PAPAXENOPHONTOS & OTHERS ν. REPUBLIC (1987) 3 CLR 1557 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφ

Art. 61of the Constitution (President of the Republic v. House of Representatives

Art. 166

.1 of the Constitution the emoluments of the members of the Public Service Commission are charged on the consolidated fund.

Art. 167

.2 the estimates of expenditure in the Budget shall show separately:- (

1. a)The total sums required to meet expenditure charged on the Consolidated Fund, and (
2. b)The sums respectively required to meet other expenditure. Article 81 of the Constitution should be read in conjunction with Art. 167.4, which provides that the expenditure to be met from the consolidated fund but not charged thereon shall be submitted to the House of Representatives for adoption and if adopted shall be put in the Budget in respect of that financial year. The Budget authorizes the expenditure as no money can be paid out of the public Revenue without parliamentary authority.

the Law of Necessity. The functions of this Commission as set out in Section 5 .of Law 33/67 are almost identical with those entrusted to the Public Service Commission

Article 125

of the Constitution with the sole exception that the definition of «Public Service» in Section 2 of the Law encompasses only service

the Republic. Section 6 of Law 33/67 provided that «there shall be paid to the Chairman and the other members of the Commission such remuneration as may be determined by the Council of Ministers». The Council of Ministers by decisions No. 27.08 1 and 27.450 duly taken on 8/5/86 and 31/7/86 fixed the basic salary of the Chairman of the Commission at £9,160.- p.a. and the basic salary of each member at £7,850.-. On 7/11/86 the Public Service (Amendment) Law, 1986 (Law 169/86) was enacted with retrospective operation as from 1/5/86; Section 6 of the basic Law was repealed and substituted by Section 2 of the new Law, which reads as follows:- «

1. The remuneration of the Chairman and every member of the Commission shall be determined by Law and shall not be altered to the disadvantage of the Chairman or the member after their appointment.» On 24/2/1987 the Accountant-General sent to the Chairman of the Public Service Commission letter containing the sub judice decision. By this decision the computation of the remuneration of the Chairman and of the members of the Commission as from 14/ 2/87 would be made on the basis of £8,539.- and £6,900.- p.a. respectively. He based his such decision on the Budget Law, 1987 (Law 8/87), published on 4/2/87 and which according to the Accountant-General fixed the remuneration of the applicants as above stated. He requested the return to him of the cheques which had been issued for each one of them for the month of February in order to be replaced by other cheques, as from the period 1/2/ 87 to 13/2/87 the calculation would be made on the basis of the previous salary. On 25/2/87 the Chairman of the Commission replied by exhibit 2 attached to the recourse. The cheques were returned, with reservation of the rights of the applicants with regard to the decrease of their remuneration, which was considered unconstitutional, contrary to Law, and in excess or abuse of power. By these three recourses the applicants seek the annulment of the decision contained in the aforesaid letter of the Accountant- General, dated 24/2/87, whereby their respective remunerations were lowered. The case on behalf of the respondents was conducted by Mr. K.C. Talarides, an advocate in private practice who was retained by the Attorney-General of the Republic. The sub judice decision was based on the Budget Law,
2. The statutory provision for the determination of the remuneration of the applicants is Section 6 of Law 33/67 as amended by Law 169/86 to bring it into conformity with para. 4 of Article 124 of the Constitution. Was a law enacted pursuant to the provisions of Section 6 of Law 169/86, determining the remuneration of the applicants? In the Public Service Law, unless the context otherwise requires, «Law» includes any provision of a legislative nature and the Budget. In Petrakis Panayides v. The Public Service Commission C 1972) 3 C.L.R. 467, A. Loizou, J. in dealing with the creation of new post by the Budget, said that this is legally possible to be so in this way, since the Budget Law is law and he referred to the definition in Law 33/
3. The Supreme Court in its opinions

Article 140

of the Constitution in References 1/84 and 7/85 said that Budget is a Law that may be amended by the House in exercise of its power

Article 61that vests the House of Representatives with the legislative power of the State.

The Engagement of Casual Employees (Public and Educational Service) Law, 184, enacted by the House of Representatives prohibiting the engagement of casual employees was the subject law in Reference 1/84. The Court said that:-

Article 140

of the Constitution, to the Supreme Court for its Opinion the question of whether the Budget (Amendment) Law, 1985, was repugnant to, or inconsistent with the provisions of a number of Articles of the Constitution. The Supreme Court in its unanimous Opinion said that the House of Representatives votes the Budget Law

Articles 61 and 81.1of the Constitution and votes Supplementary Budget Laws

Articles 61 and 167.6 of the Constitution and further as it is to be inevitably inferred from the reasoning of the unanimous Opinion of the Supreme Court in Reference No. 1/84 the House of Representatives in the exercise of its legislative power,

Article 61of the Constitution, may amend the Budget Law and the Supplementary Budget Laws.

It is noteworthy that no amount charged on the Consolidated Fund was involved in any of the aforesaid two Laws. The Financial Provisions in the Constitution are set out in Part XI.

Article 166

.1 the emoluments of the President of the Republic and the salaries of the Judges of the Supreme Constitutional Court and of the High Court, of the Attorney-General and of the Deputy Attorney-General, of the Auditor- General and of the Deputy Auditor-General, of the Governor and the Deputy Governor of the Issuing Bank and of the members of the Public Service Commission are charged on the Consolidated Fund. The salaries of those organs of the State or officials of the State whom it is desired to make more independent than the ordinary departmental officials are made charges on the Consolidated Fund. This is a necessary Constitutional provision in order to avoid special opportunity of criticizing in the House each year the work of these officials. It is further a salutary provision that marks and preserves the independence necessary for the performance of their high duties. Article 167 provides that the Minister of Finance in respect of every financial year causes to be prepared a comprehensive Budget of the Republic for that year which, when approved by the Council of Ministers, shall be laid before the House of Representatives.

para. 2 the estimates of expenditure in the Budget shall show separately:- (

1. a)The total sums required to meet expenditure charged on the Consolidated Fund, and (
2. b)The sums respectively required to meet other expenditure. This was done for the Financial year 1987. The Budget laid before the 1-louse showed at p. 64 Head A09, Sub-head 102 the basic salary of the Chairman of the Public Service Commission as £9,160.-and for each of the four members £7,850.-as amounts charged on the Consolidated Fund. It showed, also, according to the usual practice, the amount in the Budget of [he previous year 1986, i.e. £8,539.-and £6,900.-respectively. In the Budget Law, 1987 (Law 8/87) at p. 102 the amounts were reduced to £8,539.-for the Chairman and £6900.-for each member. These are indicated in the Table of Expenditure. Paragraph 4 of Article 167 provides that the expenditure to be met from the consolidated Fund, but not charged thereon shall be submitted to the House of Representatives for adoption and if adopted shall be put in the Budget in respect of that financial year. Article 81 should be read in conjunction with Article 167.4. In the preamble to the Budget Law, 1987 we read: «AND WHEREAS a sum not exceeding one hundred and thirty million, three hundred and fifty-seven thousand, three hundred and eleven pound has to be charged on the Consolidated Fund for the service of the twelve months ending the thirty-first day of December, 1987 as provided by the Constitution or Law. AND WHEREAS it is necessary to make provision for such expenses of the Government of the Republic for the year ending the 31st day of December, 1987, as are not already lawfully provided for or shall not hereafter be provided for by the Constitution or any Law.» In the operative part of Law, Section 2 provides:- «2. Επιπροσθέτως των ποσών άτι να προϋπολογίσθησαν ήδη νομίμως διά την χρήσιν της Δημοκρατίας ή άτινα μετά ταύτα θα προϋπολογισθούν νομίμως διά την χρήσιν ταύτην και άτινα βαρύνουν το Πάγιον Ταμείον της Δημοκρατίας, εγκρίνεται όπως πληρωθή εκ του Παγίου Ταμείου της Δημοκρατίας και χρησιμοποιηθή διά την χρήσιν του έτους του λήγοντος την 31ην Δεκεμβρίου, 1987 ποσόν μη υπερβαίνον τα τριακόσια και δύο εκατομμύρια, οκτακοσίας είκοσι χιλιάδας, επτακοσίας και εξήκοντα οκτώ λίρας προς κάλυψιν των δαπανών της Κυβερνήσεως της Δημοκρατίας διά την περίοδον ταύτην.» («2. In addition to the mounts which he been already legally estimated for use by the Republic or which thereafter will be legally estimated for such use and which are charged on the consolidated fund of the Republic, the payment out of the, consolidated fund for the use of the year ending on 31.12.87 for covering the expenses of the Government of the Republic during such period of an amount not exceeding three hundred and two million eight hundred and twenty thousand seven hundred and sixty eight pounds is hereby approved»). Section 3 provides that the sum granted by Section 2 is appropriated for the services and purposes expressed in the Table of Expenditure set out in the First Schedule. The only difference between the Budget presented to the House by the Minister of Finance and the Budget Law 8/87 is the decrease in the basic salaries of the Chairman and the members of the Public Service Commission and the respective decrease in the total amount of the charges on the Consolidated Fund. The Budget authorizes the expenditure as no money can be paid out of the Public Revenue without parliamentary authority. Having given the utmost consideration to the matter, I have come to the following conclusions:- (
3. a)The term «Law» in section 6 of Law 169/86 does not include the Budget as its context points out. If the Budget were the law envisaged by Section 6 of the Public Service Law, the Budget Law No. 8/87 did not determine or legislate for the purpose of the remuneration of the Chairman and of the members of the P.S.C. whose remuneration is a charge on the Consolidated Fund. (
4. b)A charge on the Consolidated Fund does not require adoption by the House of Representatives; the sanction of the House is confined only to expenditure to be met from the Consolidated Fund but not charged thereon. (Article 167.4 of the Constitution.) The simple reduction, therefore, in the schedule of Law 8/87 and the consequential reduction in the preamble to the Budget ofthe total amount of the charges on the Consolidated Fund are not a legislative act in the sense of Section 6 of the Public Service Law. A specific law may provide for the remuneration of the applicants; of course a decrease of their remuneration (fixed by the Council of Ministers) might be inconsistent with the principles of Administrative Law and contrary to the Constitution and the Law; but for the purposes of the present recourse I feel that I should leave this matter open. The importance of the said organ of the State and the necessity of preserving its independence, which have been salutary declared by the Constitution and the Authoritative decisions of this Court should always be born in mind, and unless there is a general decrease in the remuneration of other organs of the State, I fail to see how the lawfully and validly fixed remuneration of the members of this independent organ may validly be decreased. In view of the above the sub judice decision is contrary to the Constitution and the Law. The remuneration of the applicants continue to be the one determined by the Council of Ministers, as stated earlier on in this Judgment. The sub judice decision is hereby declared null and void and of no effect whatsoever

Article 146.4(b) of the Constitution.

Let there be no order as to costs. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο