clr/1980/1980_3_563.pdf

(1980)and, consequently, they were never citizens of the Republic of Cyprus under the provisions of Annex " D " to the Treaty of Establishment of the Republic of Cyprus or the Republic of Cyprus Citizenship Law, 1967 (Law 43/67). Applicant came to Cyprus in 1962 with his mother after the death of his 5 father and has been living in Cyprus ever since. It was an undisputed fact that the applicant was not a citizen of the Republic but was a person who has descended in the male line from a person of Cyprus origin; and that before the enactment of section 2* of the National Guard (Amendment) Law, 1978 10 (Law 22/78) he was not liable for service in the National Guard under section 4 of the National Guard Laws 1964-1977 which imposed such duty on citizens of the Republic only. Following the enactment of the above section 2 applicant was considered as liable for service in the National Guard and when he was 15 called up for such service he challenged the relevant decision by means of this recourse whereby he sought a declaration that he was not bound to enlist and servein the National Guard. Counsel for the applicant contended that section 2 of Law 22/78 was unconstitutional as offending the provisions of Annex " D " to the Treaty of Establishment, which was safeguarded by Article 198 of the Constitution and was, also, contrary to the provisions of Law 43/67. 20 Held (after dealing with citizenship under the Constitution and the relevant legislation and with the obligation of aliens to 25 military service under International Law vide pp. 570-83 post), that section 2(b) of the National Guard (Amendment) Law, 1978 (Law 22/78) is contrary to the provisions of Article 198 of the Constitution and Annex " D " to the Treaty of Establishment which has beenincorporated in Article 198and the Republic 30 of Cyprus Citizenship Law, 1967 (Law 43/67) (Pieri v. The Republic

(1979)3 C.L.R. 91 at p. 98 adopted); and that, accordingly, applicant is entitled to the declarations prayed for in this recourse. Sub fudice decision annulled. $$ Cases referred t o : Simadhiakos v. The Police, 1961 C.L.R. 4; Pieri v. The Republic

(1979)3 C.L.R. 91; Polites v. 77ie Commonwealth of Australia

(1945)C.L.R. Vol. 70 at p. 60. * Quoted at pp. 574-75 post. 564 40 3 C.L.R. '5 Droasiotis v. Republic Recourse. Recourse against the decision of the respondent whereby the applicant was asked to enlist and serve in the National Guard. X. Xenopoulos, for the applicant. K. Michaelides, for the respondent. Cur.adv.vult. SAWIDES J. read the following judgment. The applicant in this recourse claims for— 10 (

1. a)A declaration that the applicant is not bound to enlist and serve in the National Guard. (
2. b)A declaration that the act and/or decision of the respondent communicated through the person in charge of the Army Recruiting Office on or about the 10th April, 1980, 15 whereby the applicant was asked to enlist and serve in the National Guard, should be declared null and void. The applicant is a national of South Africa and was born thereon the 14thApril, 1961at the timewhen both his parents were residing there. His father was born in Cyprus on the 20 18th February, 1918and in 1948he emigrated to South Africa wherehebecameapermanentresidentandacquiredthenationality of South Africa. Applicant's father died on the 26th July, 1962 and was burried in South Africa. Applicant's mother was born in Pano Lefkara on the 13th October, 1926 25 and she got married to his father in i953 and joined him in South Africa where she resided permanently. Sheis a British subject and holder of a British passport. Applicant's parents were residents outside Cyprus long before 1955and they never had their permanent residence in Cyprus at any time between 30 the years 1950 and I960. In consequence, they were never citizensoftheRepublicofCyprusundertheprovisionsofAnnex "D" of the Constitution or the Law ofCitizenship of1967(Law 43/67). After the death of his father applicant's mother came to 35 Cyprus in September, 1962 bringing with her applicant and her two daughters and all of them have been living in Cyprus ever since. On the 16th April, 1979 applicant through his advocate 565 Sawides J. Drousiotis v. Republic

(1980)applied for exemption from service in the National Guard on the ground that he was not a citizen of the Republic of Cyprus. Copy of such letter was produced as exhibit 1 and reads as follows: " Ένετάλην Οπό τοΰ ώς άνω πελάτου μου νά απευθυνθώ 5 προς ύμας καϊ εύσεβάστως νά υποβάλω αΐτησιν δπως ούτος έΕαιρεθη Ικ της υποχρεώσεως κατατάξεως καϊ υπηρεσίας είς.τήν Έθνικήν Φρουράν, διά τους κάτωθι αναγραφόμενους λόγους: (α) Ό ώς άνω πελάτης μου/αΐτητής, έγεννήθη εις τήν Νότιον 10 Άφρικήν τήν 14ην 'Απριλίου, 1961 καϊ είναι 'Υπήκοος της Νοτίου 'Αφρικής καϊ κάτοχος διαβατηρίου της χώρας αυτής υπ' αριθμόν Ρ

1. (Ίδετε έσωκλείστους φωτοτυπίας, τεκμήρια Α, Β καϊ Γ). (β) Ό πατήρ αύτοΰ Νίκος Σ. Δρουσιώτης έγεννήθη έν 15 Κύπρω τήν 18ην Φεβρουαρίου 1918, κατά δέ ή περί τά 1946 μετηνάστευσεν είς Νότιον Άφρικήν οπού καϊ άπέκτησεν Ύπηκοότηταν της Νοτίου 'Αφρικής και ήτο κάτοχος διαβατηρίου της χώρας αυτής υπ' άρ. J
2. Κατά ή περί τήν 26ην Ιουλίου 1962, 20 ούτος άπεβίωσεν καϊ ετάφη είς Νότιον Άφρικήν, τήν 28ην 'Ιουλίου,
3. ("Ιδετε τεκμήρια Δ, Ε καϊ Ζ). (γ) Ή μήτηρ αύτοΰ Χλόη Ν. Δρουσιώτη, πρώην Παυλίδου, έγεννήθη είς Πάνω Λεύκαρα τήν 13ην 'Οκτωβρίου, 1926, συνεζεύχθη δέ τόν αποβιώσαντα Νΐκον Σ. Δρου- 25 σιώτη κατά/ή περί τό 1953 και μεταβάσα μετ' αΰτοΰ εις Νότιον Άφρικήν, έγκατεστάθη μονίμως. Είναι Υπή­ κοος τοΰ Ηνωμένου Βασιλείου καϊ κάτοχος τοΰ υπ* άρ. 80321 Βρεττανικοϋ Διαβατηρίου. (δ) Κατά ή περί τήν 4ην Σεπτεμβρίου, 1962, ό ώς άνω πελά- 30 της μου μετά της μητρός αύτοΰ καϊ των δύο αδελφών αυτού Δήμητρας καϊ Έλίζας, αφίχθησαν και έγκατεστάθησαν εϊς τήν Κύπρον, όπου και διαμένουν έκτοτε. (ε) Έν όψει των ανωτέρω και έν όψει τοΰ γεγονότος ότι οί γονείς τοΰ ώς άνω πελάτου μου ήσαν εγκατεστημένοι 35 έκτος Κύπρου πρό τοΰ 1955, καϊ ούτοι ουδέποτε ΰπήρΕαν Κύπριοι Υπήκοοι, ή καθ' οιονδήποτε χρόνον μεταΕύ 1955 καϊ 1960 εϊχον τήν συνήθη αυτών διαμονήν έν Κύπρω, καθ' ότι κατά τόν χρόνον πού εγκατέλειψαν 566 3 C.L.R. 5 10 15 20 25 30 55 Drousiotis v. Republic Savvides J. τήν Κυπρον ήσαν Βρεττανοϊ Υπήκοοι τής Κύπρου, ούσης τότε Βρεττανικης 'Αποικίας, αποκτήσαντες μετα­ γενεστέρους, ό μέν αποβιώσας πατήρ Υπηκοότητα Νοτίου Αφρικής, ή δέ μήτηρ διατηρήσασα τήν Βρεττανικήν ταιαύτην, εύσεβάστως υποβάλλω ότι ό ώς άνω πελάτης μου δέν δύναται νά χαρακτηρισθή ώς Πολίτης της Δημοκρατίας δυνάμει τοΰ Νόμου 43/67 καϊ τοΰ παραρτήματος''Δ* τής Συνθήκης 'Εγκαθιδρύσεως. (ζ) Περαιτέρω δέ επιθυμώ νά αναφερθώ είς τήν πρόσφατου άπόφασιν τού Ανωτάτου Δικαστηρίου Κύπρου ύπ' άρ. 304/78 μεταΕύ Μαρίνου Πιερή καί της Κυπριακής Δημοκρατίας, ή οποία πιστεύω 6τι εΐναι χρήσιμος καϊ είς τήν παροΰσαν ύπόθεσιν. 'Εν 6ψει των ανωτέρω, εύσεβάστως υποβάλλω αϊτησιν όπως έκδοθη Πιστοποιηιικάν ότι ό ώς άνω πελάτης μου δέν είναι Πολίτης τής Κυπριακής Δημοκρατίας καθώς και Βεβαίωσις OTtούτος δένΘεωρείται στρατεύσιμος καϊεξαιρείται της υποχρεώσεως κατατάΕεως καϊ υπηρεσίας είς τήν Έθνικήν Φρουράν." ("I have been directed by my above client to apply to you and humbly submit an application so that he may be exempted from the obligation to enlist and serve m the National Guard for the following leasons: (a) My above client/applicant, was born in South Africa on the 14th April, 1961 and is a citizen of South Africa and holder of passport No. P034334 of this country. (See enclosed photocopies, exhibits A, Β and C). (b) His father Nicos S. Drousiotis was born in Cyprus on the 18th February, 1918, and on or about 1946 he emigrated to South Africa where he obtained the citizenship of South Africa and was the holder of passport No. J. 65303 of this country. On or about the 26th July, 1962 he died and was buried in South Africa on the 28th July,
4. (See exhibits D, Ε and F). (c) His mother Chloi N. Drousioti, formerly Pavlidou, was born at Pano Lefkara on the 13th October, 1926, was married to the deceased Nicos S. Drousiotis 567 Savvides J. Drousiotis v. Republic

(1980)on or about 1953 and having gone with him to South Africa, she settled there permanently. She is a citizen of the United Kingdom and holder of British passport No. 80321. (

1. d)On or about the 4th September, 1962, my above client 5 with his mother and his two sisters Demetra and Eliza, came and settled in Cyprus, where they have been residing ever since. (
2. e)In view of the above and in view of the fact that the parents of my above client were residing outside 10 Cyprus before 1955, and that they have never been citizens of Cyprus,or at any timebetween 1955and I960 had their residence in Cyprus, since at the time when they left Cyprus they were British subjects of Cyprus, which was then a British Colony, and the deceased 15 father having acquired later the citizenship of South Africa, and the mother having retained the British citizenship, I humbly submit that. my above client cannot be considered as a citizen of the Republic by virtue of Law 43/67 and Annex ' D ' to the Treaty 20 of Establishment. (
3. f)Further I would like to refer to the recent decision of the Supreme Court of Cyprus No. 304/78 between Marinos Pieri and The Republic which I believe is useful in the instant case. In view of the above I humbly submit an application for the issue of a certificate that my above client is not a citizen of the Republic of Cyprus and a confirmation that he is not considered as a conscript and is exempted from the obligation to enlist and serve in the National Guard"). 25 30 On or about the 26th May, 1979 the respondent in reply to such letter, informed the applicant that he was not a citizen of the Republic and in consequence he had no duty to serve in the National Guard. Such letter reads as follows: " Ένετάλην δπως αναφερθώ είς τήν έπιστολήν σας ήμερο- 35 μην(ας 16ης 'Απριλίου 1979 έν σχέσει μέ τάς στρατιωτικάς υποχρεώσεις τοΰ πελάτουσας ΣυμεώνΔρουσιώτη τοΰΝίκου καϊ τής Χλόης ό όποιος έγεννήθη ε!ς Νότιον Άφρικήν τήν 568 3 C.L.R. 5 10 15 Drousiotis v. Republic Saw ides J. 14.4.1961 καϊ νά σας πληροφορήσω ότι έκ τής έΕετάσεως των παρ* ήμϊν στοιχείων προκύπτει δτι ό έν θέματιΣυμεών Δρουσιώτης δέν άπέκτησεν μέχρι σήμερον τήν Κυπρκχκήν υπηκοότητα δυνάμει τοΰ έν Κύπρω κρατούντος δικαίου περϊ Ιθαγενείας, καϊ έ<ρ'όσον δέν είναι πολίτης τήςΔημοκρα­ τίας, ούτος δέν υπέχει έπ! τοΰ παρόντος ύποχρέωσιν θητείας είς τήν Έθνικήν Φρουράν." ("I have been directed to refer to your letter dated 16th April, 1979 in respect of the military obligations of your client Symeon Droushiotis, son of Nicos and Chloi, who was born in South Africa on the 14.4.1961 and to inform you that on examination of our records it appears that the above-named Symeon Droushiotis, until to-day, has not acquired, the Cypriot citizenship in accordance with Citizenship legislation in force in Cyprus and since he is not a citizen of the Republic, he is not liable, for the time being, to serve in the National Guard"). Relying on the said letter he continued residing in Cyprus preparing himself for admission in a University in Italy. 20 25 30 35 In the summer of 1979 applicant left Cyprus for a short period and returned back without any problem arising concer­ ning an exit permit. After his re-entry to Cyprus he was issued with an alien's registration certificate issued by the Republic of Cyprus dated the 14th November, 1979, photocopy of which appears in exhibits 3 and 4 and with a temporary resident's permit (exhibit 12) permitting him to stay in Cyprus as a visitor till the 30th August, 1980. The applicant intends now to proceed to Italy for University studies in architecture. On or about the 10th of April, 1980, applicant was informed by the Police authorities to appear at the police station where he was told that he should enlist in the National Guard for service as from July, 1980. The applicant got in touch with the Army recruiting office to whom he produced the letter of the Minister exempting him from service and he was informed that if he fails to enlist in July, 1980 he will be prosecuted before the Court Marshal. As a result, he filed the present recourse. Though there is no written document embodying the alleged decision for his enlistment in the National Guard, there is no 569 Sawides J. Drousiotis v. Republic dispute about this fact as bypara. 7of the facts set out in the Opposition, it is admitted that applicant was called to serve in the National Guard and that inanyevent suchactwas lawful. The decision complained of is admitted under para. 1 of the Opposition, whereby it is stated that the decision complained of was lawful and had been taken in accordance with the National Guard Laws 1964-1979.

(1980)5 It is an undisputed fact that the applicant is an alien with permission to stayinCyprustill theendofAugust, 1980,subject to the renewal of his permit. 10 It is also a common ground that before the enactment of section 2of the National Guard (Amendment) Law, 1978(Law 22/78), the applicant could not be considered as a citizen o r the Republic and therefore, he was not liable for service in the National Guard under the provisions of section 4 of the 15 National Guard Laws 1964-1977 which imposed such duty on citizens of the Republic only. As theie was no material dispute about the facts of the case, counsel restricted themselves in arguing the legal aspect of the case which turns around the question of the constitutionahty 20 of section 2(

1. b)of the National Guard (Amendment) Law, 1978(Law22/78)whereby theprevioussection 2ofthe National Guard Laws 1964-1977 is amended. Counsel for applicant submitted that suchamendment isunconstitutional, as offending the provisions of Annex "D" of the Treaty of Establishment 25 the piovisions of which were safeguarded by Article 198 of the Constitution and also is contrary to the provisions of Law 43/67 which makes provision about the citizenship of Cyprus. I shall first consider the position regarding citizenship under our Constitution and the respective legislation. The Consti- 30 tution of Cyprus which resulted from the Zurich and London agreements, presents certain features resulting from the recognition of two communities, the Greek and the Turkish. Such division is permeating the whole Constitution of the Republic of Cyprus. Some examples of this, are the creation of two 35 separate Communal Chambers having separate exclusive jurisdiction on certain matters, the structure of the judiciary, the rights given to the Turkish minority members of the House of Representatives in respect of certain matters and certain 570 3 C.L.R. Drousiotis v. Republic Sawides J. other powers safeguarded for the Vice-President of the Republic. The particular features resulting from such recognition concerning the judiciary appear in the judgment of Vassiliades, J. as he then was, in the case of Simadhiakos v. The Police, 1961 5 C.L.R. p. 64. Provisions which establish the recognition of two communities and certain rights safeguarded for each community separately appear not only in the text of the Constitution but also in some of the agreements signed by the interested parties and attached to the Constitution as annexes thereto 10 at the time of the signing of the Constitution. One of these Annexes, Annex " D " makes express provision as to the citizenship. Certain categories of people become entitled to acquire automatically the citizenship of Cyprus, under the provisions of section 2 of such Annex. Other provi15 sions are made in respect of persons not falling within section 2 as to when and how theycan acquire the citizenship of Cyprus. An important feature of Annex " D " which shows clearly the intention of the drafteis of our Constitution and the participants in the signing of the agreements to keep a balance between the 20 Greek and the Turkish communities regarding the acquisition of citizenship is the express provision of paragraph 7(
2. a)of section 4 and the table set out in such paragraph whereby it is provided that a peicentage of 80 per cent in respect of Greeks and 20 per cent in respect of Turks is to be preserved, 25 in case of applications for the acquisition of the citizenship of Cyprus. Provision is made under such paragraph that— 30 "Applications shall be granted up to the full number given in each space in that Table in respect of applicants of each class irrespective of the number of applications made by or granted to applicants of any other class". This restriction refers to persons falling within the provisions of paragraphs,

(1)—

(6)of section 4. Paragraph 2 reads as follows: 35 40 "A person of Cypriot origin who immediately before the date of this Treaty was not a citizen of the United Kingdom and Colonies shall be entitled, on application to the appropriate authority of the Republic of Cypius, to be granted on or after the agreed date citizenship of the Republic of Cyprus. For the purpose of this paragraph, *a person of Cypriot origin* means a person who was, on the 5th 571 Sawides J. Drousiotis v. Republic

(1980)of November, 1914, an Ottoman subject ordinarily resident in the Island of Cyprus or who is descended in the male line from such a person". The provisions of Annex " D "were incorporated in Article 198 of the Constitution which provides as follows: 5 " l . T h e following provisions shall have effect until a law of citizenship is made incorporating such provisions— (

1. a)any matter relating to citizenship shall be governed by the provisions of Annex *D* to the Treaty of Establishment; (
2. b)any person born in Cyprus on or after the date of the coming into operation of this Constitution, shall become on thedate of his birth a citizen of the Republic if on that date his father has become a citizen of the Republic or would but for his death have become 15 such a citizen under the provisions of Annex 'D' to the Tieaty of Establishment. 2. For the purposes of this Article 'Treaty of Establish­ ment' means the Treaty concerning the Establishment of the Republic of Cypius between the Republic, the 20 kingdom of Greece,the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland". In 1967 Law 43/67 was enacted under the provisions of Article 198 making provision about citizenship of Cyprus. Under section 3 of the said Law, the provisions of Annex " D "werj 25 incorpoiated in the said Law. Section 3 reads as follows: " 3 . Πολΐται της Δημοκρατίαςείναι τα πρόσωπατα όποια, κατά τήν ήμερομηνίαντης ένάρϋεωςτής Ισχύος τοΰπαρόντος Νόμου, απέκτησαν ή δικαιούνται νά άποκτήσωσι τήν Ιδιό­ τητα τοΰ πολίτου της Δημοκρατίας δυνάμει τών διατάξεων 30 τοΰ Παραρτήματος Δ ή τα όποια μετά τήν ρηθεϊσαν ήμερο­ μηνίαν άποκτώσιτήν τοιαύτην Ιδιότητα τοΰ πολίτου δυνάμει τών διατάΕεων τοΰ παρόντος Νόμου." ("3. Citizens of the Republic are the persons who, on the date of the coming into operation of this Law, either 35 have acquired or are entitled to acquire citizenship of the Republic under the provisions of Annex D or who acquire 572 10 3 C.L.R. Drousiotis v. Republic Sawides J. thereafter such citizenship under the provisions of this Law"). In 1964 due to the abnormal situation which was created as a iesult of the intercommunal troubles, Law 20/64 was 5 enacted, providing for thesetting up of a military force under the name "National Guard". S.3 empowers the Council of Ministers whenever considering it necessary, to proceed with the settlingup ofthe National Guard and alsoitmakes provision as to the persons liable to serve in such force. Section 3 reads 10 as follows: 15 20 25 " 3 .

(1)To Ύπουργικόν Συμβούλιον δύναται όταν θεώρηση τούτο σκόπιμον λόγω απειλούμενης εισβολής ή οίασδήποτε ενεργείας κατευθυνόμενης κατά της ανεξαρτησίας ή τήςεδα­ φικής άκεραιότητος τής Δημοκρατίας ή άπειλούσης τήν άσφάλειαν ζωής ή περιουσίας νά προβή εϊςτόν σχηματισμόν δυνάμεως, ήτις 0ά καλήται * 'Εθνική Φρουρά', έπϊ σκοπώ βοηθείας τοΰ στρατοΰ τής Δημοκρατίας ή τών δυνάμεων ασφαλείας ταύτης ή καϊ αμφοτέρων είς όλα τά μέτρα τά απαιτούμενα διάτήν άμυναν αυτής.

(2)Τηρουμένων τών διατάξεων τοΰ άρθρου 10 ή Δϋναμις συνίσταται έκστρατευσίμων πολιτών της Δημοκρατίας οΐτινες ήθελον κληθή δι' ύπηρεσίαν δυνάμει τών διατάξεων τοΰ παρόντος Νόμου καϊ συγκροτείται ίί αξιωματικών καϊ ανθυ­ πασπιστών μονίμων, δοκίμων καϊ επικούρων καϊέϋόπλιτώ1.' αποτελουμένων έκστρατευσίμων καϊ στρατευσίμων εθελοντών.

(3)ΤοΎπουργικόν Συμβούλιον κέκτηται έίουσίαν από καιροΰ είς καιρόν όπως καθορίζη τόν αριθμόν τής Δυνάμεως είς αξιωματικούς καϊ όπλίτας." 30 35 ("3.-

(1)TheCouncil of Ministers may, when it considers it expedient because ofa threatened invasion oranyactivity directed against the independence or the territorial integrity of the Republic or threatening the security of life or property, proceed to the establishment of a force, to be called 'National Guard', with the object of aiding the army of the Republic or its security forces or both in all measures required for its defence.

(2)Subject to the provisions of section 10, the Force . shall consist. of citizens of the Republic who are liable to serve andwhomaybe called outfor service under the 573 Sawides J . Drousiotis v. Republic

(1980)provisions of this Law and be composed of officers and warrant officers, regular, on probation and auxiliary, and other ranks comprising servicemen and service volunleeis.

(3)The Council of Ministers may from time to time piescribe trie strength of the Force in officers and other ranks.") 5 It is clear from the provisions of section 3 sub-section

(2)that such force could only be set up of citizens of the Republic and was not intended to extend to any other peisons. In section 2 of the said Law, there is no provision as to who are 10 considered citizens of the Republic. It was obvious that there was no need for such provision as it was clear from the provi­ sions of Article 198 of the Constitution as to the persons who could be treated as citizens of the Republic. The said law underwent numerous amendments by subsequent legislation 15 but there was no amendment of section

1. In 1978, Law 22/78 was enacted, effecting certain amendments to the previous laws, all of which, except one, are not material for the purposes of the present case. The only material amendment was effected by section 2 of such law by introducing a definition of the 20 words "citizen of the Republic" for the purposes of such law. Such section reads as follows; "
2. To άρθρον 2 τοΰ βασικού νόμου τροποποιείται ώς ακολούθως: (β) διά τής αύτώ ένθέσεως εϊς την δέουσαν άλφαβητικήν 25 αύτοΰ σειράν, τοΰ ακολούθου νέου όρισμοΰ:'πολίτης τής Δημοκρατίας' σημαίνει πολίτην της Δημοκρατίας καϊ περιλαμβάνει πρόσωπον Κυπριακής καταγωγής ti άρρενογονίας, ήτοι(α) πρόσωπον, το όποιον κατέστη Βρεττανός Οπή- 30 κοος δυνάμει τών περί Προσαρτήσεως τής Κύπρου Διαιαγμάτων έν Συμβουλίω τοΰ 1914 έως 1943· ή (β) πρόσωπον, τό όποιον έγεννήθη έν Κύπρω κατά ή μετά τήν 5ην Νοεμβρίου, 1914, καθ' δν χρόνον ο! 35 γονείς αύτοΰ διίμενον συνήθως έν Κύπρω· ή 574 3 C.L.R. Drousiotis v. Republic Sawides J. (γ) έίώγαμον ή νόθον τέκνον τοΰ οποίου ή μήτηρ κατείχε κατά τόν χρόνον τής γεννήσεως αύτοΰ τά προσόντα τά αναφερόμεναέν τη άνωπαραγράφω (α) ή (β) τοΰ παρόντος όρισμοΰ· ή 5 (δ) πρόσωπον καταγόμενον ti άρρενογονίας έκ προ­ σώπου οίον αναφέρεται έν τή άνω παραγράφω (α) ή (β) ή (γ) τοΰ παρόντος όρισμοΰ." ("Section 2 of the principal law is hereby amended as follows:(a) „ „_ „ _ 10 (b) By the insertion therein, in its proper alphabetical oider, of the following new definition :'Citizen of the Republic' means citizen of the Republic and includes a person of Cypriot origin descended in the male line, that is- 15 20 (a) a person whohas become a British subject under the provisions of the Cypius (Annexation) Orders in Council 1914-1943; or (b) a person bom in Cyprus on or after the 5th November, 1914 at a time when his parents were ordinarily residing in Cyprus; oi (c) an illegitimate child whose mother, at the time of his birth, possessed the qualifications refeired to in paragraphs (a) or (b) of this definition; or 25 (d) a person descended inthemale line from a person referred to in paragraphs (a)or (b)or (c)of this definition"). It is clear that such definition was creating a situation in which a person otherwise treated as an alien under the Con­ stitution and the legislation of Cyprus concerning aliens was 30 to be deemed as a citizen of the Republic for thepurposes of the National Guard Law. The question of constitutionality of such section was raised before this Court in the case of Pieri v. The Republic

(1979)3 C.L.R. 91 in which the Court after considering such section in thelight of Article 198of the Con35 stitution, reached the conclusion that such provision wasuncon575 Sa>\ides J. Drousiotis v. Republic

(1980)stitutional as offending Article 198 of the Constitution. In concluding the judgment, Malachtos, J. at page 98 had this to say: "It is clear from the provisions of Article 198 that any law of citizenship made which does not incorporate the 5 provisions of Annex D to the Treaty of Establishment or incorporates provisionswhicharecontrary totheprovisions of Annex D, is unconstitutional, as offending the said article. Therefore, section 2(b) of the National Guard (Amendment) Law, 1978, is unconstitutional. Conse- 10 quently, the decision of the Council of Ministers under No. 17378 dated 2/11/1978, which was published in the official Gazette of the Republic of the 17th November, 1978, by which the class of the applicant was called up for conscription, in so far as the applicant is concerned, 15 isdeclared null and void and ofno legaleffect whatsoever." The said judgment, though a judgment of a Judge exercising original jurisdiction, was not appealed from and formed the basis of future conduct of the Government till the time that they decided to ignore the said judgment and treat the persons 20 of thecategory of the applicant asliableto military conscription undei the 1978 amendment. Counsel for respondent contested the validity of the said judgment and submitted that the said amendment was made for the purposes of that particular law, and that even under 25 the International Law, aliens weie subject to military conscription in cases of emergency Once International Law was raised by counsel, I shall deal briefly with the position arising under the International Law before making my final verdict on the issue before me. In 30 Greig's International Law, 1st Edition, 1970 at p. 66, it reads as follows·"Not surprisingly, the rule that customary international law ispait of the law ofthe land is generally accepted, and in cases of conflict with municipal legislation, the statutory 35 provision prevails. One of the best known authorities for this proposition is the decision of the Australian High Court in Polites v. The Commonwealth, in which it was held that though there was a rule of international law that 576 3 C.L.R. 5 Drousiotis τ. Republic Sawides J. aliens should not be compelled to serve in the military forces of the foreign state where they happened to be, and though such a rule was therefore part of the law of the land,the rule of constructionthat,in the interpretation of statutes, it must be presumed that Parliament did not intendtoactinderogationof theprinciples of international law was ousted in this case by the express provisions of the National Security. Act." The case of Polites v. The Commonwealth of Australiais 10 reported in 1945 C.L.R. vol. 70 at p. 60. In this case which was infact thejudgment oftheCouitintwocases heardtogether (Polites v. The Commonwealth and another andKondiliotes v. TheCommonwealth and Another), thequestion whether aliens can be compelled to serve in the Military Force of a foreign 15 state in which they happened to be notwithstanding any rule of international law to the contrary, was in issue. The facts of these cases as briefly stated in thejudgment of LathamC.J. at p. 67, are as follows: 20 25 30 35 "These demurrers raise the question of the validity of reg. 7 of the National Security (Aliens Service) Regulations as appearing in Statutory Rules 1942 No. 39, and of Part II of the National Security (Aliens Service) Regulations as enacted in substitution for that regulation by Statutory Rules 1943 No. 108. Theplaintiff Speros Polites is a nationalof theKingdom of Greece, and is 29 years of age. A notice was served upon him in pursuance of thefirst-mentionedregulation requiring himtoserveinthemilitary forces of theCommon­ wealth. The plaintiff in the second action, Orpheus Kondiliotes, is also a Greek national, and is 25 years of age. He was required to serve with the military forces of the Commonwealthby anoticegiventohiminpursuance of reg. 7 contained in Part II of the later Regulations mentioned. The two sets of regulations are substantially identical. They purport to authorize an area officer to serve a notice requiring any male allied national, with certain exceptions which are not material to the present cases,toserveinthemilitary forces of theCommonwealth.'· In dealing with theissuesbefore him,LathamC.J.isreported 40 to have said the following:577 Sawides J . Drousiotis v. Republic

(1980)'"Under the provisions of these Regulations, the service of a notice by an area officer imposes an obligation of military service upon certain aliens. It is argued for the plaintiffs, first, that there is a general rule of construction of statutes accordingtowhich,unlessthecontrary intention 5 is clear, it is to be presumed that they do not violate any recognized rule of international law; secondly, that there is a well-established rule of international law that aliens cannot be compelled to serve in the military forces of a foreign State in which they happen to be; thirdly, that 10 the Regulations aremadeunder a provision inthe National Security Act 1939asamended, namely s. 13A,which refers to persons generally; that these general words must be limited in some way, as otherwise they would apply to all persons in the world, and that one proper limitation 15 is to be found in the recognition and application of the rule of international lawto which reference has been made. By this course of reasoning, it is sought to establish the piopositions that the Regulations are a clear breach of an established rule of international law, and that s. 13A 20 of the National Security Act should be construed as not intended to authorize such a violation of established principle. The first proposition for which the plaintiffs contend is well established by many authorities. Perhaps it is 25 most conveniently stated in Bloxam v. Favre

(1883)8 P.D. 101, at p. 107) where Sir James Hannen approved the statement in Maxwell on Interpretation of Statutes, 8th ed.

(1937), p. 130that 'eveiy statute is to be so interpreted and applied, as far as its language admits, as not 30 to be inconsistent with the comity of nations or with the established rules ofinternational law'. See also Craies on Statute Law, 4th ed.

(1936), p. 379, and Oppenheim, International Law, 5th ed.

(1937), vol. I., p. 37. But all the authorities in English law also recognize 35 that Courts are bound by the statute law of their country, even if that law should violate a rule of international law: See, e.g. Croft v. Dunphywhere, after reference to the well-known authorities of R. v. Burahand Hodge v. The Queen establishing that Dominion Parliaments have, 40 within the limits of their powers, authority as plenary 578 3 C.L.R. 5 10 15 20 25 30 35 40 Drousiotis v. Republic Sawides J. and as ample as that of the Imperial Pailiament, it is said that 'legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the Courts of this country, for in these Courts the legislation of the Imperial Parliament cannot be challenged as ultra vires', that is, as ultra vires by reason of being inconsistent with international law. It was not really argued, and it could not, I think, successfully be contended, that the powers conferred on the Commonwealth Parliament itself by the Constitution, s. 5l(vi), relating to naval and military defence, and s. 51(xix), 'naturalization and aliens', were limited in any other manner than by the description of the subject matter. The Commonwealth Parliament can legislate on these matters in breach of international law, taking the risk of international complications. This is recognized as being the position in Great Britain -cf. Crates on Statute Law, 4th ed.

(1936), p. 393: 'Each State can, at its own international risks, reject the opinions of other States as to international law'. The position is the same in the United States of -- America: See UnitedStates v. Ferreira;Botiller v. Dominquez; Hijo v. United States. And see Willoughby on the Constitution of the United States, 2nd ed.

(1929)vol. 2, pp. 1316 et seq.. It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though everyeffort should bemade to construe Commonwealth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but is a question whether in fact it has done so. The next step in the plaintiffs' argument depends upon the establishment of the proposition that there is a rule of international law which prevents a State from imposing an obligation of military service upon aliens resident within the territory. In order to establish this proposition Mr. Phillips referred to the writings ofjurists, to diplomatic practice, and, in particular, to the practice and the policy adopted by Great Britain. He clearly showed that there 579 Sawides J. * * Drousiotis v. Republic

(1980)was a rule which prevented the imposition upon resident aliens of an obligation to serve in the armed forces of the countiy in which they resided, unless the State to which they belonged consented to waivethis ordinarily recognized exemption. (No such consent is alleged in the present 5 cases.) This rule, however, does not prevent compulsory service in a local police force, or, apparently, compulsory service for the purpose of maintaining public order or repelling a sudden invasion. Authority for these propositions is to be found in Oppenheim, International Law, 10 5th ed.

(1937), vol. I., pp. 541, 542; Walker's Manual of Public International Law

(1895), p. 47; Pitt Cobbett's Cases on International Law, 5th ed.

(1937), vol. I., p. 203; Hall, Tieatise on International Law, 8th ed.

(1924), pp. 259, 260, where the distinction is drawn between the 15 use of military forces for ordinary national or political objects and police action to preserve social order or to protect the population against an invasion by savages." Reference to the same case is also made by O'Connell International Law, 2nd Edition, at p. 703 dealing with the subject 20 of liability of aliens to military service. The following is stated therein: "A distinction is usually drawn for jurisdictional purposes between casual and permanent sojourn of aliens, but it is one which only practice can elucidate. The heart of 25 the distinction is the duty of aliens to serve in the armed forces of the receiving State. In Politesv. The Commonwealththe High Court of Australia was of opinion that an alien was exempted from service in virtue of a rule of international law, though it found itself obliged to apply 30 the Australian conscription legislation which failed to distinguish between nationals and aliens The United States practice provides the acid test. In December 1941, it was enacted that all resident males between the ages of twenty and forty-five were liable to 35 military service, but nationals of neutral States could apply for exemption. The effect of such application was to debar them from becoming citizens. Under the Immigration and Nationality Act of 1952 an alien who claims 580 3 C.L.R. ' 5 10 15 20 25 30 35 40 Drousiotis v. Republic Sawides J. exemption from military service becomes permanently ineligible for citizenship. The practical result is that an alien resident in the United States for the purpose of qualifying for citizenship must serve if he does not wish to be disqualified. He may, however, not serve, in which case he is in danger of losing his residence rights. A distinction is thus set up between permanent and impermanent residence, the onus of choice between permanency and impermanency in fact resting on the alien. There has been no significant protest to this jurisdiction, and itcannotbeconcludedthat thisconscription ofpermanently resident aliens who are candidates for citizenship is in violation of international law. The basis of the obligation to military service is defence of the community of which one forms part. Nationality as such is a much less relevant consideiation than permanence of residence. Theie are a number of historical occasions when a distinction wasurged between permanent and tempoiary residence, and a tendency in treaties has heen to accord the right of conscription rather than to endorse it. However, at times it has been inferred that foreign nationals may not be conscripted at all, even when they also have the nationality of the conscripting State. In 1929 the Tripartite Claims Commission between the United States, Austria and Hungary dealt with a person who was a national of the United States Jure soli and a national of Austriajure sanguinis. The issue was whether the Government of the Dual Monarchy had breached international law in calling him to the colours when he was at the time within its territory. The Commission upheld the conscription in the circumstances of the case, but it accepted as a general principle that a State may call up only its own nationals. It is probable that in the circumstances of modern defence, and with the relaxation of national sentiment in favour of a sentiment of collective security, this rule, if it was ever firmly settled, must be taken to apply in its stringency only to aliens temporarily resident. The Hague Codification Conference in 1930 adopted a Protocol Relating to Military Obligation in Ceitain Cases of Double Nationality, which provides that a person 581 Sawides J. Drousiotis \. Republic

(1980)possessing two 01more nationalities but habitually resident in one of the countries whose nationality he possesses and with which he is in fact most closely connected, shall be exempt from all military obligations in the other country or countries, although this may result in the loss of the 5 alternative nationality or nationalities. If a person possesses a nationality of two or more States, and under the law of any one of them he has the right at majority to renounce the nationality of that State, he shall be exempt from military service in such State during his minority. 10 A person who has lost the nationality of a State ceases to be liable to military service therein. Sometimes commercial treaties contain exemptions from military service." In Oppenheim's International Law, Vol. I, 8th Edition at pages 680, 681 and 682, the following are stated: 15 "If in consequence of a public calamity, such as the outbreak of a fire or an infectious disease, certain administrative restrictions are enforced, they can be enforced against all aliens, as well as against citizens. But apart from juris- 20 diction, and mere local administrative arrangements, which concern all aliens alike, a distinction must bemade between such aliens as are merely travelling, and stay, therefore, only temporarily on the territory, and such as take up their residence there either permanently or for 25 some length of time. A State has wider powers over aliens of the latter kind; it can make them pay rates and taxes, and can even compel them in case of need, and under the same conditions as citizens, to serve in the local police and the localfirebrigadefor thepurpose of maintai- 30 ning public order and safety. On the other hand, an alien does not fall under the personal supremacy of the local State; therefore he cannot, unless his own State consents, be made to serveinitsarmy or navy, and cannot, like a citizen, be treated according to discretion." 35 In Polites case (supra) the Court was dealing with legislation concerning aliens and not nationals of the Commonwealth of Australia. Also, the extiacts to which reference I have made from the various authorities on International Law, are dealing with the position of aliens in respect of military service. 40 582 ί \ 3 C.L.R. Drousiotis v. Republic Sawides J \ In the present case the National Guard Laws 1964-1977, section \4, make no provision about the obligation of aliens to serve \in the National Guard but it limits the provisions to citizens of the Republic only. Therefore, I find it rather academic 5 to deal with the position as to whether by amendment of the legislation concerning aliens, or by special legislation in respect thereto,an alien in Cyprus can be forced to serve in theNational Guard. I wish, however, to point out that any such legislation should take cognizance of the provisions of Aiticle 32 of the 10 Constitution which provides as follows: "Nothing in this Part contained shall preclude the Republic \ from regulating by law any matter relating to aliens in \ accordance with International Law." Furthermore, citizenship is not a status which can be imposed 15 on a person without his consent. In this respect, see Marithakis, Private International Law, 2nd Ed., Vol. A, page 253 which reads as follows: 20 25 30 35 "Διά τής τρίτης αρχής σί Πολιτεΐαι πραγματοποιούντήν άντίληψιν καθ* ην ουδείς πρέπει νά εξαναγκάζεται εϊς τήν διατήρησιντης Ιθαγενείας τήν οποίανέχει, ώς έκτοϋοποίου, πας τις πρέπει νά ί-χει το δικαίωμα δπως, έάν Θέλη,άλλάξη Ιθαγένειαν. Ή Πολιτεία, μόνον μετά ρητήν δήλωσιν βου­ λήσεως,επιτρέπειτήν ΙΕοδονέκτων μελών τηςή τήνεϊσδοχήν νέων μελών. Ή Ιθαγένεια ούτε αποβάλλεται ούτε απονέμεται έάν δέν διατυπωθη ρητώς εκπεφρασμένη βούλησις." ("By means of the third principle the States realize the notion by virtue of which no one should be forced to letain the citizenship which he has, which means that eveiy one has the right to change, if he wishes, citizenship. The State, only after an express declaration of will, allows the exit of its members or the entry of new members. Citizenship can neither be rejected nor awarded if no will is expressly formulated"). I adopt the view held by my brother Judge Malachtos in Pieri v. The Republic

(1979)3 C.L.R. 91 at p. 98, that section 2(b) of the National Guard (Amendment) Law, 1978 (Law 22/78) is contrary to the provisions of Article 198 of the Consti­ tution and Annex " D " which, Annex, has been incorporated in Article 198 and the Citizenship Law, 1967 (Law 43/67). 583 Sawides J. Drousiotis v. Republic

(1980)Consequently, Ifindthat apphcant isentitled to thedeclarations prayedfor inthisrecourse,andImakesuchdeclarationsaccordingly. Taking into consideration the circumstances of this case and the interesting points argued, I make no order for costs, 5 Subjudice decision annulled.No order as to costs. 584