clr/1982/1982_3_928.pdf

(1982)emplovees,categorically signified theintention ofthegovernment toabidebytheprovipionsoftht lawonthesubjectofredundancy payments. Following the enactment of Law 92/79, which amended the piovisions of the above Law, applicants applied foi a review of their case by means of a Utter dated 13.7.1981 5 addressed to the Diiectoi-General of thi Ministry of Laboui and Social Insurance. In ieply the Diiecto;-Gcneial informed the applicants that tht Law conferred no discietion to anyone to relax the application of its piovisions and allow udundancy payment to a woikti dismissed between the periods specified 10 by the Termination of Employment Laws, 1975 (Law 1/75 as subsequently amended). Hence this recourse. Counsel for the applicants mainly contended: (

1. a)That the extension of the period of suspension of the redundancy payments, brought about by the enact- 15 ment of Laws 67/75, 17/76 and 18/77 was invalid because Law 1/75 was renewed by reference. (
2. b)That Law 1/75 wasunconstitutional becauseit divested applicants of rights acquired under a lepealed Law. (
3. c)That Law 1/75wasunconstitutional becauseitinfringed 20 Articles 9, 23, 25 and 28 of the Constitution. Counsel for the respondents, along with submitting that Law 1/75 was constitutional, raised the objection that the recourse was out of time because the time that elapsed since the enactment of Law 1/75 and the signification of 25 the respondents to abide by its provisions was more than the 75 days time-limit, provided by Article 146.3 of the Constitution, within which a recourse could be made. Held,(I) on thepreliminary objection: That the revisional jurisdiction of the Supreme Couit is 30 not the forum for a review of the constitutionality of laws in abstracto; that litigants cannot move the Supreme Court to exerciseits revisionaljurisdiction for the challenge of theconstitutionality of laws; that issues of constitutionality may be determined incidentally, if necessary, for the purpose of adjudicating 35 upon the propriety of an act, decision or omission of organs of public administration; that it is, therefore, incompetent for the applicants to seek, outside the context of administrative 930 3,CL.R. 5 10 15 20 25 Apostolides aod Others v. Republic action, a declaration that the Termination of Employment (Amendment) Law, 1/75, is unconstitutional, that, moreover, if the reaction of the authorities to the claim of the applicants for a redundancy payment wastreated asa decision in thesense ofarefusal oftheappropriate organtopayredundancypayment, the recourse is out of time inasmuch as the applicants must be presumed to have had knowledge of such decision years before the initiation of the present proceedings, and the interval of 75 days cannot be by-passed or relaxed, for it is mandatory to ensure certainty in the administrative process. Held,further, that the decision of the Director-General of the Ministry of Labour and Social Insurance of 25.8.1981 could, under no conceivable circumstances, be construed as an administrative act, justiciable under Article 146;·that the Director-General oftheMinistry ofLabourandSocialInsurance hadnopowerto decide, oneway or the other, about themaking of a redundancy payment; that, therefore, his decision could have no bearing whatever on the rights of the applicants; that the Redundancy Fund is, under the provisions of the principal law—the Termination of Employment Law, 24/67—a juridical body with a personality of its own, capable of suing and being sued in its own name (s. 24

(2)of Law 24/67); that neither the Director-General nor anybody else can take a decision in its stead; that inasmuch as this Court can only take cognizance of executory acts, the decision complained of, subject-matter of this recourse, is not of this character and as such it must be dismissed. Held, (II) on the merits of the recourse: 30 35

(1)Thatsolongasthewillofthelegislatureisclearlyexpressed in a given direction, effect will be given to it notwithstanding theform chosen for its accomplishment; accordingly contention (a) should fail (Republic v. Pavlides andOthers

(1979)3 C.L.R. 603 followed).

(2)Thatnoarticleof theConstitution makesitconstitutionally offensive to take away by law rights that vested at civil law; accordingly contention (b) should fail.

(3)That the burden of satisfying the Court that a statute or asection ofitisunconstitutional, isontheparty propounding the unconstitutionahty of the law; that a law is presumed to 931 Apostolides and Others v. Republic

(1982)be constitutional until the contrary is proved; that it must be demonstrated that a law is clearly unconstitutional before a submission as to its unconstitutionality is upheld; that the antithesis or incompatibility of the provisions of a given law to the Constitution, must be clear and manifest, and such as 5 not to becapable of beingremedied bya beneficial construction.

(4)That Articles 23and 25are not at all relevant to the issue of constitutionality of Law 1/75.

(5)That the concept of equality in the context of Article 28 is a relative one designed to maintain equality among things 10 equal in themselves, that is to say, intrinsic equality; that it was open to the legislature to introduce measures necessary to cope with the realities that emeiged after 14.7.1974, in the domain of termination of employment, without, in any way, offending Article 28.

(6)That Article 9 has the effect of placing social rights on an equal footing with political rights, both fundamental under the Cyprus Constitution, as well as the universal declaration of human rights proclaimed by the General Assembly in 1948; that it can bevalidly presumed that the Termination of Employ- 20 ment Law, 1967 (Law 24/67) was enacted in discharge of the specific obligations of the Stateunder Article 9; that the temporary suspension ofredundancy paymentswasa measuredesigned to protect the institution of redundancy payments for the sake of the longer-term insteiests of workeis; that theie is nothing 25 before the Court proving that the temporary suspension of redundancy payments constituted, in the grave circumstances that followed theTurkish invasion, a departure from theconstitutional dictate to provide for workers and the poor a system ofsocialsecuritycompatible withthemeansoftheState;accord- 30 jngly Law 1/75 is not contrary to Article 9 of the Constitution Held, further, that evenif a contrary view was held, the grave emergency created by the Turkish invasion justified the invocation of the reserve powers of the State to legislate, by suspending laws principally designed to cope with social 35 needs in times of peace and tranquillity. Application dismissed. Cases referred to: Pitsillos v. C.B.C.

(1982)3 C.L.R. 208; Republicv. Pavlidesand Others

(1979)3 C.L.R. 603; 40 932 15 3 C.L.R. 5 10 15 20 25 Apostolides and Others τ. Republic ImprovementBoard of Eylendja v. Constantinou

(1967)1C.L.R. 167; Evlogimenos and Othersv. Republic, 2 R.S.CC. 139; Republic v. Menelaou

(1982)3 C.L.R. 419; Mikrommatis v. Republic,2 R.S.CC. 125; Panayides v. Republic

(1965)3 C.L.R. 107; Republic v. Arakian

(1972)3 C.L.R. 294; Kyriakides v. Council for Registration of Architects and Civil Engineers(No. 2)

(1965)3 C.L.R. 617; Matsis v. Republic

(1969)3 C.L.R. 245; Worringham v. Lloyd's Bank Ltd. [1981] 2 All E.R. 435; Papaphilippou v. Republic, 1 R.S.CC. 64; 5i4ger Sen'/'/ig v. Republic

(1979)3 C.L.R. 507; Pathummav. 5/o/e of Kerala, AIR 1973 SC pp. 771, 772, 774, 779; Pershad v. Administration for UnionTerritoryof New Delhi, 1961 AIR SC p. 1602; Majid v. Mayak, 1951 SC p. 440; Manglis v. Chimonides

(1967)1 C.L.R. 125; Attorney-General of the Republic v. Ibrahim and Others, 1964 C.L.R. 195. Recourse. Recourse for a declaration that the Termination of Employ­ ment (Amendment) Law, 1975 (No. 1/75) is unconstitutional. A. S. Angelides, for the applicants. D. Papadopoullou (Mrs.), for the respondents. PIKIS J. read the following judgment. What we are required to decide in these proceedings is, in essence, the constitutionality of the laws suspending or abolishing the right of workers, those 30 dismissed between 14.7.74 and 18.4.77, to redundancy payment, the Termination of Employment Law 1/75, as amended in 1975, 1976 and 1977 (Laws 1/75, 67/75, 17/76, 18/77 see also 92/79). The applicants, 12 of the 600, or so,workers, dismissed by the Cyprus Mining Corporation (C.M.C), claim a declaration that 35 the Termination of Employment (Amendment) Law - 1/75, is unconstitutional to the extent it suspends their right to redun933 Pfkis J. Apostolides and Others v. Republic

(1982)dancy payment, and that the refusal or omission to pay them founded thereon, is invalid. The answer submitted on behalf of the Attorney-General isthat the law is constitutional. However, the respondents dispute the right of the applicants to raise the present proceedings on account of the time that elapsed 5 since the enactment of Law 1/75, and the signification of the intention of the political authorities to abide by its provisions and their refusal to make anyredundancy payments. Reference to the background of the case will help elucidate the nature and breach of the issues posing for consideration. 10 THE FACTS: As a result of the Turkish invasion, the mine and business sites of C.M.C. were occupied and placed under the control of the Turkish army. The mine became inaccessible to its work force; operations were suspended. On 1.3.75 C.M.C. was 15 declared a stricken company under the provisions of the Termination of Employment (Temporary Restrictive Provisions) Law - 50/74, a status that gave it the right to dismiss its employees. They dismissed their employees as from 31.3.

1. Negotiations opened between the management of C.M.C. and 20 an ad hoc committee set up by its employees for the payment of compensation to dismissed workers. They resulted in an agreement reached on 21.5.75,involving the payment of some compensation to each one of the dismissed employees. The aforementioned ad hoc committee of dismissed employees made 25 representations to the Ministry of Labour and Social Insurance and other political authorities of the State, for the payment to dismissed C.M.C. employees, of redundancy payment. These representations were intended to persuade the authorities either to by-pass or amend the provisions of Law 1/75 that 30 prohibited such payment. The reaction of the authorities was understandably negative. They could not ignore the provisions of the law. Pressure was kept up, by the employees, despite the persistence of the body-politic to stick to the spirit and letter of Law 1/
2. Law 1/75 was intended as a temporary measure 35 to tidy over a grave emergency entailing the suspension of redundancy payment to every worker, and there were thousands of them, dismissed, as a result of the tragic events of the summer of
3. The duration of Law 1/75 was successively extended, by extending the duration of the 1975 law, upto 18.4.77 (see 40 Laws 67/75, 17/76 and 18/77). 934 3 C.L.R. Apostolldes and Others v. Republic PIkis J. The respondents contend there is overwhelming material in the file establishing that the recourse is, on any view of its purport, outoftime. Therepresentationsmadebythecommittee to various authorities, their protestations and the wide5 spread publicity given to their claim, make it hard for anyone of them to assert that they were not aware of the negative reaction of the authorities to their demands. As far back as 20.3.79, the Minister of Labour and Social Insurance, in a letttr addressed to the representatives of the dismissed C.M.C. 10 employees, categorically signified the intention of the government to ab'de by the provisions of the law on the subject of redundancy payments. In support of her submission that the recourse is out of time, counsel for the respondents made re- , ferencetoGreekcase-law,tendingtoestablish thatknowledgeof 15 an act or decision may be inferred indirectly. The interval of time that elapses between a decision and the recourse, plus the publicity given to a claimcoupled with theinterest that a party affected by the decision is reasonably expected to show in the pursuit of hisrights,are facts from which knowledge of an act 20 or decision may be imputed to the applicant. (See, inter alia, Index to Case-Law of the GreekCouncil of State 1961 - 1970, Decisions 721/62, 1375/62and 1362/67). The morethepublicity the stronger the presumption as to knowledge. (See,Index, supra, Cases 285/62and 1332/67). So,in the contention of the 25 respondents, this recourse was taken out of time, quite independently from other obstacles, in the way of applicants succeeding. However, the arguments as to the timeliness of the recourse are,inmyview,fraught withamisconception ofthetrue nature 30 ofthefactsandthecomplaintoftheapplicants; theycomplain, in effect, that the law suspending their right to redundancy payment is unconstitutional. Of this law they are credited with knowledge as from the date of its promulgation in the Official Gazette. Certainly they knew that the law prohibited 35 a redundancy payment in their case and were all along fighting to have the law either by-passed or amended. Most certainly they knew their right to redundancy payment wasrestricted the moment Law 1/75 wasenacted. Onthe date of their dismissal, they were not entitled, under the law, to redundancy payment. 40 Nor did they formally lodge a claim for the payment of compensation to the Redundancy Fund so asto provoke a decision 935 Pikis J. Apostolides and Others v. Republic

(1982)or establish an omission. Their complaint all along, was that the law was unjust. The revisional jurisdiction of the Supreme Court is not the forum for a review of theconstitutionality of lawsin abstracto. Litigantscannot movethe Supreme Court toexerciseitsrevisio- 5 naljurisdiction for thechallenge oftheconstitutionality oflaws. Issues of constitutionality may be determined incidentally, if necessary, for the purpose of adjudicating upon the propriety of an act, decision or omission of organs of public administration. Itis,therefore,incompetent for theapplicants toseek,outside the context of administrative action, a declaration that the Termination of Employment (Amendment) Law, 1/75, is unconstitutional. Moreover, if the reaction of the authorities to the claim of the applicants for a redundancy payment was 15 treated as a decision inthe senseof a refusal of the appropriate organ to pay redundancy payment, the recourse is out of time inasmuch as the applicants must be presumed to have had knowledge of such decision years before the initiation of the present proceedings. And the interval of 75 days cannot be 20 by-passed or relaxed for, it ismandatory to ensurecertainty in the administrative process. Counsel for the applicantsmaintained that Law92/79,amending the provisions of the Termination of Employment Law, brought about anewstateofaffairs that necessitated theholding 25 of a newinquiry intotheclaimof theapplicantsfor redundancy payments. They asked for a review of their case by a letter dated 13.7.81 addressed to the Director-General of the Ministry of Labour and Social Insurance. The reply conveyed by the letter of the Director-General of the Ministry of Labour 39 was negative, confirmatory of the attitude of the Ministry of Labourand SocialInsurance,allalong,thatthelawconferred no discretion to anyone to relax the application of its provisions and allow redundancy payment to a worker dismissed between the periods specified by the Termination of Employment Law, 35 1/75, as subsequently amended. The complaint of the applicants in this connection relates not to the suspension of the right to redundancy payment of workers dismissed subsequent to the Turkish invasion, but to the provisions regulating the 936 10 3 C.L.R. Apostolides and Others v. Republic P&b J. reactivation of redundancy payments, the allegation being that it is dscriminatory against those who, like thf applicants, had reached the age of retirement and could not, therefore, benefit from the reactivation of the Termination of Employment Law. 5 The complaint here is on a quite different footing from the original complaint of the applicants, in that it has no bearing on the suspension of redundancy payments but to the reactivation of the scheme for the making of such payments. It is a complaint against a legislative scheme. There is no material 10 before us and nothing was placed before the authorities that applicants resumed work after retirement and that payment was refused after dismissal because of redundancy. Here, as elsewhere, we have a complaint voiced in abstracto, pertaining to the constitutionality of a law and as such it is non-cognizable. 15 However,thedecision ofthe Director-General oftheMinistry of Labour and Social Insurance of 25.8.81 could, under no conceivable circumstances, be construed as an administrative act,justiciable under Article 146. The Director-General of the Ministry of Labour and Social Insurance had no power to 20 decide,onewayortheother,about themakingofaredundancy payment; therefore, his decision could have no bearing whatever ontherightsoftheapplicants. TheRedundancy Fundis, under the provisions of the principal law - the Termination of Employment Law, 24/67-ajuridical body with a personality of 25 its own, capable of suing and being sued in its own name (s.24

(2)of Law 24/67). Neither the Director-General nor anybody else can take a decision in its stead. And inasmuch as this Court can only take cognizance of executory acts,the decision complained of, subject-matter of this recourse, is not of this 30 character and as such it must be dismissed. On the other hand, we cannot identify the existence of any omission on the part of the Fund to pay redundancy payment in the absence of any material whatever, to suggest that the claim was advanced to the Fund and that they omitted so deal with it in a proper 35 manner. For the reasons above given, the recourse cannot but be dismissed. However, weshall proceed to deal with the substantiveissues,pertainingtotheconstitutionality oftheTermination of Employment (Amendment) Law - 1/75, raised in these pro40 ceeding, in accordance with the settled practice requiring the 937 Pikis J. Apostolides and Others v. Republic

(1982)trial Court to deal with everyissue before it in case a different view prevails on appeal on the foregoing matters. DETERMINATION OF AN ISSUE OF CONSTITUTIONALITY OFA LAW: Questions ofconstitutionality aredecidedinabstracto.Rarely 5 isevidence admissible and then, only if necessary, to illuminate the implications of the law, otherwise obscure. Once- the constitutionality of a law isput in issue, the task of the Court is to decide whether the provisions of the impugned legislation are reconcilable with those of the Constitution. If incon- 10 sistent with or contrary to one or more provisions of the Constitution, it is the duty of the Court to declare the law unconstitutional, quite independently from the repercussions likely to arise therefrom. The task of the Court is purelyjudicial; if thelawiscompatible withthe Constitution, effect must begiven 15 to it, being beyond the province of theCourt to examineeither the wisdom of the legislation or its efficacy. The legislative function isexclusively theprovince of thelegislature,a position spelled out explicitly in the Constitution, as well as warranted bythe system of separation of Statepowersentrenched therein. 20 The House of Representatives are the arbiters of legislation. Theyare responsiblefor identifying theneedsofthepeopleand the evils against which they must be protected, as well as the remedies appropriate to the circumstances. The burden of satisfying the Court that a statute or a section of it is uncon- 25 stitutional, is on the party propounding the unconstitutionality of the law. A law is presumed to be constitutional until the contrary is proved. So, it must be demonstrated that a lawis clearly unconstitutional before a submission as to its unconstitutionality is upheld. The antithesis or incompatibility of 30 the provisions of a given lawto the Constitution, must beclear and manifest, and such as not to becapable of beingremedied by a beneficial construction. (See,Modestos Pitsillos v. C.B.C.

(1982)3 C.L.R. 208). The applicants contest, in this case, the constitutionality of 35 s.2 of Law 1/75, on the ground that it violates or infringes the provisions of Articles 9, 23,25and

1. Also,they contest the validity of the extension of the period of suspension brought about by the enactment of Laws 67/75, 17/76 and 18/
2. The 938 3 C.L.R. ApostoUdes and Others τ. Republic Pikls J. argument here, is that a law cannot be renewed by reference. We need concern ourselves no further with this submission for the decision of the Supreme Court inRepublic v. Pavlides and Others

(1979)3C.L.R.603,makes thesubmission unsustainable. 5 So long as the will of the legislature is clearly expressed in a given direction, effect will be given to it notwithstanding the form chosen for its accomplishment. 10 15 20 25 In the course of argument, counsel also submitted that s.2 of Law 1/75 runs contrary to, or is inconsistent with, the provisions of Article 26 as well. We shall pay no heed to this submission for, it is inappropriate for the Court to take cogni­ zance of questions of constitutionality, unless raised in the formal andsolemn mannerindicatedin The Improvement Board of Eylendjia v. Constantinou

(1967)1 C.L.R. 167, a procedure compatible with the gravity of issues of constitutionality. I must confess that Ifound it hard to see how Articles 23and 25 are at all relevant to theissue of constitutionaUtyof Law 1/

1. Article 23 safeguards property rights, ownership as well as possession, andfences their enjoyment from interference by the State. Property rights cannot be taken away at the instance of the State, except in the manner envisaged in paragraphs 3 and 4 of Article
2. Any doubts as to the ambit and impli­ cations of Article 23, there may have existed, were resolved by the Supreme Constitutional Court in the case of Stelios E. Evlogimenos and 2 Others v. The Republic, 2 R.S.CC. 139, where it was proclaimed thatArticle 23is notmeantto interfere with legislative regulation of civil law rights, but is concerned with the protection of such rights from State interference. Equally irrelevant is Article 25, safeguarding freedom to 30 pursue or practise any profession or carry on any occupation, trade or business. Law 1/75 in no way restricts the freedom entrenched in Article 25.
3. Article 25.1 does not purport to safeguard any right to compensation on dismissal from employ­ ment. So, we must leave on one side Article 25 as well. 35 Another submission which can be dealt with equal brevity as those aforementioned, is that revolving round the validity in constitutional law of an enactment divesting the subject of rights acquired under a repealed law. First, no article of the Constitution makes it constitutionally offensive to take away by 939 Pikis J. Apostolides and Others v. Republic

(1982)law rights that vested at civil law. So, no question of constitutionality arises. What there exists, is a statutory presumption in virtue of s.l0

(2)(c) of the Interpretation Law, Cap.l, that, in the absence of an indication to the contrary, a law will be interpreted as leaving intact rights, privileges, 5 obligations or liabilities acquired, accrued or incurred, under a repealed law. As we pointed out in the case of The Republic v.Ch.Menelaou

(1982)3C.L.R. 419,intheface ofclear language to the contrary, the presumption recedes to the point of extinction. Here, there is no doubt that Law 1/75 was clearly intended 10 to take away rights that might have accrued under the Termination of Employment Law that it amended. We must, however, observe that no question of accrued rights can arise in this case for when the applicants were dismissed on 31.3.75, Law 1/75 was in force. So the law did not purport to take away 15 any rights that had vested in them under the Termination of Employment Law, before its amendment. And let us finally observe for the disposal of this point, that no one has a vested interest in the non change of the law. The force of the argument of applicants on the question cf 20 constitutionality was directed towards establishing infringement of Article 9 of the Constitution, and, to a lesser extent, Article 28. Wefind it convenient to deal with the submissions turning on Article 28, first, easier to dispose of in view of the abundance 25 of authority on its interpretation, and then go on to examine Article 9, juxtaposing it with the provisions of Law 1/75. THE CONSTITUTIONALITY TO ARTICLE 28: OF LAW 1/75 IN RELATION Article 28has,more than any other article of the Constitution, 30 been the subject of discussion by the Supreme Court. (See, inter alia, Mikrommatis v. TheRepublic, 2 R.S.CC. 125; Panayides v. The Republic

(1965)3 C.L.R. 107; The Republic v. Arakian

(1972)3 C.L.R. 294; Kyriakides v. The Council for Registration of Architects and Civil Engineers (No. 2)

(1965)35 3 C.L.R. 617; Matsis v. The Republic

(1969)3 C.L.R. 245). It is authoritat'vely acknowledged that the concept of equality in the context of Article 28 is a relative one designed to 940 3 C.L.R. * Apostolldes and Others v. Republic Pikis -> maintain equality among things equal in themselves, that is to say, intrinsic equality. Equality, in the context of Article 28, is used, in the Aristotelian sense,as the measure of justice ('Αριστοτέλη " Ηθικά Νικομάχεια περί Δικαιοσύνης" Νικο5 λούδη, Άθηναι

1. Κεφ. 7, σελ. 43, 44, 45, 46 καΐ 47). Thelegislature is notbound eithei to assimilate things dissimilar or to equate the unequal. So long as their classification has a rational basis and is objectively just, courts will keep their distance from legislative deliberations and proclaim them as a 10 valid expression of the will of the people. On the other hand, if the realm of equality established by the Constitutionis trans­ gressed, it is the duty of the Court to proclaim a law uncon­ stitutional. The objectivity of the law would be seriously diminished if Courts were unduly swayed by the practical 15 repercussions for the application of the law in construing its provisions (Worringham v. Lloyds Bank Ltd. [1981] 2 All E.R. 435 - a decision of the Court of Justice of the European Com­ mittee). Law 1/75 treats all those that were dismissed after 14.7.74 in 20 a like manner. The argument turning on inequality concerns those dismissed prior to 14.7.74 and those subsequent to 18.4.
2. It comes to this: There was no ground for differentiating between workers dismissed on the aforementioned dates. Any student of the recent history of Cyprus would, at first glance, 25 find plenty of reasons from distinguishing between these three classes of workers. The social and economic conditions of the country changed dramatically after the Turkish invasion, posing a direct threat to every institution of the State,a subject upon which we expatiate later on in thisjudgment. The socio30 economicclimate of the country was totally different from that prevailing prior to 14.7.74 and relatively different to the one that prevailed after 18.4.
3. Itis unnecessary to debate whether it is at all possible to question, on grounds of inequality, the constitutionality of a law by reference to legislation introduced 35 years afterwards. But as we may judicially notice, the socio­ economic climate of the country began to improve with the gradual reactivation of the economy in the years that followed the Turkish invasion. In my judgment, it was open to the legislature to introduce measuies necessary to cope with the 40 realities thatemerged after 14.7.74, »nthedomain of termination of employment, without, in any way, offending Article
4. 941 Pikis J. Apostolides and Others v. Republic

(1982)THE CONSTITUTIONALITY OFLAW 1/75 BY REFERENCE TO ARTICLE 9 OF THE CONSTITUTION: Article 9 provides: "Every person has the right to a decent existence and to social security. A law shall provide for the protection of the workers,assistance to the poor, and for a system of social insurance." 5 Article 9 embodies a constitutional directive, enjoining the State to safeguard the fundamental human right to social security. It is a provision directed equally to the executive to 10 introduce, and the legislative branch of the State to enact laws that uphold the dignity of man; fencing his being from the hazards of poverty and social insecurity factors that reduce his ability to participate and contribute tothe social aims. Failure to comply with this directive, burdens the State institutionally 15 and not administratively. (See the case of Papaphilippou v. The Republic, 1 R.S.CC. 64). No Cyprus case was cited, dealing at any length with the interpretation of Article 9, presumably because of the clarity of its provisions. Article 9 may be divided into two parts: Thefirst castsa generaldutyonthe Statetomaintainminimum standards of existence and social security for everyone. The second imposes a specific duty to establish a system of social security for the protection of the weakest elements of society, 25 the poor andthe workers. Thegeneralduty,that isto say,one owed to everyone, is absolute in the sense that the State is enjoined to safeguard m;n*mum standards for adecentexistence for everyone. This is compatible with the ideal of a human society that places man in the epicentre of social action. The 30 specificdutiesarerelative,inthesensethat socialsecurityforthe poor and the workers must be compatible with and proportionate to the means of the State. Arguably, the means of the State in this area are not those presently available, but those that could be raised by appropriate legislation. 35 Article 9 has the effect of placing social rights on an equal footing withpoliticalrights,bothfundamental underthe Cyprus 942 20 3 C.L.R. Apostolides and Others τ. Republic Pflds J. Constitution, as well as the universal declaration of human rights proclaimed by the General Assembly in

1. We can validly presume that the Termination of Employment Law 24/67, was enactedin discharge of the specific obligations of the 5 StateunderArticle
2. Itwas inevery sense a salutary measure. 10 15 20 25 30 35 A law designed to confer social security to workers, may be presumed to be a law enacted in fulfilment of the obligations of the State under Article
3. Guidedby the spirit of theCon­ stitution, one may go a step further and subscribe to theview that social legislation, introduced in furtherance to constitu­ tional directives, is a measure necessary for thedischarge of the obligations of the State under Article
4. Consequently, the repeal of such a piece of social legislation, or thecurtailment of social security afforded therethrough, may give rise to a presumption of derogation from the constitutional entrenchment of social security. Such a presumption is, however, far from conclusive for, we must not overlook that the Constitution does not envisage the enactment of any particular piece of social legislation but, as earlier indicated,it envisages theenactment of legislation conferring social security -we are referring to the second leg of Article 9 - to workers and the poor, in proportion to themeans of the State. Therefore, the repeal or modification of a law granting social security, is far from being in itself conclusive about the discharge of the obligations of the State under Article
5. The whole field of social legislation must be reviewed and examined in order to ascertain whether, at anyone time,the sum total of the mea*sures of social security are proportionate to the means of the State. This, in turn, would require a dual exercise involving examination of the compass of social legislation in its entirety on the one hand, and the socio-economic climate of the country, on the other. As the Supreme Court held in SingerSewingv. The Republic

(1979)3 C.L.R. 507, the socio-economic conditions of the country are an important consideration for the evaluation of a law designed to cope with an extraordinary state of affairs. A similar approach was adopted by Indian Courts, grading the socio-economic climate of the country as an all important consideration for the evaluation of legislation from the con­ stitutional angle.* At no stage was it submitted that social * (See Pathumma v. State of Kerala, AIR 1973 SC, pp. 771, 772, 774, 779, and Pershad v. Administrationfor Union Territory of New Delhi,1961, AIR SC p. 1602, and Majid v. Mayak, 1951, AIR SC p. 440). 943 Pikis J. Apostolides and Others v. Republic

(1982)security measures that were provided after the Turkish invasion were, in any way, disproportionate to the means of the State diminished as a result of the disastrous consequences of the invasion and the chaotic condition into which the country was plunged. The temporary suspension of redundancy payments 5 was a measure designed to protect the institution of redundancy payments for the sake of the longer-term interests of workers. In my judgment, there is nothing before the Court proving that the temporary suspension of redundancy payments constituted, in the grave circumstances that followed the Turkish invasion, 10 a departure from the constitutional dictate to provide for workers and the poor a system of social security compatible with the means of the State. But even if a contrary view was held, the grave emergency created by the Turkish invasion justified the invocation of the reserve powers of the State to 15 legislate, by suspending laws principally designed to cope with social needs in times of peace and tranquillity. THE RESERVE POWER OF THE STATE TO LEGISLATE IN THE FACE OF AN EMERGENCY: In Manglis v. Chimonides

(1967)1 C.L.R. 125, the Supreme 20 Court acknowledged the possession by the State of a reserve power to deviate from the provisions of the Constitution in the face of an emergency. The departure will be sanctioned so long asthe measures taken are strictly necessary to cope with the emergency and of no longer duration than the emergency 25 warrants. Similar powers were acknowledged to the State in the United States of America, as i fwas laid down in a number of decisions of U.S.A. Supreme Courts, cited with approval in the majority ofjudgments of the Supreme Court, in Chimonides, supra. Earlier, in 1964, the Supreme Court accepted the 30 doctrine of necessity as an integral part of our law, empowering the State to take measures deemed absolutely necessary for the running of the State, in the absence of which a vacuum would be left in the government of the country. (See, A-G- of the Republic v. Mustafa Ibrahim and Others, 1964 C.L.R. 35 195). To my comprehension, necessity is but another aspect of the reserve power of the State to legislate in the interests of the integrity of the State and social coherence. In U.S.A. the existence of a reserve power is regarded as a concomitant of the sovereignty of the people to provide for their social survival. 40 944 3 C.L.R. 5 10 15 20 Apostolides and Others τ. Republic PHus J. One may comparethe right of society to survival, to theparallel right of the individual to survival. And inasmuch as man may take measures necessary to ensure his survival, so can society. In bothcases,we areconcernedwitha universal right tosurvival. Inthecase of the individual, an individual right, and inthe case of society, a social right. Reserve power is necessary to safe­ guard both the individuality and inborn social inclination of man. The right to survival as an organic entity, is equally fundamental for the preservation of the State. As a resul* of the Turkish invasion of 1974, the occupation of a large part of the country by a foreign army and the displacement of a vast section of the population,not only social organization but the very foundations of the State were threatened. In fact, the State faced an imminent danger of collapse, something that theenemies of the country wished for. That it was not allowed to happen, is largely due to the extraordinary measures taken thereafter in order to safeguard the compactness of the State and social coherence. That the measures were not more extensive than they were, does not but reflect the desire of the people of this country not to deviate from democraticinstitu­ tions, except to the extent absolutely necessary. Like any other Judge, I am sensitive to the dangers inherent in the acknowledgment of reserve powers that may be allowed to override fundamental provisions of the Constitution and 25 the law. I am comforted, however, by thefact that the arbiters of the existence of an emergency andits extent are thejudiciary, functioning.separately and independently of the Executive and Legislative branches of the State that may be trusted to guard against possible abuse. I would not draw equal comfort if 30 any other body had responsibility for the ascertainment of an emergency situation and the extent of it. The reserve power to legislate in deviation of the Constitutioncannot be invoked unless absolutely necessary for the protection of the primary aims of society, directly threatened by the emergency and then 35 only to the extent strictly necessary. For the reasons above given the recourse fails. It is dismis­ sed accordingly. There shall be no order as to costs. Recourse dismissed. No order as to costs. 945