[*102] 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.

1.    Dr. Fuat Celaleddin,

2.    Dr. Ziver Kemal,

3.    Memduh Erdal,

4.    Nazim Ali Ileri,

5.    Ibrahim Sidki, all of Nicosia, as Members of the Turkish Community and as Inhabitants of the Town of Nicosia and as the Mayor and Members of the Turkish Municipal Council of Nicosia Town,

And

1     The Council of Ministers,

2.    The Minister of the Interior,

3.    The Improvement Board of Nicosia,

(Case No. 11/63)

Turkish Community—Members of, not an “organ of, or authority in, the Republic”, in the sense of Art. 139.

Nicosia Town—Inhabitants of, not an “organ of, or authority in, the Republic”, in the sense of Art. 139.

“Organs of, or authorities in, the Republic”, in Art. 139.1—Definition of.

Turkish Municipal Council—The relevant legislation having expired, the Mayor and members of the, could not be an “authority in, the Republic”, in the sense of Art. 139.1.

Turkish Municipal Committees (Temporary Provisions) Law, No. 33 of 1959— Ceased to be in force 6 months after the 16/8/60, by virtue of Art. 188.2— Committees, set up thereunder, vested only with limited powers. Arts. 173 to 177—A legislative programme the implementation of which is a matter of legislation.

Municipal Corporations Law, Cap. 240—Validity thereof which should have lapsed 6 months after 16/8/60, extended by Law 10 of 1961 to 31/12/62 when it finally ceased to be in force.

Municipalities Laws (Continuation) Law No. 10 of 1961—A law of limited duration finally expired on 31/12/62—A partial implementation of Arts. 173 to 177—Validity thereof could not be extended by programmatic provisions in the Constitution—Did not create a Turkish Municipal Corporation in Nicosia—Should not be construed as enacting separate municipalities in the form of Municipal Corporations.

Municipalities—Future legal fate of proprietary rights and liabilities in the domain of private law which had arisen under Law 10 of 1961—Would have to be regulated by express legal provision—Legal personalities cannot be presumed by implication but require express legislative provision.

Words & phrases—”Organs of, or authorities in, the Republic”, in Art. 139, [*103] definition of—”Separate municipalities shall be created” in Art. 173.1, effect of.

On the 2nd January, 1963, the Council of Ministers decided to make an Order under s.4 of the Villages (Administration and Imporvement) Law, Cap. 243, whereby the provisions of the said Law were made applicable, inter alia, to Nicosia town.

The above decision was reconsidered by the Council of Ministers on the 10th January, 1963, as a result of a return made by the Vice-President of the Republic under Art. 57 and decided to persist in its decision. Consequently the Order was published in Supplement No. 3 to the official Gazette of the Republic No. 218 of the 10th January, 1963, under Not. No. 4.

The Applicants’ motion for relief as well as the Respondents’ Opposition are fully set out in the decision that follows:—

Held, by majority: (a) the Applicants, in their capacity as “members of the Turkish Community and as inhabitants of the Town of Nicosia, indeed even all the members of the Turkish Community or all the inhabitants of a particular town, were not an “organ” of, or authority in, the Republic”, in the sense of Art. 139, because they lacked the minimum organic form required for the existence of an organ or authority. “Organs” or “authorities” in the sense of Art. 139, meant specific juridical creations bearing the features of individual and concrete organic institutions of Government and functioning for, and on behalf of, a primary legal entity, such as the Republic of Cyprus, of which they were organs or authorities in the ordinary meaning of such terms ;

(b)   the Applicants, in their purported capacity as “the Mayor and Members of the Turkish Municipal Council of Nicosia Town”, were not an “authority in, the Republic”, in the sense of Art. 139, because, the relevant legislation concerning the organs and administration of municipalities having ceased to be in force on the 31st December, 1962, the organs or authorities necessary for municipal administration, including any Municipal Council or Municipal Committee, ceased to exist at the same time. The formation, existence or functioning of organs or authorities of municipal administration without the existence of a valid law for the purpose, and no such law was enacted after the expiration of Law No. 10 of 1961, on the 31st December, 1962, was legally impossible;

(c)   the validity of the Turkish Municipal Committees (Temporary Provisions) Law, No. 33 of 1959, which only vested the “Turkish Muni-Municipal Committees”, set up in 1958, without lawful authority, with certain limited powers “in regard to the collection and recovery of revenue”, ceased to be in force, in accordance with the proviso to Art. 188.2, six months after the coming into operation of the Constitution;

(d)   the express provision in Art. 173.1 that “Separate Municipalities shall be created…..“ rendered Arts. 173 to 177 a legislative programme, the implementation of which was a matter of legislation (The Mayor etc. of Famagusta and Nearchos Petrides and others, 4 R.S.C.C., p. 71 at p. 72, affirmed) ;

(e)   the validity of the Municipal Corporations Law, Cap. 240 which, [*104] in accordance with the proviso to Art. 188.2, was to have lapsed six months after the coming into operation of the Constitution, finally lapsed on the 31/12/62, having, in the meantime, been extended by the Municipalities Laws (Continuation) Law No. 10 of 1961, until that time:

(f)    the Municipalities Laws (Continuation) Law, No. 10 of 1961, a law of limited duration, ceased to exist on the 31st December, 1962, after several prolongations, with the result that all laws relating to municipalities also ceased to exist;

(g)   an enactment, such as Law No. 10 of 1961, which was, ab initio, by its own express provisions, a partial implementation of programmatic provisions in a Constitution not only from a substantive point of view but, also, from the point of view of time, could not, after the lapse of the period of time therein provided for its validity, continue in force by means of programmatic provisions in a Constitution, because they could not confer on such enactment a validity longer than that ab initio accorded to it by the legislature. The effect of such programmatic provisions could only sanction their temporary implementation and could not override the time limit expressly provided in such enactment;

(h)   Law 10 of 1961, did not create a Turkish Municipal Corporation in Nicosia, because, the creation of a corporation as a legal personality required express legislative provision and could not be presumed merely by implication. No such provision existed in Law 10 of 1961 but, on the contrary, s.6(1) thereof preserved the existing status quo. Cap. 240, as re-enacted through Law No. 10 of 1961, had originally been drafted on the assumption that there should exist for each town or other locality to which it applied only one municipal corporation;

(i)    Law 10 of 1961 should be construed as confined only to making provision for organs endowed with the functions conferred on municipal corporations under Cap. 240, and not as creating separate municipalities in the form of Municipal corporations;

(j) the future legal fate of any proprietary or other rights and liabilities in the domain of private law which accrued because of the functioning of the organs created by the enactment of the provisions of Law No. 10 of 1961, and which, in any case, ceased to exist upon the expiration of the said Law, would have to be regulated finally by express legal provision.

PER MUNIR, J., dissenting : The Court had jurisdiction to adjudicate on this recourse under Art. 139 for the following reasons:-

(a)        separate Turkish “municipalities”, as interpreted by the Court in the Case of The Turkish Communal Chamber, etc., and The Council of Ministers, 5 R.S.C.C. at p……… and the councils thereof, existed, and did continue to exist, up to the present time by virtue of the provisions of Arts. 173 to 177, Law 10 of 1961 and, consequentialy, Cap. 240;

(b)        the implementation of the provisions of Art. 173.1 by Law 10 of 1961, was saved in its validity by virtue of Arts. 173 to 177, which constituted a binding order of constitutional force, until such implementation was replaced, if not by a more complete implementation, at least by an equivalent implementation of such provisions;

(c)        the provisions of ss. 2(1) and 7 of Law 10 of 1961, to the extent to [*105] which they purported to repeal the provisions of the Law itself, after the lapse of time therein provided, as they applied to the five towns in question, were unconstitutional and null and void, with the result that Law 10 of 1961, to that extent, was still in force and of full effect;

(d)        in any event, the Turkish Municipal Corporations in question, having existed, particularly by virtue of s. 4(2) (a) of Law 10 of 1961, read together with the definition of “municipality” in s. 2(1) thereof, and by virtue, inter alia, of ss. 2, 3 and 4 of Cap. 240, could not have been dissolved by the mere expiration of Law 10 of 1961;

(e)        the abolition of separate municipalities, the creation of which was given constitutional force by Arts. 173 to 177, could, once created, only be brought about by an amendment of such Articles, whilst the abolition or liquidation of legal personalities created by a law could only be brought about by a law containing express provision to that effect;

(f)        the Applicants, in their capacity as members of the Council of the Turkish Municipality of the town of Nicosia, constituted an “authority in, the Republic” in the sense of Art. 139.1 and 3(d);

(g)        inasmuch as the Order of the 2nd January, 1963, made by the Council of Ministers under s.4 of the Villages (Administration and Improvement) Law, Cap. 243, trespassed into the sphere of the “power or competence” of the Turkish Municipality of Nicosia, to the extent that municipal functions were to be carried out by an Improvement Board instead of by the Municipal Council of the Turkish Municipality of Nicosia, such trespass gave rise to a “conflict” and a “contest” of “power or competence” in the sense of Art. 139.1 between the Applicants and the Council of Ministers in which the Applicants were, consequently, “involved” in the sense of Art. 139.3;

(h)        the Order of the Council of Ministers was, ab initio, void and without any legal effect whatsoever.

The Application was dismissed.

Cases referred to :

The Mayor etc. of Famagusta and Nearchos Petrides and others, 4 R.S.C.C.

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

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

C. Phanos, L. Demetriades and G. Cr. Tornaritis, for the Improvement Board of Nicosia.

Cur. adv. vult.

April, 25. The majority Decision was read by FORST- HOFF, P., whilst the minority Opinion was read by MUNIR, J. [*106]

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

†This Application cannot succeed and is dismissed accordingly.

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

‡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, inter alia, to the town of Nicosia.

The Council of Ministers having reconsidered its above decision, on the 10th January, 1963, as a result of a return made by the Vice-President of the Republic under Article 57 of the Constitution, and having decided to persist in its earlier decision, the said Order was published in the official Gazette (Supplement No. 3) on the 10th January, 1963.

The Application in this Case was filed on the 30th January, 1963. By the motion for elief the Applicants seek :-

“1. A declaration that —

(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, and in particular for the town of Nicosia and/or to appoint Improvement Boards in respect of such towns including Nicosia and in any case in such a manner as to —

(a)        deprive the applicants and the Turkish inhabitants of Nicosia from enjoying and/or exercising their rights under Articles 173, 174 and 175 of the Constitution and/or;

(b)        empower any other organ of or authority in the Republic i.e. Nicosia Improvement Board, with powers —

(i)         to collect taxes, rates and/or fees in connection with the use of municipal markets, slaughterhouses and other municipal places;

(ii)        to collect entertainment fees and such other fees that may be collected by the applicants for services rendered usually by the applicants as a municipality; [*107]

(iii) to issue licences or permits and to do all such other things that are normally and usually done or carried out by the applicants.

2.    A declaration that the Nicosia Improvement Board has no power and/or competence -

(i)         to collect any revenue and/or to assess and collect any tax, rate, fee or any other revenue on the Turkish inhabitants thereof, in relation to any service usually rendered by a municipality i.e., cleaning, regulation of places of entertainment, traffic, use of slaughter-houses and/or markets etc.;

(ii)        to render or purport to render any service and/or to do or purport to do any other act or carry out or purport to carry out any other function which are usually rendered, done or carried out by a municipality, in respect of Turkish inhabitants of Nicosia.

3.    A declaration that —

(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, and

(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

(c)        any decision or act purported to be taken or done by the said Improvement Boards are made without power or competence and are, therefore, void ab initio”.

The Oppositions of Respondents which were filed on the 16th February, 1963, contend, inter alia, that the Applicants are not an “organ” or “authority” in the sense of Article 139 and that, therefore, this recourse is not entertainable by the Court under such Article.

On the 16th February, 1963, it was directed by the President of the Court in the interests of the proper discharge of the functions of the Court and in the light of the course of events till then, that the Court should hear the parties on the [*108] 20th February, 1963, with a view to considering whether or not it ought to make an order, under paragraph 7 of Article 139, suspending the operation of the subject-matter of the recourse until the determination thereof. On the said date the Court decided, however, that in view of the statements made by counsel before it, it was not necessary to exercise its powers under the said paragraph 7 and that the situation could be met by fixing an early date of hearing. This Case was accordingly heard on the 1st, 6th, 8th and 13th March, 1963.

†BY THE PRESIDENT OF THE COURT AND TRIANTA- FYLLIDES, J.:

It has to be considered whether or not the Applicants are an “organ” or “authority” in the sense of Article 139 of the Constitution, so as to be entitled to make this recourse under such Article.

In the opinion of the majority of the Court (hereinafter referred to as “the Court”) the five Applicants, who are named in the title of this Case, are not, in their capacities “as members of the Turkish Community and as inhabitants of the town of Nicosia”, an organ or authority in the sense of Article 139, because, organs or authorities, in the aforesaid sense, are specific juridical creations bearing the features of individual and concrete organic institutions of government and functioning for and on behalf of a primary legal entity, such as the Republic of Cyprus, of which they are organs or authorities in the ordinary meaning of such terms.

It cannot be said that the members of the Turkish Community or the inhabitants of a particular town form an organ or authority in the sense of Article 139, even though the Constitution contains certain provisions for the promotion of their interests, because the said members or inhabitants, (and, a fortiori, the Applicants who are only certain individuals out of such members or inhabitants), lack the minimum organic form required for the existence of an organ or authority.

This recourse, therefore, as made by the five Applicants, in their aforesaid capacities, cannot be entertained by the Court under Article 139.

This recourse, however, is also made by the Applicants in the purported capacity of “the Mayor and members of the Turkish Municipal Council of Nicosia town”. Such designation implies, and it has been so propounded by counsel for Applicants, that the said Mayor and Council are an organ of an existing municipality, namely of the Turkish Municipality of the town of Nicosia, on the assumption that such Municipality would be an “authority” in the Republic in the sense of Article 139. [*109]

In this connection the Court has been invited to find that such a municipality has been created and exists by means of the provisions of the Turkish Municipal Committees (Temporary Provisions) Law, 1959 (Law 33/59)* Article 173.1 of the Constitution and the Municipalities Laws (Continuation) Law, 1961 (Law 10/61)†.

This Court is satisfied that Law 33/59 has only vested the “Turkish Municipal Committees”, which had been set up without lawful authority in 1958, with certain limited powers “in regard to the collection and recovery of revenue”. This enactment, being a law relating to municipalities, ceased to be in force, as such, in accordance with Article 188.2, six months after the coming into operation of the Constitution, when, also, by Law 10/61 the same and much wider powers were given to the Turkish Municipal Committees, under the thereby re-enacted provisions of the Municipal Corporations Law, CAP. 240, with which Law 33/59 was to have been read together.

The Court is, also, of the opinion, in view of the express wording of paragraph 1 of Article 173 being “Separate municipalities shall be created……“, that such provision is part of the legislative programme in Articles 173 to 177, as stated by this Court in its Decision in the Case of The Mayor etc. of Famagusta and Nearchos Petrides and others, 4 R.S. C.C. p. 71, from which it sees no reason to depart, and, therefore, its implementation is a matter of legislation.

Coming now to Law 10/61; CAP. 240, being a law relating to municipalities, had, together with certain other legislation, continued to be in force after the coming into operation of the Constitution, and for a period of six months thereafter, by virtue of the proviso to paragraph 2 of Article 188. At the lapse of the said period, the House of Representatives, enacted, in accordance with the appropriate procedure laid down in Article 78 of the Constitution, Law 10/61, which incorporated, inter alia, the provisions of CAP. 240, thus ensuring its being in force after the lapse of the aforesaid period and for the duration of the operation of the said Law 10/61.

Law 10/61 laid down, by sub-section (2) (a) of section 4, that there “shall be in each of the five largest towns that is to say of Nicosia, Limassol, Famagusta, Larnaca and Paphos a separate municipality for the Turkish inhabitants thereof”. The said Law made also the following provision for such municipalities : It laid down, first, by sub-section 2(b) of section 4, that the Turkish Municipal Committees, as defined by section 2 of Law 33/59, “shall continue to function” in [*110] each of the aforesaid towns as the councils of the Turkish municipalities in such towns, and, secondly, it conferred on such councils specific powers and duties, viz. the powers and duties under the provisions of, inter alia, CAP. 240, in respect only of the Turkish inhabitants.

The duration of Law 10/61 was limited from the beginning by express provisions in Law 10/61 itself (vide sections 2, 4 and 7 thereof) and having been prolonged several times by appropriate amendments, it finally came to an end on the 31st December, 1962, as no further prolongation had been enacted by the House of Representatives.

It has been submitted by counsel for Applicants that Law 10/61, constituting a partial implementation of the provisions of Articles 173 to 177 of the Constitution must be treated as having been kept in force, by means of such Articles, until it would be replaced by a more complete implementation of the said provisions by the legislature, and that any provision in Law 10/61, limiting its operation in point of time, was, therefore, unconstitutional and of no effect.

In the opinion of the Court programmatic provisions of a Constitution may, indeed, in a proper case, be treated as prohibiting the subsequent repeal, by later enactment, of legislation enacted towards their implementation, if such legislation is not replaced, at the time of its repeal, by other legislation constituting an implementation, in no lesser degree, of the constitutional programme in question. This principle cannot, however, apply in a case where such implementation was ab initio (i.e. from the time of the enactment and by the provisions themselves of the legislation concerned) a partial implementation, not only from the point of view of substantive provisions but also from the point of view of the period of time during which it would be in operation. An enactment which is, by its own express provisions, restricted in its application, by being put in force for a specific period of time only, cannot be continued in force after the lapse of such period by means of programmatic provisions in a Constitution, because such programmatic provisions cannot confer on the said enactment a validity of greater extent than that which has been accorded to it ab initio by the legislature. Programmatic provisions in a Constitution cannot have the effect of overriding a limitation, in point of time, which has been imposed on the operation of an enactment and their effect, in such a case, is confined to sanctioning the temporary partial implementation thereof which has been made by means of the enactment in question.

It has been submitted, in the alternative, by counsel for Applicants that even if Law 10/61 has expired on the 31st December, 1962, a Turkish municipal corporation of Nicosia town has been created by it and such corporation has not [*111] disappeared but continues to exist after the 31st December, 1962.

It is a well-established principle that the creation of a corporation as a legal personality requires express legislative provision and cannot be presumed merely by implication, as for example, through the reading together of a wide and general provision such as section 4(2) of Law 10/61 and of sections 3 and 4 of CAP. 240.

In any case section 3(1) of CAP. 240 would be inapplicable as such to a situation where provision is made for more than one municipality in one and the same town.

No express provision of the requisite nature is to be found in the substantive parts of Law 10/61. It is correct that by section 2 of the said Law “municipality” is defined by reference to CAP. 240, which is an enactment dealing with municipal corporations. Such a general purposes definition, however, which is also subject to the express reservation that it applies “unless the context otherwise requires”, cannot be treated as amounting to the express substantive legislative provision required for the creation of a municipal corporation.

In the opinion of the Court the introduction in the towns in question of separate municipalities in the form of separate municipal corporations would have given rise to a lot of problems which could not have been intended to be resolved by an enactment of a temporary nature, such as Law 10/61, and which problems would, nevertheless, have had to be met by appropriate provisions in Law 10/61, had it aimed at creating separate municipal corporations; no such provisions, however, are to be found in Law 10/61. On the contrary special provision has been made by section 6(1) of Law 10/61 to the effect that “Nothing in this Law contained shall affect any of the vested rights or liabilities of either municipality in each of the aforesaid towns….“ thus keeping in force the existing status quo. Nor could the solution of the aforesaid problems have been found in CAP. 240, as re-enacted through Law 10/61, because CAP. 240 has been drafted on the assumption that for each town or other locality, to which it applied, only one municipal corporation would exist.

The Court is satisfied that Law 10/61 has to be construed as confined to the making only of provision for organs which were endowed with the functions conferred on municipal corporations under CAP. 240 and cannot be construed as creating separate municipalities in the form of municipal corporations.

It should, furthermore, be observed that the question of the creation by Law 10/61 of a Turkish municipal corporation for the town of Nicosia and of the possibility of its continued [*112] existence after the expiration of Law 10/61, and which question has been already answered hereinabove by the Court in the negative, would, in any case, have been relevant only in relation to the fate of any proprietary and other rights and liabilities in the domain of private law, which have accrued as a result of the functioning of a Turkish municipality under Law 10/61, because, otherwise, there can be no doubt that with the expiration of Law 10/61 the legal basis for the existence or functioning in the field of public administration of either a Greek or a Turkish municipality has disappeared. It must be stated, however, in this connection that the future legal fate of such aforesaid accrued rights and liabilities of private law will have to be regulated finally by express legal provision, as such provision would have been made had Law 10/61 been replaced by other legislation relating to municipalities, and as it has been done by section 6(1) of Law 10/61 itself which preserved in this respect the status quo existing before its enactment.

Finally, in the opinion of the Court, the Applicants could not have been found to be an organ or authority of the Turkish municipality of Nicosia, even if it had existed, because the relevant legislation concerning the organs and administration of municipalities having ceased to be in force on the 31st December, 1962, the organs or authorities necessary for municipal administration, in Nicosia town inter alia, have at the same time ceased to exist, including any Municipal Council or Municipal Committee. There is no legal possibility for the formation, for the existence or for the functioning of organs or authorities of municipal administration without the existence of a valid law for the purpose and no such law has been enacted since the 31st December, 1962, when Law 10/61 has expired.

The Applicants are not, therefore, an “organ” or “authority” in the sense of Article 139 and this recourse cannot, in the circumstances, be entertained by the Court and has to be dismissed without any consideration on its merits.

DISSENTING OPINION BY MUNIR, J.:

This Opinion is given pursuant to the proviso to rule 21 of the Supreme Constitutional Court Rules.

In my opinion the Court has jurisdiction to adjudicate on this recourse under Article 139 of the Constitution and, with the greatest respect to my learned colleagues, I do not agree with the Order made by them that this Application cannot, for the reasons given by them, succeed and in my opinion, for the reasons given hereinafter, the Order of the Court in this Case should have been, mutatis mutandis, the same as the Order made by this Court in Case No. 10/63.* [*113]

In reaching the above conclusion I have had to consider the following issues:—

(a)        whether or not separate Turkish municipalities in the five towns referred to in paragraph 1 of Article 173 of the Constitution, and in particular the Council of the Turkish Municipality of the town of Nicosia, exist today, and did so exist on the 2nd January, 1963, and on the date of the filing of this Application on the 20th January, 1963; and if so —

(b)        whether or not the Applicants, in their capacity as the members of the Council of the Turkish Municipality of the town of Nicosia, constitute an “authority in, the Republic”, in the sense of paragraphs 1 and 3(d) of Article 139 ;

(c)        whether or not there is a “conflict or contest of power or competence”, in the sense of paragraph 1 of Article 139, arising between the Applicants, on the one hand, and all or any of the three Respondents, on the other and whether or not the Applicants are “involved in such conflict or contest”, in the sense of paragraph 3 of the said Article 139 ;

(d)        the actual merits of the several motions for relief contained in the Application.

Issue (a) :

With regard to issue (a) above, I am of the opinion, for the reasons given hereinafter, that separate Turkish “municipalities” (as interpreted by this Court in its Decision in Case No. 10/63*) and the councils thereof existed in the five towns referred to in paragraph 1 of Article 173, in law as well as in fact, at all material times, and in particular on the 2nd January, 1963, when the Order of the Council of Ministers, which is the subject-matter of this recourse, was purported to have been made, and continued so to exist on the 30th January, 1963, when the Application in this Case was filed, and up to the present time.

Separate Turkish municipalities were originally created by the Turkish Community in the towns of Nicosia, Famagusta, Limassol, Larnaca, Paphos and Kyrenia in June, 1958, in order to provide for the municipal services of the Turkish inhabitants of such towns and such separate Turkish municipalities continued to exist and function until the signing of the Zurich Agreement dated the 11th February, 1959, and of the London Agreement dated the 19th February, 1959, a [*114] basic and fundamental condition of which was the recognition of the existence of separate Turkish municipalities in the towns of Nicosia, Limassol, Famagusta, Larnaca and Paphos and the right of the Turkish inhabitants of the towns concerned to continue to have separate Turkish municipalities (vide Point 20 of the said Zurich Agreement).

During the transitional period between the signing of the said Agreements and the coming into operation of the Constitution the Turkish Municipal Committees (Temporary Provisions) Law, 1959 (Law 33 of 1959, hereinafter referred to as “Law 33/59”) was enacted at the request of the Turkish leaders in order to give the separate Turkish municipalities in question de jure recognition for the purpose of enabling them to follow up the collections of revenue with better effect. The first legislative recognition of separate Turkish municipalities in the five towns in question was thus made by Law 33/59, section 5 of which provides that the said Law shall only expire on the establishment of separate municipalities in the five towns in question “under the proposed Constitution of Cyprus”. It should also be noted in this connection that it has been established by the affidavit of Fuad Celalettin, the Turkish Mayor of the Turkish Municipality of Nicosia, dated the 8th March, 1963, which was produced in this Case, that certain town-rates, collected by the Inland Revenue Department of the Government, were regarded as having been collected on behalf of the Turkish municipalities in question and were given to such Turkish municipalities as an advance by the Government as from the year 1958 (vide paragraph 7 of the said affidavit). The legal recognition thus given by Law 33/59 was projected in retrospect back to 1958.

As required by Point 27 of the Zurich Agreement, the aforesaid Point 20 thereof, like all the other Points of the said Agreement, were made basic Articles of the Constitution (vide paragraph 1 of Article 182). It is for this reason that paragraph 1 of Article 173, which incorporates Point 20 of the Zurich Agreement, makes clear and express constitutional provision concerning the creation of separate Turkish municipalities in the five towns referred to therein and the provisions of the said paragraph, read together with the rest of the said Article 173 and Articles 174 to 177, contain, as stated in the Decision of this Court in Case No. 10/63*, “a binding order of constitutional force” and, as further pointed out in the said Decision, no action of any organ of the Republic which is contrary to the provisions of the said Articles 173 to 177 can be regarded as constitutional.

The proviso to paragraph 2 of Article 188 of the Constitution, to the extent to which it relates to “the laws relating [*115] to the municipalities”, is connected with, and must be read in conjunction with, and in the light of, the provisions of Articles 173 to 177. It could not, in my opinion, reasonably be said that it was the intention of the drafters of the Constitution, by including the proviso to paragraph 2 in Article 188, that a situation would, or could, ever be created whereby the failure or omission of the House of Representatives to discharge its duties in disregard of “a binding order of constitutional force”, as contained in Articles 173 to 177, should result in abolishing or liquidating the existing separate municipalities in question, which had been constitutionally and legally created as corporate legal personalities, and thus render the said Articles in question meaningless.

It is not necessary, at this stage, to examine further this aspect of the matter and the question whether, and to what extent, such separate municipalities can fully function without “the laws relating to the municipalities”, referred to in Articles 78, 87 and 188.2, because, apart from the express and unequivocal provisions of legislative force of the Constitution itself referred to above, legislative provision has, in any event, in fact been made by the House of Representatives by the enactment, on the 17th February, 1961, of the Municipalities Laws (Continuation) Law, 1961 (Law 10/61) and its subsequent amendments (hereinafter referred to as “Law 10/61”), whereby the creation and existence of separate municipalities, in accordance with the provisions of paragraph 1 of Article 173, as corporate legal persons, are also given legislative force by a “law relating to the municipalities” passed by the House of Representatives in accordance with the procedure relating to the exercise of separate majorities laid down in Article” 78.

Section 2(1) of Law 10/61 defines the term “period” used in the said Law as meaning the period between the 16th February, 1961, and the 16th April, 1961, and section 7 thereof provides that Law 10/61 shall cease to be in force on the 16th April, 1961. The date “16th April, 1961”, contained in the said sections 2(1) and 7, was subsequently substituted, by several amending laws, which were passed in accordance with Article 78, by various other dates the last one of which was the “31st December, 1962”.

In its Decision in the Case of The Mayor, etc., Famagusta and Nearchos Petrides and others, 4 R.S.C.C., p. 71, at p. 76, the Court held that Law 10/61 was not a mere prolongation of the Municipal Corporations Law, CAP. 240 (hereinafter referred to as “CAP. 240”) but was in fact a re-enactment thereof in a new context. The Court also held in the said Decision (supra, p. 77) that the fact that Law 10/61 did not implement, in every respect, all the provisions of Articles 173 to 177 of the Constitution cannot, in itself, render such Law unconstitutional. [*116]

Sub-section (1) of section 2 of Law 10/61 defines the term “municipality” used therein by reference to the term “municipal corporation” as defined in CAP. 240.

It is convenient, at this stage, to set out in full the following relevant provisions of CAP. 240 :-

“3. (1) Every town in the Colony which at the coming into operation of this Law has a municipal council shall be a municipal corporation.

4. The municipal corporation of a town shall bear the corporate name of the mayor, deputy mayor, councillors and townsmen of the town, and shall have perpetual succession, a corporate seal and the right to sue and be sued in its corporate name”.

It is quite clear, in my opinion, from the express provisions of section 4 of CAP. 240 that the municipal corporation of each town to which the said Law applied when enacted was given a distinct legal personality in law. The definition of “Municipal Authority” contained in section 2 of the Interpretation Law, CAP. 1, (the text of which is given in full later in this Opinion) and sections 74, 75 and 76 of CAP. 240, relating to contracts and to the vesting and registration of property in the municipal corporations, should also be noted in this connection.

Sub-section (1) of section 4 of Law 10/61 having provided that CAP. 240 “shall have effect and be appied during the period subject to the provisions of the Constitution and with such modification as may be necessary to bring them into accord with the provisions of the Constitution”, paragraph (a) of sub-section (2) of the said section 4 of Law 10/61 expressly provides that —

“there shall be in each of the five largest towns, that is to say, of Nicosia, Limassol, Famagusta, Larnaca and Paphos a separate municipality for the Turkish inhabitants thereof”.

There can be no doubt, in my opinion, that, whatever may have been the legal position prior to the enactment of Law 10/61, the existence of separate municipalities as municipal corporations in the towns in question and thus as corporate legal persons are given legislative recognition and force by Law 10/61, particularly in view of the above-quoted provision of section 4(2) (a) thereof, read in conjunction with the above-quoted definition of “municipality” contained in section 2(1) thereof.

Furthermore, paragraph (b) of section 4(2) of Law 10/61 provides, inter alia, that the Turkish Municipal Committees, [*117] as defined in section 2 of Law 33/59, “shall be the council of the Turkish municipality of such town and shall exercise all the powers and perform all the duties of the council under the provisions of the Municipalities Laws” (which, as defined in section 2(1) of Law 10/61, includes CAP. 240).

Section 3(1) of CAP. 240 having thus provided that every town which has a municipal council shall be a municipal corporation and section 4 (2) (b) of Law 10/61 having made provision for the councils of the separate Turkish municipalities in question, it follows, in my opinion, that, by virtue of the said section 3(1) of CAP. 240, modified to accord with the Constitution as required by sub-section (1) of section 4 of Law 10/61, the separate Turkish municipalities in question are constituted as municipal corporations endowed with the status of a legal personality which such corporations enjoy under the law.

The provisions of paragraph (c) of section 4(2) of Law 10/61, which provides that every council which was formerly functioning under CAP. 240 “shall continue to function as a council of the Greek municipality of such town”, clearly shows that paragraphs (b) and (c) of section 4 (2) of Law 10/61 have respectively put the separate Turkish and Greek municipalities on an equal legal basis and footing and endowed them with the same status of legal personalities as corporations, which the unified municipalities previously used to possess under CAP. 240. The transitional provisions of section 6 of Law 10/61, which safeguard the rights and liabilities of the separate Greek and Turkish municipalities in the five towns in question, also emphasize the completion of the legal separation of the municipalities in the said five towns.

The important and fundamental question which must now be considered is whether Law 10/61 has ceased to be in force, by virtue of the above-mentioned provisions thereof contained in sections 2(1) and 7, with respect to the five towns referred to in Article 173.1, or whether the said provisions, to the extent to which they are contrary to the express provisions of Articles 173 to 177 of the Constitution, have not operated, because of their unconstitutionality, to cause Law 10/61 to cease to be in force with respect to the said five towns in question.

In this connection I agree with the submission of counsel for Applicants that the implementation of the provisions of paragraph 1 of Article 173 by Law 10/61 was saved in its validity by virtue of the constitutional force of Articles 173 to 177 until such implementation was replaced, if not by a more complete implementation of the provisions of Articles 173 to 177, by at least an equivalent implementation of the said provisions. [*118]

In testing the constitutionality of the aforesaid provisions of sections 2(1) and 7 of Law 10/61 due regard must be had, as in every case where the constitutionality of a particular law or a particularl provision thereof is examined, to the expressed or implied intention of the legislature when enacting such legislative provisions. It must be assumed (and the above-mentioned Decision of this Court in Case No. 198/62, 4 R.S.C.C., p. 71*, appears to be based on that assumption), that the House of Representatives, in enacting Law 10/61, intended to act in accordance with the provisions of the Constitution as is expressly stated in sections 3 and 4 of the said Law. It follows, therefore, that, in interpreting section 7 of Law 10/61, and the relevant provision of section 2(1) thereof connected therewith, it must be presumed that the House of Representatives, i.e. both the Greek and Turkish members constituting the separate majorities required by Article 78, must have intended that when Law 10/61 were to expire it would simultaneously be replaced by another law or laws constituting, if not a more complete implementation, at least an equivalent implementation, of the constitutional provisions of Articles 173 to 177. This factor must have been a material factor in voting, by separate majorities of the Turkish and Greek members under Article 78, for the inclusion of the aforesaid definition of “period” in section 2(1) and of section 7 in the Law in question. It is inconceivable to imagine that at any rate the Turkish members of the House could have intended to agree to the inclusion of provisions in Law 10/61 in curcumstances which could result in nullifying even the partial implementation of the provisions of Articles 173 to 177 made by Law 10/61.

The provisions of Law 10/61 have, of course, expired, in my opinion, by virtue of sections 2(1) and 7 thereof, as far as municipalities outside the five towns referred to in paragraph 1 of Article 173 are concerned, because the “binding order of constitutional force” contained in Articles 173 to 177, which only apply to the aforesaid five towns in question, has not operated to save the expiration of the Law with regard to municipalities outside the said five towns in question. As far as separate municipalities in the five towns in question are concerned, however, in my opinion, unless and until legislation is passed constituting at least an equivalent implementation of the constitutional provisions of Articles 173 to 177, as Law 10/61 has done, then the relevant provisions of section 2(1) and section 7 of Law 10/61, to the extent to which they purport to repeal the provisions of Law 10/61, as they apply to the five towns in question, which constitute an implementation of the provisions in question of the Constitution, are unconstitutional, and are, therefore, null and void and of no effect whatsoever, with the result that the provisions of Law 10/61, to the extent to which they apply to the five [*119] towns referred to in Article 173.1, are still in force and of full effect.

Even if it could have been said that any individual members of the House of Representatives, in voting for the relevant provisions of sections 2(1) and 7 of Law 10/61, had intended to act contrary to the express provisions of Articles 173 to 177 by bringing to an end a legislative implementation of the said Articles, which has not been proved to be the intention, then, in any case, such an intention would be legally irrelevant because of the provisions of the said Articles.

In my opinion provisions of the Constitution “containing a binding order of constitutional force”, as in the case of Articles 173 to 177, must, unless otherwise provided therein, be interpreted as prohibiting, in a case such as the present, the subsequent expiration of laws enacted towards the implementation of such constitutional provisions and even the express repealing of such laws by a subsequent law. If such laws are not replaced, at the time of expiration or repeal, by other laws constituting a more complete implementation of such constitutional provisions, or at least an equivalent implementation of such provisions, then the provisions of the Constitution itself require the continuation in force of such laws.

It might be said that such a principle cannot, however, apply in cases where implementation of constitutional provisions was, from the beginning (i.e. from the enactment of the relevant law itself) a partial implementation not only in a substantial but also in a temporary sense. In my opinion, however, it makes no difference in substance to the principle stated in the immediately preceding paragraph of this Opinion whether such “repealing” provision is contained by an expiration provision in the law itself at the time of its enactment or is enacted thereafter. The basic principle is, and must, always, in my opinion, remain the same, namely, that the “binding order” contained in a constitution must always be respected and given effect to and all relevant legislative provisions should be interpreted accordingly.

Having come to the conclusion in this Opinion that, for the reasons already given therein, Law 10/61 still continues in force in its application to the separate municipalities in the five towns referred to in paragraph 1 of Article 173, it follows that I cannot, with respect, agree with the view expressed in the majority Decision in this Case that Law 10/61 has ceased to be in force also with regard to separate municipalities in the said five towns. In my opinion, even if this were so, however, there having been in existence (by virtue of paragraph (a) of sub-section (2) of section 4 thereof, as read together with the definition of “municipality” contained in section 2 (1) of Law 10/61 and with, inter alia, [*120] sections 2, 3 and 4 of CAP. 240, referred to in the said definition) separate Turkish municipal corporations in the five towns in question, including also the town of Nicosia, they cannot be abolished or liquidated by a mere ceasing to be in force of Law 10/61. Such Turkish municipal corporations have, during the period of their existence and on the legal basis provided for by Law 10/61 and CAP. 240, conducted certain transactions such as the collection, administration, and disposal of revenues, the acquisition of property, the entering into contractual relations with individual persons, etc. In my opinion, such legal relations of the said Turkish municipal corporations cannot have been dissolved by the mere expiration of Law 10/61. The future development of such relations can only be regulated by a law, because rights and obligations can only be modified or extinguished or transferred, either by consent of the persons concerned, or by or under the provisions of a law, which either provides for legal succession or which gives due consideration to all legal consequences of the dissolution of the corporation in question. The mere expiration of a law cannot have the same legal effect as the required legislative action. Until a proper law has been passed, the said Turkish municipal corporations must, therefore, be considered as still being in existence. This view also appears to be shared, to a certain extent, by the majority Decision of this Court in this Case.

In my opinion an abolition of separate municipalities, the creation of which has been given constitutional force by Articles 173 to 177, can, once created, only be brought about by an amendment of such Articles themselves, and the abolition or liquidation of legal personalities, such as the separate municipal corporations in question, to the extent to which they have been created by a law, such as Law 10/61, can only be brought about by a corresponding law containing express provision to that effect. If it had been intended, by the mere ceasing to be in force of the laws relating to the municipalities, by virtue of the proviso to paragraph 2 of Article 188 or by virtue of sections 2(1) and 7 of Law 10/61, that existing legal personalities should be abolished or liquidated then one would have expected, in accordance with the accepted legal practice, that detailed and procedural provisions relating to such abolition or liquidation (e.g. regarding the disposal of existing properties of such legal persons, outstanding contractual and other rights and obligations, etc.) would have been made in conjunction with the provision relating to the ceasing to be in force of the legislation in question. This has not been done either in the case of Article 188.2 or section 7 of Law 10/61 no doubt because it was not intended that such ceasing to be in force of the provisions in question should, in any event, result in the abolition of municipalities themselves or in the abolition or liquidation of the legal persons in question. [*121]

In conclusion of the examination of this issue, I would state that I cannot, in any circumstances, subscribe to the view that the House of Representatives, by disregarding or failing to perform its duty to comply with the “binding order of constitutional force” contained in Articles 173 to 177, can, by so doing, achieve the result of abolishing the very institution itself of municipalities, the separate creation of which in the five towns in question is given binding constitutional force by the afore-mentioned Articles, or of abolishing the legal personalities of such municipalities, and thus render the said constitutional provisions ineffective and meaningless. A disregard of constitutional provisions by any particular organ, or part of an organ, of a State, whether by way of an act or an omission, can, never, in my opinion, result in abrogating such provisions, particularly if the Constitution concerned contains provisions such as those of Article 182 of our Constitution, and expecially paragraph 1 of the said Article 182 relating to the basic Articles of the Constitution, which include Article 173.1. If such mere disregard of constitutional provisions could achieve the result of reducing such provisions to an ineffective nullity, then there would, indeed, have been no point in having a Constitution at all or provisions therein such as Article 182 of our Constitution.

Issue (b) :

Having found that the separate Turkish Municipality created in the town of Nicosia, and the council thereof, existed at all material times and continue to exist today, then, with regard to issue (b) above, I am of the opinion that the Applicants, in their capacity as members of the Council of the Turkish Municipality of the town of Nicosia, constitute an “authority in, the Republic”, in the sense of paragraphs 1 and 3(d) of Article 139. Although a municipality, or its council, may not be regarded as an “organ of…...the Republic” it is clearly, in my opinion, an “authority in, the Republic”, in the sense of paragraphs 1 and 3 (d) of Article 139, inasmuch as they are vested with constitutional (vide Article 174), as well as with statutory, authority, powers and duties and recourses against municipalities, as such authorities, have been entertained in the past by this Court under Article 146.

It is pertinent to note, in this connection, that section 2 of the Interpretation Law, CAP. 1, contains the following definition :—

‘“Municipal Authority’ means a Municipal Council or a Municipal Commission or other body duly authorized by law to exercise municipal authority and government;”.

Issue (c):

With regard to issue (c) above, the meaning of the expressions [*122] “conflict”, “contest”, “power” and “competence”, which are used in Article 139, have been so thoroughly examined and analysed in the Decision of this Court in Case No. 10/63 as not to require repetition here. Suffice it to say that, for the reasons given in the said Decision and in the light of the reasons contained therein, I am of the opinion that Respondent No. 1 (the Council of Ministers), by deciding to make, and by purporting actually to make, the Order of the 2nd January, 1963, under section 4 of the Villages (Administration and Improvement) Law, CAP. 243, which is the subject-matter of this recourse, has trespassed into the sphere of the “power or competence” of the Turkish Municipality of the town of Nicosia in that it purported to have the municipal functions of the said Municipality carried out by an Improvement Board under CAP. 243, and such trespass has thus given rise to a “conflict” and a “contest” of “power or competence”, in the sense of paragraph 1 of Article 139, between the Applicants, on the one hand, and Respondent No. 1 (the Council of Ministers), on the other, in which “conflict” and “contest” the Applicants are consequently “involved”, in the sense of paragraph 3 of the said Article 139.

In view of the conclusion reached hereinafter in this Opinion with regard to issue (d) that the Order in question of the Council of Ministers of the 2nd January, 1963, should be declared void ab initio and without any legal effect whatsoever, it becomes unnecessary, for the purpose of this Opinion, to deal with the question whether any “conflict or contest of power or competence” has arisen between the Applicants and Respondent No. 2 (the Minister of the Interior) in acting pursuant to such Order or between the Applicants and Respondent No. 3 (the Improvement Board of Nicosia) constituted pursuant to the said Order.

Issue (d) :

Coming now to issue (d) and the legal issues relating to the substance of the motions for relief contained in the Application, which, in substance, raise issues similar to those raised in the motions for relief contained in the Application in Case No. 10/63 and which issues are fully examined in the Decision of this Court in the said Case, I am of the opinion that the Order of the Court made in the said Case, should, for the reasons given in the said Decision, also be made, mutatis mutandis, in respect of the corresponding reliefs contained in the Application in this Case, with the result that the Order in question of the Council of Ministers of the 2nd January, 1963, should be declared void ab initio and without any legal effect whatsoever.