MANILA, Philippines?The author of one of the foreign legal articles allegedly plagiarized by the Supreme Court in ruling against the demand for apology and reparation by Filipino women abused by Japanese soldiers during World War II has formally complained against the ?possible unauthorized use? of his work.

In an e-mail to the high court on July 23, Mark Ellis also complained that it ?may have misread? his article, ?Breaking the Silence on Rape as an International Crime? published in the Case Western Reserve Journal of International Law in 2006 to justify the tribunal?s position that the Filipino comfort women had no legal remedy to press their demand against the Japanese government.

Ellis is the executive director of the International Bar Association, which is composed of 198 national bar associations with 40,000 members worldwide.

Lawyers Harry Roque and Romel Bagares, who represented the 70 elderly Filipino women, raised the issue of plagiarism in the course of appealing the high court?s April 28 unanimous decision written by Associate Justice Mariano del Castillo.

They drew attention to how whole passages were lifted from three foreign sources without proper attribution.

The other sources were the article ?A Fiduciary Theory of Jus Cogens? written by Ivan Criddle and Evan Fox-Descent that came out last year in the Yale Journal of International Law, and the book ?Enforcing Erga Omnes Obligations in International Law? by Christian Tams published in 2005.

Question of integrity

Ellis told the Supreme Court that while he regretted raising the issue, ?I am compelled as a question of the integrity of my work as an academic and as an advocate of human rights and humanitarian law to take exception to the possible unauthorized use of my law review article on rape as an international crime in your esteemed Court?s judgment in the case of Vinuya et al. vs Executive Secretary et al.?

?In particular I am concerned about a large part of the extensive discussion in footnote 65 pp. 27-28 of the said judgment ... I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide and crimes against humanity,? he said.

Ellis asked the high court to ?take the time to carefully study the arguments? he made in his article, and said he looked forward to a response.

He said it was the Philippine chapter of the Southeast Asia Media Legal Defense Initiative, an affiliate of the London-based Media Legal Defense Initiative of which he is a trustee, that called his attention to the possible plagiarism.

Asked yesterday to comment, Supreme Court spokesperson Midas Marquez said Ellis? e-mail would be referred to the ethics committee especially formed to investigate the first allegation of plagiarism leveled at the entire tribunal.

The committee is chaired by Chief Justice Renato Corona, with Associate Justice Teresita Leonardo-de Castro as working vice chair and Associate Justices Roberto Abad, Jose Mendoza and Jose Perez as members.

The retired Supreme Court justice who will join the committee as an observer has yet to be named.

Resignation

Sen. Francis Pangilinan said nothing less than Del Castillo?s resignation was needed to spare the Supreme Court from further embarrassment.

?He should resign from the Supreme Court. If he fails to do so, he should be impeached,? Pangilinan, a lawyer, said in a phone interview.

Pangilinan was a longtime representative of the Senate in the Judicial and Bar Council, which screens nominees for the judiciary.

?If a law student can be expelled from school because of plagiarism, more so a Supreme Court justice,? he said.

Del Castillo had earlier tried to downplay the accusation of plagiarism, claiming it was a mere ?diversion? and belittling the three articles as ?only appendages, or at the very least [a] small contribution to the resolution of the issues.?

But Pangilinan contested Del Castillo?s defense, saying: ?This issue is not as Justice Del Castillo wants to put it??a diversion of attention from far more significant concerns.? That comment is totally unacceptable.

?It is a poor attempt at sweeping the dirt under the rug.?

Pangilinan said there was no recourse for Del Castillo but to step down.

?His resignation now will spare him, his family and the Court from further embarrassment and harm,? he said.

But former Senate Minority Leader Aquilino Pimentel Jr. did not deem it wise to force Del Castillo to step down.

?Perhaps an admonition, or suspension without pay, will suffice,? Pimentel, also a lawyer, said in a text message.

In his explanation to his colleagues, a copy of which was furnished reporters, Del Castillo made a sweeping denial of the accusation that there were plagiarized passages in his ponencia.

?No malicious intent?
?It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another?s work as our own,? he said.

Del Castillo downplayed plagiarism in general, quoting Section 184(k) of Republic Act No. 8293 or the Intellectual Property Code of the Philippines, which states that ?any use made of a work for the purpose of any judicial proceedings shall not constitute infringement of copyright.?

He also apologized to his colleagues for ?any inconvenience this matter has caused.? With a report from Michael Lim Ubac