IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC. AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO October 12, 2010 Per Curiam * charges against a member that plagiarized the works of certain authors and twisted their meanings to support the decision, while preparing a decision for the Court Facts:

­ Petitioner Isabelita C. Vinuya and 70 elderly women filed a special civil action of certiorari with application for preliminary mandatory injunction (Malaya Lolas Organization)

­ Defendant : Exec. Secretary, DFA, DOJ Sec. and the Office of the Solicitor General ­ Alleged rape and abuse during the Japanese era and have been asking for assistance

from Executive Department since 1998 ­ Declined : claims have been satisfied under the Peace Treaty between Philippines and

Japan ­ SC dismissed petitioners w/ Justice del Castillo's written decision ­ Reasons of the Court : Executive department has the exclusive prerogative under the

Constitution; Phil. not under any obligation in int; law to espouse their claims ­ Atty. Roque claimed (under the motion of reconsideration) plagiarism under second

reason (copying without acknowledgement certain passages from three foreign articles) and of twisting the true intents of the plagiarized sources to suit the arguments of assailed judgment

­ Del Castillo wrote a letter stating that he had the intent to attribute all sources used in i ­ SC put the charges under Committee on Ethics and Ethical Standards (retired Justice

Vitug to serve as consultant) ­ Criddle­ Descent : prohibitions against sexual slavery are not jus cogens or

internationally binding norms that treaties cannot diminish ­ Ellis : the Court may have misread; the article was for appropriate legel remedy for

victims of war crimes ­ Tams : form of referencing was wrong; the support for obligations owed by individual

States to the community of nations are not consistent with what he advocated ­ UP BOR v. CA : standards on plagiarism in the academe should apply with more force to

the judiciary Issues:

1. W/N, in writing the opinion for the Court in the Vinuya case, Justice Del Castillo plagiarized the published works of authors Tams, Criddle­Descent and Ellis

2. W/N Justice Del Castillo twisted the works of these authors to make it appear that such works supported the Courts position in the Vinuya decision

Held: (1) NO

Tams ­ a matter of concerning clarity of writing (since wrong form of citation); Del Castillo did not passed off the passages as his own Ellis ­ a better and complete writing of the footnote in reference Criddle ­ Descents ­ no attribution were made to the two authors in those footnotes Researcher cut relevant materials from books and journal from website and pasted these to the main manuscript , wherein she later edited according to what Del Castillo ordered. The early drafts contained the passages lifted from the separate articles. But during the editing and cleaning up, the researcher accidentally deleted the attributions. SC affirmed the Committee's finding that the researchers explanation is credible. MS Word would automatically adjust the footnote sequence. The researchers unintentionally deleted the footnotes that went with such subject tags from the passages that Del Castillo wanted to include. Petitioners contend that Del Castillo did not include the errors of his researchers in his letter. SC states: nothing in the letter suggest a cover­up; as the writer of the decision he had to take full responsibility No intention from Del Castillo and researcher to commit plagiarism; it was pure oversight. Plagiarism must presuppose intent and a deliberate, conscious effort to steal work and pas it off as onew osn. The omission did not bring about an impression that Del Castillo created the passages himself (text and foot note) Passage consists of common elements (definitions, principles, phrases) that already belong to the public realm. Stare decisis ­ encourage courts to cite; no judge is expected to produce original scholarship

(2) NO To twist means to distort or pervert the meaning of ­ nothing in the decision said or implied that, based from the passages supported the Courts conclusion that the Philippines is not under any obligation in international law to espouse Vinuya claims. Since the attributions were accidentally deleted, it is impossible to connect the passages and decide if Del Castillo "twisted".

The passages were neutral data that could support or not the judicial decision ordering the Executive to sue other countries Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action ­> not the case here. Petitioners contend ­> gross inexcusable negligence

­ Del Castillo was in full control and does not have to check whether the researcher was right mechanically. The researcher was very competent.

­ assigning cases was normal * human error is inevitable Decision: DISMISSES for lack of merit of petitioner regarding the charges of plagiarism DIRECTS the Public Information Office to send copies of the Decision to Tam, Criddle­Descent and Ellis DIRECTS the Clerk of Court to provide all court attorneys with copies of the decision and acquire the necessary software to avoid editing errors and lapses in citations and attributions DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of statement of UP Law for the en bancs consideration in relation to the separate pending matter concerning the supposed Faculty statement Other Notes: plagiarism ­ take from another and pass them off as ones own (Webster) ­ deliberate and knowing presentation of another person's original ideas or creative expression as one's own (Blacks Law Dictionary, 8th ed) CODE OF PROFESSIONAL RESPONSIBILITY CANON 1 A lawyer shall uphold the Constitution, obey the laws of the lands and promote respect for law and legal processes. Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

CANON 10 A lawyer owes candor, fairness and good faith to the Court. Rule 10.1 A lawyer shall not do any falsehoods, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. Rule 10.2 A lawyer shall not knowingly misquote or misrepresent the contents of paper, the language or 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. HIPOS v. BAY Petitioner : Nilo Hipos, Sr. Defendant : RTC Judge Teodoro A. Bay Date : March 17, 2009 Ponente : Chico­Nazario Petition for mandamus ­ seeking a reversal of Order of Judge Bay which denied the Motion to Withdraw Informations of the Office of the City Prosecutor of QC Facts: ­ Dec 15, 2003 ­ two Informations for the crime of rape and one Information for the crime of acts of lasciviousness were filed against Darrly Hipos, Jaycee Corsio, Arthur Villaruel and two others before Branch 86 of RTC QC presided by Judge Bay ­ Feb 23, 2004 ­ private complainants AAA and BBB filed Motion for Reinvestigation to study if the proper Informations had been filed. Granted by Judge Bay. ­ May 19, 2004 ­ petitioners filed to dismiss the case. They claim that there was no probable cause to hold them liable for the crimes charged. ­ Aug 10, 2004 ­ the Office of the City Prosecutor issued a Resolution on the reinvestigation affirming the Information filed against petitioners and their co­accused ­ March 3, 2006 ­ 2nd Asst. City Prosecutor de Vera treating the Joint Memorandum to Dismiss the Case an appeal of the Aug. 10 2004 Resolution. Filed a Motion to Withdraw Information ­ Oct 2, 2006 ­ Judge Bay denied the Motion to Withdraw Information Issue:

1) Can the SC compel the respondent to dismiss the case through a writ of mandamus by virtue of the resolution of the office of the city prosecutor of Quezon City finding no probable cause against the accused and subsequently filing a motion to withdraw information? Held: 1) NO mandamus will not issue to control the exercise of discretion by a public officer where the law imposes him to judge on certain matters (it is his judgment that is to be exercises, and not that of the court) mandamus is never available for the retraction or reversal on an action already taken in the exercise (the judge cannot be compelled to act in a certain way) ­ it is not available for Judge Bay who already acted by denying the Motion to Withdraw Informations if Bay committed grave abuse of discretion ­ a petition for certiorari should have been filed Petition for mandamus is allowed for prosecutors but for this case, it is against the trial court. ­ when the trial courts decides on matters, it does so in sound exercise of its judicial prerogrative People v. Montesa, Jr. ­ once a criminal complaint or information is filed in court, any disposition thereof, such as its dismissal or the conviction or acquittal of the accuses, rests in the sound discretion of court Ledesma v. Court of Appeals the duty of the trial court is to make an independent assessment of the merits of such motion a trial court commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceedings with the trial on the mere pretext of having already acquired jurisdiction over the criminal action Petitioners claim that since there was no probable cause, the Motion to Withdraw Informations by the Office of the City Prosecutor should be granted ­ SC did find probable cause against the petitioners ­ general rule : where there is a conflict between the dispositive (settlement, "fallo") portion and the body of the decision, the fallo controls BUT when the body of the decision is so clear to show that there was a mistake in the dispositive portion, the body of the decision will prevail Held: Petition for Mandamus is DISMISSED. Atty. Beltran is ordered to show cause why he should not be disciplined as a member of the Bar for his Other notes:

Mandamus ­ commands a tribunal, corporation, board, officer or person, to do the act required to be done, when the respondent neglects the performance of an act, excludes another from the use and enjoyment of a right, and there is no other plain, speedy and adequate remedy. ALLIED BANKING CORPORATION v. CA Petitioner: Allied Banking Corporation Respondents: Court of Appeals (CA) & Potenciana L. Galanida Date : Nov. 18, 2003 Ponente : Carpio Petition for review Facts: ­ Jan. 11, 1978 ­ Potenciano Galanida was hired by Allied Banking Corporation. ­ 1991 ­ Promoted to assistant manager. Appointment was covered by a Notice of Personnel Action which provides as one of the conditions of employment the provision on petitioners right to transfer employees ­ Galanida was promoted and transferred to several branches. ­ April 19 1994 ­ wrote a letter of refusal to be transferred to Bacolod. Reasons include parental obligations, expenses and anguish from being away from his family. Filed a complaint before the Labor Arbiter for constructive dismissal ­ June 13, 1994 ­ petitioner warned the respondent and wrote that the respondent's non­transferal implies favoritism ­ June 16 1994 ­ Galanida replied that if the banks penalizes (either suspension or dismissal) him for his refusal, it would strengthen his complaint with the NLRC. He states that there is indeed favoritism with the choosing of employees who will be transferred. ­ Oct 5 1994 ­ Galanida was fired effective Sept 1 1994 for reasons: continued to refuse transfer and refusal to report for work despite the denial of his application for additional vacation leave Ruling of Labor Arbiter : Allied Bank abused its management prerogative in ordering the transfer of Galanida ­ the right to transfer is not absolute ­ refusal to obey a transfer order cannot be considered insubordination where employee cited "valid" reasons for said refusal (family) ­ transfer is costly, inconvenient and prejudicial for Galanida ­ Galanida was still not awarded back wages and granted separation pay instead Ruling of the NLRC Agreed with the Labor Arbiter : transfer was unreasonable and unjustified ­ transfer was a demotion and unlawful discrimination ­ illegal for lack of due process : no hearings and termination notice

­ dismissal was done in bad faith and an unfair labor practice Allied Bank filed a petition for review question the Decision and Resolution of NLRC before CA Ruling of the CA ­ similar to that of NLRC ­ April 26 2001 ­ Allied Bank brought the case to SC Issues: 1) W/N Galanida was dismissed for just cause 2) W/N Galanida's dismissal violated the requirement of notice and hearing Held: Preliminary matter: Misquoting Decisions of the SC ­ memorandum prepared by Atty. Durano and decision of Labor Arbiter both misquoted the SC ruling in Dosch v. NLRC ­ Galanida's counsel lifted the erroneous phrase from one of the lines in the syllabus of the case found in SCRA ­ made it appear to be the decision of the Court (violation of Rule 10.02) ­ the syllabus is not part of the Court's decision; a counsel should not cite a syllabus in place of the carefully considered text in the decision of the Court ­ syllabus is simply the work of the reporter who gives an understanding of

the decision 1) YES ­ agrees with the decision of CA however there are exceptions present in the case ­ Allied Bank's system of constant transfer was part of its policy and Galanida was well aware and consented to this condition when he signed the Notice of Personnel Action ­ it was neither discriminatory nor a demotion ­ no basis for finding that the Bank was guilty of unfair labor practice (must violate constitutional rights and are limited to acts enumerated in Art. 248 of Labor Code) ­ the refusal to obey the valid transfer constitutes willful disobedience of a lawful order; there were no illegal or improper orders ­ Galanida is not entitled to reinstatement or to separation pay 2) ­ a dismissal must comply with Sec. 2(d), Rule 1, Book VI of the Ombinus Rules to be effective: ­ written notice specifying the ground or ground of termination & giving opportunity to employee to explain ­ hearing/conference, with the assistance of a counsel, to respond and present evidence ­ written notice of termination ­ essence of due process is the opportunity to be hears

­ the memo informing the termination of services (effective Sept 1 1994) is recognized as the written notice of termination ­ even Galanida recognized the letter as the notice of termination ­ complied with the internal rules of the Bank wherein the President of his authorized representative to confirm the notice ­ the memo suffered errors: ­ dated Sept 8 1994 when termination was effective prior (Sept 1 1994) ­ late receipt of the letter (Oct 5 1994) which is a month after the supposed date of dismissal ­ Galanida was entitled to backwages from Sept. 1 1994 to Oct. 4 1994 ­ award of P10,000 in nominal damages since the Bank failed to timely notify him about his dismissal Decision of CA is AFFIRMED with the ff modifications: 1) awards of separation pay, moral damages and exemplary damages are hereby deleted for lack of basis 2) reducing the award of backwages to cover only from Sept 1 1994 to Oct. 4 1994 3) awarding nominal damages to private respondent for P10K case is REMANDED to the Labor Arbiter for the computation, within 30 days from receipt of this Decision, of backwages, allowances and benefits for the time of his dismissal from Sept 1 1994 until Oct. 4 1994 Labor Arbiter Almirante and Durano are ADMONISHED to be more careful in citing the decision of the SC COMELEC v. NOYNAY Petitioner: COMELEC Respondent: Tomas B Noynay, Diosdada F Amor, Esbel Chua and Ruben Magluyoan Date : July 9 1998 Ponente : Davide Special civil action for certiorari with mandamus Facts: ­ Oct. 29 1996 ­ COMELEC filed an information for violation of Sec. 26 of the Omnibus Election Code against Amor, a public school principal, and Chua & Magluyoan, public school teachers, for having engaged in partisan political activities; authorized its Regional Director in Region 8 to handle the prosecution

­ Aug 25 1997 ­ Judge Noynay ordered the records of the cases to be withdrawn and directed the COMELEC Law Dept. to file the cases with appropriate Municipal Trial Court (RTC has no jurisdiction over the cases since the max. penalty does not exceed 6 years) Issue: 1) W/N RA 7961 (Judiciary Reorganization Act of 1980) has divested RTC of jurisdiction over election offenses, which are punishable with imprisonment of not exceeding 6 years Held: 1) Sec. 268 of Omnibus Election Code ­ RTC have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code except those relating to the offense of failure to register or failure to vote Sec. 261(i) ­ prohibits the intervention of public officers and employees in election campaign or engages in any partisan political activity ­ under Sec. 264 ­ punishment is imprisonment of 1­6 years Sec. 2 of RA 7691 ­ Municipal Trial Courts have exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years SC ruled that exclusive original jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts does not cover those criminal cases which by specific provisions of law fall within the exclusive original jurisdiction of RTC and of Sandiganbayan, regardless of penalty prescribed. ­ even in cases punishable by imprisonment of not exceeding 6 years, jurisdiction is retained by RTC or Sandiganbayan Congress may provide by law that a certain class of cases should be exclusively heard & determined by one court RA 7691 does not have the effect of repealing laws vesting upon RTC or Sandiganbayan exclusive original jurisdiction. It appears that Judge Noynay did not read all the opening sentence of Sec. 32 of BP Blg 129 (original of RA 7691 prior to amendments) Atty. Balbuena (COMELEC'S Director IV of Law Dept.) is also admonished for carelessness ­> wrong citation of names and volumes of SCRA; made it appear that the quoted portions were findings or rulings when it were just part of the memorandum of the Court Administrator quoted in the decision. (violates Rule 10.02) Petition is GRANTED Respondent Judge is directed to try and decide the cases with purposeful dispatch and further Admonished to faith fully comply with Canons 4 and 18 and Rule 3.01 Canon 3

Atty. Babuena is admonished to be more careful and comply with the Code of Professional Responsibility