The Goan Question: Dr. Bruto da Costa
Prax Maskaren, Bombay. The following remarkable document was posted by the renowned Goan patriot and nationalist, Agnel Gomes, on the GoanCauses list he moderates. I have made some minor grammatical corrections and reformated the page. Where there is a substantial change, my words are in red. Gomes too has made this document into a webpage.
Part II
Message 11428 & 11429 GoanCauses Yahoo! Discussion List
From: Agnelo Gomes <AAssoc4994@a...>
Date: Mon Mar 17, 2003 12:58 am
Letter of advocate Dr. A A Bruto da Costa addressed to the Indian Federal Prime Minister J. Nehru, dated 15th August 1962.
Continued from Part I
But I wonder: what is Goa's present juridical position?
Goa was conquered by the Portuguese in 1510. It was at that date a part of the kingdom (Sultanate) of Bijapur. The Portuguese had maintained themselves here, immune almost to all the political ups and downs till the date of invasion by the Indian forces on December 19th, 1961.
During these former periods of history war gave rise to nobility, and conquest was an absolutely legitimate act. It was from the conquests that new nations were born.
"In the primitive society" wrote a great and important Portuguese historian "all were both farmers and fighters, later division of labour separates these two functions; there is no longer any changing between the sword and the plough, because it is for some to fight and for others to labour. Conquest follows: wealth and glory is the reward for the victor, labour and slavery the sorry lot of the vanquished. The earlier division of functions becomes a deeply rooted division of classes to such an extent as to be sanctified as castes. The warrior, noble man and victor with the pride of power and blood extends his own self, heightened by victory, over the land that he grabs and over the natives whom he enslaves. Man puts the very essence of his active
personality in the concept of war. Thus war becomes the expression of his sovereignty: and at the same time conquest which becomes his natural expression and victory becomes the natural social selection. Further on come into being typical formulation of family units and social units, of clans and cities and into more bigger collective bodies, which we can call nations" (Oliveira Martins, Q. das Inst.Prim.)
With the rise of modern states or nations the people and the government felt the need of uniform dispensation and action, a need resulting from the existence of common interests. According to eminent historians, it was the Thirty Years' War, that was responsible for the origin of the system called modern states. It was at that time that one witnessed the publication of the
first treatises on International Law.
Thus, it was with the Treaty of Westphalia signed on 24th October 1648 that we entered the period of organising International Law, also called as Rights of People, with the purpose of regulating the rights, duties and interests of Nations and the norms to be followed in mutual relations among the Nations.
In conformity with these norms and according to what was established in 1933 at the Montevideo Conference, a State or Nation which as a juridical person subject to International Law has the following characteristics:
The right to existence is the first and the most important of the rights. Every State historically formed has the right to exist and the right to preserve its own existence and it is the duty of other States or Nations to respect this right of existence.
One can divide the States into Unitary and Composite.
A Unitary State is one that has only one political organisation which fully exercises internal sovereignty and has liberty to exercise external action.
To be such a State it does not demand that there should be continuity of territory nor that it has homogeneous social elements.
The Constitution of the Portuguese Republic states in its art.4 that the Portuguese State consists of an independent State. And in the art.5th defines the Portuguese State as unitary republic. From this it follows that regarding the classification of States, Portugal has a Unitary form.
In art.1 it lays down what is the territory over which the Portuguese Government exercises its sovereignty. As one finds in art.4 in Asia it comprises of the Estado da India and Macau and its corresponding dependant territories.
O Estado da India in its turn comprises of the territories of Goa, with the island of Anjediva, the island of St. George and Bat Island on the Malabar Coast; Daman with the territories of Dadra and Nagar-Aveli on the coast of Gulf of Cambay and the island of Diu with the continental territory of Gogola on the coast of Gujarat.
So, call it an overseas province or a colony, and as such, not an autonomous territory, the Estado da India on the date of invasion, was a Portuguese territory.
However grave may have been the sins of the Portuguese administration in Goa (and many cried to the heavens on the matter) yet no one, in good faith can deny the legitimacy of sovereignty of Portugal over Goa, Daman and Diu.
In the presence of facts, arguments haven't any value and much less are worth gross subterfuges.
Your Excellency is surely aware that it was due to India that in the very heart of the U.N.O. a violent strife did occur ... I mean, a strife of words, regarding the fulfilment of the obligation binding the member States "that they have or assumed the responsibilities for the administration of territories whose people have not yet attained a complete form of self rule"
as per the U.N. Charter, art.73 line e.
Because of this an ad-hoc Committee of six members — U.S.A., India, Morroco, Mexico, Netherland and U.K. with N. Ireland - to define and enumerate the principles that ought to guide the members of the U.N.O. in order to determine if the obligations of supplying information, as envisaged in the above mentioned article and line, were applicable or not.
This adhoc Committee gave its view and established that, in Principle 1, that "as per the framers of the Charter of the U.N.O. the chapter 11 should apply to the territories which were at that time to be of colonial type" (Julio Evangelista, Portugal & UNO)
In principle VI it (the ad-hoc committee) added that these territories achieve full sovereignty:
Whilst dealing about clause b), "free association" it based on the VII the Principle, the rule, that this should be the result of free and voluntary choice of the people of the territory in question. This choice must be, on due information and by democratic methods and that "this free choice should respect the individual cultural characteristics of the territory and its
people and, to the people of the associating territory with an independent state, retain to them the freedom to modify or change their status by expressing their choice by democratic and constitutional processes."
In the IInd Principle whilst dealing the topic of integration the committee fixed the following conditions:
1st - "The territory which is integrated should have attained an advanced stage of autonomy having free political institutions so as the people should have capacity to make the right choice, made with due democratic procedures and with complete knowledge of the matter".
2nd - That "the integration should be the result of a freely expressed choice made by the people with due knowledge about the changes in their status and this assessment of people's wishes should be done by democratic procedures and after wide publicity and in an impartial manner and on the basis of universal adult franchise."
These and other principles laid down by the ad hoc Committee of Six were approved by the General Assembly of the U.N.O.
Later, whilst dealing about Portuguese Overseas territories approving the motion presented in the Trusteeship Council by India, along with other nations, and in which it states that it recognizes "that the desire of Independence is a legitimate aspiration of people under the colonial yoke and that the refusal to recognize their right to self determination constitutes a
threat to the well-being of humanity at large and a threat to international peace," It was established that the same, namely "Goa and its dependencies called Estado da India are in the light of dispositions of Chapter II of the UNO Charter, and of the resolution 742 (VII) and of the Principles mentioned by the Special Commission of Six and approved by the General
Assembly, that they are territories without a government of its own as per the definition of Chapter II of the Charter.
I wish to point out above all:
1st-That India was a member of the Commission of Six and the President of the same Commission was C.S. Jha, the Indian delegate.
2nd-that this Commission worked having for its basis a framework drawn up by the Indian delegation.
3rd-that India voted not only at the Commission of Six but also at the General Assembly relating to the points mentioned above, and
4th-that India recognized expressly that Goa, Daman and Diu were territories non-autonomous or without a government of its own under the Portuguese administration.
At this juncture before proceeding any further it would be opportune to remember some more of the many showy statements and pompous promises made by Your Excellency regarding Goa. Thus, addressing the Congress Committee of Uttar Pradesh at Sitapur on 21st August 1955 you said "It is not true that we covet Goa. That small bit of territory does not make any difference to this great country". "We do not desire to impose ourselves on the people of Goa against their wishes. It is definitely their responsibility to choose for themselves." "We have assured the Goans that it is for them to establish their own future and I further assured them on matters such as religion, languages and customs."
In the following month, i.e. on 6th Sept. Your Excellency in your speech to the Rajya Sabha repeated the same idea in more precise words: "I wish to remove from the mind of each and every person the idea that we have decided to compel or force the people of Goa to join the Union of India."
Thus, to fulfil all these repeated statements it was the bounden duty of the Union of India, once it had interrupted the Portuguese Sovereignty in Goa, to hand over the exercise of political power to the Goans. So that they (Goans) could outline their own future by democratic methods on matters of free association with or integration with another State (country). But, far from doing this, after taking possession of Goa, by the use of force you have imposed on us Military Rule under some pretext or the other and a few months later on 12th of March — perhaps to make a lasting impression of the visit of the wife of the President of the USA — Your Excellency was presenting in the Lok Sabha an Amendment to the Constitution, which stated that Goa, Daman and Diu to be integrated as 'Union Territories' (i.e. dependent territories) in the Union of India. And yet another bill was introduced which was giving the Government of India the power to maintain or change the legislation in force at one's discretion and to make the jurisdiction of the Bombay High Court extend to Goa.
And this without being restrained by all the assurances and promises referred to above and of solemn statements given:
In short, all that were mere words which the wind just blew them off...
In Part I under the heading "Of the Union and its territories" of the Indian Constitution it lays down in Art. 1st number 3 clause c) that "the territory of India will comprise of," besides others "the territories which might be acquired."
In the preamble for the proposal of the 12th ammendment to the Constitution of India it says that Goa, Daman and Diu have become territories of the Indian Union by virtue of acquisition.
Durga Das Basu, member of "Law Commission of India" clarifies that "acquisition" which the Constitution refers to has to be by way of purchase, treaty, surrender or conquest. (Introduction to the Constitution of India)
Indeed, the means of acquisition of territorial sovereignty recognised by International Law are: occupation, annexation, accession and legal prescription.
By which of these means does the Indian Union claim to have "acquired" sovereignty over the State of Portuguese India? According to experts in International Law none of the above applies to this your desire of acquisition.
It is not the first, for occupation consists in establishing sovereignty on a territory which is not under the authority of any other State, either recently discovered or quite improbable - abandoned by a State which earlier exercised authority over it. And The Estado da India was at that time under Portuguese State.
It cannot be the second case, for to have annexation it was needed that a war should have taken place, followed by conquest and a peace treaty. The Indian Union denies that any war took place and consequently no conquest. Portugal in her turn assures us that the fight is not over and even went further and constituted a government in exile of their "State of India".
And, in any case, there exists no convention between the two nations regarding the territories in question, and much less about Portugal ceding them to the Indian Union.
It cannot be the third case, because the decisive factor is that an accession takes place when the new territory incorporates itself solely due to such nature where the acquiring State was already exercising sovereignty in the territory. No such thing did occur in this case.
It cannot be the fourth because as already stressed there was no ceding of the territory and Portugal continues still to claim its rights and was never even willing to discuss about its Sovereignty over Goa.
Finally not even the fifth case, seeing that for an acquisitive legal prescription to operate, it is indispensible the existence of a peaceful exercise of sovereignty for a long period of time. Besides, in order to build up a right by legal prescription it is needed that the ownership does not have for its basis an act of violence.
From this one can infer that the argument of acquisition does not hold water at all. Therefore the State in which the territories of Goa, Daman and Diu find themselves is of plain military occupation on the part of Indian Union.
According to the norms of International Law, an occupation resulting from an invasion does not transfer to the occupying State the sovereignty of the occupied territory.
It involves only, that the occupying Power in exercising military authority should do it in consonance with International Law and transfers on the occupant the power to re-establish and ensure as much as possible order and public security with due consideration to the laws earlier in force.
Equally, from this occupation, no change in the nationality of the local citizens follows nor does it imply complete transfer of obedience due to the deprived government.
Among others, Mr. Krishna Menon, in his eagerness perhaps, to deceive the na�ve or possibly to lull sister Afro-Asiatic nations in their contented blind error, has sought to defend the Indian aggression alleging that "Goa is India" and that therefore "one cannot conquer one's own territory" if it is for a legitimate redressal.
No one, surely, disputes that geographically Goa, Daman and Diu form part of the Indian penninsula. But, it is one thing to be a geographical part of the Indian penninsula and quite another to be politically part of the Indian Nation.
India was never a political connotation and as such never a nation. It is a mere geographic expression or as Tagore used to say "is constituted of various nations enclosed in a geographical receptacle". (Nationalism)
The same Mr. Krishna Menon confesses that whilst India as a country or region has a history of 7000 years, as a nation it came to birth 15 years ago (Times of India).
Mr. Jayaprakash Narayan stresses "We were never a nation in the modern sense of the term till the experience of the British rule."
Your Excellency, too, would not be of a different opinion as in other times you proclaimed this very truth: "The English gave political unity to India" (Union of India, Nehru).
Let us hear, now, the impartial Karl Marx: "The Indian society does not have any history or at least, no known history. What we call its history is nothing but the story of succession of intruders who established their empires on the passive base of this restless and unchanging society."
"The political unity of India, which was consolidated and broadened more than ever before during the rule of the Great Moghuls was the first condition of its regeneration. That unity imposed by the British sword will now be strenghtened and perpetuated by the telegraph." (Footnote Marx & Engels).
Sir Jogendra Singh writes that: "those who gradually built up the British empire in India discovered instinctively the secret of how to unify India" and then he points out the way how they themselves set her (India) on the path to nationhood."
Almost identical is the verdict of S.R. Seeley, professor at the University of Cambridge. "The name 'India' he says should not be classified with France or England which indicate nations but rather as the word Europe designating a group of nations which acquired by chance a common name for having been a common land physically separated from the rest of the continent. The word 'India' as a word is only a geographic expression and even as such was not so often used than this last one."
And after studious analysis of India's diverse phases concludes that
1st- 'India' is not a political expression but simply a geographic expression like Europe or Africa.
2nd - that India was not ever really united in a manner as to form one State except under British rule (S.R.Seeley, The Greatness of England).
From this it follows, evidently that Goa could not ever form part of a nation which itself did not exist as such.
And the truth is, that though it might have been geographically a part of the Indian penninsula, politically Goa is part of the Portuguese State for more than 450 years.
No one, therefore, I repeat, can honestly deny that Goa was, on the date of the invasion a Portuguese territory. The very Indian Union on more than one occasion recognised it as such, namely, when India appointed a consular representative in Goa.
As if to put a suitable final touch to all these series of mean tricks, one is organising the Panchayats (village governments; the communidades are the legal village governments), bodies under the control of contractors hailing from India for the purpose of taking for granted the integration of this Golden Goa - dear land of mine which I love so fondly - in one of their States of Mysore or Maharasthra always proclaiming, by all means of propaganda, that this is the will of the people of Goa.
But, this type of 'referundum' has no moral value if we take into cognisance how in some democracies, as it happens in India, the vote can be bought 'at the price of a meal' as you, Sir, have put it. This exercise has far less value in this concrete case of Goa because it is against International Law.
As I have said earlier, this is because, besides territory, the most important characteristic of a State, and, therefore the constituting element of its being, is the right to exercise administrative powers in the place through its agencies or organs. "Sovereignty" means the right to exercise public administration on the people and properties without the interference of other States.
Max Haber, the arbitrator in the case of Las Palmas Island defined territorial sovereignty in the following terms : "Sovereignty in relation to other States, means independence. Independence, relating to a parcel of territory of the globe, is the right to exercise there, with the exclusion of any other State, the functions of a State."
There are no two opinions on the matter. Territorial sovereignty of a State, therefore, implies necessarily the inviolability and the integrity of its frontiers and its soil.
Now, since territorial sovereignty bestows only on the State the right to decide regarding its territory through its government organs, and this, even if you deal about a colonial territory, and whatever might be the outcome of the Panchayats their value is nothing but a big zero.
Thus, as there is no legitimate title of acquisition, the bill concerning the integration of
Goa, Daman and Diu in the Indian Union is null and void, as also are the directives of S.K. Singh, the under secretary of the External Affairs Ministry of the Indian Government. The said directives dated 17th and 28th March extending to the territories of Goa, Daman and Diu the Citizenship Act of 1955 as also the order of the Military Governor dated 5th April are likewise null and void. This is the stark reality.
It is not my intention to say - not at all - that Goa may not attain full sovereignty. This is our right, a right that does not lapse, a right that cannot be assumed by others, right which is inherent to people who are non-autonomous. In this case, the right belongs to the Goans - and has to be exercised consciously and freely as per the framework established by the U.N.O. As a Goan, which I am proud of, I come to defend this right of ours.
Even at the very end in 1961 the Government of India itself, through the Minister of External Affairs, guided and directed by Your Excellency, in dealing with the Goa problem had suggested independence to Goa in the following clear and unequivocal terms:
The UNO is a voluntary association of States (Nations) having for its main objective, as I have been stressing from the start, the maintenance of international peace and security and making force subordinate to justice and to law.
Despite being a member of this organisation - and it needs to be repeated — the Indian Union in order to finish off foreign possessions in India: "Systematically violated the principles and norms of international law, namely the Charter of the U.N." and tore to pieces the basic principles of the Indian Constitution:
And more than anything else, India trod upon the political legacy of two of its greatest nation builders - Gandhi and Tagore. "I did try", said Gandhi, "to put forth before India the ancient law of voluntary sacrifice, law of suffering. The Rishis, who discovered the law of non-violence, were geniuses taller than Newton. They were greater commanders than Wellington. Having known the use of weapons they had recognised their uselessness. The religion of non-violence is not meant only for the Rishis and Sants. It is meant for the common man too. It is the law of the human species, as violence is the law of brute animals. The spirit has remained dormant in the brute.
"Human dignity demands obedience to a higher law - to the power of the spirit... I want that India should practice this law of Non-violence. I want that India acquire full knowledge of the strength and power of this law.
"India has a soul which cannot perish. This soul can challenge all the material forces of the world... Should India someday not know the value or understand this law, I shall retire to the solitude of the Himalayas ". (R. Rolland, Mahatma Gandhi)
"I hope" said Tagore "that this spirit of sacrifice and suffering will gain in strength, for, to achieve this, is an end in itself. This is true liberty. The selfless faith in the moral greatness of man is of far greater value than national wealth or independence. The West has its unshakeable faith in the power of material prosperity, and, therefore however loud maybe the cry for peace and disarmament, the monster of the West yells more fiercely gnashing its teeth and whipping impatiently its tail. The West is like a fish, which when hurt by the rush of the current, makes plans to fly. The idea is brilliant indeed but surely not realizeable for a fish. We, in India have to show to the world what that Truth is, that which not only makes possible
disarmament, but transforms it into a force. People without weapon will prove to all that moral power is a power stronger than brute force. (Romain Roland)
"We have to strive towards the same ideal and in the same way," (I can hardly believe, but these words are yours, Sir!) "Only then will we be worthy to utter, Mahatma Gandhi ki jai!"
"What kind of victory does Gandhiji desire for us? Not a victory that most of the people and nations try to achieve, using fraud, treachery and foul ways. This type of victory is not a stable one. For the foundation of a durable victory can only be laid on the solid rock of truth. Gandhiji offered us a new method of struggle and of political warfare and a new type of
diplomacy." (R. Roland)
The procedure of India in relation to Goa has thrown open a way of every sort of violence, fraud, treachery and foul methods.
As the saying goes "He who sows the wind will reap the whirlwind."
China and Pakistan already threatened to use the same methods to solve their disputes with India. And the worst can happen - may God forbid - if the whole lot of factors jointly conspire against the very unity "imposed by the British sword", in order to re-establish the former princely States of India.
This letter, unwittingly, turned out longer than I had expected and it is time to conclude.
Considering the facts in their legitimate juridical sense, one can conclude:
In short, the military victory did not bestow on the Indian Union any rights.
Portugal, as per International moral code, can at all times make use of its rights.
And the worst - and it is to this I object most - in that the lot of the people of Goa continues to be what it has been across the centuries, the lot of a subjugated people...
I know perfectly well that all over the world the intervention in Goa by the Indian Union has been understood as a flagrant aggression. I know too, that inspite of this, each and every shout of protest against this 'alarming military action' as noted by Adlai Stevenson, will die away without an echo on the threshold of the doors of UNO.
But I still hope. Anyone who is truly just and upright, has sufficient courage and strength, freeing oneself from one's emotions, will respect one's commitments and make up for one's mistakes.
This is the reason for my decision to come forward to tell Your Excellency, that it is up to the Goans and it behooves only to the Goans to decide their own future.
Therefore, as per moral and international laws, it is the duty of the two parties under the aegies of the UNO, to sign a treaty by which they compromise:
This is what I am crying for. It is also the echo of two voices from beyond the tomb: Gandhi and Tagore.
At your service, Sir,
Yours faithfully,
A.A. Bruto da Costa, Margao, Goa. 15th August 1962.
See my comments on the above document