The Post-Colonial State
The post-colonial state in its localized form portrays certain vivid tensions located in the State of Goa, a former Lusotopic province, liberated at varied point of time from other encrustations of India which were under varied colonial sovereignties.
First, the fractured administrative-legal system powerfully works towards the fracturing of the administrative-legal machinery itself. Within the juridical administration, the majority of judges in the lower courts, while were trained in the Portuguese System of Law and higher echelons of the judiciary comprises judges with Indian Law degrees and background. They intended to apply Portuguese laws within the English-Indian system even as some aspects differed from the canons of interpretation of statutes of the continental (specifically Lusotopic) system.
The administration was fractured between officials who served under Portuguese administration and were conversant with Portuguese system and language, and those engaged after liberation, who as the former faded out through retirement simply ignored the Portuguese law for want of expertise in understanding and interpretation.
Second, the rule of implied repeal which was engaged in Goa for adoption of Indian laws by extension or enactment as opposed to express repeal, created divergent interpretations in law courts and administration compromising a fundamental axiom of democratic regimes, viz. equality before the law. Does one explain it in terms of the shifting contours of imperialism, in Marxian formulation ? Or are all transitional formulations caught in the problematique of systemic contradictions which leads us to the translocal disembodied notion of state.
Third, as subject peoples transgress from subjugation regimes to self determination, cultures generally see a resurgence or consolidation of identity space – endogamous language, dress codes and lifestyles. Of these, the most challenging transitions are those of language. In Lusotopic societies as Portuguese moves from the language of state to that of colonial identity, and English takes its place in higher echelons of bureaucracy and Konkani at lower and mid ranges of administration (as cultural assertion), what one confronts is the problems of translations of the text (in this case Portuguese law) and message from the language of origin to that of ultimation, without change of the meaning and always respecting the cultural and linguistic features of the language of ultimation.
In case of juridical translation, the syntax has to measure up for communication between not two languages alone but two juridical cultures. This is a pervading constraint in all Lusotopic and non Lusotopic territories. Referring to the transition of Hong Kong from British sovereignty to Chinese, Sergio de Almeida Correia and Pedro Horta e Costa (1989) wrote “ Juridical translation involves a communication between juridical cultures, it demands that the translator not only command two languages before him, but also requires a special sense of knowledge of law ”24. The Civil Code of 1857 translated in its entirety nearly thirty years after liberation “ whose original is in Portuguese and its translation made available to us in English may not be free from some mistakes ”25. The translation of Portuguese laws and documents was a severe burden on litigants, besides delaying the course of justice26. Till date twenty three laws of Portuguese origin are still in force in Goa, even it they may have outlived their utility they have not been formally repealed27.
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The transitional state caught in the web of historic prolematique of diverse systemic opposites has attempted to define the state in two tautological propositions. One, it is suggested that “ the scrapping of the Portuguese system and full replacement of the Portuguese laws by Indian legislation, appears to be easier and brought with less danger than otherwise ”, as opined by the Law Commission (of 1968) appointed to advise the post-colonial government. This augurs from the Law Commission observation that the Portuguese legal system which survives in the former colony has been destroyed by extension of two hundred Indian laws at liberation. This strategy would serve the collective interests of the whole population and the “ pace of national integration of the communities of Goa, Daman and Diu into the Indian mainstream ” (Colaco 1997 77)
The second argument made by some prominent lawyers is that certain instrumentalities of Portuguese legal system like the “ Portuguese Civil Code of 1967 is a heritage of Goa and a legacy of the Portuguese and we must be proud of it ” (Usgaonkar forthcoming). This is especially in view of the fact that Article 44 of the Indian Constitution which refers to Directive principles of state policy recommends the augmentation of a uniform Civil Code. The argument is posited on a specific identity difference of Goans vis-à-vis the other communities of India, while identifying for themselves a space within the large Indian political spectrum28.
The first perspective seems to be hemmed in by a kind of negativism on the issue of self representation and construction of entities, like the state, or its components. To speak of one’s space is the most problematic. Can the Indian state (in this case the federal component – Goa), be defined irreducibly by shutting out the Lusotopic element of its history. The space a state occupies is necessarily explained by its history. It is a position into which it is written29.
On the other hand synthesis have more problems than answers to offer. The problems associated with transition of colonial territories are diverse and dependent on their historical trajectories and cultures. Conditions under which state appears as cohesive and unitary whole, will differ. Though there may be a temptation to underline this as a further instantiation of the failure of democracy and state constitution in developing countries, in the post-modern tradition one could argue about the theoretical limitations of concepts of democracy and state, and their inability to encompass the transitional or post-colonial processes in developing countries, as western scholarship is largely inclined towards the “ eclipse of empires ” processes.
The state has to be conceptualized in a more desegregated and subaltern form. But to lay claim to construct exclusively indigenous theories encompassing these processes based on an ontological imperative (by the mere fact of being there), one must ignore the last few centuries of historical involvement. This would further contaminate the construction of state theories in transitional and post-colonial societies. In its conception, the state is not merely to be perceived as a space that has to be defined. The state is a provider of space. Its capacity to provide space is enhanced only when it is able to assimilate the exchanges with citizens. The state does not predetermine the outcome of these exchanges but merely ensures its continuance. Only such an accommodative and communitarian state can subsist with apparent “ breakdown ”, that is actually an instrumentality through which it is constituted and up to now defies theoretical encapsulation.
Department of Politics, University of Goa, Goa-India
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