http://www.rjmacau.com/english/rjm1996n3/ac-mary/portuguese.html
THE PORTUGUESE EXPERIENCE
*The Case of Goa, Daman and Diu*
*1.* The Portuguese were a political and administrative presence
in India from the sixteenth century until 19 December 1961 at
which point the Indian Union proceeded, /manu militari/, with
annexing the territories of Goa, Daman and Diu which had
traditionally been called the /Estado da India/.
Chosen for strategic motives as the capital, Goa was, for over
four centuries, the centre of Portuguese legal influence in the
Orient.
The fact that a supreme court (/Relação/) had been established in
1544 contributed to this. The court was the first institution of
its kind to be set up by Europeans in Asia and it was also the
first Portuguese court to be established outside the European
continent. Although Goa?s Supreme Court underwent various
vicissitudes over the centuries (not only did it change its name
but it was also closed on more than one occasion), it was always
the highest Portuguese court to operate in the Orient: it not only
covered the other Portuguese-governed territories in Asia, it also
took in Mozambique.
In contrast to what happened in Macau and Timor, the /Estado da
India/ was the setting for an extremely diversified and complex
judiciary apparatus and activity. In addition to a court of second
instance and an administrative court, there were several municipal
and county courts which justified, in the early seventies, the
presence of over twenty magistrates.
In India, however, the Portuguese were confronted with a
civilisation which was highly sophisticated on several levels and
this led them to promote policies which resulted in what would now
be described a high degree of localisation in both the
administrative and judicial spheres. The attempt to impose the
Portuguese language was not welcomed by the local population and
it remained the case that when the /Estado/ was integrated into
the Indian Union a large proportion of judicial positions ?from
the court of first instance to the Supreme Court? were held by
natives. The same could be said with regard to advocacy although
it should be mentioned that a university degree was not essential
in gaining access to the profession: people could be accepted
after passing tests set by the President of the Supreme Court. The
significant degree of local participation in administering justice
must have contributed to the fact that Portuguese law was able to
put down the kind of roots which elsewhere it was not possible to do.
*2.* The history of Portuguese law in India has yet to be written,
and, more particularly, the history of Portuguese law /in partibus
orientalium/. There are no published works offering a systematic
examination of the legal system which existed just prior to Indian
annexation. While the system which the French introduced in
Pondicherry has been studied in detail in a work produced by
Indian jurists entitled /Justice in Pondicherry (1710-1968)/, the
years have gone by without anything being produced with regard to
Goa, Daman and Diu.
For the narrow purposes of this study, we could still claim
without being too far off the mark that at the time, there were
not too many differences between the law applicable in Portugal
and that in force in Goa, Daman and Diu.
To mention just those laws of greatest significance, the 1867
Civil Code, the 1886 Penal Code, the 1888 Commercial Code, the
1929 Penal Procedure Code and the 1939 Civil Procedure Code with
their amendments were all in force in the /Estado da India/ on 19
December 1961.
If we take this into account, we can understand the value of the
progress which occurred following the end of the Portuguese
administration.
*3.* The Indian Union?s annexation of Goa, Daman and Diu was the
result of open conflict as it had not been accompanied by any
agreement which could protect the continuation of any aspects
recognised as beneficial by both of States concerned.
Nevertheless, along with mechanisms for change and adaptation,
elements of continuity were introduced in a law issued by the
Indian Parliament, Act 1 of 1962 entitled "The Goa, Daman and Diu
(Administration) Act" which was implemented on 27 March 1962. In
brief, the law enshrined the following points:
a) the continued implementation of laws which, prior to 20
December 1961 had been in force in Goa, Daman and Diu so long as
they were not amended or revoked;
b) the possibility for the central government to extend
legislation in force in any of the states of the Union to Goa,
Daman and Diu by means of notification published in the official
gazette with any restrictions or modifications it chose to include;
c) the retention of the services of judges, magistrates and other
court employees without prejudicing the exercise of the
government?s own power;
d) the extension of the High Court of Bombay?s jurisdictional
sphere to include Goa, Daman and Diu from a date to be set by the
government.
The process of extending legislation to the former Portuguese
territories from the Union?s central government or in force in any
of its States began as early as 1962. As the extension proceeded,
those norms which had previously been in force were revoked as
they were replaced. The decision as to which were in fact the
corresponsing norms was the responsibility of the persons
responsible for interpreting the legislation.
Various techniques and sources were brought into use in replacing
the Portuguese laws which had become part of the Indian Union?s
domestic law through "The Goa, Daman and Diu (Administration)
Act". Laws such as "The Goa, Daman and Diu (Laws) Regulation Act
provided for the application of many laws on the adjoining list to
Goa, Daman and Diu. The time at which they came into force
depended on a date to be set by the Administrator of the
territories. In other cases, specific legislation or provisions
were used to extend or alter norms in force by both the central
government and the Goa Legislative Assembly. Rules from the
Judicial Commissioner?s Court of Goa and the fact that they were
falling into disuse anyway contributed to Portuguese norms
gradually falling into neglect.
One of the alterations with major repercussions which was adopted
early on was the extension of the Indian Penal Code and the Code
of Criminal Procedure to the former Portuguese territories in
1963. This resulted in the introduction of the death penalty and a
restructuring of the judicial organistion.
Consequently, what had been the "Judicial Magistrates of the First
Class" became, as a general rule, the courts of first instance
whose rulings could be appealed in the Sessions Court. For more
serious crimes, the Sessions Court could also function as a court
of first instance in whic case its rulings would be appealed in
the High Court.
The process of replacing the legislations left by the Portuguese
became broader with the extension of the Limitation Act,
Agriculture Tenancy Act, Transfer of Property Act, Registration
Act, Contract Act and Sales of Goods Act, to give but a few
examples of those diplomaes which brought about the revocation of
important provisions of the Civil Code, Commercial Code and Civil
Procedure Code.
In 1966, the Code of Civil Procedure, the Arbitration Act and the
Civil Courts Act were extended to the former Portuguese
territories. This was accompanied by a new judicial structure
which was analogous to that in force in the Indian Union.
Nevertheless, it seems as though the former procedural norms were
not abandoned immediately but rather only in 1978 on a ruling made
by the Supreme Court.
One conclusion which can be drawn without going to any greater
lengths is that the legal system left by the Portuguese was
replaced on a gradual basis as new rules which were already in
force in the other states of the Union were introduced or extended
to Goa, Daman and Diu or through new legislation.
*4.* These were areas, however, in which Portuguese laws have
managed to retain their position and still subsist over three
decades after the end of the Portuguese administration, despite
there having been several attempts to review or revoke them.
This was the case in the fields of family law and the law of
inheritance in which the Civil Code of 1867 is still applied with
the 1910 amendments concerning marriage and divorce and those
introduced in 1913 by Decree nº 35,461. Some of the provisions of
the 1939 Code of Civil Procedure are still applied today, namely
those dealing with inventories and other special procedures.
Although in other cases legislation was maintained because there
were no provisions in the laws of the Indian Union which could be
regarded as equivalent (in other words as a result of the
technique which was used and the differences between the legal
systems), as far as concerns family law and probate the reasons
were very different.
The fact is that, contrary to what occurred in the rest of the
Indian Union, where these matters are regulated by various
"personal laws" which apply different solutions in the cases of
Hindus, Muslims, Christians and so on, in the Portuguese
territories there was a trend towards homogeneous treatment with
no difference of treatment of the basis of religion, caste or
ethnic group. The introduction of Indian laws was thus accompanied
by a multiplicity of regimes which, although they were welcomed by
some groups still had a disturbing effect on a society which had
emerged from the centuries of Portuguese administration with a
seemingly greater degree of homogeneity.
In addition to this, there was Article 44 of the Constitution of
the Indian Union which has as its aim the creation of a uniform
civil code for all citizens. This has still not been achieved but
the goal would be contradicted if a variety of personal laws were
to be introduced to the only territories where a homogeneous legal
system exists.
In the light of this constitutional provision, attention has been
directed over recent years to this basically uniform subject which
seems to be attracting renewed interest from scholars and magistrates.
*5.* The judicial organisation and the extension of the
jurisdiction of the High Court of Bombay did not progress in the
way which had initially been planned.
The Goa Court remained active until 1963 when it was closed by a
law called the "Judicial Commissioner?s Regulation" which replaced
it with a court called the Judicial Commissioner?s Court. Through
"The Goa, Daman and Diu Judicial Commissioner?s Court
(Declarationas High Court Act, 1964) this court was given powers
which to a certain extent were similar to those of a High Court
and oeprated until 30 October 1982 when a section of the Bombay
High Court was established in Goa.
Although Goa was separated from Daman and Diu and made a State
through the "Goa, Daman and Diu Reorganisation Act, 1986",
followed by the Constitution ("56th Amendment Act, 1986"), and
though the Indian Constitution makes provision for a High Court in
each State of the Union (Article 214), the States of Goa and
Maharastra still share a high court today.
The development of the Administrative Court of Goa is also worth
mentioning.
While the Pondicherry Courts Act 1966 abolished the /Conseil de
Contencieux Administratif/, in Goa?s case the experience of the
Adminsitrative Court was seen in a positive light. The court was
maintained by the "Administrative Tribunal Act 1965" even though
its composition and powers were considerably altered. Furthermore,
contrary to the British tradition, the Indian Union has tended to
establish specialised courts with a corresponding reduction in the
powers of the High Court as is indicated by "The Administrative
Tribunals Act 1985").
*6.* English is now the language used in the courts and for
legislation. This situation was achieved without making it a legal
obligation although provision was still made.
In the early years following integration, Portuguese was still
used in the courts either along or alongside English. Cases were
being filed in both languages until at least the late seventies
and there were many allegations addressed to the "/Venerando/
Judicial Commissioner?s Court". This unique situation situation
can be explained by the fact that most magistrates and lawyers
were familiar with both languages and continued to apply laws
written in Portuguese. Moreover, it seems that there were never
severe communication problems in the courts as most parties
involved spoke Konkani, the local language.
The fact that local jurists knew Portuguese meant that the
question of translating Portuguese laws into English did not arise
for many years. Apparently it was only when Portuguese became less
frequently used by jurists that the task of translation became
more pressing. Consequently, it was eighteen years after
annexation that the first English language version of the
legislation on family law appeared produced by the lawyer
Usgãocar. Later on, translations of legislation dealing with
probate and the relevant provisions on inventories appeared.
The translations carry no official weight but are used as a
working tool in the courts and generally given credit. They seem
to be treated as a private document which could be contested by
the other party which would then have to offer an alternative. It
would then rest with the court to reach a decision although this
situation has not yet occurred.
The translations and the causes behind their production seem to
indicate that laws can outlast the use of the language in which
they were written: they allow laws to be applied by persons who
are no longer familiar with the language in which they were
drafted and originally published.
*7.* The conclusions we can reach as to the development of the
legal system in Goa, Daman and Diu indicates progressive
identification with the Indian system, which is in itself largely
influenced by English law and because of this carries many of the
features of common law.
In terms of procedure and the organisation of the judiciary, and
the importance given to case law, these are now characteristic of
the legal system in use in Goa today.
The development was facilitated by several factors. While in the
past legal training was provided in Portugal and in contact with a
Portuguese system, in recent decades, lawyers have been educated
in schools in which only English is used and only Indian and
Anglo-Saxon laws are studied. Newly trained jurists have thus lost
all contact with the features of the Roman-Germanic systems.
On the other hand, due to the conditions surrounding annexation
and the absence of appropriate initiatives, contact was lost with
Portuguese doctrine and jurisprudence and there was for a long
time a lack of communication between local magistrates and lawyers
and Portuguese or Portuguese-speaking lawyers. Another
contributing factor has been the absence of literature on the
system which has been operating in Goa with the consequent lack of
available information concerning its special characteristics.
Isolated, omitted from law courses, applied by jurists trained
under another system with different techniques and concepts, the
legislation left by the Portuguese in Goa has not been able to
impose some of its particular features.
Nevertheless, it is surprising that thirty three years after the
Portuguese administration came to an end, and despite all the
unfavourable conditions explained above, Portuguese laws are still
in force and magistrates and lawyers trained under the Portuguese
system still play an important role in the current system.
The interest surrounding some of these laws today demonstrates
that a Portuguese contribution can still be made to local legal
development. The presence of Portuguese-trained jurists can only
serve to promote an exchange of legal cultures and experiences
which, in spite of the time lost, can still be beneficial.
_____
_/ ____\____ Frederick Noronha (FN) * Freelance Journalist
\ __\/ \ Goa India T +91.832.2409490 M +919822 122436
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