Commentary: U.P. College of Law Professor Harry Roque Opens a Very Large Can of Worms

By Chanda Shahani

U.P. College of Law Professor Harry Roque has opened a very large can of worms by filing a complaint with the Supreme Court alleging that Associate Justice Mariano del Castillo has plagiarized the works of three international legal scholars in penning the recent Supreme Court decision in Vinuya et al vs. The Executive Secretary (GR No. 162230).

Vinuya et al asks the Supreme Court to require that the Philippine Government to demand from Japan an apology and compensation on behalf of Filipino women who were turned into sex slaves by Japanese soldiers during the Second World War.

Professor Roque was the designated counsel of Isabelita Vinuya, et al. representing Malaya Lolas, a group of comfort women whose petition was dismissed by the SC (http://www.scribd.com/doc/35499463/vinuya-vs-romulo). But upon reading the decision, Roque found many of the passages “eerily familiar” and decided to file a complaint of plagiarism against Justice del Castillo with the SC, since del Castillo penned the decision. Roque's petition was rejected by the Supreme Court, the majority of whom signed off on GR No. 162230 as well.

Beyond the act of plagiarism itself which is very serious and which the Supreme Court acknowledges occurred – but dismisses – as a mere clerical lapse with no malicious intent - there is another issue involved here which Professor Roque remains silent about, but which the dissenting Justice, Ma. Lourdes A. Sereno in the complaint refers to obliquely in her dissenting opinion. This is the act of judicial plagiarism where a judge is given bullet points or a soft copy by the lawyer of the pleadings of one side in order to render a twisted form of lopsided justice. This is referred to by Justice Sereno in this manner: “In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis (the legal principle by which judges are obliged to respect the precedents established by prior decisions (http://en.wikipedia.org/wiki/Stare_decisis)). One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.” (http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm).

The motivation for a judge's “copying of parts of the pleadings of the parties to a case,” may actually be due to the sheer superiority of the arguments of one party and the sheer inferiority of the arguments of the opposing side. But there is also a more sinister possibility that may exist and can never be discounted. This is when the judge and the lawyer already have already made a prior silent contract with each other to implement a predetermined outcome for the case at hand. This basically perverts the very notion that justice is fair and that it is blind. But it goes even deeper than that..

By the admission of the Supreme Court itself, Justice del Castillo was totally unaware that plagiarism had occurred. The Supreme Court's explanation that the clerk of court had “inadvertently lifted entire passages” (http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.htm) without even bothering to footnote them not only boggles the mind, but also reveals how easily major judicial decisions can be crafted and influenced by the clerks of court, who are nameless, faceless and not accountable in the manner that the Justices are.

The Supreme Court decision also shows how much influence a clerk of court has over a justice or judge before a decision is rendered. Certainly, one is prompted to ask the question as to what would influence a clerk of court of even a judge to be a participant in act of “judicial plagiarism.” We get our clue from a former member of the judiciary. As one retired Court of Appeals justice admitted, corruption is not new in the judiciary, but most of the times starts with lawyers and not with judges and magistrates.

"Yun yung corruptor eh, ‘yung justices corrupted lang (The lawyers are the corruptor, while the judges are the corrupted),” said former Court of Appeals Associate Justice Hilarion Aquino in an interview by Jun Veneracion in GMA’s 24 Oras (http://www.gmanews.tv/story/119729/Corruption-in-the-judiciary-exists---Philippine-Judicial-Academy).

Which brings us back to GR No. 162230. What on earth could have possessed the unnamed legal researcher to resort to legal acrobatics in order to twist the decision ultimately penned under the name of Justice del Castillo to essentially support the stand of the government of then-President Gloria Macapagal-Arroyo that no case, no matter how just, just wasn't worth the effort involved in pursuing with the government of Japan if it risked damaging bilateral relations with the Japanese?

At the end of the day, one has to question the priorities of then Executive Secretary (and now DFA Secretary) Alberto Romulo and his former principal, Gloria Macapagal-Arroyo, who would be so quick as to dismiss the legitimate claims of abused comfort women so as not to jeopardize their relations with a powerful Asian neighbor. One wonders why if other countries such as Japan itself, the U.S. and the U.K. would go out of their way to fight for their citizens, (and never mind the temporary hiccups in bilateral relations with other countries) the the Philippine government cannot. One wonders what kind of gutless, spineless Executive Branch we have had who would argue before the Supreme Court that the violations of Filipinas decades ago no longer mattered as the overriding currency of the day was improved relations with Japan. One also wonders if the current President, Benigno S. Aquino III, possesses the moral courage to take on the cause of the comfort women as being important to the national interest now that the majority of the Supreme Court has spoken and said that it is not willing to act with courage and conviction on the issue of the abused comfort women or even on one of its very own Justices who outsources his own decision and doesn't even own up to the fact of his own command responsibility over his unnnamed researcher's intellectual dishonesty. It is a farce, but Harry Roque still has one last hand to play and that is at the bar of public opinion; and perhaps there is a possibility that President Aquino may just listen thanks to the ensuing outcry.

(Chanda Shahani is the Editor of the Diliman Diary)