Introduction
In the Mozambican legal system, the Constitution of the Republic is on top of the hierarchy of the laws and is immediately followed by the ordinary laws (the laws issued by the National Assembly) and the decree-laws, which necessarily implies that the provisions of these two last legal instruments must adjust to the provisions of that first.
Among several matters established in the Constitution of the Republic, are those related to the organs of sovereignty, among which, and to what concerns to this discussion, the courts.
In its article 229, paragraph b), the Constitution of the Republic establishes that the Administrative Court has the competence to judge the contentious appeals against the decisions of the organs of the Estate, of its respective holders and agents. To this provision adjust the provisions of the several ordinary laws, mainly:
i) The provision of the article 3, paragraph a), of the Law nr. 7/2014 of 28 of February, which establishes that the administrative jurisdiction has the object of guaranteeing the effective tutelage of the rights and interests legally protected of the persons in the relations, ruled by administrative law, that they establish with public corporate persons or private persons;
ii) The provisions of the articles 4 and 28 [paragraph a)] of the Law nr. 7/2015 of 6 of October (amend and republish the Law nr. 24/2013 of 1 of November), which establish that the Administrative Court has the competence to judge the appeal of the administrative acts or in administrative matter issued by the members of the Council of Ministers.
However, in the Mozambican legal system is abundant the jurisprudence of the Administrative Court oriented to the perspective that it has no competence to judge the contentious appeals of the decisions of the Minister of Labour and Social Security, mainly in contravention matter, allegedly because the labour courts are those who have such competence under the provision of the article 13, paragraph e), of the Law nr. 4/2021 of 5 of May (which amend and republish the Law nr. 10/2018 of 30 of August). This situation is highly problematic, considering that the mentioned provision does not remove the competence of the Administrative Court to judge the contentious appeals against the decisions of the Minister of Labour and Social Security, according to our following discussion.
I. The of scope of the administrative acts and of the administrative jural relations
For a better approach of the matter in discussion, it is crucial to clarify the scope of the administrative acts and of the administrative jural relations.
Administrative acts are the decisions of the organs of the administration that, under the public law, have the purpose to produce effects in particular and specific situation[1]. Are examples of administrative acts the decisions of the Minister of Labour and Social Security, in contravention matter, in the scope of his intervention (in other words, in labour and social security scope), with the purpose of producing legal effects into the legal sphere of the administered (individuals or corporate persons).
In the other hand, are administrative jural relations those established between institutions or organs of the public administration and the administered, under the rules of the Administrative Law, in which the first ones (institutions and organs of the public administration) have the power of authority over the second ones (the administered).
Are example of the administrative jural relations those established between the Minister of Labour and Social Security and commercial entrepreneurs (administered)[2], in the scope of the procedures set by law for impugnation of the decisions of the organs under its tutelage. In these cases, in face of the illegal decisions from the organs of the public administration under the tutelage of the Minister of Labour and Social Security, mainly the General Inspection of Labour, the commercial entrepreneurs submit a tutelage appeal to overturn it or to the declare its nullity, under the articles 18/1, subparagraph e), and the article 173 of the Law nr. 14/2011 of 10 of August combined with the article 3/2, paragraph j), of the Decree nr. 19/2015 of 28 of August and article 5/2, subparagraph j), of the Internal Regulation of the General Inspection of Labour, approved by Ministerial Decree nr. 86/2016 of 7 of December.
Well, the tutelage appeal is an administrative procedure, considering that it is an organized succession of acts and formalities with the purpose to form and express the will of the Public Administration or its execution[3]. The tutelage appeal is ruled by the provisions of the Administrative Law and, therefore, the Minister of Labour and Social Security has the power of authority over the administered who submitted it [article 18/1, subparagraph e), article 19 and article 173, all of the Law nr. 14/2011 of 10 of August].
For that reason:
- On one side, the decision on the tutelage appeal is an administrative act, considering that it defines the specific legal situation of the administered interested on it;
- On the other side, the relation between the Minister of Labour and Social Security and the administered in the scope of the tutelage appeal has an administrative nature, considering that is ruled by the provisions of the Administrative Law and the Minister of Labour and Social Security is granted with the power of authority.
Therefore, the administrative acts and the administrative jural relations are intrinsically related, as the administrative acts are performed by the administration to define the specific situation of the administered in the scope of the administrative jural relation existing between them, in which the administration is granted with the powers of authority.
II. Law court for impugnation of the decisions of the Minister of Labour and social security
The article 229, paragraph b), of the Constitution of the Republic establishes that the Administrative Court has the competence to judge the contentious appeals against the decisions of the organs of the Estate, of its respective holders and agents.
To the article 229, paragraph b), of the Constitution of the Republic adjust the provisions of severally ordinary laws, mainly:
i) The provision of the article 3, paragraph a), of the Law nr. 7/2014 of 28 of February, which establishes that the administrative jurisdiction has the object of guaranteeing the effective tutelage of the rights and interests legally protected of the persons in the relations ruled by administrative law that they establish with corporate public persons or private persons;
ii) The provisions of the articles 4 and 28 [paragraph a)] of the Law nr. 7/2015 of 6 of October (amend and republish the Law nr. 24/2013 of 1 of November), which establish that the Administrative Court has the competence to judge the appeals of the administrative acts or in administrative matters issued by the members of the Council of Ministers.
Well, the article 13, paragraph e), of the Law nr. 4/2021 of 5 of May (which amend and republish the Law nr. 10/2018 of 30 of August) establishes that in contravention matters the labour courts have the competence to judge the appeals submitted against the decisions of the administrative authorities in labour and social security domains, except those that may have been granted to other jurisdictions. Administrative authorities in labour and social security domain are those which the domains in mention constitute the scope of its intervention, among which the Ministry of Labour and Social Security, its organic units, and the organs under its tutelage [articles 2, 3, 4 and 6 of the Organic Statute of the Ministry of Labour and Social Security, approved by the Resolution nr. 43/2020 of 9 December]. Among these organs, the appeals against the acts of the leader of the Ministry of Labour and Social Security, in other words, the Minister of Labour and Social Security, are judged by the Administrative Court, pursuant to the provisions of the paragraph b) of the article 229 of the Constitution of the Republic, the paragraph a) of the article 3 of the Law nr. 7/2014 of 28 February, the article 4 and the paragraph a) of the article 28 of the Law nr. 7/2015 of 6 of October (amend and republish the Law nr. 24/2013 of 1 of November) combined with the article 43, both of the Law nr. 7/2012 of 8 February. It is important to underline that labour and social security domains constitute the scope of intervention of the Ministry of Labour and Social Security, which attributions and competences are established in that way, under the articles 1, 2 and 3 of its Organic Statute, approved by the Resolution nr. 43/2020 of 9 December.
Therefore, the legislator only granted, to the labour courts, the competence to judge, in contravention matters, the appeal against the decisions of the administrative authorities in labour and social security domains in case such competence has not been granted to other jurisdictions.
This, implies, necessarily, that the labour courts have no competence to judge, in contravention matter, the appeals against the decisions of the authorities in mention that have been granted to other jurisdictions.
So, in respect to the matter in mention, the labour courts have no competence to judge, in contravention matters, the appeals against the decisions of the Ministry of Labour and Social Security that have been granted to other jurisdictions.
Following that, considering that the Constitution of the Republic[4], the Law nr. 7/2014 of 28 February[5] and the Law 7/2015 of 6 October (amend and republish the Law nr. 24/2013 of 1 of November)[6] grant to the Administrative Court the competence to judge the appeals against the decisions of administrative acts or in administrative matter of the Minister of Labour and Social Security (in domains of its intervention), the labour courts have no competence to judge such appeals.
As a matters of fact, even if the article 13, paragraph e), of the Law nr. 4/2021 of 5 of May (amend and republish the Law nr. 10/2018 of 30 August) did not preview the exception in reference, the Administrative Court would have the competence to judge the appeals in mention, considering that:
- The same competence is granted to the Administrative Court by the Constitution of the Republic, which is hierarchically superior to the Law nr. 4/2021 of 5 of May (amend and republish the Law 10/2018 of 30 August) and which provisions prevail over the provisions of this Law;
- The Law nr. 7/2014 of 28 of February and the Law 7/2015 of 6 October (amend and republish the Law nr. 24/2013 of 1 of November) are special laws of the Law of the Administrative Procedure, take into account that the first rules the procedures related to contentious administrative process and the second approves the Organic Law of the Administrative Jurisdiction, and, therefore, they prevail over the Law nr. 4/2021 of 5 of May (amend and republish the Law nr. 10/2018 of 30 of August), pursuant to the article 7th/3 of the Civil Code;
- The competence of the Administrative Court has the nature of public order and its judgement precedes the judgement of any other matter (article 6/1 of the Law nr. 7/2014 of 28 February).
For that reason, either way, the Administrative Court is competent to judge the appeals in mentions.
Consequently, the jurisprudence of the Administrative Court oriented for the perspective that it (the Administrative Court) is incompetent to judge the contentious appeals against the decisions of the Minister of Labour and Social Security collides with the Constitution of the Republic and the ordinary legislation in force in the Republic of Mozambique, which results in its unconstitutionality and illegality.
Therefore, we recommend that the orientation of the jurisprudence of the Administrative Court in reference is reviewed in order to be adjusted to the Constitution and the ordinary laws, judging the contentious appeals against the decisions in mention (in other words, against the decisions of the Ministry of Labour and Social Security, in domains of its intervention) as those decisions are administrative acts performed in the scope of administrative jural relations between the Minister in mention while an organ of the Public Administration and the administered.
Conclusion
The article 13, paragraph e), of the Law nr. 4/2021 of 5 of May (amend and republish the Law nr. 10/2018 of 30 of August) only granted, to labour courts, the competence to judge, in contravention matters, the appeals submitted against the decisions of the administrative authorities in labour and social security domains in case that competence has not been granted to other jurisdictions.
Therefore, the labour courts have no competence to judge, in contravention matter, the contentious appeals against the decisions of the Minister of Labour and Social Security that have been granted to other jurisdictions.
The Constitution of the Republic [article 229, paragraph b)], the Law nr. 7/2014 of 28 of February [article 3, paragraph a)] and the Law nr. 7/2015 of 6 October – amend and republish the Law nr. 24/2013 of 1 of November [articles 4 and 28, paragraph a)] grant, to the Administrative Court, the competence to Judge the contentious appeals against the decisions or administrative acts or in administrative matter of the Minister of Labour and Social Security (in domains of its intervention), which means that the labour courts have no competence to judge such appeals.
Anyway, even if the article 13, paragraph e), of the Law nr. 4/2021 of 5 of May (amend and republish the Law nr. 10/2018 of 30 August) did not make an exception of its competence to judge the appeals that, under law, are granted to other jurisdictions, the Administrative Courts would have the competence to judge them, considering that:
- The same competence is granted to the Administrative Court by the Constitution of the Republic, which is hierarchically superior to the Law nr. 4/2021 of 5 of May (amend and republish the Law nr. 10/2018 of 30 of August) and which provisions prevail over it;
- The Law nr. 7/2014 of 28 of February and the Law nr. 7/2015 of 6 October (amend and republish the Law nr. 24/2013 of 1 of November) are special laws of the Law of the Administrative Procedure, considering that the first one rules the procedures related to the administrative contentious process and the second one approves the Organic Law of the Administrative Jurisdiction, and, therefore, they prevail over the Law nr. 4/2021 of 5 of May (amend and republish the Law nr. 10/2018 of 30 August), pursuant the article 7th/3 of the Civil Code;
- The Competence of the Administrative Court has the nature of public order and its judgment precedes the judgement of any other matter (article 6/1 of the Law nr. 7/2014 of 28 of February).
Consequently, the jurisprudence of the Administrative Court oriented to the perspective that it is incompetent to judge the contentious appeals against the decisions of the Minister of Labour and Social Security breaches the Constitution and the ordinary legislation. Therefore, we recommend that the mentioned orientation is reviewed so that the intervention of the Administrative Court may adjust to the Constitution and to the ordinary law, judging the contentious appeals against the decisions in mention as they are administrative acts performed in the scope administrative jural relations.
[1] See the Glossary of the Law nr. 14/2011 of 10 of August.
[2] Pursuant to the article 2 of the Commercial Code, approved by the Decree-Law nr. 2/2005 of 27 of December, are commercial entrepreneurs: a) individuals or corporate persons who, in their own name, directly or through third parties, pursue a commercial enterprise; b) commercial companies.
[3] See the Glossary of the Law nr. 14/2011 of 10 of August.
[4] See the article 229, paragraph b), of the Constitution of the Republic.
[5] See the article 3, paragraph a), of the Law nr. 7/2014 of 28 of February.
[6] See the articles 4 and 28, paragraph a), of the Law nr. 7/2015 of 6 of October (amend and republish the Law nr. 24/2013 of 1 of November).
