ARTICLE 149(b)
THE CONSTITUTION (A) GEORGHIOS LADAS AND OTHERS, (B) THE PARLIAMENTARY GROUP
THE DEMOCRATIC PARTY(ΔΗΚΟ) IN THE HOUSE
REPRESENTATIVES, Applicants. (Case Nos. 1061/85 and 1062/85). Constitutional Law-Constitution, Articles 135, 149(b), 72, 78.1 and 73.12-The Supreme Constitutional Court Rules
Court, Rule 15
ambiguity,
regarding the election
the President
the House
Representatives. The applicants in these two cases seek, under rule 15
the Supreme Constitutional Court Rules
Court, the leave
the Court to commence proceedings under Article 149(b) for the interpretation, because
ambiguity,
the Constitution regarding the election
the President
the House
Representatives. Held, Pikis and Kourris, JJ. dissenting:
the Supreme Constitutional Court Rules
Court, which were made under Article 135
the Constitution, lays down that for the commencement
proceedings for interpretation
the Constitution under Article 149(b) in a case such as the present one, there is required the leave
the Supreme Constitutional Court, now the Supreme Court.
ambiguity
in conjunction with Article 78.1 retarding the election
the President
the House
Representatives. Such election is a matter
supreme state importance and the applicants Representatives are directly affected by the interpretation and application
. In the light
the above the applied for leave is granted to the said Representatives.
the. Democratic Party in the House
Representatives because such group has not yet been constituted by virtue
.2
the Constitution For the, same reason such leave is not granted to the Democratic Party in Case 1062/85. Order accordingly. Cases referred to: Republic v. Charalambos Zacharias, 2 R.S.C.C. 1; Muderrisoglou and Others v. The Council
Ministers, 5 R.S.C.C. 130. Application. Application by the Representatives
the Democratic Party in the House
Representatives and, by the Parliamentary Group
the Democratic Party for leave
the Supreme Court to commence proceedings under Article 149(b)
the Constitution, for the interpretation, because
ambiguity,
the Constitution regarding the election
the President
the House
Representatives. P. Polyviou with Chr. Triantafyllides, for the applicants. Ph. Clerides personally as a Representative and for the other Representatives
ΑΚΕΛ - ΑΡΙΣΤΕΡΑ in the House
Representatives and, also, for AKEΛ as a political party which is represented in the House
Representatives. M. Christophides personally as a Representative and for the others, except Mr. A. Markides, Representatives
the Democratic Rally (ΔΗΣΥ) in the House
Representatives. A. Markides personally as a Representative and for the Democratic Rally (ΔΗΣΥ) as a political party which is represented in the House
Representatives. E. Efstathiou and D. Eliades personally as Representatives and for the other Representatives
Σ.Κ. ΕΔΕΚ in the House
Representatives and, also, for Σ.Κ. ΕΔΕΚ as a political party which is represented in the House
Representatives. TRIANTAFYLLIDES P. read the following decision
the Court: In these two cases which were filed, on the 23rd December 1985, before the Supreme Court, which exercises, also, the jurisdiction
the Supreme Constitutional Court, the applicants seek, under rule 15
the Supreme Constitutional Court Rules
Court, the leave
the Supreme Court to commence proceedings, under Article 149(b)
the Constitution, for the interpretation, because
ambiguity,
the Constitution regarding the election
the President
the House
Representatives. All Representatives who are the applicants (A1 -16) in case 1061/85 are the Representatives
the Democratic Party in the House
Representatives. Pursuant to directions given by the Supreme Court an opportunity was afforded to all the Representatives
ΑΚΕΛ - ΑΡΙΣΤΕΡΑ
the Democratic Rally (ΔΗΣΥ) and
Σ.Κ. ΕΔΕΚ in the House
Representatives, as well as to ΑΚΕΛ to ΔΗΣΥ and to Σ.Κ. ΕΔΕΚ as political parties which are represented in the House
Representatives, to express their views in respect
the leave which the applicants seek. The hearing
these cases before the Supreme Court took place on the 24th December 1985 and in relation to both
them there is now given the following unanimous judgment
the majority
the Members
the Court (M. Triantafyllides, A. Loizou, Y Malachtos, D. Demetriades, A. Loris and D. Stylianides): 1. The Supreme Constitutional Court Rules
Court were made under Article 135
the Constitution and rule 15
the said Rules
Court lays down that for the commencement
proceedings for interpretation
the Constitution, under Article 149(b)
the Constitution, in a case such as the present one, there is required the leave
the Supreme Constitutional Court, and now
the Supreme Court. 2. It seems that there arises for examination a matter
ambiguity
the Constitution in conjunction, as the applicant Representatives contend, with Article 78.1
the Constitution, regarding the election
the President
the House
Representatives. The House
Representatives decided unanimously, on the 12th December 1985, to refer the aforesaid matter to the Supreme Court and though such decision was not implemented it was not revoked but was only suspended on the 19th December 1985. 3. The election
the President
the House
Representatives is a matter
supreme state importance and the applicant Representatives are directly affected by the interpretation and application
the Constitution regarding the election
the President
the House
Representatives. 4 In view
all the foregoing the applied for leave
the Court is granted to the applicant Representatives in case 1061/85 for the commencement
proceedings under Article 149 (b)
the Constitution. There is not granted, however, the leave applied for in case 1061/85 by the applicants Representatives as constituting the Parliamentary Group
the Democratic Party in the House
Representatives because. such Group has not yet been constituted by virtue
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the Constitution, and for the same reason such leave is not granted to the Democratic Party in case 1062/85 which is, consequently, dismissed. 5. The Supreme Court prescribes as follows the further proceedings in case 1061/85: (a) The application under Article 149(b)
the Constitution on, the part
the applicant Representatives should be filed and served today, through the House
Representatives, on all other Representatives. b) The hearing
the case is fixed for tomorrow, the28th December 1985, at 10 am. PIKIS J.: The group
Representatives
the Democratic Party, 16
the 56 Members
the new House
Representatives, applied for leave to file an application for the interpretation
the Constitution that provides for the election
the President
the House. The application is based on Article 149 (b)
the Constitution that lays down that the Supreme Court has exclusive jurisdiction to interpret the Constitution in case
ambiguity. The remaining Members
the House, belonging to the other Parties, opposed the application basically for two reasons, because:
Representatives is in the process
solving the problem that has arisen in relation to the election
the President
the House, and
the Supreme Court. The regulation
matters referable to the composition and functioning
the House
Representatives constitute, in their submission, a privilege
the House. The Court would be only justified to render an interpretation
the provisions
(b) when the House
Representatives itself as a collective body seeks the interpretation
the Constitution as a necessary prerequisite for the exercise
the powers vested in it under the Constitution. After due consideration
the subject, here under consideration, I have reached the conclusions recited hereinafter in synopsis. The full text
judgment will be available in a few days; it will be filed with the Registry
the Supreme Court and copies will be distributed to the interested parties:
the Constitution is a substantive provision
the Constitution that specifies the organ
the State with jurisdiction to interpret the Constitution in case
ambiguity
its provisions. This competence was assigned to the Supreme Constitutional Court (transferred in 1964 to the Supreme Court under Law 33/64) in contradistinction to other Courts or authorities
the Republic. The absence
any reference in Article 149(b) to litigants and procedural measures was not accidental but aimed to emphasize the jurisdictional character
this article
the Constitution, Comparison
the provisions
(b) with those
, 138, 139, 140, 141, 142, 143, 144, 146 and 147
the Constitution, that make specific reference to the authorities or persons in whom a right
recourse to the Supreme Constitutional Court was vests and the time within which it must be exercised, reinforces the view that Article 149(b) is exclusively a jurisdiction provision.
Republic v. Charalambos Zacharia, 2 R.S.C.C., p. 1, that invocation
the jurisdiction for interpretation
the Constitution, is only justified where absolutely necessary for the resolution
a dispute that has arisen, Granting leave, at this stage, while the House
Representatives is in the process
solving the matter
election
President
the House in opposition to the will
the majority
the Members
the House
Representatives, would undermine the self-existence and autonomy
the legislative power and would disturb the principle
separation
powers. In the case
Muderrisoglu and Others v. The Council
Ministers, 5 R.S.C.C., 130, the Supreme Constitutional Court unanimously refused to recognize the Turkish Members
the House as an organ
the Republic and dismissed their application for examination
alleged violations by the council
Ministers
the competence
the House
Representatives. Notwithstanding the fact that the decision was given in a recourse under Article 139 the principles adopted therein in relation to the status
a group
Representatives apply in every other case; no group
Representatives constitutes a separate entity or organ
the State. It was stressed in the above case that Members
the House
Representatives whose rights are prejudiced are not remediless. The Constitution provides mechanism for the protection
the rights
Members
the House and the entrenchment
the rule
law. In the present case no suggestion was made that the rights
the applicants or those
anyone
them were in any sense injuriously affected. Where the constitutional legislator intended to confer a right
recourse to the Supreme Court on a segment
the House
Representatives independently
the House as a collective organ, it said so expressly as in the case
the Constitution that confers a right on the one fifth
the Representatives
a newly elected House to seek the decision
the Supreme Court as to the existence
"urgent and exceptionally unforeseen circumstances", justifying the taking
any decision under Article 68
the Constitution.
proof the Constitution is an extraordinary measure justified only in exceptional circumstances Otherwise the role
the Court would be extended far beyond the established framework
its jurisdiction, that is, the resolution
judicial disputes. It is not the work
the Court to furnish apriori guidance to the other two powers
the State in the exercise
their competence. (Further reasons for the judgment given on 27.12.85). In the judgment given on December 27, 1985, I outlined the reasons for refusing leave to 16 Representatives
the Democratic Party to apply, under Article 149 (b), for the resolution
alleged ambiguities in Article 72
the Constitution, indicating at the same time that comprehensive reasons for the judgment would soon be delivered. In fulfillment
that obligation the following decision is given that should be read as a part
the aforesaid judgment. The brevity
time between reservation
judgment and its delivery made impossible a comprehensive statement
the reasons in support thereof. Leave to apply was mainly refused for three reasons: (a) Lack
jurisdiction to invoke the provisions
(b) outside the framework
extant legal proceedings. (b) Inamenity to assume jurisdiction under Article 149 (b), unless resolution
an ambiguity in the Constitution is material for the determination
a concrete and definable dispute that has arisen. (c) Undesirability
avoiding an apriori interpretation
the Constitution. A comprehensive exposition
my reasons for the above decision is given below. ARTICLE 149 (b)
THE CONSTITUTION-ITS COMPASS AND EFFECT. Article 149 (b) does not in terms confer a right to seek an interpretation
the Constitution unless resolution
an ambiguity in a constitutional provision is essential for the determination,
a judicial proceeding. The wording used to introduce Article 149 "The Supreme Constitutional Court shall have exclusive jurisdiction"-strongly suggests it is a substantive enactment, solely intended to denote the authority
the State vested with jurisdiction to resolve an ambiguity. Paragraph (b)
(b) To make, in case
ambiguity, any interpretation
the Constitution due regard being had to the letter and spirit
the Zurich Agreement dated 11th February, 1959 and the London Agreement dated. 19th February, 1959." The word "exclusive" aims to indicate the organ
the State possessed
jurisdiction to resolve constitutional ambiguities in contra distinction to any other judicial body or Authority
the State. Observations in decisions
the Supreme Constitutional Court reinforce the view that Article 149 is solely designed to earmark the body vested with, competence to interpret the Constitution in case
ambiguity.As much was specifically stressed in Nicos Pelides And The Republic (Council
Ministers and Another). Article 149 must be read and applied in the context
the constitutional division
judicial power between the Supreme Constitutional Court on the one hand and, the High Court and courts subordinate thereto, on the other. The Supreme Constitutional Court was entrusted with jurisdiction in matters
constitutional and administrative law, while the High Court and courts inferior thereto with jurisdiction in the domain
civil and criminal law. The case
Osman Saffet and Cyprus Palestine Plantations Co. Ltd. and Another, exemplifies the circumstances in, which a valid recourse to the provisions
Reference under Article 149 (b) was made to the Supreme Constitutional Court by a. district court to interpret the provisions
.3
the Constitution in view
the ambiguity inherent thereto as to the composition
a civil court where one
the litigants was a juristic entity, that is, a company. An interpretation
the provisions
.3 was furnished in order to guide the competent judicial, authorities to determine the composition
the district Court. In the Cooperative Grocery
Vasilia Ltd. and Charalambos N. Ppirou and Others, it was made abundantly clear that only the Supreme Constitutional Court was vested with jurisdiction under Article 149 (b) to clarify constitutional provisions fraught with ambiquity to the exclusion
any other Court
the Republic. Article 149 is, it appears to me, a jurisdictional enactment intended to distinguish the judicial body vested with competence to resolve ambiguities in the Constitution to the exclusion
any other Court or Authority
the Republic. The attempt
the constitutional legislator to specify that only a judicial body would have jurisdiction to interpret the Constitution, was not superfluous. Some countries acknowledge jurisdiction to interpret the law to non judicial authorities as, indeed, it is the cast with the Constitutions
Greece
1952 and 1975, that provide that the authentic interpretationsof laws is a competence
the legislature. Article 149 (b) is not an isolated provision in its effect, but conforms to the pattern
separation
powers enshrined in the Constitution, acknowledged by the Supreme Court as "the bass
our constitutional structure". Consistently with our scheme
separation,
powers under-lying our Constitution, it has been repeatedly held that the interpretative function
the Constitution, and laws made" thereunder, is the exclusive province
the judiciary. In Re Georghiou I intimated that Article 149 cannot be invoked outside the context
, a substantive conflict. More extensively, the ambit
Georghiou. Although there are dicta that tend to suggest that Article 149 (b) may confer adjectival rights too, outside the context
extant legal proceedings, they are obiter because in that case a definite dispute had arisen as to the implementation
a judicial order whereby a Representative was sentenced to, imprisonment. The discussion
(
recourse, to the Court, is the one given in, Case No. 6162 (unreported)
the Supreme Constitutional, Court, whereby leaves given to the Vice-President
the "Republic to institute a recourse for the interpretation
certain provisions
the Constitution. The case was brought, to our knowledge by the learned President
the Court who had a recollection
the case as he was, at the time, a Member
the Supreme Constitutional Court. Leave was granted upon an ex parte application and aswe may gather from the record, the range
application
. Article 149 (b) was not at all discussed before the Court. Certainly, the Court did not aim to furnish an authoritative interpretation
the compass and ambit
Moreover, the Rules made by the Supreme Constitutional Court under Article 135
the Constitution, cannot be read but subject to the constitution. It is subject to this reservation, that r. 15
the Rules must be read and applied. No rule
Court can be enacted beyond the limits
the enabling legislation, in this case Article 149 (b)
the Constitution. Comparison
with other articles found in the same part
the Constitution, Part IX, remove any doubt that might be entertained as to the exclusive jurisdictional character
this article
the Constitution. It is evident from the provisions
Articles 137, 138, 139, 140, 141, 142, 143, 144, 146 and 147 that, where the constitutional legislator intended to confer a right,
recourse to the Court in. furtherance to a particular provisionof the Constitution, it stated this to be the case, expressly. It is no accident that in Article 149 (b) there is total absence
any reference to a right
action. To my comprehension this is the first case that the Court is required to define the juristic effect
(b)
the Constitution. For the reasons indicated above, I am clearly
opinion it is a substantive provision, solely designed to indicate the Authority
the State vested with jurisdiction to resolve ambiguities
the Constitution. It does not confer any independent right
action. RECOURSE TO THE SUPREME COURT-WHEN JUSTIFIED. Even if I were to hold that Article 149 (b) made possible invocation
its provisions outside the context
pending legal proceedings, there would still be insuperable obsta35 des to assumption
jurisdiction in this case for the reasons given below. The principal function
courts
law is the resolution
defined legal disputes. Courts
law are not advice-rendering bodies, nor is it their function, under our legal system, to guide anyone in the exercise
his rights. In Republic and P. Loftis the Supreme Constitutional Court emphasized that Article 149 can only be invoked if resolution
a constitutional ambiguity is material for the determination
a particular dispute. As we have been informed the newly elected House
Representatives is presently engaged in a process
devising, an appropriate solution to the problem that has arisen, that is, the election
the President
the House
Representatives. No decision has been taken on the subject and, therefore, no dispute exists as to the validity
any decision
the House. To grant leave and assume jurisdiction to interpret Article 72 in the absence
any dispute as to the validity
any act
the Representatives or the House, would be-contrary to authority and wholly unjustified. Further, assumption
jurisdiction, to interpret the Constitution in order to guide the body in opposition to the will
the majority
the Representatives, would undermine the self-existence and autonomy
the House and disturb the principle
separation
powers. Significantly, in Orhan Muderrisoglou And Others and the Council
Ministers, the Supreme Constitutional Court refused to recognise the Turkish Representatives as an organ
the Republic and dismissed their recourse for alleged violation
the competence
the legislature by the Council
Ministers. The principle behind that decision isthat the sovereignty
the legislature is indivisible and cannot be fragmented into its component parts
course, the decision in the above case related to a recourse under Article 149 but the principle adopted applies with equal forceto every other case; namely, that no group
Representatives constitutesa separate entity or an organ
the Republic. In case
violation
their rights the Representatives are not remediless, as, the Court observed in the above case. The Constitution provides approriate mechanism for theprotection
injured rights
Representatives and the entrenchment
the rule
law. The right
access to the Court, as stated in Attorney Genera1
Trinidad v. McLeod is safeguarded so long as the judicial system affords a procedure whereby the person interested in, establishing the invalidity
a purported law or decision can have recourse to the courts
justice "in which the plenitude
the judicial power
the State is vested" for a declaration
invalidity that will be binding on the legislature. Where the constitutional legislator intended to confer on a segment
the House a right
action, independently
the collective will
the Representatives, it said so expressly in the Constitution, as in the case
.1 that vests a right on one fifth
the Members
a newly-elected House to have recourse to the court in order to ascertain whether ".. there exist such urgent and exceptional unforeseen circumstances as to justify a House
Representatives which continues to be in
fice until the assumption
fice
a newly-elected House to make any laws or take any decisions as in Article 68 provided." To recapitulate, even if Article 149 (b) made possible recourse to the Court, independently and outside the context
existing legal proceedings, there would be no justification, for the reasons indicated above, to assume jurisdiction to provide an interpretation
in the circumstances
this case. APRIORI INTERPRETATION
THE CONSTITUTION. The apriori interpretation
the provisions
the Constitution by the judicial Authorities, is, by its nature, an extraordinary measure to which resort could only be had in exceptional circumstances. Such apriori interpretation is not intrinsically a judicial function but opinion rendering, ordinarily the task
legal advisers. The Courts declare the law in order to resolve a dispute as to the validity or justification
a given act, decision or action and, then, remedy any deviation from the law or infringement
rights given by law. This is the framework
judicial action. It is not the function
the Courts to guide the other two powers
the State-the Legislature and the Executive-in the exercise
their respective competence; f this were to happen we would come close o government by the courts, a position contrary to the spirit and letter
the Constitution. Members
both the Legislature and the Executive give, before assuming
fice, an affirmation
respect for the Constitution and laws made thereunder (see Articles 69 and 59.4, respectively). We cannot but presume consistently with the presumption
legality that they will operate within the limits
their power and in accordance with the Constitution, and laws made thereunder. Therefore, to assume jurisdiction to guide them in the discharge
their duties by furnishing an apriori interpretation
provisions
the Constitution, as required in this case, would be nothing less than a denial
this presumption in the case
Members
the House
Representatives. If we were to entertain the present application, we would be establishing a very dangerous precedent involving the acknowledgment
a right to a minority
members
collective organs
the State, such as the House
Representatives and the Council
Ministers, to have recourse to the Court with a view, to forestalling what they foresee to be a decision disagreeable to them. Such a precedent would undermine, I repeat, the sovereignty and autonomy
the other two powers
the State to the detriment
the doctrine
separation
powers. KOURRIS J.: I agree with the judgment
Pikis, J., and for same reasons I dismiss the application for leave to file a recourse under Article 149(b)
the Constitution. I am
opinion, in agreement with Pikis, J., that granting leave under the circumstances
the present case would create an unjustified precedent in the exercise
State powers. Order accordingly. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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