Ancient Legal Doctrines Involved in Negligence Cases: Comments and Simplified Explanation

I humbly presumed that it is widely understood that the lack of diligence is the essence of what is called “Negligence”, the term then signifies as the absence or the lacking of caution which an ordinary man of common sense should observe.

Thus, I defined “Negligence” as a failure of what a prudent man anticipates; a failure of apprehension on the reasonable consequence of an act; the failure in the anticipation of a natural result of an act or omission.

In negligence cases, there are so many corners of events from which an incident might be interpreted in accordance with the circumstances of time, place and some other situations. Almost all of the principles involved date back to the time of ancient civilizations, most of them were from Rome, that is still useful even to this day of our time. Only that not all of these doctrines were accessible to our direct understanding – meaning, these doctrines in generality are not easy to understand.  Hence, to explain them in the simpliest term is a necessity in this attempt. 

Before anything else, we will try to discover in the first place the two types of negligence; it is the negligence of doing [it means, to constitute a negligence, the actor must have done a negligent act] and the negligence of non-doing [it means, to constitute a negligence, the actor failed to observe some standards dictated by human reasoning. It is also called negligence of omission].

THE LAST CLEAR CHANCE DOCTRINE

The doctrine of last clear chance refers to the situation whereby a party who had the last opportunity to avoid or to escape the danger is considered to be negligent when he failed to evade from the impending harm.

Illustration: Mario Gitubol was properly driving his car in the proper lane; when he observed that a car in opposite direction was running in the same lane of the road, Mario Gitubol did not bother to take the other lane on the basis of his belief that he will be favored in the courts of law in case of collision case because he is driving his car in the proper lane. The two cars collided and the last clear chance is in him who had the opportunity to avoid the incident.

Comment: Mario Gitubol shall be considered negligent because the accident would not have occured had he avoided the car that was running in his lane. He had the last chance to avoid the mishap; the fact that he was running his vehicle in a right lane does not totally cleared him from being negligent. The doctrine of last clear chance appeared to be unfair for those who were prudent; In my opinion, the person who detects danger and failed to avoid it is not and never to be considered as prudent. In fact, it is the most reasonable doctrine since our mind dictates the avoidance of danger rather than asking the sympathy of the public that he was responsibly driving his vehicle in the proper lane.

DOCTRINE OF CONTRIBUTORY NEGLIGENCE

The doctrine of contributory negligence is also called “the shared responsibility rule” [It is only my view]. This refers to a situation where an unfortunate events [rhetorical term for accident] cannot exist if not by the voluntary act of the parties.

Illustration: Clarina participated in a bungee jumping adventure in Manipis Cliff. However, before the jumping adventure, the head of the team informed Clarina that the bungee jumping rope might not be capable of holding her because of her weight [probably 500 pounds]. Clarina suppressed the dissuasion of the team leader on her belief that the rope might even hold an elepant, hence jumped into deep height and vanished after the rope looses.

Comment: Clarina contributed to the negligence of the team leader. The negligence of the team master arises at his failure to prevent Clarina from participating, but Clarina also becomes negligent in her assertion to take part in the adventure considering the suggestion of the team master.

Purpose: The reason of knowing this doctrine is to minimize the liability of a party charged for negligence.

DOCTRINE OF VOLENTI NON FIT INJURIA

The doctrine is also known as “the assumption of risk rule”.  The latin “volenti non fit injuria”  suggests a concept about ”self inflicted injury”. This refers to the injury caused by the injured himself.

Illustration:  Kobe was a ticket collector of a train bound from Brisbane to Sydney, when he asked a certain Dingwall to present the ticket the man run away to the nearer window and jumped off from the running train which resulted to Dingwall’s untimely death.

Comment: The absence of a ticket, the fear Dingwall entertained in his mind, and the act of jumping from the train are all his fault. The train cannot be said negligent because the procedure of asking for a ticket is a transportation standard in all civilized place.

DOCTRINE OF DAMNUM ABSQUE INJURIA

Damnum Absque Injuria literally means “damage without legal injury”. This doctrine presupposed the existence of a damage, only that there is no law in the determination of the offender party. Meaning, there is damage but there is no injury on the reason that the cause is not a result of a negligent act.

Illustration 1: Connor was driving a truck together with all his classmates. The truck was suddenly struck by a lightning that caused it to bump at a place full of people.

Comment:  Connor cannot be said to be negligent because the cause is not his negligent act but a sudden distraction that stops the natural consciousness of every man at the time of the incident. There is no injury although there is damage because the term “injury” brings the concept as being the result of a deliberate or a negligent act.

Illustration 2: Constancio Gacalibang is a stateless person who was killed in Iraq while he was roaming around in the City of Baghdad. In International Law, a stateless person is considered as a person owned by nobody. Hence, Mr. Gacalibang’s death maybe a damage to his family but there is no legal injury against any state.

Comment:  The doctrine of damnum absque injuria is applicable to the case of Constancio Gacalibang because there is no state considered to be the injured party in case of death of a stateless person. In International Law, a state is not authorized to assert on the right of a person in another state when the person is not its citizen. This is because a state has no interest and has no standing in another territory for a person not its national. The status of stateless may be acquired by a person when he was born at a place who grants only citizenship by blood [jus sanguinis] and his parents were from the place who grants only citizenship by land of birth [jus solis].

Example of Statelessness:        X, an American citizen, gave birth to Y while having her vacation in Spain. Y is considered a stateless person because America does not grant citizenship to any child of its citizen when the child is born outside America [America adheres to Jus Solis], and Spain does not grant citizenship to any child unless born of both Spanish parents [Spain adheres to Jus Sanguinis].

DOCTRINE OF FORCE MAJEUR

Force majeur is referring to a “strong force” which a person has no control. Something which is beyond the control of man or anything under uncontrollable circumstance.

Illustration: Jose was sued for failure to deliver a masterplan to Meacham Corporation. The failure to deliver was due to the destruction of a bridge connecting one place to another which occurred many weeks before the obligation to comply takes place.

Comment: Jose is not liable for his failure because it was not caused by his negligence but by some circumstance beyond his will and capability. This is a situation where an ancient phrase could be applied – “NO ONE IS OBLIGED TO COMPLY AN IMPOSSIBLE DUTY”.

RESPONDEAT SUPERIOR

Respondeat superior is a delegated responsibility rule. It means that a negligent act of a person is deemed to be coming from the authority who commissioned the person’s work. It suggests that the act of a servant is considered to be an act of the master.

Illustration: A security guard of a Mansion owned by Mrs.Gikegwa shot an intruder after refusing to yield on a “stop order”. The security guard was charged of injury.

Comment: The act of a security guard is considered as the act of the owner who hired him because his function is hinged upon a contract to do or to perform an act of initiative to protect the person who hired him. Hence, his act is considered as an act with permission from authority. The owner should answer in behalf of the actions taken by the security guard.

PROXIMATE CAUSE RULE

This refers to the first cause of event. It refers to the adequate and efficient cause which naturally produce the logical result.

Illustration: A driver of a bus was hit by a solid object thrown by one passenger who had a fight with another passenger which resulted to the collision with another vehicle.

Comment:  The proximate cause of the incident is not the negligent act of the driver because the first cause of the event was coming from a passenger who threw a solid object that caused the distraction of the driver’s driving concentration which resulted to the collision with another vehicle.

With the hope that this contribution be of intellectual help to our evaluation and judgment on events pertaining with human imprudence. -Barrister79

COMMENTS ON THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Human Rights Law as stated in the Universal Declaration of Human Rights.

 

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Comment: This article does not totally negate inequalities - ”economic equality, civil equality, physical or mental equality, etc..” were not included in the language of Art.1;   Art.1 is a declarative language stating that “all human beings are born free and equal IN DIGNITY AND RIGHTS”. The term “human being” is used rather than “man”; the purpose of this is to erase the concept of gender classification.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Comment: The phrase “without distinction of any kind” in the first paragraph is only a legal semantic. I believed that an absolute absence of distinction is unattainable and impossible. There are either natural or artificial privileges granted to some persons and cannot be availed by others of which this declaration has no control.

The second paragraph speaks of an ASPIRATION in the mind of the creator of the UDHR. The subsequent lines itself in the second paragraph of Art.2 is already an implied recognition of the distinctions.

Article 3

Everyone has the right to life, liberty and security of person.

Comment: This article speaks of the right to exist and to define his/her existence in accordance with his/her freedom of movement. “Security of person” means that a person has a total discretion of his/her will, belongings, properties, and other things under his/her control; he/she shall not be guided by fears, threats and duress in alll of his/her determination.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Comment: Art.4 means that a person should not be forced to perform something; when an act is done involuntarily or outside the person’s will, then Art.4 is violated. This does not include an official function saddled with ministerial duties because the act of defiance to the superior authority is considered as insubordination, hence, a ground to dismiss him from the service. 

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Comment: Torture and cruelty is not limited only to physical harm, it includes mental [psychological] and spiritual cruelty. Spiritual cruelty does not necessarily mean “spirituality” as defined in religion.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Comment: A civil interdiction as a result of conviction declared by a court and/or the declaration of persona non grata made by a state against a person may be a violation of Art.6 of the UDHR.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Comment: This is a situation wherein the “law” is personified. It was almost forgotten in this article that the laws were administered and enforced by human beings capable of inventing rational or irrational distinctions, the same human beings that already perfected the art of making classifications.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Comment: This article is not making a standard for the determination on the competence of a national tribunal. When a person’s right is violated and no efffecient remedies in the court, the person will just flourish this article if the UDHR in the air without recourse because the art.8 has no way of checking the competence of a local tribunal.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Comment: This article allows the reader to assume the scope of arbitrary arrest because it did not mention about how and what constitutes arbitrary arrest, detention or exile. Will a “safe-keeping” mean another concept of detention? Will a request preventing a person from leaving from the police station a form of arrest? Will the note stating “better for you to leave the country before dawn, or else..” a form of an exile?

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Comment: This refers to the right of the accused to be heard publicly before an impartial tribunal. When a judge appeared to have an interest over the case or when a judge appeared to favor the a party, he/she should be disqualified from hearing the case or voluntarily inhibit himself therefrom. A chamber hearing exclusive only for some persons is not allowed under this article.

Article 11

1.        Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

2.        No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Comment: We are already living in the system wherein the accusation must not be based on pure allegation but on admissible evidence. In the absence of admissible evidence, it is but a proper rule to presume the innocence of the accused.

The second paragraph speaks of EX POST FACTO LAW where an act cannot be considered as a violation to a law before its enactment; it means that a belated law cannot bind an a previous offense.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

1.        Everyone has the right to freedom of movement and residence within the borders of each State.

2.        Everyone has the right to leave any country, including his own, and to return to his country.

Comment: The term “right” is different from the term “capability”. A person may have the right but does not have the capability. The right to leave a country does not necessarily follow that he can leave a country immediately, there are always a legal and political process to it.

Article 14

1.        Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2.        This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

1.        Everyone has the right to a nationality.

2.        No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Comment: When a person is stateless, the right to a nationality may be denied to him/her. The term “nationality” signifies political allegiance to a particular state which may be changed in accordance with some political requirements depending on every counrty. 

Article 16

1.        Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2.        Marriage shall be entered into only with the free and full consent of the intending spouses.

3.        The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

1.        Everyone has the right to own property alone as well as in association with others.

2.        No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

1.        Everyone has the right to freedom of peaceful assembly and association.

2.        No one may be compelled to belong to an association.

Article 21

1.        Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2.        Everyone has the right to equal access to public service in his country.

3.        The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

1.        Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

2.        Everyone, without any discrimination, has the right to equal pay for equal work.

3.        Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4.        Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Comment: This article would serve as a recommendation to every nation to create a legislation promoting the welfare of the laborer.

Article 25

1.        Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2.        Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

1.        Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2.        Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3.        Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

1.        Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2.        Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29

1.        Everyone has duties to the community in which alone the free and full development of his personality is possible.

2.        In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3.        These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Comment: The observance of human rights is not only a responsibility of one person, everyone has a duty. When all of us be deaf and mute to all human rights violations, then all of these words are worthless.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Comment: This article provides a standard for legal hermeneutics; it means that interpretation should always be in favor of human rights and not for its destruction.

 

Comments on the Jurisdictions of the International Criminal Court

Brief Over-view:

1. The International Criminal Court [located in The Hague] will function as a tribunal for international crimes only when a State becomes a party to the International Statute.

2. The ICC is not considered as a replacement for the National Court but a complement to National Criminal Jurisdictions.

3. The ICC will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute or when the culprit enjoys impunity on his evil acts.

4. The jurisdiction of the ICC is limited only to these crimes:

    a.) Crimes against humanity

    b.) Genocide

    c.) War crimes

5. The summary

Jurisdiction

Once a State becomes a party to the Statute, it accepts the Court’s jurisdiction with respect to crimes under the Statute. For the Court to exercise its jurisdiction, the territorial State (the State on whose territory the situation which is being investigated has taken or is taking place), or the State of nationality (the State whose nationality is possessed by the person who is being investigated) must be a party to the Statute.

National Court

The ICC will not replace national courts, but will be complementary to national criminal jurisdictions. The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute. This will be determined by the judges. Unjustified delays in proceedings as well as proceedings which are merely intended to shield persons from criminal responsibility will not render a case inadmissible before the ICC.

 

Subject Matter

The Court’s jurisdiction will be limited to the most serious crimes of concern to the international community as a whole. It will therefore have jurisdiction with respect to the crimes of genocide, crimes against humanity and war crimes, all of which are fully defined in the Statute and further elaborated by the Elements of Crimes.

Even though the Court has jurisdiction over aggression, it will not exercise such jurisdiction until the crime has been further defined and conditions under which the Court will exercise its jurisdiction have been agreed upon. The First Session of the Assembly of States Parties created a subcommittee of its Bureau to continue work on the crime of aggression. The subcommittee will be chaired by Allieu Ibrahim Kanu of Sierra Leone, and is expected to report and make proposals to the Assembly during its meeting in February 2003. Once agreement is reached, the Statute will be amended accordingly and the Court will be in a position to exercise its jurisdiction.

Personnel

The Court only has jurisdiction over natural persons aged 18 and above. Official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official does not exempt a person from criminal responsibility.

Commanders and superiors will also be held liable for criminal offences committed by forces under their effective command and control or effective authority and control.

Preconditions to the exercise of jurisdiction

The Court may exercise its jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or when the Prosecutor decides to initiate an investigation his or her own decision and on the basis of information received. However, in this last case, the Prosecutor must seek the authorization of the Pre-Trial Chamber before proceeding with the investigation.

 

When the situation is referred to the Prosecutor by the Security Council, the Court may exercise its jurisdiction in all cases and no preconditions are applicable.

However, in the two other cases, when the Prosecutor decides to initiate an investigation on his or her own decision with the authorization of the Pre-Trial Chamber, or when the situation is referred to the Prosecutor by a State Party, strict preconditions shall be met before the Court can exercise its jurisdiction.

Indeed, in those two cases, the Court may exercise its jurisdiction only if either the State on the territory of which the suspected crime occurred (State of territoriality), or the State of which the person suspected of having committed the crime is a national (State of nationality of the suspected person), is a State Party to the Statute.

If neither of these two States is a State Party to the Statute, the Court will not be in a position to investigate the suspected crimes, except if either the State of territoriality or the State of nationality of the suspected person accepts the exercise of jurisdiction of the Court by declaration lodged with the Registrar. Such a declaration may be made for all suspected crimes committed after 1 July 2002 (taking into consideration that crimes within the jurisdiction of the Court are not subject to any statute of limitations).

Thus, if nationals of States Parties to the Statute are victims of suspected crimes within the jurisdiction of the Court in the territory of a State which is not a Party to the Statute committed by persons who are not nationals of a State Party, the Court wouldn’t be in a position to investigate except if either the State of territoriality or the State of nationality of the suspected person accepts the jurisdiction of the Court, or if the situation is referred to the Court by the Security Council.

COMMENTS

The investigation and prosecution of crimes by the International Criminal Court [ICC] is one of the exemptions of the “territorial application of criminal law”. Many legal experts maintained that the function of the ICC is only complementary to National Court. However, I still considered this as an exemption to the “Territoriality Rule” because the accused will be tried in the territory which is not the place of the commission of the crime. 

The cases triable in the ICC is limited only to the three [3] offenses mentioned in the International Statute. However, these three offenses are broad enough to include many things because its definitions are open to various interpretations. Some slight distinctions may create a lengthy argument for the classification of excluded and included cases. For example, a war crime may be argued to be a political crime. A political crime is not one of those under the jurisdiction of the ICC.

Can the ICC acquire jurisdiction when the National Court already tried the offender? My answer is NO. Because the ICC is not a judicial empire.

But what about if the National Court deliberately tried the accused for the purpose of protecting the offender from the ICC, can the ICC suppress the illegal arrangement of the accused and the National Court? My answer is still NO. It is not the power of the ICC to supplant the authority of the National Court.

What if the National Court convicts the accused and extend pardon afterwards, will the accused be tried again in the ICC because of impunity? If the answer is positive, will it not constitute double jeopardy?

The ICC does not have the mechanics to deal with this matter. An accused alleged to have committed the crimes defined by the ICC may still escape from any criminal liability when the power and influence of the accused is strong enough such that the State itself would act as his prosecutor and judge IN DISGUISE.

In fine:

a.] When the State does not act, there is a possibility that the ICC may act.

b.] When the State protects the culprit, there is a possibility that the ICC may investigate and prosecute the case.

c.] But since, the ICC is not a replacement to a National Court; when the State itself initiates the investigation and prosecution of the case [IN DISGUISE], the ICC’s principle against war crimes, crimes against humanity and genocide would just be an empty shell.

In this tricky civilization, there is always a tendency that a State shall facilitate or accommodate the offender [by reason of influence and power] masquerading as an investigator or prosecutor.

We must remember that there are many impossibility in legality, where in fact all are possible in reality.

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.

Why do we have a “right to remain silent” in criminal cases?

In all of the cases known in every legal principle, only the criminal cases affects the life and liberty of a person. It means that when a person is charged with a criminal offense, the accused person is exposing himself to the danger of losing his liberty or the worst – his life.

In civil cases, a person liable shall only be obliged to pay [in legal term - indemnify] or to restore the object at issue. In administrative cases, only the employment, rights and privileges may be threatened.

Today, it has become an international standard to afford every person arrested for a possible crime [crime is any violation of a law; while civil case is any violation against personal right] to inform him of his right to remain silent. We have the widely accepted “Miranda Rule” in American Jurisprudence to inform the apprehended subject of his rights to remain silent, to counsel, and others.

The right to remain silent is a right granted by the state to any person charged or indicted for a crime. However, this right is only indispensable when a state or when a sovereign authority presumed the innocence of the arrested or accused person. Meaning, the right to remain silent is worthless when the sovereign authority presumed the guilt of a person. In my professional opinion, a person’s silence shall have no meaning when he is presumed guilty.

Let us to see, what constitutes the right to remain silent? Well, this right could only be invoked when a person is charged or arrested for a crime, the accused cannot also be compelled to testify in the court during the trial because the right to remain silent extends up to the proceedings of his case. The right to remain silent composed of NOT answering any question, NOT to give any comment or statement to any officer or any ordinary person, and NOT to convey anything related or unrelated to the charge.

Now, go back to my question  -”why do we have a right to remain silent in criminal cases?”

This requires some logical thinking rather than pure legal thought.

Answers:    1. It is the duty of the complainant or the government to establish their allegation against the person. The burden of proof is on them who alleged and not on the defense. There is no necessity for the defense to make an advance statement. All the defense will do is to wait on what the prosecution or the government will allege in their complaint.

                  2. It is an intelligent move of the accused to read all allegations first before making any comment or statement. In the absence of knowledge regarding with the complaint, the best way is to say nothing. Besides, the substance of having the right to remain silent is to know the nature of all allegations before answering anything. By your silence, you give yourself a greater advantage of answering only the allegations made against you.

                  3. The logical reason to exercise the right to remain silent is to prevent inconsistencies in the complaint and some other charge sheets. In cases like conspiracy, adultery, bigamy, and others, the accused must know the other testimony of the co-accused before making any frivolous testimony. For example, in case like adultery, the unfaithful wife and the paramour shall be charged together for the crime of adultery; If the wife denies having knowledge of the man [paramour], while the paramour told the police officer that they’re just friends and have no sexual relationship whatsoever, concrete suspicion will strengthened the case against the two persons due to patent inconsistencies.

                 4. The silence of the accused is important because it is not him who proves himself guilty; it is the government’s duty. Neither it is the accused’s assignment to prove his innocence, his innocence is presumed. When you are not required to speak, then why speak? It has been said in a famous musical composition – “you say it best when you say nothing at all”.

                 5. When the accused chose to speak or to offer something though he is given the right to remain silent, the burden of proof will be shifted or transferred to him. Meaning, he will then be required to justify his mistakes in the courts of law, which I think augmented the problems of the accused. The lines which said “anything you said will be used as evidence against you in the courts of law” means the burden shall be transferred from the government to the accused.

                6. Ultimately, I strongly believed that SILENCE IS POWER. The “knowledge is Power” of Francis Bacon will be replaced by my “Silence is Power” as far as criminal procedures is concerned. Silence is really a form of a great power because it can HIDE everything, even the biggest events of human affairs.

 One thing I want all readers to remember is this, silence is a good defense. Let them prove, let them allege, and let me be silent.

Legal Hypocrisy: Strike 2

addendum no. 2

The justices and our top prosecutors proudly solve the cases of ordinary men; but they seldom solve the murders of judges, prosecutors and lawyers. This is a specie of hypocrisy because they are giving to somebody which they could not give to themselves. The trial shows for the ordinary men were considered as the theatres of grand standing lawyers showing their best neck-ties and cuffs purposely reserved for public audience.

addendum no. 3

The use of Latin phrases in legal language creates the pretension that Latin is something which involves brilliance. The Latin words and terms are often displayed to impress the public that they possessed special knowledge and inaccessible learnings such that the client may give more incentives and the public viewers may applaud for. This is hypocrisy because the dead language became a curtain to conceal the simple knowledge and have it appeared as if it is a very-difficult-to-understand-principle.

addendum no. 4

The patent language of hypocrisy is reflected in the legal axiom which says: “It is better to free one hundred convicted criminals than to send one innocent man to jail.” Of course we know its essence and we knew that it is a figurative language which is naturally unrealistic, therefore, another hypocrisy. Besides, it is always the case whereby an innocent man is sent to jail.

addendum no. 5

The legal principle that “No one is above the law” is another words of hypocrisy. We are aware that the Justices of the Supreme Court cannot be disbarred because of the reason that they can ONLY be removed from office by IMPEACHMENT and not by disbarment. The basis for disbarment is moral turpitude, and moral turpitude is not a ground for impeachment. The legal principle that “no one is above the law” does not or cannot be applied to the justices of the supreme court because they enjoyed a lot of judicial privileges in the guise of interpretation which will blanket them from legal liabilities. The justices that declares “no one is above the law” is himself “above the law”. Besides, the law is what the justices said, it is not the law when he said it is not and it is the law when he said it is.

addendum no. 6

“Justice delayed is justice denied” is one of the ancient legal norms. They pretend to be the medium of justice; they “hate” delayed justice but they delayed justice in the name of due process of the law. Some cases may even reach  20-30 years and some may even be archived and left unresolved. HYPOCRITES OF LAWS will now replace the Bachelor of Laws.

addendum no. 7

In the law books, legal ethics and principles of legal profession, it is always emphasized that legal profession is NOT a money making enterprise. It is NOT a business but a “dignified” profession. Only a dumb and ignorant being from the other planet may be convinced by this hypocrisy. This hypocrisy is very patent. From the time a person asks a question, there is the “consultation fee”; a case is referred, there is the “professional fee”; the case is accepted, there is the “acceptance fee”; in representing in court, there is the “appearance fee”, and many more fees. Now, is this not a money making profession? What happened to the teachings which is still in the textbooks  and in the law school which says a different version? HYPOCRISY becomes the professional images of the legal practitioners.

THE LEGAL HYPOCRISY

Unavoidably, we have a lot of hypocrisy in our legal system. Hypocrisy which always deceived laymen and ordinary citizens.

We have what we call Null and Void marriage, a marriage which does not exist from the very beginning. That is the hypocrisy no.1

We have the Presumption of Innocenceof an accused until his guilt is proved beyond reasonable doubt. The accused who is presumed innocent may be convicted if he failed to object the admission of a particular question or an evidence. This is the hypocrisy no.2

The usage of a third person, like the undersigned counsel, the affiant, etc. were indicators of departing from themselves to sound as if they were separate entities from the real person. This is hypocrisy no.3

The personification of the court, like “this Court rejects that motion” “the Law does not allow that“. In the legal construction, the law is just a matter of interpretation and concept by its enforcers; but the interpreters and enforcers of law would distance themselves from the concept to appear as if they were separate from the court or the law. This is hypocrisy no.4

Final Decisions based on guilt beyond reasonable doubt is definitely a word of the hypocrites knowing well that it is still appealable before a higher tribunal. No.5

Many more countless hypocrisies in our legal systems which we conveniently lived with.

Hypocrites did not only live in our churches but also in our courts.

Addendum no.1 — The hypocrisy number 6. The lawyers will object on the hearsay testimonies; likewise, the judges will not allow these hearsay testimonies [general rule with exceptions]. However, they happily receive all details from their client and other sources on matters regarding with complaints and statements conveyed to them by witnesses and other third parties. They lived by hearsays, profited therefrom and became rich because of hearsay BUT in court they will proudly say it is hearsay and therefore INADMISSIBLE.