[VASSILIADES, TRIANTAFYLLIDES

JOSEPHIDES, JJ.] THE ATTORNEY-GENERAL OF THE REPUBLIC, Appellant, v. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS, Respondents. MUSTAFA IBRAHIM A N D OTHERS (Criminal Appeals No. 2729, 2734, 2735) Constitutional Law—Constitution of the Republic—Doctrine of necessity—Constitution, Articles 153.1, 133.1, 146, 152, 159.1, 159.2, 155.3

179—Administration of Justice (Miscellaneous Provisions) Law, 1964, sections 3

12 vis-a-vis such Articles—Necessity as a course of legislation. Constitutional Law—Promulgation

publication of Law—Articles 47 (e)

52 of the Constitution—Language of text of Law—Article 3.1

2 of the Constitution—Doctrine of necessity. Constitutional Law—Unconstitutional Laws etc.—Procedure for a reference under Article 144 of the Constitution no longer applicable or necessary—Question of alleged unconstitutionality to be treated as issue of law

be subject to revision on appeal—In view of the provisions of the Administration of Justice, etc. Law, 1964 (supra). Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33 of \964)~Sections 3

12 validly enacted. Supreme Court—Court of Appeal—Quorum of three judges also competent to determine constitutional questions—Administration of Justice (Miscellaneous Provisions) Law, 1964, section 11

they are charged with offences of preparing war or warlike undertaking

of using armed force 195 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS against the Government, contrary to sections 40

41 of the Criminal Code, Cap. 154. Before the hearing on the merits of these appeals, counsel for respondents raised the following preliminary objections :

133.1 of the Constitution ; (b) sections 9

11 were contrary to Articles 146

152 ; (c) section 12 was contrary to Articles 159.1, 159.2

155.3 ;

(d) section 15, read in conjunction with section 2, was contrary to Article 179 ;

not questions of constitutionality of law,

that only the Full Bench of five was empowered to do so under the provisions of sec­ tion 11

that the present composition of three Judges should refer the matter to the Full Bench for determination :

published in accordance with the provisions of Articles 47 (e)

52 of the Constitution :

2,

that, consequently, that Law has not come into force. The court gave its ruling in the above preliminary objec­ tions on the 8th October, 1964, (Ruling published post, at p. 199)

then, on the 10th November. 1964, the court proceeded

gave its reasons for such ruling. (Vide judg­ ments published post, at ρ 200 C. seq.). Held. (A) on the legal points raised by counsel for the respondents : (I) Sections 3

II of the Administration of Justice (Miscellaneous Provisions) Law, No. 33 of 1964, 196 have been challenged on behalf of the respondents as unconstitutional, have been validly enacted. The same applies to section 12 of the Law, which has also been challenged by learned counsel for the respondents, as an integral part of the system of the administration of justice set up by Law 33 of 1964.

the merger of the jurisdictions vested in that Court

the High Court into the New Supreme Court established under the provisions of Law 33.

that it came into operation on the day of its publication in the Gazette, viz.-on the 9th July, 1964. (B) On whether the legal doctrine of necessity, should or should not, be read in the provisions of the written Constitution of Cyprus : This court now, in its all-important

responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity discussed earlier in this judgment, should or should not, be read in the provisions of the written Constitution of the Republic of Cyprus. Our unaminous view,

unhesitating answer to this question, is in the affirmative. 197 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTOHNEYGENERAL OF THE REPIBLIC V. MUSTAFA IBRAHIM

OTHERS 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS (C) On the substance of the appeal (No. 2729) :

the conditions pre­ vailing in the Island at the material time, as described in the judgments delivered, the order for bail should not have been made.

the evi­ dence against him before the committing court presents good reasons for which the accused should not be allowed to cir­ culate at large amongst the community, pending his trial, the words " if it thinks proper"' in the third line of section 157.1 of the Criminal Procedure Law, Cap. 155, should be given their full effect in considering an application for bail. In each case the matter must be decided judicially, in the particular circumstances of the case.

every such decision is subject to further consideration on appeal at the instance of either side. A speedy trial is always desirable in all cases ; but bail, only if the court " thinks it proper ", in the circumstances. Appeal allowed. bail set aside. Order for Cases referred to : Rodosthenous, Lefkios

another v. The Police

Limassol (Malyali D.J. Cr. Appeal No. 2735) whereby the respondents were released on bail pending their trial by the Assize Court upon completion of their Preliminary Inquiry into charges of carrying warlike under­ taking without lawful authority against the Greek Community of Cyprus, contrary to sections 40

20 of the Criminal Code, Cap. 154, as amended by Law 3 of 1962. Appellant Cr. G. Tornaritis, Attorney-General of the Republic, in person with A. Frangos,Counsel of the Republic. A. M. Berberoglou,for the respondents. The court, on the 8th October, 1964, gave the following ruling : VASSILIADES, J. : I am afraid we have kept you longer than we thought. The reason is that we had to deal with a rather thorny problem calling for an immediate answer. Normally, we would let the case stand until we were ready with ourfinaljudgment on thewhole matter, considered

prepared in the light of the valuable assistance we have had at the hearing, especially on the legal background of 199 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. the case, from the learned Attorney-General as appellant,

from Mr. Berberoglou for the respondents. But keeping the Courts in suspense for, perhaps, quite a few days, on points which were notnew to us,was, we thought, undesirable, in the circumstances. We have, therefore, decided to give the Court's ruling now, especially in view of any uncertainties which may have arisen about the system of administration of justice now in force ;

to give our reasons at a later date. Before proceeding further, however, I should state that one of the Members of the court felt—as it was his absolute right to feel—that he should have the opportunity of considering fully the questions raised in this appeal, in the light of the elaborate submissions made, before taking a final decision in the matter.

this is how the present ruling should be understood. The other two Members of the court are of the opinion that the court is now in a position to rule that sections 3

section 11 of the Administration of Justice (Miscellaneous Provisions) Law, No. 33 of 1964, which have been challenged on behalf of the respondents, as unconstitutional

as not having come into force at all, have been validly enacted. The same applies to section 12 of the Law, which is also challenged by learned counsel for the respondents, as an integral part of the system of the administration of justice set up by Law 33 of 1964. Moreover, the court has reached the conclusion that, in view of the enactment of the Law in question, the procedure for a reference under Article 144 of the Constitution by any court to the Supreme Constitutional Court, is no longer applicable or necessary ;

all questions of alleged unconstitutionality should be treated as issues oflaw in the proceedings, subject to revision on appeal, in due course. On the 10th November, 1964, the following judgments were delivered : VASSILIADFS, J. : As the three appeals before us do not stand consolidated, Ipropose takingthefirst one,i.e.No.2729 for the purposes of this judgment. This isan appeal bytheAttorney-General ofthe Republic, from an order for bail, made by a District Judge in the District Court of Kvrenia, at theconclusion of a Preliminarv 2U0 Inquiry resulting in the committal of the respondents herein (accused in the criminal proceeding) for trial by the next Assizes. 1964 Oct. 6, 7, 8, Nov. 10 The charges upon which the respondents were committed T " E A T T O R N E Y GENERAL OF to take trial, were for carrying a warlike undertaking against T H E REPUBLIC a section of the people in the Republic, contrary to section 40 v. of the Criminal Code ; for endeavouring to overthrow MUSTAFA IBRAHIM the Government by armed force, contrary to section 41 ; A N D OTHERS

for carrying rifles

ammunition, contrary to the Firearms Law,

the Explosive Substances Law— Vassiliades, J. (Cap. 154 ; Cap. 57 ; Cap. 54, respectively ;

Law 3 of 1962). The seriousness of the charges is obvious ;

I need only add here, that the main offences charged are punishable, under the Criminal Code, with imprisonment for life. (Sections 40

41 of Cap. 154). The accused in the case—respondents in this appeal— are four young men ; a barman, age 22 ; a mason, age 23 ; a blacksmith, age 17 ;

a shepherd, age 20, all caught

arrested on the Kyrenia Mountains, on the 25th April, last, carrying their rifles loaded with .303 bullets,

their ammunition belts well supplied. There is ample material on record, to show the conditions prevailing in the Republic at the material time ;

the circumstances under which the respondents were arrested. Indeed anybody living in the Island since the 21st of December, 1963, must have had sufficient occasion, some way or another, to acquire knowledge of the warlike emergency, harassing the people of Cyprus, during the last, nearly ten months now. As the subject-matter of this case, however, is still sub judice, I must avoid going further into the factual part of the case, excepting so far as it is necessary for determining the legal issues under consideration in this appeal. I shall.therefore take the factual position from the existing record

from what I think I can take judicial notice of, subject to proof at the trial. I find such position at the material time, namely in July last, when The Administration of Justice (Miscellaneous Provisions) Law, 1964, was published as Law of the Republic No. 33 of 1964 '(9.7.64)

on the 1st August, 1964, when the order for bail now under appeal, was made, as follows. There existed within the territory of the Republic of Cyprus, the following conditions : (a) a state of revolt ; i.e. armed rebellion

insurrection against the established Government of the Republic ; 201 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC t;. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. (b) armed clashes between organised groups resisting the authority of the State,

the forces authorised by the Government to assert the authority of its organs ; (c) loss of life ; damage to property ; interruption of communications ;

upsetting of law

order in the affected areas, with all the consequent repercussions on life in general, within the territory of the State ; (d) assertion of authority

actual physical control, over areas of State territory, by the insurgents

their political leaders

commanders, to the exclusion of the authority of the established Government of the Republic ; (e) presence, with the consent of the Government, of international troops within the State territory, under a Commander acting for,

upon orders from an authority outside the State i.e. the Secretary-General of the United Nations

the Security Council thereof, for the declared purpose, inter alia, of preventing armed clashes between combatants, with a view to the maintenance of peace

the prevention of bloodshed ; without, however, exercising government authority, or assuming in any way government responsibility ; ( / ) inability of the State-Government, pending a political settlement in international circles, to combat the insurgents in order to re-establish its authority

resume its responsibilities in the affected areas, owing to the presence

intervention of the said foreign troops ;

corresponding uncertainty, as to when the one or the other of the combating forces may eventually prevail, so as to assume the responsibility of government in the maintenance of law

order in the territory of the Republic ;

(g) duration of such conditions over a period of several months. Whether these assumed conditions constitute present reality in the Republic of Cyprus, may, for the purposes of this case, remain a matter of proof ; but they are conditions material in considering the legal issues arising in the appeal.

although 1 am inclined to think, that having lived in Cyprus during this period, I can take judi- cial notice of the existence of such conditions, as suggested by the Attorney-General, I prefer to act upon them as assumptions, in view of the pending trial. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEY- On the other hand, I do not think that this court should embark on the consideration of a delicate

important legal problem, without setting down the factual foundation upon which the solution must be sought. Academic pronouncements, as well as statements of judicial authorities, cannot be fully or correctly appraised, without the factual background in which they are made. In the courts, precedents are distinguished on- their facts. Returning now to the case in hand, we have the application for bail, made on behalf of the respondents, upon their committal for trial by the Assizes, for the charges already described. The application was made under the appropriate provisions of the Criminal Procedure Law (Cap. 155) i.e. section 157, which reads : " 157

no person charged of any offence punishable with death shall be released on bail, except by an order of a Judge of the Supreme Court." I would underline, for the purposes of this appeal the words " if it thinks proper "

" charged or convicted " in sub-section

the last part of sub-section

the evidence upon which they were committed, weighed strongly against bail. T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. One need hardly go into the legal

practical considerations governing bail, in normal conditions, as declared in precedent such as Rodosthenous v. The Police (1961, C.L.R. p. 50) referred to in this case ; or in any other of the numerous reported

unreported cases, in this connection, in order to reach the correct conclusion. The unusual conditions imposed by the learned trial Judge, indicate sufficiently that he had reasons to apprehend the existence of unusual circumstances. Nevertheless a conditional order for bail was made ;

it is against that order that the Attorney-General, exercising powers vested in him by law, took the present appeal, upon the eight different grounds set out in the notice filed. At the opening of the case before us,

before the appellant had the opportunity to commence the presentation of his appeal, learned counsel for the respondents took objection to the legality of the proceeding. His objection is that this court, constituted

purporting to function under The Administration of Justice (Miscellaneous Provisions) Law, 1964, has no legal existence,

no power to deal with the matter in hand, as the Law in question is unconstitutional,

therefore a nullity. To this, appellant's reply was that if the Law, from which this court derives its existence, is a nullity, how can the court be asked to deal with the constitutionality, or indeed, on what authority can it pronounce upon the validitv of the Law in question? Attractive as this argument may logically be, 1 have no difficulty in holding that once the court has been seized of the case, it must assume the competence

responsibility to deal with all matters raised therein, including questions going to the legality of its existence, or the lack of jurisdiction to deal with the matter in hand, until it reaches, in due course, a judicial decision on the questions raised.

if the effect of such decision, is to put an end to the whole proceeding, the court should make its judicial pronouncement accordingly. I, therefore, take the view that the court should proceed to deal with the merits of the objections raised by Mr. Berberoglou on behalf of the respondents. 20-! Learned counsel put his client's case in this connection, on two legs : 1. Assuming that the Administration of Justice (Miscellaneous Provisions) Law, 1964, is valid,

that there exists now in the Republic, the Supreme Court established thereunder, this Court of Appeal, as now constituted, has no power under the said Law, to deal with the matter in hand ;

1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS 2. The statute in question (The Administration of Justice (Miscellaneous Provisions) Law, 1964) purporting to establish the present Supreme Court, is unconstitutional in matters going to its root

is, therefore, a complete nullity. The learned Attorney-General on the other hand, in a carefully considered

well presented argument, opposed the objection taken, on both its grounds. For the purposes of convenience, 1 shall refer hereafter to The Administration of Justice (Miscellaneous Provisions) Law, 1964, as the " new Law ". Mr. Berberoglou's objections, on the assumption that the new Law was duly enacted, may be summarised as follows : The Court is vested with " the jurisdiction

powers " hitherto exercised by the Supreme Constitutional Court

the High Court, as defined in section 2

as provided in section 9 (a). Such jurisdiction

powers, shall be exercised, according to section 11

determine questions going to the constitutionality of legislation. In this connection, the gist of the submission made by the Attorney-General is that, " the jurisdiction

powers which have been hitherto vested in, or capable of being 2U5 Vassiliades, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYG E N E R A L OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Vassiliades, J. exercised by the Supreme Constitutional Court " in section 9 (a) of the new Law, must be sought in the Constitution, which, in different articles, conferred a variety of jurisdiction

powers to the Supreme Constitutional Court.

section 11

interpreted accordingly. Moreover, the procedural provisions in Article 144

the High Court of Justice with the subordinate civil

criminal courts on the other, now, with the merger of the two superior courts in the present Supreme Court under the new Law, become clearly inoperative.

, therefore, both section 11 of the new Law,

Article 144

of the Constitution, must be read

applied accordingly. We felt no difficulty whatever, in deciding this question.

we have announced our decision in our ruling of the 8th October, upon the conclusion of the argument before us. We unanimously now hold that the procedure for reference under Article 144

all questions of alleged unconstitutionality should be treated as issues of law in the proceedings, subject to revision on appeal, in due course. The procedure for reference introduced into our legal system by the Constitution, has caused in actual practice during the four-year period of its life, obstruction, delay

expense in ordinary litigation, of which parties are now relieved bv the new Law. We, moreover, unanimously hold that the cumulative effect ofsections 3

section 11

jurisdiction to deal with all questions raised in the appeal. I may now proceed to deal with Mr. Berberoglou's second

principal objection ; namely that the new law is unconstitutional in matters going to its root ;

is, therefore, null

void. Learned counsel opened his attack in this respect, by reference to Articles 133.1

153.1 of the Constitution ;

to Article 179.1. The first provides for the establishment 206 of " a Supreme Constitutional Court of the Republic, composed of a Greek, a Turk

a neutral j u d g e " ;

places " the neutral j u d g e " as President of the Court. The second (Article 153.1) provides for the establishment of " a High Court of Justice composed of two Greek judges, one Turkish judge

a neutral judge ";

placing the " neutral judge " as President of the Court, supplies him with " two votes". The third (Article 179.1) provides that " this Constitution shall be the supreme law of the Republic''. The new Law, learned counsel submitted, apparently inconsistent with the first two articles, must invevitably fall to pieces under the weight of Article 179.1. On its face value, this argument would seem to be sufficient to seal the fate of the new Law. I believe that there can be no doubt that if the new Law came to be enacted within the first months of the life of the Republic, (to satisfy, for instance, the provisions of Article 190) it could not stand the weight of this argument. In fact both the Courts established under Articles 133.1

153.1 of the Constitution, came into life accordingly, in due course ;

performed their respective functions for a considerable period. Notwithstanding appreciable difficulties, felt with growing anxiety as time went on, no attempt was made, so long as the courts functioned, to meet at least some of the difficulties, by amalgamating the two superior Courts,

avoiding the cumbersome procedure imposed by Article 144

later, the High Court, as from June, 1964, ceased to function. The reasons why such state of affairs came to exist, may well be traced in the Constitution itself. But do they really matter, as far as this appeal is concerned ? I do not think they do. The fact remains that both these superior Courts, ceased to function ;

together with them the whole system of the administration of Justice in the Republic, was in danger of collapse. Mr. Berberoglou blamed the Government for these conditions ;

invited us to uphold the relative constitutional provisions, regardless of the obvious consequences to the State

its people. The Attorney-General, on the other hand, blamed the insurgents,

the conditions created by their prolonged activity ;

submitted upon a well supported argument, 207 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF that the new Law was enacted on sound legal foundation : the generally accepted principle of the law of necessity for the preservation of fundamental services in the State. The preservation of the administration of Justice itself, in this case. T H E REIM'HLIC v. MUSTAFA IBRAHIM A N D OTHERS V;issiliades, J. I do not think that for the purposes of this appeal, it is necessary to speculate into the causes of the present unfortunate conditions in the Island, set out earlier in this judgment. It is sufficient, I think, for me to say here that I firmlv believe that the present difficulties of the people of Cyprus,

of their Republic, originate to a considerable extent, in the sin of ignoring time

human nature in the making of our constitution. Time moves on continuously; man is, bv nature, a creature of evolution

change, as time moves on. The Constitution was, basically, made fixed

immovable. Article 182 provides that the basic articles thereof " cannot, in any way, be amended, whether by way of variation, addition or repeal ". As time

man moved on, while the Constitution remained fixed, the inevitable crack came—(perhaps a good deal sooner than some people mav have thought)—with grave

far reaching consequences. Be that as it may, however, I shall now proceed to consider tiie legality of the new Law, in the circumstances in which it was enacted. In addition to its apparent inconsistency with the text of Article 133

Article 153(1) (et seq.) of the Constitution, which, Mr.

Berberoglou submitted, renders the new Law unconstitutional, the manner in which it purports to have been promulgated

published, violating express constitutional provisions, renders the new Law invalid, counsel argued. Article 47 (e) provides that the promulgation of a new law by publication in the official Gazette, is part of the executive power exercised conjointly bv the President

the Vice-President of the Republic. It cannot be exercised singly, learned counsel submitted, as each of these executive officers has the right of return to the House of Representatives, or the right of reference to the Supreme Constitutional Court, as provided in Article 52. Moreover Article ,i

administrative acts

documents, shall be drawn up in both official languages, Greek

Turkish ;

shall, where promulgation is required " be promulgated by publication in the official Gazette of the Republic in both official languages ". The new Law, counsel contended, has neither been promulgated as required :us by the Constitution, nor has it been published in both languages.

furthermore Article 82 provides that a law of the House of Representatives, as the new Law purports to be, shall come into operation on its publication in the official Gazette, (unless another date is provided by such law) which must be construed to mean, counsel argued, that it does not come into operation unless

until so published, in both official languages, according to the Constitution. It was not contested by the Attorney-General, that the new Law was not promulgated by both the President

the Vice-President of the Republic ; nor that it was not published in the official Gazette in both languages, as required by the Constitution. But " the law of necessity " was again invoked in justification of the omission ; which in any event, it was submitted, could not affect the validity of the enactment. The court at this stage of the case, it was said, must take a statutory enactment as it finds it in the official publication which purports to contain it. So it seems to me that it is really, on the force of the legal concept—or expediency—known to jurisprudence as the defence of necessity, that the case for the appellant rests, in support of the validity of the new Law.

on the sound practical view, that law is made for man ;

not man for the law. The existence, the validity,

the force of the Constitution, are not in question. That the new law has not been promulgated, or published according to the written text of the relative part of the Constitution, has not been contested. That it is not in accordance with certain constitutional provisions, especially Articles 133.1

153.1, in material particulars, there can be no doubt.

the fact that the Attorney-General of the Republic defends this new Law, by the defence of necessity, points, I think, in the direction that its validity cannot otherwise be defended. The reasonable inference is that had it not been for " the necessity " which caused its enactment, the new Law, probably, would not have been enacted ;

if enacted, it might well be challenged as unconstitutional. This is the position in which I see the question for consideration in the light of the submissions before us.

it seems to me that the onus of establishing this " defence of necessity ", lies upon the side which invokes it. Opening his article on the subject, in the sixth volume of the publications of the Faculty of Laws, of the Univer209 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. 1964 Oct. 6, 7, S, Nov. 10 T H E ATTORNEYG E N E R A L OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. sity College, London, Current Legal Problems,

after going as far back as Bacon,

Blackstone, the learned jurist observes : " I n a manner of speaking the whole law is based upon social necessity ; it is a body of rules devised by the judges

the legislature to provide for what are felt to be reasonable social needs. Obviously our present, concern is with something narrower than this. What we have to study is how far the notion of necessity can create new rules or serve as an excuse '• for dispensing with the strict law, where the exigency requires it." The eminent professor then confirms that the classical writers abound in maxims upholding the plea of necessity.

quotes a line of them, out of which, I think, two are of particular value in dealing with this case. They were both cited from Bacon : " Privilegium non valet contra rempublicam"

" Salus populi, suprema lex ". The eminent author concludes this part of his article, with a citation from Sir William Scott that " Necessity creates the law,- it supersedes rules ;

whatever is reasonable

just in such cases, is likewise legal". At page 224 of the same book one reads from the same author : " The law, in a word, includes the doctrine of necessity ; the defence of necessity is an implied exception to particular rules of law. Even a criminal statute that makes no mention of the doctrine, can be regarded as impliedly subject to it, just as such a statute is impliedly subject to the defence of infancy or insanity or self-defence ". Indeed, our Criminal Code (Cap. 154) does incorporate the legal doctrine of necessity, in the part dealing with general rules as to criminal responsibility. Section 17 reads : " An act or omission which would otherwise be an offence may be excused if the person accused can show that it was done or omitted to be done only in 210 order to avoid consequences which could not otherwise be avoided,

which if they had followed, would have inflicted upon him or upon others whom he was bound to protect, inevitable

irreparable evil, that no more was done than was reasonably necessary for that purpose,

that the evil inflicted by it was not disproportionate to the evil avoided." The learned Attorney-General, in his able

most helpful address, referred us to reports of superior judicial authorities,

to writings of eminent jurists showing how this doctrine of necessity has long been accepted

applied in France, Germany, Italy, Greece,

how it is also found in that treasure of practical legal wisdom, the Mejelle, (articles 17, 18, 21

22) which the elder of us, still remember with profound respect. I would have to go into great lengths in this judgment, if I were to cite the guidance

assistance which I found in all those sources of legal knowledge, in considering the problem in hand. Mr. Berberoglou confined himself in this connection» within the stronghold of the Constitution ;

, quite understandably, avoided going into the marches of necessity. He almost denied their existence. In a way this would tend to indicate that if " the necessity " really existed at the material time, its force

effect on the case in hand, could not be denied. I find it unnecessary to go into the history of the circumstances under which, our Constitution came to be part of the law of this country. Not only it is now part of the law in force, but it is the basic law of the Republic. (Article 179.1). Its makers, however, must be presumed to have been conscious of the fact that they were legislating for the people of this country ; regardless of the interests or objects of foreign powers. That they were making the constitution of a State, belonging to its people ; a State which, according to the opening words of Article 1, would be an "independent

sovereign Republic". The Republic of the people of Cyprus. The whole people, Greeks, Turks, Armenians, Maronites, Latin Catholics

all others. That was a cardinal

fundamental fact, which could not,

should not have been ignored.

any mistake in the correct appraisal of that fact, could not but result, sooner or later, in proportionate consequences. Furthermore, arbitrary manipulations of generally accepted legal rules in our times, however skilfully perform211 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC ed, could not but produce corresponding human reactions. When Article 6 made discrimination " subject to the express provisions of this Constitution ", it did not prohibit, but it incorporated

sought to establish, under a cloak of prohibition, repugnant rules of discrimination into our legal system. v. MUSTAFA IBRAHIM

OTHERS Vassiliades, J. The fundamental rights

liberties of the people of Cyprus, well settled in their legal system

vigilantly sustained by their unified courts, long before the birth of the Constitution, were now methodically classified in Part I I thereof,

they were elevated to the importance of constitutional rights. But, on the other hand, they were henceforth to be enforced by a new judicial system, lamentably divided,

deplorably based on communal discrimination, which was now introduced for the administration ofjustice,

was embedded into the Constitution. I do not need to stress here the importance of a properly functioning judicial system, for the life of the State, 'for the existence of the community,

for the daily life of every person living within the territorial boundaries of the Republic. Nor do I find it necessary to touch upon any of the serious consequences of the division of the courts upon a communal basis, since the establishment of the State of Cyprus under its present Constitution. It is sufficient to say, that since the unfortunate events in December last,

the conditions created in the Island thereafter, the judicial system established under the Courts of Justice Law, 1960 (No. 14 of 1960) upon the relative provisions of the Constitution, could not,

in fact did not properly work. Greek Judges, lawyers, litigants

public could not have access to courts situated within areas held by the armed forces opposing the State ;

Turkish Judges, lawyers, litigants

public had great difficulty in obtaining permission from commanders to move out from areas controlled by Turkish armed forces in order to have access to courts or other places situated within the areas controlled by the State Government. The causes which produced this result,

which prevented or obstructed the Judges, Greeks

Turks, from regularly attending their courts, do not form part of the issues for decision in this case. They were causes which the State Government were, in fact, unable to remove, during the several months which have elapsed between the outbreak of this emergency, in December 1963,

the enactment of the new Law, in July 1964. 212 The extremely difficult position of State Judges

their families, living within areas controlled by armed forces opposing the State-Government, needs no description here. Nor is it, I think, necessary to point out how such a position could well interfere with their judicial functions ;

, to that extent, with the administration of justice in the Republic. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM I shall only refer to what was said in the course of the judgment of the High Court in Vedat Ahmed Hasip v. The Police (reported in this vol. at p. 48 ante) on the 23rd May, 1964. That case gives a picture of the conditions prevailing in the Island at that time, regarding the application

enforcement of the law by the State-Courts ;a picture which, it was the responsibility of the Government to take seriously into account. It was said in that case : " There is one more point that I should like to touch before leaving Article 159 ; a point which does not call for decision in this case, but is closely connected with the article in question,

may give cause for serious consideration in the circumstances now prevailing in the Island. It seems to me that Article 155

Article 159

, rest on the postulate that there are available in all courts, at all material times, judges belonging to both the communities upon which the constitutional structure was made. So long as that postulate did in fact exist, no difficulty ever arose in this connection. But unfortunately it is now a fact only too well known to the people of Cyprus, that at present, there are certain areas in the territory of the Republic, where persons belonging to the one community or to the other, cannot, for reasons beyond their control, or for reasons of personal safety, make themselves available, or have access for any purpose. A proceeding connected with a murder case before the District Court of Famagusta recently, brought on the surface this factual position I would be very reluctant to hold that because the factual postulate upon which the provisions in question were placed by the makers of the Constitution, has intentionally or unintentionally, been removed, the legal rights of a great number of people become unenforceable. I touched the point in this case, because I consider it too serious to be passed unheeded." Conditions in the Island, reflected in this judgment in May, were much the same in July, when the new Law was 213 A N D OTHERS Vassiliades, J. 1964 Oct. 6, 7, 8, N o v . 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Vassiliades, J. enacted. If anything, they became more pressing, as in the meantime the High Court ceased to function, for reasons very closely connected with such conditions. So the evil depicted in the preamble of the new Law, which the House of Representatives, exercising the legislative authority in the State, came to remedy, at the instance of the Government, constitutes a facet of the necessity which, in the submission of the Attorney-General, justifies the enactment of the new Law, notwithstanding any apparent inconsistency with the text of the relative provisions in the articles of the Constitution referred to, by Mr. Berberoglou. Another facet of the conditions which form the necessity in question, appears in the first part of the present judgment. This Court now, in its all-important

responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity discussed earlier in this judgment, should or should not, be read in the provisions of the written Constitution of the Republic of Cyprus. Our unanimous view,

unhesitating answer to this question, is in the affirmative. The next matter for consideration, is the form which this notion should take in its application to the case in hand. A convenient

well-balanced form, in my opinion, is that found in section 17 of our Criminal Code. I need not read the text again. The effect is as follows : The enactment of the Administration of Justice (Miscellaneous Provisions) Law, 1964, which would otherwise appear to be inconsistent with Articles 133.1

153.1 of the Constitution, can be justified, if it can be shown that it was enacted only in order to avoid consequences which could not otherwise be avoided,

which if they had followed, would have inflicted upon the people of Cyprus, whom the Executive

Legislative organs of the Republic are bound to protect, inevitable irreparable evil ;

furthermore if it can be shown that no more was done than was reasonably necessary for that purpose,

that the evil inflicted by the enactment in question, was not disproportionate to the evil avoided. Applying now the law of the Republic, developed under the sun of experience, with the doctrine of necessity, in this well balanced form, I reach the conclusion that in the conditions prevailing at the material time, the enactment 214 of the new Law was legally justified, notwithstanding the provisions of Articles 133.1

153.1 of the Constitution. The same conclusion results, in my opinion, from the application of the law to the circumstances pertaining to the promulgation of the enactment in question, by the House of Representatives, notwithstanding the provisions of articles 47 (e)

52. When the two principal organs of the Executive Authority in the Republic, The President

the Vice-President, found it impossible to co-operate in any way, in the execution of their duty to the people of Cyprus during the whole of that period, one could hardly expect compliance with the provisions of Article 47 (e), for the promulgation of this Law. Mr. Berberoglou invoked Article 183 in support of his submission that in the absence of a Proclamation of Emergency, promulgated

published as therein provided, no state of emergency can exist in Cyprus ;

therefore no " necessity" to justify departure from constitutional or statutory provisions. I would be prepared to concede that learned counsel may be academically right. But this argument, far from removing the painful emergency which has in fact been harassing the people of Cyprus for nearly ten months, with such terrible effects for so many of them, only establishes in a very convincing manner, how far from reality some of our constitutional provisions can now be found ;

how badly our Constitution requires injections of the doctrine of necessity to keep some of its parts alive. A mere perusal of the text of Article 183 is sufficient, I think, to show how its provisions are completely inadequate to meet the present emergency. Where, however, in my opinion, this case presents a real difficulty is in connection with the non-publication of the new Law in both the official languages of the Republic, as required by Article 3paragraph 2. The learned AttorneyGeneral tried to explain

justify this omission, by the non-attendance of Turkish Officers in the Government Departments concerned. I must say that it is with the greatest difficulty

the utmost strain, that I found myself able to reach eventually the conclusion, that this necessary legislation, should not stumble

fall upon this omission in the conditions prevailing at the time of its publication. The provisions in Article 3 requiring legislative acts

documents to be drawn up in both official languages,

to be " promulgated by publication in the official Gazette 215 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Vassiliades, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Vassiliades, J. of the Republic in both languages ", are clear,

I think, imperative.

at a time when many thousands of Turkish Cypriote are still to be found in areas controlled by Government, a good deal more should, I think, be done in the search of suitable persons to draw

print the Turkish text of legislative enactments, before it can be said that theomission tohavethem drawnand published according to the Constitution, could not be avoided ; or, " that the evil inflicted by such omission was not disproportionate to the evil avoided '*. As I said, it is with great difficulty that I found myself able to reach the conclusion that the omissionwasjustified bythelawofnecessity,inthe conditions prevailing in July last. I think that Mr. Berberoglou's submission that he could have been approached in this connection, as he had been asked to help with other legislation before the emergency, contains a most commendable offer, which, one may hope that Government will not wish to miss. In any case I wish to take this opportunity to stress the importance which in my opinion should be attached to the requirement of the Constitution that " legislative, executive

administrative acts " affecting so many thousands of Cypriot Turks still living in areas controlled by the Government, should be made available in the official Gazette " in both official languages ". Having now reached the conclusion that the Administration of Justice (Miscellaneous Provisions) Law, 1964, is, as far as it is decided in the present appeal, a valid enactment, we only have to refer to our ruling of October 8th, in this appeal, already announced,* that this Court constituted as it has been under the provisions of section 11

that for the reasons stated today, the position stands as ruled. We now propose to hear the parties on the substance of these appeals, if they have anything to add to what is already on record in connection with the orders for bail. TRIANTAFYLLIDES, J. : These three appeals were filed by the learned Attorney-General of the Republic against the granting of bail, pending trial by Assizes, to the accused in criminal cases 184/64 (DCK), 369/64 (DCP)

3182/64 (DCL1). The said accused persons are Turkish Cypriots

are charged with offences of pre- *See ante, at p.199. 216 paring war or a warlike undertaking

of using armed force against the Government, contrary to sections 40

41 of the Criminal Code Law, Cap. 154, respectively. Before the hearing on the merits of these appeals, counsel for respondents took two preliminary objections : (a) that the Administration of Justice (Miscellaneous Provisions) Law, 1964, (Law 33/64), under which the Supreme Court of Cyprus has been established

has proceeded to take cognizance of these appeals, has never come into force due to lack of proper promulgation, as required under Articles 47 (e)

52 of the Constitution,

, also, due to lack of proper publication, as required under Article 3

133

152, section 12 contravenes Articles 159

155

section 15 contravenes Article 179

the hearing of the appeals had to be stayed in the meantime. The court has been greatly assisted by a thorough development of the above objections on the part of counsel for respondents

by a meticulously considered

presented reply thereto by the Attorney-General of the Republic. On the 8th October, 1964, at the conclusion of the hearing of arguments, the court, in view especially of the need to deal with any uncertainties which might have ari217 1964 Oct 6, 7, 8, Nov 10 T H E ATTORNEYGENLHAL o r T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Tnantafyllides, J 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC sen about the system of administration of justice in force, proceeded to give its ruling at once, stating that sections 3

12 of Law 33/64 have been validly enacted ; furthermore, that no reference under Article 144 was necessary. It reserved its reasons to be given later, a thing which is being done now by means of this judgment. v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. In the said ruling no mention was made of section 15 of Law 33/64 because, as it transpired during the argument, counsel for respondents had attacked its validity on the assumption that it provides that in case of any conflict between Law 33/64

" a n y other law", including the Constitution, the former would prevail. The Attorney-General, however, has stated to the court, in reply, that this was so, as far as this section 15 was concerned, in the case of " any other law ", not including the Constitution. After this statement, respondents' counsel did not appear to press his objection to section 15, itself, any more. In any case the same considerations, as set out in this judgment, which have led me to the conclusion that the other sub judice sections of Law 33/64 have been validly enacted, would lead to the same conclusion with regard to section 15 also. It is proper to deal first with objection (b), above, of counsel for respondents ; this is the substantive objection in these cases. I have reached the conclusion that for the purposes of deciding on this objection it is not necessary to determine the fundamental question as to what extent the constitutional structure existing in Cyprus on the 21st December, 1963, has been affected by the internal anomalous situation which has supervened since then. For the purposes of this judgment it has been sufficient to deal with the relevant constitutional provisions as one finds them set out in the text of the Constitution. Respondents' counsel, in correlating certain sections of Law 33/64

certain articles of the Constitution, has alleged, in effect, that such sections, by violating the respective articles, are, in accordance with Article 179 of the Constitution, void for unconstitutionality. Article 179 provides that the Constitution shall be the supreme law of the Republic

that no law or decision of the House of Representatives, inter alia, shall, in any way, be repugnant to, or inconsistent with, any of the provisions of the Constitution. In my opinion, as it will be seen from what follows in this judgment, in deciding on respondents' objection under 218 •• fc. examination, Article 179 has to be read together with Articles 1, 61

182 of the Constitution. Article 1 lays down that the State of Cyprus is an independent

sovereign Republic with a presidential regime, Article 61 provides that the legislative power of the Republic shall be exercised by the House of Representatives in all matters except those expressly reserved to the Communal Chambers (with which latter organs we are not concerned in this judgment)

Article 182

provides that the provisions of the Constitution which have been incorporated from the Zurich Agreement dated 11th February, 1959 are made basic articles

they cannot be amended in any way. Moreover, it is necessary, in due course, to examine the origins

nature of the Cyprus Constitution the " supreme law", as provided for by Article 179, which, though being the constitution of an independent

sovereign Republic, set up under Article 1, with a legislature competent to legislate in all matters, by virtue of Article 61, has at the same time been deprived, by Article 182, of the possibility of ever being amended in so far as are concerned basic provisions incorporated from an international agreement, the Zurich Agreement, entered into in February, 1959, nearly a year

half before Cyprus became independent on the 16th August, 1960. The problem whether or not a measure such as Law 33/64, enacted in circumstances such as those in which it was enacted, in the exercise of the legislative power of the House of Representatives, is rendered invalid by Article 179, because of alleged conflict with the supreme law of the State, has to be resolved not in abstracto, on the basis only of generalities of principle, but within the concrete framework of Cyprus State realities. The concept of the inviolability of a " supreme " or "fundamental" or " h i g h e r " law is peculiar to countries where written constitutions are in force, as, for example, the United States of America. -Under such concept, the legislature has to exercise its powers within the limits laid down by the supreme law

any legislative measures which offend against it are liable to be declared unconstitutional through judicial review. This is a notion unknown in countries where no written constitution exists, such as the United Kingdom, where the legislature is sovereign. 219 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J- 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Triantafyiiides, J- One of the sources of this doctrine of supreme law is the case of Marbury v. Madison decided by the United States Supreme Court in 1803. In his judgment Chief Justice Marshall said : " The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States ; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long

well established, to decide it. That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion ; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental.

as the authority from which they proceed is supreme,

can seldom act, they are designed to be permanent." (vide Dowling, Cases on Constitutional Law, 6th Ed. pp. 77-78). From the above extract it appears that Marshall C.J. based his doctrine of fundamental law on the assumption that a written constitution is the product of the exercise of the " original right" of the people to choose what " shall most conduce to their own happiness ". He also accepted that, even after the original adoption of the fundamental law, such right might still be exercised again, though not frequently—

in spite of the view taken by Marshall C. J. that it is difficult to exercise such right often-the fact remains that no less than 24 amendments have been made to the Constitution of the United States. In his treatise on " The Higher Law Background of American Constitutional Law " Professor Corwin, one of the foremost constitutional experts of his country, writes at p. 89 : " In the first place, in the American written Constitution, higher law at last attained a form which made possible the attribution to it of an entirely new sort of validity, the validity of a statute emanating from the sovereign people. Once the binding force of higher law was transferred to this new basis, the notion of the 220 sovereignty of the ordinary legislative organ disappeared automatically, since that cannot be a sovereign law-making body which is subordinate to another law-making body ". 1964 Oct. 6, 7, 8, Nov. 10 Thus, it is clear that the concept of the inviolability of a supreme law is by its very nature inseparably related to the premise that the constitution embodies the sovereign will of the people which can be exercised at any time, even though seldom, in order to amend it. T H E ATTORNEYGENERAL OF T H E REPUBLIC V. MUSTAFA IBRAHIM A N D OTHERS Article 179 has formally introduced the supreme law concept in the constitutional order of the Republic of Cyprus. It is, therefore, useful to examine how far the principle behind Article 179 corresponds to the realities of the Constitution of Cyprus. In the course of this examination certain matters which are generally known may be judicially noticed. As laid down by the Supreme Court of the United States in dealing with constitutional questions " W e take judicial cognizance of all matters of general knowledge ". [Muller v. Oregon, vide Dowling, above, p. 742). The Constitution of Cyprus has emanated in its present form, not through the exercise of the " original right ", of the sovereign will, of the people of an independent Cyprus ; it is the product of an international agreement signed in Zurich on the 11th February, 1959,

ratified in London, without the opportunity for any amendments having been afforded in the meantime, on the 19th February, 1959. At Zurich no Cypriote at all participated, in London the leaders of the Greeks

Turks of Cyprus took part

signed the Agreement. The Constitutional Commission, which was set up immediately thereafter, for the purpose of drafting the formal document of the Cyprus Constitution, was an international technical body, only,—anything but a Constituent Assembly. According to its terms of reference, it was given the " duty of completing a draft constitution for the independent Republic of Cyprus, incorporating the basic structure agreed at the Zurich Conference" " . . . .

shall in its work have regard to

shall scrupulously observe the points contained in the documents of the Zurich Conference

shall fulfill its task in accordance with the principles there laid down ". The Zurich Agreement itself provides, in Point 27 : " All the above Points shall be considered to be basic articles of the Constitution of Cyprus ". 221 Triantafyiiides, J- 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. On the 16th August, 1960, when Cyprus became an independent State the Cyprus Constitution came into force as a step in the process of the grant of independence. It came into force in accordance with an Order-in-Council of the British Government made in London on the 3rd August, 1960,

published in Supplement No. 2A of the Cyprus Gazette of the 11th August, 1960. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. The coming into force of the Constitution, as above stated, on Independence Day, was in fact a landmark on the road leading out of the narrow valley of a colonial regime into the open spaces of independence

the freedom of choice that goes with it. Even though the London Agreement was signed by the leaders of both the Greek majority

the Turkish minority in Cyprus

such leaders were subsequently elected to the offices of President

Vice President, nevertheless, the fact remains that all these—

any other step taken prior to the 16th August, 1960, towards implementing the Zurich

London Agreements—took place while Cyprus was still a colony,

under a state of emergency

with the leader of the Greek Cypriots kept banished from his own country until after the signing of the said Agreement. Such circumstances cannot be treated as conducive to the exercise of the free will of a people either directly or through its leadership. The Cyprus House of Representatives has not ever adopted or ratified the Constitution of Cyprus. Thus, such Constitution, which was conceived, drafted

came into force whilst circumstances were such as not to render it the unquestionable outcome of the free choice of the Cyprus people or of its leadership, was never ratified by an unfettered expression of judgment on behalf of the people of Cyprus, after it had become independent. The Cyprus Constitution contains very rigid provisions for its future amendment—

even this in certain non-basic respects only. It affords no possibility for amendment as far as basic Articles are concerned. Regarding its basic' provisions, in respect of matters which were incorporated from the Agreement in Zurich, including provisions such as Articles 153.1, 133.1, 159.1.2, no amendment is possible ; not even by unanimous consensus of all members of the House of Representatives. Thus, it has been deprived of the opportunity of representing the sovereign will of the people of the country at any given time in the future ; this is a vital

decisive difference between this Constitution

other written constitutions, which are subject 222 to amendment, through processes ensuring the exercise of the sovereign will of the people of each country, so as to ensure that they give continuous expression to such will, on which after all their supremacy depends. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF It is to be reasonably concluded from the foregoing that the Constitution of Cyprus, though invested with the sanctity of a supreme law, under Article 179, is found not to be in reality compatible with the principles which led Marshall C. J. to propound the doctrine of the supreme law in Marbury v. Madison. It cannot, in reality, be regarded as the ultimate outcome of the exercise of the " original right " of the Cyprus people " to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness "—in the same manner as Marshall, C. J., was, in Marbury v. Madison, entitled to regard the constitution of his own country as being the product of the will of its people—nor can the Cyprus Constitution be regarded as the final expression of the original right of the people, as presumed under Article 182— a thing which Marshall C. J. did not claim,

could not have claimed, in favour of the American or any other Constitution. The examination of the origins

nature of the Cyprus Constitution has not been embarked upon with a view to considering if the whole or any part thereof has not properly come into force, as this question is outside the scope of this Judgment. As a matter of fact it has formally come into force, in the manner which has been described earlier,

it has been treated as being in force. This examination has been made with a view to determining, in its light, together with other considerations, to what extent the express letter of the Constitution should properly be taken as providing, by virtue of Article 179, an absolute limit to the exercise of the legislative power of the House of Representatives, under Article 61, particularly in circumstances such as those in which Law 33/64 was enacted. It is now necessary to examine the said circumstances. They are the " recent events " referred to in the preamble to Law 33/64. They may be judicially noticed, too, being matters of general knowledge. Actually part of what is stated hereinafter has appeared to be common ground between the parties to these appeals. Since the 21st December, 1963, there is unlawful armed opposition to the authority of the State by Turks, on an organized basis. As there are many peaceloving Turkish 223 T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF citizens who are not parties to such unlawful activities this part of the Judgment must in no way be treated as prejudging the issue in any of the criminal cases in relation to which these appeals have arisen ; each case has to be determined on the basis of its circumstances. T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J- Since last December the participation

co-operation of Turkish Cypriots in both the executive

legislative branches of the Government has ceased, at all levels, either through wilfully chosen course of anti-State conduct or through the person concerned being a victim of circumstances ; again each individual case has to be examined on its own merits. The fact remains that this is a situation which, together with the causes behind it, continues to exist. Concerning the judiciary the following facts, inter alia, may be judicially noted : Before December 1963, as far back as since the end of July, 1963, the Supreme Constitutional Court had been rendered incapable of sitting in view of a vacancy in the office of its President who had resigned ; as the said court was about to resume its sittings (in view of the impending appointment of a new President in January 1964) the present anomalous situation supervened in December, 1963, frustrating such appointment. Since the end of May, 1964, the High Court of Justice was condemned to inactivity through the resignation of its President, also. It would have been impossible, in present circumstances, to secure the services of,

appoint, suitable persons to serve as neutral Presidents of the two said courts, as provided for by the Constitution. Until about June, 1964, Turkish District Judges did not attend to their duties, as members of District Courts or Assize Courts ; from June they resumed attending, first at a reduced rate, until some time after the enactment of Law 33/64, when their co-operation in the administration of justice has fortunately reverted back, practically, to normal. The possibility, however, remains always, though it is to be hoped that such an eventuality will never arise again, that Turkish District Judges may find themselves obliged in future to absent themselves once again from the courts through the operation of the same factors which prevented them from attending to 224 their work for many months in the past ; it cannot be lost sight of that forces seeking disruption

anarchy are still active. As a result of the above not only one but both the highest tribunals in Cyprus were found to be incapable of functioning as from the end of May 1964. No appeals, criminal or civil, could be adjudicated upon

no constitutional jurisdiction or any revisional jurisdiction in administrative law matters could be exercised. Fundamental human rights, of ordinary citizens, both Greeks

Turks, could no longer be effectively safeguarded or vindicated through judicial process. The District Courts or Assize Courts could not try Greeks who had committed offences against Turks, in view of the impossibility to form mixed courts of Greek

Turkish Judges as required by Article 159 of the Constitution

, likewise, Turks who had committed offences against Greeks or against the State could not be brought to trial. Mixed civil cases, which again under Article 159 would have required a mixed court could not be tried either. The administration of justice

consequently the protection of the rule of law

the preservation of public order could no longer be effectively achieved. It has been argued by counsel for respondents that the court cannot take official cognizance of the existing emergency because the Council of Ministers has not issued a Proclamation of Emergency under Article 183 of the Constitution. In my opinion, the court cannot close its eyes to notorious relevant facts in deciding these cases. Article 183 is a provision enabling an emergency to be declared for certain limited purposes

through a specified procedure. The fact that in spite of what has been going on in Cyprus since December, 1963, no Proclamation of Emergency has been issued under Article 183, rather than indicating, contrary to glaring fact, that no such emergency exists, strongly indicates that the present emergency is one which could not be met within the express provisions of the Constitution. At a time when by a resolution, dated 4th March, 1964, of the Security Council of the United Nations an International Force has been dispatched to Cyprus to assist in the return to normality

a U.N. Mediator has been assigned to try

work out a solution of the Cyprus Problem, it would be an abdication of responsibility on the part of this court to close its eyes to the realities of the 225 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J- 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. situation, because, for any reason, no Proclamation of Emergency has been made under Article 183,

to hold that everything is normal in Cyprus. To pretend that the administration of justice could have functioned unhindered as envisaged under the Constitution, because a measure that could have been taken, under a provision of limited application, such as Article 183, has not in fact been taken, would be unreasonable. I pass no censure on counsel for respondents who has raised the point ; he has done so in the discharge of his duties to his clients, as, on its own part, the court has also to discharge its duty to all persons in Cyprus for the sake of all of them. Granted that an emergency, as already described, exists the next thing to be examined is its relation to the basic theme of the constitutional structure. Even a cursory glance through the Constitution of Cyprus will show that its fundamental theme

an indispensable prerequisite for its operation is the participation

co-operation in Government of Greek

Turkish Cypriots : this appears to have been assumed

taken for granted as a sine qua non premise. Even Article 183, which provides, as we have seen, for the issuing of a Proclamation of Emergency, appears to have been drafted on such an assumption. It follows, therefore, that in case of an emergency involving the discontinuance of the said participation

co-operation, such as the present one, then the resulting situation is one which has neither been foreseen by, nor may always be met within, the express provisions of the Constitution. It cannot, of course, be argued that, because of such an emergency, constitutional deadlock or other internal difficulties, it is possible to question the existence of Cyprus as an independent State. The existence of a State cannot be deemed to be dependant on the fate or operation of its constitution ; otherwise, everytime that any constitution were upset in a country then such State would have ceased to exist,

this is not so. The existence of a State is a matter governed by accepted criteria of international law

in particular it is related to the application of the principle of recognition by other States. In the particular case of Cyprus there can be no question in this respect, because in spite of the current internal anomalous situation, the existence, not only of Cyprus as a State, but also of its Government, has been emphatically affirmed, for also purposes of international law, 226 by the Security Council of the United Nations, of which Cyprus became a member after it had become independent. In this respect judicial notice may be taken of the contents of the resolution of the United Nations Security Council of the 4th March, 1964,

also of its subsequent resolutions. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. Once a State

its Government continue to exist then the duty to govern remains imperative,

in particular " the responsibility for the maintenance

restoration of law

order " in an emergency such as the present in Cyprus ; this was affirmed in unmistakable terms in paragraph 2 of the aforesaid resolution of the Security Council. Organs of Government set up under a constitution are vested expressly with the competence granted to them by such constitution, but they have always an implied duty to govern too. It would be absurd to accept that if, for one reason or other, an emergency arises, which cannot be met within the express letter of the constitution, then such organs need not take the necessary measures in the matter,

that they would be entitled to abdicate their responsibilities

watch helplessly the disintegration of the country or an essential function of the State, such as the administration of justice. Notwithstanding a constitutional deadlock, the State continues to exist

together with it continues to exist the need for proper government. The Government

the Legislature are empowered

bound to see that legislative measures are taken in ensuring proper administration where what has been provided for under the constitution, for the purpose, has ceased to function. As it has been accepted by the Council of State in Greece, in time of emergency it is the responsibility of the Government to ensure the proper functioning of public services

of generally the machinery of the State (Decision 566/1936). It is necessary next to examine Law 33/64,

particularly its provisions which are sub judice, as well as the Articles of the constitution relied upon by respondents. The said Law was enacted on the 9th July, 1964, as an urgent measure

a temporary one. Its purpose is clear from its Preamble in which it is stated : " WHEREAS recent events have rendered impossible the functioning of the Supreme Constitutional Court 227 MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J- 1964 Oct. -6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

of the High Court of Justice

the administration of justice in some other respects :

WHEREAS it is imperative that justice should con- tinue to be administered unhampered by the situation created by such events

that the judicial power hitherto exercised by the Supreme Constitutional Court

by the High Court of Justice should continue to be exercised : A N D OTHERS Triantafyiiides. J-

WHEREAS it has become necessary to make le- gislative provision in this respect until such time as the people of Cyprus may determine such matters : " It may be judicially noticed,

it has also been stated by the learned Attorney-General

does not appear to be disputed, that " recent events " referred to in Law 33/64 are thecurrent emergency, particularly in so far as it affected the courts. Section 3

the High Court of Justice continued to beexercised there isestablished inthe Republic a Supreme Court consisting of upto seven

not less than five Judges. It has been alleged that this provision is contrary to Articles 133.1

153.1. Article 133.1 provides that there shall be a Supreme Constitutional Court of the Republic composed of three Judges, two being Cypriots —a Greek

a Turk—

a neutral, who shall be the President of the Court. Article 153.1 provides that there shall be a High Court of Justice composed of four Judges, three being Cypriots—two Greeks

one Turk—

a neutral, who shall be the President of the Court with two votes. It may be noted, while on this point, that by section 3

the two Judges of the Supreme Constitutional Court. It may be further stated that section 3

powers which had been vested in, or were capable of being exercised by, the Supreme Constitutional Court

the High Court of Justice. This provision is a logical consequence ofsection 3

152 of the Constitution. Article 146 provides that the Supreme Constitutional Court has exclusive jurisdiction to adjudicate finally on all recourses for annulment of administrative acts or decisions, or recourses in respect of administrative omissions. Article 152 provides that the judicial power, other than that vested in the Supreme Constitutional Court, shall be exercised by a High Court of Justice

subordinate courts as may be provided by law, except with respect to civil disputes in matters of personal status

religious matters, which come under the competence of communal courts —

we are not concerned at all with the competence of communal courts which has not been affected by the enactment of Law 33/64. It is to be noted that, by section 9, Articles 146

152 have not been either repealed or otherwise interfered with. The competences provided for thereunder remain intact. Provision has been made only for the exercise of such competences by the Supreme Court (together with other competences vested in the Supreme Constitutional Court) in view of the impossibility to function of the Supreme Constitutional Court

of the High Court of Justice. Section 11 of Law 33/64 makes provision about the mode of the exercise of its competence by the Supreme Court. It regulates the internal functioning of the Court. As stated, at the outset in this Judgment, the constitutionality of this section has been challenged as a sequence of the challenge of the constitutionality of other relevant sections of Law 33/64

therefore its validity is to be judged on the same grounds as those applicable to the said other sections. Section 12 of Law 33/64, though not directly relevant in these appeals, has been challenged as being part of the system of administration of justice set up under such Law

as being relevant to the trial of the three cases in which these appeals have arisen. It provides that any suborninate Court shall be composed of such Judge or Judges, irrespectively of the community of the litigants, as the Supreme Court may direct,

that any District Judge 229 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM AUD OTHERS Triantafyiiides, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides. J- may hear

determine any case within his jurisdiction, irrespective of the community of the litigants. It has been argued that it violates Articles 159.1.2

155.3 of the Constitution. Article 159.1.2 provides that a subordinate Court exercising civil jurisdiction in a case where both parties belong to the same community shall be composed only of a Judge or Judges belonging to such community,

that any Court exercising criminal jurisdiction, where the accused

the person injured belong to the same community or where there is no injured person, shall be composed of aJudge or Judges belonging tosuch community. Article 155.3 provides that the High Court of Justice shall determine the composition of Courts to try civil or criminal cases where the litigants, or the accused

the injured person, belong to different communities

that such courts shall be mixed Courts, with both Greek

Turkish Judges. Thus, be means of section 12, the competence of the High Court of Justice to determine the composition of courts has been vested in the Supreme Court

has been extended to cover all cases

the requirement of particular cases being tried by particular Judges has not been retained. Again, there is no repeal of the provisions of Articles 155.3

159.1.2, but other arrangements have been legislated for in present circumstances. The Attorney-General of the Republic, has based his submission in support of the validity of the enactment of the afore-mentioned provisions of Law 33/64 on the doctrine of necessity. He has assisted greatly the Court by an exhaustive

learned review of the relevant jurisprudence

authoritative writings in other countries. Counsel for Respondents has argued, in rebuttal, inter alia, that in any case necessity could never justify interference by law with the manner in which the Constitution has regulated one of the three powers in a presidential regime viz. the judicial power. He also argued that the measures introduced by Law 33/64 went much beyond the needs of the situation which they were designed to meet. Having considered the jurisprudence

authoritative writings of other countries to which this court has been referred, as well as some others, I am of the opinion that the doctrine of necessity in public law is in reality the acceptance of necessity as a source of authority for acting in a manner not regulated by law but required, in prevailing 230 circumstances, by supreme public interest, for the salvation of the State

its people. In such cases " salus populi" becomes " suprema lex". That being so, the doctrine of necessity has developed in accordance with the situations which have given rise to its being propounded or resorted to. Thus in Greece, having already been propounded in earlier years, we find this doctrine of necessity applied, to meet the necessities existing at

after the end of the Second World War, in a manner authorizing deviations from the constitutional order. As stated in the Decision 2/1945 of the Greek Council of State « θάήδύνατο να γίνη δεκτόν οτι, εάν τυχόν ήτο τούτο απαραιτήτως καΐ έπιτακτικώς άναγκαΐον και άναπόφευκτον, θα ήδυναντο αϊ κυβερνήσεις αύται να ρυθμίσουν καΐ κατά παρέκκλισιν άπό τοΰ Συντάγματοςθέματα αναγόμενα εις την πραγματο­ ποίησα τών κυριωτέρων σκοπών δι' ους εκλήθησαν εις την αρχήν, ήτοι της αποκαταστάσεωςτης έννομου τάξεως και δημοσίαςασφαλείας καιτης ταχίστης διενεργείας του δη­ μοψηφίσματος περί τοΰ πολιτικού ζητήματος».(" .. it could be accepted, in case this was indispensably

imperatively ne­ cessary

unavoidable, that such governments were entitled to regulate, even in deviation from the Constitution, matters related to the primary purposes for which they were called to govern, namely the restoration of law

order

public security

the holding as soon as possible of the referendum on the political issue" ) . Likewise in France the doctrine of necessity has been evolved as the doctrine of " exceptional circumstances "

in Italy it has been treated as an autonomous juridical situation by itself capable of legalizing an otherwise illegal act. This Supreme Court of Cyprus when faced with an allegation that a certain enactment, such as Law 33/64, is valid by virtue of the doctrine of necessity, can receive only guidance,

should not be bound, from what happened or has been held elsewhere. Both because what has been propounded elsewhere, in a matter such as the doctrine of necessity, is intrinsically connected with the there prevailing situations which rendered necessary the invocation of such doctrine,

also because the mission of the supreme judicial organ in any State is to lay down authoritatively its own law

not to apply the law of any other State, though past precedents anywhere are always of great help. It is, thus, for this Court to decide if

to what extent the doctrine of necessity in public law has its place in Cyprus law

how far it is applicable in each case. 231 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEVGENERAL OP T H E REPUBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J- 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEY GENERAL OF T H E REPUBLIC v. MCSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. In the case of Law 33/64 a measure has been taken, in the course of a grave emergency, not by the Executive alone, but through the introduction of legislation which was enacted by the House of Representatives. It has to be determined, in the light, inter aliay of Articles 1, 61, 179

182 of the Constitution, whether such a measure is unconstitutional or, even if unconstitutional, whether it ought tobe held asvalid inthecircumstances, notwithstanding its unconstitutionality. The validity of the provisions, in question, of Law 33/64 has to be examined against the background of the origins of the constitution, its fundamental theme

the current emergency. It has to be examined whether the constitution of Cyprus, being treated as a supreme law under Article 179, prevents in all

any circumstances, the enactment of a Law which in the opinion of the House of Representatives, acting under Article 61, is urgently needed in prevailing circumstances, especially where such circumstances have not been foreseen or provided for by the constitution itself. It has to be determined to what extent are the people of this country, who have elected the House of Representatives, prevented by the Cyprus constitution, (which has not originated through the exercise in times of freedom

independence of their original right,

through the sovereign will of whom it cannot be likewise amended— vide Article 182) from meeting an emergency situation which faces them, especially when such situation has neither been foreseen by the constitution, nor can it be resolved within its express letter but it also goes contrary to the very basic premise on which the constitution was conceived. To what extent is the House of Representatives, being an organ of the people

faced with a situation such as the present, entitled to act on behalf of such people

for their benefit in trying to meet such situation? In answering the above questions two widely accepted principles of constitutional law are to be borne in mind : (i) That the utmost restraint should be exercised by a court in approaching the issue of the alleged unconstitutionality of a law ; in case of doubt the court should lean in favour of the validity of such Law. In this respect it is useful to examine once again the position in the United States of America, where the possibility of judicial review of constitutionality has been accepted 232 since the beginning of the 19th century, leading later on to the adoption of similar patterns of judicial power in many countries in Europe

elsewhere. At p. 563 of an official publication, the " Constitution of the United States of America " (1952 ed.) the following commentary is to be found in relation to Article III section 2 of the American Constitution : " No act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt. Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State legislature is presumed to be constitutional until proved otherwise * beyond all reasonable doubt' ". (ii) that a court in interpreting

applying a constitution has to adopt, as much as possible, an experiential approach. The matter is put as follows by Pritchett on " The American Constitution "

application of the rules of logical thinking all have a useful place, but neither alone nor in combination can they supply the key to constitutional interpretation. There is a further factor, which Holmes designated as ' experience '. The experiential approach is one that treats the constitution more as a political than a legal d o c u m e n t . . . . It frankly recognizes that interpretation of the constitution will

must be influenced by present-day values. . . The goal of constitutional interpretation, it may be suggested, is the achieving of consensus as to the current meaning of the document framed in 1787, a meaning which makes it possible to deal rationally with current necessities

acknowledge the lessons of experience while still recognizing guidelines derived from the written document

the philosophy of limited governmental power which it sought to express ". With the above in mind let us approach the Cyprus Constitution

Law 33/64 which is alleged to be invalid for contravening it. As we have seen the Cyprus Constitution is neither the product of, nor can it at any given time in future be taken to represent, the expression of the sovereign will of the people of Cyprus ; this is so both because of its origins

because of Article 182. Moreover it is based on the sine qua non assumption of co-operation in Govern233 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNE* - GENERAL O F T H E REPUBLIC vMUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. 1964 ment of both Greek

Turkish Cypriots. Even its provision for meeting an emergency, Article 183, is based on the same premise. On the other hand it is the constitution THE ATTORNEY- of an independent

sovereign state, in accordance with GENERAL OF Article 1. It cannot be interpreted or be applied to the T H E REPIBLIC detriment of such state. It follows, therefore, that the v. doctrine of necessity must be deemed to be part of the Μ USTAFA scheme of the constitutional order in Cyprus so as to enable IBRAHIM the interests of the country to be met where the consti­

OTHERS tution, in view of its rigidity, one-sidedness

narrow Triantafyiiides, ambit does not contain adequate express provision for Jthe purpose. The less a constitution represents in fact the exercise of the original right of the people the more the Legislature ought to be treated as free to meet neces­ sities. Oct. 6, 7 8, °^_ I am of the opinion that Article 179 is to be applied subject to the proposition that where it is not possible for a basic function of the State to be discharged properly, as provided for in the Constitution, or where a situation has arisen which cannot be adequately met under the provisions of the Constitution then the appropriate organ may take such steps within the nature of its competence as are required to meet the necessity. In such a case such steps, provided that they are what is reasonably required in the circumstances, cannot be deemed as being repugnant to or inconsistent with the Constitution, because to hold otherwise would amount to the absurd proposition that the Constitution itself ordains the destruction of the State which it has been destined to serve. Even though the Constitution is deemed to be a supreme law limiting the sovereignty of the legislature, nevertheless, where the Constitution itself cannot measure up to a situation which has arisen, especially where such situation is contrary to its fundamental theme, or where an organ set up under the Constitution cannot function

where, furthermore, in view of the nature of the Constitution it is not possible for the sovereign will of the people to manifest itself, through an amendment of the Constitution, in redressing the position, then, in my opinion according to the doctrine of necessity the legislative power, under Article 61, remains unhindered by Article 179,

not only it can, but it must, be exercised for the benefit of the people. Then it cannot be said to be a case of legislation repugnant to, or inconsistent with, the provisions of the supreme 234 law, in contravention of Article 179, because it is legislation to meet a situation to which the supreme law itself is not, in view of its nature

provisions, applicable,

it cannot be made applicable to meet it ; there can thus be no question of the legislature exercising sovereignty in a field where the sovereignty of fundamental law is already established, by means of the Constitution.

with the Cyprus Constitution, in view of its origins

nature, it is all the more proper

necessary for the legislature to exercise its own powers, on behalf of the people, in matters of necessity. I am of the opinion that because of the " recent events " mentioned in the preamble to Law 33/64,

described already in an earlier part of this Judgment, a public necessity of the first magnitude had arisen for the judiciary to be enabled to function urgently, properly

adequately. That the proper discharge of the administration of justice constitutes a necessity, especially in times of upheaval, such as the present, cannot be reasonably disputed. It has been so aptly put in Decision 601/1945of the Greek Council of State where it was held that the situation under consideration «... άπετέλει πρόδηλον, έπιτακτικην και άναπότρεπτονανάγ­ κην, έπιβάλλουσαν όπως, προ παντός άλλου, άποκατασταθή ηθική και υπηρεσιακή τάξις εν τη λειτουργία των δικαστικών υπηρεσιών, αί όποΐαι συμβάλλουσι θεμελιωδώς εϊς τήν έμπέδωσιν της τάξεως και της ασφαλείας και είς την ένίσχυσιν της προς τήν εννοιαν τοΰ κράτους δικαίου εμπιστοσύνης των πολιτών, ήτοι εις τήν δημίουργίαν των απαραιτήτων προϋποθέσεων δια τήν εΐσοδον της χώρας εις τήν πολιτικήν ομαλότητα δι' ελευθέρων εκλογών....» (" . . .constituted an obvious, imperative

unavoidable necessity, making it necessary that, in priority to all else, order had to be restored from both the moral

service aspects in the functioning of judicial services, which contribute funda­ mentally to the restroration of order

security

to the strengthening of the confidence of the citizens in the rule of law,

, therefore, the creation of the indispensable conditions for a return of the country to normal political life through free elections . . . ")

this proposition was re-affirmed in Decision 624/1945 of the Greek Council of State, in identical terms. I am, further, satisfied that, in all the circumstances described above, it was not possible for the necessity to be met adequately through operation of the system of admini­ stration of justice envisaged in the Constitution. 235 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E RKPUBLIC v. MUSTAFA IBRAHIM

OTHERS Triantafyiiides, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC V. MUSTAFA IBRAHIM

OTHERS Triantafyiiides, J- With all the above in mind, I have come to the conclusion that the provisions in question of Law 33/64 are not excluded by Article 179 because they provide, parallel to the Constitution, for matters in which what has been envisaged by the Constitution was not operative in the circumstances,

because they arethe outcome of the exercise of legislative power to meet an urgent necessity. On the contrary, I am of the opinion that the said provisions of Law 33/64 are consistent with all-important provisions of the Constitution such as Article 30 (providing for the need for the administration of justice by courts), Article 35 (which states that the authorities of the Republic shall be bound to secure within the limits of their respective competence the efficient application of the Articles of the Constitution concerning Fundamental Rights

Liberties—

such application cannot be envisaged without functioning courts)

Article 1

, (which lays down that the regime of the State of Cyprus is presidential—

it is an indispensable notion of such a regime, which always entails the separation of powers into executive, legislative

judicial, that all such powers shall be functioning at all times as a balanced whole). Law 33/64 is a legislative measure which without purporting to repeal any of the relevant provisions of the constitution, which have been rendered inoperative by supervening events, sets up the necessary judicial machinery for the continued administration of justice in cases where the machinery provided for under the constitution has either broken down indefinitely or is liable to break down from time to time ;

it provides for the operation of such machinery through the same persons who had already been entrusted with the administration of justice bv means of the machinery provided for in the constitution. Thus, the same Judges who were vested with the exercise of the jurisdictions of the two highest courts—

under Articles 153

133

of the High Court of Justice could act for each other in certain eventualities—were entrusted, as Judges of the Supreme Court, with the exercise of the jurisdictions of both such courts ; the absence of neutral Presidents

the need for maximum efficiency in the difficult times in which they had to exercise their said jurisdictions made it ail the more reasonable

necessary for them to be brought together in one Supreme Court. Likewise, by making it possible for District Judges, subject to any direction of the Supreme Court, to try any case irrespective of the community of litigants, the 236 administration of justice has been enabled to go on even if Turkish Judges from time to time are to absent them­ selves from the courts as in the past. Even if any of the provisions concerned of Law 33/64 were to be found to be repugnant to or inconsistent with any provision of the constitution, I would again pronounce for their valid applicability, in view of the necessity which has arisen

the temporary nature of Law 33/64, which has been enacted to meet it, at a time when such necessity could not have been met by operation of the relevant pro­ visions of the constitution. In such a case 'necessity ren­ ders validly applicable what would otherwise be illegal

invalid. If the position was that the administration of justice

the preservation of the rule of law

order in the State could no longer be secured in a manner which would not be inconsistent with the constitution, a constitution under which the sovereign will of the people could not be expressed so as to regulate through an amendment of the fundamental law such a situation, then the House of Representatives, elected by the people, should be em­ powered to take such necessary steps as are warranted, by the doctrine of necessity, in the exigencies of the si­ tuation. Otherwise the absurd corollary would have been entailed viz. that a State,

the people, should be allowed to perish for the sake of its constitution ; on the contrary a constitution should exist for the preservation of the State

the welfare of the people. This principle has found proper expression in Decision 86/1945 of the Supreme Court of Greece as follows : «Κατά τήν άναγνωρίζουσαντό δίκαιον της ανάγκης θεωρίαν, έρειδομένην έπϊ τοΰ αξιώματοςsalus populi supreme lex, δύναται ή εκτελεστική εξουσία, ύπό τήν ιδίαν της εΰθύνην, νά έκδώση συντακτικήν πρδξιν, δι* ης αναστέλλεται, τρο­ ποποιείται ή καταργείται διάταξις τοΰ συντάγματος, αλλ* ύφ* ώρισμένας προϋποθέσεις, ήτοι εάν υφίσταται εμπό­ λεμος κατάστασις ή στάσις, κατεπείγουσα ή ανάγκη προς εκδοσίν της και αδύνατοςή ρύθμισις αυτής διά τής νομίμου εξουσίας. Ή εν καταστάσει ανάγκης εκδοθείσα ύπό τής κυβερνήσεως συντακτική πραξις, αλλά κατά παράβασιν τοΰ συντάγματος, παραμένει μεν αντισυνταγματική, δέον δμως νά έφαρμοσθή, και τά δικαστήρια δεν δύνανται νά αρνηθούν τήν εφαρμογήν αυτής ώς μή συμφώνου προς τό σύνταγμα». (" In accordance with the theory which re­ cognizes the law of necessity, based on the maxim salus 237 1964 O c t 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Triantafyiiides, J- 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPIBLIC v. MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J. populi suprema lex, the executive power may, on its own responsibility, do acts of constitutional effect, by which a provision of the constitution is suspended, amended or repealed, but under certain circumstances, that is if it exists a state of war or revolution, an urgent necessity for their doing

it is impossible to regulate the position by lawful authority. An act of constitutional effect made by the government at a time of necessity, in contravention, however, of the constitution, remains unconstitutional, but it has to be applied

the courts cannot refuse to apply it on the ground that it is not made in accordance with the constitution " ) . It is to be noted that the case of necessity accepted in the above passage by the Supreme Court in Greece is even a more radical one than the one arising in relation to the validity of Law 33/64. There executive acts regulating matters with legislative

constitutional effect have been held to be^validly applicable, whereas in the case of Law 33/64, it is an enactment properly emanating from a legislative organ, i.e. the House of Representatives

it does not purport to have constitutional effect but only it aims at filling a vacuum resulting through the inapplicability in prevailing circumstances of certain constitutional provisions. Counsel for respondents has also raised the question that the measures taken by the provisions sub judice, of Law 33/64, are wider than required to meet any necessity which mav have existed. In accordance with principles properly applicable to cases where the doctrine of necessity has been invoked it is for the judiciary to determine if the necessity in question actually exists

also if the measures taken were warranted therebv (vide, inter alia, Decision of the Greek Council of State 556/1945). It has alreadv been found that a necessity existed

that Law 33/64 has been enacted to meet it. It has alreadv been indicated that in mv opinion the measures enacted, bv means of the provisions concerned of such Law, were warranted bv such necessity. The submission, therefore, to the contrary, made on behalf of respondents, cannot be upheld. It is useful in any case to bear in mind that the exercise of control in this sphere can only aim at ensuring that certain limits have not been exceeded

within such limits the Government has a discretion of its own as to the measures to be adopted, 238 for the purpose of meeting an existing necessity. (Vide in this respect the " Conclusions from the Jurisprudence of the Council of State" in Greece ((1929-1959) p. 38). 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEY- For all the above reasons objection (b) of counsel for respondents cannot be sustained. GENERAL OF T H E REPUBLIC v. If I may make here an observation, by way of parenthesis, I am of the opinion that the system of justice that has been set up under Law 33/64, apart from being necessary in the circumstances, is also more consonant with the notion of justice

its requirements than the one which has been provided for under the Constitution. I come now to objection (a) taken on behalf of respondents, viz. that Law 33/64 lacks proper promulgation

I publication. The first thing to be noticed in relation to this objection is that the acts of promulgation

publication, though actions of the executive branch, are, nevertheless, in essence part of the legislative process involved in enacting legislation such as Law 33/64. In the official Gazette in which the said Law was published it is stated that it has been duly promulgated under Article 52 of the constitution. This is sufficient prima facie evidence of regularity. It has been, however, stated by the learned AttorneyGeneral that in fact it has been promulgated only by the President of the Republic alone

that it has been published in the official Gazette only in Greek. As explained by the Attorney-General, this course was adopted in view of the non-participation in the Government, since December 1963, of any person acting in the capacity of a Vice-President

because of the absence from duty of the requisite staff for translating

publishing in Turkish the Law in question. In view of what was put forward,- as above, by the Attorney-General, which I accept as correct, I have come to the conclusion that Articles 47 (e), 52

that to the extent to which they have not been complied with, they had been rendered inoperative by superventing events. Promulgation

publication, being necessary formalities in the course of the legislative process, had to be effected as best as pos239 MUSTAFA IBRAHIM A N D OTHERS Triantafyiiides, J- 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC v. MuSTArA IBRAHIM A M I OTHERS Triantafyiiides, J. sible in the circumstances. It would otherwise be absurd to hold that a Law, such as Law 33/64, which has already been held to have been validly enacted by the Legislature, in view of existing necessity, has not attained formal validity due to defects arising again out of the same emergency which created the necessity which Law 33/64 has been enacted to meet. In the same way as the Lagislature, when faced with an unforeseen by the constitution situation has had to act in discharge of its general duty to the State, likewise the President of the Republic

any appropriate executive organ involved in the publication of the said Law had to discharge their duty to govern

effect promulgation

publication to the extent possible in the circumstances. In circumstances such as the present, I am of the opinion, that the course adopted in promulgating

publishing Law 33/64 was duly warranted

validated by necessity. At times when due to supervening events substantive constitutional provisions cannot operate, it is not logical or proper to hold that measures designed to ensure continuance of essential functions of the State,

being otherwise valid in substance, are invalid or not in force because of lack of formalities arising out of the very situation which the measures taken were designed to meet. 1 have come to the conclusion, therefore, that the manner in which promulgation

publication of Law 33/64 has taken place is not repugnant to or inconsistent with the constitution because the relevant Articles, 47 (e) 52

3, in laving down their prerequisites, pre-suppose the cooperation

participation in government of the Turkish Cvpriot side, in so far as such participation is necessary for their operation ;

in the absence of such participation the requirements contained therein must be deemed to be. applicable onlv in so far as they can reasonably be satisfied in the circumstances

abated as regards the resl. Xo question could arise of any right of return having been defeated, because there can be no claim to the right of return by an organ not participating, at the time, in the discharge of the functions to which such right of return relates. Concerning, lastly, the submission of counsel for respondents that the above objections ought to have been referred bv this three-member court to the full court, I 240 am of the opinion that it is not properly founded, in view of the fact that paragraph 1 of Article 144 on which such submission was based has been rendered inoperative because of the non-functioning of the Supreme Constitutional Court. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL OF T H E REPUBLIC The said paragraph 1 of Article 144 is a procedural provision, not a substantive one. Its usefulness, applicability

operation is inexorably dependant upon the existence of the dichotomy of justice provided for under the constitution. Since under Law 33/64 the parallel competences of the Supreme Constitutional Court, in constitutional matters,

of the High Court of Justice

subordinate courts, in civil

criminal matters, have been placed into one judicial stream leading, in any case, for its final destination to one

the same Supreme Court, a provision such as the said paragraph 1 can no longer be deemed to be necessary, applicable or operative since the conditions precedent for its operation have ceased to exist. It follows that any questions of alleged unconstitutionality of legislation must now on be treated as legal issues arising in the proceedings to be determined at all levels of jurisdiction, subject always to the final say of the Supreme Court. The purpose for which such questions previously had to be referred to the Supreme Constitutional Court under paragraph 1 of Article 144 was because they were outside the competence of the High Court of Justice when sitting on appeal from subordinate courts in civil

criminal cases, except to the extent to which modifications under Article 188 were involved. Now that this court is vested with both the final competence to decide questions of alleged unconstitutionality

also with the competence of a final appeal tribunal the procedure under paragraph 1 of Article 144 has, by sheer force of events, been rendered both unnecessary

inapplicable. It is a procedural provision which because of its very nature

purpose cannot be applied, mutatis mutandis, within the realm of the exercise of the jurisdiction of the Supreme Court. So long as the Supreme Constitutional Court is not functioning as a separate judicial organ paragraph 1 of Article 144 has to be treated as non-operative. The cognate objection of counsel for respondents that under section 11

OTHERS TriantafyHides, J. 1964 Oct. 6, 7, 8, Nov. 10 T H E ATTORNEYGENERAL O F T H E REPUBLIC v. MUSTAFA IBRAHIM

OTHERS Triantafyiiides, J. It is correct that sub-section

for this reason the full Bench was given an opportunity to consider, in camera, whether it should have sat for the hearing of these appeals. By unanimous decision, however, it has been decided that, in all the circumstances of these cases, it was more proper for the present appellate quorum of three Judges of the court to continue dealing with these appeals. In this way not only the letter but the very spirit of section 11 have been complied with. In conclusion I would like to make the following general observations : The problem facing the court in these appeals may not have been novel in its nature but the circumstances in which it has arisen are sui generis indeed, in view of the nature of the Cyprus Constitution

the events which have led to the enactment of Law 33/64. The court, therefore, has had to find its own way as a supreme

sovereign judicial organ, guided by signposts set by judicial organs elsewhere. It has had to lay down the doctrine of necessity as it appeared to be applicable in the particular cases under examination. This judgment should not be considered as having indirectly resolved any problems other than those falling for decision in these cases. The exact fate of the constitutional structure, or any part thereof, has not been pronounced upon as it was not in issue in these cases. Each problem arising out of developments due to supervening events—

so much has happened since December, 1963—will have to be faced by this court only as

when it is raised before it. 242 The court will always be ready to do its duty, judicially

dispassionately, if called upon to do so by appropriate proceedings. It is a duty owed to the State

above all to the people, all the people, the fundamental rights

liberties of whom, in particular, this court will always safeguard as a sacred trust. JOSEPHIDES, J. : The questions which wehave to consider in these appeals raise points of great public importance. These questions were raised by counsel for the respondents in appeals made by the Attorney-General of the Republic against decisions of District Judges granting bail to Turkish Cypriot accused persons who had been committed for trial before the Assizes. The charges on which the respondents in Criminal Appeal No. 2729 were committed for trial werethat theycarried awarlike undertaking against the Greek Community of Cyprus, that they endeavoured by armed force to procure an alteration in the Government or laws of the Republic of Cyprus,

that they carried arms

ammunition. The offences were stated to have been committed on the 25th April, 1964, at " Pendadaktylos mountain range in the area of St. Hilarion", Kyrenia District. The main charges against the respondents in the other two appeals were that they carried on a war or warlike undertaking against the Greek Community of Cyprus at Ktima

Limassol, respectively,

that they endeavour