Tags
Related Posts
Share This
We were wrong.
This wouldn’t be a serious blog if I was unable to admit to being wrong whenever necessary (and whenever it proves to be so). A few days ago I blogged about the extra-territorial application of criminal law and in particular about what would be my interpretation of the combined articles 5(1)(d) and 241(1) and (2) of Malta’s criminal code. I could blame “the ravages of time” or my lack of attention during the lectures given by Prof. De Marco but that would just be me pussyfooting. I could also obliterate the blog post in question as though it never was but our blog is made of more serious stuff than that isn’t it? I should have read the articles in question more carefully and I would not have committed such a simple error. So here is the explanation:
A foreign doctor intervening on a pregnant Maltese woman on a foreign territory so as to terminate her pregnancy IS NOT CRIMINALLY LIABLE under Maltese law. The reason is that a thorough reading of article 5(1)(d) gives you the indisputable fact that for a crime to subsist it would have to be committed BY A MALTESE NATIONAL (or permanent resident) ON ANOTHER MALTESE NATIONAL (or permanent resident). Essentially the crime would only exist abroad if both doctor AND patient are Maltese.
I hope that it is clear and regret any inconvenience that my interpretation might have caused. Incidentally this new (and correct) interpretation does not change for one iota my assessment of the duplicity of Gift of Life -style activists who are quite content with the containment of our anti-feminist laws within the jurisdiction of our country.
In the Zammit De Minimis Notes (Criminal Law) there is the correct explanation of the extra-territorial application of the law by the Maltese Courts :)
Unfortunately I do not have these Zammit De Minimis Notes. When I studied law these notes were already out of print. Claire, these notes probably need to be updated in the light of the new interpretation of the law.
Jacques, I thank you for your correction. I know there was Mr Right and Mrs and Miss Right but not that there is also Mr (and probably Mrs and Miss) Wrong.
In the light of this post, further issues remain. I am not repeating my previous arguments but just raising the issues. If the doctor were a Maltese national or permanent resident would the long arm of Maltese criminal law potentially reach him or her? What about the Maltese future mother who consented to the abortion? Quid juris?