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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 2151
1985 September 21
[TRIANTAFYLLIDES, P., MALACHTOS, DEMETRIADES,
LORIS, STYLIANIDES, PIKIS, KOURRIS, JJ.]
THE PRESIDENT OF THE REPUBLIC,
Applicant.
v.
THE HOUSE OF REPRESENTATIVES,
Respondents.
(Reference No. 3/85).
Constitutional Law-Constitution-Articles 61, 54(a), 58, 81,116,167 and 179-Casual Employees-Engagement of, in the Public and Education Service-A law which generally prohibits such engagement and at the same time regulates the engagement in a manner deviating from the general prohibition, reserving, however, to the House of Representatives the power to prohibit any intended engagement by law to be passed for such purpose whilst providing that if such law is not passed within a specified period, the executive may under certain terms or conditions proceed withthe engagement is not repugnant to or inconsistent with any of the said Articles of the Constitution.
House of Representatives-Ambit of its powers by virtue of Article 61 of the Constitution.
Council of Ministers-Executive in general-Ambit of powers under Articles 54(a) 58, 81, 116, 167 of the Constitution.
On the 19th July 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its Opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 54, 58, 61,81, 116, 167, 168.1 and 179 of the: Constitution. (The text of the sub judice law is quoted at. pp. 2155-2156).
Held, Pikis and Kourris, JJ. dissenting:
(1) By the provisions of paragraphs (a) and (b) of subsection 3(1) and of subsection 3(2) of the sub judice law there is being regulated the engagement of casual employees in deviation from the general prohibition of such engagement prescribed by subsections 3(1) and 3(3) of the same law.
(2) The refusal of the House of Representatives to allow in any particular case the engagement is manifested by a law, enacted for this purpose.
(3) The aforesaid provision of subsection 3(1) (2) and (3) of the sub judice law constitute an exercise of legislative power of the House of Representatives within the Iimits of Article 61of the Constitution and do not fall within the ambit of any exclusive competence of the Council of Ministers by virtue of Article 54(a) of the Constitution or in general of he executive power by virtue of Articles 58, 81, 116,167 and 168.1 of the Constitution.
(4) It follows that the sub judice law is not repugnant to or inconsistent with any of the above Articles and, therefore, it is not unconstitutional as being repugnant to Article 179 of the Constitution.
Opinion accordingly.
Cases referred to:
President of the Republic v. House of Representatives (1985) 3 C.L.R. 1724;
Springer v. Government of Philippines Islands, 77 L. Ed 845;
Papaphilippou v. The Republic, 1 R.S.C.C. 62;
Papapetrou v. The Republic, 2 R.S.C.C. 61;
Kourris v. The Supreme Council of Judicature (1972) 3 C.L.R. 390;
Lanitis Farm Ltd. v. The Republic (1982) 3 C.L.R. 124.
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the Engagement of Temporary Personnel (Public and Educational Service) Law, 1984 is repugnant to or inconsistent withthe provisions of Articles 54, 58, 61, 81, 116, 167, 168.1 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.
A. Markides, for the House of Representatives.
Cur. adv. vult.
TRIANTAFILLIDES P. read the opinion of the Court: On the 19th July. 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its Opinion, the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 54, 58, 61, 81, 116, 167, 168.1 and 179 of the Constitution.
The said Law was enacted by the House of Representatives on the 4th July 1985 (the text of the Law is attached hereto).
On the 5th July 1985 the House of Representatives transmitted the Law to the President of the Republic, who, before promulgating it pursuant to Article 52 of the Constitution, filed the present Reference.
The Supreme Court on the 26th and 27th August 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 question referred to it and the unanimous Opinion of the majority of its Members (M. Triantafyllides, Y. Malachtos, D. Demetriades, A. Loris and D. Strylianides) is the, following:
(1) The sub judice Law was enacted by the House of Representatives subsequently to: the Opinion of the Supreme Court in Reference No. 1/84, which the Supreme Court reaffirms and adopts in the present case (the text of such Opinion is attached hereto).
(2) By means of the provisions of paragraphs (a) and (b) of subsection (1) of section 3 and of subsection (2) of section 3 of the sub judice Law there is being regulated by legislation the engagement of casual employees in deviation from the general prohibition of the engagement of casual employees which is prescribed by the provisions of subsections (1) and (3) of section (3) of the sub judice Law.
(3) The refusal of the House of Representatives, allow, in any particular case, the engagement of casual employees in accordance withthe aforesaid regulative provisions is manifested only by a Law which is enacted for this purpose by virtue of the provisions of subsection (2) of Section 3 of the sub judice Law.
(4) The aforementioned provisions of subsections (1) (2) and (3) of section 3 of the sub judice Law constitute an exercise of legislative power of the House of Representatives within the limits of Article 61 of the Constitution and do not fall within the ambit of. any exclusive competence of the Council of Ministers by virtue of Article 54(a) of the Constitution or in general of the executive, power by virtue of Articles 58, 81, 116, 167 and 168.1 of the Constitution.
(5). Consequently; the sub judice Law is not repugnant to, or inconsistent with, Articles 54, 58, 61, 81, 116, 167 and 168.1 of the Constitution and, therefore, it is not unconstitutional as being repugnant to, or inconsistent with, Article 179 of the Constitution.
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.
("A LAW PROVIDING FOR THE ENGAGEMENT OF CASUAL EMPOYEES IN THE PUBLIC AND EDUCATIONAL SERVICE OF THE REPUBLIC.
WHEREAS the practice which commenced during the last years and still continues of engaging casual employees, in the Public and Educational Service of the Republic, has led to an unjustifiable increase of the costs of running the machinery of the State, a fact, which prejudicially affects the whole economic and financial condition:
AND WHEREAS the various restrictive administrative measures, which have so far been taken, did not achieve the expected results, it has become necessary to regulate by more strict legislation the engagement of casual employees by legislation.
Now, therefore, the House of Representatives enacts as follows:
1. This Law shall be cited as the Engagement of Casual Employees (Public and Educational Service) Law, 1985.
2 (1) In this Law unless otherwise the context requires
"casual employee" means any person engaged as an employee on daily wages or on other basis in the Public and Educational Service for a fixed period of time or for seasonal or other extraordinary work whether in development programs or in workshops or not.
(2) Terms not otherwise defined by this Law have the meaning respectively ascribed to them by the Public Service Law and the Public Educational Service Law.
3 (1) Notwithstanding the provisions of any other law and the adoption by the House of any expenditure in the Budget of the Republic of Cyprus, including supplementary Budgets, the engagement in any manner whatsoever of casual employees shall be prohibited, except as it is hereinafter provided.
(a) Any intended engagement shall be submitted duly reasoned and documented by a special for the purpose document by the Minister of Finance to the House of Representatives.
(b) In each such case there shall be mentioned in the said document the exact period and the terms of service and there shall be specified there in the purposes and the services in respect of which the engagement is to be made together withthe special expenditure, if any, under the Chapter and section of the relevant Budget or supplementary Budget.
(2) If within a month from the date when the submission of any such engagement is made to the. House of Representatives by the Minister of Finance the House does not prohibit by law to be passed for this purpose the intended engagement, the Minister of Finance may authorise the competent Government service to proceed, in accordance withthe procedure in force, withthe respective engagement, subject to the terms and conditions referred to in the document submitted to the House by, the Minister in accordance withthe provisions of paragraph (a) of subsection (1).
(3) Any engagement of casual employees made otherwise than in accordance withthe above procedure shall be deemed as illegal and the officers responsible to control the expenditure wherefrom the remuneration of such employees is paid shall be personally liable for any such payment, which has or will be made.
(4) This Law shall come into force as from its publication in the Official Gazette of the Republic").
(OPINION IN REFERENCE 1/84.
TRIANTAFYLLTDES P. read the following opinion of the Court. On the 28th December 1984 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1984, is repugnant to, or inconsistent with, the provisions of Articles 54, 61, 116, 167 and 168.1 of the Constitution.
The said Law was enacted by the House of Representatives on the 29th November 1984. The President of the Republic, on the 6th December, 1984, returned it to the House of Representatives for reconsideration under Article 51 of the Constitution, but on the 13th December 1984 the House of Representatives decided to persist in the enactment of the Law and, on the 14th December 1984, notified its decision to the President of the Republic, who, before he promulgated the Law under Article 52 of the Constitution, filed the present Reference.
The Supreme Court considered preliminary objections of the House of Representatives on the 20th and 21st February 1985 and delivered its Decision thereon, on the 18th March 1985. Then, on 9th, 10th, 24th, 25th and 26th April 1985, the Court heard, through their counsel, arguments on behalf of, the President of the Republic and the House of Representatives, pursuant to Article 140.2 of the Constitution.
The Supreme Court considered the question referred to it and its unanimous Opinion is the following:
(1) Prohibition of engagement of casual employees is not repugnant to or inconsistent withthe provisions of Articles 54, 61, 116, 167 and 168.1 of the Constitution because the House of Representatives, within the ambit of the exercise of its, powers by virtue of Article 61 of the Constitution, has the right to prohibit or regulate by legislation, such as the sub judice Law, the engagement of casual employees even if there has been approved for this purpose expenditure by means of the Budget of the Republic or by means of Supplementary Budgets.
(2) The procedure for the approval of the engagement ofcasual employees, which is provided for by paragraph (2) of section 3 of the sub-judice Law, contains elements of administrative action and is, therefore, party beyond the limits of the exercise of the powers of the House of Representatives under Article 61 of the Constitution and comes within, the ambit of the exercise of the powers of the Council of Ministers, in relation to the general direction and control of the government of the Republic, under Article 54(a) of the Constitution, and consequently, is repugnant to, and inconsistent with, the said Articles 61 and 54.
(3) As the prohibition of the engagement of casual employees which is provided for by paragraphs (1) and (3) of section 3 of the sub judice Law cannot be separated from the aforesaid paragraph (2) of section. 3, the whole of section 3, viewed as an integral lgis1ative provision, is repugnant to, and inconsistent with, Articles 61 and 54 of the Constitution.
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.")
PIKIS J.: Following the declaration of the Supreme Court that the Engagement of Temporary Personnel (Public and Educational Service) Law, 1984 is unconstitutional, the House of Representatives passed a new law under the same title for the promotion of the same object, namely, exercise of control by the House over the employment of temporary personnel by government departments and approval of expenditure by the Minister of Finance for this purpose. There are differences in the wording of the two laws apparently designed to eliminate provisions found to be constitutionally objectionable.
Mr. Loucaides submitted, on behalf of the President, the new law is equally objectionable for contravention ofthe same provisions and precepts of the Constitution. The new law, like its predecessor, purports to bestow competence on the legislature to take part in the process of engagement of government personnel, administrative action par excellence within the exclusive jurisdiction of the executive branch of government. Before examination of the rival submissions it is beneficial to make reference to the provisions of the new law and notice the differences from those of the Law it sought to replace.
As in the case of the first Law, the new Law requires the Minister of Finance to submit to the House a detailed account of the needs of the Administration in temporary personnel for the explicit purpose of enabling the respondents to exercise the control envisaged by subsection 2 of s. 3 of the Law. Details to be given include the period and terms of employment of personnel. Unlike the first Law express approval of the House is not made a condition precedent to the sanctioning of government plans. If the compass of the Law was limited to evolving a procedure to apprise the House of Representatives of government plans in the area under consideration, it would be difficult to raise objections to its constitutionality. However, its provisions go much further and contemplate the freezing of government plans for a period of one month in order to afford opportunity to the legislature to stop their implementation by the enactment of a prohibitive Law. The Law entails in effect, suspension of government action in order for the House of Representatives to exercise the control contemplated by the Law over administrative action. In the event of inaction on the part of the House within the statutory period, of one month, the Minister of Finance will be free to give effect to his plans subject to compliance withthe details furnished, to the legislature In this way the document submitted to the Minister of Finance acquires, after the effluxion by the period of on e month, the force of Law. The silence of the House of Representatives, is, in this way, employed as an instrument to legislate in contravention of the provisions of Art.78.1 and 73.10 of the Constitution that expressly provide that a Law canonly be validly enacted by the positive vote of the House on a bill or proposal for legislation.
Any official acting contrary to the provisions of subsection 2 is held personally liable for any additi6nal expenditure. The unavoidable inference is that the new Law, like its predecessor, is solely designed to confer competence on the House to approve the employment of temporary government personnel despite the existence of credits in the budget for the purpose. The pertinent question is whether the differences in the, wording of the new Law as compared to the old one cast a different complexion on the competence assumed by the House of Representatives. The decision of the Full Bench in Reference1/84 acknowledged that the engagement of government, personnel constitutes administrative action (διοικητική ενέργεια) outside the jurisdiction of the House of Representatives. The latter cannot assume directly or indirectly, in the context of the powers vested in them by the Constitution, the conduct of public administration that constitutes under Art.54 of the Constitution the exclusive province of the Executive.
The position adopted by Mr. Loucaides is that the jurisdiction of the legislative body is by its nature limited to the enactment of general and impersonal rules of Law that cannot under any circumstances take the form of authorization to the House to engage in the exercise of administrative function. The exercise of executive and administrative power is the domain of the executive branch of government wholly outside the framework of jurisdiction of the House of Representatives. The employment of government personnel being, as Mr. Loucaides supported, action of an administrative nature, no power vests in anyone to assume competence other than the Executice. The assumption of competence by the Legislature in connection withthe employment of government personnel is contrary to and inconsistent with Art.54 and 61 of the Constitution that define respectively the sphere of jurisdiction of the Executive and the Legislature and the separation of powersenshrined in the Constitution that confines the jurisdiction of each State power within the area assigned it by the Constitution.
In opposition to the above thesis Mr. Markides submitted that under Art. 61 of the Constitution the House of Representatives has unlimited legislative power extending to the regulation by Law of every subject it so chooses to regulate. Although laws have as a rule, as he said, a general and impersonal character, the Legislature is not precluded from enacting individual laws (προσωπικούς νόμους) of administrative content. Espousing the approach of the positivist school of law he argued the test for the classification of legislative acts is purely formal depending on the source of emanation and procedure for the enactment of the Law. Counsel cited a number of Cyprus Laws that have individual administrative matters as their subject of course the practice of the Legislature and assumption of legislative competence in different area does not create a precedent for the judicial authorities of the State, duty bound as they are, under Aft 140 of the Constitution to decide the constitutionality of a law referred to the Court exclusively by reference to the compatibility of its provisions withthe Constitution.
The Constitution of the Republic of Cyprus is the source of State power and its provisions earmark the sphere of jurisdiction of the different organs of the State. Where a function is not specifically entrusted by the Constitution to the competences of a particular authority the criterion, for the assumption of competence is the natureof the function in view of the principle of separation of powers that pervades the constitutional structure of the State of Cyprus.Relying on the wording of Art.61, in. particular the acknowledgement of power to the House to legislate "in all matters", Mr. Markides pressed before us that there is no limitation to matters that may be made the subject of legislation. This submission overlooks that Art. 61 cannot be viewed in isolation or divorced from the framework of the Constitution and the meticulous division of State powers among the three branches of the State namely, the Executive, Legislative and Judicial. Significantly the sphere of jurisdiction of the Executive is defined in a manner corresponding to that of the Legislature. Art. 54 that precedes Art. 61 in the constitutional edifice entrusts exclusively to the Council of Ministers and confers jurisdiction upon this organ of the State to exercise executive power "in every matter". Consequently the jurisdiction, of the Executive and the Legislature is mutually exclusive. The criterion for the classification of State functions is a substantive one as the Supreme Court repeatedly acknowledged. They are classified according to their content not the form that envelopes them, legislative or executive, as the case may be. This is a corollary of the principle of separation of powers that aims at a substantive as opposed to a superficial division of, authority among organs of the State. The House of Representatives cannot under the guise of legislating assume administrative functions in precisely the same way that the Executive cannot legislate under the mantle of Administration. The Constitution of Cyprus provides for a strict separation of the jurisdiction of the three branches of the State.
The enactment of rules of law and the setting of the framework within which the Administration shall operate, constitute, the exclusive province of the Legislature. Notwithstanding that the House of Representatives may regulate by law subjects affecting only a small number of persons, the content of legislation cannot be other than the evolution or adoption of rules of law. If they affect a government department or activity they may take the form of establishing the framework within which a government department shall operate or the Administration will be con ducted; but under no circumstances can they have a. their object the exercise of administrative competence by the Legislature. The execution of laws is within the exclusivejurisdiction of the Executive. It is from this function that the Executive derives its name. By the assignment of the legislative and executive competences to different organs of the State the diffusion of State authority is achieved which constitutes the principal object of the doctrine of separation of powers in the interest of the symmetrical functioning of the State.
The constitutionality of the Law here under consideration depends on the classification of the act of engagement of government personnel made in the context of expenditure approved in the budget. That the object of the House is the avoidance, in their opinion; of unnecessary expenditure does not alter the nature of the question we must answer. The jurisdiction, of the Supreme Court under Art.140 is limited to an expression of an opinion on the constitutionality of the Law referred to it; the answer solely depends on its compatibility withthe provisions of the Constitution.
It has been authoritatively decided by the Supreme Court in Reference 1/84 that the employment of government personnel for the execution of the government programme, subject to the expenditure limits set in the budget constitutes administrative action. While the approval of expenditure and its limitation fall within the sphere of jurisdiction of the Legislature, the execution of the approved works, including the employment of the necessary personnel, fall within the exclusive competence of the Executive.
As explained by Stassinopoulos the filling of posts is a matter within the discretion of the Executive, the power that has overall responsibility for the financial and economic policy of the State. Art. 58 provides that the execution of laws relating to a department of State is the exclusive province of the Minister responsible for the affairs of the department. Approval of expenditure, within the limits set in the budget is under Art. 168.1 of the Constitution, the sole responsibility of the Minister of Finance.
The provisions of the law are inextricably connected between them and form an inseparable whole and for this reasonthey cannot be severed Judged as a unified legislative enactment the Law is unconstitutional because its provisions are repugnant to and consistent with:
(1) The provisions of Art.54 of the Constitution that put the exercise of Executive power outside the jurisdiction of the House of Representatives.
(2) The provisions of Art. 58.2 (a) and 168.1 of the Constitution that confer exclusive jurisdiction on the Minister of Finance to authorize expenditure for the execution of works approved: in the budget.
(3) The provisions of Art. 61that limit the jurisdiction of the House of Representatives to the exercise of legislative power, and
(4) The doctrine of separation, of powers as explained in this opinion.
For the above reasons the Law is unconstitutional and as such cannot be promulgated. The Constitution constitutes the supreme Law as Art. 179 lays down.
KOURRIS J.: I agree withthe decision of Justice Pikis and the reasoning behind it and for the same reasons I am of the opinion that the sub judice law is repugnant to and inconsistent withthe Constitution and the principle of separation of State Powers.
As explained in the judgment of Pikis the law under consideration, like its predecessor, purporting to regulate the engagement of temporary Government Personnel that was judged to be unconstitutional, aimed to confer, competence on the House of Representatives to take part in administration, a function that falls under the Constitution within the exclusive jurisdiction of the Executive.
Opinion as above.