Legal implications for procedural acts during the state of emergency
By Presidential Decree no. 11/2020, of 30 March, the President of the Republic of Mozambique decreed the State of Emergency, on grounds of public calamity, throughout the country, with a duration of 30 days, effective as from 0.00 a.m. on 01 April 2020 and ending at 24.00 a.m. on 30 April 2020.
The Council of State and the National Council for Defence and Security have been consulted, in the light of the combined provisions of Article 160(a), Article 165(b) and Article 265(b) of the Constitution of the Republic of Mozambique (CRM). In turn, by Law no. 1/2020, of 31 March, the Assembly of the Republic ratified the Declaration of the State of Emergency, contained in the above-mentioned Presidential Decree, under the provisions of articles 37 and 151, both of the Assembly of the Republic's Rules of Procedure, approved by Law no. 17/2013, of 12 August, amended and republished by Law no. 12/2016, of 30 December, combined with subparagraph g), of no. 2 of article 178 and no. 1 of article 293, both of CRM.
The Declaration of a State of Emergency is necessary as a form of legal and political legitimation of measures to respond to the COVID-19 outbreak and to protect life and well-being of the population. The Declaration will enable the Government to adopt the necessary and adequate measures, including the materialization of the suspension of some fundamental rights, freedoms and guarantees, seeking to prevent, mitigate and combat COVID-19, in a scenario of joint efforts of all the main organs of the State.
It is a tool provided for in CRM, but it has never been used in Mozambique since the national independence. Therefore, there is no comparative jurisprudence on the matter, although there is doctrine of similar legal systems, as is the case of Portugal. This situation may, at some point, raise doubts in the various sectors of the State as to how to act in the face of the preventive measures announced by the Head of State during the State of Emergency.
Taking into account the Declaration of the State of Emergency, one of the measures adopted to regulate the access to justice1 during this period is defined in Article 2 of Law 1/2020 of 31 March, which states that procedural and administrative deadlines, including disciplinary proceedings, limitation and prescription periods for all proceedings shall not run for the duration of the State of Emergency.
To this end, the judicial recession regime (article 27 of Law 24/2007, of 20 August, as amended by article 11 of Law 11/2018, of 3 October and article 143 of the Code of Civil Procedure) shall apply to procedural acts and judicial proceedings, without prejudice to urgent cases, namely interlocutory injunctions and in cases where fundamental rights are at stake, such as those relating to defendants under custody and minors at risk.
Also on the list of urgent proceedings are, among others, those of administrative litigation nature provided for in Article 11 of Law No. 7/2014 of 28 February, insolvency proceedings and recovery of commercial entrepreneurs, requests for suspension of the effectiveness of administrative acts and rules, summons for behaviour, unspecified precautionary measures, advance production of evidence, summons for information and consultation of proceedings or submission of a certificate.
Thus, with the exception of cases considered urgent, judicial deadlines that expire during the course of the State of Emergency are suspended and transferred to the first working day following the end of the State of Emergency, if the latter is not extended, as is clear from the combined provisions of articles 143 and 144 of the Code of Civil Procedure and article 292 of the CRM.
Following the Declaration of the State of Emergency and the strengthening of preventive measures, and pursuant to Article 2(4) of Law No 1/2020 of 31 March, the President of the Supreme Court issued Directive No 03/TS/GP/2020 of 1 April, under the terms of paragraph e), Article 97 of Law 24/2007 of 20 August, as amended by Law 24/2014 of 23 September and by Law 11/2018 of 3 October, establishing additional measures for the prevention of the Covid-19 pandemic, with effect from 1 April 2020, such as:
- Order the adoption of the modality of rotation of officials, who do not hold managerial positions, and the Presidents of the Courts at all levels should be in charge of ensuring the development of work schedules of the respective court officials, in those sectors where such a measure is justified and possible, safeguarding the continuity of the service and the control of effectiveness;
- The elaboration of work schedules in the Judicial Inspection will be ensured by the Inspector - General.
- Recommend to the judges the urgent consideration of pending requests for conditional release and provide regular information on the status to the President of the Judicial Court of the respective province.
It should be noted that, as well as the President of the Supreme Court, the President of the Administrative Court issued, on 2 April 2020, the Instruction No.01/GP/TA/2020, containing the adoption of additional measures considered to be temporary for the prevention and control of the spread of the Covid-19 pandemic, and the General Attorney of the Republic may take additional measures considered to be appropriate, within the scope of the prevention of the said pandemic, and the Mozambican Bar Association (OAM) may be heard, pursuant to the provisions of paragraph 4 of Article 2 of Law no. 1/2020, of 31 March.