In 2017 the Bombay High Court at Panjim, suo moto took up a Public interest Litigation based on a newspaper article in o Heraldo by this writer and asked the government of Goa why the Portuguese Civil Code as applicable in Goa has not been translated and notified thus failing to comply with Article 348 of the Indian Constitution, though the Advocate General admitted that the Goa Government has as yet, not translated and published in the Government Gazette the English Translation of the Portuguese Civil Code as applicable in Goa as required under article 348; It took nearly two years for the Government to fulfill this simple legal and constitutional requirement though half a century has lapsed since this constitutional requirements came into being.
But the biggest riddle is why is the present Goa government playing the “Catch me if you can” game. It is within the knowhow of the government and common knowledge of the legal fraternity in Goa that in addition to the Portuguese Civil Code there are a number of other Portuguese legislations in Portuguese language that not only still continues to be applicable in Goa, but are being cited before the courts in Goa and are being used by the courts in many cases and that even now the lawyers are giving their own interpretations and translations as they like or as per their case or conveniences with least regards to the constitutional requirement under Article 348 of the Constitution of India.
Is there no law department in Goa and law officers who are supposed to ensure this minimum legal and constitutional requirement?
In addition to Art. 348 (3) of the Constitution which has to be read with Arts. 21 and 13 there is Sec. 57 (1) of the Evidence Act; which specifically mentions that a citizen cannot be governed by a law in a foreign language that he (and the entire system) does not understand.
To cite a few Portuguese legislation that are still applicable with no official English translation to the knowledge of this writer are:
1. Code of Usages and Customs of the Hindus.
2. Decree no. 43525 on leases.
3. Code of Civil Registration 1912 along with circulars and notes from the Government on the actual implementation of the same.
4. Code of Property Registration 1952.
5. Code of Property Registration 1959.
6. Decree no. 3602 of 1917.
7. Decree dated 25/12/1910 on Marriage as Civil Contract.
8. Decree no. 35461 of 22/01/1946 on Canonical Marriage.
9. Law of Divorce dated 03/11/1910.
10. Law of Protection of children dated 25/12/1910.
11. Law of Usages and Customs of Non-Christians of Diu.
12. Law of Usages and Customs of Non-Christians of Daman.
13. Portuguese Commercial Code.
14. Concordat of 1940 between the Portuguese Government and the Holy See.
15. Organic Law of the Overseas of 1953.
16. Statute of the State of Portuguese India of 1955.
17. Overseas Administrative Reforms of 1933.
18. Statute of Overseas functionaries of 1956.
19. Judicial Organization Decree no. 14453 of 20/10/1927.
20. Judicial statutes of 1923, 1961.
21. Notarial Laws.
There may be other laws as well which at least the law department should know are in Portuguese Language.
These Laws are being used interpreted, misinterpreted, wrongly/rightly translated, given different interpretationsby the same lawyer in different cases to suit their client’s interest for the past 57 years, with the judiciary being totally ignorant or indifferent to these judicial maladies and with the government and government lawyers being silent spectators and at times participants and beneficiaries of such legal jugglery and fiasco, has the law department officials have mere the “bell boy” outlook and attitude to their governmental and constitutional responsibilities and thinks that their only duty is to obey their political masters.
Goa has both Central (All India) as well as State civil servants on its rolls.
If the Central civil servants think of their life and responsibility in Goa as a perpetual holiday for them and their “Parivar” and the State civil servants are yet to wake up from their “susegado” attitude and bell boy outlook, even the Gods cannot save Goa.
The fact that these Civil servants act only at the behest of their political masters is clear from the governmental failure to collect the fees and penalties from errant miners. The formalin in fish fiasco, and now the Highway construction and the rampant environmental violations and many other ills of Goa. If only the civil servants were to act as per law and fulfill their duties and obligations as laid down by the laws of the land, Goa would have been a much better place to live.
These Civil servants, instead of succumbing to political witchery should have been merely enforcing laws and whenever a politician desires an illegality to be carried out they need to have the courage to record their views and considered opinion so that history will tell the truth. Though monitoring civil servants is primarily a function of the elected representative, when Goa is faced with the situation of “Watchman being the thief”.
One cannot expect the Court to intervene every time.
These lackadaisical attitude of the civil servants calls for a more vigilant and astute judiciary. Judiciary being the only and the last hope of the citizens it needs to be much more alert. Long live law and the rule of law.
(The writer is a Professor of Law & Former Dean, Faculty of Law, Goa University.)
