Holding the UP Law Faculty in Contempt Would Be a Grave Mistake

[Opinio Juris is delighted to post these remarks by Professors Evan Fox-Decent (McGill) and Evan Criddle (Syracuse) on the fallout from the allegations that their article was plagiarized by a member of the Philippines Supreme Court]

We are writing to lend support to the University of Philippine’s College of Law, which now faces a very serious charge of contempt from the Philippine Supreme Court (PSC). If the members of the College are held in contempt, they face the loss of their bar licenses and with that the loss of their ability to teach and practice law.

A few months ago the PSC rendered its decision in Isabelita Vinuya et al. v. Executive Secretary et al. The complainants asked the PSC to order the Philippine government to seek reparations from Japan for the Japanese military’s mistreatment of Philippine women during World War II. During the Japanese occupation of the Philippines, the Japanese military interned scores of Philippine women and placed them in sexual slavery. The Vinuya decision discusses jus cogens or peremptory norms of international law, as these norms enjoy a status that cannot be overridden by treaty. The PSC concluded the no such norm prohibited sexual slavery, and thus that jus cogens was irrelevant to the case.

In its jus cogens discussion, the PSC quoted without attribution numerous selections from an article by Evan Criddle and myself, an article featured here at Opinio Juris. In the aftermath of Vinuya, Professor Criddle noted that the most troubling aspect of the PSC’s jus cogens discussion is that it implies that sexual slavery, crimes against humanity, and other abuses are not covered by jus cogens, whereas we had emphatically argued that they are.

The complainants in Vinuya filed a motion for reconsideration, pointing to more than 30 tracks lifted without attribution from our article. The complainants also alleged that material from Mark Ellis and Christian Tams had been used without proper attribution. The motion is available here. The University of the Philippine’s College of Law issued a statement critical of the apparent plagiarism, available here.

The PSC held a hearing to review the plagiarism charge and delivered a split decision. The majority acknowledged that some of our article’s text was used in Vinuya without appropriate referencing, but chalked this up to clerical errors. The minority doubted that so many selections could be used innocently without attribution, raising the possibility that the lack of attribution stemmed from the Vinuya Court reaching conclusions directly contrary to those expressed by us, Ellis and Tams.

On 18 October 2010 the PSC issued an order giving members of the UP College of Law 10 days to show cause as to why they should not be sanctioned for issuing the statement critical of Vinuya.

Professor Criddle and I believe that it is not the place of a court to sanction individuals or institutions that have been critical of it. This principle is especially important in the case of a law school, where discussion of cases is an integral part of legal pedagogy. The idea that a law school or its members cannot express an opinion on a case is contrary to the best practices of law schools everywhere, and an affront to free expression. That a court would assert jurisdiction to sanction its detractors is, in our opinion, an abuse of judicial power. To the best of our knowledge, no court in a democracy has ever attempted to assert the kind of jurisdiction the PSC is asserting now against the UP College of Law.

We initially declined to comment on the substance of the plagiarism complaint, except as noted above. Readers can draw their own conclusions from the ‘tables of comparison’ (comparing the original text with text in Vinuya) provided by Justice Sereno who wrote with the minority in the plagiarism decision. Given the stakes involved now for members of the UP College of Law, we believe it is important for us to offer our opinion on the merits of the plagiarism charge. The point of our doing so is only to underline that the UP College of Law issued its critical statement in good faith and has clean hands in its dispute with the PSC. While the UP statement contains some harsh and uncompromising language, it emerged in the wake of a controversial decision, and is clearly within the scope of speech protected under any reasonable interpretation of freedom of expression.

A cursory glance at the tables of comparison set out in Justice Serano’s opinion reveals repeated verbatim or near-verbatim uses of text from our article without attribution. If a law student submitted an essay with this much cut-and-paste text, without attribution, he or she would almost certainly be subject to disciplinary action. We say this with all due respect to the PSC, and only to emphasize to others in the legal community that we believe the UP College of Law acted in good faith when it criticized the use of our article in the Vinuya opinion. The College has clean hands in this dispute, and in our view deserves support.