My Analysis on the Territorial Application of Criminal Law

The general practice of every country pertaining with the application of their penal [criminal] laws is always TERRITORIAL. As an international principle, the territorial application of penal laws is a standard which could be traced back to the ancient time in Rome, China, Babylon, Egypt, Persia, Greece, and other great civilizations.

The phrase “territorial application of penal law” means that the law of a state which defines crimes and punishments shall always be applied within its own territory. Meaning, a violation or infraction of the criminal law shall be punished in the territory where it was committed.

Illustration of the territorial application of criminal law:

              Joseph Smith [an American national] shot and killed Mao Tse-Tung [a Chinese citizen] while having a short speech in Tokyo, Japan.

              In this situation, the international standard on territorial application of criminal law requires that the culprit [Joseph Smith] should be criminally tried in the criminal tribunal of Tokyo, Japan  and not somewhere else because the felony [referring to the killing of Mao Tse-Tung] was committed in the place where the incident took place. This is the “Territorial Application of Criminal Law”; the criminal law of the territory will be applied when the crime is committed in the very same territory.

However, the international standard on territorial application of criminal law cannot always be applied in some peculiar instances. Indeed, there are situations in human events where a widely accepted principle does not apply.

Let us examine another illustrations:

ILLUSTRATION 1:          Vladimir Lenin [a Russian national] fired his automatic pistol in the boundary of Russia and Poland, Carol Wojtyla [a citizen of Poland] was hit by the slug that went off from Lenin’s pistol that caused Wojtyla’s instant death.

Can the territorial application of criminal law be applied in this case? If yes, where can Lenin be tried, in the place where he pulled the trigger[Russia]? or in the place where the death of the victim occur [Poland]?

This is a difficult situation of territorial application considering that Poland has no jurisdiction on the person who caused the death of their citizen; on the other hand, Russia could only charge the offender for violation of their fire-arms law [if there be any] and not for homicide considering that Russia does not have legal business on the death of a person located in Poland. The offender cannot also be tried for the crime of homicide both in Russia and Poland because it will result to a legal problem concerning with double jeopardy and absence of jurisdiction. I also do not consider it as a continuing crime because it is inherent in every bullet [slug] to travel from one place to another, and to note that one country has no jurisdiction to its neighboring country.  I believed that ”extradition” could not be applied  either because it is only applicable when a person escaped from the place where he committed a crime; in this incident, Lenin never escaped from Poland’s jurisdiction. We will leave it to wisdom of their courts. 

ILLUSTRATION 2:         Tony Blair [British] was on board of a private yatch owned by George Bush [American] with Fidel Castro [Cuban] bound for Australia from the Philippines. While in the ocean [high seas not under any territorial jurisdiction of any country], Blair and Castro had an argument over Clinton’s viagra. Thereby, due to his outrage, Castro stabbed Blair with his sharp dagger which caused his untimely death.

Under the international standard of territorial application of criminal law, a ship or an airship is considered as a territorial extension of the place where the ship or the airship was registered. In this hypothetical case, there is no mention of a registration of a private yatch owned by George Bush. When a private yatch is not registered [because its non-registration is not imposible], it can never be considered as an extension of a particular country. The place of departure cannot be said to have the jurisdiction of the case because the felony was committed outside its territorial boundary, neither could the place of destination assume jurisdiction because the act of stabbing and the death of Blair took place beyond its territorial limits. The host country only received the results of the crime [the dead body, the sharp dagger, the offender] and not a party to the crime itself, therefore, the receiving state cannot acquire sovereign jurisdiction between Blair and Castro. 

In this case, I believed that the problem on territorial application of criminal law could only be resolved under diplomatic resolution.

ILLUSTRATION 3:         Jacinto Alforque, a Spanish Ambassador to Pakistan, slapped Pervez Musharraf over an argument concerning with the question on whether a blind could run faster than a cripple. This is apparently a criminal case for injury, but Jacinto Alforque cannot be tried for any case in Pakistan court because of diplomatic immunity. Under the international law, territorial application of criminal law cannot be applied to those who represent a sovereign state. Meaning, ambassadors are immune from suit and there shall not be any case to be filed against him in the place where they commited the offense.

Under the international law, diplomatic officials could only be disciplined by the state who sent them to their diplmatic mission.  Since the municipal law requires that criminal offenders could only be tried in the place where the crime is committed, the ambassadors could not also be tried in the sending state for the crime he committed in the receiving state. The sending state cannot acquire jurisdiction over the criminal case of their ambassadors because of jurisdictional issues although it can administratively discipline their diplomatic officials, administrative liability may be determined from the degree of the diplomatic official’s misconduct while serving on a mission but it could never be treated as his criminal liability. The sending state cannot also impose criminal sanctions on the reason of territorial application of criminal law.

There are more than a thousand controversies affecting the territorial application of penal laws; all of these will just prove that the laws are not flawless after all.

THE FIRST CONSPIRACY: Hermeneutic Analysis

Paul Whelmer Alforque, Departamento de Filosofia, 1997, Camara de Pensador.

The Honorable Magistrates, before this dignified institution, I submit the structure of my thesis anchored on the third chapter in the book of Genesis, focused on the Fall of Man, which says:

Genesis 3

The Fall of Man

 1 Now the serpent was more crafty than any of the wild animals the LORD God had made. He said to the woman, “Did God really say, ‘You must not eat from any tree in the garden’?”

 2 The woman said to the serpent, “We may eat fruit from the trees in the garden, 3 but God did say, ‘You must not eat fruit from the tree that is in the middle of the garden, and you must not touch it, or you will die.’ “

 4 “You will not surely die,” the serpent said to the woman. 5 “For God knows that when you eat of it your eyes will be opened, and you will be like God, knowing good and evil.”

 6 When the woman saw that the fruit of the tree was good for food and pleasing to the eye, and also desirable for gaining wisdom, she took some and ate it. She also gave some to her husband, who was with her, and he ate it. 7 Then the eyes of both of them were opened, and they realized they were naked; so they sewed fig leaves together and made coverings for themselves.

 8 Then the man and his wife heard the sound of the LORD God as he was walking in the garden in the cool of the day, and they hid from the LORD God among the trees of the garden. 9 But the LORD God called to the man, “Where are you?”

 10 He answered, “I heard you in the garden, and I was afraid because I was naked; so I hid.”

 11 And he said, “Who told you that you were naked? Have you eaten from the tree that I commanded you not to eat from?”

 12 The man said, “The woman you put here with me—she gave me some fruit from the tree, and I ate it.”

 13 Then the LORD God said to the woman, “What is this you have done?”
      The woman said, “The serpent deceived me, and I ate.”

It is my stand, as could be inferred from the text, that the first great conspiracy took place in the Garden of Eden. I based this perspective on the following circumstances:

One, it is in the book of Genesis wherein Adam and Eve committed the first sin that engraved in human soul.

Two, the Garden of Eden was supposed to be a safe place designed by God for the prime pure human beings and their offsprings.

Three, the Garden of Eden is a paradise for Adam and Eve where God communicate directly to man.

Four, that God being the supreme being has absolute control over the paradise which is designed for the sinless being such as Adam and Eve.

Five, that Adam and Eve were totally innocent before they ate the fruit, having no knowledge of any foolishness nor of any sin of any kind.

Six, that the fruit of the tree of knowledge, when taken, shall give them the malice which capacitates them to discern what is right and what is wrong.

Seven, that prior to the taking of the fruit, Adam and Eve is essentially ignorant on the concept of good and evil, because their minds are supposed to be opened at the time they will be tempted to eat the fruit.

Based on these premises, Honorable Magistrates, I come to an honest yet logical perspectives, that:

One, God is not intending man to exercise their freedom because they have no freedom of choice between right and wrong considering their lack of knowledge on what is right and what is wrong. Adam and Eve were really destined to FALL because they cannot use their good judgment on the pretext of their innocence.

Two, the unfortunate fate of Adam and Eve was really God’s plan. God being the supreme being has an absolute control over the entire paradise, it is within his power to drive off and disperse the Serpent who made the temptation.

Three, with the preordained knowledge that the minds of Adam and Eve were NO MATCH to the shrewdness of the Serpent, yet God allowed the Serpent to occupy a particular place in the paradise and authorized it to communicate with Adam and Eve.

Four, by these virtue, it is my contention that the First Great Conspiracy in human history may have been taken place in the Garden of Eden; Adam and Eve being the victims of the whims and caprices of God and the Serpent, and God and the Serpent being the conspirators and partners of their game out of their own boredom.

HERMENEUTICS: The Salient Features

Formulated by Paul Whelmer Alforque

 

Definition

I defined hermeneutics as a philosophical instrument for interpretation, appreciation and evaluation of a literary intent, linguistic compositions and any written or verbal manifestations.

Applications

I maintained that there is no impediment in applying hermeneutics to both written and oral presentations. Meaning, hermeneutic analysis is not only applicable to a writing piece but also to a verbal discourse.

Interpretation – It refers to the method of understanding the contextual meaning of a written or verbal language.

Translation – It refers to the transportation of an intention from one language to another.

I.       The precedence of Interpretation over Translation.

         Error always follow from a direct translation. This means that one should first interpret before attempting to translate it. Interpretation comes before translation.

II.      The two aspects of Interpretation

          1. External Construction – Interpretation on the circumstances before and of the time of the writing.

          2. Internal Construction – Interpretation based on the letters and substance in the language of the writing.

III.    The properties of External Construction [interpretation on the outside factors]:

          1. Time and place of creation. [ex. the inquisition period, civil war, renaissance, etc]

          2. Social circumstances of the time and place of creation. [ex. views on gender, race, etc.]

          3. Participation of the creator on the events of circumstances.

          4. Mental and physical condition of the creator at the time of creation. [ex. depression, frustration, senility, insanity, etc.]

          5. Influences that affects the creator. [ex. political affiliations, religious stands, etc.]

          6. Purpose and intent of the creator.

          7. The peculiarities and level of intelligence of the creator.

For an efficient understanding of a literary piece, it is necessary to go back to the emotions, sensation of the time of the writing, social framework and other events that may have influenced the work. External construction should be made prior to or concurrent with the reading of the subject literature.

IV.    The properties of Internal Construction [interpretation based on the language used]

          1. Discernment on the kind of language used [ex. Old English, Latin, Greek, etc.]

          2. Usage of words, terms and language.

          3. Grammatical intent of the language.

          4. Equivalent meaning of a word or language in accordance with time and place.

          5. Ordinary and special interpretation of language.

          6. Etymology of a borrowed term.

          7. Substance and the logic of the language.

Internal construction is the interpretation according to the letters and linguistic usage of the subject literature. This stage does not anymore encroach other sources but the language as used in the subject literature.

V.      Three kinds of conflict:

          1. Conflict in concept

          2. Conflict in language

          3. Conflict in logic

The study of conflicts in hermeneutics is essential because it allows the scholar interpreter to examine the changes and variations of the mind of the writer/author of the subject literature. The study of conflicts may also suggest that some portions of the writing may have been made in some other time where the learnings of the writer improved, progressed or regressed. Conflicts may be caused by ignorance, negligence, or intellectual improvement.

VI.    Three branches of conflict in language

          1. Conflict per se [the same statement carries the conflict]

          2. Interior conflict [conflict with reference to the series of statements]

          3. Exterior conflict [conflict with reference to the other sources]

VII.   Two branches of conflict in logic

           1. Plain logical conflict

           2. Experimental logical conflict

VIII.  Two branches of conflict in concept

           1. Material-Conceptual conflict

           2. Rhetorical-Conceptual conflict

IX.     Basic rules and treatments of reconciliation of conflicts:

           1. Ordinary elimination of irrelevant matters

           2. Multiple comparison of conflicts for the consideration of the most pertinent matters

           3. Substitution of the nearest meaning and substance when conflict appeared to be irreconcilable

           4. Convention when substitution seems inappropriate

X.        Suggested guideline for interpretation

           1.  Ordinary usage must be interpreted ordinarily

           2. Usage is the best interpreter of language

           3. The context of the language may suggest its meaning

           4. The HERMENEUTIC OF ORIGIN may be resorted to when there is a literal or metaphorical ambiguity

           5. The HERMENEUTIC OF USAGE may only be employed when the entire literature speaks in clarity or when the literature is widely accepted.

XI. Two approaches of interpretation

           1. A Priori Interpretation – This refers to the interpretation before or during the time a literature is written.

           2. A Posteriori Interpretation – This refers to the interpretation at the time the text is read.

XII. Method of Comprehension of Written Text:

           1. Conceptual – The concept behind the term used

           2. Propositional – The meaning as to what the writer desired it to be understood

           3. Contextual – The meaning as could be gathered from its entire context.

           4. Pragmatic – The meaning as could be determined from its rational and practical sphere.