Another plagiarism case? SC Justice Mariano del Castillo and ‘Ang Ladlad’ decision

Is this another case of “accidental deletion of sources” or a new instance of plagiarism in the Supreme Court (SC) of the Philippines?

No, we’re not talking about the Vinuya vs. Executive Secretary, G.R. No. 162230 (28 April 2010) decision penned by Associate Justice Mariano C. del Castillo but another decision penned by the same Justice which seemingly contains parts copied from various sources without proper attribution.

Original Plagiarism Charge

First, a backgrounder on the original plagiarism charge. Thirty-seven members of the UP College of Law accused del Castillo, ponente (writer) of the Vinuya decision, of plagiarizing parts of the said decision. In their published statement, the UP Law faculty claim that “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.”

Last week, ten (10) justices of the Supreme Court voted to clear del Castillo of the plagiarism charge, citing that a researcher “accidentally deleted” the attributions. Associate Justice Maria Lourdes Sereno wrote a detailed dissenting opinion, explaining her disagreement with the majority decision and insisting that plagiarism did occur.

However, this is not the subject of this article.

Plagiarism in the Ang Ladlad vs. Comelec decision?

We reviewed one decision also written by Associate Justice del Castillo and discovered that a few parts of that decision apparently came from sources that were not properly credited.

In the landmark case Ang Ladlad LGBT Party vs. Commission on Elections, G.R. No. 190582 (8 April 2010), the Supreme Court reversed two Comelec resolutions denying accreditation to gay and lesbian group Ang Ladlad. The SC ruling ultimately paved the way for Ang Ladlad to run as a party-list group during the May 2010 national elections. Historic as the SC decision might seem, a chilling observation remains that some parts appear to have been lifted from other sources without proper attribution.

Plagiarism Case #1?

Under the section “Freedom of Expression and Association” in the Ang Ladlad decision, the ponente wrote:

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.

This seems to be a mix-and-match of direct and paraphrased quotes from Section 49 of the Handyside vs. United Kingdom (1979) decision by the European Convention on Human Rights (ECHR):

Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued. (Emphasis supplied)

Yes, the SC ruling merely rephrased parts of the ECHR decision. This style, however, still reeks of Patchwork Plagiarism, wherein various “sources are combined to create a new passage.” If sources are to be properly credited, it must be mentioned in the text or in the footnote — basic attribution rules that were omitted in the SC decision.

Plagiarism Case #2?

In the same paragraph, the Ang Ladlad decision continued:

Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. (Emphasis supplied)

This highlighted phrase was originally from a United States Supreme Court decision on Boy Scouts of America vs. Dale, 530 U.S. 640 (2000), which in turn borrowed it (but properly credited it) from Hurley vs. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 515 U.S., at 579 (1995):

While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. (Emphasis supplied)

In fairness, these two sources were mentioned in the Ang Ladlad decision. The problem, though, is that they were credited only for another borrowed thought in Footnote 46 and not for the phrase directly copied above.

Plagiarism Case #3?

It can’t be denied that the Ang Ladlad decision was peppered with useful words of wisdom, especially in the areas of gender discrimination and freedom of expression. Unfortunately, some of these words were not the own words of the ponente but rather, quotes lifted from sources not properly attributed to.

In the latter part of the decision, it was written:

However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. (Emphasis supplied)

Again, this phrase was originally written somewhere else — in Section 19 of the Supreme Court of Canada decision on the case Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86:

Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door. What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community. (Emphasis supplied)

Simply adding “or moral views” does not give the ponente right to own the phrase. The source of the line should have been credited.

Accidental deletion or plagiarism?

Based on the cases above, was plagiarism committed in the Ang Ladlad vs. Comelec decision by the Supreme Court? Were the similarities in quotes mere “human errors” that resulted to “accidental deletion of sources” or were they deliberate attempts to pass off those lines as one’s own?

You be the judge.

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