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Obsah (4)Article 146Article 23Article 25Article 35

3 C.L.R. 1976 June 19 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION 1. PANK.YPRIOS SYNTECHNIA DIMOSION YPALLILON, 2. LELLA HADJIOANNOU AND OTHERS, Applicants, v. THE MUNICIPAL

Article 146,in

Administrative Law matters exclusive, this doesnot exclude reviewprocedureprovidedfor by a Law—Review procedure,

paragraph (d) of the proviso to section 157

(1)of Cap. 240, not a step necessaryfor the completion of the relevant administrative process but only an optional administrative remedy—Applicants couldmake a recourse

the above Article, against the imposition of professional tax, even though they did not resortfirst to the review procedure. Professional tax—Nature of—Imposition ofprofessional tax on Public Officers—

paragraph (c) of proviso to section 157

(1)(as amended) of the Municipal Corporations Law, Cap. 240 (which continued to be inforce by virtue of section 8
(2)of Law 64 of 1964)and Part I of the Tenth Schedule to the Law (asamended)— Does not contravene Articles 25, 23, 28, 35 and 192 paragraphs
(1)and 1(b). Words and phrases—"Profession for profit" in section 156 of the Municipal Corporations Law, Cap. 240. 20 Statutes —Construction —Proviso—Whether "repugnant"—Principles applicable—Paragraph (c) of proviso to section 157
(1)of the Municipal Corporations Law, Cap. 240—Not a mere proviso but 117 PASYDY & Others v. M'ty Nicosia
(1978)a provision extending and supplementing the main part of section 157. Constitutional Law—Constitutionality of legislation—Principlesapplicable—Burden of establishing that statute is unconstitutional— Paragraph (
  1. c)of proviso to s. 157(I) of the Municipal Corpora- 5 tions Law, Cap. 240 not contrary to Articles 23, 25, 28, 35 and 192 paragraphs (I) and 7(b). Administrative Law—Administrative Court—Matters of legislative, and in particular of fiscal, policy are within the sphere of the Executive and Legislative powers—Principles on which Court will \Q interfere in a matter of fiscal policy. Public Officers—Payment ofprofessional tax—Not contrary to Articles 23, 25, 28,35and 192paragraphs(I) and! (b)of the Constitution. Municipal Corporations Law, Cap. 240—Paragraph (
  2. c)of proviso to section 157
(1)of the Law not contrary to Articles 23, 25, 28, ]5 35 and 192 paragraphs
(1)and 1(b) of the Constitution. Applicant No. 1, which is a trade union of persons in the public service, and the individual applicants, who are all public officers, complain against the decision of the respondent Municipality to impose professional tax on the individual applicants. The legislative* provisions governing the imposition of the subjudice tax are paragraph (c)of the proviso to sub section
(1)** of section 157 of the Municipal Corporations Law, Cap. 240 and Part I of the Tenth Schedule to the Law, which have continued to be in force by virtue of section 8
(2)of the Municipal 25 Corporations Law, 1964 (Law 64/64). ·* See all relevant legislative provisions at pp. 125-32 post. Section 157
(1)proviso paragraph (c) reads as follows: "157
(1)Any person desiring to carry on, exercise or practise, for profit, any business, trade, calling or profession within any municipal limits shall apply to the council for a licence and the council shall determine the fee payable therefor, not exceeding the appropriate fee set out in Part 1 of the Tenth Schedule to this Law: Provided that (
  1. a)(
  2. b)(
  3. c)The council prescribes in accordance with this paragraph the fees payable by permanent officers and servants of the Republic and in the service of the Evcaf Office without the submission by them of an application for a licence;". 118 20 3 C.L.R. PASYDY &Others v. M'ty Nicosia Counsel for the applicants contended: 5 10 (
  4. a)That the professional tax in question is in reality a fee and, therefore, it could only be demanded in return for a service rendered by the respondent municipality; that the service concerned in the present instance is the procedure by means of which persons other than public officers apply and obtain professional licences and are entered in the relevant register; and that in the case of public officers though no such service is rendered, because paragraph (
  5. c)of the proviso to section 157
(1)does not require them to apply for a professional licence, they nevertheless have to pay professional tax. 15 (
  1. b)That the imposition of the professional tax in question amounts to a contravention of Article 25* of the Constitution. 20 (
  2. c)That the professional tax results in an infringement of the proprietary rights protected

Article 23

of the Constitution'in that there results deprivation of money of the applicants when they pay the professional tax imposed'on them. 25 30 35 (

  1. d)That paragraph (
  2. c)of the proviso to subsection (!) of section 157 constitutes a "repugnant proviso" because though—allegedly—the public officers are not working for profit it is expressly provided in the relevant legislation, particularly in section 156, that the professional tax is imposed in relation to the carrying on, practice or exercise of any business, trade, calling or profession "for profit". (
  3. e)That Article 28 of the Constitution has been contravened because there is not made, as regards professional tax, sufficient differentiation as between public officers on the one hand and private employees on the other, though the two categories differ in status. (
  4. f)That Article 35** of the Constitution has been contravened. It has been submitted, in this connection, that, since

this Article the Executive Power has * Quoted at p. 136 pou. '* See p. 140 post. 119 PASYDY & Others v. M'ry Nicosia

(1978)to secure the efficient application of the provisions of the Constitution safeguarding fundamental rights and liberties, it has to safeguard the right of public officers to carry out their duties without having to pay professional tax because of doing so, as without the 5 functioning of the public service there can be no effective protection and proper enjoyment of the fundamental rights and liberties of the citizens. (
  1. g)That because public officers are in any event bound to work in order to carry out their duties they should not 10 have to pay professional tax. It has been pointed out, in this connection, that in Greece public officers are exempted from theobligation to pay professional tax. In addition to the above contentions the Court dealt also (
  2. a)15 with the issue of whether or not, in view of paragraph (d)*in the proviso to subsection
(1)of section 157,which makes provision for administrative review of the relevant decisions of the respondent municipality, thesubjudiceimposition of professional tax on the individual applicants are finalized administrative 20 acts which could be attacked by means of a recourse and (b) with an issue relating to Article 192** of the Constitution, paragraphs
(1)and 7 (b). Held,(J) (on the issue whether or not the imposition ofprofessionaltax on the individual applicants arefinalizedadministra- 25 tive acts). That though the jurisdiction of this Court in administrative law matters is exclusive there is nothing in such article to prevent procedures for administrative review; that the review procedure

paragraph (d) of the proviso to section 157

(1)of Cap. 240, is not a step necessary for the completion 30 of the relevant administrative process but only an optional administrative remedy and, consequently, these recourses could be made by the applicants even though they did not resort first to the reviewprocedure (see Petrolina Ltd.v. The Municipal Committeeof Famagusta
(1971)3 C.L.R. 420 at pp.423-425). 35 • See p. 132 post. ** See p. 141 post. 120 3 C.L.R. 5 10 15 20 25 30 35 PASYDY & Others v. M'ty Nicosia Held, (II) (on the issue relating to Article 192,paragraphs
(1)and 1(
  1. b)of the Constitution). That it cannot be regarded as a term or condition of serviceof public officers who were employed by the Government of the Colony of Cyprus prior to the coming into operation of the Constitution on August 16, 1960, and who have continued to be members of the public service thereafter, that they are to pay their professional tax in the same manner as wasprovided for, prior to 1960,by means of the 10th Schedule to Cap. 240. Held, (III) on contentions (
  2. a)to (
  3. g)above:
(1)That the professional tax in question is a tax (see Voyias v. The Republic
(1974)10 J.S.C. 909-916) which has, also, the attributes of a fee; and that though a service should, always, be rendered in return for a fee to be collected from a citizen, the service rendered in return for the professional tax in the instant case is not the formal administrative process of applying and obtaining a licence because other services are rendered by the respondent municipality, in the exercise of powers such as those set out in sections 123 to 126 of Cap. 240 for the benefit of all those who work within its municipal limits. 2 (a) That the professional tax is not imposed in a manner affecting directly, as such, the right of every person,

Article 25

, to practise any profession or to carry on any occupation, trade or business, and therefore, itcannot beheld to amount to a contravention of that Article (see, also, Voyias v. The Republic

(1974)10 J.S.C. 909 at pp.. 936-937). Murdoch and Others v. Commonwealth of Pennsylvania, 87 L. Ed. 1292 disstinguishable from the present case. 2 (
  1. b)That there is nothing unconstitutional in regulating the exercise of a profession or occupation by means of a tax imposed for that purpose (see Royall v. State of Virginia, 29 L. Ed. 735). 2 (
  2. c)That a tax affecting the exercise of the right safeguarded by Article 25.1 of the Constitution could only be declared unconstitutional if the relevant legislation is proved to be unreasonable; and that this is not so in the present case. (See Basu's Commentary on the Constitution of India, 5th ed. vol. 1 pp. 543 and 782). Percuriam: Even if itwere to be found that it isa tax directly affecting the said right, it does not infringe Article 25 because 121 PASYDY & Others v. M'ty Nicosia
(1978)it is "a formality" or "condition" which is "prescribed by law" and is "necessary in the public interest", in the sense of paragraph
(2)of such Article.
(3)That therecannotbeaninfringement oftheconstitutional right to property, safeguarded

Article 23

, by something 5 which is expressly envisaged by another Article of the Constitution, which in the present instance is Article 24*; and that when a tax, duty or rate is not otherwise unconstitutional it cannot be treated as contravening Article 23 merely because it results in deprivation of money for the purpose of payment 10 of such tax, rate or duty; because otherwise Article 23 would render Article 24.1 devoid of any effect whatsoever. 4(

  1. a)That itisthesubstance,and nottheform, ofalegislative enactment that must be looked at, and that which is in form a proviso may be in substance a fresh enactment, adding to, and 15 not merely qualifying, that which goes before it; and that when the said paragraph (
  2. c)is looked at against the background of the legislation concerned, it is proper to conclude that it is not in substance a mere proviso, but it is a provision extending and supplementing the main part of section 157 of Cap. 240 in 20 which it is to be found. Percuriam: Even if it were to be held that it is a mere proviso, it cannot be treated as a "repugnant proviso", because public officers'do, indeed, work for profit in the sense of section 156. 4(
  3. b)(Afterstatingthemeaningofthewords "officeofprofit"— vide p. 139post).That the word"profit", as used in the relevant legislation, is not used in its strictly commercial narrow sense, but in the sense of remuneration accruing from whatever source and that it does include remuneration such as the emoluments 30 of public officers.

(5)That notwithstanding some differences which are not material for the purposes of the present proceedings, both categories (i.e. public officers and private employees) comprise persons who have to carry out their duties within the municipal 35 limits and, in this respect, they enjoy equally services of the municipality which enable them to work efficiently, safely and • Quoted at p. 138 post. 122 25 3 C.L.R. PASYDY & Others v. M'ty Nicosia comfortably; and that, accordingly, article 28 of the Constitution has not been contravened. 5
(6)That the Executive Power has to discharge its duty

Article 35

in the normal course of the implementation of its task

the Constitution and it cannot be held that it has failed to discharge such duty adequately if it has not turned into a privileged class any of its organs, such as by exempting public officers from the general and normal obligation to pay professional tax. 10 7 (

  1. a)That though it might not be unjustified, in view of the specialstatusofpublicofficers, toexemptthemfrom thepayment of professional tax, it cannot be said that such status is constitutionally or otherwise legally incompatible with their statutory obligation in Cyprus to pay professional tax. 15 7(
  2. b)That in Greece public officers are exempted from the payment of professional tax by legislative provisions; that the position is exactly the opposite in Cyprus; that matters of legislative, and in particular of fiscal, policy are within the sphere of the competence of the Executive and Legislative Powers and the Judicial Power cannot substitute its own views in the place of their views; and that an administrative Court cannot interfere in amatter offiscalpolicy solongasthelegislation concerned is not unconstitutional. 20 25 30 35

(8)That the alleged unconstitutionality of a statute has to be established beyond reasonable doubt and that the burden was on the applicants to satisfy the Court that the relevant legislation was unconstitutional and they have failed to do so. Per curiam: Public officers do appear to have a deserving moral claim not to be subjected, in the same manner and to the same extent as other employed persons, to the obligation topay professional taxfor servingthepublic,but this isamatter of policy for the Government which can only be implemented by legislation and not by a judicial decision. Application dismissed. No orderas to costs. Cases referred to: PetroUna Ltd. v. TheMunicipal Committee of Famagusta
(1971)3 C.L.R. 420 at pp. 423-425; 123 PASYDY & Others v. M'ty Nicosia
(1978)Rallis v. TheGreek CommunalChamber, 5R.S.C.C. 11,at p.15; Pancyprian Federation of Labour (PEO),v. BoardofCinematographFilms Cencorsand Another
(1965).3 C.L.R. 27 at pp. 33-34; Voyias v. The Republic
(1974)10 J.S.C. 909-916, 936-937 (to 5 be reported in
(1974)3 C.L.R.); Murdochand Othersv. Commonwealth of Pennsylvania, 87 L. Ed. 1292; Royallv. State of Virginia, 29 L. Ed. 735; Gundling v. City of Chicago, 44 L. Ed. 725; 10 RhonddaUrbanCouncil v. Toff ValeRail Co., [1909] A.C.253 at p. 258; Commissioner of Stamp Duties v. Atwill and Others [1973] 1 All E.R. 576 at p. 581; Henry(Inspector of Taxes)v. Galloway, 148 L.T. 453at p. 455; 15 Cowan v. Seymour[1920] 1 K.B. 500 at p.511; Loucas andOthers v. TheRepublic
(1965)3 C.L.R. 65 at p. 70; O'Malleyv. Woodrough, 83 L. Ed. 1289, at pp. 1293, 1294; A. Magnano Company v. Hamilton, 78 L. Ed. 1109; State of Wisconsin v. /. C. PenneyCompany, 85 L. Ed. 267; 20 Boardfor Registration ofArchitects andCivilEngineers v. Kyriakides
(1966)3 C.L.R. 640 at p.
  1. Recourse. Recourse against the decision of the respondent Municipality of Nicosia to impose professional tax on the individual appli- 25 cants. A. TriantafyHides, for the applicant. K. Michaelides, for the respondent. L. Loucaides, Deputy Attorney-General, on behalf of the Attorney-General of the Republic, as amicus curiae. 30 Cur. adv. vuit. The following judgment was delivered by: TRIANTAFYLLIDES P.: By these three recourses, which were heard together in view of their nature, applicant 1, which is a trade union of persons in the public service, and the individual 35 applicants, who are all public officers, seek a declaration that 124 3 C.L.R. PASYDY &Others v. M'ty Nicosia Triantafyllides P. the decision of the respondent to impose professional tax on the individual applicants is nulland voidand of no effect whatsoever. It is necessary to refer, first, to the relevant legislation: 5 10 Initially the pertinent provisions were sections 156-159of the Municipal Corporations Law,Cap.240,andtheTenth Schedule to suchLaw, which, asmodified by virtue of Article 188of the Constitution, read as follows:"
  2. No person shall, within any municipal limits,carry on, exercise or practise any business, trade, calling or profession for profit unless he has obtained a licence so to do in accordance with the provisions of this Law: Provided that - 15 (a) no person shall be required to obtain more than one licence in the same municipal limits during any period; 20 (b) any person who has taken out a licence in any municipal limits shall not be required to take out another licence in any other municipal limits unlesshehasapermanent placeofbusinesstherein or remains therein for the purpose of carrying on hisbusiness,trade,callingorprofession at anyone time for a period exceeding seven days; 25 (c) this section shall not apply to persons performing only religious duties; 30 (d) officers and servants permanently inthe serviceof the Government of the Republic or of the Evcaf Office and in receipt of an annual salaryshall not be required to obtain such licence but shall pay the fees hereinafter provided. 35 157.
(1)Any person desiring to carry on, exercise or practise,for profit, anybusiness,trade,callingor profession within any municipal limits shall apply to the council for a licence and the council shall determine the fee payable therefor, not exceedingthe appropriate fee set out inPart I of the Tenth Schedule to this Law: 125 Triantafyllides P. PASYDY &Others v. M'ty Nicosia
(1978)Provided that (
  1. a)any person aggrieved may, within seven days from the day of the notification to him of such determination, appeal to the District Officer whose decision shall be final and conclusive; 5 (
  2. b)nothing in this section contained shall apply to persons performing only religious duties; (
  3. c)subject to the provisions of section 159 of this Law, nothing in this section contained shall apply to the officers and servants to which section 159 10 relates.
(2)Upon payment of the fee determined by the council or of such fee as may be decided upon by the District Officer on appeal, as the case may be, the council shall cause the name of the applicant to be entered in a register 15 kept for the purpose (hereinafter called the 'register of trade licences') and shall issue to the applicant a licence.
(3)The council shall keep the register of trade licences open for inspection by any person interested at all reasonable times without the payment of any fee. 20 158. If any person fails to apply to the council for a licence, as in section 157 of this Law provided, within one month of his having commenced or recommenced to carry on, exercise or practise any business, trade, calling or profession, the council may determine the fee payable by such 25 person, not exceeding the appropriate fee set out in Part I of the Tenth Schedule to this Law, and enter his name in the register of trade licences and the decision of the council shall be final and conclusive. 159.(I) Officers and servants permanently in the service 30 of the Government of the Republic or of the Evcaf Office and in receipt of an annual salary shall pay to the municipal corporation within the limits of which they usually perform their duties the fees set out in Part II of the Tenth Schedule to this Law. 35
(2)The fees provided for by subsection
(1)of this section shall be payable in two half annual instalments on 126 3 C.L.R. PASYDY& Others?.M'tyNicosia Triantafyllides P. thethirtiethday ofJuneand thethirty-first dayof December of each year: 5 Provided that no such payment shall be made if the officer has not for the period of six months preceding any such date performed his duties within any municipal limits.
(3)Any dispute arising

the provisions of this section as to (

  1. a)whether any or what fees are payable; or 10 (
  2. b)the municipal corporation to which any fees are payable, shall be referred to the Minister of Interior whose decision shall be final and conclusive. 15 " TENTH SCHEDULE PART I. (Sections 157 and 158). FEES FOR LICENCES FOR CARRYING ON PROFESSION, ETC. Annual fee not exceeding £ 20 (
  3. a)Yearly licences:1. any individual person (other than persons included in paragraphs 2 and 3 hereof) .. ..' 25 30 6 2. any money-lender, wineand spirit merchant and any person selling intoxicating liquors (whether local or foreign and whether by wholesale or retail) .. 25 3. any tobacco or wine and spirit manufacturer and distiller .. .. .. 50 4. any banking establishment, company or partnership as such (other than such as are included in paragraphs 5 and 6 hereof) .. .. .. .. .. 50 127 Triantafyllides P. PASYDY & Others v. M'ty Nicosia

(1978)£
  1. any insuranceagency as such ..
  2. any telegraph agency as such . . 25 .. 10 (b) Half yearly licences:The one half of the fees hereinbefore set out. PART II 5 (Section 159). FEES PAYABLE BY GOVERNMENT SERVANTS, ETC. Class
  3. Officers and servants whose salary does not exceed £100per annum . . .. Class
  4. Officers and servants whose salary ex­ ceeds £100 but does not exceed £300 per annum .. .. .. .. Mils per annum 10 250 500 Class
  5. Officers and servants whose salary exceeds £300 but does not exceed £600 per annum .. 15 1,000 Class
  6. Officers and servants whose salary ex­ ceeds £600 but does not exceed £1,000 per annum 2,000 Class
  7. Officers and servants whose salary ex­ ceeds £1,000 per annum .. 3,000" The above provisions have continuedto be in force by virtue of section 8
(2)of the Municipal Corporations Law, 1964 (Law 64/64). By means of the Municipal Corporations(Amendment) (No. 3) Law, 1970 (Law 89/70), paragraph (c) of the proviso to subsection
(1)of section 157, supra, was replaced by the follo­ wing paragraph:" (γ) Ουδέν τώυ έν τω παρόντι άρθρω διαλαμβανομένων 30 θα έφαρμόζηται επί υπαλλήλωνκαι υπηρετώνευρισκομένων μονίμως έυ τη δημοσία υπηρεσία ή έυ τη υπηρεσία τοϋ Έβκάφ". (" (c) nothing in this section contained shall apply to 128 20 25 3 CX.R. PASYDY & Others y. M'ty Nicosia Triantafyllides P. officers and servants permanently in the public service or in the service of the Evcaf Office.") Furthermore, a new subsection,
(4), was added, which reads as follows :"
(4)Παςεργοδότης οφείλει, άματη αίτήσει τοϋΣυμβουλίου, νά δήλωση εγγράφως εντός ενός μηνός ε!ς τό Συμβούλιον τό δνομα, τήν διεύθυνσιν καΐ τάς ετησίας άπολαβάς παντός ϋπ' αυτοϋ έργοδοτουμένου.". 10 15 ("
(4)Every employer must, at the request of the Council, declare in writing within a month to the Council the name, address and the yearly emoluments of everyone employed by him.") Also, section 159 was repealed, and Parts I and II of the Tenth Schedule were replaced by the following Part I which reads as follows:" ΔΈΚΑΤΟς ΤΤΙΝΑΞ Μέρος I. ("Αρθρα 157 καΐ 158) Έτήσιον δικαίωμα μη υπερβαίνον 20 Κατηγορίαι Προσώπων: (α) Έτήσιαι "Αδειαι: 25
  3. 30
  4. 35
  5. Έργάται καΐ άλλοι ημερομίσθιοι μή έ­ χοντες τακτικήν άπασχόλησιν .. 500 μίλς Μισθωτοί τών οποίων αί έτήσιαι άπολαβαΐ δέν υπερβαίνουν τάς £750 £2 Μισθωτοί τών οποίων αϊέτήσιαι απόλα­ βα! υπερβαίνουν τάς £750 αλλά δέν υ­ περβαίνουν τάς £1,500 .. £4 Μισθωτοί των οποίων αϊέτήσιαι απόλα­ βα! υπερβαίνουν τάς £1,500 άλλα δέν υπερβαίνουν τάς £3,000 .. £12 Μισθωτοί τών οποίων αίέτήσιαι απόλα­ βα! υπερβαίνουν τάς £3,C03 £50 129 Triantafyllides P.
  8. PASYDY & Others v. M'ty Nicosia
(1978)Βιοτέχναι εργαζόμενοι δι' ίδιον λογαριασμόν .. .. .. Έπαγγελματίαι ασκούντες έλευθέριον ε­ πάγγελμα, ήτοι Ιατροί, δικηγόροι, αρ­ χιτέκτονες, μηχανικοί, έμποροι, βιομήχανοι και έτπχειρηματίαι, εργαζόμενοι ώς άτομα .. .. .. .. .. £12 5 £50 Έταιρεϊαι περιωρισμένης ευθύνης: Ίδιωτικαί £100 Δημόσιαι £250 9. 'Ομόρρυθμοι καΐ ετερόρρυθμοι έταιρεϊαι.. £50 10. 'Αλλοδαπά! έταιρεϊαι εγγεγραμμένοι έν Κύπρω κα! άσκοϋσαι ασφαλιστικός, ατ­ μοπλοϊκός, αεροπορικός, τραπεζιτικάς κα! λοιπάς έμπορικάς εργασίας.. .. £250 11. Συνεργατικά Ιδρύματα .. .. .. £100 12. "Αλλα φυσικά ή νομικά πρόσωπα μή εμ­ πίπτοντα είς οιανδήποτε τών άνω κατη­ γοριών .. .. .. £50 10 15 (β) ΈΕάμηνοι άδειαι: 20 Τό ήμισυ τών ανωτέρω εκτιθεμένων δικαιωμάτων. Δια τους σκοπούς τοϋ παρόντος Πίνακος ή Α ρ χ ή Ηλεκτρισμού Κύπρου, ή 'Αρχή Τηλεπικοινωνιών Κύπρου, ή Ε π ι τ ρ ο π ή Σιτηρών κα! τ ά Συμβούλια ΎΒατοπρομηθείας έν τ η έδρα των, κα! εκαστον τών εΐς τάς άλλας πόλεις γραφείων αυτών, θά θεωρώνται κα! 25 ταίίινομώνται ώς δημόσιαι έταιρεϊαι περιωρισμένης ευθύνης.". ( " T E N T H SCHEDULE PART I. (Sections 157 and 158) Annual fee not exceeding Categories of Persons: (
  1. a)Yearly Licences: 1. Workers and others on daily wages who are not in regular employment .. 130 35 500 mils 30 3 C.L.R. v 5 PASYDY & Others τ. M'ty Nicosia 2. Salaried persons whose yearly emoluments do not exceed £750 .. .. 3. Salaried persons whose yearly emolu­ ments exceed £750 but do not exceed £1,500 4. 10 Salaried persons whose yearly emolu­ ments exceed £1,500 but do not exceed £3,000 5. Salaried persons whose yearly emoluments exceed £3,000 6. 15 Triantafyllides P. £2 £4 £12 £50 Craftsmen working for their own account £12 7. Professional persons carrying on a pro­ fession such as doctors, advocates, architects, engineers, merchants,indus­ trialists and businessmen working as individuals £50 20 8. Companies of limited liability: Private Public 25 9. General and limited partnerships .. £50 10. Foreign companiesregistered in Cyprus and carrying on the business of insu­ rance, aviation, banking and other commercial enterprises.. .. . . £250 11. 30 35 Co-operative Societies .. £100 £250 .. £100 12. Other natural or legal persons not falling within any of the above cate­ gories .. .. .. .. .. (
  2. b)Six months' licences: Half of the above stated fees. £50 For the purposes of this Schedule the Electricity Authority of Cyprus, the Cyprus Telecommunications Authority, the Grain Commission and the Water Boards at their principal offices, and at every office of theirs in other towns, will be regarded and classified as public companies of limited liability"). Then, by the Municipal Corporations (Amendment) Law, 1972 (Law 87/72), paragraph (
  3. c)of the proviso to subsection 131 Triantafyllides P. PASYDY & Others v. M'ty Nicosia
(1978)
(1)of section 157 was replaced by a new paragraph (
  1. c)as follows :" (
  2. y)Τό συμβούλιον καθορίζει συμφώνως προς τό παρόν εδάφιον τά δικαιώματα τά πληρωτέα ύπό μονίμωνυπαλλή­ λων καΐ υπηρετών της Δημοκρατίαςκαΐ έν τη υπηρεσία τοΰ 5 Έβκάφ άνευ ύπ' αυτών υποβολής αΐτήσΐως δι' άδειαν." (" (
  3. c)The council prescribes in accordance with this paragraph the fees payable by permanent officers and servants of the Republic and in the service of the Evcaf Office without the submission by them of an application 10 for a licence;") Also, another paragraph, (d), was added, which reads as follows :" (δ) πάν πρόσωπον άναφερόμενον έν τη επιφυλάξει (γ) δύναται, εντός επτά ήμερων άπό της είς αυτό κοινοποιήσεως τοΰ καθορισμούτοΰ δικαιώματος, νά ύποβάληΙφεσιν είς τόν "Επαρχον της Επαρχίας του κατά της επιβολής τοΰ δικαι­ ώματος ή τοΰ ποσοΰ αύτοΰ, πάσα δέ διαφορά ώς'πρός τόν δήμον είς δν τά δικαιώματα δέον νά καταβάλλωνταιαναφέ­ ρεται είς τόν Ύπουργόν όστις κα! αποφασίζεισχετικώς.". (" (
  4. d)every person referred to in proviso (
  5. c)may, within seven days of the communication to him of the determina­ tion of the fee, file an appeal to the District Officer of his District against the imposition of the fee or of its amount, and every dispute regarding the municipality to which the fee must be paid is referred to the Minister who decides in this connection."). As the relevant legislation is now, after it has developed as above, public officers are in exactly the same position in so far as professional tax is concerned as all other salaried persons, that is they pay such tax on the basis of their emoluments and in accordance with the criteria set out in the amended Tenth Schedule of Cap. 240. 15 20 25 30 A problem which I have had to face in these proceedings, though it was not raised by any one of the parties before me, 35 was whether or not, in view of the specific provisions of the new paragraph (
  6. d)in the proviso to subsection
(1)of section 157, the sub judice impositions of professional tax on the in132 3 C.L.R. PASYDY & Others τ. M'ty Nicosia Triantafyllides P. dividual applicants in these cases are finalized administrative acts which could be attacked by means of a recourse; because, by means of the said paragraph (d) provision has been made for administrative review of the relevant decisions of the re5 spondentmunicipality and it does not appear that the applicants have sought such a review

paragraph (d). I have had, therefore, to decide whether the said review is an indispensable stage for the completion of the relevant administrative action, in which case I would not have before me finalized admini10 strative acts which could have been attacked by recourse, or whether it is merely an optional remedy which need not be resorted to for the purpose of completing the administrative process concerned. On this point it is useful to refer to PetroUnaLtd. v. The 15 Municipal Committee of Famagusta,

(1971)3 C.L.R. 420, where the following were stated (at pp. 423-425):- 20 25 30 35 " It is, inter alia, provided by the said section 10 (see sub­ section 1(a)) that any person whose legitimate interest is affected by the refusal of the Licensing Authority to grant a licence may (δύναται), within ten days, apply to the Council of Ministers for a review of the matter. There is nothing in Article 146 of the Constitution,

which the present recourse has been made to this Court, or in any other legislative enactment,which prevents the making of recourse without resorting first to a remedy such as the one

section 10

(1)(a) of Law 94/68. The position in this respect is closely similar to that

section 6 of the Motor Transport (Regulation) Law (16/64); see the case of The Cyprus Transport Co. Ltd. v. TheRepublic

(1966)3 C.L.R. 617. In that case reference was made to the earlier case of Pelides and The Republic, 3 R.S.C.C. 13, where, in the judgment, the following are stated (at p. 17):* The Court takes this opportunity of stressing that though Article 146 grants it exclusive jurisdiction in administrative law matters there is nothing in such Article to prevent procedures for administrative review of executive or administrative acts or decisions from 133 Triantafyllides P. PASYDY & Others τ. M'ty Nicosia
(1978)being provided for in a Law. Such review may be either (a) By way of confirmation or completion of the act or decision in question, in which case no recourse is possible to this Court until such 5 confirmation or completion has taken place (e.g.

section 17 of Cap. 96); or (b) by way of a review by higher authority or by specially set up organs or bodies of an administrative nature, in which case a provi- 10 sion for such a review will not be a bar to a recourse before this Court but once the procedure for such a review has been set in motion by a person concerned no recourse is possible to this Court until the review has 15 been completed.' Because of the manner in which section 10 is framed 1 have reached the view that the review by the Council of Ministers, as provided therein, is not a step by way of confirmation or completion of the relevant administrative 20 action, but only a review by higher administrative authority; therefore, the possibility to apply for such a review does not prevent the making of a recourse to this Court,

Article 146

of the Constitution, in a case in which there has not first been made a relevant application to the Council 25 of Ministers. It is useful to refer in this connection to the decisions of the Greek Council of State (Συμβούλιον Επικρατείας)in Cases 24/1932 and 97/1937 whereby there was adopted, in closely similar situations, the same approach as the one 30 adopted in the present instance. It is interesting to note, also, that in England—where in the absence of the judicial remedy of a recourse for annulment, such as the one

Article 146

, resort is had to the remedy of an action for a declaration—it was held in the case of Cooper v. Wilson 35 [1937] 2 K.B. 309, that an ex-sergeant of the police force, who claimed that he had not been validly dismissed from the force, was not limited to the right of appeal to the Secretary of State given by the Police Appeals Act, 1927, and that the fact that there existed the said remedy which 40 134 3 C.L.R. PASYDY &Olhers v. M'ty Nicosia Triantafyllides P. he could take did not prohibit his access to the Court by way of an action for a declaration; and the Cooper case wasquite recently applied in the case of the London Borough of Ealing v. Race Relations Board [1971] 1 All E.R. 424." 5 Other relevant case-law are the decisions in Rallis v. The Greek CommunalChamber,5R.S.C.C. 11, 15,and inPancyprian Federation of Labour (Peo), v. Board of Cinematograph Films Censons and Another,

(1965)3 C.L.R. 27, 33-34. In the light of the foregoing I have reached the conclusion 10 that the review procedure,

paragraph (

  1. d)of the proviso to section 157(I) of Cap. 240, is not a step necessary for the completion of the relevant administrative process but only an optional administrative remedy and, consequently, these recourses could be made by the applicants even though they did 15 not resort first to the review procedure. One of the main arguments of counsel for the applicants has been that the professional tax in question is in reality a fee and, therefore, it could only be demanded in return for a service rendered by the respondent municipality; he has submitted that 20 the service concerned in the present instance is the procedure by means of which persons other than public officers apply and obtain professional licences and are entered in the relevant register, and he has stressed that in the case of public officers though no such service is rendered, because paragraph (
  2. c)of 25 the proviso to section 157

(1)does not require them to apply for a professional licence, they nevertheless have to pay professional tax. 1 would like to observe, first, that the distinction, in this respect, between public officers and private employees has, to 30 a great extent, been obliterated in view of the enactment of subsection
(4)of section 157; secondly, in any event, I cannot agree with counsel for the applicants that the service rendered in return for the professional tax is the formal administrative process just described above; other services are rendered by the 35 respondent municipality, in the exercise of powers such as those set out in sections 123 to 126 of Cap. 240, for the benefit of all those who work within its municipal limits and such services are essential in order to enable those paying professional tax to work more efficiently, safely and comfortably. 135 Triantafyllides P. PASYDY & Others v. M'ty Nicosia
(1978)I do agree that a service should, always, be rendered in return for a fee to be collected from a citizen (see, inter alia, Κυριακο­ πούλου " Έλληνικόν Διοικητικόν Δίκαιον", 4th ed., vol. C, pp. 354-355); this is how a fee is distinguished from a tax, since the State can impose taxation without rendering, directly, 5 in return any service to particular citizens (see, again, Κυρια­ κοπούλου, supra, pp. 347-348, as well as Στασινόπουλου "Μα­ θήματα ΔημοσιονομικοϋΔικαίου", 3rd ed., pp. 260-261). Regarding the exact nature of the municipal professional tax I share the view, which was expounded by Hadjianastassiou J. 10 in Voyias v. The Republic,
(1974)10 J.S.C. 909-916*, that it is a tax; but, 1 would go somewhat further and say that, in my opinion, it is a tax which has, also, to a certain extent, the attributes of a fee, because, as pointed out earlier, there are services which are rendered, in return for such tax, by the 15 municipality, to those working within the municipal limits. The next submission of counsel for the applicants which I have to examine is that a tax which is imposed in respect of the exercise of a profession, such as that of a public officer, amounts to a contravention of Article 25 of the Constitution, which, in 20 its material parts, reads as follows:"
  1. Every person has the right to practise any profession or to carry on any occupation, trade or business.
  2. The exercise of this right may be subject to such for­ malities, conditions or restrictions as are prescribed by 25 law and relate exclusively to the qualifications usually required for the exercise of any profession or are neces­ sary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals 30 or for the protection of the rights and liberties guaranteed by this Constitution to any person or in the public interest:" I agree with the view expressed in the Voyias case, supra (see pp. 936-937), that the professional tax is not imposed in a 35 manner affecting directly, as such, the right safeguarded

Article 25, above, and, therefore, it cannot be held to amount * To be reported in

(1974)3 C.L.R. 136 3 C.L.R. PASYDY & Others v. M'ty Nicosia Triantafyllides P. to a contravention of that Article. Even if, however, I were to find that it is a tax directly affecting the said right I am of the opinion that it does not infringe Article 25 because it is "a formality" or "condition" which is "prescribed by law" and 5 is "necessary in the public interest", in the sense of paragraph
(2)of such Article. I have been referred by counsel for applicants to the case of Murdoch and others v. Commonwealthof Pennsylvania,87 L.Ed. 1292; that was a case where a flat tax was imposed on certain 10 persons disseminating religious material and it was held that it infringed the rights of freedom of religion and of free speech; in my opinion the Murdoch case is distinguishable from the present cases, because, as it was pointed out (at p. 1299), the tax involved in that case was a licence tax of a fixed amount 15 unrelated to the scope of the activities of the petitioners or to their realized revenues, whereas the professional tax payable by the applicants is related to the scope of their activities and to their revenues. A more relevant case is Royall v. State of Virginia,29 L. Ed. 20 735, where it was held that there is nothing unconstitutional in regulating the exercise of a profession or occupation by means of a tax imposed for that purpose and this was confirmed in the later case of Gundlingv. City of Chicago, 44 L. Ed. 725. Useful reference may, also, be made, in this respect, to Basu's 25 Commentary on the Constitution of India, 5th ed., vol. 1, p. 543, where there is set out Article 19
(1)(g) of the Indian Constitution which provides that "All citizens shall have the right... to practise any profession, or to carry on any occupation, trade or business"; and as it is to be derived from the same 30 textbook (at p. 782) a tax affecting the exercise of the above right could only be declared unconstitutional if the relevant legislation is proved to be unreasonable; and I have not been satisfied that this is so in the present instance. Regarding, next, the contention that the professional tax 35 results in an infringement of the proprietary rights protected

Article 23

of our Constitution in that there results deprivation of money of the applicants when they pay the professional tax imposed on them, I cannot agree with this contention because there cannot be an infringement of the constitutional 137 Triantafyliides P. PASYDY &Others v. M'ty Nicosia

(1978)right to property, safeguarded

Article 23

, by something which is expressly envisaged by another Article of the Constitution; in the present instance such Article is Article 24 which reads as follows :"

  1. Every person is bound to contribute according to his means towards the public burdens. 5
  2. No such contribution by way of tax, duty or rate of any kind whatsoever shall be imposed save by or

the authority of a law.

  1. No tax, duty or rate of any kind whatsoever shall be 10 imposed with retrospective effect: Provided that any import duty may be imposed as from the date of the introduction of the relevant Bill.
  2. No tax, duty or rate of any kind whatsoever other than customs duties shall be of a destructive or prohibitive nature." 15 When a tax, duty or rate is not otherwise unconstitutional it cannot be treated as contravening Article 23 merely because it results in deprivation of money for the purpose of payment of such tax, rate or duty; because otherwise Article 23 would 20 render paragraph

(1)of Article 24 devoid of any effect whatsoever. Another argument which has been advanced by counsel for the applicants is that the at present in force paragraph (c) of the proviso to subsection
(1)of section 157 constitutes a "re- 25 pugnant proviso" because though—allegedly—the public officers are not working for profit it isexpressly provided in the relevant legislation, particularly in section 156, that the professional tax is imposed in relation to the carrying on, practice or exercise of any business, trade, calling or profession "for profit". 30 In Halsbuiy's Laws of England, 3rd ed., vol. 36, p. 400, para. 604, it if. slated that it is the substance, and not the form, cf a legislative enactment that must be looked at, and that which is in form a proviso may be in substance a fresh enactment, adding to, and not merely qualifying, that which goes 35 before it; and reference is made, in this respect, to Rhondda / Urban Council v. Taff Vale Rail Co., [1909] A.C. 253, 258, 138 3 C.L.R. PASYDY &Othersv. M'ty Nicosia Triantafyllides P. which has been followed in Commissioner of Stamp Duties v. Atwill and others, [1973] 1All E.R. 576,
  1. I am of the view that in the present case, when the aforementioned paragraph (c) is looked at against the background 5 of the legislation concerned, it is proper to conclude that it is not in substance a mere proviso, but that it is a provision extending and supplementing the main part of section 157 of Cap. 240 in which it is to be found. But, even if it were to be held that it is a mere proviso, I would not treat it as a "repugnant 10 proviso", because I am of the view that public officers do, indeed, work for profit in the sense of section 156, above. What is meant by an office of profit is explained in Words and Phrases Legally Defined, 2nd ed., vol. 4,pp. 24,
  2. Useful reference may be made also to Henry (Inspector of Taxes) v. 15 Galloway, 148 L.T. 453, where Finlay J. stated the following (at p. 455):- 20 25 " Now 'office of profit' is not a thing particularly easy to define; everybody, I think, has a good idea of what it means, but certainly it is not easy of exact definition. I was referred to a case, and some assistance is to be got from it, of Delane v. Hillcoat (9 B. & C. 310), but it is, I think, true to say that the exact definition is by no means easy. It is, of course, and must be an office, and no doubt it must be an office to which remuneration is in some way or other attached. You cannot have an office of profit unless you have got the remuneration attached to it." In Cowan v. Seymour, [1920] 1 K.B. 500, Atkin L.J. said the following (at p. 511):- 30 " In my view if a profit does accrue to the holder of an office or employment by reason of his office or employment, such office or employment is an office or employment of profit, ". In the present case I am of the opinion that the word "profit", as used in the relevant legislation, is not used in its strictly 35 commercial narrow sense, but in the sense of remuneration accruing from whatever source and that it does include remuneration such as the emoluments of public officers; indeed, in this respect, there is no real difference between public officers and private employees, 139 Triantafyllides P. PASYDY & Others v. M'ty Nicosia (197Λ) The next matter which has to be considered is the submission of counsel for the applicants that Article 28 of theConstitution is being contravened because there is not made, as regards professional tax, sufficient differentiation as between public officers on the one hand and private employees on the other, 5 though, according to the contention of counsel for the appli­ cants, the two categories differ in status. I cannot accept as correct this proposition; notwithstanding some differences which are not material for the purposes of the present pro­ ceedings, the fact remains that both categories comprise persons 10 who have to carry out their duties within the municipal limits and, in this respect, they enjoy equally services of the munici­ pality which enable them to work efficiently, safely and com­ fortably. It has been argued, next, that there is being contravened Article 35 of the Constitution which reads as follows:- 15 " The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this Part." 20 The Part of the Constitutionconcerned is PartII which relates to "Fundamental Rights and Liberties". It has been submitted, in this connection, that, since the Executive Power has to secure the efficient application of the provisions of the Constitution safeguarding fundamental rights 25 and liberties, it has to safeguard the right of public officers to carry out their duties without having to pay professional tax because of doing so, especially as without the functioning of the public service there can be no effective protection and proper enjoyment of the fundamental rights and liberties of the 30 citizens. I cannot agree with the above submission; I think that it is somewhat far-fetched. In my view the Executive Power has to discharge its duty

Article 35

, above, in the normal course of the implementation of its task

the Constitution and it cannot be held that it has failed to discharge 35 such duty adequately if it has not turned into a privileged class any of its organs, such as by exempting public officers from the general and normal obligation to pay professional tax. I shall deal next with an issue relating to Article 192 of the Constitution, paragraphs

(1)and 7(
  1. b)of which read as follows:140 40 3 C.L.R. 5 . PASYDY &Others v. M'ty Nicosia Triantafyllides P. " 1. Save where other provision is made in this Constitution any person who, immediately before the date of the coming into operation of this Constitution, holds an office in the public service shall, after that date, be entitled to the same terms and conditions of service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance in the public service of the Republic on or after that date. 7 10 (
  2. b)'terms and conditions of service' means, subject to the necessary adaptations

the provisions of this Constitution, remuneration, leave, removal from service, retirement pensions, gratuities or other like benefits.' ". 15 In Loucas and others v. The Republic,

(1965)3 C.L.R. 65, 70, it was pointed out that "the question of what is precisely saved by Article 192 of the Constitution and whether a particular matter falls within the expression 'terms and conditions of service', as defined in paragraph 7(b) of Article 192 of the 20 Constitution is one which must be decided according to the nature of the particular matter

consideration." In the first place I do not think that it can be regarded as a term orcondition of serviceof public officers who wereemployed by the Government of the Colony of Cyprus prior to the coming 25 into operation of the Constitution on August 16, 1960, and who have continued to be members of the public service thereafter, that they are to pay their professional tax in the same manner as was provided for, prior to 1960, by means of the Tenth Schedule to Cap. 240; but, even assuming that Article 192 30 could be held to be applicable at all to a matter of this nature, I am of the view that the maximum that could be said, in this respect, would be that such Article 192 safeguards the right of the public officers concerned to be taxed, as regards professional tax, in a reasonable in the circumstances manner; and, in my 35 opinion, the now in force relevant arrangements cannot be described as being unreasonable in the light of present ·day realities. 141 Triantafyllides P. PASYDY & Othersv.M'ty Nicosia

(1978)In relation to this issue of Article 192 it is rather useful to refer, by way of analogy, to the view of the U.S.A. Supreme Court that the constitutional provisions forbidding the diminu­ tion of a Judge's salary during his term of office does not prevent the imposition of income tax on his salary (see Pritchett on the 5 American Constitution, 1959, p. 116 and O'Malley v.Woodrough, 83 L. Ed. 1289, 1293, 1294). It has, also, been contended that, because public officers are in any event bound to work in order to carry out their duties, they should not have to pay professional tax; and, it has been 10 pointed out, in this connection, that in Greece public officers are exempted from the obligation to pay professional tax (see Κυριακοπούλου "Δίκαιον τών Πολιτικών Διοικητικών Υπαλλή­ λων", 1954, ρ. 212). In my opinion, though it might not be unjustified, in view 15 of the special status of public officers, to exempt them from the payment of professional tax, it cannot be said that such status is constitutionally or otherwise legally incompatible with their statutory obligation in Cyprus to pay professional tax; also, it should be borne in mind, in this respect, that it is not 20 only public officers who are bound to work in order to perform their duties, but, also, private employees

their contracts of employment; and both categories enjoy equally the benefits of the same relevant municipal services. In Greece public officers are exempted from the payment of 25 professional tax by legislative provisions to that effect; the position is exactly the opposite here in Cyprus, and, as an administrative Court, 1 cannot interfere in a matter of fiscal policy so long as the legislation concerned is not unconstitutio­ nal. Matters of legislative, and in particular of fiscal, policy are within the sphere of the competence of the Executive and Legis­ lative Powers and the Judicial Power cannot substitute its own views in the place of their views (see, inter alia, A. Magnano Company v. Hamilton, 78 L. Ed. 1109, and State of Wisconsin 35 v. J. C. Penney Company, 85 L. Ed. 267). In The Boardfor Registration of Architects and CivilEngineers v. Kyriahides,

(1966)3 C.L.R. 640, 654, it was held that the alleged unconstitutionality of a statute has to be established 142 30 3 C.L.R. PASYDY &Others v. M'ty Nicosia Triantafyllides P. beyond reasonable doubt. The burden was on the applicants, in the present cases, to satisfy me that the relevant legislation was unconstitutional and they have failed to do so. I would like to conclude by stressing that public officers do 5 appear to have a deserving moral claim not to be subjected, in the same manner and to the same extent as other employed persons, to the obligation to pay professional tax for serving the public, but this is a matter of policy for the Government which can only be implemented by legislation and not by a 10 judicial decision. 15 For all the above reasons these recourses are dismissed; but, in the light of all relevant considerations, I am not prepared to make any order as to their costs. Application dismissed. No order as to costs. 143

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