|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1985) 3 CLR 2231
1985 October 17
[TRIANTAFYLLIDES, P., MALACHTOS, DEMETRIADES,
SAVVIDES, LORIS, STYLIANIDES, PIKIS, KOURRIS, JJ.]
IN THE MATTER OF ARTICLE 140OF THE CONSTITUTION
THE PRESIDENT OF THE REPUBLIC,
Applicant,
and
THE HOUSE OF REPRESENTATIVES
Respondents.
(Reference No.12/85).
Constitutional Law-Constitution, Articles 63 and 179-Law of Necessity-Does not justify sub judice Law which is inconsistent with Article 63.1 of the Constitution-Because such law has not been passed, as an amendment to Article 63, which is not a basic Article of the Constitution.
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 Franchise of the Eighteen Years Old (Temporary Provisions) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 63 and 179 of the Constitution. (The text of the sub judice law is quoted at pp. 2234-2235 post).
Held, Per Triantafyllides, P. and Malachtos, Demetriades, Savvides, Loris, Stylianides and Kourris,JJ.: (1) The sub judice law which provides that citizens who have attained the age of 18 shall have the right to be registeredas electors is repugnant to and inconsistent with Article 63.1 of the Constitution.
(2) The enactment of the said law cannot be justified by the law of necessity, because the said law has not been passed as an amendment of Article 63.1 which is not a basic Article of the Constitution.
(3) As the said law has been enacted as an integral and indivisible provision, it is as a whole, repugnant to the Constitution and therefore, repugnant to and inconsistent also with Article 179 of the Constitution.
Per Pikis, J.: The law of necessity does not justify the sub judice law. Recourse to such law would be justified only if the electoral body would become inert without the participation of the new class of voters. But the sub judice law is not founded upon such a premise nor could its existence be validly assumed. In view Of the restrictive provisions of Articles 63.1 and 179 the Court has no discretion to adjust the law to the new social needs.
Opinion accordingly.
Cases referred to:
The Attorney-General of the Republic v. Ibrahim and others, 1964 C.L.R. 195;
Aloupas v. The National Bank of Greece (1983) 1 C.L.R. 55.
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the Franchise of the Eighteen Years Old (Temporary Provisions) Law, 1985 is repugnant to or inconsistent with the provisions of Articles 63 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 Republic.
A. Markides, for the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the 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 Franchise of the Eighteen Years Old (Temporary Provisions) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 63 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 in accordance with Article 52 of the Constitution, filed the present Reference.
The Supreme Court, on the 20th 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, D. Demetriades, L. Savvides, A. Loris, D. Stylianides and A. Kourris) is the following:
1. Article 63.1 of the Constitution provides expressly that "every citizen of the Republic who has attained the age of twenty-one years shall have the right to be registered as an elector."
2. Consequently the sub judice Law which provides that citizens who have attained only the age of eighteen years shall have the right to be registered as electors is repugnant to, and inconsistent with, the aforesaid Article 63.1.
3. The reasons which are stated in the preamble to the sub judice Law establish that it is undoubtedly desirable to grant the right to vote to citizens of the Republic who have attained the age of eighteen years. There cannot be justified, however, by virtue of the "Law of Necessity", the enactment of the sub judice Law, which is repugnant to, and. inconsistent with, Article 63.1 of the Constitution and which has not been passed as an amendment of the said Article 63.1, which is not a basic Article of the Constitution. Itas to be stressed that in the present case the Supreme Court has not been called upon to give its Opinion, pursuant to Article 140 of the Constitution, in relation to the matter of amending Article 63.1 of the Constitution.
4. Since it is obvious that the sub judice Law, which is repugnant to, and inconsistent with, Article 63.1 of the Constitution, has been enacted as an integral and indivisible regislative provision, it follows that such Law 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 the House of Representatives.
("A LAW WHICH CONTAINS TEMPORARY PROVISIONS IN RESPECT OF THE GRANT OF THE RIGHT TO VOTE TO CITIZENS OF THE REPUBLIC WHO HAVE ATTAINED THE AGE OF 18.
Whereas the Constitution of the Republic grants the right to vote to those who have attained the age of 21,
And whereas, in accordance with a law which was passed under special circum stances after the coming into force of the Constitution, those who have attained the age of 18 are bound to enlist for military service and are considered as mature to undertake the responsibility of the military security of the state,
And whereas in accordance with present-day social values those who have attained the age of 18 are considered as mature to express political opinions,
And whereas the necessity of granting the right to vote to those, who are in all respects mature to exercise such right, is recognised,
And whereas, until the whole Constitutional problem of the Republic is determined andsolved, it is necessary to regulate the above matter by legislative provisions of a temporary nature,
Now therefore the House of Representatives enacts as follows:
1. This law shall be cited as The Franchise of the 18 Years Old (Temporary Provisions) Law, 1985.
2. In this law -
"Republic" means the Republic of Cyprus
"law" means any provision of a legislative nature.
(1) Notwithstanding the provisions of any law, the right to vote is granted to citizens, who have attained the age of 18.
(2) Citizens, who have attained the age of 18 shall have the right to be registered as electors in the electroral list in respect of any election which takes place in accordance with any law in the Republic, provided that they have all the qualifications required by law for such registration").
PIKIS J.: I agree that the Conferment of the Right to Vote to Persons who Complete their Eighteen Year of Age (Temporary Provisions) Law 1985, is in its entirety unconstitutional because its provisions are repugnant to and inconsistent with those of Article 63.1 respecting the age of voters and the provisions of Art. 179.1 of the Constitution that establish the Constitution to be ".. the supreme law of the Republic". My reasons for this conclusion are:
(1) Electoral right vests, as provided in Article 63.1, in every citizen of the Republic ".. who has attained the age of 21 years and has such residential qualifications as may be prescribed by the Electoral Law..". While the definition of the residential qualifications is left to the ordinary legislator, the age of the voters is specified in a manner definite in the Constitution. This limitation of the right to vote is recognized in the preamble to the law. The Houseof Representatives invokes the law of necessity as justification for the deviation from the provisions, of the Constitution. The only question we are required to answer is whether there exist the necessary prerequisites for recourse to the law of necessity.
(2) As the term "necessity" denotes and the caselaw of the Supreme Court supports, the law of necessity is a measure of last resort recourse to which is justified only when the institutions envisaged by the Constitution are threatened with collapse. The law of necessity is a measure of self-defence for the protection of the State from the destructive consequences of collapse of constitutional order and the rule of law. In essence it is a reserve power for the entrenchment of constitutional order. The law of necessity is not a means of bypassing the provisions of the Constitution nor an exit route from the limitative provisions of the Constitution. Recourse to the law of necessity would be justified only if the electoral body would become inert without the participation of the new class of voters. The law is not founded upon such a premise nor could its existence be validly assumed.
The conclusion that it is politically desirable and socially beneficial to confer the right to vote to persons who have attained the age of 18 does not vest any discretion in the legislature to deviate from the provisions of the Constitution. Nor does the Court have any discretion to adjust the law of the new social reality in view of the restrictive provisions of Article 63.1 and those of Article 179.1 of the Constitution that make the Constitution the Supreme law of land.
For the above reasons the law is unconstitutional and as such cannot be promulgated.
Opinion as above.