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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1145
1987 July 16
[PIKIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
KYRIACOS KYRIACOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 725/85).
Constitutional Law - Public Service Commission - Constitution, Art. 124.5- Whether section 4(3) of the Public Service Law 33/67 is unconstitutional- Question answered in the affirmative, not only because it is inconsistent with Art. 124.5 of the Constitution, but, also, because it contravenes the constitutional principle of separation between Political and Administrative Authority - Whether section 4(3) justified by Law of Necessity - Question answered in the negative, because the law of necessity is the reserve of the legal system for the preservation of the Constitutional order, not the bypassing of limitative constitutional provisions.
Law of necessity - Review of case law - When and in what circumstances does the aforesaid law justify deviation from the Constitution - Object of the Law Of necessity.
Public Officers - Appointments -Head of Department - Omission to refer to a particular academic qualification of the applicant- Did not lead to erroneous appreciation of applicant's qualifications, because all his qualifications were before the respondent Commission.
Public Officers - Appointments - First entry post - Fact that candidate is a member of the public service - It is not a decisive factor.
Public Officers - Appointments - First en by post-Seniority- It is not a factor to be taken into consideration.
Public Officers-Departmental Committees- Whether section 36.1 of the Public Service Law necessitates the creation of ad hoc committees - Whether the provision in the regulations in respect of the Minister's control over the creation of Departmental Committees is inconsistent with the Constitutional principle of separation between the political and the administrative power.
The applicant impugns the appointment of Takis Tsintides and Christos Andreou to the post of Conservator of Forests on the following grounds, namely: (a) That the Director of the Department of Forests, in evaluating the suitability of the applicant, omitted reference to an academic qualification of applicant, which in the latter's opinion amounted in accordance with the relevant scheme of services to an advantage, (b) Failure on the part of the respondent Commission to attach special importance to the fact that, unlike interested party Alexandrou, the applicant was at the time of the selection a member of the public service. In this respect counsel for the applicant referred to Regulation 11.1.2 of the General Orders, (c) The respondent Commission did not ignore the confidential reports for Tsintides, whereas it ought to ignore them as such reports were not prepared on a yearly, but on a half- yearly basis, (d) Failure to attach importance to applicant's seniority over the interested party, (e) The regulations, which govern the creation of Departmental Committees are ultra vires the enabling law, that is section 36(1) of Law 33/67. The relevant submission of counsel for applicant is that section 36 provides for the creation of ad hoc Committees in respect of each particular case, (f) The provision in the aforesaid regulations that the creation of such Committees is under the control of the Minister offends, against the constitutional principle of separation between the political and the administrative authority, and (g) The provision of section 4(3) of Law 33/67, which empowers the President of the Republic to dismiss a member of the Public Service Commission is unconstitutional, as being repugnant to Art. 124.5 of the Constitution, which provides that A member of the Commission shall not be removed from office except on the like grounds and in the like manner as a Judge of this Couth, and, consequently, the respondent Public Service Commission is, also, unconstitutional, as an organ, which was created and is functioning outside the constitutional limits.
Held, annulling the sub judice decision: (1) The first of the aforesaid grounds is not valid, because, independently from the validity of the allegation that the qualification in question constituted an advantage, the omission of the Director to refer to it, did not lead to an erroneous evaluation, as all the qualifications of applicant were before the Commission.
(2) The fact that a candidate for appointment to a first entry post is, already, a member of the Public Service is not the decisive factor. The creation of such posts is primarily intended to broaden the basis of selection, whilst the principle of equality entrenched in Art. 28 of the Constitution binds the Administration to avoid distinctions, except as objectively justified by the facts.
(3) The facts contained in the half yearly reports for Tsintides were equally informative as those set out in annual reports.
(4) Seniority is not a consideration relevant to the filling of a first entry post.
(5) In the light of the advisory nature of Departmental Committees, their creation does not amount to a usurpation of the functions of the Public Service Commission. The wording of section 36.1, read as a whole, does not justify the restriction suggested by applicant, i.e. that it makes obligatory the creation of ad hoc Committees.
(6)The sixth ground relied upon by applicant is not valid. The Minister does not participate in the Departmental Committees. His powers constitute an aspect of the executive powers referable to the sphere of competence of Council of Ministers, the exercise of which has been delegated to Ministers.
(7) Comparison between section 4(3) of Law 33/67 and Article 124.5 of the Constitution Leads to the conclusion that the provisions of the aforesaid section are incompatible with the provisions of Art. 124.5. Moreover, section 443) defies the constitutional separation between political and administrative authority.
A basic objective of the Constitution is to entrench the members of the Commission vis-à-vis political power by assuring security of tenure of their posts.
A series of decisions of this Court recognises that the Commission of Law 33/67 is not the same body as the Public Service Commission as defined in the Constitution, owing to a numerical difference in the composition of the two bodies.
Law 33/67 is founded exclusively on the «Law of necessity», which justifies the adoption of legal measures not contemplated by the Constitution only to the degree and extent they are essential for the sustenance of the functioning of the Commission that collapsed with the withdrawal of its Turkish members.
However, invocation of the .Law of necessity can only be justified to the degree and extent that the necessity mandates. Recourse to the aforesaid law is permitted only when constitutional order or the functioning of fundamental institutions of the State are threatened. It constitutes the reserve power of the law for the entrenchment of constitutional order and not as a means of bypassing limitative provisions of the Constitution or the Statute Law.
Apart from the differentiation of the number of members of the Commission, there was no need, which may justify deviation from the constitutional framework subject to and within which the Public Service Commission should function. The decision in Pastellopoullos v. The Republic (1985)2 C.L.R. 165 is of especial Importance, because, as it was held, whilst the «Law of necessity» justifies the creation of a Military Court, such Court could neither be set up nor function outside the constitutional framework governing the exercise of the judicial power. By the same process of reasoning: it was permissible for the legislature to provide for the replacement of the Public Service Commission, but neither the competence nor the legal framework within which the Public Service Commission should function could be other than those specified by the Constitution.
Compliance with constitutional provisions that govern the terms of service of the members of the Commission is of fundamental importance for the safeguard of its independence. Constitutional order in the domain of public service is found up with the institutional independence of the Commission.
The terms of service of the members of the respondent are contrary to the Constitution. For this reason, the respondent Commission could not exercise the powers of the Public Service Commission.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
Papantoniou and Others v. Republic (1968)3 C.L.R. 233;
Scapoullis and Others v. Republic (1984) 3 C.L.R. 554;
Thalassinos v. Republic (1973)3 C.L.R. 386;
Christoudias v. Republic (1984)3 C.L.R. 657;
Michael and Another v. P.S.C. (1982)3 C.L.R. 727;
Kramvis and Others v. P.S.C. (1986)3 C.L.R. 1243;
Papapetrou v. Republic, 2 R.S.C.C. 61;
Republic v. Louca and Others (1984) 3 C.L.R. 241;
Josephin v. Republic (1986)3 C.L.R. 111;
The Board for Registration of Architects and Civil Engineers v. Kyriakides (1966)3 C.L.R. 640;
Charalambous v. Republic (1986)3 C.L.R. 557;
Frangoulides v. Republic (1966)3 C.L.R. 676;
The Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195;
Apostolides and Others v. The Republic (1982) 3 C.L.R. 928;
Bagdassarian v. Electricity Authority of Cyprus (1968)3 C.L.R. 736;
Poudros v. Cyprus Telecommunications Authority (1970) 3 C.L.R. 281;
Theodondes v. Ploussiou (1976)3 C.L.R. 319;
Aloupas v. The National Bank (1983)1 C.L.R. 55;
President of the Republic v. The House of Representatives (1986) 3 C.L.R. 1439;
Solomou v. Republic (1984) 3 C.LR. 533;
Makrides v. Republic (1984) 3 C.L.R. 677;
Androclis v. Republic (1985) 3C.LR. 11;
Pastellopoulos v. Republic (1985) 2 C.L.R. 165;
Cyprus Tourism Organization v. Hadjidemetriou (1987) 3 C.L.R. 780.
Recourse.
Recourse against the decision of the respondent to promote the interested parties to the post of Conservator of Forests in preference and instead of the applicant.
K. Talarides, for the applicant.
S. Matsas, for the respondent.
Cur. adv. vult.
PIKIS J. read the following judgment. Kyriacos Kyriacou, a Forest Ranger, serving in the Forestry Department, challenges the appointment of T. Tsintides and ,Chr. Alexandrou, to the post of Conservator of Forests and seeks by the present proceedings the annulment of the decision for wrongful exercise of the discretionary powers of the Public Service Commission (hereafter referred to as the Commission), for illegal composition of the Departmental Committee and finally for reasons of unconstitutionality of s. 4(3) of the Public Service Law (33/67).
In the submission of counsel for the applicant, the terms under which members of the Commission serve, deprive the body of the safeguards of independence envisaged, by the Constitution as a prerequisite for the exercise of the V powers vested in the Commission (Part VII, Chapter 1, Constitution of the Republic of Cyprus).
For the filling of the two vacant posts of Conservator of Forests, first entry post, there were 14 applicants including employees of the Forestry Department. The Departmental Committee that was set up under regulations made by the Council of Ministers made a preliminary assessment of the merits and qualifications of the candidates leading to the recommendation of eight of them as suitable for appointment. Amongst them were the two interested parties and the applicant. Applicant and one of the interested parties were rated as «Very Good», whereas the second interested party Tsintides was assessed as «Excellent».
The Commission interviewed the recommended candidates on 8th March, 1985 in the presence of the Director of the Forestry Department. According to his assessment .the candidates most suitable for appointment were T. Tsintides (first) and Ch. Alexandrou (second). The Commission too arrived at the same conclusion respecting the merits of the candidates and in consequence proceeded to appoint the interested parties to the two vacant positions.
One of the complaints of the applicant is that the Director in evaluating the suitability of applicant to appointment omitted to make reference to an academic qualification that amounted, in applicant's view, to a postgraduate diploma conferring on him the advantage of the second paragraph of the scheme of service whereby a postgraduate qualification or experience acquired after a degree was an advantage for appointment. Irrespective of the soundness of this contention the omission, if any, did not lead the Commission to a misconception of the qualifications of the applicant; all the data relevant to his qualifications were before the Commission.
On review of the material before the Commission, we conclude it was reasonably open to the Commission to choose the interested parties as the candidates best suited for appointment. Moreover, the reasoning of the decision is not vulnerable to be set aside on any ground. The Commission made proper evaluation of the material before it and was guided in arriving at its decision by the criteria envisaged by the law and rules of sound administration.
Another ground advanced in support of the annulment is the omission of the Commission to attach specific importance to the fact that the applicant, unlike Chr. Alexandrou, was at the time of the selection, a member of the Public Service.
Mr. Talarides invoked in support the provisions of Reg. 11.1.2 of the General Orders that provide «other things being equal.» preference should be given to persons already in the service This is not a decisive factor for the filling of a first entry post. The creation of first entry posts is primarily intended to broaden the basis of selection while the principle of equality entrenched in Art. 28 of the Constitution binds the Administration to avoid distinctions among citizens except as objectively justified by the facts.
Equally untenable is the contention that the Commission ought to have ignored confidential reports as material relevant for the assessment of the merits of T. Tsintides for the reason that they had been prepared on a six monthly basis. The content of the report was equally informative of the value of the services of the officer reported upon as the data set out in annual reports; and no valid objection can be raised on that account. Nor does the suggested seniority of the applicant over T. Tsintides constitute a valid ground for the annulment of the decision. Seniority in the accepted sense is not a consideration relevant to the filling of first entry post. If it were otherwise the principle behind the creation of first entry post would be defeated.
Furthermore, applicant impugns the validity of the regulations governing the setting up of Departmental Committees. In the submission of Mr. Talarides the regulations were enacted in opposition to the provisions of the empowering law, specifically those of s. 36 of Public Service Law (33/67). Section 36 confers power to the Council of Ministers to set up departmental committees and regulate their competence and functioning. It has been decided that the establishment of Departmental Committees does not usurp the competence of the Commission in view of their advisory character. Other decisions of. The Supreme Court establish that the subject regulations come within the framework of the enabling Law (33/67) and are compatible with its provisions. The proposition put forward by the applicant is that the power of the Council of Ministers is limited by s. 36 to the setting up of ad hoc Departmental Committees as an administrative measure and that the law does not bestow regulatory power of the enactment of rules institutionalizing the composition of Departmental Committees.
Though the wording of s. 36(1) (33/67) cannot be commented for its clarity, nevertheless judged as a whole it does not impose the limitations suggested b applicant. The legislature in essence leaves mailers referable to the establishment and functioning of Departmental Committees to the discretion of the Council of Ministers; a competence compatible with the general framework of the powers of the Council Of Ministers. A contrary interpretation would tantamount to bestowing on the Council of Ministers administrative functions in antinomy to the Constitution that renders the Council of Ministers the par excellence policy organ of the V Executive.
I do not espouse the view that the clause of the regulations whereby Departmental Committees are subject to ministerial control offends the constitutional demarcation of the political and administrative power. The Minister does not take part in Departmental Committees. The functions assigned to the Minister constitute an aspect of executive power referable in accordance with Papapetrou v. Republic to the sphere of competence of the Council of Ministers, the exercise of which has been delegated to Ministers.
The dismissal of the aforementioned grounds supporting the application for annulment makes inevitable examination Of the constitutionality of the provisions of s. 4(3) Of Law 33/67 in order to decide whether the Commission was set up and functions as a valid constitutional organ.
Constitutionality of s. 4(3) of the Public Service Law - 33/67
Relying upon dicta of the Court in the case of Republic v. Louca and Others and observations of Triantafyllides, P., in the case of Josephin v. Republic Mr, Talarides invited the Court to declare unconstitutional the provisions of s, 4(3) of Law 33/67 and consequently declare the Commissioner to be an organ set up and, functioning outside the constitutional framework.
Section 4(3) of the law confers power on the President of the Republic to terminate at any time the services of any member of the Commission on grounds of public interest. Comparison of the provisions of the subsection of the law in question with those of Art. 124.5 of the Constitution, regulating the terms and conditions of service of the Chairman and members of the Public Service Commission leads inexorably to the conclusion that the relevant provisions of the law and the Constitution are incompatible; in particular, the pertinent provisions of the law cannot be reconciled with the institutional safeguards stipulated by the Constitution for the entrenchment of the independence of members of the body.
Art. 124.5 of the Constitution provides:
«A member of the Commission shall not be removed from office except on the like grounds and in the like manner as a Judge of the High Courts».
The service of a Judge of the Supreme Court cannot be terminated except for the reasons specified in Art. 153.7 and in accordance with the procedure specified in. Art. 153.8 of the Constitution is observed. Termination of the services of a member of the Supreme Court is only permissible for reasons of physical or mental incapacity or for improper conduct so declared by the Supreme Council of Judicature in judicial proceedings instituted for the purpose.
Not only s. 4(3) is contrary to the terms and conditions of members of the Commission laid down in the Constitution, but moreover defies the constitutional separation between administrative and political authority. The division between the two branches of executive power was proclaimed to be a fundamental aspect of the Constitution in the decision of the Full Bench in Frangoulides v. Republic, determinative of the sphere of competence of political authority on the one hand and the Administration on the other.
In the case of Louca (supra) the majority of the members of the Supreme Court drew attention to the fact that prima fade there is a conflict between the provisions of s. 4(3) and those of Art. 124.5 of the Constitution and invited the appropriate authorities of the Republic to examine the matter the sooner in the interest of constitutional order. It must be said that those observations are not part of the ratio of the majority decision in view of the fact that the appeal was abandoned after settlement of the claim of members of the Commission who were dismissed pursuant to the provisions of s. 4(3). Nonetheless, the dicta are persuasive as to the terms and conditions, and generally the framework within which the Public Service Commission should function.
In a separate minority judgment, I declared that it was imperative that the constitutionality of the provisions of s. 4(3) should be probed and thereupon I examined the matter and concluded that the provisions of s. 4(3) of Law 33/67 are incompatible with those of Art. 124.5 and on that account the decision of the President terminating the services of members of the Commission was pronounced unconstitutional.
In the case of Josephin (supra), Triantafyllides, P., underlined the need for examination of the constitutionality of the provisions of s. 4(3) the soonest possible in order to remove doubts affecting the functioning of a fundamental institution of the public service.
It is implicit from the dicta of the Supreme Court in the Case of Louca (majority decision) that though the composition of the Commission set up under, the provisions of Law 33/67 is different from that contemplated by the Constitution (Art. 124.1), the institutional framework within which the Commission should function is none other than that outlined in the Constitution.
A basic objective of the Constitution is to entrench the members of the Commission vis-à-vis political power by assuring security of tenure of their post during the duration of their appointment. Conferment of power on the President of the Republic, the foremost vestee of political power, to terminate their appointment directly defies the pertinent provisions of the Constitution as well as the separation between political and administrative power Contemplated by the Constitution.
A series of decisions of the Supreme Court recognizes that the Commission is not the same body as the Public Service Commission as defined in the Constitution owing to different numerical composition of the two bodies. What emerges from the caselaw is that the limitation of the numerical strength of the Commission from 10 members to 5, provided for by Law 33/67, does not render the Commission an unconstitutional organ. The numerical strength of the Commission contemplated by the Constitution, 10 members, was inextricably bound up with those provisions of the Constitution that collapsed with the withdrawal of the Turkish members of the Commission. The Public Service Law (33/67) is founded exclusively on the «law of necessity» and aims to gauge the gap left by the departure of the Turkish members of the Public Service Commission. As a measure of necessity it cannot but be reconciled with the jurisdictional framework provided by the «law of necessity». The law of necessity in its judicial acceptation justifies the adoption of legal measures not contemplated by the Constitution only to the degree and extent they are essential for the sustenance of the functioning of the Commission that collapsed with the withdrawal of Turkish members. The need to sustain constitutional order and the institutions envisaged thereby by recourse to the «law of necessity» in consequence of the events of 1963-1964 was acknowledged by the Supreme Court in the case of The Attorney-General v. Ibrahim and Others. The doctrine of the «law of necessity» as explained in the above case is an extraordinary legal measure, invocation of which can only be justified to the degree and extent that the necessity mandates.
In the case of Apostolides and Others v. The Republic it is clarified that the «law of necessity» is not an extra-judicial measure but an inseparable part of the armory of the law for the sustenance of constitutional order. It provides the springboard for the, entrenchment of legal order and the rule of law. This is the position emerging from the decision of the Supreme Court in the case of Ibrahim (supra) and that of the Full Bench of the Supreme Court in Aloupas v. The National Bank. As I explained in the case of Apostolides (supra) and repeated in the case of President of the Republic v. The House of Representatives «Recourse to the law of necessity, is permitted only when constitutional order is threatened and the functioning of fundamental institutions of the States». As I had opportunity to point out in previous judicial decisions claw of necessity constitutes the reserve power of the law for the entrenchment of constitutional order and not a means of bypassing limitative provisions of the Constitution or the statue law. The competence and institutional framework of the Public Service Commission were examined exhaustively in the cases of Solomou v. Republic and Makrides and Another v. Republic It was found that apart from the differentiation made in the numerical strength of the Commission, no need arose and none could be judicially justified for deviation from the, constitutional framework subject to and within which the Public Service Commission should function. The decision of the Full Bench in the case of Androclis v. Republic provided added affirmation that it is not permissible to depart from the Constitution in the face of restrictive legislative provisions. Consequently, in defining the class of public servants the Court was guided by the provisions of Art.122 of the Constitution and not those of s. 2 of the Public Service Law (33/67).
The decision of the Full Bench of the Supreme Court in the case of Pastellopoulos v. Republic is of especial importance in the determination of the premise of the q law of necessity. It was held that although the events of 1963-1964 offered justification for the establishment of a Military Court, the Court could neither be set up nor function outside the constitutional framework governing the exercise of judicial power. In much the same way and by the same process of reasoning, it was permissible for the legislature to make provision for the replacement of the Public Service Commission that ceased to function as a result of the events of 1964 in order to ensure the functionability of an important institution of the state. But, neither the competence nor the legal framework within which the Public Service Commission should function could be other than those specified by the Constitution. Nor has suggestion been made that any necessity arose to depart from the constitutional framework other than provide for the re-establishment of the Commission after the departure of Turkish members.
The recent decision of the Full Bench of the Supreme Court in the case of Cyprus Tourism Organization v. Hadjidemetriou leaves the constitutionally of s. 4(3) of Law 33/67 open, as well as the constitutionality of the Public Service Commission.
Compliance with constitutional provisions that govern the terms of service of the members of the Commission is of fundamental importance for the safeguard of the independence of the Public Service Commission. Constitutional order in the domain of the public service is bound up with the institutional independence of the Commission. By providing for the separation of political from administrative power, the constitutional legislators intended to render members of the Public Service impersonal functionaries of the state trusted with the diachronic mission to apply the law and rules of sound administration. If it was acceptable for the legislature to upset the constitutional framework of independence of the Public Service Commission by a like amenity, they could upset the constitutional framework of independence of the judicial power. The Constitution envisages precisely the same prerequisites and procedure for the termination of the services of Judges of the Supreme Court (Articles 113.2, 7, 8 and 153.2, 7, 8) as those of the Chairman and Members of the Public Service Commission. Mere contemplation of such a possibility reveals in their magnitude the dangers to constitutional order from transgression or circumvention of constitutional dictates affecting the independence of vital institutions of the state.
The terms of service laid down in s. 4(3) of the Public Service Law (33/67) under which the members of the Commission serve, are contrary to the Constitution and deprive the body of the attributes of independence laid down in the Constitution, as a prerequisite for the exercise of the competence conferred on the Public Service Commission by the Constitution. The exercise of the power vested by the Constitution to the Public Service Commission is inextricably tied to the composition and service of its members in accordance and subject to the provisions of the Constitution. Stripped of the safeguards of independence contemplated by the Constitution, nobody can exercise the powers and, competence vested in the Public Service Commission. Consequently, the Commission that was set up and functions under s. 4 and specifically the provisions of subsection 3 of the same provision of the Law (33/67), are not consonant with relevant constitutional provisions and on that account they could not exercise the functions vested by the Constitution in the Public Service Commission. Therefore, I conclude that the sub judice decision was taken by an incompetent body and on that account it is declared null and void pursuant to the provisions of Art. 146. 4(b) of the Constitution.
Sub judice decision annulled.