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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 1361
1983 December 30
[PIKIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
PANAYIOTIS CHRISTODOULOU AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
1. THE COUNCIL OF MINISTERS,
2. THE MINISTER OF FINANCE.
Respondents.
(Case No. 357/82).
Pensions Law, Cap. 311—Section 17(3) of the Law as amended by Law 2/81—Public Officers—Army Service—Recognition for pension purposes—Pension rights—Adjusted in a manner recognising army service as from the date of enactment of Law 2/81 but not earlier.
Constitutional Law—Principle of equality—Article 28 of the constitution—Notion of equality a relative concept application of which inevitably depending upon the realities prevailing at anyone time and the need to treat equally those in substantially the same position—Section 17(3) of the Pensions Law, Cap. 311 (as amended by Law 2/81) making a distinction between serving public officers and retired public officers regarding mode of adjustment of pension rights emanating from army service—Not contrary to the above Article.
Following the amendment of section 17 of the Pensions Law, Cap. 311, by means of Law 2/81, in a way purporting to recognise army service of public officers for pension purposes, the applicants, 17 ex public officers who had retired prior to the enactment of Law 2/81, requested from the Minister of Finance that pension rights that vested prior to the passing of the law should be adjusted in accordance with the spirit of Law 2/81 in the name of equality of treatment.
The Minister, relying on the provisions of Law 2/81, turned down the request; and hence this recourse in which the, following issues arose for consideration:
(a) Whether the Minister wrongly interpreted Law 2/81.
(b) Whether Law 2/81 was unconstitutional, as being contrary to Article 28 of the Constitution because it made an arbitrary distinction or differentiation between rights of public officers with an army service who retired before its enactment on the one hand and those expected to retire subsequent to its enactment on the other.
Held, (1) that the plain provisions of section 17(3) of the Pensions Law, Cap.311 (as amended by Law 2/81) make it abundantly clear that pension rights of public officers with army service should be adjusted in a manner recognizing their army service as from the date of the enactment of the law but not earlier; that pension rights that accrued prior to the enactment of Law 2/81 remained unaltered by its provisions; accordingly the refusal of the Minister to recognise such service was unquestionably dictated by the provisions of. Law 2/81.
(2) That the notion of equality is of necessity a relative concept the application of which inevitably depends upon the realities prevailing at any one time and the need to treat equally those in substantially the same position; that there is room for distinguishing between the rights of serving public servants and those who retired; that similarity of circumstances is necessarily related to the time factor and their appreciation at any one time; that it was neither arbitrary nor intrinsically unjust for the law makers to leave accrued rights unaffected by the new law; that it was a distinction the legislature could validly make in the exercise of its powers; accordingly Law 2/81 cannot be faulted for, infringement of the principle of equality embodied in Article 28 of the Constitution.
Application dismissed.
Cases referred to:
Santis and Others v. Republic (1983) 3 C.L.R. 423;
Papaxenofontos and Others v. Republic (1982) 3 C.L.R. 1037;
Mikrommatis v. Republic, 2 R.S.C.C. 125;
Constantinou v. Republic (1966) 3 C.L.R. 572;
Kalisperas and Another v. Republic (1973) 3 C.L.R. 109;
Republic v. Demetriades (1977) 3 C.L.R. 213;
Apostolides and Others v. Republic (1982) 3 C.L.R. 928 at p.p.941;
Republic v. Arakian (1972) 3 C.L.R. 294.
Recourse.
Recourse against the refusal of the respondents to adjust applicants' pension rights that vested prior to the passing of Law No. 2/81 in accordance with the spirit of the Law.
Chr. Triantafyllides, for the applicants.
S. Georghiades, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
PIKIS J. read the following judgment. The arduous efforts of public officers who served in the army during the second world war for the recognition of their army service for purposes of pension were met with success in 1981 with the enactment of Law 2/81, amending the Pensions Law, Cap.311 in virtue of s.2 of the 1981 Act, s.17 of the main law was amended in a way purporting to recognise army service of public officers for pension purposes. The law did not, it seems, satisfy the expectations of those public officers with army service who, retired prior to the enactment of the law, for it did not re-adjust pension rights that accrued prior to the enactment of the law but was prospective in content bringing about changes in the computation of pension as from the date of its enactment but not earlier. Under the provisions of s.17 (3) Cap.311 (as amended) only pension rights that accrued or would accrue as from the date of the enactment of the law and subsequently would, be adjusted in a way fully heeding army service during the second world war of public officers for pension purposes. Thus pension rights that vested prior to the enactment of the law were left intact.
The applicants, 17 ex public officers who retired prior to the enactment of the law, addressed a letter to the Minister of Finance requesting that pension rights that vested prior to the passing of the law should be adjusted in accordance with the spirit of Law 2/81 in the name of equality of treatment. The Minister answered in the negative in view of the provisions of Law 2/81. A vague attempt was made in these proceedings, on behalf of applicants, to argue that the Minister wrongly interpreted the law. In support of this submission they relied on the decision of this Court in Santis and Others v. The Republic, (1983) 3 C.L.R. 423, a case on the interpretation of the Pensions Law, 49/80, establishing a right to pension, inter alia; of parliamentarians and their families. I am of opinion that the case of Santis can lend no support to the submission of applicants. All it decided somewhat relevant to this case is that the law does not forfeit its prospective character by making entitlement to benefits dependent on events that materialized in the past. The plain provisions of s. 17(3) Cap. 311, (as amended by Law 2/81, make it abundantly clear that pension rights of public officers with army service should be adjusted in a manner recognizing their army service as from the date of the enactment of the law, but not earlier. Pension rights that accrued prior to the enactment of the law remained unaltered by its provisions. Unless the law is for any reason bad for unconstitutionality, the refusal of the Minister to recognize such service was unquestionably dictated by the provisions of Law 2/81. There remains to consider whether the law was unconstitutional in view of the provisions of Article 28 of the Constitution, particularly that part safeguarding equality before the law.
In the submission of applicants forshadowed in their application and, expounded before me in their written address, Law 2/81 is unconstitutional because it makes an arbitrary distinction or differentation between the rights of public officers with an army service who retired before the enactment of Law 2/81 on the one hand and those expected to retire subsequent to its enactment on the other. The distinction is invidious to the rights safeguarded by Article 28 in as much as the law treats unequally persons in substantially the same position. Officers who retired before the enactment of the law as well as those who will retire subsequent to its introduction have similar claims to an enhanced pension, for both classes served in the public service as well as in the army during the second world war. Especial emphasis was laid on the decision of the Supreme Court in Papaxenofontos and Others v. The Republic, (1982) 3 C.L.R. 1037 delivered by Stylianides, J. deciding that s. 7 of the Pensions (Secondary School Teachers) Law—as amended by Law 40/81; and regulations 16(8) and 31 of the Pension Regulations— as amended by regulations 3 and 7 of the Pensions (Amendment) Regulations 1981 were unconstitutional to the extent that they excluded, without objective justification, civil servants and school teachers of secondary education who retired under the provisions of s.3 of the Compensation (Entitled Officers) Law, 1962. The distinction made was unwarranted for the circumstances of the excluded class of public servants were similar to those who benefited by the law. Leaving them out was arbitrary and resulted in injustice that should not have tainted the law. The amended law and regulations conferred an option to retired public servants exercisable after the enactment of the law that was denied to a small class of public servants who left the service after the provisions of the 1962 legislation notwithstanding their re-appointment in the service. The law did not seek to adjust retrospectively the rights of retired officers but only from the date of the enactment of the law. Reference is made in the submission of counsel for applicants to numerous authorities explaining the principle of equality under Article 28 and illustrating its application to diverse circumstances. The interpretation of Article 28 of the Constitution has concerned the Courts of the Republic it seems to me, more than any other article of the Constitution. The principles underlying its application have emerged over the years through the case law fairly clearly in a way making it unnecessary to refer to its application in particular cases. (See the cases of Mikrommatis v. The Republic, 2 R.S.C.C. 125; Constantinou v. The Republic, (1966) 3 C.L.R. 572; Kalisperas and Another v. Republic, (1973) 3 C.L.R. 109; and Republic v. Demetriades, (1977) 3 C.L.R. 213.
As I had occasion to observe in Apostolides and Others v. The Republic, (1982) 3 C.L.R. 928 at p. 941, Article 28 imports the notion of equality in the Aristodelian sense, i.e. equality between things equal in themselves, judged from the view point of their character and properties. In contradistinction to mathematical or geometrical equality, equality between the objects compared need not be absolute; in other words equality under Article 28 is a relative concept instrumental to ensuring justice among citizens. Law-makers and administrators should not make arbitrary distinctions offensive to justice between men. Such distinctions erode the principle of equality and respect for the law. Several tests have been propounded by judges and authors to determine whether a particular law makes unequal provisions respecting the rights of citizens One such test elicited in Basu's Commentary on the Constitution of India, 6th edn. Vol. 8 1978, 172, purports to resolve the issue by seeking answer to two questions: The first concerns the rationality underlying the classification, particularly whether it is based on an intelligible differentiation. The second relates to the nexus of the differentiation to the avowed policy and objects of the law. If the classification is rational in the above sense and relevant to the policy of the law, the Act must be proclaimed valid; otherwise it must be struck down as unconstitutional.
In making comparisons we must be guided by common sense and the experience of mankind. Article 28 is not intended to impose unreasonable limitations upon legislative discretion. After all, they are in a unique position to appreciate social need and direct legislative effort where it is mostly needed. Article 28 and similar provisions of the Constitution aid to establish legislative norms that must be adhered to in order to sustain conformity to the wider aims of the law, one of which is to treat equally those that broadly speaking are similarly circumstanced.
The cases establish that in matters of fiscal policy and in the management of financial affairs in general the latitude to make distinctions, at time face ones, is particularly wide because of the nature of the subject. Economic management is invariably related to the means of the State and long term policies.
The ultimate question upon which the constitutionality of Law 2/81 turns is this: Were there valid reasons for distinguishing between the pension rights of public, servants with .army service who retired before the enactment of the law and those expected to retire after its enactment? That the similarities and common properties in the position of the two groups is great cannot be doubted; both classes served in the public service as well as in the army. On authority there is room for distinguishing between the rights of serving public, servants and those who retired. In Republic v. Arakian and, Others, (1972) 3 C.L.R. 294, the Supreme Court identified legal and factual differences respecting serving and retired public officers that may be reflected without offending Article 28.1 in the benefits receivable from the State by each one of the two classes. Admittedly the decision concerned the distinction between the rights of serving officers as compared to those who retired and not the pension rights of public officers who retire at different dates.
The present case raises a more fundamental issue that primarily revolves round the ambit of the notion of equality under Article 28. Does it import equality at the present time between persons similarly circumstanced or does it import equality at all times present as well, as past? There is no doubt that all officers who retired prior to the enactment of Law 2/81 with army service are equally treated by the law. Furthermore, there is no doubt that all officers who shall retire after the enactment of the law will again be equally treated. The pertinent question is whether the benefits of the two classes of retiring officers should be determined independently of the date of their retirement.
The notion of equality is of necessity a relative concept the application of which inevitably depends upon the realities prevailing at any one time and the need to treat equally those in substantially the same position. Primarily it aims to ensure equality before the law at any one time. Any other interpretation would make economic planning impossible and hinder the evolution of the law along lines justified by present day realities. Any other approach would inevitably keep one eye of the legislature cast back on the implications of its legislative policy upon events past. The legislative presumption that accrued rights remain unaffected by changes in the law enshrined in s.10(2) of the Interpretation Law, Cap. 1 (see also Law 42/62) reflects a basic principle of the law that there must be certainty about its provisions and that rights accruing under the legislation will remain unaffected by subsequent changes in the law. If the notion of equality applied without distinction to accrued rights and rights to accrue after the enactment of a given law it would entail a never ending process of exploration of events past. And then it would be very doubtful if equality could be ensured given changes that inevitably occur in the nature of things over the years. In my judgment similarity of circumstances is necessarily related to the time factor and their appreciation at any one time. It was neither arbitrary nor intrinsically unjust for the law makers to leave accrued rights unaffected by the new law. It was a distinction the legislature could validly make in the exercise of its powers. The law cannot be faulted for infringement of the principle of equality embodied in Article 28 of the Constitution.
In the result the recourse dismissed. There will be no order as to costs.
Recourse dismissed with no
order as to costs.