A test of the Senate’s ethical standards

The issue on the alleged plagiarism of Philippine Senators have been lingering for months now. Complaints have been filed with the Senate’s Ethics Committee recently. Will the Senate deemed the Senators’ acts as acceptable, else justifiable, within the Senate’s ethical standards? Will the Senate assert a standard more lenient than what is required in the academe, else less than the norms under Republic Act 6713?


I. Background
    A. Senator Sotto’s “Turno en contra” speeches
    B. Senator Pia Cayetano’s Breast Cancer-awareness speech
II. Implications of one’s articulation (Plagiarism viz Copyright infringement)
    A. Plagiarism
        1. Definition of plagiarism
        2. Academic Standards, and the determination of academic plagiarism
        3. Outside of academe: Judiciary
        4. Outside of acadame: Others
    B. Copyright infringement
        1. Copyright and copyright infringement
        2. The mechanics of Philippine copyright
    C. Plagiarism and Copyright infringement differ
III. Parliamentary immunity
    A. “No Member shall be questioned nor be held liable in any other place”
    B. Rationale of parliamentary immunity
    C. Relevant Senate Rule on Unparliamentary Acts and Language
    D. When no Rule applicable to a specific case
IV. Public’s continuing reservations in the conduct of public officials


I. Background

A. Senator Vicente Sotto III’s “Turno en contra” speeches.

Senator Vicente C. Sotto III rendered privilege speeches against the Reproductive Health Bill (Senate Bill 2865) between 13 August to 5 September 2012. [1] His speeches were denounced online and offline since passages thereof were lifted from other people’s works, and apparently repurposed to suit his position. [2] The manner he “apologized” to Sarah Pope and other bloggers [3], and the heirs of the late United States Senator Robert Kennedy [4], only aggravated the alleged act of plagiarism.

A complaint against Senator Sotto was filed with the Senate Ethics Committee on 13 November 2012. [5] Certain individuals opposed the filing of the complaint, alleging that it is a waste of time and government resources. [6] Notwithstanding the move to trivialize the matter, the issue remains whether Senator Sotto may be disciplined for his speech.

It would appear that the Senate President, Senator Juan Ponce Enrile, openly supported Sotto’s stance that Senators cannot be made liable for their parliamentary speech, [7] but made a statement relevant thereto in a privilege speech on 14 November 2012. [8]

B. Senator Pia Cayetano’s Breast Cancer-awareness speech

Senator Pia Cayetano rendered a privilege speech much earlier in 12 October 2010, which is directed towards “Raising awareness on breast cancer.”[9] In August 2012, Elisa Sangalang of PinoyTemplars raised the issue of alleged plagiarism made by the Senator in said speech. [10] A similar ethics complaint was filed against Senator Cayetano was instituted with the Senate Ethics Committee on 21 November 2010. [11]

The rules on the proceedings have been finalized the next day. [12] Senator Alan Cayetano, chairman of the ethics committee, inhibited from the case involving his elder sister. [13]

II. Implications of one’s articulations (Plagiarism viz Copyright infringement)

When a person articulates or writes about an idea, then it is his own expression. If one adopts another person’s articulations or writings of an idea, and articulates the same without attribution as to its source, or appends his name as the author of the same, then he adopts the same as his own expression. If without issue, said person would be attributed as its source by anyone who utilizes, in whole or in part, such expression. Nevertheless, said person may be personally proceeded against for such articulation, if such articulation goes against ethical standards or certain legal obligations. Unless my education is wrong, I find it hard, personally, to see it differently.

Hence, when one attracts flak for such articulation, it seems lame, nay irresponsible, to excuse oneself from accountability by alleging that one never said that said ideas or expressions were his own or that one never said that he owned such ideas or expressions. [14]

Relevant thereto, the discourse on plagiarism and copyright infringement may appear confused, as the two terms may, or are, taken synonymously by some individuals. This is more so as confusion may arise as to questions whether intent is necessary, or whether ideas are protected matters, in the commission of either plagiarism or copyright infringement.

The necessary discussion to differentiate these two concepts lean towards legal distinction, and hence would necessitate the appreciation of laws and jurisprudence, on this matter.

A. Plagiarism

Generous excerpts of the majority opinion in the decision of “In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo,” (AM 10-7-17-SC, 12 October 2010, En Banc, Per Curiam) [15], and resolution thereof (AM 10-7-17-SC, 8 February 2011, Resolution En Banc, Per Curiam) [16], would be essential to provide for current legal appreciation of plagiarism. It would be foolhardy on my part to present the precise wordings of the Court’s decision, resolution, and/or separate opinions, in abbreviated or rephrased manner.

Parts (1) to (3) below provides the discussion of the Court relevant to the issue on the alleged plagiarism by Associate Justice del Castillo, which may provide for background appreciation of plagiarism standards outside of the academe. Part (4) below highlights the predicament resulting from the dichotomy of such standards.

1. Definition of plagiarism

It has been held in the 2010 Decision in In RE Justice del Castillo [17] that:

At its most basic, plagiarism means the theft of another person’s language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is “to take (ideas, writings, etc.) from (another) and pass them off as one’s own.” [Webster’s New World College Dictionary, Third Edition, Macmillan USA, p. 1031] The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.

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Indeed, the 8th edition of Black’s Law Dictionary defines plagiarism as the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.” [Black’s Law Dictionary (8th ed. 2004)] Thus, plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.

The definition is reiterated in the 2011 Resolution of In RE Justice del Castillo, [18] to wit:

Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is “to steal and pass off as one’s own” the ideas or words of another. Stealing implies malicious taking. Black’s Law Dictionary, the world’s leading English law dictionary quoted by the Court in its decision, defines plagiarism as the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.” [Black’s Law Dictionary (8th Edition, 2004)] The presentation of another person’s ideas as one’s own must be deliberate or premeditated—a taking with ill intent.

There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident or in good faith.

In a related case, In RE Letter of the UP Law Faculty, AM 10-10-40-SC, 19 October 2010, En Banc, Villarama Jr. [J] [19], plagiarism was defined as:

Plagiarism is the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind. [Black, Henry Campbell, black’s law dictionary, 5th ed., St. Paul Minn., West Publishing Co., 1979, p. 1035]

The nature of plagiarism and the manner in which it may be committed have been articulated not in the majority decision but in the dissenting opinion of then Associate Justice Sereno, now Chief Justice of the Philippine Supreme Court. [20]

2. Academic Standards, and the determination of academic plagiarism

The Court in the 2011 Resolution of In RE Justice del Castillo, [21] stated that:

Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of Academic Integrity ordains that “plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one’s self what is not one’s work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Students who plead ignorance or appeal to lack of malice are not excused.” [Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.%5D

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Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodying results of original research, substantiating a specific view. [Webster’s Third New International Dictionary, p. 2374.] This must be so since the writing is intended to earn for the student an academic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations, and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy.

But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism. Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certain schools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its face the student’s work shows as a whole that he has but committed an obvious mistake or a clerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his diploma.

The Court, in the 2011 Resolution [22], also distinguished the academic publishing model as against the judicial system, to wit:

[T]he Court’s decision … does not set aside such norm. The decision makes this clear, thus:

To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer’s thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from. [In the Matter of the Charges of Plagiarism, etc., Against Associate Justice Mariano C. Del Castillo, A.M. No. 10-7-17-SC, October 12, 2010.]

3. Outside of academe: Judiciary

The Court, in the Resolution [23], held that:

[D]ecisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes is a service rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of flesh and blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interest of society in written decisions is not that they are originally crafted but that they are fair and correct in the context of the particular disputes involved. Justice, not originality, form, and style, is the object of every decision of a court of law.

There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are “to stand by precedent and not to disturb settled point.” Once the Court has “laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same.” [Black’s Law Dictionary (6th Edition, 1990), p. 1406.]

And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators.

Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability. Thus:

The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone. [Duncan Webb, Plagiarism: A Threat to Lawyers’ Integrity? Published by the International Bar Association, available online at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc2ef7cd-3207-43d6-9e87-16c3bc2be595.%5D

The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook:

A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party’s brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism. [Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by Justice Maria Lourdes Sereno in her dissenting opinion.]

If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciary’s more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism.

This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the judges’ creativity. It is here—actually the substance of their decisions—that their genius, originality, and honest labor can be found, of which they should be proud.

As to the issue whether “judicial plagiarism” provides justification to the rehearing or reversal of the case, the Court in the Resolution [24] held that:

The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done.

This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice.

As Duncan Webb said:

In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole sections of a judge’s words to lend weight to a particular point either with or without attribution. The words of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this place is given to Halsbury’s Laws of England which is widely considered authoritative. A lawyer can do little better than to frame an argument or claim to fit with the articulation of the law in Halsbury’s. While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution.

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The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy. [Duncan Webb, Plagiarism: A Threat to Lawyers’ Integrity? Published by the International Bar Association, available online at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc2ef7cd-3207-43d6-9e87-16c3bc2be595%5D

4. Outside of academe: Others

What is clear with the above ruling is that the Court’s decision does not modify the standards in the academe, especially that which is relevant to plagiarism. Therein, there appears a clear distinction between the plagiarism standards for the academe and that of the judicial system. Among others, the academe, it is pointed out, relies upon the originality of the writer’s thesis while the judiciary system relies upon stare decisis. Also, any unattributed expression, whether intentional or negligent, in the academe is deemed to be plagiarism, while the Court emphasized the essential ingredient of “malicious intent” to constitute plagiarism, and thus excuse errors in attribution made in good faith or by mere accident. Nevertheless, the emphasis on the articulation that even non-attribution is permissible — as it is alleged to be widely practiced — still appears to be somehow disconcerting. Considering that the adopted position, either by Webb or by George, does not emanate from the promulgation of a foreign tribunal (which the Court may appreciate their persuasive effect if there are no existing Philippine legal laws and jurisprudence), I cannot help but wonder whether such alleged permissiveness is prevalent in other jurisdictions, so as to set the current Philippine judicial standard.

Nevertheless, I am not here to assail the Court’s decision, as it is currently the prevailing jurisprudence on the matter. It is difficult, however, to ignore personal observations that the “malicious intent” requirement appears one of the contentious issues that remain to simmer in the minds of locals, who demand a higher standard for such an exacting profession, else branch of government. [25] It would be claimed, as an unintended consequence, that the resulting dichotomy between what is academic and which is not, and the corresponding necessity of “malicious intent” to constitute plagiarism or not, provides problem areas in the assertion of what is morally right, especially outside the academic sphere. Relevant to this, thus, will members of the political branches of the government be justified to disregard higher standards on articulations, considering that political ideas are never original and that politicians get voted to office notwithstanding that they have been exposed for using unattributed expressions? [26] Will the same assertion of more lenient standards be claimed by practitioners of other professions and industries, considering that they themselves are outside of the academic sphere as well? [27] Ultimately, will highly-held standards, such those related to intellectual honesty, courtesy, and the like, eventually degenerate to the point that such theories and values are dismissed as utterly incompatible, else useless, amidst the pragmatic considerations of the so-called “real world”?

B. Copyright infringement

1. Copyright and copyright infringement

Copyright is not defined by Philippine statute, such as Republic Act 8293. The dissenting opinion in Habana vs. Robles, GR 131522, 19 July 1999, First Division, Pardo [J], nevertheless, provided for one. [28]

The Court in Habana vs. Robles, GR 131522, 19 July 1999, First Division, Pardo [J][29] articulated the essence of copyright infringement or intellectual piracy:

The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. [18 CJS, Copyright and Literary Property, Sec. 90, 212; 18 Am Jur 2D, Copyright and Literary Property, Sec. 106, 391-392]

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A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. [Ibid.]

2. The mechanics of Philippine copyright

My take on the mechanics of Philippine copyright, as per statute, is subject of a separate article, as it would be too lengthy to discuss the details thereof herein.

Suffice it to say, for the meantime, that literary, scholarly, scientific and artistic works, either original or derivative, are protected under Republic Act 8293, specially under the copyright title thereof. Ideas, processes, format, etc., as well as works of the government, are not protected in the same manner therein. Original works are protected from the moment of creation while derivative works are protected as new works, without prejudice to the rights of those who own the originals in which they are derived. Further, depending upon the nature of the work and the number of authors, are protected for varying periods, else with differing reckoning points. Subsequently the protection expires, and the work becomes part of the public domain. Authors, owners, publishers, performers, producers, and broadcasting organizations have outlined exclusive rights under the law, and exercise monopoly for such acts. Nevertheless, said individuals/entities may allow others, through licensing, to perform such reserved rights; else, the law may allow others to perform specific reserved rights even without the permission of the copyright owner.

Contrary to assertions that blogs, etc. are not protected by copyright, there is nothing in the law which provides that public display of a work removes the copyright protection of the work and render it to be part of public domain. Neither the availability of the work in electronic form deprive the copyright owner protection of his rights thereto, as any assertion to the contrary would militate against provisions of Republic Act 8293, or the e-Commerce Act, such as Sections 30 and 33[b] thereof.

Relevant to quotes and attributions, Section 184.1 (b) of RA 8293 provides:

Section 184. Limitations on Copyright. – 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

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(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned;

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Such use of copyrighted materials thus should be compatible with fair use. Fair use is covered by Section 185 of RA 8293, to wit:

Section 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

To resolve any doubt, Section 184.2 of RA 8293 provides:

184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interests.

Section 184.1 [h] and [k] are not relevant in the present issue, inasmuch the fixed articulation does not involve judicial proceedings or legal advice, not pursued under the direction or control of the government. Subject to the same interpretation provided above in Section 184.2, Section 184.1 [h] and [k] of RA 8293 provide:

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(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;

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(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.

C. Plagiarism and Copyright infringement differ

It would appear that plagiarism standards are different depending upon the institutions which determine the thresholds of intellectual honesty. Academic standards are stringent as it espouses originality in both idea and expression. Judicial standards need not conform with such stringent standards, inasmuch as the doctrine of stare decisis was declared more significant. Academic plagiarism does not condone even negligence or mistake in non-attribution, while the judicial declaration emphasized malicious intent. What may be deemed to be plagiarism in one institution may be not be plagiarism at all in another.

The standard in what constitutes copyright infringement, on the other hand, relies upon a single authority in the determination of the same. What is deemed to be infringement is what emanates from precedents in rulings promulgated by the Supreme Court. Although factual distinctions of cases would qualify what is deemed infringing or not, the standards are fixed in decisions, by the Supreme Court, until these are subsequently qualified or reversed.

Further, the inclusion of original idea as a necessary ingredient in academic thesis distinguishes plagiarism from copyright infringement, inasmuch as there is no copyright infringement when the idea of another is utilized in a literary, artistic, scholarly and scientific work. In the latter, only the expression matters.

Furthermore, the essential ingredient of malicious intent in “judicial plagiarism” is not present in copyright infringement inasmuch as violation of the law triggers the enforcement of the penal provision of this special law. The infringement is not malum in se, [30] but malum prohibitum, [31] and intent to commit the crime hence is not necessary to be shown. [32]

Plagiarism is an administrative matter, and not criminal in nature.

III. Parliamentary immunity

Section 11, Article VI of the 1987 Philippine Constitution provides:

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

A. “No Member shall be questioned nor be held liable in any other place”

The second sentence of Section 11, Article VI of the 1987 Constitution refers specifically to what is deemed to be “parliamentary immunity.”

The provision under Section 11, Article VI of the 1987 Constitution has been previously been found in Section 9, Article VIII of the 1973 Constitution, [33] and Section 15, Article VI of the 1935 Constitution. [34]

In Osmeña vs. Pendatun, GR L-17144, 28 October 1960, En Banc, Bengzon [J] [35], where the 1935 Constitution was in force at that time, it was held that:

Section 15, Article VI of our Constitution provides that “for any speech or debate” in Congress, the Senators or Members of the House of Representative “shall not be questioned in any other place.” This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United States. In that country, the provision has always been understood to mean that although exempt from prosecution or civil actions for their words uttered in Congress, the members of Congress may, nevertheless, be questioned in Congress itself. Observe that “they shall not be questioned in any other place” than Congress.

Nothing in the present controversy suggests that the issue has been raised outside of Congress, or specifically outside of the Senate Ethics Committee.

B. Rationale of parliamentary immunity

In the same case of Osmeña vs. Pendatun, [36] the Court held therein that:

Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose “is to enable and encourage a representative of the public to discharge his public trust with firmness and success” for “it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom exercise of that liberty may occasion offense.” [Tenney vs. Brandhove, 341 U. S. 367] Such immunity has come to this country from the practices of Parliamentary as construed and applied by the Congress of the United States. Its extent and application remain no longer in doubt in so far as related to the question before us. It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But is does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. In the United States Congress, Congressman Fernando Wood of New York was censured for using the following language on the floor of the House: “A monstrosity, a measure the most infamous of the many infamous acts of the infamous Congress.” [Hinds’ Precedents, Vol. 2,. pp. 798-799]. Two other congressmen were censured for employing insulting words during debate. [2 Hinds’ Precedents, 799-801]. In one case, a member of Congress was summoned to testify on a statement made by him in debate, but invoked his parliamentary privilege. The Committee rejected his plea. [3 Hinds’ Precedents 123-124.]

For unparliamentary conduct, members of Parliament or of Congress have been, or could be censured, committed to prison, [Kilbourn vs. Thompson, 103 U. S. 189; Hiss. vs. Barlett & Gray. 468, 63 Am. Dec. 768, 770] even expelled by the votes of their colleagues. The appendix to this decision amply attest to the consensus of informed opinion regarding the practice and the traditional power of legislative assemblies to take disciplinary action against its members, including imprisonment, suspension or expulsion. It mentions one instance of suspension of a legislator in a foreign country.

In Pobre vs. Defensor-Santiago, AC 7399, 25 August 2009, Third Division, Velasco Jr. [J], [37] it was further held that:

As American jurisprudence puts it, this legislative privilege is founded upon long experience and arises as a means of perpetuating inviolate the functioning process of the legislative department. Without parliamentary immunity, parliament, or its equivalent, would degenerate into a polite and ineffective debating forum. Legislators are immune from deterrents to the uninhibited discharge of their legislative duties, not for their private indulgence, but for the public good. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a judge’s speculation as to the motives. [Tenney v. Brandhove, 34 US 367, 71 S. Ct. 783786]

C. Relevant Senate Rule on Unparliamentary Acts and Language

The breadth of allowable parliamentary speech is not unbridled. Rule XXXIV of the Senate Rules provide:

RULE XXXIV
UNPARLIAMENTARY ACTS AND LANGUAGE

SEC. 93. Acts and language which offend a Senator or any public institution shall be deemed unparliamentary.

SEC. 94. No Senator, under any circumstances, shall use offensive or improper language against another Senator or against any public institution.

SEC. 95. When a Senator, by word or deed, violates any Rule of the Senate, the President, motu proprio or at the instance of another Senator, may call him to order. The Senator concerned shall immediately take his seat if he happens to have the floor; and, in case the point of order raised has been sustained by the President or Presiding Officer, said Senator shall not continue speaking without the consent of the Senate. The motion permitting the Senator concerned to continue speaking shall be resolved without debate.

SEC. 96. When a Senator is called to order for using unparliamentary language, any other Senator may ask that the objectionable words be read for the information and decision of the Senate.

SEC. 97. Upon the recommendation of the Committee on Ethics and Privileges, the Senate may punish any Member for disorderly behavior and, with the concurrence of two-thirds (2/3) of the entire membership, suspend or expel a Member. A penalty of suspension shall not exceed sixty (60) calendar days.

Nevertheless, the speeches in the current controversy do not involve any imputation against any co-Senator nor any public institution. No one was unduly assailed in those speeches. The privilege speeches were made pursuant to their take on matters of public interest as provided in Rule XL of the Senate Rules, [38] such as Breast Cancer Awareness and Reproductive Health. The only matter of controversy in such speeches was the fact that certain passages were lifted from other people’s works, with erroneous (else indirect) attribution or without attribution.

With this context, Rule XXXIV can hardly be utilized for the purpose of making said senators accountable for non-attribution in their speeches. On the other hand, Rule XXXIX is clearly inapplicable as the current controversy does not involve parliamentary procedure. [39]

D. When no Rule applicable to a specific case

Considering that plagiarism matters are not explicitly provided for under the Rules, should the controversy end there? Rule L of the Senate Rules provides:

RULE L
SUPPLEMENTARY RULES

SEC. 135. If there is no Rule applicable to a specific case, the precedents of the Legislative Department of the Philippines shall be resorted to, and as supplement to these, the Rules contained in Jefferson’s Manual, Riddick’s Precedents and Practices, and Hind’s Precedents.

I am still not aware of a compiled document providing for precedents in the Legislative Department of the Philippines, as of writing, to peruse the scope of actions pursued in the past. Copies of the Jefferson’s Manual, Riddick’s Precedents and Practices, and Hind’s Precedents are readily available in the Internet. [40]

It is manifest that disciplinary actions by the legislative branch on its members are not confined to parliamentary speech.

The discourse now shifts whether the appropriation of other’s expression, which is intellectual property, can be appropriated by public officers, such as senators, without the need of attribution, considering that such incorporation is being made pursuant to “uninhibited discharge of their legislative duties … for the public good.” [41]

IV. Public’s continuing reservations in the conduct of public officials

The current controversy appears to be novel, and it is upon the Senate to rule upon this to assert its standards. Whether they discipline any of the Senators or dismiss the complaint altogether, such is within their power and prerogatives.

Nevertheless, whatever the outcome would be, adoption of more lenient standards by institutions would be continued to be frowned upon, as it was in the past.

Although it could be claimed that public institutions need not be bound by stringent academic standards, people would remain to expect that the ethical standards in the government would be nothing less than what is mandated under Republic Act 6713, or the Code of Conduct and Ethical Standards for Public Officials and Employees, [42] relevant provisions thereof being:

Section 2. Declaration of Policies. – It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest.

Section 3. Definition of Terms. – As used in this Act, the term:

(a) “Government” includes the National Government, the local governments, and all other instrumentalities, agencies or branches of the Republic of the Philippines including government-owned or controlled corporations, and their subsidiaries.

(b) “Public Officials” includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount.

xxx

Section 4. Norms of Conduct of Public Officials and Employees. – (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties:

(a) Commitment to public interest. – Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.

(b) Professionalism. – Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

(c) Justness and sincerity. – Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. – Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. – Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas.

(f) Nationalism and patriotism. – Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. – Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party.

(h) Simple living. – Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. [Emphasis mine]


Endnotes

[1] Privilege speeches of Sen. Vincente C. Sotto III, “Turno en Contra SB 3865”. Senate of the Philippines (15th Congress): (a) http://www.senate.gov.ph/press_release/2012/0813_sotto1.asp, (b) http://www.senate.gov.ph/press_release/2012/0815_sotto1.asp, (c) http://senate.gov.ph/press_release/2012/0905_sotto1.asp, and (d) http://www.senate.gov.ph/press_release/2012/0905_sotto2.asp. Accessed 17 November 2012.

[2] Melgar, Alfredo. “Sotto’s Reckless Method of Legislation is Inexcusable” http://filipinofreethinkers.org/2012/08/15/sottos-reckless-method-of-legislation-is-inexcusable/; Bercero, Garrick. “Timeline of Senator Sotto’s Plagiarism (Updated September 7)” http://filipinofreethinkers.org/2012/08/17/bloggergate-timeline-of-senator-sottos-plagiarism/; Robles, Raissa. “Did Sen. Sotto copy from 5 bloggers?” http://raissarobles.com/2012/08/16/did-sen-sotto-copy-from-4-bloggers/; Agapito, Kim Tyrone. “Sen. Sotto’s Turno en Contra Speech is 35% Duplicate of Google Translated Robert Kennedy’s Day of Affirmation Address” http://www.kimoftheworld.com/05/sen-sottos-turno-en-contra-speech-is-35-duplicate-of-google-translated-robert-kennedys-day-of-affirmation-address.html. Accessed 17 November 2012.

[3] “Sotto should be ‘man enough to apologize’, says US blogger” Philippine Daily Inquirer. http://newsinfo.inquirer.net/252326/sotto-should-be-man-enough-to-apologize-says-us-blogger; Macaraig, Ayee. “Sotto isn’t sorry, says chief of staff” Rappler. http://www.rappler.com/nation/10692-sotto-isn%E2%80%99t-sorry,-says-chief-of-staff; “Sotto’s staff admits plagiarizing blogger” Rappler. http://www.rappler.com/nation/10668-sotto-s-staff-admits-plagiarism; Chiu, Patricia Denise. “Sotto aide takes blame but denies plagiarism, says blogs meant to be shared” GMA News. http://www.gmanetwork.com/news/story/270179/news/nation/sotto-aide-takes-blame-but-denies-plagiarism-says-blogs-meant-to-be-shared; Dizon, David. “Sotto: Apology was to shut up US blogger” ABS-CBN News. http://rp3.abs-cbnnews.com/-depth/08/30/12/sotto-apology-was-shut-us-blogger; Chiu, Patricia Denise. “2nd US blogger accuses Sotto of copying; senator says they came from book” GMA News. http://www.gmanetwork.com/news/story/272928/news/nation/2nd-us-blogger-accuses-sotto-of-copying-senator-says-they-came-from-book; Syjuco, Miguel. “Something new to Sottocopy” Rappler. http://www.rappler.com/thought-leaders/15714-something-new-to-sottocopy%29. Accessed 17 November 2012.

[4] Macaraig, Ayee. “Sotto on apology call: Huh, for what?” Rappler. http://www.rappler.com/nation/15980-sotto-on-apology-call-huh,-for-what; Syjuco, Miguel. “Kennedy to Sotto: ‘This is a clear case of plagiarism'” Rappler. http://www.rappler.com/nation/15858-kennedy-to-sotto-this-is-a-clear-case-of-plagiarism; Ribaya, Rio Rose. “Sotto apologizes to Kennedy family” Yahoo News Philippines. http://ph.news.yahoo.com/sotto-apologizes-to-kennedy-family.html; Tan, Kimberly Jane. “Sotto apologizes to Kennedy family but denies plagiarizing speeches” GMA News. http://www.gmanetwork.com/news/story/282085/news/nation/sotto-apologizes-to-kennedy-family-but-denies-plagiarizing-speeches; Sanchez, Rowena Joy. “Why Kerry Kennedy Isn’t Satisfied With Sen. Sotto’s ‘Apology'” Manila Bulletin. http://www.mb.com.ph/articles/381671/why-kerry-kennedy-isnt-satisfied-with-sen-sottos-apology; Yamsuan, Cathy. “Now, Sotto hints JFK a plagiarist” Philippine Daily Inquirer. http://newsinfo.inquirer.net/308198/now-sotto-hints-jfk-a-plagiarist. Accessed 17 November 2012.

[5] Santos, Matikas. “Sotto faces ethics complaint over alleged plagiarism.” Philippine Daily Inquirer. http://newsinfo.inquirer.net/306506/sotto-faces-ethics-complaint-over-alleged-plagiarism; Tan, Kimberly Jane. “Professors, bloggers file ethics complaint vs Sotto” GMA News. http://www.gmanetwork.com/news/story/282040/news/nation/professors-bloggers-file-ethics-complaint-vs-sotto; Teodoro, Luis. “A problem like Sotto” BusinessWorld. http://www.bworldonline.com/content.php?section=Opinion&title=A-problem-like-Sotto&id=61508. Accessed 17 November 2012.

[6] Tan, Kimberly Jane. “Noted poll lawyer, group want Sotto ethics case dismissed” GMA News. http://www.gmanetwork.com/news/story/282212/news/nation/noted-poll-lawyer-group-want-sotto-ethics-case-dismissed; Chua, Ryan “Sotto supporters: Plagiarism rap a waste of time” ABS-CBN News. http://www.abs-cbnnews.com/nation/11/14/12/sotto-supporters-plagiarism-rap-waste-time; Malig, Jojo. “‘Defend Sotto in ethics hearing’ – bloggers et al” ABS-CBN News. http://www.abs-cbnnews.com/nation/11/14/12/defend-sotto-ethics-hearing-bloggers-et-al. Accessed 17 November 2012.

[7] Tan, Kimberly Jane. “Sotto, Enrile: Senators can’t be held liable for speeches in Senate” GMA News. http://www.gmanetwork.com/news/story/281969/news/nation/sotto-enrile-senators-can-t-be-held-liable-for-speeches-in-senate. Accessed 17 November 2012.

[8] Chua, Ryan. “Enrile: Senate does not condone plagiarism” ABS-CBN News. http://www.abs-cbnnews.com/nation/11/14/12/enrile-senate-does-not-condone-plagiarism; “Privilege Speech of Senate President Juan Ponce Enrile. Senate of the Philippines (15th Congress). http://www.senate.gov.ph/press_release/2012/1114_enrile1.asp. Accessed 17 November 2012.

[9] Privilege speech of Sen. Pia Cayetano, “Raising Awareness on Breast Cancer”. Senate of the Philippines (15th Congress) http://www.senate.gov.ph/press_release/2010/1012_cayetano1.asp. Accessed 23 November 2012.

[10] Sangalang, Elisa. “Pia Cayetano needs to learn proper attribution”. PinoyTemplars. http://pinoytemplars.blogspot.com/2012/08/pia-cayetano-needs-to-learn-proper.html. Accessed 23 November 2012.

[11] Tan, Kimberly Jane. “Pia Cayetano also faces ethics complaint for alleged plagiarism” GMA News. http://www.gmanetwork.com/news/story/283223/news/nation/pia-cayetano-also-faces-ethics-complaint-for-alleged-plagiarism; Santos, Matikas. “Ethics complaint filed vs Pia Cayetano for plagiarism” Philippine Daily Inquirer. http://newsinfo.inquirer.net/310773/ethics-complaint-filed-vs-pia-cayetano-for-plagiarism. Accessed 23 November 2012.

[12] Santos, Matikas. “Hearing on Sotto, Pia Cayetano’s plagiarism case to proceed as Senate finalizes rules”. Philippine Daily Inquirer. Hearing on Sotto, Pia Cayetano’s plagiarism case to proceed as Senate finalizes rules. Accessed 23 November 2012.

[13] Yamsuan, Cathy. “Alan Cayetano won’t sit in judgment of big sister”. Philippine Daily Inquirer. http://newsinfo.inquirer.net/311505/alan-cayetano-wont-sit-in-judgment-of-big-sister. Accessed 23 November 2012.

[14] Santos, Matikas. “Sotto: ‘How will I apologize for plagiarism when I never plagiarised?’” Philippine Daily Inquirer. http://newsinfo.inquirer.net/306588/sotto-how-will-i-apologize-for-plagiarism-when-i-never-plagiarised. Accessed 18 November 2012.

[15] In the matter of the charges of plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM 10-7-17-SC, 12 October 2010, En Banc, Per Curiam. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.htm; LawPhil. http://www.lawphil.net/judjuris/juri2010/oct2010/am_10-7-17-sc_2010.html

[16] In the matter of the charges of plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM 10-7-17-SC, 8 February 2011, Resolution En Banc, Per Curiam. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/2011/february2011/10-7-17-SC.htm; LawPhil. http://www.lawphil.net/judjuris/juri2011/feb2011/am_10-7-17-sc_2011.html.

[17] See Footnote 15.

[18] See Footnote 16.

[19] In Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court,” AM 10-10-4-SC, 19 October 2010, Resolution En Banc, Villarama Jr. [J]. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-10-4-SC.htm; LawPhil. http://www.lawphil.net/judjuris/juri2010/oct2010/am_10-10-4-sc_2010.html.

[20] In the Dissenting opinion of then Associate Justice Sereno (Dissenting Opinion of Justice Sereno, In the matter of the charges of plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM 10-7-17-SC, 12 October 2010, En Banc, Per Curiam. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm.) she said:

There are many ways by which plagiarism can be committed. [Gordon Harvey, Writing with Sources: A Guide for Harvard Students (Hackett Publishing Company, 2nd ed. [c] 2008).] For the purpose of this analysis, we used the standard reference book prescribed for Harvard University students, “Writing with Sources” by Gordon Harvey.

Harvey identifies four forms of plagiarism [Id. at 32.]: (a) uncited data or information; [Id. at 33.] (b) an uncited idea, whether a specific claim or general concept; [Id.] (c) an unquoted but verbatim phrase or passage; [Id. at 34.] and (d) an uncited structure or organizing strategy. [Id. at 32-35.] He then explains how each form or mode of plagiarism is committed. Plagiarism is committed in mode (a) by “plagiarizing information that is not common knowledge.” [Id. at 32.] Mode (b) is committed when “distinctive ideas are plagiarized,” “even though you present them in a different order and in different words, because they are uncited.” [Id. at 33.]

Even if there has been a prior citation, succeeding appropriations of an idea to make it appear as your own is plagiarism, because the “[previous] citation in [an earlier] passage is a deception.” Mode (c) is committed when “you … borrowed several distinctive phrases verbatim, without quotation marks…” Mode (d) is committed when, though the words and details are original, “(y)ou have, however, taken the structural framework or outline directly from the source passage … even though, again, your language differs from your source and your invented examples are original.” [Harvey, supra at 32.]

These forms of plagiarism can exist simultaneously in one and the same passage. There may be a complete failure to use quotation marks in one part of the sentence or paragraph while combining that part with phrases employing an uncited structure or organizing strategy. There may be patchwork plagiarizing committed by collating different works or excerpts from the same work without proper attribution. [Id. at 32.]

These acts of plagiarism can also be committed in footnotes in the same way and at the same degree of unacceptability as plagiarized passages in the body. This is especially frowned upon in footnotes that are discursive or “content” footnotes or endnotes. Harvey explains that a discursive footnote or endnote is “a note that includes comments, not just publication information . . . when you want to tell your reader something extra to the strict development of your argument, or incorporate extra information about sources.” [Id. at 26.]

In the same dissenting opinion, she further said that:

Plagiarism is an act that does not depend merely on the nature of the object, i.e. what is plagiarized, but also hinges on the process, i.e. what has been done to the object. The elements of this process are the act of copying the plagiarized work and the subsequent omission in failing to attribute the work to its author. [Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings L. J. 167, at 173] Plagiarism thus does not consist solely of using the work of others in one’s own work, but of the former in conjunction with the failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as one’s own. As the work is another’s and used without attribution, the plagiarist derives the benefit of use from the plagiarized work without expending the requisite effort for the same ─ at a cost (as in the concept of “opportunity cost”) to its author who could otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.

[21] See Footnote 16.

Justice Sereno’s Dissenting opinion (See Footnote 20) supplements the articulation of the Court:

In the academe, plagiarism is generally dealt with severely when found out; many universities have policies on plagiarism detailing the sanctions that may be imposed on students who are found to have plagiarized in their coursework and other academic requirements. These run the gamut from an automatic failing grade in the course for which the offending work was submitted, or in more egregious cases, outright expulsion from the university. Sanctions for plagiarism in the academe operate through “the denial of certification or recognition of achievement” [Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253, at 5.] to the extent of rescinding or denying degrees. In the case of law students who do manage to obtain their degrees, their admission to the bar may be hindered due to questions about their “character or fitness to practice law.” [In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865, as cited in Dursht, id. at 5 and note 92] Indeed, plagiarism, due to the severity of the penalties it may incur, is often identified with the punishment of “academic death.” [Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 College English 7 (Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403 (accessed on 02/05/2009, 17:56) 789] The academe justifies the harshness of the sanctions it imposes with the seriousness of the offense: plagiarism is seen not only to undermine the credibility and importance of scholarship, but also to deprive the rightful author of what is often one of the most valuable currencies in the academe: credit for intellectual achievement ─ an act of debasing the coinage, as it were. Thus the rules of many academic institutions sanctioning plagiarism as a violation of academic ethics and a serious offense often classed under the broader heading of “academic dishonesty.”

[22] See Footnote 16.

In Justice Sereno’s Dissenting opinion (See Footnote 20) in the 2010 Decision of In RE Justice del Castillo, she said:

If the question of plagiarism, then, turns on a failure of attribution, judicial plagiarism … “arises when judges author opinions that employ materials from copyrighted sources such as law journals or books, but neglect to give credit to the author.” [Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253, at 1.] Doing so effectively implies the staking of a claim on the copied work as the judge’s own. [Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook, (accessed on 10/12/2010).] Note that there is no requirement of extent of copying or a minimum number of instances of unattributed usage for an act to be considered a plagiarist act, nor is the intent to deceive or to copy without attribution a prerequisite of plagiarism. In Dursht’s exhaustive analysis of judicial plagiarism she cites the case of Newman v. Burgin [Newman v Burgin, 930 F.2d 955 (1st Cir.) as cited in Dursht, supra at 4 and note 60.] wherein the court said that plagiarism may be done “through negligence or recklessness without intent to deceive.” [Newman v. Burgin, id. at 962 as cited in Dursht, id. at 4 and note 61.] Dursht in addition notes that intent may also be taken as the intent to claim authorship of the copied work, whether or not there was intent to deceive, citing Napolitano v. Trustees of Princeton Univ. [453 A.2d 279 (N.J. Super. Ct. Ch. Div. 1982) as cited in Dursht, supra at 1 and note 6.]

George describes the following among the types of judicial plagiarism:

Borrowed Text: When quoting a legal periodical, law review, treatise or other such source, the judicial writer must surround the borrowed text with quotation marks or use a block quote. . . . Additionally, the source should be referenced in the text . . .

Using another’s language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.

Reference errors: The judge may fail to put quotation marks around a clause, phrase or paragraph that is a direct quote from another’s writing even though he cites the author correctly. This is plagiarism even though it may be inadvertent. [George, supra at 715.]

While indeed the notion of having committed judicial plagiarism may be unsettling to contemplate, as it may raise in the mind of a judge the question of his or her own culpability [Id. at 707-708.], it is a grievous mistake to overlook the possibility of the commission of judicial plagiarism or the fact that judicial plagiarism is categorized by its very definition as a subset of plagiarism. That a judge, in lifting words from a source and failing to attribute said words to said source in the writing of a decision, committed specifically judicial plagiarism does not derogate from the nature of the act as a plagiarist act. Nor does any claim of inadvertence or lack of intent in the commission of a plagiarist act change the characterization of the act as plagiarism.

In the same dissenting opinion, (See Footnote 20) she further stated that:

The imposition of sanctions for acts of judicial plagiarism, however, is not as clear-cut. While George recognizes the lack of attribution as the fundamental mark of judicial plagiarism, she notes in the same breath that the act is “without legal sanction.” [Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook, at 715 (accessed on 10/12/2010).] Past instances of censure notwithstanding (as in examples of condemnation of plagiarism cited by Lebovits et al [Klinge v. Ithaca College, 634 N.Y.S.2d 1000 (Sup. Ct. 1995), Napolitano v. Trustees of Princeton Univ., 453 A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 The Georgetown Journal of Legal Ethics 264, note 190.], most particularly the censure of the actions of the judge who plagiarized a law-review article in Brennan [See In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1989) as cited in Lebovits, et al., supra at note 191.]; the admonition issued by the Canadian Federal Court of Appeal in the case of Apotex [Apotex Inc. v. Janssen-Ortho Inc., 2009, as cited in Emir Aly Crowne-Mohammed, 22 No. 4 Intell. Prop. & Tech. L.J. 15, 1.]) there is still no strictly prevailing consensus regarding the need or obligation to impose sanctions on judges who have committed acts of judicial plagiarism. This may be due in a large part to the absence of expectations of originality in the decisions penned by judges, as courts are required to “consider and usually . . . follow precedent.” [Richard A. Posner, The Little Book of Plagiarism, 22 (2007), and Terri LeClercq, Failure to Teach: Due Process and Law School Plagiarism, 49 J. Legal Educ., 240 (1999), as cited in Carol M. Bast and Linda B. Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Cath. U.L. Rev. 777, note 85.] In so fulfilling her obligations, it may become imperative for the judge to use “the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute.” [See George, at 708] Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism “detracts directly from the legitimacy of the judge’s ruling and indirectly from the judiciary’s legitimacy” [Lebovits, supra at 265.] or that it falls far short of the high ethical standards to which judges must adhere [See generally Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253, at 1.; and Lebovits, supra.]. The lack of definitiveness in sanctions for judicial plagiarism may also be due to the reluctance of judges themselves to confront the issue of plagiarism in the context of judicial writing; the apprehension caused by “feelings of guilt” being due to “the possibility that plagiarism has unknowingly or intentionally been committed” and a “traditional” hesitance to consider plagiarism as “being applicable to judicial writings.” [See George, at 707]

[23] See Footnote 16.

[24] See Footnote 16.

Justice Sereno, in her Dissenting opinion (See Footnote 20) in the 2010 Decision of In RE Justice del Castillo, said:

Findings of judicial plagiarism do not necessarily carry with them the imposition of sanctions, nor do they present unequivocal demands for rehearing or the reversal of rulings. In Liggett Group, Inc., et al v Harold M. Engle, M.D. et al [Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003), as cited in Bast and Samuels, supra at note 102.], a U.S. tobacco class action suit, “[the] plaintiffs’ counsel filed a motion for rehearing alleging that the appellate opinion copied large portions of the defendants’ briefs. . . . without attribution.” The result of this, the plaintiffs claimed, was the creation of the “appearance of impropriety,” the abdication of judicative duties, the relinquishing of independence to defendants, the failure to maintain impartiality, and therefore, as an act of judicial plagiarism, was “a misrepresentation of the facts found by the trial court and denied plaintiffs due process of law.” [Id.] The three-judge panel denied the motion. In addition, “courts generally have been reluctant to reverse for the verbatim adoption of prepared findings.” [Counihan v. Allstate Ins. Co., 194 F.3d at 363, as cited in Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the Trends, 32 Hofstra Law Rev. 1135, note 154.] In Anderson v. City of Bessemer City, North Carolina [Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985) as cited in Miner, id.] it was held that even though the trial judge’s findings of fact may have been adopted verbatim from the prevailing party, the findings “may be reversed only if clearly erroneous.” [United States v. El Paso Natural Gas Co., p. 656, and United States v. Marine Bancorporation, p. 615, as cited in George, at 719]

[25] Vitug, Marites. “Plagiarism is a big deal” Rappler. http://www.rappler.com/thought-leaders/16148-plagiarism-is-a-big-deal. Accessed 17 November 2012.

[26] Greenberg, David. “Friends, Romans, Countrymen, Lend Me Your Speech.” The New York Times. http://www.nytimes.com/2008/02/24/weekinreview/24greenberg.html. Accessed 17 November 2012.

[27] De Leon, Job. “I was “Sottocopied” by the Manila Bulletin”. http://ffasterthansharks.wordpress.com/2012/11/15/i-was-sottocopied-by-the-manila-bulletin/ Accessed 17 November 2012.

[28] The Dissenting Opinion of Chief Justice Davide Jr., Habana vs. Robles, GR 131522, 19 July 1999, First Division, Pardo [J]. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/1999/jul99/131522_jdavide.htm, provided:

A copyright may be accurately defined as the right granted by statute to the proprietor of an intellectual production to its exclusive use and enjoyment to the extent specified in the statute. [Dissenting opinion of then Chief Justice Hilario Davide Jr. in Habana vs. Robles, GR 131522, 19 July 1999, First Division, Pardo [J]; citing 18 CJS Copyright and Literary Property §1]

[29] Habana vs. Robles, GR 131522, 19 July 1999, First Division, Pardo [J]. Philippine Supreme Court. http://sc.judiciary.gov.ph/jurisprudence/1999/jul99/131522.htm; LawPhil. http://www.lawphil.net/judjuris/juri1999/jul1999/gr_131522_1999.html.

Chief Justice Davide’s dissenting opinion (See Footnote 28) provided:

To constitute infringement, the usurper must have copied or appropriated the “original” work of an author or copyright proprietor; [See 18 AM JUR 2D §101 citing Weitzenkorn v. Lesser, 40 Cal 2d 778, 256 P2d 947 (1953). The test of originality is not whether the work was entirely new, but whether it was the result of independent effort or copying. 18 AM JUR 2D § 101 citing Sheldon v. Metro-Goldwyn Pictures Corp., (CA2 NY) 81 F2d 49, cert den 298 US 669, 80 L ed 1392, 56 S Ct 835 (1936); Golding v. R.K.O. Pictures, Inc., 35 Cal 2d 690, 221 P2d 95 (1950)] absent copying, there can be no infringement of copyright. [18 AM JUR 2D, §104 citing Mazer v. Stein, 347 US 218, 98 L ed 630, 74 S Ct 460, reh den 347 US 949, 98 L ed 1096, 74 S Ct 637 (1953)] In turn, a work is deemed by law an original if the author created it by his own skill, labor and judgment. [See Dorsey v. Old Surety L. Ins. Co., (CA 10) 98 F2d 872 (1938)] On its part, a copy is that which comes so near to the original so as to give to every person seeing it the idea created by the original. It has been held that the test of copyright infringement is whether an ordinary observer comparing the works can readily see that one has been copied from the other. [Abiva v. Weinberger (CA.), 62 OG 3784, 3787 (1964) citing 34 C.J.S. §34 and 17 U.S.C.A. §101; Lewis v. Kroger Co., 109 F. Supp.484 (1952)]

[30] Malum in se is “[a]n innately immoral act, regardless of whether it is forbidden by law.” It is “Latin for something “wrong in itself,” even in the absence of a law making it illegal. In criminal law, it describes acts that have traditionally been considered crimes, whether or not a specific written law made them crimes, because they violate the principles of civilized society.” “Malum in se”. Cornell University Law School Legal Information Institute. http://www.law.cornell.edu/wex/malum_in_se. Accessed 23 November 2012.

[31] Malum prohibitum is “Latin for “wrong due to being prohibited,” referring to acts made illegal by statute to benefit public welfare, not because they are inherently evil and obvious violations of society’s standards. Generally, they do not involve immediate injury or damage to others.” “Malum prohibitum”. Nolo’s Plain-English Law Dictionary. http://www.nolo.com/dictionary/malum-prohibitum-term.html. Accessed 23 November 2012.

[32] In People vs. Bayona, GR L-42288, 16 February 1935, En Banc, Vickers [J] — cited in various cases to distinguish intent in crimes malum prohibitum and malum in se — it was held:

The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. “Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. …” [U.S. vs. Go Chico, 14 Phil., 128.]

While it is true that, as a rule and on principles of abstract justice, men are not and should not be held criminally responsible for acts committed by them without guilty knowledge and criminal or at least evil intent [Bishop’s New Crim. Law, vol. I, sec. 286], the courts have always recognized the power of the legislature, on grounds of public policy and compelled by necessity, “the great master of things”, to forbid in a limited class of cases the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. [U.S. vs. Go Chico, 14 Phil., 128; U.S. vs. Ah Chong, 15 Phil., 488.] In such cases no judicial authority has the power to require, in the enforcement of the law, such knowledge or motive to be shown. [U.S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.]

People vs. Bayona, GR L-42288, 16 February 1935, En Banc, Vickers [J]. LawPhil. http://www.lawphil.net/judjuris/juri1935/feb1935/gr_l-42288_1935.html

[33] Section 9, Article VIII of the 1973 Constitution provided:

Section 9. A Member of the National Assembly shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions, and in going to and returning from the same; but the National Assembly shall surrender the Member involved to the custody of the law within twenty-four hours after its adjournment for a recess or its next session, otherwise such privilege shall cease upon its failure to do so. A Member shall not be questioned or held liable in any other place for any speech or debate in the Assembly or in any committee thereof.

[34] Section 15, Article VI of the 1935 Constitution provided:

Section 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of the Congress, and in going to and returning from the same; and for any speech or debate therein, they shall not be questioned in any other place.

[35] Osmeña vs. Pendatun, GR L-17144, 28 October 1960, En Banc, Bengzon [J]. LawPhil. http://www.lawphil.net/judjuris/juri1960/oct1960/gr_l-17144_1960.html.

[36] Ibid.

[37] Pobre vs. Defensor-Santiago, AC 7399, 25 August 2009, Third Division, Velasco Jr. [J]. Lawphil. http://www.lawphil.net/judjuris/juri2009/aug2009/ac_7399_2009.html

[38] Rule XL of the Senate Rules provides:

RULE XL
PRIVILEGE TO SPEAK ON MATTERS OF PUBLIC INTEREST

SEC. 110. After the consideration of the matters contained in the Calendar for Special Orders, a Senator may forthwith request for and avail of the privilege to speak for one (1) hour on any matter of public interest.

If more than one (1) Senator wish to avail of the same privilege, the Senator who first announced his intention shall be given priority.

The period of time allowed in this section may, upon motion of the Senator on the floor, be extended for such time as may be necessary for him to finish his speech unless a majority of all Senators vote against such extension.

Rules of the Senate. Senate of the Philippines. http://www.senate.gov.ph/about/rules.asp. Accessed 17 November 2012.

[39] Rule XXXIX of the Senate Rules provides:

RULE XXXIX
QUESTION OF PRIVILEGE

SEC. 107. Questions of privilege are those affecting the rights, privileges, reputation, conduct, decorum and dignity of the Senate or of its Members as well as the integrity of its proceedings.

SEC. 108. When there is no quorum or when the roll is being called, no question of privilege may be raised unless it relates to the procedure of ascertaining the existence of said quorum.

SEC. 109. Only the motion to adjourn shall have precedence over questions of privilege and privileged motions.

Rules of the Senate. Ibid.

[40] Jefferson, Thomas. “A Manual of Parliamentary Practice: For the use of the Senate of the United States.” Second Edition [1812]. http://www.constitution.org/tj/tj-mpp.htm;

“S. Doc. 101-28 – Riddick’s Senate Procedure: Precedents and Practices”. United States Government Printing Office. http://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/content-detail.html

Precedents of the U.S. House of Representatives: Hinds’ Precedents. Volumes (1) http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=GPO-HPREC-HINDS-V1 or http://www.gpo.gov/fdsys/pkg/GPO-HPREC-HINDS-V1/pdf/GPO-HPREC-HINDS-V1.pdf, (2) http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=GPO-HPREC-HINDS-V2 or http://www.gpo.gov/fdsys/pkg/GPO-HPREC-HINDS-V2/pdf/GPO-HPREC-HINDS-V2.pdf, (3) http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=GPO-HPREC-HINDS-V3 or http://www.gpo.gov/fdsys/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf, (4) http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=GPO-HPREC-HINDS-V4 or http://www.gpo.gov/fdsys/pkg/GPO-HPREC-HINDS-V4/pdf/GPO-HPREC-HINDS-V4.pdf, and (5) http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=GPO-HPREC-HINDS-V5 or http://www.gpo.gov/fdsys/pkg/GPO-HPREC-HINDS-V5/pdf/GPO-HPREC-HINDS-V5.pdf. United States Government Printing Office.

[41] See Footnote 37.

[34] Republic Act 6713. LawPhil. http://www.lawphil.net/statutes/repacts/ra1989/ra_6713_1989.html.

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