For favour of publication, please. =Averthanus=
_____
THE SILLY SYNDROME.
Averthanus L. D'Souza.
`During the ceremony of the country's 61st. Independence Day
celebration, the Chief Minister made a grandiloquent announcement that the
Government was going to set up two Commissions for Goa - a Law Commission
and the Goa Human Rights Commission. Apparently, this announcement was
also made in the Assembly during the current session. Apart from the bare
statement of intention, there is no indication about the Terms of Reference
of these two Commissions nor about the members who will constitute the
Commissions. In one newspaper report (which might have got the information
mixed up) the C.M. is reported to have stated that he was appointing the
Law Commission "to recast the TCP Act of 1974 to address modern trends in
development of infrastructure. The Law Commission, it is proposed, will be
asked to take up the TCP Act on priority to suggest amendments to it."
The presumption that the newspaper has got it wrong is because
no Government in its right mind would appoint a full-fledged Law Commission
merely to review a single piece of existing legislation and to recommend
amendments "in a bid to make the Act proactive and make it a legislation to
foster orderly and planned development." Such a review of existing
legislation and suggested amendments is normally done as an internal
exercise by the Law Department. A "Law Commission" usually has a much
wider Terms of Reference.
Whatever the situation might be, it seems appropriate at this
time that the Goa Government should constitute a Law Commission - not just
to recommend amendments to a single piece of legislation, - but to examine a
whole range of existing laws which appear to be incongruent, and even in
conflict with one another. To take just one example, since we are dealing
with the Town and Country Planning Act of 1974, it is obvious, even to the
layman, that this Act is completely out of sync. with the Constitution of
India, more specifically, the 73rd and 74th amendments thereto. The TCP
Act was formulated and legislated at a time when the concept of devolution
of powers to the lowest level of local government was hardly known. The
TCP Act was based on the assumption that all spatial planning and use of
land in Goa and Daman was the sole responsibility of the Government alone,
through its Chief Town Planner. Even the Town and Country Planning Board
as envisaged in the TCP Act, is an "advisory body" to the Chief Town
Planner. It is expected to "advice" the CTP in his task of formulating
the Regional Plan.
With the 73rd. and 74th. amendments to the Constitution, this
assumption was rendered obsolete. The TCP Act of 1974, therefore, has not
only become anachronistic, it has actually become anti-Constitutional.
The proper remedy for such a radical change in fundamental assumptions is
NOT to "amend" the existing TCP Act, as is being proposed by some citizens
groups, and even, (so it seems) by the Government; but to completely repeal
the TCP Act of 1974 and put in its place a NEW Act which will be consistent
with the statutory requirements of the Constitution.
The amendments to the Constitution of India also have
repercussions on other pieces of legislation in the State of Goa. It has
become urgently necessary to examine all these incongruities and to bring
about changes in these associated laws. The most glaring example that comes
to mind is the Municipalities Act, which, again, is not consistent with the
Constitutional amendments. In the existing system, the Municipal Councils
do not have responsibility for the planning of their respective areas.
They are totally dependent on the Town and Country Planning Department and
on the Planning and Development Authorities in some urban areas. For the
planning function to be "devolved" to the Municipal Councils, as required by
the amended Constitution, the present Municipalities Act will have to
undergo radical changes. The Law Commission, if it will be set up at all,
should be requested to look into the inconsistencies in the laws which do
not conform to the Constitutional requirements. Another, obvious law which
should be brought within the ambit of the scrutiny of the Law Commission is
the Panchayati Raj Act.
The Law Commission should be required to scrutinize all the
State laws to see whether they conform to the Constitution or not.
Perspicacious persons who are more familiar with the operation of the laws
in Goa will be able to make specific recommendations to the Law Commission.
What appears to be needed, at this point of time, is a macroscopic
perspective of the laws which are currently in force to see whether they are
consistent internally, and whether they are in conformity with the
Constitution of India.
When the announcement of the constitution of a Law Commission
was made in the Assembly, a young, enthusiastic, M.L.A. welcomed the move
but suggested that the Law Commission should be headed, preferably by a
retired Judge of the High Court. Such a recommendation is redundant for the
simple obvious reason that only a legal mind will be able to adequately deal
with the complexities of the Law. What is of even more relevance, and of
greater importance, is that the Terms of Reference of the Law Commission be
formulated wisely to allow the greatest latitude for its work. It is an
axiom in judicial circles that the Courts only interpret the Law; they do
not make the Law. However, a Law Commission, duly constituted, has the
opportunity to address the question of "how" our laws are made. The
Commission can make useful suggestions to the Government as well as to the
elected representatives of the people. There are a whole lot of laws which
are not only confused and confusing, but which are irrelevant and, perhaps,
need to be taken off the Statute Book.
In Goa, we are confronted with the unpleasant fact that we have
a bunch of barely literate legislators (with a few obvious exceptions, of
course) who have no idea whatsoever of what the Law is. Some of them even
have the dubious reputation of having breached the law and been
charge-sheeted for criminal offences. It is too much to expect such
persons to understand the meaning of law and to appreciate how the law
operates. The constitution of a Law Commission provides us with the
opportunity not only to take a fresh look at the existing laws, but to make
recommendations of how laws should be formulated.
We citizens are victims of a "silly syndrome" which is peculiar
to our elected representatives. They believe that any problem can be
solved merely by passing a law. Therefore we have a plethora of laws which
are meaningless and ineffective. Laws are useful (and necessary) tools -
but only if they are applied wisely and effectively.
In conclusion, there is need for the Government to look very
closely at the way in which the Law Department functions. We have read
public statements by Law Ministers which indicate that their Department is
completely outside their control. Not a very reassuring state of affairs.
This, of course, is an administrative matter, not strictly within the
purview of a Law Commission - but which is important if this State has to
function under the Rule of Law.
Averthanus L. D'Souza,
D-13, La Marvel Colony,
Dona Paula, Goa 403 004.
Tel: 2453628.
