Colonial laws: All taboo?

Colonial laws: All taboo?

A cartoon published in The Jakarta Post of July 29, 1994, on
page 4, showed an Indonesian judge holding in the left hand a
national flag carrying an inscription `Freedom or Die,' whereas a
trembling right hand held a pair of scales which, nevertheless,
were in a level position.

Should the pair depict the distinction between `justice' and
`injustice,' the level position should mean that the judge has
the administration of justice under control.

A foot of the judge was tied by a chain to the gigantic book
of Dutch colonial laws and the flag showed a cursing epithet, yet
the position of the scale on the picture was on an even keel.

This, by inference, could amount to a blessing in disguise in
favor of the authority of the old Dutch laws.

In this respect, it is worthy of note that although the old
Dutch basic laws are dubbed `colonial,' they are essentially part
of the classic French law-culture, renowned as the `Code
Napoleon' of the 19th century.

Now, if the Japanese have an almost similar Civil Code at the
present time, adopted during the Meiji Era from the French and
German laws, then the adjective `colonial' applied to the old
Dutch laws, which even nowadays are still effective in the
Indonesian Civil Code, could perhaps be held irrelevant.

Some examples may be cited.

The rules of Articles 1365, 1366, 1367 governing unlawful
acts in the Indonesian Civil Code, find their counterpart in
Articles 709, 715 of the Japanese Civil Code. Then Articles 1354
and 1360 of the Indonesian Civil Code dealing with respective
management of affairs without mandate, known in Dutch as
zaakwaarneming and unjust enrichment, called ongerechtvaardigde
verrjiking in Dutch, have their resemblance respectively in the
notions of jimu-kanri and futoo-ritoku, incorporated in Articles
697 and 703 of the Japanese Civil Code.

If the rules, as has been noted, are derived from the old
French law-culture, and many are held still applicable and
relevant in contemporary modern civil life, then the condemnation
`colonial' should be applied carefully and discriminately, as far
as law is concerned.

After all, it should be fairly admitted that the problem of
law consciousness has deeper roots.

It is dependent to a great extent on the intellectual level
and to an ample degree of moral consciousness that must prevail
among the bureaucratic elite, the law enforcement agencies, the
administrators of justice, and the public at large, if the
formation of a law-caring society is required.

SAM SUHAEDI

Jakarta