TEKNE ν. THE REPUBLIC
(1988)3 CLR 451 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1988)3 CLR 451 1988 March 12 [PIKIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION TEKNE V.R.C. SP. A. AND TOURCONSULT WITH A. THEODOSSIADES AND K. PAPADOPOULOS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE COUNCIL OF MINISTERS,
- THE TENDER BOARD THROUGH ITS CHAIRMAN,
- THE CYPRUS TOURISM ORGANIZATION, Respondents. (Case No. 330/87). Omission in the sense of Article 146.1 of the Constitution-Omission deriving from breach of the duty under Article 146.5 of the Constitution-It is not justiciable by a recourse under Article 146.
- Omission in the sense of Article 146.1 of the Constitution-Omission to complete administrative process-In the absence of a duty to do so, the Administration has unfettered discretion to change its course and, therefore, the omission to complete the process cannot be challenged by a recourse under Article 146.
- The Government invited tenders for a feasibility study of the tourist development of Paphos. The tender was awarded to a firm known as Tourist Development Consultant (T.D.C.). The applicants challenged the award by a recourse, under Article 146.
- Before the issuance of judgment in the said recourse, the Government revoked the award, on the ground that the tender of T.D.C. did not comply with the specifications of the tender. The Government decided, also, to review its decision regarding the development of Paphos. The Court annulled the decision to award the tender to T.D.C. By means of this recourse the applicants challenge: (a) Respondent's alleged omission to eradicate completely and as provided by Article 146.5 of the Constitution the effects of the annulled decision, and (b) the respondents' omission to complete the procedure by awarding the tender to one of the three remaining tenderers. Held dismissing the recourse:
(1)In the light of the decision in Republic v. Nissiotou
(1985)3 C.L.R. 1335 an omission deriving from breach of Article 146.5 is not justiciable under Article 146.1
(2)The second omission concerning the inaction following the revocation is again not justiciable because the Administration was not bound to proceed and implement the procedure as far as the particular tenders were concerned. Only where the law casts a positive duty to act is an omission reviewable in the context of Article 146 of the Constitution. Before the taking of a final decision the Administration has an unfettered discretion to change its course. Before that stage is reached, the administrative action is regarded as an internum of the Administration. Recourse dismissed. No order as to costs. Cases referred to: Nissiotou v. The Republic
(1983)3 C.L.R. 1483; Chenas v. The Republic
(1988)3 C.L.R. 241; Republic v. Nissiotou
(1985)3 C.L.R. 1335; Zachariades v. The Republic
(1984)3 C.L.R.
- Recourse. Recourse against the omission of the respondents to conform and give effect to the decision of the Supreme Court in Recourse No. 331/86 given the 13th March,
- A.S. Angelides, for the applicants. N. Charalambous, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. PIKIS. J. read the following judgment. The application for judicial review is directed against two separate but correlated omissions of the Administration, affecting the tender of the applicants for the preparation of the feasibility study for the tourist development of Paphos. They are- (A) Omission to conform and give effect to the decision of the Supreme Court given on 13/3/87 in Recourse 331/86, and (B) omission or failure to reactivate and draw to conclusion the procedure for the award of the tenders following the decision of the Court in the above Case. In order to understand the grievances of the applicants and examine them in the pertinent legal framework, detailed reference must be made to the facts of the case. It all started with a government decision to invite tenders for a feasibility study of the tourist development of Paphos. Prequalifications were laid down concerning the eligibility of tenderers. An ad hoc Ministerial committee selected four tenderers as suitably qualified to submit tenders, including the applicants and Tourist Development Consultants (T.D.C.); and the matter was referred to a committee for the evaluation of the tenders. The committee raised certain questions affecting the compatibility of the tender of T.D.C. with the specifications of the invitation to tender. Their queries concerned conformity to aspects of the specifications of the invitation (report dated 3/9/85). Similar doubts were entertained by the Central Tender Board that met on 16/9/85 to consider the matter; sequentially, legal advice was sought. Subject to this a recommendation was made for the award of the tender to T.D.C. On 17/1/86 the Ministerial committee approved the recommendation of the Central Tender Board and awarded the tender to T.D.C. Notwithstanding the above decision of the Ministerial committee, doubts persisted as to the propriety of the award of the tender to T.D.C. : In particular, whether their tender conformed to the conditions set forth in the invitation to tender. The matter was referred anew to the. Attorney - General, Finally, the Deputy Attorney - General opined that the tender of T.D.C. did not conform to the specifications of the tender and on that account recommended the revocation of the award (Appendix IT to the opposition). A while later, on 11/7/86, it was decided to revoke the tender and seek "new financial tenders". In the meantime, the applicants had challenged before the Court the award of the tender to T.D.C. Before referring to that action and its outcome, we may appropriately complete the picture by referring to government action on the matter. It was decided to refrain from pressing forth with the tender procedure. On 15/1/87 the Ministerial committee referred the matter to the Ministry of Commerce and Industry, with a view to a reassessment of government action respecting the study of the tourist development of Paphos. Meantime, the applicants had challenged, as earlier mentioned, the award of the tender to T.D.C.: and recourse was filed on 19/5/86 for the review of the decision. On 13/3/87 the decision was annulled for similar reasons to those for which the tender to T.D.C. had been revoked. It is the case of the applicants that respondents failed to obliterate the consequences of the annulled tender award and in so acting failed in the discharge of the duties cast on the Administration by para. 5 of article 146 of the Constitution, binding the Administration to active compliance with judgments or orders of a court of revisional jurisdiction. Their failure, on the other hand, to complete the tender process by awarding the tender to one of the remaining three approved tenderers, constituted another actionable omission inextricably connected with the first omission; and we were invited to declare both as improper omissions that ought not to have happened or be countenanced. For the respondents it was submitted that the decision to award the tender to T.D.C. had been removed in fact at a time prior to its annulment by a Court. By its expunction the Administration had freed itself quo ante, that is, the state of affairs that existed prior to the defective decision. Hence no charge can be levied against the Administration for inaction in the face of the decision of the Court, voiding the award of the tender to T.D.C. With regard to the alleged failure of the Administration to take further steps for the award of the tender to one of the remaining three qualified parties, the complaint of the applicants is not, counsel argued, justiciable in the absence of a positive duty cast by Statute to act. The Administration could act as they deemed appropriate, including re-examination of the whole issue of the tourist development of Paphos reflected in the decision of 15/1/86; a decision that remained, as counsel pointed out, unchallenged as such. The first leg of the complaint of the applicants is founded on the premise that para. 5 of article 146 of the Constitution confers a remedy upon a disgruntled party, reviewable under the provisions of article 146.1 of the Constitution. A similar view of the effect of para. 5 of article 146 was taken by the Court in Nissiotou v. Republic
(1983)3 C.L.R. 1483; see, also recent decision of the Court, Chenas v. Republic
(1988)3 C.L.R. 241; On appeal, however, namely, in Republic v. Nissiotou
(1985)3 C.L.R. 1335, the Court declared: "In our opinion only para. 4 of article 146 of the Constitution provides about the remedies to be granted in a recourse under such article; and para. 5 of article 146 does not provide for a separate or an additional remedy, but can only be invoked and applied in relation to an application for punishment for contempt of Court under article 150 of the Constitution (See p. 1350 lines 13-19)." The matter was made clearer still in a subsequent passage of the judgment of the Court, where it was proclaimed that, "Under article 150 of the Constitution the Supreme Constitutional Court has jurisdiction to punish for contempt of itself; and, of course, one form of contempt is non compliance with its judgments (seep. 1351, lines 15-18). Inevitable, we must conclude that the alleged omission deriving from breach of the provisions of para. 5 article 146 is non justiciable and cannot be made the subject of review under para. 1 of article 146 of the Constitution. Moreover, the defective decision was, it seems, eradicated, as well as its after effects, by the revocation of the defective tender. The other omission concerning the action of the Administration subsequently to the revocation of the defective, act is, again, non justiciable. The Administration was not bound to proceed and implement the decision to make a choice among the tenderers for the feasibility study of the tourist potential of Paphos. Only where the law casts a positive duty to act is an omission reviewable in the context of article 146 of the Constitution. Before the completion of the administrative process by the communication of a decision, the Administration has an unfettered discretion to change its course. (See Stassinopoulos - Law of Administrative Acts, 1951 ed. p. 366). Before that stage is reached, administrative action is regarded as an internum of the Administration. (See Kyriacopoulos Greek Administrative Law, 4th Ed., Vol B, pp. 396 - 397. The caselaw on the subject was reviewed by the Full Bench of the Supreme Court in Zachariades v. Republic
(1984)3 C.L.R. 1193, a case in which the principles mentioned above were referred to with approval. In the light of the above, the recourse is dismissed. Let there be no order as to costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο