clr/1964/1964_1_377.pdf

(6)AND

(7)OF THE COURTS OF JUSTICE LAW 14/1960 AND GREEK COMMUNAL CHAMBER LAW 9/1962, and IN THE MATTER OF MAINTENANCE APPLICATION BY ANGEL1KI CH. G. PAVLOU AND OTHERS, Applicant, and CHARALAMBOS G. PAVLOU, Respondent. (Case No. 7/63) Constitutional Law—Husband and wife—Maintenance—Personal status—Civil disputes relating to personal status of members of the Greek Community—Exclusive jurisdiction of the Greek Communal Courts set up by the Greek Communal Courts Law, 1962 (Law of the Greek Communal Chamber No. 9o/1962 of the20thMay 1962)—Articles 61, 87.1 (a)(

1. c)(
2. d)152.2, and 160 of the Constitution—Position during the intervening period between the day of the coming into operation of the Constitution (i.e. the 16r/j August, 1960) and the day of the enactment of the aforesaid Law No. 9 of 1962 (i.e. the 20th May 1962)—By section 18 thereof, any decision or order issued by a court of the Republic during that period on a civil dispute relating to personal status of members of the Greek Community is deemed to have been validly made, as if it has been issued by a court constituted on the basis of that Law (viz. Law 9 of 1962, supra)—Validity of the said section 18— Though retrospective in its effect, section 18 is a perfectly valid legislative provision in no way repugnant to Articles 6 1 , 377 G. PAVLOU 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU AND OTHERS and 87, 152 and 160 of the Constitution—Therefore, the aforesaid section 18 covers, inter alia, maintenance orders made during the aforesaid period (supra) by the courts of the Republic originally under section 44 of the old Courts of Justice Law, Cap. 8 and, subsequently, under the similar section 40

(1)of the new Courts of Justice Law, 1950 (Law of the Republic No. 14 of 1960, dated the Mth December, I960) which replaced Cap. 8 (supra). CHARALAMBOS G. PAVLOU Constitutional Law—Retrospective legislation—Apart from certain specific exceptions, (e.g. such as the oneprovided in Article 24 of the Constitution), retrospective legislation is not repugnant to the Constitution—cf. Article 104.2 of the Constitution. Constitutional Law—Promulgation and publication of laws in the official Gazette of the Republic in both the official languages— Article 3.1 and 2 of the Constitution—Non-publication in Turkish of section 19 of the Greek Communal Courts Law, 1962 (supra)—This is not a defect in promulgation which should be treated asfatal to the validity of that Law—In view of the provisions of Article 3.6

(2)of the Constitution the nonpublication as aforesaid resulted in a difference between the Greek and Turkish texts of the said same Law—Which difference must be resolved in accordance with the provisions of Article 3.6

(2)of the Constitution viz. the Law in question being a Law of the Greek Communal Chambers, the Greek text should prevail. Constitutional Law—Unconstitutionality of laws or decisions— Reference to the former Supreme Constitutional Court of such questions by the Court before which it was raised— Article 144 of the Constitution—The question of unconstitutionality however, must be material for the determination of any matter at issue in the proceedings pending before such Court—In the instant case the question of unconstitutionality referred under Article 144 by the Greek Communal Court of Famagusta, viz. the unconstitutionality of section 18 of Law No. 9 of 1962 (supra), was held not to be material for the determination of any matter at issue at the time in the proceedings then pending before the said Court—Materiality within Article 144 of the Constitution—The court making the reference under Article 144 of the Constitution is expected to go into the issue of" materiality "—But the Superior Court is always entitled once seized of a reference under Article 144 to come, if needbe, to its own conclusionsin this respect. 378 Constitutional Law—The Courts of Justice Law, Cap. 8, section 44—Question of its unconstitutionality—If ever it becomes necessary to consider this question, it should be looked into, asfar as thefour months asfrom the 16th August 1960 (viz. date of the coming into operation of the Constitution) are concerned, in the light of the provisions in Article 190.1 of the Constitution. 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANCELIKI CH- G. PAVLOU A N D OTHERS and Article 144.1 of the Constitution reads as follows : CHARALAMBOS G. PAVLOU "

1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court." This is a reference made under Article 144 of the Constitution by the Greek Communal Court of Famagusta, set up by the Greek Communal Courts Law, 1962, (Law of the Greek Communal Chamber No. 9 of 1962). The question so referred to the former Supreme Constitutional' Court for its determination was : " Whether having regard to Articles 61, 87, 152 and 160 of the Constitution, section 18 of Law No. 9/1962 of the Greek Communal Chamber, is unconstitutional ". The case arose in the circumstances outlined hereinafter. A. P., a lady of Famagusta, had applied to the District Court of Famagusta in October 1960 against C. P., her husband, for an order of maintenance of herself and their infant children under section 44 of the Courts of Justice Law, Cap. 8, then in force. On November the 8th, 1960, the President of the District Court made a consent order whereby the husband was ordered to pay maintenance at the rate of fifteen pounds per month as from the 1st December
2. Section 44 of Cap. 8 reads as follows : "

(1)If any ecclesiastical tribunal of the Greek Orthodox Church would have power to entertain a matrimonial cause brought by a wife in respect of her marriage, and the husband has been guilty of wilful neglect to provide reasonable maintenance for his wife or infant children 379 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 of the marriage, the District Court, on the application of the wife, may make an order (hereinafter in this section referred to as " maintenance order") directing the hus­ band to make to her such periodical payments as may be just. A N G E Lικι C H . G. PAVLOU AND OTHERS and CHARALAMBOS G. PAVLOU

(2)For the purposes of sub-section

(1), an ecclesiastical tribunal of the Greek Orthodox Church shall be deemed to have power to entertain a matrimonial cause if it is proved or admitted before the court that either party is a member of the Greek Orthodox Church and the marri­ age has been celebrated in accordance with the rites of that Church, unless it is shown that in the circumstan­ ces of the case the tribunal would have no such power.

(3)The jurisdiction of the District Court to make a maintenance order shall be exercised as follows : (

1. a)The President of a District Court may order such pe­ riodical payments as may be just ; (
2. b)A District Judge may order such periodical payments not exceeding the equivalent of twenty five pounds a month ; (
3. c)A Magistrate may order such periodical payments not exceeding the equivalent of ten pounds a month.

(4)Where any ecclesiastical tribunal of the Greek Orthodox Church has in the exercise of its jurisdiction annulled or dissolved a marriage, the President of a Dist­ rict Court on the application of the wife may make such provision as appears just with respect to the maintenance and education of the children the marriage of whose pa­ rents is the subject of the proceedings.

(5)(

1. a)No maintenance order shall be made in respect of any period prior to the date of the application for such order. (
2. b)No sum due on a maintenance order for more than one year shall be recoverable.

(6)The court may, from time to time, vary any main­ tenance order made under this section.

(7)In proceedings under this section, the court fees and advocates' fees shall be regulated in accordance with the Rules of Court in force for the time being on the basis of— (

1. a)in the case of court fees, the monthly payment claimed ; 380 (
2. b)in the case of advocates' fees, the monthly payment ordered by the court." Shortly after the said order the Courts of Justice Law, Cap. 8 was replaced by the new Law of the Republic No. 14 of 1960 (of the 17th December 1960) viz. the Courts of Justice Law, 1960, section 40

(1)of which is almost identical with section 44 of the old Law, Cap. 8 (supra). The Supreme Constitutional Court in the case Tyllirou and Tylliros (3 R.S.C.C. 21) (decided in January 1962) held that section 40

(1)of the new Courts of Justice Law, 1960, (supra), which as already stated replaced Cap. 8 (supra), was unconstitutional on the broad ground that " application for maintenance " is a matter of civil dis­ pute " relating to personal status " in the sense of Articles 87, 152 and 160 of the Constitution (infra), and, conse­ quently, the enactment of a provision such as section 40

(1)of Law 14 of 1960 (supra) was, in view of these Articles, expressly reserved to the Communal Chambers, and not within the competence of the House of Representatives. Article 61 of the Constitution reads as follows : " 6 1 . The legislative power of the Republic shall be exercised by the House of Representatives in all matters except those expressly reserved to the Communal Cham­ bers under this Constitution." Article 87.1 of the Constitution provides : " 87.1. The Communal Chambers shall, in relation to their respective Community, have competence to exer­ cise within the limits of this Constitution and subject to paragraph 3 of this Article, legislative power solely with regard to the following matters : ( « ) • • * (*) (

1. c)personal status (
2. d)the composition and instances (βαθμούςδικαιοδοσίας — dereceleri) of courts dealing with civil disputes relating to personal status and to religious matters ; (
3. e)etc. etc." 381 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU A N D OTHERS and CHARALAMBOS G. PAVLOU 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU A N D OTHERS and Article 152.2 of the Constitution reads as follows : " 2. The judicial power with respect to civil disputes relating to persona! status and to religious matters which are reserved under Article 87 for the Communal Chambers shall be exercised by such courts as a communal law made under the provisions of this Constitution shall provide." CHARALAMBOS G. PAVLOU Article 160.1 of the Constitution provides : " 1. A Communal law made by the Communal Chamber concerned shall, subject to the provisions of this Constitution, provide for the establishment, composition and jurisdiction of courts to deal with civil disputes relating to personal status and to religious matters which are reserved for the competence of the Communal Chambers by the provisions of this Constitution." In May 1962 the Greek Communal Chamber passed at last the Greek Communal Courts Law, 1962, (Law of the Greek Communal Chamber No. 9 of 1962, published in the Official Gazette of the 20th May, 1962), setting up the Greek Communal Courts envisaged by the Constitution (vide : Articles 87, 152 and 160, supra) which, be it noted, came into operation almost two years earlier, precisely on the 16th August 1960. On November 14, 1962, the aforementioned husband, C. P., applied to the Greek Communal Court of Famagusta (set up by the aforesaid Law No. 9 of 1962) for a variation of the original order of maintenance of the 8th November, I960, made by the District Court of Famagusta, as stated already, under section 44 of the old Courts of Justice Law, Cap. 8 (supra). On January 22nd, 1963, that application of the husband came up for hearing and it was decided to consolidate it with an application made by the wife for the recovery of the accumulated arrears. On the 23rd January, 1963, counsel appearing for the husband raised the question of the unconstitutionality of section 18 of the Greek Communal Courts Law, 1962, (Law No. 9 of 1962, supra) whereupon this reference was made under Article 144 of the Constitution by the Greek Communal Court of Famagusta to the former Supreme Constitutional Court, the question to be determined as referred being : " Whether having regard to Articles 61, 87, 152 and 160 of the Constitution, section 18 of Law No. 9 of 1962of the Greek Communal Chamber is unconstitutional ". 382 The aforesaid section 18 of Law No. 9 of 1962 (supra) provides : " Notwithstanding the provisions of this Law, any decision or order issued by a Court of the Republic during the period from 16th August, 1960 (Editor's note: i.e. the day on which the Constitution came into operation) until the coming into force of this Law (Editor's note : i.e. the 20th May, 1962), on a civil dispute relating to personal status of members of the Greek Community, will be deemed to have been validly made and as having full force, as if it has been issued by a first-instance or appellate court, as the case may be, constituted on the basis of this Law ". The Greek text of the section is set out in the judgment of the court. Counsel for the husband, having in mind the case Tyllirou and Tylliros (supra), whereby section 40 (I) of the new Courts of Justice Law, 1960, (similar in all respects to section 44 of Cap. 8 under which the original order of maintenance was given on the 8th November, 1960, (supra) was held to be unconstitutional, took it for granted that section 44 of Cap. 8, (supra) was also unconstitutional and that, therefore, the aforesaid order of maintenance of the 8th November, 1960, had been invalidly made by the District Court of Famagusta. On that assumption, he raised the unconstitutionality of section 18 of Law No. 9 of 1962 (supra), which seeks to validate, inter alia, orders for maintenance issued by the courts of the Republic before the enactment of that Law. During the proceedings before the former Supreme Constitutional Court the question was also raised by direction given on the 4th February, 1963, as to whether, in view of the fact that section 19 of the aforesaid Greek Communal Courts Law, 1962 (supra), published as already stated in the Official Gazette of the Republic on the 20th May, 1962, has not been included in the text of that Law as published in Turkish in the Official Gazette, there has not been proper publication of the said Law, thus invalidating such Law as a whole. Held,

(1). As to the materiality of the question referred : (

1. a)Though it is always expected of the court making the reference to go into the issue of materiality this court is always entitled " once seized of a reference, to come, if need 383 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANCELIKI C H . G. PAVLOU A N D OTHERS and CHARALAMBOS G. PAVLOU 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU A N D OTHERS and CHARALAMBOS G. PAVLOU be, to its own conclusions in this respect". (The Mayor, etc. etc., of Nicosia and Christakis Loizides, 1 R.S.C.C. 59, at p. 60). (
2. b)The issue of unconstitutionality of section 18 of Law No. 9 of 1962 (supra) appears to have been raised on the assumption that the order of maintenance made on the 8th November, I960, by the District Court of Famagusta (supra) under section 44 of the Courts of Justice Law, Cap. 8, has been made invalidly in view of the case of Tyllirou and Tylliros (supra). But this issue itself was not raised, i.e. the unconstitutionality of the said section 44, at the time when the order in question was made. (
3. c)In our opinion, therefore, until such issue shall be raised and determined, the question of the constitutionality of section 18 of Law No. 9of 1962 (supra) which seeks to validate decisions or orders of maintenance given before the enactment of the said Law No. 9/1962 and after the 16th August, I960, (viz. day on which the Constitution came into force), cannot be a " matter at issue " in the proceedings in question before the Greek Communal Court of Famagusta (which court made this reference), in the sense of Article 144.1 of the Constitution. (
4. d)And until the question of the unconstitutionality of section 44 of Cap. 8(supra) is properly raised and determined, that section 44 remains constitutional for so long as it was otherwise in force, decision in the case of Tyllirou and Tylliros (supra) operating by virtue of Article 144.3 of the Constitution so as to render section 40 (I) of the new Courts of Justice Law, 1960 (supra) "inapplicable" to the particular proceedings of that case only, the said decision being, thus, of mere guidance value in other proceedings. (
5. e)From the record of the proceedings before the Greek Communal Court, it appears that counsel for the husband in raising the issue of the unconstitutionality of section 18 of Law 9/62 arbitrarily took it for granted that section 44 of Cap. 8 was unconstitutional. Nor can it be said that the learned Greek Communal Court Judge was bound to treat this assumption by counsel as amounting to the raising of the question of the unconstitutionality of section 44 of Cap. 8 and to refer it also. This court, therefore, cannot under Article 144 determine, as such, the question referred to it. 384 (/) As, however, the question of the unconstitutionality of section 18 of Law No. 9/1962 has been· argued, this court will proceed to indicate its opinion thereon, as if it had been material, so as to guide the parties in case such issue were ever to become material (as in The Republic and Zachariades, 2 R.S.C.C. 1). 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU AND OTHERS The Republic and Zachariades, 2 R.S.C.C. I, followed. Held, 2. On the issue of the constitutionality of section 18 of the Greek Communal Courts Law, 1962 (Law of the Greek Communal Chamber No. 9 of 1962) (supra) : (
6. a)Section 18 (quoted already supra) provides in effect that the Courts of the Republic in making, inter alia, maintenance orders between the 16th August, 1960 and the enactment of the aforesaid Law on the 20th May, 1962 (supra), should be deemed to have been Greek Communal Courts. (
7. b)There is nothing to be found in the Constitution to the effect that laws cannot be enacted with retrospective effect ; on the contrary, Article 24, which prevents the enactment of certain retrospective legislation, clearly seems to imply that otherwise retrospective legislation is not contrary to the Constitution. (
8. c)The provisions of section 18, which are intended to bridge a gap which existed between the coming into force of the Constitution on the 16th August, 1960, and the enactment of Law 9/1962, (supra) being provisions of a Law which was enacted by the competent body under the Constitution and being intended to remedy the default of such body in not enacting earlier the said Law, are in no way repugnant to Articles 61, 87, 152 and 160, but, on the contrary, they are consistent with the very object of such Articles. Held, 3. Regarding the question raised in connection with the non-publication in Turkish of section 19 of Law No. 9 of 1962 (supra) : The court is of the opinion that in view of the provisions of Article 3.6

(2)of the Constitution, to the effect that the prevailing text of any law of a Communal Chamber published in the official Gazette shall be that of the language of the Communal Chamber concerned, the non-publication in Turkish also of section 19 of the said Law No. 9/1962 is not a defect in promulgation whi;h should be treated as fatal 385 and CHARALAMBOS G. PAVLOU 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU A N D OTHERS and CHAHALAMBOS G. PAVLOU to the validity of the Law in question, but has resulted in a difference between the Greek and Turkish texts of the said Law which is to be resolved in accordance with the abovecited provisions of Article 3.6

(2). The Greek text, therefore, should prevail. Order in terms. Cases referred to : The Mayor etc., Nicosia and Christakis Loizides, I R.S.C.C. p. 59, at p. 60, applied; Tyllirou and Tylliros, 3 R.S.C.C. p. 21 ; The Republic and Zachariades, 2 R.S.C.C. p. 1, followed. Per curiam : If it ever becomes necessary to consider the constitutionality of section 44 of the Courts of Justice Law, Cap. 8, after the day of the coming into operation of the Constitution (i.e. the 16th August, I960), it will have to be examined whether or not Article 190 of the Constitution can be taken to be applicable, as far as the first four months after the I6th August, 1960, are concerned, to the period intervening until the establishment of the Greek Communal Courts. Note: Article 190.1 of the Constitution provides: I. Subject to the ensuing provisions of this Article any court existing immediately before the date of the coming into operation of this Constitution shall, notwithstanding anything in this Constitution, as from that date and until a new law is made regarding the constitution of the courts of the Republic and in any event not later than four months from that date, continue to function as hitherto but constituted, as far as practicable, in accordance with the provisions of this Constitution : Provided that any pending proceedings, civil or criminal, part heard on the date of ihe coming into operation of this Constitution shall continue and be disposed of, notwithstanding anything contained in this Constitution, by the court as constituted in such a case. Per curiam : The issue of the validity of the order of maintenance made on the 8th November, I960, under section 44 of Cap. 8 need not affeel the course of the proceedings before the Greek Communal Court as far as fixing the amount to be paid as maintenance is concerned, because 3S6 even though the said court is faced with an application to vary the order made on the 8th November, 1960, it is open to it to make a new maintenance order taking into consi­ deration the order previously made as relevant factor only. Reference. 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI Reference made under Article 144 of the Constitution by the Greek Communal Court of Famagusta of the question whether having regard to Articles 61, 87, 152 and 160 of the Constitution, section 18 of Law 9/62 of the Greek Com­ munal Chamber, is unconstitutional, in Application No. 13/60 for an order of maintenance of applicant and her infant children, against her husband, under section 44 of the Courts of Justice Law, Cap.

1. M. Papas, for the applicant. J. A. Kaniklides, for the respondent. G. C. Tornaritis, for the Greek Communal Chamber. M. Spanos, Counsel of the Republic, on behalf of the Attorney-General. Cur. adv. vult. The facts sufficiently appear in thejudgment of the court delivered by : TRIANTAFYLLIDES, J.: This is a reference made under Article 144 of the Constitution by the Greek Communal Court of Famagusta. The question as referred is : " Whe­ ther having regard toArticles 61,87, 152 and 160 of the Cons­ titution, section 18 of Law 9/1962 of the Greek Communal Chamber, is unconstitutional " . During the proceedings the question was also raised, by Direction given on the 14th February, 1963, as to whether, in view of the fact that section 19 of Law 9/62 published in the Official Gazette on the 20th May, 1962, has not been included in the text of such Law as published in Turkish in the said official Gazette, there has not been proper publi­ cation of the said Law 9/62, thus invalidating such Law as a whole. Section 18 of Law 9/62 (The Greek Communal Courts Law, 1962) is a transitional provision and reads as follows :— «
2. Παρά τάς διατάξειςτοΰ παρόντος Νόμουοιαδήποτε άπόφασις ή διάταγμα εκδοθέν ύπό δικαστηρίουτης Δημο­ κρατίας διαρκούσης της περιόδου από 16ης Αυγούστου I960, μέχριτης ημέραςενάρξεωςτης Ισχύοςτοΰπαρόντος Νόμου επί αστικής διαφοράς άφορώσης εις προσωπικόν θεσμόν μελών της 'Ελληνικής Κοινότητος θα θεωρήται 387 C H . G. PAVLOU A N D OTHERS and CHARALAMBOS G. PAVLOU 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOU AND OTHERS and CHARAI.AMBOS G. PAVLOU ώς εγκύρως εκδοθείσα και θα εχη πλήρη ϊσχύν ως έάν εΐχεν έκδοθή ύπό πρωτοβαθμίου ή δευτεροβαθμίου δι­ καστηρίου, ώς θα ήτο ή περίπτωσις, συσταθέντος επί τη βάσει τοΰ παρόντος Νόμου.» (" Notwithstanding the provisions of this Law, any deci­ sion or order issued by a court of the Republic during the period from the 16th August, 1960, until the coming into force of this Law, on a civil dispute relating to personal status of members of the Greek Community, will be deemed to have been validly made and as having full force, as if it has been issued by a first-instance or appellate court, as the case may be, constituted on the basis of this Law " ) . The learned Greek Communal Court Judge decided on the 23rd January, 1963, to make this reference in the follow­ ing circumstances :— A certain, Angeliki Pavlou of Famagusta, had applied to the District Court of Famagusta in October, 1960, against her husband Charalambos Pavlou, of Famagusta, for an order of maintenance of herself and her infant children, under scetion 44 of the Courtsof Justice Law, Cap.
3. Even­ tually, the application (No. 13/60, of the District Court, Famagusta) came up before the President of the Court on the 8th November,
4. On that day, an order by consent was made whereby the respondent-husband was ordered to pay maintenance at the rate of £15 per month as from the 1st December, I
5. On the 14th November, 1962, the said husband applied to the Greek Communal Court of Famagusta, which had been set up under Law 9/62, for a variation of the maintenance order made on the 8th November, 1960, and also for an order directing that accumulated arrears should be paid off by smaller monthly instalments. On the 22nd January, 1963, the application of the husband came up for hearing and it was decided to consolidate it with an application made by the wife for the recovery of the accumulated arrears. On the 23rd January, 1963, counsel for the husband raised the question of the unconstitutionality of section 18 of Law 9/62, whereupon this reference was made. The court has first examined the materiality, of the question referred, for the determination of matters at issue in the relevant proceedings. Though it is always expected of the court making the reference to go into this issue of materiality this court is always entitled " once seized of a 388 reference, to come, if need be, to its own conclusions inthis respect ". (The Mayor, etc., Nicosia and Christakis Loizides, 1 R.S.C.C. p. 59 at p. 60). The issue of the constitutionality of section 18 appears to have been raised on the assumption that the order made on the 8th November, 1960, under section 44 of the Courts of Justice Law, Cap. 8, has been made invalidly. But this issue itself was not raised, i.e. the constitutionality of the said section 44, at the time when the order in question was made. In our opinion, until such issue shall have been raised and determined, the question of the constitutionality of section 18which seeks to validate decisions of maintenance given before the enactment of Law 9/62, and after the 16th August, 1960, cannot be a " matter at issue " in the proceedings in question, in the sense of Article 144.
6. It is correct that in the case of Tyllirou and Tylliros (3 R.S.C.C, p. 21), it was held that section 40

(1)of the Courts of Justice Law, 1960 (14/60) which replaced the Courts of Justice Law, Cap. 8, was unconstitutional. It is correct also that the relevant provisions of section 44 of Cap. 8 and of section 40 of Law 14/60 are closely similar and in pari materia. The decision, however, in Tyllirou and Tylliros, which by virtue of Article 144.3 operates so as to rendersection 40

(1)of Law 14/60 " inapplicable " to the particular proceedings of that case only and can be of mere guidance value in other proceedings, does not necessarily lead to the conclusion that section 44 of Cap. 8 was also unconstitutional on the 8th November, 1960, when the maintenance order concerned was made. Until the question of its unconstitutionality is raised, section 44 of Cap. 8 remains constitutional for so longasitwas otherwise in force and the fact that section 18 of Law 9/62 seeks to validate, inter alia, maintenance orders made from the 16th August, 1960, onwards, ex abundante cautela, cannot be taken as laying down the unconstitutionality of section 44 of Cap. 8 after the said date, a thing which, in any case, could not have been laid down by Law 9/

1. If it ever becomes necessary to consider the constitutionality of section 44 of Cap. 8, after the 16th August, 1960, it will have to be examined whether or not Article 190 can be taken to be applicable, as far as the first four mDnths after the 16th August, 1960, are concerned, to the period intervening until the establishment of Communal Courts. In view of the foregoing, we have come to the conclusion that the question referred, viz. the unconstitutionality of section 18 of Law 9/62, was not material for the determina389 • 1963 Feb. 14, 28, 1964 Oct. 15, Dec. 3 ANGELIKI C H . G. PAVLOD ANO OTHERS and CHARALAMBOS G. PAVLOU 1963 Feb. 14, 28, 1964 Oct. IS, Dec. 3 ANCELIKI C H . G. PAVLOU A N D OTHERS and CHARALAMBOS G. PAVLOU tion of any matter at issue, at the time, in the proceedings before the Greek Communal Court of Famagusta, because no question of the unconstitutionality of section 44 of Cap. 8 had first been properly raised. From the record of the proceedings before the Greek Communal Court, it appears that counsel for the husband in raising the issue of the unconstitutionality of s. 18 of Law 9/62 arbitrarily took it for granted that s. 44 of Cap. 8 was unconstitutional. Nor can it be said that the learned Greek Communal Court Judge was bound to treat this assumption by counsel as amounting to the raising of the question of the unconstitutionality of section 44 of Cap. 8 and to refer it also. This court, therefore, cannot under Article 144 determine, as such, the question referred to it. As, however, the question of the unconstitutionality of section 18 of Law 9/62 has been argued, this court will proceed to indicate its opinion thereon, as if it had been material, so as to guide the parties in case such issue were ever to become material (as in The Republic and Zacharias, 2 R.S.C.C, p. 1). Section 18,which has been quoted in full already, provides in effect that the courts of the Republic, in making,inter alia, maintenance orders between the 16th August, 1960, and the enactment of Law 9/62, should be deemed to have been Greek Communal Courts. The question, thus, arises as to whether such retrospective provision is valid. There is nothing to be found in the Constitution to the effect that laws cannot be enacted with retrospective effect ; on the contrary, Article 24, which prevents the enactment of certain retrospective legislation, clearly seems to imply that otherwise retrospective legislation is not contrary to the Constitution. It is indeed accepted that, with certain recognized exceptions, as in the case of the existence of vested rights, with which we are not concerned in this case, there is no objection to legislation being enacted with retrospective effect, so long as it does not offend against the Constitution. Actually Article 104.2 provides in relation to laws of the Communal Chambers that " A communal Law shall come into operation on its publication in the official Gazette of the Republic unless another date is provided by such law ". Law 9/62 has been published on the 20th May, 1962, in the official Gazette. No other date is provided for in connection with the coming into effect of its substantive provisions. By virtue of such provisions Greekjudicial officers of the Republic are designated to man the Greek Communal Court as from that date. 390 Section 18 of the said Law is not one of its substantive provisions. It is a transitional one. It appears to us that it contains therein, by its very terms, clear provision that in as so far as it is concerned, Law 9/62 must be deemed to have come into effect on the 16th August, 1960, designating the judicial officers who dealt with civil disputes relating to personal status until the enactment of Law 9/62, as judges of Greek Communal Courts for the purpose. We are of the opinion that the provisions of section 18, which are intended to bridge a gap which existed between the coming into force of the Constitution on the 16th August, 1960, and the enactment of Law 9/62, being provisions of a Law which was enacted by the competent body under the Constitution and being intended to remedy the default of such body in not enacting earlier the said Law, are in no way repugnant to Articles 61, 87, 152 and 160 but, on the contrary, they are consistent with the very object of such Articles. We come now to the question raised inconnection with the publication of section 19 of Law 9/
2. Section 19 is also a transitional provision providing that the period between the 16th August, 1960, and the coming into operation of Law 9/62 shall not be taken into account in relation to any proceedings which had to be instituted within a prescribed period of time. The court is of the opinion that in view of the provisions of Article 3.6 of the Constitution, to the effect that theprevailing text of any law of a Communal Chamber published in the official Gazette shall be that of the language of the Communal Chamber concerned, the non-publication in Turkish also of section 19 of Law 9/62 "is not a defect in promulgation which should be treated as fatal to the validity of the Law in question, but has resulted in a difference between the Greek and Turkish texts of the said Law which is to be resolved in accordance with the above-cited provisions of Article 3.6 In concluding we would observe that the issue of the validity of the order of maintenance made on the 8th November, 1960, under sect. 44 of Cap. 8, need not affect the course of the proceedings before the Greek Communal Court as far as fixing the amount to be paid as maintenance is concerned, because even though the said Court is faced with an application to vary the order made on the 8th November, I960, it is open to it to make a new maintenance order taking into consideration the order previously made as a relevant factor only. Order in terms. yn 1963 Feb. 14, 28, 1964 Oct. IS, Dec. 3 ANGELIKI C H . G. PAVLOU A N D OTHERS and CHARALAMBOS G. PAVLOU