A language is a means to communicate. Language is also a means to convey our desires, opinions and arguments to others. Therefore, language has an important social role in social relations.
However, when a language is associated with the law in the form of an agreement or contract, language can be a disastrous thing. A calamity arises because in this country if an agreement with foreign parties does not use Bahasa Indonesia, the agreement is void. That is the essence of last year\'s verdict from the West Jakarta District Court in a dispute between a private Indonesian company and its foreign partner.
Businessmen from the two parties established a cooperative enterprise that was outlined in an agreement written in English. In its implementation, the cooperation led to a dispute. The Indonesian company took the validity of the foreign language agreement to the West Jakarta District Court. The court\'s ruling was quite a surprise. It nullified the agreement for violating regulations.
The legal basis is Law No. 24 from 2009 on the Flag, Language, State Symbols and Anthem (language law). The language law requires the use of Bahasa Indonesia in an agreement involving state institutions, government agencies, private organizations or individuals (Article 31).
Verdicts by the high court and Supreme Court (Decision No. 601 K/PDT/2015) upheld the earlier ruling by the West Jakarta District Court. Following this verdict, according to an official from the court, there are two other similar cases requiring the cancellation of trade agreements written in English at the Central Jakarta District Court. It is feared there will be other requests with other district courts in the country. If this continues developing, there will be uncertainty in legal matters and business in the country.
The provision of Article 31 in the language law is quite controversial. The court ruling on the legality of the agreement written in a foreign language creates a feeling of trepidation among entrepreneurs, including foreign investors. Also among the public, the provision that obliges the use of Bahasa Indonesia in any agreement gives birth to pros and cons.
Bumping into legal principles
The purpose of this article is counter to the aforementioned article. The reason is, there are legal principles that are disrupted. First, the principle of the validity of the agreement. A general view on the requirement of the validity of the agreement does not depend on the terms of language. The legitimacy of the agreement is referred to the provision of Article 1320 of the Civil Code, namely (1) the agreement of the parties; (2) requirements for proficiency of the parties; (3) certain objects and (4) causes of the object of lawful agreement.
Second, the trade law or contract law recognizes the principle of freedom of contract. Included in this principle is the freedom of the parties to choose the law applicable to the agreement, select a forum that resolves disputes or choose the language used in the agreement. The principle of the freedom to choose the language includes which language will be used and whether the agreement on the language is embodied in writing or orally.
Third, in commercial transactions or investment, English is considered the lingua franca, a language of intercommunication or introduction in the world. English has been recognized as one of the official languages of the United Nations. ASEAN has set English as the language used among its member counties.
English has also been accepted as a trade language. A language that is seen as a lingua franca, generally applicable, should not be canceled because there is a particular national language requirement.
To avoid or mitigate unrest that may arise due to an obligation to use Bahasa Indonesia, the role of the courts is very important. Our legal system does not recognize precedent. This is good for the current issue. The Supreme Court can give technical instructions to the ranks of the lower courts.
The Supreme Court can also make a technical manual on the condition of the language as a mandatory soft-law requirement. The language law does not mention the kinds of sanctions to be imposed if the language requirements are not implemented.
The soft law in the sense of obligations that do not coerce exists in other legal norms. An example of such is the provision Article 12 of Law No. 24/2000 on International Trade. Article 12 requires the existence of an international treaty text translation into Bahasa Indonesia. However, in practice, it is enough for the many international agreements that have not been officially translated into Bahasa Indonesia.
The fact that the translation is not carried out does not become an excuse for the violation of the international agreement. The absence of translation or the fact that it has not been translated does not cause defects in the international agreement ratified by the government.
Because it is associated with the implementation of the law, the role of the Supreme Court is very important. The Supreme Court should not hesitate to issue a technical guidance about the nature of the soft law. The roles of the government and the House of Representatives are also important. Two state agencies can jointly amend the text of Article 31 of the language law. The word "mandatory" in the article should be removed.
The help of the Supreme Court, the President and the House of Representatives is expected. Communities and the business world badly need the help of these three state institutions so that the atmosphere of legal uncertainty regarding the language of the agreement can soon be remedied.
HUALA ADOLF
Professor at the School of Law of Padjadjaran University
