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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 1514
1985 April 18
[TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS,
DEMETRIADES, SAVVIDES, LORIS, STYLIANIDES, PIKIS,
KOURRIS, JJ.]
IN THE MATTER OF ARTICLE 139
OF THE CONSTITUTION
THE PRESIDENT OF THE REPUBLIC,
Applicant,
v.
THE HOUSE OF REPRESENTATIVES,
Respondent.
(Recourse No. 431/85).
Cyprus Problem-Decision of the House of Representatives calling upon the President of the Republic to proceed forthwith to proclaim a Presidential election-Recourse by President of the Republic, under Article 139 of the Constitution, for a decision of the Court that the above decision is void ab initio and without any legal effect whatsoever- No "conflict of power or competence" between the President of the Republic and the House of Representatives because the sub judice decision had not been promulgated under Article 52 of the Constitution, prior to the filing of the Recourse-Any contest which might arise as a result of the sub judice decision relates to the handling of the Cyprus Problem, which, due to its nature, is outside the framework of the Constitution of Cyprus-Therefore such contest cannot come within the provision of Article 139 of the Constitution because the Supreme Court cannot exercise the jurisdiction, under the above Article in relation to matters which are outside the framework of the Constitution-And has, therefore, no jurisdiction to adjudicate on the subject-matter of the recourse-Sections 9(a) and 11(1) of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Low 33/64).
Composition of the Court-Exemption from.
On the 9th April 1985 the President of the Republic filed in the Supreme Court, under Article 139 of the Constitution, this Recourse for "a Decision of the Court that 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 void ab initio and without any legal effect whatsoever".
Held, per Triantafyllides P., A. Loizou, Malachtos, Demetriades, Savvides, Loris and Stylianides, JJ. Pikis and Kourris JJ., dissenting, (1) that there does not arise in any event, in the present instance a "conflict of power or competence" between, the President of. the Republic and the House of Representatives because the sub judice Decision of the House of Representatives, dated 29th March 1985; had not been promulgated by publication in the official Gazette of the Republic, under Article 52 of the Constitution, prior to the filing of this Recourse; that the non-promulgation, however, of such Decision could not prevent a "contest of power or competence" from arising between the President of the Republic and the House of Representatives, assuming that such contest could be found to exist in the light of the circumstances of this particular case.
(2) That any such contest which might arise as a result of the sub judice Decision of the House of Representatives, dated 29th March 1985, relates, in view of the contents of that Decision, to the handling of the Cyprus Problem, which, due to its nature, is outside the framework of the Constitution of Cyprus; and, that, therefore, such contest cannot come within the provisions of Article 139 of the Constitution, because the Supreme Court, which is exercising, by virtue of sections 9(a) and 11(1) of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64), the jurisdiction of the Supreme Constitutional Court under Article 139 of the Constitution, cannot exercise this jurisdiction except in relation to matters coming within the framework of the Constitution of Cyprus and it cannot do so in relation to any matter, such as the Cyprus Problem which, by its nature, is outside the framework of the Constitution and that, consequently, the Supreme Court has no jurisdiction to adjudicate on the subject-matter of the present recourse (reasons set out in the majority Opinion of the Supreme Court, dated 10th June 1985, in Reference No. 1/85, as well as the supplementary reasons given for such Opinion to-day-reported at p. 1429 ante treated as being incorporated in this decision).
Decision as above.
Recourse.
Recourse by the President of the Republic under Article 139 of the Constitution for a declaration of the Court that the 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 void ab initio and without-any legal effect whatsoever.
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. Clerides, 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 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 of the Supreme Court has been withdrawn.
10th June, 1985.
TRIANTAFYLLIDES P. read the following decision of the Court. On the 9th April 1985 the President of the Republic filed in the Supreme Court, under Article 139 of the Constitution, the present Recourse for "a Decision of the Court that 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 ease he does not comply with the Resolution of the House dated 22nd February 1985, is void ab initio and without any legal effect whatsoever."
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 challenging 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 the Court heard the arguments of counsel for the President of the Republic and the House of Representatives on 5 June 1985.
The unanimous Decision of the majority of the Members of the Supreme Court (M. Triantafyllides, A. Loizou, Y Malachtos, D. Demetriades, L. Savvides, A. Loris and D. Stylianides) is the following:
For the reasons set out in the attached hereto today's Opinion of the Supreme Court in Reference No. 1/85 any contest of power or competence between the President of the Republic and the House of Representatives, in relation to the handling of the Cyprus Problem, which might arise as a result of the sub judice Decision of the House of Representatives dated the 29th March 1985, does not come within the provisions of Article 139 of the Constitution of the Republic of Cyprus, because the Cyprus Problem, due to its nature, is outside the framework of the Constitution and, therefore, the Supreme Court has no jurisdiction to adjudicate on the subject-matter of the present Recourse.
This Decision is notified, in accordance with Article 139.6 of the Constitution, to the President of the Republic and the House of Representatives.
PIKIS J.: The Supreme Court is required under Art. 139.1 of the Constitution to determine whether the decision of the House of Representatives, dated 29th March, 1985, considered in conjunction with the request of the House of Representatives for its promulgation is constitutionally valid.
2. The President of the Republic had recourse to the Supreme Court because his right to remain in office to which he was elected by universal suffrage in accordance with Art. 39 of the Constitution is contested. It is the case for the President that the demand of the House of Representatives to comply with its decision or else proclaim a presidential by election is repugnant to and inconsistent with Art. 44.1 of the Constitution that prescribes exhaustively the circumstances under which the President resigns or falls from office and the provisions of Art. 43.1that safeguard a five-year tenure in the office of the President.
3. In accordance with the caselaw of the Supreme Constitutional Court, contest of power or competence confers a right to have recourse to the Supreme Court under Art. 139.1 to the President or any other organ or authority of the Republic whose powers or competence are contested.
4. For the reasons indicated in my opinion in the reference of the President of the Republic 1/85 for adjudication upon 6the constitutionality of the decision, I concluded that the sub judice decision is void and of no legal effect because it is repugnant to and inconsistent with Articles 43.1, 44.1 and 179 of the Constitution and, because it conflicts with the principle of separation of State powers established by the Constitution. And, for these reasons it cannot be promulgated. In exercise of the powers vested in the Supreme Court by Art. 139.5 I resolve that the sub judice decision of the House of Representatives, set out in para. 3 of the decision of the House of Representatives of 29th March, 1985, is void and of, no legal effect.
5. The reasoning of this decision m its entirety will be given the soonest possible and in any event before the 30th June, 1985. The judgment will be deposited with the Registry of the Supreme Court for the publication in the Law Reports. Copies will be distributed to the interested par ties.
KOURRIS J.: I have very carefully read in advance the judgment of brother Judge Pikis in this Recourse.
I find myself in complete agreement with the above Judgment and I associate myself with whatever is stated therein.
29th June, 1985.
TRIANTAFYLLIDES, P. read the supplementary reasons for the decision of the Court. When the Supreme Court, on the 10th June 1985, gave, by majority, its Decision 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 present Recourse was made by the President of the Republic under Article 139 of the Constitution, which reads as follows:
"1. The Supreme Constitutional Court shall have jurisdiction to adjudicate finally on a recourse made in connexion with any matter relating to any conflict or contest of power or competence arising between the House of Representatives and the Communal Chambers or any one of them and between any organs of, or authorities, in, the Republic:
Provided that nothing in this paragraph contained shall apply to any conflict or contest between any courts or judicial authorities in the Republic, which conflict or contest shall be decided by the High Court.
For the purposes of this paragraph the expression courts or judicial authorities in the Republic does not include the Supreme Constitutional Court
2. Where any question arises as to the competence of the Supreme Constitutional Court regarding any matter, such question shall be determined by the Supreme Constitutional Court.
3. Recourse to the Court under paragraph 1 of this Article may be made by -
(a) the President or the Vice-President of the Republic; or
(b) the House of Representatives; or
(c) one of, or both the Communal Chambers; or
(d) any other organ of, or authority in, the Republic, if involved in such conflict or contest.
4. Such recourse shall be made within thirty days of the date when such power or competence is contested.
5. Upon such a recourse the Court may declare that the law or the decision or the act, the subject of the recourse, is void, either from the time when the conflict or contest arose or ab initio, and without any legal effect whatsoever, either in whole or in part, on the ground that such law or decision or act was made or taken or done without power or competence, and in either case the Court may give directions as to the effect of anything done or left undone under such law or decision or act.
6. Any decision of the Court upon such recourse shall be forthwith notified to the parties concerned and to the President and the Vice-President of the Republic who shall forthwith publish it in the official Gazette of the Republic.
7 Upon a recourse under this Article the Court may order that the operation of the law or decision or act, as the case may be, which is the subject matter of such recourse, shall be suspended until the determination of the recourse; such order shall be published forthwith in the official Gazette of the Republic."
In the opinion of the Court there does not arise, in any event, in the present instance a "conflict of power or competence" between the President of the Republic and the House of Representatives because the sub judice Decision of the House of Representatives, dated 29th March 1985, had not been promulgated by publication in the official Gazette of the Republic, under Article 52 of the Constitution, prior to the filing of this Recourse. The non-promulgation, however, of such Decision could not prevent a "contest of power or competence" from arising between the President of the Republic and the House of Representatives, assuming that such contest could be found to exist in the light of the circumstances of this particular case.
Any such contest which might arise as a result of the sub judice Decision of the House of Representatives, dated 29th March 1985, relates, in view of the contents of that Decision, to the handling of the Cyprus Problem, which, due to its nature, is outside the framework of the Constitution of Cyprus.
In our opinion, therefore, such contest cannot come within the provisions of Article. 139 of the Constitution, because the Supreme Court, which is exercising, by virtue of sections 9(a) and 11(1) of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64), the jurisdiction of the Supreme Constitutional Court under Article 139 of the Constitution, cannot exercise this jurisdiction except in relation to matters coming within the framework of the Constitution of Cyprus and it cannot do so in relation to any matter, such as the Cyprus Problem which, by its nature, is outside the framework of the Constitution.
Of course, the Supreme Court has occasionally to deal with difficulties caused by the Cyprus Problem in relation to the application of specific provisions of the Constitution, but it cannot adjudicate under Article 139 in respect of the Cyprus Problem as such or its handling, as the Cyprus Problem is outside the framework of the Constitution.
Consequently, the Supreme Court has no jurisdiction to adjudicate on the subject-matter of the present Recourse.
In these supplementary reasons are to be treated as being incorporated the reasons set out in the majority Opinion of the Supreme Court, dated 10th June 1985, in Reference No. 1/85, as well as the supplementary reasons given for such Opinion today.
PIKIS J.: Article 139 of the Constitution provides for the judicial resolution of conflicts or contests of power or competence arising between any organs or authorities of the Republic, and that undoubtely includes the President of the Republic, and the House of Representatives. The right of the President of the Republic to have recourse to the Supreme Court is expressly safeguarded by para. 3(a) of Art. 139.
The object of Art. 139 is to establish appropriate machinery for the effective maintenance of constitutional order.
By the express provisions of Art. 139 jurisdiction is vested in the Supreme Court to take cognizance of and resolve every question involving a dispute or contest of power or competence conferred to an organ or authority of the Republic by the Constitution.
By the operative part of the decision of the House of Representatives of 29.3.1985 the authority and right of the President of the Republic to remain in office safeguarded by Articles 43.1 and 44.1 is disputed in contravention to the provisions of Art. 179.2 prohibiting the House of Representatives from taking any decision repugnant to or inconsistent with any of the provisions of the Constitution. Consequently, the authority and competence of the President of the Republic to remain in office, as laid down in the Constitution, is contested. And a conflict has arisen as to the power and jurisdiction of the House of Representatives to decide on the matter. The Supreme Court is constitutionally bound to resolve the matter as provided in Art. 139.
For the reasons given in my judgment in Reference 1/85 delivered to-day, that is adopted and should be read as part of this judgment, the sub judice decision is void and of no legal effect.
KOURRIS J.: For the reasons indicated in my judgment in Reference 1/85 and that of Pikis, J in Reference 1/85, and the judgment of Pikis, J. in this recourse, the sub judice decision of the 29.3.1985 of the House of Representatives is void and of no legal effect.
Decision as above.