clr/1981/1981_3_623.pdf

(1)of the NationalGuard Law',1964 (Law 20/64)—Not unconstitutional as beingcontraryto Article 198of theConstitution andtoAnnex "D" to the TreatyofEstablishmentof the Republicof Cyprus. Constitutionallaw—Constitutionality of Legislation—Section2(b) of the National Guard(Amendment) Law, 1978 (Law 22/78) not contraryto Article 198 of the Constitution andAnnex "D" to the Treaty of Establishment. By virtue of section 4

(1)of the National Guard Law, 1964 (Law 20/64) it is provided that all citizens of the Republic are, subject to the provisions of such Law, liable to serve in the National Guard. Section2(b)*oftheNational Guard (Amendment) Law, 1978 (Law 22/78) inserted a definition of "citizen of the Republic" in section 2 of Law 20/64 and the appellant acting in pursuance of this definition called up the respondents for military service in the National Guard. The respondents, who were all born abroad and were foreign nationals and not citizens of Cyprus but their fathers have been born in Cyprus, challenged the validity of their callup by means of a recourse. The trial Judge held that they were not obliged to do military Section 2(b) is quoted at pp.625-627 post. 623 Republicv.Drousbiotis & Others

(1981)service because the said section 2(

1. b)was unconstitutional as contravening the provisions of Article 198* of the Constitution and of Annex D to the Treaty of Establishment of the Republic of Cyprus of 1960. Upon appeal by the Minister of Interior: 5 Held, (Malachtos J. dissenting) that when section 2(
2. b)of Law 22/78 is construed in accordance with its true meaning and effect it should not beregarded as a Law intended to make provision about citizenship of the Republic but, merely, as a Law extending the notion of "citizen of the Republic", which 10 is found in section 4

(1)of Law 20/64, only for the purposes of such Law; that, in other words, those foreign nationals, such as the present respondents, who are descended in the male line from persons born in Cyprus are not rendered, ipso facto, by means of section 2(

1. b)of Law 22/78,citizens of theRepublic, 15 butareonlyburdenedwiththeobligationtoserveintheNational Guard in the samemanner as citizens of the Republic;and that, therefore, it is only for the purposes of the National Guard legislation that theyare treated as beingcitizensofthe Republic andthisisdoneina descriptivemannernotaffecting theircitizen- 20 shipstatus at all;accordingly the said section2(
2. b)isnot invalid and that, consequently, the respondents, by virtue of its provisions, are liable to serve in the National Guard, being treated ascitizensof the Republic for the purposes of the NationalGuard legislation only,eventhoughthey are not,from the 25 point of view of their citizenship status, citizens of the Republic and even though they do not acquire the stutus of citizenship of the Republic by virtue of the provisions of section 2(
3. b)of Law22/78. Appealsallowed. 30 Cases referred to: Fieri v. The Republic

(1979)3 C.L.R.

1. Appeals. Appeals against the judgments of a Judge of the Supreme Court of Cyprus (Savvides, J.) given on the 14th October, 35 1980 and the 7th November, 1980 (Revisional Jurisdiction Case Nos. 123/80 and 223/80-225/80) whereby it was held that the * Article 198is quoted at p. 627 post.
2. 3 C.L.R. 5 10 Republic v. Drousblotii & Others respondents, who were born abroad and are foreign nationals and not citizens of the Republic of Cyprus, but whose fathers have beenbornin Cyprus,arenotobliged todomilitary service in the National Guard. K. Michaelides, for the appellant. X. Xenopoulos, for the respondent in Revisional Appeal No.
3. A. Poetis,for the respondents in Revisional Appeal No.
4. Cur. adv.vult. Thejudgment of the majority of the Courtwas delivered by: TRIANTAFYLLIDES P.: These two appeals which, in view of their nature were heard together, have been made against firstinstancejudgments* of a Judge of this Courtby meansof 15 which it was held, in effect, that the respondents,who were all born abroad and are foreign nationals and not citizens of Cyprus, but whose fathers have been born in Cyprus, are not obliged to do military service in the National Guard, under sections 2 and 4 of the NationalGuardLaw, 1964(Law20/64), 20 as amended,in particular, by section 2 of the NationalGuard (Amendment) Law, 1978 (Law 22/78). In theopinionof thelearned trial Judge,who,inthis respect, followed the case of Pieriv. TheRepublic,

(1979)3 C.L.R. 91, which was decided by anotherJudge of this Courtin thefirst 25 instance, and in relation to which noappeal has been made, section 2(b) of Law 22/78contravenes the provisions of Article 198 of the Constitutionand of Annex Dto the Treaty of Esta­ blishment of the Republic of Cyprus of 1960. By virtue of section 4

(1)of Law 20/64 it is provided that all 30 citizens of the Republic are, subject to the provisions of such Law, liable to serve in the NationalGuard. Section 2(b) of Law 22/78, which has inserted a definition of "citizen of the Republic" in section 2 of Law 20/64, reads as follows:35 "2. To άρθρον 2 τοϋ βασικοΰ νόμου τροποποιείται ώς ακολουθώ?:- * Reported in

(1980)3 C.L.R. 563 and585. 625 TriantafyUides P. Republic r. Dronshiotis &Others

(1981)(β) διά της έν αύτφ ένθέσεως, els την δέούσαν άλφαβητικήν αύτοΟ σειράν, τοΰ ακολούθου νέου όρισμοΰ:'πολίτης της Δημοκρατίας*σημαίνει πολίτην της Δημο­ κρατίας καϊ περιλαμβάνει πρόσωπον Κυπριακής κατα­ γ ω γ ή ; έΣ άρρενογονίας, ήτοι- 5 (α) πρόσωπον, τό όποϊον κατέστη Βρεττανός υπήκοος δυνάμει των περί Προσαρτήσεως της Κύπρου Διαταγμάτων έν Συμβουλίω τοΟ 1914 έως 1943* ή (β) πρόσωπον, τό όποιον έγεννήθη έν Κύπρω κατά ή μετά τήν 5ην Νοεμβρίου, 1914, καθ* όν χρόνον ίο οΐ γονείς αΰτοΰ διέμενον συνήθως έν Κύπρω· ή (γ) έΕώγαμον ή νόθον τέκνον τοΰ οποίου ή μήτηρ κατείχε κατά τόν χρόνον της γεννήσεως αύτοϋ τά προσόντατάαναφερόμεναένTTJάνωπαραγράφω (α) ή (β) τοΰ παρόντος ορισμού· ή 15 (δ) πρόσωπον καταγόμενονέ£άρρενογονίαςέκ προσώ­ που οίον αναφέρεται έν τη άνω παραγράφω (α) ^ (β) ή (Υ) τοΰ παρόντος όρισμοΰ". ("Section 2 of the principal law is hereby amended as follows:- 20 (

1. a)(
2. b)By the insertion therein, in its proper alphabetical order, 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— 25 (
3. a)a person who has become a British subject under the provisions of the Cyprus (Annexation) Orders in Council 1914 to 1943; or (
4. b)a person who was born in Cyprus on or after 30 the 5th of November, 1914, at a time when his parents were ordinarily residing in Cyprus; or (
5. c)an illegitimate child whose mother, at the time of his birth, possessed the qualifications referred toin paragraph (a)or (b), above, of this definition; 35 or (
6. d)a person descended in the male line from a person 626 3 C.L.R. Republic τ. Droashiotis & Others Triantafyffldes P. referred to in paragraph (
7. a)or (b), or (c), above, of this definition")· Article 198 of the Constitution reads as follows:5 "1. The following provisions shall have effect until a law of citizenship is made incorporating such provisions(
8. a)any matter relating to citizenship shall be governed by the provisions of Annex D to the Treaty of Esta­ blishment; 15 (
9. b)any person born in Cyprus, on or after the date of the coming into operation of this Constitution, shall becomeonthedateof hisbirthacitizenof theRepublic if on that date his father has become a citizen of the Republic or would but for his death have become such a citizen under the provisions of Annex D to the Treaty of Establishment. 20 2. For thepurposes of this Article 'Treaty of Establish­ ment1 means the Treaty concerning the Establishment of the Republic of Cyprus between the Republic, the Kingdom of Greece,theRepublic of Turkey andthe United Kingdom of Great Britain and Northern Ireland". 10 When there was enacted the Republic of Cyprus Citizenship Law, 1967 (Law 43/67), the provisions of the aforementioned Annex D to the Treaty of Establishment were incorporated by reference in section 3 of the said Law. 25 It could, perhaps, be said, at first sight, that section 2(
10. b)of Law 22/78 purports to make provision about citizenship of the Republic, without being the law of citizenship envisaged under Article 198of theConstitution,and,also, thatit purports to provide about citizenship of the Republic in a mannerwhich 30 is not within the ambit of Annex D to the Treaty of Establish­ ment. It is, apparently, due to such an approach that, both in the Pieri case,supra, andin thecasesnow before us,learned Judges of this Court took the view that section 2(
11. b)of Law 22/78 35 is invalid. We have eventually been persuaded, however, by counsel for theappellantthatwhensection2(b)ofLaw 22/78isconstrued 627 Triantafyllides P. Republic v. Droushiotis & Others

(1981)in accordance with its true meaning and effect it should not be regarded asa Lawintended tomakeprovision about citizenship of the Republic but, merely, as a Law extending the notion of "citizen of the Republic", which is found in section 4

(1)of Law 20/64, only for the purposes of such Law;in other words, 5 those foreign nationals, such as the present respondents, who are descended in the male line from persons born in Cyprus are not rendered, ipso facto, by means of section 2(

1. b)of Law 22/78, citizens of the Republic, but are only burdened with the obligation to serve in the National Guard in the same manner 10 ascitizens of the Republic;therefore, it isonlyfor the purposes of the National Guard legislation that they aretreated asbeing citizensof the Republic and thisisdoneina descriptivemanner not affecting their citizenship status at all. Even assuming, therefore, that wewere to hold that, in view 15 of Article 198 of the Constitution, only a Law of citizenship can make provision about the status as such of a citizen of the Republic, and that any other Law purporting to do so would beunconstitutional as being contrary to Article 198,above,we are of the view that section 2(
2. b)of Law 22/78 is not contrary 20 to Article 198, because it is not at all a legislative provision related to the status of Cyprus citizens; it is only a legislative drafting device which has been resorted to in order to bring within the ambit of the description of Cyprus citizens, for the purposes only of Law 20/64,certain persons who are not, from 25 the point of view of national status, citizens of the Republic, even though they are descended in the male linefrom Cypriote. In any case, in our view, Article 198 does not go so far as to exclude the making of provision about Cyprus citizenship by a Law which isnot the Law of citizenship envisaged bysuch 30 Article. Allthat Article 198 providesisthat cettain provisions, which are referred to therein, including the provision of Annex D to the Treaty of Establishment, shall have effect until a Law of citizenship is made incorporating such provisions, and since this has been done by means of Law 43/67,there is nothing to 35 prevent the Legislature from making fuither provisions about citizenship by means of any other Law or for the particular purposes of any other Law. In the course of the hearing of the present appeals reference 628 3 CX.R. Republic v. Droushiotis & Others TriantafyMdes P. has been made, too, to Article 32 of the Constitution which reads as follows:- 5 "Nothing inthisPart contained shallprecludetheRepublic from regulating by law any matter relating to aliens in accordance with International Law". Wedo not think that Article 32is at all relevant to the fate oftheseappeals,becauseitistobefound inPart IIoftheConstitution, in relation to Fundamental Rights and Liberties, and it is only intended to safeguard the right of the Republic to 10 regulate by Law, in accordance with International Law, any matter relating to aliens in so far as Fundamental Rights and Liberties are concerned. It is to be noted, further, that paragraph 2 of Article 10, in Part II, also, of our Constitution, provides that "No person 15 shall be required to perform forced or compulsory labour" and paragraph 3 of that Article provides that for the purposes of this Article theterm forced or compulsory labour' shall not include any service of a military character; therefore, it can be said that there exists clear provision in Article 10by virtue 20 ofwhichitislaiddownthatitisnot unconstitutionaltorequire, not only citizens of the Republic, but, also, by necessary implication, any other "person" who comes within the ambit of the competence of the appropriate organs of the Republic, to do service of a military character, as has been done in the 25 present instance in relation to the respondents to these appeals. For alltheforegoing reasons,weareof theviewthat thesaid ^ section 2(
3. b)isnot invalid andthat, consequently, the respondents, by virtue of its provisions, are liable to serve in the National Guard, being treated as citizens of the Republic for 30 thepurposesoftheNational Guard legislationonly,eventhough they are not, from the point of view of their citizenship status, citizens of the Republic and even though they do not acquire the status of citizenship of the Republic by virtue of the provisions of section 2(
4. b)of Law 22/78. 35 For alltheforegoing reasonstheseappeals should beallowed and the recourses of the respondents against the decisions of the appellant Minister requiring them to do service in the National Guard have to be dismissed accordingly. 629 Republic v. Drooshiotis & Others

(1981)MALACHTOS J.: The respondents in these two appeals were called up for service in the National Guard although they are not citizens of the Republic under Annex *D' to the Treaty of Establishment of the Republic of Cyprus Citizenship Law, 1967 (Law 43/67). This was made possible as a result 5 oftheenactment of section2(b)oftheNational Guard (Amendment) Law, 1978 (Law 22/78) which made citizens of the Republic for conscription purposes all persons who are of Cypriot origin from their fathers' side. Under section 4 of the National Guard Laws only citizens of the Republic are 10 liable to military service. The only question that falls for consideration in the present appeals is the constitutionality of the amending section 2 of Law 22/78. I have had the opportunity to deal with this question in the 15 caseofFieriv. TheRepublic,

(1979)3C.L.R. 91,whereIdecided that this amending section is unconstitutional as offending Article 198 of the Constitution. The nationality of a person cannot be changed for the purpose of serving in the armed forces of a foreign state asin the present case. This view was 20 followed by the trial Judge and I must saythat Ihavenotbeen persuaded by counsel for the appellant authority that he was wrong in reaching the conclusion he did. I woud, therefore, dismiss the appeals. TRIANTAFYLLIDES P.: In the result these appeals are allowed 25 by majority and the recourses of the applicants are dismissed. In the circumstances of these cases wehave decided to make no order as to the costs of these appeals or of the recourses concerned. Appeal allowed. No order as 30 tocosts. 630