Supreme plagiarist?


Another author protests plagiarism by SC justice
Written by ARIES RUFO, Newsbreak
Saturday, 31 July 2010

MANILA, Philippines—A second author is protesting the alleged plagiarism committed by a Philippine Supreme Court justice in its ruling on the wartime sex slaves, and wants the court to rectify the error.

In a letter dated July 23, Mark Ellis, executive director of the International Bar Association, said he was “compelled” to write the tribunal “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 Vinuya et al v. Executive Secretary et al.”

Ellis was referring to the April 28 ruling of the Supreme Court dismissing the petition of surviving Filipino comfort women who wanted the government to compel Japan to publicly apologize and pay for the abuses by its soldiers.

Harry Roque and Romel Bagares, lawyers for the petitioners, have called the attention of the court that Justice Mariano del Castillo, who penned the ruling, plagiarized from three legal research and materials.

The works allegedly plagiarized were by professors Evan Criddle and Evan Fox-Descent’s “A Fiduciary Theory of Jus Cogens,” Ellis’s “Breaking the Silence on Rape as an International Crime,” and Christian Tam’s “Enforcing Erga Omnes Obligations in International Law.”

Roque and Bagares also claimed that Del Castillo twisted the conclusion of Criddle in his work to support a contrary view on rape as an international crime that governments has an obligation to pursue.

Earlier, Criddle said he found it “most troubling” that the court’s ruling used his material out of context.

“Speaking for myself, the most troubling aspectof 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,” Criddle wrote on the law blog, Opinio Juris.

The jus cogens principle refers to international legal norms that cannot be ignored by a State as they refer to “non-derogable” principles of law “binding on the international community as a whole.” The Filipino comfort women argued that the sufferings they endured under the Japanese Imperial Army during World War II were a violation of the jus cogens principle on war crimes and crimes against humanity and that the State has the duty to prosecute these crimes.

In the article he co-authored, Criddle cited arguments for and against the jus cogens norm, but Del Castillo, the petitioners said, only lifted those that would support his contention that the comfort women case should be dismissed.

Ellis, in his letter, said the “possible plagiarism” of his work was called to his attention by the Philippine chapter of the Southeast Asia Media Defence Initiative, an affiliate of the London-based Media Legal Defence Intiative, where he sits as trustee.

Ellis also claims that his work has been twisted to support a contrary view.

“In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28 , of the said judgement. I am 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 arguer for the appropriate legal remedy for war crimes, genocide, and crimes against humanity,” Ellis said.

Ellis added: “I would appreciate receiving a response from your esteemed court as to the issues raised by this letter.” The letter was addressed to the court en banc, coursed through the Supreme Court public information office.

Del Castillo, in a letter to the court July 22, maintained 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.”

The justice sought to downplay the allegations, saying that the alleged plagiarized materials “are only appendages, or at the very least, provide small contribution to the resolution of the cases presented.

“As it is, the decision can stand alone,” Del Castillo said.

As for the allegedly twisted conclusion of foreign materials, Del Castillo argued that “the same remains their opinion which we do not necessarily share.”

He also referred to the opinion of law dean Pacifico Agabin that “there is no rule or provision in the judiciary against copying from other’s works and passing these off as original material.”

Agabin, however, said that copying other’s work without proper attribution “is just a matter of delicadeza…. It bears on the honesty of the judge to give credit where credit is due.” (Newsbreak)
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