Copycat Court

When comparative constitutional law scholars talk about “borrowing” foreign jurisprudence, I don’t think they meant plagiarizing foreign sources.

The case in question, Isabelita Vinuya of Malaya Lolas Organization vs. Foreign Affairs Secretary Alberto Romulo, rejected the claims of 70 Filipino “comfort women”for reparations for sexual abuse suffered during World War II. The decision, written by Associate Justice Mariano del Castillo, found that prohibitions against sexual slavery and torture did not constitute jus cogens norms.

However, according to Philippine law professor Harry Roque, Justice del Castillo lifted parts of several American law review articles, particularly A Fiduciary Theory of Jus Cogens by Ivan Criddle and Evan Fox-Descent. Roque and others have filed a motion for a reconsideration of the case. For his part, according to his comments on the Opinio Juris blog (see the first comment), Prof. Criddle seemed most troubled that his article was cited in order imply that sexual slavery and torture do not fall under jus cogens.

The Supreme Court is forwarding the allegations to the new 6-justice ethics committee, created late in Chief Justice Puno’s term. This will be the first case before the committee regarding another justice’s conduct. As such, it could be an interesting test case to see whether the new committee has teeth and will clear up some of the problems discussed in Shadow of Doubt.

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