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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 2806
1985 November 7
IN THE MATTER OF ARTICLE 140 OF THE CONSTITUTION
[TRIANTAFYLLIDES, P., MALACHTOS, SAVVIDES, LORIS,
STYLIANIDES, PIKIS, KOURRIS, JJ.]
THE PRESIDENT OF THE REPUBLIC,
Applicant,
v.
THE HOUSE OF REPRESENTATIVES,
Respondent.
(Reference No. 10/85).
Constitutional Law-Constitution, Articles 46, 47, 48(a), 49(a), 54, 58.1, 61 and 179-President of the Republic-Ambit of his powers by virtue of Article 46 and the Law of Necessity-The Ministers and Ministries of the Republic are ten-The Ministry of Education set up by virtue of the Law of Necessity (Law 12 /65) is not one of the said ten Ministries-Apart from the Ministries specifically named in the Constitution and the Ministry of Education set up as aforesaid, the remaining seven Ministries are specified by the President in the exercise of his exclusive competence under Article. 46.
Law of Necessity-Executive Power-President of the Republic-Constitution, Article 46-Since a Vice-President does not take part in the Government, the executive power is ensured by virtue of Article 46 and the Law of Necessity only by the President of the Republic.
On the 26th July 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its Opinion the question of whether the Council of Ministries Law, 1985, is repugnant to or incosistent with, the provisions of Articles 46, 47, 48, 54, 58, 61 and 179 of the Constitution.
Held: (1) From the construction of Article 46 as a whole as well as together with Articles 47(c) 48(a), 49(a) and 58.1 of the Constitution it is derived that the Ministers and Ministries of the Government of the Republic are ten and that the said Articles do not confer power to appoint more than ten Ministers or create more than ten Ministries.
(2) The Ministry of Education created by virtue of the Law of Necessity by Law 12/65 is not one of the said ten Ministries.
(3) Since a Vice-President of the Republic does not take part in the Government the executive power is ensured by virtue of Article 46 and the "Law of Necessity" only by the President of the Republic. Apart the Ministries of Foreign Affairs, Defence and, Finance, which are expressly mentioned in Article 46 and the Ministry of Education created as aforesaid the remaining seven Ministries are specified by the President in the exercise of his exclusive competence under Art. 46.
(4) Consequently the sub judice Law which specifies the said remaining seven Ministries is inconsistent with Articles 46 and 61 and consequently with Article 179 of the Constitution.
Opinion accordingly.
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the provisions of the Council of Ministers and Ministries Law, 1985 is repugnant to or inconsistent with the provisions of Articles 46, 47, 48, 54, 58, 61 and 179 of the Constitution.
L. Loucaides, Deputy Attorney-General of the Republic with N. Charalambous, Senior Counsel of the Republic, for the President of the Republic.
Ph. Clerides with M.: Papapetrou and Chr. Clerides, for the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following opinion of the Court: On the 26th July 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its Opinion the question of whether the Council of Ministers and Ministries Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 46, 47, 48, 54, 58, 61 and 179 of the Constitution.
The said Law was enacted by the House of Representatives on the 20th June 1985.
The President of the Republic, on the 5th July 1985, returned it to the House of Representatives for reconsideration under Article 51 of the Constitution.
On the 11th July 1985 the House of Representatives decided to persist in the enactment of the Law (the text of the Law is attached hereto).
On the 12th July 1985 the House of Representatives notified its decision to the President of the Republic, who, be fore promulgating the Law under Article 52 of the Constitution, filed the present Reference.
The Supreme Court, on the 16th and 17th September 1985, heard, through their counsel, arguments on behalf of the President of the Republic and of the House of Representatives, in accordance with Article 140.2 of the Constitution.
The Supreme Court considered the matter referred to it and its unanimous Opinion is the following:
(1) From the construction of Article 46 as a whole, as well as together with Articles 47(c), 48(a), 49(a) and 58.1 of the Constitution, it is derived that the. Ministers and the Ministries of the Government of the Republic of Cyprus are ten and that the said Articles do not confer power to appoint more than ten Ministers or to create more than ten Ministries.
(2) The Ministry of Education is not one of the ten Ministries which are envisaged by Article 46 of the Constitution as it has been set up, by virtue of the "Law of Necessity", by means of section 5(1) of the "Competence of the Greek Communal Chamber (Transfer of Exercise) and Ministry of Education Law" 1965 (Law 12/65) and is vested with the competence provided for by sections 3, 4 and 5 of Law 12165. The Minister of Education is appointed by the President of the Republic, on the strength of section 6(1) of Law 12/65 and exercises his powers by virtue of section 6(2) of the same Law.
(3) Since a Vice-President of the Republic does not take part in the Government of the Republic of Cyprus the executive power is ensured, by virtue of Article 46 of the Constitution and the "Law of Necessity", only by the President of the Republic. Apart from the Ministry of Foreign Affairs, the Ministry of Defence and the Ministry of Finance, which are expressly named in Article 46 of the Constitution and apart from the Ministry of Education, which has been set up by Law 12/65, the remaining seven out of the ten Ministries which are envisaged by Article 46 of the Constitution are specified by the President of the Republic in the exercise of his exclusive competence under Article 46 of the Constitution.
(4) The sub judice Law specifies, apart from the three Ministries which are expressly named in Article 46 of the Constitution and the Ministry of Education which has. been set up by Law, 12/65, another seven Ministries and by doing so the House of Representatives has interfered in a matter which comes within the exclusive competence of the President of the Republic under Article 46 of the Constitution and which, therefore, is outside the competence of the House of Representatives under Article 61 of the Constitution.
(5) Consequently the sub judice Law, which has been enacted, and must be regarded, as an integral le- gislative entity, is repugnant to, and inconsistent with, Articles 46 and 61 the Constitution and it is as a whole unconstitutional as being repugnant to, and inconsistent with, Article 179 of the Constitution, too.
The present Opinion is notified, in accordance with Article 140.2 of the Constitution, to the President of the Republic and to the House of Representatives.
Opinion as above.
A LAW PROVIDING FOR THE COUNCIL OF MINISTERS AND THE MINISTRIES
The House of Representatives enacts as follows:-
1. The present Law may be cited as the Council of Ministers and the Ministries Law, 1985.
2(1) The Ministries of the Republic which can legally exist are the following:-
a. The Ministry of Defence
b. The Ministry of Agriculture and Natural Resources
c. The Ministry of Justice
d. The Ministry of Commerce and Industry
e. The Ministry of Labour and Social Insurance
f. The Ministry of Interior
g. The Ministry of Foreign Affairs
h. The Ministry of Finance
i. The Ministry of Education
j. The Ministry of Communications and Works
k. The Ministry of Health.
2. Each Ministry is headed by one Minister.