clr/1982/1982_3_1131.pdf

(1982)respect ofwhich this recourse was made,has proceeded to"pronounce" that the judgment of a Judge of the Supreme Court in relation to an earlier recourse of the applicant (seeLoizides v. TheRepublic,

(1981)3 C.L.R. 103) in connection with issues which are, also, disputed in the present case was wrong, and, 5 having, in effect, "overruled" the saidjudgment, the Committee advised the respondent Minister in a manner leading up to his new subjudice decision; that, thus, the said Committee appears to have usurped unlawfully the role of an appellate tribunal and this Court cannot countenance conduct of this nature on 10 the part of the administration and that if the Committee felt that the decision in the Loizides case, supra, was erroneous the proper course for it was to advise the respondent Minister to appeal against it; and that was not done; that flagrant illegality is agroundjustifying themaking of a provisional ordei; accord- 15 ingly the provisional order in question is to remain in force until the determination of this recourse or until further order. Held, further, that the submission of counsel for the respondent that the provisional order as made on 25th July 1981 was framed in a mandatory form in a manner not coming wiiiun 20 the ambit of the powers granted in this respect to this Court under regulation 13of the Supreme Constitutional Court Rules of Court cannot be accepted as correct because under the said rale this Court is empowered to make a provisional order "if the justice of the case so requires" and the order made on the 25 present occasion was required by thejustice of the present case; and, in any event, it is, in substance, nothing more than an order suspending the effect of the sub judice decision of the respondent Minister. Application granted. 30 Cases referred to: Xenophontos v. The Republic

(1979)3 C.L.R. 546; Loizides v. The Republic

(1981)3 C.L.R. 103; PetrolinaLtd. v. The Republic

(1977)3 C.L.R. 173 at p. 179; Michaelides v. Republic

(1980)3 C.L.R. 430 at p.

1. Application for provisional order. After the making of a provisional order in the absence of the respondent although duly notified, directing the discharge of 1132 35 3 CX.R. 5 Loizides v. Republic applicant from the ranks of the National Guard pending the determination of ihe present recourse, the Court gave the opportunity to therespondentto show cause why the provisional order should not remain in force. C. Clerides, fot the applicant. K. Michaelides, for the respondent.' Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. In this case a provisional order directing that the applicant should be 10 discharged from the ranks of the National Guard, pending the determination of the present recourse, was made on 25th July
2. On that date there was no appearance on behalf of the re­ spondent, though the respondent had been duly notified about 15 ihe application for a provisional order. I have, therefore, in accordance with the practice adopted by this Court in, inter alia, Xenophontos v. The Republic,

(1979)3 C.L.R. 546, given subsequently the opportunity to counsel for the respondent to show cause why the provisional order 20 should not remain in force. Some of the aiguments advanced by counsel for the res­ pondent against the continuance in force of the provisional order ιelate to the merits of this case and, though I am not pronouncing now in respect of them, I have duly taken them 25 into account to the extent necessary for deciding whether or not there exists a probability that the applicant's present recourse will be successful, because if no such probability exists, then, obviously, the provisional order ought to be discharged. On the basis of the material now before me it appears, prima 30 facie, that the subjudice decision of the respondeni is tainted by a flagrant illegality in that an Advisory Committeeset up in the Ministry, for the purpose of advising the respondent Minister as legards matterssuch as thatin respect of which thisrecourse was made, has proceeded to "pronounce" that the judgment of a 35 Judge of the Supreme Couit in relation to an earlier recourse of the applicant (see Loizides v. The Republic,

(1981)3 C.L.R. 103) in conneciionwith issueswhich are, also, disputed inthepresent case was wrong, and, having, in effect, "overruled" the sa»d 1133 Triantafyllides P. Loizides τ. Republic

(1982)judgment, the Committeeadvised (he respondent Ministei in a manner leading up to his new sub judice decision. Thus, the said Committee appears to have usurped un­ lawfully the role of an appellate tribunal and this Court cannot countenance conduct of this nature on the part of the admiru- 5 siration. If the Committee felt that thedecision in the Loizides case,supra, was erroneousthepropercoursefor it was toadvise the respondent Minister toappeal against it; and that was not done. I do not overlook that the Advisory Committee in advising 10 the Minister afresh in respect of the claim of theapplicant tobe discharged from the National Guard had to take intoaccount all relevant considerations, including any new factors, in ordei to leach a new decision in the matter, but I cannot acceptthat it was open to the said Committeeto proceed to find that the 15 judgment in the Loizidescase, supra, was erroneous and to base, even partly, its new decision on this premise. As I have stated earlier in this judgment it appears, prima facie, that, for the reasons already explained, the sub judice decision of the respondent is tainted by flagiant illegality, 20 which is a ground justifying the making of a provisional order (see, inter alia, in this respect, Petrolina Ltd. v. The Republic,

(1977)3 C.L.R. 173, 179, and Michaelides v. The Republic,

(1980)3 C.L.R.430,435). Of course,before this case is to be determined on its merits counsel for the respondent will be 25 perfectly free to argue onceagain.that there does not exist any flagrant illegality and I will carefully reconsider this issue, because in respect of it I have reached now only a prima facie view which is based on the arguments and on the material at present before me and I have done so solely for tht puipose of 30 deciding whether or not the provisional order should continue in force. Before concluding this judgment I should state that Icannot accept as correct the submission of counsel for therespondent that theprovisional orderasmadeon25thJuly 1981 was framed 35 in a mandatory foim in a mannernot coming within theambit of the powers granted in this respect to this Court under re­ gulation 13 of the Supieme Constitutional Court Rules of Court. In my opinion, under the said iule this Court is em1134 3 C.L.R. Loizidesv. Republic TriantafyllidesP. poweied lomake a provisional order "if thejustice of the case so requires" andtheorder made onthepresent occasionwas required by thejustice of the present case;' and, inanyevent, it is,insubstance, nothing more than anorder suspendingthe 5 effect of thesub judice decision of the respondent Minister. In thelight of all theforegoing considerations it is hereby ordered that theprovisional order in question is to remainin force until thedetermination of this recourse or until further order of the Court; but,inviewofthefact thatcounsel foi the 10 lespondent was, indeed, entitled, in thecircumstances of this case, totryto show cause why theprovisional order,whichwas made in his absence, should notcontinue in force, Τam not making anyorder for costs against the respondent inthiscon­ nection. 15 Provisional orderto remain in force. r 1135