clr/1982/1982_3_1037.pdf

(8)and 31 of the Pensions Regulations as amended by regulations 3 and 7, respectively, of the Pensions (Amendment) Regulations, 1981, and section 7

(7)of the Pensions (Secondary School Teachers) Law, 1967 (as amended by Law 40/81), to the extent that they exclude from theirambit civilservants andschoolmasters of secondaryeducation whoretired undersection 3of the Compensation{Entitled Officers) Law, 1962—Not contrary to Articles 9 and 25 of the Constitution —But they create a differentiation between these officers and therest of theservants of theStatefor whichthereisnoreasonable justification—Such different treatment involves invidious discrimination and is beyond the permissible margin of reasonable differentiation—Said Regulations and section unconstitutional becausethey are repugnant to tlxeprinciple of equality asdeclared and safeguarded by Article 28 of the Constitution. The issues to be decided in these recourses were whether 1037 Papaxenophontos and Others v. Republic

(1982)regulations 16

(8)and 31ofthePensionsRegulationsasamended by regulations 3 and 7, respectively, of the Pensions (Amendment) Regulations 1981 and section 7

(7)of the Pensions (Secondary School Teachers) Law, 1967 (Law 56/67), as amended by the Pensions (Secondary School Teachers) (Amendment) 5 Law, 1981 (Law 40/81) to the extent that they exclude from their ambit respectively a civil servant and a schoolmaster of secondary education, who retired from the Government of the Colony of Cyprus undei section 3 of the Compensation (Entitled Officers) Law, 1962(Law 52/62)were (

1. a)Unconstitutional 10 as being repugnant to Articles 9,25 and 26of the Constitution; and (
2. b)Unconstitutional as they were repugnant to the notion of equality as enunciated and safeguarded in Art 28.1 of the Constitution, as the applicants, who retired under Law 52/62 were discriminated adversely by the challenged provisions of 15 these Laws; and, also, whether the Pensions (Amendment) Regulations, 1981 were ultra vires the empowering Law. The above Regulations and s. 7

(7)provided that if a civil servant or a teacher of secondary education, as thecase maybe, retired from the respective service and is reappointed after 20 serving for not less than five year,*in the new post, on his retirement his previous service prior to his reappointment is taken into consideration inthecomputationof hispensiononhis final letirement, and any amount paid to him in the form of giatuity or otherwise should be refunded by him; but they 25 excluded a civil servant and a school-master of secondaiy education, who retired from the Government of the Colon} of Cyprus undei s.3 of the Compensation (Entitled Officers) Law. Held,

(1)that the legislature can, without impairing its sovereignty, authoiise other bodies to legislate; that delegated 30 legislation must be intra vires the enabling statute; that the Pensions (Amendment) Regulations, 1981, were made by the legislative authority itself; that their power was not delegated; that section 13provides that notwithstanding and without prejudice to the poweis delegated to the Council of Ministers, the 35 House of Representatives itself sanctioned a new set of regulations; that they are in no sense the product of delegation or subsidiary legislation but a Law enacted by the legislature itself; and that, therefoie, the question of ultra viies does not enter at all. 40 1038 3 C.L.R. 5 10 15 20 25 30 35 40 Papaxenophontos and Others v. Republic

(2)(After stating the principles governing judicialcontrol of constitutionality of statutes-videpp. 1048-1049post). ThatArticle9ofthe Constitution has no bearing on this case; that it delineates a scheme fot social action enjoining the State to implement it; that likewise Article 25 is similarly inelevant; that it safeguaids fieedom to exercise a profession oi to cany on an occupation, trade or business; and that here nobody denied professional freedom to the applicants.

(3)That since the applicants were in the employ of the State before,atandafter theestablishment of theRepublic; that since the severance of linkswiththeseivicewasmadetheoretical than real for they never interrupted their services to the State; that since the benefits under Law 52/62 were meant to compensate them foi this compulsory in effect retirement; that since compensation is a lump sum - gratuity - admittedly more than the amount that each one would have received had he retired at that time under normal circumstances; and that since this is the only difference between applicants and the rest of the servantsofthe Stateto whomarighttopensionfor pastservices the 1981legislation cameto acknowledge they should have been given a similar option, more so as the applicants found themselves at a disadvantage as a result of the changes in the Government of the country; that there is an element of injustice and unfairness in the new scheme, specifically excluding them by regulation 16

(8)and s. 7

(7)of Law 40/81; that there was no reasonable justification for this differentiation; that the different treatment of the present applicants involves invidious discrimination and isbeyond the permissible maigin ofreasonable differentiation; that though mathematical niceties cannot beused to declare aclassification unreasonable at the sametime mathematical niceties cannot laboui in favour of unreasonable and arbitrary classification; accordingly regulation 16

(8)as amended by regulation 3 of the Pensions (Amendment) Regulations, 1981, and regulation 31 as amended by regulation 4of the-Pensions (Amendment) Regulations, 1981,and s. 7

(7)of the Pensions (Secondary School Teachers) (1967-1981) as amended by the Pensions (Secondary School Teachers) (Amendment) Law, 1981 (Law No. 40/81) are unconstitutional as they are repugnant to the principle of equality as declared and safeguarded by Article 28 of the Constitution; that these provisions 1039 Papaxenophontos and Others v. Republic

(1982)are severable from the rest of the Law and can be expunged without impairing the overall legislative scheme. Subjudice decisions annulled. Cases referred to: Suleiman v. Republic, 2 R.S.C.C. 93; 5 Philokyprou v. Republic

(1966)3 C.L.R. 327; Papapetrou v. Republic

(1968)3 C.L.R. 502; Christodoulou v. Republic, 1 R.S.C.C. 1; Spyrou and Others v. Republic

(1973)3 C.L.R. 627; Fina (Cyprus) Ltd. v. Republic,4 R.S.C.C. 26; 10 Chester v. Bateson [1920] I K.B. 829 at p. 838; NewcastleBreweries Ltd. v. King [1920] 1 K.B. 854; Utah Construction andEngineering Property LimitedandAnother v. Pataky [1965] 3 All E.R. 650; Commissioners of Customs andExcise v. CureandDeeleyLtd. 15 [1962] 1 Q.B.D. 340; Police v. Hondrou, 3 R.S.C.C. 82 at p. 86; Boardfor Registration ofArchitects andCivil Engineers v. Kyriakides

(1966)3 C.L.R. 640 at p.654; Mikrommatis v. Republic, 2 R.S.C.C. 125; 20 Republic v. Arakian

(1972)3 C.L.R. 294; Levy v. Louisiana, 391 U.S.68,20 L. Ed.2d436; Lindslay v. Natural Carbonic GasCo., 220 U.S.61, 78-

1. Recourses. Recourses against the decision of the respondents whereby 25 their offer to refund the gratuity received by them in 1963 and thus qualify for a pension for the period commencing in 1943 when they joined the Public Service was turned down. A. S. Angelides, for the applicants. M. Photiou, for the respondents. 30 Cur. adv. vult. STYLIANIDES J. read the following judgment. These three recourses sprang from the enactment and application of the Pensions (Amendment) (No.2)Law,1981(LawNo.39/81)and the Pensions (Secondary School Teachers) (Amendment) Law, 35 1981 (Law No. 40/81). 1040 3 C.L.R. Papaxenophontos and Others v. Republic Stylianides J. Nicos Papaxenophontos on 10th August, 1981, by letter (exhibit No.2) purported to exercise the right conferred by Law 39/81 and the Regulations amended thereby, offering to refund the gratuity received in 1963 and thus qualify for a pension for 5 the period commencing in 1943 when he joined the service, serving uninterruptedly until his final retirement. By letter (exhibit No. 3) dated 18.9.1981 he was informed that, according to paragraph 8 of Pensions Regulation 16, as amended by Law No. 39/81, the Law had no application in his case as he had 10 retired from the Government of the Colony of Cyprus under s. 3 of the Compensation (Entitled Officers) Law,
2. Papaxenophontos was at the. material time the Head of the Department of Elementary Education. He, Leonidhas Koullis and Nicos Hji-Nicolas, Heads of the Department 15 of Secondary Education and Technical and Vocational Educa­ tion, respectively, filed Recourse No. 454/
3. 20 25 On 9.10.1981 advocate, Mr. Angelides, addressed a letter (exhibit No. 4) to the Minister of Finance whereby he applied on behalf of a number of clients of his to be given the benefit to exercise the right conferred by Laws No. 39/81 and 40/81, i.e. those who received gratuity to repay it and receive pension for the full period, both before and after the receipt of such gratuity. Reasons in support of the application are set out in the said letter. On 15.10.1981 Mr. Angelides made a similar application on behalf of Georghios N. Akathiotis, an educationalist. Before the receipt of any reply Recourse No. 456/81 was filed by 15 of the persons on whose behalf the aforesaid appli­ cations were submitted to the Minister of Finance. 30 35 Objection was taken in Recourses No. 454/81 and 456/81 to the effect that, with the exception of applicant Papa­ xenophontos, the recourses of all the other applicants were premature. On 4.1.1982 the Ministry of Finance replied to the aforesaid apphcaiions of 9.10.1981 and 15.10.1981 by exhibit No. 5 whereby the said applications were turned down as "σύμ­ φωνα μέ τήν παράγραφο

(8)τοϋ Κανονισμού 16 των περί Συντάξεων Κανονισμών, ό όποϊος εκτίθεται στον Καν. 3 των περί 1041 / Stylianides J. Papaxenophontos and Others v. Republic

(1982)Συντάξεων (Τροποποιητικών)Κανονισμών τοΰ 1981 (Νόμος39/81) καΐ εφαρμόζεται στην περίπτωση τών πελατών σας οί όποιοι ανήκουν στη Δημόσια Υπηρεσία καΐ επίσης σύμφωνα μέ τό εδάφιο

(7)τοΰ νέου άρθρου 7 τών περί Συντάξεων Καθηγητών Νόμων τοΰ 1967 εως 1981, τό όποιο εκτίθεται στο άρθρο 5 τοΰ 5 περί Συντάξεων Καθηγητών (Τροποποιητικού) Νόμου 'Αρ. 40/81, καΐ τό όποιο εφαρμόζεται στην περίπτωση τών πελατών σας που ανήκουν στή Δημόσια 'ΕκπαιδευτικήΥπηρεσία, ό Κανο­ νισμός 16 καΐ τό άρθρο 7, αντίστοιχα, δέν εφαρμόζονται στην περίπτωση τους γιατί άφυπηρέτησαν άπό τήν υπηρεσία της ]fj Κυβερνήσεως της 'Αποικίας της Κύπρου δυνάμει τοΰ άρθρου 3 τοΰ περί 'Αποζημιώσεως Δικαιούχων 'Υπαλλήλων Νόμου καΐ έτυχαν δικαίας αποζημιώσεως δυνάμει τοΰ άρθρου 192.3 τοΰ Συντάγματος". ("in accordance with paragraph 8of regulation 16of thePensions 15 Regulations, as set out in reg. 3 of the Pensions (Amendment) Regulations, 1981 (Law 39/81) and which is applicable in the case of your clients who belong to the Public Service and also in accordance with sub-section

(7)of the new section 7 of the Pensions (Secondary School Teachers) (Amendment) Law, 20 No. 40/81 and which is applicable in the case of your clients who belong to the Public Educational Service, regulation 16 and section 7 respectively, do not apply in their case because they retired from the service of the Government of the Colony of Cyprus by virtue of section 3 of the Compensation (Entitled 25 Officers) Law and they had received a just compensation under Article 192.3 of the Constitution"). On receipt of this letter Recourse No. 134/82 was filed by 17 applicants, i.e. applicants No. 2 and 3 in Case No. 454/81 -$Q and all the applicants in Case No. 456/

1. At no stage of the proceedings, however, the two aforesaid cases were withdrawn after the filing of Case No. 134/
2. All three recourses were heard together. Though separate oppositions were filed in each case, all three were heard together. 35 Reference will be made to the applicants in their numerical order in Recourse No. 134/
3. Papaxenophontos is the only remaining applicant for all intents and purposes in the first recourse. This country was under the British administration occupied ^Q 1042 3 C.L.R. Papaxenophontos and Others v. Republic Stylianides J. as a Crown Colony until 15.8.
4. On 11.2.1959, after a long struggle by the people of this country, the Zurich Agreement was reached between the Prime Ministers of Greece and Turkey, subsequently accepted, on 19.2.1959, by the Colo5 nial Government—the Government of the United Kingdom —and by the two leaders of the two main communities of the island—Archbishop Makarios for the Greek community and Dr. Fadil Kutchuk for the Turkish community. These agreementsareknown astheZurich and LondonAgreements. They 10 were published in Cmnd
5. The Colonial Government (U.K.) made a statement dated 17.2.1959 which refers also to the civil service in the following terms:"That provision shall,be made for the protection of the interests of the members of the public services in Cyprus". 15 intheTransitional ProvisionsoftheConstitution, whichcame into force on the establishment of the new State—the Republic of Cyprus—Art. 192 purported to implement the aforesaid statement and undertaking. The unitary Government of Ihe Colonial Rule was in the 20 structure ofthenewStatetransformed intoa sui generisconstitutional order: the Government of the Republic and two Communal Chambers—the Greek and Turkish Communal Chambers. Strictly separate functions were assigned to the two Communal Chambers. The Communal Chambers had. 25 inrelationtotheirrespectivecommunity, competencetoexercise power with regard, inter alia, to all educational, cultural and teaching matters—(Art. 87.1(b) ). On the day prior to the date of the coming into operation of the Constitution and the establishment of the Republic 30 (16.8.1960), Papaxenophontos, Panayiotis Vassiliades, Alexandres Ioannou, Antonis Michaelides, Christakis Philokyprou and Leonidhas Koullis were civil servants and the other applicantswereteachers. Withthenewconstitutional structure all the applicants found themselves in the service of the Greek 35 Communal Chamber. They did not elect to do so but by operationoftheConstitution thefunctions theywere performing camewithin thecompetence oftheGreek Communal Chamber. Their position is set out in Art. 192,paragraphs I, 3 and 4 of the Constitution. 1043 Stylianldes J. Papaxenophontos and Others v. Republic

(1982)The provisions of Article 192.1applied to, and weredesigned to safeguard the rights of, officers who, having held an office in the public service of Cyprus prior to the 16th August, 1960, continued in such office in the public service of the Republic on or after that date. The provisions of Article 192.3, with regard to the rights for "just compensation or pension onabolition of office terms", readinconjunction with Art. 192.4,applied to, and werevested in, all officers mentioned in paras. 1and 2 of Article 192,who, not having continued in the public service of the Republic, 10 were not appointed in it, and included officers whose offices, by operation of the Constitution, came within the competence of a Communal Chamber. Where an officer whose office by operation of the Constitution came within the competence of the Communal Chambers, was appointed in the public 15. service of the Republic as contemplated by Art. 192.3, his appointment should be such as would entitle him to the same termsand conditions of serviceaswereapplicabletohimimmediately prior to the 16th August, 1960, and to which he would have been entitled undet Art. 192.1, had he continued in the 20 public service of the Republic, and involving also the performance of duties of the same general nature. (AHSuleiman of Limassol v. The Republic of Cyprus, 2 R.S.C.C. 93; Philokyprou v. The Republic of Cyprus,

(1966)3 C.L.R. 327). For the purpose of implementing Article 192.3 a Law was 25 enacted in 1962,theCompensation (Entitled Officers) Law, 1962 (Law No. 52/62), regulating the discharge of the obligations of the Republic in the area under consideration. Anentitled pensionable officer is one who held a permanent pensionable position in the public service on 15.8.1960, and covers those 30 who were entitled either to a pension or a gratuity. Entitled pensionable officers were given an option to choose between two species of compensation, a pension and a gratuity, both calculable in accordance with the provisions of the Pensions Law, Cap. 311. Subsections 2,3and4madedetailedprovision 35 for the compulation of the compensation and the payment of interest for the period following 15.8.1960. Law52/62cannot,andshouldnot,betreatedasbeingexhaustive of the scope of the application of Article 192, which does 1044 5 3 C.L.R. Papaxenophontos and Others v. Republic Stylianides J. not envisage a Law being necessary for its application. (Papapetrou v. The Republic,

(1968)3 C.L.R. 502). A number of persons, who were affected by the operation of the new Constitution, the new governmental structure and 5 Law 52/62, and who were entitled officers within the meaning of Law 52/62—including applicants No. 2, 3, 4, 6, 7, 9 and 11 in Case No. 134/82—filed Recourses No. 21/63, 26/63, 54/63, 102/63, 125/63, 135/63, 138/63, 139/63, 140/63, 149/63 and 207/62, ιclaiming, inter alia, that the amounts prescribed by 10 theprovisions of Law 52/62 donotconstitute"just compensation or pension" within themeaning of Art. 192.3 of theConstitution, and that the assessment of the amount of just compensation and pension and/or the conditions attached to the payment thereof were unconstitutional, contrary to Articles 6, 25, 28_ 15 and 192 of the Constitution. The events of December, 1963, and the following abslention of the Turkish civil servants from their duty created a new situation. The Greek Communal Chamber in a short period ceased to function, it dissolved and its functions were transferred 20 and taken up by various organs of the Government of the Republic—(see Law No. 12/65). A Ministry of Education was established that succeeded the Greek Communal Chamber on educational and teaching matters. The aforenumbeied recourses were settled in

1. By 25 the settlement the Government admitted that the posts held by the said officers, which included Inspectors and Assistant Inspectors of Elementary Schools and Advisers, Teaching staff, i.e. Lecturers and Assistant Lectuiers, Teacher's Training College, Teachers, Technical Education, Masters and Assistant 30 Masters, Handicraft Teachers and Instructors, "are pensionable and will take steps so to declare them under the provisions of the Pensions Law, Cap. 311, so that officers established in them may qualify for pension on retirement". The Pensions (Secondary School Teachers) Law, 1967 (Law 35 No. 56/67) was enacted theieafter. The Pensions Regulations (Cap. 311) were amended by the addition of regulation
2. In 1981 the Pensions (Amendment) Law (No. 2), 1981 (Law No. 39/81) and the Pensions (Secondary School Teachers) (Amendment) Law, 1981~(Law-No. 40/81) were enacted. The 1045 Stylianides J. Papaxenophontos and Others v. Republic

(1982)Pensions Regulations of the Pensions Law, Cap. 311, were amended by the legislature in virtue of the provisions of s.13 of Law 39/81. The new reg. 16and the new s.7 of the Pensions (Secondary Education Teachers) Law, as amended by s.5 of Law 40/81, 5 are identical. They provide that if a civil servant or a teacher of secondary education, as the case may be, letired from the respective service and is reappointed after seiving for not less thanfiveyears in the new post, on his retirement his previous service prior to his reappointment is taken into consideration 10 in the computation of his pension on hisfinalretirement, and any amount paid to him in the form of gratuity or otherwise should be refunded by him. He has, however, immediately after hisreappointment or withinthreemonthsfrom thecoming into operation ofthePensions(Amendment) Regulations, 1981, 15 and Law No.40/81to notify theAccountant-General inwriting of his such option. Regulation 16

(8)and s.7

(7)exclude a civil servant and a school-master of secondary education, who retired from the Government of the Colony of Cyprus under s.3 of the Compensation (Entitled Officers) Law. 20 The new regulation 31 and s.3 of the Pensions (Secondary Education School Teachers) Law, as amended by Law 40/81, which are identical intheir wording,provide that a civil servant or a teacher who retired in virtue of s.3 of Law 52/62 who, without interruption was appointed in the service of the Greek 25 Communal Chamber and the Government of the Republic, finally retires from a pensionable post, from his service in the Greek Communal Chamber and the Government of the Republic, is deducted any period taken into consideration for the computation of any benefit of retirement or compensation 30 granted on his retirement from the service of the Government of the Colony of Cyprus. Thislast provision isgiven retrospective effect from 1.9.

1. All the applicants are entitled officers under Law 52/
2. They received the pension—compensation—provided by that 35 Law but not for loss of career. Within the time prescribed by the relevant legislation they applied as aforesaid and their applications were turned down as their cases arc specifically excluded by this new legislation. 1046 3 C.L.R. Papaxenophontosand Others v. Republic StylianidesJ. By these recourses they challenge the validity of the admi­ nistrative decisions mainly on the following grounds:(a) That the Pensions (Amendment) Regulations, 1981, are ultra vires the empowering Law; 5 10 (b) That they are unconstitutional as being repugnant to Articles 9, 25 and 26 of the Constitution; and, (c) That they are unconstitutional as they are repugnant to thenotionof equality as enunciatedand safeguarded in Art. 28.1 of the Constitution, as the applicants were discriminated adversely by the challenged provi­ sions of these Laws. (a) Ultra Vires: A sub judice decision has to be annulled and be declared to be null and void and of no effect whatsoever if it was based 15 on an invalid enactment. (Christodoulou v. The Republic, 1 R.S.C.C. 1; Spyrou & Others v. The Republic

(1973)3 C.L.R. 627). The legislature can,without impairing its sovereignty, author­ ise other bodies to legislate. Delegated legislation must be 20 intra vires the enabling slatute. When subsidiary legislation is examined with a view to determining whether it is intra or ultra vires, the answer to the question depends, in every case, . on the true construction of the relevant enabling enactment. If delegated legislation interferes with a fundamental right, 25 such as the right to property, any doubt arising as to the ambit and effect of the relevant enactmentmust be resolved in favour of the liberties of the citizen. (Fina (Cyprus) Ltd. v. 77/? Republic, 4 R.S.C.C. 26; Chester v. Bateson, [1920] 1 K.B. 829, at p. 838; Newcastle Breweries,Ltd. v. The King,[1920] 1 K.B. 30 854). 35 In examining whether or not delegated legislation is ultra vires the enabling enactment, the state of the law at the time when such enactmentwas passed and the changes which it was passed to effect as well as the structure of such enactment as a whole, have particulaily to be borne in mind. (UtahConstru­ ction and EngineeringProperty Limited and Another v. Pataky, [1965] 3All E.R. 650). Delegated legislation may be challenged for substantive ultra viies, that is, on the ground that it goes 1047 ι Stylianides J. Papaxenophontos and Others v. Republic

(1982)beyond thepowers granted by thelegislature. (Commissioners of CustomsandExcise v.Cure andDeeley Ltd.,[1962] 1Q.B.D. 340). It wassubmitted by counsel for the applicants that the Pensions Regulations (Amendment), 1981,made by the legislative authority in virtue of s.13 of Law 39/81are ultra vires asthey are beyond the scope of s.3 of the Law which empowers the Council of Ministers to make regulations. 5 Section 3 empowers the Council of Ministers from time to time to amend, add to or revoke byregulationsthe Pensions 10 Regulations. Subsection

(2)thereof provides that "all Regulations made thereunder shall have thesame force and effect as if they were contained in the Schedule to that Lawandthe expression 'thisLaw'shallbeconstrued asincluding a reference to the Schedule". "Law" includes a public instrument. 15 "Law" means anyenactment bya competent legislative authorityandwhentheterm "theLaw"isusedinapublicinstrument, it means the Law under the authority of which such public instrument has been made. The Pensions (Amendment) Regulations, 1981, were made 20 by the legislative authority ilself. Their power was not delegated. Section 13provides that notwithstanding and without prejudice to the powers delegated to the Council of Ministers, the House of Representatives itself sanctioned a new set of regulations. They areinno sense theproduct ofdelegation or 25 subsidiary legislation but a Law enacted by the legislature itself; therefore, the question of ultra vires does not enter at all. (b) The Courts established in our country, like Courts in every country with a written Constitution, in examining the 30 constitutional]'!y of a Lawhave to abide bycertain well settled principles. It is not upon the Court to consider the object or the wisdom ofthe legislature. Thetask ofthe Court isonly to find out if any provision runs contrary to therights enunciated and ensured by the Constitution. 35 "It is only thepeople of a country themselves, through their electedlegislators,whocandecidetowhatextentits fundamental rights and liberties, as safeguarded by theConstitution, should 1048 3 C.L.R. Papaxenophontos and Others v. Republic Stylianides J- be restricted or limited and this principle is inherently contained in all constitutions, such as ours, which expressly safeguard the fundamental rights and liberties and adopt the doctrine of the separation of powers. 5 In the opinion of the Court, therefore, the expression 'imposed by law' in paragraph 3 of Article 23, the expression 'prescribed bylaw' in paragraph 2of Article 25and like expressions in other Articles of Part II of the Constitution, mean, in so far as laying down and defining the extent and framework of the 10 particular restriction or Umitation is concerned, a law of the House of Representatives. This does not, however, prevent the House of Representatives from delegating its power to legislate in respect of prescribing the form and manner of, and the making of other detailed provisions for, the carrying into 15 effect and applying the particular restriction or limitation within the framework as laid down by such law, e.g. the addition of further items or instances falling within the restriction or limitation in question. Such a course is presumed to be included in the will of the people as expressed through the parti20 cular law of its elected representatives." (Police v. Hondrou. 3 R.S.C.C. 82, at 86). In every case in which the Court is dealing with the issue of alleged unconstitutionality, it has to be borne in mind that there is a presumption of constitutionality in favour of the provision 25 concerned, and that such provision can only be declared unconstitutional if the Court ispersuaded of its unconstitutionality beyond reasonable doubt. (Boardfor Registration of Architects and Civil Engineers v. Kyriakides,

(1966)3 C.L.R. 640, at p. 654). 30 Article 9 of the Constitution has no bearing on this case. It delineates a scheme for social action enjoining the State to implement it. Likewise Article 25 is similarly irrelevant. It safeguards freedom to exercise a profession or to carry on an occupation, trade or business. Here nobody denied profes35 sional freedom to the applicants. (c) Principle of Equality: The principle of equality, enunciated and safeguarded by Article 28 of the Constitution, was first judicially considered in 1049 Stylianides J. Papaxenophontos and Others v. Republic

(1982)Mikrommatiscase, 2 R.S.CC. 125, a case concerning income tax; it was said:"In theopinion oftheCourt theterm 'equalbefore thelaw' in paragraph I of Article 28does not conveythenotion of exact arithmetical equality but it safeguards only against 5 arbitrary differentiations and does not exclude reasonable distinctions which haveto bemade in view of the intrinsic nature of things. Likewise, the term 'discrimination' in paragraph 2 of Article 28 does not exclude reasonable distinctions as aforesaid". 10 The principle of equality was considered in numerous cases including TheRepublic (Ministry ofFinance) v.Nishan Arakian andOthers,

(1972)3C.L.R. 294,where the Full Bench adopted the above passage from Mikrommatis case and the following extractsfrom Levyv.Louisiana, 391U.S.68,20L.ed. 2d.436:- 15 "In applying the Equal Protection Clause to social and economiclegislation, wegivegreatlatitudetothelegislature in making classifications". The European Court of Human Rights of the Council of Europe in the Belgian Linguistic case said:- 20 " The Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification". Justice VanDevanter inLindsley v.NaturalCarbonic Gas Co., 220 U.S. 61, 78-9, laid down the following guiding rules by which contentions that statutory distinctions were unconstitutional should be tested:"

1. The equal protection clause of the Fourteenth Amend- 30 ment does not take from the state the power to classify in the adoption of policelaws, but admits of theexercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary.
2. A classification having 35 some reasonable basis does not offend against that clause merely becauseit is not made with mathematical nicety, or 1050 25 3 C.L.R. 5 Papaxenophontos and Others v. Republic Stylianides J. because in practice it results in some inequality.
3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary". The principle of equality has at its core justice and fairness. 10 Laws 39/81 and 40/81aredesigned aslawsof general application to regulate matters relevant to the pension of public officers and those in the educational service. They covei all civil servants and all secondary education teachers. Only a small group of them isleft out. Wasit open to the State to make this 15 exception or. was the exception discrinrnatory? This is the question we must answer. The applicants were in the employ of the State before, at and after the establishment of the Republic. The severance of links with the service was made theoretical than real for they 20 never interrupted their services to the State. The benefits under Law 52/62 were meant to compensate them for this compulsory in effect retirement. That compensation is a lump sum - gratuity - admittedly more than the amount that each one would have received had he retired at that time under normal circum25 stances. This is the only difference between applicants and the . rest of the servants of the State to whom a right to pension for past services the 1981 legislation came to acknowledge. Why should the applicants not be given a similar option more so as the applicants found themselves at a disadvantage as a result 30" of the changes in the Government of the country? There is an element of injustice and unfairness inthe new scheme specifically excluding them by regulation 16

(8)and s.7

(7)of Law 40/41. Was there any reasonable justification for this differentiation? The State in 1966 entered into a contract in the form of 35 settlement with a number of applicants. A fair construction of this agreement ("A", " B " and " C " of exhibit No.7) leads to the conclusion that the State took upon itself to give to the applicants in those recourses - impliedly acknowledging a similar right to all officers similarly placed - the benefits of the 1051 Stylianides J. Papaxenophontos and Others v. Republic

(1982)PensionsLaw,Cap. 311,from timeto timewithout anyreservation asto any such rights. Thisundertaking wasnot honoured by the new Laws while pension rights were granted to others with interrupted service. Some time would inevitably elapse between the date of re- 5 tirement and thedateof reappointment. Inflation hassimilarly affected all officers with interrupted service. The distinction made between thetwoclassesappearsto bearbitrary, especially in the context of legislation designed to regulate pension rights of officers with interrupted service. To leave a small group of 10 persons out was tantamount to leaving out of the legislative scheme persons similarly circumstanced with a wider class of beneficiaries for no good reason. The applicants share common and relevant properties and qualifications with the rest of the officers with interrupted 15 service out of which they were specially selected to be cut off. There was no objective basisfor leaving them out. The object of the Law, asit emergesfrom itswording,isto givetheproper pensiontoacivilservant orasecondaryeducationteacheratthe time of his final retirement from service in the sense that the 20 twoperiodsofservicearecombinedtogether andthusheobtains the benefit of a longer period of service. Furthermore his pensionisreckonedbyreferencetohisemolumentsonthedayof his linal retirement; in order to do so, he has to refund with interest any amount which he received at the time of his pre- 25 maturefirst retirement. Thisisnot only a permissible objective of the State but it accords to the notion of justice by an employer, particularly when that employer is the State. In my judgment the basis upon which the differentiation was made was too slender to qualify as a reasonable one. 30 Pension is given to secure a decent life when they are in an advanced age of their life, appropriate to the post they hold at the time of their retirement. The granting of a gratuity on early ret;rement to a civil servant and the computation of his pensionable years of serviceat thefinal retirement, if and when 35 he is reappointed to the civil service, lead to an apparent injustice. It is this mischief that the new legislation intended to remedy. The aim of the legislature was to improve the security of civil servants and secondary education teachers. This 1052 3 C.L.R. Papaxenophontos and Others v. Republic Stylianides J. Law waspassed by the new State -the Republic of Cyprus, the successor of the Colony of Cyprus. I do not intend to impinge onthe power of the legislature to form its own policy. I am only considering whether this Law 5 contravenes fundamental rights and principles safeguarded by the Constitution. The ivil in the case of these applicants, which the Law purposely avoided to remedy by its differentiat'on, isnot ofdifferent dimensionsand proportions tothat of other persons to whom the benefits of the Law are extended. 10 Iam notreferringto thepast but also to the future and thegeneral tenor and application of the Law. The different treatment of the present applicants involves invidious discrimination and is beyond the peimissible margin of reasonable differentiation. Mathematical nictties cannot 15 be used to declare a classification unreasonable but at thesame time mathematical niceties cannot labour ,in favour of unreasonable and arbitrary classification. 1 have anxiously examined the implication of all issues relevant to constitutionality, never overlooking that it is for the 20 leg'slature to legislate, being in the first place the bestjudgesof the needs of the people. The role of the Court is to scrutinize the legislation from the view point of its constitutionality. This I have done. The manifest intention of the Law was, inter alia, to create a comprehensive pension scheme for all 25 officers with interrupted service out of deference to thejustice of their claim. All officers with interrupted service were entitled to equality treatment. Less than equal treatment was extended to a small class of persons. The differentiation offends both justice and fairness and in the end rests on pre30 mises that have no objective foundation. For the aforesaid reasons 1 am of the opinion that both, regulation 16

(8)as amended by regulation 3 of the Pensions (Amendment) Regulations, 1981, and regulation 31 asamended by regulation 7 of the Pensions (Amendment) Regulations, 35 1981, and s.7

(7)of the Pensions (Secondary School Teachers) (1967-1981) as amended by the Pensions (Secondary School Teachers) (Amendment) Law, 1981 (Law No. 40/81) are unconstitutional as they are repugnant to the principle of equality 1053 Stylianides J. Papaxenophontos and Others v. Republic

(1982)as declared and safeguarded by Article 28 of the Constitution. Theseprovisions are severablefrom therest ofthe Lawand can be expunged without impa*ring the overall legislative scheme. Therefore, the administrative decisions and acts of the respondents complained of, contained in the letters addressed to 5 Papaxenophontos dated 18.9.81 and to advocate Angelides for his clients, the applicants in Recourse No. 134/82, (exhibits No. 3 and 5, respectively), based on the aforesaid unconstitutional legislative provisions are null and void and of no effect. Subjudice decisions annulled; 10 No orderas tocosts. 1054