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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 2853
1985 December 30
[TRIANTAFYLLIDES P., A. LOIZOU, MALACHTOS, DEMETRIADES,
LORIS, STYLIANIDES, PIKIS, KOURRIS, JJ.]
IN THE MATTER OF ARTICLE 149 (b)OF THE CONSTITUTION
GEORGHIOS LADAS AND OTHERS,
Applicants.
(Case No. 1061/85).
Constitutional Law-Constitution, Articles 72, 78.1, 73.1 and 52-House of Representatives-Election of President of the House-The required for such election majority is the majority provided for the taking of a decision by the House under Article 78.1-The prerogative of the House to regulate its own procedure-Such prerogative may be exercised by a special for a purpose decision-Such decision is taken by the majority provided in Article 78.1, but it is not subject to Article 52 of the Constitution-In case none of the candidates secures the required by Article 78.1 majority for his election as President of the House, the House may in the course of the exercise of its said prerogative and by virtue also of the Law of Necessity prescribe by a decision for this purpose special procedure for the election of its President.
On the 27th December 1985 the Supreme Court granted leave to the applicants, under rule 1 5(2)(b) of the Supreme Constitutional Court Rules of Court, for the commencement of the present proceedings for the interpretation under Article 149(b) of the Constitution, of Article 72 of the Constitution in conjunction with Article 78.1 of the Constitution, in relation to the election of the President of the House of Representatives.
Held, Pikis, J. dissenting:
(1) In accordance with Article 72 the Representatives who are elected by the Greek Community elect the President of the House of Representatives. As however, the said Representatives elect, as specially designated electors, the President of the House on behalf of the whole House of Representatives, their decision in this respect is a decision of the House in the sense of a "decision" under Article 78.1 and is passed by a simple majority of the Representatives who are present and voting.
(2) The Regulation of its own procedure is a prerogative of the House of Representatives. Article 73.1 is a facet of such prerogative and is neither exhaustive nor restrictive of the manner of the exercise of such prerogative. The House may exercise such prerogative at any time not only by its Standing Orders but also by special for this purpose decisions.
(3) Thus in case none of the candidates for President of the House of Representatives secures a majority as required by Article 78.1 of the Constitution the House may in the exercise of the said prerogative and also by virtue of the "Law of Necessity" prescribe by a decision a special procedure for the election of its President. It cannot be accepted that such a decision may be taken separately under Article 72 by the Representatives elected, respectively, by the Greek and the Turkish Communities, with the risk that different procedures may be adopted for the election of the President and the Vice President of the House.
(4) Any such decision for special procedure for the election of the President of the House does not come with-in the provisions of Article 52 of the Constitution because such a subjugation would have been contrary to the said prerogative of the House.
(5) By this proceeding for the interpretation of the Constitution there is being discharged a constitutionally imposed duly of the Judicial Power towards the Legislative Power.
Judgment as above.
Cases referred to:
Attorney-General v. Ibrahim and Others 1964 C.L.R. 195;
Aloupas v. National Bank of Greece (1983) 1 C.L.R. 55.
Recourse.
Recourse by the Representatives of the DemocraticParty in the House of Representatives for the interpretation under Article 149(b) of the Constitution in conjunction with Article 78(1) of the Constitution in relation to the election of the President of the House of Representatives.
P. Polyviou with Chr. Triantafyllides, for the applicants.
Ph. Clerides with M. Papapetrou personally as Representatives and for the other Representatives of ΑΚΕΛ-ΑΡΙΣΤΕΡΑ in the House of Representatives.
M. Christophides personally as a Representative and for the other, except A. Markides, Representatives of the Democratic Rally (ΔΗΣΥ) in the House of Representatives:
A. Markides personally as a Representative.
E. Efstathiou and D. Eliades personally as Representatives and for the other Representatives of Σ.Κ. ΕΔΕΚ in the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment of the Court: On the 27th December 1985 the Supreme Court granted leave to the applicants, under rule 1 5(2)(b) of the Supreme Constitutional Court Rules of Court, for the commencement of the present proceedings for the interpretation, under Article 149(b) of the Constitution, of Article 72 of the Constitution in conjunction with Article 78(1) of the Constitution, in relation to the election of the President of the House of Representatives.
On the 28th December 1985 the Supreme Court heard the views of the applicants, who are the Representatives of the Democratic Party (ΔΗΚΟ) in the House of Representatives, and also the views of the other Representatives-(of ΑΚΕΛ-ΑΡΙΣΤΕΡΑ of the Democratic Rally (ΔΗΣΥ) and of Σ.Κ. ΕΔΕΚ)- in the House of Representatives.
The unanimous decision of the majority of the Members of the Supreme Court (M. Triantafyllides, A. Loizou, Y. Malachtos, D. Demetriades, A. Loris, D. Stylianides and A. Kourris) is the following:
1. In accordance with Article 72 of the Constitution theRepresentatives who are elected by the Greek Community elect the President of the House of Representatives. As, however, the said Representatives elect, by virtue of Article 72 of the Constitution, as specially designated electors, the President of, the House of Representatives on behalf of the whole House of Representatives, their decision in this respect is a decision of the House of Representatives in the sense of a "decision" of the House of Representatives under Article 78.1 of the Constitution and is passed by a simple majority vote of the Representatives who are present and voting.
2. The regulation of its own procedure is a prerogative of the House of Representatives. A facet of such prerogative is Article 73.1 of the Constitution which however, is neither exhaustive nor restrictive of the manner of the exercise of the said prerogative of the House of Representatives. Consequently the House of Representatives may regulate its, own procedure not only by its Standing Orders, but, also, whenever this is necessary, by special for this purpose decisions, which have the force of Standing Orders of the House of Representatives.
3. Thus the House of Representatives in the course of the exercise of its aforesaid prerogative, and by virtue also of the "Law, of Necessity", may, when electing its President, prescribe, by a decision for this purpose, special procedure for the election of its President in case none of the candidates secures the majority which is required by Article 78.1 of the Constitution, provided of course that the decision of the House of Representatives regarding the special procedure, will be passed by the majority which is required by Article 78.1 of the Constitution. And it cannot be accepted that such a decision about the said special procedure may be taken separately, under Article 72 of the Constitution; by the Representatives elected, respectively, by the Greek and Turkish Communities; with the risk that different procedures may be adopted for the election of the President and the Vice-President of the House of Representatives which is one single body.
4. The election of the President of the House of Representatives, as well as any decision of the House as regards special procedure for the election of its President, does not, in view of its nature, come within the, provisions of Article52 of the Constitution, because to subjugate the election of the President of the House of Representatives, or its decision about a special procedure for such election, to the powers of the President of the Republic which are referred to in the said Article 52 would be contrary to the prerogative of the House of Representatives to regulate its own procedure and would, also, contravene the separation between the Legislative and the Executive Powers.
5. By this proceeding for the interpretation of the Constitution, under Article 149(b), there is being discharged a constitutionally imposed duty of the Judicial Power towards the Legislative Power and it is not possible to treat such proceeding as being an interference with the aforesaid prerogative of the House of Representatives or as contravening the separation between the Legislative and the Judicial Powers.
6. In the light of the foregoing the ambiguity in Article72 of the Constitution, regarding the election of the President of the House of Representatives, has been resolved in conjunction not only with Article 78.1 of the Constitution, but, also, in conjunction with the prerogative of the House of Representatives to regulate its own procedure and with the "Law of Necessity", as stated in this Judgment.
PIKIS J.:1) Notwithstanding my disagreement as to the validity of he application of 16 Representatives of the Democratic Party for the interpretation of Article 72, set out in my dissenting judgment of 27th December, 1985, I am hound by the decision of the majority of the Supreme Court and consequently I must take cognizance of the application and proceed with the substantive examination of the issues raised therein.
By the application filed following the leave of the Supreme Court, we are invited to decide whether Article 72 of the Constitution, examined separately or in conjunction with Article 78.1 of the Constitution, requires that the President of the House of Representatives be elected by "simple majority", that is, with a majority of 50% plus one, of the Greek Representatives to the House of Representatives or those present and voting.
2) In the course of argument of the case before us,counsel for the Democratic Party modified their request for relief and indirectly, asked the Court to decide whether the House of Representatives is competent to enact regulations before the election of the President of the legislative body. The suggestion put forward is that the House is incompetent to exercise its rule-making powers before the due composition of the House into a legislative chamber that can only he accomplished after the return of the President and other dignitaries of the House. It is obvious the changed position of the applicants reflects the events that occurred subsequent to the granting of leave for the filing of, the present recourse and in particular, the adoption by the Members of the House of Representatives, in their capacity as Greek Representatives in the House of Representatives, of a decision that regulates matters pertaining to the election of the President of the Body.
3) The Supreme Court has no jurisdiction to examine matters other than those raised before it by the recourse. Consequently-the Court is confined to decide whether the Constitution imposes any institutional restrictions respecting the majority necessary for the election of the President of the House of Representatives.
Counsel of the other Parties representedin the House submitted that every ambiguity in relation to the election of the President has been clarified by the, decision of the House of 27th December, 1985, taken within the frame-work of the competence of the Greek Members of the House of Representatives.
4) The fact that the House of Representatives functions since 1964 without the Turkish Representatives, on the basis of the Law of Necessity (Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195, and Aloupas v. National Bank (1983) 1 C.L.R. 55), has not altered the constitutional character of the Body or the powers of its Members.
5) The only matter posing for decision is the interpretation of the provisions of Article 72, specifically whether this article of the Constitution imposes any restrictions in connection with the majority necessary for the election of the President of the House of Representatives.
The answer is in the negative for the following reasons:
(a) Article 72 of the Constitution is a separate and self-existent provision of the Constitution that specifies the electors for the offices of President and Vice-President of the House of Representatives. The electors are the Greek and Turkish Representatives respectively, acting in the context of their parliamentary duties at the first meeting of the term of office of the House of Representatives. This electoral duty is exercised after they assume office following the affirmation of respect for the Constitution and Laws made thereunder given under Article 69 of the Constitution. At the first meeting of the Body the Greek and Turkish Representatives elect at the same meeting but separately the President and Vice-President of the House.
(b) Examined in its totality Article 72 establishes the mode of election of the functionaries of the legislative chamber that constitutes, in accordance with the system of separation of powers applicable in Cyprus, a privilege of the House.
(c) Article 72 constitutes a separate and self-existent provision; the decisions for the election of the President and Vice-President of the House are not subject to the provisions of Article 78.1 of the Constitution. It lies in the discretion of the Greek Representatives to regulate the manner of election of the President of the House. According to Article 72 of the Constitution the President of the House of Representatives is elected by the Greek Members of the House. The distinction between the provisions of Articles 72 and 78 was acknowledged by the House in the Standing Orders enacted on 19th December, 1980, in exercise of the powers vested in the House by Article 73.1 of the Constitution. Regulation 6 provides that the election of the President takes place under Article 72 while the legislative power of the House is exercised in accordance with the provisions of Cap. 'A' of the Regulations (Regulations 49-62).
(d) The omission of the constitutional legislator to specify the manner of election of the officers of theHouse is not accidental but reflects the nature of the competence bound up with the self-existence and autonomy of the House of Representatives, compatible it is with the constitutional institutions obtaining in many other countries. (Constitution of the French Republic 1958, as revised in 1963-Article 32; Constitution of Denmark 1971-Article 352; Constitution of the Irish Republic 1937, as revised in 1972-Article 9; Constitution of Italy 1948, as revised in 1967-Article 63 See also Saripolos-Constitutional Law, Vol. 2 p. 287).
The Constitution leaves without any restriction whatever, the regulation of matters pertaining to the election of the President of the House to the Greek Representatives. Perhaps the only limitation to the powers of the Representatives in this area implicit in the provisions of Article 72 is that no. solution to the subject should lead to a stalemate that would inevitably result in the paralysis of the State.
(c) No provision of the Constitution imposes any limitations with regard to the majority necessary for the election of the President of the House. Where the constitutional legislator intended to provide, for a specific majority, it said so expressly in the Constitution as in the case of the election of the President of the Republic (Article 39 of the Constitution) For the return of the remaining electible dignitaries of the State, as in the case of Representatives to the House of Representatives, and Communal Chambers, the Constitution does not require a specific majority (Articles 66 and 97 of the Constitution).
Judgment as above.