THE (IN) POSSIBILITY OF REFUSAL TO APPLY RULES BASED ON UNCONSTITUTIONALITY BY THE PUBLIC ADMINISTRATION IN MOZAMBICAN LAW

Abstract

This article analyzes the rule contained in paragraph a) of no. 1, of article 246 of Law n.˚1/2018, of 12 July – Law of Punctual Revision of the Constitution of the Republic of Mozambique, seeking to understand “the (in) possibility of refusing to apply norms based on unconstitutionality by the Public Administration in Mozambican Law”. For many years, even in the history of the Constitutional Revision of Mozambique, the possibility of requesting a declaration of unconstitutionality of norms was strictly linked to certain figures that the Constitution gives them legitimacy to request its appreciation. Thus, in order to understand this aspect, we discuss the scope of material application of the principle of binding the Public Administration to the criterion of administrative legality and the Law, as well as the discretionary power of the Public Administration in the scope of its action, and the meaning of the expression "other decisions” contained in the Constitutional text. From the Methodological point of view, the research is Qualitative, descriptive and Bibliographic. With a study it was possible to conclude that the expression “other decisions” in n˚. 1 of article 246 of the CRM is broad, and given the guarantee of the discretionary power granted to it by law, the Public Administration may refuse to apply rules based on their unconstitutionality under the terms of no. 1 of article 246 of the CRM. However, there is still the problem of knowing how to assess the aforementioned unconstitutionality because the Constitution of the Republic as well as the Organic Law of the Constitutional Council does not make room for concrete requests that are not just the courts, in the concrete inspection.