Judicial systems compared

The highly cultured set of ideas and vision contained in the trias politica by Montesquieu and the doctrine of people's sovereignty by Rousseau was the driving ideology behind the French revolution.

These ideas also formed the intellectual and spiritual base of the French judicial institution known as cassation (final appeal to the highest court), which subsequently manifested itself in the Tribunal and Cour de Cassation (Court of Cassation/final appeal), and was adopted by Holland in 1790 and reinstated in 1827 with the establishment of the Hoge Raad (Dutch Supreme Court).

The more than 200-year-old institution of cassation through its Dutch manifestation, cassatie, has now been incorporated into Indonesian legislation, with the local term used here being kasasi. First, there is the Criminal Law Procedures Code (Article 253 of Law No. 8/1981), and secondly the Supreme Court Law, which governs the procedures employed in civil proceedings (Article 30 of Law No. 14/1985).

The principle of cassation in criminal procedure finds expression in Art. 253, which provides that the Supreme Court has jurisdiction to examine whether a rule of law has been wrongly applied. In civil procedure, according to Art. 30 of the Supreme Court Law, the Supreme Court shall overturn the verdict of a lower court if it is found that a rule of law has been wrongly applied or contradicted. Thus in both instances, questions of fact are not being reviewed or decided upon by the court of cassation.

Despite the particular, continental style, in-depth discussion of cassation in the Dutch treatises, the subtle theoretical aspects of cassation, and the long experience of Dutch jurisprudence in the field of cassation, it is worrisome that the Dutch treatises on the theoretical and practical aspects of the principle are frequently no longer read by younger Indonesian jurists given that many they now normally pursue their post- graduate studies in countries that use the common law system.

Those who have continued their studies in countries that do not apply the civil law system often have a tendency to oversimplify or understate the issues when queried about the functions of the Supreme Court, by responding, for instance, with statements like; The (Supreme) court's duty is only to examine whether the lower courts have applied the law correctly" (The Jakarta Post's editorial: Bulwark of Justice, Feb. 13).

S. SUHAEDI Jakarta