|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1986) 3 CLR 1168
1986 May 15
[TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS, DEMETRIADES, SAVVIDES, LORIS, STYLIANIDES, PIKIS. KOURRIS, JJ.]
THE PRESIDENT OF THE REPUBLIC.
Applicant,
v.
THE HOUSE OF REPRESENTATIVES,
Respondents.
(Reference No. 13/85).
Constitutional Law—Reference under Article 140 of the Constitution—It can only be made in relation to a "law" or "decision" in the sense of Article 52 of the Constitution.
Constitutional Law—Council of Ministers—Power to make regulations under Article 54(g) of the Constitution—Nature of such power.
Constitutional Law—Subsidiary legislation—The Cyprus Broadcasting Corporation Law, Cap. 300 A—Section 19 as amended by section 2 of Law 68/85—Regulations made by the Council of Ministers and placed before the House of Representatives pursuant to such section—Decision of the House amending said regulations—The said regulations continued to be subsidiary legislation emanating from the Council of Ministers—They cannot be promulgated under Article 52 of the Constitution, but should be published under said section.
The Council of Ministers decided, on the 12.9.85, to make the Cyprus Broadcasting Corporation (Equitable Treatment of Political Parties and Candidates) Regulations and to place them before the House of Representatives, pursuant to section 19 of Cap. 300 A as amended by section 2 of Law 68/85.
On the 31.10.85 the House of Representatives amended the said Regulations. On the 1.11.85 the Regulations were transmitted for publication to the Under-Secretary to the President.
On the 13.11.85 the President of the Republic filed the present reference for the opinion of the Court whether the said decision of the House is repugnant to or inconsistent with Articles 19, 28, 35, 52, 54, 58, 61, 82 and 179 of the Constitution.
Held, dismissing the reference: (A) Per Triantafylides, P., A. Loizou, Malachtos, Demetriades, Saw ides, Loris and Stylianides, JJ. (1) The exercise by the Council of Ministers of its power to make regulations under Article 54(g) of the Constitution does not amount to the exercise of autonomous legislative power but it is the exercise of subsidiary legislative power pursuant, to the legislative authorization given to it on each occasion by a Law of the House of Representatives.
(2) Notwithstanding their amendment by the House the sub judice Regulations continue to be subsidiary legislation emanating from the Council of Ministers. Such legislation is not promulgated under Article 52 of the Constitution, but is to be published as provided by s. 19 of Cap. 300 A as amended by s. 2 of Law 68/85.
(3) Thus the sub judice Regulations are not a "law" or "decision" of the House of Representatives in the sense of Article 52. It follows that the present reference has to be dismissed, because a reference under Article 140 can only be made in relation to such "law" or "decision".
(B) Per Pikis, Kourris, JJ. concurring: (1) In the exercise of the power vested to the House of Representatives by the primary legislation (Cap. 300 A as amended by Law 68/85), the House made substantial amendments to the Regulations approved by the Council of Ministers. In their final form the Regulations constitute a piece of secondary legislation enacted by the two bodies vested with the power in the matter, i.e. the Council of Ministers and the House of Representatives.
(2) The obligation for the publication of subsidiary legislation is imposed by s. 7 of the Interpretation Law, Cap. 1, an enactment wholly independent from Article 52 of the Constitution.
(3) The participation of the House of Representatives in the composition of subsidiary legislation does not alter its character to primary legislation. As the duty to promulgate under Article 52 is confined to primary legislation and decisions of the House of Representatives specifically referred to in the Constitution and as the jurisdiction under Article 140 is confined to such laws or decisions, this Court lacks jurisdiction to take cognizance of the present reference.
Reference dismissed.
Cases referred to:
President of the Republic v. The House of Representatives (1985) 3 C.L.R. 2165.
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the decision of the House of Representatives which was taken on 31.10.1985 and was forwarded on 1.11.1985 for publication/promulgation by the President of the Republic whereby the Cyprus Broadcasting Corporation (Equitable Treatment of Parties) Regulations of 1985 amending the Regulations made by the Council of Ministers and placed before the House, is repugnant to, or inconsistent with the provisions of Articles 19, 28, 35, 52, 54, 58, 61, 82 and 179 of the Constitution.
L. Loucdides, Deputy Attorney-General of the Republic with Fr. Parrisiadou (Mrs.), Senior Counsel of the Republic, for the President of the Republic.
M. Christophides, for the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the opinion of the Court: On the 13th November 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 the decision of the House of Representatives which was taken on 31.10.1985 and was forwarded on 1.11.1985 for publication/promulgation by the President of the Republic under Article 52 of the Constitution, and by means of which there were approved the Cyprus Broadcasting Corporation (Equitable Treatment of Parties) Regulations of 1985, amending the Broadcasting Corporation (Equitable Treatment of Political Parties and Candidates) Regulations of 1985, which were made by the Council of Ministers on 12.8.1985, is repugnant to, or inconsistent with, the provisions of Articles 19, 28, 35, 52, 54, 58, 61, 82 and 179 of the Constitution".
The Council of Ministers decided, on the 12th September 1985, to make the Cyprus Broadcasting Corporation (Equitable Treatment of Political Parties and Candidates) Regulations of 1985 and to place them before the House of Representatives, pursuant to section 19 of the Cyprus Broadcasting Corporation Law (Cap. 300A), as amended by section 2 of the Cyprus Broadcasting Corporation (Amendment) Law, 1985 (Law 68/85).
On the 31st October 1985 the House of Representatives amended the said Regulations and on the 1st November 1985 the Director-General of the House of Representatives transmitted them for publication to the Under-Secretary to the President.
Before publishing the sub judice Regulations in the Official Gazette the President of the Republic filed the present Reference on the 13th November 1985.
This case came up before the Supreme Court for directions on the 18th and 19th November 1985, and pursuant to Article 140.2 of the Constitution, the Court heard, through their counsel, arguments on behalf of the President of the Republic and of the House of Representatives on the 20th, 21st, 22nd and 23rd January 1986.
On the 9th April 1986 the Supreme Court heard, through their counsel, arguments on behalf of the President of the Republic and of the House of Representatives regarding the question as to whether the sub judice Regulations ought to be promulgated by the President of the Republic by publication in the Official Gazette of the Republic under Article 52 of the Constitution.
The Supreme Court considered the question referred to it and the unanimous decision of the majority of its Members (M. Triantafyllides, A. Loizou, Y. Malachtos, D. Demetriades, L. Savvides, A. Loris and D. Stylianides) is the following:
1. The exercise by the 'Council of Ministers of its power to make Regulations, under Article 54(g) of the Constitution, does not amount to the exercise of autonomous legislative power but it is the exercise of subsidiary legislative power pursuant to the legislative authorization given to it on each particular occasion by a Law of the House of Representatives.
2. The sub judice Regulations were made by the Council of Ministers and, despite the fact that they were amended by the House of Representatives, they continue to be subsidiary legislation emanating from the Council of Ministers, which is not to be promulgated by the President of the Republic by publication in the Official Gazette of the Republic under Article 52 of the Constitution, but is to be published in the Official Gazette of the Republic as provided by section 19 of Cap. 300 A after its amendment by section 2 of Law 68/85.
3. Thus the said Regulations are not a law or decision of the House of Representatives in the sense of a "law or, decision" of the House of Representatives in Article 52 of the Constitution and, therefore, it was not possible to make the present Reference in respect thereof, because a Reference by the President of the Republic, under Article 140 of the Constitution, may be made only in relation to a law or decision of the House of Representatives which is to be promulgated by the President of the Republic by publication in the Official Gazette of the Republic pursuant to Article 52 of the Constitution.
4. In view of the aforesaid the present Reference is dismissed because it could not be made under Article 140 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.
PIKIS J.: The judgment of the Court, that is, that part determining the outcome of the Reference, is unanimous. It is decided, therefore, that the Reference must be dismissed. The Supreme Court lacks jurisdiction to take cognizance of the case for the reason that the Regulations are not a "law" or a "decision" of the House of Representatives in the sense of Article 52 of the Constitution. Consequently, their enactment is not dependent on promulgation in the official Gazette by the President of the Republic, a prerequisite for the exercise of the jurisdiction vested in the Court by Article 140 for the apriori examination of the constitutionality of laws or decisions, subject to promulgation. We are unanimous that the Regulations constitute secondary or subsidiary legislation not subject to promulgation under Article 52. My disagreement with the reasoning of the majority judgment is confined to the identification and specification of the origin of the subsidiary legislation. In my view after the amendment and virtual re-writing by the House of Representatives, the Regulations constitute subsidiary legislation enacted by both bodies, namely, the Council of Ministers and House of Representatives. I disagree, therefore, with that part of the reasoning of the majority judgment that characterizes the Regulations as subsidiary legislation emanating from the Council of Ministers notwithstanding their amendment by the House of Representatives.
The enabling law that confers jurisdiction for the enactment of the subsidiary legislation, the Cyprus Broadcasting Corporation Law (as amended by Law 68/85), vests this power in both bodies, an inevitable inference from the text of the law, specifically the unlimited power given to the House of Representatives to amend Regulations prepared by the Council of Ministers. In exercise of this power vested it by the primary legislation, the House of Representatives made substantial amendments to the Regulations approved by the Council of Ministers, tantamount to their rewriting. In their final form the Regulations constitute a piece of secondary legislation enacted pursuant to the provisions of the law by the Council of Ministers and the House of Representatives—the two bodies vested with power in the matter.
The jurisdiction of the Supreme Court under Article 140 of the Constitution to pronounce on the constitutionality of laws and decisions is limited by its text to laws and decisions that the President of the Republic is under duty to promulgate by publication in the official Gazette under Article 52 of the Constitution.
The question is whether subsidiary legislation, that is, legislation not enacted by the House of Representatives in exercise of its competence for the enactment of primary legislation but by a body or bodies specifically empowered to do so, constitutes a law of the House of Representatives in the sense of Article 52. The answer is in the negative.
In accordance with the decision of the Full Bench of the Supreme Court in Reference 4/85, the competence of the President of the Republic for the promulgation of laws and decisions of the House of Representatives, under Article 52, does not encompass promulgation of subsidiary legislation. As I had occasion to explain in the above Reference, the duty to promulgate under Article 52 is confined to primary legislation and decisions of the House of Representatives specifically referred to in the Constitution. The participation of the House of Representatives in the composition of subsidiary legislation does not alter its character into primary legislation. And, given that the exercise of the pre-emptive Judicial control of the constitutionality of laws and decisions Of the House of Representatives is confined to laws and decisions of the House in respect of which there is an obligation to promulgate, the Supreme Court lacks jurisdiction to take cognizance of the present Reference. The Supreme Court is, $of this reason, precluded from examining the substantive issues raised in this proceeding, namely, whether it is constitutionally permissible for the House of Representatives to take part in the enactment of subsidiary legislation, whether the amendments made to the Regulations are within the framework of the enabling law and lastly whether they are compatible with the provisions of the Constitution.
The obligation for the publication of subsidiary legislation in the official Gazette is imposed by s. 7 of the Interpretation Law (Cap. 1), an enactment wholly independent from Article 52 of the Constitution.
Lack of jurisdiction makes it impossible for the Supreme Court to take cognizance of any aspect of the Reference which is in consequence dismissed.
KOURRIS J.: I had the opportunity to discuss with my Honourable colleague Justice Pikis the text of his judgment. I am in agreement both with his conclusions and the reasons in support thereof, and for the same reasons I decide that the Reference must be dismissed.
Rerefence dismissed.