The Supreme Court, law schools and intellectual dishonesty

If you haven’t heard yet, a Supreme Court justice is in hot waters for publishing a decision where portions were lifted verbatim from three different sources. From the column of former Supreme Court Justice Artemio Panganiban.

Short backgrounder. On April 28, 2010, the Supreme Court en banc, in “Vinuya vs Romulo,” dismissed the petition of more than 70 comfort women belonging to the “Malaya Lolas Organization.” It refused to compel the respondent government officials to secure from Japan an “apology and other forms of reparations” for the rape and other abuses committed by Japanese soldiers against them during World War II.

Essentially, the Court ruled that the power to conduct foreign relations is an executive prerogative that the Court could not interfere with. Since the Treaty of Peace with Japan already settled all war claims of the Philippines, the Court said it could not attribute grave abuse to the respondent officials for refusing to take up the cudgels for the comfort women at this late stage.

Instead of just challenging the merits of the decision in their motion for reconsideration and supplemental motion for reconsideration, the comfort women’s lawyers—Harry Roque and Romel Bagares—also accused the Court of “wholly lift(ing), without proper attribution, from at least three sources.”

They identified the writers and the plagiarized articles as: (1) Evan J. Criddle and Evan Fox-Decent from their article, “A Fiduciary Theory of Jus Cogens” published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, “Enforcing Erga Omnes Obligations in International Law” published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, “Breaking the Silence: On Rape as an International Crime” published in the Case Western Reserve Journal of International Law in 2006.

You can read the full text of the decision in the Supreme Court website.

The U.P. College of Law has issued an official statement calling for the resignation of the ponente (i.e., the justice who “wrote” the decision); so has the Supreme Court calling for sobriety where it quotes Philippine Constitutional Assembly (Philconsa) President Manuel “Lolong” Lazaro who blames — get this — the internet for the mess.

Lazaro stressed that “the ratio decidendi of the decision can stand legal scrutiny sans references to the articles plagiarized. The alleged plagiarism uploaded in the internet constitute direct contempt or contempt in facie curiae, a violation of the lawyers oath and a transgression of the Code of Professional Responsibility for which the person(s)/responsible must be made accountable.”

“The reprehensible and unorthodox resort of the internet must be address quickly and properly to avert its repetition to save the judicial system from further disrepute,” he said.

Oh, my goodness. And last Saturday, I just delivered a talk about how our laws have been unable to cope with the ever-changing technology and the reason why many still think that libel laws don’t apply to online publications. Oh, but that’s another matter. I only mention it to contextualize. Lawyers who belong to the older generations simply do not understand how the internet works, they are intimidated by what they don’t understand, and they like to blame it for everything — from the deteriorating moral norms to short attention span to, well, everything!

Atty. Lazaro mentions ratio decidendi (the meat of the decision — the substance). Well, Atty. Lazaro, the meat of the plagiarism issue is NOT where and how the decision was circulated BUT WHETHER OR NOT THE PLAGIARISM HAS IN FACT BEEN COMMITTED, something that you don’t deny. Why blame the internet? The Supreme Court itself uses it and the decision was published in the Supreme Court website.

Lawyers know for a fact that very rarely do Supreme Court justices personally write decisions. They have a staff of researchers and writers — lawyers, mostly — for that.

But it doesn’t make the responsibility of the justice any less when he allows a plagiarized decision to be published.

Bringing this discussion in the realm of academics — law schools and how law students are trained — adds a new dimension to the discussion. The dean of the U.P. College of Law, and my batchmate, Marvic Leonen posted a very compelling essay in Facebook. I think it deserves a whole different audience so I am reproducing it here.

A Place for Honor
By Marvic M.V.F. Leonen

I first heard this from Lean Alejandro during one of his perorations on what the youth should do way back during Martial Law days. Then, the student body of the University of the Philippines was attempting to reestablish the University Student Council. The issues then were not solely about the UP but the context in which this academic institution operates. In my younger days, I had imagined that that meant standing in line in mass mobilizations, being found in rural areas deep into mountainous regions in the Philippines or even perhaps dying for one’s country.

Today, I find myself repeating that phrase in a totally different context. Certainly not in the rustic environment of my youthful dreams. I am Dean of the law school of the University of the Philippines where majority of the faculty and students came out with a statement asking a justice of the Supreme Court to resign for having written a decision with plagiarized and misleading contents. The decision concerns “comfort women” raped and used by the Japanese army during the second world war asking for reliefs from the Supreme Court. The theory of this case was developed by law students years ago with the support and encouragement by a UP law professor. Later, that same theory became dominant in international law academic circles. The case was then filed. It definitely presented an intellectual challenge to the court, not to mention giving it an opportunity to creatively read doctrine to serve values which we should, as a state, hold dear.

I have been advised by some that what we did may be construed as an indirect contempt of the Supreme Court. I hope that it is not seen in that way not for our sake but for the sake of something greater than the incumbents of the court or those in our faculty.

Since the publication of the decision, three known international authors, all from legal academia, wrote the Supreme Court. One of them attached a matrix in his two page letter showing clearly that entries in his book was lifted verbatim. He also asked the Supreme Court for an explanation why the conclusions that decision arrived at was different from that he argued for in his book. It matters to me that this book was published in Europe with a reputable academic publishing group. It is almost as if we are suffering from embarrassment in the international arena without us knowing because our newspapers and television channels do not seem to report on it anymore.

Standing up to the Philippine Supreme Court even as lawyers is not an easy thing to do. The most obvious limitation is that lawyers vicariously argue cases which are not really theirs. Many lawyers understandably would not risk losing a majority vote simply because it had spoken out of turn on matters that may not be directly related to cases which they bring to the court. It is normally a choice between risking getting the ire of some of the members of the court for an argument you have to make in a case and risking getting the same ire for a matter which has a more far reaching effect, i.e. a mistake or an impropriety done by a member of the court.

That is where I think the legal academia should come in.

Teaching the law as seen through various jurisprudence and other related literature puts us in a unique situation to be able to assess doctrine for what they are. Daily, we engage in critical irreverence simply so that our students develop the appetite to evaluate and rethink even the most canonical of beliefs. Doing so, we train them not to be glorified puppets of the perceived status quo but social leaders who are aware of the value and threat of institutions. You could say, that our work as law professors entail that we commit contempt daily in our classrooms.

To provide decent critique, our tools are not only the materials we read but also the network provided by our professional and academic engagements. We go to academic conferences: some bland, others esoteric, even those which are truly erudite. We write for foreign law journals and correspond with our peers in other jurisdictions. The conversations we have range from the very mundane to the seemingly profound elements of postcolonial praxis, semiotics, metaphysics that relate to our passion for the law. In a sense we are able to inhabit a part of the legal profession–that of the academia–that not many practicing lawyers may want to inhabit. But we see it as essential. How else would we be able to find out the nuances of the idea of jus cogens and how it has already been deployed elsewhere?

But, should decent critique be limited to our classrooms?

Decisions of our Supreme Court are accessible to the public. All you have to do is to click on the Philippine Supreme Court’s web page. Whether it is a simple read is another matter. Academics can help in guiding the public as to how each decision squares with existing precedents, or its relationship to the world of emerging approaches to interpretation in law. In doing so we can lead or mislead. The possibility that we may mislead is always there: for we are humans trying to make sense of this world. Humans, participating with our craft and modes of thinking, in what we know to be a democracy–one where the value of expression, free expression, is cherished.

You could say, that academics should be public intellectuals. Perhaps, they should be able to shape public opinion much more than some columnists in daily broadsheets.

The faculty of UP Law is different from other law schools. We have a core of regular faculty members whose principal job is to teach, do research and provide extension work. The value of this core faculty is that being sufficiently immune from having to participate in the pragmatic concerns of cases wading through our court system it can then responsibly discharge its duty to comment on the Supreme Court’s decisions for its students, other members of the faculty, other members of legal academia and the public in general. We do also have a substantial number of professorial lecturers, some of the best from the ranks of the practicing legal profession. Their presence balances the interests of those who wish to see legal developments from a broad perspective to those who see it from a professional point of view.

Our faculty’s consensus was that regardless of standpoint however, plagiarism and misrepresenting the conclusion in the works of others, should be denounced. We saw it clearly in Vinuya v Executive Secretary.

Others say that we are creating a crises in our court system. We see it as a crises already being there and coming to the aid of kindred spirits that want to restore integrity in our courts. Assessing the possible scenarios, we thought it best to request the concerned justice to own up to the mistake and spare the Supreme Court the agony of having to make a decision.

Consider these questions that can arise out of a decision that is plagiarized:

Who writes decisions for the justices of the Supreme Court? When others do research for them, are they expected to be familiar with the same literature that the researchers have read? Don’t we vet the candidates for the Supreme Court through a laborious process? Should we vet their researchers in a similar manner? How powerful are researchers in offices of justices of the court?

Or, do the canons of judicial responsibility also apply to researchers of justices in our court?

Whose thinking must a law practitioner try to discern when pursuing her/his case? Should s/he really be reading the decisions of the justices of the court? Or should their time be better placed in reading the writings of the researchers that they hire? If so, is there a listing of who the researchers are in each of the offices of all the justices of the Supreme Court.

When a Supreme Court justice signs a decision, can we be assured that the words and the argument are hers/his?

What do we tell a brilliant law student that comes across a Supreme Court decision where portions of two published legal articles and a textbook are lifted without proper citations? Can we then enforce our rules on intellectual dishonesty on our law students? Can any law school advise its students on the importance of intellectual honesty and integrity?

What leadership should we be entitled to expect from the Supreme Court?

Should a court expect academics to simply praise them and refrain from criticism? If that were so, then on what is its accountability based on? Do they see their methods and reasoning as so infallible? Do they honestly believe that undeserved praises from their audience have a better chance of ensuring judicial independence than harsh but well reasoned out critique?

Citing anyone for contempt defines what to a court is legitimate or illegitimate criticism. It is an attempt to ostracize those who have spoken out because it signals to the legal profession what is speech that is not accepted by that court.

We are certainly in that line of fire. We would not have been had we chosen to keep silent. We could have remained silent and spoke of the breach in intellectual honesty in hushed conversations. That is not our idea of a democracy where free speech is enshrined. And had we silenced and censored ourselves, we would not have created a place of honor that our justices may courageously take.

How law students are taught partly influences what kind of lawyers they will become. I was taught and honed in the U.P. tradition where the ability to come up with the best research was paramount. There were no handouts (except for course outlines and even that was rare) — we had to go to the library, read the assigned cases and understand them. If we had to make summaries, we had to write them ourselves. Writing citations was serious business — and that training is something I carried over when I became a writer online and on print media. That’s why I am ever so careful in putting in the proper links and blockquotes — because I cannot attribute unto myself, even if only by implication, words and ideas that aren’t mine.

But I know for a fact that in some other law schools, this is not standard procedure. In some cases, students are given summaries of case decisions in the form of handouts. The students do not have to read the originals. When I was younger, I called it spoon-feeding — a convenience that panders to the students many of whom work during the day and go to law school at night. But a summary is not the original. A summary contains the words of those that wrote it and the context may be different from the original depending on his perspective.

And I must say that, strategically speaking, it works. Some of these law schools have a better batting average in the Bar Exam than my alma mater. In the business of education, that’s probably all that counts because that batting average is an advertisement that tells all prospective law students that here’s a school that trains its students so well that they’ve a better chance of passing the Bar Exam.

But the Bar Exam is not the be-all and end-all of lawyering. It’s just a step. And if law students aren’t taught “from the cradle”, so to speak, to appreciate and make a distinction between original and non-original, then, they are in effect encouraged to blur the distinction between intellectual honesty and dishonesty.

Now, I don’t intend this post to become a battleground for the U.P. College of Law versus All Other Law Schools thing. I’m just saying that the educational system in some law schools may have something to do with how researchers and writers in the staffs of Supreme Court justices appreciate original from lifted content. And it might be the best time to assess how law students are taught.

Dean Leonen asks: “…do the canons of judicial responsibility also apply to researchers of justices in our court?”

They don’t have to, Marvic, because every decision is published with the name of the ponente, not the researcher. It is the responsibility of the justice to check and double check every word in the researcher’s draft before finalizing it and appending his name under it.

What applies, or should apply, to everyone — lawyer or not — are the principles behind intellectual honesty.