Comfort women...the suffering continues.

The militant law firm ROQUE & BUTUYAN LAW OFFICES, in G.R. NO. 162230 (Vinuya, et. al. vs. Exec. Sec.) which involves a petition of World War II Filipina comfort women, has filed with the Supreme Court a SUPPLEMENTAL MOTION FOR RECONSIDERATION seeking the following reliefs:

“WHEREFORE, premises considered, Petitioners respectfully pray that
this Honorable Court reconsider its Judgment of April 28, 2010 and instead:

(a) DECLARE the rapes, sexual slavery, torture and other forms of
sexual violence committed against the Filipina ‘comfort women’
as crimes against humanity and war crimes under customary
international law;

(b) DECLARE that Treaty of Peace with Japan does not bar
the claims of the Filipina "comfort women" and any waiver of
claims arising therefrom does not cover jus cogens norms and the
erga omnes obligation of states to prosecute crimes against
humanity and war crimes under customary international law,

(c) DECLARE that the Secretary of Foreign Affairs and the
Executive Secretary committed grave abuse of discretion
amounting to lack or excess of jurisdiction in refusing to espouse
the claims of Filipina ‘comfort women’ for the crimes against
humanity and war crimes committed against them;

(d) ORDER the Secretary of Foreign Affairs and the Executive
Secretary to espouse the claims of Filipina ‘comfort women’,
specifically demanding an official apology from the State of Japan
and legal compensation for the rapes Filipina ‘comfort women’
endured from the hands of the Japanese military in World War II.

(e) DECLARE THAT The Petitioners are entitled to a Writ of
Preliminary Mandatory Injunction against the Respondents to
require their espousal of Petitioners’ claims for official apology
and other forms of reparations against the State of Japan before
the International Court of Justice or other international legal
forums or tribunals.

(f) DIRECT THE RESPONDENTS to espouse the Petitioners’
claims for official apology and other forms of reparations against
the State of Japan before the International Court of Justice or
other international legal forums or tribunals.”


This case has given rise to the charge that the Supreme Court was guilty of supreme plagiarism.

The motion opened, thus:

“In the first place, it is highly improper for this Honorable Court’s Judgment of April 28, 2010 to wholly lift, without proper attribution, from 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 assailed Judgment’s arguments for dismissing
the instant Petition when in truth, the plagiarized sources even make a strong case for the Petition’s claims;

Petitioners’ counsel are mindful that in raising this matter they bring serious charges against the integrity of this Honorable Court’s deliberations in this case. But if Petitioners’ counsel are to take faithfully their duty as officers of the court sworn to uphold the Constitution and the law, they realize – and this, not without much trepidation – that they only renege on such high legal duty if they choose to keep their peace.

In fact, under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, they have a duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”

Surely, Petitioners may not be begrudged their right to expect of the supreme interpreter of laws –their last hope of redress for the historical injustices they have borne in shame and sorrow for over half a century because of inexcusable government neglect – the highest standards of jurisprudence in international law.

This Honorable Court itself has stated in a disciplinary case against a judge that the decisions of courts need not only be just but must be perceived to be just and completely free from suspicion or doubt both in its fairness and integrity.

Canon 1, Rule 2.01 of the Code of Judicial Conduct states that a judge “should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary”; moreover, Canon 3, Rule 3.01 of the same Code provides that a judge “shall be faithful to the law and maintain professional competence.”

The High Court’s authoritative function requires no less than a
scholarship with high intellectual and moral integrity, especially in a case of transcendental importance such as this. Indeed, it cannot faithfully dispense with its constitutional duty to render justice to whom it is due without such singular conscientiousness.

Under our system of judicial adjudication, judicial decisions become part of the law of the land.

As Art. 8 of the New Civil Code would put it, “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.” Moreover, a globalized world has made it easier for courts from different parts of the globe to cite one another in their judgments. Jurisprudence steeped in serious error and falsity ultimately injures the cause of an international legal order founded on a common respect for the Rule of Law. The very integrity of the idea of a just judicial precedent is at stake here.

Unfortunately, the assailed Judgment has already been posted on this Honorable Court’s website; it will now be easier for the world – and of course, the authors of the above-named articles – to know about the intellectual theft that happened in the hallowed halls of the Philippine Supreme Court.

In this controversy, the evidence bears out the fact not only of extensive plagiarism but 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.

Moreover, infringement of copyright – arguably at the very least an instance of moral turpitude – is a criminal offense under the applicable Philippine law on intellectual property. Art. 217 of the new Intellectual Property Code, Republic Act 8293, imposes a penalty of imprisonment of one (1) year to three years (3) plus a fine ranging from P50,000 to P100,000 on copyright infringement on a first offense.

The assailed Judgment is the Judgment not of a mere Division but of the Supreme Court en banc itself. In accordance with § 13, Art. VIII of the 1987 Charter, the Chief Justice of this Honorable Court certified that the conclusions in its Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. The full court signed the Judgment – all 13 sitting Honorable Justices of this Honorable Court at that time.”


The submissions of the petitioners are worth our attention.

“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.

II.
THEN AS NOW, THE CRIMES COMMITTED BY MEMBERS OF THE JAPANESE IMPERIAL ARMY AGAINST PETITIONERS CONSTITUTE VIOLATIONS OF JUS COGENS NORMS - OR AT THE VERY LEAST, OF CUSTOMARY NORMS BINDING ON ALL CIVILIZED NATIONS – AND ARE THEREFORE SUBJECT TO THE ERGA OMNES DUTY TO PROSECUTE INTERNATIONAL CRIMES UNDER INTERNATIONAL LAW.

III.
MOREOVER, THE INTERNATIONAL OBLIGATION TO PROSECUTE
INTERNATIONAL CRIMES HAS LONG BEEN CONSTITUTIONALIZED IN
PHILIPPINE CONSTITUTIONAL HISTORY, REACHING ITS FULLEST
EXPRESSION IN THE 1987 CHARTER. INDEED, OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS’ 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.

IV.
INDEED, THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC
PROTECTION WITH THE 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.

V.
THE FILIPINO COMFORT WOMEN’S CLAIMS COULD NOT HAVE BEEN A
LEGAL SUBJECT OF THE TREATY OF PEACE AS THESE ARE NOT PRIVATE CLAIMS BUT ARE IN FACT CLAIMS ARISING FROM WAR CRIMES AND JUS COGENS NORMS SUBJECT TO ERGA OMNES OBLIGATIONS UNDER INTERNATIONAL LAW. AS SUCH, THE CLAIMS RAISED BY PETITIONERS AGAINST THE STATE OF JAPAN IS AS WELL THE INTEREST OF THE INTERNATIONAL COMMUNITY AS A WHOLE UNDER THE LAW OF STATE RESPONSIBILITY, NOT TO MENTION THAT SUCH WAIVER IS PROHIBITED UNDER PHILIPPINE LAW.”


This is one public international law case that I am very much interested to monitor, as a former international law professor of the Far Eastern University, Manila.

Let us see how proactive and innovative our Supreme Court justices would be.

With due respect, the plagiarism alleged to have been committed by the Court leaves a very bad taste in the mouth of the Bar ad the Bench. It is shameful.