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Resurfacing the death penalty debate

Thursday, May 3, 2007

Constitutional Court is now adjudicating the petitions to abolish death penalty submitted by narcotics convicts. Let's see on how they will decide this matter. I wrote an op-ed piece with Faiz on today's JP on the issue. Here's a quote:

The ICCPR does not prohibit the death penalty but its protocols do. As Indonesia is not party to any ICCPR protocol, the practice of the death penalty will not violate any international obligation to the ICCPR as long as the treatment of the inmates on death row and the execution of convicts is conducted in accordance with international standards.

It is then left to the problem of constitutional interpretation. Article 28I (1) of the Constitution guarantees that the right to life cannot be limited under any circumstances, but Article 28J (2) states that "In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law... based upon the consideration of morality, religious values, security and public order in democratic society". The debate goes on as to whether the application of Article 28I (1) -- due to the phrase "cannot be limited under any circumstances" -- is non-derogable, including by Article 28J (2).

The convict's attorneys think that the rights under Article 28I (1) belongs to the cluster of rights which are non-derogable, including Article 28J (2). The government on the other hand, is of the opinion that Article 28J (2) may derogate Article 28I (1). Toward this polemic, there are a few methods of interpretation that can be applied.

First, by using the literal approach, it would appear that prohibition of the death penalty is stated nowhere in the Constitution. The wordings of "cannot be limited under any circumstances" under Article 28 I (1) cannot therefore be interpreted so as to mean prohibiting the death penalty. A comparison with Germany and Vietnam's constitutions would reveal that the prohibition of the death penalty is supported with a written, literal expression of the articles of the Constitution. As Indonesia's Constitution has no such provision, the death penalty is so far in line with the Constitution.

Second, by using the teleological approach, it can be seen from the preamble that the purpose of the Constitution is to first "protect the whole people of Indonesia and the entire homeland of Indonesia". Indonesia reportedly has 3.2 million drug users with the number of deaths around 15,000 users per year or an average of 41 deaths per day due to overdose or drug-related AIDS infections. The state has a constitutional obligation to prevent these deaths and to prevent the occurrence of a lost generation. Thus, the protection of the people by the state is paramount and would constitute a higher obligation in comparison to other duties.

Third, using the systematical method of interpretation, it would be clear that Article 28 J is placed under the same chapter as Article 28 I, which is the amended human rights chapter. It is then conclusive that Article 28 J was made "in relation and with due regard to" Article 28 I. We do not consider it appropriate to interpret that the restriction towards the implementation of human rights under Article 28 J refers to clusters of rights other than Article 28 I. The restriction under Article 28 J appears to cover the whole set of the Constitution.

Moreover, under the social contract construction, perpetrators are deemed to have waived their right to life, which is protected under the law, by acting in a manner that results in the loss of life. Thus, by "knowingly" killing others and being aware that their action entails capital punishment, they have given "implied consent" to be punished with the death penalty.

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Europe entering the 'Internet of Things'

Sunday, March 18, 2007

I will go to Hannover to attend this year's CeBIT. And guess what I really plan to see: RFID stands!

I want to know what the latest RFID gadget can do and how the tech will affect regulation. The European Union has just recently unveiled its future RFID strategy and policies:
The Commission, in particular, proposes to address the privacy concerns of citizens to boost consumer confidence and Europe's position in a market experiencing 60% growth globally.
RFID Law is just beginning to evolve. Its orbit: health and environmental issues, freqency allocation and, our favourite subject, the internet of things. The EU's COM stated:
In the responses to the online questionnaire, 86% of respondents were concerned that the system for registering and naming of identities in the future "Internet of Things" should be interoperable, open and non-discriminatory.
Oh, in case you are not yet informed what internet of things means, it means that we can virtually hyperlink anything we have in the real world to the internet and locate them. That way I won't lose my keys anymore. If you want a start up info on this subject wikipedia is glad to help.

If you will be in Hannover on March 21st (that's, the last day of CeBIT), email me!

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The Chewbacca Defense

Wednesday, March 14, 2007

I've been interested in logical fallacy lately and I am a great fan of Southpark. When I did wiki-walking, I captured this fantastic article on one of southpark's episode:

Cochran: Ladies and gentlemen of this supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself! But, ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
Gerald Broflovski: Dammit!
Chef: What?
Gerald: He's using the Chewbacca Defense!
Cochran: Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, [approaches and softens] does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.[1]


The chewbacca argument was meant nothing but to confuse, hehehe. I remembered that a wise man used to say: Don't let them confuse you with their legal mumbo jumbo*.


*Homer Simpsons

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RFID in Indonesia

Monday, March 12, 2007

I received an email alert from RFID Asia that it will open a branch in Indonesia. This means that RFID market may grow rapidly in Indonesia. In the near future, there might be demands for regulation on the utilisation of RFID.

To get a glimpse on how technology such as RFID affects privacy in the future, have a look on my JP article archived by Kerry B Collison here.



ps: It was written before the "Maria Eva" scandal ;)

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European Union plans to open representative in Secondlife

Friday, March 9, 2007

I like the EU for its legal promulgation method. They always put everything on the net to be published and discussed. Now, they plan to open representative in Secondlife. Wew...
The European Union is looking into entering the virtual world and opening up an office in Second Life - an increasingly popular internet-based virtual world - which the Swedish government and the French presidential candidates have already entered. "It is certainly an idea we are looking into," commission spokesman Mikolaj Dowgielewicz told EUobserver.

Sweden had opened their embassy there. Dunno if we can apply visa there tho...

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The Toxicology of Nanomaterials

Tuesday, March 6, 2007

Emily Monosson over at "the Neighborhood Toxicologist" pointed me to series of Nanotechnology Podcasts from Azonano and some Nanotoxicology articles. The article and podcast on "The Implications for Health, Safety and the Environment of the Nanotech Revolution." discusses data gaps in the toxicology and potential for environmental impacts of nanotechnology, and the suggested moratorium on nanotechnology development.

You can also find links to technical articles related to nanotoxicology on her blog.


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Essential facilities doctrine and molecular manufacturing

Friday, March 2, 2007

This is just a quick, general and preliminary comment on the development of the doctrine of essential facilities. After reading some papers (some of them also available in the ssrn here), I have a feeling that both IP and Competition Lawyers are in favour of a more restrictive application of the "essential facilities" doctrine to intellectual property.

Essential facilities has been heaviliy criticized. Some lawyers considered that when there is a competition case involving IP, a new approach must be created as essential facilities deal primarily with tangible property.

My impression is, however, that these "new approaches" attempts to put a more strict treshold when competition law inetervenes intellectual property. I wonder if in the future, when molecular manufacturing is available -- a stricter approach would still be relevant. In my opinion, when more and more tangible goods are transformable into information, there will be more demand towards lowering the standards of IP protection.

It would be interesting to see how competition law doctrines operates in the age of molecular manufacturing. The tendency towards differentiating between competition law test applicable to tangible property and competition law test applicable to intangible property is something positive. However, the trends that everything is transformable into information these days must also be put into consideration. Raising the threshold of IP protection in a world where tangible goods are nothing but information may seriously jeoperdize the future economy.