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clr/1980/1980_3_585.pdf

1 3 C.L.R. 1980 November 7 [SAVVIDES, J.] \ IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION 1 I t ' GEORGHIOS GEORGHIOU AND OTHERS, Applicants, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (CasesNos. 223, 224 and225/80). ConstitutionalLaw—Constitutionality of legislation—Section 2(

  1. b)of the NationalGuard (Amendment) Law, 1978 (Law22/78)— Unconstitutional as offendingArticle 198 of theConstitution and Annex "D" to the Treaty of Establishment. 5 National Guard—Military Service—Citizen of the Republic—Alien— Liability to serve in the National Guard—Section 2(
  2. b)of the NationalGuard (Amendment) Law, 1978 (Law 22/78) imposing such liabilityon personswho are not citizensof theRepublic, buthave descendedinthe male linefrom persons of Cyprus origin, 10 unconstitutional as offending Article 198 of theConstitution andAnnex "£>" to the TreatyofEstablishment. 15 20 The applicants, who were not citizens of the Republic but persons who have descended in the male line from persons of Cyprus origin, by means of these recourses challenged the decision of the respondents to call them up for service in the National Guard. Their recourses presented the same legal points which were in issue and have been dealt with in the case ofDrousiotisv. TheRepublic (reported inthisPart at p.563 ante) namely the constitutionality of section 2(
  3. b)of the National Guard (Amendment) Law, 1978 (Law 22/78). The Court adopting, mutatis mutandis, for the purposes of these cases the reasons set out in the above case, which are deemed to form part of this judgment: 585 Georghiou & Others v. Republic

(1980)Held,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 been incorporated in Article 198 and the Republic of Cyprus Citizenship Law, 1967 (Law 43/67); and that, consequently,applicants areentitledto the declarations prayed for in the recourses which are made accordingly. 5 Subjudice decisions annulled. Cases referred to: Drousiotisv. Republic(reported in the Part at p. 563 ante; Pieris v. Republic
(1979)3 C.L.R. 91. 10 Recourses. Recourses against the decision of the respondent whereby the applicants were asked to enlist and serve in the National Guard. A. Poetis, for the applicants. K. Michaelides, for the respondent. Cur. adv. vult. SAVVIDES J. read the following judgment. By these three recourses which were heard together as presenting common 20 questions of law and fact, the applicants pray for—
(1)a declaration that the decision of the Council of Ministers or the Minister of Interior and Defence which was published in the Cyprus Gazette No. 519 of the 30th May, 1980, Supplement No. 3 whereby the class of the applicant was called for 25 service in the national guard and/or the part of such decision whereby persons descended in the male line from persons of Cyprus origin, is null and void and of no legal effect.
(2)A declaration that the notice which was served on each of the applicants on 9.7.1980 for enhstment in the National Guard is void and of no legal effect. 30 The facts of each particular case are as follows: Applicant in Recourse No. 223/80 was bora on 20.6.1960 in Australia where his parents were residing. His parents had emigrated to Austraha on or about 1958 and they are both 35 holders of British passports. The father was born in Larnaca on the 12th June, 1933 and the mother in Rizokarpaso on the 586 15 , 3 C.L.R. Georghiou & Others v. Republic Sawtdes J. \ 4th December,
  1. The applicant returned to Cyprus in \ 1967 together with his parents. On the 17th November, 1979 \ the Emigration Department of the Ministry of Interior, issued \ a certificate to the effect that the applicant was not a citizen 51 of theRepublicundertheprovisions ofAnnex " D " of theTreaty \ of Establishment of the Republic and/or Law 43/
  2. Such 1 certificate is exhibit 1 in the case. 10 15 20 25 ι Applicant in Recourse No. 224/80 who is the holder of a ^British passport was born in London on 14.5.1962 where his parentswere permanentlyresiding since
  3. Bothhis parents areholders of British passports. Thefather was born in Livadhia, Cyprus on the 27th November, 1939 and the mother in Avlona, Cyprus, on the 3id of October,
  4. The applicant and his parents returned to Cyprus in 1977 and ever since they have been residing in Cyprus. Applicant on 19.12.1979 was issued with a certificate by the Emigration Department of the Ministry of Interior (exhibit 1) to the effect that he was the holder of a British passport and that he was not a citizen of the Republic under the provisions of Annex " D " of the Treaty of Establishment or the Citizenship Law 43/
  5. By a separate paragraph, however, it was mentionedthat the applicant being a person descended in the male line from a person of Cyprus origin, could acquire,theCyprus citizenship after anapplication to that effect. Applicant since the 20th March, 1980, was offered a vacancy for studies in the Edmonton College of Further Education with effect as from June,
  6. Applicant in Case No.225/80is the holder of a British pass­ port and was born in London on 16.1.1962 where his parents were permanently residing. Both his parents are the holders 30 of British passports. Both his parents were born in Cyprus but they had been residing permanently in England since 1947 till 1973when theycameto Cyprus. Applicant cameto Cyprus on 22.7.
  7. On 11.4.1980applicantwas issued with a similar certificate as in the other two cases that he was the holder of 35 British passport and that he was not a citizen of the Republic. Furthermore, that he could acquire the Cyprus citizenship after an application to that effect. By letter dated4thJanuary, 1980 from the Chelsy College of Aeronautical and Automobile Engineering he was offered a vacancy for a course which com40 mences on the 12th November,
  8. 587 Sawides J. Georghiou & Others v. Republic
(1980)The applicants relying on the said certificates issued by the Emigration Department, continued residing in Cyprus, waiting for the time of their departure for England, for the purpose of their studies. On the 30th May, 1980an older of the Minister of Interior 5 and Defence in the exercise of his powers under the National GuardLawswaspublishedintheofficial GazetteoftheRepublic, under Notification No. 519 whereby all male persons born in Cyprus between 1.1.1962—31.12.1962 including persons descended in the male line from persons of Cyprus origin, werecalled 10 to enlist in the National Guard. Applicants in CasesNos. 223 and 224/80 were also served with notices to enlist in the National Guard on 9.7.1980. Applicant in Case No. 225/80, after the notification of the order, addressed a letter to the Minister of Interior and Defence, dated 9.6.1980 applying for 15 exemptionbut inreplyhewasinformed byletterdated 11.6.1980 that he had to enlist in the National Guard. It is the allegation of the applicants in all cases that the said order and/or the provision of section 2 of Law 22/78 are null and void as contravening Annex"D"of theTreaty of Establish- 20 ment and the provisions of the Constitution. Counsel for the respondent by his opposition alleges that the acts complained of are lawful and taken in conformity with section 2 of the National Guard Laws, as amended by section 2(
  1. b)of the National Guard (Amendment) Law, 1978 (Law No. 25 22/78) and that the said Law does not in any way contravene the provisions of the Constitution. It is further alleged that the definition of "citizen of the Republic" set out in section 2(
  2. b)of Law 22/78 is solely for the purpose of the National Guard Laws and, therefore, it doesnot offend the Constitution, 30 asitwasnot intended to bestowupon theapplicants theCyprus citizenship. According to the allegations of counsel for the respondent, theTreaty of Establishment and Annex"D" thereto are irrelevant for the purposes of the present proceedings. Furthermore, the object of the Treaty of Estabhshment was 35 to safeguard the light of the citizenship of Cyprus to certain categories of persons who satisfy certain requirements enumerated therein, but a new law might enlarge the categories of persons who could acquire the citizenship of Cyprus even though same was not provided in the Treaty of Estabhshment. 40 Also, that the applicant though technically an alien, is in a 588 3 C.L.R. Georghiou & Others v. Republic Sawides J . privileged position vis-a-vis other aliens and is entitled to obtain the Cyprus citizenship upon application and he cannot, on the one hand enjoy all rights and privileges of a Cyprus national and on the other hand avoid the obligation to serve 5 in the National Guard imposed on all Cypriote which, obliga­ tion, is the necessary consequence of the equality enjoyed by applicant before the law and administration. It is an undisputed fact that all applicants in the present cases are aliens and according to the certificates issued by the 10 Emigration Department, could not be considered as citizens of the Republic under the provisions of the Constitution and of Annex " D " thereto or the Cyprus Citizenship Law. They could acquire the Cyprus citizenship only after an application. It is also commonground thatbefore theenactment of section 15 2 of the National Guard (Amendment) Law, 1978, (Law No. 22/78) the applicants could not be considered as citizens of the Republic and, therefore, they were not liable for service in the National Guard under the provisions of section 4 of the National Guard Laws 1967-1977 which impose such a duty on 20 citizens of the Republic only. 25 30 As there was no material dispute about the facts of the cases, counsel lestricted themselves in arguing the legal aspect of the cases and the points of law raised in the applications and the oppositions which turn round the question of the constitutionaHty of section 2(
  3. b)of the National Guard (Amendment) Law, 1978 (Law No. 22/78) whereby the previous section 2 of the National Guard Laws 1967-1977 is amended. The respective section reads as follows:"2. To άρθρον 2 τοΰ βασικού νόμου τροποποιείται ώς ακολούθως: (α) 35 _ (β) 5ιά της αύτώ ένθέσεως εις την δέουσανάλφαβητικήν αύτοΰ σειράν, τοΰ ακολούθου νέου όρισμοΰ:'πολίτης της Δημοκρατίας*σημαίνει ττολίτην της Δημο­ κρατίας καΐ περιλαμβάνει πρόσωπον Κυπριακής καταγωγής έΕ άρρενογουίας, ητοι(α) πρόσωπον, τ6 όποιον κατέστη Βρεττανόςυπήκοος 589 SaTvWes J. Georghiou & Others τ. Republic
(1980)δυνάμει των περί Προσαρτήσεως της Κύπρου Διαταγμάτων έν Συμβουλίω τοΰ 1914 έως 1943· (β) πρόσωπον, το όποιον έγεννήθη έν Κύπρω κατά ή μετά τήν 5ην Νοεμβρίου, 1914, καθ' δν χρόνον ο! γονείς αύτοΰ διέμενον συνήθως έν Κύπρω* ή 5 (γ) έΕώγαμον ή νόθον τέκνον τοΰ οποίου ή μήτηρ κατείχε κατά τόν χρόνον της γεννήσεως αύτοΰ τά προσόντα τάαναφερόμεναέντη άνωπαραγράφω (α) ή (β) τοΰ παρόντος όρισμοΰ* ή (δ) πρόσωπον καταγόμενονέΕάρρενογονίαςέκ προσώ- 10 που οΤον αναφέρεται έν τη άνω παραγράφω (α) ή (Ρ) ή (Υ) Τ™ παρόντος όρισμοΰ." ("Section 2 of the principal law is hereby amended as follows:(
  1. a)„ , , (
  2. b)By the insertion therein, in its proper alphabetical order, of the following new definition :- 15 'Citizen of the Republic' means citizen of the Republic and includes a person of Cypriot origin descended in the male line, that is(
  3. a)a person who has become a British subject under 20 the provisions of the Cyprus (Annexation) Orders in Council 1914-1943; or (
  4. b)a person born in Cyprus on or after the 5th November, 1914 at a time when his parents were ordinarily residing in Cyprus; or 25 (
  5. c)an illegitimate child whose mother, at the time of his birth, possessed the qualifications referred to in paragraphs (
  6. a)or (
  7. b)of this definition; or (
  8. d)a person descended in the male line from a person refened to in paragraphs (
  9. a)or (
  10. b)or (
  11. c)of this definition"). Counsel for applicants adopted the address of counsel for apphcant in Case No. 123/80which was heard on the same day and counsel for the respondent also adopted his address in the same case. 590 30 35 3 C.L.R. Georghiou & Others v. Republic Savvides J. The cases under consideration present the same legal points which were in issue and have already been dealt with in the case of Simeon Drousiotis v. The Republic (CaseNo. 123/80,as yet unreported*) in which judgment was delivered on the 14th 5 October, 1980. The reasons set out in the said judgment and which need not be repeated in this judgment but are adopted mutatis mutandis for the purposes of the present cases, should be deemed to form part of this judgment. Ifindmyselfunabletoagreewiththegroundsoflawadvanced 10 bycounselfor therespondentfor thereasons already mentioned in theabove case. As Ihave said inthe saidjudgment, citizenship is not a status which can be imposed on a person without his consent, as very rightly the Emigration Officei mentioned in the certificates issued by him. (Vide, in this respect, Mari15 thakis, Private International Law, 2nd Ed. Vol. A, p. 253). Malachtos,J. in Pieriv. TheRepublic
(1979)3C.L.R. 91,which wasa similarcase,hasexpressed alsothe opinionthat theprovisionsofsection2(b)ofLaw22/78werecontrarytotheprovisions of the Constitution and Annex "D" concerning citizenship, 20 which, I fully endorse. In the result, I find that section 2(b) of the National Guard (Amendment) Law, 1978 (Law No. 22/78), is contrary to the provisions of Article 198 of the Constitution andAnnex"D" thereto which has been incorporated in Article 198 and the 25 Citizenship Law, 1967 (Law No. 43/67). Consequently, I findthat applicants are entitled to the-declarations prayed for in the recourses and I make such declarations accordingly. In the special circumstances of these cases, I make no order for costs. 30 Subjudice decisions annulled. No order as tocosts. * Reported in this Part at p. 563 ante. 591

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