EN BANC
[ A.M. No. 10-10-4-SC, March 08, 2011 ]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"
D E C I S I O N
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"
D E C I S I O N
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent law professors[1] in response to the Resolution dated October 19, 2010 (the Show Cause Resolution), directing them to show cause why they should not be
disciplined as members of the Bar for violation of specific provisions of the Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary proceeding grounded on an allegedly irregularly concluded finding of indirect contempt as intimated by Associate Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the October 19, 2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds that with the exception of one respondent whose compliance was adequate and another who manifested he was not a member of the Philippine Bar, the submitted explanations, being mere denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses even more urgently behoove this Court to call the attention of respondent law professors, who are members of the Bar, to the relationship of their duties as such under the Code of Professional Responsibility to their civil rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as follows:
Established jurisprudence will undeniably support our view that when lawyers speak their minds, they must ever be mindful of their sworn oath to observe ethical standards of their profession, and in particular, avoid foul and abusive language to condemn the Supreme Court, or any court for that matter, for a decision it has rendered, especially during the pendency of a motion for such decision's reconsideration. The accusation of plagiarism against a member of this Court is not the real issue here but rather this plagiarism issue has been used to deflect everyone's attention from the actual concern of this Court to determine by respondents' explanations whether or not respondent members of the Bar have crossed the line of decency and acceptable professional conduct and speech and violated the Rules of Court through improper intervention or interference as third parties to a pending case. Preliminarily, it should be stressed that it was respondents themselves who called upon the Supreme Court to act on their Statement,[2] which they formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court's proper disposition. Considering the defenses of freedom of speech and academic freedom invoked by the respondents, it is worth discussing here that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to respondents' invocation of academic freedom. Indeed, it is precisely because respondents are not merely lawyers but lawyers who teach law and mould the minds of young aspiring attorneys that respondents' own non-observance of the Code of Professional Responsibility, even if purportedly motivated by the purest of intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents' actuations, it is apropos to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the counsel[3] for Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely the following grounds:
On July 19, 2010,[6] counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R. No. 162230, where they posited for the first time their charge of plagiarism as one of the grounds for reconsideration of the Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted that:
They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition."[8]
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decent's article "A Fiduciary Theory of Jus Cogens;"[9] (2) Christian J. Tams' book Enforcing Erga Omnes Obligations in International Law;[10] and (3) Mark Ellis' article "Breaking the Silence: On Rape as an International Crime."[11]
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized parts of ruling on comfort women," on the Newsbreak website.[12] The same article appeared on the GMA News TV website also on July 19, 2010.[13]
On July 22, 2010, Atty. Roque's column, entitled "Plagiarized and Twisted," appeared in the Manila Standard Today.[14] In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors purportedly not properly acknowledged in the Vinuya decision, confirmed that his work, co-authored with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof. Criddle's response to the post by Julian Ku regarding the news report[15] on the alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle responded to Ku's blog entry in this wise:
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the charge of plagiarism contained in the Supplemental Motion for Reconsideration.[18]
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred the July 22, 2010 letter of Justice Del Castillo to the Ethics Committee. The matter was subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the letter of Justice Del Castillo.[21]
On August 9, 2010, a statement dated July 27, 2010, 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 Statement), was posted in Newsbreak's website[22] and on Atty. Roque's blog.[23] A report regarding the statement also appeared on various on-line news sites, such as the GMA News TV[24] and the Sun Star[25] sites, on the same date. The statement was likewise posted at the University of the Philippines College of Law's bulletin board allegedly on August 10, 2010[26] and at said college's website.[27]
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
The copy of the Statement attached to the above-quoted letter did not contain the actual signatures of the alleged signatories but only stated the names of 37 UP Law professors with the notation (SGD.) appearing beside each name. For convenient reference, the text of the UP Law faculty Statement is reproduced here:
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments on the alleged plagiarism issue to the Court.[30] We quote Prof. Tams' letter here:
In the course of the submission of Atty. Roque and Atty. Bagares' exhibits during the August 26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring Integrity Statement) was not signed but merely reflected the names of certain faculty members with the letters (SGD.) beside the names. Thus, the Ethics Committee directed Atty. Roque to present the signed copy of the said Statement within three days from the August 26 hearing.[32]
It was upon compliance with this directive that the Ethics Committee was given a copy of the signed UP Law Faculty Statement that showed on the signature pages the names of the full roster of the UP Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the Statement was that only 37 of the 81 faculty members appeared to have signed the same. However, the 37 actual signatories to the Statement did not include former Supreme Court Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the previous copies of the Statement submitted by Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement although his name was not included among the signatories in the previous copies submitted to the Court. Thus, the total number of ostensible signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same Statement, having been formally submitted by Dean Leonen on August 11, 2010, was already under consideration by the Court.[33]
In a Resolution dated October 19, 2010, the Court en banc made the following observations regarding the UP Law Faculty Statement:
In the same Resolution, the Court went on to state that:
Thus, the Court directed 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 to show cause, within ten (10) days from receipt of the copy of the Resolution, why they should not be disciplined as members of the Bar for violation of Canons 1,[36] 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.[37]
Dean Leonen was likewise directed to show cause within the same period 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 and of the investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy which is not a true and faithful reproduction of the UP Law Faculty Statement.[38]
In the same Resolution, the present controversy was docketed as a regular administrative matter.
Summaries of the Pleadings Filed by
Respondents in Response to the October
19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court, respondents filed the following pleadings:
Common Compliance of 35 Respondents
(Excluding Prof. Owen Lynch and Prof.
Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common compliance which was signed by their respective counsels (the Common Compliance). In the "Preface" of said Common Compliance, respondents stressed that "[they] issued the Restoring Integrity Statement in the discharge of the `solemn duties and trust reposed upon them as teachers in the profession of law,' and as members of the Bar to speak out on a matter of public concern and one that is of vital interest to them."[39] They likewise alleged that "they acted with the purest of intentions" and pointed out that "none of them was involved either as party or counsel"[40] in the Vinuya case. Further, respondents "note with concern" that the Show Cause Resolution's findings and conclusions were "a prejudgment - that respondents indeed are in contempt, have breached their obligations as law professors and officers of the Court, and have violated `Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."[41]
By way of explanation, the respondents emphasized the following points:
(a) Respondents' alleged noble intentions
In response to the charges of failure to observe due respect to legal processes[42] and the courts[43] and of tending to influence, or giving the appearance of influencing the Court[44] in the issuance of their Statement, respondents assert that their intention was not to malign the Court but rather to defend its integrity and credibility and to ensure continued confidence in the legal system. Their noble motive was purportedly evidenced by the portion of their Statement "focusing on constructive action."[45] Respondents' call in the Statement for the Court "to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in adjudication," was reputedly "in keeping with strictures enjoining lawyers to `participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice'" (under Canon 4 of the Code of Professional Responsibility) and to "promote respect for the law and legal processes" (under Canon 1, id.).[46] Furthermore, as academics, they allegedly have a "special interest and duty to vigilantly guard against plagiarism and misrepresentation because these unwelcome occurrences have a profound impact in the academe, especially in our law schools."[47]
Respondents further "[called] on this Court not to misconstrue the Restoring Integrity Statement as an `institutional attack' x x x on the basis of its first and ninth paragraphs."[48] They further clarified that at the time the Statement was allegedly drafted and agreed upon, it appeared to them the Court "was not going to take any action on the grave and startling allegations of plagiarism and misrepresentation."[49] According to respondents, the bases for their belief were (i) the news article published on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator Jose Midas P. Marquez was reported to have said that Chief Justice Corona would not order an inquiry into the matter;[50] and (ii) the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing but to downplay the gravity of the plagiarism and misrepresentation charges."[51] Respondents claimed that it was their perception of the Court's indifference to the dangers posed by the plagiarism allegations against Justice Del Castillo that impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents' position that Justice Del Castillo committed plagiarism and should be held accountable in accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of the merits of respondents' charge of plagiarism against Justice Del Castillo. Relying on University of the Philippines Board of Regents v. Court of Appeals[52] and foreign materials and jurisprudence, respondents essentially argue that their position regarding the plagiarism charge against Justice Del Castillo is the correct view and that they are therefore justified in issuing their Restoring Integrity Statement. Attachments to the Common Compliance included, among others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,[53] sent to Chief Justice Corona through Justice Sereno, alleging that the Vinuya decision likewise lifted without proper attribution the text from a legal article by Mariana Salazar Albornoz that appeared in the Anuario Mexicano De Derecho Internacional and from an International Court of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled "Sexual Orientation, Gender Identity and International Human Rights Law" by Michael O'Flaherty and John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said article without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on Elections.[54]
(c) Respondents' belief that they are being "singled out" by the Court when others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism and misrepresentation allegations are legitimate public issues."[55] They identified various published reports and opinions, in agreement with and in opposition to the stance of respondents, on the issue of plagiarism, specifically:
In view of the foregoing, respondents alleged that this Court has singled them out for sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they may have violated specific canons of the Code of Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their position that in issuing their Statement, "they should be seen as not only to be performing their duties as members of the Bar, officers of the court, and teachers of law, but also as citizens of a democracy who are constitutionally protected in the exercise of free speech."[66] In support of this contention, they cited United States v. Bustos,[67] In re: Atty. Vicente Raul Almacen, [68] and In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections.[69]
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was also issued in the exercise of their academic freedom as teachers in an institution of higher learning. They relied on Section 5 of the University of the Philippines Charter of 2008 which provided that "[t]he national university has the right and responsibility to exercise academic freedom." They likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School of Theology[70] which they claimed recognized the extent and breadth of such freedom as to encourage a free and healthy discussion and communication of a faculty member's field of study without fear of reprisal. It is respondents' view that had they remained silent on the plagiarism issue in the Vinuya decision they would have "compromised [their] integrity and credibility as teachers; [their silence] would have created a culture and generation of students, professionals, even lawyers, who would lack the competence and discipline for research and pleading; or, worse, [that] their silence would have communicated to the public that plagiarism and misrepresentation are inconsequential matters and that intellectual integrity has no bearing or relevance to one's conduct."[71]
In closing, respondents' Common Compliance exhorted this Court to consider the following portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez,[72] to wit:
On the matter of the reliefs to which respondents believe they are entitled, the Common Compliance stated, thus:
Compliance and Reservation of Prof.
Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein she adopted the allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the findings and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."[75]
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with the best intentions to protect the Supreme Court by asking one member to resign."[76] For her part, Prof. Juan-Bautista intimated that her deep disappointment and sadness for the plight of the Malaya Lolas were what motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence[77] which in her view highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning such that schools have the freedom to determine for themselves who may teach, what may be taught, how lessons shall be taught and who may be admitted to study and that courts have no authority to interfere in the schools' exercise of discretion in these matters in the absence of grave abuse of discretion. She claims the Court has encroached on the academic freedom of the University of the Philippines and other universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents' constitutional right to freedom of expression that can only be curtailed when there is grave and imminent danger to public safety, public morale, public health or other legitimate public interest.[78]
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by registered mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the circumstances surrounding his signing of the Statement. He alleged that the Vinuya decision was a topic of conversation among the UP Law faculty early in the first semester (of academic year 2010-11) because it reportedly contained citations not properly attributed to the sources; that he was shown a copy of the Statement by a clerk of the Office of the Dean on his way to his class; and that, agreeing in principle with the main theme advanced by the Statement, he signed the same in utmost good faith.[79]
In response to the directive from this Court to explain why he should not be disciplined as a member of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a lawyer has the right, like all citizens in a democratic society, to comment on acts of public officers. He invited the attention of the Court to the following authorities: (a) In re: Vicente Sotto;[80] (b) In re: Atty. Vicente Raul Almacen;[81] and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.[82] He claims that he "never had any intention to unduly influence, nor entertained any illusion that he could or should influence, [the Court] in its disposition of the Vinuya case"[83] and that "attacking the integrity of [the Court] was the farthest thing on respondent's mind when he signed the Statement."[84] Unlike his colleagues, who wish to impress upon this Court the purported homogeneity of the views on what constitutes plagiarism, Prof. Vasquez stated in his Compliance that:
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have been remiss in correctly assessing the effects of such language [in the Statement] and could have been more careful."[86] He ends his discussion with a respectful submission that with his explanation, he has faithfully complied with the Show Cause Resolution and that the Court will rule that he had not in any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen
regarding the charge of violation of Canon
10 in relation to his submission of a "dummy"
of the UP Law Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law Faculty Statement, which he described as follows:
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant since what Dean Leonen has been directed to explain are the discrepancies in the signature pages of these two documents. Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean Leonen alleged, thus:
According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of non-signatories in the final draft of significant public issuances, is meant not so much for aesthetic considerations as to secure the integrity of such documents."[89] He likewise claimed that "[p]osting statements with blanks would be an open invitation to vandals and pranksters."[90]
With respect to the inclusion of Justice Mendoza's name as among the signatories in Restoring Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake to a miscommunication involving his administrative officer. In his Compliance, he narrated that:
Dean Leonen claimed that he "had no reason to doubt his administrative officer, however, and so placed full reliance on her account"[92] as "[t]here were indeed other faculty members who had also authorized the Dean to indicate that they were signatories, even though they were at that time unable to affix their signatures physically to the document."[93]
However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the circumstances surrounding their effort to secure Justice Mendoza's signature. It would turn out that this was what actually transpired:
According to the Dean:
With respect to the omission of Atty. Armovit's name in the signature page of Restoring Integrity II when he was one of the signatories of Restoring Integrity I and the erroneous description in Dean Leonen's August 10, 2010 letter that the version of the Statement submitted to the Court was signed by 38 members of the UP Law Faculty, it was explained in the Compliance that:
Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement that was not a true and faithful reproduction of the same. He emphasized that the main body of the Statement was unchanged in all its three versions and only the signature pages were not the same. This purportedly is merely "reflective of [the Statement's] essential nature as a `live' public manifesto meant to continuously draw adherents to its message, its signatory portion is necessarily evolving and dynamic x x x many other printings of [the Statement] may be made in the future, each one reflecting the same text but with more and more signatories."[97] Adverting to criminal law by analogy, Dean Leonen claims that "this is not an instance where it has been made to appear in a document that a person has participated in an act when the latter did not in fact so participate"[98] for he "did not misrepresent which members of the faculty of the UP College of Law had agreed with the Restoring Integrity Statement proper and/or had expressed their desire to be signatories thereto."[99]
In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the Statement or the identities of the UP Law faculty members who agreed with, or expressed their desire to be signatories to, the Statement. He also asserts that he did not commit any violation of Rule 10.03 as he "coursed [the Statement] through the appropriate channels by transmitting the same to Honorable Chief Justice Corona for the latter's information and proper disposition with the hope that its points would be duly considered by the Honorable Court en banc."[100] Citing Rudecon Management Corporation v. Camacho,[101] Dean Leonen posits that the required quantum of proof has not been met in this case and that no dubious character or motivation for the act complained of existed to warrant an administrative sanction for violation of the standard of honesty provided for by the Code of Professional Responsibility.[102]
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common Compliance, including the prayers for a hearing and for access to the records, evidence and witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch
(Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of the Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same capacity in 2010. He further alleges that "[h]e subscribes to the principle, espoused by this Court and the Supreme Court of the United States, that `...[d]ebate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."[103] In signing the Statement, he believes that "the right to speak means the right to speak effectively."[104] Citing the dissenting opinions in Manila Public School Teachers Association v. Laguio, Jr.,[105] Prof. Lynch argued that "[f]or speech to be effective, it must be forceful enough to make the intended recipients listen"[106] and "[t]he quality of education would deteriorate in an atmosphere of repression, when the very teachers who are supposed to provide an example of courage and self-assertiveness to their pupils can speak only in timorous whispers."[107] Relying on the doctrine in In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,[108] Prof. Lynch believed that the Statement did not pose any danger, clear or present, of any substantive evil so as to remove it from the protective mantle of the Bill of Rights (i.e., referring to the constitutional guarantee on free speech).[109] He also stated that he "has read the Compliance of the other respondents to the Show Cause Resolution" and that "he signed the Restoring Integrity Statement for the same reasons they did."[110]
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of respondents, the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of expression?
2.) Does the Show Cause Resolution violate respondents' academic freedom as law professors?
3.) Do the submissions of respondents satisfactorily explain why they should not be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in relation to such hearing, are respondents entitled to require the production or presentation of evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records and transcripts of, and the witnesses and evidence presented, or could have been presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny
respondents their freedom of expression.
It is respondents' collective claim that the Court, with the issuance of the Show Cause Resolution, has interfered with respondents' constitutionally mandated right to free speech and expression. It appears that the underlying assumption behind respondents' assertion is the misconception that this Court is denying them the right to criticize the Court's decisions and actions, and that this Court seeks to "silence" respondent law professors' dissenting view on what they characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of plagiarism that motivated the said Resolution. It was the manner of the criticism and the contumacious language by which respondents, who are not parties nor counsels in the Vinuya case, have expressed their opinion in favor of the petitioners in the said pending case for the "proper disposition" and consideration of the Court that gave rise to said Resolution. The Show Cause Resolution painstakingly enumerated the statements that the Court considered excessive and uncalled for under the circumstances surrounding the issuance, publication, and later submission to this Court of the UP Law faculty's Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del Castillo was guilty of plagiarism but rather their expression of that belief as "not only as an established fact, but a truth"[111] when it was "[o]f public knowledge [that there was] an ongoing investigation precisely to determine the truth of such allegations."[112] It was also pointed out in the Show Cause Resolution that there was a pending motion for reconsideration of the Vinuya decision.[113] The Show Cause Resolution made no objections to the portions of the Restoring Integrity Statement that respondents claimed to be "constructive" but only asked respondents to explain those portions of the said Statement that by no stretch of the imagination could be considered as fair or constructive, to wit:
To be sure, the Show Cause Resolution itself recognized respondents' freedom of expression when it stated that:
Indeed, in a long line of cases, including those cited in respondents' submissions, this Court has held that the right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference. In cases where the critics are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding the courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits of fair comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez,[116] the Court found Atty. Vicente J. Francisco both guilty of contempt and liable administratively for the following paragraph in his second motion for reconsideration:
The highlighted phrases were considered by the Court as neither justified nor necessary and further held that:
Significantly, Salcedo is the decision from which respondents culled their quote from the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading filed by a counsel in a case, unlike the respondents here, who are neither parties nor counsels in the Vinuya case and therefore, do not have any standing at all to interfere in the Vinuya case. Instead of supporting respondents' theory, Salcedo is authority for the following principle:
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his pleading, by accusing the Court of "erroneous ruling." Here, the respondents' Statement goes way beyond merely ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to their position. In re: Atty. Vicente Raul Almacen,[120] cited in the Common Compliance and the Vasquez Compliance, was an instance where the Court indefinitely suspended a member of the Bar for filing and releasing to the press a "Petition to Surrender Lawyer's Certificate of Title" in protest of what he claimed was a great injustice to his client committed by the Supreme Court. In the decision, the petition was described, thus:
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle that a lawyer, just like any citizen, has the right to criticize and comment upon actuations of public officers, including judicial authority. However, the real doctrine in Almacen is that such criticism of the courts, whether done in court or outside of it, must conform to standards of fairness and propriety. This case engaged in an even more extensive discussion of the legal authorities sustaining this view. To quote from that decision:
In a similar vein, In re: Vicente Sotto,[123] cited in the Vasquez Compliance, observed that:
That the doctrinal pronouncements in these early cases are still good law can be easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,[125] the Court administratively disciplined a lawyer, through the imposition of a fine, for making malicious and unfounded criticisms of a judge in the guise of an administrative complaint and held, thus:
In Saberon v. Larong,[127] where this Court found respondent lawyer guilty of simple misconduct for using intemperate language in his pleadings and imposed a fine upon him, we had the occasion to state:
Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the limits of fair comment and cannot be deemed as protected free speech. Even In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,[129] relied upon by respondents in the Common Compliance, held that:
One such societal value that presses for recognition in the case at bar is the threat to judicial independence and the orderly administration of justice that immoderate, reckless and unfair attacks on judicial decisions and institutions pose. This Court held as much in Zaldivar v. Sandiganbayan and Gonzales,[131] where we indefinitely suspended a lawyer from the practice of law for issuing to the media statements grossly disrespectful towards the Court in relation to a pending case, to wit:
For this reason, the Court cannot uphold the view of some respondents[133] that the Statement presents no grave or imminent danger to a legitimate public interest.
The Show Cause Resolution does not interfere
with respondents' academic freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic freedom and undisputably, they are free to determine what they will teach their students and how they will teach. We must point out that there is nothing in the Show Cause Resolution that dictates upon respondents the subject matter they can teach and the manner of their instruction. Moreover, it is not inconsistent with the principle of academic freedom for this Court to subject lawyers who teach law to disciplinary action for contumacious conduct and speech, coupled with undue intervention in favor of a party in a pending case, without observing proper procedure, even if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in any previous case before this Court, is the question of whether lawyers who are also law professors can invoke academic freedom as a defense in an administrative proceeding for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court's past treatment of the "free speech" defense in other bar discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public's faith in the legal profession and the justice system. To our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad definition in Cayetano v. Monsod,[134] lawyers when they teach law are considered engaged in the practice of law. Unlike professors in other disciplines and more than lawyers who do not teach law, respondents are bound by their oath to uphold the ethical standards of the legal profession. Thus, their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents' proposition in the Common Compliance that their issuance of the Statement was in keeping with their duty to "participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice" under Canon 4 of the Code of Professional Responsibility, we cannot agree that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give due respect to legal processes and the courts, and to avoid conduct that tends to influence the courts. Members of the Bar cannot be selective regarding which canons to abide by given particular situations. With more reason that law professors are not allowed this indulgence, since they are expected to provide their students exemplars of the Code of Professional Responsibility as a whole and not just their preferred portions thereof.
The Court's rulings on the submissions
regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents' main arguments of freedom of expression and academic freedom, the Court considers here the other averments in their submissions.
With respect to good faith, respondents' allegations presented two main ideas: (a) the validity of their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive to spur this Court to take the correct action on said issue.
The Court has already clarified that it is not the expression of respondents' staunch belief that Justice Del Castillo has committed a misconduct that the majority of this Court has found so unbecoming in the Show Cause Resolution. No matter how firm a lawyer's conviction in the righteousness of his cause there is simply no excuse for denigrating the courts and engaging in public behavior that tends to put the courts and the legal profession into disrepute. This doctrine, which we have repeatedly upheld in such cases as Salcedo, In re Almacen and Saberong, should be applied in this case with more reason, as the respondents, not parties to the Vinuya case, denounced the Court and urged it to change its decision therein, in a public statement using contumacious language, which with temerity they subsequently submitted to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas was one of the objectives of the Statement could be seen in the following paragraphs from the same:
Whether or not respondents' views regarding the plagiarism issue in the Vinuya case had valid basis was wholly immaterial to their liability for contumacious speech and conduct. These are two separate matters to be properly threshed out in separate proceedings. The Court considers it highly inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances arguing the guilt of Justice Del Castillo. In the Common Compliance, respondents even go so far as to attach documentary evidence to support the plagiarism charges against Justice Del Castillo in the present controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a motion for reconsideration, was still pending at the time of the filing of respondents' submissions in this administrative case. As respondents themselves admit, they are neither parties nor counsels in the ethics case against Justice Del Castillo. Notwithstanding their professed overriding interest in said ethics case, it is not proper procedure for respondents to bring up their plagiarism arguments here especially when it has no bearing on their own administrative case.
Still on motive, it is also proposed that the choice of language in the Statement was intended for effective speech; that speech must be "forceful enough to make the intended recipients listen."[136] One wonders what sort of effect respondents were hoping for in branding this Court as, among others, callous, dishonest and lacking in concern for the basic values of decency and respect. The Court fails to see how it can ennoble the profession if we allow respondents to send a signal to their students that the only way to effectively plead their cases and persuade others to their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in full in the narration of background facts to illustrate the sharp contrast between the civil tenor of these letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are the ones who would expectedly be affected by any perception of misuse of their works. Notwithstanding that they are beyond the disciplinary reach of this Court, they still obviously took pains to convey their objections in a deferential and scholarly manner. It is unfathomable to the Court why respondents could not do the same. These foreign authors' letters underscore the universality of the tenet that legal professionals must deal with each other in good faith and due respect. The mark of the true intellectual is one who can express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive recriminations.
As for the claim that the respondents' noble intention is to spur the Court to take "constructive action" on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement was primarily meant for this Court's consideration, why was the same published and reported in the media first before it was submitted to this Court? It is more plausible that the Statement was prepared for consumption by the general public and designed to capture media attention as part of the effort to generate interest in the most controversial ground in the Supplemental Motion for Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents' colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of fidelity and due respect to the Court, particularly when respondents knew fully well that the matter of plagiarism in the Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statement's issuance, were still both sub judice or pending final disposition of the Court. These facts have been widely publicized. On this point, respondents allege that at the time the Statement was first drafted on July 27, 2010, they did not know of the constitution of the Ethics Committee and they had issued the Statement under the belief that this Court intended to take no action on the ethics charge against Justice Del Castillo. Still, there was a significant lapse of time from the drafting and printing of the Statement on July 27, 2010 and its publication and submission to this Court in early August when the Ethics Committee had already been convened. If it is true that the respondents' outrage was fueled by their perception of indifference on the part of the Court then, when it became known that the Court did intend to take action, there was nothing to prevent respondents from recalibrating the Statement to take this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in the respondents' reliance on various news reports and commentaries in the print media and the internet as proof that they are being unfairly "singled out." On the contrary, these same annexes to the Common Compliance show that it is not enough for one to criticize the Court to warrant the institution of disciplinary[137] or contempt[138] action. This Court takes into account the nature of the criticism and weighs the possible repercussions of the same on the Judiciary. When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them. However, when law professors are the ones who appear to have lost sight of the boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, this Court cannot remain silent for such silence would have a grave implication on legal education in our country.
With respect to the 35 respondents named in the Common Compliance, considering that this appears to be the first time these respondents have been involved in disciplinary proceedings of this sort, the Court is willing to give them the benefit of the doubt that they were for the most part well-intentioned in the issuance of the Statement. However, it is established in jurisprudence that where the excessive and contumacious language used is plain and undeniable, then good intent can only be mitigating. As this Court expounded in Salcedo:
Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect to the courts and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance compared to his colleagues. In our view, he was the only one among the respondents who showed true candor and sincere deference to the Court. He was able to give a straightforward account of how he came to sign the Statement. He was candid enough to state that his agreement to the Statement was in principle and that the reason plagiarism was a "fair topic of discussion" among the UP Law faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about by a division of opinion on whether or not willful or deliberate intent was an element of plagiarism. He was likewise willing to acknowledge that he may have been remiss in failing to assess the effect of the language of the Statement and could have used more care. He did all this without having to retract his position on the plagiarism issue, without demands for undeserved reliefs (as will be discussed below) and without baseless insinuations of deprivation of due process or of prejudgment. This is all that this Court expected from respondents, not for them to sacrifice their principles but only that they recognize that they themselves may have committed some ethical lapse in this affair. We commend Prof. Vaquez for showing that at least one of the respondents can grasp the true import of the Show Cause Resolution involving them. For these reasons, the Court finds Prof. Vasquez's Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused from these proceedings. However, he should be reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court. For even if one is not bound by the Code of Professional Responsibility for members of the Philippine Bar, civility and respect among legal professionals of any nationality should be aspired for under universal standards of decency and fairness.
The Court's ruling on Dean Leonen's
Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a "dummy" that was not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text or the body, there were no differences between the two. He attempts to downplay the discrepancies in the signature pages of the two versions of the Statement (i.e., Restoring Integrity I and Restoring Integrity II) by claiming that it is but expected in "live" public manifestos with dynamic and evolving pages as more and more signatories add their imprimatur thereto. He likewise stresses that he is not administratively liable because he did not misrepresent the members of the UP Law faculty who "had agreed with the Restoring Integrity Statement proper and/or who had expressed their desire to be signatories thereto."[140]
To begin with, the Court cannot subscribe to Dean Leonen's implied view that the signatures in the Statement are not as significant as its contents. Live public manifesto or not, the Statement was formally submitted to this Court at a specific point in time and it should reflect accurately its signatories at that point. The value of the Statement as a UP Law Faculty Statement lies precisely in the identities of the persons who have signed it, since the Statement's persuasive authority mainly depends on the reputation and stature of the persons who have endorsed the same. Indeed, it is apparent from respondents' explanations that their own belief in the "importance" of their positions as UP law professors prompted them to publicly speak out on the matter of the plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of Dean Leonen's predicament is the fact that he did not from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages. It would turn out, according to Dean Leonen's account, that there were errors in the retyping of the signature pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the dean's office gave the dean inaccurate information that led him to allow the inclusion of Justice Mendoza as among the signatories of Restoring Integrity II. Second, an unnamed staff also failed to type the name of Atty. Armovit when encoding the signature pages of Restoring Integrity II when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a website a signed document may have to be reformatted and signatures may be indicated by the notation (SGD). This is not unusual. We are willing to accept that the reformatting of documents meant for posting to eliminate blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a signed document for the Court's consideration that did not contain the actual signatures of its authors. In most cases, it is the original signed document that is transmitted to the Court or at the very least a photocopy of the actual signed document. Dean Leonen has not offered any explanation why he deviated from this practice with his submission to the Court of Restoring Integrity II on August 11, 2010. There was nothing to prevent the dean from submitting Restoring Integrity I to this Court even with its blanks and unsigned portions. Dean Leonen cannot claim fears of vandalism with respect to court submissions for court employees are accountable for the care of documents and records that may come into their custody. Yet, Dean Leonen deliberately chose to submit to this Court the facsimile that did not contain the actual signatures and his silence on the reason therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonen's explanations yield the answer. In the course of his explanation of his willingness to accept his administrative officer's claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had likewise only authorized him to indicate them as signatories and had not in fact signed the Statement. Thus, at around the time Restoring Integrity II was printed, posted and submitted to this Court, at least one purported signatory thereto had not actually signed the same. Contrary to Dean Leonen's proposition, that is precisely tantamount to making it appear to this Court that a person or persons participated in an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent standards of intellectual honesty, could proffer the explanation that there was no misrepresentation when he allowed at least one person to be indicated as having actually signed the Statement when all he had was a verbal communication of an intent to sign. In the case of Justice Mendoza, what he had was only hearsay information that the former intended to sign the Statement. If Dean Leonen was truly determined to observe candor and truthfulness in his dealings with the Court, we see no reason why he could not have waited until all the professors who indicated their desire to sign the Statement had in fact signed before transmitting the Statement to the Court as a duly signed document. If it was truly impossible to secure some signatures, such as that of Justice Mendoza who had to leave for abroad, then Dean Leonen should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual signatures before submission of the Statement to this Court. As respondents all asserted, they were neither parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo. The Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen's Compliance unsatisfactory. However, the Court is willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his objectives. In due consideration of Dean Leonen's professed good intentions, the Court deems it sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings with the Court as required under Canon 10.
Respondents' requests for a hearing, for
production/presentation of evidence bearing
on the plagiarism and misrepresentation
issues in G.R. No. 162230 and A.M. No.
10-7-17-SC, and for access to the records of
A.M. No. 10-7-17-SC are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative reliefs should the Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for hearing and for that purpose, they be allowed to require the production or presentation of witnesses and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of, and evidence that were presented or may be presented in the ethics case against Justice Del Castillo. The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC was substantially echoed in Dean Leonen's separate Compliance. In Prof. Juan-Bautista's Compliance, she similarly expressed the sentiment that "[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."[141] It is this group of respondents' premise that these reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs largely from its characterization as a special civil action for indirect contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the majority's purported failure to follow the procedure in Rule 71 of the Rules of Court as her main ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect contempt proceeding and Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered in the Show Cause Resolution this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:
From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will be followed.
As respondents are fully aware, in general, administrative proceedings do not require a trial type hearing. We have held that:
In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio[143] that:
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court - Br. 81, Romblon - On the Prohibition from Engaging in the Private Practice of Law,[145] we further observed that:
Under the rules and jurisprudence, respondents clearly had no right to a hearing and their reservation of a right they do not have has no effect on these proceedings. Neither have they shown in their pleadings any justification for this Court to call for a hearing in this instance. They have not specifically stated what relevant evidence, documentary or testimonial, they intend to present in their defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and witnesses bearing on the plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the findings of this Court which were the bases of the Show Cause Resolution were made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that case. This is the primary reason for their request for access to the records and evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual signed copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there. Apart from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution that the respondents issued a Statement with language that the Court deems objectionable during the pendency of the Vinuya case and the ethics case against Justice Del Castillo, respondents need to go no further than the four corners of the Statement itself, its various versions, news reports/columns (many of which respondents themselves supplied to this Court in their Common Compliance) and internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the language of the Statement and the circumstances surrounding the drafting, printing, signing, dissemination, etc., of its various versions, the Court does not see how any witness or evidence in the ethics case of Justice Del Castillo could possibly shed light on these facts. To be sure, these facts are within the knowledge of respondents and if there is any evidence on these matters the same would be in their possession.
We find it significant that in Dean Leonen's Compliance he narrated how as early as September 2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October 12, 2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice Vicente V. Mendoza, after being shown a copy of the Statement upon his return from abroad, predicted that the Court would take some form of action on the Statement. By simply reading a hard copy of the Statement, a reasonable person, even one who "fundamentally agreed" with the Statement's principles, could foresee the possibility of court action on the same on an implicit recognition that the Statement, as worded, is not a matter this Court should simply let pass. This belies respondents' claim that it is necessary for them to refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their respective compliances or chosen not to make a full defense at this time, because they were counting on being granted a hearing, that is respondents' own look-out. Indeed, law professors of their stature are supposed to be aware of the above jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary cases. They should bear the consequence of the risk they have taken.
Thus, respondents' requests for a hearing and for access to the records of, and evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have monolithic views on any subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously propound their points of view they are bound by certain rules of conduct for the legal profession. This Court is certainly not claiming that it should be shielded from criticism. All the Court demands is the same respect and courtesy that one lawyer owes to another under established ethical standards. All lawyers, whether they are judges, court employees, professors or private practitioners, are officers of the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the Bar, to conduct themselves with good fidelity towards the courts. There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, 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, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35 respondent law professors are reminded of their lawyerly duty, under Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due respect to the Court and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the Court and the administration of justice and warned that the same or similar act in the future shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation of Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more mindful of his duty, as a member of the Bar, an officer of the Court, and a Dean and professor of law, to observe full candor and honesty in his dealings with the Court and warned that the same or similar act in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these proceedings. However, he is reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court.
(5) Finally, respondents' requests for a hearing and for access to the records of A.M. No. 10-7-17-SC are denied for lack of merit.
SO ORDERED.
Corona, C.J., Velasco, Jr., Peralta, Bersamin, Abad, Perez, Mendoza, and Sereno, JJ., concur.
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see dissenting opinion.
Nachura, J., on leave.
Brion, J., I certify that Mr. J. Brion left hi concurring vote. on leave.
Del Castillo, J., no part.
Villarama, Jr., J., pls. separate opinion..
[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).
[7]Malaya 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.
[27]The 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.
DISSENTING OPINION
CARPIO, J.:
I find the Compliance of the 37 legal scholars[1] satisfactory and therefore see no need to admonish or warn them[2] for supposed use of disrespectful language in their statement[3] 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 powers[4] 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 Secretary[5] 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 network[7] 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-liability[11] 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-à-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. Godoy[24] 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.
[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:
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:
[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.:
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:
In their Compliance, 35 of the respondents, excluding Professors Owen J. Lynch and Raul V. Vasquez, take common defense that the statements contained in Restoring Integrity were mere expressions of their opinion, dispensed in accordance with their duties as members of the bar and as professors of law. They aver that they acted with the purest intentions, guided by their duty of candor, fairness and good faith to the Court, and deny that it was their intention to malign the Court as an institution for its decision in Vinuya v. Executive Secretary.[2] They claim that any reference to Vinuya in their statement was made only to establish and accent the grave consequences of the allegations of plagiarism and misrepresentation allegedly committed by one of the Court's members. Indeed, they claim that the Statement was intended "to defend the integrity and credibility of the entire Supreme Court" and ensure continued confidence in the legal system and the Judiciary by calling on the Court to take constructive action in the face of the damaging allegations. They also add that the Statement was meant to address what they perceived as indifference on the part of the Court owing to certain statements reportedly made by Supreme Court Administrator and spokesperson, Atty. Jose Midas P. Marquez (that Chief Justice Renato C. Corona would not take any action on the charges) and their reading of Justice Mariano C. Del Castillo's letter replying to the allegations.
Respondents affirm their loyalty and respect for the Court and claim that as professors of law, they have a special interest in guarding against plagiarism and misrepresentation to ensure intellectual honesty among their students. They allegedly released the Statement in support of "efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding law and jurisprudence." Citing similar commentaries on the issue, they likewise invoke freedom of speech and academic freedom to justify the publication of their stand on the matter.
Finally, respondents argue that the Resolution amounted to a prejudgment of their liability for contempt and breach of Canons 1, 11, 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. Thus, they invoke their right to due process and plead for an opportunity to present evidence relative to the proceedings in A.M. No. 10-7-17-SC entitled In the Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo.
Prof. Rosa Maria T. Juan-Bautista, in her separate Compliance and Reservation, reiterates the above reservation of her right to due process and request for hearing. She likewise supplements the above submissions with additional arguments in support of her assertion that she signed the Statement in the exercise of her freedom of expression.
As to Prof. Owen J. Lynch, Prof. Lynch filed a Manifestation invoking freedom of expression and asserting that the statement did not pose a clear and present danger of a substantive evil that the State has a right to prevent. He also manifests that he is not a member of the Philippine Bar as he is an American citizen who is a member of the bar of the State of Minnesota.
Prof. Raul V. Vasquez, for his part, likewise submits that he never had any intention of maligning the Court and alleges that he signed the Statement as he was fundamentally in agreement with its contents. He further states that he might have been remiss in correctly assessing the effects of the language employed in the Statement and says that he could have been more careful.
As regards the charge of violating Canon 10 and Rules 10.01, 10.02 and 10.03 for submitting to the Court a copy of the Restoring Integrity Statement that was not a true and faithful reproduction thereof, Dean Marvic M.V.F. Leonen submitted the following explanations.
Dean Leonen denies misrepresenting the contents of the Statement or which faculty members signed and/or signified their intention to sign the same. He avers that there are actually three versions of the Statement, all with the same contents, but with different signature pages. Two versions were submitted to the Court: one with the signature pages containing the full roster of faculty members and the actual signatures of the signatories (which version he calls Restoring Integrity I) and the other with the retyped signature page containing just the names of the members who signed, with the notation "(SGD.)" beside their names. This second version he referred to as Restoring Integrity II. According to him, these two copies arose because after the original version containing the full roster of faculty members was circulated for signature, he had the signature pages re-typed to eliminate the blanks prior to posting in the bulletin board. (He alleges that the practice of re-typing the signature pages was meant to ensure the integrity of the public issuance as posting the Statement with blanks would open it to vandalism.)
When the re-typed signature page was presented to him by his staff, he noticed that the name of retired Justice Vicente V. Mendoza was indicated as a signatory even though the latter did not sign the Statement. He asked his administrative staff about the inclusion and the latter claimed that she spoke to Justice Mendoza on the phone before the latter flew for the United States. According to his staff, Justice Mendoza allegedly authorized him to sign on behalf of Justice Mendoza since the latter agrees with the contents of the Statement but was just unable to personally affix his signature because he was leaving for the United States the following week. Dean Leonen claims that he did not have any reason to disbelieve his staff because there were indeed other faculty members who authorized him to sign the Statement for them. Thus, he placed full faith and confidence in his staff's claim and allowed the inclusion of Justice Mendoza's name as one of the signatories in Restoring Integrity II which he later submitted to the Court. Because of this information, also, he believed that the total number of signatories to the Statement was already 38.
Dean Leonen adds that in September 2010, he received a call from Justice Mendoza, who said that he will no longer sign the statement "considering that it had already become controversial and that he did not wish to unduly aggravate the situation." On October 21, 2010, after receiving a copy of this Court's Show Cause Resolution, he met with his staff and reviewed what had transpired in connection with their efforts to secure Justice Mendoza's signature. It was then that he learned that while Justice Mendoza initially agreed to sign the statement, Justice Mendoza did not exactly authorize him to sign for the latter. Rather, Justice Mendoza merely inquired "if he could authorize the dean to sign it for him as he was leaving for the United States." He then realized the full import of the call he received from Justice Mendoza in September.
As regards the omission of the name of Atty. Miguel R. Armovit in the re-typed signature pages of Restoring Integrity II, Dean Leonen explains that the omission was due simply to inadvertence.
After a careful study of the respondents' submissions, I respectfully submit that the above submissions are SATISFACTORY in view of respondents' claim of good faith and the fact that a re-examination of the Statement indeed admits of such claim. Consistent with respondents' claims, the tenor of the Statement was to call the Court's attention to the grave allegations and its effects on the integrity and credibility of the Court and the Judiciary. Indeed, the general wording of the Statement and its ending paragraphs lend support to respondents' averments that the Statement was prompted by the sincere and honest desire to protect the integrity and credibility of the Judiciary, especially the Supreme Court. Given such submissions, I am willing to afford respondents the benefit of the doubt as to their intentions concerning the forceful language employed in certain portions of the Restoring Integrity Statement. This is especially so considering that the subject statements present no clear and present danger of a substantive evil that the State has a right to prevent as to take it out of the protective mantle of the freedom of speech and expression under the Bill of Rights. A reading of the Statement, with particular focus on its final paragraphs, will not leave the reader with feelings of contempt for the Court but only a feeling that the Court must champion the cause of integrity. Furthermore, it should be noted that our society has developed to the point where critical analysis of information is not in short supply. The public is nowadays not only more well informed, but it has access to information with which citizens could make their own independent assessment of pending issues of public concern, including the fitness and integrity of the members of this Court to render fair and impartial judgment on the cases before them. However, given the fact that some isolated portions of the statement were arguably disrespectful, respondents should be reminded to be more circumspect in their future statements.
As regards Dean Leonen, I likewise submit that his explanation is sufficient to exonerate him from the charge of violation of Canon 10 and Rules 10.01, 10.02 and 10.03, all of the Code of Professional Responsibility. While it appears that Dean Leonen mistakenly relied on hearsay information that Justice Mendoza had authorized him to indicate Justice Mendoza as a signatory to the Statement, still, Dean Leonen's lapses appear more the result of overzealousness rather than bad faith or a deliberate intent to do falsehood or to mislead the Court. Indeed, under the circumstances as they appeared to him, and considering that there were other professors who had authorized him to indicate them as signatories,[3] it was not all too remiss on his part to indicate Justice Mendoza as a signatory to the Statement upon the information given to him by his administrative staff. That he acted upon the wrong information given to him, though telling of some degree of carelessness on his part, is not gross negligence that is tantamount to bad faith. Hence, there being no intent or inexcusable negligence, there is no ground to find him liable under Canon 10 and Rules 10.01 and 10.02 of the Code of Professional Responsibility.
Similarly, there is no cogent reason to hold him liable for violation of Rule 10.03 as it likewise does not appear that Dean Leonen violated any rule of procedure or misused any procedural rule to defeat the ends of justice. The submission of the Statement to the Court, it should be noted, was ad hoc.
I therefore vote to NOTE and CONSIDER the explanations submitted by respondents in their Compliance/s SATISFACTORY with a REMINDER that they be more circumspect in their future statements considering that the Court also has its own sensibilities.
I also vote to consider this administrative matter CLOSED and TERMINATED.
[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 Justice[3], 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:
The jurisprudence adverted to by the majority dwell on contempt, foremost of which is In re Kelly, one of the first and leading cases discussing contempt. Citing Ex Parte Terry, the Supreme Court in that case held that acts punishable as contempt are those "...tending to obstruct or degrade the administration of justice, as inherent in courts as essential to the execution of their powers and to the maintenance of their authority."[8] Significantly, before he was cited for contempt, Respondent Amzi B. Kelly was first given the opportunity to appear before the Court, submit a written Answer, and present his oral argument.
The footnote citation in Footnote 4 of the 19 October 2010 Resolution, A.M. No. 07-09-13-SC, refers to "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 case for indirect contempt lodged against the publisher of a national daily.
In this case, the Court not only gave respondent a chance to explain himself, but also created an Investigating Committee regarding the subject matter of the alleged contemptible act:
This approach of using jurisprudence on contempt to justify adverse findings against herein respondents is continued in the current Decision. The majority cites the 1935 case Salcedo v. Hernandez[10] which identified the proceedings specifically as contempt, even though the respondent was a member of the bar. The 1949 case of In Re Vicente Sotto[11], from which the majority quotes heavily - and which the majority states is "still good law" - is explicitly identified as a proceeding for contempt of court. In Zaldivar v. Sandiganbayan and Gonzales, the Court issued a Resolution "to require respondent Gonzalez to explain in writing within ten (10) days from notice hereof, why he should not be punished for contempt of court and/or subjected to administrative sanctions..."[12] only after a Motion to Cite in Contempt was filed by the petitioner. Even as the Court discussed its exercise of both its contempt powers and disciplinary powers over the respondent attorney in the said case, it still gave him ample time and opportunity to defend himself by allowing him to file an Omnibus Motion for Extension and Inhibition, a Manifestation with Supplemental Motion to Inhibit, a Motion to Transfer Administrative Proceedings to the Integrated Bar of the Philippines, and an Urgent Motion for Additional Extension of Time to File Explanation Ex Abundante Cautelam.
The case of In Re Almacen[13], also cited in the current Decision, was in the nature of a contempt proceeding even as it adverted to duties of members of the bar, as can be gleaned from the following:
Atty. Almacen filed with the Court a "Petition to Surrender Lawyer's Certificate of Title," after his clients had lost the right to file an appeal before the Court due to his own inadvertence. And yet, the Court still gave him the "ampliest [sic] latitude" for his defense, giving him an opportunity to file a written explanation and to be heard in oral argument.
All of the above negate the claim that this is not a contempt proceeding but purely an administrative one.
The central argumentation in the Show Cause Order is evidence of the original intent of the proceeding. The allegation and conclusion that the faculty members purportedly "undermine the Court's honesty, integrity, and competence," make it clear that the true nature of the action is one for indirect contempt. The discussion in the Resolution of 19 October 2010 hinged on the tribunal's need for self-preservation and independence, in view of the "institutional attacks" and "outside interference" with its functions - charges which more appropriately fall under its contempt authority, rather than the authority to determine fitness of entering and maintaining membership in the bar.
The Show Cause Order failed to specify which particular mode of contempt was committed by the respondents (as required in the Rules of Court). Its language and tenor also explicitly demonstrated that the guilt of respondents had already been prejudged. Page three (3) of the Order states: "The opening sentence alone is a grim preamble to the institutional attack that lay ahead." Page four (4) makes the conclusion that: "The publication of a statement...was totally unnecessary, uncalled for, and a rash act of misplaced vigilance."
The Order also violated respondents' right to due process because it never afforded them the categorical requirements of notice and hearing. The requirements for Indirect Contempt as laid out in Rule 71 of the Rules of Court demand strict compliance: 1) a complaint in writing which may either be a motion for contempt filed by a party or an order issued by the court requiring a person to appear and explain his conduct, and 2) an opportunity for the person charged to appear and explain his conduct.[14]
The essence of a court's contempt powers stems from a much-needed remedy for the violation of lawful court orders and for maintaining decorum during proceedings, as an essential auxiliary to the due administration of justice.[15] It is not an all-encompassing tool to silence criticism. Courts must exercise the power of contempt for purposes that are impersonal because that power is intended as a safeguard not for the judges but for the functions they fulfill.[16] It must be wielded on the preservative, rather than on the vindictive, principle.[17] So careful is the approach ordinarily taken by the Court in cases of contempt that it places a premium on the conduct of a hearing, to such a point that it administratively sanctioned a lower court judge for issuing a Show Cause Order sua sponte and finding the respondent guilty of criminal contempt without the benefit of a hearing. In the case of Castaños v. Judge Escaño, Jr.,[18] the Court held:
In finding Judge Escaño, Jr. guilty of grave abuse of judicial authority, the Court stated:
As Justice Carpio Morales finds in her Dissenting Opinion to the Resolution of 19 October 2010, this action of the Court is tainted with injudiciousness precisely because:
Thus, Justice Carpio Morales reiterates in her Dissenting Opinion to the current Decision her belief that this proceeding is in essence one for indirect contempt:
The power to cite for contempt, as well as the power to discipline, are mechanisms to be exercised solely towards the orderly administration of justice. Such powers must be weighed carefully against the substantive rights of the public to free expression and academic freedom. In this critical balancing act, the tribunal must therefore utilize, to the fullest extent, soundness and clarity of reasoning, and must not appear to have been swayed by momentary fits of temper.
Instead of regarding criticism as perpetually adversarial, the judiciary would do well to respect it, both as an important tool for public accountability, and as the only soothing balm for vindication of felt injustice. Judicial legitimacy established through demonstrated intellectual integrity in decision-making rightly generates public acceptance of such decisions, which makes them truly binding. William Howard Taft, who served as a federal appellate judge before becoming the President of the United States, understood the weight of public evaluation in this wise: "If the law is but the essence of common sense, the protest of many average men may evidence a defect in a judicial conclusion though based on the nicest reasoning and profoundest learning."[20]
We who occupy this august chamber are right not because our word is accorded legal finality on matters that are before us. We are right only when we have been proven right. There must always reside, in the recesses of our minds, the clear distinction between what is merely legal and what is legitimate. Legitimacy is a "tenuous commodity, particularly for unelected judges,"[21] and it can only be maintained by a sustained perception of fairness, as well as by the retention of the moral authority of individual judges. This required characteristic of the Court is diminished when its members do not act through the rational strength of their decisions, but are instead perceived to have done so in the misunderstanding of the Court's disciplinary powers.
Furthermore, as one American Federal Supreme Court decision said:
The Code of Judicial Conduct prescribes the standards for a judicial response to free speech which, highly-charged though it may be, is necessarily protected. Rule 3.04 in particular states that: "A judge should be patient, attentive and courteous to all lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants." The Supreme Court has itself, on occasion, demanded of lower court judges that they be "dignified in demeanor and refined in speech, [and] exhibit that temperament of utmost sobriety and self-restraint..."[24]
Nothing can be gained from the Court's exercise of a heavy hand in a matter which has originated from the Court itself. On the contrary, there is much to lose in imposing penalties on the outspoken merely because the outspoken have earned the ire of the Court's members.
They who seek to judge must first themselves be judged. By occupying an exalted seat in the judiciary, judges in effect undertake to embrace a profession and lead lives that demand stringent ethical norms.[25] In his dealings with the public, a judge must exhibit great self-restraint; he should be the last person to be perceived as a tyrant holding imperious sway over his domain,[26] and must demonstrate to the public that in the discharge of his judicial role, he "possess[es] the virtue of gravitas. He should be...dignified in demeanor, refined in speech and virtuous in character...[H]e must exhibit that hallmark judicial temperament of utmost sobriety and self-restraint... a judge should always keep his passion guarded. He can never allow it to run loose and overcome his reason."[27]
In my view of a constitutional democracy, the judiciary is required to demonstrate moral authority and legitimacy, not only legality, at all times. It has often been said that the rule of law requires an independent judiciary that fairly, impartially and promptly applies the law to cases before it. The rule of law requires a judiciary that is not beholden to any political power or private interests, whose only loyalty is to the people and to the Constitution that the people have ordained as their fundamental governing precept. It requires integrity, independence and probity of each individual judge. To be independent, the judiciary must always remember that it will lose public support and in a certain sense, its legitimacy, if it does not demonstrate its integrity in its judicial decisions. It must show a keen nose for the fundamental importance of upholding right over wrong.
To maintain a life of intellectual integrity, those of us in the judiciary must be buffeted by the winds of healthful criticism. Direct and informed criticism of judicial decisions strengthens accountability. As Taft is noted for writing: "[n]othing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism .... In the case of judges having a life tenure, indeed, their very independence makes the right freely to comment on their decisions of greater importance, because it is the only practical and available instrument in the hands of a free people to keep such judges alive to the reasonable demands of those they serve."[28]
This is where academic freedom, when exercised in appropriate measure, is most helpful. Milton encapsulates free speech as simply the right to "argue freely according to conscience."[29] The value of academic freedom, as a necessary constitutional component of the right to freedom of expression, lies in the ability of the common man, aided by the expertise available in the academe, to hold a magistrate accountable in the exercise of his official functions, foremost of which is the issuance of written decisions. Paragraph 23 of the United Nations Basic Principles on the Role of Lawyers[30] states:
The Basic Principles on the Role of Lawyers "have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers," and these "should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and legislature, and the public in general." Thus, faced with the duty of balancing lawyers' fundamental right to free speech which has now been expressly recognized in the international arena, against this Court's desire to preserve its exalted role in society by disciplining for offensive language, this Court must examine whether it has already encroached into constitutionally-prohibited interference with the basic rights of individuals. The realm of public opinion is where the academe, especially our schools and universities, plays a most crucial role in ensuring judicial legitimacy. Not by blindly legitimizing its acts, but by constantly reminding the judiciary of its presence as a helpful but critical ally. The academe is not to be an applause machine for the judiciary; it is to help guide the judiciary by illuminating new paths for the judiciary to take, by alerting the judiciary to its inconsistent decisions, and by identifying gaps in law and jurisprudence.
In this regard, the law school has a special place. Phoebe Haddon writes: "[t]he value and preservation of academic freedom depend on an academic environment that nurtures, not silences, diverse views. The law school faculty has a special responsibility to maintain a nurturing environment for diverse views because of the importance of the marketplace of ideas in our teaching and the value we theoretically place on the role of persuasive discourse in the quest for knowledge. Faculty autonomy takes on significance because it can protect freedom of inquiry."[31] In a certain sense, therefore, because the law faculty can discharge a most meaningful role in keeping the judiciary honest, there must be recognition given to the special role of the law faculty in upholding judicial independence.
The testing ground for integrity in judicial decision-making is provided in large measure by the legal academe, when it probes, tests and measures whether judicial decisions rise up to the definition of just and well-reasoned decisions as they have been defined by centuries-old norms of legal reasoning and legal scholarship. If we have a legal academe that is slothful, that is not self-disciplined, that covets the closeness to the powers-that-be which an unprofessional relationship with the judicial leadership can bring, then this refining role of the legal academe is lost. The legal academe is the preserver of the noble standards of legal reasoning and legal scholarship. It must itself demonstrate strength and independence and not be punished when doing so.
Those who occupy the most powerful positions in this country must always be ready to hold themselves accountable to the people. I believe that the tradition of deference to the judiciary has limits to its usefulness and these times do not call for the unbroken observance of such deference as much as they call for a public demonstration of honesty in all its forms.
I dissent from the Majority Decision admonishing Dean Marvic M. V. F. Leonen and issuing a warning to the thirty-five faculty members in connection with the "Restoring Integrity" Statement. I find the Common Compliance of the thirty-five faculty members, dated 18 November 2010, as well as the Compliance submitted by Professor Rosa Maria T. Juan Bautista on 18 November 2010 and by Professor Raul Vasquez on 19 November 2010, to be satisfactory. I also find the separate Compliance of Dean Leonen dated 18 November 2010 and of Professor Owen J. Lynch dated 19 November 2010 similarly satisfactory, and vote to consider this matter closed and terminated.
[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
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary proceeding grounded on an allegedly irregularly concluded finding of indirect contempt as intimated by Associate Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the October 19, 2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds that with the exception of one respondent whose compliance was adequate and another who manifested he was not a member of the Philippine Bar, the submitted explanations, being mere denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses even more urgently behoove this Court to call the attention of respondent law professors, who are members of the Bar, to the relationship of their duties as such under the Code of Professional Responsibility to their civil rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as follows:
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.
Established jurisprudence will undeniably support our view that when lawyers speak their minds, they must ever be mindful of their sworn oath to observe ethical standards of their profession, and in particular, avoid foul and abusive language to condemn the Supreme Court, or any court for that matter, for a decision it has rendered, especially during the pendency of a motion for such decision's reconsideration. The accusation of plagiarism against a member of this Court is not the real issue here but rather this plagiarism issue has been used to deflect everyone's attention from the actual concern of this Court to determine by respondents' explanations whether or not respondent members of the Bar have crossed the line of decency and acceptable professional conduct and speech and violated the Rules of Court through improper intervention or interference as third parties to a pending case. Preliminarily, it should be stressed that it was respondents themselves who called upon the Supreme Court to act on their Statement,[2] which they formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court's proper disposition. Considering the defenses of freedom of speech and academic freedom invoked by the respondents, it is worth discussing here that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to respondents' invocation of academic freedom. Indeed, it is precisely because respondents are not merely lawyers but lawyers who teach law and mould the minds of young aspiring attorneys that respondents' own non-observance of the Code of Professional Responsibility, even if purportedly motivated by the purest of intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents' actuations, it is apropos to revisit the factual antecedents of this case.
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the counsel[3] for Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely the following grounds:
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]
On July 19, 2010,[6] counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R. No. 162230, where they posited for the first time their charge of plagiarism as one of the grounds for reconsideration of the Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted that:
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]
They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition."[8]
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decent's article "A Fiduciary Theory of Jus Cogens;"[9] (2) Christian J. Tams' book Enforcing Erga Omnes Obligations in International Law;[10] and (3) Mark Ellis' article "Breaking the Silence: On Rape as an International Crime."[11]
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized parts of ruling on comfort women," on the Newsbreak website.[12] The same article appeared on the GMA News TV website also on July 19, 2010.[13]
On July 22, 2010, Atty. Roque's column, entitled "Plagiarized and Twisted," appeared in the Manila Standard Today.[14] In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors purportedly not properly acknowledged in the Vinuya decision, confirmed that his work, co-authored with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof. Criddle's response to the post by Julian Ku regarding the news report[15] on the alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle responded to Ku's blog entry in this wise:
The newspaper's[16] [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.htm[17]
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the charge of plagiarism contained in the Supplemental Motion for Reconsideration.[18]
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
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 Ellis[20]
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred the July 22, 2010 letter of Justice Del Castillo to the Ethics Committee. The matter was subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the letter of Justice Del Castillo.[21]
On August 9, 2010, a statement dated July 27, 2010, 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 Statement), was posted in Newsbreak's website[22] and on Atty. Roque's blog.[23] A report regarding the statement also appeared on various on-line news sites, such as the GMA News TV[24] and the Sun Star[25] sites, on the same date. The statement was likewise posted at the University of the Philippines College of Law's bulletin board allegedly on August 10, 2010[26] and at said college's website.[27]
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. CoronaChief Justice
Subject: Statement of faculty
from 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.)
The copy of the Statement attached to the above-quoted letter did not contain the actual signatures of the alleged signatories but only stated the names of 37 UP Law professors with the notation (SGD.) appearing beside each name. For convenient reference, the text of the UP Law faculty Statement is reproduced here:
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:
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
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments on the alleged plagiarism issue to the Court.[30] We quote Prof. Tams' letter here:
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. Tams[31]
In the course of the submission of Atty. Roque and Atty. Bagares' exhibits during the August 26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring Integrity Statement) was not signed but merely reflected the names of certain faculty members with the letters (SGD.) beside the names. Thus, the Ethics Committee directed Atty. Roque to present the signed copy of the said Statement within three days from the August 26 hearing.[32]
It was upon compliance with this directive that the Ethics Committee was given a copy of the signed UP Law Faculty Statement that showed on the signature pages the names of the full roster of the UP Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the Statement was that only 37 of the 81 faculty members appeared to have signed the same. However, the 37 actual signatories to the Statement did not include former Supreme Court Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the previous copies of the Statement submitted by Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement although his name was not included among the signatories in the previous copies submitted to the Court. Thus, the total number of ostensible signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same Statement, having been formally submitted by Dean Leonen on August 11, 2010, was already under consideration by the Court.[33]
In a Resolution dated October 19, 2010, the Court en banc made the following observations regarding the UP Law Faculty Statement:
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.)
In the same Resolution, the Court went on to state that:
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.)
Thus, the Court directed 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 to show cause, within ten (10) days from receipt of the copy of the Resolution, why they should not be disciplined as members of the Bar for violation of Canons 1,[36] 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.[37]
Dean Leonen was likewise directed to show cause within the same period 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 and of the investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy which is not a true and faithful reproduction of the UP Law Faculty Statement.[38]
In the same Resolution, the present controversy was docketed as a regular administrative matter.
Summaries of the Pleadings Filed by
Respondents in Response to the October
19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court, respondents filed the following pleadings:
(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.
Common Compliance of 35 Respondents
(Excluding Prof. Owen Lynch and Prof.
Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common compliance which was signed by their respective counsels (the Common Compliance). In the "Preface" of said Common Compliance, respondents stressed that "[they] issued the Restoring Integrity Statement in the discharge of the `solemn duties and trust reposed upon them as teachers in the profession of law,' and as members of the Bar to speak out on a matter of public concern and one that is of vital interest to them."[39] They likewise alleged that "they acted with the purest of intentions" and pointed out that "none of them was involved either as party or counsel"[40] in the Vinuya case. Further, respondents "note with concern" that the Show Cause Resolution's findings and conclusions were "a prejudgment - that respondents indeed are in contempt, have breached their obligations as law professors and officers of the Court, and have violated `Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."[41]
By way of explanation, the respondents emphasized the following points:
(a) Respondents' alleged noble intentions
In response to the charges of failure to observe due respect to legal processes[42] and the courts[43] and of tending to influence, or giving the appearance of influencing the Court[44] in the issuance of their Statement, respondents assert that their intention was not to malign the Court but rather to defend its integrity and credibility and to ensure continued confidence in the legal system. Their noble motive was purportedly evidenced by the portion of their Statement "focusing on constructive action."[45] Respondents' call in the Statement for the Court "to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in adjudication," was reputedly "in keeping with strictures enjoining lawyers to `participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice'" (under Canon 4 of the Code of Professional Responsibility) and to "promote respect for the law and legal processes" (under Canon 1, id.).[46] Furthermore, as academics, they allegedly have a "special interest and duty to vigilantly guard against plagiarism and misrepresentation because these unwelcome occurrences have a profound impact in the academe, especially in our law schools."[47]
Respondents further "[called] on this Court not to misconstrue the Restoring Integrity Statement as an `institutional attack' x x x on the basis of its first and ninth paragraphs."[48] They further clarified that at the time the Statement was allegedly drafted and agreed upon, it appeared to them the Court "was not going to take any action on the grave and startling allegations of plagiarism and misrepresentation."[49] According to respondents, the bases for their belief were (i) the news article published on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator Jose Midas P. Marquez was reported to have said that Chief Justice Corona would not order an inquiry into the matter;[50] and (ii) the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing but to downplay the gravity of the plagiarism and misrepresentation charges."[51] Respondents claimed that it was their perception of the Court's indifference to the dangers posed by the plagiarism allegations against Justice Del Castillo that impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents' position that Justice Del Castillo committed plagiarism and should be held accountable in accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of the merits of respondents' charge of plagiarism against Justice Del Castillo. Relying on University of the Philippines Board of Regents v. Court of Appeals[52] and foreign materials and jurisprudence, respondents essentially argue that their position regarding the plagiarism charge against Justice Del Castillo is the correct view and that they are therefore justified in issuing their Restoring Integrity Statement. Attachments to the Common Compliance included, among others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,[53] sent to Chief Justice Corona through Justice Sereno, alleging that the Vinuya decision likewise lifted without proper attribution the text from a legal article by Mariana Salazar Albornoz that appeared in the Anuario Mexicano De Derecho Internacional and from an International Court of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled "Sexual Orientation, Gender Identity and International Human Rights Law" by Michael O'Flaherty and John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said article without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on Elections.[54]
(c) Respondents' belief that they are being "singled out" by the Court when others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism and misrepresentation allegations are legitimate public issues."[55] They identified various published reports and opinions, in agreement with and in opposition to the stance of respondents, on the issue of plagiarism, specifically:
|
(i)
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Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;[56]
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(ii)
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Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July 24, 2010;[57]
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(iii)
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Editorial of the Philippine Daily Inquirer published on July 25, 2010;[58]
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(iv)
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Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star on July 30, 2010;[59]
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(v)
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Column of Former Intellectual Property Office Director General Adrian Cristobal, Jr. published in the Business Mirror on August 5, 2010;[60]
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(vi)
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Column of Former Chief Justice Artemio Panganiban published in the Philippine Daily Inquirer on August 8, 2010;[61]
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(vii)
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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]
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(viii)
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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]
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(ix)
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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
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(x)
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Letter of the Dean of the Liceo de Cagayan University College of Law published in the Philippine Daily Inquirer on August 10, 2010.[65]
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In view of the foregoing, respondents alleged that this Court has singled them out for sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they may have violated specific canons of the Code of Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their position that in issuing their Statement, "they should be seen as not only to be performing their duties as members of the Bar, officers of the court, and teachers of law, but also as citizens of a democracy who are constitutionally protected in the exercise of free speech."[66] In support of this contention, they cited United States v. Bustos,[67] In re: Atty. Vicente Raul Almacen, [68] and In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections.[69]
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was also issued in the exercise of their academic freedom as teachers in an institution of higher learning. They relied on Section 5 of the University of the Philippines Charter of 2008 which provided that "[t]he national university has the right and responsibility to exercise academic freedom." They likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School of Theology[70] which they claimed recognized the extent and breadth of such freedom as to encourage a free and healthy discussion and communication of a faculty member's field of study without fear of reprisal. It is respondents' view that had they remained silent on the plagiarism issue in the Vinuya decision they would have "compromised [their] integrity and credibility as teachers; [their silence] would have created a culture and generation of students, professionals, even lawyers, who would lack the competence and discipline for research and pleading; or, worse, [that] their silence would have communicated to the public that plagiarism and misrepresentation are inconsequential matters and that intellectual integrity has no bearing or relevance to one's conduct."[71]
In closing, respondents' Common Compliance exhorted this Court to consider the following portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez,[72] to wit:
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]
On the matter of the reliefs to which respondents believe they are entitled, the Common Compliance stated, thus:
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]
Compliance and Reservation of Prof.
Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein she adopted the allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the findings and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."[75]
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with the best intentions to protect the Supreme Court by asking one member to resign."[76] For her part, Prof. Juan-Bautista intimated that her deep disappointment and sadness for the plight of the Malaya Lolas were what motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence[77] which in her view highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning such that schools have the freedom to determine for themselves who may teach, what may be taught, how lessons shall be taught and who may be admitted to study and that courts have no authority to interfere in the schools' exercise of discretion in these matters in the absence of grave abuse of discretion. She claims the Court has encroached on the academic freedom of the University of the Philippines and other universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents' constitutional right to freedom of expression that can only be curtailed when there is grave and imminent danger to public safety, public morale, public health or other legitimate public interest.[78]
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by registered mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the circumstances surrounding his signing of the Statement. He alleged that the Vinuya decision was a topic of conversation among the UP Law faculty early in the first semester (of academic year 2010-11) because it reportedly contained citations not properly attributed to the sources; that he was shown a copy of the Statement by a clerk of the Office of the Dean on his way to his class; and that, agreeing in principle with the main theme advanced by the Statement, he signed the same in utmost good faith.[79]
In response to the directive from this Court to explain why he should not be disciplined as a member of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a lawyer has the right, like all citizens in a democratic society, to comment on acts of public officers. He invited the attention of the Court to the following authorities: (a) In re: Vicente Sotto;[80] (b) In re: Atty. Vicente Raul Almacen;[81] and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.[82] He claims that he "never had any intention to unduly influence, nor entertained any illusion that he could or should influence, [the Court] in its disposition of the Vinuya case"[83] and that "attacking the integrity of [the Court] was the farthest thing on respondent's mind when he signed the Statement."[84] Unlike his colleagues, who wish to impress upon this Court the purported homogeneity of the views on what constitutes plagiarism, Prof. Vasquez stated in his Compliance that:
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.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have been remiss in correctly assessing the effects of such language [in the Statement] and could have been more careful."[86] He ends his discussion with a respectful submission that with his explanation, he has faithfully complied with the Show Cause Resolution and that the Court will rule that he had not in any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen
regarding the charge of violation of Canon
10 in relation to his submission of a "dummy"
of the UP Law Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law Faculty Statement, which he described as follows:
· "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]
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant since what Dean Leonen has been directed to explain are the discrepancies in the signature pages of these two documents. Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean Leonen alleged, thus:
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]
According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of non-signatories in the final draft of significant public issuances, is meant not so much for aesthetic considerations as to secure the integrity of such documents."[89] He likewise claimed that "[p]osting statements with blanks would be an open invitation to vandals and pranksters."[90]
With respect to the inclusion of Justice Mendoza's name as among the signatories in Restoring Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake to a miscommunication involving his administrative officer. In his Compliance, he narrated that:
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.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer, however, and so placed full reliance on her account"[92] as "[t]here were indeed other faculty members who had also authorized the Dean to indicate that they were signatories, even though they were at that time unable to affix their signatures physically to the document."[93]
However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the circumstances surrounding their effort to secure Justice Mendoza's signature. It would turn out that this was what actually transpired:
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]
According to the Dean:
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.)
With respect to the omission of Atty. Armovit's name in the signature page of Restoring Integrity II when he was one of the signatories of Restoring Integrity I and the erroneous description in Dean Leonen's August 10, 2010 letter that the version of the Statement submitted to the Court was signed by 38 members of the UP Law Faculty, it was explained in the Compliance that:
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]
Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement that was not a true and faithful reproduction of the same. He emphasized that the main body of the Statement was unchanged in all its three versions and only the signature pages were not the same. This purportedly is merely "reflective of [the Statement's] essential nature as a `live' public manifesto meant to continuously draw adherents to its message, its signatory portion is necessarily evolving and dynamic x x x many other printings of [the Statement] may be made in the future, each one reflecting the same text but with more and more signatories."[97] Adverting to criminal law by analogy, Dean Leonen claims that "this is not an instance where it has been made to appear in a document that a person has participated in an act when the latter did not in fact so participate"[98] for he "did not misrepresent which members of the faculty of the UP College of Law had agreed with the Restoring Integrity Statement proper and/or had expressed their desire to be signatories thereto."[99]
In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the Statement or the identities of the UP Law faculty members who agreed with, or expressed their desire to be signatories to, the Statement. He also asserts that he did not commit any violation of Rule 10.03 as he "coursed [the Statement] through the appropriate channels by transmitting the same to Honorable Chief Justice Corona for the latter's information and proper disposition with the hope that its points would be duly considered by the Honorable Court en banc."[100] Citing Rudecon Management Corporation v. Camacho,[101] Dean Leonen posits that the required quantum of proof has not been met in this case and that no dubious character or motivation for the act complained of existed to warrant an administrative sanction for violation of the standard of honesty provided for by the Code of Professional Responsibility.[102]
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common Compliance, including the prayers for a hearing and for access to the records, evidence and witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch
(Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of the Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same capacity in 2010. He further alleges that "[h]e subscribes to the principle, espoused by this Court and the Supreme Court of the United States, that `...[d]ebate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."[103] In signing the Statement, he believes that "the right to speak means the right to speak effectively."[104] Citing the dissenting opinions in Manila Public School Teachers Association v. Laguio, Jr.,[105] Prof. Lynch argued that "[f]or speech to be effective, it must be forceful enough to make the intended recipients listen"[106] and "[t]he quality of education would deteriorate in an atmosphere of repression, when the very teachers who are supposed to provide an example of courage and self-assertiveness to their pupils can speak only in timorous whispers."[107] Relying on the doctrine in In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,[108] Prof. Lynch believed that the Statement did not pose any danger, clear or present, of any substantive evil so as to remove it from the protective mantle of the Bill of Rights (i.e., referring to the constitutional guarantee on free speech).[109] He also stated that he "has read the Compliance of the other respondents to the Show Cause Resolution" and that "he signed the Restoring Integrity Statement for the same reasons they did."[110]
Based on the Show Cause Resolution and a perusal of the submissions of respondents, the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of expression?
2.) Does the Show Cause Resolution violate respondents' academic freedom as law professors?
3.) Do the submissions of respondents satisfactorily explain why they should not be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in relation to such hearing, are respondents entitled to require the production or presentation of evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records and transcripts of, and the witnesses and evidence presented, or could have been presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?
The Show Cause Resolution does not deny
respondents their freedom of expression.
It is respondents' collective claim that the Court, with the issuance of the Show Cause Resolution, has interfered with respondents' constitutionally mandated right to free speech and expression. It appears that the underlying assumption behind respondents' assertion is the misconception that this Court is denying them the right to criticize the Court's decisions and actions, and that this Court seeks to "silence" respondent law professors' dissenting view on what they characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of plagiarism that motivated the said Resolution. It was the manner of the criticism and the contumacious language by which respondents, who are not parties nor counsels in the Vinuya case, have expressed their opinion in favor of the petitioners in the said pending case for the "proper disposition" and consideration of the Court that gave rise to said Resolution. The Show Cause Resolution painstakingly enumerated the statements that the Court considered excessive and uncalled for under the circumstances surrounding the issuance, publication, and later submission to this Court of the UP Law faculty's Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del Castillo was guilty of plagiarism but rather their expression of that belief as "not only as an established fact, but a truth"[111] when it was "[o]f public knowledge [that there was] an ongoing investigation precisely to determine the truth of such allegations."[112] It was also pointed out in the Show Cause Resolution that there was a pending motion for reconsideration of the Vinuya decision.[113] The Show Cause Resolution made no objections to the portions of the Restoring Integrity Statement that respondents claimed to be "constructive" but only asked respondents to explain those portions of the said Statement that by no stretch of the imagination could be considered as fair or constructive, to wit:
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.)
To be sure, the Show Cause Resolution itself recognized respondents' freedom of expression when it stated that:
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.)
Indeed, in a long line of cases, including those cited in respondents' submissions, this Court has held that the right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference. In cases where the critics are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding the courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits of fair comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez,[116] the Court found Atty. Vicente J. Francisco both guilty of contempt and liable administratively for the following paragraph in his second motion for reconsideration:
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.)
The highlighted phrases were considered by the Court as neither justified nor necessary and further held that:
[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.)
Significantly, Salcedo is the decision from which respondents culled their quote from the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading filed by a counsel in a case, unlike the respondents here, who are neither parties nor counsels in the Vinuya case and therefore, do not have any standing at all to interfere in the Vinuya case. Instead of supporting respondents' theory, Salcedo is authority for the following principle:
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.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his pleading, by accusing the Court of "erroneous ruling." Here, the respondents' Statement goes way beyond merely ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to their position. In re: Atty. Vicente Raul Almacen,[120] cited in the Common Compliance and the Vasquez Compliance, was an instance where the Court indefinitely suspended a member of the Bar for filing and releasing to the press a "Petition to Surrender Lawyer's Certificate of Title" in protest of what he claimed was a great injustice to his client committed by the Supreme Court. In the decision, the petition was described, thus:
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]
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle that a lawyer, just like any citizen, has the right to criticize and comment upon actuations of public officers, including judicial authority. However, the real doctrine in Almacen is that such criticism of the courts, whether done in court or outside of it, must conform to standards of fairness and propriety. This case engaged in an even more extensive discussion of the legal authorities sustaining this view. To quote from that decision:
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.)
In a similar vein, In re: Vicente Sotto,[123] cited in the Vasquez Compliance, observed that:
[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.)
That the doctrinal pronouncements in these early cases are still good law can be easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,[125] the Court administratively disciplined a lawyer, through the imposition of a fine, for making malicious and unfounded criticisms of a judge in the guise of an administrative complaint and held, thus:
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.)
In Saberon v. Larong,[127] where this Court found respondent lawyer guilty of simple misconduct for using intemperate language in his pleadings and imposed a fine upon him, we had the occasion to state:
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]
Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the limits of fair comment and cannot be deemed as protected free speech. Even In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,[129] relied upon by respondents in the Common Compliance, held that:
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.)
One such societal value that presses for recognition in the case at bar is the threat to judicial independence and the orderly administration of justice that immoderate, reckless and unfair attacks on judicial decisions and institutions pose. This Court held as much in Zaldivar v. Sandiganbayan and Gonzales,[131] where we indefinitely suspended a lawyer from the practice of law for issuing to the media statements grossly disrespectful towards the Court in relation to a pending case, to wit:
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.)
For this reason, the Court cannot uphold the view of some respondents[133] that the Statement presents no grave or imminent danger to a legitimate public interest.
The Show Cause Resolution does not interfere
with respondents' academic freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic freedom and undisputably, they are free to determine what they will teach their students and how they will teach. We must point out that there is nothing in the Show Cause Resolution that dictates upon respondents the subject matter they can teach and the manner of their instruction. Moreover, it is not inconsistent with the principle of academic freedom for this Court to subject lawyers who teach law to disciplinary action for contumacious conduct and speech, coupled with undue intervention in favor of a party in a pending case, without observing proper procedure, even if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in any previous case before this Court, is the question of whether lawyers who are also law professors can invoke academic freedom as a defense in an administrative proceeding for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court's past treatment of the "free speech" defense in other bar discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public's faith in the legal profession and the justice system. To our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad definition in Cayetano v. Monsod,[134] lawyers when they teach law are considered engaged in the practice of law. Unlike professors in other disciplines and more than lawyers who do not teach law, respondents are bound by their oath to uphold the ethical standards of the legal profession. Thus, their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents' proposition in the Common Compliance that their issuance of the Statement was in keeping with their duty to "participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice" under Canon 4 of the Code of Professional Responsibility, we cannot agree that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give due respect to legal processes and the courts, and to avoid conduct that tends to influence the courts. Members of the Bar cannot be selective regarding which canons to abide by given particular situations. With more reason that law professors are not allowed this indulgence, since they are expected to provide their students exemplars of the Code of Professional Responsibility as a whole and not just their preferred portions thereof.
The Court's rulings on the submissions
regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents' main arguments of freedom of expression and academic freedom, the Court considers here the other averments in their submissions.
With respect to good faith, respondents' allegations presented two main ideas: (a) the validity of their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive to spur this Court to take the correct action on said issue.
The Court has already clarified that it is not the expression of respondents' staunch belief that Justice Del Castillo has committed a misconduct that the majority of this Court has found so unbecoming in the Show Cause Resolution. No matter how firm a lawyer's conviction in the righteousness of his cause there is simply no excuse for denigrating the courts and engaging in public behavior that tends to put the courts and the legal profession into disrepute. This doctrine, which we have repeatedly upheld in such cases as Salcedo, In re Almacen and Saberong, should be applied in this case with more reason, as the respondents, not parties to the Vinuya case, denounced the Court and urged it to change its decision therein, in a public statement using contumacious language, which with temerity they subsequently submitted to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas was one of the objectives of the Statement could be seen in the following paragraphs from the same:
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.)
Whether or not respondents' views regarding the plagiarism issue in the Vinuya case had valid basis was wholly immaterial to their liability for contumacious speech and conduct. These are two separate matters to be properly threshed out in separate proceedings. The Court considers it highly inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances arguing the guilt of Justice Del Castillo. In the Common Compliance, respondents even go so far as to attach documentary evidence to support the plagiarism charges against Justice Del Castillo in the present controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a motion for reconsideration, was still pending at the time of the filing of respondents' submissions in this administrative case. As respondents themselves admit, they are neither parties nor counsels in the ethics case against Justice Del Castillo. Notwithstanding their professed overriding interest in said ethics case, it is not proper procedure for respondents to bring up their plagiarism arguments here especially when it has no bearing on their own administrative case.
Still on motive, it is also proposed that the choice of language in the Statement was intended for effective speech; that speech must be "forceful enough to make the intended recipients listen."[136] One wonders what sort of effect respondents were hoping for in branding this Court as, among others, callous, dishonest and lacking in concern for the basic values of decency and respect. The Court fails to see how it can ennoble the profession if we allow respondents to send a signal to their students that the only way to effectively plead their cases and persuade others to their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in full in the narration of background facts to illustrate the sharp contrast between the civil tenor of these letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are the ones who would expectedly be affected by any perception of misuse of their works. Notwithstanding that they are beyond the disciplinary reach of this Court, they still obviously took pains to convey their objections in a deferential and scholarly manner. It is unfathomable to the Court why respondents could not do the same. These foreign authors' letters underscore the universality of the tenet that legal professionals must deal with each other in good faith and due respect. The mark of the true intellectual is one who can express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive recriminations.
As for the claim that the respondents' noble intention is to spur the Court to take "constructive action" on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement was primarily meant for this Court's consideration, why was the same published and reported in the media first before it was submitted to this Court? It is more plausible that the Statement was prepared for consumption by the general public and designed to capture media attention as part of the effort to generate interest in the most controversial ground in the Supplemental Motion for Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents' colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of fidelity and due respect to the Court, particularly when respondents knew fully well that the matter of plagiarism in the Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statement's issuance, were still both sub judice or pending final disposition of the Court. These facts have been widely publicized. On this point, respondents allege that at the time the Statement was first drafted on July 27, 2010, they did not know of the constitution of the Ethics Committee and they had issued the Statement under the belief that this Court intended to take no action on the ethics charge against Justice Del Castillo. Still, there was a significant lapse of time from the drafting and printing of the Statement on July 27, 2010 and its publication and submission to this Court in early August when the Ethics Committee had already been convened. If it is true that the respondents' outrage was fueled by their perception of indifference on the part of the Court then, when it became known that the Court did intend to take action, there was nothing to prevent respondents from recalibrating the Statement to take this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in the respondents' reliance on various news reports and commentaries in the print media and the internet as proof that they are being unfairly "singled out." On the contrary, these same annexes to the Common Compliance show that it is not enough for one to criticize the Court to warrant the institution of disciplinary[137] or contempt[138] action. This Court takes into account the nature of the criticism and weighs the possible repercussions of the same on the Judiciary. When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them. However, when law professors are the ones who appear to have lost sight of the boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, this Court cannot remain silent for such silence would have a grave implication on legal education in our country.
With respect to the 35 respondents named in the Common Compliance, considering that this appears to be the first time these respondents have been involved in disciplinary proceedings of this sort, the Court is willing to give them the benefit of the doubt that they were for the most part well-intentioned in the issuance of the Statement. However, it is established in jurisprudence that where the excessive and contumacious language used is plain and undeniable, then good intent can only be mitigating. As this Court expounded in Salcedo:
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.)
Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect to the courts and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance compared to his colleagues. In our view, he was the only one among the respondents who showed true candor and sincere deference to the Court. He was able to give a straightforward account of how he came to sign the Statement. He was candid enough to state that his agreement to the Statement was in principle and that the reason plagiarism was a "fair topic of discussion" among the UP Law faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about by a division of opinion on whether or not willful or deliberate intent was an element of plagiarism. He was likewise willing to acknowledge that he may have been remiss in failing to assess the effect of the language of the Statement and could have used more care. He did all this without having to retract his position on the plagiarism issue, without demands for undeserved reliefs (as will be discussed below) and without baseless insinuations of deprivation of due process or of prejudgment. This is all that this Court expected from respondents, not for them to sacrifice their principles but only that they recognize that they themselves may have committed some ethical lapse in this affair. We commend Prof. Vaquez for showing that at least one of the respondents can grasp the true import of the Show Cause Resolution involving them. For these reasons, the Court finds Prof. Vasquez's Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused from these proceedings. However, he should be reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court. For even if one is not bound by the Code of Professional Responsibility for members of the Philippine Bar, civility and respect among legal professionals of any nationality should be aspired for under universal standards of decency and fairness.
The Court's ruling on Dean Leonen's
Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a "dummy" that was not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text or the body, there were no differences between the two. He attempts to downplay the discrepancies in the signature pages of the two versions of the Statement (i.e., Restoring Integrity I and Restoring Integrity II) by claiming that it is but expected in "live" public manifestos with dynamic and evolving pages as more and more signatories add their imprimatur thereto. He likewise stresses that he is not administratively liable because he did not misrepresent the members of the UP Law faculty who "had agreed with the Restoring Integrity Statement proper and/or who had expressed their desire to be signatories thereto."[140]
To begin with, the Court cannot subscribe to Dean Leonen's implied view that the signatures in the Statement are not as significant as its contents. Live public manifesto or not, the Statement was formally submitted to this Court at a specific point in time and it should reflect accurately its signatories at that point. The value of the Statement as a UP Law Faculty Statement lies precisely in the identities of the persons who have signed it, since the Statement's persuasive authority mainly depends on the reputation and stature of the persons who have endorsed the same. Indeed, it is apparent from respondents' explanations that their own belief in the "importance" of their positions as UP law professors prompted them to publicly speak out on the matter of the plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of Dean Leonen's predicament is the fact that he did not from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages. It would turn out, according to Dean Leonen's account, that there were errors in the retyping of the signature pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the dean's office gave the dean inaccurate information that led him to allow the inclusion of Justice Mendoza as among the signatories of Restoring Integrity II. Second, an unnamed staff also failed to type the name of Atty. Armovit when encoding the signature pages of Restoring Integrity II when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a website a signed document may have to be reformatted and signatures may be indicated by the notation (SGD). This is not unusual. We are willing to accept that the reformatting of documents meant for posting to eliminate blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a signed document for the Court's consideration that did not contain the actual signatures of its authors. In most cases, it is the original signed document that is transmitted to the Court or at the very least a photocopy of the actual signed document. Dean Leonen has not offered any explanation why he deviated from this practice with his submission to the Court of Restoring Integrity II on August 11, 2010. There was nothing to prevent the dean from submitting Restoring Integrity I to this Court even with its blanks and unsigned portions. Dean Leonen cannot claim fears of vandalism with respect to court submissions for court employees are accountable for the care of documents and records that may come into their custody. Yet, Dean Leonen deliberately chose to submit to this Court the facsimile that did not contain the actual signatures and his silence on the reason therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonen's explanations yield the answer. In the course of his explanation of his willingness to accept his administrative officer's claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had likewise only authorized him to indicate them as signatories and had not in fact signed the Statement. Thus, at around the time Restoring Integrity II was printed, posted and submitted to this Court, at least one purported signatory thereto had not actually signed the same. Contrary to Dean Leonen's proposition, that is precisely tantamount to making it appear to this Court that a person or persons participated in an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent standards of intellectual honesty, could proffer the explanation that there was no misrepresentation when he allowed at least one person to be indicated as having actually signed the Statement when all he had was a verbal communication of an intent to sign. In the case of Justice Mendoza, what he had was only hearsay information that the former intended to sign the Statement. If Dean Leonen was truly determined to observe candor and truthfulness in his dealings with the Court, we see no reason why he could not have waited until all the professors who indicated their desire to sign the Statement had in fact signed before transmitting the Statement to the Court as a duly signed document. If it was truly impossible to secure some signatures, such as that of Justice Mendoza who had to leave for abroad, then Dean Leonen should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual signatures before submission of the Statement to this Court. As respondents all asserted, they were neither parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo. The Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen's Compliance unsatisfactory. However, the Court is willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his objectives. In due consideration of Dean Leonen's professed good intentions, the Court deems it sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings with the Court as required under Canon 10.
Respondents' requests for a hearing, for
production/presentation of evidence bearing
on the plagiarism and misrepresentation
issues in G.R. No. 162230 and A.M. No.
10-7-17-SC, and for access to the records of
A.M. No. 10-7-17-SC are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative reliefs should the Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for hearing and for that purpose, they be allowed to require the production or presentation of witnesses and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of, and evidence that were presented or may be presented in the ethics case against Justice Del Castillo. The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC was substantially echoed in Dean Leonen's separate Compliance. In Prof. Juan-Bautista's Compliance, she similarly expressed the sentiment that "[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."[141] It is this group of respondents' premise that these reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs largely from its characterization as a special civil action for indirect contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the majority's purported failure to follow the procedure in Rule 71 of the Rules of Court as her main ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect contempt proceeding and Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered in the Show Cause Resolution this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:
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.)
From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will be followed.
As respondents are fully aware, in general, administrative proceedings do not require a trial type hearing. We have held that:
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.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio[143] that:
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.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court - Br. 81, Romblon - On the Prohibition from Engaging in the Private Practice of Law,[145] we further observed that:
[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.)
Under the rules and jurisprudence, respondents clearly had no right to a hearing and their reservation of a right they do not have has no effect on these proceedings. Neither have they shown in their pleadings any justification for this Court to call for a hearing in this instance. They have not specifically stated what relevant evidence, documentary or testimonial, they intend to present in their defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and witnesses bearing on the plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the findings of this Court which were the bases of the Show Cause Resolution were made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that case. This is the primary reason for their request for access to the records and evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual signed copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there. Apart from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution that the respondents issued a Statement with language that the Court deems objectionable during the pendency of the Vinuya case and the ethics case against Justice Del Castillo, respondents need to go no further than the four corners of the Statement itself, its various versions, news reports/columns (many of which respondents themselves supplied to this Court in their Common Compliance) and internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the language of the Statement and the circumstances surrounding the drafting, printing, signing, dissemination, etc., of its various versions, the Court does not see how any witness or evidence in the ethics case of Justice Del Castillo could possibly shed light on these facts. To be sure, these facts are within the knowledge of respondents and if there is any evidence on these matters the same would be in their possession.
We find it significant that in Dean Leonen's Compliance he narrated how as early as September 2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October 12, 2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice Vicente V. Mendoza, after being shown a copy of the Statement upon his return from abroad, predicted that the Court would take some form of action on the Statement. By simply reading a hard copy of the Statement, a reasonable person, even one who "fundamentally agreed" with the Statement's principles, could foresee the possibility of court action on the same on an implicit recognition that the Statement, as worded, is not a matter this Court should simply let pass. This belies respondents' claim that it is necessary for them to refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their respective compliances or chosen not to make a full defense at this time, because they were counting on being granted a hearing, that is respondents' own look-out. Indeed, law professors of their stature are supposed to be aware of the above jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary cases. They should bear the consequence of the risk they have taken.
Thus, respondents' requests for a hearing and for access to the records of, and evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have monolithic views on any subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously propound their points of view they are bound by certain rules of conduct for the legal profession. This Court is certainly not claiming that it should be shielded from criticism. All the Court demands is the same respect and courtesy that one lawyer owes to another under established ethical standards. All lawyers, whether they are judges, court employees, professors or private practitioners, are officers of the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the Bar, to conduct themselves with good fidelity towards the courts. There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, 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, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35 respondent law professors are reminded of their lawyerly duty, under Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due respect to the Court and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the Court and the administration of justice and warned that the same or similar act in the future shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation of Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more mindful of his duty, as a member of the Bar, an officer of the Court, and a Dean and professor of law, to observe full candor and honesty in his dealings with the Court and warned that the same or similar act in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these proceedings. However, he is reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court.
(5) Finally, respondents' requests for a hearing and for access to the records of A.M. No. 10-7-17-SC are denied for lack of merit.
SO ORDERED.
Corona, C.J., Velasco, Jr., Peralta, Bersamin, Abad, Perez, Mendoza, and Sereno, JJ., concur.
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see dissenting opinion.
Nachura, J., on leave.
Brion, J., I certify that Mr. J. Brion left hi concurring vote. on leave.
Del Castillo, J., no part.
Villarama, Jr., J., pls. separate opinion..
[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).
[7]Malaya 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.
[27]The 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.
DISSENTING OPINION
CARPIO, J.:
I find the Compliance of the 37 legal scholars[1] satisfactory and therefore see no need to admonish or warn them[2] for supposed use of disrespectful language in their statement[3] 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 powers[4] 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 Secretary[5] 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 network[7] 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-liability[11] 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-à-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. Godoy[24] 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.
[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).
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.
VILLARAMA, JR., J.:
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:
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 1[1], 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. 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
In their Compliance, 35 of the respondents, excluding Professors Owen J. Lynch and Raul V. Vasquez, take common defense that the statements contained in Restoring Integrity were mere expressions of their opinion, dispensed in accordance with their duties as members of the bar and as professors of law. They aver that they acted with the purest intentions, guided by their duty of candor, fairness and good faith to the Court, and deny that it was their intention to malign the Court as an institution for its decision in Vinuya v. Executive Secretary.[2] They claim that any reference to Vinuya in their statement was made only to establish and accent the grave consequences of the allegations of plagiarism and misrepresentation allegedly committed by one of the Court's members. Indeed, they claim that the Statement was intended "to defend the integrity and credibility of the entire Supreme Court" and ensure continued confidence in the legal system and the Judiciary by calling on the Court to take constructive action in the face of the damaging allegations. They also add that the Statement was meant to address what they perceived as indifference on the part of the Court owing to certain statements reportedly made by Supreme Court Administrator and spokesperson, Atty. Jose Midas P. Marquez (that Chief Justice Renato C. Corona would not take any action on the charges) and their reading of Justice Mariano C. Del Castillo's letter replying to the allegations.
Respondents affirm their loyalty and respect for the Court and claim that as professors of law, they have a special interest in guarding against plagiarism and misrepresentation to ensure intellectual honesty among their students. They allegedly released the Statement in support of "efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding law and jurisprudence." Citing similar commentaries on the issue, they likewise invoke freedom of speech and academic freedom to justify the publication of their stand on the matter.
Finally, respondents argue that the Resolution amounted to a prejudgment of their liability for contempt and breach of Canons 1, 11, 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. Thus, they invoke their right to due process and plead for an opportunity to present evidence relative to the proceedings in A.M. No. 10-7-17-SC entitled In the Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo.
Prof. Rosa Maria T. Juan-Bautista, in her separate Compliance and Reservation, reiterates the above reservation of her right to due process and request for hearing. She likewise supplements the above submissions with additional arguments in support of her assertion that she signed the Statement in the exercise of her freedom of expression.
As to Prof. Owen J. Lynch, Prof. Lynch filed a Manifestation invoking freedom of expression and asserting that the statement did not pose a clear and present danger of a substantive evil that the State has a right to prevent. He also manifests that he is not a member of the Philippine Bar as he is an American citizen who is a member of the bar of the State of Minnesota.
Prof. Raul V. Vasquez, for his part, likewise submits that he never had any intention of maligning the Court and alleges that he signed the Statement as he was fundamentally in agreement with its contents. He further states that he might have been remiss in correctly assessing the effects of the language employed in the Statement and says that he could have been more careful.
As regards the charge of violating Canon 10 and Rules 10.01, 10.02 and 10.03 for submitting to the Court a copy of the Restoring Integrity Statement that was not a true and faithful reproduction thereof, Dean Marvic M.V.F. Leonen submitted the following explanations.
Dean Leonen denies misrepresenting the contents of the Statement or which faculty members signed and/or signified their intention to sign the same. He avers that there are actually three versions of the Statement, all with the same contents, but with different signature pages. Two versions were submitted to the Court: one with the signature pages containing the full roster of faculty members and the actual signatures of the signatories (which version he calls Restoring Integrity I) and the other with the retyped signature page containing just the names of the members who signed, with the notation "(SGD.)" beside their names. This second version he referred to as Restoring Integrity II. According to him, these two copies arose because after the original version containing the full roster of faculty members was circulated for signature, he had the signature pages re-typed to eliminate the blanks prior to posting in the bulletin board. (He alleges that the practice of re-typing the signature pages was meant to ensure the integrity of the public issuance as posting the Statement with blanks would open it to vandalism.)
When the re-typed signature page was presented to him by his staff, he noticed that the name of retired Justice Vicente V. Mendoza was indicated as a signatory even though the latter did not sign the Statement. He asked his administrative staff about the inclusion and the latter claimed that she spoke to Justice Mendoza on the phone before the latter flew for the United States. According to his staff, Justice Mendoza allegedly authorized him to sign on behalf of Justice Mendoza since the latter agrees with the contents of the Statement but was just unable to personally affix his signature because he was leaving for the United States the following week. Dean Leonen claims that he did not have any reason to disbelieve his staff because there were indeed other faculty members who authorized him to sign the Statement for them. Thus, he placed full faith and confidence in his staff's claim and allowed the inclusion of Justice Mendoza's name as one of the signatories in Restoring Integrity II which he later submitted to the Court. Because of this information, also, he believed that the total number of signatories to the Statement was already 38.
Dean Leonen adds that in September 2010, he received a call from Justice Mendoza, who said that he will no longer sign the statement "considering that it had already become controversial and that he did not wish to unduly aggravate the situation." On October 21, 2010, after receiving a copy of this Court's Show Cause Resolution, he met with his staff and reviewed what had transpired in connection with their efforts to secure Justice Mendoza's signature. It was then that he learned that while Justice Mendoza initially agreed to sign the statement, Justice Mendoza did not exactly authorize him to sign for the latter. Rather, Justice Mendoza merely inquired "if he could authorize the dean to sign it for him as he was leaving for the United States." He then realized the full import of the call he received from Justice Mendoza in September.
As regards the omission of the name of Atty. Miguel R. Armovit in the re-typed signature pages of Restoring Integrity II, Dean Leonen explains that the omission was due simply to inadvertence.
After a careful study of the respondents' submissions, I respectfully submit that the above submissions are SATISFACTORY in view of respondents' claim of good faith and the fact that a re-examination of the Statement indeed admits of such claim. Consistent with respondents' claims, the tenor of the Statement was to call the Court's attention to the grave allegations and its effects on the integrity and credibility of the Court and the Judiciary. Indeed, the general wording of the Statement and its ending paragraphs lend support to respondents' averments that the Statement was prompted by the sincere and honest desire to protect the integrity and credibility of the Judiciary, especially the Supreme Court. Given such submissions, I am willing to afford respondents the benefit of the doubt as to their intentions concerning the forceful language employed in certain portions of the Restoring Integrity Statement. This is especially so considering that the subject statements present no clear and present danger of a substantive evil that the State has a right to prevent as to take it out of the protective mantle of the freedom of speech and expression under the Bill of Rights. A reading of the Statement, with particular focus on its final paragraphs, will not leave the reader with feelings of contempt for the Court but only a feeling that the Court must champion the cause of integrity. Furthermore, it should be noted that our society has developed to the point where critical analysis of information is not in short supply. The public is nowadays not only more well informed, but it has access to information with which citizens could make their own independent assessment of pending issues of public concern, including the fitness and integrity of the members of this Court to render fair and impartial judgment on the cases before them. However, given the fact that some isolated portions of the statement were arguably disrespectful, respondents should be reminded to be more circumspect in their future statements.
As regards Dean Leonen, I likewise submit that his explanation is sufficient to exonerate him from the charge of violation of Canon 10 and Rules 10.01, 10.02 and 10.03, all of the Code of Professional Responsibility. While it appears that Dean Leonen mistakenly relied on hearsay information that Justice Mendoza had authorized him to indicate Justice Mendoza as a signatory to the Statement, still, Dean Leonen's lapses appear more the result of overzealousness rather than bad faith or a deliberate intent to do falsehood or to mislead the Court. Indeed, under the circumstances as they appeared to him, and considering that there were other professors who had authorized him to indicate them as signatories,[3] it was not all too remiss on his part to indicate Justice Mendoza as a signatory to the Statement upon the information given to him by his administrative staff. That he acted upon the wrong information given to him, though telling of some degree of carelessness on his part, is not gross negligence that is tantamount to bad faith. Hence, there being no intent or inexcusable negligence, there is no ground to find him liable under Canon 10 and Rules 10.01 and 10.02 of the Code of Professional Responsibility.
Similarly, there is no cogent reason to hold him liable for violation of Rule 10.03 as it likewise does not appear that Dean Leonen violated any rule of procedure or misused any procedural rule to defeat the ends of justice. The submission of the Statement to the Court, it should be noted, was ad hoc.
I therefore vote to NOTE and CONSIDER the explanations submitted by respondents in their Compliance/s SATISFACTORY with a REMINDER that they be more circumspect in their future statements considering that the Court also has its own sensibilities.
I also vote to consider this administrative matter CLOSED and TERMINATED.
[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.
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 Justice[3], 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)
The jurisprudence adverted to by the majority dwell on contempt, foremost of which is In re Kelly, one of the first and leading cases discussing contempt. Citing Ex Parte Terry, the Supreme Court in that case held that acts punishable as contempt are those "...tending to obstruct or degrade the administration of justice, as inherent in courts as essential to the execution of their powers and to the maintenance of their authority."[8] Significantly, before he was cited for contempt, Respondent Amzi B. Kelly was first given the opportunity to appear before the Court, submit a written Answer, and present his oral argument.
The footnote citation in Footnote 4 of the 19 October 2010 Resolution, A.M. No. 07-09-13-SC, refers to "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 case for indirect contempt lodged against the publisher of a national daily.
In this case, the Court not only gave respondent a chance to explain himself, but also created an Investigating Committee regarding the subject matter of the alleged contemptible act:
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]
This approach of using jurisprudence on contempt to justify adverse findings against herein respondents is continued in the current Decision. The majority cites the 1935 case Salcedo v. Hernandez[10] which identified the proceedings specifically as contempt, even though the respondent was a member of the bar. The 1949 case of In Re Vicente Sotto[11], from which the majority quotes heavily - and which the majority states is "still good law" - is explicitly identified as a proceeding for contempt of court. In Zaldivar v. Sandiganbayan and Gonzales, the Court issued a Resolution "to require respondent Gonzalez to explain in writing within ten (10) days from notice hereof, why he should not be punished for contempt of court and/or subjected to administrative sanctions..."[12] only after a Motion to Cite in Contempt was filed by the petitioner. Even as the Court discussed its exercise of both its contempt powers and disciplinary powers over the respondent attorney in the said case, it still gave him ample time and opportunity to defend himself by allowing him to file an Omnibus Motion for Extension and Inhibition, a Manifestation with Supplemental Motion to Inhibit, a Motion to Transfer Administrative Proceedings to the Integrated Bar of the Philippines, and an Urgent Motion for Additional Extension of Time to File Explanation Ex Abundante Cautelam.
The case of In Re Almacen[13], also cited in the current Decision, was in the nature of a contempt proceeding even as it adverted to duties of members of the bar, as can be gleaned from the following:
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.
Atty. Almacen filed with the Court a "Petition to Surrender Lawyer's Certificate of Title," after his clients had lost the right to file an appeal before the Court due to his own inadvertence. And yet, the Court still gave him the "ampliest [sic] latitude" for his defense, giving him an opportunity to file a written explanation and to be heard in oral argument.
All of the above negate the claim that this is not a contempt proceeding but purely an administrative one.
The central argumentation in the Show Cause Order is evidence of the original intent of the proceeding. The allegation and conclusion that the faculty members purportedly "undermine the Court's honesty, integrity, and competence," make it clear that the true nature of the action is one for indirect contempt. The discussion in the Resolution of 19 October 2010 hinged on the tribunal's need for self-preservation and independence, in view of the "institutional attacks" and "outside interference" with its functions - charges which more appropriately fall under its contempt authority, rather than the authority to determine fitness of entering and maintaining membership in the bar.
The Show Cause Order failed to specify which particular mode of contempt was committed by the respondents (as required in the Rules of Court). Its language and tenor also explicitly demonstrated that the guilt of respondents had already been prejudged. Page three (3) of the Order states: "The opening sentence alone is a grim preamble to the institutional attack that lay ahead." Page four (4) makes the conclusion that: "The publication of a statement...was totally unnecessary, uncalled for, and a rash act of misplaced vigilance."
The Order also violated respondents' right to due process because it never afforded them the categorical requirements of notice and hearing. The requirements for Indirect Contempt as laid out in Rule 71 of the Rules of Court demand strict compliance: 1) a complaint in writing which may either be a motion for contempt filed by a party or an order issued by the court requiring a person to appear and explain his conduct, and 2) an opportunity for the person charged to appear and explain his conduct.[14]
The essence of a court's contempt powers stems from a much-needed remedy for the violation of lawful court orders and for maintaining decorum during proceedings, as an essential auxiliary to the due administration of justice.[15] It is not an all-encompassing tool to silence criticism. Courts must exercise the power of contempt for purposes that are impersonal because that power is intended as a safeguard not for the judges but for the functions they fulfill.[16] It must be wielded on the preservative, rather than on the vindictive, principle.[17] So careful is the approach ordinarily taken by the Court in cases of contempt that it places a premium on the conduct of a hearing, to such a point that it administratively sanctioned a lower court judge for issuing a Show Cause Order sua sponte and finding the respondent guilty of criminal contempt without the benefit of a hearing. In the case of Castaños v. Judge Escaño, Jr.,[18] the Court held:
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.
In finding Judge Escaño, Jr. guilty of grave abuse of judicial authority, the Court stated:
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.
As Justice Carpio Morales finds in her Dissenting Opinion to the Resolution of 19 October 2010, this action of the Court is tainted with injudiciousness precisely because:
"...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]
Thus, Justice Carpio Morales reiterates in her Dissenting Opinion to the current Decision her belief that this proceeding is in essence one for indirect contempt:
"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."
The power to cite for contempt, as well as the power to discipline, are mechanisms to be exercised solely towards the orderly administration of justice. Such powers must be weighed carefully against the substantive rights of the public to free expression and academic freedom. In this critical balancing act, the tribunal must therefore utilize, to the fullest extent, soundness and clarity of reasoning, and must not appear to have been swayed by momentary fits of temper.
Instead of regarding criticism as perpetually adversarial, the judiciary would do well to respect it, both as an important tool for public accountability, and as the only soothing balm for vindication of felt injustice. Judicial legitimacy established through demonstrated intellectual integrity in decision-making rightly generates public acceptance of such decisions, which makes them truly binding. William Howard Taft, who served as a federal appellate judge before becoming the President of the United States, understood the weight of public evaluation in this wise: "If the law is but the essence of common sense, the protest of many average men may evidence a defect in a judicial conclusion though based on the nicest reasoning and profoundest learning."[20]
We who occupy this august chamber are right not because our word is accorded legal finality on matters that are before us. We are right only when we have been proven right. There must always reside, in the recesses of our minds, the clear distinction between what is merely legal and what is legitimate. Legitimacy is a "tenuous commodity, particularly for unelected judges,"[21] and it can only be maintained by a sustained perception of fairness, as well as by the retention of the moral authority of individual judges. This required characteristic of the Court is diminished when its members do not act through the rational strength of their decisions, but are instead perceived to have done so in the misunderstanding of the Court's disciplinary powers.
"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]
Furthermore, as one American Federal Supreme Court decision said:
"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]
The Code of Judicial Conduct prescribes the standards for a judicial response to free speech which, highly-charged though it may be, is necessarily protected. Rule 3.04 in particular states that: "A judge should be patient, attentive and courteous to all lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants." The Supreme Court has itself, on occasion, demanded of lower court judges that they be "dignified in demeanor and refined in speech, [and] exhibit that temperament of utmost sobriety and self-restraint..."[24]
Nothing can be gained from the Court's exercise of a heavy hand in a matter which has originated from the Court itself. On the contrary, there is much to lose in imposing penalties on the outspoken merely because the outspoken have earned the ire of the Court's members.
They who seek to judge must first themselves be judged. By occupying an exalted seat in the judiciary, judges in effect undertake to embrace a profession and lead lives that demand stringent ethical norms.[25] In his dealings with the public, a judge must exhibit great self-restraint; he should be the last person to be perceived as a tyrant holding imperious sway over his domain,[26] and must demonstrate to the public that in the discharge of his judicial role, he "possess[es] the virtue of gravitas. He should be...dignified in demeanor, refined in speech and virtuous in character...[H]e must exhibit that hallmark judicial temperament of utmost sobriety and self-restraint... a judge should always keep his passion guarded. He can never allow it to run loose and overcome his reason."[27]
In my view of a constitutional democracy, the judiciary is required to demonstrate moral authority and legitimacy, not only legality, at all times. It has often been said that the rule of law requires an independent judiciary that fairly, impartially and promptly applies the law to cases before it. The rule of law requires a judiciary that is not beholden to any political power or private interests, whose only loyalty is to the people and to the Constitution that the people have ordained as their fundamental governing precept. It requires integrity, independence and probity of each individual judge. To be independent, the judiciary must always remember that it will lose public support and in a certain sense, its legitimacy, if it does not demonstrate its integrity in its judicial decisions. It must show a keen nose for the fundamental importance of upholding right over wrong.
To maintain a life of intellectual integrity, those of us in the judiciary must be buffeted by the winds of healthful criticism. Direct and informed criticism of judicial decisions strengthens accountability. As Taft is noted for writing: "[n]othing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism .... In the case of judges having a life tenure, indeed, their very independence makes the right freely to comment on their decisions of greater importance, because it is the only practical and available instrument in the hands of a free people to keep such judges alive to the reasonable demands of those they serve."[28]
This is where academic freedom, when exercised in appropriate measure, is most helpful. Milton encapsulates free speech as simply the right to "argue freely according to conscience."[29] The value of academic freedom, as a necessary constitutional component of the right to freedom of expression, lies in the ability of the common man, aided by the expertise available in the academe, to hold a magistrate accountable in the exercise of his official functions, foremost of which is the issuance of written decisions. Paragraph 23 of the United Nations Basic Principles on the Role of Lawyers[30] states:
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...
The Basic Principles on the Role of Lawyers "have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers," and these "should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and legislature, and the public in general." Thus, faced with the duty of balancing lawyers' fundamental right to free speech which has now been expressly recognized in the international arena, against this Court's desire to preserve its exalted role in society by disciplining for offensive language, this Court must examine whether it has already encroached into constitutionally-prohibited interference with the basic rights of individuals. The realm of public opinion is where the academe, especially our schools and universities, plays a most crucial role in ensuring judicial legitimacy. Not by blindly legitimizing its acts, but by constantly reminding the judiciary of its presence as a helpful but critical ally. The academe is not to be an applause machine for the judiciary; it is to help guide the judiciary by illuminating new paths for the judiciary to take, by alerting the judiciary to its inconsistent decisions, and by identifying gaps in law and jurisprudence.
In this regard, the law school has a special place. Phoebe Haddon writes: "[t]he value and preservation of academic freedom depend on an academic environment that nurtures, not silences, diverse views. The law school faculty has a special responsibility to maintain a nurturing environment for diverse views because of the importance of the marketplace of ideas in our teaching and the value we theoretically place on the role of persuasive discourse in the quest for knowledge. Faculty autonomy takes on significance because it can protect freedom of inquiry."[31] In a certain sense, therefore, because the law faculty can discharge a most meaningful role in keeping the judiciary honest, there must be recognition given to the special role of the law faculty in upholding judicial independence.
The testing ground for integrity in judicial decision-making is provided in large measure by the legal academe, when it probes, tests and measures whether judicial decisions rise up to the definition of just and well-reasoned decisions as they have been defined by centuries-old norms of legal reasoning and legal scholarship. If we have a legal academe that is slothful, that is not self-disciplined, that covets the closeness to the powers-that-be which an unprofessional relationship with the judicial leadership can bring, then this refining role of the legal academe is lost. The legal academe is the preserver of the noble standards of legal reasoning and legal scholarship. It must itself demonstrate strength and independence and not be punished when doing so.
Those who occupy the most powerful positions in this country must always be ready to hold themselves accountable to the people. I believe that the tradition of deference to the judiciary has limits to its usefulness and these times do not call for the unbroken observance of such deference as much as they call for a public demonstration of honesty in all its forms.
I dissent from the Majority Decision admonishing Dean Marvic M. V. F. Leonen and issuing a warning to the thirty-five faculty members in connection with the "Restoring Integrity" Statement. I find the Common Compliance of the thirty-five faculty members, dated 18 November 2010, as well as the Compliance submitted by Professor Rosa Maria T. Juan Bautista on 18 November 2010 and by Professor Raul Vasquez on 19 November 2010, to be satisfactory. I also find the separate Compliance of Dean Leonen dated 18 November 2010 and of Professor Owen J. Lynch dated 19 November 2010 similarly satisfactory, and vote to consider this matter closed and terminated.
[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