clr/1961/1961_1_382.pdf

(6)of the Constitution —Ambiguity in the Constitution—Meaning of the term— Reference to the Supreme. Constitutional Court—Article 149

(6)of the Constitution—The Supreme Constitutional Court Rules, 1961, rule 14

(2)(a)

(6). Constitution—Representative (member of the House of Representatives)—Sentenced to a term ofimprisonment—Leave by the High Court for the enforcement of the sentence—Article 83, paragraph 2, of the Constitution—The High Court- will not assume jurisdiction to entertain an application for such leave unless it be established affirmatively that the person so sentenced uxis and still is a member of the House of Representatives—Such onus is ahvays on the applicant—Therefore, the Attorney -Ge/ieral having failed in this case to satisfy the Court that the conviction of the appelland had not the effect of disqualifying him from being a member of ike House of Representatives by operation of Articles 64(c) and 71 of the Constitution, the High Court has no jurisdiction to entertain the application made, under Article 83, paragraph 2, of the Constitution. Criminal Procedure—Costs—Costs on appeal—May be awarded by the High Court against the Attorney-General—Notwithstanding the proviso to section 151

(1)of the Criminal Procedure Law, Cap. 155—In view of section 25

(3)of the Courts of Justice Law, 1960 {Law of the 'Republic No. 14 of I960)—Which overrides the proviso to section 151

(1)of Cap. 155. The appellant Rodosthenous, a member of the House of Representatives, was convicted on the 15th of May, 1961, by the Assize Court, sitting at Nicosia, of stealing money cont r a r y to section 255of the Criminal Code, Cap. 154, of attempt382 ing to extort money by threats, contrary to section 288(

1. e)of the Criminal Code and of demanding money with menaces with intent to steal, contrary to section 290 of the Ciiminal Code, and was sentenced to a term of impriaonment. On the I6th of May, 1961, the Attorney-General of the Republic applied to the High Court under Article 83, paragraph 2, of the Constitution for leave for the enforcement of the said sentence. The application was heard by a Judge of the High Court, sitting alone, (JOSEPHIDES, J.) who granted the leave on the 26th May, 1961, after he had overruled a number of objections taken by counsel for Rodosthenous (vide: The Republic v. Lefkios Rodosthenous, reported in this Volume at p. 152, ante.) Rodosthenous appealed from t h a t order. At the outset of the proceedings before the full bench of the High Court, the Court invited argument as to whether JOSEPHIDES, J., being the Judge who granted the order appealed against, was thereby "incapacitated", within the meaning of Article 153, paragraph 9, of the Constitution, from sitting as a member of the High Court at the hearing of the appeal. Paragraph 9 of Article 153 of the Constitution provides: " I n the case of temporary absence or incapacity of the President of the High Court or one of the Greek judges or of the Turkish judge thereof the President of the Supreme Constitutional Court or the Greek judge or the Turkish judge thereof respectively shall act in his place during such temporary absence or incapacity. Provided t h a t if it is impracticable or inconvenient for the Greek or the Turkish judge of the Supreme Constitutional Court to act, the senior in office Greek or Turkish judge in the judicial service of the Republic shall so act respectively". The question also arose as to who was "the senior in office Greek judge in the judicial service of the Republic" to replace the "so incapacitated" judge (the Greek Judge of the Supreme Constitutional Court being temporarily absent from the Republic) within the meaning of the expression "the senior in office Greek or Turkish judge in the judicial service of the Republic", occurring in the proviso to paragraph 9 of Article 153 of the Constitution. The High Court held t h a t ambiguities existed as to the meaning of the word "incapacity" and, also, as to the meaning of the expression "senior in office etc.", which ought to be 383 1961 June 13,16,27, Dec. 15 LEFKIOS CHR. RODOSTHENOUS v. THE REPUBLIC 1961 June 13,16,27, Dec. 15 LEFKIOS CHR. RODOSTHENOUS V. THE REPUBLIC decided by the Supreme Constitutional Court under the provisions of Article 149(
2. b)of the Constitution. There being, however, a doubt as to whether, in view of the ambiguities referred to hereabove, the High Court was then properly constituted, the Court refrained from referring itself the matter t o t h e Supreme Constitutional Court under the Supreme Constitutional Court Rules, 1961,rule 14

(2)(a) and, eventually, the reference was made by counsel for the appellant, leave having been first obtained from the S.C.C. under rule 14

(2)(b). The Supreme Constitutional Court having determined the m a t t e r on the 27th June, 1961, (vide: Lefkios Rodosthenous and the Republic 1 R.S.C.C. 127), the case was resumed by the High Court on the same day with a different composition in accordance with the decision of the Supreme C.C. just referred to. At t h a t stage the point arose whether or not the High Court had jurisdiction to entertain the proceedings under Article 83, paragraph 2, of the Constitution, in view of Articles 64(

1. c)and 71 of the Constitution and in view of the aforementioned convictions of the appellant. Paragraph 2 of Article 83 of the Constitution provides: "A Representative cannot, without the leave of the High Court, be or imprisoned so long as he continues to be a Representative..." Article 64 of the Constitution provides: "A person shall be qualified t o be a candidate for election as a Representative if at the time of the election t h a t person - (
2. a)(
3. b); (
4. c)has not been convicted of an offence involving dishonesty or moral turpitude Article 71 of the Constitution provides: " T h e seat of a Representative shall become vacant - (
5. a)(
6. b)(
7. c)upon the occurrence of any of the circumstances referred to in paragraph (c)or (
8. d)of Article 64or " The High Court having held t h a t they had no jurisdiction, there remained to be decided the question whether in view of the proviso to section 151 of the Criminal Procedure Law, Cap.155, they have powers to award costsagainstthe AttorneyGeneral. Held: With regard to the aforesaid ambiguities in Article 153, 384 paragraph 9, of the Constitution no (JOSEPHIDES, J . expressing opinion):

(1)As regards Article 153, paragraph 9, of the Consti­ tution (supra) there is an ambiguity concerning two of the As to the expression "incapacity" there are two views clearly and reasonably open. The one is t h a t the judge of the High Court (JOSEPHIDES, J.) who has adjudicated in the m a t t e r as a J u d g e of t h e High Court sitting alone, in making the order appealed from is thereby incapacitated within the meaning of Artcle 153, paragraph 9, of the Constitution from sitting now as a Judge of the High Court exercising appellate jurisdiction in respect of the same order. The other view p u t forward is t h a t we should adopt the procedure which obtained in England before 1873 when judges sat n o t infrequently on appeal from orders t h a t they had themselves made. (b) The other real ambiguity is as to the meaning of t h e expression "senior in office Greek judge in t h e judicial service of the Republic" occurring in the proviso to paragraph 9 of Article 153.

(2)(ZEKIA, J . partly (

1. a)Therefore the m a t t e r in respect of these ambiguities dissenting): should be referred for determination to t h e Supreme Consti­ tutional Court under Article 149 (
2. b)of the Constitution. (
3. b)However, as there is a doubt, in view of t h e aforesaid ambiguity as to the word "incapacity", as to whether t h e High Court is now properly constituted it is undesirable t h a t the Court itself should refer the matter of the aforesaid am­ biguities to the Supreme Constitutional Court under rule 14

(2)(a) of t h e Supreme Constitutional Court Rules, 1961. (Editor's Note: Eventually the m a t t e r was referred by counsel for the appellant after leave had been first obtained by the Supreme Constitutional Court under rule 14

(2)(b). The Supreme Constitutional Court gave its decision in t h a t reference on the 27th J u n e , 1961; vide: Lefkios Rodosthe­ nous and the Republic 1 R.S.C.C. 127). Held: After the decision of the Supreme Constitutional Court just referred to and with a different composition (ZEKIA, J . dissenting): 385 LEFKIOS CHR. RODOSTHENOUS V. THE expressions occurring therein: (a) 1961 June 13,16,27. Dec. 15 REPUBI-ΙΓ 1961 June 13, 16, 27, Dec. 15 LEFKIOS CHR. RODOSTHENOUS v. THE REPUBLIC

(1)As from the moment the conviction of the Assize Court is p u t in evidence on the record of the High Court, t h a t at once raises a serious issue and a doubt as to whether or not the appellant can now be properly described as a Representative. The onus thereupon lies upon any party seeking to invoke the jurisdiction of the High Court under Article 83 of the Constitution (supra) t o satisfy affirmatively this Court t h a t the person sentenced was, and is in fact, a member of the House of Representatives at all material times. Unless t h a t m a t t e r be admitted or proved the High Court should not assume jurisdiction because the person before this Court has n o t been proved to be a Representative (which is a sine qua non before Article 83 can be applicable) and he very well may not have been one at any time since the verdict and sentence were pronounced.

(2)The proceedings being ab initio misconceived, to be struck out for want of jurisdiction. Held: On the question of costs (ZEKIA, J . dissenting):

(1)True, the proviso to section 151

(1)of the Criminal Procedure Law, Cap.155,* precludes the award of costs against a Law Officer. B u t section 25

(3)of the Courts of Justice Law, I960,** overrides t h a t proviso and gives the power to the High Court in appeals to exercise their judicial discretion to award costs in a proper case.

(2)T h e appellant has been forced into these proceedings b y the Attorney-General. I t is therefore right t h a t costs should be awarded to the appellant. Proceedings being ab initio misconceived, to be struck out for want of jurisdiction. Costs awarded to the appellant. * Section 151

(1)ofthe Criminal ProcedureLaw,Cap. I55:"The Supreme Court shall have power in ail proceedings under this Part to award such costs to be paid by or to the parties thereto as it may think fit. Provided that no such an order shall be made against a Law Officer". ** Section 25

(3)of the Courts of Justice Law 1960: "Notwithstanding anythingcontained intheCriminal Procedure Laworinanyother Laworinany Rules of Court and in addition to any powers conferred thereby the High Court on hearing and determining any appeal either in a civil or a criminal case may give any judgment or make any order which the circumstances of the case may justify". 386 Appeal. The appellant, Lefkios Rodosthenous, appealed against the orders ofJosephides,J.dated 26May, 1961whereby

(1)he ruled that one Judge of the High Court has jurisdiction to deal with an application under Article 83,paragraph 2, of the Constitution and

(2)he granted the application of the Attorney-General of the Republic for leave to enforce thesentence of imprisonment imposed on the appellant, a member of the House of Representatives, by the Assize Court of Nicosia, dated the 15th May,

1. St. Pavlides for the appellant. O. Feridun, Dep. Attorney-General with K.C. Talarides for the respondent. On the 13th June, 1961, the following judgments were delivered: O' BRIAIN, P.: We have given consideration to these difficult points that have been discussed this morning and I am not sure that we are entirely in agreement but speaking for myself my view on the matter is reasonably clear and is the following: As regards Article 153.9 of the Constitution, there is, in my view, an ambiguity concerning two of the expressions used in that Article. "In the case of temporary absence or incapacity of the President of the High Court or one of the Greek judges or of the Turkish judge thereof the President of the Supreme Constitutional Court or the Greek judge or the Turkish judge thereof respectively shall act in his place during such temporary absence or incapacity " There has been argument here to-day, and I am faced with the task of coming to the conclusion upon the point as to whether or not the Judge who has adjudicated as a Judge of the High Court silting alone in making the order which is now under appeal is thereby incapacitated from sitting as a Judge of the High Court exercising appellate jurisdiction in respect of the same order. The answer depends upon what is the meaning of the word "incapacity" as used in the Constitution in that Article. One side has argued that he should not sit and that he is as much disenabled thereby as if suffering from physical or mental incapacity. 387 1961 June 13,16,27, Dec. 15 LEFKIOS C H R . RODOSTHENOUS v. THE REPUBLIC 1961 June 13, 16,27, Dec. 15 LEFKIOS C H R . RODOSTHENOUS v. T H E REPUBLIC O' Briain, P. The other view put forward is that we should adopt the procedure which obtained in England before Ϊ873 whenjudges sat not infrequently on appeal from orders that they had themselves made. Which of these interpretations of the term "incapacity" is to prevail is a difficult matter to decide but there are two views clearly and reasonably open. Thai is my understand­ ing of the English word "ambiguity". The other and perhaps more difficult matter is, in the circumstances of the present case, assuming that it is held that Mr. Justice Josephides is incapacitated from sitting in this Court of Appeal, and, having regard to the fact that the Greek Judge of the Supreme Constitutional Court is at the moment temporarily absent from Cyprus, who is the "senior in office Greek judge in thejudicial service of the Republic". The Constitution expressly designates him to sit as a member of the High Court. As to what the answer is I leave open. It seems reasonably clear that the person must be one of the three Greek Presidents of the District Courts. But which is the senior? No guidance whatever has been given in the Constitution. The Courts of Justice Law has been passed since the Constitution came into force and not a single line has been devoted as to the seniority of the Presidents of the District Courts or Judges interse. I have, accordingly', come to the conclusion on this point that there is a very real am­ biguity. It is moreover an ambiguity not in the law but in the Constitution itself. Furthermore, if by any chance the person who is the Senior Greek Judge in the Judicial Service of the Republic should happen to be the Judge who presided at the trial of the appellant and if he be thereby incapacitated a further question would arise as to whether the Constitution provides for any further substitution of judges. There being an ambiguity it seems to me that this Court, which at all times is required and presumed to act under the Constitution, should refer "the matter to the Constitutional Court. However, I want to say this, speaking for myself, that we should be very punctilious when dealing with matters affecting the Constitution. If the Constitution indicates that some other tribunal is to solve ambiguities in the Constitu­ tion, this Court must leave those matters to that tribunal. Τ am faced with two provisions of the Constitution deal388 ing with this matter of constitutional ambiguity. The first is the second paragraph of Article
2. "The Supreme Constitutional Court shall have exclusive jurisdiction (b) to make, in case of ambiguity, any interpretation of this Constitution due regard being had to the letter and spirit of the Zurich Agreement dated the 11th February, 1959, and ofthe London Agreement dated the 19th February, 1959". Curiously enough, it may be entirely tautologous, Article
3. 3 says much the same thing. "Jn case of ambiguity any interpretation of the Constitution shall be made by the Supreme Constitutional Court due regard being had to the letter and spirit of the Zurich Agreement dated the 11th February, 1959,and of the London Agreement dated the 19th February, 1959". Giving the matter the best consideration 1can it seems to me that we have ambiguity here in the two provisions of Article
4. 9 of the Constitution to which I have referred. There is clear indication, in the two Articles that I have referred to, that the way to resolve that ambiguity is to leave to the Supreme Constitutional Court the interpreting of the ambiguous words. In my view this Court should not and cannot proceed with the question that has arisen to-day until the Constitutional Court hasclarified thisambiguityand givenjudgment. I am of the opinion that the Supreme Constitutional Court must, in the first instance, clarify each of these ambiguities and I do not think this Court or anyone can say what coram can deal with this appeal until the judgment is given by the Supreme Constitutional Court. ZEKIA, J.: I agree that the words "incapacity" and "seniority" are not free of ambiguity. On the other hand I consider that it isour duty to compose the Court in the light of the Law as we understand it before we take cognisance of the matter, that is, whether we are duly constituted or not as a Court of Appeal. The appeal should have been, in the first instance, listed for hearing and if the point is then raised it may be referred to the Constitutional Court. But I do not agree that before the appeal is listed for hearing that this Court can, without sitting as a Court of Appeal in a particular case, refer a matter or in some way stay proceedings contemplated. It is possible that everybody may be quite happy with the constitution of the Court. 389 1961 June 13, 16.27, Dec 15 LEFKIOS"CHR RODOSTHENOUS THfc REPUBLIC O' Briain, P. 1961 June 13, 16, 27, Dec. 15 LEFKIOS CHR. RODOSTHENOUS v. THE REPUBLIC I do not think it is proper for the sake of interpretation that we must immediately stay proceedings until the Consti­ tutional Court deals with the matter. I quite agree that both these words are not unambiguous words and when the case comes before us and if any party to the proceedings wishes to raise the point the matter then goes to the Supreme Consti­ tutional Court. VASSILIADES, J.: I agree with the result reached by the ruling of the President of the Court. 1 agree that it is in­ cumbent upon this Court to take cognisance of the Consti­ tution as much as it is incumbent upon any Court to do so. The less I add to the difficulties arising and referred to in the ruling of the President the less I do to increase these difficulties. This Court may have to tackle the matter again. In the meantime, as I have already stated, I concur with the result indicated by the President. JOSEPHIDES, J.: As I am the Judge directly concerned in having dealt with the matter in original jurisdiction, ί do not consider it desirable to express any opinion.. O' BRIAIN, P.: It seems that, under the circumstances, the ruling of this Court is that the ambiguity regarding the question of the proper coram to deal with Mr. Rodosthenous's appeal must be clarified by the Supreme Constitutional Court ; beyond that nothing is clear. Counsel think that as a matter of strict propriety this matter should be Usted formally for hearing for next Friday and I would agree to do this. In view of the fact that a byelection may have to be held not later than the 29th June a serious situation may occur. Owing to the extreme urgency of this matter it will have to be clarified as early as possible and at any rate before Thursday or Friday next. What is the next step Mr. Feridun. Mr. FERIDUN : May I have some time to consult the Attorney-General on the point. O* BRIAIN,P.: The substantive appeal is listed for next Friday. M R . PAVLIDES : Although there areno rules, thematter of reference has been indicated in the case No. 8/61 (page 5 of the judgment of the Constitutional Court) "If a Court.. 390 COURT : , - , We know that but weconsider that it does not , - , '96ie June 13, 16, say how it has to be referred. Dec. 15 CHR. LEFKIOS Adjourned to Friday, the 16th June, 1961,at
5. 30 a.m. RODOSTHENOUS v. THE REPUBLIC Onthe 16th June, the following judment wasread by: O' BRIAIN, P.: I hope we have gone a long way to solving this difficulty. We have considered the matter and oui views are as follows: We have been referred to rule 14

(2)of the Supreme Constitutional Court Rules of 1961, which provides as follows: "Proceedings under paragraph 2of Article 139 or under Article 149(which isoneof the twoambiguityArticles if I may use thatphrase) shall be commenced as follows: (

1. a)if the reference is made by the Court concerned such reference shall be in writing; (
2. b)in every other case, with the prior leave of the Court or any two Judges acting in agreement applied and obtained for the purpose and in such manner as it may be directed upon granting such leave". It seems to us that that rule, in general terms, enables a reference on the issue of ambiguity to be made either by the court concerned or by the parties with leave. In this case we, sitting here to-day, if we be the Court at all, are not prepared to makethe reference for the following reason. The very question that is involved here to-day is 'are we the Court designated by another Article of the Constitution or are we not'? It seems to us that we would be begging the question because ifwemake the formal order referring it to the Constitutional Court because that carries the implication that we are the Court. But the whole question is are we the Court or not? So we are not prepared to make the reference. Sub-paragraph (
3. b)leaves the Attorney-General or Mr. Pavlides, acting for his client, free to apply for leave. The Attorney-General has indicated that he is not prepared to exercise that legal right. It is not for us to criticise any party who stands on his legal right. It still leaves, in our view, it open to the appellant in this case to apply for leave and that can be done at very short noticebecausetheConstitution provides in the temporary absence of any one of the Judges a 391 !? 6 L -.-, June 13, 16,27, Dec. 15 LEFKIOS C H R . RODOSTHENOUS v. T H E REPUBLIC substitute can, at very short notice, to entertain the question _, ' J M of leave to apply. The only thing that did occur to us was that the Rules do not prescribe forms and that some technical objection might be taken. For that reason we put the question to the Deputy Attorney-General and he has assured us that no difficulty whatsoever will be put in Mr. Pavlides' way by the Attorney-General on that score. The only other matter that could possibly be relevant is the question of costs. We are of the opinion that it would hardly be fair and equitable if Mr. Rodosthenous had to pay out of hisown pocket the costs of litigating this ambiguity which involves the Executive, Legislative and Judicial Authorities and is in no way of his making. We suggest, therefore, to the Attorney-General that, whatever the result in the Constitutional Court may be, Mr. Rodosthenous costs, taxed if necessary, be paid out of public funds. Mr. FERIDUN: I shall certainly convey Your Honours' suggestion to the Attorney-General and I have no doubt that His Honour the Attorney-General will bringno objection to the question of costs. We do not wishto bringanyinconvenience to the other side at all. O' BRIAIN, P.: In other countries when legal points such as these arise the litigants are not burdened with costs. Proceedings before this Bench are, therefore, stayed until we get these matters clarified by the Supreme Constitutional Court. JOSEPHIDES, J.: I express no opinion. [0' BRIAIN, P., ZEKIA. VASSILIADES, JJ. AND MICHAELIDES, ACTING J.] On the 27th June, 1961,and after the Supreme Constitutional Court delivered its judgment regarding the ambiguities referred tohereabove (vide: LefkiosRodosthenousandtheRepublic 1 R.S. C.C. 127), the High Court under its newcomposition dehvered the following ruling (ZEKIA, J. dissenting) : O' BRIAIN, P.: The proceedings that were instituted in the High Court and which came before JOSEPHIDES J., involve the postulate that the person sentenced to imprisonment still is a member of the House of Representatives and this, 392 as Mr. Pavlides pointed out, is expressly asserted in the Attorney-General's application. 1961 June 13,16 27, Dec. 15 In my view, as from the moment the conviction of the Assize Court is put in evidence on the records of the High Court that at once raises a serious issue and a doubt as to whether or not Mr. Rodosthenous can now be properly described as a Representative. My view is that the onus thereupon lies upon any party seeking to invoke the jurisdictionof the High Court under Article 83to satisfy affirmatively this Court that the person sentenced was, and is in fact, a member of the House of Representatives, at all material times. LEFKIOS CHR. RODOSTHENOUS I am indicating my view that unless that matter be admitted or proved we should not assume jurisdiction. I take the view that the High Court had no jurisdiction to entertain this application because the person before this Court has not been proved to be a Representative (which is a sine quanon before Article 83 can be applicable) and he very well may not have been one at any time since the verdict and sentence were pronounced. Each paragraph of Article 83 deals with Representatives and relates solely to persons who hold that position. i ZEKIA, J.: I simply say that I dissent and I do not want to say any more at the moment. VASSILIADES,J.: As I have already made it clear in the courseof theargument, Iam inclined tothink that the question whether the High Court (or any Judge thereof) has jurisdiction to entertain the present proceeding, turns on the question whether the person concerned is, or is not, a member of the House of Representatives. I agree with the view expressed by the President of the Court that the party invoking the jurisdiction of the High Court under Article 83, must satisfy the Court that it has jurisdiction to deal with the matter, byshowingthat the person in question (Mr. Rodosthenous in this case) is a member of the House of Representatives. I cannot see how the Attorney-General, or any one else'for that matter, can say in the same breath that on the I6th May, when the present proceeding was taken, Lefkios Rodosthenous was a member of the House of Representatives (so as to bring the matter within the provisions of Article 83) and at the same time say that 393 v. THE REPUBLIC 1961 June 13, 16, 27, Dec. 15 LEFKIOS C H R . RODOSTHENOUS V. T H E REPUBLIC the conviction of Rodosthenous by the Assize Court on the 15th May had the effect of disqualifying him from being a member of the House. That is to say it had the same effect as if Rodosthenous had died ; or had accepted and assumed an office which disqualified him from being a member of the House of Representatives. If his conviction had the effect of disqualifying him, Article 83 is not applicable in his case. MICHAELIDES, Acting J.: I quite agree with theviewsof the President of the Court and Mr. Justice Vassiliades. O' BRIAIN P.: Accordingly, the position is that the Court requires to be satisfied that Mr. Rodosthenous was, at the time the proceedings were initiated and at the time they came before Josephides J., and at this moment, a member of the House of Representatives before it can proceed to adju­ dicate. Prima facie that onus is upon the Attorney-General, but having regard to the fact that this is an appeal brought by Mr. Pavlides's client, if Mr. Pavlides wishes to satisfy us of that fact this Court will allow him to do so. If we are left in doubt by the parties we shall not assume jurisdiction. O' BRIAIN, P. το TALARIDES: I want to know, do you wish to undertake the proof of that matter or not? TALARIDES : I am not prepared to undertake the proof that he is a member of the House of Representatives. I am prepared to put before your Honours the facts and let your Honours to decide whether he is a member or not. ZEKIA, J.: The assumption adopted by the majority, it is a rebuttable assumption only. O' BRIAIN, P.: We won't assume jurisdiction in the face of the conviction. ZEKIA, J.: Personally I do not accept. O' BRIAIN, P.: I will say this very shortly. We are pressed for time and we shall have to look into the matter of jurisdiction to award costs. If we are satisfied that we can do so, Mr. Pavlides, we shall give you costs of these proceed­ ings. But we have some doubts. PAVLIDES : In the first place, we are bound by the ruling 394 of the majority that the matter is open to your Honours at this stage, and you have made a certain ruling. The only way in which 1can claim that he is still a member of the House of Representatives is by referring your Honours to the application of the Attorney-General at page 2,and by supplementing you on the information on which I can file an affidavit, that he is still being paid a salary as a member of the House of Representatives. Those are the two facts which I can bring before your Honours to substantiate that he is still a member. On the more general aspect 1 do submit again that the matter is not one which is before you and it cannot be decided as to whether Article 64 operates or not. O' BRIAIN, P.: The majority cannot decide, but simply say that we are in doubt. We do not know, at the moment, whether he is or not a Representative. PAVLIDES : In the same way as my good friend cannot advance any more than what he has suggested. Simply place the facts before your Honours as at page 2of the application; and Ialso base myself on those facts. It ison record and I do humbly submit that in case your Honours decide that I have no locus standi ; therefore Ido humbly suggestthatyou might consider the question of costs. O' BRIAIN, P.: Subject to this, that we have to look into the question if we have power to give you costs, we shall do so. First of all, we have to consider whether Mr. Rodosthenous was or is a member of the House. Accordingly, if we are not satisfied, we will not assume jurisdiction and we will reserve further considerations. PAVLIDES : Your Honours, the initial proceedings were started by the Attorney-General. O' BRIAIN, P.: So far as we can do so, we shall restore the statusquo ante and leave you to your legal rights. ZEKIA, J.: I dissent from the majority's view because in my view the issue, i.e. whether Rodosthenous at the material time was a Representative or not, was not raised and wasnot properly before this Court. Secondly, I do not think that we arejustified in making any assumption that Rodosthenous was no longer a Representative. There is after his conviction 395 1961 June 13, 16,27, Dec. 15 LEFKIOS CHR. RODOSTHENOUS V. THE REPUBLIC 1961 June 13, 16, 27, Dec. 15 no justification in making such assumption and calling upon the parties to prove the contrary. LEFKIOS CHR. RODOSTHENOUS Ruling as to costs. V. THE REPUBLIC On the 15th December, 1961,the following judgments were delivered: O' BRIAIN P.: We have considered the matter and we propose to deal with it finally to-day. The matter before the Court iswhether or not this Court, in dealing with the appeal that was before it on the 27th June, 1961, hadjurisdiction to award the appellant his costs of and incidental to the proceedings in this Court. It is necessary to consider in the first place briefly what those proceedings were : The proceedings were instituted in the High Court by the Attorney-General on behalf of the Republic to obtain an order pursuant to Article 83,paragraph 2, of the Constitution enforcing the sentence of imprisonment that had been imposed on him by the Assize Court. Mr. Justice Josephides who, as a Justice of the High Court, sitting alone, dealt with the matter, made a certain ruling with which the appellant was dissatisfied and then the matter came before the full Court on appeal. The High Court holding that theproceedingsabinitiowere misconceived directed the proceedings to be struck out for want of jurisdiction. Appellant had been forced into these proceedings by the Attorney-General and hiscounsel claimed that he was entitled to his costs. We were satisfied to give appellant his costs, and the matter ofjurisdiction to award costs was left for consideration to-day. We have heard the matter fully argued by counsel and very ably and weare in a position to deal with the matter now. The view I take, isthat this isa proceeding within section 151 of the Criminal Procedure Law. It reads: (l)"The Supreme Court shall have power in all proceedings under this Part to award such costs to bepaid byortothe parties thereto as it ma*ythink fit: Provided that no such an order shall be made against a Law Officer". The first sentence, to my mind, is reasonably clear. It empowers the High Court to award costs in cases such as this. Were it not for the proviso that immediately follows "provided that no such an order shall be made against a Law 396 Officer" there would be no difficulty. The submission that is made is that in fact the Attorney-General is a Law Officer and therefore the proviso inhibits this Court from making such an order. 1961 June 13, 16,27, Dec. 15 I prefer to abstract from the contention of Mr. Pavlides that this is an action between the Republic and appellant, and not between the Attorney-General and appellant. I do not find it necessary to decide that point. Taking it that the Attorney - General is involved in these proceedings I am satisfied that this Court could not give costs against the At­ torney-General if there were no more than that proviso. But that would be to ignore the fact that in December last the new Legislature of the Republic chose, in the exercise of its powers, to enact section 25 of the Courts of Justice Law, 1960, and subsection

(3)of that section deals expressly with this Court exercising appellate jurisdiction. It reads: THE REPUBLIC "Notwithstanding anything contained in the Criminal Procedure Law (the Law which Ihavejust referred) orin anyother Law or in any Rules of Court andinaddition to any powers conferred thereby the High Courton hear­ ing and determining any appeal either in a civil or a cri­ minal case may give any judgment or make any order which the circumstances of the case may justify.." It is clear that one overriding restriction controls that power, that is the Constitution. At no time can this Court violate this Constitution in the exercise of its power. It is required furthermore to exercise that power asjustice requires in the circumstance of the case. I am not aware of any conflict with the Constitution in taking the course that Mr. Pavlides has asked us to take to-day. It is clear to the Court that the justice of the case makes it desirable to award appellant his costs, if there be power to do so. Γη my view section 25

(3)gives that power and the cir­ cumstances of the case require us to exercise our judicial discretion to award him the costs that we think justice re­ quires he should get. ZEKIA, J.: Section 151 of the Criminal Procedure Law expressly prohibits award of costs against a LawOfficer. The Interpretation Law gives,the definition of Law Officer which phrase includes the Attorney-General. 397 LEFKIOS CHR. RODOSTHENOUS v. O' Briain, P. 1%I June 13, 16,27, Dec. 15 LEFKIOS C H R . RODOSTHtNOUS r. THE REPUBLIC Zekia, J. In this particular case theAttorney-General appeared on behalf of the Republic and 1 do not think that wecan makea distinction between him and the Republic for the purpose of the section in question. Now Icome tosection 25

(3)oftheCourts ofJusticeLaw. On reading this sub-section Iam unable toagree with allrespect with the view just expressed by the President that that section gives tothis Court inanycase a powertooverrideany provision in Criminal Procedure Law or any other law or Rules of Court and gives anyjudgment or order asit deems fit. I am inclined totheview that thewords "Notwithstanding anything contained in the Criminal Procedure Laworin any Rules of Court" apply to thematters enumerated insubsection 3, namely, "on hearing and determining any appeal either in a civil or a criminal case shall not be bound byany determinations on questions of fact made by the trial court and shall have power to review the whole evidence, draw its own inferences, hear or receive further evidence and, where the circumstances of thecase so require, re-hear anywitnesses already heard bythe trial court, and maygive any judgment or make any order which thecircumstances of the casemay justify including an order of retrial " In the matters referred to in the sub-section, the High Court, notwithstanding anything to the contrary intheCriminal Procedure Law, Rules of Court or indeed any other Law, can make any order which circumstances justify. That istheinterpretation Iputonitanditisnotopen tothis Court to give anyjudgment or make anyorder contrary toanyLaw on other matters. It is not left to our good sense to remain or not within thebounds of law. Ifwe carry the meaningof this sub-section too far I am afraid we shall be placing this Court above the law which, in my opinion, it is absurd to think that thelegislature ever intended to doso. In the circumstances, I am inclined to limit thescopeof the words "and may give any judgment or make any order which thecircumstances of thecase mayjustify" as indicated above. I am of the opinion that we have not got power to give any costs although I would bewilling to doso. VASSILIADES, J.: I agree with the judgment of the learned President of the Court and with his reasons, subject 398 lo a reservation I have regarding the proviso to sub-section I of Section 151 of the Criminal Procedure Law (Cap.155). I take the view that this case does not come within that proviso. I very much doubt whether the respondent in the present proceeding can be identified with the Attorney-General as a LawOfficer. Iam inclined to the view that the proviso in question, covers cases where theAttorney-General or other •LawOfficer takes astepinaproceeding which heisauthorised to take under Part Vof the Criminal Procedure Law. The power and practice of the Courts to award costs originates in twogood andjust reasons. Oneistocover the costs of a litigant who is forced or drawn into litigation in order todefend or vindicate hislegal rights as proved in such litigation. As a general rule, costs follow the event, unless the Court exercising a judicial discretion, otherwise directs. The second reason for which costsareawarded isto deter ill-founded or groundless proceedings. Iwould bevery slow toaccept theview that aLaw Officer should be put at an advantage, regarding costs, over the ordinary litigant. In criminal summary proceedings, costs are often awarded to the Police or other public prosecutor. I see no reason why, in a proper case, they should not be awarded against him, in the absence of sufficient legal impediment. In this case, as I have already said, I agree with the judgment of the learned President, subject to the above observations. MICHAELIDES, Acting J.: I fully agree with the judgment given by the learned President of the Court. TheCourt bymajoritydeclined to assume jurisdiction and awarded coite to the appelhtnt. 399 1961 June 13, 16,27, Dec. 15 LEFKIOS C H R . RODOSTHFNOUS v. THE REPUBLIC Vassiliades, J.