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One of the most closely scrutinised foreigner’s employment contract revocation cases in Mozambique occurred in October 2013, when Labour Minister Helena Taipo gave Portuguese Costa do Sol football coach Diamantino Miranda two days to leave the country. Miranda was expelled two weeks after having said that the Mozambicans were thieves, according to the report brought by online edition of newspaper O País.
Four years later, the Constitutional Council has ruled unconstitutional the legal norm that empowers the minister responsible for the sector to revoke the hiring of foreign workers. That is, the Minister of Labour can no longer annul the labour contracts of foreign citizens in Mozambique.
The request for a declaration of unconstitutionality was made by the Ombudsman in 2016, and was aimed at paragraph 5 of article 22 of Decree No. 55/2008 of December 30, which approved the Regulation of Mechanisms and Procedures for Contracting Citizens of Foreign Nationality.
This says: “In case of violation of the principles embodied in the Constitution of the Republic and other laws and regulations in force in the country, the exercise of labour law by the foreigner in question may be interdict (sic) by order of the Minister who oversees the area of the job”.
The Ombudsman maintained that this rule limited the exercise of fundamental rights by the foreign worker, in addition to violating labour law and the Constitution of the Republic.
The Constitutional Council notified the government of the Ombudsman’s request, and the Ombudsman replied that it was not justified to declare the norm unconstitutional. “The alleged unconstitutionality stems, as has been said, from the interpretation attributed to the expression ‘interdict’, which is why the government is developing activities to reformulate the norm and make it clearer and more operational.”
As a result, the Council of Ministers approved, on August 31, 2016, the new Regulation on Mechanisms and Procedures for the Hiring of Citizens of Foreign Nationality.
Despite repealing the decree that drove the Ombudsman to request the declaration of unconstitutionality, the new regulation, in force since December 2016 re-empowered the minister responsible for the work to revoke the hiring of foreign workers.
As a result, the Constitutional Council analysis concentrated on the new decree, specifically on article 27, paragraph 7, which lists the cases in which the Minister of Labour can revoke the administrative act that allowed the hiring of the foreign worker, namely:
a) Maltreatment committed by foreign workers, consubstantiated in particular in serious physical aggression against the national or foreign worker in the workplace;
b) Serious harm against the national or foreign worker on the basis of race, colour or other serious discriminatory attitude that violates honour, dignity, good name and image in the workplace;
c) Serious violation of the special rights of working women;
d) Condemnation of the foreign citizen to a prison sentence.
The judges are clear that this rule violates the constitutional principles of legal certainty, adversarial proceedings and the principle of the right to a fair hearing, effective protection and right to work.
“(…) by not allowing the foreign citizen to offer his defence in due process, not only is the principle of adversary violated, but also the right to challenge administrative acts detrimental to their interests, a real affront to the constitutional principle of effective protection provided for in Article 253 (3) of the Constitution of the Republic,” the Constitutional Council 9 May decision reads.
New decree contradicts labour law
In addition to being unconstitutional, Article 27 (7) of the Regulation is contrary to Article 124 (1) of the Labour Law, which provides for the termination of the employment contract on the expiration, agreed revocation, denunciation by any of the parties or termination by any party for just cause.
The Constitutional Council as a result stated that the Council of Ministers had exceeded its regulatory powers by establishing a new form of termination of employment contract other than those provided for in the Labour Law.
“As is known in terms of rules of normative hierarchy, the regulation obeys the law, that is, while the law establishes the principles of a certain legal regime, the regulation establishes details of such principles, but without innovating, except in the cases expressly provided for in such law,” the Constitutional Court decision states.Source: O País