Cylaw

IN RE LADAS AND OTHERS (1985) 3 CLR 2831 THE CYPRUS LAW REPORTS

(1985) 3 CLR 2831

[*2831] 1985 December 27

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

LORIS, STYLIANIDES, PIKIS, KOURRIS, JJ.]

IN THE MATTER OF ARTICLE 149(b)OF THE CONSTITUTION

(A) GEORGHIOS LADAS AND OTHERS,

(B) THE PARLIAMENTARY GROUP OFTHE

DEMOCRATIC PARTY(ΔΗΚΟ) IN THE

HOUSE OF REPRESENTATIVES,

Applicants.

(Case Nos. 1061/85 and 1062/85).

Constitutional Law-Constitution, Articles 135, 149(b), 72, 78.1 and 73.12-The Supreme Constitutional Court Rules of Court, Rule 15(2) (b)-Application far leave to commence proceedings under Article 149(b) for the interpretation, because of ambiguity, of Article 72 regarding the election of the President of the House of Representatives.

The applicants in these two cases seek, under rule 15(2) (b) of the Supreme Constitutional Court Rules of Court, the leave of the Court to commence proceedings under Article 149(b) for the interpretation, because of ambiguity, of Article 72 of the Constitution regarding the election of the President of the House of Representatives.

Held, Pikis and Kourris, JJ. dissenting:

(1) Rule 15(2)(b) of the Supreme Constitutional Court Rules of Court, which were made under Article 135 of the Constitution, lays down that for the commencement of proceedings for interpretation of the Constitution under Article 149(b) in a case such as the present one, there is required the leave of the Supreme Constitutional Court, now the Supreme Court.

(2) It seems that there arises for examination a matter of ambiguity of Article 72 in conjunction with Article 78.1 retarding the election of the President of the House of[*2832]Representatives. Such election is a matter of supreme state importance and the applicants Representatives are directly affected by the interpretation and application of Article 72. In the light of the above the applied for leave is granted to the said Representatives.

(3) There is not granted, however, the leave applied for in Case 1061/85 by the applicants Representatives as constituting the Parliamentary Group of the. Democratic Party in the House of Representatives because such group has not yet been constituted by virtue of Article 73.2 of the Constitution For the, same reason such leave is not granted to the Democratic Party in Case 1062/85.

Order accordingly.

Cases referred to:

Republic v. Charalambos Zacharias, 2 R.S.C.C. 1;

Muderrisoglou and Others v. The Council of Ministers, 5 R.S.C.C. 130.

Application.

Application by the Representatives of the Democratic Party in the House of Representatives and, by the Parliamentary Group of the Democratic Party for leave of the Supreme Court to commence proceedings under Article 149(b) of the Constitution, for the interpretation, because of ambiguity, of Article 72 of the Constitution regarding the election of the President of the House of Representatives.

P. Polyviou with Chr. Triantafyllides, for the applicants.

Ph. Clerides personally as a Representative and for the other Representatives of ΑΚΕΛ – ΑΡΙΣΤΕΡΑ in the House of Representatives and, also, for AKEΛ as a political party which is represented in the House of Representatives.

M. Christophides personally as a Representative and for the others, except Mr. A. Markides, Representatives of the Democratic Rally (ΔΗΣΥ) in the House of Representatives.[*2833]

A. Markides personally as a Representative and for the Democratic Rally (ΔΗΣΥ) as a political party which is represented in the House of Representatives.

E. Efstathiou and D. Eliades personally as Representatives and for the other Representatives of Σ.Κ. ΕΔΕΚ in the House of Representatives and, also, for Σ.Κ. ΕΔΕΚ as a political party which is represented in the House of Representatives.

TRIANTAFYLLIDES P. read the following decision of the Court: In these two cases which were filed, on the 23rd December 1985, before the Supreme Court, which exercises, also, the jurisdiction of the Supreme Constitutional Court, the applicants seek, under rule 15(2) (b) of the Supreme Constitutional Court Rules of Court, the leave of the Supreme Court to commence proceedings, under Article 149(b) of the Constitution, for the interpretation, because of ambiguity, of Article 72 of the Constitution regarding the election of the President of the House of Representatives.

All Representatives who are the applicants (A1 -16) in case 1061/85 are the Representatives of the Democratic Party in the House of Representatives.

Pursuant to directions given by the Supreme Court an opportunity was afforded to all the Representatives of ΑΚΕΛ – ΑΡΙΣΤΕΡΑ of the Democratic Rally (ΔΗΣΥ) and of Σ.Κ. ΕΔΕΚ in the House of Representatives, as well as to ΑΚΕΛ to ΔΗΣΥ and to Σ.Κ. ΕΔΕΚ as political parties which are represented in the House of Representatives, to express their views in respect of the leave which the applicants seek.

The hearing of these cases before the Supreme Court took place on the 24th December 1985 and in relation to both of them there is now given the following unanimous judgment of the majority of the Members of the Court (M. Triantafyllides, A. Loizou, Y Malachtos, D. Demetriades, A. Loris and D. Stylianides):

1. The Supreme Constitutional Court Rules of Court were made under Article 135 of the Constitution and rule[*2834] 15(2) b) of the said Rules of Court lays down that for the commencement of proceedings for interpretation of the Constitution, under Article 149(b) of the Constitution, in a case such as the present one, there is required the leave of the Supreme Constitutional Court, and now of the Supreme Court.

2. It seems that there arises for examination a matter of ambiguity of Article 72 of the Constitution in conjunction, as the applicant Representatives contend, with Article 78.1 of the Constitution, regarding the election of the President of the House of Representatives. The House of Representatives decided unanimously, on the 12th December 1985, to refer the aforesaid matter to the Supreme Court and though such decision was not implemented it was not revoked but was only suspended on the 19th December 1985.

3. The election of the President of the House of Representatives is a matter of supreme state importance and the applicant Representatives are directly affected by the interpretation and application of Article 72 of the Constitution regarding the election of the President of the House of Representatives.

4 In view of all the foregoing the applied for leave of the Court is granted to the applicant Representatives in case 1061/85 for the commencement of proceedings under Article 149 (b) of the Constitution. There is not granted, however, the leave applied for in case 1061/85 by the applicants Representatives as constituting the Parliamentary Group of the Democratic Party in the House of Representatives because. such Group has not yet been constituted by virtue of Article 73.12 of the Constitution, and for the same reason such leave is not granted to the Democratic Party in case 1062/85 which is, consequently, dismissed.

5. The Supreme Court prescribes as follows the further proceedings in case 1061/85:

(a) The application under Article 149(b) of the Constitution on, the part of the applicant Representatives should be filed and served today, through the House of Representatives, on all other Representatives.

b) The hearing of the case is fixed for tomorrow, the[*2835]28th December 1985, at 10 am.

PIKIS J.: The group of Representatives of the Democratic Party, 16 of the 56 Members of the new House of Representatives, applied for leave to file an application for the interpretation of Article 72 of the Constitution that provides for the election of the President of the House.

The application is based on Article 149 (b) of the Constitution that lays down that the Supreme Court has exclusive jurisdiction to interpret the Constitution in case of ambiguity.

The remaining Members of the House, belonging to the other Parties, opposed the application basically for two reasons, because:

(1) The recourse is premature as the House of Representatives is in the process of solving the problem that has arisen in relation to the election of the President of the House, and

(2) The Constitution presents no ambiguity justifying the intervention of the Supreme Court.

The regulation of matters referable to the composition and functioning of the House of Representatives constitute, in their submission, a privilege of the House. The Court would be only justified to render an interpretation of the provisions of Article 149 (b) when the House of Representatives itself as a collective body seeks the interpretation of the Constitution as a necessary prerequisite for the exercise of the powers vested in it under the Constitution.

After due consideration of the subject, here under consideration, I have reached the conclusions recited hereinafter in synopsis. The full text of judgment will be available in a few days; it will be filed with the Registry of the Supreme Court and copies will be distributed to the interested parties:

(1) Article 149 (b) of the Constitution is a substantive provision of the Constitution that specifies the organ of the State with jurisdiction to interpret the Constitution [*2836]in case of ambiguity of its provisions. This competence was assigned to the Supreme Constitutional Court (transferred in 1964 to the Supreme Court under Law 33/64) in contradistinction to other Courts or authorities of the Republic. The absence of any reference in Article 149(b) to litigants and procedural measures was not accidental but aimed to emphasize the jurisdictional character of this article of the Constitution, Comparison of the provisions of Article 149(b) with those of Art. 137, 138, 139, 140, 141, 142, 143, 144, 146 and 147 of the Constitution, that make specific reference to the authorities or persons in whom a right of recourse to the Supreme Constitutional Court was vests and the time within which it must be exercised, reinforces the view that Article 149(b) is exclusively a jurisdiction provision.

(2) In any case it has been decided by the Supreme Constitutional Court in the case of Republic v. Charalambos Zacharia, 2 R.S.C.C., p. 1, that invocation of the jurisdiction for interpretation of the Constitution, is only justified where absolutely necessary for the resolution of a dispute that has arisen, Granting leave, at this stage, while the House of Representatives is in the process of solving the matter of election of President of the House in opposition to the will of the majority of the Members of the House of Representatives, would undermine the self-existence and autonomy of the legislative power and would disturb the principle of separation of powers. In the case of Muderrisoglu and Others v. The Council of Ministers, 5 R.S.C.C., 130, the Supreme Constitutional Court unanimously refused to recognize the Turkish Members of the House as an organ of the Republic and dismissed their application for examination of alleged violations by the council of Ministers of the competence of the House of Representatives. Notwithstanding the fact that the decision was given in a recourse under Article 139 the principles adopted therein in relation to the status of a group of Representatives apply in every other case; no group of Representatives constitutes a separate entity or organ of the State.[*2837]

It was stressed in the above case that Members of the House of Representatives whose rights are prejudiced are not remediless. The Constitution provides mechanism for the protection of the rights of Members of the House and the entrenchment of the rule of law. In the present case no suggestion was made that the rights of the applicants or those of anyone of them were in any sense injuriously affected.

Where the constitutional legislator intended to confer a right of recourse to the Supreme Court on a segment of the House of Representatives independently of the House as a collective organ, it said so expressly as in the case of Article 143 of the Constitution that confers a right on the one fifth of the Representatives of a newly elected House to seek the decision of the Supreme Court as to the existence of “urgent and exceptionally unforeseen circumstances”, justifying the taking of any decision under Article 68 of the Constitution.

(3) The pre-emptive or preliminary interpretation of proof the Constitution is an extraordinary measure justified only in exceptional circumstances Otherwise the role of the Court would be extended far beyond the established framework of its jurisdiction, that is, the resolution of judicial disputes.

It is not the work of the Court to furnish apriori guidance to the other two powers of the State in the exercise of their competence.

(Further reasons for the judgment given on 27.12.85).

In the judgment given on December 27, 1985, I outlined the reasons for refusing leave to 16 Representatives of the Democratic Party to apply, under Article 149 (b), for the resolution of alleged ambiguities in Article 72 of the Constitution, indicating at the same time that comprehensive reasons for the judgment would soon be delivered. In fulfillment of that obligation the following decision is given that should be read as a part of the aforesaid judgment. The brevity of time between reservation of judgment and its delivery made impossible a comprehensive statement of the reasons in support thereof.[*2838]

Leave to apply was mainly refused for three reasons:

(a) Lack of jurisdiction to invoke the provisions of Article 149 (b) outside the framework of extant legal proceedings.

(b) Inamenity to assume jurisdiction under Article 149 (b), unless resolution of an ambiguity in the Constitution is material for the determination of a concrete and definable dispute that has arisen.

A comprehensive exposition of my reasons for the above decision is given below.

ARTICLE 149 (b) OF THE CONSTITUTION-ITS COMPASS AND EFFECT.

Article 149 (b) does not in terms confer a right to seek an interpretation of the Constitution unless resolution of an ambiguity in a constitutional provision is essential for the determination, of a judicial proceeding. The wording used to introduce Article 149 “The Supreme Constitutional Court shall have exclusive jurisdiction”-strongly suggests it is a substantive enactment, solely intended to denote the authority of the State vested with jurisdiction to resolve an ambiguity. Paragraph (b) of Article 149 reads:

“(a) ……………………………………………………………………………

(b) To make, in case of ambiguity, any interpretation of the Constitution due regard being had to the letter and spirit of the Zurich Agreement dated 11th February, 1959 and the London Agreement dated. 19th February, 1959.”

The word “exclusive” aims to indicate the organ of the State possessed of jurisdiction to resolve constitutional ambiguities in contra distinction to any other judicial body or Authority of the State. Observations in decisions of the Supreme Constitutional Court reinforce the view that Article 149 is solely designed to earmark the body vested with, competence to interpret the Constitution in case of ambiguity.[*2839]As much was specifically stressed in Nicos Pelides And The Republic (Council of Ministers and Another).

Article 149 must be read and applied in the context of the constitutional division of judicial power between the Supreme Constitutional Court on the one hand and, the High Court and courts subordinate thereto, on the other. The Supreme Constitutional Court was entrusted with jurisdiction in matters of constitutional and administrative law, while the High Court and courts inferior thereto with jurisdiction in the domain of civil and criminal law. The case of Osman Saffet and Cyprus Palestine Plantations Co. Ltd. and Another, exemplifies the circumstances in, which a valid recourse to the provisions of Article 149 can be made. Reference under Article 149 (b) was made to the Supreme Constitutional Court by a. district court to interpret the provisions of Article 159.3 of the Constitution in view of the ambiguity inherent thereto as to the composition of a civil court where one of the litigants was a juristic entity, that is, a company. An interpretation of the provisions of Article 149.3 was furnished in order to guide the competent judicial, authorities to determine the composition of the district Court. In the Cooperative Grocery of Vasilia Ltd. and Charalambos N. Ppirou and Others, it was made abundantly clear that only the Supreme Constitutional Court was vested with jurisdiction under Article 149 (b) to clarify constitutional provisions fraught with ambiquity to the exclusion of any other Court of the Republic. Article 149 is, it appears to me, a jurisdictional enactment intended to distinguish the judicial body vested with competence to resolve ambiguities in the Constitution to the exclusion of any other Court or Authority of the Republic. The attempt of the constitutional legislator to specify that only a judicial body would have jurisdiction to interpret the Constitution, was not superfluous. Some countries acknowledge jurisdiction to interpret the law to non judicial authorities as, indeed, it is the cast with the Constitutions of Greece of 1952 and 1975, that provide that the authentic interpretations[*2840]of laws is a competence of the legislature.

Article 149 (b) is not an isolated provision in its effect, but conforms to the pattern of separation of powers enshrined in the Constitution, acknowledged by the Supreme Court as “the bass of our constitutional structure”. Consistently with our scheme of separation, of powers under-lying our Constitution, it has been repeatedly held that the interpretative function of the Constitution, and laws made” thereunder, is the exclusive province of the judiciary.

In Re Georghiou I intimated that Article 149 cannot be invoked outside the context of, a substantive conflict. More extensively, the ambit of Article 149 was debated in Attorney-General v. Georghiou. Although there are dicta that tend to suggest that Article 149 (b) may confer adjectival rights too, outside the context of extant legal proceedings, they are obiter because in that case a definite dispute had arisen as to the implementation of a judicial order whereby a Representative was sentenced to, imprisonment. The discussion of Article 149 (b) in the above case revolved primarily round the test for determining an ambiguity.

The only decision that directly supports the proposition that Article 149(b) confers an independent right of recourse, to the Court, is the one given in, Case No. 6162 (unreported) of the Supreme Constitutional, Court, whereby leaves given to the Vice-President of the “Republic to institute a recourse for the interpretation of certain provisions of Article 50 of the Constitution. The case was brought, to our knowledge by the learned President of the Court who had a recollection of the case as he was, at the time, a Member of the Supreme Constitutional Court. Leave was granted upon an ex parte application and as[*2841]we may gather from the record, the range of application of. Article 149 (b) was not at all discussed before the Court. Certainly, the Court did not aim to furnish an authoritative interpretation of the compass and ambit of Article 149 (b).

Moreover, the Rules made by the Supreme Constitutional Court under Article 135 of the Constitution, cannot be read but subject to the constitution. It is subject to this reservation, that r. 15(2) of the Rules must be read and applied. No rule of Court can be enacted beyond the limits of the enabling legislation, in this case Article 149 (b) of the Constitution.

Comparison of Article 149 with other articles found in the same part of the Constitution, Part IX, remove any doubt that might be entertained as to the exclusive jurisdictional character of this article of the Constitution. It is evident from the provisions of Articles 137, 138, 139, 140, 141, 142, 143, 144, 146 and 147 that, where the constitutional legislator intended to confer a right, of recourse to the Court in. furtherance to a particular provisionof the Constitution, it stated this to be the case, expressly. It is no accident that in Article 149 (b) there is total absence of any reference to a right of action.

To my comprehension this is the first case that the Court is required to define the juristic effect of Article 149 (b) of the Constitution. For the reasons indicated above, I am clearly of opinion it is a substantive provision, solely designed to indicate the Authority of the State vested with jurisdiction to resolve ambiguities of the Constitution. It does not confer any independent right of action.

RECOURSE TO THE SUPREME COURT-WHEN JUSTIFIED.

Even if I were to hold that Article 149 (b) made possible invocation of its provisions outside the context of pending legal proceedings, there would still be insuperable obsta35 des to assumption of jurisdiction in this case for the reasons given below.

The principal function of courts of law is the resolution of defined legal disputes. Courts of law are not advice-rendering [*2842]bodies, nor is it their function, under our legal system, to guide anyone in the exercise of his rights. In Republic and P. Loftis the Supreme Constitutional Court emphasized that Article 149 can only be invoked if resolution of a constitutional ambiguity is material for the determination of a particular dispute.

As we have been informed the newly elected House of Representatives is presently engaged in a process of devising, an appropriate solution to the problem that has arisen, that is, the election of the President of the House of Representatives. No decision has been taken on the subject and, therefore, no dispute exists as to the validity of any decision of the House. To grant leave and assume jurisdiction to interpret Article 72 in the absence of any dispute as to the validity of any act of the Representatives or the House, would be-contrary to authority and wholly unjustified.

Further, assumption of jurisdiction, to interpret the Constitution in order to guide the body in opposition to the will of the majority of the Representatives, would undermine the self-existence and autonomy of the House and disturb the principle of separation of powers. Significantly, in Orhan Muderrisoglou And Others and the Council of Ministers, the Supreme Constitutional Court refused to recognise the Turkish Representatives as an organ of the Republic and dismissed their recourse for alleged violation of the competence of the legislature by the Council of Ministers. The principle behind that decision isthat the sovereignty of the legislature is indivisible and cannot be fragmented into its component parts of course, the decision in the above case related to a recourse under Article 149 but the principle adopted applies with equal forceto every other case; namely, that no group of Representatives constitutesa separate entity or an organ of the Republic. In case of violation of their rights the Representatives are not remediless, as, the Court observed in the above case. The Constitution provides approriate mechanism for the[*2843]protection of injured rights of Representatives and the entrenchment of the rule of law. The right of access to the Court, as stated in Attorney Genera1 of Trinidad v. McLeod is safeguarded so long as the judicial system affords a procedure whereby the person interested in, establishing the invalidity of a purported law or decision can have recourse to the courts of justice “in which the plenitude of the judicial power of the State is vested” for a declaration of invalidity that will be binding on the legislature.

Where the constitutional legislator intended to confer on a segment of the House a right of action, independently of the collective will of the Representatives, it said so expressly in the Constitution, as in the case of Article 143.1 that vests a right on one fifth of the Members of a newly-elected House to have recourse to the court in order to ascertain whether “…. there exist such urgent and exceptional unforeseen circumstances as to justify a House of Representatives which continues to be in office until the assumption of office of a newly-elected House to make any laws or take any decisions as in Article 68 provided.”

To recapitulate, even if Article 149 (b) made possible recourse to the Court, independently and outside the context of existing legal proceedings, there would be no justification, for the reasons indicated above, to assume jurisdiction to provide an interpretation of Article 72 in the circumstances of this case.

APRIORI INTERPRETATION OF THE CONSTITUTION.

The apriori interpretation of the provisions of the Constitution by the judicial Authorities, is, by its nature, an extraordinary measure to which resort could only be had in exceptional circumstances. Such apriori interpretation is not intrinsically a judicial function but opinion rendering, ordinarily the task of legal advisers. The Courts declare the law in order to resolve a dispute as to the validity or justification of a given act, decision or action and, then, remedy any deviation from the law or infringement of[*2844]rights given by law. This is the framework of judicial action.

It is not the function of the Courts to guide the other two powers of the State-the Legislature and the Executive-in the exercise of their respective competence; f this were to happen we would come close o government by the courts, a position contrary to the spirit and letter of the Constitution. Members of both the Legislature and the Executive give, before assuming office, an affirmation of respect for the Constitution and laws made thereunder (see Articles 69 and 59.4, respectively). We cannot but presume consistently with the presumption of legality that they will operate within the limits of their power and in accordance with the Constitution, and laws made thereunder. Therefore, to assume jurisdiction to guide them in the discharge of their duties by furnishing an apriori interpretation of provisions of the Constitution, as required in this case, would be nothing less than a denial of this presumption in the case of Members of the House of Representatives.

If we were to entertain the present application, we would be establishing a very dangerous precedent involving the acknowledgment of a right to a minority of members of collective organs of the State, such as the House of Representatives and the Council of Ministers, to have recourse to the Court with a view, to forestalling what they foresee to be a decision disagreeable to them. Such a precedent would undermine, I repeat, the sovereignty and autonomy of the other two powers of the State to the detriment of the doctrine of separation of powers.

KOURRIS J.: I agree with the judgment of Pikis, J., and for same reasons I dismiss the application for leave to file a recourse under Article 149(b) of the Constitution.

I am of opinion, in agreement with Pikis, J., that granting leave under the circumstances of the present case would create an unjustified precedent in the exercise of State powers.

Order accordingly.

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