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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1981) 3 CLR 610
1981 July 25
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS L. LOIZIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF INTERIOR,
Respondent.
(Case No. 242/81).
Provisional Order-Rule 13 of the Supreme Constitutional Court Rules-Judgment of this Court annulling respondent's decision not to exempt applicant from service in the National Guard -Respondent not complying with judgment and refusing to exempt applicant on the ground that the judgment was erroneous-Thus acting without any authority or competence at all as an appeal tribunal from the judgment of a Judge of this Court-Provisional order directing discharge of applicant from the National Guard pending the determination of a recourse against such refusal.
Constitutional Law-Judgment of the Supreme Court in a recourse under Article 146(1) of the Constitution-Compliance of the Administration with-Article 146(4) and (5) of the Constitution- Whether administration may refuse to comply with judgment by treating it as erroneous.
By means of judgment given in recourse No. 170/80 the Court annulled the decision of the respondent Minister not to exempt the applicant from service in the National Guard on the ground that it had been wrongly found, because of a misconception, that the applicant did not possess more than three dependants, namely his wife, his two minor children and his mother. After the delivery of this judgment Counsel for the applicant demanded compliance with it by means of a letter dated April 3, 1981 (see Article 146.5 of the Constitution). Respondent failed to comply with the above judgment and on June 22, 1981 a negative reply was given to applicant. As a result applicant filed the above recourse together with an application for a provisional order directing his discharge from the ranks of the National Guard pending the final determination of the recourse.
The sub judice decision in the present proceedings was reached, not only after a re-examination, by an Advisory Committee in the Ministry of. Interior, of the case on the basis of a further social economical report of the Welfare Office, but, also, because the said Committee took the view that the decision of the Judge of this Court who determined Case No. 170/80 was erroneous. Though an appeal could be filed against this judgment this has not been done.
On the application for a provisional order:
Held, that the Advisory Committee acted, thus, in effect, without any authority or competence at all, as an appeal tribunal from the judgment of a Judge of this Court; that, therefore, and as there has been no appearance today on behalf of the respondent, this Court has decided that the proper course is to grant a provisional order under rule 13 of the Supreme Constitutional Court Rules of Court, directing that the applicant should be discharged from the ranks of the National Guard pending the determination of the present recourse.
Application granted.
Cases referred to:
Loizides v. The Republic (1981) 3 C.L.R. 103.
Application for a provisional order.
Application for a provisional order directing applicant's discharge from the ranks of the National Guard pending the final determination of a recourse against the refusal of the respondent to discharge him.
A. Papacharalambous with C. L. Clerides, for the applicant.
No appearance for the respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following decision. By means of this recourse the applicant seeks the annulment of the refusal of the respondent-which was communicated to him by a letter dated June 22, 1981-to discharge him from the ranks of the National Guard on the ground that he has more than three dependants.
The applicant has, filed on July 20, 1981, together with his recourse, an application for a provisional order directing his discharge from the ranks of the National Guard pending the final determination of the recourse.
Copies of the recourse and of the said application, as well as of an affidavit sworn by the applicant on July 14, 1981, in support of the application, were served on the respondent on July 22, 1981, but no appearance was entered today on behalf of the respondent.
The applicant filed previously another recourse regarding the same matter, No. 170/80, in which judgment was given by Malachtos J. on March 7, 1981 (see Loizides v. The Republic, (1981) 3 C.L.R. 103).
By means of that judgment the decision of the respondent Minister not to exempt the applicant from service in the National Guard was annulled on the ground that it had been wrongly found, because of a misconception, that the applicant did not possess more than three dependants, namely his wife, his two minor children and his mother.
After the delivery of the said Judgment counsel for the applicant demanded compliance with it, by means of a letter dated April 3, 1981.
It is pertinent to point out, at this stage, that, under Article 146.5 of the Constitution, such judgment was binding on all organs or authorities of the Republic and it should have been given effect to, and acted upon, by the Minister concerned, who is the same one as the respondent Minister in the present case.
The period prescribed under Article 29 of the Constitution, namely thirty days, lapsed without an answer being given to the letter of April 3, 1981, and without compliance with the aforementioned judgment. Eventually, a negative reply was given on June 22, 1981, and as a, result the present recourse was filed.
I have before me a copy of relevant minutes dated May 29, 1981, of an Advisory Committee in the Ministry of Interior- which were produced by counsel for the applicant-and it appears from these minutes that the sub judice in the present proceedings, decision was reached, not only after a re-examination of the case on the basis of a further social economical report of the Welfare Office, but, also, because the said Advisory Committee took the view that the decision of the Judge of this Court who determined case No. 170/80 was erroneous; the Committee acted, thus, in effect, without any authority or competence at all, as an appeal tribunal from the judgment of a Judge of this Court; and there should be observed that though an appeal could have been filed against such judgment this has not been done.
In the light of all the foregoing, and as there has been no appearance today on behalf of the respondent, I have decided that the proper course is to grant a provisional order under rule 13 of the Supreme Constitutional Court Rules of Court, directing that the applicant should be discharged from the ranks of the National Guard pending the determination of the present recourse. The making of this provisional order does not, in any way, prejudge the mode of the eventual determination of the recourse and the respondent may show, if he wishes, cause why the provisional order which has been made today should not remain in force; and this case is, therefore, fixed, for this purpose, on August 25, 1981, at 9.30 a.m. Of course, in the meantime, the respondent has to comply with such provisional order.
Application granted.