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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 2213
1985 October 25
[TRIANTAFYLLIDES, P., MALACHTOS, SAVVIDES, LORIS,
STYLIANIDES, PIKIS, KOURRIS, JJ.]
THE PRESIDENT OF THE REPUBLIC,
Applicant,
v.
THE HOUSE OF REPRESENTATIVES,
Respondents.
(Reference No.11/85).
Constitutional Law-Constitution, Articles 40, 43.1, 44 and 179-Proclamation of premature Presidential election-Not envisaged of Articles 44.1-Therefore, sub. judice Law repugnant to and inconsistent with Article 44.1-Law of necessity does not justify its enactment, because it has not been passed as a law amending Article 44.1, which is not a basic constitutional provision.
On the 26th July 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its opinion the question as to whether the provisions of sections 3, 4, 5 and 6 of the Proclamation due to Necessity of Premature Presidential Election (Special) Law, 1985 which are referred to in Appendix 1 to the Reference, are repugnant to, or inconsistent with, the provisions of Articles 40, 43.1 and 43.3 44 and 179 of the Constitution. (The text of the sub judice law is quoted at pp. 2218-2219 post).
Held, per Triantafyllides, P. and Malachtos, Savvides, Loris and Stylianides, JJ. (1) Article 43.1 of the Constitution provides that the period in officer of the President of the Republic is five years.
(2) The tenure of office of the President comes to an end before the expiration of the said period only if the office becomes vacant for anyone of the reasons specified in Article 44.1 of the Constitution.
(3) Although from the joint construction of Articles 44.1 and 40 it is derived that the President is, when his office becomes vacant, by reason of his resignation, entitled to stand for re-election at the by-election which takes place pursuant to Article 44.4, there is not envisaged by Article 44.1 the proclamation by the President of a premature Presidential election.
(4) Consequently the sub judice law which provides for such a proclamation is inconsistent with and repugnant to Article 44.1.
(5) The law of necessity does not justify its enactment as it has not been passed as an amendment of Article 44.1, which is not a basic provision of the Constitution.
Per Pikis, J. (Kourris J. concurring) (1) it is correctly acknowledged in the preamble to the sub judice law that the solution sought by its provisions cannot be reconciled with the Constitution.
(2) The said enactment conflicts with the express provisions of Article 44. The first paragraph of Article 44 lays down precisely when the office of the President of the Republic becomes vacant. The Institution of Premature Presidential Elections as enacted in the sub judice law conflicts with Article 44.1, 44.2 and 44.3 of the Constitution.
(3) The law of necessity does not justify the said law. The necessity which this law purports to remedy is inexistent, for the objectives of the law could have been achieved, within the framework of the Constitution.
(4) The law aims at the interpretation of the Constitutional provisions relating to the holding of a presidential by-election and qualifications for candidature in such an election. The interpretation of the Constitution falls within the exclusive Jurisdiction of the Courts.
(5) The law is, therefore, repugnant to and inconsistent with Article 44.1.2.4 of the Constitution.
Observations by Pikis, J.: Adherence to the Constitution is not only dictated by the provisions of Article 179 that makes the Constitution the supreme law of the Republic, but it is also dictated by the tragic realities of Cyprus especially the threats to the status of the State. The independence of Cyprus is entrenched in the Constitution. Every deviation from it provisions, weakens the foundation of the Cyprus state.
Opinion accordingly.
Cases referred to:
President of the Republic v. House of Representatives (1985) 3 C.L.R. 1429;
President of the Republic v. House of Representatives (1985) 3 C.L.R. 1501;
Diagoras Development Ltd. v. National Bank of Greece (To be published in (1985) 1 C.L.R.).
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the provisions of sections 3, 4, 5 and 6 of the Proclamation due to Necessity of Premature Presidential Elections (Special) Law, 1985 are repugnant to or inconsistent with the provisions of Articles 40, 43.1 and 43.3, 44 and. 179 of the Constitution.
L. Loucaides, Deputy Attorney-General of the Republic with R. Gavrielides, Senior Counsel of the Republic, for the President of the Republic.
A. Markides with D. Chrysomilas, for the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following opinion of the Court: On the 26th July 1985 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme Court for its Opinion the question as to whether the provisions of sections 3, 4, 5 and 6 of the Proclamation due to Necessity of Premature Presidential Election (Special) Law, 1985, which are referred to in Appendix 1 to the Reference, are repugnant to, or inconsistent with, the provisions of Articles 40, 43.1 and 43.3, 44 and 179 of the Constitution.
The said Law was enacted by the House of Representatives on the 11th July 1985 (the text of the Law is attached hereto).
On the 12th July 1985 the House of Representatives transmitted the Law to the President of the Republic, who, before promulgating it pursuant to Article 52 of the Constitution, filed the present Reference.
The Supreme Court on the 18th and 19th September 1985 heard, through their counsel, arguments on behalf of the President of the Republic and of the House of Representatives, in accordance with Article 140.2 of the Constitution.
The Supreme Court considered the question referred to it and the unanimous Opinion of the majority of its Members (M. Triantafyllides, Y. Malachtos, L. Savvides, A. Loris and D. Stylianides) is the following:
1. Article 43.1 of the Constitution provides that the period of office of the President of the Republic is five years.
2. The tenure of office of the President of the Republic comes to an end before the expiration of its five years period only if the office of the President of the Republic becomes vacant for any one of the reasons specified in Article 44.1 of the Constitution, in which there is included also, the resignation of the President of the Republic in accordance with paragraph (b) of the said Article 44.1.
3. Although from a joint construction of Article 44.1 and Article 40 of the Constitution it is derived that the President of the Republic is, when he resigns during his term of office, entitled to stand for re-election as President of the Republic at the by-election for President of the Republic which takes place within forty-five days pursuant to Article 44.4. of the Constitution, there is not envisaged by Article 44.1 of the Constitution the proclamation by the President of the Republic of a premature Presidential election.
4. Consequently the sub judice Law, which provides that the President of the Republic may, during his term of office, proclaim a premature Presidential election and, thus, provides about the termination in a manner not envisaged by Article 44.1 of the Constitution of the according to Article 43.1 of the Constitution five years period of office of the President of the Republic, is repugnant to, and inconsistent with, the said Article 44.1.
5. There cannot be justified by virtue of the "Law of Necessity" the enactment of the sub judice Law, which even though it is repugnant to, and inconsistent with, Article 44.1 of the Constitution, has not been passed as an amendment of the said Article 44.1, which is not a basic provision of the Constitution.
6. In the light of the foregoing the sub judice Law, which has been enacted, and must be judged, as an integral legislative provision, is as a whole repugnant to, and inconsistent with, the Constitution and, therefore, it is unconstitutional as being repugnant to, and inconsistent with, also, Article 179 of the Constitution.
The present Opinion is notified, in accordance with Article 140.2 of the Constitution, to the President of the Republic and to the House of Representatives.
("A LAW TO PROVIDE FOR THE PRO CLAMATION BY NECESSITY OF A PRE-MATURE PRESIDENTIAL ELECTION
Whereas the internal situation and the critical phase of the Cyprus Problem may render necessary the holding of a premature election for a President of the Republic in order to enable the people directly to express their will,
And whereas the abnormal situation which prevails in Cyprus by reason of the Turkish invasion and the occupation of part of Cyprus makes it impossible to meet the said special necessity in accordance with the relevant constitutional provisions,
And whereas it is necessary to take temporary legislative measures in order to meet such necessity,
Now, therefore, the House of Representatives enacts as follows:
1. This law shall b cited as The Proclamation by Necessity of a Premature Presidential Election (Special) Law 1985.
2. In this Law
"Republic" means, the Republic of Cyprus
"election" means the election of President
"abnormal situation" means the situation created by reason of the Turkish invasion which continues to exist until, by notification to be published in the Official Gazette of the Republic, the Council of Ministers shall fix a date for its termination.
"law" includes any provision of a legislative nature.
"President" means the President of the Republic.
"Premature election" means the election which is held before the expiration in accordance with the law of the period of office of the President.
3. Notwithstanding the provision of any other law, during the continuance of the abnormal situation the person who holds the Office of the President may, at any time, proclaim a pre mature election, which shall take place within a period not exceeding forty five days of the date of the proclamation of the election.
4. The person proclaiming the Presidential election shall be qualified to be a candidate for election in the election which follows the proclamation.
5. The new President shall hold office for the unexpired period of office of the President who proclaimed the election.
6. As from the date of the proclamation and until the investiture of the President, who will be elected, the President of the House of Representatives shall act as President").
PIKIS J.: Although our decision is unanimous in the result, that is that the law under review in this Reference is unconstitutional, my reasons for arriving at this conclusion are different from those of the majority of the members of the Supreme Court. Therefore, I am duty bound to reason my opinion in a separate judgment as provided in Art. 30.2 of the Constitution:-
(1) The subject of this Reference is the constitutionality of the Necessity for the Proclamation of Premature Presidential Election (Special Law 1985. The Supreme Court is asked to decide whether the provisions of this Law conflict with those of Articles 40, 43.1, 43.3, 44 and 179 of the Constitution it is acknowledged in the preamble to the law that the solution sought by its provisions cannot be reconciled with the constitutional framework for the election and procedure for election of the President of the Republic. The deviation from the Constitution is justified by reference to the existing internal situation, the present critical phase of the Cyprus problem and inability because of the existing anomalous situation created by the Turkish invasion of the country to seek a constitutional solution.
(2) The acknowledgment that the law cannot be reconciled with the Constitution is correct. Not only it is incompatible with the Constitution but the enactment conflicts with the express provisions of Art.44 that govern the holding of a presidential election before the expiration of the term of the President. The juristic institution of the proclamation of a premature presidential election is unknown to the Constitution and repugnant to its provisions. In the eventuality of a vacancy occurring in the office of the President of the Republic, the only way of filling it is through the hoding of a byelection as specified in Art. 44.2.4 of the Constitution. The Constitution does not confer any night on the President to proclaim himself a "premature presidential election". As I indicated in my judgment in President of the Republic v. House of Representatives-reference 1/85-and president of the Republic v. House of Representatives-Recourse 431/85-Art.44 specifies exhaustively the prerequisites for the holding of a byelections as well as the procedure and time interval with in which it must be held. The first paragraph of Art.44 lays down precisely when the office of the President of the Republic becomes vacant. In accordance with para. 1(b) of Art. 44, the office of the president of the Republic becomes vacant when the President submits his resignation in writing. In that eventuality the President of the House of Representatives acts as President of the Republic until a new President is elected in a byelection to be held within 45 days-Art. 44.2.4. The right of President to resign before the expiration of his term in office is unlimited and is not subject to any control.
Consequently the law here under examination is repugnant to and inconsistent with the provisions of Art. 44; because the institution of premature presidential elections as enacted in this law conflicts with the aforementioned provisions of Art.44 and is repugnant to and inconsistent with them.
(3) The enactment of the law is not justified as a measure of necessity either. The necessity the law aims to remedy with the introduction of the institution of premature elections is in reality inexistent for, the Constitution itself contains detailed provisions for the holding of elections, before the expiration of the five-year term in office of the President. The objectives of the law may be achieved with- in the framework of the existing constitutional provisions. The objects of the Law, as may be gathered from the provisions of s. 3, 4, 5 and 6, are: (i) The conferment of a right to, the President to proclaim presidential elections. (ii) The conferment of a right upon the President resigning office to be a candidate in the byelection that follows his resignation. And (iii) the regulation of the temporary succession of the President and the procedure for the conduct of the byelection.
The achievement of all three purposes of the Law is possible within the framework of the Constitution. The President of the Republic can cause a byelection before the expiration of his five-year term by submitting his resignation in writing. As indicated, Art. 44.1 does not place any limitation upon the right of the President to resign before the expiration of his term, whereupon the necessary prerequisites are automatically created for the holding of a byelection as specified in Art. 44.2. The attempt of the House of Representatives to acknowledge a right to the President who resigns to be a candidate in the byelection that follows is apparently based on an erroneous appreciation of the relevant provisions of the Constitution, particularly those of Art. 40 that lay down the qualifications of candidates for the office of the President of the Republic. Resignation from the office of President does not create any obstacle, in accordance with Art.40 to submitting a candidature in the byelection that follows. The only qualifications for candidature in any election for the office of President of the Republic, including a byclection, are those demanded by Art. 40. The temporary filling of the office of the President until the return of a new President and the procedure followed are also specified succinctly by the Constitution - Art. 44.
Not only there are no reasons that justify recourse to the law of necessity, a measure of last resort for the entrenchment of constitutional institutions but the very necessity that the legislature invokes is, for the reasons explained hereinabove, non-existent in reality. The Constitution itself confers power for holding a byelection and regulates all matters incidental thereto no need whatever arises to deviate from the provisions of the Constitution. The enactment of the law aims, in my opinion, to furnish an interpretation of the provisions of the Constitution for the holding of a presidential byelection and qualifications for candidature in such an election, a competence beyond the jurisdiction of the House of Representatives As the Supreme Court declared in Diagoras Development Ltd. v. National Bank of Greece the interpretation of the Constitution and statutory enactments falls within the exclusive jurisdiction of the Courts.
(4) Adherence to the Constitution is not only dictated by the provisions of Art. 179 that makes the Constitution the, supreme law of the Republic, but it is also dictated by the tragic realities of Cyprus especially the threats to the status of the State. The independence of Cyprus is entrenched in the Constitution. Every deviation from its provisions weakens the foundation of the Cyprus State.
For the reasons explained in this opinion the Law is unconstitutional because its provisions are repugnant to and inconsistent with those of Art. 44.1.2.4 and those of Article 179 of the Constitution.
KOURRIS J.: I, too, conclude that the law under consideration in these proceedings is repugnant to and inconsitent with the provisions of Article 44.1.2.4 and those of Article 179 of the Constitution that makes the Constitution the supreme law of the Republic.
I agree with the reasoning of the opinion of Pikis, J. respecting the reasons for the unconstitutionality of the law that I adopt as an expression of my own position without need arising to add anything thereto.
Opinion as above.