(1982)1982 April 24 [TRIANTAFYLLrDES, P.J IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION SOTERIOS ECONOMIDES, Applicant, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (Case No. 352/78). Army of the Republic—Officers of—Serving on secondment in the National Guard—Disciplinary offences by—To be dealt with solely under the provisions of the National Guard legislation— Section 2
(3)of the Army of the Republic (Constitution, Enlistment and Discipline) (Amendment) Law, 1973 (Law 46/73). This recouise was directed against the refusal ofthe respondent to revoke and terminate applicant's interdiction in connection with disciplinary charges he was facing. Applicant ?t all material times, has been serving as an officei in the National Guard, on secondment from the Aimy of the Republic; and the 10 disciplinary offences in respect of which he was interdicted were allegedly committed during such secondment. His main contention in this recourse was that the respondent Minister acted, in the matter of his interdiction, under legislative piovisions applicable to those actually serving, at the material time, 15 in the Army of the Republic (see the Army of the Republic (Constitution, Enlistment and Discipline) Law, 1962(Law 16/62) and the lelevant Regulations) and that such a couise was not open to the respondent Minister—(who had otherwise no powei to interdict the applicant under the piovisions of the National 20 Guard legislation)—inasmuch as it was excluded by subsection
(3)* of section 2 of the Army of the Republic (Constitution, Enlistment and Discipline) (Amendment) Law, 1973(Law 46/73). Section 2
(3)is quoted at p. 1158 post. 1156 5 3 C.L.R. 5 \ \ 10 ]5 20 25 Economides v. Republic Held, that as the Army of the Republic and the National Guard are sepaiate and distinct fiom each other, and function under different legislative provisions, it is impelmissible and unieasonabletoconstiuesubsection
(3)inamannernotresulting in theconclusion that someone serving in the National Guard is, regardingdisciplinary matteis, subject solely tothepiovisions of the National Guard legislation;that aftei all,anybody serving in theNational Guaid, even if seconded from theArmy ofthe Republic, hasduties and obligations andis subject tothedisciplineprovided forbytheNational Guard legislationandcannot, incaseofany default onhispait,beproceeded withdisciplinaiily under the provisions of the Aimy of the Republic legislation, which if quite diffeient in some material respects fiom the National Guard legislation; that, therefore, oncetheinterdiction of the applicant was, as effected, illegal then the refusal to revoke and terminate his interdiction wastainted by the tame illegality and has to be annulled on this ground. Subjudice decision annulled. Recourse. Recourse against the refusal of the respondent to revoke and terminate applicant's interdiction in connection with disciplinary charges which he was facing. Applicant appeared in person. R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P. read thefollowing judgment. By means of the present recourse the applicant complains against the refusal of the respondent Minister to revoke and terminate 30 his interdiction in connection with disciplinary charges which he was facing. Such refusal was communicated to him by a letter dated 27th June 1978. Arguments were heard, first, inrelation to preliminary objecttions which were raised by counsel foi the respondent, namely 35 that the said letter of 27th June 1978 could not be made the subject of this recourse under Article 146of the Constitution, because it isofa confirmatory nature or ofa merely informatne nature and, consequently, not of an executory nature. On 21st May 1980judgment wasgiven byme dismissing the 1157 Triantafyllides P. Econoniides v. Republic
(1982)aforesaid objections (see Economides v. The Republic,
(1980)3 C.L.R. C.L.R. 219); and such judgment has to be read in conjunction with the present judgment, as if its contents are incorporated herein. At all material times the applicant has been serving as an 5 officer in the National Guard, on secondment from the Army of theRepublic;and the disciplinary offences in respect of which he was interdicted were allegedly committed during his service, on secondment, in the National Guard. It appears that one of the main contentions of the applicant 10 is that the respondent Minister acted, in the matter of his inter diction, under legislative provisions applicable to those actually serving, at the material time, in the Army of the Republic (see the Army of the Republic (Constitution, Enlistment and Disci pline) Law, 1962 (Law 16/62) and the relevant Regulations) and 15 that such a course was not open to the respondent Minister —(who had otherwise no power to interdict the applicant under the provisions of the National Guard legislation)—inasmuch as it was excluded by subsection
(3)of section 2 of the Army of the Republic (Constitution, Enlistment and Discipline 20 (Amendment) Law, 1973 (Law 46/73). The said subsection
(3)reads as follows:"
(3)Οιουδήποτε μέλος άποσπώμενον δυνάμει τοϋ εδαφίου
(2)δι* ύπηρεσίαν έν τη 'Αστυνομική Δυνάμει Κύπρου ή έντη 'ΕθνικήΦρουρφ, διαρκούσης τηςτοιαύτηςαποσπάσεως, 25 θά έκτελη τοιαύτα καθήκοντα καΐ άσκή τοιαύτας εξουσίας ως καθορίζονται είς τον περί 'Αστυνομίας Νόμον ή τους περί της Εθνικής Φρουράς Νόμους τοϋ 1964 έως 1968 και τους βάσει των Νόμων τούτων εκδιδόμενους Κανονισμούς, αναλόγως της περιπτώσεως, καί θά υπόκειται είς τάς δια- 30 τάξεις των προειρημένων Νόμων καΐ Κανονισμών". (*'
(3)Any membei seconded under subsection
(2)for service in the Cyprus Police Force or in the National Guard shall, during such secondment, carry out such duties and exercise such powers as they are laid down in the Police Law or 35 the National Guard Laws 1964 to 1968 and the Regulations made under these Laws, as the case may be, and shall be subject to the provisions of theaforesaid Laws and Regu lations".) 1158 3 C.L.R. Economides v. Republic Triantafyllides P . In my opinion the wording of the afoiequoted subsection
(3)is clear and unambiguous and supports the above referred to contention of the applicant. As the Army of the Republic and the National Guard are separate and distinct from each 5 other, and function under different legislative provisions, it is impermissible and unreasonable to construe subsection
(3)in a manner not resulting in the conclusion that someone serving in National Guard is, regarding disciplinary matters, subject solelyto theprovisions of the National Guard legislation. Alter 10 all, anybody serving in the National Guard, even if seconded from the Army of the Republic, has duties and obligations and is subject to the discipline provided for by the National Guard legislation and cannot, in case of any default on his part, be proceeded with disciplinarily under the provisions of the Army 15 of the Republic legislation, which is quite different in some material respects from the National Guard legislation. From the written address of the applicant, which has not been contradicted in this respect by counsel for the respondent, it appears that on 29th October 1976 there was published in the 20 Official Gazetfe of the Republic (see No. 218, in the Third Supplement, Part I) the Disciplinary (Amendment) Regulations of the National Guard of 1976, by means of which there was enacted an additional regulation—regulation 12A—enabling the respondent Minister, in case of a disciplinary offence by 25 a member of the Army of the Republic who isservingon secondment in the National Guard, to decide, as he may deem fit, that the disciplinary process will take place either under the National Guard Disciplinary Regulations or under the Army of the Republic Disciplinary Regulations. 30 As, however, the aforesaid Regulations of 1976 were not placed, for approval, before the House of Representatives, prior to their publication, as required by section 23
(3)of the Nalional Guard legislation, they were revoked on 3rd May 1977; and, then, eventually, they were placed before the House 35 of Representatives but they were not approved and were rejected on 7th July 1977. The above described abortive attempt to amend the National Guard legislation by means of the addition of regulation 12A indicates very significantly that the Government itself did not 1159 Triantafyllides P. Economides v. Republic
(1982)think that on a proper constiuction of subsection
(3)of section 2 of Law 46/73 it was possible to resort to the Army of the Republic relevant legislation in connection with a disciplinary offence committed by a member of the Army of the Republic while he was serving on secondment with the National Guard; 5 otherwise there would havebeen noneedto try toinsert regulation 12Ainthe relevant legislation for the National Guard. So, when the sub judice decision was communicated to the applicant on 27th June 1978the position wasthat the applicant had been interdicted unlawfully due to the wrongful application 10 for such a purpose, by the respondent Minister, of legislative provisions which were applicable to those actually serving at that time in the Army of the Republic and not, also, to a member of such Army whowasat that time servingon secondment in the National Guard, like the applicant; and once the 15 interdiction of the applicant was, as effected, illegal then the refusal to revoke and terminate his interdiction was tainted by the same illegality and has to be annulled on this ground. Thus, this recourse succeeds; but, in all the circumstances, I do not propose to make an order as to its costs. 20 Subjudicedecisionannulled.No order as to costs. 1160