EN BANC
[ A.M. No. 10-10-4-SC, October 19, 2010 ]
UP LAW FACULTY'S STATEMENT ON PLAGIARISM ALLEGATIONS +
RE: LETTER OF THE UP LAW FACULTY 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."
R E S O L U T I O N
VILLARAMA, JR., J.:
Plagiarism is the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one's own mind.[1]
Allegations of this intellectual offense were hurled by Atty. Harry L. Roque, Jr. and Atty. Romel R. Bagares against Justice Mariano C. Del Castillo for his ponencia in the case of Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010. In said case, the Court denied the petition for certiorari filed by Filipino comfort women to compel certain officers of the executive department[2] to espouse their claims for reparation and demand apology from the Japanese government for the abuses committed against them by the Japanese soldiers during World War II. Attys. Roque and Bagares represent the comfort women in Vinuya v. Executive Secretary, which is presently the subject of a motion for reconsideration.
The authors and their purportedly plagiarized articles are: (1) Evan J. Criddle and Evan Fox-Decent from their article, "A Fiduciary Theory of Jus Cogens" published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, "Enforcing Erga Omnes Obligations in International Law" published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, "Breaking the Silence: On Rape as an International Crime" published in the Case Western Reserve Journal of International Law in 2006. The allegations of plagiarism centered on Justice Del Castillo's discussion of the principles of jus cogens and erga omnes.
On August 9, 2010, 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 published a statement on the allegations of plagiarism and misrepresentation relative to the Court's decision in Vinuya v. Executive Secretary. Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic M.V.F. Leonen, calls for the resignation of Justice Mariano C. Del Castillo in the face of allegations of plagiarism in his work.
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:
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. The authors also not only assumed that Justice Del Castillo committed plagiarism, they went further by directly accusing the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in Vinuya v. Executive Secretary. They further attempt to educate this Court on how to go about the review of the case.
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, 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. Paragraph 9 of their published statement reads,
The publication of a statement by the faculty of the UP College of Law regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is the ongoing investigation precisely to determine the truth of such allegations. More importantly, the motion for reconsideration of the decision alleged to contain plagiarized materials is still pending before the Court. We made it clear in the case of In re Kelly[3] 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.
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.[4] 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."[5]
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.[6] Their actions likewise constitute violations of Canons 10, 11, and 13[7] and Rules 1.02 and 11.05[8] of the Code of Professional Responsibility.[9]
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 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
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. 162230, 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." Enclosed are copies of the said dummy and signed statement, respectively, attached to the said letter dated August 10, 2010 and to the Compliance dated August 31, 2010 filed by Roque & Butuyan Law Offices with the Committee on Ethics and Ethical Standards.
Let this matter be DOCKETED as a regular administrative matter.
Let service of this Resolution upon the above-named UP College of Law faculty members be effected by personal delivery.
SO ORDERED.
Corona, C.J., Velasco, Jr., Nachura, Leonardo-De Castro, Brion, Peralta, Bersamin, Perez, and Mendoza, JJ., concur.
Carpio, J., joins the dissenting opinions of J. Morales and J. Sereno.
Carpio Morales, J., certify that J. Carpio-Morales write a dissenting opinion.
Del Castillo, J., no part.
Abad, J., on leave.
Sereno, J., see dissenting opinion.
[1] Black, Henry Campbell, black's law dictionary, 5th ed., St. Paul Minn., West Publishing Co., 1979, p. 1035.
[2] Executive Secretary Alberto G. Romulo, Secretary of Foreign Affairs Delia Domingo-Albert, Secretary Merceditas N. Gutierrez, and Solicitor General Alfredo L. Benipayo.
[3] 35 Phil. 944, 950-951 (1916).
[4] In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 434.
[5] Teehankee v. Director of Prisons, 76 Phil 630 (1946).
[6] Id.
[7] CANON 10 -- A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.
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.
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.
[8] 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.
Rule 11.05 --A lawyer shall submit grievances against a judge to the proper authorities only.
[9] Promulgated by this Court on June 21, 1988.
DISSENTING OPINION
CARPIO MORALES, J.:
The Resolution directs certain members of the law faculty of the University of the Philippines (UP) to "SHOW CAUSE x x x why they should not be disciplined as members of the Bar for violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."[1]
The Resolution demonstrates nothing but an abrasive flexing of the judicial muscle that could hardly be characterized as judicious. This knee-jerk response from the Court stares back at its own face, since this judicial act is the one that is "totally unnecessary, uncalled for and a rash act of misplaced vigilance."[2]
The road embarked by the Court as paved by the Resolution leads the Court into an autocratic pit with only an artificial twig of "independence of the judiciary" to hang on to somewhere in that precarious cliff where public esteem shall ultimately reckon what "dignity of the Court" means. I regret that I could not join in treading such crooked road.
The institution of a disciplinary action
smacks of injudiciousness
In instituting the proceedings[3] against the UP law faculty, the Court appears to be lending only a semblance of due process by ordering them to answer the administrative charges. The Resolution is replete with conclusions that already adjudge them guilty of violating the canons of ethics. Aside from concluding that the publication of the statement of the UP law faculty was "totally unnecessary, uncalled for and a rash act of misplaced vigilance," the Resolution classifies it as an "institutional attack" and an "insult to the members of the Court."[4] The Court has already determined that it "could hardly perceive any reasonable purpose for the faculty's less than objective comments"[5] that "fan the flames and invite resentment."[6] The adverse declarations describing the written work of the UP law faculty operate to their prejudice since that would render any subsequent proceeding illusory, because the Court, which would ultimately decide the administrative case, has already made up its mind even before hearing the parties.
Worse, 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. Without the benefit of a hearing and extensively quoting cases involving contempt, the Resolution admonishes:
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court to disrepute or disrespect." On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil.[8] Intent is a necessary element in criminal contempt, and no one can be punished for criminal contempt unless the evidence makes it clear that he intended to commit it.[9]
It is highly injudicious to anchor a motu proprio disciplinary action on an irregularly concluded finding of indirect contempt.
The dignity of the Court will suffer none
by passing it in silence
No class of the community ought to be allowed freer scope in the expression or publication of opinion as to the capacity, impartiality or integrity of judges than members of the bar.[10] For the most part of the existence of the judiciary, the legal academia has been an able partner in the administration of justice and a resource provider in various avenues of capacity building. Throughout these years, they have extended aid and offered proposals in countless ways with no other interest but to pursue the noblest intentions of improving the judicial system. A number of law professors/newspaper columnists have also "attempt[ed] to educate this Court on how to go about the review"[11] of certain cases. The Court has taken them without losing equilibrium.
It is not unusual that unsolicited suggestions and unconstructive criticisms, oftentimes fashioned in an ardent manner, finds their way into the Court's sensibilities and sensitivities. Most recently, various groups have once again turned to media to air their advocacies in support of or in opposition to the contentious issues involved in the Hacienda Luisita case. A few months ago, at the height of the "CJ Appointment Issue" and during the pendency of the motion for reconsideration, a number of hard manifestos and harsh articles saw print, which were no less intense than this plagiarism issue. The Court cannot close its eyes to the fact that certain quarters even pushed for the early resignation of Chief Justice Puno to save the Court from resolving the issue, and of the other Justices to save face. But the Court did not lift its finger. What is so special with the present case that disconcerts the Court, drawing it to institute this case against professors of a particular law school?
Unless the Court intends to busy itself into consistently engaging in a judicial witch hunt against its detractors, it is more in keeping with the Court's dignity not to dignify each and every write-up that is taken to vilify it, and console itself with the number of testimonials, written or living, that vivify the judiciary.
Although as a human being, a person naturally gets pissed off by hurtful words, it would not hurt the Court as an institution and the law as a profession if it passes off the statement of the UP law faculty at this time.
[1] Resolution, p. 4.
[2] Id. at 3.
[3] Under Rule 139-B of the Rules of Court.
[4] Resolution, p. 2.
[5] Id. at 3.
[6] Id. at 4.
[7] Id. at 3.
[8] Ceniza v. Wistehuff, Sr., G.R. No. 165734, June 16, 2006, 491 SCRA 148, 165, citing Montenegro v. Montenegro, G.R. No. 156829, June 8, 2004, 431 SCRA 415.
[9] Vda de Victoria v. Court of Appeals, G.R. No. 147550, August 16, 2005, 467 SCRA 78, 88.
[10] Ex parte Steinman [1880], 40 Am. Rep. 637, cited in the Dissenting Opinion of Justice George Malcolm in Salcedo v. Hernandez, 61 Phil. 724 (1935); and in In re: Almacen, 142 Phil. 353 (1970).
[11] Resolution, p. 2.
[12] People v. Godoy, 312 Phil. 977, 999 (1995).
Allegations of this intellectual offense were hurled by Atty. Harry L. Roque, Jr. and Atty. Romel R. Bagares against Justice Mariano C. Del Castillo for his ponencia in the case of Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010. In said case, the Court denied the petition for certiorari filed by Filipino comfort women to compel certain officers of the executive department[2] to espouse their claims for reparation and demand apology from the Japanese government for the abuses committed against them by the Japanese soldiers during World War II. Attys. Roque and Bagares represent the comfort women in Vinuya v. Executive Secretary, which is presently the subject of a motion for reconsideration.
The authors and their purportedly plagiarized articles are: (1) Evan J. Criddle and Evan Fox-Decent from their article, "A Fiduciary Theory of Jus Cogens" published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, "Enforcing Erga Omnes Obligations in International Law" published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, "Breaking the Silence: On Rape as an International Crime" published in the Case Western Reserve Journal of International Law in 2006. The allegations of plagiarism centered on Justice Del Castillo's discussion of the principles of jus cogens and erga omnes.
On August 9, 2010, 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 published a statement on the allegations of plagiarism and misrepresentation relative to the Court's decision in Vinuya v. Executive Secretary. Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic M.V.F. Leonen, calls for the resignation of Justice Mariano C. Del Castillo in the face of allegations of plagiarism in his work.
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. The authors also not only assumed that Justice Del Castillo committed plagiarism, they went further by directly accusing the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in Vinuya v. Executive Secretary. They further attempt to educate this Court on how to go about the review of the case.
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, 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. Paragraph 9 of their published statement reads,
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 doing so, 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 (sic) [betrays] a more alarming lack of concern for even the most basic values of decency and respect. (Emphasis supplied).
The publication of a statement by the faculty of the UP College of Law regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is the ongoing investigation precisely to determine the truth of such allegations. More importantly, the motion for reconsideration of the decision alleged to contain plagiarized materials is still pending before the Court. We made it clear in the case of In re Kelly[3] 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.
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.[4] 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."[5]
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.[6] Their actions likewise constitute violations of Canons 10, 11, and 13[7] and Rules 1.02 and 11.05[8] of the Code of Professional Responsibility.[9]
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 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.
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. 162230, 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." Enclosed are copies of the said dummy and signed statement, respectively, attached to the said letter dated August 10, 2010 and to the Compliance dated August 31, 2010 filed by Roque & Butuyan Law Offices with the Committee on Ethics and Ethical Standards.
Let this matter be DOCKETED as a regular administrative matter.
Let service of this Resolution upon the above-named UP College of Law faculty members be effected by personal delivery.
SO ORDERED.
Corona, C.J., Velasco, Jr., Nachura, Leonardo-De Castro, Brion, Peralta, Bersamin, Perez, and Mendoza, JJ., concur.
Carpio, J., joins the dissenting opinions of J. Morales and J. Sereno.
Carpio Morales, J., certify that J. Carpio-Morales write a dissenting opinion.
Del Castillo, J., no part.
Abad, J., on leave.
Sereno, J., see dissenting opinion.
[1] Black, Henry Campbell, black's law dictionary, 5th ed., St. Paul Minn., West Publishing Co., 1979, p. 1035.
[2] Executive Secretary Alberto G. Romulo, Secretary of Foreign Affairs Delia Domingo-Albert, Secretary Merceditas N. Gutierrez, and Solicitor General Alfredo L. Benipayo.
[3] 35 Phil. 944, 950-951 (1916).
[4] In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 434.
[5] Teehankee v. Director of Prisons, 76 Phil 630 (1946).
[6] Id.
[7] CANON 10 -- A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.
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.
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.
[8] 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.
Rule 11.05 --A lawyer shall submit grievances against a judge to the proper authorities only.
[9] Promulgated by this Court on June 21, 1988.
CARPIO MORALES, J.:
The Resolution directs certain members of the law faculty of the University of the Philippines (UP) to "SHOW CAUSE x x x why they should not be disciplined as members of the Bar for violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."[1]
The Resolution demonstrates nothing but an abrasive flexing of the judicial muscle that could hardly be characterized as judicious. This knee-jerk response from the Court stares back at its own face, since this judicial act is the one that is "totally unnecessary, uncalled for and a rash act of misplaced vigilance."[2]
The road embarked by the Court as paved by the Resolution leads the Court into an autocratic pit with only an artificial twig of "independence of the judiciary" to hang on to somewhere in that precarious cliff where public esteem shall ultimately reckon what "dignity of the Court" means. I regret that I could not join in treading such crooked road.
The institution of a disciplinary action
smacks of injudiciousness
In instituting the proceedings[3] against the UP law faculty, the Court appears to be lending only a semblance of due process by ordering them to answer the administrative charges. The Resolution is replete with conclusions that already adjudge them guilty of violating the canons of ethics. Aside from concluding that the publication of the statement of the UP law faculty was "totally unnecessary, uncalled for and a rash act of misplaced vigilance," the Resolution classifies it as an "institutional attack" and an "insult to the members of the Court."[4] The Court has already determined that it "could hardly perceive any reasonable purpose for the faculty's less than objective comments"[5] that "fan the flames and invite resentment."[6] The adverse declarations describing the written work of the UP law faculty operate to their prejudice since that would render any subsequent proceeding illusory, because the Court, which would ultimately decide the administrative case, has already made up its mind even before hearing the parties.
Worse, 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. Without the benefit of a hearing and extensively quoting cases involving contempt, the Resolution admonishes:
x x x 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.
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."[7]
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court to disrepute or disrespect." On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil.[8] Intent is a necessary element in criminal contempt, and no one can be punished for criminal contempt unless the evidence makes it clear that he intended to commit it.[9]
It is highly injudicious to anchor a motu proprio disciplinary action on an irregularly concluded finding of indirect contempt.
The dignity of the Court will suffer none
by passing it in silence
No class of the community ought to be allowed freer scope in the expression or publication of opinion as to the capacity, impartiality or integrity of judges than members of the bar.[10] For the most part of the existence of the judiciary, the legal academia has been an able partner in the administration of justice and a resource provider in various avenues of capacity building. Throughout these years, they have extended aid and offered proposals in countless ways with no other interest but to pursue the noblest intentions of improving the judicial system. A number of law professors/newspaper columnists have also "attempt[ed] to educate this Court on how to go about the review"[11] of certain cases. The Court has taken them without losing equilibrium.
It is not unusual that unsolicited suggestions and unconstructive criticisms, oftentimes fashioned in an ardent manner, finds their way into the Court's sensibilities and sensitivities. Most recently, various groups have once again turned to media to air their advocacies in support of or in opposition to the contentious issues involved in the Hacienda Luisita case. A few months ago, at the height of the "CJ Appointment Issue" and during the pendency of the motion for reconsideration, a number of hard manifestos and harsh articles saw print, which were no less intense than this plagiarism issue. The Court cannot close its eyes to the fact that certain quarters even pushed for the early resignation of Chief Justice Puno to save the Court from resolving the issue, and of the other Justices to save face. But the Court did not lift its finger. What is so special with the present case that disconcerts the Court, drawing it to institute this case against professors of a particular law school?
Unless the Court intends to busy itself into consistently engaging in a judicial witch hunt against its detractors, it is more in keeping with the Court's dignity not to dignify each and every write-up that is taken to vilify it, and console itself with the number of testimonials, written or living, that vivify the judiciary.
It has been insightfully explained and suggested that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that in every case where a judge decides for one party, he decides against another; and oftentimes both parties are beforehand equally confident and sanguine. The disappointment, therefore, is great, and it is not in human nature that there should be other than a bitter feeling, which often reaches to the judge as the cause of the supposed wrong. A judge, therefore, ought to be patient, and tolerate everything which appears as but the momentary outbreak of disappointment. A second thought will generally make a party ashamed of such outbreak, and the dignity of the court will suffer none by passing it in silence.[12] (underscoring supplied)
Although as a human being, a person naturally gets pissed off by hurtful words, it would not hurt the Court as an institution and the law as a profession if it passes off the statement of the UP law faculty at this time.
[1] Resolution, p. 4.
[2] Id. at 3.
[3] Under Rule 139-B of the Rules of Court.
[4] Resolution, p. 2.
[5] Id. at 3.
[6] Id. at 4.
[7] Id. at 3.
[8] Ceniza v. Wistehuff, Sr., G.R. No. 165734, June 16, 2006, 491 SCRA 148, 165, citing Montenegro v. Montenegro, G.R. No. 156829, June 8, 2004, 431 SCRA 415.
[9] Vda de Victoria v. Court of Appeals, G.R. No. 147550, August 16, 2005, 467 SCRA 78, 88.
[10] Ex parte Steinman [1880], 40 Am. Rep. 637, cited in the Dissenting Opinion of Justice George Malcolm in Salcedo v. Hernandez, 61 Phil. 724 (1935); and in In re: Almacen, 142 Phil. 353 (1970).
[11] Resolution, p. 2.
[12] People v. Godoy, 312 Phil. 977, 999 (1995).