In the News: Remembering the Comfort Women

Recent weeks have seen the public eye center on the plagiarism issue surrounding the Supreme Court.  In writing the Supreme Court’s decision in Vinuya v. The Hon. Executive Secretary (G.R. No. 162230, April 28, 2010), Justice Mariano del Castillo was accused of having plagiarized the works of several authors on international law.  The Supreme Court has cleared Justice Castillo of the plagiarism charges and now, some 37 faculty members of the University of the Philippines College of Law (who signed a statement criticizing Justice del Castillo’s decision) face the risk of being cited in contempt of court. 

Plagiarism is a serious issue and should be penalized accordingly.  Nevertheless, in the midst of all the controversy, it seems that the public has lost focus on the plight of the original petitioners, the women who first sought redress for the Philippine government’s alleged inaction. 

Background

The members of the Malaya Lolas Organization (Malaya Lolas) filed a petition for certiorari with the Supreme Court against various officials of the Philippine government.  The Malaya Lolas alleged that they were victims of systematic rape and/or sexual slavery committed by the Japanese army during the Second World War.  They petitioned the Court to compel the government to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals.

On April 28, 2010, the Supreme Court (through Justice del Castillo) promulgated a decision dismissing the Malaya Lolas’ petition (a copy is available for viewing on the Court’s website, here).  The Court ruled that the Executive department has the exclusive prerogative to determine whether to espouse petitioner’s claims against Japan.  Additionally, the Court ruled that the Philippines is not under any obligation under international law to espouse the Malaya Lolas’ claims.  

The Malaya Lolas subsequently filed a supplemental motion for reconsideration on July 19, 2010, accusing Justice Del Castillo of “manifest intellectual theft and outright plagiarism” and of “twisting the true intents of the plagiarized sources … to suit the arguments of the assailed Judgment.

The matter attracted much publicity and was eventually referred to the Supreme Court’s Committee on Ethics and Ethical Standards (Ethics Committee) chaired by the Chief Justice for investigation and recommendation. In the meantime, the University of the Philippines College of Law released a statement criticizing the plagiarism and calling for the resignation of Justice del Castillo.

On October 12, 2010, the Supreme Court promulgated a decision in A.M. No. 10-7-17-SC (“In The Matter of the Charges of Plagiarism, etc., against Associate Justice Mariano C. Del Castillo”, text of majority decision available for viewing here, dissenting opinion of Justice Maria Lourdes P. A. Sereno available here) absolving Justice del Castillo of the charges of plagiarism.  The Supreme Court held that the passing off of the work of another as one’s own is an indispensable element of plagiarism, and that “[i]f the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit.”  In respect of those passages which appeared to have been copied from other sources without any attribution at all, the Court noted the explanation of the Justice’s researcher that the citations were “accidentally deleted” and ruled that Justice del Castillo and his researcher had “no motive or reason for omitting attribution for the lifted passages to Criddle-Descent or to Ellis.

The Supreme Court went on to rule that “plagiarism is essentially a form of fraud where intent to deceive is inherent.”  Citing the definition of plagiarism in Black’s Law Dictionary (8th edition) as the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own,” the Court concluded that “plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.”  According to the Court, there was no basis to hold Justice Del Castillo liable for his acts and omission since the same were not tainted with fraud, corruption, or malice nor with gross inexcusable negligence.  The charges of plagiarism, twisting of cited materials, and gross neglect were dismissed.   

Back to the Main Issue

In the meantime, the Malaya Lolas’ motion for reconsideration remains unresolved.  Notably, in clearing Justice del Castillo of administrative charges, the Supreme Court emphasized that it was avoiding any discussion on the merits of the Court’s April 28 decision in the main Vinuya case.  There is as of yet no final decision on whether or not the Philippine government is obliged to take up the Malaya Lolas’ cause and seek redress from Japan.

Indeed, the circumstance that Justice del Castillo (or any other Justice writing a decision for the Supreme Court, for that matter) may have plagiarized another’s work does not, of and by itself, mean that the decision is wrong and should be reversed.  Should a party, otherwise entitled to judicial relief, be penalized for a ponente’s failure to cite his or her sources?

Generally, the reversal or modification of a decision is in order if the findings or conclusions thereof are not supported by evidence or are contrary to law (see, e.g., Rule 37, section 2, paragraph 3, although as worded, that section applies to motions for reconsideration of trial court judgments).  Copying another’s work and passing it off as one’s own might be intellectually dishonest, but that does not necessarily mean that the decision is wrong.  If the decision is otherwise correct and is supported by the established facts and sound legal reasoning, the plagiarism should not warrant a reversal of the original decision. 

This is what the media and the public may have lost focus of – the issue of whether Justice del Castillo did or did not plagiarize another’s work is an issue that is wholly separate and distinct from the merits of the Malaya Lolas’ claim for relief.  As critical as it is that standards of academic honesty are upheld – and the Philippines seems to be in no shortage of high-profile cases of plagiarism recently – perhaps an issue of at least equal importance and deserving of at least equal attention is whether or not the Malaya Lolas and other “comfort women” can finally obtain redress for their sufferings. 

Philbert wishes to thank Easter P.U. Castro for her assistance in preparing this post.

 

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