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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
THE IMPROVEMENT BOARD OF EYLENJA ν. ANDREAS CONSTANTINOU (1967) 1 CLR 167
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1987) 3 CLR 1655
1987 October 20
[TRIANTAFYLLIDES, P., A. LOIZOU. MALACHTOS, LORIS,
STYLIANIDES, PIKIS. KOURRIS, JJ.]
IN THE MATTER OF ARTICLE 140 OF THE CONSTITUTION
PRESIDENT OF THE REPUBLIC,
Applicant,
v.
THE HOUSE OF REPRESENTATIVES
Respondent.
(Reference No. 3/87).
Constitutional Law - Freedom of speech and expression - Constitution, Art. 19 -The exercise of the right cannot be made either directly or indirectly obligatory -Law regulating treatment of presidential candidates by the Cyprus Broadcasting Corporation, providing, inter alia, for an obligation on the part of the Corporation to invite all candidates for a joint television discussion - The said provision amounts to an indirect coercion of the candidates to participate in such a programme.
Constitutional Law - Equality - Constitution, Art.28 - Does not exclude distinctions based on reasonable criteria - Law regulating treatment of presidential candidates by the Cyprus Broadcasting Corporation - Distinction between persons considered as «presidential candidates» in the sense of such law and other persons, who are not considered as such-In this case the distinction was based on reasonable criteria.
Constitutional Law- Reference under Art.140 of the Constitution -Severability of the provisions held to be unconstitutional from the other provisions of the sub judice law - In promulgating the law under Art. 52 the President of the Republic should only omit publication of said unconstitutional provisions.
Constitutional Law - Promulgation of a law - Constitution, Art.52 - See Constitutional Law - Reference under Article 140 of the Constitution.
Constitutional Law - Presidential elections - Constitution, Art.40 - Law regulating the treatment of Presidential candidates by the Cyprus Broadcasting Corporation - It is not repugnant to or inconsistent with Article 40.
By means of this reference filed pursuant to the provisions of Article 140 of the Constitution, the President of the Republic seeks the opinion of the Supreme Court whether the Cyprus Broadcasting Corporation (Amendment) Law, 1987 is repugnant to or inconsistent with the provisions of Article 19, 28, 40 and 179 of the Constitution.
This Law contains provisions relevant to the treatment by the Cyprus broadcasting Corporation of the candidates for the time being for the Office of the President of the Republic, during the period of six-months preceding the end of the period in Office if the President of the Republic for the time being.
The Deputy Attorney-General, who argued the case on behalf of the President of the Republic made the following submissions:
(a) Every citizen of the Republic of Cyprus who has the qualifications and submits a candidature for the office of the President has the same rights to transmission of his views through the C.B.C. Since, therefore, in accordance with the electoral law candidatures for the office of President should be submitted 10 days before the holding of the elections, the provisions of the law violate the right of every possible candidate to equal projection of his views through radio and television.
(b) The definition furnished by the law of candidates for the presidency contravenes the provisions of Article 28 to the extent that it does not extend the right of projection through the C.B.C. to every prospective candidate.
(c) The provisions of Article 28 are infringed by the provisions of s. 5(c) that provides for common appearance of the candidates on television without making supplementary provision for the projection in a separate programme of the views of those candidates who do not accept the invitation.
(d) The aforesaid subsection (c) of section 5 and subsection (j)(cc) of section 5, which provides for a second television appearance of two candidates contesting the repetition of the election is repugnant to the provisions of Article 19 that safeguards freedom of speech and expression, because the law exerts in an indirect way pressure upon the candidates to participate in the programme, given that from a possible refusal to accept the invitation to participate, adverse impressions may be created among the electorate.
Held, (A) Per Triantafyllides. P. and A. Loizou, Malachtos, loris, Stylianides and Kourris, JJ.: (1) With the exception of subsections (c) and (i)(cc) of section 5, the sub judice law secures, as it is required by Article 35 of the Constitution, the efficient application of the provisions of Article 19 of the Constitution for the benefit of the candidates for the time being for the office of the President of the Republic and the electors.
(2) The exercise of the right of the freedom of search and expression, safeguarded by Article 19 of the Constitution, cannot be made either directly or indirectly obligatory subsections (c) and (i)(cc) amount to an indirect coercion of the candidates to appear in order to avoid the impression that they are avoiding public discussion among themselves. Consequently, the said subsections are repugnant to and inconsistent with Article 19 of the Constitution.
(3) The sub judice law is neither repugnant to nor inconsistent with Article 28 of the Constitution, because its provisions are based on reasonable and, in the circumstances, justifiable criteria, the adoption of which was reasonably open to the House of Representatives.
(4) The sub judice law is neither repugnant to nor inconsistent with Article 40 of the Constitution, because it does not prevent either directly or indirectly any citizen from cont-sting the election to the office of President of the Republic.
(5) Subsections (c) and (j)(cc) of section 5 can be severed from the other provisions of section 5, and, consequently, in promulgating the sub judice law by publication in the official Gazette pursuant to Article 52 of the Constitution the President of the Republic should only omit publication of subsections (c) and (j)(cc) of section 5 of the law.
(B) Per Pikis, J.: (1) The objects of the law are wholly outside the framework of Article 40 and can justifiably be described as irrelevant to its provisions. None of the Articles of the Constitution regulate matters referable to the election campaign and transmission of the views of the candidates through the mass media.
It follows that the House of Representatives is free to regulate the matter in the exercise of the powers vested in the body by Article 61 of the Constitution. Subject always to the condition that legislative regulation does not offend the provisions of the Constitution safeguarding the fundamental rights of man.
(2) Not only the case law of the Courts of the U.S.A. invoked by the Deputy Attomey-3eneral does not support his views with regard to the inconsistency of the sub judice law with the principle of equality, but on the contrary, they recognise competence to the legislature to regulate matters referable to the projection of the views of the candidates for political office through the radio and television frequencies in the interest of their fair treatment and simultaneously the protection of the right of the people to a comprehensive and unhindered information about political matters.
(3) the notion of equality is identified with the intrinsic homogeneity of things ruling out distinctions among persons, objects and situations that are in essence dissimilar. Article 28 does not limit legislative competence to make distinctions between dissimilar objects or situations.
(4) Article 19 safeguards freedom of speech and expression and the related right of freedom of information.
(5) Contrasting the provisions of the law to those of Articles 28 and 19, we conclude that:
(1) The composition and terms under which the C.B.C. functions are not governed by the Constitution. The subject is exclusively referable to the competence of the legislature.
(2) The corelation between the right of projection through the C.B.C. and the status of candidates on the one hand, and the impact of their candidature among the people that derives from the definition of «candidate for the Presidency» given by the law on the other, is interwoven with the functionability of the democratic regime.
(6) None of the provisions of the law limits directly or indirectly freedom of expression. Imparting comprehensive and unhindered information to the public about the positions of the candidates safeguards the functionability of democracy in Cyprus.
Opinion as above.
Cases referred to:
C.B.S. Inc. v. Federal Communications Commission, 69 L. Ed. 2d. 706;
Red Lion Broadcasting Co. v. Federal Communications Commission, 23 L. Ed. 2d. 371;
Columbia Broadcasting System v. Democratic National Committee, 36 L. Ed.772.
Sunday Times Case, Series A, Judgments and decisions, Vol.30 (European Court of Human Rights);
Police v. Ekdotiki Eteria, (1982)2 C.L.R. 63:
Improvement Board of Eylandjia v. Constantinou (1967)1 C.L.R. 167;
Pitsillos v. C.B.C. (1982) 3 C.L.R. 208.
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the provisions of the Cyprus Broadcasting Corporation (Amendment) Law, 1987 are repugnant to or inconsistent with the provisions of Articles 19, 28, 40 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.
M. Christophides, for the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P.: On 5 August 1987 the President of the Republic filed, pursuant to the provisions of Article 140 of the Constitution, this Reference for the opinion of the Supreme Court whether the Cyprus Broadcasting Corporation (Amendment) Law, 1987 is repugnant to or inconsistent with the provisions of Articles 19, 28, 40 and 179 of the Constitution.
This Law contains provisions relevant to the treatment by the Cyprus Broadcasting Corporation of the candidates for the time being for the Office of the President of the Republic, during the period of six months preceding the end of the period in Office of the President of the Republic for the time being.
The Supreme Court considered the matter in issue and the unanimous opinion of the majority of its members (M. Triantafyllides, P., A. Loizou, Malachtos, Loris, Stylianides, Kourris, JJ.) is as follows:
(1) With the exception of subsections (c) and (j)(cc) of section 5, the sub judice law secures, as it is required by Article 35 of the Constitution, the efficient application of the provisions of Article 19 of the Constitution for the benefit of the candidates for the time being for the Office of the President of the Republic and the electors, within the context of the correct performance of the mission of the Cyprus Broadcasting Corporation and for this reason the sub judice law is not repugnant to or inconsistent with Article 19 of the Constitution.
(2) Subsection (c) and (j)(cc) of section 5 of the sub judice law impose an obligation on the Cyprus Broadcasting Corporation to invite the candidates for the time being for the Office of the President to participate in television programmes of discussions among themselves, and this amounts to an indirect coercion of the candidates to appear in order to avoid the impression that they are avoiding public discussion among themselves. As, however, the exercise of the right of the freedom of speech and expression, safeguarded by Article 19 of the. Constitution, cannot be made either directly or indirectly obligatory, the indirect coercion of the candidates for the time being for the Office of the President to participate in television programmes of discussions among themselves infringes the aforesaid right and, consequently, subsections (c) and (j)(cc) of section 5 of the sub judice law arc repugnant to: and inconsistent with Article 19 of the Constitution.
(3) The sub judice law is neither repugnant to nor inconsistent with Article 28 of the Constitution, because its provisions are based on reasonable and, in this circumstances, justifiable criteria, the adoption of which was reasonably open to the House of Representatives.
(4) The sub judice law is neither repugnant to nor inconsistent with Article 40 of the Constitution, because it does not prevent either directly or indirectly any citizen from contesting the election to the office of President of the Republic.
(5) Since subsections (c) and (j)(cc) of section 5 of the sub judice law are repugnant to and inconsistent with Article 19 of the Constitution, they are, also, unconstitutional, as being repugnant to and inconsistent with Article 179 of the Constitution. As, however, these subsections can be severed from the other provisions of section 5, the sub judice law is not - except only the aforesaid subsections - unconstitutional as being repugnant to and inconsistent with Article 179 of the Constitution, because it is neither repugnant to nor inconsistent with Articles 19, 28 and 40 of the Constitution and, consequently, in promulgating the sub judice law by publication in the official Gazette pursuant to Article 52 of the Constitution the V President of the Republic should only omit publication of subsections (c) and (j)(cc) of section 5 of the law.
ALAW TO AMEND THE CYPRUS
BROADCASTING CORPORATION LAW
The House of Representatives votes as follows:
1. This law will be cite as the Cyprus Broadcasting Corporation (Amendment) Law 1987 and shall be read together with the Cyprus Broadcasting Corporation Law (hereinafter referred to as «the basic law»)
2. For the purposes of this law: «House» means the House of Representatives:
«News» means the news broadcasted by radio and television:
«Second period» means the last three months of the period.
«Republic» means the Republic of Cyprus.
«Elections» means the elections held for electing a President.
«Corporation» means the Cyprus Broadcasting Corporation.
«Political party» means a party represented in the House or an Organisation or an Association of persons or a team of persons, which in accordance with the understanding, of the average reasonable citizen, having knowledge of the internal political situation of Cyprus and having regard to its Organisation, structure, institutions, objectives and impact is deemed to be a political party.
«President» means the President of the Republic.
«Presidential candidate» means a person, who declares in public his intention of putting up his candidature for election as President in the next elections; provided that such person possesses the qualifications prescribed by the Constitution for election to the Office of the President and satisfies one or more of the following requirements. i.e.
(a) Holds, at the time of such declaration the Office of the President,
(b) It is leader of a political party,
(c) Is supported by one or more political parties,
(d) Is a person, who in accordance with the understanding of the average prudent citizen played or plays an important role in the political or economic or social life of Cyprus or is a personality enjoying respect from part of the electorate:
Provided that the Presidential candidate shall cease to be regarded as such, as from the moment he may have declared that he has ceased to be interested in being elected to the Office of the President.
«Period» means the period of time, which beings six months before the expiration in accordance with the Constitution of the period in office of the President for the time being and ends on the day, which follows the day of the election, which results in the election of a new President.
3. Notwithstanding any provision in the basic law, the Corporation is bound to secure during the period the just treatment of the Presidential Candidates for the time being.
4. Without prejudice to the generality of the provisions of section 3 of this law the Corporation has during the First period the following obligations:
a) To broadcast through the news in a short and concise form the electioneering of each presidential candidate.
b) To broadcast through the main news without omissions any statements or announcements of each presidential candidate, provided that their reading in a normal speed shall not exceed two minutes:
Provided further that if such reading exceeds two minutes, the Corporation, without prejudice to its obligations to broadcast as aforesaid the statements or announcements of the other presidential candidates, shall be bound to broadcast a summary lasting about two minutes of the relevant statements or announcements.
c) To grant once in every week a five-minute period to each presidential candidate, in order that such candidate or his representative may address the people of Cyprus through both radio and television.
d) To grant once a month to each President Candidate a period of fifteen minutes in order that such candidate or his representative may address the people of Cyprus through both radio and television.
e) To cover in full both by radio and television one press conference of each presidential candidate:
Provided that the time granted in virtue of this provision shall not exceed sixty minutes:
Provided further that the transmission is made during the day, when the press conference shall have been held.
Provided moreover that it is a matter within the discretion of each presidential candidate to fix the-date of his press conference, which shall be transmitted as aforesaid by the Corporation.
5. Without prejudice to the generality of section 3 of this Law the Corporation during the second period shall have the following obligations:
a) To cover in the news six speeches of each presidential candidate, that is one speech in the town of Nicosia, one in the town of Limassol, one in the town of Larnaca, one in the town of Paphos, one addressed to the people of Famagusta and one to the people of Kyrenia. The duration of each such cover shall be ten minutes.
b) To cover in the news in a space of five minutes in respect of each meeting five more election meetings of each presidential candidate or of his representative as each candidate may indicate.
c) Once at least, to invite all the presidential candidates to appear together in a television programme of at least two hours in order to discuss and transmit live their views and to take care that the programme shall be coordinated in a balanced manner.
Provided that the Corporation shall be bound to transmit the programme, if at least two candidates accept to participate therein
d) To cover one at least press conference of each presidential candidate; in this respect the provisions of subsection 4(e) of this law are applicable mutatis mutandis.
e) To make in a special programme daily announcements in respect of election meetings, which will be held during the same or the next day either by each presidential candidate or for his benefit or in support of his candidature:
Provided that the number of the meetings to be announced as aforesaid shall not exceed five.
f) During the last forty five days of the second period, to transmit daily at about 1.45 p.m. through the radio announcements of each presidential candidate or of a political patty supporting a presidential candidate, provided that the duration of each announcement shall not exceed five minutes.
g) To invite each presidential candidate in the programme ((Meet the Press or in another similar programme. The members of the press, who will put the questions shall riot exceed three (the same number shall apply. in all cases) and shall be chosen by the Editors in Chief or representatives of newspapers and shall represent different political inclinations and views. The duration of the programme shall be 75 minutes and shall be transmitted immediately after the television news.
h) To transmit at least one interview of each presidential candidate or of his representative relating to his policy on basic subjects (The Cyprus Problem, the economy, social policy, education etc); the questions and the duration of each interview shall be the same in all cases. The duration shall be twenty minutes approximately.
The interview shall be transmitted both by radio and television. The obligation of the Corporation in virtue of this subs.2ction shall be performed during the second month of the second period.
i) Near the end of the election campaign the Corporation is bound to grant time successively during the same day to the presidential candidates in order to address the people both through radio and television. The duration, of such time shall not be more than fifteen minutes.
j) In case of repetition of the election in accordance with the provisions of Article 39.2 of the Constitution and during the period from the end of the first election until such repetition, the Corporation shall have the following obligations:
aa) To cover both by radio and television at least one meeting of each presidential candidate, entitled to contest the repetition of the election pursuant to the aforesaid Article of the Constitution. The duration of such cover shall be twenty minutes.
bb) To transmit daily without omissions through the news the statements and announcements of such candidates; provided that if the reading in normal speed of the statements or announcements of a candidate cannot be completed within five minutes, the Corporation shall, without prejudice of its said obligation as regards the other presidential candidate, transmit a summary of such statements or announcements, the duration of which shall be five minutes.
cc) To invite the two presidential candidates in a programme lasting between 90 and 120 minutes for the purpose of a live television discussion of their views and to coordinate such programme in a fair and balanced way:
Provided that if one of the candidates does not accept the invitation, the Corporation shall grant to the other candidate time of sixty minutes in order to express shortly through television his views and answer questions of three members of the press to be chosen by applying mutatis mutandis the provisions of subsection (9) of this section.
dd) The provisions of subsections (e), (f) and (i) of this section shall apply mutatis mutandis.
6) Nothing in this Law shall be interpreted as creating a right or an obligation, of the Corporation to transmit anything that may amount to defamation in accordance to the provisions of the Civil Wrongs Law Cap. 148.
7. The order to be followed in the cases of subsections (a), (b) and (c) of section 4 of this Law and the order to be followed in the cases of subsections (e)(f) and (j)(bb) of section 5 shall be in proportion to the political power of the party of which the presidential candidate is chairman or by which he is supported. The independent candidates shall follow in alphabetical order. In the case of subsections (g) and (h) of section 5 the appearance of the independent candidates (the order as between such candidates shall be regulated in alphabetical order) shall precede the appearance of the other candidates and the order of appearance of such other candidates as among themselves shall be the reverse to that applicable in the cases of subsections (a), (b), (c) of section 4 and subsections (e), (f) and (j) (bb) of section 5 of this law.
Provided that the programmes of each of subsections (g) and (h) of section 5 of this law shall be transmitted in successive days - except Saturdays and Sundays. The completion of the programmes of subsection (h) shall precede the beginning of the transmission of the programmes of subsection (g), of section 5 of this law.
PIKIS J.: The President of the Republic seeks by this Reference the opinion of the Supreme Court on the constitutionality of the Cyprus Broadcasting Corporation (Amendment) Law, 1987. Specifically, he seeks pursuant to the provisions of Article 140 of the Constitution the opinion of the Supreme Court whether the law is repugnant to or inconsistent with the provisions of Article 40 that define the qualifications for election to the office of President of the Republic, Article 28 that safeguards equality before the law and the Administration, and lastly Article 19 that guarantees freedom of speech and, expression and the unobstructed reception and imparting of information.
The manifest object of the law, the constitutionality of which we have been asked to review is the enactment of a code for the projection of the position and views of candidates for the Presidency through the radio and television network during the period of the election campaign. In broad outline, the law defines the duration of the electoral period, the manner and extent of the projection of the views of the candidates by the C.B.C., and casts on the network an obligation to hold a special television programme for the joint appearance of all the candidates to answer questions in the context of a common interview. Participation of the candidates in the programme is optional. Each candidate is free to accept or reject the invitation to participate. Materialization of the programme is ultimately dependent on acceptance of the invitation to participate by at least two candidates.
The constitutionality of the law is challenged only in relation to the aforementioned three Articles of the Constitution read in conjunction with Article 179 of the Constitution that proclaims the Constitution to be the supreme law of the Republic. No challenge is raised to the Law and the law is not contested by reference to the separation or division of State power imposed by the Constitution nor have we been asked to decide whether the provisions of the law or any one of them penetrates into the domain of administrative power.
Synoptically, the position of Mr. Loucaides, Deputy Attorney General, who supported the Reference on behalf of the President of the Republic is:
(a) Notwithstanding that Article 40 of the Constitution does not expressly create a right for the projection through the C.B.C. of the views of candidates for the Presidency, such a right should be inferred from its provisions especially if read in conjunction with those of Article 28 of the Constitution. Consequently, every, citizen of the Republic of Cyprus who has the qualifications and submits a candidature for the office of the President has the same rights to transmission of his views through the C.B.C. And in as much as the law that regulates election to the Office of President of the Republic (Law 37/59, as amended) lays down by section 9(4) that candidatures for the office of President should be submitted 10 days before the holding of the elections, the provisions of the law violate the right of every possible candidate to equal projection of his views through radio and television. The logic of the submission of Mr. Loucaides and the corollary of it is that the Constitution limits the projection of the positions of candidates for the office of President to ten days that is the period from the submission of the candidatures to the elections. The legislative authority, therefore, had no power to fix a different period for the projection of the views of candidates through the C.B.C. other than that laid down in the Constitution.
(b) The definition furnished by the law of «candidates for the presidency» contravenes the provisions of Article 28 to the extent that it does not extend the right of projection through the C.B.C. to every prospective candidate. The law confers the right to projection of their views and activities to the following categories of candidates for the Presidency.
(i) the person holding the office of 'President of the Republic;
(ii) all leaders of political parties;
(iii) to candidates supported by one or more parties; and
(iv) to independent personalities who, on account of their action or participation in public affairs enjoy respect among part of the electoral body.
The legislature links the right to projection of the candidates to the response of the public to their candidacy.
Moreover, the provisions of Article 28 are infringed by the provisions of s. 5(c) that provides for common appearance of the candidates on television without making supplementary provision for the projection in a separate programme of the views of those candidates who do not accept the invitation.
(c) The same section of the law, 5(c), as well as 5(j)(cc) that provides for a second television programme for the joint appearance of the two candidates who poll most votes, in the event of no candidate receiving more than 50 per centum of the votes during the first round, conflict with : and are repugnant to the provisions of Article 19 that safeguards freedom of speech and expression. Article 19 is breached because the law exerts in an indirect way pressure upon the candidates to participate in the programme given that from a possible refusal to accept the invitation to participate, adverse impressions may be created among the electorate. The pressure results in neutralization of freedom of expression that includes the right to choose the platform for expression of one's views and position.
In addition, the law defies the right assured by paragraph 2 of Article 19 which in the submission of Mr. Loucaides, safeguards the balanced and correctly edited opinion that is imparted to the public by the radio and television network. It is the thesis of Mr. Loucaides that this Article of the Constitution recognizes indirectly a right to the radio and television authorities to edit news and information that are transmitted to the public. In essence the law, Mr. Loucaides suggested, neutralizes the discretion of the C.B.C. Authorities to evaluate the news and information and imposes, in essence, the requisition of the C.B.C. for the projection of the views of the candidates and propagation of their views.
The American case law invoked by Mr. Loucaides in aid of his submission mostly revolving round the interpretation of the first amendment to the U.S.A. Constitution that safeguards freedom of expression does not support, the suggested limitations to the exercise of legislative power. On the contrary, they recognize competence to the legislature to regulate matters referable to the projection of the views of the candidates for political office through the radio and television frequencies in the interest of their fair treatment and simultaneously the protection of the right of the people to a comprehensive and unhindered information about political matters.
In the United States too, the commencement of the election campaign is not identified with the submission of candidatures for the office of President, hut begins earlier, whereupon a parallel obligation is cast upon radio and television authorities for the fair @@@rojection of the views of the candidates through the radio and television frequencies that constitute national property. Also, the right to projection of the views of candidates through radio and television airwaves is dependent in America as well, upon the response of the public to the candidature of the various @@@ontestants for office. As in the case of the law here under consideration, the right of access of the candidates to radio and 3levision frequencies is tied to certain objective criteria aimed to define the seriousness of the candidature of the contenders for office.
Mr. Christofides submitted on behalf of the House of representatives that not only the law does not defy the Articles of e Constitution invoked by the President of the Republic, but on @@@ie contrary promotes the right of the public to have wholesome formation in a domain, of exceptional importance to the well@@@eing and progress of the people, the election of President of the republic. The law safeguards in a decisive manner, as he submitted, the functionability of the democratic polity of Cyprus.
I examined with great care every aspect of the law in order to decide whether, read as a whole or specific sections of it conflict @@@th the provisions of Article 40, 28 and 19 of the Constitution.
I begin by noting that the objects of the law are wholly outside the framework of Article 40 and can justifiably be described as irrelevant to its provisions. Article 40 deals exclusively with the qualifications for election to the office of President of the Republic, while the law' regulates the wholly different subject of projection of he views of the contenders for the office through the radio and television.
Not only Article 40 but none of the Articles of the Constitution regulate matters, referable to the election compaign and transmission of the views of the candidates through the mass media. Exclusive competence for the establishment of the framework of the election campaign for the Presidential office including projection of the views of the candidates through the C.B.C. lies with the House of Representatives in the exercise of the @@@owers vested in the body by Article 61 of the Constitution subject always to the condition that legislative regulation does not offend the provisions of the Constitution safeguarding the fundamental rights of man.
There remains to decide whether the law violates the provision of Article 28 that safeguard equality, arid those of Article 19 the entrench freedom of speech and expression and freedom t receive and impart information and ideas.
Fundamental articles of the Constitution safeguarding freedom and liberty of man are always interpreted and construed in manner compatible with their universal character, their effective application and promotion of the objects intended to be achieved by a code of human rights. Article 28 safeguards equality before the law and the Administration. The notion of equality is identified with the intrinsic homogenity of things ruling out distinction among persons, objects and situations that are in essence dissimilar. Article 28 does not limit legislative competence to make distinctions between dissimilar objects or situations. On the contrary, it can be said that their assimilation violates the spirit c. equality safeguarded by Article 28. The basic object of Article 2 is the prevention of distinctions that have no logical basis and are not justified by the nature of the subjects of the law.
Article 19 safeguards freedom of speech and expression and the related right of freedom of information. It has been decided by the European Court of Human Rights that Article 10 of the. European Convention of Human Rights at the point where it corresponds to Article 19.2 of the Cyprus Constitution, safeguards the right of the public to information.
On the other hand, it has been decided by the Full Bench of the Supreme Court in the case of Police v. Ekdotiki Eteria, (1982) C.L.R. 63, that no limitation to fundamental human rights is permissible except when allowed by the Constitution and then subject to its provisions.
Free dialogue and wholesome information of the public can characterized as the foundation of democracy.
Contrasting the provisions of the law (Improvement Board o. Eylandjia v. Constantinou, (1967) 1 C.L.R. 167) to those of Article 28 and 19, we conclude that
(1) The composition and terms under which the C.B.C functions are not governed by the Constitution. The subject is exclusively referable to the competence of the legislature. The C.B.C. functions within the framework set by the law. Official of the C.B.C. have no discretionary powers other than those given them by law.
(2) The corelation between the right of projection through the C.B.C. and the status of candidates on the one hand, and the impact of their candidature among the people that derives from the definition of «candidate for the Presidency» given by the law on the other, is interwoven with the functionability of the democratic regime. But it is wide enough to confer a right to projection through the media on every candidate whose candidacy can be described on the basis of objective criteria as serious.
In the case of Pitsillos v. C.B.C., (1982) 3 C.L.R. 208, it was decided that the description by a group of persons as a political party is not in itself sufficient to bestow upon the group the identity of a political party. Political parties are defined by reference to substantive criteria related to political reality and democratic institutions. Therefore, it was held that the C.B.C. had a discretion to exclude Mr. Pitsillos, leader of «Justice Party» consisting of a group of persons registered as a club on the ground that it did not fulfil the objective prerequisites of a political party.
In my judgment in this case too, the distinction made between the candidates to whom the right of projection of their views through the C.B.C. is conferred and others who are not included in the definition is not arbitrary but is directly related to political reality and the functionability of democracy. It must be stressed that the law does not prevent any candidate from propagating his views. The law only limits the right of projection of their views through the C.B.C.
The omission to make provision for compensating candidates who refused the invitation to participate in the common programme (s. 5(c)) by making provision for a separate appearance, does not offend the notion of equality entrenched in Article 28. The law confers sufficient opportunities for the individual projection of the views of every candidate. The common appearance of candidates aims exclusively at the establishment of an additional platform for informing the public about the views and positions of the candidates on matters of public interest.
(3) None of the provisions of the law limits directly or indirectly freedom of expression. The object of the law is the direct and authentic communication to the electoral body of the views and activities of candidates; an aim not only compatible with Article 19.2, but also conducive to the attainment of its objectives. The objects of the law are inextricably tied to the adequacy of the information of the public about the views and personality of the candidates so that the electoral body may form an opinion about their worth and competence to exercise the high duties of Presidency. Election to the office of President who, according to the Constitution is Head of State and also the Head of the executive branch is the most consequential subject of the political life of the country. Imparting comprehensive and unhindered information to the public about the positions of the candidates safeguards the functionability of democracy in Cyprus.
(4). Moreover, the provisions of section 5(c) and 5(j) (cc) that make provision for common appearance of the candidates in a television programme do not in any way limit the right of freedom of expression safeguarded by Article 19. The candidates are free to reject the invitation and refrain from expressing their views in the context of that programme. That the electoral body may judge unfavourably refusal to participate in that programme is a subject solely referable to the political expediency of the measure and not to its constitutionality. The jurisdiction of the Court is limited, in accordance with the express provisions of Article 140, to rendering and opinion on the constitutionality of the law. Control of political expediency of the content of legislation is wholly outside the sphere of judicial power. The sole arbiter of political expediency is the electoral body, the sovereign arbiters of the political life of the country. It is entirely up to the candidates to express their views and positions as and when they choose. This freedom is fully safeguarded by the law.
I conlude that neither the law judged as a whole, nor individual provisions of it, conflict with any of the three Articles, of the Constitution by reference to which we were invited to determine its constitutionality.
My opinion rendered under Article 140 of the Constitution is 'that the law is not unconstitutional and must be promulgated in accordance with the provisions of Article 52 of the Constitution.
Opinion as above