clr/1983/1983_3_419.pdf

(1983)Cases referred to: R. v. Inhabitants of St. Mary WhiteChapel [1848] 12 Q.B.120; R. v. Inhabitantsof Christchurch [1848] 12 Q.B.149; MasterLadies Tailors Organisation r. Minister of Labour [1950] 2 All E.R.525; 5 Cummins Ballrooms Ltd. v. Zenith Investments (Torquay) Ltd. [1970] 2 All E.R.871 at p. 893 (H.L.); Nortam v. London Boroughof Barnet [1978] 1 All E.R.I243 (C.A.); Police v. Ekdotiki Eteria

(1982)2 C.L.R. 63; 10 Papaxenophontos and Others v. Republic

(1982)3 C.L.R.1037. Recourse. Recourse against the refusal of the respondents to acknowledge applicants' pension rights as persons entitled to a pension upon the death of Georghios Santis, a member of the House of 15 Representatives. G. TriantafyUides, for the applicants. M. Photiou, for the respondent. Cur. adv. vult. PIKISJ. read the followingjudgment. A neat question of law 20 is the only issue calling for resolution in this recourse: Are the benefits of the Pension Law of 1980 - Law 49/80, providing for the conferment, under certain circumstances, of pension to the President of the Republic, the Members of the Executive and the Members of the Legislature, confined to 25 members of the aforesaid classes of entitledpersons that werein being, i.e. alive at the time of the enactment of the law of 1.8.1980? The particular question we must answer is, whether the children of a Parliamentarian, namely Georghios Santis, who 30 predeceasedtheenactment ofthelaw»areentitledto the benefits of the aforesaid legislation. The recourse on the part of their mother was withdrawn and it is dismissed. Georghios Santis was a Representative of the Famagusta district to the House of Representatives, from the year 1960 to 35 1970 - a period exceeding in duration the minimum service necessary to entitle a Representative or his widow and orphans 420 3 C.L.R. Santis and Others v. Republic Pikis J. to a pension (48 months for a Representative returned in a general parliamentary election - s.2, Law 49/80). The late Representative diedinDecember, 1979,at theageof 50, leaving two orphans qualifying as persons entitled to a pension upon 5 thedeathofaRepresentative,inviewoftheir age,atthetimeof thedeathoftheir father, 17 and 15respectively (sees.7

(3)ofthe law). Their application for the acknowledgment of their pension rights, dated 7.10.1982, was refused on 12.12.1982 on the ground that their father passed away before the enactment 10 ofthe law,consequently, norightscould accrue to any member of his family. The present proceedings are aimed to challenge the validity of thisdecision. Thedenial of pension rightsto the applicants was,asstatedinthestatementoffactssupportingtheopposition, 15 justified as a matter of interpretation of the relevant provisions ofLaw49/80,inasmuchasthelawconfined thebenefits accruing thereunder to Parliamentarians who survived the enactment of the law. Parliamentarians predeceasing the enactment of the law could enjoy no benefits under the law nor their family 20 dependants. On examination of the provisions of the law, it appears that pensionable service is not tied to service in the House of Representatives at any particular period of time, past, as well as present service in the House confers a similar right. The time 25 at whicha Parliamentarian vacates Office isonlyrelevant to the ascertainment of the pecuniary pension benefits or gratuity in casehe, or an entitled person, opts for one (s.6(l) of the law). It istransparentthat theobject ofthelawwasto grantpensions to Representatives who served in the House for a qualifying 30 period irrespective of the time at which service was rendered. An expressprovision ofthe lawdisqualifies from the enjoyment of pension rights Parliamentarians guilty of disgracing their Office (s.14). Thepertinent question intheseproceedingsiswhetherthelaw 35 expressly, or by necessary implication, excludes from the class of beneficiaries children of a Parliamentarian who died before the enactment of thelaw. In other words,did the law exclude from its ambit orphans of Representatives who died before .- ^ 421 Pifcis J. Santis and Others v. Republic

(1983)1.8.1980,as the casewaswith Georghios Santis? If the answer is inthe affirmative and the law excluded from the list of beneficiaries children of predeceased Parliamentarians, a second question must be answered, whether the law, in making this distinction, makes a discrimination offensive to the principle of 5 equality before the law, safeguarded by Article 28.1 of the Constitution. If the distinction suggested on behalf of the respondents is really warranted by the provisions of the law, it would indeed be difficult to identify the rationale behind it. Orphans of 10 predeceased Parliamentarians merit no less protection from orphans-to-be of Parliamentarians living at the time of the enactment of the law. The smallness of the number of predeceased Parliamentarians is a factor in itself, making it most unlikely that the legislature consciously contemplated their 15 exclusion. The injustice and unfairness inherent in such a distinction, is another potent factor that militates against the possibility of the legislature wittingly opting for such a course. To the sameconclusion I amdriven on examination ofthepurposesthelaw, setout to achieveto secure Parliamentarians and 20 their immediate dependants from financial strain, presumably in order to rid them while in Office from financial pressure. Thiswastheaimofthelaw. Notwithstanding argumentstothe contrary, I am,however, of the opinion, that the legislature did notmakethedistinction suggestedonbehalf ofthe respondents. 25 To start with, nowhere do they say that entitled persons, including orphans of deceased Parliamentarians, are to be excluded from the compass of the law in cases where their father diedbefore thecomingof thelawin force. The physical existenceofaParliamentarianatthetimeofthe enactmentof the 30 law,isnot set asa prerequisite for theaccrualof benefits under the law to his children. Originally, the respondents rested their case,as Mr. Photiou informed me,onthe assumption that the acknowledgment of benefits to the children of Georghios Santis would entail giving retrospective effect to the law. But 35 after hearing the exposition of thecase of the applicants, made by Mr. Triantafyllides on their behalf, he felt constrained to admit that the recognition of the applicants as entitled persons does not require giving the law retroactive effect 422 3 C.L.K. Santis and Others v. Republic Pikis J. Retrospectivity, in the context of legislation, primarily signifies alteration of rights and the imposition of obligations ex post facto. It is a course regarded as repugnant to fairness and justice, destructive of certainty in the law and the legal process. 5 Under English law, there is a presumption against giving retrospective effect to a statute. Effect must be'given to this presumption unless it is displaced by clear statutory language or by a distinct implication of its provisions. This presumption is given statutory force in Cyprus, by virtue of the provisions of 10 sections 6, 7and 10of the Interpretation Law, Cap. 1. It is imperative to keep in perspective that a statute is not retrospective in character merely because the rights accruing thereunder are determinable by reference to passed events. Events of the past and experience gained in times gone is the 15 underlying theme of most statutes. A statute retains its prospective character so long as rights conferred thereunder, or obligations created thereby arise from the date of its enactment or from a future date. Such legislation does not change the law, as it stood in days past upsetting what the subjects then 20 confidently regarded the law to be. The old case of R. v. Inhabitants of St. Mary White Chapel [1848] 12 Q.B. 120, illustrates the implications of a prospective statute on events covered by its provisions but occurring before its enactment. The right of a widow to remain in the parish for 25 a year after the death of her husband, under the provisions of s.2 of the Poor Removal Act of 1846, accrued on the date of the enactment of the law and not earlier. It certainly did not accrue on the day her husband passed away for, it was a right not recognised by law at the time. Therefore, the period of one 30 year did not count from the date of the death of her husband. The right accrued onthedate oftheenactment ofthe lawand not earlier. (See, also, R. v. Inhabitants of Christchurch [1848] 12 Q.B. 149 and, the judgment of Somervell L.J. in Master Ladies Tailors Organisationv. Minister of Labour [1950] 2 All E.R. 525 35 - also, Maxwel on the Interpretation of Statutes, p.217 et seq.). Craies depicts retrospective legislation in the following terms: " A statute which takes away or impairs any vested rights acquired under existing law, or creates a new obligation, or imposes a new duty, or attaches a new disability 423 Pikis J. Santis and Others v. Republic

(1983)in respect of transactions or considerations already past." (6th edition, p.18). The payment of pension to a Parliamentarian under the law is dependent on his attaining the age of 60(s.6

(2)). Therefore, the date of the enactment of the law is not definitive for the 5 accrual of pension rights. The magnitude of pension benefits ontheotherhand,isagaincomputed byreferencetofacts totally extraneous to hisphysical existenceat thetimeof the enactment of the law; they are dependent on his emoluments at the time of cession of service (s.6(l)). Those provisions that purport to 10 define the implications arising from the death of a Parliamentarian, encountered insections 7,9and 12,are againin no way related to his physical existence at the time of the enactment of the law. I am unable to sustain the submission of counsel for the 15 respondents that the provisions of s.7(l) support his preferred construction, of the law in the area under consideration. It laysdown that upon the death of a Parliamentarian, before the granttohim ofapension,entitledchildrenacquire,asfrom that date, pension benefits. This provision does not deprive the 20 children of a predeceased Parliamentarian of pensionrightsbut merely suspends, by interpreting the law prospectively, the accrual of the right to the date of the enactment of the law. But this provision, neither expressly nor by necessary implication, excludes entitled children from the class of beneficiaries 25 of the law. I find it unnecessary to debate at any length in these proceedings the several canons of statutory construction or their interplay. I merely note that exclusion of the orphans of a predeceased Parliamentarian from the range of beneficiaries, 30 would becontrary to the purposes of the law outlined above, a course that should beavoided, ifpossible,on a considerationof the wording of the law. (See, Cummins BallroomsLtd. v. Zenith Investments(Torquay)Ltd. [1970] 2 All E.R. 871,893 (H.L.) and, Nortman v.London Borough of Barnet [1978] 1All 35 E.R. 1243 (C.A.). Another rule of statutory interpretation of relevancehere,isthatinconstruingstatutes,wemuststart from the premise that the legislature was aware of and intended to observe the provisions of the Constitution. (See, Police v. 424 b 3 C.L.R. Santis and Others v. Republic Pikis J. Ekdotiki Eteria

(1982)2 C.L.R. 63). Therefore, they can be presumed not to have intended to have made a distinction that smacks of unreasonableness and injustice, a differentiation inimic to the concept of equality. 5 Inmyjudgment, as amatter ofinterpretation ofthe provisions of Law 49/80, the applicants were entitled to the benefits of the law of which they were wrongly deprived by the sub judice decision. Inevitably the decision must be set aside. If the relevant provisions of Law 49/80 compelledmetoruleotherwise. 10 I would unhesitatingly declare that part of the Statute that denies benefits to children of Parliamentarians who died before the enactment of the law, as unconstitutional because of repugnancy to the provisions of Article 28.1. The decision of Stylianides, J. in Papaxenophontos and Othersw. Republic 15

(1982)3 C.L.R. 1037, is very much on the point. The learned Judged declared, after reviewing the principles bearing on equality, unconstitutional that part of the provisions of the Pensions (Amendment) Law (No.2) - Law 39/81 and Pensions (Secondary School Teachers) (Amendment) Law - Law 40/81 20 that excluded from the benefits of the law a small class of educationalists for no valid reason. The following passage is relevant to the question in hand: 25 "The applicants share common and relevant properties and qualifications with the rest of the officers with interrupted service out of which they were specially selected to be cut off. There was no objective basis for leaving them out." (p.1052). In conclusion, the decision under review is based upon a misconception of the law and must be set aside. The decision 30 is hereby annulled. Let there be no order as to costs. Sub judice decisionannulled. No order as to costs. c 425