CANON 1 -- A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice.Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
CANON 11 -- A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.RULE 11.05 A lawyer shall submit grievances against a Judge to the proper authorities only.
CANON 13 -- A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.
I. OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS' (SIC) ASSERTION THAT THE EXECUTIVE'S FOREIGN POLICY PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS, INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS OF WHICH THE PHILIPPINES IS A PARTY.4
II. THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE BROADER, IF FUNDAMENTAL, RESPONSIBILITY OF STATES TO PROTECT THE HUMAN RIGHTS OF ITS CITIZENS - ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS.5
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT'S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES - AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW - AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT'S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION'S CLAIMS.7
The newspaper's16 [plagiarism] claims are based on a motion for reconsideration filed yesterday with the Philippine Supreme Court yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
The motion suggests that the Court's decision contains thirty-four sentences and citations that are identical to sentences and citations in my2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the petitioners' [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the court's 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. The Supreme Court's decision is available here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last few days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of the integrity of my work as an academic and as an advocate of human rights and humanitarian law, to take exception to the possible unauthorized use of my law review article on rape as an international crime in your esteemed Court's Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the Philippine chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal of International Law in 2006 has been made available to your esteemed Court. I trust that your esteemed Court will take the time to carefully study the arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the issues raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
The Honorable
Supreme Court of the Republic of the PhilippinesThrough: Hon. Renato C. CoronaChief Justice
Subject: Statement of facultyfrom the UP College of Law
on the Plagiarism in the case ofVinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-]eight (38)28 members of the faculty of the UP College of Law. We hope that its points could be considered by the Supreme Court en banc.Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war. After they courageously came out with their very personal stories of abuse and suffering as "comfort women", waited for almost two decades for any meaningful relief from their own government as well as from the government of Japan, got their hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.
In common parlance, 'plagiarism' is the appropriation and misrepresentation of another person's work as one's own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of someone else's ideas and expressions, including all the effort and creativity that went into committing such ideas and expressions into writing, and then making it appear that such ideas and expressions were originally created by the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means. Evidently, this is a complete perversion and falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material shows that the ponente merely copied select portions of other legal writers' works and interspersed them into the decision as if they were his own, original work. Under the circumstances, however, because the Decision has been promulgated by the Court, the Decision now becomes the Court's and no longer just the ponente's. Thus the Court also bears the responsibility for the Decision. In the absence of any mention of the original writers' names and the publications from which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the 'primary' sources relied upon. This cursory explanation is not acceptable, because the original authors' writings and the effort they put into finding and summarizing those primary sources are precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate intention to appropriate the original authors' work of organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar with all legal and scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more demands correct and careful attribution and citation of the material relied upon. It is a matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the main source of the plagiarized text. In this article they argue that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary conclusion. This exacerbates the intellectual dishonesty of copying works without attribution by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals with State liability and responsibility for personal injury and damage suffered in a time of war, and the role of the injured parties' home States in the pursuit of remedies against such injury or damage. National courts rarely have such opportunities to make an international impact. That the petitioners were Filipino "comfort women" who suffered from horrific abuse during the Second World War made it incumbent on the Court of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added insult to injury by failing to actually exercise its "power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before other Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench and Bar because these undermine the very foundation of its authority and power in a democratic society. Given the Court's recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this would only further erode faith and confidence in the judicial system. And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes ensuring that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It is an absolutely essential step toward the establishment of a higher standard of professional care and practical scholarship in the Bench and Bar, which are critical to improving the system of administration of justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all controversies: a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust reposed upon them as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court; (2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means; (3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein; (4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate; (5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.(SGD.) MARVIC M.V.F. LEONEN
Dean and Professor of Law
(SGD.) FROILAN M. BACUNGAN Dean (1978-1983) (SGD.) PACIFICO A. AGABIN Dean (1989-1995) (SGD.) MERLIN M. MAGALLONA Dean (1995-1999) (SGD.) SALVADOR T. CARLOTA Dean (2005-2008) and Professor of Law REGULAR FACULTY
(SGD.) CARMELO V. SISON
Professor(SGD.) JAY L. BATONGBACAL Assistant Professor (SGD.) PATRICIA R.P. SALVADOR DAWAY Associate Dean and Associate Professor (SGD.) EVELYN (LEO) D. BATTAD Assistant Professor (SGD.) DANTE B. GATMAYTAN Associate Professor (SGD.) GWEN G. DE VERA Assistant Professor (SGD.) THEODORE O. TE Assistant Professor (SGD.) SOLOMON F. LUMBA Assistant Professor (SGD.) FLORIN T. HILBAY Assistant Professor (SGD.) ROMMEL J. CASIS Assistant Professor LECTURERS
(SGD.) JOSE GERARDO A. ALAMPAY (SGD.) JOSE C. LAURETA (SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO (SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH (SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS (SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA (SGD.) TRISTAN A. CATINDIG (SGD.) RODOLFO NOEL S. QUIMBO (SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B. TOMBOC (SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY (SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA (SGD.) ANTONIO G.M. LA VIÑA (SGD.) RAUL T. VASQUEZ (SGD.) CARINA C. LAFORTEZA (SGD.) SUSAN D. VILLANUEVA29 (Underscoring supplied.)
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the University of Glasgow. I am writing to you in relation to the use of one of my publications in the above-mentioned judgment of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Court's Judgment, in the section addressing the concept of obligations erga omnes. As the table annexed to this letter shows, the relevant sentences were taken almost word by word from the introductory chapter of my book Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note that there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing.
I am particularly concerned that my work should have been used to support the Judgment's cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book's central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law. Hence the introductory chapter notes that "[t]he present study attempts to demystify aspects of the 'very mysterious' concept and thereby to facilitate its implementation" (p. 5). In the same vein, the concluding section notes that "the preceding chapters show that the concept is now a part of the reality of international law, established in the jurisprudence of courts and the practice of States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support - as it seemingly has - the opposite approach. More generally, I am concerned at the way in which your Honourable Court's Judgment has drawn on scholarly work without properly acknowledging it.
On both aspects, I would appreciate a prompt response from your Honourable Court.
I remain
Sincerely yours(Sgd.)
Christian J. Tams31
Notably, while the statement was meant to reflect the educators' opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillo's explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of "polluted sources," the Court's alleged indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.34 x x x. (Underscoring ours.)
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty's less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court's honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women's claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice.35 x x x. (Citations omitted; emphases and underscoring supplied.)
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge of violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. Juan-Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to the charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
(i) | Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;56 | |
(ii) | Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July 24, 2010;57 | |
(iii) | Editorial of the Philippine Daily Inquirer published on July 25, 2010;58 | |
(iv) | Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star on July 30, 2010;59 | |
(v) | Column of Former Intellectual Property Office Director General Adrian Cristobal, Jr. published in the Business Mirror on August 5, 2010;60 | |
(vi) | Column of Former Chief Justice Artemio Panganiban published in the Philippine Daily Inquirer on August 8, 2010;61 | |
(vii) | News report regarding Senator Francis Pangilinan's call for the resignation of Justice Del Castillo published in the Daily Tribune and the Manila Standard Today on July 31, 2010;62 | |
(viii) | News reports regarding the statement of Dean Cesar Villanueva of the Ateneo de Manila University School of Law on the calls for the resignation of Justice Del Castillo published in The Manila Bulletin, the Philippine Star and the Business Mirror on August 11, 2010;63 | |
(ix) | News report on expressions of support for Justice Del Castillo from a former dean of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional Association, the Judges Association of Bulacan and the Integrated Bar of the Philippines - Bulacan Chapter published in the Philippine Star on August 16, 2010;64 and | |
(x) | Letter of the Dean of the Liceo de Cagayan University College of Law published in the Philippine Daily Inquirer on August 10, 2010.65 |
Respect for the courts can better be obtained by following a calm and impartial course from the bench than by an attempt to compel respect for the judiciary by chastising a lawyer for a too vigorous or injudicious exposition of his side of a case. The Philippines needs lawyers of independent thought and courageous bearing, jealous of the interests of their clients and unafraid of any court, high or low, and the courts will do well tolerantly to overlook occasional intemperate language soon to be regretted by the lawyer which affects in no way the outcome of a case.73
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of the Bar and officers of the Court, respectfully pray that:
- the foregoing be noted; and
- the Court reconsider and reverse its adverse findings in the Show Cause Resolution, including its conclusions that respondents have: [a] breached their "obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, ... and not to promote distrust in the administration of justice;" and [b] committed "violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing prayer, respondents respectfully pray, in the alternative, and in assertion of their due process rights, that before final judgment be rendered:
- the Show Cause Resolution be set for hearing;
- respondents be given a fair and full opportunity to refute and/or address the findings and conclusions of fact in the Show Cause Resolution (including especially the finding and conclusion of a lack of malicious intent), and in that connection, that appropriate procedures and schedules for hearing be adopted and defined that will allow them the full and fair opportunity to require the production of and to present testimonial, documentary, and object evidence bearing on the plagiarism and misrepresentation issues in Vinuya v. Executive Secretary (G.R. No. 162230, April 28, 2010) and In the Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
- respondents be given fair and full access to the transcripts, records, drafts, reports and submissions in or relating to, and accorded the opportunity to cross-examine the witnesses who were or could have been called in In The Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC).74
13. Before this Honorable Court rendered its Decision dated 12 October 2010, some espoused the view that willful and deliberate intent to commit plagiarism is an essential element of the same. Others, like respondent, were of the opinion that plagiarism is committed regardless of the intent of the perpetrator, the way it has always been viewed in the academe. This uncertainty made the issue a fair topic for academic discussion in the College. Now, this Honorable Court has ruled that plagiarism presupposes deliberate intent to steal another's work and to pass it off as one's own.85 (Emphases supplied.)
· "Restoring Integrity I" which bears the entire roster of the faculty of the UP College of Law in its signing pages, and the actual signatures of the thirty-seven (37) faculty members subject of the Show Cause Resolution. A copy was filed with the Honorable Court by Roque and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.
· "Restoring Integrity II" which does not bear any actual physical signature, but which reflects as signatories the names of thirty-seven (37) members of the faculty with the notation "(SGD.)". A copy of Restoring Integrity II was publicly and physically posted in the UP College of Law on 10 August 2010. Another copy of Restoring Integrity II was also officially received by the Honorable Court from the Dean of the UP College of Law on 11 August 2010, almost three weeks before the filing of Restoring Integrity I.
· "Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which presently serves as the official file copy of the Dean's Office in the UP College of Law that may be signed by other faculty members who still wish to. It bears the actual signatures of the thirty- seven original signatories to Restoring Integrity I above their printed names and the notation "(SGD.") and, in addition, the actual signatures of eight (8) other members of the faculty above their handwritten or typewritten names.87
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in the faculty on a draft statement, Dean Leonen instructed his staff to print the draft and circulate it among the faculty members so that those who wished to may sign. For this purpose, the staff encoded the law faculty roster to serve as the printed draft's signing pages. Thus did the first printed draft of the Restoring Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was unaware that a Motion for Reconsideration of the Honorable Court's Decision in Vinuya vs. Executive Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that the Honorable Court was in the process of convening its Committee on Ethics and Ethical Standards in A.M. No. 10-7-17-SC.
2.4. Dean Leonen's staff then circulated Restoring Integrity I among the members of the faculty. Some faculty members visited the Dean's Office to sign the document or had it brought to their classrooms in the College of Law, or to their offices or residences. Still other faculty members who, for one reason or another, were unable to sign Restoring Integrity I at that time, nevertheless conveyed to Dean Leonen their assurances that they would sign as soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I had been circulated long enough, Dean Leonen instructed his staff to reproduce the statement in a style and manner appropriate for posting in the College of Law. Following his own established practice in relation to significant public issuances, he directed them to reformat the signing pages so that only the names of those who signed the first printed draft would appear, together with the corresponding "(SGD.)" note following each name. Restoring Integrity II thus came into being.88
2.7. Upon being presented with a draft of Restoring Integrity II with the reformatted signing pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza among the "(SGD.)" signatories. As Justice Mendoza was not among those who had physically signed Restoring Integrity I when it was previously circulated, Dean Leonen called the attention of his staff to the inclusion of the Justice's name among the "(SGD.)" signatories in Restoring Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken to Justice Mendoza over the phone on Friday, 06 August 2010. According to her, Justice Mendoza had authorized the dean to sign the Restoring Integrity Statement for him as he agreed fundamentally with its contents. Also according to her, Justice Mendoza was unable at that time to sign the Restoring Integrity Statement himself as he was leaving for the United States the following week. It would later turn out that this account was not entirely accurate.91 (Underscoring and italics supplied.)
2.22.1. On Friday, 06 August 2010, when the dean's staff talked to Justice Mendoza on the phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity Statement as he fundamentally agreed with its contents. However, Justice Mendoza did not exactly say that he authorized the dean to sign the Restoring Integrity Statement. Rather, he inquired if he could authorize the dean to sign it for him as he was about to leave for the United States. The dean's staff informed him that they would, at any rate, still try to bring the Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to sign the Restoring Integrity Statement before he left for the U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza when he went to the College to teach on 24 September 2010, a day after his arrival from the U.S. This time, Justice Mendoza declined to sign.94
2.23. It was only at this time that Dean Leonen realized the true import of the call he received from Justice Mendoza in late September. Indeed, Justice Mendoza confirmed that by the time the hard copy of the Restoring Integrity Statement was brought to him shortly after his arrival from the U.S., he declined to sign it because it had already become controversial. At that time, he predicted that the Court would take some form of action against the faculty. By then, and under those circumstances, he wanted to show due deference to the Honorable Court, being a former Associate Justice and not wishing to unduly aggravate the situation by signing the Statement.95 (Emphases supplied.)
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was circulated to him. However, his name was inadvertently left out by Dean Leonen's staff in the reformatting of the signing pages in Restoring Integrity II. The dean assumed that his name was still included in the reformatted signing pages, and so mentioned in his cover note to Chief Justice Corona that 38 members of the law faculty signed (the original 37 plus Justice Mendoza.)96
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of "polluted sources," the Court's alleged indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.114 x x x. (Underscoring ours.)
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty's less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court's honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women's claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice.115 x x x. (Citations omitted; emphases and underscoring supplied.)
We should like frankly and respectfully to make it of record that the resolution of this court, denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may be corrected by the very court which has committed it, because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of each and every member thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of 'sakdalism' and make the public lose confidence in the administration of justice.117 (Emphases supplied.)
[I]n order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done, because both means are annoying and good practice can never sanction them by reason of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in judicial matters, in the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more or less veiled threat to the court because it is insinuated therein, after the author shows the course which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim; and because he states in a threatening manner with the intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of that referred to in his motion promote distrust in the administration of justice and increase the proselytes of sakdalism, a movement with seditious and revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.118 (Emphases supplied.)
As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it has conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief.119 (Emphases supplied.)
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity." His client's he continues, who was deeply aggrieved by this Court's "unjust judgment," has become "one of the sacrificial victims before the altar of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying "that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his client "in the people's forum," so that "the people may know of the silent injustices committed by this Court," and that "whatever mistakes, wrongs and injustices that were committed must never be repeated." He ends his petition with a prayer that"x x x a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney and counsellor-at-law IN TRUST with reservation that at any time in the future and in the event we regain our faith and confidence, we may retrieve our title to assume the practice of the noblest profession."121
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful behavior toward the courts. He vows solemnly to conduct himself "with all good fidelity x x x to the courts;" and the Rules of Court constantly remind him "to observe and maintain the respect due to courts of justice and judicial officers." The first canon of legal ethics enjoins him "to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance."As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from all insulting language and offensive conduct toward judges personally for their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers -- even those gifted with superior intellect -- are enjoined to rein up their tempers."The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-respect are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission." (In Re Scouten, 40 Atl. 481)
x x x x
In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another. Thus, statements made by an attorney in private conversations or communications or in the course of a political campaign, if couched in insulting language as to bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary action.122 (Emphases and underscoring supplied.)
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice, and subjects such persons to contempt proceedings. Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated; because if well founded it may enlighten the court and contribute to the correction of an error if committed; but if it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing or modifying its decision. x x x.
x x x x
To hurl the false charge that this Court has been for the last years committing deliberately "so many blunders and injustices," that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation.124 (Emphases and underscoring supplied.)
As an officer of the court and its indispensable partner in the sacred task of administering justice, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts and to show respect to its officers. This does not mean, however, that a lawyer cannot criticize a judge. As we stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court, he cannot criticize the courts. That is his right as a citizen, and it is even his duty as an officer of the court to avail of such right. Thus, in In Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly declared:Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally answerable to a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
x x x x
Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct, that subjects a lawyer to disciplinary action.
x x x x
Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech and of expression in the Bill of Rights of the Constitution, must be exercised responsibly, for every right carries with it a corresponding obligation. Freedom is not freedom from responsibility, but freedom with responsibility. x x x.
x x x x
Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily to undermine the confidence of people in the integrity of the members of this Court and to degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and malicious statements in pleadings or in a letter addressed to the judge (Baja vs. Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil. Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint which is clearly unfounded and impelled by ulterior motive will not excuse the lawyer responsible therefor under his duty of fidelity to his client. x x x.126 (Emphases and underscoring supplied.)
The Code of Professional Responsibility mandates:CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of the bar to use strong language in pursuit of their duty to advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged. In keeping with the dignity of the legal profession, a lawyer's language even in his pleadings must be dignified.128
From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. x x x.130 (Emphasis supplied.)
Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interest. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. x x x.132 (Emphases supplied.)
And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.
x x x x
(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein.135 (Emphases and underscoring supplied.)
In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court or to be recreant to the respect thereto but, unfortunately, there are his phrases which need no further comment. Furthermore, it is a well settled rule in all places where the same conditions and practice as those in this jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45). Neither is the fact that the phrases employed are justified by the facts a valid defense:"Where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense. Respect for the judicial office should always be observed and enforced." (In re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an extenuation of liability in this case, taking into consideration Attorney Vicente J. Francisco's state of mind, according to him when he prepared said motion. This court is disposed to make such concession. However, in order to avoid a recurrence thereof and to prevent others, by following the bad example, from taking the same course, this court considers it imperative to treat the case of said attorney with the justice it deserves.139 (Emphases supplied.)
SEC. 13. Supreme Court Investigators.--In proceedings initiated motu proprio by the Supreme Court or in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in sections 6 to 11 hereof, save that the review of the report of investigation shall be conducted directly by the Supreme Court. (Emphasis supplied.)
The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side. A formal or trial type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy.142 (Emphases supplied.)
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.144 (Emphases supplied.)
[I]n several cases, the Court has disciplined lawyers without further inquiry or resort to any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further investigation after considering his actions based on records showing his unethical misconduct; the misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees for the astronomical sums they claimed in their cases. The Court held that those cases sufficiently provided the basis for the determination of respondents' administrative liability, without need for further inquiry into the matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record.
x x x x
These cases clearly show that the absence of any formal charge against and/or formal investigation of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded the opportunity to be heard on the present matter through her letter-query and Manifestation filed before this Court.146 (Emphases supplied.)
Endnotes:
1 Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario; rollo, pp. 24-25.
2 Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court; rollo, pp. 4-9.
3 Counsel of record for the Malaya Lolas (petitioners in G.R. No. 162230) is the Roque & Butuyan Law Offices.
4 Malaya Lolas' Motion for Reconsideration dated May 31, 2010, p. 1.
5 Id. at 8.
6 The contents of the Supplemental Motion for Reconsideration were posted on Atty. Roque's blog on July 18, 2010, the day before its filing. See http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/ (last accessed on January 20, 2011).
7Malaya Lolas' Supplemental Motion for Reconsideration dated July 19, 2010, p. 8.
8 Id. at 36. (Emphasis supplied.)
9 Which appeared in the Yale Law Journal in 2009.
10 Cambridge University Press, 2005.
11 Published in the Case Western Reserve Journal of International Law in 2006.
12 See Annex 4 of the 35 respondents' Common Compliance filed on November 19, 2010. The article's time of posting was indicated as 7:00 a.m.; rollo, p. 304.
13 The article was posted on July 19, 2010 at 12:02 a.m. See http://www.gmanews.tv/story/196407/sc-justice-plagiarized-parts-of-ruling-on-comfort-women (Last accessed on January 20, 2011).
14 See http://www.manilastandardtoday.com/insideOpinion.htm?f=2010/july/22/harryroque.isx&d=2010/july/22 (Last accessed January 24, 2011).
15 The link indicated in Julian Ku's blog entry was not a newspaper report but the Newsbreak article posted in GMA News TV's website.
16 Id.
17 Prof. Criddle's response was posted on July 19, 2010 at 2:44 EST. See link below:
http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/ (Last accessed on January 20, 2011).
18 This letter was subsequently published in the Philippine Star as shown by Annex 7 of the 35 respondents' Common Compliance filed on November 19, 2010; rollo, pp. 309-310.
19 Atty. Roque and Atty. Bagares, through the Center for International Law, have collaborated in the past with the SEAMLDI. The Center for International Law, which has Atty. Roque as Chairman and Atty. Bagares as Executive Director, hosted the 2nd South East Asia Media Legal Defense Conference held in October 2009 in Cebu City. See http://www.roquebutuyan.com/centerlaw/index.html and http://jmsc.asia/seasiamediadefense2009/program/ (Both last accessed on January 20, 2011).
20 http://www.scribd.com/doc/39856111/Letter-to-Republic-of-the-Philippines-Supreme-Court-Ellis (Last accessed on January 20, 2011).
21 Per Curiam Decision, In the Matter of Charges of Plagiarism, etc., against Associate Justice Mariano C. del Castillo, A.M. No. 10-7-17-SC, October 12, 2010.
22 http://www.newsbreak.ph/2010/08/09/restoring-integrity/ (Last accessed on January 24, 2011).
23 http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/ (Last accessed on January 20, 2011).
24 http://www.gmanews.tv/story/198182/resignation-of-sc-justice-in-plagiarism-issue-sought (Last accessed on January 20, 2011).
25 http://www.sunstar.com.ph/manila/faculties-hit-plagiarized-ruling (Last accessed on January 20, 2011).
26 See paragraph 2.9, Dean Leonen Compliance dated November 19, 2010; rollo, p. 327.
27The date of posting of the Statement is not indicated on the UP Law website. See http://law.upd.edu.ph/index.php?option=com_content&view=article&id=166:restoring-integrity-a-statement-by-the-faculty-of-the-up-college-of-law&catid=52:faculty-news&Itemid=369 (Last accessed on January 20, 2011).
28 Although the Dean's letter indicated that 38 faculty members signed the statement, an examination of the attachment showed that the number of purported signatories was only 37.
29 Rollo, pp. 4-9.
30 This was received by the Court on August 20, 2010. It was also reported on Newsbreak that same day. See (http://www.newsbreak.ph/2010/08/20/third-author-plagiarized-by-sc-justice-complains/).
31 See Annex 2 of the 35 respondents' Compliance dated November 19, 2010. A full-color PDF replica of Prof. Tams' letter was also linked on Atty. Roque's blog entry dated August 22, 2010. See blog entry here - http://harryroque.com/2010/08/22/third-author-plagiarized-by-sc-justice- complains-from-newsbreak/ (last accessed on January 20, 2011) and the letter here - http://harryroque.files.wordpress.com/2010/08/tams-letter-to-supreme-court.pdf (last accessed on January 21, 2011).
32 Per Curiam Decision in A.M. No. 10-7-17-SC, October 12, 2010.
33 Id.
34 Resolution dated October 19, 2010; rollo, pp. 23-29.
35 Id. at 26-27.
36 The Show Cause Resolution inadvertently referred to Canon 10 but should refer to Canon 1.
37 Show Cause Resolution; rollo, pp. 27-28.
38 Id. at 28.
39 Common Compliance; rollo, p. 201.
40 Id.
41 Id. at 201-202. (Emphases supplied.)
42 Code of Professional Responsibility, Canon 1.
43 Id., Canon 11.
44 Id., Canon 13.
45 Common Compliance; rollo, p. 203.
46 Id. at 204.
47 Id. at 205.
48 Id. at 208.
49 Id at 208-209.
50 Respondents were referring to the article by Donna Pazzibugan entitled "High Court Not Probing 'Plagiarism,'" which according to footnote 28 of the Common Compliance may be accessed at
as of November 12, 2010.
51 Common Compliance; rollo, p. 209.
52 372 Phil. 287 (1999).
53 According to his letter, Atty. Payoyo is a former UP Law Professor, former chief editor of the Philippine Law Journal and a recipient of the Court's centennial award in international law.
54 G.R. No. 190582, April 8, 2010.
55 Common Compliance; rollo, p. 211.
56 Annex 4; id. at 304-306.
57 Annex 5; id. at 307.
58 Annex 6; id. at 308.
59 Annex 7; id. at 309-310.
60 Annex 8; id. at 311.
61 Annex 9; id. at 312.
62 Annexes 10 and 11; id. at 313-314.
63 Annexes 12, 13 and 14; id. at 315-317.
64 Annex 15; id. at 318-319.
65 Annex 16; id. at 320.
66 Id. at 215.
67 37 Phil. 731 (1918).
68 G.R. No. L-27654, February 18, 1970, 31 SCRA 562.
69 137 Phil. 471 (1969).
70 160-A Phil. 929 (1975).
71 Common Compliance; rollo, p. 217.
72 61 Phil 724 (1935).
73 Id. at 733-734, cited in the Common Compliance; rollo, p. 219.
74 Common Compliance; rollo, pp. 219-220.
75 Bautista Compliance; id. at 179. (Emphasis supplied.)
76 Id. at 180. (Emphasis supplied.)
77 Mercado v. AMA Computer College-Parañaque City, Inc., G.R. No. 183572, April 13, 2010; Morales v. Board of Regents of the University of the Philippines, G.R. No. 161172, December 13, 2004, 446 SCRA 227; University of the Philippines Board of Regents v. Court of Appeals, supra note 49; Arokiaswamy William Margaret Celine v. University of the Philippines Board of Regents, G.R. No. 152309, Resolution, September 18, 2002.
78 Bautista Compliance; rollo, p. 185; citing Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, February 24, 2010.
79 See Vasquez Compliance; rollo, p. 428.
80 82 Phil. 595 (1949).
81 Supra note 68.
82 AmJur 2d §52.
83 Vasquez Compliance; rollo, p. 430.
84 Id. at 431.
85 Id. at 430.
86 Id.
87 Dean Leonen Compliance; rollo, pp. 324-325.
88 Id. at 325-326.
89 Id. at 326.
90 Id., in Footnote 2.
91 Id. at 326-327.
92 Id. at 327.
93 Id., in Footnote 3.
94 Id. at 331-332.
95 Id. at 332.
96 Id. at 328, in footnote 4.
97 Id. at 334, in footnote 7.
98 Id. at 335.
99 Id. at 335-336.
100 Id. at 338.
101 480 Phil. 652 (2004).
102 Dean Leonen Compliance; rollo, p. 338.
103 Lynch Manifestation; rollo, p. 188; citing New York Times, Co. v. Sullivan, 376 US 254 (1964) quoted with approval by the Court in Lopez v. Court of Appeals, 145 Phil. 219 (1970).
104 Id.
105 G.R. No. 95445, August 6, 1991, 200 SCRA 323.
106 Quoted by Prof. Lynch from the Dissenting Opinion of Justice Gutierrez, Jr. in the Manila Public School Teachers Association case (id. at 338).
107 Quoted by Prof. Lynch from the Dissenting Opinion of Justice Cruz in the Manila Public School Teachers Association case (id. at 343).
108 Supra note 69.
109 Lynch Manifestation; rollo, p. 189.
110 Id.
111 Show Cause Resolution; rollo, p. 25.
112 Id. at 26.
113 To date, said motion for reconsideration of the Vinuya decision is still pending resolution by the Court.
114 Show Cause Resolution; rollo, pp. 25-26.
115 Id. at 26-27.
116 Supra note 72.
117 Id. at 726.
118 Id. at 727-728.
119 Id. at 728.
120 Supra note 68.
121 Id. at 564-565.
122 Id. at 580-582.
123 Supra note 80.
124 Id. at 599-602.
125 329 Phil. 270 (1996).
126 Id. at 276-279.
127 A.C. No. 6567, April 16, 2008, 551 SCRA 359.
128 Id. at 367-368.
129 Supra note 69.
130 Id. at 494.
131 248 Phil. 542 (1988).
132 Id. at 579.
133 Prof. Juan-Bautista and Prof. Lynch.
134 G.R. No. 100113, September 3, 1991, 201 SCRA 210, 214, where the Court ruled that:
Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (Citing 111 ALR 23.)
135 Rollo, pp. 6-7.
136 Lynch Manifestation; rollo, p. 188.
137 In the case of members of the Bar.
138 In the case of members of the Bar and/or non-lawyers.
139 Salcedo v. Hernandez, supra note 72 at 729-730.
140 Dean Leonen Compliance; rollo, p. 336.
141 Bautista Complaince; rollo, p. 179.
142 Placido v. National Labor Relations Commission, G.R. No. 180888, September 18, 2009, 600 SCRA 697, 704-705.
143 A.C. No. 7298, June 25, 2007, 525 SCRA 444, citing In re: Atty. Vicente Raul Almacen, supra note 68.
144 Id. at 453.
145 A.M. No. 08-6-352-RTC, August 19, 2009, 596 SCRA 378.
146 Id. at 396-398.
CARPIO, J.:
I find the Compliance of the 37 legal scholars1 satisfactory and therefore see no need to admonish or warn them2 for supposed use of disrespectful language in their statement3 commenting on a public issue involving the official conduct of a member of this Court. The majority's action impermissibly expands the Court's administrative powers4 and, more importantly, abridges constitutionally protected speech on public conduct guaranteed to all, including members of the bar.
First. The matter of Justice Mariano del Castillo's reported misuse and non-attribution of sources in his ponencia in Vinuya v. Executive Secretary5 is an issue of public concern. A day before the Vinuya petitioners' counsels filed their supplemental motion for reconsideration on 19 July 2010 raising these allegations, a national TV network carried a parallel story online.6 On the day the pleading was filed, another national TV network7 and an online news magazine,8 carried the same story. Soon, one of the authors allegedly plagiarized commented that the work he and a co-author wrote was misrepresented in Vinuya.9 Justice del Castillo himself widened the scope of publicity by submitting his official response to the allegations to a national daily which published his comment in full.10 Justice del Castillo's defenses of good faith and non-liability11 echoed an earlier statement made by the Chief of the Court's Public Information Office.12 These unfolding events generated an all-important public issue affecting no less than the integrity of this Court's decision-making - its core constitutional function - thus inexorably inviting public comment.
Along with other sectors, the law faculty of the University of the Philippines (UP), which counts among its ranks some of this country's legal experts,13 responded by issuing a statement,14 bewailing what the professors see as the Court's indifference to the perceived dishonesty in the crafting of the Vinuya ponencia and its aggravating effect on the Vinuya petitioners' cause, refuting Justice del Castillo's defenses, underscoring the seriousness of the issue, and calling for the adoption of individual and institutional remedial measures.15 This is prime political speech critical of conduct of public officials and institution, delivered in public forum. Under the scheme of our constitutional values, this species of speech enjoys the highest protection,16 rooted on the deeply-held notion that "the interest of society and the maintenance of good government demand a full discussion of public affairs."17 Indeed, preceding western jurisprudence by nearly five decades, this Court, in the first score of the last century, identified the specific right to criticize official conduct as protected speech, branding attempts by courts to muzzle criticism as "tyranny of the basest sort."18
Second. In testing whether speech critical of judges and judicial processes falls outside the ambit of constitutionally protected expression, spilling into the territory of sanctionable utterances, this Court adheres to the "clear and present danger" test.19 Under this analytical framework, an utterance is constitutionally protected unless "the evil consequence of the comment or utterance [is] 'extremely serious and the degree of imminence extremely high.'"20
It appears that the evil consequences the UP law faculty statement will supposedly spawn are (1) the slurring of this Court's dignity and (2) the impairment of its judicial independence vis-á -vis the resolution of the plagiarism complaint in Vinuya. Both are absent here. On the matter of institutional degradation, the 12-paragraph, 1,553-word statement of the UP law faculty, taken as a whole, does not exhibit that "irrational obsession to demean, ridicule, degrade and even destroy the courts and their members" typical of unprotected judicial criticism.21 On the contrary, the statement, taken as a whole, seeks to uphold the bedrock democratic value of keeping judicial processes free of any taint of dishonesty or misrepresentation. Thus, the UP law faculty statement is far removed from speech the Court has rightly sanctioned for proffering no useful social value, solely crafted to vilify its members and threaten its very existence.22
On the alleged danger of impairment of this Court's judicial independence in resolving the plagiarism charge in Vinuya, this too, did not come to pass. In the Resolution of 8 February 2011 in A.M. No. 10-17-17-SC,23 the Court denied reconsideration to its earlier ruling finding no merit in the Vinuya petitioners' claim of plagiarism. Not a single word in the 8 February 2011 Resolution hints that the UP law faculty statement pressured, much less threatened, this Court to decide the motion for reconsideration for the Vinuya petitioners. Thus, the 8 February 2011 Resolution gives the lie to the conclusion that the UP law faculty statement posed any danger, much less one that is "extremely serious," to the Court's independence.
Third. The conclusion that the UP law faculty statement disrespects the Court and its members is valid only if the statement is taken apart, its dismembered parts separately scrutinized to isolate and highlight perceived offensive phrases and words. This approach defies common sense and departs from this Court's established practice in scrutinizing speech critical of the judiciary. People v. Godoy24 instructs that speech critical of judges must be "read with contextual care," making sure that disparaging statements are not "taken out of context."25 Using this approach, and applying the clear and present danger test, the Court in Godoy cleared a columnist and a publisher of liability despite the presence in the assailed news article of derogatory yet isolated statements about a judge. We can do no less to the statement of the members of the UP law faculty, who, after all, were impelled by nothing but their sense of professional obligation to "speak out on a matter of public concern and one that is of vital interest to them."26
On the supposed unpleasant tone of the statement, critical speech, by its nature, is caustic and biting. It is for this same reason, however, that it enjoys special constitutional protection. "The constitution does not apply only to sober, carefully reasoned discussion. There may be at least some value in permitting cranky, obstreperous, defiant conduct by lawyers on the ground that it encourages a public culture of skepticism, anti-authoritarianism, pluralism, and openness. It is important to remember that the social function of lawyers is not only to preserve order, but also to permit challenges to the status quo."27
Supreme Court Justices, as public officials, and the Supreme Court, as an institution, are entitled to no greater immunity from criticism than other public officials and institutions.28 The members of this Court are sustained by the people's resources and our actions are always subject to their accounting.29 Thus, instead of shielding ourselves with a virtual lese-majeste rule, wholly incompatible with the Constitution's vision of public office as a "public trust,"30 we should heed our own near century-old counsel: a clear conscience, not muzzled critics, is the balm for wounds caused by a "hostile and unjust accusation" on official conduct.31
Fourth. The academic bar, which the UP law faculty represents, is the judiciary's partner in a perpetual intellectual conversation to promote the rule of law and build democratic institutions. It serves the interest of sustaining this vital relationship for the Court to constructively respond to the academics' criticism. Instead of heeding the UP law faculty's call for the Court to "ensur[e] that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question," the majority dismisses their suggestion as useless calumny and brands their constitutionally protected speech as "unbecoming of lawyers and law professors." The Constitution, logic, common sense and a humble awareness of this Court's role in the larger project of dispensing justice in a democracy revolt against such response.
Accordingly, I vote to consider respondents' explanation in their common and individual Compliance as satisfactory and to consider this matter closed and terminated.
Endnotes:
1 All belonging to the faculty of the University of the Philippines College of Law including the incumbent dean, four former deans, members of the regular faculty and instructors. Professor Owen Lynch, a visiting professor and a member of the Minnesota bar, filed a manifestation joining causes with the respondents.
2 The majority excludes from their finding Atty. Raul T. Vasquez whose Compliance they find satisfactory.
3 "Restoring Integrity: A Statement By The University Of The Philippines College Of Law On The Allegations Of Plagiarism And Misrepresentation In The Supreme Court."
4 In the Resolution of 19 October 2010, 37 professors were required to show cause why no disciplinary sanction should be imposed on them for violating the following provisions of the Code of Professional Responsibility:
Canon 1 - A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.
Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
Canon 11 - A lawyer shall observe and maintain respect due to the courts and to judicial officers and should insist on similar conduct by others.
Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only.
Canon 13 - A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.
Today's Resolution admonishes the incumbent dean, Marvic MV.F. Leonen, and warns 35 other professors for "speech and conduct unbecoming of lawyers and law professors."
Significantly, the 37 academics did not counsel or abet activities of any sort and none of them is counsel to any of the parties in Vinuya v. Executive Secretary, thus Rule 1.02 and Canon 13 are irrelevant. Rule 11.05 is similarly inapplicable because none of the professors authored any of the materials used in Vinuya hence, their grievance to the purported plagiarism and misrepresentation is not specific and personal to cloak them with legal personality to institute a complaint against Justice Mariano del Castillo. On the other hand, Canon 1 and Canon 11, accommodate and do not trump the constitutional guarantee of free speech.
5 G.R. No. 162230, 28 April 2010.
6 The news article "SC justice plagiarized parts of ruling on comfort women" by Aries C. Rufo and Purple S. Romero appeared in the website of ABS-CBN on 18 July 2010 (see http://www.abs-cbnnews.com/nation/07/18/10/sc-justice-plagiarized-parts-ruling-comfort-women).
7 GMA-7 (see http://www.gmanews.tv/story/196407/sc-justice-plagiarized-parts-of-ruling-on-comfort-women)
8 Newsbreak (see http://newsbreak.com.ph/index.php?option=com_ content&task=view&id=7981&Itemid=88889005.)
9 Commenting on a blog entry on the news stories ABS-CBN, GMA-7 and Newsbreak carried, Professor Evan Criddle, co-author of the article A Fiduciary Theory of Jus Cogens, 34 Yale J. Int'l L. 331 (2009), stated: "Speaking for myself, the most troubling aspect of the court's 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." (see http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/). The two other authors, Christian J. Tams and Mark Ellis, whose works were reportedly misused in the Court's ruling in Vinuya, had since filed formal complaints with the Court.
10 Justice del Castillo's comment appeared in The Philippine Star's "Letters to the Editor" section on 30 July 2010 captioned "The Del Castillo Ponencia in Vinuya By Mariano C. Del Castillo, Associate Justice" (see http://www.philstar.com/Article.aspx?articleId=598044&publicationSubCategoryId=135).
11 Justice del Castillo wrote:
It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another's work as our own. x x x x
x x x x
Incidentally, it was stated in the Newsbreak article posted by Aries C. Rufo and Purple S. Romero on July 19, 2010 that "x x x there is no rule or provision in the judiciary against copying from other's work and passing these off as original material." Dean Pacifico Agabin concurred with this observation when he "pointed out, 'It is not prohibited under the Code of Judicial Ethics, or any statutes. It is just a matter of delicadeza... It bears on the honesty of the judge to give credit where credit is due."
Finally, Section 184(k) of Republic Act No. 8293 (Intellectual Property Code of the Philippines) provides that "any use made of a work for the purpose of any judicial proceedings x x x" shall not constitute infringement of copyright.
12 Who informed the public: "You can't expect all justices in the Supreme Court to be familiar with all these journals." (see http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100721-282283/High-court-not-probing-plagiarism).
13 Dean Pacifico Agabin, an alumnus of Yale Law School, is an authority in constitutional law, author of numerous scholarly publications and active appellate litigator who frequently appeared before the Court to argue landmark public law cases. Dean Merlin Magallona is a recognized expert in international law, a published scholar and former Undersecretary of Foreign Affairs. Professor Tristan Catindig, a Harvard Law School alumnus, is a commercial law expert and author of numerous publications on the subject.
14 The respondents claim that they spoke in their capacity as lawyers, law professors and citizens (Common Compliance, pp. 2, 16).
15 Summed in the penultimate paragraph of their statement:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;
(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;(5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.
16 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 538, Carpio, J., concurring.
17 United States v. Bustos, 37 Phil. 731, 740 (1918). Jurisprudence privileges this right by requiring the very high quantum of proof of actual malice to establish liability for libelous comment on public conduct (Vasquez v. Court of Appeals, 373 Phil. 238 (1999); Flor v. People, G.R. No. 139987, 31 March 2005, 454 SCRA 440).
18 The relevant passage reads:
The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. x x x x (United States v. Bustos, 37 Phil. 731, 741 (1918)).
It was only in 1964 that the United States Supreme Court enunciated a comparable doctrine, with refinements (see New York Times v. Sullivan, 376 U.S. 254 [1964]).
19 Cabansag v. Fernandez, 102 Phil. 152 (1957); People v. Godoy, 312 Phil. 977 (1995); In re Almacen, No. L-27654, 18 February 1970, 31 SCRA 562.
20 Cabansag v. Fernandez, 102 Phil. 152, 161 (1957).
21 See e.g. Column of Ramon Tulfo in the Philippine Daily Inquirer Issues of 13 and 16 October 1989, A.M. No. 90-4-1545-0, 17 April 1990 (Resolution).
22 In re Sotto, 82 Phil. 595 (1949). See also Column of Ramon Tulfo in the Philippine Daily Inquirer Issues of 13 and 16 October 1989, id.
23 In the Matter of the Charges of Plagiarism etc., Against Associate Justice Mariano C. Del Castillo.
24 People v. Godoy, 312 Phil. 977 (1995).
25 We held:
On the issue of whether the specified statements complained of are contumacious in nature, we are inclined, based on an overall perusal and objective analysis of the subject article, to hold in the negative. We have read and reread the article in its entirety and we are fully convinced that what is involved here is a situation wherein the alleged disparaging statements have been taken out of context. If the statements claimed to be contum[acious] had been read with contextual care, there would have been no reason for this contempt proceeding. Id. at 994 (emphasis supplied).
26 Common Compliance, p. 2.
27 W. Bradley Wendel, Free Speech For Lawyers, 28 Hastings Const. L.Q. 305, 440 (2001).
28 In the Matter of the Allegations Contained in the Columns of Mr. Amado A.P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, 8 August 2008, 561 SCRA 395, 489, Carpio, J., dissenting.
29 The Constitution provides that "[P]ublic officers and employees must, at all times, be accountable to the people x x x x" (Article XI, Section 1).
30 Constitution, Article XI, Section 1.
31 United States v. Bustos, 37 Phil. 731, 741 (1918).
DISSENTING OPINION
CARPIO MORALES, J.:
Consistent with my dissent from the Court's October 19, 2010 Resolution, I maintain my position that, in the first place, there was no reasonable ground to motu proprio initiate the administrative case, in view of (1) the therein discussed injudiciousness attending the Resolution, anchored on an irregularly concluded finding of indirect contempt with adverse declarations prematurely describing the subject Statement of the UP Law Faculty that could taint the disciplinary action, and (2) the Court's conventionally permissive attitude toward the "expression of belief" or "manner of criticism" coming from legal academics, lawyer-columnists, and civic circles, in a number of high-profile cases, most notably at the height of the "CJ Appointment Issue" during which time the motion for reconsideration of the Court's decision was similarly pending.
SEPARATE OPINION
VILLARAMA, JR., J.:WHEREFORE, in light of the foregoing, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty of the University of the Philippines College of Law, are directed to SHOW CAUSE, within ten (10) days from receipt of a copy of this Resolution, why they should not be disciplined as members of the Bar for violation of Canons 11, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
This treats of respondents' compliance with the Court's Resolution dated October 19, 2010, which required respondents, who are professors of the University of the Philippines College of Law, to show cause why they should not be disciplined as members of the bar for having published a Statement entitled, "Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court" which appeared to contain statements that were disrespectful to the Court. The Court's directive reads as follows:
Further, Dean Marvic M.V.F. Leonen is directed to SHOW CAUSE, within ten (10) days from receipt of this Resolution, why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting, through his letter dated August 10, 2010, during the pendency of G.R. No. 162330, Vinuya v. Executive Secretary and of the investigation before the Committee on Ethics and Ethical Standards, for the consideration of the Court En Banc, a dummy which is not a true and faithful reproduction of the purported statement, entitled "Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court." x x x
Endnotes:
1 The Show Cause Resolution inadvertently mentioned Canon 10.
2 G.R. No. 162230, April 8, 2010.
3 Footnote 3 of the Compliance of Dean Leonen, p. 5.
DISSENTING OPINION
SERENO, J.:
The history of the Supreme Court shows that the times when it emerged with strength from tempests of public criticism were those times when it valued constitutional democracy and its own institutional integrity. Indeed, dangers from pressure and threat presented by what is usually constitutionally deemed as free speech can arise only when the Court allows itself to be so threatened. It is unfortunate when a tribunal admits that its core of independence can be shaken by a twelve-paragraph, two-page commentary from academia. By issuing the Show Cause Order, and affirming it in the current Decision, the Court puts itself in the precarious position of shackling free speech and expression. The Court, which has the greater duty of restraint and sobriety, but which appears to the public to have failed to transcend its instinct for self-preservation and to rise above its own hurt, gains nothing by punishing those who, to its mind, also lacked such restraint.
I join the dissents of Justices Antonio T. Carpio, Conchita Carpio Morales, and Martin S. Villarama. To be taken together with this Opinion is my earlier Dissenting Opinion dated 19 October 2010. The effect and intent of the "Restoring Integrity" Statement must be examined in the context of what this Court has done to contribute to the controversy as well as the reception by the public of the pronouncements of this Court on the plagiarism charges in connection with the Decision in G.R. No. 162230, Vinuya, et al v. Executive Secretary, promulgated on 28 April 2010.
A few days after the Malaya Lolas (petitioners in G.R. No. 162230) filed a Supplemental Motion for Reconsideration of the Vinuya Decision, the Acting Chief of the Court's Public Information Office informed the media that the Chief Justice had no plans of inquiring into the plagiarism charges against Justice Mariano C. del Castillo raised in said motion. He stated further that: "You can't expect all justices in the Supreme Court to be familiar with all these journal articles."1 Justice del Castillo defended himself by submitting his official statement to the Philippine Star, which published it on 30 July 2010. In the meantime, Dr. Mark Ellis, one of several authors whose works was allegedly plagiarized, sent a letter dated 23 July 2010 to the Court, expressing concern about the alleged plagiarism of his work and the misreading of the arguments therein "for cross purposes."
On 31 July 2010, the Daily Tribune, the Manila Standard, and other newspapers of national circulation reported that Senator Francis Pangilinan, a member of the bar, demanded the resignation of Justice Del Castillo in order to "spare the judiciary from embarrassment and harm." On 25 July 2010, the Philippine Daily Inquirer discussed the plagiarism issue in their editorial entitled "Supreme Theft." On 5 August 2010, another member of the bar wrote about plagiarism in his column entitled "What's in a Name?" published in the Business Mirror.2 On 8 August 2010, the Philippine Daily Inquirer published former Chief Justice Artemio Panganiban's opinion, to the effect that the issue "seeps to the very integrity of the Court." That same opinion also raised the question of whether the justices who concurred in the Vinuya ponencia were qualified to sit as members of the Ethics Committee.
Dean Marvic M.V. F. Leonen of the University of the Philippines College of Law transmitted to the Court a statement entitled "Restoring Integrity: A Statement By The Faculty Of The University Of The Philippines College Of Law On The Allegations Of Plagiarism And Misrepresentation In The Supreme Court," the cover letter of which was dated 11 August 2010. Shortly thereafter, several schools published their own declarations on the matter.
A week after the UP Law Faculty's statement was transmitted to the Court, Professor Christian Tams expressed his own views. In a letter addressed to the Chief Justice3, Professor Tams said: "...I am at a loss to see how my work should have been cited to support - as it seemingly has - the opposite approach. More generally, I am concerned at the way in which your Honourable Court's Judgment has drawn on scholarly work without properly acknowledging it." Other authors soon followed suit, articulating their own dismay at the use of their original works, through internet blogs, comments and other public fora.4
Thus, the negative public exposure caused by such acts of plagiarism cannot be attributed solely to the UP Law Faculty. That the Court was put in the spotlight and garnered unwanted attention was caused by a myriad of factors, not the least of which was Justice Del Castillo's own published defense entitled "The Del Castillo ponencia in Vinuya" pending the resolution of the complaint against him by the Ethics Committee, and the categorical statement made by the Acting Chief of the Court's Public Information Office to the media that the Chief Justice had no plans of investigating the plagiarism charges. These twin acts attracted negative reaction, much of which came from the legal profession and the academe. The issue itself - alleged plagiarism in a judicial decision, including the alleged use of plagiarized materials to achieve a result opposite to the theses of the said materials - resonated in the public's consciousness and stirred a natural desire in the citizenry to raise calls to save an important public institution, namely, the judiciary. The responses published by different sectors constituted nothing more than an exercise of free speech - critical commentary calling a public official to task in the exercise of his functions.
The respondents herein, who were not parties to any pending case at the time, forwarded the "Restoring Integrity" Statement as a public expression of the faculty's stand regarding the plagiarism issue. Such an open communication of ideas from the citizenry is an everyday occurrence - as evidenced by dozens of letters of appeals for justice received regularly by this Court from a myriad of people, and the placards displayed along Padre Faura Street every Tuesday. The commentators and participants in the public discussions on the Vinuya Decision, both on the Internet and in traditional media, included legal experts and other members of the bar, with even a former Chief Justice of the Supreme Court numbered among them. Yet only members of the UP Law Faculty were deemed to be the cause for the majority's trepidation that the Court's honesty, integrity, and competence was being undermined. The Show Cause Order went so far as to hold the respondent faculty members responsible for threatening the independence of the judiciary.
Despite the assertion that the present case is merely an exercise of the Court's disciplinary authority over members of the bar, a closer look reveals the true nature of the proceeding as one for indirect contempt, the due process requirements of which are strictly provided for under Rule 71 of the Rules of Court. The majority attempts to skirt the issue regarding the non-observance of due process by insisting that the present case is not an exercise of the Court's contempt powers, but rather is anchored on the Court's disciplinary powers. Whatever designation the majority may find convenient to formally characterize this proceeding, however, the pretext is negated by the disposition in the Resolution of 19 October 2010 itself and its supporting rationale.
The majority directed respondents to SHOW CAUSE, within ten (10) days from receipt of a copy of the Resolution, why they should not be disciplined as members of the Bar. Yet the substance therein demonstrates that the present proceeding is one for indirect contempt, particularly in the following portions:
We made it clear in the case of In re Kelly that any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable.5
... ... ...
Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary.6... ... ...
The Court could hardly perceive any reasonable purpose for the faculty's less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court's honesty, integrity and competence in addressing the motion for reconsideration.7 (Emphasis supplied)
From October 30, 2007 to March 10, 2008, the Investigating Committee held hearings and gathered affidavits and testimonies from the parties concerned.
The Committee invited respondent Macasaet, Dañguilan-Vitug, Delis, and ACA Marquez to a preliminary meeting, in which they were requested to submit their respective affidavits which served as their testimonies on direct examination. They were then later cross-examined on various dates: respondent Macasaet on January 10, 2008, Dañguilan-Vitug on January 17, 2008, Delis on January 24, 2008, and ACA Marquez on January 28, 2008. The Chief of the Security Services and the Cashier of the High Court likewise testified on January 22 and 24, 2008, respectively.9
So that, in line with the doctrinal rule that the protective mantle of contempt may ordinarily be invoked only against scurrilous remarks or malicious innuendoes while a court mulls over a pending case and not after the conclusion thereof, Atty. Almacen would now seek to sidestep the thrust of a contempt charge by his studied emphasis that the remarks for which he is now called upon to account were made only after this Court had written finis to his appeal.
It is an oft-repeated rule that the power to punish for contempt is inherent in all courts so as to preserve order in judicial proceedings and to uphold the due administration of justice. Judges, however, should exercise their contempt powers judiciously and sparingly, with utmost restraint, and with the end in view of utilizing their contempt powers for correction and preservation, not for retaliation or vindication.
It is true that, in the case at bench, respondent judge, after having received a copy of Agapito's affidavit in connection with the petitioner's administrative charges against him, directed Agapito to show cause within three days from notice why he should not be held in contempt of court...but, without the benefit of hearing required in Rule 71, Section 3 of the Rules of Court, respondent judge, in an Order, dated February 22, 1993, sentenced Agapito guilty for contempt of court on account of the allegations he made in his affidavit, dated November 18, 1992. Such failure to afford Agapito the opportunity to be heard as a matter of due process of law deserves administrative sanction.
When the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and title he holds or he is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. In both instances, the judge's dismissal is in order. After all, faith in the administration of justice exists only if every party-litigant is assured that occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles. Moreover, witnesses against erring judges cannot come out in the open to help the Judiciary in disrobing its inept members if we allow judges to abuse their judicial discretion, more particularly with respect to the exercise of their contempt powers.
"...the Resolution is not what it purports to be. Ostensibly, the Resolution is a show cause order that initiates what would become a newly docketed regular administrative matter. There is more than meets the eye, however. When stripped of its apparent complexion, the Resolution shows its true colors and presents itself as a pronouncement of guilt of indirect contempt without proper recourse left to the parties."19
"Consistent with my dissent from the Court's October 19, 2010 Resolution, I maintain my position that there was no reasonable ground to motu proprio initiate the administrative case, in view of (i) the therein discussed injudiciousness attending the Resolution, which was anchored on an irregularly concluded finding of indirect contempt with adverse declarations prematurely describing the subject Statement, that could taint the disciplinary action."
"To maintain not only its stature, but also, more importantly, its independence, the judiciary must adhere to the discipline of judicial decision-making, firmly rooting rulings in the language of the documents in issue, precedent and logic. That is, the strength of the judiciary's independence depends not only on the constitutional framework, but also on the extent to which the judiciary acknowledges its responsibility to decide 'according to law'..."22
"Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges; free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability."23
Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization...
Endnotes:
1 The news item is also available on the publication's website at http://newsinfo.inquirer.net/inquirer headlines/nation/view/20100721-282283/High-court-not-probing-plagiarism.
2 Atty. Adrian S. Cristobal, Jr., Plagiarism, in What's in a Name?, Business Mirror, 5 August 2010.
3 Dated 18 August 2010.
4 Evan Criddle, who co-authored the article, "A Fiduciary Theory of Jus Cogens," with Evan Fox-Decent, wrote a comment in reply to a post written about the issue in a legal blog. The blog entry to which Criddle commented is the Opinio Juris entry entitled "International Law Plagiarism Charge Bedevils Philippines Supreme Court Justice", located at
; Criddle's comment was made on 19 July 2010 at 2:44 pm EST.
5 From page four of the Resolution dated 19 October 2010.
6 From page four of the Resolution dated 19 October 2010. The footnote points to a case docketed as A.M. No. 07-09-13-SC.
7 From page five of the Resolution dated 19 October 2010.
8 35 Phil 944, 951 (1916)
9 A.M. No. 07-09-13-SC, 8 August 2008, 561 SCRA 395.
10 61 Phil 724, G.R. No. 42992, 8 August 1935.
11 82 Phil. 595, 21 January 1949.
12 248 Phil. 542, 7 October 1988.
13 G.R. No. L-27654. 18 February 1970, 31 SCRA 562.
14 Pacuribot v. Judge Lim, Jr., A.M. No. RTJ-97-1382, 17 July 1997.
15 17 C.J.S. Contempt § 45.
16 Heirs of the Late Justice Jose B.L.Reyes v. CA, G.R. Nos. 135180-81, 16 August 2000, 338 SCRA 282, 299, citing Yasay, Jr. v. Recto, 313 SCRA 739 1999, citing Dee v. SEC, 199 SCRA 238 (1991).
17 Villavicencio v. Lukban, 39 Phil. 778; Peo. v. Alarcon, 69 Phil. 265.
18 A.M. No. RTJ-93-955, 12 December 1995.
19 Justice Conchita Carpio Morales, Dissenting Opinion to the Resolution of 19 October 2010, at 2.
20 William Howard Taft, Criticisms of the Federal Judiciary, 29 Am. L. Rev. 641, 642 (1895)
21 Michael Abramowicz and Thomas Colby, Notice-and-Comment Judicial Decision-Making, 76 U. Chi. L. Rev. 965 (2009) at 983
22 Thomas Vanaskie, The Independence and Responsibility of the Federal Judiciary, 46 Vill. L. Rev. 745
23 Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976)
24 Dagudag v. Paderanga, A.M. No. RTJ-06-2017, 19 June 2008, 555 SCRA 217, 235.
25 Ariosa v. Tamin, A.M. No. RTJ-92-798, 15 November 2000.
26 Torcende v. Sardido, A.M. No. MTJ-99-1238, 24 January 2003.
27 Juan de la Cruz v. Carretas, A.M. No. RTJ-07-2043, 5 September 2007, 532 SCRA 218, 227-229.
28 Supra note 19.
29 In Areopagitica, John Milton's philosophical defense of free speech, cited by Justice Isagani Cruz (Dissenting Opinion), National Press Club v. COMELEC, G.R. No. 102653, 5 March 1992, 207 SCRA 1.
30 Adopted by the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
31 Phoebe Haddon, Academic Freedom and Governance: A Call for Increased Dialogue and Diversity, 66 Tex. L. Rev. 1561