clr/1981/1981_1_691.pdf

(1)of Cap.250makes theposition different. 15 Jurisdiction—Disciplinary proceedings before Medical Disciplinary Board-No jurisdiction togrant ordersof certiorariand prohibition, under Article 155.4 of the Constitution, in relation to such proceedings, because they come within the jurisdiction under Article 146—Mutual exclusivity of jurisdictions under Articles 146 and 20 155.4. 25 The applicant, a medical practitioner, applied for orders of prohibition and certiorari in relation to disciplinary proceedings against him which were pending before the Medical Disciplinary Board, set up under section 3 of Law 16/67 (as amended). At the commencement of the hearing of the application, Counsel for the respondent raised the preliminary objection that this 691 In re Frangos

(1981)Court did not possess jurisdiction to determine the application in view of the fact that the Medical Disciplinary Board was not a Court and did not perform a judicial function, but it was an administrative tribunal exercising administrative powers and therefore the disciplinary proceedings before it were admi- 5 nistrative proceedings coming within the ambit of Article 146.1 of the Constitution, and not within the ambit of Article 155.4 of the Constitution, under which orders of certiorari and prohibition could be made. Held, (after dealing with the law in England in relation to the 10 issue of what are regarded in England as being Courts and what are regarded there as being tribunals which are not Courts—vide pp. 698-700 post) that the Medical Disciplinary Board is not a Court in the sense of themeaning of a "Court" either in Cyprus or in England; that it isan administrative tribunal which has, 15 to a certain extent, to act quasi-judicially and though, if it was in England, prerogative orders might lie in respect of its proceedings or decisions, by way of judicial supervision, such orders cannot be, likewise, granted here, in view of the fact that the said Board isanadministrative organ theactsordecisions 20 of which come within the jurisdiction under Article 146 of the Constitution and in view, too, of the mutual exclusivity of the jurisdiction under Articles 146 and 155.4; and that, therefore, the application will be dismissed for lack of jurisdiction under Article 155.4 (observations in Vassiliou v. Police Disci- 25 plinary Committees

(1979)1C.L.R. 46 at p. 54 and Economides v. Military Disciplinary Board

(1979)1 C.L.R. 177 at p. 187 repeated). Held, further,

(1)that the fact that the Chairman of the respondent Medical Disciplinary Board is a Judge is not of a decisive nature as regards the question of the existence of jurisdiction in the present instance under Article 146 of the Constitution.

(2)That even assuming that the remedy by way of appeal to the Supreme Court, under section 13

(1)* of the Law, is still available as not being inconsistent with Article 146of the ConstiUnder this section any medical practitioner whose name is erased from the Register or who is suspended from practising for a specified period, as a result of a decision in disciplinary proceedings, may appeal to the Supreme Court. 692 30 35 1 C.L.R. 5 10 In re Frangos tution, the relief sought in this case by the applicant, which essentially relates to administrative acts or decisions by means of whichthecase ofthe applicant wasbrought before the Medical Disciplinary Board, does not come at all within the ambit of the said section 13

(1); and that, moreover, the availability of the special and very restricted in scope aforementioned section 13

(1)—(assuming that such remedy still validly exists by way of a quasi-criminal appeal)—would not be a sufficient reason for treating the Medical Disciplinary Board as a Court, in relation to the decisions of which a prerogative order under Article 155.4 of the Constitution would lie, instead of being, as in essence it is, an administrative tribunal, the decisions of which are subject to the exclusive jurisdiction under Article 146 of the Constitution. 15 Application dismissed. Cases referred to: Vassiliou v. Police Disciplinary Committees

(1979)1 C.L.R. 46 at pp. 53-55; 20 Economides v. Military Disciplinary Board

(1979)I C.L.R. 177 at pp. 181, 186, 187; Romadan v. The Electricity Authority of Cyprus and Another, 1 R.S.C.C. 49 at pp. 53, 54; Papasavvas v. The Educational Service Committee

(1979)1 C.L.R. 681; 25 In re CM. an Advocate

(1969)I C.L.R. 561; Decisions of the Greek Council of State in cases 1042/51 and 1633/51; Royal Aquari and Summer and Winter Garden Society, Limited v. Parkinson [1892] 1 Q.B. 431 at p. 447; 30 Attorney-General v. British Boardcasting Corporation [1978] 2 All E.R. 731; United Engineering Workers Union v. Devanayagam [1967] 2 All E.R. 367; Keramourgia "Aias" Ltd. v. Christophorou

(1975)I C.L.R. 38; 35 King v. Electricity Commissioners, Ex parte London Electricity Joint Committee Company

(1920)Limited, and others [1924] 1 K.B. 171 at p. 205; 693 ID re Frangos

(1981)R. v. BarnsleyMetropolitanBoroughCouncil,ex parte Hook [1976] 3 AH E.R. 452 at p. 458; R. v. Criminal Injuries CompensationBoard, ex parte Lain [1962] 2 All E.R. 770 at pp. 777, 784; Regina v. Statutory Committeeof the Pharmaceutical Society of GreatBritain,exparte Pharmaceutical Society of Great Britain [1981] I W.L.R. 886 at p. 893; 5 Pelides v. Republic, 3 R.S.C.C. 13 at p. 19. Application. Application for orders ofprohibition and certiorari in relation 10 to disciplinary proceedings against the applicant in case No. 3/80 which is pending before the Medical Disciplinary Board. A. Myrianthis, for the applicant. V. Aristodemou, Senior Counsel of the Republic, with /. Loizidou (Mrs.) and St. Nathanael, for the Medical 15 Disciplinary Board, respondent. /. Loizidou (Mrs.) with St. Nathanael, for the Pancyprian Medical Association and the Board of the Pancyprian Medical Association, respondents. Cur. adv. vult. 20 TRIANTAFYLLIDES P. read the jollowing judgment. At the commencement of the hearing of this application counsel for the respondents raised the preliminary objection that this Court does not possess jurisdiction to determine it in view of the fact that the Medical Disciplinary Board is not a Court and does 25 not perform a judicip.l function, but it is an administrative tribunal exercising administrative powers. 1had examined, prima facie, this issue ofjurisdiction in Civil Application No. 7/81 when 1granted to the applicant leave to apply for orders of certiorari and prohibition by means of the 30 present application, No. 9/81, and at that tijne I was not prepared, on the basis of the material before me at that stage, to pronounce that the disciplinary proceedings against the applicant before the respondent Medical Disciplinary Board are, in view of their essential nature, administrative proceedings 35 coming within the ambit of Article 146.1 of the Constitution, and, therefore, not within the ambit of Article 155.4 of the 694 1 C.L.R. In re Frangos TriantafylUdes P. Constitution, under which orders of certiorari and prohibition can be made. I said then that the issue of the jurisdiction of this Court in the present instance would have to be decided finally when 5 themerits of theapplicationfor certiorari andprohibition would be considered; so, I think that it was, indeed, very opportune that counsel for the respondents have raised this issue as a preliminary objection. I am grateful to counsel on both sides for the valuable 10 assistance which they have given me in this respect. The aforesaid Board has bsen set up under the Medical (Associations, Discipline and Pension Fund) Law, 1967 (Law 16/67)and,inparticular,undersection 3 of that Law,asamended by section 2of the Medical(Associations, Discipline andPension 15 Fund) (Amendment) Law, 1977 (Law 32/77). It is composed of a President of a District Court or a Senior District Judge, nominatedby theSupreme Court,of a Counsel of the Republic, nominated by the Attorney-General of the Republic, of two Medical Officers nominated by the Minister of Health, as ex20 officio members, and of three medical practitioners—two of whom must have practised the profession of n«dicine for at least fifteen years—who are elected for a period of three years by a general meeting of the Pancyprian Medical Association. The President of the District Court, or the Senior District 25 Judge, as the case may be,is the Chairman of the Disciphnary Board and in case of his absence or incapacity the duties of the Chairman are exercised by the Counsel of the Republic. The functions of the Board are set out in section 3

(1)of Law 16/67, and they are essentially the exercise of control and disci30 plinary powers over medical practitioners, in accordance with the relevant legislative provisions. Ϊ will not refer in detail to the procedure and to the powers of the Board, as they are set out in sections 3, 4 and 5 of Law 16/67, as amended by Law 32/77, but I have taken them very 35 carefully into account in reaching my present decision on the preliminary issue of jurisdiction. In Vassiliou v. Police.Disciplinary Committees,

(1979)1C.L.R. 46, 53-55, and Economides v. Military Disciplinary Board, 695 TriantafyUides P . In re Frangos

(1979)1C.L.R. 177, 181,186, 187,this Court has adopted the approach, as regards the extent of itsjurisdiction under Article 155.4 of the Constitution, which was initially adopted in Ramadan v. The ElectricityAuthority of Cyprusand another, 1 R.S.C.C. 49, 53, 54. 5 Thegist ofsuchapproach isthat whenever any act ordecision is within the exclusivejurisdiction of Article 146of the Constitution then that matter cannot be within the ambit of Article 155.4, and in such a case an order of certiorari or an order of prohibition cannot be made. 10 Disciplinary control in the Vassiliou and Economides cases, supra, was found to amount to the exercise of executive or administrative authority in the sense of Article 146.1· of the Constitution. In the later case of Papasavvas v. The Educational Service 15 Committee,

(1979)1 C.L.R.681,1didleaveopen,ingrantingleave to applyfor orders of certiorari and prohibition,the question of whether the particular proceedings, in that case, before the Educational Service Committee, might, in view of their nature, be regarded as coming within the ambit of Article 155.4 of the 20 Constitution, but 1 had not the opportunity to pronounce finally on thatmatter, assubsequently thecasewasdiscontinued. Counsel for the applicant has argued that the position in the present instance is the same as that in respect of the Advocates Disciplinary Board and, therefore, since under the relevant 25 provisions of theAdvocates Law,Cap.2,thedecisionstakenby the Advocates Disciplinary Board have been made subject to appealto theSupreme Court, theMedical Disciplinary Board should be regarded as being a body on the same footing, and its decisions should be treated as coming within thejurisdiction 30 of the Supreme Court under Article 155.4 of the Constitution, and not ascoming within theambit ofArticle 146ofthe Constitution. In the case of In re CM. anAdvocate,

(1969)1C.L.R. 561, the Full Bench of the Supreme Court held that there was no 35 jurisdiction under Article 146 in relation to the decisions of the Advocates Disciplinary Board, because advocates arc officcis of the Court and disciplinary matters concerning them are considered as being related to the administration ofjustice. 696 1 CX.R. ID re Frangos TrlantafjHides P. On that occasion reference was, also, made (at p. 568) to the corresponding position in Greece and to the Decisions of the Council of State in Greece in cases 1042

(51)and 1633

(51)(as reportedinZacharopoulosDigestoftheDecisionsoftheCouncil 5 of State, 1935-1952, p. 300, paras. 46 and 47). Mr. Justice Josephides in delivering his judgment in that case stated the following (at p. 573): 10 15 20 25 30 'One of the preliminary points taken by respondent's counsel, and later abandoned, was that the proceedings beforetheDisciplinary Board wereofanaturewhichshould bechallenged under Article 146ofthe Constitution and not as provided in section 17 of the Advocates Law,-Cap. 2 (as amended). In addition to the authority quotedinthe ruling of my brother Triantafyllides, J. earlier, it should, Ithink, also hi stated that in Franc:, which hasthe oldest system of droit administratis although the disciplinary organs of the various public professions (such as-medical practitioners, architects, dentists, pharmaceutical chemists and all levels of the teaching profession) are controlled by the administrative tribunals, significantly, the bodies controlling the legal profession are subordinated to the civil Courts and not to the Conseil d' Etal or any of the other inferior administrative tribunals (cf. Brown and Garner's French Administrative Law

(1967), page 26)". In Brown and Garner on French Administrative Law, 2nd ed.(at pp.27and 28)thereistobefound thefollowing passage: "On the other hand, perhaps the largest single group of French 'administrative tribunals' are oneswhich we should classify ratherasdomestictribunals,namelythedisciplinary organs of the various public professions, such as medical practitioners, architects, dentists, pharmaceutical chemists and all levels of the teaching profession. Significantly, thebodiescontrolling the legal profession are subordinated to the civil Courts". 35 It is correct that in Greec;, subject of course to the relevant legislative provisions, disciplinary proceedings against medical practitioners aretreated asmatters within thejurisdiction of the Council ofState,asthehighestAdministrative Court,and useful reference, in this respect, may be made to cases Nos. 522/65, 40 124/64and 125/64, which were determined by the said Council. 697 TrianlafyHides P. ID re Frangos

(1981)The position in England is essentially different because, as pointed out already in the Vassiliou and Economides cases, supra, they do not have in England the two mutually exclusive jurisdictions under Articles 146and 155.4 of our Constitution. It might, however, be useful to refer to the law in England 5 in relation to the issueofwhat are regarded inEngland asbeing Courts and what arc regarded there as being tribunals which are not Courts. The said tribunals are in England subject tojudicial control by means of the prerogative orders of certiorari, prohibition 10 and mandamus, whichisnowdescribed astheprocessof "judicial review", but in Cyprus they come within the jurisdiction under Article 146, and not within that under Article 155.4 of the Constitution. In Halsbury's Laws of England, 4th ed., vol. 10, p. 314, 15 paragraph 702, there are stated the following:"What is a Court in law. The question is whether the tribunal is a Court, not whether it is a Court of justice, for there are Courts which are not Courts of justice. In determining whether a tribunal is ajudicial body the facts 20 that it has been appointed by a nonjudicial authority, thatithasnopowertoadministeranoath,thatthechairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statements; 25 elements to be considered are (I) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and

(2)a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present 30 throughout the proceedings. A tribunal is not necessarily a Court in the strict sense of exercising judicial power merely because

(1)it gives a final decision;

(2)it hears witnesses on oath;

(3)two or more contending parties appear before it bstween whom 35 it hasto decide;

(4)it givesdecisionswhich affect the rights of subjects;

(5)there is an appeal to a Court; and

(6)it is a body to which a matter is referred by another body. 698 1 C.L.R. 5 10 15 20 In re Frangof Trlantafyllldei P. Many bodies are not Courts even though they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality. Examples are the benchers of the Tnnsof Court when considering the conduct of one oftheirmembers,the disciplinary committee ofthe General Medical Council when considering questions affecting the conduct of a medical man, a trade union when exercising disciplinary jurisdiction over its members, the chief officer of a statutory force exercising discipline over members of the force, the former assessment committees, or the former Court of referees which was constituted under the Unemployment Insurance Acts. A meeting of a county council for granting music and dancing licences is not a Court. Justices in petty sessions to whom the powers of a local authority to grant cinematograph licences und-ir the Cinematograph Act 1909 and the Cinematograph Act 1952 have been delegated are not a magistrates' Court with power to state a case for the opinion of the High Court". It is relevant, in this respect, to refer, also, to the case of RoyalAquariumandSummerandWinterGardenSociety, Limited v. Parkinson,[1892] 1 Q.B. 431, 447, from which it is to be derived that the General Medical Council in England is not 25 regarded asa Court,inthe strict sense,possessingjudicialcapacity. The Royal Aquariumcase,supra,was followed in the Attorney-Generalv. British BroadcastingCorporation [1978] 2 All E.R. 731. The matter of what is judicial power in the strict sense, as 30 .distinguishable from administrative powers which require quasi-judicial functions tobeperformed sometimesbytribunals, has been examined in England in, interalia, the case of United Engineering WorkersUnion v. Devanayagam [1967] 2 All E.R. 367,in an appeal to the Privy Council from the Supreme Court 35 of what was at the time Ceylon; and this case was cited with approval by our Supreme Court in Keramourgia "Aias" Ltd. v. Christophorou,

(1975)1 C.L.R. 38. I mayrefer, also,in relation to the exercise ofjudicial control in England over tribunals, which are not Courts in the strict 40 sense, to the case of The King v. Electricity Commissioners 699 TriantflfyUides P. In reFrangos

(1981)Ex parte London Electricity Joint Committee Company

(1920), Limited, and others, 11924] 1K.B. 171,.where (at p. 205) Atkin L. J. stated the following :"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legalauthority theyaresubject tothecontrollingjurisdiction of the King's Bench Division exercised 'in these writs". 5 This approach has been applied, also,in R. v. Barnsley Metropolitan Borough Council, ex parte Hook, [1976] 3 All E.R. 452, 10 458, and was explained in R. v. Criminal Injuries Compensation Board, ex parte Lain, [1962] 2 All E.R. 770, 777, 784. A useful reference may, also, be made to the recent case of Regina v. Statutory Committee of the Pharmaceutical Society of Great Britain, ex parte Pharmaceutical Society of Great 15 Britain, [1981] 1W.L.R. 886, 893;it is clear that the Committee involved in that case was not considered to be a Court. As has been pointed out already, the Englishcase-law,which is relevant to the question of finding out what is a "Court", should be applied, as regards the power to issue, inter alia, 20 orders of certiorari and prohibition under Article 155.4 of the Constitution, subject to the overriding consideration of the existence of the mutually exclusive jurisdictions under Articles 146 and 155.4 of our Constitution, the nature of which has been expounded in the Ramadan, Vassiliou and Economides 25 cases, supra; and, therefore, when orders of ceitiorari and prohibition are soughtin Cyprus,in respect ofproceedings bsfore a tribunal, which is not a Court, such orders cannot be granted by this Court in view of the availability of a remedy by virtue. of the exclusivejurisdiction underArticle 146ofthe Constitution, 30 which renders Article 155.4 inapplicable in this connection. It was argued by counsel for the applicant that the fact that the Chairman of the Medical Disciplinary Board is a judicial officer renders it an organ outside the ambit of Article 146 of the Constitution. As, was, however, rightly pointed out in 35 United Engineering Workers Union, supra (at pp. 378, 379) by Lord Guest and Lord Devlin—who dissented from the majority of the Privy Council on other points but not on this point— "... judicial power can be entrusted to someone who is not 700 1 C.L.R, In,re Frangos TriantafjHides P. a'judicial officehand the person so entrusted is.then generally spoken of as acting quasi-judicially." So, also, administrative power, can be given to a Judge. The character of the office depends on the character of the chief function". '5 So,in myopinion, thefact that the Chairman of the Medical Disciplinary Board is a Judge is not of a decisive nature as regardsthequestionoftheexistenceofjurisdiction inthepresent instance under Article 146of the Constitution. , I have anxiously considered one other aspect of this case, 10 namely„lhe fact that by means of.section 18 of Law 16/67 the original section 16

(1)of the.Medical Registration Law, Cap; 250—which now by section 10 of the Medical Registration (AmendmentNo.2)Law,1961 (Law53/61)hasbeenrenumbered assection 13

(1)—may,apparently,havebeenallowedtocontinue 15 beinginforce; under suchsection 13

(1)anymedical practitioner whose name is to be erased from the Register, or who is to be suspended from practising for a specified period, as a' result of a decision in disciplinary proceedings, may appeal to the Supreme Court. 20 Even assuming that the remedy by way of appeal to'the Supreme Court, under section 13

(1), above, is still available as not being inconsistent with Article 146 of the Constitution, the relief sought in'this case by the applicant, which essentially relates to administrative-acts or decisions by means of which 25 the case of the applicant wasbrought before the Medical Disciplinary Board, doesnot come at all within theambit of the said section 13

(1). Moreover, the.availability of the special.and very restricted in scope aforementioned section 13

(1)—(assuming that such 30 remedy still validly e.xists by way of a quasi-criminal appeal)— would not be a sufficient, in my.opinion, reason for treating the Medical Disciplinary Board as a Court, in relation to the decisions of which a prerogative prder under Art. 155.4 of the Constitution would lie, instead of being, as in essence it is, 35 an administrative tribunal, the decisions of which are subject totheexclusivejurisdictionunderArticle 146ofthe Constitution. 1 would, at this stage, venture to express the opinion that section 13

(1)of Cap.250has to be read modified under Article 188.4 so as to substitute therein in the place of an appeal, 701' TriantafyUidM P. ID re Frugoe

(1981)within ten days, a recourse, under Article 146, above, within seventy-five days,.exactly as it was done in Pelides v. The Republic, 3 R.S.C.C 13, 19, in relation to sections 12 and 18 of the Streets and Buildings Regulation Law, Cap.

1. In the light of all the foregoing Ifindthat the Medical Disci- 5 plinary Board is not a Court in the sense of the meaning of a "Court" either in Cyprusor in England. It isan administrativetribunalwhichhas,toacertainextent,toact quasi-judicially and though, if it was in England, prerogative orders might lie in respect of its proceedings or decisions, by way of judicial 10 supervision, such orders cannot be, likewise, granted here, in view of the fact«that the said Board isan administrative organ theactsordecisionsofwhichcomewithinthejurisdiction under Article 146of the Constitution and in view, too, of the already referred to earlier on inthisjudgment mutualexclusivityof the 15 jurisdictions under Article 146 and 155.
2. I have, therefore, to dismiss this application for lack of jurisdiction under the said Article 155.
3. I would like to conclude thisjudgment with the observation, which I have made in the Vassiliou case, supra(at p. 54) and 20 I have repeated in the Economides case,supra (at p. 187), that: "Also, I would like to point out that my conclusion that the disciplinary proceedings concerned are matters coming within the ambit of Article 146.1and, therefore, not within the ambit of Article 155.4 of the Constitution, is based 25 on the material at present before me; so, I should not, ex abundanti cautela, exclude the possibility that when the said proceedings are completed and, therefore, more material in relation to their nature is available before the Court, it might be open to the applicant to put forward 30 again the contention that their essential nature is such that they do not come within the ambit of Article 146.1, but withinthat ofArticle 155.4: Imustmakeitclear,however, that I make this observation without committing myself, in any way, in this respect". 35 As regards costs I am not prepared to make any order as to costs due to the novelty of the issuesinvolved in the present case. Application dismissed. No order as to costs. 702 40