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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
ALOUPAS ν. NATIONAL BANK (1983) 1 CLR 55
APOSTOLIDES AND OTHERS ν. REPUBLIC (1982) 3 CLR 928
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1986) 3 CLR 1451
1986 April 9
[TRIANTAFYLIDES, P., A. LOIZOU, DEMETRIADES, SAVVIDES, 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. 1186).
Constitutional Law—Constitution—Amendment of non basic Articles of—Amendment by the sub judice law of Articles 63 and 66—Said Law enacted unanimously by the House of Representatives—Absence therefrom as from 1963 of Representatives, who belong to the Turkish Community— Consequently, said law enacted in deviation of the provisions of Article 182.3—Whether "Law of Necessity" justified such deviation—In the light of present circumstances said question answered in the negative— Sub judice law repugnant and inconsistent with Article 63, 66 and 179 of the Constitution.
Law of Necessity—Constitution—Amendment of non basic Articles of—Sub judice law amending Articles 63 and 66 —Whether in the absence as from 1963 of the Representatives of the Turkish Community from the House of Representatives the "Law of Necessity" justified deviation from the provisions of Article 182.3 in enacting said amendments—In the light of present circumstances said question answered in the negative.
The question raised in this reference is whether the sub judice law, which amends Article 63 of the Constitution by giving the right to vote to those who have attained the age of eighteen years and Article 66 of the Constitution so that no by-election will be held for the filling of a vacancy in a seat of a Representative in the House of Representatives, but such vacancy is to be filled as the law ordains, is repugnant to or inconsistent with Articles 182.3, 63.1, 66.2 and 66.3 of the Constitution.
Held, (A) Per Triantafyllides, P.. A. Loizou, Bemetriades, Savvides, Loris and Stylianides J J.: (1) The sub judice law amends the non basic Articles 63 and 66 of the Constitution, but it has not been passed by the majority vote envisaged by Article 182.3, because, though the House of Representatives enacted it unanimously, there are not participating in the House as from 1963 the Representatives, who belong to the Turkish community.
(2) In order to uphold the constitutionality of (he sub judice law, this Court should be convinced that the said amendments of the Constitution are so indispensable that it is justified, by virtue of the "Law of Necessity", for the House to adopt the procedure of amending non basic Articles of the Constitution with the participation in the majority, provided by Article 182.3, of only the Representatives, who belong to the Greek Community.
(3) The reasons put forward for the said amendments are not, in the present circumstances of Cyprus, more imperative than the supreme state necessity to avoid amending Articles 63 and 66, the provisions of which affect both communities, without the participation in the enactment of the sub judice law of Representatives from both communities. Consequently the law of Necessity does not justify the deviation from Article 182.3 of the Constitution.
(4) It follows that the sub judice law is repugnant to and inconsistent with Articles 63, 66 and 179 of the Constitution.
(B) Per Pikis, J., Kourris, J. concurring: (1) The sub judice law. notwithstanding its manifest aim to amend the Constitution, was voted on and supported only by the Greek Representatives in the House and, consequently, it was enacted in a manner inconsistent with Article 182 of the Constitution.
(2) The Law of Necessity, as established by Cyprus case law but also generally accepted, cannot justify total or partial amendment of the Constitution. The "Law of Necessity" is a temporary measure directly referable to the necessity it aims to meet, while amendment of the Constitution is a permanent measure that changes the institutions of the State.
(3) The sole question that has to be answered is whether the House of Representatives that is elected under the Constitution, derives its powers therefrom and exercises them subject to an express affirmation of the Representatives for faith and respect for the Constitution, can legislate outside the context of the Constitution and in opposition thereto. This question has to be answered in the negative.
(4) The amendment or review of the Constitution constitutes an aspect of the constituent power that belongs, in accordance with constitutional law to the people and is exercised, as a rule on the basis of a mandate to a constituent assembly. Where the constitution provides, as in the case of Cyprus, for the amendment of its provisions without specific reference to the people, the obligation of strict adherence to constitutional provisions governing its amendment is more imperative still. No mandate was given to the House of Representatives to revise the Constitution.
(5) The biggest danger to the Cyprus Republic today does not originate from lack of mechanisms for modernisation of the Constitution, but from the threats to the legal and physical existence of the Cyprus State. Adherence to the Constitution contributed substantially to the entrenchment of the status of the Cyprus State. Such adherence is the strongest means for safeguarding the integrity of the Cyprus State.
(6) It follows that the sub judice law is repugnant to and inconsistent with the provisions of the Constitution that govern its amendment and in particular with those of Article 182.3.
Opinion as above.
Cases referred to:
Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195;
Aloupas v. National Bank of Greece (1983) 1 C.L.R. 55;
Apostolides and Others v. Republic (1982) 3 C.L.R. 928;
President of the Republic v. House of Representatives (1985) 3 C.L.R. 2224;
President of the Republic v. House of Representatives (1985) 3 C.L.R. 2202.
Reference.
Reference by the President of the Republic for the opinion of the Supreme Court whether the First Amendment of the Constitution Law, 1986 is repugnant to or inconsistent with the provisions of Articles 182.3, 63.1, 66.2 and 66.3 of the Constitution.
St. Soulioti (Mrs.), Attorney-General of the Republic with N. Charalambous, Senior Counsel of the Republic and L. Koursoumba (Mrs.), for the President of the Republic.
E. Efstathiou with M. Christofides and M. Papape-trou, for the House of Representatives.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following opinion of the Court: On the 6th February 1986 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 "First Amendment of the Constitution" Law, 1986, is repugnant to, or inconsistent with, the provisions of Articles 182.3. 63.1, 66.2 and 66.3 of the Constitution.
The said Law was enacted by the House of Representatives on the 23rd January 1986 (the text of the Law is attached hereto).
The sub judice Law amends Article 63 of the Constitution so that the citizens of the Republic who have attained the age of eighteen years will have the right to vote, and not only those who have attained the age of twenty-one years, and it also, amends Article 66 of the Constitution so that no by-election will be held for the filling of a vacancy in a seat of a Representative but such vacancy is to be filled as the Law will ordain.
On the 24th January 1986 the House of Representatives transmitted the sub judice Law to the President of the Republic, who, before promulgating it under Article 52 of the Constitution, filed the present Reference.
The Supreme Court, on the 17th and 18th February 1986, 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 matter referred to it and the unanimous Opinion of the majority of its Members (M. Triantafyllides, A. Loizou, D. Demetriades, L. Savvides, A. Loris and D. Stylianides) is the following:
1. In accordance with paragraphs 2 and 3 of Article 182 of the Constitution the non basic Articles of the Constitution may be amended at any time by a Law for the enactment of which there is required a majority vote comprising at least two-thirds of the total number of the Representatives belonging to the Greek Community and at least two thirds of the total number of the Representatives belonging to the Turkish Community. The said Communities are defined in Article 2 of the Constitution.
2. The sub judice Law amends the non basic Articles 63 and 66 of the Constitution but it has not been passed by the majority vote which is envisaged by paragraph 3 of Article 182 of the Constitution, since in the House of Representatives, which has enacted it unanimously, there are participating only Representatives who belong to the Greek Community, because from 1963 there are not participating in the House of Representatives Representatives who belong to the Turkish Community.
3. The responsibility for the adoption of an amendment of a non basic Article of the Constitution is vested in the House of Representatives. But, notwithstanding the fact that the desirability of an amendment is not to be controlled by the Supreme Court, the application of the "Law of Necessity" in a case as the present one is subject to the control of the Supreme Court.
4. In order to hold that the enactment of the sub judice Law is valid the Supreme Court must be convinced that the amendments of the aforesaid Articles 63 and 66 are so indispensable that it is justified, by virtue of the "Law of Necessity", for the House of Representatives to adopt the procedure of amending non basic Articles of the Constitution by a Law which was enacted with the participation in the majority, which is provided for by paragraph 3 of Article 182 of the Constitution, of only the Representatives who belong to the Greek Community.
5. The Supreme Court has reached the conclusion irrespective of how serious are the reasons put forward for the amendment, by means of the sub judice Law, of Articles 63 and 66 of the Constitution, that they are not, in the present circumstances in Cyprus, more imperative than the supreme state necessity to avoid amending the said Articles 63 and 66, the provisions of which affect both Communities, without the participation in the enactment of the sub judiee Law of Representatives from both Communities, as required by paragraph" 3 of Article 182 of the Constitution in connection with the amendment of non basic Articles of the Constitution.
6. Consequently the in deviation from paragraph 3 of Article 182 of the Constitution enactment of the sub judiee Law cannot be justified, in the present case, by the "Law of Necessity".
7. Such Law is, therefore, repugnant to and inconsistent with, Articles 63, 66 and 182 of the Constitution and it is unconstitutional as being repugnant to, and inconsistent with, Article 179 of the Constitution.
8. In concluding the Supreme Court notes that as regards elections which are not provided for by the Constitution the right to vote has already been given by legislation to those who have attained the age of eighteen years, and it, also, observes that there do not seem to have been exhausted the possibilities of regulating in future by legislation the matter of the filling of a vacant seat of a Representative in a manner which will not be repugnant to Article 66 of the Constitution and which, at the same time will be in. accord with the electoral system which is today in force in Cyprus.
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 AMEND ARTICLES 63 AND 66 OF THE CONSTITUTION
The House of Representatives enacts as follows:
1.Law shall be referred to as The First Amendment of the Constitution Law, 1986.
2. Article 63 of the Constitution is hereby amended by the deletion from paragraph 1 thereof of the words "twenty one" and their substitution by the word "eighteen".
3. Article 66 of the Constitution is hereby amended as follows:
(a) By the deletion from paragraph 2 thereof and its substitution by the following paragraph:
"2. A vacancy of a seat in the House of Representatives is to be filled as the Law ordains" and
(b) By the deletion from paragraph 3 thereof of the words "or 2".
PIKIS J.: With the enactment of the First Amendment of the Constitution Law 1986, the House of Representatives seeks to amend two Articles of the Constitution—(a) Paragraph \ of Article 63, that limits the right to vote to persons who have attained the age of 21 years and (b) paragraph 2 of Article 66, that lays down that when a vacancy occurs in the seat of a Representative, it shall be filled by a by-election.
The Amendment Law extends the right to vote to persons who have attained the age of 18, while the second leg of it makes provision for the filling of a vacancy without the holding of a by-election.
The President of the Republic who is constitutionally responsible for the promulgation of laws, referred the matter to the Supreme Court for its opinion on the constitutionality of the law, in particular, whether its provisions are repugnant to or inconsistent with the relevant provisions of the Constitution.
Pre-emptive judicial control of the constitutionality of laws, carried out under Article 140 of the Constitution, is designed to safeguard effectively constitutional order and prevent every deviation therefrom. It constitutes an important function of the judiciary within the framework of its mission to safeguard the rule of Law.
Unlike other countriesthe Constitution of the Republic of Cyprus makes no provision for direct or indirect recourse(by elections or plebiscite) to the people for amendment of the Constitution but envisages a special majority for the amendment of its non fundamental provisions. Article 182, a fundamental provision of the Constitution prohibits the amendment of the Constitution, unless the Bill of proposal for its amendment is supported by two thirds of the Greek Representatives and two thirds of the Turkish Representatives. The Law here under consideration, notwithstanding its manifest aim to amend the Constitution, was voted on and supported only by the Greek Representatives and in consequence was enacted in a manner repugnant to and inconsistent with that laid down in the Constitution for amendment of its provisions.
Counsel for the House of Representatives argued that the deviation from the constitutional procedure for the amendment of the Constitution, is justified by the absence of the Turkish Representatives that has rendered inoperative the procedure envisaged by the Constitution for amendment of its provisions. With the passage of time, inability to amend the Constitution is more strongly felt, as well as the corresponding pressure for fashioning the Law to new political and social realities. But they did not submit there is any "necessity" for amending the Constitution in the sense that the term "necessity" is accepted in Law, that is, a measure for entrenching constitutional order and not a means of changing it.
It is common ground acknowledged by counsel for the House of Representatives as well, there can be no recourse to the "Law of Necessity" as established by Cyprus caselaw but also generally acknowledged for total or partial amendment of the Constitution. As the Attorney-General correctly submitted, on analysis of the Cyprus caselaw, the "Law of Necessity" is a temporary measure directly referable to the necessity it aims to meet, while the amendment of the Constitution is a permanent measure that changes the institutions of the State. Recourse to the "Law of Necessity" is permissible only when constitutional order or the functioning of the State is threatened. I had occasion to point out the "Law of Necessity" is but a reserve power embedded in the Law for protection of constitutional order and not a means of bypassing limitative provisions of the Constitution or the statute law. Lastly, recourse to the "Law of Necessity" for extending the right to vote to persons under the age of 21, has already been judged by the Full Bench of the Supreme Court, in Reference No. 12/85, as unjustified.
The sole question that has to be answered in the present Reference is whether the House of Representatives that is elected under the Constitution, derives its powers from the Constitution and exercises them subject to an express affirmation of the Representatives for faith and respect for the Constitution (Article 69 of the Constitution), can legislate outside the context of the Constitution and in opposition thereto. Acceptance of the position of the House of Representatives, as expressed by counsel for the Body, would be equivalent to the acknowledgment of unlimited competence to the House to amend any Article of the Constitution contrary to paragraph 3 of Article 182 of the Constitution, a fundamental provision of the Constitution, as already stressed. In essence, the House claims a right to amend the Constitution in a manner contrary to its fundamental provisions. In reality, a right is claimed to amend the Constitution without specific reference to the Cyprus people.
With the same logic and amenity that the House amended Article 63.1 and 66.2 of the Constitution, they might amend Article 54 of the Constitution, regulating the exercise of the Executive power, and Part X' of the Constitution governing the composition and jurisdiction of the judicial power of the State. The answer to the question posed is in the negative.
The Law under consideration is unconstitutional because it was enacted in contravention to the procedure laid down in the Constitution for the amendment of it provisions (Article 182.3). The Law was enacted in excess of the legislative power of the House of Representatives that limits the chamber to legislate within the context of the competence vested it under the Constitution, subject to and in accordance with its provisions. The amendment of the Constitution is outside the ordinary legislative competence of the House of Representatives, as defined in Article 61. The amendment or review of the Constitution constitutes an aspect of the constituent power that belongs, in accordance with constitutional Law, to the people and is exercised, as a rule, on the basis of a mandate to a constituent assembly or an assembly entrusted with the review of the Constitution.
Where the Constitution provides for as in the case of Cyprus for the amendment of its provisions without specific reference to the people for an expression of its sovereign will, the obligation for strict adherence to constitutional provisions governing its amendment, is more imperative still. No mandate was given to the House of Representatives to revise the Constitution. On the contrary, it has been elected under the Constitution and is bound to legislate within the bounds of the competence vested it by the Constitution. The affirmation of faith and respect for the Constitution, given by the Representatives, is a prerequisite for the assumption of their duties and a condition for the exercise of their powers.
I am not indifferent to arguments that the inability of the House of Representatives to amend the Constitution in the absence of the Turkish Representatives, limits the flexibility necessary to adjust the Law to new social reality. However, I note that this limitation has not raised the last twenty years insuperable obstacles to the political and social evolution of Cyprus society. Where the absence of Turkish Representatives would lead to a stale-mate the "Law of Necessity" offers the necessary institutional means for its avoidance and ensuring the functioning of the State. Difficulties in the functioning of constitutional institutions do not constitute, under the Law, a valid reason for bypassing them. Departure from the Constitution undermines the foundation of the State and weakens the rule of Law.
The biggest danger to the Cyprus Republic today does not originate from lack of mechanisms for modernisation of the Constitution but from the threats to the legal and physical existence of the Cyprus State. As counsel for the House of Representatives acknowledged, adherence to the Constitution contributed substantively to entrenchment of the status of the Cyprus State.
It is my conviction that adherence to the Constitution constitutes the most persuasive answer to threats to the integrity of the Cyprus State and every attempt for its dissolution. Strict adherence to the Constitution is the strongest means for safeguarding the integrity of the Cyprus State.
In conclusion, I repeat what I said in Reference No. 11/85:
"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 its provisions weakens the foundation of the Cyprus State."
For the reasons given above, I find that the First Amendment of the Constitution Law 1986 cannot be promulgated because it is repugnant to and inconsistent with the provisions of the Constitution that govern its amendment. in particular those of paragraph 3 of Article 182 of the Constitution.
KOURRIS, J.: I agree with the Opinion rendered by Justice Pikis and for the same reasons I conclude the Law is unconstitutional.
The Law is unconstitutional.