Philippines: Supreme Court: Court makes fool of itself in sanctioning Law School that defended Comfort Women

I'm not going to talk legalese here, except as necessary.  I'm wr+ting to defend the defenders of the Comfort Women, ladies who were subjected to severe mental and physical immiseration by the Japanese army of occupation during Word War II, and then further exploited by the neglect of the re-established Philippines government over these several decades.

In 2004 the process of defence of the long-suffering women began at the University of Philippines, Law Faculty in Manila the country's capital.  The legal defence began with the formulation of the comfort women petition.  In 2006, Diane Desierto and Harry Roque published their analysis and theory of Comfort Women's Defence in the Journal of International Law of Peace and Armed Conflict the initial defence was well placed in this scholarly journal's pages becawz the contestation was pointed at the responsibility of the Philippines govt (Executive Branch) to address the Japan govt in regard to wart+m transgressions of the latter country.   You can read this very long file for its most relevant pages (91-98).  On April 28,2k10 the Philippines Supreme Court created a terrible day of infamy for itself by issuing its decision in response to the petition and the notification regarding the petition in the scholarly journal where international human r+ts is among its chief concerns, a notification resulting in a level of publicity and scrutiny that the Court coudn't bear.

In a careful law strategy the UP Law Faculty advocates had petitioned on behalf of the "surviving World War II 'comfort women' who were seeking an apology and remuneration from Japan, by asking the Supreme Court of the Philippines  to compel the Executive Branch to ensure them their r+ts to redress" from Japan. [Owlbirdbet Crossover spellings will sometimes intrude, even into quotes and titles.]

I will refer to the Supreme Court of the Philippines as SCP.  The April 2k10 decision of SCP was written for the Court by its Justice Mariano del Castillo, and that horrible refusal of the petition protected the Executive Branch of the Philippines government in its inaction and mercilessness.  It didn't have to bother diplomatically, or in an International Court of Justice, the Japanese government to redress the pain and suffering of the Comfort Women during Japan's WWII occupation of the Philippines.  We must not lose attention to and care for the women who were victims, as much as any combat soldier f+ting under the Philippines military or General MacArthur when he landed in the Islands to dr+v out the occupiers.  But, you know, women don't count, especially when stained by the nature of their exploitation.

-- Lawt

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With the Del Castillo denial of petition, the case did not die.  July20,2k10 Prof Harry Roque and Attorney Romel Bagares in conjunction with now-Attorney Diane Desierto (who initiated the whole chain of events of concern for the women in 2k04), prepared a Supplemental Motion for Reconsideration of the Del Castillo denial.  This was the crux of furore that went into h+ gear when the Supplemental insisted that portions of the Del Castillo denial of petition were 'lifted without attribution from the works of International Law authors and publications."  Here I have to quote the specifics of the allegation of plagiarism by the wr+ter of the denial, the refusal of care for the raped women, Justice Del Castillo.  Here are the international scholars whose works were violated (another form of rape) by the errant Del Castillo (hereafter DC):

1. Prof. Evan Criddle & Prof. Evan Fox-Decent’s 2009 article in the Yale Journal of International Law, “A Fiduciary Theory of Jus Cogens;” 

2. the book of Dr. Christian Tams, Enforcing Erga Omnes Obligations in International Law, published by Cambridge University Press; and 

3. an article by Mark Ellis, Executive Director of the International Bar Association, in the 2006 volume of Case Western Journal of International Law, “Breaking the Silence: On Rape as an International Crime."


Moreover, it was alleged in the Supplemental MR that not only was there no attribution to these sources but also that the Vinuya Decision completely twisted what the authors said in their works.

The international-scholars were, well, insulted at the curious way whereby DC used and abused the scholars' published and copyr+ted work.  As the Filipino/a press got word of the pique of the internationals, the SCP backlash became severe in its self-protection -- hardness of heart, to use a biblical phrase.

By Aug9,2k10, the ent+r UP Law Faculty Manila, headed by its dean, Marvic Leonen, "expressed alarm at how the works [of the international-law scholars] were misused to deny a key petition of comfort women survivors, & asked ... Justice Mariano del Castillo to voluntarily res+gn from the Court."   So, the Comfort Women case had become a contempt case and now it became a plargiarism case.

SCP dismissed the plagiarism charges, by a ten-member majority.  DC was exonerated, but the exoneration by his colleagues was achieved by the dodge that his clerk or court researcher accidentally deleted the Justice's attributions, and the MicroSoft Word software program they used was to blame.

But to the Goliath majority of 10 SCP justices there came a response from a Davida.  SC Associate Justice Lourdes Aranal-Sereno (whose first-name suggests to me she's a woman Justice) wrote a strongly-worded dissent, with SC Associate Justice Conchita Carpio-Morales in agreement with her.  Two women thru the twists and turns of the case, in the end, were qu+t m+ndful of the situation of the comfort women survivors.  I tend to read the whole legal labyrinth as an instance of male justice self-satisfied to erase the raped women.  Where are the Philippines (male) military veterans associations speaking up to defend the women?

The Davidas against the Goliath.  I quote Associate Justice Lourdes Aranal-Sereno's dissent:

Unless reconsidered, this Court would unfortunately be remembered as the Court that made 'malicious intent' an indispensable element of plagiarism and that made computer-keying errors an exculpatory fact in charges of plagiarism, without clarifying whether its ruling applies only to situations of judicial decision-making or to other written intellectual activity," said Sereno. "It will also weaken this Court’s disciplinary authority the essence of which proceeds from its moral authority over the bench and bar. In a real sense, this Court has rendered tenuous its ability to positively educate and influence the future of intellectual and academic discourse.

Soon, the international-law scholars began to respond, most notable were their remarks in Opinio Juris, a blog of experts and students in international law.  The key quote here is:

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.

 Stung, the SCP majority passed a resolution sanctioning the UP Law Faculty as a group.  The excuses of the SCP majority was as lame as a horse headed to the slawter house.  


The UP Law Faculty's dean welcomed the slam as an "opportunity ... to define freedom of expression & academic autonomy."  The reformational community of which this wr+ter is a part appreciates deeply this principle which it understands as an instance of societal-sphere sovereignty.  Law schools have the obligation not to be shovelled under by wayward court majorities, Supreme Courts especially.  Neither law faculty nor law courts shoud be injudicious in their relation to one another, it goes without saying.  But, it needs to be said in this instance.  Remember, the bottom l+n is the honour of national state institutions in looking to the needs for redress of suffering women who were raped (however much any one of them may have complied, as unreformed men tend to regard such instances), raped by an army of occupation.  It's clear the majority of SCP is complicit with the male-dominated Japanese govt, in disregarding, even discarding the raped women victims of its former militarism.  The finesse of the morally-requ+rd Philippines diplomatic effort, and perhaps international-court trial of its former enemy and successor to the wart+m occupiers, is surely a challenge to the presentday Filipino/a Executive Branch of govt.  No honourable PSC shoud protect that Executive Branch from the expeditious, long belated, fulfillment of its duties.   


Oct24,2k10:  Bruce Ackerman, Sterling Professor of Law & Political Science at Yale University, was reportedly said, “I can only hope that good sense prevails & leads to some sober second-thought from the Court majority. Otherwise, the continuing controversy will do serious damage to the Philippine’s standing in the world.”  If that damage occurs it won't be the fawlt of the University of the Philippines, Law Faculty.  Rather, it will be the cowardice of successive govts of the Phillipines and of this majority of Justices of PSC, two heroic women Justices who kept the comfort women's long-suffering distress at the forefront of their attention and concern.  


I think the Law Faculty of the University of the Philippines has been exemplary and courageous in pursuing justice for the comfort women, thru all twists and turns of international and national law.  Strength! and continued courage!  


Thanks to my sources, including Contempt Case against the UP Law Faculty (Hat Tip to Marnie Tonson), and most especially to Romel Regaldo Bagares, international law and UP Law School, attorney in the Philippines.  I have not included material from the most recent few weeks, but hope to blog further on this subject matter.


-- Lawt, law columnist for refWrite / refWr+t