Tuesday, March 31, 2015

Copy and paste is not compatible with critical mass

Filipe Jacinto Nyusi, President of the Republic (PR) of Mozambique since January 15, 2015, disregarded the Constitution of the Republic of Mozambique (CRM) to become president of the Frelimo party, on the afternoon of March 29, 2015, by the mere fact that the fundamental law expressly prohibit to take private functions, while PR.In fact, establishing the CRM, in Article 149, on incompatibilities of PR, the following:
"The President may not, except as expressly provided in the Constitution, exercise any other public function and, in any case play any private functions." The constitutional provision referred to above, which is divided into two parts - (a) Prohibiting the exercise of public functions other, than those expressly provided for in CRM; and (b) not exercise at any time, private functions - could not be more explicit:
a) Public domain
The constitutional legislator says the rule is PR not assume any other public office, opening to him, however, the exception, but only for public functions that are constitutionally affected, that is expressly provided for in CRM [be for example, Commander in Chief of the Defence Forces and Security (paragraph 4 of article 146 of the CRM)].
b) Private Domain
The CRM seals at all, the PR, the possibility that he "perform any private functions." Being president of a political party embodies thus exercise a private function the, which contradicts the legal status of the Mozambican State (CRM).
Objectively speaking, Nyusi is in sharp, clear and crystalline form, violating the most important legal instrument in the country, which he himself, moreover, swore to observe and enforce when he made his oath, particularly in the headquarters of the public opening his investiture.
Here's oath, as recorded in CRM (paragraph 2 of Article 150), he gave the January 15, 2015, at the Independence Square in the city of Maputo:
"I swear on my honor, respect and uphold the Constitution, faithfully perform the office of President of the Republic of Mozambique, devote all my energies to the defense, promotion and consolidation of national unity, human rights, democracy and good -being of the Mozambican people and do justice to all citizens. "
On the legal status of political parties
Political parties, in accordance with (a) CRM (b) of the Act and (c) doctrine are legal persons of private law, without exception. That is, even those who are in power, as in the case of Frelimo, are nonetheless private entities. The following brief notes on the private nature of political parties.
a) Under the CRM
The combination of the provisions of Articles 53 and 74, both of CRM, does not seem to leave no doubt as to privatística nature of political parties.
Paragraph 1 of Article 53 states that all citizens enjoy the freedom to establish and join political parties, stressing the subsequent paragraph of that article that adherence to them is voluntary, deriving from the "freedom of citizens to associate around the same political ideals. "
Have Article 74, also of fundamental law, extract that political parties express political pluralism, while contributing to the formation and manifestation of popular will and are "fundamental instrument for the democratic participation of citizens in governing the country" .
b) Law of Political Parties
The Law No. 7/91 of 23 January (Law on Political Parties) provides, in Article 1, the definition of what are political parties. Below transcrevêmo it in full:
"Article 1" - (Concept)
1. The political parties citizens' organizations established with the main objective of democratic participation in the political life of the country and compete in accordance with the Constitution and laws, to the formation and expression of the political will of the people, intervening in particular in the electoral process, by submitting or sponsoring applications.
2. Political parties have legal personality and have administrative, financial and property. "
Your unofficial registration is effected by the government (which is chaired by PR, as established in paragraph 1 of Article 201 of the CRM), through the Ministry of Justice, pursuant to Article 8 of the Law on Political Parties. The unofficial record is, however, preceded (Article 7 of the Political Parties Act) for verifying, through the same government portfolio, completing the party establishment requirements as a legal person of private law, which is done "within sixty days from the date of filing of the application. "
c) In the light of the doctrine
In an article entitled "Political Parties", Jorge Bacelar Gouveia and Ana Rita Cabrita expendem they [political parties] are "legal persons of associative type, on a continuing basis, with the purpose to represent the community at the level of the organs of political power, as well contributing, as its fundamental parts for the operation of political power system established ".
Three elements must be considered in the structure of political parties, namely (c.1) the subjective, (c2) the time and (c3) the teleological.
c.1) subjective element: this has to do with the fact that political parties are referred to as organizations of citizens, as holders / right holders, implying that, the personal dimension as a substrate of the entity to be created;
c.2) temporal element: means, quite simply, that the political parties, as a society projects, have, or should have, durability;
c.3) teleological element: this sums up the essence of political parties in terms of purpose, which include the right of submission of applications, so you can feed the representative system constitutionally guaranteed. Achieve, maintain and exercise political power there-to be the main theme of political parties.
Legal and political consequences
In Mozambique, while democratic rule of law, at least from a formal point of view, the principle of legality and / or the prevalence of constitucuionais standards over all other standards has a sacrosanct nature.
Moreover, the constitutional legislator was adamant, which states that "The State shall abide by the Constitution and is grounded in law" (paragraph 3 of article 2 of the CRM), while "The constitutional provisions prevail over all other rules of law "(paragraph 4 of Article 2 of the CRM).
Despite it being "almost tradition" in our country the violation of constitutional rule prohibiting the PR to perform duties in a political party, as a private entity, it should be noted that this situation - repeated violation of fundamental law - does not make "constitutional" what is "unconstitutional", which has the potential to lead the country to political crises.
At present, for example, the parliamentary group of Renamo in the National Assembly (RA) having more than one third of all the Members, can, wanting, ask the Constitutional Council (CC), unconstitutionality of assessing the assumption by part of the PR of private functions, which is absolutely prohibited by CRM. To this end, Renamo would support the rule contained in paragraph c) of paragraph 2 of Article 245 of the CRM. To CC, with obvious violation, nothing more would only give reason to Renamo, in this hypothetical situation.

In my view, is what gives the making of rules, including constitutional, using the frivolous 'copy & paste' of any jurisdiction other standards, with other political systems, that is, different from our own, without the necessary study, seeking, among others, a solid domestication. Competing the fact that the PR is at the same time, party president in power (Frelimo in this case) to "balance system", I think that should be the most urgent can trigger a mechanism for the timely review of fundamental law. While this is not done, like it or not, is unconstitutional that PR assume the functions of chairman of a political party, which is a legal person under private law.(Ericino de  Salema /jornalist)

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