THE TURKISH MEMBERS OF THE HOUSE OF REPRESENTATIVES v. THE COUNCIL OF MINISTERS (1963) 5 RSCC 130

[*130] 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. Orhan Muderrisoglu (the Vice-president of the House of Representatives),

2. Halit Ali Riza,

3. Dr. Burhan Nalbantoglu,

4. Ibrahim Orhan,

5. Ahmet Aziz Altay,

6. Ahmet Midhat Berberoglu,

7. Ramadan Cemil,

8. Kemal Deniz,

9. Huseyin Dervish,

10. Dr. Hasan Guvener,

11. Necdet Huseyin,

12. Nebil Nabi,

13. Dr. Selcuk Somek,

14. Umit Suleyman

15. Halit Kazim Shemsettin, being all the Turkish Members of the House of representatives

AND

THE COUNCIL OF MINISTERS.

(Case No. 13/63)

House of Representatives—Turkish members thereof-—Whether an “organ’’ of the Republic, in the sense of Art. 139.1.

Art. 78.2—Regulates voting in the House when passing legislation of certain types enumerated therein.

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

As a result of a return made by the Vice-President of the Republic under Art. 57, the Council of Ministers reconsidered its decision on the 10th January, 1963, and having persisted in its decision the Order was published in the official Gazette of the Republic, No. 218 of the 10th January, 1963, Supplnt. No. 3 p. 5, the Vice-President not concurring with such publication and not signing the said Order.

It was the Applicants’ contention that the Council of Ministers had made the said Order without power or competence thus interfering with the relevant competence of the House of Representatives and/or the Turkish members thereof. [*131]

Held : (a) the Applicants, in their capacity as the Turkish members of the House of Representatives, were not an organ of the Republic in the ordinary sense of the term “organ” in Art. 139.3(d), but, they formed part of an organ i.e. part of the House of Representatives;

(b) Art. 78.2, indeed the whole of Art. 78, which only vested the Turkish members of the House with the right to vote by separate majority in the course of passing of legislation of certain types, a right which is neither disputed nor affected in this Case, could not possibly be construed as conferring upon the Turkish members a special legislative competence which could be claimed independently of that of the whole House; nor could it be understood as a proper legal basis for measures intended to prevent the frustration of the right conferrred upon such Turkish members by Art. 78.2.

PER CURIAM : Where the right of the Turkish members of the House of Representatives to vote by separate majority under Art. 78.2 is denied to them in the actual course of legislative procedure it may be possible to challenge the denial of such right by a recourse to this Court under Art. 139.3(d).

The Application was dismissed.

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

Cr. G. 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. : The Court 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 Vice-President of the Republic, however, did not concur with such publication. [*132]

†The Application in this Case was filed on the 31st January, 1963, and by the motion for relief the Applicants in their capacity as all the Turkish members of the House of Representatives seek, inter alia, a declaration that the Council of Ministers has proceeded to make the aforesaid Order without power or competence thus interfering with the relevant competence of the House of Representatives “and/or the Turkish members thereof”.

The Opposition was filed on the 16th February, 1963, and it is contended therein, 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 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.

The Court must first deal with the question of whether or not it has jurisdiction to entertain the present recourse as made by the Turkish members of the House of Representatives.

According to paragraph 3(d) of Article 139 a recourse under this Article can be made by “any organ of, or authority in, the Republic”. It is obvious, that the Applicants in their capacity as the Turkish members of the House of Representatives are not an organ of the Republic in the ordinary sense of the term “organ”, but they form, instead, a part of such an organ, viz. a part of the House of Representatives.

It has been submitted by counsel for Applicants that the Applicants, in so far as the Constitution has vested in them special rights, viz. the right to vote separately in certain matters of legislation, as provided in paragraph 2 of Article 78, they must be deemed to be an organ in the sense of Article 139.

Paragraph 2 of Article 78 on which the submission of Applicants is based, reads as follows :-

“Any modification of the Electoral Law and the adoption of any law relating to the municipalities and of any law [*133] imposing duties or taxes shall require a separate simple majority of the Representatives elected by the Greek and the Turkish Communities respectively taking part in the vote”.

The wording of this provision leaves no doubt that it only regulates the voting in the House of Representatives in the course of passing legislation of certain types. The same is clearly shown by the context of the whole of Article 78 of which such provision forms part.

The right of Applicants, under Article 78.2 to vote by separate majority, is neither disputed nor affected in this Case. The object of Applicants in this recourse is, clearly, to prevent the frustration of any rights safeguarded by paragraph 2 of Article 78, as a result of the alleged trespassing of an executive organ of the Republic into the realm of legislative competence of the House of Representatives. Paragraph 2 of Article 78, however, cannot be understood as a proper legal basis for measures which are intended to prevent such frustration. Such paragraph, which deals only with matters of voting in the course of certain legislation, cannot be construed as conferring upon the Turkish members a special legislative competence which could be claimed independently of that of the House of Representatives.

The interpretation of paragraph 2 of Article 78, as put forward by counsel for Applicants, is not, therefore, borne out by the context and object of such paragraph.

It must further be observed that there is no need in practice for Applicants to seek, by making a recourse under Article 139, protection of their relevant rights against frustration of such rights by acts of executive organs trespassing upon the realm of competence of the House of Representatives. Such competence of the House of Representatives as a whole is protected by special provisions of the Constitution as well as by the principle of the Rule of Law, as embodied in the Constitution. Any violation of these provisions or principle would render the acts made in violation of the competence of the House of Representatives unconstitutional and, therefore, ineffective. Such acts could be challenged, by recourse to this Court, under various other Articles of the Constitution, not only by the House of Representatives itself but also by any party who is adversely affected by them. This being so, there is no danger of frustration of the rights in question of Applicants.

The Applicants, therefore, cannot be considered as being an organ which is entitled, under paragraph 3 (d) of Article 139, to make a recourse to this Court, under paragraph 1 of the said Article, on the ground that a competence of the [*134] House of Representatives is being encroached upon. The position under paragraph 3(d) of Article 139 might, however, be different in a case where the Applicants, in their capacity as the members of the House of Representatives elected by one Community, allege that their very right to vote by separate majority under paragraph 2 of Article 78 has been denied to them in the actual course of legislative procedure.