certain terms or conditions proceed withthe engagement is not repugnant to or inconsistent with any of the said Articles of the Constitution. House of Representatives-Ambit of its powers by virtue of Article 61 of the Constitution. Council of Ministers-Executive in general-Ambit of powers
Articles 54(a) 58, 81, 116, 167 of the Constitution. On the 19th July 1985 the President of the Republic referred,
of the Constitution, to the Supreme Court for its Opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 54, 58, 61,81, 116, 167, 168.1 and 179 of the: Constitution. (The text of the sub judice law is quoted at. pp. 2155-2156). Held, Pikis and Kourris, JJ. dissenting:
of the Constitution, to the Supreme Court for its Opinion, the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 54, 58, 61, 81, 116, 167, 168.1 and 179 of the Constitution. The said Law was enacted by the House of Representatives on the 4th July 1985 (the text of the Law is attached hereto). On the 5th July 1985 the House of Representatives transmitted the Law to the President of the Republic, who, before promulgating it pursuant to Article 52 of the Constitution, filed the present Reference. The Supreme Court on the 26th and 27th August 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, A. Loris and D. Strylianides) is the, following:
the Chapter and section of the relevant Budget or supplementary Budget.
of the Constitution, to the Supreme Court for its opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1984, is repugnant to, or inconsistent with, the provisions of Articles 54, 61, 116, 167 and 168.1 of the Constitution. The said Law was enacted by the House of Representatives on the 29th November 1984. The President of the Republic, on the 6th December, 1984, returned it to the House of Representatives for reconsideration
of the Constitution, but on the 13th December 1984 the House of Representatives decided to persist in the enactment of the Law and, on the 14th December 1984, notified its decision to the President of the Republic, who, before he promulgated the Law
The Supreme Court considered preliminary objections of the House of Representatives on the 20th and 21st February 1985 and delivered its Decision thereon, on the 18th March 1985. Then, on 9th, 10th, 24th, 25th and 26th April 1985, the Court heard, through their counsel, arguments on behalf of, the President of the Republic and the House of Representatives, pursuant to Article 140.2 of the Constitution. The Supreme Court considered the question referred to it and its unanimous Opinion is the following:
of the Constitution and comes within, the ambit of the exercise of the powers of the Council of Ministers, in relation to the general direction and control of the government of the Republic,
the same title for the promotion of the same object, namely, exercise of control by the House over the employment of temporary personnel by government departments and approval of expenditure by the Minister of Finance for this purpose. There are differences in the wording of the two laws apparently designed to eliminate provisions found to be constitutionally objectionable. Mr. Loucaides submitted, on behalf of the President, the new law is equally objectionable for contravention ofthe same provisions and precepts of the Constitution. The new law, like its predecessor, purports to bestow competence on the legislature to take part in the process of engagement of government personnel, administrative action par excellence within the exclusive jurisdiction of the executive branch of government. Before examination of the rival submissions it is beneficial to make reference to the provisions of the new law and notice the differences from those of the Law it sought to replace. As in the case of the first Law, the new Law requires the Minister of Finance to submit to the House a detailed account of the needs of the Administration in temporary personnel for the explicit purpose of enabling the respondents to exercise the control envisaged by subsection 2 of s. 3 of the Law. Details to be given include the period and terms of employment of personnel. Unlike the first Law express approval of the House is not made a condition precedent to the sanctioning of government plans. If the compass of the Law was limited to evolving a procedure to apprise the House of Representatives of government plans in the area
consideration, it would be difficult to raise objections to its constitutionality. However, its provisions go much further and contemplate the freezing of government plans for a period of one month in order to afford opportunity to the legislature to stop their implementation by the enactment of a prohibitive Law. The Law entails in effect, suspension of government action in order for the House of Representatives to exercise the control contemplated by the Law over administrative action. In the event of inaction on the part of the House within the statutory period, of one month, the Minister of Finance will be free to give effect to his plans subject to compliance withthe details furnished, to the legislature In this way the document submitted to the Minister of Finance acquires, after the effluxion by the period of on e month, the force of Law. The silence of the House of Representatives, is, in this way, employed as an instrument to legislate in contravention of the provisions of Art.78.1 and 73.10 of the Constitution that expressly provide that a Law canonly be validly enacted by the positive vote of the House on a bill or proposal for legislation. Any official acting contrary to the provisions of subsection 2 is held personally liable for any additi6nal expenditure. The unavoidable inference is that the new Law, like its predecessor, is solely designed to confer competence on the House to approve the employment of temporary government personnel despite the existence of credits in the budget for the purpose. The pertinent question is whether the differences in the, wording of the new Law as compared to the old one cast a different complexion on the competence assumed by the House of Representatives. The decision of the Full Bench in Reference1/84 acknowledged that the engagement of government, personnel constitutes administrative action (διοικητική ενέργεια) outside the jurisdiction of the House of Representatives. The latter cannot assume directly or indirectly, in the context of the powers vested in them by the Constitution, the conduct of public administration that constitutes
The position adopted by Mr. Loucaides is that the jurisdiction of the legislative body is by its nature limited to the enactment of general and impersonal rules of Law that cannot
any circumstances take the form of authorization to the House to engage in the exercise of administrative function. The exercise of executive and administrative power is the domain of the executive branch of government wholly outside the framework of jurisdiction of the House of Representatives. The employment of government personnel being, as Mr. Loucaides supported, action of an administrative nature, no power vests in anyone to assume competence other than the Executice. The assumption of competence by the Legislature in connection withthe employment of government personnel is contrary to and inconsistent with Art.54 and 61 of the Constitution that define respectively the sphere of jurisdiction of the Executive and the Legislature and the separation of powersenshrined in the Constitution that confines the jurisdiction of each State power within the area assigned it by the Constitution. In opposition to the above thesis Mr. Markides submitted that
of the Constitution the House of Representatives has unlimited legislative power extending to the regulation by Law of every subject it so chooses to regulate. Although laws have as a rule, as he said, a general and impersonal character, the Legislature is not precluded from enacting individual laws (προσωπικούς νόμους) of administrative content. Espousing the approach of the positivist school of law he argued the test for the classification of legislative acts is purely formal depending on the source of emanation and procedure for the enactment of the Law. Counsel cited a number of Cyprus Laws that have individual administrative matters as their subject of course the practice of the Legislature and assumption of legislative competence in different area does not create a precedent for the judicial authorities of the State, duty bound as they are,
Aft 140 of the Constitution to decide the constitutionality of a law referred to the Court exclusively by reference to the compatibility of its provisions withthe Constitution. The Constitution of the Republic of Cyprus is the source of State power and its provisions earmark the sphere of jurisdiction of the different organs of the State. Where a function is not specifically entrusted by the Constitution to the competences of a particular authority the criterion, for the assumption of competence is the natureof the function in view of the principle of separation of powers that pervades the constitutional structure of the State of Cyprus.Relying on the wording of Art.61, in. particular the acknowledgement of power to the House to legislate "in all matters", Mr. Markides pressed before us that there is no limitation to matters that may be made the subject of legislation. This submission overlooks that Art. 61 cannot be viewed in isolation or divorced from the framework of the Constitution and the meticulous division of State powers among the three branches of the State namely, the Executive, Legislative and Judicial. Significantly the sphere of jurisdiction of the Executive is defined in a manner corresponding to that of the Legislature. Art. 54 that precedes Art. 61 in the constitutional edifice entrusts exclusively to the Council of Ministers and confers jurisdiction upon this organ of the State to exercise executive power "in every matter". Consequently the jurisdiction, of the Executive and the Legislature is mutually exclusive. The criterion for the classification of State functions is a substantive one as the Supreme Court repeatedly acknowledged. They are classified according to their content not the form that envelopes them, legislative or executive, as the case may be. This is a corollary of the principle of separation of powers that aims at a substantive as opposed to a superficial division of, authority among organs of the State. The House of Representatives cannot
the guise of legislating assume administrative functions in precisely the same way that the Executive cannot legislate
the mantle of Administration. The Constitution of Cyprus provides for a strict separation of the jurisdiction of the three branches of the State. The enactment of rules of law and the setting of the framework within which the Administration shall operate, constitute, the exclusive province of the Legislature. Notwithstanding that the House of Representatives may regulate by law subjects affecting only a small number of persons, the content of legislation cannot be other than the evolution or adoption of rules of law. If they affect a government department or activity they may take the form of establishing the framework within which a government department shall operate or the Administration will be con ducted; but
no circumstances can they have a. their object the exercise of administrative competence by the Legislature. The execution of laws is within the exclusivejurisdiction of the Executive. It is from this function that the Executive derives its name. By the assignment of the legislative and executive competences to different organs of the State the diffusion of State authority is achieved which constitutes the principal object of the doctrine of separation of powers in the interest of the symmetrical functioning of the State. The constitutionality of the Law here
consideration depends on the classification of the act of engagement of government personnel made in the context of expenditure approved in the budget. That the object of the House is the avoidance, in their opinion; of unnecessary expenditure does not alter the nature of the question we must answer. The jurisdiction, of the Supreme Court
is limited to an expression of an opinion on the constitutionality of the Law referred to it; the answer solely depends on its compatibility withthe provisions of the Constitution. It has been authoritatively decided by the Supreme Court in Reference 1/84 that the employment of government personnel for the execution of the government programme, subject to the expenditure limits set in the budget constitutes administrative action. While the approval of expenditure and its limitation fall within the sphere of jurisdiction of the Legislature, the execution of the approved works, including the employment of the necessary personnel, fall within the exclusive competence of the Executive. As explained by Stassinopoulos the filling of posts is a matter within the discretion of the Executive, the power that has overall responsibility for the financial and economic policy of the State. Art. 58 provides that the execution of laws relating to a department of State is the exclusive province of the Minister responsible for the affairs of the department. Approval of expenditure, within the limits set in the budget is
The provisions of the law are inextricably connected between them and form an inseparable whole and for this reasonthey cannot be severed Judged as a unified legislative enactment the Law is unconstitutional because its provisions are repugnant to and consistent with:
consideration, like its predecessor, purporting to regulate the engagement of temporary Government Personnel that was judged to be unconstitutional, aimed to confer, competence on the House of Representatives to take part in administration, a function that falls
the Constitution within the exclusive jurisdiction of the Executive. Opinion as above. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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