REPORTS OF LAW COMMISSION, GOA APRIL 2009 TO MARCH 2012 Presented by Adv. Ramakant D. Khalap Chairman Law Commission, Goa To The Government of Goa Dated:25/03/2012 LAW COMMISSION, GOA Government of Goa Adv. Ramakant D. Khalap Chairman Adv. Cleofato Coutinho Adv. Mario Pinto Almeida Member Member Secretarial Assistance Secretary Shri. Ashok Ulman From 06/04/2009 to 31/12/2009 O.S.D. to Chairman Shri. Manohar Shetye From 06/04/2009 to 16/12/2011 P.A. to Chairman Mrs. Sumiksha V. Shetgaonkar From 06/04/2009 to 26 th March 2012 Junior Assistant Shri. Keshav Mandrekar From 24/04/2009 to 26 th March 2012 No. 9/5/2008-LA/100 Government of Goa Office of the Law Secretary Secretariat, Porvorim, Goa Dated:-20 th January,2009 ORDER Whereas, there has been a persistent demand for setting up a Law Commission for this State to examine the existing legislations and to suggest suitable measures requiring changes or modifications with a view to coordinating and harmonizing them, and Whereas, the Government has considered the question of appointing a Law Commission for this State to examine the existing legislations and to suggest suitable measures requiring changes or modifications, with a view to coordinate, harmonize and to simplify them and remove any anomalies, ambiguities and inequities, with specific terms of references hereto annexed. Now, therefore, the Government is pleased to constitute the Law Commission consisting of the Members, including its Chairman, for the State as per the following composition:- 1) Shri Ramakant D. Khalap Ex Union Minster of State For Law and Advocate, Mapusa………………………Chairman 2) Shri Cleofato Coutinho Advocate, Margao……………………………………..Member 3) Shri Mario Pinto Almeida Advocate, Margao……………………………………..Member The tenure of the Law Commission will be for a period of one year from the date of taking over charge of the Office in the first instance. The Members of the Commission will be paid a suitable lumpsum, remuneration as may be fixed by the Government from time to time. By Order and in the name of the Governor of Goa (V. P. Shetye) Law Secretary TERMS OF REFERENCE 1) To review/repeal obsolete laws in force; 2) To rectify defects in the existing laws; 3) To identify laws which require changes or amendments and to make suitable modifications or amendments to the existing laws; 4) To consolidate, modify, simplify and reform the existing laws; 5) To study the violations caused by the rules, regulations, etc. to constitutional and legal provisions and principles; 6) To detect unpermitted use of delegated legislative powers; 7) To identify the provisions which are ultra vires the scope of the main Acts; 8) To study the impact of the laws on effective implementation of the Legislative intent behind the Acts as well as on good governance; 9) To generally examine the existing laws in the light of the directive principles of State policy and suggest ways of improvement and reform; 10) To review various laws in the light of the decisions of the Supreme Court and Bombay High Court; 11) Terms and conditions of appointment of Government pleaders in District Courts and subordinate Courts, Government and Additional Government Advocates including District and High Court and Public Prosecutors in High Court. The Law Commission, Goa pays Homage to Late. Shri Manohar Shetye O.S.D. to Chairman/Acting Secretary (06/04/2009 – 16/12/2011) The Chairman’s Monologue The Government of Goa under the Chief Ministership of Shri Digambar Kamat thought of setting up a Law Commission for the State of Goa to take stock of existing Laws, and to propose new Laws where ever necessary and to change and amend Acts and Rules in force to suit the changing times. Accordingly, notification dated 20/01/2009 was issued constituting a 3 Member Law Commission under my Chairmanship. I am particularly indebted to Shri Digambar Kamat and his cabinet colleges for expressing their faith in my capability to undertake as onerous a task as of proposing Law Reforms. I was humbled by the faith and confidence reposed in me by the Government and proceeded to perform my duties to the best of my talent and abilities with the support of my learned colleagues Adv. Cleofato Coutinho and Adv. Mario Almeida, both Lawyers of eminence and erudition who have been my pillars of strength and who are repositories of knowledge both of the Continental and Common Law Systems prevalent in Goa. Goa was librated from Portuguese yoke on 19 th December 1961. The change from Colonial Rule to Self Rule also brought with it profound changes in the lives of Goans. Immediate concern was to integrate Goa with the rest of the Country without upsetting the prevailing legal system. Constitution Order dated 10th March 1962 was, therefore, issued directing that all laws prevailing as on 19 th December 1961 would remain in force unless specifically repealed by new statutes. This was followed by a spate of extension of laws prevailing in the rest of the Country to the Union Territory of Goa, Daman and Diu. Civil procedure Code, The Criminal Procedure Code and the Evidence Act were extended to Goa Daman and Diu together with Transfer of Property Act, Specific Relief Act, Limitation Act and a series of other Laws. The “Codigo Civil” or the Civil Code which was the hallmark of the Law system of the Portuguese was thus intruded upon, bypassed and amended by corresponding provisions of the laws extended to Goa, Daman and Diu from time to time. The Government of Goa Daman and Diu had constituted the First Law Commission on 20 th July 1968 under the Chairmanship of Adv. Gopal Apa Kamat. In its only Report to the Government, the First Law Commission recommended that all Portuguese laws except those the immediate repeal of which was not feasible or advisable be repealed and that Central Acts be extended to Goa, Daman and Diu to the extent considered necessary. This recommendation was accepted and implemented with immediate effect. As the laws that were thus extended to Goa, Daman and Diu did not fully correspond to the provisions of “Codigo Civil”, a truncated “Codigo Civil” is still in force. In particular, its provisions pertaining to Law of Marriage, Divorce and Inheritance etc. continue to hold sway over the lives of the people of Goa, Daman and Diu. Sections of Codigo Civil pertaining to family laws have some salutary features relating to registration of Marriages, monogamy, Divorce, right of inheritance etc which are evenly applicable to people of all faiths. This has created a belief among the Goans and people in the rest of the Country as well that Goa has what is so fondly called “Uniform Civil Code” a dream set out in Article 44 of the Constitution of India and which has remained more of a “dead letter” ever since the enactment of the Constitution of India. That the Family Laws of Goa are uniform in all respects is a misconception which we have tried to expose through our Report No.21 aptly titled as the “Protection of Institution of Marriage Bill 2012”. This Bill and the accompanying Report and Statement of Objects and Reasons highlight how the “Concordata’ ‘i.e. the Treaty signed between the King of Portugal and the Holy See (The Pope) in 1940 permits the Catholics to get married in Church but simultaneously takes away the Jurisdiction of the Civil Courts in matters of separation of spouses, annulment of Marriage and Divorce and further proceeds to make our constitutionally created High Court of Judicature a mere post office performing the onerous task of conveying the decrees of the Canonical Courts to the Civil Registrars for recording the dissolution of marriage in the marriage Register maintained by the Civil Registrar. The law vests no power in the High Court to examine the Decrees of Canonical Courts on the touchstone of Constitutional validity or Public Policy. The very fact that such an anachronism on the legal system of the Country could continue for well over 50 Years after liberation emphasizes the “reson detre” of a validly constituted Law Reforms Commission. Should Goa or for that matter India have a Civil Code of its own? This is a million dollar question. We toyed with this idea for a considerable time. It is a gigantic work and requires perhaps a specially constituted Law Commission for the sole purpose of draftng a Civil Code for the State of Goa and or the Country as a whole. We leave this issue to the powers that be and hope that one day the dream enshrined in Article 44 of the Constitution of India will be realized. I would however like to draw the attention of the readers to the work of my good friend Adv. F. E Noronha, an authority on the Portuguese Civil Code who has painstakingly prepared and published “Outline Goa Civil Code”. I will be happy if this opus compiled by Adv. F. E. Noronha is atleast considered and debated by the Legislature. Being a politician of many years my appointment to this august post was bound to raise hackles and invite criticism and ridicule which were heaped upon me in ample measure. I decided to ignore the hackles but not the criticism which I used as a tool to sharpen my commitment to the cause entrusted to me, to keep my conscience clean while spending every pie entrusted to the Commission and while using the facilities allowed to the Commission. I am obsessed with Law Reforms. Between 1996 and 1998, I had the good fortune to be the Law Minister of India.