Property Issues of Subdivisions

October 9, 2019 at 10:41 am (Legal Articles) (, , )

WITH DUE RESPECT: Right to regulate passage in subdivisions
By: Artemio V. Panganiban
October 06, 2019
Philippine Daily Inquirer

A homeowners’ association may regulate passage into a subdivision for the safety and security of its residents, even if its roads have already been donated to the local government. It has the right to set goals for the promotion of safety and security, peace, comfort, and the general welfare of its residents.”

So ruled the Supreme Court in its very first sentence in Kwong v Diamond Homeowners (June 10, 2019), penned by Justice Marvic M. V. F. Leonen.

Specifically, the Court upheld the “No Sticker, No ID, No Entry” policy of gated villages. Under this scheme, visitors on vehicles seeking entry must leave with the subdivision guards their identification cards (IDs), which they may reclaim upon leaving. Residents may obtain stickers for their vehicles, which may then enter and exit freely without need of IDs.

Note that Presidential Decree (PD) 957, as amended by PD 1216, requires that “[u]pon their completion…, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local governments to accept…”

While these PDs were silent on the homeowners’ rights on these donated roads, a later law approved in 2010 (Republic Act 9904) gave the associations the right to “[r]egulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, safety and traffic order: (p)rovided, that (1) public consultations are held; (2) existing laws and regulations are met; (3) the authority of the concerned government agencies or units are obtained; and (4) the appropriate and necessary memoranda of agreement are executed among concerned parties.”

This law does not distinguish whether the roads have been donated or not. Thus, the Court ruled that the homeowners have the right to regulate the use of the roads, alleys, sidewalks and playgrounds even without owning them.

Despite the seeming mandatory provisions of the PDs compelling the donation of the subdivision roads, the Court, in Republic v. Llamas (Jan. 25, 2017) also penned by J Leonen, said that a “positive act” like a deed of donation must first be made by the owner-developer before the government can acquire dominion over them.

“To be considered a donation, an act of conveyance must necessarily proceed freely from the donor’s own, unrestrained volition. A donation cannot be forced: it cannot arise from compulsion, be borne by a requirement, or otherwise be impelled by a mandate imposed upon the donor by forces that are external to him or her.” Thus, “The local government should first acquire them by donation, purchase, or expropriation, if they are to be utilized as public roads.”

Republic v. Ortigas (March 3, 2014, also written by J Leonen) succinctly captures the essence of free conveyancing: “An owner may not be forced to donate his or her property even if it has been delineated as road lots because that would partake of an illegal taking. He or she may even choose to retain said properties.” In such situation, the villagers’ right to regulate passage is even more compelling.

True, the Local Government Code recognizes the power of cities and municipalities to own, improve and pave donated roads. Nonetheless, the Court, in the Kwong case, held that “homeowners’ associations are not entirely powerless in protecting (their) interests.” While the “ownership of public spaces is with the local government, enjoyment, possession, and control are with the residents and homeowners.”

Significantly, the Court observed that “[i]t is common knowledge that when homeowners purchase their properties from subdivisions, they pay a more valuable consideration in exchange for better facilities, safer security, and a higher degree of peace, order and privacy.”

Moreover, some may have acquired their homes “in contemplation of their right to organize and to take measures to protect (their) interests. It would be an injustice if these were not taken into consideration in determining the validity of the Policy.”

Given these emphatic rulings, the government may not forcefully open gated subdivisions to public traffic without giving due respect to the villagers’ right to regulate passage therein.


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Bail vis-à-vis Presumption of Innocence

August 20, 2015 at 11:27 am (Legal Articles) (, , )

WITH DUE RESPECT: JPE’s novel bid for bail
By: Artemio V. Panganiban
November 16th, 2014
Philippine Daily Inquirer

Novel and unusual is the petition for certiorari filed by detained Sen. Juan Ponce Enrile (JPE) in the Supreme Court to obtain his freedom from detention while awaiting his trial in connection with the charge of plunder and graft filed against him by the Office of the Ombudsman (OOO) for his alleged complicity in the pork barrel scam.

Long-standing procedure. After conducting a preliminary investigation (PI), the OOO filed last June 5 an information (or charge sheet) indicting JPE (and several others) with plunder and graft. Having “independently” determined the existence of “probable cause” from the information and its attached evidence, the Sandiganbayan (SBN) ordered JPE’s arrest and detention without bail.

Unquestionably, the SBN followed the long-standing and accepted procedure observed by all Philippine courts of ordering the arrest and detention without bail of those charged with capital offenses (like plunder, rape, murder and syndicated estafa).

Pursuant to this procedure, “bail hearings” are then immediately conducted, in which the prosecution is required to present evidence showing that the evidence of guilt is “strong.” If the prosecution’s evidence is judged to be “strong,” then the accused shall remain in detention without bail for the remainder of the trial (and during the appeal, in case of a “guilty” verdict).

On the other hand, if the court finds the evidence to be “not strong,” then the accused is released on bail while trial “on the merits” continues to determine guilt (or innocence), and the appropriate penalty, if the accused is eventually found guilty.

This procedure is used in the prosecution of all capital offenses, like those of former presidents Joseph Estrada and Gloria Macapagal-Arroyo, Senators Jinggoy Estrada and Bong Revilla, as well as the Ampatuan family members (in the Maguindanao massacre), who were all similarly detained without bail after their arrest (or surrender).

(Parenthetically, when the crime is not capital in nature, the accused is ordered arrested but released upon posting of bail in the amount stated in the arrest order.)

General rule. Through his counsels Estelito P. Mendoza and Eleazar B. Reyes, JPE however claims that this long-standing and long-revered procedure is unconstitutional and wrong.

JPE reasons that under the Constitution, “[i]n all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,” or until found guilty beyond reasonable doubt. Also, the Charter guarantees that “[a]ll persons, except those charged with [capital] offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable…”

Citing jurisprudence, he adds that bail is denied in capital offenses because an accused who faces a probable life sentence “has a particularly strong temptation to flee.”

Analyzing these constitutional provisions and the jurisprudential reason for the denial for bail in capital offenses, JPE explains that every person accused of any crime is constitutionally entitled to bail as a general rule.

Exception to rule. As an exception, however, bail is denied when two conditions are present: (1) the evidence of guilt is strong, and (2) the penalty prescribed for the offense is punishable by reclusion perpetua (or life imprisonment).

The first condition, he avers, can be determined only after the prosecution has finished presenting its evidence during the bail hearings and after the court has adjudged such evidence to be “strong.” Unconstitutional, illogical and wrong, therefore, he argues, is the present procedure of detaining the accused without bail prior to the court’s ruling that the evidence is indeed “strong.”

This long-standing practice, he adds, puts “the cart before the horse” and violates the constitutional presumption of innocence.

If the Supreme Court agrees with and frees him on bail, then for the same reason, all those currently accused of capital offenses, like former president Arroyo and the Ampatuan family as well as Senators Revilla and Estrada, should also be freed and granted bail while awaiting the ruling of the trial courts on whether the evidence of guilt in their respective cases is “strong.”

On the second condition, JPE asserts that in his particular case, the penalty to be imposed would not be reclusion perpetua even if he is found guilty, because he should be credited with the mitigating circumstances of (1) old age for being over 70 years (in fact, he is over 90) and (2) voluntary surrender. These two circumstances are uncontested. (Without waiting to be actually arrested, JPE surrendered to the authorities.)

Finally, JPE avers that the jurisprudential reason for detaining the accused in capital offenses is the probability of flight. In his case, flight is most improbable because of (1) his very old age and frail health, (2) his track record (in previous cases filed against him, he did not flee), and (3) his “official and social standing” (as a senator, Cabinet member and other high government positions he held from 1966 up to the present), which allegedly “shows his high respect for the law.”

Since JPE’s petition and those of Senators Estrada and Revilla are pending in the Supreme Court and therefore sub judice, I will refrain from making an extended legal opinion. However, as a concerned citizen, I will continue to monitor and report on high-profile cases especially as they relate to President Aquino’s daang matuwid program.

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Culpa is Imputable to Defect of Intellect while Dolus is to Defect of Heart

August 11, 2015 at 10:27 am (Legal Articles) (, )

Enrile: What does ‘culpa’ mean?
By Michael Lim Ubac
Philippine Daily Inquirer
12:48 am | Tuesday, May 29th, 2012

His questions seem to augur ill for Chief Justice Renato Corona when the Senate impeachment court hands down its verdict Tuesday.

Senate President Juan Ponce Enrile had the last word in the closing arguments Monday, but he left the question hanging on whether Chief Justice Renato Corona willfully and intentionally fudged his statement of assets, liabilities and net worth (SALN) and should be convicted.

Before adjourning Monday, Enrile bombarded the defense lawyers with a series of questions over their contention the alleged nondeclaration and misdeclaration of certain assets and bank deposits in the Chief Justice’s SALNs did not amount to an impeachable offense.

What injury or prejudice may arise if a depositor, who is a public officer or employee, of a foreign currency deposit would include that deposit or the amount represented by that deposit in his statement of assets, liabilities and net worth?” Enrile asked.

The lead defense counsel, Serafin Cuevas, replied that he was “not very sure … insofar as damage is concerned.

Upon a clarification by Enrile, Cuevas said: “The probability of kidnapping, extortion and so on may come into the picture because, especially with the present trend of criminality in the country today, there is no assurance that one is immune from any of these offenses. That may be one.

Enrile then asked whether this scenario had been contemplated by the framers of Republic Act No. 6426 (Foreign Currency Deposit Act of the Philippines), as well as the presidential decrees preceding it.

The declaration of policy is entirely different from the disastrous consequences or unwarranted circumstances that may occur thereafter,” Cuevas insisted.

Enrile then asked, “Will a public officer or a public employee who maintains a foreign currency deposit incur the punitive penalty of RA 6426 if he would reflect that deposit in his SALN?

Cuevas said, “I don’t see that probability, but it could amount to a (forced) consent, as distinguished from a voluntary provision on the part of the depositor.

No Secrecy Law
Enrile explained: “We are forgetting that the law allows the exposure of a foreign currency deposit by expressed provision of RA 6426 if the depositor himself would give (the consent). There’s no monetary secrecy law in this country that prohibits or inhibits or proscribes the depositor from revealing his own deposits. What is prohibited is for a third party to reveal it, and that’s why they are penalized, but the depositor is not.

Enrile also pointed Cuevas to Section 17, Article 11 of the Constitution, which says: “A public officer or employee shall upon assumption of office, and as often thereafter as may be provided by law, submit a declaration under oath of his assets, liabilities and net worth.”

Do you consider that sentence as mandatory that requires to be obeyed by a public officer or public employee?” asked Enrile. “Do you consider that a command of the people, or is it something that can be disregarded?

Cuevas said the Constitution could not be disregarded by public officials.

But, he added: “When there are gripes that arise from a different law, I don’t see any reason as to why it cannot be availed of, in this particular instant, the depositor. Why the law has granted that is beyond my comprehension. It’s a legislative function … I’m not privileged neither can define or fathom the reason behind it.

Cuevas, a former Supreme Court associate justice, was citing the confidentiality invoked by the Chief Justice in refusing to declare in his SALNs the $2.4 million in dollar deposits.

Sovereign Command
Enrile then asked if disobedience of “a sovereign command” in the Constitution would constitute a culpable violation of the Constitution, which is an impeachable offense.

I would not be in a position to make a statement to that unless the actual facts surrounding the circumstances are known to me,” said Cuevas, who said that this “would be a matter of conjecture or surmise on my part.

Enrile then asked Cuevas about the difference in the Roman Law doctrine of “culpa” and “dolos” from where the constitutional intent of “culpable” was derived.

According to Cuevas, “dolos is intentional,” while “culpa is negligence.” Enrile disagreed, saying that “culpa is deserving of blame.

When Cuevas claimed that “intention” was needed to ascertain whether disobedience to the provision of Section 17 of the Constitution deserved blame, Enrile pointed out that the provision did not call for any intent.

Where in that provision will you find intent?” Enrile asked.

Willful, Intentional
Representative Rodolfo Fariñas, speaking for the prosecution, said that according to the records of the 1987 Constitutional Commission, “culpable violation of Constitution is understood to mean willful and intentional violation of the Constitution and not violation committed unintentionally, or involuntarily, or in good faith, or through an honest mistake of judgment.”

And it implies deliberate intent, perhaps even a degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution commands.

Defense lawyer Eduardo de los Angeles earlier insisted that Corona’s failure to disclose his $2.4 million in bank accounts did not amount to an “impeachable breach of trust.”

He said that at best, this omission would only amount to “a fine not exceeding P5,000, or imprisonment not exceeding five years, or both.”

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Plea Bargaining 101

August 11, 2015 at 9:59 am (Legal Articles) (, , , )

Plea Bargain
MY FOUR CENTAVOS By Dean Andy Bautista
The Philippine Star January 22, 2011

Given the continuing interest on the General Garcia plunder case, it may be worthwhile to discuss the concept of a plea bargain. This is essentially an agreement in a criminal case where the prosecution and the defense agree that the accused will plead guilty to a lesser charge than what is contained in the information. The equivalent of a plea bargain in a civil case is a compromise settlement.

Parties enter into a plea bargain for several reasons. Aside from escaping the rigors of a full blown trial, the accused may wish to avoid the risk of conviction to the original, more serious charge. As far as the prosecution is concerned, a plea bargain should mean reduced costs and the ability to focus more on other cases.

In the United States, a plea bargain can be one of several types. Charge bargaining occurs when an accused pleads guilty to a less serious crime (as in the Garcia case). In count bargaining, the accused pleads guilty to a subset of multiple original charges. In sentence bargaining, an accused knows in advance what sentence will be given. In fact bargaining, the prosecution and defense agree to a certain stipulation of facts which will affect what the penalty will be in accordance with the sentencing guidelines. Interestingly, in the US, plea bargaining has become the rule rather than the exception in criminal cases.

In the Philippines, the pertinent rule on plea bargaining is found in Rule 116, Section 2 of the Rules of Court which provides:

Plea of guilty to a lesser offense — At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.”

In the Garcia case, the original charge was that of plunder which is a capital crime punished under Republic Act 7080. The lesser offense that he subsequently pleaded guilty to was direct bribery which is punished under Article 210 of the Revised Penal Code and facilitating money laundering covered under Republic Act 9160. Query as to whether the crime of direct bribery and money laundering are “necessarily included” in the offense of plunder? Note that both crimes are punished by different laws.

Note as well the requirement of obtaining the consent of the offended party before the trial court will allow the downgrading of the original offense charged. In this instance, who is the offended party? Is it the Armed Forces of the Philippines since the money seems to have been taken from its coffers or the Republic since public money is involved. In any event, if we follow the news reports, it would seem that neither of their consents was secured.

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Criminal Law 101

September 27, 2010 at 9:42 am (Legal Articles) (, )

With Due Respect : Criminal law 101
By Artemio V. Panganiban
Philippine Daily Inquirer
Posted date: September 25, 2010

MANILA, Philippines—Media’s deafening howl over the Supreme Court’s decision (Lumanog vs. People, Sept. 7, 2010) convicting—via a vote of 10-4 with one abstention—the so-called “Abadilla 5” for the 1996 murder of Col. Rolando N. Abadilla echoed a lot of questions. To answer them systematically, I will lay down some basics of criminal law.
Crime and criminal. To secure a conviction, the prosecution must prove (1) that the crime charged in the “information” had taken place and (2) that the accused perpetrated it. An act or omission cannot be deemed a crime unless a law defines it as such and provides a penalty for it.

For example, no law punishes the failure to pay a debt. In fact, the Constitution bars the imprisonment of anyone for failure to honor a debt due to poverty. But, there is a civil obligation to repay it. A deliberate refusal to obey a court order to pay a debt (when the debtor has the means) can constitute contempt and can be punished with incarceration.

The information, which is prepared by a government prosecutor, must contain a concise statement of ultimate facts, which—if proven—will constitute a specific offense (like murder, rape or theft). If the facts alleged in the information are not proven, or—even if proven—do not constitute a crime punishable by law, then the accused deserve an acquittal without having to prove their innocence.

Even if they plead guilty, the accused cannot be convicted and punished if—to repeat—the facts alleged in the information do not constitute a crime. Moreover, when the crime charged is capital in nature (punishable by life imprisonment), the prosecution is still required to prove the facts constituting the offense, even if the accused has already pleaded guilty.

The Bill of Rights says, “the accused…has the right to be informed… of the nature and cause of the accusation.” So, he (or she) can be liable only for a crime he had been “informed” of, or one stated in the information. Except when the crime proven is necessarily included in the crime charged.

For example, if the crime charged is murder, but the prosecution proved only homicide, then the accused can be convicted only of homicide. If the crime charged is homicide, the accused cannot be held liable for murder even if murder was proven. Reason: murder includes homicide but not vice-versa. Murder is really homicide with an added “qualifying circumstance” like treachery.

The identity of the accused as the perpetrator of the crime—whether as principal, accomplice or accessory—must also be proven. The Constitution presumes everyone—citizen or alien, man or woman, young or old—to be innocent of any crime.

Degree of proof needed. Both the commission of the crime and the identity of the accused must be proven beyond reasonable doubt. “Proof beyond reasonable doubt” does not entail absolute certainty. Rather, it refers to “that degree of proof which, after an examination of the entire records of the case, produces in an unprejudiced mind moral certainty of the culpability of the accused for the crime proved.”

Proof beyond reasonable doubt requires a much higher degree of certainty than “preponderance of evidence” (required in civil cases) which “means that, as a whole, the evidence adduced by one side outweighs that of the adverse party.” It is also stricter than “substantial evidence” (required in administrative proceedings like labor cases), which refers “to that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion.”

A judgment of acquittal “shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his (or her) guilt beyond reasonable doubt.” In other words, a judgment of acquittal does not necessarily mean that the accused is innocent but that the prosecution failed to adduce that degree of proof (beyond reasonable doubt) needed to convict. As the legal maxim goes, “to doubt is to acquit.”

Proof of guilt, not of innocence, required. The overriding consideration is not whether the court doubts the innocence of the accused, but whether it reasonably doubts their guilt. Where there is no moral certainty as to their guilt, they must be acquitted even though their innocence may be questionable. To stress, the presumption of innocence may be overthrown only by proof beyond reasonable doubt.

Aside from the prosecution’s failure to prove guilt beyond reasonable doubt, there are other reasons why a criminal case could be dismissed or an accused acquitted even if they are actually guilty. One is where the constitutional rights of the accused are violated so grossly that due process is effectively denied them.

For example, an unreasonable delay of more than 10 years to resolve a criminal case, without fault on the part of the accused and despite their earnest effort to have their case decided, violates the constitutional right to speedy trial and entitles them to instant acquittal without need to determine whether the evidence proves them guilty or not.

There are other ways of getting a criminal case dismissed via a motion to quash, like lack of jurisdiction of the court over the offense charged, or lack of jurisdiction over the person of the accused, or lack of authority on the part of the officer who filed the information, or when the crime charged has prescribed, when the information charges more than one offense, or when the right against double jeopardy would be infringed.

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Topping the Bar

August 27, 2010 at 2:22 pm (Legal Articles) (, )

The 2010 Philippine Bar Examinations is just around the corner. I can say that for most, if not all, examinees, this is one life-changing examination. Although I haven’t taken the Bar yet, I agree with the majority who says that this is one of the toughest bar examinations in the world.

I would like to share this article of Former Chief Justice Artemio V. Panganiban to boost the morale of this year’s examinees. God be with you all!

With Due Respect: How to Pass, Nay, Top the Bar Exams
By Artemio V. Panganiban
Philippine Daily Inquirer
Posted date: April 19, 2008

Last Sunday, I commented on the dismal results of the 2007 bar exams. I said that it was high time the Supreme Court, the Philippine president and the law schools collaborated to produce better lawyers. “We concur,” chorused many readers. But the more pressing query of law students and reviewees for the 2008 test is “Can you give us tips on how to pass the 2008 tests?

Having taken the exams eons ago, I felt inadequate answering the question. Besides, I placed only sixth. So I called someone more qualified, 2005 topnotcher Joan de Venecia. In turn, she summoned help from two other numero unos, Arlene Maneja (2002) and Mercedita Ona (2007). Incidentally, Arlene comes from UST, Joan from UP and Mercedita from Ateneo de Manila. Here are their common tips.

Believe that you deserve to take the test. Forget the times you botched up a recitation or failed an exam. You’re past that. Believe that you have been allowed to sit for the bar because you have a fighting chance to pass it. Cultivate composure with that thought. You’ll need it.

Make time for serious self-evaluation. Have an honest assessment of the subjects you are good at, and those you feel you have an inadequate foundation on. If you sincerely believe that you do not have sufficient knowledge of a particular subject, accept it humbly and know that you still have a number of months to study for it. Adjust the number of days devoted to each subject according to the results of your self-assessment. A schedule is recommended to serve as a guide as to how many days you can allot for every subject.

Have a study plan and be realistic about it. At the start of the bar review, set aside all the materials you want to cover—all the books, reviewers and notes for each subject. Make it your guide and pace yourself. People without a plan either underestimate the workload or get swamped with available materials; either way, they don’t finish everything. So too, organize your review materials. Time is of the essence during the bar review. You cannot afford to waste time by looking for misplaced review materials. Maintain eight separate boxes or drawers for each of the subjects. This will help you sort through your materials and decide which to read during your pre-week.

Be realistic about your capabilities. People say they will “start afresh” during the bar review—study more, play less. That’s nice but it rarely happens. So, in setting a study plan, be kind to yourself. Give yourself time to attend review lectures, to wake up late, to be lazy, to go out and to have fun. The bar test is difficult enough without making yourself sick because of unrealistic expectations.

Do not compare yourself with other reviewees. We all have our own rhythm. Listen to yours. Bar preparation is an individual task. It is ultimately your understanding of the law and its varied nuances, not how many readings you do, or the laws that you memorize verbatim that makes the difference.

Be physically fit. Try to get regular exercise. Eat nourishing meals. Get enough sleep every day. Take vitamins and supplements. Manage your stress. Remember, all your efforts will be wasted when your body bogs down.

Use your time wisely. Sit in a review class or do personal reading? If you know the subject well enough, refresh yourself by attending review classes. If not, read up first. Review classes assume a certain level of knowledge and, without it, you’ll be lost during the discussion and waste valuable time. Know that you still have the pre-week review for all those “bar tips” that most reviewers give.

Abandon all emotional problems. Inform your family and friends about what you are going through in preparing for and in taking the exam. Ask for their understanding and support. The last thing you need is additional source of stress when preparing for the bar is draining enough. Avoid all distractions. Keep your focus.

Perfect your handwriting and grammar. Bar examiners have to go through thousands of exam booklets, and they are only human. As would any other normal person, they appreciate, and understand more, an answer that is at the very minimum, readable and logical. All three topnotchers have good handwriting, and believe that their passing, nay topping, the bar was in large part due to this. So, practice writing neatly, legibly and fast.

If you are a visual person write down your notes. This exercise will aid your quest for a beautiful penmanship, and help you retain the facts and the law that may be difficult to retrieve as you store more information in your brain bank.

Study smartly. Streamline. Codal provisions, a good reviewer for each subject and updates on jurisprudence should suffice. Master the basics. Understand the substance of the law and how to apply it to given situations. Recall legal provisions during your spare time. Listen to audio codals when you travel.

Ask for updates. Doctrines that you have studied in school may have already been overturned or modified by the Supreme Court or by Congress. Request your bar operations team to include abbreviated facts in the updates, because bar questions are often facts-based.

Pray. Pray. Pray.

A final reminder. There is no shortcut to passing the bar. If you want to pass on the first take, you have to put in the hours, and get yourself in the mood to study. Do not focus on things you cannot control (e.g., bar examiners, kinds of questions). Devote all your energies to studying and positive thinking. Good luck!

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Supreme Plagiarism

August 9, 2010 at 5:40 pm (Legal Articles) (, )

The Supreme Court is threading a lot of negative criticisms nowadays. This article of Former Chief Justice Artemio V. Panganiban sheds light on the issue of plagiarism facing the High Court.

With Due Respect : Plagiarism in the Supreme Court?
By Artemio V. Panganiban
Philippine Daily Inquirer
Posted date: August 07, 2010

THE SUPREME Court is once more embattled. This time, the battle relates not just to the wisdom of its decision. This time, it seeps to the very ability and integrity of the Court to write its judgments. A group of litigants is accusing it of plagiarism and of misusing the allegedly plagiarized materials to support the opposite of what the plagiarized items were intended to uphold.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.

International dimension. Before the Court could rule on these motions, Dr. Mark Ellis—one of the three authors—sent an e-mail to the justices, dated July 23, saying: “In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28 of the said Judgment of your esteemed Court. I am also 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 argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.” In a blog in Opinio Juris, Criddle found the alleged plagiarism and contrary conclusion “most troubling.”

To stress the international dimension of his intervention, Ellis signed his letter in his capacity as “executive director” of the International Bar Association based in London. IBA is the largest lawyers’ organization in the world.

Soon enough, calls for discipline against the decision writer and the nine justices who concurred in full with the decision (the rest concurred only in part, or only “in the result”) erupted. The Court referred the complaint for investigation and recommendation to the newly created Committee on Ethics and Ethical Standards, composed of Chief Justice Renato C. Corona, chairman; Justice Teresita J. Leonardo de Castro, working vice chair, Justices Roberto A. Abad, Jose P. Perez and Jose C. Mendoza, members. Retired Justice Jose C. Vitug was named a non-voting observer-consultant.

Delicate questions. While the Court acted on the complaint with commendable speed, it still faces major dilemmas because all the Ethics Committee members concurred unqualifiedly in the decision penned by Justice Mariano C. del Castillo. Pages 33 and 34 of the decision show that nine magistrates concurred fully with the ponente; namely, all the five members of the Ethics Committee, plus Justices Presbitero J. Velasco Jr., Arturo D. Brion, Lucas P. Bersamin and Martin S. Villarama Jr.

Five other magistrates scribbled their votes on the signature pages of the decision, as follows: then Chief Justice Reynato S. Puno, “In the result”; Justice Antonio T. Carpio, “I concur on the ground that petitioners’ claims are barred by the Peace Treaty between RP and Japan”; while Justice Antonio Eduardo B. Nachura filed a short separate opinion concurring “in the result on strictly procedural grounds,” to which Justices Conchita Carpio Morales and Diosdado M. Peralta “joined.”

On July 22, Justice Del Castillo wrote his colleagues, saying “(t)here 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… This case has not attained finality; in fact, it is pending resolution of the petitioners’ motion for reconsideration. As such it is still within the power of the Court to reverse or amend its decision…” Last Tuesday, Roque and Bagares were asked to comment on this letter.

The case raises novel questions, like: As it applies to judicial decisions, what constitutes plagiarism? What is the penalty for its commission? Who, if any, should be held responsible? May those who fully concurred with the decision investigate the matter as members of the Ethics Committee?

Having caught national and international attention, the delicate issue of plagiarism as it relates to decision-making deserves prudent, fair and speedy resolution.

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