Legal Research and Thesis Writing

Atty. Johnny De Castro

TEKEP and the Bees

Definition of Legal Research

1.
2.

The finding and assembling of authorities that bear on a question of law

The field of study concerned with the effective marshalling of authorities that bear on a question of law
THE PHILIPPINE LEGAL SYSTEM

CHAPTER 1 HISTORICAL OVERVIEW

Introduction

Philippines is an archipelago of 7,107 islands

87 major dialects

English and Filipino are the official languages

English is the language of instruction in higher education

2010 census: functional literacy rate us 84.1%

Agriculture constitutes the largest single sector of the economy

78.8% total labor force

Philippine legal system: blend of customary usage, Roman (civil law), and Anglo-American (common law) systems

Legal System resulted from the immigration of Muslim Malays in the 14th century and the subsequent colonization
of the islands by Spain and the United States
Historical Background

Pre-Spanish Period: Pre-1521

Spanish Regime: 1521 - 1898

Philippine Republic of 1898

American Regime: 1898-1935

Commonwealth Era: 1935-1946

Japanese Occupation: 1941-1944

Period of the Republic: 1946-1972

Martial Law: 1972-1986

Continuation of the Republic

Pre-Spanish Period

Early Filipinos lived in numerous independent communities called barangays

Various native rules were customary and unwritten

Maragtas Code issued by Datu Sumakwel of Panay Island (1200-1212 A.D.)

Penal Code of Kalantiao (1433)

Customary laws: family relations, inheritance, divorce, usury, partnerships, loans, property rights, barter and sale,
and crime and punishment

Penal laws:
o distinguished between felonies and misdemeanors,
o Recognized a distinction between principal and accomplice in matters of criminal liability
o Idea of the existence of qualifying and mitigating circumstances
o Recidivism as an aggravating circumstance

Trial by ordeal - physical challenges where gods favor the winner

Spanish laws and codes were extended either expressly by royal decrees or by implication through the issuance of
special laws for the islands

Prominent laws
o Fuero Juzgo
o Fuero Real
o Las Siete Partidas
o Las Leyes de Toros
o Nueva Recopilacion de Las Leyes de Indias
o Navisima Recopilacion (15th century - 1805): comprised all the laws
At the end of Spanish Rule
o Codigo Penal de 1870 in 1187
o Ley Provisional para la Aplicaciones de las Disposiciones del Codigo Penal en las Islas Filipinas in 1888
o Code of Criminal Procedure of 1856
o Code of Civil Procedure of 1856
o Code of Commerce of 1886
o Marriage Law of 1870
o Mortage Law of 1861
o Mining Law of 1859
o Ley Notarial de 1862
o Railway Law of 1877
o Law of Foreigners for Ultramarine Provinces of 1870
o Code of Military Justice

The Philippine Republic of 1898

1872: Filipinos had revolted against Spain because of the abuses committed by the Spanish authorities and friars

The revolution spread rapidly

June 12, 1898: Independence of the Philippines was proclaimed by General Emilio Aguinaldo

September 15, 1898: Revolutionary Congress

January 20, 1899: Malolos Constitution - proclaimed popular sovereignty and enumerated the civil and political
rights of the individual

Republic exercised briefly through de facto authority

The American Era and the Commonwealth

December 10, 1898: Treaty of Paris

Government operated under different organic laws:

o President MacKinleys Instructions to the Second Philippine Commission on April 7, 1900
o Spooner Amendment of 1901
o Philippine Bill of 1902
o Jones Law of 1916
o Tydings-MacDuffie Law of 1934
o Commonwealth government was established for a transitional period of 10 years before independence
could be granted
o Granted the Filipinos a right to formulate their own Constitution
o February 8, 1935: A Constitution was approved
o March 23, 1935: US Pres Roosevelt signed the Constitution
o May 14, 1935: Ratified at a plebiscite
o Voters went to the polls to elect the first set of executive and legislative: Pres Quezon and VP Osmena
CASES: WHY WERE THEY ASSIGNED?
In re: Plagiarism of Mariano Del Castillo
Intellectual Property Law Copyright Plagiarism

On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas
Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned
the said decision. He raised, among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized
three books when the honorable Justice twisted the true intents of these books to support the assailed decision.
These books were:
o A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International
Law (2009);
o Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of
International Law (2006); and
o Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).

As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence.

Interestingly, even the three foreign authors mentioned above, stated that their works were used inappropriately by
Justice Del Castillo and that the assailed decision is different from what their works advocated.
ISSUE: Whether or not there is plagiarism in the case at bar.
HELD: No. Even if there is (as emphasized by the Supreme Court in its ruling on the Motion for Reconsideration filed by
Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial bodies.
No Plagiarism

According to Blacks Law Dictionary: Plagiarism is the deliberate and knowing presentation of another persons
original ideas or creative expressions as ones own.

This cannot be the case here because as proved by evidence, in the original drafts of the assailed decision, there
was attribution to the three authors but due to errors made by Justice del Castillos researcher, the attributions were
inadvertently deleted. There is therefore no intent by Justice del Castillo to take these foreign works as his own.

But in plagiarism, intent is immaterial.

On this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board of Regents vs CA, 313 SCRA
404), the Supreme Court never indicated that intent is not material in plagiarism.

To adopt a strict rule in applying plagiarism in all cases leaves no room for errors.

This would be very disadvantageous in cases, like this, where there are reasonable and logical explanations.

On the foreign authors claim that their works were used inappropriately

According to the Supreme Court, the passages lifted from their works were merely used as background facts in
establishing the state on international law at various stages of its development.

The Supreme Court went on to state that the foreign authors works can support conflicting theories.

The Supreme Court also stated that since the attributions to said authors were accidentally deleted, it is impossible
to conclude that Justice del Castillo twisted the advocacies that the works espouse.
No Misconduct
Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was no malice, fraud or corruption.
No Inexcusable Negligence

The error of Justice del Castillos researcher is not reflective of his gross negligence.

The researcher is a highly competent one.

The researcher earned scholarly degrees here and abroad from reputable educational institutions.

The researcher finished third in her class and 4th in the bar examinations.

Her error was merely due to the fact that the software she used, Microsoft Word, lacked features to apprise her that
certain important portions of her drafts are being deleted inadvertently.

Such error on her part cannot be said to be constitutive of gross negligence nor can it be said that Justice del
Castillo was grossly negligent when he assigned the case to her.

Further, assigning cases to researchers has been a long standing practice to assist justices in drafting decisions.

It must be emphasized though that prior to assignment, the justice has already spelled out his position to the
researcher and in every sense, the justice is in control in the writing of the draft.
Justice Maria Lourdes Sereno dissenting
There is such a thing as judicial plagiarism. And though judicial plagiarism does not necessarily carry with them the
imposition of sanctions nor does it mean that a case should undergo retrial based on it, the existence of which should be
acknowledged.
Legal Ethics Duty of Counsel To Cite Law/Jurisprudence Without Alteration

The Malaya Lolas received an adverse decision in the case Vinuya vs Romulo decided by the Supreme Court on
April 28, 2010.

The Malaya Lolas sought the annulment of said decision due to the alleged irregularity in the writing of the text of
the decision.

Allegedly, the ponente of said case, Justice Mariano del Castillo copied verbatim portions of the decision laid down
in said case from three works by three foreign authors without acknowledging said authors hence an overt act of
plagiarism which is highly reprehensible.

Plagiarism as defined by Blacks Law Dictionary is the deliberate and knowing presentation of another persons
original ideas or creative expressions as ones own.
ISSUE: Whether or not plagiarism is applicable to decisions promulgated by the Supreme Court.
HELD: No.

It has been a long standing practice in this jurisdiction not to cite or acknowledge the originators of passages and
views found in the Supreme Courts decisions.

These omissions are true for many of the decisions that have been penned and are being penned daily by
magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts
nationwide and with them, the municipal trial courts and other first level courts.

Never in the judiciarys more than 100 years of history has the lack of attribution been regarded and demeaned as
plagiarism.

As put by one author (this time acknowledged by the Court), Joyce C. George from her Judicial Opinion Writing
Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if
ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a
partys brief are used without giving attribution. Thus judges are free to use whatever sources they deem
appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings
intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the
purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of
legal plagiarism.

Further, as found by the Supreme Court, the omission of the acknowledgment by Justice del Castillo of the three
foreign authors arose from a clerical error.

It was shown before the Supreme Court that the researcher who finalized the draft written by Justice del Castillo
accidentally deleted the citations/acknowledgements; that in all, there is still an intent to acknowledge and not take
such passages as that of Justice del Castillos own.

UP Board of Regents VS Court of Appeals and AROKIASWAMY WILLIAM MARGARET CELINE

G.R. No. 134625. August 31, 1999
Facts:

Private respondent Ms. Arokiaswamy William Margaret Celine a citizen of India enrolled doctoral program in UP
CSSP Diliman QC.

She is ready for oral defense with selected panel members Drs. E. Arsenio Manuel, Serafin Quiason, Sri
Skandarajah, Noel Teodoro, and Isagani Medina, the last included as the deans representative.

Even though Dr. Medina noticed that there were portions of her dissertation that was lifted from different sources
without proper acknowledgement, she was still allowed to continue to with her oral defense.

Four (4) out five (5) give her a passing mark with condition to incorporate the suggestion made by the panel
members.

Dr. Medina did not sign the approval form.

Dr. Teodoro also noted that a revision should be submitted.

On March 24, 1993, The CSSP College Faculty Assembly approved her graduation pending the final revised copies
of her dissertation.

Private respondent submitted the supposedly final revised copies although petitioners maintained that suggestions
were not incorporated.

She left a copy for Dr. Teodoro and Dr. Medina and did not wait for their approval relying to the Dean Paz remarks
during previous meeting that a majority vote was sufficient for her to pass.
The supposedly revised copies were later disapproved by Dr. Teodoro and Dr. Medina.
Private respondent was disappointed with the administration.
She charged Dr. Diokno and Medina with maliciously working for the disapproval of her dissertation and further
warned Dean Paz against encouraging perfidious act against her.
Dean Paz attempts to exclude the private respondent in the graduating list in a letter addressed to the Vice
Chancellor for Academic Affairs (Dr. Milagros Ibe), pending for clarification of her charges against panel members
and accusations relating to her dissertation.
Unfortunately the letter did not reach on time and the respondent was allowed to graduate.
Dean Paz wrote a letter that she would not be granted an academic clearance unless she substantiated the
accusations.
In a letter addressed to Dean Paz, Dr. Medina formally charged private respondent with plagiarism and
recommended for the withdrawal of her doctorate degree
Dean Paz formed an ad-hoc committee (Ventura Committee) to investigate and recommend to Chancellor Dr.
Roman to withdraw her doctorate degree. Private respondent was informed of the charges in a letter.
Ventura Committee finds at 90 instances or portions of thesis lifted from other sources without proper
acknowledgement.
After it was unanimously approved and endorsed from the CSSP and Univ. Council the recommendation for
withdrawal was endorsed to Board of Regents who deferred its actions to study further for legal implications.
Private respondent was provided with a copy of findings and in return she also submitted her written explanation.
Another meeting was scheduled to discuss her answer.
Zafaralla Committee was also created and recommends private respondent for withdrawal of her degree after
establishing the facts the there were massive lifting from published sources and the private respondent also admits
herself of being guilty of plagiarism.
On the basis of the report and recommendation of the University Council, the Board of Regents send a letter to
inform private respondent that it was resolved by majority to withdraw your doctorates degree.
On August 10, 1995, private respondent then filed a petition for mandamus with a prayer for a writ of preliminary
mandatory injunction and damages to RTC QC.
She alleged that petitioners had unlawfully withdrawn her degree without justification and without affording her
procedural due process.
She prayed that petitioners be ordered to restore her degree and to pay her P500, 000.00 as moral and exemplary
damages and P1, 500,000.00 as compensation for lost earnings.
RTC dismissed for lack of merit. The Court of Appeals reversed the lower courts decision and ordered to restore
her doctorate degree.

Issue/s:
1.
Whether or not the Court of Appeals erred in granting the writ of mandamus and ordering petitioners to restore
doctoral degree.
2. Whether or not the court of appeals erred in holding that respondents doctoral degree cannot be recalled without
violating her right to enjoyment of intellectual property and to justice and equity.
Held/Ruling:
The decision of Court of Appeals was reversed.
1. Yes. The court of appeals decisions was based on grounds that the private respondent was denied of due process
and that she graduated and no longer in the ambit of disciplinary powers of UP.
In all investigations held by the different committee assigned to investigate the charges, the private respondent was
heard on her defense. In fact she was informed in writing about the charges and was provided with a copy from the
investigating committee. She was asked to submit her explanation which she forwarded. Private respondent also discussed
her case with the UP Chancellor and Zafaralla Committee during their meetings. She was given the opportunity to be heard
and explain her side but failed to refute the charges of plagiarism against her.
The freedom of a university does not terminate upon the "graduation" of a student, as the Court of Appeals held
because the "graduation" of such a student that is in question. The investigation began before graduation. She was able to
graduate because there were many investigations conducted before the Board finally decided that she should not have
been allowed to graduate.

2. Yes. The court held that academic freedom is guaranteed to institutions of higher learning by Art XIV of the 1987
Constitution. This freedom includes deciding whom a university will confer degrees on. If the degree is procured by error or
fraud then the Board of Regents, subject to due process being followed, may cancel that degree.
Art. XIV, Section 5 par. 2 of the Constitution provides that "academic freedom shall be enjoyed in all institutions of
higher learning."
It is a freedom granted to "institutions of higher learning" which is thus given "a wide sphere of authority certainly
extending to the choice of students." If such institution of higher learning can decide who can and who cannot study in it, it
certainly can also determine on whom it can confer the honor and distinction of being its graduates.
Digest (IRAC)
1.
2.
3.
4.

Issue: What is the question presented to the court?

Rule: Determine what the relevant rules of law are that the court uses to make its decision.
Application: What does the court consider to be a relevant fact given the rule of law? How does the court interpret
the rule?
Conclusion: What was the final outcome of the case?
Student Handbook on Plagiarism and Cheating

Policy Statement on Academic Honesty

A students academic requirements, such as assignments, term papers, computer programs/projects, and thesis
papers, should be his/her own work. He/she must distinguish between his/her own ideas and those of other
authors.

The student must cite references, direct quotes, and other sources following the prescribed format of the discipline
Major Offenses

Cheating in any form during an examination, test, or written reports including reaction papers, case analysis,
experiments or assignments required. The act of cheating includes plagiarism.

IPR and Copyright

Intellectual Property Rights

refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in
commerce.

Intellectual property (IP) is a blanket term that describes a number of distinct types of intangible assetscreations
of the mindto which one can claim exclusive rights.

Since there are several forms of intellectual property, it is easy to confuse them.

However, the main forms of IP: patents, copyrights, trademarks and trade secrets have very different legal
implications.
Copyright

A copyright grants the right to copy a work of intellectual property.

It also assigns credit for the IP.

Though copyrights were originally conceived as a way for the government to restrict printing, they have since
become a means of protecting authors rights to profit from their creative endeavors.

In addition to written works, copyrights can be assigned to other forms of IP including songs, films and works of art.

Copyrights are issued for a finite amount of time, usually between 50 and 100 years from the time of the authors
death.

Some of the exclusive rights that a copyright affords an author include the right to display the work publicly, transmit
or display the work by radio or video, to produce and sell copies of the work and create derivative works for the
original.
Question of Fact v. Question of Law

Section 1, Rule 45 of the Rules of Court

The petition filed shall raise only questions of law, which must be distinctly set forth

A question of law arises when there is doubt as to what the law is on a certain state of facts

Question of fact when the doubt arises as to the truth or falsity of the alleged facts.

For a question to be one of law, the same must not involve an examination of the probative value of the evidence
presented by the litigants or any of them.

The resolution of the issue must rest solely on what the law provides on the given set of circumstances.

Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.
A question of fact is a question as to what "happened" in a given legal matter:

Was the defendant present at the scene of the crime?

Were the fingerprints lifted from the weapon untainted and belonged to the defendant?

Did the defendant act in response to a reasonable belief that their life was in danger by the victim of the
crime?

Did the signature on the contract match the plaintiff's other signatures?
A question of law is generally more of a procedural question:

Are there sufficient facts alleged by the plaintiff to support their case?

Were the defendant's Constitutional rights violated when the police searched his house without a warrant?

Is the copy of the contract that the defendants want to admit an authentic copy of the contract?

Is the witness that the plaintiff wants to present actually an expert in their field?

Reclusion Perpetua in its original sense v. RP downgraded from death penalty

SC circulars on RP w/o parole
Indeterminate Sentence Law
REVISED RULES AND REGULATIONS OF THE BOARD OF PARDONS AND PAROLE
A.M. No. 15-08-02-SC
Philippine Manual on Legal Citation
1. PH Supreme Court Decisions
1. Officially published Philippine Reports volume Phil. page (year)
- Diaz v. Estrera, 78 Phil. 637 (1947)
2. Official Gazette GR. No. __, date promulgated, volume OG page (month & year of issue)
- Espiritu v. Rivera, G.R. No. 17092, September 30, 1963, 62 OG 722 (Oct. 1966)
2.

Constitution CONST, (1935), art. III, sec. 1, par. (3) 1935 constitution no longer in force
CONST, art. VII
1. Foreign Constitution indicate country in abbreviated form before constitution
- U.S. CONST., art VII, sec. 1

3.

Statutes
a. Public Laws (e.g. RPC) Act No. __ (year of effectivity) OR volume PUBLIC LAWS page
- Act No. 1160 (1904), art 3
b. Commonwealth Acts Com. Act No. __ (year of effectivity) OR volume PUBLIC LAWS COM. page
- Com. Act No. 53 (1936), sec. 2 (b)
c. PDs Pres. Decree No. __ (year of effectivity) PLUS volume VITAL DOCS. page (if available)
- Pres. Decree No. 603 (1975)
d. BPs Batas Blg. __ (year of effectivity) PLUS volume ACTS & RES. page (if available)
- Batas Blg. 80 (1981), 1980-81 ACTS & RES. 1-30
e. EOs Exec. Order No. __ (year)
- Exec. Order No. 329 (1950)
f. RAs Rep. Act No. __ (year of effectivity), PLUS volume LAWS & RES. page

g.

- Rep. Act No. 1792 (1957), sec. 4

Treaties name of agreement, exact date of signature by the PH (effectivity date), source of the text of
the treaty
** change between Ph and xxxx to with
- Treaty of Friendship with India, July 11, 1952 (1953), II-2 D.F.A.T.S 1, 2 P.T.S. 797, 203 U.N.T.S
73
** D.F.A.T.S. - Dept. of Foreign Affairs Treaty Series
** P.T.S. - Philippine Treaty Series
** L.N.T.S. - League of Nations Treaty Series
** U.N.T.S. - United Nations Treaty Series
** T.I.A.S. - Treaties and Other International Acts
** U.S.T. - United States Treaties and Other International Agreements

4.

Philippine Codes name of particular code, article number/section number (if any) without date
if the code is no longer in force, include date
- CIVIL CODE, art. 297
- CIVIL CODE (1889), art. 67
** check List of PH Codes in p. 16 of citation photox

5.

Bills, Resolutions and Committee Reports

a. Senate
- S. No. 5, 6th Cong., 1st Sess. (1966)
- S. Res. 1, 4th Cong., 1st Sess. (1958)
b.

c.

HOR
- H. No. 15085, 5th Cong., 4th Sess. (1965)
- H. Res. 2, 6th Cong., 3rd Sess. (1966)
Committee Reports
- Comm. On National Defense and Security, H. Rpt. 28, 5th Cong., 1st Sess. (1962)

6.

Books volume, author (first,last), title, page, section or parag., edition, (date)
a. 1 author
- MANUEL MORAN, COMMENTS ON THE RULES OF COURT 195, 6th ed., (1963)
b. 2 authors
- JOSE Y. FERIA & MARIA CONCEPCION S. NOCHE, CIVIL PROCEDURE ANNOTATED 158
(2001)
a. 2 or more authors
- CHRISTIAN L. KUNZ, ET AL. THE PROCESS OF LEGAL RESEARCH, SUCCESSFUL
STRATEGIES, 129, 2nd ed. (1989)
b. Printed works of general circulation - small caps, always cite the number of the volume in arabic
c. Unofficial reports of cases - small letters
- Dee Ping Wee v. Lee Hiong Wee, G.R. No. 169345, Augist 25, 2010, 629 SCRA 145 (2010)
**Unofficial Philippine Reports: SCRA, SCAD, CARA, SCD, P.R.A., PHIL. DEC.

7.

Essays and Articles name (first, last), title of book, title of essay or article in italics, (date)
- JOSE P. LAUREL, The Crisis of Our Constitutional System, IN BREAD AND FREEDOM 25 (1953)

8.

Periodical Articles / Law Journals Author, title of artice, (notes or comments), volume, Law Journal Name, page
(year of publication)
- Victor Africa, Liability of Estafa for Breach of Trusts Receipts (Comment), 43 Phil. L. J. 567 (1968)
a. Philippine Law Journal
b. Ateneo Law Journal
c. IBP Law Journal

d. US Law Journals
9.

Newspaper
a. Editorials
b. Unsigned articles Title, newspaper, date, at page
- U.N. Weights In a Birth Control Debate, MANILA TIMES, August 6, 2012, at A 1-2
c. Signed articles Author, title, newspaper, date, at page
- Paolo Romero, House Leaders to Ensure Quorum During RH Vote, PHILIPPINE STAR, August 1, 2012,
at 5

10. Letters, Speeches and Interviews speaker, occasion, place, date

11. Internet Sources author, title, date and time, available at URL
** if no date, include (last visited dd Month yyyy)