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Judicial Plagiarism

(Article published in the Aug 25, 2010 issue of Manila Standard Today)   

 “Sob, you this said?” I was very tempted last week to chide the Ateneo law school community when they came out with their statement on the alleged plagiarism by Supreme Court Justice Mariano del Castillo in the ponencia for the court in the case of Vinuya et al v. The Honorable Executive Secretary et al. GR No. 162230, April 28, 2010. 

 Instead of locking horns with their maroon counterparts from the University of the Philippines in Diliman, who, based on media reports, quickly spoke to condemn the good justice for plagiarism even after Chief Justice Corona had earlier formed an Ethics Committee to investigate whether or not plagiarism was in fact committed, the heretofore legal blue eagles from the Ateneo at Rockwell timidly hid their heads beneath shaking wings and feebly said, “subjudice, subjudice.”

 “Subjudice” says the Supreme Court in Monfort Hermanos Agricultural Development Corp. v. Ramirez, 355 SCRA 477, is defined as, ‘under or before a judge or court; under judicial consideration; undetermined’ (Black’s Law Dictionary, Sixth Edition, 1990).”  When made particularly applicable to lawyers by Rule 13.02 of their Code of Ethics, it is a principle that prohibits them from issuing “public statements in the media regarding a pending case tending to arouse public opinion for or against a party.”
 










     

 If I were one of their members, I would have tried, notwithstanding the principle of subjudice that was obviously disregarded by the UP stalwarts, to get the Ateneo Law School community to assert, en contra, as I do now, that, in this day and age and place, there is no such thing as judicial plagiarism.  In my view, which I explain below, judicial ponencia, including the ponencia of Justice Del Castillo, need not, and ought not, try to belong to the world of academic scholarship, where plagiarism is a behavioral no-no.

 Judges and justices, I submit, inhabit a world different from that populated by legal scholars; with due respects to National Artist for Literature Nick Juaquin, who wrote the introduction to the Supreme Court Decisions as Literature, their decisions ought not to try to be “lit’ry.”  Trying to be “lit’ry” needlessly distracts them from their primary function.

 Our constitution gives the judiciary the “duty to settle actual controversies, involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the Government” (Art. VIII, Sec.1)  Section 14 prescribes how judges and justices are to write their decisions: “No decision shall be rendered  by any court without expressing therein clearly and distinctly the facts and law on which it is based.”

 In performing its job, the judiciary must interpret legal provisions, such as those in the Constitution, which itself is not required, nor makes any pretense to be original.  A number of provisions in the current constitution are exact copies of provisions in prior constitutions.

 Just to mention a couple: Section 1 of Article III, the Bill of Rights, saying “no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws” is the same as Article IV, Section 1 of the 1973 constitution and the same Article IV, Section 1(1) of the 1935 constitution. Section 9 of the same Article presently states that “private property shall be taken for public use without just compensation”  That is the exact wording of Section 2 of Article IV of the 1973 constitution and of Article IV, Section 1(2) of 1935.  More examples will simply belabor the point.

 Despite this flagrant, rampant, and consistent copying in our fundamental laws, not once did we hear anyone criticize the framers of the various constitutions, such as the members of the Constitutional Commission of 1986, as plagiarists.

 Copying is just as common in our statutes, a lot of which are admitted facsimiles of American laws. Again, to name only a few: there is the (a) Negotiable Instruments law which was copied from California’s; (b) some provisions of the Civil Code on sales which came from the Uniform Sales Act, and (b) the old Corporation Code which replicates the corporation law of Delaware.  Despite this, we also do not call our Senators and Congressmen “plagiarists”.  For them, we reserve other appropriate names.

 But when it comes to judges and justices, whom we ask to interpret for us the unoriginal fundamental laws and statutes, why should we expect originality, even as we expect of them to decide according to precedent, or, if you want to be boorishly latin-laden, to the principle of stare decisis?

 Our judges and justices, I submit, ought not fall into the temptation of seeking to join the elite (as they in their parochial view see themselves) circle of academic publicists.  As Carol M. Bast, Associate Professor Legal Studies, Department of Criminal Justice and Legal Studies at the University of Central Florida in Orlando, Florida and Linda B. Samuels, Professor of Legal Studies, School of Management, George Mason University University, Fairfax, Virginia argue in the Spring of 2008 for Catholic University Law Review:

 “…there is no need for judicial writing to be original.  A judge’s job is to decide cases based on the most compelling arguments in light of statutes and case precedent, and to explain the rationale underlying the decision in a clearly written opinion.  The opinions usually follow precedent or, if they do not, explain departures in light of precedent, orienting their decision-making and writing towards past work.  The judge is not expected to produce original scholarship.” (57 Cath. U.L. Rev. 777,800).  For lack of space, I deliberately omit the quoted portion’s footnotes.

 What we need from judges and justices are good decisions, not necessarily literary ones.  It is not fair for us to expect Justice Del Castillo to write like a legal scholar.  As associate justice, he is a member of the judiciary, not the academe.  It suffices that he decides justly and simply writes his decision, as the Constitution requires, “expressing therein clearly and distinctly the facts and the law on which it is based.”  To do that, he is free, if he finds it necessary, to copy as much from anybody and anytime.

     

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