantee for works of high

17
 intellectual integrity is consistent, ethical practice in the writing
habits of court researchers and judges….8

23. And with more plagiarism more or less of the same mold coming
out of the woodwork in Ang Ladlad, it is regretfully not difficult to conclude
that the truth was not being told when the defense of inadvertence was being
offered by Justice Del Castillo in the case of Vinuya.

24. Justice Ma. Lourdes Aranal-Sereno’s dissent dated October 15,

2010 made it all the more clear to the undersigned counsels what the stakes in
this controversy are for the Bench and Bar and for the public at large. We thus
invoke all points raised in the entirety of her dissenting opinion as additional
grounds for the Honorable Court to reconsider its questioned decision.

THE HONORABLE COURT’S

HOLDING IN THIS CASE IS CONTRARY
TO ITS OWN RULES ON
INTELLECTUAL PROPERTY AND THE
USE OF INFORMATION TECHNOLOGY
FACILITIES IN THE SUPREME COURT.

25. On March 15, 2005, this Honorable Court issued AM No. 05-3-
08-SC to govern the use in the Supreme Court of computer resources. Its
general policy statement provides that “[t]he use of IT facilities and computer
resources provided by SC entails responsibility to use these resources in an
efficient, ethical and lawful manner consistent with the mission and vision of
the Court. To this end, every user must use SC's computer resources in a
responsible, professional, and ethical manner and within legal and
proper boundaries.”9

26. Section X of the administrative issuance, entitled PROPER USE

AND PROHIBITED ACTS IN UTILIZATION OF THE INFORMATION
TECHNOLOGY FACILITIES AND RESOURCES, detailed acts considered
as violations of the High Court’s information technology facilities and
resources, to wit:

1. Use of Copyrighted Material Without Attribution.

These include but are not limited to copying, reproduction,
8
In 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, Justice Sereno, dissenting.
9
The existence of this administrative issuance by the Supreme Court was first brought to the attention of
the undersigned counsel by the signed statement of faculty members of the Lyceum Philippines University
College of Law dated October 25, 2010 and entitled “Lyceum of the Philippines University College of Law
Faculty Statement on Plagiarism & the Supreme Court.” It is available at
http://sc.judiciary.gov.ph/rulesofcourt/2005/am_05_3_08_sc.htm <last visited, Nov. 10, 2010>

18
 dissemination, distribution, use, importation, removal, alteration,
substitution, modification, storage, uploading, downloading,
communication, publication or broadcasting of
copyrighted material not property attributed; and infringement of
intellectual property rights belonging to others through the use of
telecommunications networks, which is a criminal offense
under Section 33(b) of the Electronic Commerce
Act.[emphasis and italics supplied]

….

5. Plagiarism. Prohibited acts include, but are not limited

to, 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; submitting the shared file, or
a modification thereof, as one's individual work, when the work is
a collaborative work, or part of a larger project; and such other
related acts of cheating. [Emphasis supplied]

27. The plagiarism and misrepresentation in the Vinuya ruling involve

both the (1) unauthorized and improper use of copyrighted material and (2)
plagiarism, which are covered by AM No. 05-3-08-SC. Under this
administrative order on Computer Guidelines and Policies, malicious
intent is not an element of the offense of copyright violation and
plagiarism.

28. It must be noted that under the Computer Guidelines and Policies, any
court staff who connects his or her personal computer equipment to the
Supreme Court’s informational technology facilities is covered as well by it, as
provided for by the last paragraph of Section III, to wit:

For purposes of implementing these policies, any other

equipment, computer unit, or external network, when attached
to, or used to access and/or interact with any component of
the IT facilities and resources of the Court, shall also be
considered part of the Court's IT system.

29. Moreover, Section X para. 1 of the Computer Guidelines and Policies

clearly recognizes the applicability of copyright laws to the High Court’s
rulings, including failure to properly attribute sources and misrepresentation.

30. In this connection, while Section 184 (k) of Republic Act No.
8293, or the Intellectual Property Code of the Philippines, provides that “any
use made of a work for the purpose of any judicial proceedings” shall not
constitute infringement of copyright,” its immediately succeeding paragraph,
Section 184.2, must also be taken into consideration. Section 184. 2 states that
“the provisions of this section shall be interpreted in such a way as to allow the
work to be used in a manner that does not conflict with the normal

19
exploitation of the work and does not unreasonably prejudice the right holder’s
legitimate interests.”

31. In other words, Section 184(K) cannot be interpreted as to mean

that wholly lifting from the sources without proper attribution – and worse –
misrepresenting the original purposes of the same sources is “normal
exploitation” that “does not unreasonably prejudice the right holder’s legitimate
interests.”

32. It is submitted that the Computer Guidelines and Policies cannot be

interpreted as to mean the wanton violation of an author’s moral rights as
outlined in Section 193 of the same law. This section provides that:

Sec. 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;

193.2. To make any alterations of his work prior to, or to

withhold it from publication;

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; and

193.4. To restrain the use of his name with respect to

any work not of his own creation or in a distorted
version of his work. (Sec. 34, P. D. No. 49) [emphasis
supplied].

33. With due respect, all three authors – Professors Criddle and Tams
and Dr. Ellis – have raised an issue as to the failure of the Court’s Judgment in
Vinuya to properly attribute to them sections of their work used in the Judgment
as well as what they believe is the distortion of their work prejudicial to their
honor or reputation. In other words, what they have brought to this Honorable
Court are claims to their moral rights as authors that all of them believe, had
been violated in this instance.

34. In its ruling, this Honorable Court calls the charge of twisting or
misrepresentation “reckless and obtuse.” First, with due respect, when all three
authors raise a common complaint that their academic work had been hijacked

20
for purposes other than what they intended, it is not reckless or obtuse. It is a
serious charge by no less than the authors themselves. What this Honorable
Court fails to adequately explain is why all three authors feel aggrieved and raise
the same complaint. All that it has given the authors is a dismissive swish of the
hand. Second, plagiarism is precisely the failure to properly attribute. An
informed reader who comes across the Judgment and is familiar with the works
of the authors will be able to tell not only the fact of plagiarism but also the
fact that the works purloined actually say otherwise. But that is even beside the
point; the injury in plagiarism and twisting or misrepresentation is precisely to the authors. It
is first and foremost, a crime against the creative work of an author. That is
why in the Intellectual Property Code, a provision has been laid to protect their
moral rights, including the right of an author “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” (Sec. 193.3)
and “to restrain the use of his name with respect to any work not of his own
creation or in a distorted version of his work (Sec. 194.4).” The injury they
suffered, according to the authors, is grievous: first, their very words were
stolen and made to appear as if these belonged to the writer of the ponencia;
worse, the ponencia used the very same words to support a conclusion that is
contrary to what their academic works say.

35. This Honorable Court’s Computer Guidelines and Policies require no

less than the enforcement of the three authors’ moral rights to their works, the
violation of which is criminal in nature under the Intellectual Property Code and
additionally, under the Electronic Commerce Act, where the violation was made
through the use of telecommunication networks such as the internet.

36. As evidence of the State’s policy acknowledgment of the grave

and serious nature of copyright infringement, the laws of the land --- Section
217 of the Intellectual Property Code in particular --- even provide criminal
penalties of one (1) to nine (9) years of imprisonment for copyright
infringement.

37. This policy acknowledgment of the grave and serious nature of

copyright infringement is all the more bolstered by a similar criminal penalty of
six (6) months to three (3) years under Section 33 of RA8792, the Electronic
Commerce Act, for the following acts:

“Piracy or the unauthorized copying, reproduction,

dissemination, distribution, importation, use, removal,
alteration, substitution, modification, storage, uploading,
downloading, communication, making available to the public, or
broadcasting of protected material, electronic signature or
copyrighted works including legally protected sound recordings
or phonograms or information material on protected works,
through the use of telecommunication networks, such as, but
not limited to, the internet, in a manner that infringes intellectual
property rights. . .”

21
 38. With all due respect, the inevitable publication through this
Honorable Court’s website of its Judgment containing material that violated the
three complaining authors’ moral rights protected by law is also a violation of
the above-cited provision of the Electronic Commerce Act.

39. Under the Supreme Court’s Computer Guidelines and Policies, the
offended party is the High Court itself as an institution; the infraction of
copyright laws and of the prohibition on plagiarism is committed against itself.
It need not wait for the authors whose works had been infringed by an
offending member of the Court or any of its staff in violation of the very same
Guidelines and Policies to complain. It can penalize the offending party on the
basis of the same Guidelines and Policies, without prejudice to criminal action
provided for under the Intellectual Property Code and the E-Commerce Act.

40. With all due respect, when the offended parties – as in the case of
the three authors in this case – have already raised a pother over the brazen
violation of their authorial rights, the High Court must not look the other way
and ignore their complaints.

41. At the very least, a corrigendum as called for by the dissenting

opinion of Justice Sereno is in order – one that not only clearly spells out all the
hitherto unacknowledged sources used in the Judgment but also reflects the true
sentiments of the three authors as originally expressed in their academic work
but which were twisted by the ponencia to suit its desired conclusions in the
controversy.

THIS HONORABLE COURT’S

INSISTENCE OF “MALICIOUS INTENT”
AS AN ELEMENT OF PLAGIARISM AND
COPYRIGHT INFRINGEMENT PUTS IN
PERIL THE SOCIETAL VALUES IT
REPRESENTS AS THE COUNTRY’S
SUPREME INTERPRETER OF THE
LAWS OF THE LAND.

42. If this Honorable Court has been caught in the “public eye”10 on
account of the allegations of plagiarism and misrepresentation in Vinuya, it is
only because as the supreme interpreter of the law, the public expects of the
Supreme Court to be the embodiment of honesty, integrity, competence,
excellence and principled discourse. When it speaks, the public expects to hear
it speak with a voice that is at once authoritative and credible.

10
See Fr. Joaquin Bernas, S.J., Sounding Board, The SC in the public eye, Philippine Daily Inquirer,
November 2, 2010, available at http://opinion.inquirer.net/inquireropinion/columns/view/20101101-
300833/The-SC-in-the-public-eye <last visited November 11, 2010>.

22
 43. Indeed, what Edward Lazarus wrote of the American Supreme
Court in his now famous book may very well apply to the Philippine Supreme
Court: “The Court is both a microcosm and a model for the nation as a whole.
The ruptures in its cultures are the ones we share and partially impose. And, by
the same measure, the Court’s mending could be an inspiration for our own.”11

44. But already, various academic institutions have expressed their

grave concern over the terrible implications of this Honorable Court’s
questionable ruling to the country’s intellectual and academic enterprise. Yet we
hold out faith that this Honorable Court is not above recognizing the
experience and the wisdom that comes with it of these very institutions that
face the challenges of plagiarism and misrepresentation on a daily basis – our
schools, colleges and universities.

45. We earnestly plead that this Honorable Court consider their pleas
made in the name of intellectual integrity, honesty and academic freedom:

46. Key paragraphs of the Lyceum Philippines University

College of Law Statement:

We believe that by determining that no plagiarism took place in

the "Vinuya" case, because the evident copying was done without
"malicious intent," the Supreme Court establishes a dangerous
precedent. It lowers the standards of conduct that the court has
expected of its officers,

The Lyceum of the Philippines University College Law regrets

that, by its Decision in AM No. 10-10-4-SC, dated October 19,
2010, the Supreme Court disregarded and ignored its own
decisions, rules and regulations when it did not hold any person
responsible for copying and infringing intellectual property rights
of foreign academicians; did not require any person to apologize
for the oversight (if that is what it was); and did not issue a
corrected decision in the Vinuya case with proper attributions.

What now will lawyers who teach tell their students? That it is all
right to copy another person’s work WITHOUT PROPER
ATTRIBUTION as long as there is no “malicious intent?”

The reach of the Supreme Court’s unfortunate decision will affect

not just the legal and judicial professions, but also all fields where
ownership of creative work is cherished and protected as
sacrosanct.12

11
EDWARD LAZARUS, CLOSED CHAMBERS: THE RISE, FALL AND FUTURE OF THE MODERN SUPREME COURT
11 (Rev. ed. 1999).
12
Dated October 25, 2010.

23
 47. The University of the Philippines Diliman Executive
Council Statement in full:

We, the University of the Philippines Diliman Executive

Committee, denounce plagiarism and uphold academic integrity.

As educators, scholars and researchers, our worth is measured by

the integrity, excellence and discipline we bring to our work.
Plagiarism undermines that integrity and destroys the value of
scholarship.

We strongly disagree with the Supreme Court’s decision to

exonerate Justice Mariano del Castillo from charges of plagiarism
based on the lack of malice or negligence on his part (in In Re:
Del Castillo, A.M. No. 10-7-17-SC, 15 October 2010).

The lack of malice or intent does not excuse the act of plagiarism.

The Court has undermined academic freedom by threatening to

discipline 37 faculty members of the UP College of Law for taking
a principled position on a grave academic concern.

We stand by the UP College of Law Faculty for speaking out

against plagiarism.

We ask the Supreme Court to withdraw the “show cause” order

against the 37 faculty members of the UP College of Law.13

48. From the Loyola Schools of the Ateneo De Manila

University’s Statement in full:

On October 12, 2010, the Supreme Court issued its decision on

A.M. No.10-7-17-SC (In the Matter of the Charges of Plagiarism,
etc. against Associate Justice Mariano C. Castillo), where it was
indicated that "plagiarism presupposes intent, and a deliberate,
conscious effort to steal another's work and pass it off as one's
own". Since this statement seems to contradict what has long
been our understanding of the essential nature of plagiarism, the
Loyola Schools of the Ateneo de Manila University is compelled
13
Dated October 27, 2010 and available at http://www.upd.edu.ph/~updinfo/index129.html <last visited
November 11, 2010>. The Council is composed of the Deans/Directors of the different Colleges and
Schools in UP Diliman, including the Chancellor, Vice Chancellors, University Registrar and three
members-at-large.

24
 to issue this memorandum restating its policy and practices that
relate to acts of plagiarism:

1. The Loyola Schools takes very seriously all cases of academic

dishonesty including acts of plagiarism.

2. As articulated in the Loyola Schools Code of Academic

Integrity (A Student Guide), the objective act of "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 occured. Students
who plead ignorance or appeal to lack of malice are not
excused."

3. Aspects pertaining to intent are considered during the

determination of the appropriate sanctions. The specific context
of the violation is studied to ensure that the sanctions are
proportional to the gravity of the offense, which incorporates
awareness, willfulness, and acknowledgement of wrongdoing,
among others.

4. The foregoing Supreme Court decision notwithstanding, the

Loyola Schools' understanding and definition of what constitutes
plagiarism has not changed. Cases of plagiarism will continue to
be handled in the same manner, and with the same regard for due
process, as stipulated in the Student Handbook.

The Loyola Schools reiterates its position that academic honesty

and the acknowledgement of sources is not simply a matter of the
correct use of quotation marks, placement of footnotes, or
acquisition of permissions; it is a question of personal discipline
and moral character. The school's resolve on the stringent
requirements in the proper acknowledgement of sources goes to
the heart of its mission in forming persons for others-persons
who value truth, respect, gratitude, integrity and justice.14

49. The Catholic Educational Association of the Philippines

(CEAP) statement in full:

The highest tribunal has set a higher threshold for plagiarism to

be made punishable, and so may in fact abet plagiarism. What is
the rationale for this? While it may seem reasonable to require
14
Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149 <last visited
November 10, 2010> For that matter, the Ateneo Law School, through its dean, issued a statement to the
effect that the law school will als keep to its standard of plagiarism as being defined by the act itself and
not by intent. Sophia M. Dedace, Ateneo law to stand by plagiarism guidelines despite SC ruling,
gmanews.tv, November 9, 2010, available at http://www.gmanews.tv/story/205558/ateneo-law-to-stand-
by-plagiarism-guidelines-despite-sc-ruling <last visited, November 15, 2010>.

25
 “malicious intent” for an act of plagiarism, there can be no
argument that plagiarism is still intellectual dishonesty and as
such, one must be held accountable for such deplorable act. If a
student quotes verbatim from another person's text
“inadvertently,” or "carelessly,” or “without knowing this was
another’s text”, is there no plagiarism here since there was no
“malicious intent”? If a ghostwriter or a student in one’s study
group has plagiarized texts for which another person is to take
credit, is that person not co-responsible for his/her plagiarism?

How could our schools effectively teach the values of intellectual

integrity and responsibility if in the light of the Supreme Court’s
ruling, it could not take punitive action against such forms of
plagiarism? In this sense, the Supreme Court’s decision abets a
culture of intellectual sloth and dishonesty. For plagiarism is not
only a legal issue but more importantly, a moral one. As
institutions of learning, it is incumbent upon schools to develop
in students the discipline of research and inculcate in them the
values of excellence, responsibility, accountability, respect,
honesty and integrity.[emphasis in the original].15

50. The COCOPEA Statement in full:

The Coordinating Council of Private Educational Associations

(COCOPEA), with due respect, takes exception to the decision
of the Supreme Court in the case entitled, “In the matter of the
charges of plagiarism, etc. against Associate Justice Mariano C.
del Castillo.”

As educators, we are alarmed by the Supreme Court ruling that

plagiarism cannot be committed without “malicious intent”.
How can we now discipline our students who copy the works
and writings of other authors without attribution when they can
simply take refuge behind the Supreme Court ruling?

Plagiarism is intellectual dishonesty. It is thievery of intellectual

property. In the world of the academe, it is punished most
severely.

To treat plagiarism in a cavalier fashion is to fling the door wide

open to flagrant violations against intellectual property and
invite intellectual thefts without fear of punitive sanction. This
academic atmosphere is not only deleterious to scholarly
pursuits, but more so to the moral fiber of young minds, but
more importantly, it detracts from the essential purpose of the

15
Full text available at http://www.ceap.org.ph/cms/NewsList.aspx?News=66 <last visited November 10,
2010> published on p. A15 Philippine Daily Inquirer and p.17 Philippine Star, November 9 2010 .

26
 Higher Education Institution (HEI) to be the cradle of original
ideas. It is for this reason that the right of academic freedom is
granted to HEIs.

In view thereof, we implore the Supreme Court, most

respectfully, to follow “The Way Forward” of Justice Sereno's
Dissenting Opinion as the only way by which it can maintain its
judicial dignity.16

51. Key paragraphs of the DLSU College of Law Statement

….
On previous occasions, the Court defined plagiarism as the act of
using another’s work without the author’s consent. Plagiarism—as
the Court defined it then—did not require any malicious intent. In
deciding the ethics case of Justice del Castillo, however, the Court
added 'intent to deceive' as an essential element of plagiarism:
'…Thus, plagiarism presupposes intent and a deliberate, conscious
effort to steal another’s work and pass it off as one’s own.'

Applying this definition, the Court exonerated Justice del Castillo

because '…there was…never any malicious intent [on his part] to
appropriate another’s work as our own….'

But plagiarism in academic circles has never required intent to

deceive. For us, plagiarism caused by negligence or recklessness is
still plagiarism. The lack of malicious intent may mitigate the
penalty, but does not negate the plagiarism itself. With the Court’s
new definition of plagiarism, we are left to wonder: is this the
standard that we should now apply to our students?17

52. “Unless reconsidered, this Court would unfortunately be

remembered as the Court that made `malicious intent' an indispensable
element of plagiarism and that made computer-keying errors an
exculpatory fact in charges of plagiarism, without clarifying whether its
ruling applies only to situations of judicial decision-making or to other
written intellectual activity,” so said Justice Sereno in her dissenting opinion.
“It will also weaken this Court’s disciplinary authority ─ the essence of which
proceeds from its moral authority ─ over the bench and bar. In a real sense,
this Court has rendered tenuous its ability to positively educate and influence
the future of intellectual and academic discourse.”18

16
Statement entitled “In Defense of Honesty and Integrity,” published on p. A15 Philippine Daily Inquirer
and p.17 The Philippine Star, November 9, 2010.
17
Published on p. 8. The Philippine Star, November 9, 2010.
18
In 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, Justice Sereno, dissenting.

27
 53. Indeed, because of this Honorable Court’s unfortunate ruling,
schools and universities have been forced to make emphatic reminders that
their policy on plagiarism remains unchanged, the Supreme Court’s new
pronouncement on the question notwithstanding.

54. For, because of the High Court’s ruling, their students can always
invoke to their favor “lack of malicious intent” and the programming flaws in
their word processing software of choice (henceforth known as the “Microsoft
Defense”) as impenetrable hurdles to a charge of plagiarism.

55. But notwithstanding its virtual and implied pronouncement that

naming plagiarism where it exists is hypocrisy,19 we do not believe that this
Honorable Court accepts the proposition that the intellectual and academic
fitness it requires of its magistrates is decidedly lower than what the average
Philippine college or university asks of its students.

56. Too, undersigned counsels cannot begin to imagine what the

implications of this ruling would be to the publishing world, where copyrights
to published works are closely guarded and protected. It definitely has serious
implications on how the Philippines will be able to comply with its
international commitments to protect the copyrights of foreign works being
sold locally – now that this Honorable Court has come out with a ruling
requiring malicious intent as an element in plagiarism and software
programming flaws as a defense to the same charge and considering that under
the Berne Convention for the Protection of Literary and Artistic Works, of
which the Philippines is a state party, plagiarism is defined according to result
and not according to intention.”20

19
As Justice Sereno wrote:

It is not hypocrisy, contrary to what is implied in a statement in the majority Decision, to

make a finding of plagiarism when plagiarism exists. To conclude thus is to condemn
wholesale all the academic thesis committees, student disciplinary tribunals and editorial
boards who have made it their business to ensure that no plagiarism is tolerated in their
institutions and industry. In accepting those review and quality control responsibilities,
they are not making themselves out to be error-free, but rather, they are exerting
themselves to improve the level of honesty in the original works generated in their
institution so that the coinage and currency of intellectual life – originality and the
attribution of originality – is maintained. The incentive system of intellectual creation is
made to work so that the whole society benefits from the encouraged output. In 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, Justice Sereno, dissenting.
20
On this point, see Reiner Padua, SC ruling on plagiarism issue a violation of international convention on
copyright, The Philippine Star, October 23, 2010, available at
http://www.philstar.com/Article.aspx?articleid=623377 <Last visited, November 15, 2010>

28
JUSTICE DEL CASTILLO’S CONDUCT
IN VINUYA AND ANG LADLAD IS A
SERIOUS BREACH OF JUDICIAL ETHICS

57. With all due respect, Justice Del Castillo is ultimately responsible
for the acts of plagiarism in both Ang Ladlad and Vinuya. He signed both
decisions as the product of his own intellectual labors. Ultimately, both
decisions are his.

58. His gross negligence that led to the drafting of a Judgment based
on plagiarized and twisted sources in Vinuya and plagiarized sources in Ang
Ladlad, and his misrepresentation in his Verified Statement to the Office of the
Chief Justice constitute grave violations of this Honorable Court’s AM No. 03-
05-01-SC issued on April 27, 2004, which adapts the Bangalore Code of
Judicial Ethics.

59. Canon 2 of the Code, which pertains to judicial integrity,

provides:

Integrity is essential not only to the proper discharge of the

judicial office but also to the personal demeanor of judges.

SECTION 1. Judges shall ensure that not only is their conduct

above reproach, but that it is perceived to be so in the view of a
reasonable observer.

SEC. 2. The behavior and conduct of judges must reaffirm the

people’s faith in the integrity of the judiciary. Justice must not
merely be done but must also be seen to be done.

SEC. 3. Judges should take or initiate appropriate disciplinary

measures against lawyers or court personnel for unprofessional
conduct of which the judge may have become aware.

60. Moreover, the relevant provisions of Canon 6 of the same Code,

on competence and diligence, provide:

Competence and diligence are prerequisites to the due

performance of judicial office.
….
SEC. 3. Judges shall take reasonable steps to maintain and
enhance their knowledge, skills and personal qualities necessary
for the proper performance of judicial duties, taking advantage for
this purpose of the training and other facilities which should be
made available, under judicial control, to judges.

29
 SEC. 4. Judges shall keep themselves informed about relevant
developments of international law, including international
conventions and other instruments establishing human rights
norms.

SEC. 5. Judges shall perform all judicial duties, including the

delivery of reserved decisions, efficiently, fairly and with
reasonable promptness.
….
SEC. 7. Judges shall not engage in conduct incompatible with the
diligent discharge of judicial duties.

61. His conduct in both Vinuya and Ang Ladlad has raised in the
public mind serious questions on his integrity and competence. His conduct
has even unfortunately caused the entire Supreme Court to suffer
international humiliation.

62. Moreover, instead of initiating disciplinary proceedings against

the law clerk who claims responsibility for the plagiarism and
misrepresentation that have been pointed out in Vinuya, he covered up her
misdeeds, in violation of Canon 2, Section 3 of the Judicial Code of Ethics,
which states that “[j]udges should take or initiate appropriate disciplinary
measures against lawyers or court personnel for unprofessional conduct of
which the judge may have become aware.”

63. By refusing and disapproving his law clerk’s repeated offers of

resignation, Justice Del Castillo has not only tolerated but has given virtual
imprimatur to the gross violations of the Intellectual Property Code, and the E-
Commerce Act.

64. This he did, despite knowing fully well that copyright

infringement and plagiarism are penalized under the High Court’s Computer
Guidelines and Policies (AM No 05-3-08-SC), the Intellectual Property Code, and the
E-Commerce Act.

65. This he did, despite the serious and grave implications of his law
clerk’s omissions on the very integrity of the Judgment he himself signed and an
overwhelming majority of the Court en banc had been made to concur in full.

66. With all due respect, undersigned counsels regretfully point out
that because of Justice Del Castillo’s gross negligence, a Judgment based on
plagiarized and twisted sources has been released to the public domain through
the Court’s website – an act that, according to the same Guidelines and Policies, is
criminal in nature under the E-Commerce Act.

67. Unfortunately, his gross negligence has dragged the Court en banc
in this issue of gross violations of national, foreign, and international
intellectual property laws now displayed to the whole world through the

30
internet. For every day that the Judgment is posted on the Court’s website
uncorrected, the violation is repeated.

68. Indeed, even if the complaining authors do not seek legal redress
under Philippine jurisdiction for the violation of their moral rights as authors,
the Court injures itself continually for as long as it refuses to uphold its own
Computer Guidelines and Policies.

69. Plagiarism by itself is a serious breach of the lawyer’s code of

ethics.

70. In New York, a lawyer was publicly censured by the Appellate

Division of the Supreme Court of New York after he was found to have
plagiarized writing samples he submitted to a legal assistance program for
criminal defendants. The Court said his plagiarism violated several sections of
the Code of Professional Responsibility, including prohibitions on dishonesty,
fraud, deceit and misrepresentation.21

71. In Australia, a judge of the Federal Court in Brisbane was forced

to resign after she was exposed as a “serial plagiarist.”22

72. Judge Jeniffer Rimmer’s plagiarism first came to light when a

judgment she had written in a sexual harassment case was found to have copied
more than 2000 words written by another judge in his judgment in a different
case. Although Judge Rimmer gave assurances that she had plagiarized in that
case only, more of her plagiarized judgments were uncovered by journalists and
lawyers, thus raising questions about her integrity and professionalism.23

73. Given all the above, and with all due and utmost respect, it
should not be unreasonable to point out that a resignation by Justice Del
Castillo from his post becomes necessary to save the hallowed institution that
is the Supreme Court from continuing embarrassment resulting from Justice
Del Castillo’s continuing membership in the highest court of the land.

21
In re Steinberg, 206 A.D.2d at 232; 620 N.Y.S.2d at 345; 1994 N.Y. App. Div, cited in Matthew C.
Minow, Plagiarism: A Workshop for Law Students, Lexis-Nexis at 9.
22
Hedley Thomas, Repeat plagiarist quits the bench, The Australian, December 13, 2006, available at
http://www.theaustralian.com.au/news/nation/repeat-plagiarist-quits-the-bench/story-e6frg6nf-
1111112710150 <last visited November 11, 2010>.
23
Id. This is also discussed in Aries C. Rufo and Purple S. Romero, SC plagiarized parts of ruling on
comfort women, July 19, 2010, Newsbreak, available at http://www.newsbreak.ph/2010/07/19/sc-justice-
plagiarized-parts-of-ruling-on-comfort-women/ <last visited, November 11, 2010>

31
 PRAYER

Wherefore, premises considered, undersigned counsels pray that this

Honorable Court reverse its ruling in the matter and instead hold that:

a. Justice Mariano C. del Castillo and his unnamed researcher have

committed plagiarism and misrepresentation in the drafting and
passing on of the ponencia in the Vinuya decision;

b. A formal investigation be made in the case of Ang Ladlad as to the

extent of the plagiarism in that case;

c. This Honorable Court request Justice del Castillo to resign from his
post to save it from further embarrassment;

d. This Honorable Court issue a corrected version of the Vinuya decision

in the form of a “Corrigendum.”

Respectfully submitted, November 15, 2010.

Makati City for the City of Manila.

By:

H. HARRY L. ROQUE, JR.

Roll No. 36976
PTR No. 1573586, 1.08.09/Makati
IBP No. 499912/ Lifetime
MCLE Exemption No. III-001000 (issued on
April 26, 2010)

ROMEL REGALADO BAGARES

PTR No. 0016687/Jan 13, 2010/Makati City
IBP No. 811902/Jan 12, 2010/Socsargen
Roll No. 49518
MCLE Compliance No.III-0017855 (issued
on July 8, 2010)

32
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COPY FURNISHED:

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Dean and Professor of Law

33
UP College of Law
University of the Philippines
Diliman, Quezon City

34