Tuesday, March 3, 2009

Legalising Arbitrariness: The tale of Goa’s sordid descent into legal collapse

What is law? When is it to be respected, when should it be challenged and when should its purported authority be flouted? These are questions that have plagued the Goan citizen ever since the movement against the large scale degradation of the Goan environment in the name of development began. This is a question that needs to be answered if we are to bring some relief to the State. Happily, the circumstances over the past few days provide us with a route to an answer to this question.

The Law is the covenant by which we agree to be governed. The covenant assures us that through the operation of law we will be assured security, peace and predictability through which we can continue with our lives, unhindered and able to develop our capacities and potentials. This covenant binds all the parties to it, State, government and citizens; no one can be outside this covenant. If they are, then they need to be brought into the embrace of this covenant. As long as the Law assures us security, peace and predictability, this Law is to be respected and followed. When the Law does not do so, when we see it being unpredictable, and resulting in a disturbance of the order around us; when the law perpetrates inequality, inequity, injustice, then it is clear that the Law, this covenant must be renegotiated and a new Law brought into place.

Goa is clearly in the throes of a crisis. The State is like a beast, a bull run amock. It cannot be controlled, it does what it wishes and the Law cannot bind it. On the contrary, it seeks to undo the Law so that it is unfettered to do as it pleases. For the State, now, it is the voice of man that replaces the abstract voice of Law. This voice is used to bind the citizen, so that what we increasingly have is a strange kind of tyranny under Law.

Take for instance the case of the Regional Plan process. What is the law under which this entire process has been initiated? What provisions of the law govern the process through which village committees are constituted and then go on to fulfill their tasks under the Regional Plan process? The answer is none. There exists no law, what governs the Regional Plan process is the word of the Chief Minister (who may be here today and gone – God willing – tomorrow) and the word of bureaucrats with their own vested interests. Because there is no law, the process in each village has been different. Some have 5 member committee, other 16, some have met with the Gram Sabha, some have not. Some have prepared ward maps others have not. It is an entirely arbitrary process. Arbitrariness as any student of law will tell you, is something that the Law abhors and strikes down. And yet the same merrily continues in Goa. Law is dead.

The Law to avoid arbitrariness indicates that there must be a process, clearly laid out and applicable to all, without exception. The proposed amendment to the Goa Panchayati Raj Act is a wonderful example of how the State of Goa seeks to ignore this golden principle and institute options through which the voices of the men that control it, rather than the Law, may prevail. The Panchayati Raj system is about including the voices of the people to a greater degree and making their voice binding on the village executive, i.e. the Village Panchayat Secretary. What do the proposed amendments do? They allow the State via its many executive bodies to compel the Secretary to do its bidding. Even more horrifying are the powers granted to the State executive under Section 244 C which allows the Executive to transfer proceedings from one authority to another without clearly indicating on what grounds it does so. It’s a case of if-at-first-you-don’t-succeed, try, try again! If it looks like one authority will not give you the perverted decision you want, simple, just transfer the matter!

The straw that breaks the camel’s back however, has to be the ordinance approved to save the Cidade de Goa. Ordinances are to be resorted to only in the case of emergency. Normal procedure is to pass changes to the Law via a legislature. A fundamental norm of parliamentary democracy was flouted in the instant case. This particular ordinance is shocking in its audacity. That it has been instituted to save just one hotel – Cidade de Goa- is bad enough. What is worse is that once written into the law books, this exception will be extended to all illegalities and irregularities in Goa. Ofcourse, this largesse of the State will be extended only to those who can purchase the State, not for the much touted, but much sinned against, common man. What the ordinance essentially does is to say that if you somehow managed to evade laws and agreements, and got approvals, permissions and licenses from the State, then if you are rich and influential enough (which is how you got those permissions in the first place) we will forgive you. On the contrary, given the number of State dinners that take place at the hotel Cidade de Goa, we will award you handsomely!

What is going on in the State of Goa is the systematic institution of arbitrariness. What the examples above represent is the insertion of arbitrariness into the law and legitimization of this arbitrariness. Unfortunately however, it is only going to delegitimise the Law. Further what the political establishment doesn’t seem to realise is, that arbitrariness, is opposed to the spirit of capitalism. Predictability of the system has been identified by many scholars, not least of whom being the venerable Max Weber, as a fundamental requirement for capitalism to take root. In destroying the basis of a predictable system, in the name of Capitalism and ‘Development’, what the State is doing is laying the basis for is a total destruction of economy and enterprise in the State. What it is creating scope for is private profiteering, and this is very different from capitalistic entrepreneurship.

The length, strength, and duration of the protests against the State and its combination with the profit interests of a few indicate that the people are tired of this nonsense. It is in this context that we have to realise that the actions of the State are the desperate attempts of a crumbling regime. The State of Goa will have to be rearticulated soon. I say State, since it is not just the Government in power, but the whole political complex that prevails – Government and Opposition- that is guilty of these actions. Every time a genuine objection is presented before the State that should be protecting us, the rules of the game are ‘legally’ changed. This change would not be so problematic if it weren’t for the fact that these changes are being wrought to methodically destroy all systems of law and order to institute chaos within the State. This state of chaos will be such that those with brute power will win. What these forces don’t seem to realise though, is that two can play a game.

(Published in the Gomantak Times 4 March 2009)

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