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GEORGHIADES ν. C.B.C. (1987) 3 CLR 2009

GEORGHIADES ν. C.B.C.

(1987)3 CLR 2009 THE CYPRUS LAW REPORTS ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αφαίρεση Υπογραμμίσεων
(1987)3 CLR 2009 1987 December 8 [A. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THRASOS GEORGHIADES, Applicant, v. C.B.C (CYPRUS BROADCASTING CORPORATION), Respondents. (Case NO. 897/87). Administration Law-Discretion of administration-Exercise of-Judicial control-Principles applicable-Analysis of. Administrative Law - Power given by Law - Save where there is clear and Imperative obligation for certain action, there is a presumption that the administration has discretion In the matter. Presidential election-The Cyprus Broadcasting Corporation (Amendment) Law, 1987-«Candidate for the office of President»-subparagraphs (a), (b), (
  1. c)and (
  2. d)of subsection 2-Whether a person satisfies the prerequisites of being considered as such a candidate- A matter within the discretion of C.B.C. The Cyprus Broadcasting Corporation (C.B.C.) rejected applicant's application that he be given time in order to expound th6ugh the radio and television his programme and ideas as a candidate for the office of the President of the Republic, on the ground that the applicant did not satisfy the prerequisites of subparagraphs (a), (b), (
  3. c)and (
  4. d)of subsection 2 of the Cyprus Broadcasting Corporation (Amendment) Law, 1987. As a result applicant filed this recourse. Held, dismissing the recourse:
(1)The applicant did not satisfy the requirements of subparagraphs (a), (b), (c) of subsection 2 of the said law.
(2)As regards subparagraph (d) of subsection 2 of the same law the Cyprus Broadcasting Corporation decided that the case of the candidature of the applicant did not fall within its provision because In the view of the Corporation and on the basis of the criteria and the approach of the reasonable average man, the applicant neither has played or plays substantial role in the political or economic or social life of Cyprus nor is he a personality commanding the necessary prestige and/or respect among the electoral body or part thereof.
(3)Whether a person may be considered as a «candidate for the office of President» within the meaning of the Law, is a question that falls exclusively within the discretionary power of the Corporation. Even though the Law is silent on the question of the discretionary power the constant Case Law of the Greek Council of State accepts that .when there is not created by the Law a clear and imperative for the administration obligation for a certain action by it, it is presumed that the discretionary power belongs to it (see Decision of the Council of State 07/29).
(4)Consequently since the sub judice decision was taken in the exercise of discretionary powers it must be judicially controlled on the basis of the principles governing judicial control of the exercise of administrative discretion by the administration.
(5)In accordance with such principles and in the light of the facts of this case the challenged decision of the Corporation is in all respects lawful and in accordance with the principles of Administrative Law set out hereinabove and the relevant provisions of the Law and the Constitution. Recourse dismissed. No order as to costs. Cases referred to: President of the Republic v. House Representatives
(1987)3 C.L.R. 1631; Tsangaris v. The Republic
(1975)3 C.L.R. 518; Fashions House v. The Republic
(1973)3 C.L.R. 231; Georghakis v. The Republic
(1977)3 C.L.R. 1 Decision 7/29 of Greek Council of State. Recourse. Recourse for a declaration that the Cyprus Broadcasting Corporation should stop presenting and/or announcing the positions and announcements of the leaders of the parties who are candidates for the presidency until the Full Bench decides whether the applicant is entitled to appear on T.V. and Radio in order to expound his programme and ideas as an independent candidate for the presidency. Applicant appeared in person. P. Polyviou for the respondent. Cur. adv. vult. A. LOIZOU J. read the following judgment. By the present recourse the applicant, who handled the case himself without an advocate, seeks the following reliefs: «1. The C.B.C. should stop presenting and/or announcing the positions and announcements of the leaders of the parties who are candidates for the Presidency, until the Full Bench of the Supreme Court decides whether the undersigned is entitled to appear on the T.V. and the Radio in order to expound his programme and his ideas as he happens to be the real independent President of the Republic of Cyprus. 2. The omission of the C.B.C. to invite the applicant to appear on the. T.V. and the Radio as independent candidate for the Presidency of the Republic of Cyprus is contrary to the Law and the Constitution and violates the equal treatment of the candidates for the Presidency of the Republic. 3. Any other relief. 4. The costs.» The applicant who, as he alleges in the statement of facts, set out in his application «expressed and declared through the press and by public meetings his intention to be a candidate for election as President of the Republic of Cyprus at the next Presidential elections of 1988. He further gave a press conference for this purpose on the 29th May, 1987». On the 3rd and 18th of October 1987 he also applied in writing to the respondent Corporation that he be given time both on the T.V. and the Radio in order to expound his programme and ideas to the electoral body like all the other candidates who had already started being presented by the Corporation. On the 28th October, 1987, he sent a telegramme to the General Manager of the Corporation calling upon him as he said «In strict respect and observation of the C.B.C. Law, as well as respect to the judgment of the Full Bench of the Supreme Court which speaks about candidates for the Presidency and not parties». The respondent Corporation rejected the application of the applicant by its decision contained in its letter of the 29th October 1987, by means of which it communicated its decision to the applicant. The relevant passage reads as follows: «(
  1. a)Mr. Thrasos Georghiades does not satisfy the prerequisites set down by subparagraphs (a), (
  2. b)and (
  3. c)of subsection 2 of the Cyprus Broadcasting Corporation (Amendment) Law 1987, because Mr. Thrasos Georghiades neither held at the time of the announcement of his intention to stand as a candidate for Presidency of the Republic (subparagraph (a), nor was he supported by One or more parties as the term political party is defined in section 2 of the Law (subparagraph (c)) (
  4. b)On the basis of all the material before it the Corporation decides that the case of the candidature of Mr. Thrasos Georghiades does not fall within the provisions of subparagraph (
  5. d)of subsection 2 of the Law inasmuch as in the opinion of the Corporation on the basis of the criteria and the understanding of a reasonable ordinary man Mr. Thrasos Georghiades has neither played nor plays a substantial role in the political or economic or social life of Cyprus, nor is he a personality commanding the necessary prestige and/or respect among the electoral body or part thereof. The Corporation had also in mind the fact that Mr. Thrasos Georghiades as an independent candidate at the last Municipal elections in the area of Limassol failed to be elected securing only 474 votes (1%). It is the case of the applicant that «on the basis of the Constitution and the relevant Laws every candidate for the Presidency is entitled to expound his programme to the Cyprus people through the T.V. and the Radio, the Corporation being bound to afford equal time to all the candidates». In support of his application the applicant set out and produced also before me a set of documents which refer to his specialization as a Physicopractor, letters which he received in reply to his own letters to various personalities and a great number of signatures from persons, who as the document they signed is entitled, support him «as a real independent candidate for the Presidency», a journalist identity card as well as articles by the applicant which had been published from time to time in various newspapers. The whole case turns on the true construction and application of the Cyprus Broadcasting Corporation (Amendment) law of 1987 (Law No. 212 of 1987) which will be referred to hereinafter as the Law. To Radio and Television coverage is entitled, according to the Law, a person who is or deemed to be a candidate for the Presidency. The term «a candidate for the office of President», is defined in section 2 of the Law as follows: «Candidate for the office of President means a person who announces publicly his intention to submit his candidature for election as President during the elections following such announcement, provided that he has the qualification prescribed by the Constitution for election to the office of President and satisfies one or more of the following prerequisites, namely: (
  6. a)he is the holder at the time of the said announcement of the office of President, (
  7. b)he is the leader of a political party, (
  8. c)he has the support of one or more parties, (
  9. d)he is a person who in the opinion of the reasonable average man has played or plays a substantial role in the political or economic or social life of Cyprus, or he is a personality commanding prestige and/or respect among a part of the electoral body. Provided that a candidate for the office of President ceases to be considered as a candidate for the office of President from the moment he happens to declare that he has ceased to be interested for election to the office of President.» In accordance with the aforesaid definition, «candidate for the office of President», is not only he who announces publicly his intention to submit his candidature but inter alia, he who satisfies one or more of the prerequisites which are set out in paragraphs (a), (b), (c), and (d), hereinabove set out. It is worth at this stage to mention that the provisions of the Law as officially published in the official Gazette of the Republic of the 28th October 1987, were found to be constitutional by the Full Bench of the Supreme Court in Reference 3/87, which was filed by the President of the Republic by virtue of Article 140 of the Constitution for opinion as to whether this Law was repugnant to or inconsistent with the provisions of Articles 19, 28, 40 and 179 of the Constitution. The opinion of the Full Bench was given on the 20th October 1987 whereby it was decided that (
  10. a)the provisions of the law are not repugnant to or inconsistent with Articles 19, 28 and 40 of the Constitution (Article 179 has no direct relevance with the subject under examination), and with the exception of course of subsection (
  11. c)(
  12. i)(
  13. cc)of section 5 of the Law as a result of which it was not published as part of the Law in force. As regards the application of the Law certainly the respondent Corporation is the competent organ to decide whether a person who announces publicly his intention to submit his candidature for election to the post of President satisfies one or more of the prerequisites which the legislator inserted in the relevant definition of section 2, such a decision being subject of course to the revisional jurisdiction of the Supreme Court in accordance with Article 146 of the Constitution. It is the stand of the respondent Corporation and there does not seem to exist. any dispute about it, that the applicant does not satisfy prerequisites (a), (
  14. b)and (
  15. c)of the definition of «candidate for the office of President» in section 2 of the Law because the applicant neither held at the time of the announcement of his intention to submit his candidature for the office of the President of the Republic the office of the President nor was he or is he a leader of a political party and neither he had or has the support of one or more parties as the term «political party» is defined in section 2 of the Law. It should therefore be examined whether the applicant satisfies the prerequisites of paragraph (
  16. d)of the definition of candidate for the office of Presidents. The respondent Corporation on this point decided that the case of the candidature of the applicant did not fall within its provision because in the view of the Corporation and on the basis of the criteria and the approach of the reasonable average man, the applicant neither has played or plays substantial role in the political or economic or social life of Cyprus nor is he a personality commanding the necessary prestige and/or respect among the electoral body or part thereof. As stressed in the address of learned counsel of the Corporation, the Corporation in taking the sub judice decision had in mind also the fact that the applicant as an independent candidate in the last Municipal elections in the town of Limassol failed to be elected securing only 474 votes, which amounts to 1%. I am of the view that whether a person may be considered as a candidate for the office of President within the meaning of the Law is a question that falls exclusively within the discretionary power of the Corporation. I have come to this conclusion even though the Law is silent on the question of the discretionary power and this because the constant Case Law of the Council of State accepts that when there is not created by the Law a clear and imperative for the administration obligation for a certain action by it, it is presumed that the discretionary power belongs to it (see Decision of the Council of State 07/29). Consequently since the sub judice decision was taken in the exercise of discretionary powers it must be judicially controlled on the basis of the principles governing judicial control of the exercise of administrative discretion by the administration. These principles are summed up in the General Administrative Law, 2nd Edition by P.D. Dahtoglou p. 129 et seq. Special reference may be made to p. 129 where the following are set out: «The judicial control of the exercise of discretionary power by the administration refers to the examination of the following matters, (
  17. a)Whether the law in fact gave judical discretion to the administration and indeed to the extent exercised, (
  18. b)Whether the administration indeed exercised the discretion granted to it, (
  19. c)Whether the administration made wrong use or exceeded the extreme boundaries of its administrative discretion. .because it did not observe the boundaries placed by this concrete law or which stem from the Constitution and the general principles of the Law, (
  20. d)Whether the administration in the exercise of its administrative discretion acted in abuse of power.» In addition it is worth saying that the function of the Judge is not to substitute but merely to control the decision of the administration. It must be noted that the aforesaid principles are derived from the decisions of the Council of State of Greece and constitute general principles of Administrative Law and they have been followed in a series of decisions of this Court. (Tsangaris v. The Republic
(1975)3 C.L.R. 518; Fashions House v. The Republic
(1973)3 C.L.R. 231, and Georgakis v. The Republic
(1977)3C.L.R. 1.) On the basis of all the material placed before me and which the applicant had submitted to the respondent Corporation in support of his application, I have come to the conclusion that the challenged decision of the Corporation is in all respects lawful and in accordance with the principles of administrative Law set out hereinabove and the relevant provisions of the Law and the Constitution. All the factors establish that the applicant does not satisfy any of the prerequisites provided by the Law and consequently the respondent Corporation rightly rejected his application for Radio and Television coverage in accordance with the provisions of the Law. It is worth stressing that it exercised its discretionary power with seriousness and respect to the Institution, established by the Law and in a manner consonant with a correct understanding of its mission. On the other hand the four candidates for the office of President who are covered by the respondent Corporation on the basis of the provisions of the Law satisfy one or more of these prerequisites. As the applicant makes in his address special reference to the candidate for the office of President Mr. Georghios Vassiliou, it is sufficient to mention here that it is the case of the respondent Corporation that Mr. Georghios Vassiliou as a candidate is supported by one of the parties on the basis of prerequisite (c) of the definition of the Law, that is on the basis that he has the support of AKEL which is a political party in accordance with the definition of section 2 of the Law, namely «represented in the House of Representatives or organization or association or person or a group persons which in the opinion of the average reasonable man having knowledge of the internal political reality of Cyprus and looking to the organization, structure, Institutions, aims and its response, is considered as a political party» NO allegation for discrimination can stand. For the aforesaid reasons this recourse is dismissed with no order as to costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο

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