About abandoned articles and plagiarism

Last week the prosecution in the impeachment case against Chief Justice Renato Corona dropped five of the eight articles of impeachment. The reason given was: having already presented evidence on Articles 2, 3 and 7, the prosecution was confident that it had presented enough to get a conviction.

The abandonment of five articles of impeachment will certainly shorten the period of the telenovela trial. But if the prosecution had pursued these articles, they would have involved the recurring and yet unresolved  Senate vs. Supreme Court controversy, with some senators claiming superiority over the latter.

The abandoned Article 1 alleged betrayal of public trust manifested through subservience to President Gloria Macapagal-Arroyo. But the principal allegation here was that Corona was behaving the way he did because he was enjoying favors from Arroyo, with these favors culminating in a midnight appointment illegitimately extended to him by Arroyo.

Before the appointment of Corona, I too had argued against recognizing the power of the president to make appointments during the prohibited two-month period. But the Supreme Court said she could, and it was only after the Court had said so that she did. Article 1 insists that it was wrong for the Court to appoint him and shameless for Corona to accept the appointment. How would the Senate have resolved this issue?

Article 4 attributed betrayal of public trust and culpable violation of the Constitution to Corona because of the Court’s issuance of a status quo order on the impeachment of Ombudsman Merceditas Gutierrez. But the order was signed by eight justices. Again, this could have involved the Senate versus the Supreme Court.

Again Article 5 attributed to Corona the controversial flip-flopping Court decisions creating 16 cities and the province of Dinagat. But these were collegial decisions of the Court upholding the validity of acts of Congress!

Article 6 faulted the Chief Justice for creating a committee to look into the allegations of plagiarism against Justice Mariano del Castillo. If this had been pursued, the Senate would have had to deal with the question of whether the Supreme Court is powerless to look into the activities of its members especially if they involve things that might affect the reputation of the Court. Such certainly was the allegation of plagiarism against a justice.

Finally, the prosecution abandoned Article 8 which faulted the Chief Justice for allegedly failing to account for the Judiciary Development Fund and for the Special Allowance for the Judiciary. On the same day that the five Articles were abandoned, Senate President Juan Ponce Enrile had ruled that he would recognize the internal privileges of the Supreme Court. Among the privileges referred to would have been also the fiscal autonomy of the Court.

Meanwhile, however, the charge of plagiarism against Justice Del Castillo is still alive in the House of Representatives. (The senators themselves do not seem too happy about the prospect of having to suffer through another impeachment trial!) But what can be said about plagiarism?

The legal literature on plagiarism is interesting. During this year, I directed a thesis on plagiarism as a student’s partial fulfillment of the requirements for a J.D. degree at the Ateneo Law School. My student came up with a classification of plagiarism into judicial, academic and scientific based on judicial and law journal literature. Let me just summarize some of her conclusions because they will have a bearing if ever the Del Castillo case should go to the Senate for trial.

Let me lift portions of my student’s conclusions. After carefully analyzing her sources, she concludes her extensive essay in part thus:

“There is a significant difference in the definition and application of plagiarism between and among the academe, the judiciary and the sciences. In the academe where original ideas and scholarship are the currency, ideas, words, literature, and other forms of expression are fiercely protected. This is reflected in the objective test popularly employed in the investigation of academic plagiarism. The act of using ideas, words or expression without attribution or improper attribution attracts a charge of plagiarism, regardless of intent. Intent in the field is a consideration that goes only into the determination of the proper penalty, after a finding of plagiarism is made.

“In the judiciary, a distinction is made between the judicial and non-judicial functions of judges.  In the performance of judicial functions, judges act as agents of the State and enjoy some limited immunity from liability in the absence of patent and gross error attended with malice or bad faith.  This is consonant with the public policy consideration of ensuring that judges decide cases before them independently and impartially and without apprehension of ‘personal consequences’ to oneself. Outside of the judicial process, judges acting in their private capacity are subject to charges of plagiarism in failing to properly attribute borrowed ideas, words and passages.

“In the sciences, plagiarism is an offense defined by the research institution. Intent may or may not be an element of the offense and emphasis is on the seriousness of the assailed act’s deviation from commonly accepted practices in the scientific community.”

I might add that in evaluating the action of Justice Del Castillo the Supreme Court followed the norms for judges.