Goa Civil Code should be retained

No civilized nation would fragment its Civil Code into Acts.

The so called Report of the Select Committee wrongly suggests that in “Anglo Saxon” Jurisprudence laws are not codified. England herself right from the 19th century has been passing legislation in Common Law areas and in fact has appointed a Law Commission for the codification of English Civil law.

In North America, the Civil Codes of Louisiana and Quebec have been preserved and even Anglo Saxon law has been codified like the California Civil Code and New York Civil and Commercial Codes.

In India from 1833 onwards, four Law Commissions gradually codified law in areas which in England were covered by precedent only and codification continues to be the policy of the Government of India.

Another howler in the Select Committee Report is to make it appear that there is no Civil Code as such in Goa because of the laws passed in 1910 in Portugal and Indian laws extended after 1961. The laws passed in 1910 were always taken to be parts and supplements to the Civil Code. The law of Divorce expressly says so at article 72, that “the provisions shall be embodied as amendments to the Civil Code”. No reasonable person would say that there was or there is no Civil Code in Goa. One book written in Goa in1997, on an area of law has the following subscript “In accordance with the Civil Code in force in Goa, Daman & Diu”

In any case granted that the Code was in bad shape it was the duty of the concerned persons to reconstruct it. Instead they threw the baby out along with the bathwater.

In fact the Committee appointed in 2002 was appointed to frame Family Law Code, not an “Act”.

The Portuguese Civil Code 1867 was never officially translated as required under article 348 of the Constitution. It is being repealed…in its Portuguese version.

The present Law minister was Chairman of the Drafting Committee as well as the Select Committee. The objections of the lawyers were referred to the Drafting Committee. Hence the Law minister and the other members of the Drafting Committee became judges in their own case. The legal dictum “Nemo Judex In Causa Sua” means that no one can be a judge in his own cause allows an exception only in the case of the Doctrine of Necessity when it is imperative for an administrative authority to carry out its statutory functions which may impede the cause of justice and not on any other ground.

The Bill was passed under Concurrent List of the Constitution which nowhere mentions “Civil Code”. The areas like Succession were occupied by the Central Government by passing the Hindu Succession Act etc.

The Portuguese Civil Code 1867 covers general principles of law and jurisprudence, rights, property, possession, family law i.e. marriage and succession and even civil wrongs.

By passing an Act and removing an important portion of the Civil Code, the Goan legal system will be totally downgraded. A Code is the highest form of legislation whilst Act is the lowest. Codes are framed by combining together loose Acts.

The Succession and Inventories Act besides pedestrianizing our legal system will result in chaos for our lawyers and judges. We will be compelled to refer to the 2 Family laws booklets, as also the proposed Succession Act in addition to the old Civil Code of 1867, the Civil Procedure Code and so on.

The Act could also apply to certain non-Goans, who therefore could be governed by the Goa Succession Act for their succession but be governed by the Hindu or Muslim law for their marriage.

Succession, Marriage and Property law should be in one code, after all succession cannot take place without a marriage and Succession is of properties.

The Act has no provision for prescription/limitation for Inventory corresponding to article 2017 of Portuguese Civil Code, and on amendment of pleading corresponding to article 278 of Portuguese Civil Procedure Code.

Inspite of protests from the year 2005 it is surprising that there has been no public or legal debate on this subject. Public opinion was also not sounded since civil code concerns the entire society and not just lawyers.

The reason given for passing the new act is that it is prepared by eminent lawyers and nobody can question it. If so, one wonders how such a blunder was committed. The lawyers who had filed their objections were not even heard. What the eminent lawyers should have done was to prepare a full Civil Code out of the surviving provisions of the Portuguese Civil Code, engrafting the so called Succession & Inventories Act into that Code, instead of disgracing the Goan legal system.