Introduction
The corruption is an evil that affects negatively the development of the society, in general, and of our country, in special.
In the scope of the administration of justice, the corruption corrodes the normal functioning of the institutions, because it constitutes a diversion of the purpose for which they were created, which is to provide an efficient and effective justice, grounded on the law, on the applicable uses and customs.
The diversion inherent to the corruption consubstantiate a mortgage of the most elementaries principles of functionating of the institutions of the administration of justice and of the rules and principles that guide the practice of the procedural acts for tutelage of the interests protected by law, to embrace unconfessed purpose of obtaining illegal advantages, which stain the reputation of our justice.
Therefore, it is urgent to fight the corruption and, for that purpose, is necessary the engagement of the authors of the administration of justice, among them the three grounds of the administration of justice, namely the attorneys, the judicial magistrates and the public prosecutors. Considering the role that each one of the grounds has in the administration of justice, the fight against corruption demand the engagement of everyone to report the conducts that indicate the practice of corruption.
So, the organs of discipline of the grounds of the administration of justice have a very important role in the fight against the corruption because, in discipline matter, it is up to them to judge the reports that are submitted to them in that way. Therefore, the way those reports are treated may encourage or discourage the practice of acts of corruption by their members.
That is why, the organs of discipline must treat the reports in mention with the necessary seriousness that is duo, performing all the indispensable diligences to ascertain the truth of the facts. The organs of discipline must also collaborate with each other, in the exercise of their functions, in favour of the material truth, because only in this way it is possible to guarantee, with the necessary grounds: the institution of disciplinary proceedings, when there are evidences that indicate the perpetration of disciplinary infractions by the professionals under their jurisdiction, which may end up with application of disciplinary sanctions to be graduated pursuant to the circumstances of its perpetration; or the dismissal of the reports, when are not gathered enough evidences to sustain the facts that are imputed to the professionals under their jurisdiction.
Following that, the approach of this matter has a great importance to uncover the path that may be taken in favour of the fight against the corruption in the System of The Administration of Justice.
In these terms, we’ll make the approach of this matter in the following three sections, namely:
- In the section I, we’ll make the approach of the CORRUPTION IN THE SYSTEM OF ADMINISTRATION OF JUSTICE;
- In the section II, we’ll make the approach of THE ROLE AND THE PRACTICES OF THE ATTORNEYS, MAGISTRATES AND PUBLIC PROSECUTORS IN THE FIGHT AGAINST CORRUPTION.
I. Corruption in the System of Administration of Justice
I.1. The composition of the System of the Administration of Justice
Through the analysis of the normative instruments in force in the Mozambican legal system, it may be easily noted that our legislator elected the attorneys, the judicial magistrates and the public prosecutors as the grounds of the system of the administration of justice in Mozambique, among which there is not an hierarchy or subordination, which means that they must treat each other with reciprocal consideration and respect [article 59 of the Mozambican Bar Association Statute (MBAS), approved by the Law nr. 28/2009 of 29 of September].
Among several normative instruments, in which the position of the legislator in mention is stated, we may mention the following:
a) In respect to the attorneys,
The Law nr. 7/94 of 14 September (already revoked), Law that created the Mozambican Bar Association (MBA), in which, in its preamble, defines the advocacy as one of the grounds of the administration of justice.
The Constitution of the Republic that, in its article 63/1, states that the Estate assure to those who exercise the power of attorney for the record the necessary immunities to its exercise and regulate the forensic assistance as an essential element for the administration of justice. The articles 52 and 53 of the MBA state that only the attorneys (and the trainee attorneys) may exercise the power of attorney for the record.
The Law nr. 24/2007 of 20 of August, which states, in its article 20/1, that the attorneys participate in the administration of justice and have the competence, according to the law, to provide judiciary assistance and must be treated with respect and dignity that the function demands.
The MBAS that, in its article 72, states that the attorney is indispensable to the administration of justice.
b) In respect to the judicial magistrates,
The Statute of the Judicial Magistrates, approved by the Law nr. 7/2009 of 11 March that, in its article 1/1, states that it is a function of the Judicial Bench, to administrate the justice and to execute its decisions.
The Code of Civil Procedure (CCP) that, in its article 156, states that the judge have the duty to administrate the justice, issuing decisions or sentences on the outstanding matters and complying with the decisions of the superior courts.
c) In respect to the public prosecutors,
The article 4/1 of the Law nr. 1/2022 of 12 January combined with the article 20 of the Law nr. 24/2007 of 20 August, that states, among others, that the public prosecutors, in procedural scope, have the competence to defend certain interests, to promote certain acts, to participate in certain dilligences, to exercise the criminal action and to conduct the pre-sentence investigation of the criminal procedures on tributary and financial infractions, among others.
I.1.2. Organs of discipline
Each one of the grounds of the system of administration of justice has its own organs of discipline.
The attorneys have the Jurisdictional Council of the MBA as their organ of discipline (article 36 of MBAS).
In respect to judicial magistrates, there is a division between the judicial magistrates and the judicial magistrates of the administrative, customs and tax jurisdictions, therefore, we have two organs of discipline for each of them, namely, the Superior Council of the Judicial Magistrate (article 98 of Judicial Magistrates Statute, approved by the Law nr. 7/2009 of 11 of March) and the Superior Council of the Administrative Judicial Magistrates (article 1 of the Law nr. 23/2013 of 1 of November), respectively.
The public prosecutors have the Superior Council of the Public Prosecutors as their organ of discipline (article 223 of the Law nr. 1/2022 of 12 of January).
I.2. Concept and legal framework of the corruption
The corruption consists in the fact that a person offers, secretly, a material good or advantage (whatever is) to another person, public or private employee, to provide a determined service, information or to practice a determined act in his/her benefit or in benefit of third parties, in violation of the law and in violation of the duties to which is bounded the mentioned person.
The legal framework of the corruption is stated in the articles 425 and the following articles of the Criminal Code (approved by the Law nr. 24/2019 of 24 of December).
II. Role and practices of the attorneys, the judicial magistrates and the public prosecutors in the fight against the corruption
II.1. Role and practices of the attorneys in the fight against the corruption
The attorneys are indispensable in the fight against the corruption and, therefore, they have to adopt conducts that discourage the corruption, among them, the report of the facts practiced by other attorneys, by judicial magistrates and by public prosecutors to the respective organs of discipline, for the purpose of exercising the disciplinary action.
However, the corruption is, mostly, performed in closed environments, between its authors and, for that reason, is, mostly, hard to uncover. The suspicions on the existence of the corruption by the person that have not participated on it occur, mostly, in case of practice of acts manifestly illegal by the judicial magistrates and public prosecutors in benefit of a determined part in the proceedings or, in respect to the attorneys, in case they practice procedural acts manifestly prejudicial to his/her constituent in benefit of the counterpart.
Are frequent the cases in which, in face of acts manifestly illegal practiced by judicial magistrates in proceedings, the attorneys submit applications to impugn the mentioned acts, demonstrating their manifest illegality, but the said impugnation are dismissed with unjustified reasons, perpetuating the illegality of the act. As an example of these cases, we have the situations in which, in an unspecified injunction, the applicant applies for it stating that the court should name a third part as a depositary to avoid the deterioration of a certain good to safeguard the useful effect of the main action, but the judge order the injunction and name the defendant as the depositary. This decision, beside the fact that is not grounded on the law, attempts heavily against the purposes of the institution of the injunction in mention, namely the transfer of possession of the good in question from the defendant (to the third person) to avoid its deterioration and to safeguard the useful effect of the main action. The naming of the defendant as a depositary, turns the decision useless, considering that the good, that was already in the defendant’s possession, will continue in his/her possession and deteriorating, frustrating the purpose subjacent to the injunction in question.
In face of this situations of manifest illegality, beside the practice, in the proceedings, of procedural acts to overcome the illegality in mention, the attorneys must report them to the organs of discipline of the judicial magistrates for institution of disciplinary actions against them.
The illegal acts in mention, notwithstanding that, mostly, may not exist substantial elements susceptible of qualifying them as acts of corruption, are, mostly, motivated by corruption. It is hard to cogitate another motivation for the cases in which an unspecified injunction is ordered, but, instead of naming the third part as a depositary, the defendant is named as a depositary.
Therefore, the role of the attorney, before this kind of situations, is to use the legal means at his disposal, among which the report to the organs of discipline of the magistrates, to repair the illegality. In case of dismissal of the reports, the attorneys may appeal, according to the law.
Furthermore, being an obligation of the attorney to not get involved in acts of corruption, it is his/her role to plead using his knowledge, proving legal services to his constituents based on the legal means at his/her disposal and in the elements of fact and proves handed to him by them, avoiding any conduct that may consubstantiate in corruption.
It has been practice the attorneys to report conducts that may represent disciplinary infractions against other attorneys, judicial magistrates and public prosecutors before their respective organs of discipline.
II.2. The role and practices of the judicial magistrates and public prosecutors in the fight against corruption
II.2.1. The role and practice of the judicial magistrates in the fight against corruption
The judicial magistrates have a key role in the fight against corruption because they have the power to lead and discipline the procedural acts (article 17/3 of the Code of Ethic of the Judicial Magistrates, approved by Resolution nr. 2/CSMJ/P/2022, de 24 of October).
Therefore, in case the procedural parties, their attorneys, public prosecutors or other judicial magistrates contact the judicial magistrates to practice a certain act in the process, through the concession of a material good or any other advantage, in disadvantage of the counterpart and without fulfilment of the legal requirement for that purpose, the judicial magistrates must use the legal means at their disposal to face the act of corruption and discourage similar situation in the future.
So, in case the contact in mention is made by the procedural parts, the judicial magistrates must submit a report for criminal action against the said part and, in case the contact is made by attorneys, public prosecutors or other judicial magistrates, beside the report for criminal action, the judicial magistrates must submit a report to the respective organs of discipline (article 9/13 of the Code of Ethic of the Judicial Magistrates, approved by the Resolution nr. 2/CSMJ/P/2022 of 24 of October).
The judicial magistrates have usually submitted reports against attorneys, public prosecutors or other judicial magistrates to the respective organs of discipline for incorrect conducts.
II.2.2. Practices and role of the public prosecutors in the fight against the corruption
The public prosecutors have also a key role in the fight against corruption, considering the competences that are granted to them by law, in the procedural scope, to defend certain interests, to promote certain acts, to participate in certain diligences, to exercise the criminal action and to lead the pre-sentence investigation of the criminal proceedings and of the proceeding related to tributary and financial infractions, among others (article 4 of the Law 1/2022 of 12 of January).
Therefore, in case they are contacted by the parties or procedural intervenors, by their lawyers, judicial magistrates or by other public prosecutors, to practice a certain procedural act in violation of the law and causing damage to the Estate and other interested persons, through a concession of a material good or any advantage, the public prosecutors must use the legal means to face the situation, in the same terms we said in respect to the judicial magistrates, with the necessary adjustments.
The public prosecutors have the practice of submitting reports against attorneys, judicial magistrates and other public prosecutors to the respective organs of discipline for incorrect conducts.
III. The actuation of the organs of discipline of the grounds of the administration of justice
When the organs of discipline act with the seriousness that are bounded to, an fertile environment is created to institute disciplinary proceedings against the professionals (transgressors) under their jurisdiction and their sanctioning in case of existence of probatory elements for that effect, as well as an fertile environment for dismissal of reports, in cases of lack of evidences.
Anyway, the seriousness actuation of the organs of discipline in respect to the reports that are submitted to them has a dissuader effect, in relation to the professionals (transgressors) under its jurisdiction, for perpetrating disciplinary infractions, in general, and in relation to disciplinary infractions concerning the practices of corruption, in particular.
The publicity of the deliberations of the organs of discipline intensify the dissuader effect to perpetrate disciplinary infractions, mainly those concerning to the practice of acts of corruption, because it exposes the incorrect practices and its consequences, reaching further persons not involved in the case.
III.1. The actuation of the Jurisdictional Council of the MBA
Several reports relating the to the violation of the statutory duties by the attorneys have been submitted to the Jurisdictional Council of the MBA, among which there are reports with elements that indicate the practice of acts of corruption by them.
The judicial magistrates and public prosecutors are among several entities that submit reports against the attorneys, in which they address facts that they had knowledge in the exercise of their professional activities as those facts are susceptible to constitute disciplinary or criminal infractions.
In this sphere, there are records of many criminal proceedings instituted by the public prosecutors against the attorneys for perpetrations of acts of corruption and records of reports of the respective facts to the Jurisdictional Council for the purpose of exercising the disciplinary action against them.
However, some of the reports in mentioned are not supported with the evidences of the facts that are imputed to the attorneys, which, mostly, make it impracticable the exercise of the displinary action, ending up with the dismissal of the reports.
Notwithstanding, the reports are only dismissed after the fulfilment of diligences to getter evidences, mostly, through notifications of their authors to provide evidences to sustain them. Unfortunently, there are cases in which the evidences are not provided or in which are provided, but without enough probatory strengh to sustain the facts that are imputed to the supposed transgressors. In the other hand, there are cases in which the evidences are provided to sustain the facts imputed to the supposed transgressors, making viable the institution of the disciplinary proceedings against them, after compliance of all the legal procedures stated for that purpose.
III.2. The actuation of the organs of discipline of the judicial magistrates and public prosecutors
Several reports related to the practice of acts manifestly illegal by judicial magistrates and public prosecutors are submitted to their organs of discipline by attorneys, judicial magistrates, public prosecutors and other interested persons. Although there are not evidences that those acts are motivated by corruption, they (the acts) have all the elements of acts motivated by corruption, mainly when they have been contested in that way in the proceedings they were practiced, but those contestation were dismissed, notwithstanding the manifest illegality.
Specifically, in respect to the reports submitted against the judicial magistrates and public prosecutors, there are records of:
a) Reports that are submitted to the Superior Council of Judicial Magistrate against the judicial magistrates by the attorneys, parties in certain proceedings, public prosecutors and other magistrates.
b) Reports that are submitted to the Superior Council of Administrative Judicial Magistrate by the attorneys against the judicial magistrates of the administrative magistrate;
c) Reports that are submitted to Superior Council of the Public Prosecutors against the public prosecutors by the attorneys, parties in certain proceedings, organization of the civil society, members of the SERNIC, members of the PRM, judicial magistrates and other public prosecutors.
In respect to the reports in mention, there are records of cases of institution of disciplinary proceedings. However, there are also records of cases of dismissal of the report based on the fact that the reports deal with matters that may only be impugned in judicial proceedings, being those matters out of the scope of the competence of the organs in mention. Therefore, these organs recommend the persons who submit those reports to use the appropriate means to safeguard their interests.
Therefore, there is a big challenge in the determination or definition of the matters or facts of the jurisdiction of the organs of discipline in mention, so that they can be used correctly in the discipline of the professionals under their jurisdiction for dissuading unlawful behaviours.
Conclusion
The attorneys, judicial magistrates and the public prosecutors, as they are the three grounds for the administration of justice, have a crucial role in the fight against corruption through the report of the acts of corruption, involving anyone of them, to their organs of discipline and to the public prosecutor’s office, considering that, based on those reports, may be performed diligences to assess the truth of the facts that are imputed to the supposed transgressors in order to institute, with the necessary grounds, disciplinary proceedings or criminal proceedings or dismiss the report.
When the organs of discipline act with the seriousness that are bounded to, an fertile environment is created to institute disciplinary proceedings against the professionals (transgressors) under their jurisdiction and their sanctioning in case of existence of probatory elements for that effect, as well as an fertile environment for dismissal of reports, in cases of lack of evidences.
The seriousness actuation of the organs of discipline in respect to the reports that are submitted to them has a dissuader effect, in relation to the professionals (transgressors) under their jurisdiction, for perpetrating of disciplinary infractions, in general, and in relation to disciplinary infractions concerning the practices of corruption, in particular.
The publicity of the deliberations of the organs of discipline intensify the dissuader effect to perpetrate disciplinary infractions, mainly those concerning to the practice of acts of corruption, because it exposes the incorrect practices and its consequences, reaching further persons not involved in the case.
