Dr. Christian Tams, a professor of international law at the University of Glasgow and one of the three scholars whose work was plagiarized by Supreme Court Justice Mariano del Castillo, has written the following commentary at the European Journal of International Law.
Philippine Supreme Court Silencing Dissent?
Author: Christian Tams Filed under: EJIL Analysis
Tuesday, Nov 9,2010
Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?
What it’s about
The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.
On the basis of this alleged “judicial plagiarism” and “misrepresentation,” the plaintiffs filed a motion for reconsideration. Members of the University of the Philippines College of Law (none of them acting as counsel in Isabelita Vinuya et al.) submitted a rather strongly-worded statement, which noted the complaints of plagiarism of the authors, requested the Court to provide guidance to the bench and bar, and called on the reporting judge to resign his office – “the UP Statement”].
On 15 October, the Supreme Court – against the dissent of two members – denied the plagiarism charge, finding that there either had been no unauthorised lifting of passages (in my case) or that unauthorised lifting had been by mistake (in the case of Ellis and Fox-Decent/Criddle) [see here for the majority opinion, and here for the dissent).
Four days later, on 19 October, this was followed by a seven-page order, in which a majority of the Court declared the signatories of the “UP statement” to be in contempt, until they could show sufficient cause for their conduct (“the disciplinary order”). This exposes them to disciplinary action including loss of rights to practise. It is this last aspect, rather than the strange dispute about plagiarism or the Supreme Court’s curious handling of it, that should make us think.
Why should we care?
Up until 18 October, this seemed a strange story, but not really worth our time. So, to give but one example, while I thought the Supreme Court “plagiarism whitewash” to be rather unconvincing, I did not for a moment consider wasting any more energy on it. Also, without being an expert on Philippine constitutional law, I should say that from the perspective of international law, I have sympathy for judgments cautiously interpreting the concept of diplomatic protection, and refusing to read it to impose upon governments specific instructions on how to pursue foreign policy.
But the disciplinary order of 19 October changes matters decisively. This, it seems to me, is really a dangerous step. Of course, courts must be able to impose disciplinary standards. And it may even be that in this case, the statement calling on the judge to resign went a step too far. However, this transgression (if any) pales in comparison to the disciplinary order threatening sanctions against the UP academics. Not only are the sanctions potentially far-reaching. The order also seems to be more than a usual “show cause order” that could be easily rebutted: it contains specific findings of fact and enumerates particular violations of the Code of Professional Responsibility, which, it seems, the majority of the Court considers to be violated. No wonder, then, that the dissenting judges criticised it as having prejudged the eventual outcome.
And this, of course, raises fundamental issues concerning the respective roles of courts and their critics. Evan Criddle and Evan Fox-Decent have made the point very clearly on Opinio Juris, and I fully agree with them 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”.
However, there is more to it than what courts should do, and whether they should be able to live with criticism. The role of lawyers is also protected by international human rights obligations incumbent on the Philippines, notably international fair trial guarantees. Art 14 CCPR eg might come into play, especially if read in the light of the UN’s Basic Principles on the Role of Lawyers, which recognise the right of lawyers to express their opinions on matters of law and the administration of justice. While none of these rights is absolute, they are important and should be taken seriously, especially by courts – after all, their status is equally dependent on guarantees of the judicial process. So it is right that commentators from within the Philippines and abroad – have voiced their concern.
Looked at from a distance, the whole episode seems to have spiralled quite out of control. The ingredients were of course there from the beginning: an emotionally-charged case; accusations involving matters of professional honour; and all this within a deeply-divided society whose divisions are mirrored in the make-up of bar & bench. Having received, over the last months, dozens of letters, interview requests, official statements and petitions, I would think that neither side in this whole escalation has excelled in moderation or pulled punches. However, even in on-going processes of conflict escalation, some steps are more dangerous than others, and it seems to me that the disciplinary order of 19 October marks such a dangerous step. So far, it has prompted the usual (and to be expected) responses: petitions; further incriminations; angry debates in online fora. All this is unlikely to allow protagonists the breathing space which they will need to come to their senses and realize that this whole escalation, in the long run, will leave all sides tarnished: the UP academics just as the country’s highest court. One can only hope that Philippine lawyers – coming, after all, from a country with a great legal tradition – will be able to show the self-restraint and, perhaps, wisdom required to refrain from the pouring further oil into the flames. What is needed is some de-escalation, some conflict management. The Supreme Court might pave the way for such de-escalation by recalling the disciplinary order of 19 October.