IN THE MATTER OF ARTICLE 139 OF THE CONSTITUTION v. THE TURKISH COMMUNAL CHAMBER, AND/THROUGH ITS SOCIAL AND MUNICIPAL AFFAIRS OFFICE, AND THE COUNCIL OF MINISTERS (1963) 5 RSCC 59

[*59] 1963 April 25

(forsthoff, p., triantafyllides and munir, jj.)

(FEBRUARY 16, 20, MARCH 1, 6, 8, 13, APRIL 25, 1963)

In the Matter of Article 139 of the Constitution.

The Turkish Communal Chamber, and/through its Social and Municipal Affairs Office,

And

The Council of Ministers.

(Case No. 10/63)

“Conflict or contest of power or competence” in the sense of Art. 139 — Mode of deciding a — Mere disagreement between organs or authorities over an action constitutes a — To be clearly distinguished from a “violation” of power or competences — Art. 139, a constitutional provision for a procedure for the determination of such disagreement.

Arts. 78, 87, 89 & 173 to 177 — Do not depend in their validity on the prior creation of any specific type of municipal administration — Meaning of “towns” in relation to “town” in Art. 173.1 — Intention thereof— Competence of Communal Chambers under Arts. 87 and 89 recognised — Existence of a basic law of the House of Representatives a condition precedent to the exercise of such competence.

Arts. 173 to 177 contain a binding order of constitutional force.

Organs of the Republic — Constitutional competence of, cannot, in case of necessity, be overriden by an implied power of other organs outside the express provisions of the Constitution.

Communal Chambers — Competence under Arts. 87 & 89 recognised — Subject to existence of a basic law by the House of Representatives — Social and Municipal Affairs office — Competence thereof, not independent to that of the Communal Chambers.

Council of Ministers — Effect of orders not properly promulgated under Art. 57.2 — President and Vice-President have no right to refuse promulgation.

Order No. 4 of the Council of Ministers, dated 2.1.63 — Being void ab initio owing to lack of promulgation no actual encroachment upon the power or competence of the Turkish Communal Chamber was effected — Council of Ministers had no power to make it — “Necessity” not based on the express provisions of Art. 183 — Unconstitutional, as contrary to Arts. 173.2.3 & 174 to 177 — Acts made thereunder pronounced to be valid — May be challenged before this Court upon a proper recourse.

The Villages (Administration and Improvement) Law, Cap. 243 — Does not apply to towns.

Words & phrases — “Conflict or contest of power or competence” in Art. 139.1, interpretation of — “and between any organs of, or authorities in, the Republic” in Art. 139.1, meaning of— “municipalities” in Arts. 78, 87, 89 and 173 to 177, meaning of — “town” in Art. 173.1, meaning of.

The Council of Ministers at its meeting of the 2nd January, 1963, decided to make an order under s.4 of the Villages (Administration and Improvement) Law, Cap. 243, whereby the provisions of the said Law [*60] were made applicable, inter alia, to the towns of Nicosia, Limassol, Famagusta, Larnaca and Paphos.

As a result of a return made by the Vice-President under Art. 57.2, the Council reconsidered the said decision on the 10th January, 1963, and having persisted in it, it was published, by direction of the President of the Republic, in the official Gazette, the Vice-President having in the meantime informed the Joint Secretariat of the Council that he was not prepared to give the necessary direction for the promulgation of the decision in question.

The Applicant’s motions for relief as well as the Respondent’s opposition are fully set out in the Decision that follows:—

Held, by majority : (a) in deciding whether or not a recourse related to a “conflict or contest of power or competence” in the sense of Art. 139, it would be sufficient for the Court to come to the conclusion that, assuming the Applicant’s submissions in relation to the substantive issues to be correct, the action forming the subject-matter of such recourse would constitute a violation of powers or competences, without the Court reaching a conclusion as to the correctness of such submissions in support of the recourse;

(b) a mere disagreement between organs or authorities concerned with an action already done or about to be done, would constitute a conflict or contest of power or competence between such organs or authorities — to be clearly distinguished from a violation of powers or competence which might not co-exist — the object of Art. 139 being to provide a procedure for the determination of such disagreement;

(c) the subject-matter of the present recourse constituted both a “conflict” and a “contest” of “power or competence” in the sense of Art. 139, because —

(i) it related to a “conflict or contest” of power or competence, in that it implied the allegation that the said order had actually encroached upon the realm of power or competence of another organ, whilst its purported making, assuming the Order was non-existent for lack of proper promulgation in accordance with Art. 57, was an indication of the contention of the Council of Ministers that it had the power or competence to make it;

(ii) it was a conflict and contest of “power or competence” between “organs of, or authorities in, the Republic” in the sense of Art. 139.1 inasmuch as the expression “and between any organs of, or authorities in, the Republic”, included the Communal Chambers or either of them in their legislative or executive power;

(d) the Applicants were involved in the said conflict or contest of power and competence, because —

(i) the expression “municipalities” in Arts. 78, 87, 89 and 173 to 177, did not refer to certain existing administrative bodies or organisations, as created and governed by any specific type of administrative legislation, but, it referred to any kind of administrative bodies or organisations which were or would be established for the administration of the factually existing “towns”, the word “town” being understood in its natural meaning as describing, like the [*61] word “town” in Art. 173.1, certain places of condensed human habitation, which by their very existence required certain specific administrative functions and provisions. Nor could the said Articles depend in their validity on the prior creation of any specific type of municipal administration ;

(ii) the intention of the provisions of Arts. 78, 87, 89 and 173 to 177 was to reserve the regulation of the administration of towns to the legislative bodies of the Republic, any interference or transgression into any one of such competences necessarily being regarded as constituting, at the same time, a violation of all the other competences as well ;

(e) the competence of the Communal Chambers, as envisaged by Arts. 87 and 89, should be recognised and respected, irrespective of whether or not there existed a basic law of the House of Representatives regulating the administration of towns, a condition precedent to the exercise of such competence, and could be defended before the S.C.C. against infringements by other organs ;

(f) the Social and Municipal Affairs Office of the Turkish Communal Chamber did not have any competence which could possibly be involved in the present conflict or contest of power independently of the Chamber itself because it only exercised certain duties, functions and competences of, and on behalf of, the Chamber;

(g) the Order of the Council of Ministers was, ab initio, void because it was not properly promulgated in accordance with Art. 57.2, the Vice-President having refused to take part in such promulgation by refusing to sign it;

(h) the President or the Vice-President of the Republic had no right to refuse participation in the promulgation of a decision taken by the Council of Ministers, as provided in Art. 57, even if he had made use of his right of return or considered the decision unconstitutional;

(i) the Order of the Council of Ministers being ab initio void, no actual encroachment of powers or competences of other organs could have taken place;

(j) the Council of Ministers was not empowered to make the said Order, because —

(i) it contained a regulation for the administration of towns contrary to (d) (ii) supra,

(ii) Cap.243 did not, by the very wording of s.59 thereof, apply to towns. Even on the assumption that Cap. 243 was applicable to any of the areas of the towns affected by the said Order, and which were subject to legislation concerning municipal administration as envisaged, inter alia, by Art. 78, Cap. 243, did not provide a sufficient legal basis for the making of the Order, as it would, to this extent, constitute a “law relating to Municipalities”, as in Art. 188.2, and would, thus, have ceased to be in force six months after the coming into operation of the Constitution ;

(k) the said Order was not based on the express provisions of Art. 183, which provides for certain extraordinary powers and competences of the [*62] Council of Ministers in a case of emergency, because no prior formal “Proclamation of Emergency” had been issued. Nor could it be said to have been made on an implied legal basis outside the express constitutional provisions of Art. 183, because no organ of the Republic could have an implied power, outside such express constitutional provisions, to override, in a case of “necessity”, competences of other organs and to step beyond the limits of its own competences or to act without the basis of a law, although such legal basis would normally be required for its actions;

(l) the said Order was not constitutional, because it was contrary to the provisions of Arts. 173 to 177, which contained a binding order of constitutional force directed, by virtue of Art. 179, to all organs of the Republic, no action of any organ of the Republic which was contrary to the said provisions being regarded as constitutional;

(m) all acts, including administrative acts, made under the said Order prior to the publication of this Decision should be presumed to be valid until the contrary was proved upon a proper recourse to this Court.

TRIANTAFYLLIDES, J., dissenting, was of the opinion that there did not actually exist a conflict or contest of power to be adjudicated upon by this Court under Art. 139 and that, therefore, the present recourse should have been dismissed for the following reasons:—

(a) The competence of a Communal Chamber, even in relation to Municipalities composed solely of members of its own Community, was not an exclusive competence, nor could it become effective, independently of legislation enacted by the Republic, especially as —

(i) by virtue of Art.87.1 (g) it was dependent on the enabling provisions of laws relating to Municipalities,

(ii) by virtue of Art. 87.1(h) it could not directly or indirectly be contrary to, or inconsistent with, any laws to which the Municipalities were subject, and

(iii) by virtue of Art. 89.1(c) was, also, subject to the legislation of the Republic under which the central administration might proceed to control Municipalities;

(b) Municipalities were not organs or authorities of a particular Communal Chamber, but were authorities of local Government under the Republic, to be created and endowed with power to function only after appropriate legislation of the Republic, Communal Chambers having only a limited, specific and ancillary competence to promote their aims and to supervise their functions, after such legislation was enacted; in this respect it had to be borne in mind that the implementation of the programmatic provisions of Arts. 173-177 which would inevitably entail the imposition of certain restrictions and limitations on fundamental rights and liberties was a matter within the exclusive province of the House of Representatives, the Communal Chambers not being participants in such implementation in the exercise of their competence under Art.87;

(c) the Communal Chambers, in view of the nature of their competence under Arts.87 & 89 in relation to Municipalities, could not be said to be directly involved in the “administration of towns”, because such competence, [*63]

(i) fall short of the exercise of the power of administrative potestas,

(ii) did not include power of interference with human rights which was inevitably involved in such administration of towns,

(iii) was restricted in its exercise only over persons and was not of territorial application, towns being geographical areas;

(d) the respective competences of the House of Representatives and of the Communal Chambers in relation to Municipalities were not interwoven with one another but, were and should, according to Arts. 61 & 87.1 (h) (ii), be kept distinctly separate;

(e) at the time of the making of the Order of the Council of Ministers there did not exist, nor does it exist now, any legislation relating to Municipalities enabling the Communal Chambers, in exercise of their competence under Art.87.1 (g), to make subsidiary legislation in relation to such Municipalities, because,

(i) the Municipal Corporations Law, Cap. 240 and the Turkish Municipal Committees (Temporary Provisions) Law, No. 33 of 1959, expired by virtue of Art. 188.2, six months after the coming into force of the Constitution, whilst Arts. 173 to 177, being programmatic provisions requiring implementation (vide The Mayor etc. of Famagusta and Nearchos Petrides & others, 4 R.S.C.C., p. 71) could not be construed as constituting the legislation necessary for the creation and functioning of separate municipalities;

(ii) the Municipalities Laws (Continuation) Law, No. 10 of 1961, which re-enacted the provisions of Cap. 240 toegether with other legislation relating to municipalities, (vide The Mayor etc. of Famagusta, ibid), was an enactment under Art. 78.2 of an, ab initio, express temporary duration finally coming to an end on the 31st December, 1962, and could not be treated as continuing in force after that date;

(f) no separate municipalities composed solely of members of either Community existed at the time of the making of the said Order, enabling the Communal Chambers to exercise their competence under Arts.87.1(h) and 89.1(c), because,

(i) Cap. 240, originally enacted in June, 1930, did not provide for separate but for unified municipalities;

(ii) the Municipal Corporations (Temporary Provisions) Law, No. 15 of 1959 enacted to extend the term of office of the lawfully existing, under Cap. 240, Municipal Councils did not take cognizance of the then existing, without lawful authority, Turkish Municipal Committees,

(iii) the Turkish Municipal Committees (Temporary Provisions) Law, No. 33 of 1959 did not create separate Turkish Municipalities, particularly in view of s.5 thereof,

(iv) separate Municipalities were not created by the provisions of Arts. 173 to 177, Art. 173.1 being merely part of a legislative programme (vide para, (e) (i) supra), a fortiori, when read in conjuction with the provisions of Art. 188.2,

(v) no legislation of permanent duration has so far been enacted by the House of Representatives towards the implementation of the [*64] provisions of Arts. 173 to 177 except the pro tempore Municipal Corporations (Continuation) Law, No. 10 of 1961, which, in any case, expired on the 31st December, 1962;

(g) actually no conflict or contest of power or competence existed to be adjudicated upon by this Court under Art. 179, because —

(i) the power or competence of the Applicant was not involved in the alleged conflict or contest as provided in Arts. 139.3.4.

(ii) though the formal validity of the subject-matter of a recourse under Art. 139 did fall to be examined by this Court under the said Article, as being relevant to the question of the existence of a conflict or a contest, this Court had no competence to adjudicate on the substance of the subject-matter of a recourse under Art. 139 on grounds not arising out of the alleged conflict or contest of power or competence which, however, might have formed the subject of a recourse to this Court under other Articles of the Constitution such as Arts. 144 and 146;

(h) the Order of the Council of Ministers did not conflict with, or contest, the competence of the Applicant in relation to Municipalities, nor could the Applicant contest in this respect the competence of the Council of Ministers, because, it neither disputed, nor interfered with, the competence of the Applicant under Arts. 87 and 89, whilst the non-existence of separate municipalities did not allow the Applicant to exercise such competence.

1. The Order was ab initio void.

2. The making of the Order was not within the power or competence of the Council of Ministers.

3. Anything done thereunder presumed to be valid.

R. R. Denktash and H. Ali Riza for the Applicants.

Cr. Tornaritis, Attorney-General of the Republic, for the Council of Ministers.

Cur. adv. vult.

April, 25. The Decision of the Court was read by FORSTHOFF, P., whilst the Dissenting Opinion was read by TRIANTAFYLLIDES, J.

FORSTHOFF, P.: The Court, by majority, declares—

(1) The Order made by the Council of Ministers on the 2nd January, 1963, and published under Notification No. 4 in Supplement No. 3 to the official Gazette of the Republic of the 10th January, 1963, is void ab initio and without any legal effect whatsoever.

(2) The making of such Order is not within the power or competence of the Council of Ministers.

(3) It is directed that anything done before the publication [*65] of this Decision, under and in accordance with the Order described hereinbefore, is presumed to be valid, without prejudice to the competence of this Court to entertain applications for examination of the legality and constitutionality in their substance of such actions.

(4) The application of the Turkish Communal Chamber, to the extent to which it is not disposed of by this Order, and the application of the Social and Municipal Affairs Office of the Turkish Communal Chamber, cannot succeed and are dismissed accordingly.

(5) This Order shall also be notified to the President and to the Vice-President of the Republic.

At a meeting held on the 2nd January, 1963, the Council of Ministers decided to make an Order under section 4 of the Villages (Administration and Improvement) Law, CAP 243, whereby the provisions of the said Law were applied to the towns specified in the said Order, including, inter alia, the towns of Nicosia, Limassol, Famagusta, Larnaca and Paphos.

The Vice-President of the Republic, acting under paragraph 2 of Article 57 of the Constitution, returned the aforesaid decision of the 2nd January, 1963, to the Council of Ministers for reconsideration.

The Council of Ministers duly reconsidered the matter at its meeting held on the 10th January, 1963, and persisted in its afore-mentioned earlier decision.

On the 10th January, 1963, a letter was addressed from the office of the Vice-President of the Republic to the Secretaries, Joint Secretariat of the Council of Ministers, in which it was stated that the Vice-President “is not prepared to give the necessary direction for the promulgation of” the decision in question.

The aforesaid Order made on the 2nd January, 1963, was, nevertheless, at the direction of the President of the Republic, published, under Notification No. 4, in Supplement No. 3 to the official Gazette of the 10th January, 1963.

The Application, which was filed on the 30th January, 1963, seeks a declaration that —

I. “(1) the Council of Ministers have no power or competence to create or purport to create Improvement Areas under or by virtue of The Villages (Administration and Improvement) Law (CAP 243) for the five largest towns of the Republic, i.e. Nicosia, [*66] Limassol, Famagusta, Larnaca and Paphos, and/or to appoint Improvement Boards in respect of such towns and in any case in such a manner as to deprive –

(a) the Turkish inhabitants of such towns from enjoying and/or exercising their rights in respect of separate Turkish Municipalities in such towns under Article 173 et seq. of the Constitution, and/or

(b) the Turkish Communal Chamber of the right of exercising its power and functions under Articles 87 and 89 of the Constitution and thereby encroaching upon the power or competence of the said Chamber under the said Articles;

(2)(a) the Order purported to be made by the Council of Ministers on the 2nd day of January, 1963, and published under Notification No. 4 in Supplement No. 3 to the official Gazette of the Republic of the 10th January, 1963;

(b) the appointments to the Improvement Boards purported to be made by the Council of Ministers on the 3rd January, 1963, and published under Notification No. 5 of the aforesaid Supplement to the same Gazette; and

are made without power or competence and are, therefore, wholly, void ab initio and without any legal effect whatsoever”.

Further and in the alternative the Application prays the Court “to make an interpretation of Article 173 of the Constitution and thereby resolve an ‘ambiguity’ which has arisen as a result of the action taken by the Council of Ministers.... in complete disregard of the provisions of the said Article 173” and “for this purpose the Applicant seeks the prior leave of the Court under rule 15(2)(b) of the Supreme Constitutional Court Rules to proceed with this relief”.

The application for leave contained in paragraph 2 of the Applicant’s motion for relief was considered by the Court on the 4th February, 1963, and the Court, by consent of the parties, ordered that the issue of the interpretation of Article 173, raised in the said motion, be dealt with by the Court in dealing with motion for relief 1 of the Application, should the need for doing so arise. [*67]

The Opposition, which was filed on the 16th February, 1963, inter alia, denies that there is any conflict or contest of power or comptence between the Applicant and the Respondent and that the Order of the Council of Ministers in question was unconstitutional or illegal.

On the 16th February, 1963, the President of the Court directed, in the interests of the proper discharge of the functions of the Court in this Case and in the light of the course of events since the institution thereof, that the Court should consider on Wednesday, the 20th February, 1963, whether or not the Court should order, under paragraph 7 of Article 139 of the Constitution, that the operation of the subject-matter of this recourse should be suspended until the determination of the recourse, and it was decided to hear by and on behalf of the parties arguments in relation to the said matter.

In the light of statements made on the 20th February, 1963, by counsel appearing for the parties the Court was satisfied that it was not necessary for it to exercise, at that stage, its powers under paragraph 7 of Article 139, and it felt that the fixing of an early date for hearing would sufficiently meet the situation.

The Court accordingly fixed a date for the hearing of the Case which was heard on the 1st, 6th, 8th and 13th March, 1963.

BY THE PRESIDENT OF THE COURT AND MUNIR, J:

The majority of the Court (hereinafter referred to as “the Court”) will first deal with the question whether it has jurisdiction, under Article 139 of the Constitution, to entertain the recourse made by the Turkish Communal Chamber. In deciding this the Court must consider-

(a) whether the legal issues raised by the Applicant constitute a conflict or contest of power or competence in the sense of the first part of paragraph 1 of Article 139, and

(b) whether the Applicant is involved in such conflict or contest, as it is a prerequisite of the making of a recourse under paragraph 3 of Article 139.

As regards question (a) above, in the opinion of the Court, the legal issues raised by the Applicant relate to a conflict and a contest of power or competence between the Council of Ministers on the one hand and the House of Representatives and the Communal Chambers on the other, for the following reasons: [*68]

It must first be observed, at this stage, that in deciding whether or not a recourse relates to a “conflict or contest of power or competence” in the sense of Article 139, it suffices for the Court to come to the conclusion that, assuming the submissions made by the Applicant in relation to the substantive issues to be correct, the action, which forms the subject-matter of the recourse, would constitute a violation of powers and competences, and therefore it is not necessary, in this connection, to reach a conclusion with regard to the correctness of the allegations and submissions made in support of the recourse by the Applicant. It appears useful to remark here, that a clear distinction must be made between a conflict or contest of power or competence, on the one hand, and a violation of powers and competences, on the other. A contest is constituted by a mere disagreement in respect of an act which has already been made or which is going to be made, between the organs or authorities concerned, and it is the whole object of Article 139 to provide a procedure for the determination of such a disagreement. “Conflict or contest” are therefore notions confined to the law of procedure. Even though there exists a conflict or contest, there may not exist a violation of powers or competences, and vice-versa.

It is the allegation of the Applicant, in the present recourse, that by the Order purported to have been made on the 2nd January, 1963, the Council of Ministers has undertaken to trespass into a realm of competence, which is reserved to be governed by laws of the House of Representatives and by subsidiary legislation and administrative measures of the Communal Chambers, as envisaged by Articles 61, 78, 87 and 89. According to the submissions made by the Applicant, the said Order has not been properly made, because it has not been promulgated in accordance with Article 57, and, moreover, the Council of Ministers has no power or competence to make such an Order as it has purported to make, on the 2nd January, 1963.

In the opinion of the Court, the said subject-matter of the present recourse constitutes both a “conflict” and a “contest” of power or competence in the sense of Article 139. As far as such recourse is directed against an Order actually made by the Council of Ministers, it must be regarded as relating to a “conflict” of power or competence, inasmuch as it implies the allegation and submission that the Order has actually encroached upon the power or competence of another organ. But even if the Order in question is found not to be in existence at all because it has not been properly promulgated, there still remains, in the opinion of the Court, a “contest” of power in the sense of Article 139, inasmuch as it is the contention of the Council of Ministers, as expressed in the purported making of the Order in question, to have the power or competence questioned by Applicant. As the expressions “conflict” and “contest” are always employed [*69] together throughout the whole of Article 139, the legal consequences of the existence of a conflict and contest, in respect of the admissibility of the present recourse, are exactly the same. Consequentially, the present recourse fulfills the first prerequisite required for the making of a recourse under Article 139, namely, to relate to a “conflict or contest” of power or competence.

The question, however, remains to be resolved, whether or not the subject-matter of the present recourse is a conflict and contest of “power or competence” in the sense of paragraph 1 of Article 139, which reads as follows:

“The Supreme Constitutional Court shall have jurisdiction to adjudicate finally on a recourse made in connection with any matter relating to any conflict or contest of power or competence arising between the House of Representatives and the Communal Chambers or any one of them and between any organs of, or authorities in, the Republic……”

The interpretation of this provision presents a certain difficulty, inasmuch as it defines the jurisdiction of this Court by referring to the organs between which a conflict or contest of power or competence may arise, in employing, firstly, the phrase “between the House of Representatives and the Communal Chambers or any one of them” and, secondly, the phrase “between any organs of, or authorities in, the Republic”. The first phrase is of a special, the second of a general nature; both phrases are linked by the word “and”.

The question arises, whether each of these phrases must be applied independently of the other, as having its own specific content, or whether the first phrase forms a part and anticipates to a certain extent the comprehensive second phrase by setting out expressly the most important examples of organs between which a conflict or contest of power or competence must be expected to arise. The different consequences of the two possibilities are obvious: If the first alternative is the correct interpretation, then a conflict or contest of power or competence can only arise between the House of Representatives and the Communal Chambers themselves, but not between any one of them and other organs of the Republic. Such an interpretation cannot be correct. Firstly, because it is not supported by the wording of paragraph 1 of Article 139. Had it been the intention to make such a provision, the drafters of the Constitution, in the opinion of the Court, would have put the two relevant phrases in the alternative, using the words “either - or”. Secondly, the said interpretation must be rejected for the even more important reason, that there is no room for the assumption of the alternative in question, having regard to the very substance of the said phrases. The suggested [*70] alternative would require, that each of the phrases quoted above would have a definite and specific comprehensive ambit of application. In particular, the first phrase would be expected, in regulating conflicts and contests of powers and competences within the legislative field, to enumerate all organs endowed with such competences, as there are, besides the legislative bodies, the Ministers, in their function of introducing Bills (Article 80), and the President and the Vice-President, in respect of the promulgation and publication of laws (Article 52). The absence of any reference to these organs in the first phrase in question clearly shows, that the drafters of the Constitution, in combining in paragraph 1 of Article 139 the two phrases referred to above, could not have had the intention of giving to the said paragraph 1 the restricted meaning which would be the consequence of the interpretation dealt with in this connection. Otherwise, several important conceiveable conflicts and contests of power and competence would be excluded from the application of Article 139. No reasonable explanation can be found for such an exclusion. The same reasons apply for the second phrase quoted above ; there is nothing in Article 139 to indicate, that the said phrase refers at all to functions of a special and distinct nature, and in particular, to functions other than those pertaining to the process of legislation, but such Article makes the competence of the Court dependent exclusively upon the organic nature of the Applicant.

The Court has, therefore, come to the conclusion, that the subject-matter of the present recourse is a conflict and contest of “competence” and “power” in the sense of Article 139. There can be no doubt about this in so far as the Applicant claims to be affected in certain of its executive competences by the purported Order of the Council of Ministers, which is also an executive authority. The same result must also, however, be reached with regard to the conflict and contest raised by Applicant between the Council of Ministers as an executive authority and the Turkish Communal Chamber in its capacity as a legislative organ. Regardless of the consideration, that this aspect of the recourse might prove to involve a conflict or contest of competence which is confined to the legislative field, because the Council of Ministers, in purporting to make the Order of the 2nd January, 1963, might have to be held as having assumed a legislative competence as reserved, by the Constitution, inter alia, to the Communal Chambers, the Court is convinced that it has the duty, under paragraph 1 of Article 139, to entertain the recourse of Applicant, even in so far as it raises a conflict and contest of power or competence between the Turkish Communal Chamber as a legislative organ and the Council of Ministers as an executive organ of the Republic. Any other interpretation of Article 139 would arrive at the absurd result, that a violation of the doctrine of the “separation of powers” could not be the subject-matter of a recourse to the [*71] Supreme Constitutional Court and could thus not be remedied by a judicial decision, whereas conflicts and contests of comparatively minor importance would be included in the jurisdiction of this Court under Article 139. That this is not the intention of such Article is clearly shown by the use of the word “power” in paragraph 1 thereof, where it has to be regarded as having the same meaning as the notion “power” in the said doctrine of the “separation of powers”, thus opening expressly the way for a recourse to this Court to be taken on the ground that there exists a conflict or contest of power between the executive and the legislative branch of government.

With regard to question (b) above, the Court did not have to decide, whether only organs, the competences of which are the subject-matter of the conflict or contest in question, are entitled to make a recourse under paragraph 3 of Article 139, or whether also organs, the functions of which are merely indirectly affected by a conflict or contest existing between other organs, must be regarded as being “involved” in the sense of the said paragraph 3. In the present Case it is not necessary to resolve the ambiguity which appears to exist in this respect, because, in the opinion of the Court, competences of the Applicant are in fact the subject-matter of the conflict in question. In setting out the reasons for this conclusion, the Court finds it useful to begin by summarizing the system of constitutional provisions concerning the distribution, between the various constitutional organs, of the competences to regulate, supervise and conduct the administration of towns, as provided by Articles 61, 78, 87 and 89 of the Constitution.

It must first be observed, that the competence to regulate the administration of towns is reserved to the legislative power —in contradistinction to the executive power — by virtue of the general principle of the Rule of Law, which requires, that the administration of towns, which necessarily involves the imposition of restrictions on citizens, must be governed by laws. This is also envisaged by express provisions of the Constitution.

Concerning the administration of towns, the Constitution contains the following provisions : Paragraph 2 of Article • 188 envisages a legal situation in which it becomes necessary to enact new legislation “relating to the municipalities”. The making of such legislation is principally within the competence of the House of Representatives (Articles 61, 78). In so far as it relates to the five towns enumerated in paragraph 1 of Article 173, the said legislation is governed by the legislative programme set out in Articles 173 to 177 of the Constitution. In implementing this programme the Communal Chambers are vested, under sub-paragraphs (g) and (h) of paragraph 1 of Article 87, with the competence to exercise legislative power [*72]

“in matters where subsidiary legislation.... will be necessary to enable a Communal Chamber to promote the aims pursued by municipalities composed solely of members of its respective Community……” and

“in matters relating to the exercise of the authority…. of supervision in their functions……” of such municipalities “…… vested in them by this Constitution….”.

Furthermore, it is provided in sub-paragraph (c) of paragraph 1 of Article 89, that the Communal Chambers shall, in relation to their respective Community, have competence

“to promote the aims pursued by municipalities composed solely of members of their respective Community and to supervise in their functions such municipalties..”.

There are also some other competences with regard to the municipal administration of towns laid down in the Constitution, which do not appear to be relevant in this connection.

In the opinion of the Court, the expression “municipalities”, when used in Articles 78, 87, 89 and 173 to 177, does not refer to certain existing administrative bodies or organisations, as created and governed by any specific type of administrative legislation, nor can such Articles by any means depend in their validity on the prior creation of any specific type of municipal administration. Instead, such expression refers to any kind of administrative bodies or organisations which have been or which will be established for the administration of the factually existing “towns” of the Republic of Cyprus, the word “town” being understood in this connection in its natural meaning as describing, like the word “town” in paragraph 1 of Article 173, certain places of condensed human habitation, which by their very existence require certain specific administrative functions and provisions. It should be observed, in this connection, that the notion of “administration of towns”, as referred to in the foregoing passage and as employed throughout this Decision, comprises exclusively such administrative functions as are traditionally regarded as pertaining to, and as are required by, the special nature and necessities of the administration of towns. The said Article 78 provides, with regard to the inhabitants of all towns of the Republic, that all laws of the House of Representatives regulating the details of municipal administration in such towns are enacted by separate majorities as required by paragraph 2 of Article 78. Moreover, Articles 87, 89 and 173 to 177 provide, with regard to the inhabitants of the five towns mentioned in paragraph 1 of Article 173, that the legislation to be enacted with regard to the municipal administration of such towns must provide for separate municipalities for the Greek and Turkish inhabitants thereof, and that the administration of such towns must bear certain additional [*73] fundamental features which are set out specifically in the said Articles, and, finally, that the laws concerning municipal administration, as far as they apply to the five towns in question, must be supplemented by subsidiary legislation and administrative measures of the Communal Chambers, as specified in Articles 87 and 89.

It is clear, therefore, that the provisions, which are contained in Articles 173 to 177 in the interest of the Turkish inhabitants of certain towns, and the rights given to the Greek and Turkish members of the House of Representatives in Article 78, as well as the rights given to the Communal Chambers in Articles 87 and 89, which are to be exercised in the course or on the basis of legislation concerning the administration of towns, would be frustrated, if organs other than the legislative bodies would undertake to regulate the administration of towns. Therefore, it must be regarded as the intention of the said Articles of the Constitution to reserve the making of regulations concerning the administration of towns to the legislative power.

The competences set out in detail above form an interdependent system and are interwoven with one another in such a way that the transgression into the realm of any one of such competences must necessarily be regarded as constituting, at the same time, a violation of all the other competences as well, which form part of the elaborate system described above. If it is found, therefore, that by the Order of the 2nd January, 1963, which is the subject-matter of the present recourse, the Council of Ministers has entered, without being authorized to do so by a valid enabling provision contained either in the Constitution or in a law, into the realm of the administration of towns as reserved to the organs referred to above, then the powers and competences of the Applicant, which is one of the said organs, would have been violated. Therefore, the Applicant is entitled to have a recourse to this Court under Article 139.

The Court did not find it necessary, for the purposes of this Decision, to decide, whether or not laws of the House of Representatives relating to the administration of municipalities were in force, and whether separate municipalities, as provided for by Article 173 of the Constitution, have existed at the time of the making of the Order in question by the Council of Ministers. For even to the extent to which no immediate legislative or administrative action of the Communal Chambers might be possible at present because of a lack of a basic law of the House of Representatives regulating the administration of towns, for which subsidiary legislation and executive action of the Communal Chambers is required, there actually exist, in the opinion of the Court, the constitutional competences of the Communal Chambers described above. Even though such competences are subject, in their [*74] exercise, to a prerequisite legally comparable to a condition precedent, which may not yet have materialized, the competences must be recognized and respected, as vested in them by the Constitution itself, and irrespective of whatever has been done or omitted to be done under the Constitution. As there can be no doubt with respect to the existence of a right, even though its exercise may be subject to a condition precedent, and even before such condition has materialized, there can also be no doubt with regard to the existence of the competences in question, having at least the legal effect of enabling the competent organ to defend such competences against infringements by other organs in making a recourse to the Supreme Constitutional Court.

On the other hand, in so far as the present recourse purports also to be made by the Social and Municipal Affairs Office of the Turkish Communal Chamber, independently of the Chamber itself, it cannot be entertained by the Court, because the said Office exercises only duties, functions and competences of and on behalf of the Turkish Communal Chamber, and does not have any separate competences of its own which could possibly be involved in the conflict and contest in question.

The Court will now deal with the legal issues relating to the substance of motion for relief No. 1(2)(a). In doing so, the Court finds it necessary to deal with the following submissions made by the Applicant :-

(a) that the Order of the Council of Ministers purported to have been made on the 2nd January, 1963, has not been promulgated in accordance with Article 57;

(b) that the Villages (Administration and Improvement) Law (CAP 243) is not a sufficient legal basis for the Order purported to have been made by the Council of Ministers on the 2nd January, 1963;

(c) that the said Order could not have been based upon an implied legal principle which gives competence to the Council of Ministers to take certain actions in a case of “necessity” ;

(d) that the Order in question of the Council of Ministers is, in its substance, inconsistent with the provisions of the Constitution.

As far as the above submission (a) is concerned, the Court has come to the conclusion, that the Order in question has not been properly promulgated. According to the first part of paragraph 2 of Article 57, a decision of the Council of Ministers, which has been confirmed by the Council after the Vice-President has exercised his right of return for reconsideration [*75] under the same provision, as it was done in the case of the Order in question, must be promulgated by the President and the Vice-President of the Republic. In the case of the Order in question, the Vice-President has refused to take part in the prescribed promulgation. It must be stated, in this connection, that the Order in question, if confirmed upon having been returned to the Council of Ministers for reconsideration, must be promulgated by publication by both the President and the Vice-President of the Republic. Neither the President, nor the Vice-President, even having made use of his right of return, and even though considering the Order to be unconstitutional, has the right to refuse his participation in the promulgation prescribed by paragraph 2 of Article 57.

The Order in question has not, however, been so promulgated. Therefore, since the promulgation provided for in paragraph 2 of Article 57 must be regarded as an indispensable prerequisite for the coming into effect of such Order, the Order of the Council of Ministers purported to have been made on the 2nd January, 1963, had to be declared void ab initio, as stated in The Order.

As it has been found, according to the foregoing, that the Order of the Council of Ministers of the 2nd January, 1963, has not legally come into existence at all, and that, therefore, an actual encroachment of powers or competences of other organs cannot have been effected by the Order in question, the conflict raised by the Applicant is thereby resolved. There remains to be examined, however, the contest of power or competence, raised by the Applicant, relating to the Council of Ministers purporting to be empowered to make the Order in question. In order to determine, in relation to such contest of power or competence raised by the Applicant, whether or not the Council of Ministers has “power or competence” in the sense of paragraph 1 of Article 139, to make such an order as the Order in question, and whether or not, in making such an order, the Council of Ministers would infringe upon, as expounded above, the power or competence of the Applicant, the Court finds it necessary and proper to deal with submissions (b), (c) and (d) above. The adjudication upon the said contest depends on the determinaton of these issues, for the following reasons:

By the Order purported to have been made on the 2nd January, 1963, the Council of Ministers has declared that the areas of certain towns shall be separate Improvement Areas for the purposes of CAP 243, and that the said CAP 243 shall consequentially be the legal basis for their administration. The said Order contains, therefore, a regulation of the administration of towns. As it has already been expounded above, the administration of towns can ony be regulated, as required by principles and provisions of constitutional [*76] law, on the basis of a law, and by the competent organs provided for in the Constitution. If, therefore, sufficient legal support for the Order in question cannot be found, then such Order will have to be declared unconstitutional. Such unconstitutionality, in the opinion of the Court, would constitute, at the same time, a lack of “power or competence” in the sense of paragraph 1 of Article 139, because it is the very object of the whole Constitution to define and to restrict, in this sense, the powers and competences of the organs of the State. The determination of the issues contained in the submissions quoted above is, therefore, material for the determination of the contest of power or competence referred to in motion for relief No. 1(2)(a).

The Court is not of the opinion, which has been submitted by counsel for Respondent, that there can be no idea of any administration of municipalities, and, therefore, of any conflict or contest concerning the regulation of such administration, because all municipalities have ceased to exist, as a consequence of the ceasing to be in force of certain acts of legislation relating to the administration of municipalities. At this stage it need not be decided, whether any such laws have ceased to continue in force and what legal consequences must be derived from such expiration, because the legal necessity of providing legislation for the administration of towns and in particular the provisions of the Constitution concerning the competence to regulate the field of such administration, which are set out in more detail above, do not depend in their actual validity on the existence of any legal regulations concerning the functioning of “municipalities” in the sense of administrative bodies or organisations, or upon the existence of such bodies or organisations. Any legal provisions relating to “administration of towns”, in the sense as defined above in this Decision (in the part dealing with question (b)* concerning the jurisdiction of this Court), with respect to the factually existing towns in the Republic of Cyprus must, therefore, be regarded as “relating to municipalities”.

Coming now to the determination of submission (b) above, the Court has reached the conclusion that CAP 243, and in particular section 4 thereof, under which the Order in question of the Council of Ministers has been purported to be made, does not cover the said Order, because CAP 243 does not apply at all to towns, as it is born out by the whole object of such law and by section 59 thereof. It was not, however, considered necessary to set out in detail the reasons for this limitation of the applicability of CAP 243, because even assuming, that CAP 243 had at all been applicable to any of the areas of the towns affected by the Order of the Council of Ministers, and which are subject to legislation concerning [*77] municipal administration as envisaged, inter alia, by Article 78, then CAP 243 would, to this extent, constitute a “law relating to municipalities” as referred to in paragraph 2 of Article 188 and would thus have ceased to be in force, under the said paragraph, six months after the coming into operation of the Constittion. Therefore, CAP 243 does not provide a sufficient legal basis for the making of the Order in question of the Council of Ministers.

Dealing now with submission (c) above, it must first be observed that the Order of the Council of Ministers purported to have been made on the 2nd January, 1963, has not been based upon Article 183, which provides for certain extraordinary powers and competences of the Council of Ministers in a case of emergency, because the making use of such extraordinary power requires a prior formal “Proclamation of Emergency”. It is common ground that such proclamation has not been made.

On the other hand, under a written Constitution, such as that of the Republic of Cyprus, which expressly provides for extraordinary competences to overcome certain defined situations of emergency, there can be no implied power, outside of such express constitutional provisions, of any organ of the Republic to override, in a case of “necessity”, competences of other organs, and to step beyond the limits of its own competences or to act without the basis of a law, even though such a basis would normally be required for its actions.

Therefore, in the opinion of the Court, an order such as the Order in question made by the Council of Ministers cannot be justified by the allegation that there exists a state of “necessity”, as referred to by counsel for Respondent, which could provide a legal basis, outside of Article 183, for the said Order.

Even if it were to be found, however, that the Council of Ministers was the proper organ to regulate the administration of the municipalities, it would have to be observed, in answer to submission (d) above, that an order such as the Order of the 2nd January, 1963, could not have been constitutional, in its substance, for the following reasons:

Paragraph 1 of Article 173 directs that

“Separate municipalities shall be created in the five largest towns of the Republic, that is to say, Nicosia, Limassol, Famagusta, Larnaca and Paphos by the Turkish inhabitants thereof”.

Paragraphs 2 and 3 of Article 173 and Articles 174 to 177 lay down further particulars concerning the administration of such towns by or through separate municipalities. These [*78] provisions contain a binding order of constitutional force, directed to all organs of the Republic, as is expressly provided by Article 179. Therefore, no action of any organ of the Republic, which is contrary to the said provisions, can be regarded as constitutional. The Order in question of the Council of Ministers, by endeavouring to set up municipal administrations by directing the application of CAP 243 to certain municipalities including those mentioned in paragraph 1 of Article 173, takes no cognizance at all, of the directives contained in Articles 173 to 177. If the Council of Ministers, however, would at all be the proper organ to provide for municipal administration, then it could only do so in a manner consistent with the Constitution by providing for separate municipalities and for their functioning in accordance with Articles 173 to 177. The Order in question, therefore, in failing to do so, would be unconstitutional and void in any case for the additional reason of not complying with the provisions of the said Articles.

Having in mind the reasons given above for the Decision of the Court as stated in The Order and the contents of the above Reasons, a declaration as sought for in motion for relief No. 1(1) and No. 2 would only be of an academic value and no interest of the Applicant in such a declaration can be recognized by the Court. As far as the declarations applied for are not contained in the above Order and Reasons, the Court is not satisfied that there exists any present or obvious danger of a violation of the Constitution, such as might justify an application for a declaratory judgment.

No interest appears to vest in the Applicant, either, to a declaration as sought for by motion for relief No. 1 (2) (b) because the appointment of members to Improvement Boards, which under the Constitution cannot legally exist, is an action which is relevant primarily to the relations between the organ which has made such appointments and the persons appointed. It therefore has no outward effects which might encroach upon any interests of the Applicant.

Coming now to motion for relief No. 1(2) (c) of the application, the Court would observe that it would not be consistent with good order and the requirements of a certain continuity and security of the legal situation, to deny legal effect to all acts, including administrative acts, which have been made prior to the publication of this Decision, under the Order purported to have been made by the Council of Ministers on the 2nd January, 1963, in the application of CAP 243 to towns affected by the said Order. The Court found it necessary, therefore, to direct, under paragraph 5 of Article 139, that such acts are presumed to be valid. Their validity cannot be questioned merely on the ground that the Order in question has not been properly made or that CAP 243 as a whole could not have been applied at all in the administration [*79] of the municipalities as directed by the said Order. This does not rule out, however, that such actions, in their substance, may be contrary to CAP 243 or any other law or to the Constitution itself. This remains to be examined in each particular case of an individual act giving rise to doubts in this respect, by the Court, upon a recourse properly made.

DISSENTING OPINION BY TRIANTAFYLLIDES, J.:

In this Case I have considered it proper and necessary to express a Dissenting Opinion, because the matters concerned are fundamental, in the sense of rule 21 of the Rules of this Court, and because, after thorough and anxious consideration, I find myself in disagreement with the Decision of the majority of the Court.

I should state at the outset that in my opinion this recourse cannot succeed and has, therefore, to be dismissed. In setting forth the process of reasoning which has led me to this conclusion I have to deal with the following questions:—

I. What is the exact nature of the competence of the two Communal Chambers, one of which is the Applicant, in relation to municipalities.

II. Whether or not on the 2nd and 10th January, 1963, when the Order in question of the Council of Ministers (hereinafter referred to as “the Order of the Council”) was made and confirmed, there existed, for the purposes of the aforesaid competence of the Communal Chambers,

(A) legislation of the Republic relating to municipalities; and

(B) separate Greek or Turkish municipalities.

III. In the light of the conclusions on the two previous questions, whether or not there actually exists a conflict or contest of power or competence to be adjudicated upon by this Court under Article 139.

While giving my reasons, in the aforesaid sequence, I shall also deal with certain relevant aspects of the Decision of the majority of the Court with which I find myself in disagreement.

1. In dealing with the competence of the Communal Chambers in relation to municipalities I have chosen to employ the term “competence” as such term is the one used in both relevant Articles of the Constitution, viz. Articles 87 and 89.

Article 87 reads as follows:- [*80]

“1. The Communal Chambers shall, in relation to their respective Community, have competence to exercise within the limits of this Constitution and subject to paragraph 3 of this Article, legislative power solely with regard to the following matters:—

(a) all religious matters;

(b) all educational, cultural and teaching matters;

(d) the composition and instances (###) of courts dealing with civil disputes relating to personal status and to religious matters;

(e) in matters where the interests and institutions are of purely communal nature such as charitable and sporting foundations, bodies and associations created for the purpose of promoting the well-being of their respective Community ;

(f) imposition of personal taxes and fees on members of their respective Community in order to provide for their respective needs and for the needs of bodies and institutions under their control as in Article 88 provided;

(g) in matters where subsidiary legislation in the form of regulations or bye-laws within the framework of the laws relating to municipalities will be necessary to enable a Communal Chamber to promote the aims pursued by municipalities composed solely of members of its respective Community;

(h) in matters relating to the exercise of the authority of control of producers’ and consumers’ co-operatives and credit establishments and of supervision in their functions of municipalities consisting solely of their respective Community, vested in them by this Constitution :

Provided that -

(i) any communal law, regulation, bye-law or decision made or taken by a Communal Chamber under this sub-paragraph (h) shall not directly or indirectly be contrary to or inconsistent with any law by which producers’ and consumers’ co-operative and credit establishments are governed or to which the municipalities are subject; [*81]

(ii) nothing in paragraph (i) of this proviso contained shall be construed as enabling the House of Representatives to legislate on any matter relating to the exercise of the authority vested in a Communal Chamber under this sub-paragraph (h) ;

(i) in such other matters as are expressly provided by this Constitution.

2. Nothing in sub-paragraph (f) of paragraph 1 of this Article contained shall be construed as in any way curtailing the power of the House of Representatives to impose, in accordance with the provisions of this Constitution, any personal taxes.

3. Any law or decision of a Communal Chamber made or taken in exercise of the power vested in it under paragraph 1 of this Article shall not in any way contain anything contrary to the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or which is against the fundamental rights and liberties guaranteed by this Constitution to any person”.

Article 89 reads as follows:

“1. The Communal Chambers shall, in relation to their respective Community, also have competence —

(a) (i) to direct policy (“determiner les principes directeurs”) within their communal laws;

(ii) to exercise administrative powers in the manner and through such persons as may be provided by a communal law,

with respect to any matter on which they are competent to exercise legislative power under the provisions of Article 87 other than those provided in sub-paragraphs (g) and (h) of paragraph 1 of such Article for which specific provision is made in the ensuing sub-paragraphs ;

(b) to exercise control on producers’ and consumers’ co-operatives and credit establishments created for the purpose of promoting the well-being of their respective Community and which will be governed by the laws;

(c) to promote the aims pursued by municipalities composed solely of members of their respective Community [*82] and to supervise in their functions such municipalities to which the laws shall apply.

2. Nothing in sub-paragraph (e) of paragraph 1 of Article 87 and in sub-paragraph (b) of paragraph 1 of this Article contained shall be construed as precluding the creation of mixed and common institutions of the nature therein provided if the inhabitants so desire.

3. In the case where the central administration shall, on its part, proceed to control the institutions, establishments or municipalities mentioned in sub-paragraphs (b) and (c) of paragraph 1 of this Article by virtue of legislation in force, such control shall be carried out through public officers belonging to the same Community as that to which the institution, establishment or municipality in question belongs”.

It must be observed at the outset that wherever the term “law”, in the singular or the plural, is employed in the text of the Constitution, and in particular in the text of Articles 87 and 89, it means legislation of the Republic (including pre-Constitution legislation in force under Article 188), as contradistinguished from legislation of a Communal Chamber, which is referred to in the said Articles, and elsewhere in the Constitution, as a “communal law” as e.g. in the proviso to sub-paragraph (h) of Article 87.1 and in sub-paragraph (a) of Article 89.1.

In examining, first, the relevant provisions of Articles 87 and 89 in the context of the competence as a whole of a Communal Chamber and in the context of the Constitution in general the following points should, I think, be stressed :

(i) As under Article 180.3 the interpretation of the Constitution, in case of ambiguity, must be made “due regard being had to the letter and spirit of the Zurich agreement dated the 11th February, 1959, and of the London Agreement dated the 19th February, 1959”, it is useful to bear in mind that the relevant provision, in Point 10, thereof, reads, in its original French text, as follows :

“Les Chambres Communales seront aussi compétentes pour promouvoir les buts poursuivis par les municipalités a compositions uniquement d’une seule communauté. Ces municipalités, qui réléveront des lois de la Republique, seront supervisées quant à leur fonctionnement par les Chambres Communales”.

(ii) Article 61 of the Constitution provides that -

“The legislative power of the Republic shall be exercised by the House of Representatives in all matters except [*83] those expressly reserved to the Communal Chambers under this Constitution”.

It follows, therefore, that the residue of legislative power vests in the House of Representatives and the competence of a Communal Chamber as a legislative organ is of a limited and strictly defined nature as specified in Article 87. This is further borne out by the provision in Article 87.1 itself to the effect that the Communal Chambers shall have competence to exercise, within the limits of the Constitution, legislative power “solely with regard” to the matters enumerated therein.

Likewise, Article 54, in vesting in the Council of Ministers the residue of executive power, exempts therefrom those matters “which, under the express provisions of this Constitution, are within the competence of a Communal Chamber”, thus clearly showing that the competence of a Communal Chamber in this field also is of a limited and strictly defined nature, as specified in Article 89.

(iii) Both Articles 87 and 89 have to be read and be applied subject to Article 86 which reads as follows:

“The Greek and the Turkish Communities respectively shall elect from amongst their own members a Communal Chamber which shall have the competence expressly reserved for it under the provisions of this Constitution”.

The use of the term “expressly” excludes any possibility of any consequential or residual competence vesting in either Communal Chamber by virtue of necessary implication arising out of any other provision in the Constitution or of the constitutional order in general.

(iv) The limited nature of the competence of Communal Chambers is obvious, also, from the fact that they are precluded, by Article 90, from providing for imprisonment or detention for any violation of their laws or decisions or any failure to comply with their directions in the exercise of their powers under the Constitution. Moreover, they have no competence to use measures of constraint in order to secure compliance with their communal laws or decisions.

In examining next the relevant provisions themselves of Articles 87 and 89 it is necessary to observe the following:

(i) The competence of Communal Chambers under Articles 87 or 89 can only be exercised, as is expressly provided in such Articles, “in relation to their respective Community”. Thus such competence is rendered “personal” in nature and cannot under any circumstances be treated as being of a “territorial” nature over any particular area, as such, of the Republic. [*84]

(ii) The only legislative action by a Communal Chamber which is possible under sub-paragraph (g) of Article 87.1, is “subsidiary legislation in the form of regulations or bye-laws within the framework of laws relating to municipalities”. The terms “subsidiary legislation”, “regulations” and “bye-laws” have to be interpreted in accordance with their acquired technical meaning at the time when the Constitution was drafted here in Cyprus and I do not think that it can be disputed by any one that by “subsidiary legislation”, in the context of the said paragraph (g), is meant delegated legislation made by virtue of express enabling provisions in a parent enactment relating to municipalities. “Bye-laws” and “regulations” are only two particular species of such delegated legislation.

It should be noted, further, that under sub-paragraph (g) above, the subsidiary legislation in question may be made only in so far as it is necessary to enable a Communal Chamber “to promote the aims pursued by municipalities composed solely of members” of its own Community. It may be added, also, that the said “aims” are those pursued by municipalities and not those that should be pursued by municipalities, in other words such aims must be initiated by the municipalities themselves and not by the Communal Chamber concerned, which can only provide for their promotion. That a Communal Chamber cannot initiate the said aims is, also, clear from the fact that the competence of the Communal Chambers to “direct policy within their communal laws”, under Article 89, is expressly rendered, by Article 89.1 itself, inapplicable to the competence of the Communal Chambers in relation to municipalities.

Unless, therefore, there is in force legislation of the Republic relating to municipalities which enables the making of the relevant subsidiary legislation and unless, further, there exist municipalities composed solely of members of its own Community and unless, further still, it is necessary to promote aims pursued by such municipalities, there is no room at all for the legislative competence of a Communal Chamber under sub-paragraph (g) of Article 87.1.

(iii) The competence of a Communal Chamber, under sub-paragraph (h) of Article 87.1 is exercisable by such Chamber only in relation to “the authority……of supervision in their functions of municipalities consisting solely” of its own Community.

The said competence is subject to the express provision, contained in paragraph (i) of the proviso to sub-paragraph (h), that nothing in the relevant communal legislation shall “directly or indirectly be contrary to or inconsistent with any law……to which the municipalities are subject”. Thus the House of Representatives may, through its own laws, limit [*85] the scope of the said competence of a Communal Chamber, under sub-paragraph (h) of Article 87.1, in the same manner as the Constitution itself may limit the legislative power of the House of Representatives in any particular field. It must, of course, be borne in mind that laws relating to municipalities have to be voted in accordance with Article 78.2.

(iv) A definite differentiation between the notions of supervision of a municipality in its functions and promotion of the aims pursued by a municipality becomes instantly obvious by a mere comparison of the provisions of subparagraphs (g) and (h) of Article 87.1. Legislation for the promotion of the said aims is possible only in the form of subsidiary legislation under sub-paragraph (g) whilst legislation for the purposes of supervision is only possible under sub-paragraph (h), within the limits of the legislation of the Republic.

(v) The competence of a Communal Chamber under Article 87, is, by express provision in paragraph 1 of such Article, made subject to paragraph 3 of the same Article, which reads as follows:

“Any law or decision of a Communal Chamber made or taken in exercise of the power vested in it under paragraph 1 of this Article shall not in any way contain anything ………………………… which is against the fundamental rights and liberties guaranteed by this Constitution to any person”.

Moreover, a perusal of Part II of the Constitution, containing Articles 6 to 35 and dealing with fundamental rights and liberties, shows that such rights and liberties can only be subjected to restrictions or limitations under the provisions of a law, i.e. a law of the Republic (including pre-Constitution legislation continuing in force under Article 188) and only exceptionally, as under Article 20, it is possible to impose such restrictions or limitations by means of a communal law. (Article 20 is not relevant in this Case).

It follows, from the above, that the legislative measures to be taken by a Communal Chamber in the course of the promotion of the aims and the supervision in their functions of municipalities composed solely of members of its own Community have to be such as would not involve the imposition of any restrictions or limitations on fundamental rights and liberties, unless of course, such interference has already been duly provided for by the relevant legislation of the Republic.

(vi) In exercising the competence of promoting the aims of municipalities composed solely of members of its own Community and of supervising them in their functions, under [*86] sub-paragraph (c) of Article 89.1, it is not possible for a Communal Chamber to exercise “administrative powers in the manner and through such persons as may be provided by a communal law”. It is expressly provided in sub-paragraph (a) of Article 89.1 that the competence to exercise such administrative powers exists with respect to any matters on which the Communal Chambers “are competent to exercise legislative power under the provisions of Article 87 other than those provided in sub-paragraphs (g) and (h) of paragraph 1 of such Article for which specific provision is made in the ensuing sub-paragraphs”; one of the said ensuing subparagraphs is the aforesaid sub-paragraph (c).

It follows, therefore, that the promotion of the aims and the supervision in their functions, under the said subparagraph (c), of municipalities composed solely of members of the Community of a particular Communal Chamber have to be treated as falling short of the exercise of administrative powers and such competence cannot amount to the exercise of “potestas” by Government towards citizens.

(vii) Sub-paragraph (c) of Article 89.1 lays down that to the municipalities concerned “the laws shall apply”. It follows, thus, that there is no room for a Communal Chamber to take, under such sub-paragraph (c), any action which is contrary to the said laws and, therefore, the Republic may, once again, by legislation control and limit the scope of the competence of a Communal Chamber in this respect.

(viii) Paragraph 3 of Article 89 provides that “In the case where the central administration shall, on its part, proceed to control” the municipalities concerned “by virtue of legislation in force, such control shall be carried out through public officers belonging to the same Community as that to which the .... municipality in question belongs”. Such a provision stresses still further the power of the Republic to control by legislation the municipalities, over which Communal Chambers have only a limited competence.

In the light of all the foregoing observations it is proper to draw the following conclusions concerning the competence of Communal Chambers in relation to municipalities and in conjunction, also, with the provisions of Articles 173 to 177.

(i) Since the competence of a Communal Chamber, under sub-paragraph (g) of Article 87.1, is dependent on the enabling provisions of laws relating to municipalities and since the competence of such a Chamber, under sub-paragraph (h) of Article 87.1, cannot be directly or indirectly contrary to or inconsistent with any laws to which the municipalities are subject, and since, further, the competence of a Communal Chamber under sub-paragraph (c) of Article 89.1 is also subject to the legislation of the Republic, under which, also, the [*87] central administration may proceed to control the municipalities, it follows that the competence of a Communal Chamber, even in relation to municipalities composed solely of members of its own Community, is not competence exercised in a field in which it has exclusivity, as in the case e.g. of matters of personal status, and in which field the Republic, through the House of Representatives or any other of its organs, does not interfere. Such competence, moreover, does not become a reality unless there exist, under legislation of the Republic, municipalities composed solely of members of one Community.

(ii) Municipalities, even when consisting solely of members of one Community, are not organs or authorities of a particular Communal Chamber, over or through which such a Chamber may exercise unlimited powers, but are authorities of local government under the Republic to be created and endowed with the power to function by legislation of the Republic. In relation to municipalities the Communal Chambers have only a certain limited, specific and ancillary competence which by its very nature viz. “promotion of aims” and “supervision” is on a different level and of a different quality than the exercise of public administration vis à vis the citizens of a State. Such competence of a Communal Chamber is not exercisable directly over the members of its own Community but only over the municipalities concerned.

The above conclusion is considerably reinforced by a consideration of the provisions of Article 23.4 relating to compulsory acquisition of property. It is laid down therein that “Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic or by a municipal corporation or by a Communal Chamber for the educational, religious, charitable or sporting institutions, bodies or establishments within its competence....”. This provision could have hardly been drafted in such a manner so as to clearly differentiate between an acquisition by a municipal corporation and an acquisition by a Communal Chamber for institutions, bodies or establishments within its competence, had municipalities been authorities of, or under, a Communal Chamber.

Likewise in Article 108, where provision is made for the right of the Greek or Turkish Communities to receive subsidies from the Greek or Turkish Governments respectively for certain communal institutions, no mention at all is made of municipalities as being such institutions.

(iii) It cannot be denied, and this actually appears to be also the view of the majority of the Court, that municipal administration is bound to involve the imposition of restrictions or limitations on fundamental rights and liberties. It has been noted earlier that the imposition of such restrictions [*88] or limitations is only possible under laws of the Republic. Moreover, the implementation of the legislative programme concerning separate municipalities, which is set out in Articles 173-177, inevitably would entail the imposition of certain restrictions and limitations on fundamental rights and liberties. It follows, therefore, that the creation of separate municipalities and the vesting in them of the powers necessary for them to function, in implementation of the aforesaid legislative programme, is necessarily a matter within the province of the House of Representatives; the Communal Chambers, in the exercise of their competence under Article 87, are not participants in such implementation, as appears to have been assumed, wrongly in my view, by the majority of the Court in coming to their conclusions in this Case.

There is yet another reason why the implementation of the said legislative programme is a matter for the House of Representatives and not for the Communal Chambers as well. Such programme is obviously meant to be implemented equally in respect of both the Greek and the Turkish municipalities and this goal can only be attained through uniform legislative action of the House of Representatives and not through unilateral legislative action of either Communal Chamber in respect of municipalities consisting solely of members of its own Community.

The competence of a Communal Chamber in the fields of the promotion of the aims of separate municipalities and the supervision in their functions is not involved in the implementation of the legislative programme under Articles 173 to 177 but it can only arise and become effective after separate municipalities have been created and vested with the requisite powers by means of legislation of the House of Representatives. A separate municipality before it can pursue any aims, which the Communal Chamber concerned can promote, has to be created and be vested with the necessary powers by legislation of the Republic and, likewise, before it can be supervised by the said Communal Chamber in its functions, has to be endowed with lawful functions again by legislation of the Republic.

(iv) The Communal Chambers, in view of the nature of their competence in relation to municipalities under Articles 87 and 89, cannot be said to be directly involved in the “administration of towns”, as appears to be the view adopted by the majority of the Court in this Case, because, inter alia, -

(a) administration of towns entails the exercise of administrative “potestas” and, as said earlier in this Opinion, the competence of a Communal Chamber, in relation to municipalities, falls short of the exercise of such power; [*89]

(b) such administration necessarily involves the imposition of restrictions or limitations on fundamental rights and liberties, which is a matter beyond the competence of a Communal Chamber;

(c) towns are geographical areas and the competence of Communal Chambers is not territorial but is exercisable by reference to persons i.e. in relation to their respective Community ;

(d) Communal Chambers can only exercise such competence as is expressly granted to them by the Constitution, without the possibility of any implied or residual competence being vested in them, and there is no express provision in the Constitution granting competence to Communal Chambers directly over the administration of towns;

(e) as is expressly provided under Article 89.3, the competence of the Communal Chambers can only be exercised in accordance with the constitutional order and such constitutional order includes the notion that the territory of the Republic is one and indivisible (vide Article 185.1); therefore there is no possibility or legal basis for any authority, not coming under the central Government of the Republic, to possess territorial competence over any specific part of the territory of the Republic, such as towns.

(v) The legislative power in relation to municipalities is vested in the House of Representatives, with only an ancillary and limited competence, for purposes of promotion of aims and supervision, being vested in the Communal Chambers ; thus, it cannot be said that the respective competences of the House of Representatives and the Communal Chambers are interwoven with one another in such a way that the transgression into the realm of any one of them must necessarily be regarded as constituting, at the same time, a violation of the other competence as well, as appears to be the view adopted by the majority of the Court. Had such a view been correct, it would have entailed the untenable corollary that interference with the competence of a Communal Chamber concerning the promotion of the aims or the supervision of a particular separate municipality must be deemed to be an interference with the competence of the House of Representatives also. On the contrary, by means of the provisions of both Article 61 and of paragraph (ii) of the proviso to subparagraph (h) of Article 87.1 it is made abundantly clear that the relevant competences of the House of Representatives and the Communal Chambes are and must be kept distinctly separate.

This concludes the consideration of the nature of competence [*90] of the Communal Chambers in relation to municipalities.

II. (A) - The next question to be considered is whether or not when the Order was made there existed in force legislation of the Republic relating to municipalities (including, of course, any pre-Constitution legislation which may have continued in force under Article 188).

Before the coming into being of the Republic the legislation governing the organic existence and the powers of municipalities and providing also for the making of subsidiary legislation in relation to municipalities, was the Municipal Corporations Law, CAP. 240 which, being a law relating to municipalities, ceased to be in force six months after the coming into operation of the Constitution, in accordance with the provisions of Article 188.2.

Under the said CAP. 240 provision had been made, since 1930, for the existence of municipal corporations in, inter alia, the five largest towns of Cyprus, specified later in paragraph 1 of Article 173. There was one such corporation in each of the said towns.

In February, 1959, by Point 20 of the Zurich and London Agreements, which laid down the basic structure of the Republic of Cyprus, provision was made concerning separate municipalities. Such provision, in its original French text, reads as follows:

In October, 1959, during the transitional period which has intervened between the signing of the aforesaid Agreements and the coming into force of the Constitution, the outgoing colonial Government enacted the Turkish Municipal Committees (Temporary Provisions) Law, 1959 (Law 33/59) which, as it appears clearly from its preamble, was intended to make temporary provision for the lawful exercise of certain limited municipal functions, in the five largest towns of Cyprus, by the then existing Turkish municipal committees; [*91] such Committees had been set up earlier, in 1958, without lawful authority. This Law 33/59, being a law relating to municipalities, ceased to be in force six months after the Constitution came into operation, like CAP. 240, with which it was to be read together.

The provisions of the Constitution dealing with separate municipalities are Articles 173 to 177. They need not be dealt with in extenso in this Opinion. It suffices to mention that, as it has already been stated by this Court in its Decision in the Case of The Mayor etc. of Famagusta and Nearchos Petrides & others 4 R.S.C.C. p. 71, such provisions amount only to a legislative programme. It is clear from their very context that they cannot be construed as constituting themselves the legislation necessary for the creation and functioning of separate municipalities or the legislation under which the Communal Chambers are enabled to make subsidiary legislation.

At the lapse of the aforesaid six months’ period provided for under Article 188.2, the House of Representatives, by separate majorities under Article 78.2, proceeded to enact the Municipalities Laws (Continuation) Law, 1961, (Law 10/61), which, by eight consecutive amendments, was prolonged in force until the 31st December, 1962, though originally it was intended to be in force only for a period of two months, i.e. up to the 16th April, 1961.

As found by this Court in the aforesaid Case of The Mayor etc. of Famagusta and Nearchos Petrides, & others the effect of Law 10/61 was to re-enact and put in force CAP. 240, together with certain other legislation relating to municipalities, for the duration of the period during which such Law 10/61 was to be in force, subject to the provisions of the Constitution and the provisions of Law 10/61 itself.

It is noticeable that there is no express mention of Law 33/59 as being one of the laws which were re-enacted by means of Law 10/61. The reason for this is that all the powers which were the subject-matter of such Law 33/59 were conferred once again upon the separate municipalities by Law 10/61, together with other extensive powers provided for in CAP. 240. So, in effect, there was no purpose whatsoever in re-enacting Law 33/59 as such.

During the period for which it was in force Law 10/61 had provided for the existence and functioning of separate municipalities, Greek and Turkish, in the five largest towns of the Republic. As already stated, its operation came to an end on the 31st December, 1962. In my opinion the contention of Applicants that it must be treated as having continued in force after such date, in direct conflict with its express provisions to the contrary, is not well-founded, because [*92] the said Law 10/61 has been enacted by separate majorities of the Greek and Turkish members of the House of Representatives, for an ab initio expressly limited period of time, as a temporary measure, and it cannot be said at all that the House of Representatives may have ever intended it to continue in force for any longer period other than that for which it was put in force. It is important to remember in this respect that there have been eight prolongations of Law 10/61 and each time the prolongation made was for a very short and definite period of time. It is possible that each such prolongation may have been voted upon by certain members of the House of Representatives with the expectation that at the end of the relevant period the House of Representatives would have substituted for it an enactment relating to municipalities which would be of more permanent duration, but this factor cannot by any means be treated as denoting an intention of the House of Representatives, expressed by the required separate majorities, to the effect that Law 10/61 should, in any case, not expire until another law relating to municipalities, of the same or more permanent duration, would be put in its place; after all, if such a course could have been agreed and voted upon in the House of Representatives by separate majorities it would have been given effect to by means of express legislative provision on any one of the eight occasions when short-term prolongations of Law 10/61 were voted upon instead.

No other law relating to municipalities has been enacted by the House of Representatives after the 31st December, 1962, and actually a prolongation of Law 10/61 was voted down immediately before the said date. It follows, therefore, that there did not exist when the Order of the Council was made and there does not exist now any legislation of the Republic relating to municipalities and enabling the Communal Chambers to make subsidiary legislation, in exercise of their competence under sub-paragraph (g) of Article 87.1.

(B) - There has to be considered next whether or not there did exist, when the relevant Order was made, separate municipalities composed solely of members of either Community.

In this connection it is necessary to deal first with the proper, in my opinion, interpretation of the term “municipalities”, as such term is used in the relevant Articles of the Constitution. On this point the majority of the Court appears to have proceeded under the misconception that the notion of “municipalities” in the sense of Articles 78, 87, 89 and 173 to 177 is closely correlated or identifiable with the notion of the administration of towns, treating towns, in the natural meaning of such term, as being “certain places of condensed human habitation which by their very existence require specific administrative functions and provisions”. They have, [*93] thus, proceeded to define municipalities too broadly viz. as “any kind of administrative bodies or organizations for the administration of the factually existing towns”.

In my opinion when the Constitution speaks of “municipalities” in Articles 78, 87, 89 and 173 to 178, it has in mind local government authorities possessing organs of public municipal administration and performing such functions, relating to certain aspects only of the administration of towns, as were vested in the municipalities lawfully existing at the time of the signing of the Zurich and London Agreements.

That “municipalities” are to be clearly distinguished from, and not to be confused with, the factually existing “towns” is obvious from the text of Article 173.1 itself. It provides that “Separate municipalities shall be created in the five largest towns “. It follows, therefore, that towns are already in existence and separate municipalities, which are not yet in existence, are to be created in the said towns.

From Articles 173 and 178 it is clear, also, that “municipalities” and “administration of towns” are notions which are neither co-extensive nor always coinciding under the Constitution. Under Article 178 municipalities may be created in “other localities” and, as this expression is wide enough to include inhabited areas other than towns, it follows that municipalities may exist even in places which are not towns in the natural meaning of the term. The converse is also true, i.e. there is nothing in the Constitution laying down that in all towns of Cyprus, other that the five largestones, there should exist municipalities.

“Towns” in Article 173.1 must be taken to mean not towns in the natural meaning of the term, but the areas within the municipal limits of the five largest towns as existing at the time of the coming into being of the Republic. Next to and indistinguishable from the said municipal areas of towns have existed at all material times “places of condensed human habitation”, which, following the view of the majority of the Court, must also be treated as being towns or parts of a town, and yet they have been all along administered by means of Improvement Boards under CAP. 243 e.g. Ayios Dhometios and Pallouriotissa in Nicosia. It follows, therefore, that there may be administration of towns, in the natural meaning of the expression town, by means other than municipalities.

I feel duty-bound to put it on record that, with all due respect to the majority of the Court, I feel, with utmost regret and a grave sense of anxiety, that by correlating the notions of “municipalities” and “administration of towns” the majority of the Court has embarked upon a course which is inconsistent with both the legal and factual realities of local administration in Cyprus and the provisions of the Constitution itself. [*94]

Such a course, I am afraid, is bound to lead to many consequences which could not have been possibly intended by the majority of the Court. It may give rise to unfounded contentions that CAP. 243 is no longer applicable to towns or parts of towns in the natural sense of the term i.e. to “places of condensed human habitation”. Moreover, it may create difficulties and futile discords in the process of the application, in future, of a constitutional provision such as Article 78.2 by giving rise to the invalid contention that any legislation, to the extent that it concerns aspects of town administration, as e.g. the Street and Buildings Regulations Law, CAP. 96, is legislation relating to municipalities; and yet this Court has held in the Case of the Holy See of Kitium and The Municipal Council of Limassol, 1 R.S.C.C. p. 15, that section 18 of CAP. 96, as applied to the town of Limassol, was not legislation relating to municipalities in the sense of Article 188.2 and, also, therefore, of Article 78.2.

Also, the view in question of the majority of the Court may put in doubt the continued constitutionality under Article 188 of certain pre-Constitution enactments relating to aspects of town administration. It may be contended now onwards, unwarrantedly in my opinion, that by being relevant to the administration of towns such enactments are laws relating to municipalities; and yet it is very significant indeed that the House of Representatives itself, when it came to re-enact, through Law 10/61, the laws relating to municipalities which were ceasing to be in force due to Article 188.2, it proceeded to treat only four enactments, CAP. 240, CAP. 241, CAP. 242 and Law 15/59, as being the laws relating to municipalities in the sense of Article 188.2.

Reverting now to the question of the existence of separate municipalities when the Order of the Council was made, it is to be observed, first, that the municipalities provided for under CAP. 240, from 1930 onwards, were unified municipalities.

In 1958 separate Turkish municipal committees were set up, in the towns in question, without lawful authority. That this was so has been clearly recognized by the preamble of Law 33/59 and it is further shown by the fact that when between 1958 and the enactment of Law 33/59 the Municipal Corporations (Temporary Provisions) Law, 1959, Law 15/59, was enacted, in order to provide for the extension of the term of office of the then councils of the municipal corporations lawfully existing under CAP. 240, no cognizance was taken of the existing Turkish Municipal Committees.

The said Law 33/59 did not create separate Turkish municipalities. This is so clear from the whole context of such Law in general, and particularly from section 5 of such Law in particular, as not to need any elaboration. [*95]

The Constitution came into force on the 16th August, 1960 and Article 173.1 thereof reads as follows:-

“1. Separate municipalities shall be created in the five largest towns of the Republic, that is to say, Nicosia, Limassol, Famagusta, Larnaca and Paphos by the Turkish inhabitants thereof:

Provided that the President and the Vice-President of the Republic shall within four years of the coming into operation of this Constitution examine the question whether or not this separation of municipalities in the aforesaid towns shall continue”.

As stated by this Court in the aforesaid Case of The Mayor etc. of Famagusta and Nearchos Petrides & others, this Article and the ensuing ones, 174 to 177, are programmatic provisions of the Constitution. It is clear from the express wording of Article 173.1 which follows faithfully the express wording of Point 20 (supra) of the Zurich Agreement that separate municipalities have not been created by 173.1 itself.

It is exactly because of this being so that Article 188.2 has provided for the cessation of the effect of the laws relating to municipalities, six months after the coming into operation of the Constitution, so as to clear the legislative field for the House of Representatives to act under Article 173.1. Had Article 173.1 created, even to a limited juridical extent, separate municipalities, then it would not have been provided by Article 188.2 that the laws relating to municipalities should cease to have effect, but such laws would, instead, have continued to be applied, modified under the Constitution, as provided for all other pre-Constitution laws in general under Article 188.1; there would have been no sense in providing for the cessation of the effect of laws relating to municipalities under Article 188.2 and thus depriving suddenly the municipalities of the possibility to function.

Moreover, it cannot be denied that the legislative programme under Articles 173 to 177 envisages both Greek and Turkish municipalities (vide e.g. Article 173.3) and it would be absured to treat Article 173.1 as creating itself, and not merely providing for the creation of, Turkish municilities, without any mention of Greek municipalities. Article 173.1 has, therefore, to be treated merely as a part of a legislative programme.

Through it appears from, inter alia, the proviso to Article 173.1 that it may have been expected, at the time of the drafting of the Constitution, that the necessary legislation in relation to separate municipalities would have been prepared within the breathing space allowed under Article 188.2, it [*96] also appears, further, from documents placed before the Court, that such legislation has not been prepared till now because, inter alia, of disagreements concerning the mode of the implementation of the legislative programme in question e.g. concerning the regions provided for in Article 177. The fact remains that the House of Representatives has not to-date enacted any legislation of permanent duration towards the implementation of Articles 173 to 177. This situation, which may not have been actually foreseen by the drafters of the Constitution, dses not, however, render it at all proper for this Court to interpret Article 173.1 in the manner suggested by counsel for Applicants, so as to, in effect, redraft it in order to meet the said situation. This Court can interpret and apply but it may not alter the Constitution.

Another ground which has been urged upon the Court as a reason for giving Article 173.1 an interpretation to the effect that separate Turkish municipalities have in fact been created thereunder has been the contention that any other interpretation would result in the frustration of rights of the Turkish Community guaranteed by the Constitution.

I really do not think that the non-implementation of the legislative programme under Articles 173 to 177 amounts to defeating any such Turkish rights.

In my opinion the true effect of Article 173.1 is that the Turkish inhabitants are entitled to “separate” municipalities, in the five largest towns, only if there are to exist at all in such towns municipalities, as an institution of local government. It cannot be said correctly that the said inhabitants are entitled, in any case, to have separate municipalities of their own, even if no municipalities at all exist in such towns. There is nothing in Article 173.1 to reasonably warrant such a view. The right given to the Turkish inhabitants under Article 173.1 has been given in view of the complaints made by them in the past against the handling of their affairs by unified municipalities (and we are not concerned here at all with the validity of such complaints), but it cannot be construed also as a positive right of local autonomy vis a vis the Republic, as a whole, in the Government of which the Turkish Community participates.

The possibility was always there that disagreements might arise concerning the implementation of the legislative programme under Article 173 to 177 and that, in view of the provisions of Articles 78.2 and 177, such implementation might be rendered non-feasible. As a result, by the non-enactment of legislation relating to municipalities it is not only the Turkish inhabitants of the towns concerned, but all the inhabitants of such towns, who cannot have municipalities, in the same way as disagreement, in the past, on the issue of income-tax legislation, for which again separate [*97] majorities under Article 78.2 were required, has deprived the fiscus of the proceeds of such taxation. These are consequences to be expected when separate majorities are required for legislation.

In the circumstances, and bearing in mind the ab initio foreseeable possibility of disagreement under Articles 78.2 and 177, the said constitutional provisions, Articles 173 to 177, which lay down a legislative programme to be implemented by agreement of both Communities, under Articles 78.2 and 177, cannot reasonably be treated as amounting to a rigid constitutional order which excludes all other, pro tempore at any rate, measures that may properly be taken by the Republic for the administration of the affairs of towns, once that municipalities have not been or cannot be created.

It has been alleged, further, by counsel for Applicants that separate municipalities have been created and continue to exist by virtue of the enactment of Law 10/61, which as stated earlier in this Opinion, has expired on the 31st December, 1962.

The separate municipalities, as provided for under the said Law 10/61, were obviously a temporary stop-gap measure and were not intended to be a permanent measure in the form in which they were set up e.g. without elected Councils. In any case once Law 10/61 has expired there is no legal possibility at all of holding that separate municipalities continue to exist as legal entities or authorities or organs in the field of public administration, because this would be contrary to all notions of public administration under the Rule of Law.

The fact that no municipalities existed after the expiration of Law 10/61, on the 31st December, 1962, appears also to have been clearly recognized by this Court in a Ruling given in Case 184/62 (not reported yet)*

It follows, in my opinion, from the above review of the relevant past legislation that on the making of the Order of the Council there did not exist separate municipalities at all, not even in the broad sense of the term adopted by the majority Decision in this Case, and that, thus, there was no possibility for the exercise of the competence of the Communal Chambers, under Articles 87.1 (h) and 89.1 (c).

Ill - There now remains to be examined, in the light of all the above considerations, whether or not, there actually exists a conflict or contest of power or competence to be adjudicated upon by this Court under Article 139.

In doing so I have first to deal with two matters concerning [*98] the application of Article 139 :

(i) I have not been able to agree fully with the interpretation of the terms “conflict” and “contest” as it appears to have been made by the majority of the Court.

In my opinion it is clear from the text of paragraph 1 of Article 139, which employs the expression “conflict or contest of power or competence arising between…… any organs of, or authorities in, the Republic:”, that the competence or power of an Applicant too must necessarily be involved in the conflict or contest to be adjudicated upon. It is not sufficient for an Applicant to contest the competence or power of a Respondent if Applicant’s own competence or power is not involved. This view is borne out by Article 139.3 which, after enumerating the organs or authorities which may make a recourse to this Court under Article 139.1, proceeds to state expressly, in relation to such organs or authorities, “if involved in such conflict or contest”. Surely such express provision can only mean that the power or competence of an Applicant itself should be involved in the conflict or contest in question; otherwise there would have been no purpose in saying expressly “if involved in such conflict or contest” because then an Applicant, by merely contesting the competence of another organ, without its own competence being involved at all, could in any case avail itself of the remedy under Article 139. The matter is put beyond doubt by paragraph 4 of Article 139 which reads — “Such recourse shall be made within thirty days of the date when such power or competence is contested”. I do not think that it can be reasonably suggested that the power or competence mentioned in Article 139.4 is other than the power or comptence of an Applicant, as allegedly contested by another organ or authority. Otherwise the time-limit laid down in such paragraph 4 would be rendered superfluous and meaningless.

(ii) It is also absolutely essential to have a clear understanding of the exact extent of the competence of this Court under Article 139.

In this connection Article 139 has to be read as a whole. Paragraph 1 of Article 139 provides that this Court has jurisdiction “…. to adjudicate finally on a recourse made in connection with any matter relating to any conflict or contest of power or competence……” and paragraph 5 thereof provides that upon such a recourse the Court may declare that “the law or the decision or the act, the subject of the recourse, is void,…… on the ground that such law or decision or act was made or taken or done without power or competence……”. In my opinion it follows from these provisions, when considered in conjunction with each other, that the absence of power or competence mentioned in paragraph [*99] 5 must be related to the conflict or contest of power or competence mentioned in paragraph 1. In this respect I disagree, therefore, with the view, which appears to have been adopted by the majority of the Court, to the effect that once the Court has before it a recourse under Article 139 it may proceed to declare its subject-matter to be void on grounds not arising out of the alleged conflict or contest of power or competence. I do agree, however, with the majority of the Court that the formal validity of the subject of a recourse under Article 139 does fall to be examined, because the matter may be relevant to the question of the existence of a conflict or a contest.

In my view the Court is not competent, under Article 139, to set itself up as an arbiter of the substantive, as distinguished from the formal, validity in general of the laws, decisions or acts made, taken or done by the organs of, or authorities in, the Republic and has got to limit itself to adjudicating on specific conflicts or contests of power or competence. There are other appropriate remedies e.g. under Article 144 or Article 146, for testing eventually the validity of a particular law, decision or act.

Coming now to the Order of the Council, the subject of this recourse, it must be observed that it is an Order declaring, under section 4 of CAP. 243, certain town-areas and other areas to be “improvement areas” for the purposes of CAP. 243 and as stated by the Attorney-General it was aimed, thereby, to provide for the continuation of essential services for the inhabitants of the said town areas, after the coming to an end of the relevant municipal administrations.

In my opinion the said Order does not amount to a conflict or contest with the competence of the Applicant in relation to municipalities nor is Applicant justified to contest in this respect the competence or power of the Council of Ministers in protection of its, Applicant’s, own competence, for the following, inter alia, reasons:

(i) There is nothing to be found in the text of the said Order or in the fact of its making which appears to dispute or deny in any way the existence or extent of the competence of the Turkish Communal Chamber under Articles 87 and 89 in relation to municipalities. Applicant’s relevant competence remains undisturbed and unquestioned to be exercised if and when the necessary legislation amd municipaities are to come into existence.

(ii) The Order of the Council cannot be construed as amounting to the doing of anything which falls within the competence of the Turkish Communal Chamber under Articles 87 and 89 i.e. the Order of the Council is neither intended to promote the aims of any separate [*100] municipality nor does it aim at supervising any municipality in its functions.

(iii) In the towns to which the Order of the Council was made applicable there did not exist at the time any separate municipalities in relation to which the relevant competence of the Applicant could have been exercised. Nor can it be said, in this respect, that the Council of Ministers has not set up separate municipalities in order, allegedly, to be able to usurp the competence of the Turkish Communal Chamber. The reasons for the non-creation of separate municipalities were beyond the control of the Council of Ministers, as such. In effect, the Council of Ministers, on being faced with the need to provide certain services for the towns concerned, has resorted to its powers under Article 54 and CAP. 243, which are provisions existing independently of the competence of the Applicant under Articles 87 and 89, without aiming at all at contesting or encroaching upon the relevant competence of Applicant.

(iv) The relevant competence of Applicant, as extensively dealt with in this Opinion, is not a direct competence over the administration of towns, as such. Even if it were to be conceded that it is a competence related to the said administration, such relationship is so eventual, indirect and remote that it cannot be said that such competence has been contested or encroached upon by any measures taken in order to provide for the administration of certain affairs of town areas, whilst there did not exist any municipalities or laws relating to municipalities and in relation to which the said competence of Applicant could have become an effective reality. For the same reason, Applicant is not justified to resort to this Court, under Article 139, contesting the competence of the Council of Ministers, in protection of its own, Applicant’s, competence, which in fact has not been affected or involved.

It is, moreover, very significant indeed to note that even the Applicant itself has not proceeded to allege a conflict or contest with its own competence by relying merely on the fact of the making of the Order of the Councl and on the existence of the constitutional provisions concerning its said competence. It has proceeded to allege the existence of a conflict or contest by relying on both the existence of the said competence, under Articles 87 and 89, and on the alleged existence of separate Turkish municipalities over which the said competence was being allegedly exercised when the Order of the Council was made. Since it has been found that such separate municipalities did not exist the very conflict or contest of power or competence, as raised by Applicant, has gone.

For all the above reasons I have come to the conclusion [*101] that there does not actually exist a conflict or contest of power or competence to be adjudicated upon by this Court under Article 139, and, therefore, this recourse should be dismissed.

What has been stated above applies also, for the same reasons, to the fate of this recourse in so far as it has been made by the Social and Municipal Affairs Office of the Turkish Communal Chamber, assuming it could be an “organ” or “authority” in the sense of Article 139.

I have dealt, already, in this rather lengthy Opinion, with some of the points of disagreement between the majority of the Court and myself in this Case. There are other points of such disagreement also with which I have not dealt with specifically, such as the reasons, which are unconnected with the conflict or contest of power or competence alleged, but for which the majority of the Court has proceeded to declare the Order of the Council to be invalid, without being competent in my opinion so to do, as e.g. the ground that CAP. 243 is not applicable to towns. I do not intend, however, to go into such other points of disagreement in detail because it is not the purpose of this Opinion to answer the majoority Decision point by point as if it were a pleading among parties to litigation. In relation, however, to the issue of the formal validity of the Order of the Council I agree that the majority of the Court has gone into it quite properly. I disagree, however, with their conclusion on such issue because in my view, the Order of the Council is merely an act following upon the decision of the Council to make such Order. In my opinion, it is the said decision itself which required promulgation, under Article 57, by both the President and the Vice-President of the Republic, and not the Order of the Council which was made as a result of such decision.

If I may conclude by way of a general observation I must state that, with all due respect to the majority, I am of the opinion that the majority of the Court have proceeded in this Case to approach the subject-matter of the recourse in such a broad and rather abstact manner so as to create opportunities for contentions by future litigants which, until they are to be proved later to be unwarranted, they may complicate considerably the application of the Constitution, which, in view of the nature of some of its provisions, is complicated enough already. It is with such an anxiety in mind, and in view of the fact also that the particular issue had not been argued even as a side-issue before the Court during the hearing, that I have considered it necessary, when I came to draft this Dissenting Opinion, to propose to my brother Judges that the hearing should be re-opened by the Court in order to hear counsel for the parties on the question of the correlation, if any, between the notion of municipalities in Articles 78, 87, 89 and 173 to 177 and the notion of administration of towns, but this proposal of mine has been overruled at that stage by the majority of the Court.

*Athinoulla P. Tsigarides and The Municipal Committee of Nicosia.