THE REPUBLIC ν. NICOLAOS SAMPSON (1977) 2 CLR 1 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (N

Article 83.2 of the Constitution, for hisarrest and prosecution was required-Coup d'Etat (Special ProAug.20, visions) Law,

the said section to try accused in respect of above offences-Republic v. Liassis

"Amnesty." Words and Phrases-"Amnesty" "αμνηστία"-Exercise of prerogative of mercy or of the power ''remit, suspend or commute a sentence after conviction"- "Χάρις"-"Pardon". Criminal Procedure-Question of Law arising during the trial-Section 148

"Amnesty". The accused was committed for trial before an Assize Court in Nicosia, for offences against the state, contrary, to sections 40 and 41 of the Criminal Code, Cap. 154, and directly connected with the coup d'etat of July 15, 1974. When charged, but before pleading to the counts contained in the information, he entered the following special pleas

section 69 of the Criminal Procedure Law, Cap. 155: "1. That he has obtained a pardon for the offences with which he is charged, in that the; acts and/or offences which are described in the Information have been amnestied by the President of the Republic, His Beatitude Archbishop Makarios the III, in a speech that He on 7.12.74, delivered. 2.(

1. a)That the accused is a Member of the House of Representatives, having been elected as such in 1970 for five years and that the term of office of the House of Representatives has been extended by Laws 29/75 and 25/76, the latter providing that the term of office of the present House shall continue, in office till the House to be elected on 5.9.76 assumes office but in no event later than the 3 1.12.76. (
2. b)That even if the accused acted as President of the Republic during the coup d'etat of the 15.7.74; that in view of the provisions, of Law 57/75 and that as the accused has neither died nor resigned in writing nor has he become disqualified by the other reasons provided' in Article 71 of the Constitution, i.e. those provided by paragraphs (
3. c)and (
4. d)of this Article, he continues to be a Member of the House of Representatives. As Article 83.2 of the Constitution provides that a Member of the House of Representatives cannot be arrested, prosecuted or imprisoned without the leave of the High Court (now read 'Supreme Court') so long as he continues to ,be a, Representative and as such leave has not been granted," the Assize Court has no jurisdiction to try the accused.

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section 148 of Cap. 155, without expressing its own opinion thereon. The questions of Law, as formulated by the President of the Assize Court, were the following: 1. Whether the President of the Republic has,

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Of the Constitution or by virtue of the Law of Necessity, a constitutional right to grant amnesties for the Offences with which the accused is charged and, if so, whether the contents of the aforementioned extract from the speech of the President of the Republic, His Beatitude Archbishop Makarios the III, constitute such an amnesty and, if so, whether the accused has been pardoned

s. 69 of Cap. 155 for the offences with which he is charged in the Information. 2. Whether having regard to the accused acting as the President of the Republic during the coup d'etat of the 15.7.74 and in view of the provisions of Law 57/75, he has been disqualified as a Member of the House ofRepresentatives and his seat has become vacant in which case the leave of the Supreme Court for the arrest and prosecution of the accused was not necessary

Article 83.2 of the Constitution. 3. Whether the judgment in the case of The Republic v. Liassis,

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of the Constitution or on the basis of the application in the present instance of the "Doctrine of Necessity", of rendering inoperative the relevant provisions of the Criminal Code, Cap. 154, as regards the matters in respect of which the accused has been charged; that the accused, therefore, cannot plead successfully,

section 69

Article 83

.2 of the Constitution, for his arrest and prosecution; and that the Coup d'etat (Special Provisions) Law, 1975 (Law 57/75) did not result in reviving his lost status as a Member of the House of Representatives.

section 69

Article 83.2 of the Constitution, for his arrest and prosecution in the present case.

the said section to try the accused in the present case. Per curiam:

subsection

subsection

subsection

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the exceptional circumstances cannot be taken by the appropriate constitutional organs or in accordance with the Constitution. It has not been disputed or challenged by counsel for the accused-that on that date the House of Representatives was still functioning and certainly I cap take judicial notice that the said House continued to enact laws even during, those, difficult tines Only, therefore, in accordance with the Constitution the legislative power shall be exercised by the House of Representatives and once it was functioning, there was nothing to stop the House from enacting general law of amnesty either before or after the announcement by the President of granting amnesty. That decision, if it was taken would have been in accordance with, the Constitution. It, therefore, follows that the .prerequisites of applying the Doctrine of Necessity in the case in hand were not in existence. I. would reiterate once again that on that date there was no necessity to suspend the constitutional, provisions because of the impossibility of applying them. (See Odent on ContentieuxAdministratif Vol. 1 at pp. 136-137).

Article 83.2 of the Constitution for his arrest and prosecution in the present, case.

section 4 of the Law, are declared as non-existing and devoid of substance. This Law was obviously enacted for the sake of the restoration of the lawful order which was disturbed as a result of the coup d'etat and not the exoneration of the accused or his collaborators from the consequences of their acts Consequently, the accused lost automatically, his status as a Member of the House of Representatives since there was a real exercise of the duties of an office incompatible with the status of a member of the House of Representatives, and Article 83.2 did not apply in his case.

the Constitution is vested with a discretion regarding the proper measures to be adopted for 'the purpose of meeting such a necessity. (See Messaritou v. C.B.C.

section 69 of the Criminal Procedure Law, Cap. 155, when charged but before pleading to an information containing various counts for offences against the State, contrary to sections 40 and 41 of the Criminal Code, Cap. 154, and directly connected with the coup d'etatof July 15,

1. M. Christophides, for the accused. L. Loucaides, Deputy Attorney-General 'Of the Republic, with C. Kypridemos, Counsel of the Republic, for the Republic. Cur. adv. vult. 1976, August
2. TRIANTAFYLLIDES, P. read the following decision of the Court. The Supreme Court, having considered the three questions of law reserved by the Nicosia Assizes in the present case, is unanimously, of the following opinion:-
3. That, as no relevant legislation was subsequently enacted by the House of Representatives, the amnesty announce by the President of the Republic in his speech on December 7, 1974, does not have in law the effect, either

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of the Constitution or on the basis of the application in the present instance of the "Doctrine of Necessity", of rendering inoperative the relevant provisions of the Criminal Code, Cap. 15 4, as regards the matters in respect of which the accused has been charged; the accused, therefore, cannot plead successfully,

section 69

Article 83

.2 of the Constitution, for his arrest and prosecution; and the Coup d'etat (Special Provisions) Law, 1975 (Law 57/75) 5did not result in reviving his lost status as a Member of the House of Representatives. 3. That in accordance with the decision of the Supreme Court in the case of The Republic v. Liassis,

section 148 of the Criminal Procedure Law, Cap. 155; the following questions of law:- "1 Whether the President of the Republic has,

Article 53

of the Constitution or by virtue of the Law of Necessity, a constitutional right to grant amnesties for the offences with: which the accused is charged and, if so, whether the contents of the aforementioned extract from the speech of the President of the Republic, His Beatitude Archbishop Makarios the III, constitute such an amnesty and, if so, whether the accused has been pardoned

, s. 69 of Cap. 155 for the offences with which he is charged in the Information. 2. Whether having regard to the accused acting as the President of the Republic during the coup d'etat of the 15 7 74 and in view of the provisions of Law 57/75, he has been disqualified 'as "a Member 'of the House of Representatives and his seat has become vacant in Which case the, leave of the Supreme Court for the arrest and prosecution of the accused was not necessary

Article 83.2 of the Constitution. 3. Whether the judgment in the case .of .The Republic v. Liassis,

which the above questions of law were reserved, reads as follows:- "148

section 69 of Cap. 155:- "1. That he has obtained a pardon for the offences with which he is charged, in that the acts and/or offences which are described in the Information have been amnestied by the President of the Republic, His Beatitude Archbishop Makarios the III, in a speech that He on 7.12.74 delivered. 2.(

1. a)That the accused is a Member of the House of Representatives, having been elected as such in 1970 for five years and that the term of office of the House of Representatives has been extended by Laws 29/75 and 25/76, the latter providing that the, term of office of the present House shall continue in office,, till the House to be elected on 5.9.76 assumes office but in no event,, later than the 31.12.76. (
2. b)That even if the accused acted as President of the Republic during the coup d'etat of the 15.7.74; that in view of the provisions of Law 57/75 and that as the accused has neither died nor resigned in writing nor has he become disqualified by the other reasons provided in Article 71 of the Constitution, i.e. those provided by paragraphs (
3. c)and (
4. d)of this Article, he continues to be a Member of the House of Representatives. As Article 83.2 of the Constitution provides that a Member of the House of Representatives cannot be arrested, prosecuted or imprisoned without the leave of the High Court (now read 'Supreme Court') so long as he continues to be a Representative and as such leave has not been granted, the Assize court has no jurisdiction to try the accused. 3. That the Assize Court has no jurisdiction to try the accused in view of the provisions of Article 156 of the Constitution which require that a special Court be constituted to try the offences of the type the accused is charged with and that although the Supreme Court has held in the case of The Republic v. Liassis,

section 148 of Cap.155, without, expressing its own opinion thereon. The Assize Court adopted such a course at a "stage of the proceedings" before it, in the sense of subsection

subsection

subsection

subsection

section 148

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of the Constitution or on the basis of the application in the present instance of the doctrine of necessity, of rendering inoperative .the relevant provisions of the. Criminal Code, Cap. 154, .as regards the matters in respect of which the accused, has been charged; the accused, therefore, cannot plead successfully,

section 69

Article 83

.2 of the Constitution, for his arrest and prosecution; and, the Coup d'etat (Special Provisions) Law, 1975 (Law 57/7.5) did not result in reviving his lost status as a Member of the House of Representatives. 3 That in accordance with the decision of the Supreme Court in the case of The Republic v Liassis,

paragraph 1 or 2 of this Article the death sentence shall be commuted to life imprisonment. 4.The President and the Vice-President of the Republic shall, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General of the Republic remit, suspend, or commute any sentence passed by a Court in the Republic in all other cases". It is clear that the: express wording of Article 53 relates only to persons convicted and sentenced to death or other lesser punishment. "The President of the Republic, as the Head of the State,

Article 36

.1 of the Constitution, is entitled, especially In a country such as Cyprus,, which is a Republic with ,a presidential regime (see Article 1 of the Constitution), to announce an amnesty, as it was done by way, actually, of a statement of intent("δεν έχω πρόθεσιν..προσαγωγής ενώπιον δικαστηρίου") in the aforementioned speech of the president of the Republic On December 7, 1974; and on reading the said speech as a whole and, in particular, its relevant part which I have quoted earlier on, and on taking judicial notice of the terrible and tragic events of the summer of 1974 (the coup d'etat on July 15, 1974, and the, subsequent Turkish invasion of Cyprus) it becomes clear that when the President, of the Republic made the said announcement on December 7, 1974, he was taking a step which seemed to be, at the time, advisable in the public interest. That was not an amnesty with the legal effect of suspendingthe operation of the Criminal Code, Cap. 154, as could only have been done by means of Law enacted by the House of Representatives. Actually, the House of Representatives when it enacted, on October 30, 1975, the Coup d'Etat (Special V Provisions) Law, 1975 (Law 57/75)_which was published on October 31, 1975-had occasion to refer to the amnesty announced by the President of the Republic on December 7, 1974; the House not only did not enact any Law in relation to such amnesty, but it adopted a Resolution expressing, among other things, its strong conviction that it was necessary to prosecute,

the law, the main culprits of the coup d'etat, and especially those of whom who continued to be unrepentant. It is useful to point out, at this stage, that when, after the Civil War in the United States of America, President Lincoln issued a proclamation, on December 8, 1863, offering a full pardon to those who had been engaged in the rebellion, he made such pardon conditional upon the taking and keeping inviolate by them of a prescribed oath, by means of which .they promised that they would "thenceforth support the Constitution of the United States and the union of the states thereunder, and would also abide by and support all acts of Congress and all proclamations of the President in reference to slaves, unless the same should be modified or rendered void by judicial decision"; and, on the same day, in a message transmitted to Congress, President Lincoln stated: "'Laws and proclamations were enacted and put forth for the purpose of aiding in the suppression of the Rebellion. To give them their fullest effect, there had to be a pledge for their maintenance. In my judgment they have aided, and will, further aid, the cause for which they were intended. To now abandon them would not only be to relinquish' a lever of power, but would also be a cruel and astounding breach of faith For these and other reasons, it is thought best that support of these measures shall be included in the oath, and it is believed the Executive may lawfully claim it in return for pardon and restoration of forfeited rights, which he has clear constitutional power to withhold altogether or grant upon the terms which he shall deem wisest for the public interests'". (See the report of the case of United States v. Klein, 20 L. Ed. 519, at p. 523). In the course of his submission before us counsel for the accused has endeavoured to persuade us that we should construeArticle 53 of our Constitution, together with Articles 1 and 36 of the Constitution and in the light of what he described as "the inherent powers" of the President in a State with a presidential regime like Cyprus, so as to hold that the amnesty announced by the President of the Republic, on December 7, 1974, had, by itself, the legal effect of suspending the operation of the Criminal Code as regards offences such as those with which the accused has been charged; and he referred us, in this respect, to the corresponding constitutional situation in the U.S.A.: Article II

the general unqualified grant of power to pardon offenses against the United States, may remit fines, penalties and forfeitures of every description arising

the laws of Congress; and, equally, that his constitutional power in these respects cannot be interrupted, abridged or limited by any legislative enactment. But is that power exclusive, in the sense that no other officer can remit forfeitures or penalties incurred for the violation of the laws of the United States? This question cannot be answered in the affirmative without adjudging that the practice in reference to remissions by the Secretary of the Treasury and other officers, which has been observed and acquiesced in for nearly a century, is forbidden by the Constitution. That practice commenced very shortly after the adoption of that instrument, and was perhaps suggested by legislation in England, which, without interfering with, abridging or restricting the power of pardon belonging to the Crown, invested certain subordinate officers with authority to remit penalties and forfeitures arising from violations of the revenue and customs laws of that country. Stat. 27 Geo. III., chap. 32. See also Stat. 51 Geo. III., chap. 96, and 54 Geo. III., chap. 171". In Brown v. Walker, 40 L. Ed. 819, 822, 823, the above dicta in the cases of Garland, Knote and Pollock were referred to with approval. In Ex parte Grossman, 69 L. Ed. 527, Chief Justice Taft stated the following (at pp. 530-53 1) regarding the interpretation of the relevant constitutional provision in the. U.S.A.:- "The language of the Constitution cannot be interpreted safely except by reference to the common law and to Britishinstitutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention, who submitted it to the ratification of the Convention of the thirteen states, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily

stood. In a case presenting the question whether a pardon should be pleaded in bar to be effective, Chief Justice Marshall said of the power of pardon (United States v. Wilson, 7 Pet. 150, 160, 8 L. Ed. 640, 643): 'As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for, the rules prescribing the manner in which it is to be used by the person who would avail himself of it'. In Ex parte Wells, 18 How. 307, 311, 15 L. ed. 421, 424, the question was whether the President

his power to pardon could commute a death sentence to life imprisonment by granting a pardon of the capital punishment on condition that the convict be imprisoned during his natural life. This Court, speaking through Mr. Justice Wayne, after quoting the above language of the chief justice, said: 'We still think so, and that the Language used in the Constitution, conferring the power to grant reprieves and pardons, must be construed with reference to its meaning at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the King, as chief executive. Prior to the Revolution the colonies, being in effect

the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and theyconstituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the Constitution, American statesmen were conversant with the laws of England and familiar with the prerogatives exercised by the Crown. Hence, when the words to grant pardons were used in the Constitution, they conveyed to the mind the authority exercised by the English Crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word 'pardon'. In. the convention which framed the Constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment'". The above review of American case law illustrates the evolution of the approach in the U.SA to the pardoning power of the President; and it is obvious that such approach was based on the very wide terms .in which the relevant constitutional provision is framed, and, also, that it has been considerably influenced by the notion of pardon in English law. On the other hand, the very specific and restrictive provisions of our Article 53 make the corresponding constitutional situation here altogether different from that in the U.S.A. We were invited, also, by counsel for the accused, to hold that the power of the President of the Republic in Cyprus to grant an amnesty, with, all, its legal consequences, has to be implied, because of the existence of the powers conferred on the President by means of Article 53 of the Constitution. In dealing with this proposition it is useful to refer, again, to some relevant case law of the U.S.A. Supreme Court concerning the mode of construing a Constitution: In M'Culloch v. The State of Maryland, 4 L. Ed. 579, Chief Justice Marshall said (at p. 60 1):- "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of, a prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be

stood by the public. Its nature, therefore, requires, that only its .great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves". In Prigg v. The Commonwealth of Pennsylvania, 10 L. Ed. 1060, Mr. Justice Story stated (at p. 1088):- "How, then, are we to interpret the language of the clause? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole objects of it. If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode it will attain its just end and secure .its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No Court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them". In South Carolina v United States, 50 L. Ed. 261, Mr. Justice Brewer said (at pp. 264-265):- "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers .granted do not change, they apply from generation to generation all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were

stood when made, are still within them; and those things not within them remain still, excluded. But it is undoubtedly true that that which is implied is as much a part of the Constitution as that which is expressed". The proposition that that which is clearly implied is of equal force as that which is expressed was affirmed, once again, in International Shoe Company v. Pinkus, 73 L. Ed. 318, 320. In United States v. Classic, 85 L. Ed. 1368, Mr. Justice Stone said (at p. 1378):- "But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significancethat it is one with which the framers were not familiar. For in setting up an enduring framework of government they

took to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. If we remember that 'it is a Constitution we are expounding', we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose". In Lichter v. United States, 92 L. Ed. 1694, the Supreme Court had to deal with the extent of the war powers of the Congress and of the President, and Mr. Justice Burton said the following in this respect (at p. 1724):- "The war powers of Congress and the President are only those which are to be derived from the Constitution but, in the light of the language just quoted, the primary implication of a war power is that it shall be an effective power to wage the war successfully. Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind". Looking, in the light of all the foregoing, at the provisions of Article 53 of our Constitution as a whole, I find them to be so clear, unambiguous and specific, and so limited to particular matters, that I can see no room for holding that they confer, expressly or by implication, either when read alone or in conjunction with any other Article of the Constitution, the power on the President of our Republic to grant an amnesty with its full legal consequences, including suspension of the operation of the Criminal Code, Cap. 154. In Basu's Commentary on the Constitution of India, 5th: ed., vol. 2, p. 401, there is to be found a reference to the constitutional provisions in France and the Federal Republic of Germany regarding the power of pardon. The following are stated in this respect:- "(D)" Fifth French Republic.-In the Constitution of 1958, the pardoning power of the President is not limited in any way. Art. 17 simply says- 'The President of the Republic shall have the right of pardon'. (E) West Germany.-Art. 60

the above power". It is significant to note that the Corresponding provision in the Constitution of the Federal Republic of Germany is treated as not empowering the President to declare a general amnesty, because of the expression therein "in individual cases"; and though this expression is not to be found as such in Article 53 of our Constitution it is abundantly clear from its wording that all its provisions can only be applied to individual cases only; therefore, for this reason, too, I am strengthened in my already expressed view that it is not possible to grant an amnesty

Article 53of our Constitution.

It has been, further, argued that the announcement of an amnesty by the President of the Republic on December 7, 1974, should be treated as an amnesty suspending the operation of the Criminal Code, Cap. 154, by virtue of the application of the "Law of Necessity" (see, inter alia, The Attorney-General of the Republic v. Ibrahim and others, 1964 C.L.R. 195), in view of the very difficult for our country times in which the President of the Republic decided to announce such amnesty., No doubt they were, indeed, both tragic and difficult times, but even during those times and, in particular, on or about December 7, 1974, it was possible for the House of Representatives to meet and enact the necessary legislation for the purpose of giving full legal effect to the amnesty announced 'by the President of the Republic; therefore, it cannot be held that the announcement,' by the President of the' Republic of an amnesty, without the enactment of a relevant law of the House of Representatives, should be treated, by virtue of the "Law of Necessity", as havingby itself the effect which a Law of the House of Representatives, enacted for the purpose, would have had. Whether, and to what extent, the amnesty announced on December 7, 1974, might provide a guideline, by way of a policy, for the exercise, in individual cases only, of the powers of the President of the Republic

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of the Constitution, or of the Attorney-General of the Republic

Article 113

.2 of the Constitution, is a matter which is not in issue in the resent proceedings and regarding which I do not, therefore, need to express an opinion. The accused in the present case entered a plea of pardon

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Article 83.2 of the Constitution, for his arrest and prosecution in the present instance.

It is useful, at this stage, to refer to certain undisputed facts which can be judicially noticed, and which have, also, been set 25 out in an affidavit sworn by Vera Sampson, the wife of the accused, on July 28, 1976: The accused became in 1970 a Member of the House of Representatives, and, at the time of the coup d'etat, he was still such a Member, because the term of office of the House had been extended and had not yet lapsed. 30 The accused took over the office of "President of the Republic" as a result of the coup d'etat on July 15, 1974, and did not relinquish it until July 23,

1. Articles 70 and 71 of our Constitution read as follows:- "
2. The office of a Representative shall be incompatible with that of a Minister or of a member of a Communal Chamber or of a member of any municipal council including a Mayor or of a member of the armed or security forces of the Republic or with a public or municipal office or, in the case of a Representative elected by the Turkish Community, of a religious functionary For the purposes of this Article public office means any office of profit in the service of the Republic or of a Communal Chamber the emoluments of which are

the control either of the Republic or of a Communal Chamber, and includes any office in any public corporation or public utility body". 71.The seat of a Representative shall become vacant- (a)upon his death; (b)upon his written resignation; (c)upon the occurrence of any of circumstances referred to in paragraph (

1. c)or (
2. d)of Article 64 or if he ceases to be a citizen of the Republic; (
3. d)upon his becoming the bolder of an office mentioned in Article 70". It is correct that in the above Articles there is not to be found an express provision establishing the incompatibility of the office of a Member of the House, of Representatives with that of the President of the Republic; nor is it provided therein that the seat of a Representative shall become vacant upon such Representative becoming the President of the Republic. On the other hand, that the President of the Republic cannot be, also, at the same time, a Member of the House of Representatives, and that, consequently, by inevitable implication, a Member of the House of Representatives cannot be, also, at the same time, President of the Republic, is clearly derived from Article 41 of the Constitution, which reads as follows:- "41.

the control either of the Republic or of aCommunal Chamber, and includes any office in any public corporation or public utility body.

the Government, which disqualified him from being nominated for election as a Member of Parliament, it did not matter whether or not he had been holding such office validly, so long as he had been actually holding such office at the material time; Wanohoo C.J. said, inter alia, the following:- "The disqualification arises from the fact of holding anoffice of profit

the. Government of India or the Government of a State even if there is some defect, legal or otherwise, in the order making the appointment" In the light of all the foregoing I have no doubt at all that the seat of the accused in the house of Representatives became ipso facto vacant when he took over the office of "President, of .the Republic" on July 15, 1974, and, therefore, no leave of the Supreme Court was required,

Article 83.2 of the Constitution, for his arrest and prosecution in the present case.

In relation, lastly, to the third question of law, we have held that the. Nicosia Assizes possessed jurisdiction to try the accused on counts charging him with offences against the constitutional order and the security of the Republic. The contention of his counsel to the contrary was based on Article 156 of the Constitution, which reads as follows:- The following offences in the first instance shall be tried by a Court composed of such Judges belonging to both Communities as the High Court shall determine presided over by the President of the High Court:- (

1. a)treason and other offences against the security of the Republic; (
2. b)offences against the Constitution and the constitutional order: Provided that in the appeal from any decision of such Court the High Court shall be presided over by the President of the Supreme Constitutional Court in the place of the President of the High Court and in such a case the President of the Supreme Constitutional Court shall have all the powers vested in the President of the High Court". In The Republic v. Andreas Liassis,

" Article 156 of Judges belonging .to both Communities, there does not exist in office a President of the High Court, who"wou1d have to preside over such Court, nor does there exist in office a President of the Supreme Constitutional Court who would have to preside at the appeal from such. Court". I see no reason to depart from the above view; and as the exclusionary provision in. section 20(l).of the Courts of Justice Law, 1960 (Law 14/60),which is based on. Article 156, was rendered inoperative, too, when Article 156 became inoperative (see the Andreas Liassis case, .supra at p.288), it follows that the Nicosia Assizes possessed jurisdiction

the said section to try the accused, in the present case. It is. true that on this .occasion there was .put forward before us an argument which does not appear to have been advanced ii the Andreas Liassis case, namely that one of the objects of Article 156 is to ensure that at the trial for an office specified in such Article the Assize Court is to be presided over by a judicial officer of the highest rank, and that as such .object could still be achieved

present circumstances,. Article 156 to that extent, been, rendered inoperative I do not accept that this is so Had Article .156 aimed a ensuring an object such as the one alleged by counsel, for the accused then it would not have been limited to Providing about the President of the High Court presiding at the trial, .but it would have referred in this respect in general to all Ju4ges of the High Court it referred however only to the President of the High court because its only object was to ensure that at the trial there would preside a neutral, non-Cypriot Judge The foregoing are my reasons for the opinion which we have expressed unanimously on August 20, 1976, on the three questions of law which were reserved for our opinion by the Nicosia Assizes,

section 148 of Cap 155 STAVRINIDES, J.: Reasons for the unanimous2 opinion of the Court delivered by HisHonourthe President on August20 last,although not fully stated therein, may fairly be deduced from its context Judgments giving detailed reasons for that opinion have since been prepared by: three of my brethren, and in the circumstances I consider it unnecessary to add anything on the subject myself. L. LOIZOU, J.: I agree with the reasons given by the President of the Court for the, unanimous opinion of this Court on the three questions of law reserved

the provisions of s. 148

the provisions of s 148

taking, the use of armed force against the Government of the Republic and its President and the procurement of alteration in the Government

ss. 40 and 41 of the Criminal Code, Cap 154, before pleading to the information, he pleaded (

1. a)that he had obtained a pardon for those offences by the President of the Republic, His Beatitude Archbishop Makarios III;(
2. b)that being a Member of the House of Representatives since the year 1970, he continued to remain in office until December 31, 1976; and (
3. c)that the Nicosia Assizes had no jurisdiction to try him, in view of the provisions of Article 156 of the Constitution which require a special Court to be constituted. In pleading these, special pleas the accused relied on the procedural section 69

sub-section 2 we read that:- "If either the pleas in paragraph (b) or (c) of sub-section

the provisions of the law, or of Article 53 of the Constitution and

the constitution of Necessity. The President's announcement in those critical times of granting amnesty to all, counsel contended, had: the legal effect-and this can be implied and read into the Constitution because of his powers-of rendering inoperative the relevant provisions of the Criminal. Code Cap. 154; and in so far as the offences are concerned, the accused is placed beyond the reach of punishment; because in effect the pardon relieved him from all penalties attached to his offences. In support of his argument counsel referred to a number of Greek and foreign textbooks on the historic evolution and legal effect of the term "amnesty" in Greece, England, France, India and the United States of America. Counsel further relies on the case of U S v Klein

the heading "Pardon and Amnesty" at 406, 407:- "The pardoning power should be distinguished from amnesty.' While a pardon remits the punishment imposed by a. Court upon an offender, amnesty overlooks the offence and absolves the offender from penalty While pardon is addressed to ordinary crimes, or infractions of the peace of the State, amnesty is generally confined to political offences or offences against the sovereignty of the. State, and is exercised in favour of classes or groups of people 1-2.In short, amnesty is in the nature of forgiveness offered in advance of trial, to a group of people who have engaged in rebellion or like offences against the State itself. (A)In the United States, though the power to pass an Act of Amnesty belongs to Congress , the President too, has sometimes declared amnesty by Proclamation, by virtue of his power to grant a pardon before trial. 'Amnesty' is thus regarded as, a species of pardon within the meaning of Art. II, sec. 2, and it has been held that where:" the president issues an amnesty in exercise of his pardoning power, the. . Legislature cannot interfere with the effects of such amnesty: the legislature cannot change the, effect of such a. pardon any more than the executive can "change the law'". Then the learned author, dealing with the position in India, says:- "(B) But our Constitution does not empower the Executive to grant a general amnesty. It is thus left to Parliament. Writing further on the effects of pardon, he says at pp. 407-408:- "A pardon may be eitherfull, limited or conditional (i) A full pardon wipes out the offence in the eye of law and rescinds the sentence as well as the conviction and frees the convicted person from serving any uncompleted term of imprisonment or from paying any unpaid fine It restores the offender to that legal condition in which he would have been had the crime not been committed It does not, however, affect rights acquired by the Government or a third party

judicial proceedings prior to the pardon nor does it enable the offender to claim compensation from the Government for what he has already suffered". A further contemporaneous exposition of these principles as stated by Mr. A. Hamilton in Federalist, No. 74 pardoning power of the President of the United States, vested in him by Article II, section 2, is:- Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The Criminal Code of every country 'partakes so much of necessary severity; that without an easy access to exceptions in favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel As the sense of responsibility is always the strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance."Then the distinguished writer proceeds to show that while there are objections to giving to the President the power. To pardon the crime of treason, in like manner there are persons. In favour of it, outweighing those objections On this Mr Hamilton says:- "In seasons of insurrection or rebellion, there are often critical moments when a well timed Offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth and which if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature or one of its branches for the purpose of obtaining its sanction, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal." These are indeed impressive and very wise statements, and certainly support the argument that in critical moments of a nation it is only the President who must grant a pardon In all humility, having read the speech of the President a number of times, and having given this matter anxious and careful consideration, I have reached the conclusion, and I have no doubt in my mind that at that historic moment when he was delivering his eloquent speech the President had one and only pre-occupation in his mind-the salvation of Cyprus. He was determined to convince everyone, that his only aspiration at that moment was to think of the present situation and to forget the past, his only wish was to see that he would do his best to unite his people; and to give them faith as well as courage to fight the only enemy, the invading forces of .Attila which turned our beautiful island into ruins and made the people refugees in their own country. I would further add that the President's clear and unambiguous words in his memorable speech leave no doubt at all in my mind that the President was telling the people that he was deeply grieved that Greek-Cypriots had turned their arms against their brothers and bypassing his own sufferings and with a sense of great responsibility in those critical moments of Cyprus he had chosen that well-timed and golden opportunity to make an unconditional offer of amnesty and used this impressive language:- "I forgive them all for their transgressions and grant themamnesty... in the face of the calamity of Cyprus there is no room for passions and discord.'' These were the words of a real leader and I deprecate any effort or any attempt to minimize or in any way

mine distort their effect. What is Important however, is that the President seemed to have grasped fully the operation and the effect of pardon at that moment. He knew that humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed And fully realizing the immense importance of his task, he lost no time at all in trying to restore the tranquillity of his people And I have no doubt that his decision is consistent with the best exposition of the law as presented by great men of learning, like the late Professor N. N. Saripolos and the writer Mr. A Hamilton who stressed that "In seasons of insurrection or rebellion, the loss of a week, a day, an hour, may sometimes be fatal." Now I turn to England, where pardon is a word familiar in common law proceedings, and where it applies to the ordinary intercourse .of men with the meaning of remission and forgiveness. According to Bacon the power of pardoning is irreparably incident to the Crown and is a high prerogative of the King. Comyns, in his Digest says:- "A King, by his prerogative may grant his pardon to all offenders attainted or convicted of a crime; and. that statutes do not restrain the King's prerogative, but they are a caution for using it well." With this in mind, I shall deal with some of the cases referred to in these proceedings, and it is necessary to state that the Constitution of the United States, in express terms, vests the executive authority of the Government in the President; and it also specifically gives him "the power to grant, reprieve and pardon for offences against, the United States." Marshall, C.J., in U.S. v. Wilson, 7 Pet. 150; 8 L. Ed. 640, 35 speaking of the pardoning power, says at pp. 643, 644:- "As this power had been exercised from time immemorial by the executive of that nation, (England) whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respectingthe operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it." This statement was adopted and followed by Mr. Justice Wayne in Ex parte Wells, 15 L. Ed. 421, at p. 424, who observes:- We still think so, and that the language used in the Constitution conferring the power to grant reprieves and pardon, must be construed with reference to its meaning at the time of its adoption... At that time, both Englishmen and Americans attached the same meaning to the word 'pardon'. In the convention which framed the Constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment. We must then give the word the same meaning as prevailed here and in England at the time it found a place in the Constitution. This is in conformity with the principles laid down by this Court in Cathcart v. Robinson, 5 Pet. 264, 280." Then the learned Justice, having warned himself of the difficulties in considering words in the Constitution, goes on at p. 425:- "The power as given is not to reprieve and pardon but that the President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment (cf. the wording of our Article 53). The difference between the real language and that used in the argument is material. The first conveys only the idea of an absolute power as to the purpose or object for which it is given. The real language of the Constitution is general; that is, common, to the class of pardons, or extending the, power to pardon, to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. A single remark from the power to grant reprieves will illustrate the point. That is not only to be used to delay a judicial sentence when the President shall think the merits of the case or some cause connected with the offender, may require it but it extends also to cases ex necessitate legis, as where a female after conviction is found to be enceinte, or where a a convict becomes insane or is alleged to be so...... In this view of the Constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms." In a dissenting judgment, Mr. Justice McLean said that the President has no powers which are not given to him by the Constitution and laws of the country, and dealing with the word pardon he comments at p. 427:- "The meaning of the word 'pardon', as used in the Constitution, has never come before this Court for decision. It is argued by the Attorney-General, that the word 'pardon' was used in the Constitution, in reference to the construction given to it in England, from whence was derived our system of laws and practice; and that the powers exercised by the British Sovereign

the term 'pardon' is a construction necessarily adopted with the term If this view be a sound one, it has the merit of novelty. The executive office in England and that of this country is so widely different, that doubts may be entertained whether it would be safe for a republican Chief Magistrate, who is the creature of the laws to be influenced by the exercise of any leading power of the British Sovereign. Their respective powers are as different in their origin as in their exercise. A safer rule of construction will be found in the nature and principles of our Own government Whilst the prerogatives of the Crown are great and occasionally, in English history, have been more than a match for the Parliament, the President has no powers which are not given him by the Constitution and laws of the country; and all his acts beyond these limits are null and void. There is another consideration of paramount importance in regard to this question. We have

the federal government no common law offences, no common law powers to punish in our Courts and the same may be said of our Chief Magistrate. It would be strange indeed if our highest criminal Courts should disclaim all common law powers in the punishment of offences, whilst our President should claim and exercise such powers in pardoning convicts." It is to be added that Mr. Justice Curtis also dissented anddelivered a separate judgment with which Mr. Justice Campbell concurred. Cf. Ex Parte Grossman, 69 Ed. 527. In ex parte in the Matter of A H. Garland, 18L.Ed., 366, Mr. Justice Field, delivering the opinion of the Court on the pardoning power of the President, said at pp. 370-371 :- "The power thus conferred is unlimited, with the exception stated. In extends to every offense known to the law, and may be exercised at any time after .its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of effenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." Then, speaking of the effect of pardon, the learned Justice says:- "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender and when the pardon is full, it releases the punishment and blots out of existence the guilt so that in the eye of the law the effender is as innocent as if he had never committed the offense If granted before conviction it prevents any of the penalties and. disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity." And lie concludes: "The pardon produced by the petitioner is a full pardon 'for all offenses by him committed, arising from participation, direct or implied, in the Rebellion', and is subject to certain conditions which have been complied with The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offense of treason, committed by his participation in the Rebellion. So far as that offense is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him by reason of that offense, from continuing in the enjoyment of a previously acquired right, is to enforce a punishmentfor that offense notwithstanding the pardon... It is not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency." In the United States v. Padelford, 19 .L. Ed. 788, Chase, C.J. delivering the opinion of the Court on the very same point of pardon, said at p. 792:- "The sufficient answer to it is that after the pardon no offense connected with the rebellion can be imputed to him. If, in other respects, the petitioner made the proof which,

the Act, entitled him to a decree for the proceeds of his property, the law makes the proof of pardon a complete substitute for proof that he gave no aid or comfort to the rebellion. A different construction would, as it seems to us, defeat the manifest intent of the Proclamation and of the Act of Congress which authorised it." In the United States v. Klein, 20 L. Ed. 519, the abovenamed Chief Justice, dealing with the offence of treason committed by the appellant by his participation in the rebellion, said at p. 526:- "It is the intention of the Constitution that each of the great co-ordinate departments of the government-the legislative, the executive, and the judicial-shall be, in its sphere, independent of the others. To the Executive alone is intrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offense pardoned and removes all its penal consequences. It may be granted on conditions. In these particular pardons that no doubt might exist as to their character, restoration of property was expressly pledged; and the pardon was granted on condition that the person who availed himself of it should take and, keep a prescribed oath. Now, it is clear that the legislature cannot change the effect of such a pardon any more than the Executive can change a law. Yet this is attempted by the provision

consideration. The Court is required to receive special pardons as evidence of guilt, and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority, and directs the Court to be instrumental to that end. We think it unnecessary to enlarge... We repeat that it is impossible to believe that this provision was not inserted in the appropriation bill through inadvertence; and that we shall, not best fulfil the deliberate will of the legislature by denying the motion to dismiss and affirming the judgment of the Court of Claims; which is accordingly done." In Brown v. Walker, 40 L. Ed. 819, it was laid down that the constitutional power .of the President to grant pardons does not take from Congress the power to pass acts of general amnesty, such as the Act of February ii,

1. Mr. Justice Brown, delivering the opinion of the Court, said at p. 822:- "The act of Congress in question, securing to witnesses immunity from prosecution, is virtually an act of general amnesty, and belongs to a class of legislation which is not uncommon either in England (2 Taylor, Ev. S. 1455, where a large number of similar acts are collated) or in this country. Although the Constitution vests in the President power to grant reprieves and pardons for offenses against the United States, except in cases. of impeachment, this power has never been held to take from Congress the power to pass acts of general amnesty, and is ordinarily exercised only in cases of individuals after conviction, although, as was said by this Court in Ex parte Garland, 71 U.S. 4 Wall. 333, 380 (18: 366, 371), it extends to every offense known to the law, and may be exercised at any time after its commission either before legal proceedings are taken, or during their pendency, or after conviction and judgment." Later on, dealing with the distinction between amnesty and pardon, he continued in these terms at pp. 822 and 823:- "The distinction between amnesty and pardon is of no practical importance. It was said in Knote v. United States, 95 U.S. 149, 152 (
2. 442, 443): The Constitution does not use the word 'amnesty', and, except that the term is generally applied where pardon is extended to whole classes or communities, instead of individuals, the distinction between them is one rather of philological interest than of legal 'importance'. Amnesty is defined by the lexicographers to be an act of the sovereign power grantingoblivion, or a general pardon for a past offense, and is rarely, if ever, exercised in favour of single individuals, and is usually exerted in behalf of certain classes of persons, who are subject to trial, but have not yet been convicted. While the decisions of the English Courts construing such acts are of little value here, in view of the omnipotence of Parliament, such decisions as have been made

similar acts in this country are, with one or two exceptions, we believe, unanimous in favour of their constitutionality." Finally, in Burdick v. United States, 59 L. Ed. 476, Mr. Justice McKenna, having reviewed the authorities quoted and having observed that a pardon from the President, to be effective, must be accepted by the person to whom it is tendered, delivered the opinion of the Court, and in drawing the differences between legislative immunity and pardon, said the following at p. 482:- "This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a Confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon requiring him to confess his guilt in order to avoid a conviction of it." Then he goes on with these observations:- "It is of little service to assert or deny an analogy between amnesty and pardon. Mr. Justice Field, in Knote V. United States, 95,U.S. 149, 153, 24 L. ed. 442, 443, said that 'the distinction between them is one rather of 'philological 'interest than of legal importance. This is so as to their ultimate effect, but there are incidental differences of importance. They are of different character and have -different purposes. The one overlooks offense; the other remits punishment. The first is usually addressed to crimes against the sovereignty of the state to political offenses, forgiveness being deemed more expedient for the public welfare, than prosecution and punishment. The second condones infractions of the peace of the state. Amnesty is usually general, addressed to classes or even communities -a legislative act, or

legislation, constitutional or statutory-the act of the supreme magistrate. There may or may not be distinct acts of acceptance. If other rights are dependent upon it and are asserted, there is affirmative evidence of acceptance. Examples are afforded in United States V. Klein, 13 Wall. 128, 20 L. ed. 519; Armstrong's Foundry, 6 Wall. 766, 18 L. ed. 882; Carlisle v. United States, 16 Wall. 147, 21 L. ed.

1. See also Knote v. s. United States, supra. If there be no other rights, its only purpose is to stay the movement of the law. Its function is exercised when it overlooks the offense and the offender, leaving both' in oblivion." With respect, this is a most admirable and valuable analysis of the law between amnesty and pardon. I think I would further add that with regard to pardons and reprieves, the position in England remains that, the right of pardon is, moreover, confined to offences 'of a public nature where the Crown is prosecutor and has some vested interest either in fact or by implication; and where any right or benefit is vested in a subject by statute or otherwise, the Crown by a a pardon, cannot affect it or take it away. In general, pardon may be granted either before or after conviction, but if granted before conviction it must be specially pleaded see Halsbury's Laws of England, 4thedn. V. 8 at p. 606 et seq. The Crown may exercise the prerogative right of granting a reprieve and may remit penalties. In Hay v. Justices of the Tower Division of London [1890] 24 Q.B.D. 561, Pollock, B. dealing with the question of pardon which was granted to the accused after conviction, posed this question at p. 564:- "The general question of law next to be considered is, what was the effect of the pardon which John Hay obtained? By the prerogative of the Crown the pardon extends far beyond the mere discharge of the prisoner from any further imprisonment. It is a purging 'of the offence. The King's pardon, says Hale, takes away poenam et culpam': 2 P.C.
2. This points to .the character, condition, and status of the convict., Again, in 2 Hawkins' P.C., s. 48, the author says that pardon does so far clear the party from the infamy and all other consequences of his crime, that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but may also be a good witness 'So in another text-book of authority, 1 Chitty's Criminal Law, 775, it is said that 'the effect of a pardon like