(1980)1980 June 21 [A. Loizou, J,] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS AVGOUSTI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondent, (Case No. 243/76). Army of the Republic (Constitution, Enlistment and Discipline) Laws, 1961-1975·—Dismissal of officer—Can take place only upon the opinion of a competent Military Disciplinary Board—Section 6 of the Law. Statutes—Construction—Substitution of words—Possible only where there is a repugnancy or something in a statute opposed to good sense—No repugnancy or something opposed to good sense in section 6 of the Army of the Republic (Constitution, Enlistment and Discipline)Laws, 1961-1975calling upon the Court to modify its language. The sole issue for consideration in this recourse, which was directed against the decision of the respondents to terminate the services of the applicant as an officer of the Cyprus Army, was whether the respondents ought, by virtue of section 6 of the Army of the Republic (Constitution, Enlistment and Disci- 15 pline) Laws, 1961-1975, to have before them the opinion of a competent Military Disciplinary Board before terminating the services of the applicant. Section 6 of the above Laws reads as follows: "
- The Council of Ministers, may upon the opinion 20 of a competent Military Disciplinary Board, dismiss any officer or noncommissioned officer or soldier who was 304 5 10 3 C.L.R. Avgousti v. Republic 5 found guilty of gross misconduct, disobedience or omission to perform his duties, or who in the opinion of the Council of Ministers is unsuitable to be a member of the Army, without payment to any such officer, noncommissioned officer or soldier of any compensation". 10 Counsel for the respondents invited the Court to interpret the above section in such a manner as to give effect to the real intention of the legislator and rectify a mistake of syntax to which the author of the section fell and which should be corrected by the Court. 15 20 25 Held, that the Courts are very reluctant to substitute words in a statute or to add words to it; that they will only do so where there is a repugnancy or something which is opposed to good sense;that there isno repugnancy or something which is opposed to good sense, calling upon this Court to modify the language of the section so as to meet what counsel suggests was the intention of the legislator which by a drafting mistake, was not achieved; that the opinion of the Board can reasonably be expected, both in the case where a member of the army is found guilty of some misconduct and also where, though not found guilty the Board is still of the opinion that he should still be dismissed and it is up to the Council of Ministers in either case to do so or not if in its opinion the person concerned is unsuitable to be a member of the army; and that, therefore, the subjudice decision must be annulled. Sub judice decision annulled. Cases referred to: R. v. Trafford (1850] 15 Q.B. 200; Fredericks v. Payne [1862] 1 H. &. C.
- 30 Recourse. Recourse against the decision of the respondent whereby his services as an officer of the Cyprus army were terminated. L.N. Clerides with M. Pierides, for the applicant. 35 N. Charalambous, respondent. Counsel of the Republic, for the Cur. adv. vult. A. Loizou J. read the following judgment. The applicant by the present recourse seeks a declaration that the act and/or 305 A. Loizou J. Aygonsti v. Republic
(1980)decision of the respondents whereby his services, as an officer oftheCyprusarmywereterminated asfrom the 10th September, 1976, on the ground of unsuitability for the post and without offering him any compensation under the provisions of section 6 of the Army of the Republic (Constitution, Enlistment and 5 Discipline) Laws, 1961-1975,and/or his dismissal from his aforesaid post is null and void and of no effect whatsoever. The application is based on the following grounds of law:(
- a)The respondents acted contrary to the Army of the Republic (Constitution, Enlistment and Discipline) 10 Laws of 1961 to 1975. (
- b)The decision complained of is of a disciplinary nature and was reached without affording the applicant an opportunity tobeheard inhisdefence, contrary toand in a way incompatible with the principles of natural 15 justice. (
- c)Theactand/ordecisioncomplained ofwasnotreasoned or duly reasoned under the circumstances. (
- d)The respondents acted with bias and bad faith and/or under a misconception of both the facts and law. 20 The applicant was enlisted in the Cyprus Army on the 1st November, 1962 with the rank of Captain having served until then as a Captain in the Greek Army in the Military School of which he had received his training. On the 1st November, 1971, he was promoted to the rank of Major. On or about 25 the 9th September, 1976,the applicant received a letter, exhibit "A", dated the 8th September, 1976, which reads as follows:"I have been instructed to inform you that the Council of Ministers at its meeting of the 2nd September, 1976, by its Decision No. 15.201, decided to terminate your 30 services in the Cyprus Army as from the 10th September, 1976,withoutthepaymentof any compensation. 2. You are requested up to the aforesaid date to hand into the Ministry of Defence all clothing and equipmentin your possession which have been delivered to you during 35 your service in the ranks of the Cyprus Army. 306 _3 C.L.R. Avgousti v. Republic A. Loizou J. 3. Copy of the Decision of the Council of Ministers is attached hereto for your information." This decision reads as follows:5 10 15 "Extracts from the Minutes of the Council dated 2.9.1976 Termination of service of a member of the Cyprus Army. Submission No. 620/76. Decision No. 15.201. The Council studied the aforesaid subject and in the light of the oral explanations given at its meeting and after a meticulous examination of the facts adduced, which constituting State secrets that cannot be disclosed for reasons of security, decided that Andreas Avgousti, a Major of the Cyprus Army, is unsuitable to be a member of the Army and by virtue of section 6 of the Army of the Republic (Constitution, Enlistment and Discipline) Laws of 19611975, decided to dismiss him as from the 10th September, 1976, without payment of any compensation." The Submission No. 620/76 to the Council of Ministers after referring to the date of appointment and promotion of the applicant, reads as follows :tt 20 2. For reasons which will be expounded to the Council at the discussion of the submission, and which refer to acts and actions of the said Major which emanate from the elements in his personal file, he is considered unsuitable to be a member of the Army. 25 3. The Minister of Defence who will introduce the subject will suggest that the Council of Ministers dismisses the said Major for the sake of the general interest of the service under the provisions of section 6 of the Army of the Republic (Constitution, Enlistment and Discipline) Laws 1961-1973." 30 Upon a direction made under the provisions of rules 7and 7A of the Supreme Constitutional Rules, the following particulars werefiledinCourt regardinggrounds (A)and (B)ofthe recourse: "Ground A. 35 (
- a)The decision of respondent No. 15201 dated the 2.9.1976 is contrary to s. 6 of Law No. 8/61 in that 307 A. Loizou J. Avgousti τ. Republic
(1980)the decision of the respondent was never preceded by a recommendation and/or an expressed opinion of the competent Disciplinary Military Tribunal as provided in the said section of the Law. (
- b)The decision of the respondent to dismiss applicant from the ranks of the Cyprus Army taken on the 2.9.1976 with effect from the 10.9.1976 i.e. with only eight days notice contravenes s. 6 of Law 8/61 in that the noticegiven toapplicant is nota reasonable notice, 5 10 Ground B. (
- a)The decision taken was prompted by motives extraneous to the provisions of Law 8/61 and particu larly s. 6 thereof because applicant was, has been and is an example of an efficient and good army officer. (
- b)The respondent acted upon a misconception of fact 15 in that the information before it, on thebasis of which the subject-matter decision was taken, was not inde pendent but biased emanating from sources which deprived them of the possibility of supplying to respondent a true, accurate and correct exposition of 20 the facts relating to applicant. (
- c)The respondent acted upon a misconception of law in that they misconstrued the powers vested in them under s. 6 of Law 8/61 by extending same to cases outside the letter and spirit of thesection i.e. the suita- 25 bility of the applicant as an officer of the Army." Although originally an objection was raised to an application on behalf of the applicant for directions under rule 12
(2)of the Supreme Constitutional Court Rules for the production of all necessary documents and for making available both the oral 30 explanations and also the material placed before the Council of Ministers, eventually counsel for the respondent produced all relevant documents claiming no privilege whatsoever for anyone of them. The documents, produced were in fact the personalfileof the applicant, (exhibit 1),in which there appears 35 to be a bundle of documents which consist of a report of the Commander of the National Guard, General Komninos, sent to the office of the Minister of Interior and Defence, a report 308 3 C.L.R. Avgousti v. Republic A. Loizou J. of Major Ioannis Zambartas and three printed copies of the speech of Archbishop Makarios to the Security Council of the United Nations made on the 19th July, 1974. In the report of the Commander of the National Guard it is 5 stated that three questions were put to the applicant: (
- a)Ifhedistributed these leaflets to Officers of the National Guard and to whom. (
- b)What was the purpose of such an action. (
- c)Who supplied him with them. 10 On the first question he replied that he did not remember to whom he gave the leaflets but that hedid not give to more than two. On the second question he gave no clear answer and on the third question, whereas at the beginning he mentioned that he did not remember from whom he was supplied the 15 leaflets, later he mentioned that they were given to him by a Policeman, whose identity he did not mention, he was given four orfivecopies and that hehad in hispossession two or three, which he undertook to return to them. In the report of Major Zambartas reference is made to advice 20 given by him to the applicant to theeffect that the latter should appear before the late President Makarios, expresshis repentance for what he had done against the Cyprus State and promise that thereafter hewould bedevoted to hisBeatitudeand to his service and that that would be in the interest of his further career 25 because of the known forgiveness of the late President. The applicant replied that he would not do such a thing as he disagreed with the policy of the Archbishop. · The report contains also information as to the circumstances this Major came to know about the leaflet. 30 35 The concluding paragraph of the report of the Commander of the National Guard reads as follows:"As the aforementioned actions of Major Avgousti Andreas as well a those mentioned by Major Zambartas have clear political character and present the said Major as devoid of the substantial qualifications for a permanent Officer, namely 'of being loyal to the lawful authority', the present report is submitted for further action according to your judgment." 309 A. Loizou J. Avgousti τ. Republic
(1980)Before dealing with the grounds of Law argued on behalf of the applicant it is useful to quote section 6 of the Law. It reads: "
- To Ύπουργικόν Συμβούλιον δύναται, κατόπινγνωμα τεύσεως αρμοδίουΣτρατιωτικού Πειθαρχικού Συμβουλίου,νά 5 άπολύση οίονδήποτε άΕιωματικόν ή ύπαΕιωματικόνήόπλίτην όστις ευρέθη ένοχος ανοικείου συμπεριφοράς, ανυπακοής ή παραλείψεως των καθηκόντων του, ή όστις κατά τηνγνώμην τοΰΥπουργικούΣυμβουλίου είναι ακατάλληλος νάείναι μέλος τοΰ Στράτου, άνευ πληρωμής προς οιονδήποτε τοιούτον 10 άΕιωματικόν, ύπαΕιωματικάν ή όπλίτην, οίασδήποτε απο ζημιώσεως". In English: "
- The Council of Ministers, may upon the opinion of a competent Military Disciplinary Board, dismiss any officer 15 or noncommissioned officer or soldier who was found guilty of gross misconduct, disobedience or omisiion to perform his duties, or who in the opinion of the Council of Ministers is unsuitable to be a member of theArmy, without payment to any such officer, noncommissioned officer or soldier of 20 any compensation." Counsel for the applicant has argued that under the provisions of the aforesaid section 6, before an officer etc, is dismissed, for any of the reasons set out therein,the Council of Ministers must have before it the opinion of a competent Military Disciplinary Board, and as no such opinion was placed before the Council the sub judice decision should be annulled on that ground. 25 It is the case for the respondent that the opinion of such a Board is required only when the Council of Ministers dismisses a member of the army for *'gross misconduct, disobedience, or 30 omission to perform his duties" and not when in the opinion of the Council of Ministers such a member "is unsuitable to be a member of the army" as it was with the present case. In fact it was urged that this limb of the section constitutes an administrative major offence independent of the commission 35 of a disciplinary offence by a member of the army. I was invited to interpret this section in such a manner as to give effect to the real intention of the legislator and rectify a 310 3 C.L.R. Avgousti v. Republic A. Loizou J. mistake of syntax to which the author of the section fell and which should be corrected by the Court so as to read as follows: 5 10 "To Ύπουργικόν Συμβούλιον δύναται νά άπολύση οιονδή ποτε άΕιωματικόν ή ύπαΕιωματικόνή όπλίτην όστις, κατόπιν γνωματεύσεως αρμοδίου ΣτρατιωτικούΠειθαρχικού Συμ βουλίου, ευρέθη ένοχος ανοικείου συμπεριφοράς, ανυπακοής ή παραλείψεως τών καθηκόντων του. ή όστις κατά την γνώμην τοΰ 'Υπουργικού Συμβουλίου είναι ακατάλληλος νά είναι μέλος τοΰ Σρατοϋ, άνευ πληρωμής προς οιονδήποτε τοιούτον άΣιωματικόν, ύπαίιωματικόν ή όπλίτην, οίασδήποτε αποζημιώσεως." In English: 15 20 "The Council of Ministers may dismiss any officer υν noncommissioned officer or soldier who, upon the opinion of a competent Military Board, was'found guilty of gross misconduct, disobedience or omission to perform his duties, or who in the opinion of the Council of Ministers is unsuitable to be a member of the Army without payment to any such officer, noncommissioned officer or soldier of any compensation." In support of this proposition I was referred to Maxwell on The Interpretation of Statutes. 12th Edition, where at p. 231 it is stated: "Substitution of words. 25 ~~~ 30 35 Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a Court will be prepared to substitute another word or phrase for that which actually appears in the text of that Act." This exceptional rule of construction, however, as the whole chapter is entitled, is subject to the rule, as stated in Maxwell (supra)at p. 228, that the modification of the language to meet the intention is permitted as follows: "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradic tion of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies 311 A. Loizou J. Avgousti τ. Republic
(1980)the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used." 5 10 But as pointed out, however, further, "the Courts are very reluctant to substitute words in a statute or to add words to it (see R. v. Trafford [1850] 15 Q.B. 200, per Lord Campbell 15 C.J.; ante, pp.33-39)" and it has been said that they will only do so where thereis a repugnancy or something which is opposed to good sense. (Fredericks v. Payne [1862] 1 H. & C. 584, per Bramwell B.) I am afraid in reading this section as it is I do not find that 20 there is any repugnancy or something which is opposed to good sense, calling upon me to modify its language so as to meet what counsel suggests was the intention of the legislator which by a drafting mistake, was not achieved. In my view the opinion of the Board can reasonably be 25 expected, both in the case where a member of the army is found guilty of some misconduct and also where, though not found guilty the Board is still of the opinion that the one should still be dismissed and it is up to the Council of Ministers in either case to do so or not if in its opinion the person concerned is 30 unsuitable to be a member of the army. In view of this result, I need not examine the remaining grounds on which the application is based. For all the above reasons the sub judice decision is annulled but in the circumstances I make no order as to costs. 35 Subjudice decision annulled. No order as to costs. 312