clr/1983/1983_3_1361.pdf

(3)oj the Law as amended by • Law 2/81—Public Officers—Army Service—Recognition for pension purposes—Pension rights—Adjusted in a manner recogni­ sing army servive as front the date of enactment of Law 2/81 but not earlier. Constitutional Law—Principle oj equality—Article 28 of the Constitu­ tion—Notion of equality a relative concept application of which inevitably depending upon the realities prevailing at anyone time and the need to treat equally those in substantially the same position—Section 17

(3)of thePensions Law,Cap.3ll (ΛΪamended by Law 2/81) making a distinction between serving public officers andretiredpublic officers regardingmode of adjustment of pension rights emanatingfrom army service—Not contrary to the above Article. Followingthe amendment of section 17 of the Pensions Law, Cap. 311, by means of Law2/81, inaway purporting to recognise army service of public officers for pension purposes, the applicants, 17 ex public officers who had retired prior to the enactment of Law 2/81, requested from the Minister of Finance that pension rights that vested prior to the passing of the law should be adjusted in accordance with thespirit of Law 2/81 in the name of equality of treatment. The Minister, relying on the provisions of Law 2/81, turned 1361 Christodoulou and Others \. Republic

(1983)down therequest, and hencethis recourse inwhich the following issues arose for consideration (

1. a)Whether the Minister wrongly interpreted Law 2/81 (
2. b)Whether Law 2/81 was unconstitutional, as being con­ trary to Article 28 of the Constitution because it made 5 an arbitrary distinction or differentiation between rights of public officers with an arm> senice who retired before its enactment on the one hand and those expected to retire subsequent to its enactment on the other Held,

(1)that theplain provisions of section 17

(3)of thePenbions Law, Cap 311 (as amended by Law 2/81) make it abundantly clear that pension rights of public officers with army service should be adjusted in a manner recognizing their army senice as from the date of the enactment of the law but not 15 earlier, that pension rights that accrued prior to the enactment of Law 2/81 remained unaltered by its provisions, accordingly the refusal of the Minister to recognise such service νas unquestionably dictated by the provisions of Law 2/81

(2)Thatthenotion of equality is of necessity a relative concept 20 ihe application of which inevitably depends upon the realities prevailing at any one time and the need to treat equally those in substantially the same position, that there is room for dis­ tinguishing between the rights of serving public servants and those who retired, that similarity of circumstances is necessarily 25 related to the time factor and their appreciation at any onetime, that it was neither arbitrary nor intrinsically unjust for the law makers to leave accrued rights unaffected by The new law, that it was a distinction the legislature could validly make in the exercise of its powers; accordingly Law 2/81 cannot be 30 faulted for infringement of the principle of equality embodied in Article 28 of the Constitution Application dismissed. Cases referred to: Santis and Others v. Republic

(1983)3 C.L.R. 423; 35 Papaxenofontos and Others ν Republic

(1982)3 C.L.R 1037, Mikrommatis v. Republic, 2 R SC.C 125; Constanttnouν Republic

(1966)3 C.L.R 572, Kalisperas and Anotherv. Republic

(1973)3 C.L.R. 109; 1362 10 3 C.L.R. Christodoulou and Others v. Republic Republic v. Detnetriades

(1977)3 C.L.R. 213; Apostolides and Othersv. Republic

(1982)3 C.L.R. 928 at p. p. 941; Republic v. Arakian

(1972)3 C.L.R.

1. 5 Recourse. Recourse against the refusal of the respondents to adjust applicants' pension rights that vested prior to the passing of Law No. 2/81 in accordance with the spirit of the Law. Chr. Triantafyilides, for the applicants. 10
2. Georghiades, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. 15 20 25 30 PIKIS J. read the following judgment. Trw arduous eft'orts of public officers who served in the army during the second world war for the recognition of their army service for puiposes of pension were met with success in 1981 with the enactment of Law 2/81 amending the Pensions Law, Cap.311 in virtue of s.2 of the 1981 Act, s.17 of the main law was amended in a way purporting to recognise army service of public officers for pension purposes. The law did not, it seems, satisfy the expectations of those public officers with army service who retired prior tothe enactment of the law,for it did not re-adjust pension rights that accrued prior to the enactment of the law but was prospective in content bringing about changes in the computation of pension as from the date of its enactment but not earlier. Under the provisions of s.17

(3)Cap. 311(as amended) only pension rights that accrued or would accrue as from the date of the enactment of the law and subsequently would be adjusted in a way fully heeding army service during the second world war of public officers for pension purposes. Thus pension rights that vested prior to the enactment of the law were left intact. The applicants, 17 ex public officers who retired prior to the enactment of the law, addressed a lettei to the Minister of 35 Finance requesting that pension rights that vested prior to the passing of the law should be adjusted in accordance with the spirit of Law 2/81 in the name of equality of treatment. The Minister answered in the negative in view of the provisions of Law 2/81. A vague attempt was made in these proceedings, 1363 Hikis J. Christodoulou and Others v. Republic

(1983)on behalf of applicants, to argue that the Minister wrongly interpreted the law. In support of this submission they relied on the decision of this Court in Santisand Othersv. The Republic,

(1983)3 C.L.R. 423, a case on the interpretation of the Pensions Law, 49/80, establishing a right to pension, inter 5 aha, of parliamentarians and their families. I am of opinion that the case of Santis can lend no support to the submission of applicants. All it decided somewhat relevant to this case is that the law does not forfeit its prospective character by making entitlement to benefits dependent on events, that 10 materialized in the past. The plain provisions of s,17

(3)Cap. 311, (as amended by Law 2/81,make it abundantly clear that pension rights of public officers with army service should be adjusted in amanner recognizingtheir army serviceasfrom the date of the enactment of the law, but not earlier. Pension 15 rights that accrued prior to the enactment of the law remained unaltered by its provisions. Unless the law is for any reason bad for unconstitutionality, the refusal of the Minister to recognizesuchservicewasunquestionablydictated bytheprovisions of Law2/81. Thereremains to consider whether the law 20 was unconstitutional in view of the provisions of Article 28 of the Constitution, particularly that part safeguarding equality before the law. In the submission of applicants forshadowed in their application and, expounded before me in their written address, Law 25 2/81isunconstitutional becauseitmakesanarbitrary distinction or differentation between the rights of public officers with an aimy service who retired before the enactment of Law 2/81 on the one hand and those expected to retire subsequent to its enactment on the other. The distinction is invidious to ihe 30 rights safeguarded by Article 28 in as much as the law treats unequally persons in substantially the same position. Officers whoretired beforetheenactment ofthelawaswellasthosewho will retire subsequent to its introduction have similar claims to an enhanced pension, for both classes served in the public 35 service as well as in the army during the second world war. Especialemphasiswaslaid onthedecisionoftheSupremeCourt in Papaxenofontos andOthers v. TheRepublic,

(1982)3 C.L.R. 1037deliveredbyStylianides,J.decidingthat s.7ofthePensions (Secondary School Teachers) Law—as amended by Law 40/81, 40 and regulations 16

(8)and 31 of the Pension Regulations— 1364 3 CX.R. 5 10 15 20 25 Christodoulou and Others v. Republic Pikis J as amended by regulations 3 and 7 of the Pensions (Amendment) Regulations 1981 were unconstitutional to the extent that they excluded, without objective justification, civil servants and school teachers of secondary education who retired under the provisions of s.3 of the Compensation (Entitled Officers) Law, 1962. The distinction made was unwarranted for the circumstances of the excluded class of public servants were similar to those who benefited by the law. Leaving them out was arbitrary and resulted in injustice that should not have tainted the law. The amended law and regulations conferred an option to retiied public servants exercisable after the enactmentofthe lawthat wasdenied to a smallclassofpublic servants who left the service after the provisions of the 1962 legislation notwithstanding their re-appointment in the service. The law did not seek to adjust retrospectively the rights of retired officers but only from the date of the enactment of the law. Reference is made in the submission of counsel for applicants to numerous authorities explaining the principle of equality under Article 28 and illustrating its application to diverse circumstances. The interpretation of Article 28 of the Constitution has concerned the Courts of the Republic, it seemsto me, more than any other article of the Constitution. The principles underlying its application have emerged over the years through the case law fairly clearly in a way making it unnecessary to refer to its application in particular cases. (See the cases of Mikrommatis v. The Republic, 2 R.S.C.C. 125; Constantinou v. The Republic,

(1966)3 C.L.R. 572; Kalisperas and Another v. Republic,

(1973)3 C.L.R. 109; and Republicv. Demetriades,

(1977)3 C.L.R. 213. 30 As 1 had occasion to observe in Apostolides and Others v. The Republic,

(1982)3 C.L.R. 928 at p. 941,Article 28 imports the notion of equality in the Aristodelian sense, i.e. equality between things equal in themselves, judged from the view point of their character and properties. In contradistinction to 35 mathematical or geometrical equality, equality between the objects compared need not be absolute; in other words equality under Article 28 is a relative concept instrumental to ensuring justice among citizens. Law-makers and administrators should not make arbitrary distinctions offensive tojustice between men. 40 Such distinctions erode the principle of equality and respect for the law. Several tests have been propounded by judges 1365 Pikis J. Christodoulou and Others v. Republic

(1983)and authors to determine whether a particular law makes unequal provisions respecting the rights of citizens. One such test elicited in Basu's Commentary onthe Constitution ofIndia, 6thedn. Vol.81978,172,purportstoresolvetheissuebyseeking answer to two questions: The first concerns the rationality 5 underlying the classification, particularly whether it is based on an intelligible differentiation. The second relates to the nexus of the differentiation to the avowed policy and objects of the law. If the classification is rational in the above sense and relevant tothepolicyofthelaw,theActmustbeproclaimed 10 valid; otherwise it must be struck down as unconstitutional. In making comparisons wemust beguided bycommon sense and the experience of mankind. Article 28 is not intended to impose unreasonable limitations upon legislative discretion. After all, they are in a unique position to appreciate social 15 need and direct legislative effort where it is mostly needed. Article 28 and similar provisions of the Constitution aid to establish legislative norms that must be adhered to in order to sustain conformity tothewider aimsofthelaw,oneofwhich is to treat equally those that broadly speaking are similarly 20 circumstanced. The cases establish that in matters offiscalpolicy and in the management offinancialaffairs in general the latitude to make distinctions, at times fine ones, is particularly wide because of the nature of the subject. Economic management is 25 invariably related to the means of the State and long term policies. The ultimate question upon which the constitutionality of Law2/81turnsisthis: Weretherevalidreasonsfor distinguishing between the pension rights of public servants with army 30 service who retired befoie the enactment of the law and those expected to retire after its enactment? That the similarities and common properties in the position of the two groups is great cannot be doubted; both classes served in the public service as well as in the army. On authority there is room for 35 distinguishing between the rights of serving public servants and those who retired. In Republicv. Arakian andOthers,

(1972)3 C.L.R. 294, the Supreme Court identified legal and 1366 3 C.L.R. Christodouloa and Others v. Republic Pikis J. factual differences respecting serving and retired public officers that may be reflected without offending Article 28.1 in the benefits receivable from the State byeach one ofthe two classes. Admittedly the decision concerned the distinction between the 5 rights of seiving officers as compared to those who retired and not the pension rights of public officers who retire at different dates. The present case raises a more fundamental issue that primarily revolves round the ambit of the notion of equality under 10 Article 28. Does it import equality at the present time between persons similarly circumstanced or does it import equality at all times present as well as past? There is no doubt that all officers who retired prior to the enactment of Law 2/81 with army service are equally treated by the law. Furthermore, 15 there is no doubt that all officers who shall retire after the enactment of the law will again be equally treated. The pertinent question is whether the benefits of the two classes of retiring officers should be determined independently of the date of their retirement. 20 The notion of equality is of necessity a relative concept the application of which inevitably depends upon the realities prevailing at any one time and the need to treat equally those in substantially the same position. Primarily it aims to ensure equality before the law at any one time. Any other inter25 pretation would make economic planning impossible and hinder the evolution of the law along linesjustified by present day realities. Any other approach would inevitably keep one eye of the legislature cast back on the implications of its legislative policy upon events past. The legislative presumption that 30 accrued rights remain unaffected bychanges in the law enshrined in s.10

(2)of the Interpretation Law, Cap. 1(see also Law 42/62) reflects a basic principle of the law that there must be certainty about its provisions and that rights accruing under the legislation will remain unaffected by subsequent changes in the law. 35 If the notion of equality applied without distinction to accrued rights and rights to accrue after the enactment of a given law it would entail a never ending process of exploration of events past. And then it would be very doubtful if equality could be ensured given changes that inevitably occur in the nature of 1367 Pikis J. Christodoulou and Others v. Republic

(1983)things over the years. In my judgment similarity of circumstances is necessarily related to thetime factor and their appreciation at any one time. It was neither arbitrary nor intrinsically unjust for the law makers to leave accrued rights unaffected by the newlaw. It was a distinction the legislature could validly make in the exercise of its powers. The law cannot be faulted for infringement of the principle of equality embodied in Article 28 of the Constitution. In theresulttherecourseisdismissed. Therewillbenoorder as to costs. Recourse dismissed with no order as to costs. 1368