Sat, 06 Aug 1994

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.