ORIGINAL ARTICLE
ALFREDO, Benjamim [2]
ALFREDO, Benjamim. Mozambican Public Probity Law: Retroactivity and Some Legal Vicissitudes. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year. 07, Ed. 11, Vol. 02, pp. 129-153. November 2022. ISSN: 2448-0959, Acess link: https://www.nucleodoconhecimento.com.br/law/mozambican-public-probity
ABSTRACT
The present article briefly addresses the issues surrounding the enforcement of Law No. 16/2012, dated August 14th – the Public Probity Law (PPL) in Mozambique. The PPL regulates various matters, including the accumulation of positions and mandates by certain public servants, conflicts of interest, the prohibition of receiving material benefits, and other privileges deemed to be offenses against ethics and public morality. The general principle that the law only applies to the future, while not absolute, considering the principle of retroactivity of laws in certain domains, has sparked controversy, particularly among those affected by the said law. This article provides a legal analysis, albeit succinct and predominantly descriptive, with the primary objective of reflecting on some aspects experienced during the enforcement of the PPL in Mozambique, especially concerning its retroactivity. Given the persistent lack of compliance with the PPL, the article aims to contribute to understanding its effective application. Whether the PPL is retroactive, its effects on those covered, and the expectations of the legislator and Mozambican society regarding its efficacy are some of the aspects addressed in this work. The research method relied on the examination of legal and doctrinal literature, as well as descriptive facts related to the creation and enforcement of the Public Probity Law in Mozambique. Some resolutions of the Central Commission for Public Ethics were researched and utilized in the production of this article. Based on these supporting elements, it was possible to conclude that no retroactivity applies to the PPL. Therefore, the law takes immediate effect from the date of its enforcement.
Keywords: Law, Public probity, Retroactivity, Conflict of interest, Ethics.
1. INTRODUCTION
The Public Probity Law (PPL) was approved by the Assembly of the Republic of Mozambique on May 11, 2012, promulgated on July 13, 2021, and came into effect on November 15, 2021. It is currently in force and, in addition to regulating various matters related to public probity in Mozambique, aims to put an end to the accumulation of positions in the state apparatus and in public companies where there is a conflict of interest. This is the main idea of the PPL. However, not everyone interprets the law in the same way, and there are still those who have not fully understood its true legal and practical scope.
According to the law, holders of public positions are required to declare their income and property interests before taking office, cannot accumulate positions within the State apparatus and companies where the State holds share capital, among other obligations. However, the major issue lies in the accumulation of functions. With the enforcement of the law, it became illegal to work in the State apparatus and, at the same time, in companies with state capital.
Despite the clarity of the law, some tensions and controversies have arisen in Mozambican civil society, as there is still noticeable non-compliance with the law and the aspects it aims to regulate by those covered by it. Among the various problematic aspects, what garnered the most debate at the time of its enforcement was retroactivity, a matter that was never properly clarified. Questions were raised, for example, about how to handle the rights acquired by holders of positions, functions, and mandates in public bodies and private companies where the State participates as an owner or holder of shares or quotas.
With the emergence, enactment, and enforcement of the law, the societal expectation was that it should produce its effects immediately, and those subject to it (with emphasis on deputies simultaneously holding positions or offices in public enterprises or representing the State in affiliated companies) should resign from those mandates, choose a single position, and relinquish any other positions held in other institutions. Continuing to accumulate roles and obtain benefits goes against the Public Probity Law (PPL), signifying that such individuals were in an illegal and conflicting situation.
In this position, some deputies, public officials, and other civil servants held positions in various public and private institutions. However, the idea that it was necessary to give those affected time to prepare to comply with the PPL was not universally accepted, except by those who benefited from the measure. The argument was that those covered should remain in their positions as the cessation of mandates could lead to social disturbances. They argued that this way, it would be possible to ensure the stability of situations already consummated, particularly the acquired rights of those affected. However, more radical opinions vehemently argued that there should be no leniency since the creation of the law and its enforcement aimed fundamentally at ending situations that undermined the morality and public ethics of the covered public servants. Therefore, those covered should be compelled to voluntarily and immediately resign from one of the positions they held, as the law sought to address a problem that had persisted for a long time. Similarly, it was not permissible, for instance, for covered deputies to maintain their affiliation with the governing bodies of such companies until the end of their parliamentary term. The need to put an end to immorality and the excessive exploitation of public resources, evident in clear cases of unjust enrichment and continuous conflicts of interest where public servants conducted negotiations with the State using companies they were involved in, among other unscrupulous acts, further fueled the debate in favor of the immediate implementation of the law. It is worth noting that, even today, the issue surrounding the application of the PPL in Mozambique continues to divide opinions, making it a current and highly relevant topic for the Mozambican social community and those interested in transparency in the management of public affairs. In summary, the law should be enforced without any leniency.
2. CONCEPT OF PUBLIC PROBITY
The term “probidade,” a feminine noun originating from the Latin “probitasatis,” used by the Mozambican legislator in the Public Probity Law (PPL), is also employed in various regions around the world. It aims to signify the treatment of aspects related to ethics, morality, and other matters of public interest. Probidade encompasses, among other synonyms, dignity, conscience, honesty, integrity, loyalty, rectitude, respect, decency, character, morality, and decorum. It also includes the deontology of public servants, respect for public welfare, and society. Therefore, when the Mozambican legislator uses this expression in the PPL, it refers to issues regulated concerning the moral behavior of public servants, aiming to instill a way of being and acting before the society they pledged to serve, in strict compliance with their moral, ethical, and professional duties. As public servants, their noble mission is to serve the public, and as such, they must exhibit respect in their relationships with society at large. Indeed, they should be aware that certain actions are prohibited, while others may or should be performed without neglecting ethical considerations. As Mora (1971) argues, to establish a philosophical system of human life, the philosophy of morality seeks the analysis and deepening of facts that form the basis for creating norms regulating human life in society. Ethics should be one of the fundamental elements in the performance of public servants. This principle is advocated not only by Mozambican society but also by the global community.
Ethics, as a science, concerns the judgment of appreciation when applied to distinguishing between good and evil. In universal knowledge, ethics is a part of philosophy that seeks to determine the purpose of human life and the means to achieve it. It is considered a part related to moral values, constituting its theoretical aspect as a scientific discipline. According to Oliveira (2010), what humans achieve in their practical and collective lives is marked by implicit rules and, therefore, has a reference based on norms, values, and principles derived from the lived world shared by human communities. Therefore, it can be said that ethics is the science of customs, human actions, and its object is morality—characterization of such acts as good or bad. Duty is generally considered the object of ethics. In conclusion, every ethical duty revolves around what is good and what is evil.
According to Oliveira (2010), it was precisely on the basis of morality that the Greeks called it “ethos,” understood as the habit transmitted by traditions, in which communities forged their identity by configuring their forms of relationship and the institutions that order their lives. This means that people accept the idea that their source of determination, their actions, and their individual desires and interests are overcome by collective interests, as they guide their lives based on common rules. The rules of social life have full application in democratic societies, where they are created and serve the community, obliging everyone to comply.
In a democratic society, the creation and application of laws constitute a way to harmonize relationships between individuals and institutions. Just as people’s behavior is shaped not only through strict norms but also through daily practices. Law, for example, a repository of coercive norms for social relations, considering the evolution of social life, induces the mutability of norms and the emergence of new norms that better adapt to changes occurring in society’s behavior. Some norms arise from the fact that something needs to be regulated to avoid endangering public interest. This is the case, for example, with the facts that the Mozambican Public Probity Law (PPL) seeks to regulate.
The creation of this law does not imply a radical break in the continuity of social life, as there are legal situations that were established in the past, i.e., before the entry into force of the said law, that extend into the future, under its jurisdiction, causing contact between the two laws that succeed each other over time. However, there are situations in which the creation of a law, such as the PPL, aims to harmonize relationships between society, certain legal entities, and the actions they perform in the management and use of collective assets, their accountability, strictly observing public interest. Therefore, the creation of the PPL took into account the need to regulate legal, social, and economic situations that jeopardized social harmony without conflicting with any law regulating similar matters or creating noise in the Mozambican legal system.
Like other legal provisions, the PPL aims to regulate the actions of state servants within generally accepted ethical and moral principles in an organized society. Although the law can also be referred to as the probity law, ethics law, public morality law, among other designations, its purpose and end are ultimately coincident.
Therefore, the entry into force of the PPL in Mozambique confirmed the maxim advocated by Latorre (2002) that the law is a tool in the hands of the legislator, which can be used in very diverse directions and with varied purposes. In this view, it is an instrument to regulate a crucial situation of social interest.
3. ON THE CREATION OF THE PUBLIC PROBITY LAW
The Public Probity Law (PPL) was created with the aim of putting an end to the accumulation of positions in the state apparatus and conflicts of interest in public enterprises.
The law reinforced guiding principles regarding ethics, morality, conflicts of interest, property relations, among other aspects, in the management of public affairs. According to the law, holders of public positions are required to declare their income and property interests before taking office, among other obligations. However, the major issue was the accumulation of functions. With the law coming into effect and considering its intended purpose, it is illegal to work in the state apparatus and, at the same time, in companies with state capital.
Article 1 of the Public Probity Law (MOÇAMBIQUE, 2012) states that “The law establishes the foundations and the legal framework related to public morality and respect for public assets by public servants.” Furthermore, the preamble of the said law refers to the need for systematization of “rules that establish the duties, responsibilities, and obligations of public servants to ensure public morality, transparency, impartiality, and probity.” It contains principles regulating ethical and moral duties expected of public servants, prohibitions, as well as situations of conflicts of interest that interfere with the fulfillment of their duties. It is clear that the purpose of the law is substantially comprehensive, given what is stated in Article 5(4) of the PPL: public servants must inspire trust in citizens to strengthen the credibility of the institution they serve. The law was created in response to the observation that some public servants were not carrying out their mission with the spirit of public ethics, morality, and probity and were compromising the public function. It brought together various provisions on the matter to safeguard public and social interests in the management of public affairs. The creation of the law was timely, as transparency in the management of public affairs is a cornerstone in the state’s asset management. Another valid reason could not be more relevant, considering that various situations were reported regarding the violation of duties by some public servants, especially in appropriating state assets and accumulating positions to obtain undue material benefits. It had become a “trend” for a public servant to view the accumulation of a position as an opportunity for enrichment at the expense of public property.
The PPL expanded the scope regarding the subjects and facts subject to compliance with the regulatory norm. According to Article 2, non-public entities, whether individual or collective, temporarily invested with public powers, are also covered by this law. The scope also extends to the object, as stipulated in Articles 6 and 23 of the PPL, concerning ethical duties, also taking into account the principles clearly reflected in Article 6 of the PPL. If fully complied with, the rest of the law would have no meaning other than to applaud public service as a whole for its work.
In this sense, the PPL aims to make the state apparatus functional and credible, putting an end to situations that tarnish the good name of the government, the Mozambican state, its servants, and society in general, due to reprehensible behaviors by some public servants.
4. THE PRINCIPLE OF NON-RETROACTIVITY OF LAWS
The principle of non-retroactivity of laws is one of the universally acknowledged general criteria. It is the most important among the general criteria of law within the framework of the principle of the application of the law over time. According to Mendes (1984), retroactivity is the quality of a norm that changes the valuation and consequences of facts as they were established at the time of their occurrence. Eiró (1997) considers a law retroactive if it revalues a past fact that was previously valued differently by the law in force at the time of its occurrence, and therefore attributes different consequences, especially when more unfavorable to the recipient of the norm. Alongside the criteria for retroactivity, other general criteria specific to certain branches of law also coexist. The summarized general lines or criteria defended are as follows:
– In Procedural Law, the rule is that the new law applies immediately, applying to ongoing processes, the procedures of which must adapt to those prescribed by the new law. This procedure is based on the presumption that the new law contains more perfect criteria than those practiced until then.
– Criminal Law is retroactively applied when it benefits the accused (No. 2 of Article 60 of the Constitution of the Republic of Mozambique).
In fact, it would be unacceptable for two or more individuals committing identical acts to be treated more favorably than others. Thus, the legislator goes so far as to “level everything from the bottom up,” always preferring the more favorable law, whether it is older or newer, that comes into effect until the offender is convicted. This means, for example, that if a new law eliminates a particular offense, the corresponding penalty is automatically set aside.
In modern times, the principle of non-retroactivity of laws does not have the force of a constitutional principle, except in very rare exceptions, except in the field of Criminal Law. Hence, in ordinary legislation, retroactive laws may exist.
From the above, it can be inferred that the legislator can address problems arising from the succession of laws through the use of transitional provisions (transitional law). However, in most cases, the law makes a clean slate, establishing nothing regarding its application over time. This means that if there were a Public Probity Law (PPL) and the legislator deemed it necessary to replace it with another, then it would be necessary to consider aspects of transitional law to deal, for example, with materials related to acquired rights claimed by some public servants covered by it.
However, as a general rule, the principle of non-retroactivity of laws applies in all branches of law whenever it concerns legal situations that fall into the last of the variants just mentioned.
5. RETROACTIVITY AND ACQUIRED RIGHTS
What is the rational and precise criterion that allows defining retroactivity, that is, that allows clearly demarcating the scope of the old law and the new law?
On this matter, doctrine offers two main currents: the doctrine of acquired rights and the doctrine of the past fact. According to the first current, a law that violates acquired rights, that is, rights already constituted, would be retroactive. According to the second, any law that applies to events that occurred before its entry into force would be retroactive. Thus, according to the first current, the new law should respect acquired rights; according to the second, the new law would not apply to past facts or their effects, under penalty of also being retroactive. Therefore, it would only apply to future events.
However, the first current has been set aside by doctrine due to its great imprecision. The emergence of a law aims to regulate matters that, due to their timeliness, intend to harmonize interests and life in society.
Today, the second current tends to prevail, complemented by the so-called principle of the immediate application of the new law to ongoing situations (and not past ones) at the time of its entry into force. It is this doctrinal current that inspired the legislator in formulating Article 12 of the Civil Code, which contains the general principles on the application of the law in time within the Mozambican legal system. Except for exceptions related to criminal law and the prevailing mechanism in procedural law, Articles 12 and 13 of the Civil Code establish the principles and criteria applicable to the retroactivity or non-retroactivity of the law.
Paragraph 1 of Article 12 of the Civil Code (PORTUGAL, 1966) states that the law governs the future, even if retroactive effectiveness is attributed to it by the legislator. It also provides that the effects already produced by the facts that the law is intended to regulate are safeguarded. This means that the principle expressed in the aforementioned provision is that the new law only governs the future. However, it is important to note that the law not only governs the future but also governs, equally, in cases clearly defined by the legislator for the present, automatically affecting situations that occur at the time of its entry into force. In addition, it must be considered that the law applies, at present, to the facts reported in the law at the time of its entry into force, as determined by the legislator, explicitly and clearly, and that conforms to the will and sovereignty of the people. However, Telles (1999) questions the legal criterion set out in the last part of paragraph 2 of Article 12 of the Civil Code, which refers to the fact that the legislator considers that the law encompasses the relationships already constituted, which persist at the time of its entry into force. This is not entirely conclusive, as it is still necessary to inquire about which relationships should be considered in themselves, detached from their genesis, when defining the regulation that applies to them. Telles (1999) concludes that such situations can only be those of lasting execution, or more specifically, of continued or periodic execution, such as cases of ownership or other real rights, which are subject to legislative changes at each moment, under the rule of the current legal discipline, without implying retroactivity. Now, considering the provisions of Article 2(1) of the Constitution of the Republic of Mozambique (MOÇAMBIQUE, 2004), which states that sovereignty resides in the people, then, if the legislator created the Public Probity Law (PPL), it is because that was the sovereign will of the people, and the effects of the said law must be felt and produce the desired results for the social interest. Clearly, this is the fundamental objective of the creation of the Mozambican Law of Public Probity.
6. PRINCIPLE OF NON-RETROACTIVITY VERSUS PRINCIPLE OF APPLICATION OF THE LAW IN TIME
The principle of non-retroactivity of laws represents, in a way, another facet of the principle of the immediate application of laws. It is acknowledged that this principle is not absolute; there are exceptions explicitly provided for in Article 13 of the Civil Code. Although the principle of non-retroactivity has its main foundations in the need for security, considering that if the past could always be called into question, no one would be secure about the fate of their actions at any given moment. Consequently, this would create significant social instability. The most blatant way to defend the need for prior knowledge of laws, as argued by Latorre (2002), is to give retroactive effects to them, meaning to impose their application to events that occurred before their publication when their content could not be known. It is a fundamental principle of modern rights that laws are not retroactive and that they are designed for the future and not the past. There is a need not to exclude the predictability of certain consequences caused by behaviors that the existence of rules generally makes possible and that allows the law to guide human actions. Indeed, like what still happens worldwide, the Mozambican legislator expressly considers the principle of non-retroactivity as a constitutional principle (Article 57 of the CRM), as protection of the rights of citizens and other legal entities (natural and legal persons), except regarding Criminal Law, where the legislator constitutionally established the principle that its retroactivity only applies when it benefits the accused (Article 60 CRM). The spirit of the Mozambican legal system points towards the consecration of the principle of non-retroactivity as a general application principle. This viewpoint has the following foundations:
a) The non-retroactivity of laws constitutes a universal principle; hence, it is a human achievement that guarantees the satisfaction of security needs in the application of the law. In general terms, Mozambique cannot distance itself from this universally recognized principle. Moreover, it is with the emergence of the law that the events it intends to regulate become its object, following the maxim “no penalty without law.”
b) Article 12(1) of the Civil Code (PORTUGAL, 1966) enshrines the principle under analysis. Hence, obedience to this provision results in the application of the principle of non-retroactivity of laws in the Mozambican legal system.
c) Concerning criminal law, the non-retroactivity of laws is constitutionally defined when the legislator, in Article 60(1), establishes that no one can be convicted of an act not classified as a crime at the time of its commission. Article 60(2) states that “Criminal law only applies retroactively when it benefits the accused.” Now, a legal abstraction around this theme allows us to say that:
– In the event that there is no hierarchically superior law that excludes retroactivity, the interpreter would not have the possibility to oppose it, as the legislator could also directly command retroactivity. In this case, the imperativeness of the PPL would coincide with that of the old law, that is, the interpreted law. However, the Mozambican legislator, concerned with ethical and moral aspects, promulgated the PPL, and it is not retroactive regarding acquired rights and benefits of the subjects covered by it. This means that, upon the cessation of their mandates or functions, those covered do not have the right to claim any compensation or compensation for the supposed acquired rights, which is what actually happened.
– In the case of there being a hierarchically superior law that excludes retroactivity, it would be up to the interpreter to perform a substantial control of the new law to verify if, under the guise of a supposed interpretative law, it is actually facing an innovative and modifying new law.
An illustrative example is given by attributing retroactivity to unfavorable Criminal Law. It is not viable to expand retroactively the circle of incriminating norms through an ordinary law under the pretext of interpretation. It is not feasible because the interpreter is prohibited from applying unconstitutional laws. The figure of interpretative law allows the interpreter, in these cases, to distinguish what falls within interpretation and what, going beyond it, would represent an illicit modification. However, attention is drawn to legal hermeneutics for its richness in terms of guiding interpretative thought, always considering the guiding elements and principles used in interpretation. This means that interpretation is based on rules and cannot be done at the interpreter’s will.
Finally, it should be noted that nothing prevents, in the same text of the new law, the inclusion of both an innovative provision (amending law) and an interpretative provision (interpretative law). The legislator did not establish a specific provision on the matter in the PPL, but it is implicit that the intention is to regulate situations contrary to ethics, morality, good management of public affairs, and conflicts of interest.
However, considering that the intensity and scope with which a given retroactive law acts on the past vary depending on the facts, there are other aspects that can be analyzed in light of what, doctrinally, can be referred to based on the following four degrees of retroactivity:
a) Extreme or maximum degree of retroactivity, where even the res judicata is not respected. This is a purely academic degree with no effective correspondence in real life. It is a concept that does not go beyond the doctrinal realm because it is constitutionally excluded;
b) Almost extreme retroactivity, where it does not apply to completely closed relationships except for res judicata;
c) Ordinary retroactivity, which concerns all already produced facts. It is the type of retroactivity provided for in Article 12 of the Civil Code;
d) Aggravated retroactivity, which is situated between almost extreme retroactivity and ordinary retroactivity, characterized by respecting only those effects that have a title giving them special security.
7. RETROACTIVITY AND CONFLICT OF LAWS VERSUS PPL
Taking into account the degrees of retroactivity presented earlier, the general rules regarding conflicts of laws over time are reflected in the Mozambican Civil Code (PORTUGAL, 1966), specifically in articles 12 and 13, as well as in articles 297 and 299. However, the basic rule is established in Article 12, whose paragraph 1 reaffirms the principle of non-retroactivity, adding, however, that even if the law attributes retroactive efficacy, it is presumed that the effects already produced by the facts that the law aims to regulate are safeguarded. In the PPL, there are no referenced rights to safeguard, but rather to correct errors and socially reprehensible facts. Due to the principle of non-retroactivity, those covered by the law were not reimbursed, and even less were their rights recognized in light of their positions at the time of the PPL’s entry into force.
8. PUBLIC INTEGRITY LAW: TIMELY OR NOT?
The Public Integrity Law (PPL) emerged timely as a way to regulate situations that were contrary to ethics and morality in relation to the management of the common good, and with the purpose of ending situations that also constituted a conflict of interest. Thus, with the entry into force of the PPL, the legislator intended to address society’s concerns, restore harmony, and establish social order. Before the PPL came into effect, there was anarchy regarding the appointment of public servants to positions, which made them prone to engaging in reprehensible acts. Such acts also strongly indicated conflicts of interest, not to mention clear and established cases of enrichment at the expense of public funds or favoritism for the purpose of obtaining illicit advantages.
With the implementation of the PPL, various questions arose regarding the timing for the subjects covered to cease accumulating positions and those in situations of conflict of interest, especially some members of the Assembly of the Republic. Those who chose to remain as deputies were required to immediately renounce extraparliamentary positions they were accumulating. Meanwhile, the general opinion was that the PPL was timely because it aimed to eliminate evils affecting society and jeopardizing the credibility of the Government and the State due to reprehensible practices by covered public servants.
9. PUBLIC INTEGRITY LAW: RETROACTIVE OR NOT?
The retroactivity in the application of the PPL sparked heated and interesting debates. However, it was crucial to determine the exact interpretation of its treatment in light of doctrine and existing law on the subject. This controversial issue prompted the selection and exploration of the current topic, which, despite being contentious, allows for a deeper understanding of the legislator’s intent and the doctrinal position. It helps to comprehend the legislative rationale for not allowing supposed acquired rights, mandates, or positions that constituted conflicts of interest to receive favorable protection from the PPL. The PPL could not retroactively benefit public servants who faced societal scrutiny due to revealed and prevailing legal situations that challenged public integrity.
Although technical-legal aspects may influence the interpretation of the PPL, the concern of some individuals who questioned its non-retroactivity was that, on various occasions, there was a sense that its enactment would immediately resolve issues such as the accumulation of functions. For example, some members of the Assembly of the Republic who were in conflict of interest situations and, therefore, should resign in the public interest. However, some argued that the Constitution of the Republic of Mozambique, in Article 57, did not allow the retroactivity of laws unless they benefited the affected individual or another legal entity. Nonetheless, some people contended that Article 12 of the Civil Code also did not permit the retroactivity of the law. Although the PPL does not mention retroactivity, this aspect should be addressed within the framework of the principle of the application of the law over time. The PPL is a new law created to eliminate legal situations that were previously accepted. Although Ascensão (1987, p. 437) argues that “the interpretative law can be retroactive,” we are not dealing with an interpretative PPL; therefore, it cannot be understood as intending to regulate past events. Consequently, it constitutes the appropriate means to overcome such situations based on its content and the effects of its norms.
10. ENTRY INTO FORCE OF THE PPL AND ITS LEGAL EFFECTS
The publication and entry into force of the PPL corrected the practice of inadmissible acts. Therefore, one can speak of a corrective law. Considering the vacatio legis, the law began to regulate pre-existing legal situations to put an end to them. However, the PPL did not replace an existing law at the time of its entry into force but rather specifically regulated matters related to public probity. In this case, the conceptions of the law oppose the very existence of the rights and duties that constitute the typical content of a certain legal situation for the subjects covered by it, as conceived by it. It also opposes the continuation of certain bonds created in the shadow of behaviors that the legislator decided to eliminate. We are, therefore, in the presence of a law that aims to regulate matters related to public probity, ethics, and the deontology of public servants. It seeks to bring into line what is outside it and allow the proper functioning of the State apparatus and its servants concerning aspects that may constitute conflicts of interest and, perhaps, enrichment at the expense of public funds. Likewise, this law emerges because the acts committed by some public servants are deemed harmful to the proper management of public assets, which is why such acts must be severely sanctioned. Therefore, the application of the law had to be immediate without waiting for these officials or public servants to end their functions or mandates.
However, without intending to question the legislator, Article 12(2) of the Civil Code seeks, through a highly synthetic formula, to specify the principle of non-retroactivity affirmed in Article 12(1) of the same. This formula, for which there is no legislative precedent, draws inspiration from doctrine that distinguishes between regulations of facts and regulations of rights. As for the latter, it should be presumed that they also cover existing legal situations, modifying their content or even eliminating it. The entry into force of the PPL came to establish social harmony in defense of the collective interest, not considering the hypothesis of validating private interests.
In Article 12(2) of the Civil Code, the following disjunctive is established: the new law either regulates the validity of certain facts or their effects, and in this case, it only applies to new facts, defining the content and effects of a certain legal relationship, regardless of the facts that gave rise to that relationship (in which case it is immediately applicable, that is, it applies prospectively to constitutive and subsisting legal relationships as of its entry into force). This immediate effect of the new law, stipulated in the second part of Article 12(2), does not represent a retroactive effect. Regarding the principle of retroactivity, both the Portuguese and Angolan Civil Codes defend, in their Articles 12 and 13, the rules that must be taken into account. In fact, the Civil Codes of Mozambique, Angola, and Portugal have the same systematization on the matter, considering the historical relations that these countries have, with the first two countries inheriting the norms of the Civil Code from the third, approved by Law No. 47344 of November 25, 1966 (Portugal, 1966), which became applicable to these countries through Order No. 22869 of September 4, 1967 (Portugal, 1967). Even with the updating of the Civil Code by the Portuguese legislator through Law No. 13/2019 of February 12 (MOÇAMBIQUE, 2012), the principle on retroactivity was not altered. The legislative intent is based on the principle of immediate application on the one hand and the interest in adapting the law to the changing conditions of the public servant on the other, naturally taken into account by the new law (the PPL). The interest in adjusting to the new concepts and valuations of the public servant, society, and the legislator, as well as the existence of the unity of the Mozambican legal system, which would be compromised, and with it, the security of the legal system, by the persistence of a large number of controversial and long-lasting legal situations or even perpetual ones, governed by rules that proved unsuitable for social life, the limited or zero value of the expectations of public servants who trusted, moreover, in the continuity of the legal regime regarding their actions, as established by old regulations since it was a legal regime, and not a regime created by them, understood that these individuals acted in accordance with pre-established rules. It might lead to the idea that the PPL could not apply immediately and that it should wait for a later moment, with the subjects covered continuing to benefit improperly, thus contradicting collective will.
11. THE PPL AND TRANSITIONAL LAW
Transitory law—a term adopted to designate the set of principles and rules that delineate the temporal application scopes of each law—coordinates the application of two legal systems that succeed each other in time. It emerges as an instrument whose mission is to provide guidance on which law to apply: the old law or the new law. It fulfills this mission based on the weighing of certain conflicting interests, indicating the position to follow in the application of the law. The PPL, being a new law, has a clear scope of application, being an instrument that aims to regulate matters of public probity. It does not contain any provisions that address the treatment of issues that could be confused with acquired rights, let alone any possibility of considering potential compensation. With the entry into force of the law, some attempts to claim certain rights were unsuccessful.
As we have been arguing, the PPL aims at defending collective interest, social stability, and the interest in adapting to a new way of being and acting on the part of public servants. It is an instrument that, when applied, took care to foresee situations that could be regulated so as not to disturb social life. Such are the cases where some officials or employees had time to choose between one mandate or another and fulfill, in full, the duties enshrined in the PPL.
12. THE PPL AND ACQUIRED RIGHTS
The individuals’ interest in the stability of the legal order is guided through the organization of their life plans, aiming to avoid, as much as possible, the frustration of their well-founded expectations, which may be more or less deeply rooted. Some legal situations particularly deserving of protection may arise, such as those considered acquired rights, which ultimately constitute a modality of the interest in legal certainty. Is this the position that could be defended by those covered by the PPL? It may be yes or no! If we consider yes, then we can conclude that they were not fully aware that they served the community. If we consider no, then we can conclude that their role aligns with social interests. Therefore, the PPL constitutes, for them, a guiding and regulating instrument for their situation as public servants. Public servants have their private interests, but they are required to fulfill their duty for the collective interest. They earned social trust to be in the position they were at the time of the entry into force of the PPL; however, they must, first and foremost, serve society, knowing how to be and exist.
Indeed, public servants’ interests are opposed by another: the public interest, which plays a fundamental role in transforming the old legal order and adapting it to new needs and concepts of ethics, morals, and deontology, at the expense of legal positions and expectations based on the law. The public interest can be more or less pressing and may encompass third-party interests, interests in the security of legal trade, as well as a general public interest, a general interest of the legal community (interest in adapting to new social realities), or an interest in legislative policy (interest in the unity and homogeneity of the legal system, factors of security, and assumptions of legal equality). The fundamental issue for some public servants is that they are in a clearly demarcated conflict of interest situation, and, therefore, it is unacceptable for the means not to address their conscience regarding the prevailing situation.
The discussion around it created a strong and certain conviction among the deputies that they should approve the law and have it promulgated and published. Finally, to say that the issue of rights that could be invoked by those covered by this law in light of the provisions of the Civil Code or the Constitution of the Republic has no reception for the case at hand since it does not involve fundamental rights or the like, but rather rights resulting from an activity as a public servant. Acquired rights are something outside the constitutional context and that, in certain circumstances, can be disregarded when a strong interest in safeguarding the common good is at stake. Therefore, it is not acceptable for those who are, for example, in a situation of conflict of interest and covered by this PPL to claim acquired rights that go against the spirit of the PPL. Therefore, resigning or, for any other reason, ceasing to accumulate the positions they held should not be understood as a sanction, as they were invested in the positions they held due to the trust of those who had the power to do so. Finally, there is no conflict of laws that could lead to considering any possibility of claiming rights in the face of the cessation of a mandate or the correction of a situation that constitutes a conflict of interest.
The general rules regarding conflicts of laws over time in the Mozambican Civil Code (PORTUGAL, 1966) are found in Articles 12 and 13, as well as Articles 297 and 299. The basic rule is established in Article 12, whose paragraph 1 reaffirms the principle of non-retroactivity, adding, however, that even if the law attributes retroactive efficacy, it is presumed that the effects already produced by the facts that the law aims to regulate are safeguarded.
Paragraph 2 of the mentioned article formulates, succinctly, the principle of non-retroactivity, asserted in paragraph 1, a formula for which no legislative precedent is found, having as an inspiring source the doctrine that distinguishes between “regulations of facts” and “regulations of rights.” It should be presumed, regarding these last laws, that they also encompass existing legal situations, being able to modify their content or even suppress it.
In this paragraph 2, the following disjunction is established: the new law either regulates the validity of certain facts or their effects, and, in this case, it only applies to new facts, or it defines the content, the effects of a certain legal relationship, regardless of the facts that gave rise to that relationship (a situation in which it is immediately applicable, meaning it applies to future constitutive and subsistent legal relationships as of its entry into force). And without this “immediate effect” of the new law, stipulated in the second part of paragraph 2, representing a retroactive effect, i.e., “inherent retroactivity” regarding these laws to which immediate efficacy is recognized. Thus, from the research effect, it is concluded that the principle of retroactivity is unanimous in the consulted and mentioned legislations, demonstrating the stability of the said principle.
Therefore, when the PPL came to suppress a type of legal situation admitted until the moment of its entry into force, there is nothing to prevent its application from occurring, immediately producing the desired effects. Moreover, the immediate application of the PPL to pre-existing legal situations of that type aimed to put an end to them. The concepts of the PPL oppose the very existence of rights and duties that constitute the typical content of a certain legal situation or the general interest, as conceived by the law, and oppose the subsistence of certain ties created under rules that the legislator decided to suppress. It is the same as saying that we are facing a law related to the existence and nature of a fully accepted public probity legal situation or institute, and its application was imperative, thus responding to the will of society.
13. THE RATIO LEGIS AND THE IMMEDIATE APPLICATION OF THE PPL
The ratio legis behind the immediate application of the PPL arose from the urgent need to promptly correct situations that distorted Mozambican social life. The interest in adapting to new ethical-moral concepts and valuations of Mozambican society and the legislator, as well as safeguarding the common interest, which would be jeopardized along with the security of the legal system, due to the persistence of a large number of legal situations that needed to be addressed, or even of a perpetual nature, governed by norms that did not have legal effects, were also other reasons for the immediate application of the law. However, the expectations of individuals who trusted in the continuity of the legal regime established by norms that favored them but were out of touch with social reality, despite being a legal regime and not one dependent on their will, justified questioning the immediate entry into force of the law, although the legislator’s intention was for it to have immediate application. This did not happen, as the law came into effect after observing the vacatio legis.
Considering such norms that were in force at the time and the entry into force of the PPL, it is understood that it is the task of transitional law to coordinate the application of two legal systems that succeed each other over time. From its mission, which requires it to choose between the old law and the new law, it must be carried out based on the weighing of certain conflicting interests, indicating one for the application of that law and the other, or others, for the application of this law.
These interests are mainly two: the social interest in stability and the interest in adaptation, which must be properly weighed and confronted in relation to each typical transitional law problem, without compromising the legislator’s interest in having the new law efficiently and effectively regulate aspects of public probity.
14. PPL: PRIVATE INTEREST AND PUBLIC INTEREST
The interest of individuals in the stability of the legal order, which allows for the organization of their life plans and minimizes the frustration of their justified expectations, can be more or less deeply rooted. However, certain legal positions, notably those termed “legitimately acquired rights” by certain qualified doctrines, may deserve particular protection. In essence, this is a form of interest in legal security. This interest contrasts with another: the public interest in the transformation of the old legal order and its adaptation to new social needs and concepts, even at the expense of legal positions and expectations based on the old Rule of Law. This interest can vary in urgency, encompassing the interests of third parties, the security of the legal world, a general public interest, such as the general interest of the legal community (interest in adapting to new social realities), or a legislative policy interest, namely, the interest in the unity and homogeneity of the legal system, factors of security, and the prerequisites of legal equality and legality.
Is the Public Probity Law retroactive or not? The technical legal answer is no, considering what has been mentioned above. One might also question whether the legislator, in approving the Public Probity Law (PPL), stated that it should have retroactive effects. The answer is also no. The PPL was created to take immediate effect after the observance of the vacatio legis. Thus, the legislator left the treatment of retroactivity to be addressed in light of legal principles. Because its effectiveness was necessary in the face of probity situations that, due to their severity, required regulation, it cannot and should not be considered retroactive for the reasons mentioned above. In other words, the idea that those who held or hold positions that violate the law should remain in those positions until the end of their mandates or continue to receive benefits from occupying such positions cannot be accepted.
15. SOME CASES RELATED TO THE PPL
Case 1 – Conflict of Interest
A citizen, owner of a personally named company, who, in his capacity as president of a local government body, decided to contract with a public company. The Central Public Ethics Commission (CCEP) ruled that, in accordance with the provisions of article 4, item k), combined with article 32, item c) of paragraph 1, and article 35, all of the Public Probity Law (PPL), such an act constituted a conflict of interest. It further ruled that, in accordance with article 55 of the PPL, the decision should be referred to the Central Office for Combating Corruption for appropriate procedural actions.
This decision was made in a timely manner, considering that the apparent conflict of interest interferes or may interfere with the public servant’s duty regarding impartiality and neutrality.
Case 2 – Prohibitions
Some employees of a central state agency were requested by a state-owned company linked to the aforementioned agency to perform technical work, and they demanded payment of fees. The CCEP ruled that, under the provisions of article 3, such employees, as public servants, could not receive remuneration in public institutions or companies owned by the State or any fees or attendance allowances (article 32, paragraph 1, item b) of the PPL), as such an act contradicts the provisions of article 32, paragraph 1, item c) of the PPL.
Case 3 – Acquired Rights
A citizen who, at the time of the entry into force of the PPL, was a public servant and was assigned to the National Assembly, requested payment of the salaries he received in the body where he was located, justifying that he had acquired the right to them. The CCEP ruled that he should not receive such salaries because his position conflicted with that of a public servant, thus losing the right to salaries paid by two public bodies.
16. FINAL CONSIDERATIONS
The Law on Public Probity (PPL) was established to regulate situations that, at the time of its entry into force, society deemed abnormal and contrary to principles of proper management of public affairs, social coexistence, ethics, and morality. Additionally, it aimed to address issues related to conflicts of interest that allowed for unjust enrichment, jeopardizing the state. Therefore, the said law seeks to ensure morality and transparency in the management of public affairs.
With the implementation of the PPL, matters related to alleged acquired rights cannot prevail, as the law aims to eliminate such rights and harmonize relations between public servants and the public within the scope of public affairs management. The goal is to prevent the perpetuation of conflicts of interest and the accumulation of mandates, positions, and functions that facilitate the receipt of benefits inconsistent with the overall interests of Mozambican society.
The argument that individuals covered by the PPL, exercising mandates or functions based on trust and serving the collective interest, should cease their mandates upon the law’s entry into force without entitlement to compensation is advocated. This implies that they should not have the right to any compensation for ending such functions or relinquishing positions or engaging in acts constituting a conflict of interest as of the effective date of the PPL.
The objectives of the PPL, as presented throughout this article and based on the research findings, are clear and relevant. This is demonstrated by the consistency with which the Central Commission on Public Ethics (CCEP) analyzed and decided on some illustrative cases presented in this article. These cases help clarify that such acts and events constitute matters of public probity and indicate how they should be avoided or addressed based on the PPL.
In conclusion, the PPL is not retroactive for the reasons explained in this study. As the law regulating public probity in Mozambique, it cannot be subject to the will of interests that undermine its legal validity and effectiveness.
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[1] The present material is written in Mozambican Portuguese and may contain linguistic differences from Brazilian Portuguese.
[2] Ph.D. in Law.
Submitted: October 2022.
Approved: November 2022.
