Proclamation 75: Amnesty

If I were a rebel being offered amnesty, I may have to consider a perplexing choice. Should I admit guilt or plead innocence? It is generally believed now that jurisprudence requires one who wants to avail of amnesty to admit his guilt. Is that really the law and, if it is, does it admit of exceptions? My view, however, is that the need to admit guilt is not a firmly established rule.

The 1946 amnesty proclamation issued by President Roxas with the concurrence of Congress covered members of the guerilla forces who had committed crimes in the course of their guerilla activities. In the case of Barrioquinto v Fernandez the Court said: “There is no necessity for an accused to admit his responsibility for the commission of a criminal act before a court or Amnesty Commission may investigate and extend or not to him the benefits of amnesty. The fact that he pleads not guilty or that he has not committed the act with which he is charged, does not necessarily prove that he is not guilty thereof. Notwithstanding his denial, the evidence for the prosecution or complainant may show the contrary, as it is generally the case in criminal proceedings, and what should in such a case be determined is whether or not the offense committed is of political character. The plea of not having committed the offense made by an accused simply means that he can not be convicted of the offense charged because he is not guilty thereof, and, even if the evidence would show that he is, because he has committed it in furtherance of the resistance to the enemy or against persons aiding in the war efforts of the enemy, and not for purely political motives.”

For the Court in the case, therefore, what Penal Code offense the accused committed was not the important factor but rather whether the offense was committed “in furtherance of the resistance to the enemy or against persons aiding in the war efforts of the enemy, and for purely political motives.”

Even then, however, this view of the Court was not unanimously held. Justice Tuazon had dissented and in a later decision he wrote an obiter dictum thus: “The writer of this decision maintained in previous decisions, contrary to the view of the majority of the Court, that it is rank inconsistency for one to justify an act, or seek forgiveness for an act, which according to him, he has not committed; that amnesty presupposes the commission of a crime and that when an accused says he has not committed a crime he cannot have any use for amnesty; that where an amnesty proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such conditions; that a petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the pleader has to confess the allegations against him before he can be allowed to set out matters which, if true, would defeat the action.”

This was repeated in a later case, again obiter, which according to the opinion revealed an "almost unbelievable orgy of bloody executions, reminiscent of the French Revolution."

Finally, however, in Vera v. People, a 1963 decision, the need for admission of guilt seems to have been officially recognized as a prerequisite for availing of the benefit of amnesty. Should this be applied to the mutineers against the Arroyo administration?

The said Vera v. People case, however, does not seem to be sure of the sweeping applicability of the rule requiring admission of guilt. Immediately after affirming the rule, the Court said: “At any rate, the facts established before the Commission do not bring this case within the terms of Amnesty Proclamation No. 8. Note that said proclamation extends its provisions to ‘all persons who committed any act penalized under the Revised Penal Code in furtherance of the resistance to the enemy or against persons aiding in the war effort of the enemy.’ As found by the Commission, the killing of the deceased (Lozañes) was not in furtherance of the resistance movement, but was due to the rivalry between the Hunter's Guerrilla, to which he belonged, and the Vera's Guerrilla of petitioners.” In other words, the real reason for the denial of amnesty was not that the accused did not admit guilt but rather that the offense was not covered by the amnesty proclamation.

This brings us to the mutineers against the Arroyo administration. They do not seem to be accused of having committed any other crime than that of mutiny against Arroyo. It seems to me that in their case it would be pointless to ask them whether indeed they committed mutiny. They went through elaborate ceremonies which were meant to be symbolic of their noble goal. They seem to have considered their deed a patriotic feather in their cap and they will willingly assert that, yes, we did, even if we now regret having done it.

It seems to me therefore that the need to admit guilt should apply only when the offense alleged is something that can be done for motives that may have nothing to do with defeating a declared enemy. The admission enables the court to determine more easily whether the act is a proper object of amnesty.

29 November 2010

About Plagiarism

The plagiarism case against Justice Mariano del Castillo has become a cause célèbre and noble souls are accusing institutions or persons who have remained silent of being cowards or traitors to justice. Bully for you, heroic souls of this land of the brave! But let me say my bit about the issue without accusing anybody of being ignoble. Nor would I be speaking in behalf of anybody but myself. (In the atmosphere of independent minds in a university, it is difficult to formulate a position that can command the support of all.)

The Supreme Court has made the decision (still subject to reconsideration) that indeed there was copying and that there was no perfect and meticulous attribution to the author of copied materials. But the Court concluded that there was no reprehensible act. Why? “On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.”

Was the Court saying something new when it said, in the context of the plagiarism case, that only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action? In support of this statement the Court cited two earlier decisions involving lower court judges. Neither of them, however, was about plagiarism.

However, should intention be central to plagiarism? In a collection of essays entitled Copyright and Piracy: an Interdisciplinary Critique, (Cambridge University Press), an article entitled “Inspiration or infringement: the plagiarist in court,” the author makes this comparison between infringement of copyright and plagiarism: “. . . the question of intention is irrelevant to a charge of copyright infringement, but its role in relation to plagiarism is less clear. Copyright infringement, in its civil form, is a strict liability offense. . . . . In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to in criminal law as an ulterior intent, to claim the credit by passing the work as one’s own.”

But is intent always required? The author goes on to add: “While some institutional statements explicitly includes unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”

Outside the academic sphere! This perhaps should assuage the fear of those in the academic world that the Supreme Court’s definition of plagiarism in the case might be extended to the academe. As one Federal court decision put it: “Please note that, while not all academic infractions involve fraud, all are violations of the University's standards and will normally result in disciplinary penalties.”

I might also add another quotation from the article I cited above. “In her book Pragmatic Plagiarism, Marilyn Randall identifies plagiarism as a pragmatic, rather than a textual category, meaning it is principally determined by a wide-variety of extra-textual criteria that constitute the aesthetic., institutional and cultural contexts of production and reception of the work.”

For this reason, it seems to me that it should be no surprise if scholastic plagiarism should be treated differently from judicial plagiarism.

Where then does this leave us as far as the Supreme Court case is concerned? What will the final outcome be?

First, I do not think that the Court will change its mind about the centrality of intention in judicial plagiarism.

However, I would not be surprised, but would be pleased, should the Supreme Court clearly state that what has been said about judicial plagiarism is not meant to apply to the academic sphere. This hopefully would assuage the concern of people in the academe. They can continue to penalize both intentional and unintentional plagiarism.

Second, I do not see how the Court can avoid saying that there was copying both of “ideas” and of “expression.” The evidence of borrowing is just too obvious.

Third, will the Court maintain its original position that in the case of Justice del Castillo, copying notwithstanding, there was no malicious intent? As the Court already said, “The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.” Was this indispensable element present in what the Justice did?

The pleadings of both parties in this case will be making meticulous inquiry into whether the failure to make attribution or full attribution, (detailed in Justice Sereno’s dissent) or the manner or circumstances of the failure of attribution (described in the Per curiam opinion), amounted or not to intent to pass off what was copied as one’s own. I will await the Court’s final judgment.

22 November 2010

About Plagiarism

The plagiarism case against Justice Mariano del Castillo has become a cause célèbre and noble souls are accusing institutions or persons who have remained silent of being cowards or traitors to justice. Bully for you, heroic souls of this land of the brave! But let me say my bit about the issue without accusing anybody of being ignoble. Nor would I be speaking in behalf of anybody but myself. (In the atmosphere of independent minds in a university, it is difficult to formulate a position that can command the support of all.)

The Supreme Court has made the decision (still subject to reconsideration) that indeed there was copying and that there was no perfect and meticulous attribution to the author of copied materials. But the Court concluded that there was no reprehensible act. Why? “On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.”

Was the Court saying something new when it said, in the context of the plagiarism case, that only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action? In support of this statement the Court cited two earlier decisions involving lower court judges. Neither of them, however, was about plagiarism.

However, should intention be central to plagiarism? In a collection of essays entitled Copyright and Piracy: an Interdisciplinary Critique, (Cambridge University Press), an article entitled “Inspiration or infringement: the plagiarist in court,” the author makes this comparison between infringement of copyright and plagiarism: “. . . the question of intention is irrelevant to a charge of copyright infringement, but its role in relation to plagiarism is less clear. Copyright infringement, in its civil form, is a strict liability offense. . . . . In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to in criminal law as an ulterior intent, to claim the credit by passing the work as one’s own.”

But is intent always required? The author goes on to add: “While some institutional statements explicitly includes unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”

Outside the academic sphere! This perhaps should assuage the fear of those in the academic world that the Supreme Court’s definition of plagiarism in the case might be extended to the academe. As one Federal court decision put it: “Please note that, while not all academic infractions involve fraud, all are violations of the University's standards and will normally result in disciplinary penalties.”

I might also add another quotation from the article I cited above. “In her book Pragmatic Plagiarism, Marilyn Randall identifies plagiarism as a pragmatic, rather than a textual category, meaning it is principally determined by a wide-variety of extra-textual criteria that constitute the aesthetic., institutional and cultural contexts of production and reception of the work.”

For this reason, it seems to me that it should be no surprise if scholastic plagiarism should be treated differently from judicial plagiarism.

Where then does this leave us as far as the Supreme Court case is concerned? What will the final outcome be?

First, I do not think that the Court will change its mind about the centrality of intention in judicial plagiarism.

However, I would not be surprised, but would be pleased, should the Supreme Court clearly state that what has been said about judicial plagiarism is not meant to apply to the academic sphere. This hopefully would assuage the concern of people in the academe. They can continue to penalize both intentional and unintentional plagiarism.

Second, I do not see how the Court can avoid saying that there was copying both of “ideas” and of “expression.” The evidence of borrowing is just too obvious.

Third, will the Court maintain its original position that in the case of Justice del Castillo, copying notwithstanding, there was no malicious intent? As the Court already said, “The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.” Was this indispensable element present in what the Justice did?

The pleadings of both parties in this case will be making meticulous inquiry into whether the failure to make attribution or full attribution, (detailed in Justice Sereno’s dissent) or the manner or circumstances of the failure of attribution (described in the Per curiam opinion), amounted or not to intent to pass off what was copied as one’s own. I will await the Court’s final judgment.

22 November 2010

TheRH Talking Points

Not too long ago a group of us three Jesuits published what we proposed as talking points on the controversy about the RH Bill. Apparently the venture at initiating dialogue is succeeding. Let me comment on a number of points brought up by some respondents.

First, we hear it said that clearly medical science equates conception with fertilization. True, but other medical authorities speak of implantation as the beginning of pregnancy. Who is right?

For my part, I prefer not to enter into the debate among medical authorities. But let me say something about the Constitution. For me, the meaning of conception in the Constitution is fertilization. The drafters did not mean to make a scientific judgment. Rather, they thought that in the face of disagreement among experts in medical science, they would rather play it safe on the side of life. This, I believe, is also the moral teaching of John Paul II’s Evangelium Vitae: “. . . what is at stake is so important that, from the standpoint of moral obligation, the mere probability that a human person is involved [in the fertilized ovum] would suffice to justify an absolutely clear prohibition of any intervention aimed at killing a human embryo.”

Second, it has been said that sociological studies and medical studies attest to the damage caused by artificial contraception. However, it cannot be denied that the main opposition to artificial contraception is predominantly based on religious grounds. And the debate is going on within a pluralist state system. In this context, I hold that it is not legitimate for the state to impose on non-Catholics what is predominantly a Catholic rule of conduct.

Third, there have been two negative reactions to the “two track” proposal of the Talking Points. One says that the state would be funding contraception which is per se evil. But the view that it is per se evil is contradicted by non-Catholics who, as I noted above, may not be forced by the state to turn Catholic in their actions.

Another reaction, which I find more interesting although not novel, is that a two-track system would be funding a special concession to a small group for purely religious reasons. I guess the key phrase here is “for purely religious reasons.”

Clearly, the reasoning behind such position is that according to the Constitution public money may not be used for religious purposes. To start with, I would approach this objection by pointing out that there are two religion provisions in the Constitution: the non-establishment clause and the free exercise clause. The prohibition on the use of public money for religious purposes flows from the non-establishment clause.

The question I would ask is: In case of conflict between the non-establishment clause and the free-exercise clause, which should prevail? I have always taught that the non-establishment clause is in service of the free exercise clause. In other words, the state should not prefer one religion over others because history attests that such preference usually impairs the free exercise of religion of those who are not preferred. This is the reason, for instance, why, in spite of the non-establishment clause, the Constitution allows that public money be used for the salaries of chaplains in the military and leprosaria. The rule allows soldiers and lepers whose movements are limited to be able to practice their religion.

Incientally, while our Constitution has an explicit provision allowing salaries for military chaplains, the US Constitution does not. Nevertheless it allows salaries for military chaplains to insure the free exercise of religion.

I suggest that the expenses involved in the “two track approach” can be justified by the argument similar to the justification of salaries for military chaplains – free exercise of religion. The expense is not for promoting religion but for protecting the right of health workers to the free exercise of their religion while doing their civic duty.

Moreover, it is not true to say that any public expense that might benefit religion is always prohibited. There are allowable uses of public money that can have the effect of benefiting religion.

Early in Philippine history the government put out a postage stamp depicting a Eucharistic Congress of the Catholic church. This was challenged as an illegitimate use of public money. But the Court said that it was justified on the argument that whatever benefit the Catholic church might receive was only incidental to the secular goal of promoting knowledge about the Philippines. The incidental benefit to the church did not make the expenditure illegal.

Similarly, the grant of a large amount of money for the construction of a science laboratory in a Catholic school was allowed in spite of the fact that the grant freed the Catholic school’s other funds for religious use. The grant for the secular purpose of promoting science an incidental benefit to the religious mission of the school but was legal.

Along similar lines it can be said that the “two track” system will protect the freedom of religion of Catholic health workers even as they are required to promote the goals of the RH Bill. The benefit is directly for individuals and for the promotion of the goals of the law and only incidentally for the benefit of religion, if at all. (Although this might disappoint bishops and priests who are ready to become martyrs!)

15 November 2010

Amnesty

November is traditionally the month in which we remember our beloved dead. We naturally remember our beloved dead with a tinge of sadness but also with hope because we believe in the resurrection of the dead, the springtime of life. In the northern hemisphere autumn comes in November when the flowers and leaves begin to drop and the grass grows dry. Autumn augurs death. But there is also the expectation of springtime when life will burst again in the fields.

I thought, therefore, that this is also a good time to talk about amnesty through which the Constitution allows the President to remember in a special way those whom we might call the “living dead.” Amnesty gives new life.

The Constitution has armed the President with the power of executive clemency. The power granted is a tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice. The power therefore exists as an instrument for correcting these infirmities and for mitigating whatever harshness might be generated by a too strict application of the law. And in a flawed juridical system where decisions are long in coming and leave detainees languishing in prison, amnesty can shorten the deprivation of liberty. Besides, amnesty can also be used as a bargaining chip in efforts to unify various political forces.

Clemency is not a function of the judiciary; it is an executive function. Thus it is that Article 5 of the Revised Penal Code provides that whenever a strict application of the provisions of the law will result in undue harshness to the offender, the duty of the judge is to impose the proper penalty, however harsh it may be, but he is enjoined to recommend to the President the exercise of executive clemency.

The two principal clemency instruments are pardon and amnesty. There are important differences between the two. First, pardon can be granted only after final conviction. For this reason the Oakwood mutineers and others cannot be given pardon. Amnesty, however, may be granted before conviction or even before charges are filed. Second, pardon may be given for any kind of offense, whereas amnesty is generally granted for political offenses. Third, absolute pardon is effective even if not accepted and conditional pardon needs acceptance (because the condition of the pardon offered might be more onerous than the penalty itself.) On the other hand amnesty not only needs acceptance but also, according to current jurisprudence, the person accepting amnesty must admit guilt. Fourth, pardon is discretionary with the President whereas amnesty needs the concurrence of Congress. Fifth, pardon is usually given to individuals whereas amnesty is given to a class of offenders. Finally, pardon simply removes the penalty, whereas amnesty, like Baptism in relation to original sin, erases the offense itself. Thus, it can be granted even after conviction.

This last distinction, however, is not very precise. Jurisprudence also says "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense . . . it makes him, as it were, a new man, and gives him a new credit and capacity."

Early jurisprudence on pardon was received from Chief Justice Marshall who said: “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court . . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” Philippine jurisprudence has modified this. Here acceptance is required only in conditional pardon.

Amnesty also comes from American jurisprudence. Under American jurisprudence, the power to grant amnesty is considered merely an aspect of the pardoning power. "Pardon includes amnesty," was the American Court's ruling. Later, the Court added in another that the distinction between pardon and amnesty was "one rather of philological interest than of legal importance." As already pointed out, however, in Philippine law the distinction between pardon and amnesty is of legal importance because of the existing constitutional text. Under the Constitution, amnesty may be given only with the concurrence of a majority of all the members of Congress and pardon may be given only after final conviction.

When President Aquino made a proclamation extending amnesty to detained mutineers, it was said by some that the President was intruding into the jurisdiction of the court trying the mutineers. I do not see it that way. President and court have separate powers. The amnesty declaration does not prevent the court from proceeding to final judgment nor would conviction by the court prevent the effect of amnesty. At any rate, the judge in the mutiny cases has decided to defer has decision until the amnesty issue is settled.

8 November 2010