Cylaw
CylawΣχετικά μ'εμάςΕπικοινωνίαΒοήθεια
PRES. OF REPUBLIC ν. HOUSE OF R/TATIVES (1985) 3 CLR 1466

(1985) 3 CLR 1466

[*1466] 1985 April 18

 

[TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS,

DEMETRIADES, SAVVIDES, LORIS, STYLIANIDES, PIKIS,

KOURRIS, JJ.]

IN THE MATTER OF ARTICLE 140

OF THE CONSTITUTION

THE PRESIDENT OF THE REPUBLIC,

Applicant,

v.

THE HOUSE OF REPRESENTATIVES,

Respondent.

(Reference No 1/85).

Cyprus Problem-Rerefence by President of the Republic under Article 140 of the Constitution-Decision of the House of Representatives calling upon the President of the Republic to proceed forthwith to proclaim a presidential election-Taken because of disagreement, between the President of the Republic and the House of Representatives, in respect of the handling of the Cyprus Problem-No provision in relation to the handling of the Cyprus problem in the Constitution-Though sub judice decision the expression of political will, as Cyprus problem outside the framework of the Constitution, said decision cannot be promulgated by President of the Republic by publication in the official gazette of the Republic under Article 152 of the Constitution-And as this Court can exercise its jurisdiction under Article 140 of the Constitution only, in respect of laws or decisions of the House of Representatives which may be promulgated as above, only laws or decisions which may be promulgated can be referred by the President of the Republic to this Court under Article 140 of the Constitution-And that since the sub judice decision cannot be promulgated [*1467] there can be no question of this Court considering, and expressing an opinion in respect of the view of the President of the Republic that such decision is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution.

Composition of the Court-Exemption from.

On the 9th April 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its opinion “the question as to whether the Decision of the House of Representatives, which was taken on the 29th March 1985 and was transmitted on the 2nd April 1985 to the President of the Republic for promulgation under Article 52 of the Constitution, and by means of which the House decides and calls upon the President of the Republic to proceed forthwith to proclaim a presidential election to be held within 45 days in case he does not comply with the Resolution of the House dated 22nd February 1985, is repugnant to or inconsistent with the provisions of Articles 43.1, 44.1, 46, 52, 61, 82 and 179 of the Constitution”.

Held, (A) per Triantafyllides P., A. Loizou, Malachtos, Demetriades, Savvides, Loris and Stylianides JJ., Pikis and Kourris, JJ. dissenting, (1) that the sub judice Decision of the House of Representatives, dated 29th March1985, in which reference is made also to the Resolution of the House of Representatives dated 22nd February 1985, was taken because of disagreement, in respect of the handling of the Cyprus Problem, between the President of the Republic and the House of Representatives, both being elected exponents of the will of the People.

(2) That the Cyprus Problem, as it exists to-day, was not, and could not have been, envisaged when the Constitution of the Republic of Cyprus came into operation on the 16th August 1960, and, therefore, in the Constitution there does not exist, and there could not exist, any provision in relation to the handling of the Cyprus Problem, as such Problem, because of its nature, is outside the framework of the Constitution.

(3) That the sub judice Decision of the House of Representatives,[*1468] dated 29th March 1985, is the expression of political will in respect of the handling of the Cyprus problem, but, as the Cyprus Problem, because of its nature, is outside The framework of the Constitution, the said Decision of the House of Representatives cannot be promulgated by the President of the Republic by publication in the Official Gazette of the Republic under Article 52 of the Constitution.

(4) That this Court can exercise its jurisdiction under Article 140 of the Constitution only in respect of laws or decisions of the House of Representatives which may be promulgated by publication inthe Official gazette of the Republic, under Article 52 of the Constitution, and this is to be clearly derived from the provisions of paragraph 1 of Article 140, which has to be read together with Article 52, as well as from the provisions, of paragraph 3 of Article 140.

(5) That, consequently, only a law or decision of the House of Representatives which may be promulgated under Article 52, above, can be referred by the President of the Republic to this Court under Article 140, and if the Court finds that a particular law or decision of the House of Representatives cannot be promulgated under the said Article 52 then this Court cannot give its Opinion as to whether such law or decision is repugnant to or inconsistent with any other provision of the Constitution; and that since the sub judice Decision of the House of Representatives cannot be promulgated by the President of the Republic under Article 52, there can be no question of this Court considering, and expressing an opinion in respect of, the view of the President of the Republic that such Decision of the House of Representatives is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution.

(B) Per Pikis, J., Kourris J. concurring:

(1) That the operative part of the decision of the House of Representatives is repugnant and inconsistent with –

(a) Article 43.1 of the Constitution laying down that the[*1469]President of the Republic shall hold office for a five-year period.

(b) Article 44.1 of the Constitution that prescribes exhaustively the circumstances under which the Office of the President of the Republic is vacated, and

(c) Article 179.1.2 of the Constitution that prohibits the enactment by the House of Representatives of any law or decision that is repugnant to or inconsistent with any of the provisions of the Constitution, the Supreme law of the Republic.

(2) That, also, the said decision is in conflict and, in consequence, repugnant to and inconsistent with the separation of the powers that underlies the distribution of State power and authority to the legislative, executive and judicial branch of the State of Cyprus; and that, consequently the decision in question cannot be promulgated.

Per Pikis, J., Kourris, J. concurring:

(1) Promulgation is an indispensable requisite for the enforceability of any law or decision of the House of Representatives. Without promulgation no enactment or decision becomes part of the law. The President is not the judge of the constitutionality of a law or decision submitted for promulgation. In conformity with the principle of separation of powers that pervades every part of our Constitution, jurisdiction to pronounce on the constitutionality of a law or decision vests in the judicial authorities of the State, the highest judicial authority, in this case the Supreme Court of Cyprus.

(2) The nature and terms of exercise of the jurisdiction of the Supreme Court are succinctly laid down in Article 140. The Supreme Court is enjoined in mandatory terms to express its Opinion “whether such law or decision or any specific provision thereof is repugnant to or inconsistent with any provision of this Constitution.” The jurisdiction of the Supreme Court to resolve constitutional issues emanates from the Constitution and is subject to the conditions and limitations envisaged therein.

(3) The submission that the decision is extra-constitutional [*1470]conflicts with the professed aim of the House of Representatives recited in the preamble of the decision of 29.3.85 claiming jurisdiction for the decision under the Constitution, and purporting to exercise a competence given it by its provisions. That the House of Representatives purported to act within the framework of its constitutional powers, is also evidenced by the decision itself, providing for a by-election “within 45 days, as provided in the Constitution of the Cyprus Republic”.

(4) No law or decision of the House of Representatives that is repugnant to or inconsistent with any of the provisions of the Constitution can become part of the law of the Cyprus Republic, as Article 179.2 categorically lays down.

(5) The judiciary is not the overseer of the acts of the other two branches of the State but the guardian of the Constitution and the rule of law.

(6) Courts have no right to relinquish jurisdiction vested in them by the Constitution or any law compatible with the Constitution for that matter. Certainly, the exercise of their jurisdiction does not depend on the background or substratum of a law or decision transmitted for promulgation, or the political controversy surrounding it. They are dutybound, as required by Article 140, to examine the legal implications of the law or decision submitted for promulgation, in order to determine whether the law or decision accords with the Constitution or is repugnant to or inconsistent with any of its provisions.

(7) What is subject to judicial examination under Article 140, are the legal implications of a decision submitted for promulgation, and their compatibility with the Constitution. Not the political objectives behind it. So long as acts of the House of Representatives are confined to the expression of political opinion, they are not subject to judicial control. They become subject to judicial control, under Article 140, when the House of Representatives seeks to give to its decisions the force of law. Here again the control is limited to determining whether such decision, as the present, is repugnant to or inconsistent with any pro visions of the Constitution.[*1471]

(8) A fundamental aspect of the doctrine of separation of powers, as it finds expression in the Constitution of Cyprus, is that the tenure in office of one power of the State is not dependent on the wish or approval of anyone of the other two powers. The terms of tenure of members of the three powers of the State are regulated, minutely one might say, by the Constitution itself. In all three cases, the Judiciary is the power entrusted by the Constitution to determine whether a vacancy has occurred in any power of the State.

(9) The tenure in office of the President of the Republic is in no way dependent, under the Constitution of Cyprus, on the confidence or approval of the House of Representatives. Each of the two political powers of the State is directly accountable to the electorate.

(10) The mission of the Judiciary is to apply the law, as laid down in the Constitution and enactments according therewith, ensuring thereby that Sate power is exercised according to law. It is through this process that the application of the rule of law is ensured. And, the rule of law is the compass of democratic rule. If we were to administer justice according to our perceptions of public opinion, we would be turning the Judiciary into a rulemaking body usurping the legislative power entrusted by the Constitution to the House of Representatives. The House of Representatives are, under the Constitution of Cyprus and subject to it, the custodians of the legislative power. Not only constitutional order but every centainty in the law too, would be destroyed if we were to act in the manner suggested by counsel for the House of Representatives. And then chaos would result.

Opinion as above.

Cases referred to:

Aloupas v. National Bank of Greece (1983) 1 C.L.R. 55 at p. 73;

In re Georghiou v. Republic (1983) 2 C.L.R. 1 at p. 5;

Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195;

Attorney-General v. Georghiou (1984) 2 C.L.R. 251;[*1472]

Board for Registration of Architects and Civil Engineers v. Kyriakides (1966) 3 C.L.R. 640 at pp. 645, 654;

Martin Luther v. Luther M. Borden (1849) 12 L. E. p. 581, a pp. 592, 599, 603, 604;

Henry A. Oetzen v. Central Leather Company (.1918) 62 L.E., p. 726 at pp. 731-732;

Colegrove v. Green (1946) 90 L.E. 1432;

Charles W. Baker v. Joe C. Carr (1962) 7 L E. 2d p. 663 at pp. 680, 681, 684, 685, 686;

Powell v. McCormack (1969) 23 L E. (2d) at p. 491, p. 532;

United Statesv. Nixon (1974) 41 L.E. 2d at p. 1039;

F. David Mathews v. Santiago Diaz (1976) 48 L. E. 2d Ed. 478 at p. 490, 491;

Ins., v. Chadha (1983) 77 L. E. 2d p. 317 at pp. 338, 339, 349;

Lawrence O’Brien v. Willie Brown (1972) 34 L.E. 2nd 1, at pp. 2, 5, and 6;

Charles W. Baker v. Joe C. Carr (1962) 7 L. E. 2d p. 663 at pp. 680,681, 684, 685, 686;

Attorney-General v. Nissan [1969] 1 All E.R. 629;

Papaphilippou v. Republic,1 R.S.C.C. 62;

Kourris v. Supreme Council of Judicature (172) 3 C.L.R. 390;

Keramourghia “AIAS” Ltd. v. Christoforou(1975) 1 C.L.R. 38 at p. 41;

Frangoulides v. Republic (1966) 3 C.L.R. 676.

Reference.

Reference by the President of the Republic for the opinion of the Supreme Court of the question whether the[*1473]decision of the House of Representatives taken on the 29th March, 1985 and transmitted on the 2nd April, 1985 to the President of the Republic for promulgation under Article 52 of the Constitution by means of which the House decides and calls upon the President of the Republic to proceed forthwith to proclaim a presidential election to be held within 45 days in case he does not comply with the resolution of the House dated 22nd February, 1985, is repugnant to or inconsistent with the provisions of Articles 43.1, 44.1 46, 52, 61, 82 and 179 of the Constitution.”

St. Soulioti (Mrs.), Attorney-General of the Republic with L. Loucaides, Deputy Attorney-General of the Republic, and N. Charalambous, Senior Counsel of the Republic, for the President of the Republic.

L. N. Clerides with Ph. Clerides, A. Markides, M. Papapetrou, A. Papacharalambous and Chr. Cle-rides, for the House of Representatives.

Cur. adv. vult.

18th April 1985.

At the sitting of the Supreme Court on the 18th April 1985 counsel appearing for the House of Representatives raised an objection regarding the composition of the Court for the hearing of these cases on the ground that the President of the Court, Mr. M. Triantafyllides, had been acting as adviser of the President of the Republic in intercommunal talks for the solution of the Cyprus Problem.

After a statement of the President of the Court that he had ceased to act in the said capacity the objection of counsel for the House of Representatives regarding the composition of the Court was withdrawn and the Court made the following statement:

“In accordance with the relevant constitutional and legislative provisions the Supreme Court is composed of its Members. Judges who are disabled from sitting or who for personal reasons themselves decide that it is inadvisable to take part in the trial of any particular [*1474]case, are exempted from the composition of the Court.

The issue of the composition of the Supreme Court is examined judicially by the Supreme Court only if raised by the parties. For this reason there does not arise an issue of the composition of the Court in the present case given that the objection to the participation of the President ofthe Supreme Court has been withdrawn.”

10th June, 1985.

TRIANTAFYLLIDES P. read the following opinion of the Court On the 9th April 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its opinion “the question as to whether the Decision of the House of Representatives, which was taken on the 29th March 1985 and was transmitted on the 2nd April 1985 to the President of the Republic for promulgation under Article 52 of the Constitution, and by means of which the House decides and calls upon the President of the Republic to proceed forthwith to proclaim a presidential election to be held within 45 days in case he does not comply with the Resolution of the House dated 22nd February 1985, is repugnant to or inconsistent with the provisions of Articles 43.1, 44.1, 46, 52, 61, 82 and 179 of the Constitution”

The Attorney-General of the Republic in replying, on the 30th April 1985, to a request of counsel for the House of Representatives, made on the 24th April 1985, for further particulars, informed them that the President of the Republic is seeking the Opinion of the Supreme Court in respect of paragraph 3 of the Decision of the House of Representatives dated 29th March 1985.

The case came up before the Supreme Court for directions on 18 April 1985 and 17 May 1985 and, pursuant to Article 140.2 of the Constitution the Court heard, through their counsel, arguments on behalf of the President of the Republic and the House of Representatives on 29, 30, 31 May, 3 and 4 June 1985.

The Supreme Court considered the question referred to it and the unanimous opinion of the majority of its Members (M Triantafyllides, A. Loizou, Y. Malachtos, D. Demetriades,[*1475] L. Savvides, A. Loris and D. Stylianides) is the following:

1. The sub judice Decision of the House of Representatives dated 29th March 1985, in which reference is made also to the Resolution of the House of Representatives dated 22nd February 1985, was taken because of disagreement, in respect of the handling of the Cyprus Problem, between the President of the Republic and the House of Representatives, both being elected exponents of the will of the People.

2. In the Constitution of the Republic of Cyprus there does not exist, and there could not exist, any provision in relation to the handling of the Cyprus Problem.

3. The sub judice Decision of the House of Representatives, dated 29th March 1985, is the expression of political will in respect of the handling of the Cyprus. Problem, but, as the Cyprus Problem, because of its nature, is outside the framework of the Constitution, the said Decision of the House of Representatives cannot be promulgated by the President of the Republic by publication in the Official Gazette of the Republic under Article 52 of the Constitution.

4. Inview of the above, and of the provisions of paragraphs 1 and 3 of Article 140 of the Constitution, there can be no question of the Supreme Court considering, and expressing an opinion in respect of, the view of the President of the Republic that the sub judice Decision of the House of Representatives is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution.

The present Opinion is notified, in accordance with Article 140.2 of the Constitution, to the President of the Republic and the House of Representatives.

PIKIS J.: Invoking the provisions of Article 140 of the Constitution the President of the Republic referred to the Supreme Court for its opinion the constitutionality of the decision of the House of Representatives of 29th March, 1985, specifically the part calling upon the President of the[*1476]Republic to comply with the resolution of the House of Representatives of 22nd February, 1985, in relation to the handling of the Cyprus problem-

“otherwise to proceed to the immediate proclamation of presidential elections in order far the people to 5 express their sovereign will to be held within 45 days, as provided for in the Constitution of the Cyprus Republic.”

The opinion of the, Supreme Court is sought in order to determine whether the President of the Republic must promulgate the decision under the provisions of Article 52 of the Constitution, by publication in the Official Gazette.

2. Article 140 of the Constitution confers a right to the President and Vice President of the Republic of Cyprus acting cojointly to refer to the Supreme Court for a binding opinion, the constitutionality of a law or decision in order to be guided as to its promulgation. Notwithstanding my conviction that the position I adopted in Aloupas v. National Bank of Greece (1983) 1 C.L.R. 55, 73, is juristically correct, that is, that recourse to the law of necessity is only permissible provided the necessity has been legislatively acknowledged and the manner of coping with it regulated by law, I consider, myself bound by the decision of the Full Bench of the Supreme Court in the case of Ge1orghiou (1983) 2 C.L.R. 1, 5 (respecting the application of the law of necessity to the appointment of, a Greek Cypriot to the office of Deputy Attorney-General) to accept that recourse to the law of necessity is permissible, independently of legislative recognition and regulation. My approach to the subject in Aloupas (supra) was not adopted by the majority of the Court in that or any other decision of the Supreme Court.

According to the caselaw of the Supreme Court, binding as it is upon me, recourse to the law of necessity is justified whenever the functioning of the Constitution and its institutions has become impossible owing to the absence of the Turkish Officers of the Republic. In the case of the Attorney-General v. Ibrahim And Others, 1964 C.L.R. 195, it was accepted that the President of the Republic could promulgate a law by publication in the Official Gazette[*1477]without the concurrence of the Vice President of the Republic.

Consequently, I shall proceed to examine the question referred to us, despite the fact that the reference is made by the President of the Republic, acting alone and, shall exercise the jurisdiction vested in the Supreme Court by Article 140 to give its opinion on the constitutionality of laws or decisions transmitted for promulgation in the Official Gazette of the Republic.

After due consideration of the submissions made by the Attorney-General and Deputy Attorney-General, on behalf of the President of the Republic and counsel appearing on behalf of the House of Representatives, I have come to the following conclusions:-

(a) Article 52 makes obligatory the promulgation of laws and decisions that create law, that is, that create rights and obligations cognizable in law. Only decisions taken within the framework of the Constitution and accord with its provisions can create law. Article 52 lays down the official manner of proclaiming the law in the interest of certainty of its existence and its universal application.

(b) By the request for the promulgation of the sub judice decision the House of Representatives intended to create a legal obligation for the resignation of the President of the Republic and the promulgation of presidential elections in case of his non compliance with the resolution of the House dated 22nd February, 1985, and the decision of 29th March, 1985. In accordance with the provisions of Article 140 the Supreme Court has a constitutional duty to decide whether the decision here under consideration is repugnant to or inconsistent with any of the provisions of the Constitution and the principle of separation of powers embodied in the Constitution of the Cyprus Republic. The separation of State powers is a constituent element of the Constitution, as repeatedly acknowledged by the Supreme Court.

(c) The exercise of the jurisdiction conferred by Article 140 does not depend on the content of the decision,[*1478]Particularly its political implications (political thicket) but on whether it is intended thereby to create rights and obligations in the sphere of the law. And in the present case the request of the House of Representatives for promulgation of the decision by publication in the Official Gazette aimed exclusively at the creation of a legal obligation binding the President to comply with the sub judice decision, to resign from Office in the opposite case, and to provide for the holding of the presidential by-election within the time limit specified in Article 44.4 of the Constitution, The nature of the question we must answer remains unchanged by the fact that the substratum of the decision is related to the handling of the Cyprus problem. The submissions made by counsel for the House of Representatives are in conflict with the professed intention of the House of Representatives, set out in the preamble to the decision, declaring that their actions are taken in the context of the powers and competence vested in the House by the Constitution. This position is affirmed by the concluding part of the decision whereby the holding of a by-election is sought “within 45 days, provided for in the Constitution of the Cyprus Republic.” We are required to decide whether the aforementioned decision of the House of Representatives is compatible with constitutional provisions respecting the tenure in office of the President and whether it is binding upon the President of the Republic. The promulgation of the decision is dependent on the opinion of the Court on its constitutionality.

3. After examination of the submissions made and after exhaustive study of the matter, I have come to the conclusion that the decision is repugnant to and inconsistent with three articles of the Constitution and, in addition, conflicts with the principle of separation of powers that aims at the decentralisation of State powers. The doctrine of separation of powers is intended to provide for the symmetrical and balanced functioning of the democratic regime. Specifically, the decision is manifestly repugnant to and inconsistent with-

(i) Article 43.1 of the Constitution that lays down that[*1479]the President shall hold office for five years.

(ii) Article 44.1 of the Constitution prescribing conclusively the circumstances of a vacancy occurring in the office of the President of the Republic, that is, the manner of his resignation and circumstances of fall from office. The stay of the President of Republic in office does not depend, in accordance with the Constitution of Cyprus, upon the Wishes or the expression of confidence of the House of Representatives.

(iii) Article 179.1.2 that proclaims the Constitution to be the supreme law of the Republic and prohibits the taking of any decision that is repugnant to or inconsistent with “any of the provisions of the Constitution.”

4 The opinion of the Court is confined to the expression of an opinion on the implications premulgation would have on the state of the law with regard to the stay of the President of the Republic in office and the creation of an obligation for the holding of a presidential by-election. The jurisdiction of the House of Representatives to express views on governmental action and the amenity to make suggestions for the effective functioning of the democratic regime is not doubted. Resolutions and decisions of the House of Representatives of this nature, have an extra legal character and their review is outside the province of the judiciary.

Also, the House of Representatives who alongside with the President of the Republic constitute the political powers of the State, have every right to adopt positions with regard to the political future of Cyprus without, however, such decisions acquiring the force of law.

5. For as long as the Constitution of Cyprus Is in force and applies in accordance with the law of necessity, only the promulgation of laws and decisions that are compatible with the provisions of the Constitution is permissible. Deviation or departure from this position would result in undermining the rule of law. Consequently, the sub judice decision is repugnant to and inconsistent with the afore-[*1480]mentioned provisions of the Constitution and conflicts with the principle of separation of State powers and for these reasons lacks legal force. Therefore, the answer to the question referred to the Supreme Court is that the decision of the House of Representatives of 29th March, 1985, can-not be promulgated, by publication in the official Gazette, because it is repugnant to and inconsistent with the Constitution of the Cyprus Republic.

6. The reasoning of this decision in its entirety will be given the soonest and in any event not later than 30th June, 1985. The text will be deposited with the Registry of the Supreme Court and copies will be distributed to the interested parties.

KOURRIS J.: I have very carefully read in advance the opinion of brother Judge Pikis in this Reference.

I find myself in complete agreement with the above Opinion and I associate myself with whatever is stated therein.

29th June, 1985.

TRIANTAFYLLIDES, P. read the supplementary reasons for the opinion of the Court. When the Supreme Court, on the 10th June 1985, gave, by majority, its Opinion in the present case it was stated that supplementary reasons for it would be given by the 30th June 1985 and so the majority of the Members of the Court (M. Triantafyllides, A. Loizou, Y. Malachtos, D. Demetriades, L. Savvides, A. Loris and D. Stylianides) give now such supplementary reasons:

The question regarding the constitutionality of the subjudice Decision of the House of Representatives, dated 29th March 1985, was referred to the Supreme Court by the President of the Republic under Article 140 of the Constitution, which reads as follows:

“1. The President and the Vice-President of the Republic acting jointly may, at any time prior to the promulgation of any law or decision of the House of Representatives, refer to the Supreme Constitutional Court for its Opinion the question as to whether such law or decision or any specified provision thereof is[*1481]repugnant to or inconsistent with any provision of this Constitution, otherwise than on the ground that such law or decision or any provision thereof discriminates against either of the two Communities.

2. The Supreme Constitutional Court shall consider every question referred to it under paragraph 1 of this Article and having heard arguments on behalf of the President and the Vice-President of the Republic and. on behalf of the House of Representatives shall give its opinion on such question and notify the President and the Vice-President of the Republic and the House of Representatives accordingly.

3. In case the Supreme Constitutional Court is of the opinion that such law or decision or any provision thereof is repugnant to or inconsistent with any provision of this Constitution such law or decision or such provision thereof shall not be promulgated by the President and Vice-President of the Republic.”

The jurisdiction of the Supreme Constitutional Court under Article 140, above, is exercised by the Supreme Court by virtue of sections 9(a) and 11(1) of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64).

As regards the effect of an Opinion of the Court under Article 140 there must be noted a conflict between the official Greek and Turkish texts of the Constitution and, consequently, such conflict has to be resolved by this Court under Article 149(a) of the Constitution by reference to the English text of the draft of the Constitution, dated 6th April 1960, which coincides in this respect with the Turkish text. We have, therefore, no difficulty in holding that the correct wording of paragraph 3 of Article 140 is that in the Turkish and English texts of that paragraph, especially as such paragraph corresponds to paragraph 3 of the analogous Article 142 of the Constitution and as the Greek, Turkish and English texts of paragraph 3 of Article 142 are the same as the Turkish and English texts of paragraph 3 of Article 140.

Even though a reference under Article 140, such as this one, would, normally, have had to be made by the President [*1482]of the Republic and the Vice-President of the Republic acting jointly, the President of the Republic was entitled to act on his own on the present occasion by virtue of the “law of necessity”, because ever since the end of December 1963 there has not been participation in the Government of the Republic of any person acting in the capacity of the Vice-President of the Republic, due to exceptional circumstances of which the Court takes judicial notice.

By its sub judice Decision, dated 29th March 1985, the House of Representatives called upon the President of the Republic to proceed forthwith to proclaim a presidential election, to be held within forty-five days, in case he does not comply with a Resolution of the House of Representatives dated 22nd February 1985.

The said Decision and Resolution of the House of Representatives were adopted because of disagreement, in respect of the handling of the Cyprus Problem, between the President of the Republic and the House of Representatives, both being elected exponents of the will of the People.

The Cyprus Problem, as it exists today, was not, and could not have been envisaged when the Constitution of the Republic of Cyprus came into operation on the 16th August 1960, and, therefore, in the Constitution there does not exist, and there could not exists, any provision in relation to the handling of the Cyprus Problem, as such Problem, because of its nature, is outside the framework of the Constitution.

In the Constitution there was incorporated the Basic Structure of the Republic of Cyprus which was agreed by means of the Zurich Agreement, dated 11th February 1959, and the London Agreement, dated 19th February 1959, and, as a result, it is provided by Article 182 of the Constitution that its Basic Articles, by means of which the said Basic Structure was incorporated in the Constitution cannot be amended in any way.

We take judicial notice that as has been agreed between the late President of the Republic of Cyprus, Archbishop Makarios, and the Turkish Cypriot leader, Mr. R. Denktash, [*1483]on the 12th February 1977, and between the President of the Republic of Cyprus, Mr. Sp. Kyprianou, and Mr. R. Denktash on the 19th May 1979, the solution of the Cyprus Problem will entail a federal structure of the Republic of Cyprus.

It is obvious that a federal structure cannot be set up without amending Basic Articles of the Constitution of the Republic and thus appropriate processes will have to be resorted to outside the framework of the existing Constitution of Cyprus.

Although the Cyprus Problem is, because of its nature, outside the framework of the Constitution of Cyprus, it is, of course, nevertheless, the right of elected political organs, expressing in the exercise of their respective competences the will of the People, such as the President of the Republic and the House of Representatives, to take political decisions about the Cyprus Problem.

The sub judice Decision of the House of Representatives, dated 29th March 1985, is the expression of political will in respect of the handling of the Cyprus Problem, but, as the Cyprus Problem, because of its nature, is outside the framework of the Constitution, such Decision cannot be promulgated by the President of the Republic by publication in the official Gazette of the Republic under Article 52 of the Constitution.

This Court can exercise its jurisdiction under Article 140 of the Constitution only in respect of laws or decisions of the House of Representatives which may be promulgated by publication in the official Gazette of the Republic, under Article 52 of the Constitution, and this is to be clearly derived from the provisions of paragraph 1 of Article 140, which has to be read together with Article 52, as well as from the provisions of paragraph 3 of Article 140:

Consequently, only a law or decision of the House of Representatives which may be promulgated under Article 52, above, can be referred by the President of the Republic to this Court under Article 140, and if the Court finds that a particular law or decision of the House of Representatives cannot be promulgated under the said Article 52 then this Court cannot give its Opinion as to whether[*1484]such law or decision is repugnant to or inconsistent-with any other provision of the Constitution.

So, as we have found that the sub judice Decision of the House of Representatives cannot be promulgated by the President of the Republic under Article 52, there can be no question of this Court considering, and expressing an opinion in respectof the view of the President of the Republic that such Decision is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution.

PIKIS J.: The Constitution of Cyprus confers by Article 140 jurisdiction on the Supreme Court to determine the constitutionality of a law or decision of the House of Representatives submitted for promulgation. The jurisdiction is exercised on the motion of the President who is charged under the Constitution with responsibility for the promulgation of laws and decisions transmitted by the House of Representatives for publication in the Official Gazette. Articles 52 and 140 of the Constitution empower the President to seek the opinion of the Supreme Court on the constitutionality of a law or decision of the House of Representatives transmitted for promulgation. On a reference of the President to the Supreme Court under Article 140 the Supreme Court comes under a constitutional duty to decide whether the law or decision in question is constitutional. In particular, the Court is required to examine whether the law or decision, or any part thereof, is repugnant to or inconsistent with any of the provisions of the Constitution. Article 140.1 reads:

“Article 140.1: The President and the Vice-President of the Republic acting jointly may, at any time prior to the promulgation of any law or decision of the House of Representatives, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any specified provision thereof is repugnant to or inconsistent with any provision of this Constitution, otherwise than on the ground that such law or decision or any provision thereof discriminates against either of the two Communities.”[*1485]

Pending the outcome of the judicial proceeding promulgation is suspended. The plain provisions of para.2 of Article 140 leave no doubt as to the mandatory nature of the jurisdiction of the Supreme Court to render its opinion on the constitutionality of the law or decision transmitted for promulgation. It reads:

“Article 140.2: The Supreme Constitutional Court shall consider every question referred to it under paragraph 1 of this Article and having heard arguments on behalf of the President and the Vice-President of the Republic and on behalf of the House of Representatives shall give its opinion on such question and notify the President and the Vice-President of the Re-public and the House of Representatives accordingly.”

The jurisdiction vested in the Supreme Constitutional Court by Article 140 is now exercised by the Supreme Court in virtue of the provisions of the Administration of Justice (Miscellaneous Provisions) Law 33/64.

The decision of the Supreme Court, though styled an opinion is, in accordance with the provisions of para. 3 of Article 140, a binding judicial pronouncement determinative of the constitutionality of the law or decision transmitted for promulgation and, depending on the opinion of the Court, the President must promulgate the law or decision or withhold promulgation.

The jurisdiction of the Supreme Court under Article 140 is confined to rendering an opinion of the constitutionality of the legislation or decision submitted for promulgation; specifically, it is confined to determining whether the law or decision is repugnant to or inconsistent with any of the provisions of the Constitution Article 140 is a salutary addition to the armoury of the law. It provides machinery for adjudication upon the constitutionality of a law or decision before it acquires the force of law in the interest of constitutional order and the rule of law. It forestalls possible breaches or deviation from the provisions or framework of the Constitution, the fundamental law of the land. Article 179.1 proclaims the Constitution to be the supreme[*1486]law of the land. No power, competence or authority can be claimed, assumed or exercised, in breach of or defiance to the provisions of the Constitution. Jurisdiction similar to the one conferred on the Supreme Court by Article 140 vests in the Constitutional Council of the French Republic. The purpose of such jurisdiction, as in Cyprus, is to earmark the path ofthe powers of the State to legality and strike down unconstitutional laws and decisions at their genesis.

Invoking the power vested in him by Article 140 the President of the Republic referred to the Supreme Court for its opinion the constitutionality of paragraph 3 of the decision of the House of Representatives of 29.3.85. The decision was transmitted to the President of the Republic for promulgation by the Director-General of the House of Representatives by a letter dated 2.4.85. The part of the decision impugned as unconstitutional, is the operative part of the decision, notably paragraph 3. It requires, in imperative terms, the President of the Republic to comply with a resolution of the House of 22.2.85 respecting the handling of negotiations for the solution of the Cyprus problem and matters related therewith, and in case of non compliance, it directs him to proclaim Presidential elections to enable the people to express its sovereign will, “to be held within 45 days as provided by the Constitution of the Cyprus Republic.” Although the decision does not specify the article or articles of the Constitution relied upon by the House of Representatives, it is clear from its wording and content, they had in mind Article 44.4 of the Constitution that provides that in the event of a vacancy occurring in the Office of the President of the Republic during the currency of his five-year term of office “…the vacancy shall be filled by a by-election which shall take place within a period not exceeding 45 days of the occurrence of such vacancy”.

Having heard arguments by the Attorney-General, and Deputy Attorney-General, on behalf of the President, and counsel appearing on behalf of the House of Representatives, as ordained in paragraph 2 of Article 140, the Supreme [*1487]Court gave its opinion on 10.6.85. In exercise of the jurisdiction vested in the Supreme Court by Article 140, I declared the operative part of the decision of the House of Representatives of 29.3.85, namely paragraph 3, to be repugnant to and inconsistent with -

(a) Article 43.1, laying down that the President of the Republic shall hold office for a five-year period,

(b) Article 44.1 that prescribes exhaustively the circumstances under which the Office of the President of the Republic is vacated, and

(c) Article 179.1.2 that prohibits the enactment by the House of Representatives of any law or decision that is repugnant to or inconsistent with any of the provisions of the Constitution, the supreme law of the Republic.

Also, the decision was found to be in conflict and, in consequence, repugnant to and inconsistent with the separation of the powers that underlies the distribution of State power and authority to the legislative, executive and judicial branch of the State of Cyprus. Consequently, I decided the decision under consideration cannot be promulgated and gave a decision accordingly, in discharge of the Constitutional duty cast on the Supreme Court by paragraph 2 of Article 140 of the Constitution.

In the concluding part of the opinion rendered, it was indicated full reasons for the opinion would be given by the 30th of June, 1985. Furnishing an extensive reasoning, is consonant with the traditions of the Cyprus Judiciary as to the form a judgment should take, a practice warranted by the provisions of para. 2 of Article 30 of the Constitution. The opinion given on 10.6.85 sets out myconclusions and outlines the reasons justifying these conclusions. The purpose of this judgment is to indicate comprehensively the reasons for the opinion rendered. I shall not discuss aspects of the opinion that need no further elaboration, such as reference to the doctrine of necessity. Attention[*1488]will be focused on the following espects of the opinion, that is -

(a) promulgation; its objects and purposes,

(b) the jurisdiction of the Court un4er Article 1,40, its nature, compass and ambit,

(c) the doctrine of separation of powers with particular reference to the Constitution of the Republic of Cyprus and, lastly,

(d) the rule of law and the supremacy of the law.

Only brief reference will be made to caselaw and jurisprudence of other countries because they mostly deal with issues peculiar to the Constitution of particular countries. The Constitution of Cyprus is not modelled on the Constitution of any other country; it is a very detailed document that aims to regulate comprehensively the exercise of every facet of State power.

Promulgation:

Promulgation is the process whereby the law is officially declared by publication in the Official Gazette. Promulgation is an indispensable requisite for the enforceability of any law or decision of the House of Representatives. Without promulgation no enactment or decision becomes part of the law. In Cyprus, as in other countries, the jurisdiction to promulgate laws and decisions vests in the Head of State. Article 52 casts a duty on the President to promulgate a law or decision by publication in the Official Gazette, unless he exercises the right of veto as in Article 50, or returns a law or decision to the House of Representatives [*1489]for reconsideration, as provided in Article 51 or exercises “…the right of reference to the Supreme Constitutional Court, as in Article 140…”. The President is not the Judge of the constitutionality of a law or decision submitted for promulgation. In conformity with the principle of separation of powers that pervades every part of our Constitution, jurisdiction to pronounce on the constitutionality of a law or decision vests in the judicial authorities of the State, the highest judicial authority, in this case the Supreme Court of Cyprus. The President has no discretion to withhold promulgation. He can only do so on the opinion of the Supreme Court on a reference to it under Article 140.

The nature and terms of exercise of the, jurisdiction of the Supreme Court are succinctly laid down in Article 140. The Supreme Court is enjoined in mandatory terms to ex-press its opinion “…whether such law or decision or any specific provision thereof is repugnant to or inconsistent with any provision of this Constitution…”. Complying with this duty, I examined the disputed part of the decision and having done so, I found it to be, for the reasons indicated, repugnant to and inconsistent with Articles 43.1, 44.1 and 179.1.2, and the doctrine: of separation of powers embodied in the Constitution. I have heard no argument from counsel for the House of Representatives that the operative part of the decision is reconcilable with the provisions of anyone of the aforementioned Articles of the Constitution. And none could advanced in view of the ex press provisions of the above Articles of the Constitution.

Nature of the Jurisdiction of the Supreme Court under Article 140:

Assumption and, exercise of the jurisdiction vested in the Supreme Court by Article 140 is mandatory, provided its opinion is sought in the manner laid down in the Constitution, that is, by a reference of the President to determine the constitutionality of a law or decision tendered for promulgation; as indeed was the case before us. The Supreme Court has no discretion to refrain from assuming and[*1490] exercising the jurisdiction. The provisions of Article 140 admit of no other interpretation. Declining to exercise the jurisdiction vested in the Supreme Court under Article 140, as invited by counsel for the House of Representatives, would have grave repercussions on constitutional order. The process of the law would be deadlocked. As explained in the opinion, the sole object of the House of Representatives in seeking the promulgation of the sub-judice decision, was to create an obligation in law for the President of the Republic to comply with a resolution of the House of Representatives and in the event of non compliance to vacate his office and provide for the holding of a bye-election. Was this obligation compatible with the provisions of the Constitution and the separation of State powers provide for in the Cyprus Constitution? This is what we were required to decide. And as the decision was repugnant to the article of the Constitution specified in the opinion, and the doctrine of separation of powers, it was declared to be unconstitutional.

In Attorney-General v. Georghiou (1984) 2 C.L.R. 251, 268, it was emphasized that the jurisdiction of the Supreme Court to resolve constitutional issue emanates from the Constitution and is subject to the candidates and limitations envisaged therein. We, unanimously, turned down the submission that forfeiture of the seat of a Member of the House of Representatives was a matter amenable to the jurisdiction of the House itself, for the reason that the Constitution entrusted such jurisdiction to the judicial authorities of the State Constitutional provisions and the practice followed in other countries were found to be irrelevant in view of the clear provisions of the Cyprus Constitution pertaining to the terms of tenure of members of the legislative body.

Notwithstanding the clear and imperative terms of the jurisdiction of the Supreme Court under Article 140 we were invited to abstain or refrain from exercising the jurisdiction vested in the Supreme Court, for two reasons, because:-

(a) The decision is allegedly extra-constitutional (εξω[*1491]συνταγματική) that is, outside the framework of the constitution, and

(b) it involves determination of a political question.

The submissions made by counsel for the House of Representatives in support of the above proposition, were mostly founded on decisions of the Courts of the United States of America, particularly dicta from judgments of the Supreme Court, to the effect that Courts should not attempt to resolve political questions.

Extra-constitutional (εξωσυνταγματική)

To my comprehension, the submission that we should decline to exercise jurisdiction under Article 140 because the question raised is extra-constitutional, betrays awareness on the part of counsel that the provisions of paragraph 3 of the decision of 29.3.85 cannot be reconciled with the mandatory constitutional provisions. It is evident from the wording of the decision that the I-louse of Representatives intended by its promulgation to create an obligation in law for the vacation of the Office of the President and the holding of a by-election. Like any other law or decision submitted for promulgation, it must be judged, on a reference under Article 140, in accordance with the Constitution. The submission that we should decline jurisdiction, overlooks the juristic implications of the decision after promulgation.

Moreover, the submission that the decision is extra-constitutional, conflicts with the professed aim of the House of Representatives recited in the preamble to the decision of 29.3.85 claiming jurisdiction for the decision under the Constitution, and purporting to exercise a competence given it by its provisions. That the House of Representatives purported to act within the framework of its constitutional powers, is also evidenced by the decision itself, providing for a by-election “within 45 days, as provided in the Constitution of the Cyprus Republic”. The only article of the Constitution[*1492] that provides for a by-election within 45 days in the event of a vacancy in the Office of the President of the Republic, is Article 44.4. Its application depends, on the occurrence of a vacancy in the Office the President, as laid down in the preceding paragraphs of Article 44, in particular paragraph 1.

The decision here under consideration, viewed in conjunction with the requests of the House of Representatives for its promulgation, aimed to create rights and obligations in the sphere of the law As such, it must be examined by reference to those provisions of the Constitution providing for the tenure in office of the President of the Republic, and the principle of separationof powers No law or decision of the House of Representatives that is repugnant to or inconsistent with any of the provisions of the Constitution can become part of the law of the Cyprus Republic, as Article 179.2 categorically lays down. On principle and authority, in reviewing the constitutionality of a law or decision the Supreme Court is not concerned with the motives behind the law or decision, or the wisdom of its provisions. The judges of the wisdom of the acts of the legislature, a political body, are the people who elect them to office. It is to them they are accountable. The role of the Court is confined to the scrutiny of the constitutionality of laws and decisions of the House of Representatives. The Judiciary is not the overseer of the acts of the other two branches of them State but the guardian of the Constitution and the rule of law.

The powers and authority of the House of Representatives, like those of the other two branches of the State-the Executive and the Judicial-derive from the Constitution and their exercise is subject to its provisions. No power or competence can be claimed by the House of Representatives to legislate outside the, Constitution. What the House of Representatives purported to accomplish by the sub-judice decision was to regulate the tenure in office of the[*1493]President of the Republic in a manner other than that provided for in. the Constitution and in defiance thereto. It was declared unconstitutional, accordingly.

Doctrine of Political Question:

A series of judicial pronouncements m the U.S.A. tend to establish Courts should not undertake to resolve questions of a fundamentally political character. I wholly subcribe to this view. It is for this reason that Courts will not inquire into the motives or wisdom of the acts of political authorities, such as the House of Representatives, but confine their task to examination of the legality of such acts.

On the other hand, Courts have no right to relinquish jurisdiction vested in them by the Constitution, or any law compatible with the Constitution for that matter. Certainly, the exercise of their jurisdiction does not depend on the background or substratum of a law or decision transmitted for promulgation, or the political controversy surrounding it. They are dutybound, as required by Article 140, to examine the legal implications of the law or decision submitted for promulgation, in order to determine whether the law or decision accord with the Constitution or is repugnant to or inconsistent with any of its provisions.

None of the decisions cited by counsel for the House of Representatives establishes or suggests we should refrain from examining the constitutionality of a law or decision aimed to create rights and obligations in law. What is subject to judicial examination under Article 140, are the legal implications of a decision submitted for promulgation, and their compatibility with the Constitution. Not the political[*1494]objectives behind it. The cases cited suggest the Courts should resolve every definable legal question. The case of Baker that sought to define the attributes of a political question, clearly lays down that the Courts should take cognizance of every, issue raising a question of law. The principle underlying the approach of American caselaw is that Courts should not assume jurisdiction to try questions that are assigned by the Constitution to a political department, of government, as this would be a breach by the Judiciary of the system of separation of powers. Schwartz, in his work on the American Constitution, points out that the doctrine of political question derives in large part its origin from the doctrine of the English common law as to acts of State and lack of jurisdiction on the part of the Courts to query such acts. Acts of State in the sense of the doctrine of the English common law, are confined to action of the Executive in its relations with other States and foreign subjects. According to English common law foreign relations are the province of the Executive. A study of the modern development of the doctrine of the common law reveals a steady tendency to curtail its application and the immunity of the Crown in respect of such acts. There is a consensus of opinion among textbook writers that classic cases of political questions are the management and conduct of foreign relations and the waging of war. In Cyprus, the constitutionality of laws or decisions transmitted for promulgation is by the express provisions of the Constitution. Article 140, assigned for determination to the Judiciary. In exercise of this jurisdiction I rendered the opinion of 10.6.85, declaring the sub judice decision to be unconstitutional.

In paragraph 4 of the decision, it is explained that the[*1495]judgment of the Court is confined to the legal implications of the decision and the attempt made to shape the law with regard to the tenure in office of the President of the Republic contrary to the Constitution, As explained in paragraph 4, that need not be reproduced, it is not intended to limit the right of the House of Representatives to criticise government action, or adopt positions with regard to the political future of Cyprus. So long as acts of the House of Representatives are confined to the expression of political opinion they are not subject to judicial control. They become subject to judicial control, under Article 140, when the House of Representatives seeks to give to its decisions the force of law. Here again, the control is limite4 to determining whether such decision, as the present, is repugnant to or inconsistent with any provisions of the Constitution.

Separation of Powers:

Separation of powers is the system of government where. State power arid authority is diffused by a process of assignment of separate Spheres of jurisdiction to different departments of the State. Decentralisation of State power is at the core of the doctrine. A system of separation of powers is essential for the effective application of the rule of law. Too much concentration of State power in one branch, of government may lead to abuse and may leave excess of power unchecked. I a system of separation of powers, State power is allocated to the three main branches of the State-the Legislative, the Exclusive and the Judicial-in accordance with the nature of particular jurisdictions The principal function of the legislature is to legislate, the Executive to administer the law and, provide day-to-day administration, and the Judiciary to declare the law and apply it in case of conflict Thus in a system of separation of powers a law enacted by the House of Representatives is administered by the Executive, and in case, of dispute as to its legitimacy or range of application, it is de dared and applied by the Judiciary No branch of government assumes responsibility for the whole spectrum of governmental action Excess or abuse of power is expected,[*1496]in a system of separation of powers, to surface in the process and be checked in the interest of the rule of law.

Ordinarily, the doctrine of separation of powers in an incident of the presidential system of government. The State of Cyprus is declared to be “a sovereign Republic with a Presidential regime…”. The Constitution of Cyprus is specifically modelled on them doctrine of separation of the three powers of the State. The assignment and exercise of of jurisdiction by the executive, the legislative and the judicial branches of the State is specifically allocated by separate parts of the Constitution to the Executive the Legislative and Judicial officers of the State. The Courts of Cyprus acknowledged from the early days of the Republic that separation of powers is a basic feature of the Constitution, a feature that pervades every aspect of it. To this division of powers the Courts have consistently adhered in interpreting and applying the Constitution.

Under the Constitution of Cyprus separation of powers is not confined to the three main branches of State power. It extends to a separation of the political from the civil authorities of the State as well. Each power of the State is constitutionally bound to operate within the sphere of its constitutional authority and always subject to the limits of its jurisdiction.

In the interest of autonomy of each power of the State, there are instances of power being conferred by the Constitution not in strict conformity to the pattern of separation of powers. For example, the Judiciary is by virtue of the provisions of Article 163 empowered to make rules of Court, regulating its practice and procedure notwithstanding[*1497]the legislative character of such rules. Departure from the separation of powers enshrined in the Constitution, is only allowed where expressly permitted by the Constitution itself. A fundamental aspect of the doctrine of separation ofpowers, as it finds expression in the Constitution of Cyprus, is that the tenure in office of one power of the State is not dependent on the wish or approval of anyone of the other two powers. The terms of tenure of members of the three powers of the State are regulated, minutely one might say, by the Constitution itself. In all three cases, the Judiciary is the power enstrusted by the Constitution to determine whether a vacancy has occured in any power of the State.

In Attorney-General v. Georghiou the Supreme Court unanimously rejected the submission that ferfeiture of the seat of a Member of the H use of Representatives was a subject for determination by the House itself. The Judiciary, it was decided, is by the terms of the Constitution the power competent to decide the occurrence of a vacancy.

The tenure in office of the President of the Republic is in no way dependent, under the Constitution of Cyprus, on the confidence or approval of the House of Representatives. The Constitution leaves no legislative discretion to the House of Representatives in the matter. The subject is regulated by the express provisions of the Constitution (see Articles 43 and 44).As Members of the House of Representatives hold office under the Constitution, independently and irrespectively of the confidence of the President of the Republic (see Articles 65 and 71 of the Constitution), so does the President; independently, and irrespectively of the confidence and approval of the House. Each of the two political powers of the State is directly accountable to the electorate.

The decision of 29.3.85 the promulgation of which was[*1498]sought by the House of Representatives, flagrantly conflicts with constitutional provisions regulating tenure in office of the President, and defies the separation of powers embodied in the Constitution No legislative power vests in the House of Representatives to regulate the tenure in: office of the President of the Republic.

For the above reasons, the decision of the House of Representatives is, as stated in the opinion of 10th June, 1985, repugnant t and inconsistent with, the separation of the powers of the State embodied in the Constitution of the Republic of Cyprus.

The Rule of Law-Supremacy of the Law:

Counsel for the House of Representatives invited us to keep back from rendering an opinion on the constitutionality of the decision of 293.85 because, in that eventuality, chaos would ensue. It is a submission with far reaching repercussions on the administration of justice that I cannot overlook. Notwithstanding the protestations of counsel for the House of respect for the Court, the above submission was never retracted Jr. effect, we were invited to abstain from the., discharge of our duties contrary to and in breach of our judicial oath The judicial oath, fashioned by the Courts of Justice Law-14/60, to the constitutional position of the Judiciary, binds us to administer justice according the laws and custom of the Republic without fear, favour, prejudice or in will, This is the basis upon which we hold office and exercise our judicial duties. It is the only basis upon which an independent; and impartial Judiciary can function. The terms of service of Judges, as[*1499]well as the judicial oath set out in the Courts of Justice Law, were prescribed by the House of Representatives in conformity to Article 179.1 that lays down that the Constitution is the supreme law of the land.

Another, equally unacceptable submission made by counsel for the House of Representatives, is that we should not give judgment that conflicts with public opinion. The submission implies we should not do justice according to law but according to our appreciation of public opinion. Not only the judicial oath binds us to do justice according to law, but the judicial affirmation given on assuming judicial office too, specifically binds us to apply the Constitution and only those laws compatible therewith. The judicial affirmation as well, was prescribed by the House of Representatives by the enactment of the Courts of Justice Law-14/60 that constitutes the only authentic expression of the wishes of the people of Cyprus as to the administration of justice.

The mission of the Judiciary is to apply the law, as laid down in the Constitution and enactments according therewith, ensuring thereby that State power is exercised according to law. It is through this process that the application of the rule of law is ensured. And, the rule of law is the compass of democratic rule. If we were to administer justice according to our perceptions of public opinion, we would be turning the Judiciary into a rule-making body usurping the legislative power entrusted by the Constitution to the House of Representatives. The House of Representatives are, under the Constitution of Cyprus and subject to it, the custodians of the legislative power. Not only constitutional order but every certainty in the law too, would be destroyed if we were, to act in the manner suggested by counsel for the House of Representatives. And then chaos would result.[*1500]

KOURRIS J.: I had the advantage of reading in advance the judgment of brother judge Pikis in this Reference. I find myself in complete agreement with the above judgment and I associate myself with whatever is stated therein.

The crux of the matter, as explained by Pikis, J., is the nature of the jurisdiction of the Supreme Court under Art.140 and the basis upon which it is exercised. It is beyond doubt that on a reference by the President to the Supreme Court under Art. 140 the Court is dutyboundto decide whether the law or decision transmitted, by the House of Representatives for promulgation is as specified in Art. 140. “… repugnant to or inconsistent with any provision of this Constitution…”.

Obviously the promulgation of a decision is decided solely by reference to its constitutionality And as meticulously explained by Pikis, J., in his judgment the operative part of the decision of the House of Representatives of 29.3.1985 was repugnant to and inconsistent, with Articles 43.1, 44.1 and 179.1.2.

Further the decision of the House of Representatives violates the system of separation of powers provided for in the Constitution and as such it cannot be promulgated; under Art. 52 of the Constitution

Opinion as above.

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